National Labor Relations Board v. Babcock & Wilcox Company – Oral Argument – January 26, 1956

Media for National Labor Relations Board v. Babcock & Wilcox Company

Audio Transcription for Oral Argument – January 25, 1956 in National Labor Relations Board v. Babcock & Wilcox Company

del

Earl Warren:

Number 251, National Labor Relations Board versus Seamprufe Incorporated.

Mr. Manoli.

Dominick L. Manoli:

May it please the Court.

This case is here from the Tenth Circuit and it’s the second of the series of cases that involved this parking lot question which we were discussing yesterday.

Here as in the case which we discussed or argued yesterday, the question is whether this nonemployee union organizers are entitled under the Labor Act to distribute (Inaudible), Your Honor, on parking lot word is unreasonably difficult to make such distribution in the immediate vicinity of the plant.

The facts, if I may summarize quite briefly, are these.

The company here operates a plant on the outskirts of Holdenville, Oklahoma.

Holdenville has a population of about 6000 people.

The company has a breaking force of about 200 workers and these 200 workers, some 40% of them live in Holdenville or — excuse me, two thirds of these 200 employees live in Holdenville and the remaining one-third live within a radius in and around Holdenville of five to 10 miles.

Again, in this case, there is virtually no public transportation to and from the plant and as a result, the employers ride to work in private automobiles.

They — record discloses that normally.

They do not stop anywhere in the vicinity of the plant as they come to work but that they drive directly from the highway which is adjacent — which is adjacent to the plant property onto a private road and the private road leads into the parking lot.

The parking lot is located about a distance, I would guess from the map of somewhere around 150 somewhat feet between 100, perhaps, 150 feet from the plant proper and when the employees park their cars in the plant parking lot, they cross over from the plant parking lot over into the plant proper.

The record also discloses that the employees normally do not stop when they leave the plant.

They leave the plant.

They get — walk to the — walk to the parking lot.

They get into their cars and they drive along private road, inside the plant area onto to the public highway and then onto their homes, somewhere else it maybe going.

Now, on a typical day, the record also discloses that these 200 workers leave in about 80 automobiles and that these automobiles driving at speeds ranging from five to 20 miles per hour here at the plant area in a matter of five to 10 minutes.

In 1953, the union here was seeking to organize the company’s employees and on several occasions, the representatives of the union went to the plant and station themselves at the edge of the parking lot and as the employers came out of their automobiles, they sought to either talk to them or to distribute literature to them.

The company’s representatives noticed this and ordered the union representatives to leave the place because they were trespassing on his property.

This in some — these and some are the facts in this case on which the Board found that it was because of the employees nonstop method of driving to and from the plant to the immediate vicinity of plant that it was unreasonably difficult for the union organizers to reach these employees for the purposes of distributing literature or the — for the purpose of soliciting union membership in the immediate vicinity of the plant to the public area and the immediate vicinity of the plant.

And that accordingly, the employers forbidding the union representative to distribute literature on the plant parking lot constituted a serious impediment to the employees’ right to receive organization literature.

And it found that the employer’s ousting or prohibition against the distribution of literature on the plant parking lot, as in the other case, constituted interference with the meaning of Section 8 (a) (1).

And accordingly as in the other cases, it indirect the employer to permit the union representatives to distribute literature on the plant parking lot subject to reasonable and nondiscriminatory regulations in the interest of prime efficiency and discipline.

The court below did not disturb, when this case came before, it did not disturb the Board’s finding that the employees’ nonstop method of driving to and from the plant made it unreasonably difficult for the union representatives to reach the employees for the purpose of distributing literature in the immediate vicinity of the plant.

It held however or rejected the Board’s finding that an unfair labor practice had been committed here for two reasons.

First, that these representatives who sought to distribute literature were strangers to the employees’ rights under the Act, the employees’ right of self-organization.

And secondly, that the employees were easily accessible in the nearby town of Holdenville, which I’ve indicated had a population of about 6000 — 6000 and where two thirds of the 200 employees live.

I should like to address myself to the two considerations which this Court in agreement of where the Fifth Circuit in the case, which we discussed yesterday, felt more decisive and felt precluded, the adjustment which precluded or militated against the adjustment which the Board had made here between the competing interest.

The first of this is the — these — these representatives are strangers to the employees’ rights of self-organization.

Dominick L. Manoli:

We think that this conclusion rest upon the erroneous premise, the communication between trained organizers — organizers, union organizers and the employees is not an incident of the rights which the Act infers upon the employees themselves for purposes of self-organization.

