At the time respondent company entered into a collective
bargaining agreement with a union, respondent had a blanket rule
against distribution by employees of literature on company
property. The collective agreement and subsequent contracts
authorized the company to issue fair and nondiscriminatory rules
for maintaining orderly conditions on plant property, and also
provided for bulletin boards for union notices. The union
ultimately challenged the rule's validity, and, upon denial of its
request for a change, filed unfair labor practice charges against
respondent, which the National Labor Relations Board (NLRB) upheld.
The Court of Appeals denied enforcement of the NLRB's order,
finding that the union had waived objection to the on-premises
distribution ban.
Held: Respondent's ban might interfere with the
employees' rights under § 7 of the National Labor Relations Act "to
form, join, or assist labor organizations," or to refrain from such
activities, and such rights, unlike those in the economic area,
cannot be waived by the employees' collective bargaining
representative. The bulletin board provision did not afford an
adequate alternative, since it did not give the union's adversaries
equal access of communications with their fellow employees. Pp.
415 U. S.
324-327.
474 F.2d 1269, reversed.
DOUGLAS, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.,
joined. STEWART, J., filed an opinion concurring in part and
dissenting in part, in which POWELL and REHNQUIST, JJ., joined,
post, p.
415 U. S.
327.
Page 415 U. S. 323
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
In 1954, the International Union of Electrical, Radio, and
Machine Workers (IUE) became the collective bargaining
representative of respondent's employees. At that time, respondent
had a rule prohibiting employees from distributing literature on
any of its property, including parking lots and other nonwork
areas. The collective agreement authorized the company to issue
rules for the "maintenance of orderly conditions on plant
property," provided the rules were not "unfair" or
"discriminatory." It also provided that bulletin boards would be
available for the posting of union notices, subject to the
company's right to reject "controversial" notices. All subsequent
contracts contained similar provisions. Throughout the period since
1954, respondent has prohibited employees from distributing
literature even in nonworking areas during nonworking time.
In due course, the IUE challenged the validity of the company's
rule and requested that the rule be changed. The request was
denied, and the IUE filed charges against respondent for unfair
labor practices in violation of § 8(a)(1) of the National Labor
Relations Act, 49 Stat. 452, as amended, 29 U.S.C. § 158(a)(1). The
Board held for the IUE, following its earlier decision in
Gale
Products, 142 N.L.R.B. 1246, where it had said:
"Their place of work is the one location where employees are
brought together on a daily basis. It is the one place where they
clearly share common
Page 415 U. S. 324
interests and where they traditionally seek to persuade fellow
workers in matters affecting their union organizational life and
other matters related to their status as employees."
Id. at 1249.
The remedy in
Gale Products ran in favor of employees
whose distribution project was to reject a union representative.
The Board in the present case, however, broadened the relief to
embrace those who wanted to support a union representative, 195
N.L.R.B. 265. The Court of Appeals denied enforcement of the
Board's order, because, in its view, the union had waived objection
to the ban on on-premises distribution of literature, and had the
authority to do so. 474 F.2d 1269. The case is here on petition for
certiorari, which we granted because of the conflict between this
decision of the Court of Appeals for the Sixth Circuit with that of
the Eighth in
International Association of Machinists v.
NLRB, 415 F.2d 113, and that of the Fifth in
NLRB v.
Mid-States Metal Products, 403 F.2d 702.
Employees have the right recognized in § 7 of the Act "to form,
join, or assist labor organizations" or "to refrain" from such
activities. 29 U.S.C. § 157. We agree that a ban on the
distribution of union literature or the solicitation of union
support by employees at the plant during nonworking time may
constitute an interference with § 7 rights. The Board had earlier
held that solicitation outside working hours but on company
property was protected by § 7, and that a rule prohibiting it was
"discriminatory in the absence of evidence that special
circumstances make the rule necessary in order to maintain
production or discipline."
In re Peyton Packing Co., 49
N.L.R.B. 828, 843-844. We approved that ruling in
Republic
Aviation Corp. v. NLRB, 324 U. S. 793,
324 U. S.
801-803. No contention is made here that considerations
of production or discipline
Page 415 U. S. 325
make respondent's rule necessary. The sole issue concerns the
power of the collective bargaining representative to waive those
rights.
The union may, of course, reach an agreement as to wages and
other employment benefits and waive the right to strike during the
time of the agreement as the
quid pro quo for the
employer's acceptance of the grievance and arbitration procedure.
Textile Workers v. Lincoln Mills, 353 U.
S. 448,
353 U. S. 455.
Such agreements, however, rest on "the premise of fair
representation," and presuppose that the selection of the
bargaining representative "remains free."
Mastro Plastics Corp.
v. NLRB, 350 U. S. 270,
350 U. S. 280.
In that case, we held that the waiver of the "right to strike" did
not embrace a waiver of the right to strike "against unlawful
practices destructive of the foundation on which collective
bargaining must rest."
