Eastex, Incorporated v. National Labor Relations Board, No. 77-453

CourtUnited States Supreme Court
Writing for the CourtPOWELL
Citation437 U.S. 556,98 S.Ct. 2505,57 L.Ed.2d 428
PartiesEASTEX, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD
Decision Date22 June 1978
Docket NumberNo. 77-453

437 U.S. 556
98 S.Ct. 2505
57 L.Ed.2d 428
EASTEX, INCORPORATED, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD.

No. 77-453.
Argued April 25, 1978.
Decided June 22, 1978.
Syllabus

Employees of petitioner corporation sought to distribute a four-part union newsletter in nonworking areas of petitioner's plant during nonworking time. The first and fourth sections urged employees to support the union and extolled union solidarity. The second section encouraged employees to write their legislators to oppose incorporation of the state "right-to-work" statute into a revised state constitution. The third section criticized a Presidential veto of an increase in the federal minimum wage and urged employees to register to vote to "defeat our enemies and elect our friends." After representatives of petitioner refused to permit the requested distribution, the union filed as unfair labor practice charge with the National Labor Relations Board (NLRB), alleging that petitioner's refusal interfered with the employees' exercise of their rights under § 7 of the National Labor Relations Act (Act), which provides that "[e]mployees shall have the right . . . to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ," and thus violated § 8(a)(1). Following a hearing, at which petitioner contended that the second and third sections of the letter were not protected by § 7 because they did not relate to petitioner's association with the union, the NLRB ordered petitioner to cease and desist from the violation, having determined that both those sections of the newsletter came within the ambit of § 7's protection. The second section of the newsletter was held to be protected because union security is "central to the union concept of strength through solidarity" and "a mandatory subject of bargaining in other than right-to-work states," and the fact that Texas already has a "right-to-work" statute was held not to diminish employees' interest in the matter. The third section was held to be protected even though petitioner's employees were paid more than the vetoed minimum wage, on the ground that the "minimum wage inevitably influences wage levels derived from collective bargaining, even those far above the minimum," and that the petitioner's employees' concern "for the plight of other employees might gain support for them at some future time when they might have a dispute with their employer." The Court of Appeals en-

Page 557

forced the NLRB's order, rejecting petitioner's contention that § 7's "mutual aid or protection" clause protects only concerted activity by employees that is directed at conditions that their employer has the authority or power to change or control, and that the second and third sections of the newsletter did not constitute such activity. The court concluded that "whatever is reasonably related to the employees' jobs or to their status or condition as employees in the plant may be the subject of such handouts as we treat of here, distributed on the plant premises in such a manner as not to interfere with the work . . . ," and that the material in the newsletter met that test. Held :

1. Distribution of the challenged second and third sections of the newsletter is protected under the "mutual aid or protection" clause of § 7. Pp. 563-570.

(a) The Act's definition of "employee" in § 2(3) was intended to protect employees when they engage in otherwise proper concerted activities in support of employees of employers other than their own, and it has long been held that "mutual aid or protection" encompasses such activity. Pp. 564-565.

(b) Employees do not lose their protection under the "mutual aid or protection" clause when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship, and the NLRB did not err in holding that distribution of the challenged parts of the newsletter was for he purpose of "mutual aid or protection." Pp. 565-570.

2. The NLRB did not err in holding that petitioner's employees may distribute the newsletter in nonworking areas of petitioner's property during nonworking time. The fact that the distribution is to take place on petitioner's property does not give rise to a countervailing interest that petitioner can assert outweighing the exercise of § 7 rights by its employees in that location. Under the circumstances of this case, the NLRB was not required to apply a rule different from the one it applied in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, to the effect that an employer may not prohibit his employees from distributing union literature (in that case organizational material) in nonworking areas of industrial property during nonworking time, absent a showing by the employer that a ban is necessary to maintain plant discipline or production. Here, as in Republic Aviation, petitioner's employees were "already rightfully on the employer's property," so that in the context of this case it is the employer's management interests rather than its property interests that primarily are implicated. Petitioner, however, made no attempt to show that its management interests would be prejudiced

Page 558

by distribution of the sections to which it objected, and any incremental intrusion on its property rights from their distribution together with the other sections would be minimal. In addition, viewed in context, the distribution was closely tied to vital concerns of the Act. Pp. 570-576.

