1. The National Labor Relations Board was warranted in these
cases in finding unfair labor practices, violative of § 8 of the
National Labor Relations Act, in the employer's (1) enforcement of
a "no solicitation" rule against the solicitation of union
membership by employees on company property during lunch hour; (2)
discharge of employees for wearing union "shop steward" buttons in
the plant, though at a time when a majority of the employees had
not designated any collective bargaining representative; and (3)
enforcement of a general "no-distribution" rule against
distribution of union literature or circulars by employees on their
own time though on parking lots owned by the company and adjacent
to the plant. Pp.
324 U. S. 795,
324 U. S.
803.
2. As an administrative agency with power after hearings to
determine on the evidence in adversary proceedings whether
violations of statutory commands have occurred, the Labor Board,
within the limits of its inquiry, may infer from proven facts such
conclusions as reasonably may be based on the facts proven. P.
324 U. S.
800.
Page 324 U. S. 794
3. It was reasonable for the Labor Board to adopt a presumption
of invalidity of a company rule forbidding union solicitation by
employees on company property outside of working hours in the
absence of evidence that special circumstances make the rule
necessary in order to maintain production or discipline. P.
324 U. S.
803.
4. The discharge of an employee for violation of a company rule
against solicitation, which rule was invalid as applied to the
union solicitation in which the employee engaged on his own time,
was discriminatory within the meaning of § 8(3) of the Act in that
it discouraged membership in a labor union, notwithstanding that
the rule was enforced impartially against all solicitors. P.
324 U. S.
805.
12 F.2d 193 affirmed. 143 F.2d 67 reversed.
Certiorari, 323 U.S. 688, 698, to review, in No. 226, a decree
granting enforcement of an order of the National Labor Relations
Board, and, in No. 452, a judgment setting aside an order of the
Board.
MR. JUSTICE REED delivered the opinion of the Court.
In the
Republic Aviation Corporation case, the
employer, a large and rapidly growing military aircraft
manufacturer, adopted, well before any union activity at the plant,
a general rule against soliciting which read as follows:
Page 324 U. S. 795
"Soliciting of any type cannot be permitted in the factory or
offices."
The Republic plant was located in a built-up section of Suffolk
County, New York. An employee persisted after being warned of the
rule in soliciting union membership in the plant by passing out
application cards to employees on his own time during lunch
periods. The employee was discharged for infraction of the rule
and, as the National Labor Relations Board found, without
discrimination on the part of the employer toward union
activity.
Three other employees were discharged for wearing UAW-CIO union
steward buttons in the plant after being requested to remove the
insignia. The union was at that time active in seeking to organize
the plant. The reason which the employer gave for the request was
that, as the union was not then the duly designated representative
of the employees, the wearing of the steward buttons in the plant
indicated an acknowledgment by the management of the authority of
the stewards to represent the employees in dealing with the
management, and might impinge upon the employer's policy of strict
neutrality in union matters, and might interfere with the existing
grievance system of the corporation.
The Board was of the view that wearing union steward buttons by
employees did not carry any implication of recognition of that
union by the employer where, as here, there was no competing labor
organization in the plant. The discharges of the stewards, however,
were found not to be motivated by opposition to the particular
union, or, we deduce, to unionism.
The Board determined that the promulgation and enforcement of
the "no solicitation" rule violated Section 8(1) of the National
Labor Relations Act as it interfered with, restrained and coerced
employees in their rights under Section 7, and discriminated
against the discharged employee
Page 324 U. S. 796
under Section 8(3). [
Footnote
1] It determined also that the discharge of the stewards
violated Section 8(1) and 8(3). As a consequence of its conclusions
as to the solicitation and the wearing of the insignia, the Board
entered the usual cease and desist order and directed the
reinstatement of the discharged employees with back pay and also
the rescission of "the rule against solicitation in so far as it
prohibits union activity and solicitation on company property
during the employees' own time." 51 N.L.R.B. 1186, 1189. The
Circuit Court of Appeals for the Second Circuit affirmed, 142 F.2d
193, and we granted certiorari, 323 U.S. 688, because of conflict
with the decisions of other circuits. [
Footnote 2]
In the case of
Le Tourneau Company of Georgia, two
employees were suspended two days each for distributing union
literature or circulars on the employees' own time on company owned
and policed parking lots, adjacent to the company's fenced in
plant, in violation of a longstanding and strictly enforced rule,
adopted prior to union organization activity about the premises,
which read as follows:
"In the future, no Merchants, Concern, Company or Individual
Page 324 U. S. 797
or Individuals will be permitted to distribute, post, or
otherwise circulate handbills or posters, or any literature of any
description on Company property without first securing permission
from the Personnel Department."
