NLRB v. United Aircraft Corp., Pratt & Whitney Air. Div.

• Decision Date: 06 November 1963
• Docket Number: No. 45,Docket 28004.,45
• Citation: 324 F.2d 128
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED AIRCRAFT CORPORATION, PRATT & WHITNEY AIRCRAFT DIVISION, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

324 F.2d 128 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED AIRCRAFT CORPORATION, PRATT & WHITNEY AIRCRAFT DIVISION, Respondent.

No. 45, Docket 28004.

United States Court of Appeals Second Circuit.

Argued October 10, 1963.

Decided November 6, 1963.

James Paras, Atty., National Labor Relations Board, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Solomon I. Hirsh and Robert A. Armstrong, Attys., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

Gerard D. Reilly, of Reilly & Wells, Washington, D. C. (Joseph C. Wells, of Reilly & Wells, Washington, D. C., on the brief), for respondent.

Before CLARK, MOORE, and KAUFMAN, Circuit Judges.

CLARK, Circuit Judge.

The National Labor Relations Board found respondent to have violated § 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), by prohibiting employees from distributing union literature on their own time in nonworking areas of respondent's plant. Respondent offered grounds for its rule: resultant littering, resultant unruly demonstrations in the plant cafeteria, and abusive language used by a distributor of the pamphlets. The Board found these to be questionable after-the-fact rationalizations and insufficient to explain the institution of the rule. The record sustains the Board's finding.

Rules prohibiting solicitation by employees on their own time in nonworking areas can be upheld only on a showing that special circumstances make the rule necessary to maintain production or discipline. See Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 803, 65 S.Ct. 982, 89 L.Ed. 1372, 157 A.L.R. 1081; N. L. R. B. v. Babcock & Wilcox Co., 351 U.S. 105, 113, 76 S.Ct. 679, 100 L.Ed. 975; N. L. R. B. v. Linda Jo Shoe Co., 5 Cir., 307 F.2d 355, 357; N. L. R. B. v. Walton Mfg. Co., 5 Cir., 289 F.2d 177, 180. Since litter is inevitable when leaflets are distributed and since the literature did not cause the disturbance in the cafeteria, respondent has clearly failed to show special circumstances making its rule necessary for the maintenance of production or discipline.¹

It argues, however, that the Board erred in failing to consider, in evaluating the no-solicitation rule, whether the employees have alternative means of communication. Respondent is not without support in this position. See N. L. R. B. v. Rockwell Mfg. Co. (Du Bois Division), 3 Cir., 271 F.2d 109.

It is clear that in exercising its "special function of applying the general provisions of the Act to the complexities of industrial life" the Board is not required to consider and make findings on every contention raised in defense or every aspect of the problem presented. N. L. R. B. v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 10 L.Ed.2d 308. It can in some cases infer the existence of discrimination from its past experience in such factual inquiries. Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N. L. R. B., 365 U.S. 667, 675, 81 S.Ct. 835, 6 L.Ed.2d 11; Radio Officers' Union of Commercial Telegraphers Union, AFL v. N. L. R. B., 347 U.S. 17, 49, 74 S.Ct. 323, 98 L.Ed. 455, 41 A.L.R.2d 621. Of course presumptions utilized by the Board must be rationally justifiable; there must be a logical nexus between what is proved and what is presumed. See Republic Aviation Corp. v. N. L. R. B., supra, 324 U.S. 793, 804-805, 65 S.Ct. 982, 89 L.Ed. 1372. See also 2 Davis, Administrative Law Treatise § 15.04 (1958).

The issue thus presented is whether consideration of available alternatives is necessary to make the presumption in question rational. In Republic Aviation Corp. v. N. L. R. B., supra, 324 U.S. 793, 804, 65 S.Ct. 982, 89 L.Ed. 1372, the Supreme Court considered and approved the NLRB presumption against no-solicitation rules in the "definitive form" expressed in Peyton Packing Co., 49 NLRB 828, 843, enforced N. L. R. B. v. Peyton Packing Co., 5 Cir., 142 F.2d 1009, cert. denied 323 U.S. 730, 65 S.Ct. 66, 89 L.Ed. 585. The presumption approved clearly was independent of the existence of alternative means of communication. Cf. N. L. R. B. v. United Steelworkers of America, CIO, 357 U.S. 357, 367, 78 S.Ct. 1268, 2 L.Ed. 2d 1383 (opinion of Chief Justice Warren, concurring in part and dissenting in part).

Reason and the demands of sound administrative policy support the Court's approval of the Peyton Packing Co. formulation. The chances are negligible that alternatives equivalent to solicitation in the plant itself would exist. In the plant the entire work force may be contacted by a relatively small number of employees with little expense. The solicitors have the opportunity for personal confrontation, so that they can present their message with maximum persuasiveness. In contrast, the predictable alternatives bear without exception the flaws of greater expense and effort, and a lower degree of effectiveness. Mailed material would be typically lost in the daily flood of printed matter which passes with little impact from mailbox to wastebasket. Television and radio appeals, where not precluded entirely by cost, would suffer from competition with the family's favorite programs and at best would not compare with personal solicitation. Newspaper advertisements are subject to similar objections. Sidewalks and street corners are subject to the vicissitudes of climate and often force solicitation at awkward times, as when employees are hurrying to or from work.

It might be suggested that it would be harmless to require the Board to make findings in all no-solicitation cases. But in addition to being an appreciable increase in the Board's already unwieldy work load, this would simply be an incitement to litigation and casuistry.

Even apart from considerations involving the remoteness of the existence of realistic alternatives, we feel that the Board's position is sound. It summarized the basis for its view in Peyton Packing Co., supra, 49 NLRB 828, 843-844, quoted with approval in Republic Aviation Corp. v. N. L. R. B., supra, 324 U.S. 793, 803, n. 10, 65 S.Ct. 982, 988, 89 L.Ed. 1372: "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...