This Court in the Thomas versus Collins case had occasion to note that included in the bundle of rights, which he act confers upon the employees, is the right to be informed concerning union matters.

And that he correlative of that right, this Court continued in that case, is the right of the union to reach the employees and to inform them and to distribute literature to them concerning organizational matters.

Felix Frankfurter:

Does that case have anything to do with this except the general remark?

Dominick L. Manoli:

That — that’s —

Felix Frankfurter:

Anything at all to do with this?

Dominick L. Manoli:

It’s entirely different case, Your Honor.

I — I’m — but there is that language in that case.

Felix Frankfurter:

Fine though, but you don’t take a general language like that which nobody contest out into a totally different context?

Dominick L. Manoli:

I think it’s —

Felix Frankfurter:

Of course, they have the right but that doesn’t enable me to ascertain what the duty of the employer as to — with regard to it, doesn’t it?

Dominick L. Manoli:

I will come to that, Your Honor, if I may.

Now, it seems to us that whether the literature is distributed by outsiders or by the employees themselves.

In either case, what is fundamental at stake here contrary to the view of the court below and contrary to the view of the Fifth Circuit that what is fundamental at stake here is the employees’ right to receive organizational literature.

Stanley Reed:

Where?

Dominick L. Manoli:

Now, that’s the next question is where.

The Court here thought that because the employees were accessible in the nearby town — where easily accessible in its own words, in the nearby town of Holdenville that the — in prohibition against the distribution of literature on the plant parking lot did not constitute a serious impediment to the employees’ exercise of this right to receive organizational literature and to be informed.

Now, it seems to us that this decision and I’m trying to answer your question, Mr. Justice Reed, as I — in — in this context, it seems to us that what the Court has overlooked is the critical factor that the natural — the most effective and the most important place for the distribution of literature to employees, the place where there can be any kind of systematic distribution of the literature where the employees, who will receive it will get the full benefit of it, is at the plant area before they scatter to the four corners.

There, the employees are able to answer — to ask questions at the organizers or able to confer with their fellow employees as to the significance of this literature and it seems to — and as against that, as against that although the employers are not wholly inaccessible, as the Court said — as the court below said, are not wholly inaccessible in the nearby town.

Nevertheless, access to them in the nearby town does not permit.

What we think — does not permit the systematic and effective distribution of union literature which can be accomplish at the plant area.

Felix Frankfurter:

Let me ask you — let me ask you a question that somewhat off field but not too much because I think all talk about the rights, Justice Holmes has pointed again and again it’s treacherous, right is the end and not the beginning of an argument whether it’s right or not.

Could the whole witnesses distribute their circular business in the parking place in the light of the decisions of this Court in which you are not familiar?

Dominick L. Manoli:

I am, sir.

Felix Frankfurter:

Is it the Court?

Dominick L. Manoli:

I think not.

Felix Frankfurter:

Not.

Dominick L. Manoli:

I think not because —

Felix Frankfurter:

Rejects the right, the right of communication, the constitutional right.

Dominick L. Manoli:

Because of this consideration, Your Honor, I would distinguish the Jehovah type of distribution from the one here that the plant area is not necessarily the most effective or the — or the natural place for the distribution of such literature.

Felix Frankfurter:

The most convenient, I should think, to get people scattered from the urban community together.

Dominick L. Manoli:

They can reach them in the town or they can go from home to home.

Felix Frankfurter:

Why can’t the organizers do that?

Dominick L. Manoli:

They cannot do that, Your Honor.

First of all, the organizer has to have a list of the names.

Frequently, he cannot obtain.

Being an outsider, you cannot obtain a list of all the employees’ names.

In the case, which we had yesterday, I mentioned that out of the 500 employees, the organizer was able to obtain only 100 names and their addresses.

Stanley Reed:

But why — why can’t he go to the employer and require him to giving some would be convenient?

Dominick L. Manoli:

That is more or less that the discretion of the employee whether he will do that or not.

Stanley Reed:

(Voice Overlap) —

Dominick L. Manoli:

But there’s an additional —

Stanley Reed:

— restrict the name of his employees so they can’t be examined.

Felix Frankfurter:

Does that come before the Board?

Dominick L. Manoli:

Whether they could get that information?

Felix Frankfurter:

Yes.

Dominick L. Manoli:

I — no — no case, Your Honor, is that — that —

Felix Frankfurter:

I feel it would be much more sympathetic to that as the right with an abstract discussion of this.

