National Labor Relations Board v. Babcock & Wilcox Company

PETITIONER:National Labor Relations Board
RESPONDENT:Babcock & Wilcox Company
LOCATION:

DOCKET NO.: 250
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

ARGUED: Jan 25, 1956 / Jan 26, 1956
DECIDED: Apr 30, 1956

Facts of the case

Question

  • Oral Argument – January 26, 1956
  • Audio Transcription for Oral Argument – January 26, 1956 in 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

    Earl Warren:

    Number 250, National Labor Relations Board versus the Babcock and Wilcox Company.

    Mr. Manoli.

    Dominick L. Manoli:

    May it please the Court.

    This case is here on writ of certiorari with the Fifth Circuit.

    The principal question which is presented by this case and the two companion cases which follow this one, is whether non-employee union organizers are entitled under the National Labor Relations Act to distribute literature, union literature, on a plant parking lot, where it is either impossible or unreasonably difficult for them to distribute such literature in the vicinity of the plant.

    The court below thought that there was no warrant for — under the statute for such an intrusion upon the employer’s property and it accordingly it rejected the Board’s finding that the employers prohibition directed against these non-employee union organizers from distributing literature on the plant parking lot was an unreasonable impediment to the exercise — to the employees to exercise their rights under the statute and constitute interference and reframe it in the meaning of Section 8(a)(1) of the statute.

    The Tenth Circuit in the Seamprufe case which follows this one and the Ninth Circuit in (Inaudible) case which is presently pending on the Board’s petition for certiorari.

    The court has not yet acted on it, have agreed with Fifth Circuit’s views on this question.

    On the other hand, the Sixth Circuit in the Ranco case which is the third case of the series of cases to be argued and the Fourth Circuit I might say in two cases which are not now before this Court, have agreed with the Board that such a prohibition under these circumstances constitutes interference and restraining in meaning the Section 8(a)(1) of the statute.

    The factual picture in these cases, all three of these cases, I will not attempt to give all at one time now, but I might say that the factual picture in these cases is substantially the same.

    In this particular case here —

    Felix Frankfurter:

    Now, is that true?

    Dominick L. Manoli:

    I think it is, Your Honor.

    There are some — some differences, but I believe that they are —

    Felix Frankfurter:

    For instance, you take the difference between employees and non-employees in showing the proposed propaganda.

    Dominick L. Manoli:

    They’re all non-employees in these —

    Felix Frankfurter:

    What?

    Dominick L. Manoli:

    — case.

    That that — the prohibition here in all these cases, in all three of these cases is directed against non-employee or outside union organizers.

    Felix Frankfurter:

    Yes, but are there members, are the employee, members of the union, are there employees of the employer in the same status in all three cases?

    Dominick L. Manoli:

    That I am not sure I understand that question, Your Honor.

    Felix Frankfurter:

    If members of the — if the employer have a given (Inaudible) members of the union that to me is a differentiating fact.

    Dominick L. Manoli:

    That’s true in the Ranco case.

    Felix Frankfurter:

    Very well but it’s not the same.

    Dominick L. Manoli:

    It’s perhaps not in that respect.

    We think that —

    Felix Frankfurter:

    Well, but it may become important to you.

    Dominick L. Manoli:

    I will call attention to that, Your Honor, when I come.

    I’m sure that the other side will.

    Felix Frankfurter:

    You’ve got a real — real difference of opinion on that.

    Felix Frankfurter:

    It’s within the board.

    Dominick L. Manoli:

    No, there’s not a real difference of opinion on that, Your Honor within the Board.

    There is a real, there’s been a difference of opinion within the board as to whether or not the organizers, whether it’s unreasonable or — or impossible for these organizers to reach these employees away from the plant.

    Felix Frankfurter:

    Well, is that situation here and also whether the — whether they are employees, whether the employees are the members of the union that.

    There are differences.

    As I understand the board that some of these — it’s not location.

    The board has taken a distinction between employees who sought the propaganda when there are other employees in the union for which the effort is made.

    Is that true?

    Dominick L. Manoli:

    The Board has not drawn that distinction, Your Honor and I know of no case with a — a disagreement based upon that — upon those differences between the Boards as among the Board Members themselves.

    Felix Frankfurter:

    I mean —

    Dominick L. Manoli:

    Perhaps, Your Honor is —

    Felix Frankfurter:

    How about — how about the people who speak to make contracting themselves employees against not employed.

    Is that a distinction?

    Dominick L. Manoli:

    If Your Honor is thinking of the LeTourneau case —

    Felix Frankfurter:

    I’m — I’m thinking of the opposite that is applicable to (Inaudible) the facts of the LeTourneau case, I’m not to say.

    Dominick L. Manoli:

    No, that’s quite right.

    There the prohibition is I’m going to say in detail somewhat later.

    The prohibition was directed against the employees.

    In these — in these cases here, the difference between LeTourneau and this one here is principally that here, the prohibition is directed against these outside organizers who are not employees.