The rule was adopted to control littering and petty pilfering
from parked autos by distributors. The Board determined that there
was no union bias or discrimination by the company in enforcing the
rule.
The company's plant for the manufacture of earth moving
machinery and other products for the war is in the country on a six
thousand acre tract. The plant is bisected by one public road and
built along another. There is one hundred feet of company-owned
land for parking or other use between the highways and the employee
entrances to the fenced enclosures where the work is done, so that
contact on public ways or on non-company property with employees at
or about the establishment is limited to those employees, less than
800 out of 2100, who are likely to walk across the public highway
near the plant on their way to work, or to those employees who will
stop their private automobiles, buses or other conveyances on the
public roads for communications. The employees' dwellings are
widely scattered.
The Board found that the application of the rule to the
distribution of union literature by the employees on company
property which resulted in the lay-offs was an unfair labor
practice under Section 8(1) and 8(3). Cease and desist and rule
rescission orders, with directions to pay the employees for their
lost time, followed. 54 N.L.R.B. 1253. The Circuit Court of Appeals
for the Fifth Circuit reversed the Board, 143 F.2d 67, and we
granted certiorari because of conflict with the
Republic
case. 3 23 U.S. 688.
These cases bring here for review the action of the National
Labor Relations Board in working out an adjustment between the
undisputed right of self-organization
Page 324 U. S. 798
assured to employees under the Wagner Act and the equally
undisputed right of employers to maintain discipline in their
establishments. Like so many others, these rights are not unlimited
in the sense that they can be exercised without regard to any duty
which the existence of rights in others may place upon employer or
employee . Opportunity to organize and proper discipline are both
essential elements in a balanced society.
The Wagner Act did not undertake the impossible task of
specifying in precise and unmistakable language each incident which
would constitute an unfair labor practice. On the contrary, that
Act left to the Board the work of applying the Act's general
prohibitory language in the light of the infinite combinations of
events which might be charged as violative of its terms. Thus, a
"rigid scheme of remedies" is avoided, and administrative
flexibility within appropriate statutory limitations obtained to
accomplish the dominant purpose of the legislation.
Phelps
Dodge Corporation v. Labor Board, 313 U.
S. 177,
313 U. S. 194.
So far as we are here concerned, that purpose is the right of
employes to organize for mutual aid without employer interference.
This is the principle of labor relations which the Board is to
foster.
The gravamen of the objection of both
Republic and
Le Tourneau to the Board's orders is that they rest on a
policy formulated without due administrative procedure. To be more
specific, it is that the Board cannot substitute its knowledge of
industrial relations for substantive evidence. The contention is
that there must be evidence before the Board to show that the rules
and orders of the employers interfered with and discouraged union
organization in the circumstances and situation of each company.
Neither in the
Republic nor the
Le Tourneau case
can it properly be said that there was evidence or a finding that
the plant's physical location made solicitation away from company
property ineffective to reach prospective union
Page 324 U. S. 799
members. Neither of these is like a mining or lumber camp, where
the employees pass their rest as well as their work time on the
employer's premises, so that union organization must proceed upon
the employer's premises or be seriously handicapped. [
Footnote 3]
The National Labor Relations Act creates a system for the
organization of labor with emphasis on collective bargaining by
employees with employers in regard to labor relations which affect
commerce. An essential part of that system is the provision for the
prevention of unfair labor practices by the employer which might
interfere with the guaranteed rights. The method for prevention of
unfair labor practices is for the Board to hold a hearing on a
complaint which has been duly served upon the employer who is
charged with an unfair labor practice. At that hearing, the
employer has the right to file an answer and to give testimony.
This testimony, together with that given in support of the
complaint, must be reduced to writing and filed with the Board. The
Board, upon that testimony, is directed to make findings of fact
and dismiss the complaint or enter appropriate orders to prevent in
whole or in part the unfair practices which have been charged. Upon
the record so made as to testimony and issues, courts are empowered
to enforce, modify or set aside the Board's orders, [
Footnote 4] subject to the limitation that
the findings of the Board as to facts, if supported by evidence,
are conclusive.