Id. at
350 U. S. 281.
We dealt there with rights in the economic area. Yet, as the Fifth
Circuit held in the
Mid-States case, a different rule
should obtain where the rights of the employees to exercise their
choice of a bargaining representative is involved -- whether to
have no bargaining representative, or to retain the present one, or
to obtain a new one. When the right to such a choice is at issue,
it is difficult to assume that the incumbent union has no
self-interest of its own to serve by perpetuating itself as the
bargaining representative. 403 F.2d at 705. The place of work is a
place uniquely appropriate for dissemination of views concerning
the bargaining representative and the various options open to the
employees. So long as the distribution is by employees to employees
and so long as the in-plant solicitation is on nonworking time,
banning of that solicitation might seriously dilute § 7 rights. For
Congress declared in § 1 of the Act that it was the policy of the
United States to protect
"the exercise by
Page 415 U. S. 326
workers of full freedom of association, self-organization, and
designation of representatives of their own choosing."
29 U.S.C. § 151.
It is argued that the use of the bulletin board is a fair
substitute. But as the Fifth Circuit said in the
Mid-States case, the bulletin board may be an adequate
medium for "preserving the
status quo" and yet not give a
union's adversaries "equal access to and communication with their
fellow employees." 403 F.2d at 705.
Moreover, a limitation of the right of in-plant distribution of
literature to employees opposing the union does not give a fair
balance to § 7 rights, as the Board ruled in the present case. For
employees supporting the union have as secure § 7 rights as those
in opposition. The Board's position, as noted, has not always been
consistent. But its present ruling is, we think, quite consistent
with § 7 rights of employees. It is the Board's function to strike
a balance among "conflicting legitimate interests" which will
"effectuate national labor policy," including those who support
versus those who oppose the union.
NLRB v. Truck Drivers
Union, 353 U. S. 87,
353 U. S. 96.
Moreover, as respects employers, the rights of solicitation of
employees by employees concerning § 7 rights are not absolute. As
we noted in
Republic Aviation Corp., the Board may well
conclude that considerations of production or discipline may make
controls necessary. No such evidence existed here, and the trial
examiner so found. Accordingly, this is not the occasion to balance
the availability of alternative channels of communication
* against
Page 415 U. S. 327
a legitimate employer business justification for barring or
limiting in-plant communications.
Reversed.
* IUE, in a brief supporting the Board's position, states there
are some 2,300 employees in the bargaining unit who live scattered
over a two-state area covering more than 100 square miles. The
plant is located in Greenville, Tennessee. Some workers live 30
miles distant in Johnson City, Tennessee, and others live in
Morrison, North Carolina. It claims that handing out leaflets at
the plant gate is impractical, as cars enter or exit four abreast
at fast speeds. We mention these statements not to resolve a
controversy, but to indicate at least a part of the range of any
inquiry into the need for in-plant solicitation if § 7 rights are
to be protected.
MR. JUSTICE STEWART, with whom MR. JUSTICE POWELL and MR.
JUSTICE REHNQUIST join, concurring in part and dissenting in
part.
To the extent the Court holds that a union cannot contractually
waive the right of disaffected employees to distribute in nonwork
areas and during nonwork time literature advocating the
displacement of the incumbent collective bargaining representative,
I am in complete agreement. This is the essence of the Board's
decision in
Gale Products, 142 N.L.R.B. 1246. But it seems
to me wholly inconsistent with the letter and spirit of the
National Labor Relations Act to relieve the union of its promise
that its own self-serving literature will not be so distributed in
the plant.
Although the union is deemed to represent all employees in the
bargaining unit, both pro-union and anti-union, and may waive
important § 7 rights in the course of collective bargaining,
presumably in return for management concessions on other fronts,
this authority cannot extend to rights with respect to which the
union and the individual employees have essentially conflicting
interests. The Board stated the point succinctly in its decision in
General Motors Corp., 158 N.L.R.B. 1723, 1727:
"[T]he employees, by once selecting the union as their
representative, do not forfeit their fundamental right to change
their representative at appropriate times. When a union acts to
abridge that right
Page 415 U. S. 328
-- in the manner presented in this case, it is essentially
benefiting the union
qua union, to the detriment of the
employees it represents."
Any such attempted waiver of the rights of others is so clearly
in the union's self-interest of perpetuating its status as the
bargaining agent, and at odds with the interests of the disaffected
employees, that "the premise of fair representation" underlying
contractual waivers of § 7 rights is wholly undermined.
Mastro
Plastics Corp. v. NLRB, 350 U. S. 270,
350 U. S.
280.
Judicial nullification of contractual concessions, however, is
contrary to what the Court has recognized as "[o]ne of [the]
fundamental policies" of the National Labor Relations Act --
"freedom of contract."
H. K. Porter Co. v. NLRB,
397 U. S. 99,
397 U. S.
108.
"The theory of the Act is that free opportunity for negotiation
with accredited representatives of employees is likely to promote
industrial peace and may bring about the adjustments and agreements
which the Act, in itself, does not attempt to compel."
NLRB v. Jones & Laughlin Steel Corp., 301 U. S.