    There is this difference however, Your Honor.

    I might say this with respect to these cases.

    That in the last of these cases, there were some employees who were members of the Union and whom the company permitted to distribute literature on the parking lot.

    I didn’t mean to minimize that factor.

    I believe that —

    Felix Frankfurter:

    (Inaudible) may become important unless you get a rigid rule of —

    Dominick L. Manoli:

    I hope to show that it would not be material.

    But I — I think I made an error perhaps, when I said that there was, for these cases, are substantially the same (Voice Overlap) —

    Felix Frankfurter:

    And also what other facilities there are on its own.

    Dominick L. Manoli:

    Oh, yes, of course.

    Felix Frankfurter:

    I’ll have to say then all of these cases?

    Dominick L. Manoli:

    Yes, substantially the same.

    That’s right.

    I will hope to demonstrate that Your Honor.

    And the Republic was, was limited also to the employees, the Republic Aviation.

    Dominick L. Manoli:

    Yes, that was not the question of distribution of literature but solicitation of membership and the wearing of union button.

    But that, too, is in those — in that case, too, which was a companion of LeTourneau.

    The prohibition was directed against in the one case, employees distributing literature, in the other case the employees soliciting union membership and wearing buttons.

    Well the Stowe case if you remember the case (Inaudible)

    Dominick L. Manoli:

    Well, the Stowe case had a considerable differences between Stowe and this case.

    Its true, that in Stowe, we were dealing with some outside union organizers.

    But, of course, there the question was, whether they were entitled to a theatre which, whether they were entitled to use a meeting hall.

    And there’s difference between a hall and a parking lot?

    Dominick L. Manoli:

    I — considerably, I think Your Honor.

    I am aware that Your Honor thought that — that in the Stowe Spinning case that you felt that the theatre was not an adjunct to the business.

    And — but I think that we can properly say that here that the parking lot is an adjunct to the plant just as it was in the — in the — the LeTourneau case.

    The majority thought there was an adjunct to the business there in the Stowe?

    Dominick L. Manoli:

    Pardon?

    The majority thought there was an adjunct to the (Voice Overlap) —

    Dominick L. Manoli:

    Yes the — that’s right.

    They did.

    Felix Frankfurter:

    I merely suggest that the applicable are the — at least there are three cases and the court (Inaudible) has ordered not to desire to hear the same cases together that would anticipate.

    Ultimately, there’s a question of balancing consideration.

    It’s pretty important to have the exact considerations for the present (Inaudible) discriminating the people.

    Dominick L. Manoli:

    Then I will address myself to this particular case.

    Felix Frankfurter:

    I’ll — I’ll leave that to your judgment.

    If you are urging (Inaudible) but there rigid groups and, of course, I can’t get through if you will.

    That’s one thing.

    But if it mean a balancing of consideration, then the consideration must be admitted.

    Dominick L. Manoli:

    It is a question of balancing considerations.

    Felix Frankfurter:

    Very well.

    Dominick L. Manoli:

    And I shall address myself to this particular case, although, if I may say so, Your Honor, I think the considerations which we think support the Board’s order in this case, also support the Board’s order in the other two cases.

    Felix Frankfurter:

    Very well, I can understand that.

    Dominick L. Manoli:

    All right.

    Now, let me turn briefly to the facts in this case here.

    The company’s plant here is located in Paris, Texas.

    They are near — in a rural area near Paris, Texas.

    It’s approximately one mile from the city limits of Paris, Texas and approximately several miles from the center of the city of Paris, Texas.

    Paris, Texas has a population of approximately 21,000 people.40%, approximately 40% of the — of the 500 employees of the company, live in Paris, Texas.

    The other 60% of the employees live in widely scattered communities within a radius of some 30 miles from the plant.

    There is virtually no public transportation to and from the plant.

    And because of that, virtually, all of the employees ride to and from work in private automobiles where they plant or where they park their automobiles in the plant parking lot which is adjacent to the plant itself.

    The — the employees normally do no stop anywhere in the vicinity of the plant either as they are leaving the plant or as they are coming to the plant to work.

    They normally come on to the plant parking lot, park there, and then go on to the plant.

    And when they leave in the evening they then get into their cars as they normally drive away from the plant will stop — without stopping anywhere in the vicinity of the plant area.

    And I would presume they would drive on home or the nearby city.

    The — the parking lot is connected with the highway which passes the plant by driveway which is about 100 yards in length and some 30 feet in width.

    This driveway which connects the parking lot and the state highway is over company property, except for the last 30 some odd feet next to the highway, where it passes a public right of way.

    Along the road as the — the maximum speed on this highway as it passes the plant is 60 miles an hour and posted along the plant are no stop — not stop signs that have been put there by the authorities.

    Now, in 1953, the union here was attempting to organize the company’s employees.