Plainly, this statutory plan for an adversary proceeding
requires that the Board's orders on complaints of unfair
Page 324 U. S. 800
labor practices be based upon evidence which is placed before
the Board by witnesses who are subject to cross-examination by
opposing parties. [
Footnote 5]
Such procedure strengthens assurance of fairness by requiring
findings on known evidence.
Ohio Bell Tel. Co. v. Public
Utilities Comm'n, 301 U. S. 292,
301 U. S. 302;
United States v. Abilene & S. Ry. Co., 265 U.
S. 274,
265 U. S. 288.
Such a requirement does not go beyond the necessity for the
production of evidential facts, however, and compel evidence as to
the results which may flow from such facts.
Market St. R. Co.
v. Railroad Comm'n, 324 U. S. 548. An
administrative agency with power after hearings to determine on the
evidence in adversary proceedings whether violations of statutory
commands have occurred may infer within the limits of the inquiry
from the proven facts such conclusions as reasonably may be based
upon the facts proven. One of the purposes which lead to the
creation of such boards is to have decisions based upon evidential
facts under the particular statute made by experienced officials
with an adequate appreciation of the complexities of the subject
which is entrusted to their administration.
Labor Board v.
Virginia Power Co., 314 U. S. 469,
314 U. S. 479;
Labor Board v. Hearst Publications, 322 U.
S. 111,
322 U. S.
130.
In the
Republic Aviation Corporation case, the evidence
showed that the petitioner was, in early 1943, a non-urban
manufacturing establishment for military production which employed
thousands. It was growing rapidly. Trains and automobiles gathered
daily many employees for the plant from an area on Long Island,
certainly larger than walking distance. The rule against
solicitation was introduced in evidence, and the circumstances of
its violation by the dismissed employee after warning was
detailed.
Page 324 U. S. 801
As to the employees who were discharged for wearing the buttons
of a union steward, the evidence showed in addition the discussion
in regard to their right to wear the insignia when the union had
not been recognized by the petitioner as the representative of the
employees. Petitioner looked upon a steward as a union
representative for the adjustment of grievances with the management
after employer recognition of the stewards' union. Until such
recognition, petitioner felt that it would violate its neutrality
in labor organization if it permitted the display of a steward
button by an employee. From its point of view, such display
represented to other employees that the union already was
recognized.
No evidence was offered that any unusual conditions existed in
labor relations, the plant location, or otherwise to support any
contention that conditions at this plant differed from those
occurring normally at any other large establishment.
The
Le Tourneau Company of Georgia case also is barren
of special circumstances. The evidence which was introduced tends
to prove the simple facts heretofore set out as to the
circumstances surrounding the discharge of the two employees for
distributing union circulars.
These were the facts upon which the Board reached its
conclusions as to unfair labor practices. The Intermediate Report
in the
Republic Aviation case, 51 N.L.R.B. at 1195, set
out the reason why the rule against solicitation was considered
inimical to the right of organization. [
Footnote 6]
Page 324 U. S. 802
This was approved by the Board.
Id., 1186. The Board's
reasons for concluding that the petitioner's insistence that its
employees refrain from wearing steward buttons appear at page 1187
of the report. [
Footnote 7] In
the
Le Tourneau Company case, the discussion of the
reasons underlying the findings was much more extended. 54 N.L.R.B.
1253, 1258
et seq. We insert in the note below a quotation
which shows the character of the Board's opinion. [
Footnote 8] Furthermore, in both opinions of
the Board, full citation of
Page 324 U. S. 803
authorities was given, including
Matter of Peyton Packing
Company, 49 N.L.R.B. 828, 50 N.L.R.B. 355, hereinafter
referred to. [
Footnote 9]
The Board has fairly, we think, explicated in these cases the
theory which moved it to its conclusions in these cases. The
excerpts from its opinions just quoted show this. The reasons why
it has decided as it has are sufficiently set forth. We cannot
agree, as Republic urges, that, in these present cases, reviewing
courts are left to "sheer acceptance" of the Board's conclusions or
that its formulation of policy is "cryptic."
See
Eastern-Central Motor Carriers Ass'n v. United States,
321 U. S. 194,
321 U. S.
209.
