Republic Aviation Corp. v. National Labor Rel. Board

• Decision Date: 22 March 1944
• Docket Number: No. 287.,287.
• Citation: 142 F.2d 193
• Parties: REPUBLIC AVIATION CORPORATION v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Second Circuit

142 F.2d 193 (1944)

REPUBLIC AVIATION CORPORATION v. NATIONAL LABOR RELATIONS BOARD.

No. 287.

Circuit Court of Appeals, Second Circuit.

March 22, 1944.

J. Edward Lumbard Jr., of Washington, D. C., and John J. Ryan and Donovan, Leisure, Newton & Lumbard, all of New York City (Granville Whittlesey, Jr., of New York City, Frederick M. Davenport, Jr., of Washington, D. C., and Paul J. Quinn, of New York City, of counsel), for petitioner.

Howard Lichtenstein, of Washington, D. C., Alvin J. Rockwell, Gen. Counsel, and Joseph B. Robison and Eleanor Schwartzbach, Attys., National Labor Relations Board, all of Washington, D. C., for respondent.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

This case raises two questions. The first is whether the Board has power to forbid an employer, who has promulgated a rule, generally forbidding solicitation of any kind in his plant, to apply it to prevent electioneering for a union during the lunch hour. The second is whether the Board may compel an employer whose plant has not yet been "organized," to allow employees to wear "shop steward" buttons while at work, or whether he may confine the wearing of such buttons to those who are "stewards" of a union of his own employees. The first question is to be distinguished from those situations in which the employer invokes such a rule, not to preserve his business from the agitation and disturbance which will follow upon electioneering on the premises, but as a means of preventing the unionization of his employees. The examiner in the case at bar had found that the company had discharged one of the four employees in question, Stone, because of hostility to his efforts to organize the plant. The Board reversed this finding, and for that reason the question comes to us stark and bare; whether the Board may declare that the enforcement of the rule without any animus against unions, general or particular, may be an "unfair labor practice." As the courts have already dealt with it in several decisions, it will be best to consider these before stating our own views.

The first is a square holding by the Sixth Circuit (Midland Steel Products Co. v. N. L. R. B., 113 F.2d 800, 805, 806), that a rule which forbids "solicitation" in a plant is "reasonable," that the question is one of "law," and that it is for the court, even when the employer invokes it, not against "solicitation" during working hours, but during the lunch hour. The second decision is of the Fifth Circuit (N. L. R. B. v. Williamson-Dickie Manufacturing Co., 130 F.2d 260, 267, 268). The Board had held that the company discharged one, Meek, "discriminatorily," and the court reversed this finding as unsupported by any evidence. However, Meek had concededly violated a rule which forbad circulating petitions in the plant, by getting signatures during the lunch hour upon a petition authorizing the appointment of an attorney for the employees to recover under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. Even if the employer did not, as the court found, use the rule as a cover to stop union agitation, nevertheless Meek had been discharged for refusing to obey it; and it followed that the court, in justifying the discharge, necessarily held that the rule was valid. It is true that the Board (35 N. L. R. B. 1220, 1245-1248) did not pass upon the validity of the rule, since it was not obliged to do so once it found the employer had used it improperly; yet we can scarcely call the decision merely a dictum in this aspect. Unless the court meant to hold that the rule was inevitably valid, it should have remanded the case to the Board to pass upon it in the existing circumstances. National Labor Relations Board v. William Davies Co., 7 Cir., 135 F.2d 179, 182, does not raise the point because the employee electioneered during working hours, a very different matter. In National Labor Relations Board v. Denver Tent & Awning Co., 138 F.2d 410, the Tenth Circuit affirmed the Board's finding that the enforcement of such a rule had been invalid, but only because it found that it had been passed in order "to discourage membership in the local union." The court apparently assumed, as a general proposition, that such rules, if neither adopted, nor applied, in hostility to unions, were lawful; and perhaps by implication that they were beyond the reach of the Board. The same is true of Carter Carburetor Co. v. National Labor Relations Board, 8 Cir., 140 F.2d 714. In National Labor Relations Board v. Cities Service Oil Co., 2 Cir., 122 F.2d 149, we held that a shipowner must give passes to union representatives to board ships in order to learn what grievances, if any, the crew might have, that being the only effective way open to secure redress. It is true that we also provided that the passes should be forfeited if their users took the opportunity while on board to solicit new members or to collect dues. However, our decision is not relevant here. The representatives who sought the passes were not members of the crews, and had no right to be on the ships by virtue of their employment, as Stone had a right to be in the factory in the case at bar. Whether a union representative shall be allowed to board a vessel, or enter a plant, merely to electioneer or to collect dues, is one thing: whether an employee, already lawfully in the plant, shall be forbidden during his lunch hour to try to persuade his fellows to join the union, is another. All that we held was that electioneering and collecting dues on board ship "were not shown by the Board to have been required `for the purpose of collective bargaining or other mutual aid or protection' even if they are guaranteed under Section 7 29 U.S.C.A. § 157 under some circumstances." 122 F.2d at page 152.

Thus it appears that...