Dominick L. Manoli:

But even with the names, Your Honor, with the names and addresses, there are still serious difficulties that the union encounters especially where the homes of these employees are scattered.

Unlike the Jehovah Witnesses, who can simply go from one home to the next because they are not making any — they’re not making a selective choice.

They simply can go from one home to next and dropped the literature on the porch or wherever or give it to the homeowner.

Here, even if the union does have a list of their names, it means that it has to go to — that the employees are scattered.

They’re not contiguous and it faces their difficulties of having to find these employees at home at night after they’ve come to work.

And the employer at that time may not be in a very —

Felix Frankfurter:

I suppose this in — I — I don’t see anybody contest — could contest what you say that it’s more convenient.

Otherwise, they wouldn’t want to do it.

But you seem to think that that’s an end of the matter is more convenient Q.E.D.

Could the employers if he chose — if he chose not to have a parking lot for his employees?

Just say, you — you come out and park your car wherever you can.

Dominick L. Manoli:

Yes.

Felix Frankfurter:

Uncle Sam has lots of employees to whom it doesn’t give property opportunities.

Now, of course, you might say that was rebound against the employer because people wouldn’t work there but he could, couldn’t he?

Dominick L. Manoli:

Yes, that is —

Felix Frankfurter:

Well, I could — if I talk in terms of right, I could start the other way.

Is it this property right and therefore, he can limit the use of it.

Dominick L. Manoli:

Well, Your Honor —

Felix Frankfurter:

The argument was made yesterday that there are subjections, there are subjections that sought liability to people who have business (Inaudible) aren’t they?

Dominick L. Manoli:

Yes, sir.

Felix Frankfurter:

Well, he says, “Why must I subject myself pursuant for the negligence or whatnot?

Dominick L. Manoli:

Well, Your Honor, that question does intrigue me in the course of my preparation for this case is just what the status of these people would be if they fell or broke a leg.

But it seems to me that that doesn’t help us solve this particular problem.

Conceivably, the kind of obligation, which the employer might have, might depend upon what the right of the organizers is under the statute to come in onto those premises and then, you might be —

Felix Frankfurter:

That — that depends on local tort laws.

Dominick L. Manoli:

Then you might depend upon tort laws to what the obligation of the employer was.

It might be a situation where — although these and organizers are entitled under the Act to enter the premises for purposes distributing literature that nevertheless for purposes of tort law.

They would not be recognized is having anymore — anymore rights than perhaps to the —

Felix Frankfurter:

(Inaudible)

Dominick L. Manoli:

No, we’re not — I’m not — they say it’s a very intriguing question.

Harold Burton:

Are you saying that the employer must make available to the union representative, the most convenient method of communicating with its employees consistent with discipline and the official management of the plant?

Dominick L. Manoli:

The natural — the natural and an important avenue of communication, Your Honor.

That was the situation it seems to us in the LeTourneau case.

In the LeTourneau case, as this Court pointed out in its opinion, that plant was not like a mining camp or a lumber camp where the employees both work and live, so that the employer — so the organizers had to reach them on company property or otherwise not reach them at all.

And this Court also noted that there was no finding in that case, the distribution of the literature away from the parking lot would be ineffective.

Nevertheless, this Court concluded in agreement with the Board that the prohibition against the distribution of literature on that plant parking lot deprived the employees of a natural and an important avenue of communication and that the depravation was so serious that the employers, what I term is, naked proprietary control over his property on balance was to be subordinated to the employees’ interest in the effective exercise of their right —

Felix Frankfurter:

(Voice Overlap) —

Dominick L. Manoli:

— to be informed.

Felix Frankfurter:

I’m just asking, you will be good enough either now or file a memorandum and let me ask the rule of opinion by the Court not that they have decided, but a recent explanation why they had decided that form.

It was suggested there, I had to read a series cases and I readily undertake that assignment but I don’t just want to have the decision.

I want a recent explanation that falls by the Board guarding this vast experience that there are no differences between an employee organizer and nonemployee organizer.

Dominick L. Manoli:

Your Honor, I may — if I may, I would attempt to answer that today.

Felix Frankfurter:

Well, just give me the citation.

You don’t have to give me any speech about it.

Dominick L. Manoli:

Or —

Felix Frankfurter:

Just give me a reference of NLRB cases that I can read in which the Board set forth a reason ground for that rule.

Dominick L. Manoli:

There are these cases which are now before —

Felix Frankfurter:

I don’t need the decision.

I’m — I’m talking about an elucidation that there is no difference not really a dogmatic statement that there is no difference because my point comes in — does find a series of it.