Not only has the Board in these cases sufficiently expressed the
theory upon which it concludes that rules against solicitation or
prohibitions against the wearing of insignia must fall as
interferences with union organization, but, insofar as rules
against solicitation are concerned, it had theretofore succinctly
expressed the requirements of proof which it considered appropriate
to outweigh or overcome the presumption as to rules against
solicitation. In the
Peyton Packing Company case, 49
N.L.R.B. 828, at 843, hereinbefore referred to, the presumption
adopted by the Board is set forth. [
Footnote 10]
Page 324 U. S. 804
Although this definite ruling appeared in the Board's decisions,
no motion was made in the court by Republic or Le Tourneau after
the Board's decisions for leave to introduce additional evidence to
show unusual circumstances involving their plants or for other
purposes. [
Footnote 11] Such
a motion might have been granted by the Board or court in view of
the fact that the Intermediate Report in the
Republic
Aviation case was dated May 21, 1943, and that, in
Le
Tourneau November 11, 1943, while the opinion in the
Peyton Packing Company case was given as late as May 18,
1943. We perceive no error in the Board's adoption of this
presumption. [
Footnote 12]
The Board had previously considered similar rules in industrial
establishments, and the definitive form which the
Peyton
Packing Company decision gave to the presumption was the
product of the Board's appraisal of normal conditions about
industrial establishments. [
Footnote 13] Like a statutory presumption or one
established
Page 324 U. S. 805
by regulation, the validity, perhaps in a varying degree,
depends upon the rationality between what is proved and what is
inferred. [
Footnote 14]
In the
Republic Aviation case, petitioner urges that,
irrespective of the validity of the rule against solicitation, its
application in this instance did not violate Section 8(3),
note 1 supra, because the rule
was not discriminatorily applied against union solicitation, but
was impartially enforced against all solicitors. It seems clear,
however that if a rule against solicitation is invalid as to union
solicitation on the employer's premises during the employee's own
time, a discharge because of violation of that rule discriminates
within the meaning of Section 8(3) in that it discourages
membership in a labor organization.
Republic Aviation Corporation v. National Labor Relations
Board is affirmed.
Labor Board v. Le Tourneau Company of Georgia is
reversed.
No. 226 affirmed; No. 452 reversed.
MR. JUSTICE ROBERTS dissents in each case.
* Together with No. 452,
National Labor Relations Board v.
Le Tourneau Company of Georgia, on certiorari to the Circuit
Court of Appeals for the Fifth Circuit.
[
Footnote 1]
49 Stat. 449, 452, 29 U.S.C. §§ 157, 158(1, 3):
"Sec. 7. Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities, for the purpose of collective bargaining or
other mutual aid or protection."
"Sec. 8. It shall be an unfair labor practice for an employer
--"
"(1) To interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7."
"
* * * *"
"(3) By discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage
membership in any labor organization: . . ."
[
Footnote 2]
Midland Steel Products Co. v. N.L.R.B., 113 F.2d 800;
Labor Board v. Williamson-Dickie Mfg. Co., 130 F.2d 260,
267;
Boeing Airplane Co. v. Labor Board, 140 F.2d 423;
Le Tourneau Co. of Georgia v. Labor Board, 143 F.2d
67.
[
Footnote 3]
See Sixth Annual Report, National Labor Relations
Board, pp. 43, 44;
Re Harlan Fuel Co., et al., 8 N.L.R.B.
25, 28, 63;
Re West Kentucky Coal Co., et al., 10 N.L.R.B.
88, 105-6, 133;
Re Weyerhaeuser Timber Co., et al., 31
N.L.R.B. 258, 262, 267, 270;
cf. Labor Board v. Waterman S.S.
Co., 309 U. S. 206,
309 U. S.
224.
[
Footnote 4]
Labor Board v. Jones & Laughlin, 301 U. S.
1; 49 Stat. 449, 452-455, §§ 7 to 10, inclusive.
[
Footnote 5]
This is not a statutory administrative hearing to reach a basis
for action akin to legislation.
See Norwegian Nitrogen Co. v.
United States, 288 U. S. 294,
288 U. S.
304-319.
[
Footnote 6]
51 N.L.R.B. 1195:
"Thus, under the conditions obtaining in January, 1943, the
respondent's employees, working long hours in a plant engaged
entirely in war production and expanding with extreme rapidity,
were entirely deprived of their normal right to 'full freedom of
association' in the plant on their own time, the very time and
place uniquely appropriate and almost solely available to them
therefor. The respondent's rule is therefore in clear derogation of
the rights of its employees guaranteed by the Act."