5 Cir., 550 F.2d 198, affirmed.

John B. Abercrombie, Houston, Tex., for petitioner.

Richard A. Allen, for respondent.

Mr. Justice POWELL delivered the opinion of the Court.

Employees of petitioner sought to distribute a union newsletter in nonworking areas of petitioner's property during nonworking time urging employees to support the union and discussing a proposal to incorporate the state "right-to-work" statute into the state constitution and a Presidential veto of an increase in the federal minimum wage. The newsletter also called on employees to take action to protect their interests as employees with respect to these two issues. The question presented is whether petitioner's refusal to allow the distribution violated § 8(a)(1) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U.S.C. § 158(a)(1), by interfering with, restraining, or coercing employees' exercise of their right under § 7 of the Act, 29 U.S.C. § 157, to engage in "concerted activities for the purpose of . . . mutual aid or protection."

Page 559

I

Petitioner is a company that manufactures paper products in Silsbee, Tex. Since 1954, petitioner's production employees have been represented by Local 801 of the United Paperworkers International Union. It appears that many, although not all, of petitioner's approximately 800 production employees are members of Local 801. Since Texas is a "right-to-work" State by statute,1 Local 801 is barred from obtaining an agreement with petitioner requiring all production employees to become union members.

In March 1974, officers of Local 801, seeking to strengthen employee support for the union and perhaps recruit new members in anticipation of upcoming contract negotiations with petitioner, decided to distribute a union newsletter to petitioner's production employees.2 The newsletter was divided into four sections. The first and fourth sections urged employees to support and participate in the union and, more generally, extolled the benefits of union solidarity. The second section encouraged employees to write their legislators to oppose incorporation of the state "right-to-work" statute into a revised state constitution then under consideration, warning that incorporation would "weake[n] Unions and improv[e] the edge business has at the bargaining table. ' The third section noted that the President recently had vetoed a bill to increase the federal minimum wage from $1.60 to $2.00 per hour, compared this action to the increase of prices and profits in the oil industry under administration policies, and admonished: "As working men and women we must defeat our enemies and

Page 560

elect our friends. If you haven't registered to vote, please do so today." 3

On March 26, 1974, Hugh Terry, an employee of petitioner and vice president of Local 801, asked Herbert George, petitioner's assistant personnel director, for permission to distribute the newsletter to employees in the "clock alley" that leads to petitioner's time clocks.4 George doubted whether management would allow employees to "hand out propaganda like that," but agreed to check with his superiors. Leonard Menius, petitioner's personnel director, confirmed that petitioner would not allow employees to distribute the newsletter in clock alley. A few days later George communicated this decision to Terry, but gave no reasons for it.

On April 22, 1974, Boyd Young, president of Local 801,5 together with Terry and another employee, asked George whether employees could distribute the newsletter in any nonworking areas of petitioner's property other than clock alley.6 After conferring again with Menius, George reported

Page 561

that employees would not be allowed to do so and that petitioner thought the union had other ways to communicate with employees. Local 801 then filed an unfair practice charge with the National Labor Relations Board (Board), alleging that petitioner's refusal to allow employees to distribute the newsletter in nonworking areas of petitioner's property during nonworking time interfered with, restrained, and coerced employees' exercise of their § 7 rights in violation of § 8(a)(1).7

At a hearing on the charge, Menius testified that he had no objection to the first and fourth sections of the newsletter. He had denied permission to distribute the newsletter because he "didn't see...