Dominick L. Manoli:

There is no such case which elucidates that in for.

But the Board has started all from the LeTourneau case and it is taken into consideration a practice which it took into consideration of LeTourneau case, that where the employees are scattered over a wide area that from its knowledge a plant life, the industrial realities that it is necessarily difficult and often impractical to reach his employees at their homes.

And again, on the basis of that experience which had used in the LeTourneau case, it has concluded that the natural, the most appropriate place for the distribution of literature is in the plant area and it has addressed itself to the problem of whether there is a distinction to be drawn between the outside organizers and the employees themselves.

It is done that in these cases, as well as in a two cases, (Inaudible) and — or not the case which name was (Inaudible) but is in our brief, where the Board has said with respect to the employees, the employer may not forbid the — may not forbid them from distributing literature on the plant parking lot unless he comes forward with proof that it is interfering with plant discipline or operation.

But in the case of the outside organizers, the Board does not permit the outside organizers to come into the plant parking lot if the employers are reasonably accessible in the public area in the immediate vicinity of the plant.

It is only where, as in these cases, that it is either impossible or unreasonably difficult for this outside organizers to reach the employees in the public area and the — the immediate vicinity of the plant that the Board has concluded, the employer’s naked proprietary interest may on balance be appropriately subordinated to the employees’ right to receive this organizational law.

Felix Frankfurter:

The argument that you had just made, you have drawn on what the Board has done, is that right?

Dominick L. Manoli:

That’s correct, sir.

Felix Frankfurter:

And I would tell you that my mind is rather directing me in the direction of the adequate displayed in the Phelps Dodge case.

And if that is the experience of the Board, we are entitled to have it spelled out and not drawn by inference from what it is.

Dominick L. Manoli:

Well, Your Honor, I think in the Seven-Up cases, the Court indicated that — that the Board could rely on it’s cumulative — cumulative experience and it did not have to necessarily lay it out in each case and that it could draw upon its experience from the records in all of these cases and then sum up, sum up the end product of that experience.

Felix Frankfurter:

Well, as you know, when the case went back and help us God, the Board then made out why it couldn’t do it in each case and lay down a general rule and — and this Court accepted that and nobody (Inaudible)

Dominick L. Manoli:

I have no doubt, Your Honor, that the Court — the Board could have done so —

Felix Frankfurter:

But my point is it hasn’t done so.

Dominick L. Manoli:

Not — I can’t point to any particular case where the Board has spelled these considerations seriatim, but I think that that is what we gather from reading all the Board decisions in the light of — not only those decisions but in the light of its experience in the LeTourneau type of case.

Stanley Reed:

You say that the — the timber crew cases, what are closes to it that they gather before this timber crew.

Dominick L. Manoli:

Yes, we’ve — we had, of course, a case like the Lake Superior case in the Sixth Circuit and there, the — involved a lumber camp where the employees both lived and worked in the company property.

And the question in that case was whether the outside organizers were entitled.

One, to go into the lumber camp and two, into the bunkhouses where the employees lived and slept and the Sixth Circuit agreed with us there that these outside organizers were entitled to have access to those premises.

And in that connection, Your Honor, I do want to talk at this moment in connection with the argument that these outside organizers, if they are permitted to go on the plant parking lot, they are, in a sense, trespassers, unlike the employees who are already there.

Now, it seems to us that it might well be said of union organizers who seek to reach employees in a plant park — who seek to reach employees in a lumber camp or in a mining camp where they both work and live that they too are — are trespassers and yet, I think, we are all agree.

In fact, the decisions of this Court, I think, foreshadow this conclusion that those outside organizers would be entitled to have access to those employees at the — in these lumber camps because, otherwise, the employees’ right to exercise their rights under their statute, the employees’ right to be informed concerning their rights would be seriously handicap.

And the test, we think, is, we apply in these cases, is the test which the Sixth Circuit laid down in that Lake Superior case and that is whether — then that is, what in fact would be the prejudice to the interest of the employer and permitting access and what would be the benefit to the employees.

Dominick L. Manoli:

And whether the benefit prevailed over the prejudice or the prejudice prevailed over the benefit.

Now, here as I sought to indicate yesterday, it seems to us that the detriment which the employer suffers, if these organizers distribute literature on the plant parking lot hardly arises to more than the mere inconvenience which this Court said in the — hardly arises to anymore than the kind of inconvenience that this Court said he could be subjected to in the LeTourneau case.

On the other hand, the detriment to the employees is particularly serious.

