Eastex, Inc. v. N.L.R.B.

• Decision Date: 07 April 1977
• Docket Number: No. 74-4156,74-4156
• Citation: 550 F.2d 198
• Parties: 94 L.R.R.M. (BNA) 3201, 81 Lab.Cas. P 13,157 EASTEX, INCORPORATED, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 198

550 F.2d 198

94 L.R.R.M. (BNA) 3201, 81 Lab.Cas. P 13,157

EASTEX, INCORPORATED, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 74-4156.

United States Court of Appeals, Fifth Circuit.

April 7, 1977.

Tom M. Davis, Houston, Tex., for petitioner-cross respondent.

Elliott Moore, Deputy Assoc. Gen. Counsel, Paul J. Spielberg, N.L.R.B., Washington, D.C., Louis V. Baldovin, Jr., Regional Director, Region 23, Houston, Tex., for respondent-cross petitioner.

On Petition for Review and Cross-Application for Enforcement of an Order of The National Labor Relations Board (Texas case).

Before BROWN, Chief Judge, and RIVES and GEE, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This case is before the Court upon the petition of Eastex, Incorporated for review and modification of the Board's determination that Eastex violated § 8(a)(1) of the Act, 29 U.S.C.A. § 158(a)(1) ¹ by prohibiting distribution by employees on company premises a union sponsored circular on non-working time in non-working areas. The Board has filed a cross-application for enforcement of the order. We enforce the order.

It is startling, and at the same time a tribute to our adversary system which takes cases as they come with no arrogant assumption that decision-makers legislative or judicial can anticipate all that will follow, that in the hundreds of Labor Board cases in this Court, we have never been faced with quite this problem before. Avoiding the time worn, battle weary cliche of the clean slate, we are, in the Astronautical Age, exploring new space, with only limited or hierarchical limitations imposed.

I.

In March 1974, the President and Executive Board of the Union (United Paper Workers International Union, Local 801) decided to distribute the following news bulletin to employees of Eastex.

(1) WE NEED YOU ²

As a member, we need you to help build the Union through your support and understanding. Too often members become disinterested and look upon their Union as being something separate from themselves. Nothing could be further from the truth.

This Union or any Union will only be as good as the members make it. The policies and practices of this Union are made by the membership the active membership. If this Union has ever missed its target it may be because not enough members made their views known where the final decisions are made The Union Meeting.

It would be impossible to satisfy everyone with the decisions that are made but the active member has the opportunity to bring the majority around to his way of thinking. This is how a democratic organization works and it's the best system around.

Through participation you can make your voice felt not only in this Local but throughout the International Union.

(2) A PHONY LABEL "right to work"

Wages are determined at the bargaining table and the stronger the Union, the better the opportunity for improvements. The "right-to-work" law is simply an attempt to weaken the strength of Unions. The misleading title of "right-to-work" cannot guarantee anyone a job. It simply weakens the negotiating power of Unions by outlawing provisions in contracts for Union shops, agency shops, and modified Union shops. These laws do not improve wages or working conditions but just protect free riders. Free riders are people who take all the benefits of Unions without paying dues. They ride on the dues that members pay to build an organization to protect their rights and improve their way of life. At this time there is a very well organized and financed attempt to place the "right to work" law in our new state constitution. This drive is supported and financed by big business, namely the National Right-To-Work Committee and the National Chamber of Commerce. If their attempt is successful, it will more than pay for itself by weakening Unions and improving the edge business has at the bargaining table. States that have no "right-to-work" law consistently have higher wages and better working conditions. Texas is well known for its weak laws concerning the working class and the "right-to-work" law would only add insult to injury. If you fail to take action against the "right-to-work" law it may well show up in wages negotiated in the future. I urge every member to write their state congressman and senator in protest of the "right-to-work" law being incorporated into the state constitution. Write your state representative and state senator and let the delegate know how you feel.

(3) POLITICS and INFLATION

The Minimum Wage Bill, HR 7935, was vetoed by President Nixon. The President termed the bill as inflationary. The bill would raise the present $1.60 to $2.00 per hour for most covered workers.

It seems almost unbelievable that the President could term $2.00 per hour as inflationary and at the same time remain silent about oil companies profits ranging from 56% to 280%.

