National Labor Relations Bd. v. Babcock & Wilcox Co.

Decision Date10 May 1955
Docket NumberNo. 15311.,15311.
Citation222 F.2d 316
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. The BABCOCK and WILCOX COMPANY, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Margaret M. Farmer, Atty., N.L.R.B., Owsley Vose, Associate Ch. Enf. Br., N.L. R.B., David P. Findling, Associate Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Frederick U. Reel, Atty., N.L.R.B., Washington, D. C., for petitioner.

O. B. Fisher, J. D. McLaughlin, and Fisher, McLaughlin & Harrison, Paris, Tex., for respondent.

Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and DAWKINS, District Judge.

HUTCHESON, Chief Judge.

Based upon a finding that the respondent had engaged and was engaging in unfair labor practices violative of Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1), by its maintenance and enforcement of a rule prohibiting distribution of literature on its premises to the extent that such rule barred union representatives from making distribution of union literature on its parking lot, walkways, and drive, the board entered the order1 which is the subject of this controversy, and, the respondent declining to obey the order, the Board is here seeking its enforcement on the ground that, within the principle established in N.L.R.B. v. Le Tourneau, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1374, the order is valid and must be enforced.

Respondent does not contest the principle established in Le Tourneau's case. Instead, it insists that that case is completely without application here, because involved there was the discharge of employees, members of the union, for distributing union literature in violation of the company's non-distribution rule, while here no action has been taken against any employee of the company, nor is any employee in anywise involved. Pointing out that the sole question presented for decision here is whether union representatives, not employed by or otherwise connected with the company and not working in concert with or upon the solicitation of any of its employees, can solely in their own interest and for their own benefit compel the employer to discriminatorily enforce in their favor a non-discriminatory rule which the examiner and board find has been non-discriminatorily enforced, prohibiting the distribution of any kind of literature upon the employer's premises, it urges upon us that nothing in the language or spirit of the statute and nothing in any of the decisions at all supports or warrants the Board's cease and desist order.

Secondarily, respondent insists that, if contrary to its firm view, the non-discriminatory enforcement against union representatives of its non-distribution rule is an unfair labor practice, subdivision (b) of the order is not based on but goes far beyond both the findings and the facts in the case.

Because, for the reasons hereafter briefly stated, we agree with respondent that the enforcement of the order must be denied, although we agree also with its secondary proposition, that the order was too broad, it will not be necessary to discuss or deal with it.

In Marshall Field & Co. v. N.L.R.B., 7 Cir., 200 F.2d 375, a case involving activities of both employee and non-employee union members, the Court of Appeals for the Seventh Circuit, in a thoroughly considered and well reasoned opinion, has recently and we think correctly discussed the principle invoked here and analyzed the authoritative cases dealing with it.

Pointing out that the courts have held that Section 7 of the Act, 29 U.S. C.A. § 157, gives a right to a non-employee to enter and solicit union membership on employer's premises under two general situations, the first of which is where there has been discrimination, N. L. R. B. v. Stowe Spinning Co., 336 U.S. 226, 69 S.Ct. 541, 93 L.Ed. 638, and Bonwit-Teller v. N. L. R. B., 2 Cir., 197 F.2d 640, and the second is where union organization must proceed upon the employer's premises or be seriously handicapped, N. L. R. B. v. Lake Superior Lumber Corp., 6 Cir., 167 F.2d 147, the opinion goes on to present a complete and, we think, entirely correct analysis of the opinion of the Supreme Court in the two controlling cases, Republic Aviation Corp. v. N. L. R. B. (N. L. R. B. v. Le Tourneau), 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1374 and of its teachings and effect. This analysis shows: (1) that those cases involved only union organizers who were employees of each company respectively; (2) that in each case employee organizers were discharged for violation of the non-distribution rule; and (3) that the sole question presented here was not in any way presented, dealt with, or discussed there. This question is whether, on a record devoid of proof that any employees were disciplined or in any manner discriminatorily dealt with by the respondent, or were or desired to be members of the union, or were in any way connected with or interested in the distribution by the union representatives of its literature, the board had authority to require the respondent to institute in favor of non-employee union organizers, complete strangers to it and to its employees, a discriminatory non-enforcement of its non-distribution rule, which the proof showed and examiner and board found had always and uniformly been enforced in a completely non-discriminatory way.

We find ourselves in full agreement with the conclusions announced in the opinion in the Marshall Field case, supra, and with the reasoning upon which those conclusions are based. We find ourselves in full agreement too...

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8 cases
  • Lechmere, Inc. v. N.L.R.B.
    • United States
    • U.S. Court of Appeals — First Circuit
    • January 10, 1990
    ...this policy, it banned the organizers. The Board ruled that Section 8(a)(1) had been infracted. The court of appeals disagreed, 222 F.2d 316 (5th Cir.1955), as did the High Court. Justice Reed wrote that nonemployee union organizers did not enjoy the same status as employees or their invite......
  • Lechmere, Inc v. National Labor Relations Board
    • United States
    • U.S. Supreme Court
    • January 27, 1992
    ...exterior walkways. Id., at 486-487. The Court of Appeals for the Fifth Circuit refused to enforce the Board's order, NLRB v. Babcock & Wilcox Co., 222 F.2d 316 (1955), and this Court affirmed. While recognizing that "the Board has the responsibility of 'applying the Act's general prohibitor......
  • People v. Goduto, s. 35745
    • United States
    • Illinois Supreme Court
    • April 26, 1961
    ...7 Cir., 200 F.2d 375, 376-377.) This has been the procedure generally followed by the unions. See e.g., National Labor Relations Board v. Babcock & Wilcox Co., 5 Cir., 222 F.2d 316; National Labor Relations Board v. Seamprufe, Inc., 10 Cir., 222 F.2d 858; National Labor Relations Board v. R......
  • Central Hardware Company v. National Labor Relations Board 8212 223
    • United States
    • U.S. Supreme Court
    • June 22, 1972
    ...516, 533—534, 65 S.Ct. 315, 324—325, 89 L.Ed. 430 (1945). 2. Babcock & Wilcox Co., 109 N.L.R.B. 485, 486 (1954). 3. NLRB v. Babcock & Wilcox Co., 222 F.2d 316 (CA5 1955). 4. Brief for the NLRB 5. 439 F.2d, at 1326—1328. 6. For a full discussion of Logan Valley and the circumstances in which......
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