And it’s particularly — it’s even more serious when they are denied access to these outside organizers than to what might be the case if they were denied communication as among themselves because these trained organizers as we know are specialists.

They are trained in this kind of work.

They are frequently the employee’s best sources of information with the respect to this union matters and to the extent that an employer unreasonably forecloses otherwise appropriate avenues of communication and thereby forecloses the employees from tapping the experience and the organizational know-how of these experts to that extent, the employers’ rights are diminished.

The argument is also advanced.

I think Mr. Mueller will undoubtedly make it and I’d like to anticipate it now.

The argument is also advanced that here, and this is particularly true in the next case, that there was no prohibition against the employees themselves distributing the literature.

And that the union organizers could have handed out the literature to these employees who in turn could have gone onto — into the parking lot and distribute the literature to their fellow employees in the parking lot and thereby have this information available to the employees.

Our answer to that contention, Your Honor, is, if the Court please, our — our answer to that is that these trained organizers that I said a moment ago are the best sources of information for the employees.

And when that literature is distributed, undoubted the literature, will often evoke questions from the employees.

And it seems to us that unless the answers are readily forthcoming at the times the literature is distributed that the effectiveness of the literature will be largely dissipated.

In addition to that, it is not always easy to obtain employees to distribute literature, particularly in the initial stages of an organizational campaign.

Understandably, the employees might be reluctant to appear in the role of spearheading, an organizational campaign.

And for these reasons, we feel that it is not enough to say that these organizers could have handed the literature to the employees themselves who in turn could have distributed the literature to their fellow employees.

Stanley Reed:

Do — do you think the — the Stowe case is part of the consideration of these matters?

Dominick L. Manoli:

Well, Your Honor, the Stowe case, of course, went off on the ground of discrimination.

It didn’t reach the problem of what the result would have been if there had been no discrimination.

And, of course, here in this — in these cases just as in the LeTourneau, there is no claim that the rule is a discriminatory rule.

In other words, that it was intended to prejudice the union in the sense that an employer, say, discharging employees or punishing them for engaging union activity.

The rule is not motivated by discriminatory purpose.

That — the — the Stowe case is significant, I think, in this connection just as the LeTourneau cases and also the Marsh verus Alabama case, which involved the distribution of literature by the Jehovah Witnesses in a company own town.

It is significant in this sense.

As the Court said there that the employer’s mere dominion or mere control over his property rights is not necessarily decisive or controlling of the issue here.

In Stowe, as well as in LeTourneau and as well as in Marsh versus Alabama, the Court said that the protection to be accorded to statutory rights, not unlike the protection to be accorded to constitutional rights, may appropriately require the subordination of the employer’s naked proprietary interest to the effective exercise of those rights.

Thank you.

Earl Warren:

Mr. Mueller.

Karl H. Mueller:

May it please the Court.

At the outset, if I may, I should like to review very briefly some of the facts here presented.

Karl H. Mueller:

Some of which had been touched upon by our Brother for the Board.

The respondent is engaged in conduct that of a manufacturing business on a track of land of some 25 acres on the outskirts of an Oklahoma town, Holdenville, a place of some 6000 folk as Mr. Manoli has entered.

We placed in evidence and have in the record before the Court a plot of a property on which our factory building is situated.

It appears at page 93 of the record.

Reference to that plot will indicate that the company’s property is bounded by two public thorough repairs.

The one on the south being denominated the airport road, it will be observe that that’s a dead-end road, and the one on the east or the front side of the factory building, if the Court please, which is also a dead — dead-end thorough repair.

Now, we don’t mean to indicate by calling attention to these facts that we think that this case turns on facts such as this, but we point to them because of the emphasis and appearance significance that the Board attaches to different facts in the case which preceded this one.

Hugo L. Black:

Where is the second road to which you referred?

I see the first one.

Karl H. Mueller:

It’s — if Your Honor please, it runs from left to right, from the — (Inaudible) right-of-way and appears right below airport edition and is dominated access road.

Unfortunately, the individual, Mr. Justice Black, who put that in, put it in upside down which wasn’t particularly helpful.

Hugo L. Black:

(Inaudible)

Stanley Reed:

Well, it’s the only — the only access is to and from 5th Avenue?

Karl H. Mueller:

No, the access actually Mr. Justice Reed —

Stanley Reed:

(Voice Overlap) —

Karl H. Mueller:

— is along the airport road from town and then one may turn in coming to the plant to his right along the access road and going to the area that’s marked administrative parking in front of the building or he may proceed along the airport road to the private road and there turn to the right by means of which he would gain access to the parking area which lies to the west or behind the factory building.