It also seems disturbing, that after the price of gasoline has increased to over 50 cents a gallon, that the fuel crisis is beginning to disappear. If the price of gasoline ever reaches 70 cents a gallon you probably couldn't find a closed filling station or empty pump in the Northern Hemisphere.

Congress is now preceeding with a second minimum wage bill that hopefully the President will sign into law. At $1.60 per hour you could work 40 hours a week, 52 weeks a year and never earn enough money to support a family.

As working men and women we must defeat our enemies and elect our friends. If you haven't registered to vote, please do so today.

(4) FOOD FOR THOUGHT

In Union there is strength, justice, and moderation In disunion, nothing but an alternating humility and insolence.

COMING TOGETHER WAS A BEGINNING

STAYING TOGETHER IS PROGRESS

WORKING TOGETHER MEANS SUCCESS

THE PERSON WHO STANDS NEUTRAL, STANDS FOR NOTHING!

On March 26, 1974, Hugh Terry, an Eastex employee and Union vice-president sought permission from George, the assistant personnel director, to hand out the bulletin in non-working areas during non-working time. George's response was that he doubted Eastex would allow the distribution but he would check with higher management. Later, Boyd Young, Union President, and other employees of Eastex raised the matter with George. He again denied permission to distribute the bulletin. Upon consultation with Leonard Menius, Eastex's Personnel Director, George confirmed that Eastex's final position would be to deny permission for distribution of the bulletin.

The Administrative Law Judge found that Eastex maintained no-solicitation and no-posting rules ³ in violation of § 8(a)(1). But it is clear that Rule 14, no-solicitation, played no part in its decision to prohibit distribution of the bulletin. This conclusion is corroborated by Young's testimony that the request was made not because of a contract or rule but to continue good relationship with Eastex.

Eastex took the position that the second and third sections of the bulletin, ⁴ "(2) A Phony Label 'Right To Work' " and "(3) Politics and Inflation," were purely political and did not pertain to anything over which it had authority or power to change or control. Eastex thus asserts that these sections were not matters related to the exercise of § 7 rights, 29 U.S.C.A. § 157. The Board found that parts (2) and (3) of the bulletin were protected by § 7 and that Eastex had violated § 8(a)(1) of the Act. We agree that the bulletin was protected by § 7 and inescapably it follows that Eastex violated § 8(a)(1) in prohibiting its distribution.

II.

Section 7, 29 U.S.C.A. § 157, guarantees to employees the "right to self-organization, to form, join, or assist labor organizations, to bargain collectively * * * and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. * * * " Section 8, 29 U.S.C.A. § 158, condemns as an unfair labor practice interference by an employer in the exercise of those rights.

The pivotal point of this decision rests upon the classification of the activity was the admittedly concerted activity for the purpose of collective bargaining or other mutual aid or protection, or was it completely outside of the protection of § 7. In essence, we must determine if this bulletin concerned matters relating to the exercise of § 7 rights. If the activity was under the protective umbrella of § 7, the employer committed an unfair labor practice by interfering in the exercise of the right. If it was not, the employer's prohibition on distribution would furnish no basis for a finding of unfair labor practice.

Eastex prohibited distribution of the bulletin because parts (2) and (3) were purely political and did not pertain to anything over which "Eastex had the authority or power to change or control." We do not accept Eastex's position. Both parts are sufficiently related to employment situations to merit § 7 protection. Although a number of Circuits in a variety of circumstances unlike those here have nominally declared that the test of whether the activity is protected is whether it pertains to something over which the employer has it within his power or authority to change or control, ⁵ we think that is too narrow.

The fact is that Courts have not been this stringent in the day to day application to the infinite complexities of industrial-collective bargaining life. The horizon of § 7 rights is not confined to the factory wall or the perimeters of the battlefield vis-a-vis employer-employees. ⁶

Since authorities among (and within) the circuits are not consistent on the point, and the Supreme Court has not yet spoken definitively, we are compelled to offer another view to march in company along the way toward a synthesis.

The synthesis involves, of course, arriving at an accommodation between two sets of rights broadly hostile to each other. One set comprises the rights of the proprietor-employer arising from his ownership and control of the plant premises. Among these...