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425 practice notes
  • Cumero v. Public Employment Relations Bd., No. S
    • United States
    • United States State Supreme Court (California)
    • September 7, 1989
    ...obligations departs from the EERA's actual provisions is strikingly illustrated by PERB's reliance on Eastex, Inc. v. NLRB (1978) 437 U.S. 556, 98 S.Ct. 2505, 57 L.Ed.2d 428. There, in PERB's words, "[t]he United States Supreme Court, upholding the right of a union to distribute leaflets ur......
  • Luchini v. Carmax, Inc., CASE NO. CV F 12-0417 LJO DLB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 23, 2012
    ...otherwise improve their lot as employees through channels outside the immediate employee-employer relationship." Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 565, 98 S.Ct. 2505 (1978). The "mutual aid or protection" clause "protects employees from retaliation by their employers when they seek to......
  • Mayes v. Kaiser Found. Hosps., No. CIV S–12–1726 KJM EFB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 9, 2013
    ...leave employees open to retaliation for legitimate activity that could improve their lot as employees.” Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 566–67, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978). The court elaborated on Garmon preemption in Sears, Roebuck and Co. v. San Diego Dist. Council, 436 U......
  • Riesbeck Food Markets, Inc. v. United Food and Commercial Workers, Local Union 23, No. 19485
    • United States
    • Supreme Court of West Virginia
    • April 3, 1991
    ...408 Giant Food Mkts. v. NLRB, 633 F.2d 18 (6th Cir.1980). The same rule has been applied to union handbilling. See Eastex, Inc. v. NLRB, 437 U.S. 556, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); Sentry Mkts., Inc. ......
  • Request a trial to view additional results
423 cases
  • Cumero v. Public Employment Relations Bd., No. S
    • United States
    • United States State Supreme Court (California)
    • September 7, 1989
    ...obligations departs from the EERA's actual provisions is strikingly illustrated by PERB's reliance on Eastex, Inc. v. NLRB (1978) 437 U.S. 556, 98 S.Ct. 2505, 57 L.Ed.2d 428. There, in PERB's words, "[t]he United States Supreme Court, upholding the right of a union to distribute leaflets ur......
  • Luchini v. Carmax, Inc., CASE NO. CV F 12-0417 LJO DLB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 23, 2012
    ...otherwise improve their lot as employees through channels outside the immediate employee-employer relationship." Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 565, 98 S.Ct. 2505 (1978). The "mutual aid or protection" clause "protects employees from retaliation by their employers when they seek to......
  • Mayes v. Kaiser Found. Hosps., No. CIV S–12–1726 KJM EFB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 9, 2013
    ...leave employees open to retaliation for legitimate activity that could improve their lot as employees.” Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 566–67, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978). The court elaborated on Garmon preemption in Sears, Roebuck and Co. v. San Diego Dist. Council, 436 U......
  • Riesbeck Food Markets, Inc. v. United Food and Commercial Workers, Local Union 23, No. 19485
    • United States
    • Supreme Court of West Virginia
    • April 3, 1991
    ...408 Giant Food Mkts. v. NLRB, 633 F.2d 18 (6th Cir.1980). The same rule has been applied to union handbilling. See Eastex, Inc. v. NLRB, 437 U.S. 556, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); Sentry Mkts., Inc. ......
  • Request a trial to view additional results
2 books & journal articles
  • STRUCTURAL LABOR RIGHTS.
    • United States
    • Michigan Law Review Vol. 119 Nbr. 4, February 2021
    • February 1, 2021
    ...test for discerning boundaries of protected secondary activity). (162.) 29U.S.C. [section] 157. (163.) See, e.g., Eastex, Inc., v. NLRB, 437 U.S. 556, 565-70 (164.) NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 255 (1939). (165.) 465 U.S. 822 (1984). (166.) City Disposal Sys., 465 U.S......
  • ESSENTIAL OR DISPOSABLE? HEALTHCARE WORKERS' RIGHT TO REFUSE HAZARDOUS WORK.
    • United States
    • Fordham Urban Law Journal Vol. 48 Nbr. 5, October 2021
    • October 1, 2021
    ...restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title"). (52.) See Eastex, Inc. v. NLRB, 437 U.S. 556, 569 (53.) See NLRB v. Pier Sixty, LLC, 855 F.3d 115, 125 (2d Cir. 2017). (54.) 370 U.S. 9, 10-11 (1962). (55.) See id at 17-18. (56.) 465 U.S.......

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