These roads, the record shows and incidentally these facts to which I will allude are all undisputed, we don’t have any question of fact resolution at all, our area of conflict last completely within the — a matter of conclusions to be drawn from the facts proved.

It was suggested yesterday and facts in these cases are all about the same and we were not favored with a brief by the Board and I — I don’t say that critically or by way of complaint.

The Board didn’t brief the facts of our case but instead referred to its brief in the Babcock case and suggested simply that the questions there presented are the same as those here presented.

We most respectfully, but nonetheless, positively disagree with that suggestion.

This is one small facet of fact where the cases are not alike and in saying that I don’t mean to turn my back on my Brother Fisher or on his client Babcock or Wilcox.

I think that his situation is one that speaks for itself and that it sound on its own facts but those facts, I suggest, are different from those here.

For example, in the course of the argument in that case and I won’t labor this too long, counsel for the Board suggested that in the Babcock case the employees entered upon highways where there were no parking signs that would prevent people from stopping and where the speed limit was 65 miles an hour, which would indicate the people could drive along in such fashion that it might be difficult for them to be estopped in time to be in importune by one who would like to sell a union membership.

In short contrast to those facts, we have these dead-end roads which come down one to the airport and the other in front of our property.

The facts are, and the record is undisputed on this, that these roads are lightly traveled.

Now, it is interesting to ask because of the emphasis that the Board places on unlike facts in other cases that our little old parking lot is just a graveled area behind our factory building.

It isn’t fenced off from the plant area.

When the employees, most of them are women, drive their cars onto the parking lots.

They simply parked them on this graveled area designated private parking, utilizing the private road across our property to get there and they then go into the employee’s entrance at the back of the building.

None of this property is open to use by the public.

Karl H. Mueller:

So, we immediately distinguished this case on its facts from the holding of the Seventh Circuit in Marshall Field in respect to Holdenville court which was there found to partake of the nature of a public street.

It turned pretty much on the question of discrimination as we view that.

When a person gains access to our parking lot, they’ve got access to our factory.

We don’t have any gig houses and we don’t have any guards as — or to be found in some of these other cases.

What we are dealing with here is a “No Trespassing” rule.

We posted this property.

We just got a barbwire fence surround the outside of it with no gates at the entrances.

But we posted our property as we used that term sometimes down or part of the country.

We put up large signs, notices to the public that trespassing on our property was not permitted and that the roadways to the parking lots were private.

Broadway is not open to public use.

We don’t’ mean to quibble for an instant with this Court.

The Board said that there was a distinction without a difference when we suggested that a “No Trespassing” rule and I know distribution, I know solicitation rule were not one of the same thing.

The Board reason that a “No Trespassing” rule would keep a nonemployee or stranger off our property and consequence, it would prohibit him or prevent him from distributing and soliciting.

We’re bound to agree with that.

It has been conceded by counsel and we’re grateful to him that there’s no question presented in this case concerning our motivation in adopting the “No Trespassing” rule.

We did it in pursuance of our rights in connection with the ownership and use of our private property and the Board hasn’t called in the question, our motive, for posting our property and for preventing or forbidding trespassing.

And neither is there any question at all about the — evenhandedness with which that rule has been enforced.

It has been nondiscriminatorily enforced.

The record does not show that we had any rule which prohibits or in anyway interferes with employees in the exercise of their rights to self-organization under the Act on our property during nonworking time.

The case boils down solely and simply to a question of whether or not, under the facts of our case, nonemployee organizers have an enforceable legal right at the hands of the Board to take and to use our property in connection with their attempts to sell their wares, namely, union membership.

We find no fault with their cause.

It’s not within our problems to do so.

It isn’t — whether it’s good or bad but as has been suggested by members of the Court, the question that bears so heavily.

In our thinking is where is the appropriate place for these nonemployees to communicate with our employees in an effort to prevail upon them to take membership in the particular labor organization of which that nonemployee organizer is in turn an employee.

We think that under the law, we are required not to interfere with or to restrain or to coerce employees in connection with the exercise of their rights and there’s no contention that we have unless, indeed, the nondiscriminatory enforcement of our “No Trespassing” rule has cut them off from the services of these alleged experts in the intricacies of labor law in connection with the employees’ exercise of their rights on the Act.

It’s of no consequence but I can’t resist the temptation to observe that I don’t think that the American worker be he man or woman is so lacking in understanding of what’s going on in connection with labor organization in the last 20 odd years that he boards along epithetic and ignorant of his rights and the opportunities that await him if he desires to avail himself of it.