[
Footnote 7]
We quote an illustrative portion. 51 N.L.R.B. 1187, 1188:
"We do not believe that the wearing of a steward button is a
representation that the employer either approves or recognizes the
union in question as the representative of the employees,
especially when, as here, there is no competing labor organization
in the plant. Furthermore, there is no evidence in the record
herein that the respondent's employees so understood the steward
buttons or that the appearance of union stewards in the plant
affected the normal operation of the respondent's grievance
procedure. On the other hand, the right of employees to wear union
insignia at work has long been recognized as a reasonable and
legitimate form of union activity, and the respondent's curtailment
of that right is clearly violative of the Act."
[
Footnote 8]
54 N.L.R.B. at 1259, 1260:
"As the Circuit Court of Appeals for the Second Circuit has
held,"
"It is not every interference with property rights that is
within the Fifth Amendment. . . . Inconvenience, or even some
dislocation of property rights, may be necessary in order to
safeguard the right to collective bargaining."
"The Board has frequently applied this principle in decisions
involving varying sets of circumstances, where it has held that the
employer's right to control his property does not permit him to
deny access to his property to persons whose presence is necessary
there to enable to employees effectively to exercise their right to
self-organization and collective bargaining, and in those decisions
which have reached the courts, the Board's position has been
sustained. Similarly, the Board has held that, while it was 'within
the province of an employer to promulgate and enforce a rule
prohibiting union solicitation during working hours,' it was 'not
within the province of an employer to promulgate and enforce a rule
prohibiting union solicitation by an employee outside of working
hours, although on company property,' the latter restriction being
deemed an unreasonable impediment to the exercise of the right to
self-organization."
[
Footnote 9]
51 N.L.R.B. 1186, 1187, at note 1 and 54 N.L.R.B. 1253, 1260, at
notes 6 and 7.
[
Footnote 10]
49 N.L.R.B. at 843, 844:
"The Act, of course, does not prevent an employer from making
and enforcing reasonable rules covering the conduct of employees on
company time. Working time is for work. It is therefore within the
province of an employer to promulgate and enforce a rule
prohibiting union solicitation during working hours. Such a rule
must be presumed to be valid in the absence of evidence that it was
adopted for a discriminatory purpose. It is no less true that time
outside working hours, whether before or after work, or during
luncheon or rest periods, is an employee's time to use as he
wishes, without unreasonable restraint, although the employee is on
company property. It is therefore not within the province of an
employer to promulgate and enforce a rule prohibiting union
solicitation by an employee outside of working hours, although on
company property. Such a rule must be presumed to be an
unreasonable impediment to self-organization, and therefore
discriminatory in the absence of evidence that special
circumstances make the rule necessary in order to maintain
production or discipline."
[
Footnote 11]
49 Stat. 454, 455, Sec. 10(e):
". . . If either party shall apply to the court for leave to
adduce additional evidence and shall show to the satisfaction of
the court that such additional evidence is material and that there
were reasonable grounds for the failure to adduce such evidence in
the hearing before the Board, its member, agent, or agency, the
court may order such additional evidence to be taken before the
Board, its member, agent, or agency, and to be made a part of the
transcript. . . ."
[
Footnote 12]
Compare Labor Board v. Regal Knitwear Co., 140 F.2d
746,
affirmed on another ground, Regal Knitwear Co. v. Labor
Board, 323 U.S. 692;
Crichton v. United
States, 56 F. Supp.
876, 880.
[
Footnote 13]
Re Denver Tent and Awning Co., 47 N.L.R.B. 586, 588;
Re United States Cartridge Co., 47 N.L.R.B. 896, 897;
Re Carter Carburetor Corp., 48 N.L.R.B. 354, 356;
Re
Scullin Steel Co., 49 N.L.R.B. 405, 411.
See also,
for comparison, the later cases of
Re Dallas Tank & Welding
Co., Inc., 51 N.L.R.B. 1315;
Re Johnson-Stephens &
Shinkle Shoe Co., 54 N.L.R.B. 189, 192.
[
Footnote 14]
Mobile, J. & K.C. R. Co. v. Turnipseed,
219 U. S. 35,
219 U. S. 43;
Western & A.R. Co. v. Henderson, 279 U.
S. 639,
279 U. S. 642;
Helvering v. Rankin, 295 U. S. 123,
295 U. S. 129.
Compare Tot v. United States, 319 U.
S. 463.