United Steelworkers v. National Labor Relations Bd.

• Decision Date: 23 November 1956
• Docket Number: 12812.,No. 12754,12754
• Citation: 243 F.2d 593
• Parties: UNITED STEELWORKERS OF AMERICA, CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Nutone, Incorporated, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NUTONE, Incorporated, Respondent, United Steelworkers of America, CIO, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

243 F.2d 593 (1956)

UNITED STEELWORKERS OF AMERICA, CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Nutone, Incorporated, Intervenor.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NUTONE, Incorporated, Respondent, United Steelworkers of America, CIO, Intervenor.

Nos. 12754, 12812.

United States Court of Appeals District of Columbia Circuit.

Argued September 10, 1956.

Decided November 23, 1956.

Writ of Certiorari Granted April 1, 1957.

COPYRIGHT MATERIAL OMITTED

Mr. Arthur J. Goldberg, Washington, D. C., with whom Mr. David E. Feller, Washington, D. C., was on the brief, for petitioner in No. 12754 and intervenor in No. 12812.

Mr. Arnold Ordman, Attorney, National Labor Relations Board, of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of Court, with whom Mr. Marcel Mallet-Prevost, Associate General Counsel, National Labor Relations Board, was on the brief, for respondent in No. 12754 and petitioner in No. 12812. Miss Fannie M. Boyls, Washington, D. C., also entered an appearance for respondent in No. 12754 and petitioner in No. 12812.

Mr. Charles A. Atwood, Cincinnati, Ohio, for intervenor in No. 12754 and respondent in No. 12812. Mr. Thomas E. Shroyer, Washington, D. C., also entered an appearance for intervenor in No. 12754 and respondent in No. 12812.

Before PRETTYMAN, WILBUR K. MILLER, and BASTIAN, Circuit Judges.

Writ of Certiorari Granted April 1, 1957. See 77 S.Ct. 682.

PRETTYMAN, Circuit Judge.

These two cases come here from the National Labor Relations Board. The United Steelworkers of America began in the spring of 1953 a campaign to organize the employees of Nutone, Incorporated, a manufacturing concern of Cincinnati, Ohio. The campaign was heated but not violent. The ensuing election was lost by the Steelworkers, and shortly thereafter an unaffiliated union was formed in the plant. The Steelworkers filed with the Labor Board charges against Nutone, a complaint was issued, hearing was held, and a trial examiner's report and recommended order were issued. Exceptions were filed, and the Board adopted the examiner's conclusions in part and rejected them on one issue. The Steelworkers petitioned this court for review (No. 12754), and the Board petitioned for an enforcement order (No. 12812).

Upon the prehearing conference held in this court the issues in the two cases were phrased by stipulation made by the parties. We turn first to the Steelworkers case. The two issues there concern the denial of reinstatement and back pay to an employee named Virgie Marshall and the enforcement by the employer of a no-distribution rule against the union while it (the employer) distributed anti-union literature.

While the organization campaign was in progress a temporary layoff due to economic conditions occurred. Virgie Marshall was among the employees laid off. She was a pro-union advocate and, according to the record, possessed an unusual talent for vivid oral expression. She directed this talent at fellow workers outside the plant. The examiner said the witnesses attributed to her "vile and obscene statements, as well as cursing and profanity." References to the record indicate that his description was pallid. He recommended against requiring her reinstatement. Recognizing that "in the realities of industrial life, particularly where vital issues are at stake during a strike or an organizing campaign, employees frequently express their sentiments in crude and vulgar language, not suited either to the pleasantries of the drawing room or to the courtesies of parliamentary disputation", the examiner was nevertheless of opinion there are limits to permissible verbal assault. He thought there are bounds of language beyond which an employee may not go and still retain his or her right to reinstatement. The Board agreed with the examiner. We have no difficulty in agreeing with the examiner and the Board on the point.¹ Perhaps such boundaries are far-flung, but wherever the line is drawn it will fail to encompass as permissible the language used by Virgie Marshall. The Board's power is to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of the Act.² The basic policy of the Act is industrial peace. The Board is justified in believing that there is language which, when applied directly and personally to fellow workers, is disruptive of that peace and tends to preclude settlement of disputes.