This union is not the representative of any of our employees.

There’s no contention that it is.

So, the case is involving access to tankers for representatives of collective bargaining agents where the union has state us under the law as such are completely beside the point.

The case stands here in a setting, completely free of unfair labor practices.

Karl H. Mueller:

It isn’t suggested that we have done anything at all in contravention of the law except to enforce our nondiscriminatory “No Trespassing” rule.

Now, the Board has told us that we must rescind that rule and that we must accord full access to nonemployee union organizers to our properly for use by them in carrying on their organizational activities subject only, and the Board gratuitously conversed this on us which we think it undertook to borrow from LeTourneau, subject only to such reasonable controls as we may make as — and nondiscriminatory reasonable regulations as we may make that will, excuse me, ensure plant efficiency and maintain discipline.

Both of which, we suggest, make sense when they’re related to employee-employer but no sense whatsoever when related to a landowner as the respondent in this case and a stranger who would enter upon and use his profit.

In this case, the order goes farther than it does in the case which precedes it in the one which follows.

In those cases, no distribution rules were involved.

Ours is to brought “No Trespassing” rule.

And in consequence of that, the Board has not only told us that we’ve got to let these people on our property for the purpose of distributing literature but for the purpose of soliciting union memberships and that opens a vastly wider field.

That brings on the area of discussion without question and raises problems that the order and the decision and nowise suggest an answer, how many maybe gathered together at one time and solicited and where.

And in that connection, as a practical matter and — and we do have to be practical in connection with our attempt to operate our business, the area which the Board order would require us to open up and turn over to these nonemployee organizers is not only the parking lot behind the building but the area between that park lot and the threshold to our backdoor.

It come up right on our back doorstep, if you please, and take that order as a forum from which to advance their arguments to employees in respect to whatever message they have to deliver in connection with unionization and organization.

We respectfully submit that it certainly isn’t incumbent upon us under the law.

Now, it is it conferred upon the Board by the Act to require us to provide that forum.

In analyzing the Board’s order, we find it bottomed on two grounds principally, one, the alleged virtual impossibility of communicating with our employees off our property.

And here, may I take note of the fact that only since the petition for certiorari was filed in this Court have we had engrafted on the question in this case accessibility within the immediate vicinity of the plant.

Counsel alluded to that several times in the course of his argument.

That question wasn’t litigated before the Board.

It wasn’t before the Court of Appeals.

It’s never been contended, prior to the advent of the case in this Court that accessibility has to be in the immediate vicinity of the plant, otherwise, the plant property must be condemned to the use of outside nonemployee organizers.

The court below correctly found, we think, that the Board’s conclusion that it was impossible or virtually impossible or unreasonably difficult to communicate with our employees off our property was a conclusion to use Judge Murrah’s language that is not legally justified by the facts.

He had put the record to the test for that Court applying the rules laid down by this Court in Universal Camera and he found the Board’s conclusion wanting.

There was no support in the record taken as a whole that it was virtually impossible to communicate with our employees off our property.

And we think that when this Court comes to examine the record, it is bound to reach that same conclusion.

The Board’s finding rest on the flimsy pretext.

Maybe I shouldn’t call it that.

Flimsy argument let me say.

That would be more polite.

That number one, these employees live in Holdenville, two thirds of them in Holdenville and the balance of them within five or 10 miles at Holdenville and that the employees don’t stop ordinarily when they come to work or leave work in the evening.

And let me take just a minute to tell the Court what the record shows with respect to this so-called nonstop driving.

A couple of girls went out to the plant one afternoon, two years ago this month as I recall it, to observe what happened when the employees left, and we only operate one shift, the girls go home around 4:00 or 4:30, they got into their cars, they drove around to the north end of the building out for the access road and on toward town.

They testified that most of them were bumper to bumper.

Karl H. Mueller:

They all got off at the same time and then no one stopped.

But the thing that seems to us absurd, if I may use that term, is the undenied fact that there wasn’t anything suggestion that there was any reason for him to stop.

No one invited them to stop.

No one asked them to stop to receive literature or to stop for any other purpose.

And because of that happening on that one day in the afternoon, the trial examiners, whose findings were adopted by the Board, drew the inference they came to work the same way in the morning.

I don’t think they do but they probably don’t stop upon entering upon our property.

Absent, there’d be in some reason to stop and I suppose normally there is suppose some.

And when we undertook to argue before the Board that the record was barren of any showing that the union ever attempted even raised a finger to invite a single soul to stop his car or her car to receive a piece of literature or to engage in conversation concerning unions.