1,
301 U. S. 45.
Contractual waivers against a union's own interests are seldom if
ever gratuitously granted in the give and take of the collective
bargaining process. In return, the union typically exacts some form
of
quid pro quo from the management negotiators. Since it
is usually impossible to identify the consideration given in return
for a particular union concession, the result of nullifying a
union's agreement to waive the § 7 rights of its supporters will
necessarily be to deprive management of the benefit of its bargain
and to leave the union with a windfall. This sort of invalidation
of bargained-for concessions does not promote stability in the
collective bargaining process and must certainly have a negative
effect on labor-management relations. For this reason, the Board
and the courts should
Page 415 U. S. 329
not relieve the parties of the promises they have made unless a
contractual provision violates a specific section of the Act or a
clear underlying policy of federal labor law.
In
Gale Products, the Board correctly determined that
the union could not waive the distribution rights of employees who
sought to distribute literature advocating the ouster of the
incumbent union; for the clear policy of federal labor law forbids
either the union or the employer to freeze out another union or to
entrench the incumbent union by infringing the § 7 rights of
dissident employees. I see no justification, however, for the
Board's extension of the
Gale Products rule to prevent the
union's waiver of the distribution rights of its supporters in the
bargaining unit.*
The considerations that distinguish the waiver of supporters'
distribution rights from the waiver of opponents' distribution
rights were cogently stated by the Fifth Circuit in
NLRB v.
Mid-States Metal Products, 403 F.2d 702, 705:
"Where union and employee interests are one, it can fairly be
assumed that employee rights will not be surrendered except in
return for bargained-for concessions from the employer of benefit
to employees. But the rationale of allowing waiver by the union
disappears where the subject matter waived goes to the heart of the
right of employees to change their bargaining representative, or to
have no bargaining representative, a right with respect to which
the interests of the union and employees
Page 415 U. S. 330
may be wholly adverse. Solicitation and distribution of
literature on plant premises are important elements in giving full
play to the right of employees to seek displacement of an incumbent
union. We cannot presume that the union, in agreeing to bar such
activities, does so as a bargain for securing other benefits for
the employees and not from the self-interest it has in perpetuating
itself as bargaining representative."
"A waiver of the right to solicit and distribute literature does
not hamper the union as it does the union's adversaries. The union
can communicate through the bulletin board, union meetings and the
force of status as bargaining representative, enjoying an advantage
in preserving the
status quo. Its adversaries will not
have equal access to and communication with their fellow
employees."
In nullifying the union's promise to waive the literature
distribution rights of its own supporters, the Board and today the
Court are upsetting the delicate balance achieved in the give and
take of negotiations and presenting the union with an undeserved
windfall. This nullification, at the behest of the union that made
the promise, can only contribute to future instability in
collective bargaining between labor and management.
One can, of course, envision exceptional circumstances in which
the union supporters' access to and communication with their fellow
employees in the bargaining unit might be so restricted that it
would be extremely difficult, in the absence of their § 7
distribution rights, for them to respond to the arguments made in
literature distributed by their opponents. In such a case, the
waiver of the supporters' rights might result in such a distortion
of the labor political process as to prevent the balanced
presentation of the issues to the employees
Page 415 U. S. 331
that national labor policy seeks to promote. This concern was
aptly expressed by the Board in its
General Motors
decision, 158 N.L.R.B. at 1726:
"[W]e recogniz[e] the salutary purpose of refusing to disturb
concessions yielded by either party through the processes of
collective bargaining even where such a concession may infringe
upon rights guaranteed employees under Section 7 of the Act. . . .
[T]he validity of a particular concession or waiver must depend
upon whether the interference with the employees' statutory rights
is so great as to override any legitimate reasons for upholding the
waiver, or would unduly hamper the employees in exercising their
basic rights under the Act."
(Internal quotations omitted.) Thus, if, in the absence of § 7
distribution rights, the union supporters would be incapable of
adequately presenting their position to the employees in a
representation controversy, a strong argument could be made that
the union's agreement was contrary to a basic policy of the
National Labor Relations Act and that, despite the negative effect
on the bargaining process, the union's promise could not be
effective.
In this case, however, there is no suggestion of such
exceptional circumstances that would incapacitate the union's
supporters in any dispute regarding the union's continued status as
the collective bargaining agent. It is clear from the record that
the union supporters have access to the company bulletin boards;
that they may still solicit support, although not distribute
literature, in nonwork areas during nonwork time; and that they may
distribute literature, and have done so in the past, at the gates
of the plant. Thus, it is evident that the union supporters would
not be disabled by this provision of
Page 415 U. S. 332
the collective bargaining agreement from maintaining their end
of the political discourse that national labor policy seeks to
foster.
I cannot agree to a general rule that allows the Board to
nullify the union's promise, contained in a collective bargaining
agreement, that its supporters will not distribute literature in
the plant. For this reason, I dissent from the judgment and the
opinion of the Court insofar as they hold that the union could not
validly waive the distribution rights of the employees who support
it.
* The Board held, and I presume the Court agrees, that the union
could waive any right that the employees might have to distribute
union institutional literature. The only question in this case
relates to the waivability of rights to distribute literature
regarding the proposed selection, retention, or displacement of the
collective bargaining agent.