The second issue is a close and difficult one. The company, prior to and during the organization campaign, had and enforced rules forbidding employees to engage in solicitation of any kind on company time or to distribute on company property any literature or to post thereon any signs. The company itself, however, regularly posted signs and distributed literature on its property. During the campaign the company enforced uniformly the no-solicitation and no-distribution rules against both groups of contending employees, but it did not deem itself bound by these rules and distributed on its property eight pieces of anti-union but non-coercive literature.

The issue before us, as stipulated by the parties, is: Whether an employer commits an unfair labor practice if, during a pre-election period, it enforces an otherwise valid rule against employee distribution of union literature in the plant, while, during that same period, itself distributing non-coercive anti-union literature within the plant in a context of other unfair labor practices, committed prior to the election period and thereafter.

This stipulation of the issue is, we may safely assume, precisely drawn. The issue is not the naked question whether the employer commits an unfair labor practice by distributing his own literature. Neither is it the naked question whether the employer commits an unfair labor practice when he enforces a no-distribution rule against his employees. The issue is whether it is an unfair labor practice for the employer to do both things at the same time, i. e., simultaneously distribute his own literature and prohibit his employees from distributing theirs. Thus the problem is not the application of any single provision of the statute but involves the interplay of several rights, some statutory and some inherent. Section 7 of the Act³ gives employees the right to organize. Section 8(a) (1)⁴ protects that right by making it an unfair labor practice for an employer to interfere with his employees in their exercise of the right. Section 8(c)⁵ provides that the dissemination of views in writing shall not constitute an unfair labor practice, if such expression contains no threat of reprisal or force or promise of benefit. Both employer and employees have rights of free speech. The employer has certain other inherent rights, such as the rights to production, to orderly conduct, and to cleanliness and order on his property. Sometimes these several rights conflict.⁶ We have such a problem here.

We first explore the situation presented by general considerations, absent subsection (c) of Section 8 of the Act. Except for the effect of legislation, and particularly Sections 7 and 8 (a) (1) of this Act, an employer's power to make rules governing employee organizational activities on company premises would be largely unlimited. Absent legislation he could promulgate and enforce rules prohibiting employees from soliciting in favor of a union or distributing union literature on the premises, solely because he was opposed to employee organization. The perquisites of possession or ownership shielded any anti-union purpose behind the employer's rules, just as liberty of contract shielded anti-union conditions on employment or discharge for union affiliations and activity. Under the statute, however, employees have a right to organize and to engage in activities in aid of organization. That is a broad and strong right, although it is not without limits. It does not take precedence over the right of an employer to conduct his business in a reasonable manner and with reasonable prospects of success. But the property rights of an employer do not, as a general principle, justify restrictions on self-organization not reasonably related to the conduct of the enterprise in which he is engaged. Just as discharge of a union adherent is justified if there is "cause" for the employer's action,⁷ so too there must be "cause" for limitation of employee organizational activities.⁸ The Supreme Court recently made this clear, saying, with respect to the rights of employees on company premises, "No restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline."⁹

It is well established that no-solicitation rules are valid as to working time because of the obvious interest in maintaining productive activity, and that they are valid as to non-working time in certain establishments such as department stores because of the peculiar circumstances of the business.¹⁰ But, where such circumstances do not exist and rules restricting solicitation are applied to non-working time, they are generally invalid as to employee activities.¹¹

No-distribution rules have had a checkered history. At one time the Board held that in the interests of keeping the plant clean and orderly it was not unreasonable for an employer to prohibit the distribution of literature on plant premises at all times.¹² Later the Board took the position that, absent a particular showing that the rule was necessary to plant discipline, an employer could not validly apply such a rule to employees on non-working time.¹³ Finally, in Monolith Portland Cement Company,¹⁴ the Board held that a no-distribution rule relating to the plant proper could be applied generally to nonworking time, absent special circumstances, discrimination, or a specific purpose...