And that’s the way the record stands.

This record is barren of anything to show that the union ever made any attempt except to come upon our property and station themselves on our backstep.

And there undertake to commandeer what we think would amount to a captive audience, if you please, that no way for the girls to escape on even if they wanted to and I might mentioned in passing there that the Act gives the employees the right to refrain from engaging in these activities as well as the right to engage in it.

But the Board with the wave of the hand simply says that it wasn’t necessary for the union to make an attempt because of the nonstop method of driving.

It’s obvious that the attempt would have been futile and aborted.

And so there isn’t any evidence.

There isn’t any evidence that we ever in anyway interfered with the union organizer, trying to meet our people outside our property on the roadway, in town, at home, in union halls.

All of which had been characterized by the Board members on one occasion or another as time honored and traditional means for communicating their employees.

And these were the special circumstances.

What these girls saw that one afternoon when our girls left the job and had no reason to stop.

Those were the special circumstances that cause the examiner and the Board to conclude that it was virtually impossible to distribute literature to our employees or to solicit our employees off company property.

No one did ask that Judge Murrah, speaking for the Tenth Circuit, struck it down and said it’s not legally justified.

Judge Murrah found correctly, we think, that the employees were easily accessible and I find that I’ve.

[Laughs]

used all my time on my first point [Laughs].

Let me say this if I may.

Earl Warren:

You have five minutes more, Mr. Mueller.

Karl H. Mueller:

Thank you, sir.

That we don’t think it’s necessary for this Court to go beyond our first point.

The Board’s order rest on alleged nonaccessibility or inaccessibility off company property and the Board failed to prove that and we think the Tenth Circuit correctly so found and held.

Judge Murrah wrote — writing for that Court said that there was no impediment amounting to the serious handicap as would be the case in the Lumber Company camp where the man had to live and there was the tenancy aspect and all those things.

None of those things are present here.

Karl H. Mueller:

None of them even suggested.

And so the Court concluded that below that our nondiscriminatory enforcement of our “No Trespassing” rule did not constitute an unfair labor practice and it refused to enforce the Board’s order.

And that brings me very briefly to the second point which I should like discuss in length but probably it wouldn’t add anything more than talk.

The Board’s order is predicated on the patently erroneous assumption that the rights of nonemployees to use our property for organizational purposes is the same as the right of our employees.

Now, it’d be presumptuous of me to tell this Court what it held in LeTourneau where everybody knows it’s generally conceded by now that that had to do with the employees who were on the property as a matter of right in connection with in pursuance of their employment.

They were in no sense trespassers and Judge Murrah made that observation below that any employee on its employer’s property engaging in self-organization does not infringe a “No Trespassing” rule and that’s the only rule we have.

That’s the only one that’s in issue.

We think that this is pure invention of the Board to attempt to extend rules that seem to us reasonable when applied to the governance of the employees during their nonworking time while they are on their employer’s property.

This Court indicated that a balance had to be struck between discipline on the one hand and property rights on the other and that in those circumstances, that is the employer-employee relationship, it was proper that the employer should have the burden if he wanted to restrict the activities of the employees on his property during their nonworking time to show that the restriction was necessary in terms of maintaining production or preserving discipline.

And that’s the thing that the Board’s undertaken to pull out of LeTourneau and apply against us and actually in the decision in our case.

The Board has said that the burden was on us to approve the necessity for our rule in respect to “No Trespassing”, lifted it bodily out of LeTourneau.

And if Your Honors please, in our case all they did was to say that our contention that the LeTourneau thing applied to employees and that we were here dealing with nonemployees, they said that was a distinction without a difference.

That’s the way it was glossed over and they took one quick look at Thomas against Collins to which references has already been made and said that closes the gap.

It follows that LeTourneau stands for the proposition that nonemployees are entitled to enter upon and use an employer’s premises for organizational activity.

We say that burden, of course, is not on us and we think it’s — it’s fantastic really — pathetic in our point of view to suggest that the balance that was struck in LeTourneau should be struck when we’re confronted not with the employer-employee relationship but with the relationship of an employer and a rank stranger who would undertake to sell union memberships to the employees in the plant.

This convenience argument is a devilish one, if I may say so.

We have a public address system in our plant.

It would be possible to address the employees over that.

That would be more convenient than using the parking lot.

We simply say that the case can’t be decided upon that basis and we respectfully submit that the Court of Appeals below was correct on the law in facts and that it should be affirmed.

Thank you so much.