    And sometime that in several occasions during the summer of that year, they went to the plant and stationed themselves at the — near the intersection of the state highway or the state highway and this driveway at the place where it is — crosses the public right of way adjacent to the state highway.

    I hope I made myself clear as to where they were standing.

    They started and began to handout literature — literature to the employees at that place and as a result there was traffic jam that was created.

    And the local authorities, who meanwhile had been called by the company, ordered the union representatives to discontinue distributing literature at that place because it created this traffic jam and created a serious traffic hazard.

    Thereafter, the union representatives wrote to the company asking for permission to distribute literature on the plant parking lot as the employees came to work or as they left.

    The company replied saying that it has generally forbidden the distribution of any kind of literature on its premises, and for that reason it declined to grant the union’s request.

    Simultaneously, with its effort to distribute the literature at the — near the plant, the union also sought to reach the employees at their homes and in the nearby town of Paris.

    However, the union was able to obtain only the names of about 100 of the 500 employees and was able to mail literature only to the — to the one-fifth of the working force.

    And while some 60% of the employees have telephones, the union, of course, was able to reach some of them, but record doesn’t show just how many they were able to reach.

    And the record also shows that the union reached or contacted or communicated with some of the employees on the streets of the nearby town at the nearby town of Paris.

    These are substantially the facts in this case.

    Does the record show what isolation there was in this plant?

    Dominick L. Manoli:

    It’s in a rural area, Your Honor, approximately one mile is from the city limits of this town and approximately several miles from the center of that town.

    Any reason why they couldn’t distribute these from opposite to the plant?

    Dominick L. Manoli:

    The employees just simply don’t stop in that area.

    They just simply go right on.

    But they could stop them.

    Dominick L. Manoli:

    If they wanted to.

    There are no stop signs, Your Honor.

    There are no stop signs along the road there.

    And the maximum speed of that road as I — I said a moment ago, some 60 miles an hour.

    Well, I — I was thinking about the no field that the union could (Inaudible) put up the signs —

    Dominick L. Manoli:

    There are — there are undoubtedly are, some open fields in — in that area, but normally, the employees, since the record shows, do not stop anywhere in the vicinity of the plant.

    They just simply get in their cars in their parking lot and drive on home or in the morning they’re coming from their homes at the nearby town and they drive directly on to the driveway and into the parking lot.

    (Inaudible)

    Dominick L. Manoli:

    About 200 feet, Your Honor.

    I believe the testimony is that the distance between the parking lot and the plant is some 200 feet in this — in this case.

    (Inaudible)

    Dominick L. Manoli:

    The — both the — both the parking lot and the plant and the area in between, that is all company property, Your Honor.

    (Inaudible)

    Dominick L. Manoli:

    Yes, it is, Your Honor.

    If I may, I think it would might be helpful if we turned to the map which is on pages 225 of the record.

    You will notice here, Your Honor, Mr. Justice Minton that the parking lot is at the top of that, pages 225.

    Now, at the bottom of the line which the — which — which marks as a parking lot, there’s a small letter d and then there’s a little road there.

    That road leads to a sort of a plant gate and the employees enter into that plant gate to enter the plant itself or gate house as they call it.

    Now, the driveway that leads from the parking lot to the state highway is the one at the — almost at the extreme bottom right — right hand corner of the parking lot.

    That’s approximately a 100 yards long and some 30 feet in width and the distributors of the — the representatives of the union who sought to distribute literature on these occasions that I’ve mentioned, stood at that place which is at the very end of that driveway and is marked by a circle.

    And that — and that is where the driveway crosses a — public right of way which is adjacent to the highway itself.

    Now, that intermediate area, Your Honor, between the parking lot and the buildings, my understanding is, that is owned by the company.

    That is company property.

    Stanley Reed:

    Well, is the real purpose of the efforts of the organizers to get to talk to the employees while they’re on the parking lot and away from being bothered by passing traffic and so forth and they won’t stop to talk to them when they get out of the road, is that —

    Dominick L. Manoli:

    That’s right, Your Honor.

    I — we, it’s our — it’s the Board’s position that unless these union representatives are permitted to have access on this parking lot that they would be unable to reach the employees.

    And that it’s either impossible or extremely difficult for them to reach the employees anywhere near in the vicinity of the plant.

    And with respect to reaching them away from the plant at their homes and in the city as I will come to later, there are very serious difficulties that the union encounters in attempting to reach them there.

    Now, from the facts that I had summarized, the Board found, and I believe I’ve already indicated this to some extent, the Board found that it was either impossible or unreasonably difficult for the union representatives to distribute literature to the employees away from the plant area in the vicinity of the plant itself.

    And that this and because of that, the employer’s prohibition against the distribution of the literature on the parking lot deprived the employees and the union organizers of an important avenue of communication with respect to the distribution of this literature so as to seriously impede the employees’ right, the exercise of their right to receive organizational literature from the — from the organizers.

    The Board concluded that the impediment was serious as to constitute interference within the meaning of Section 8 (a) (1) of the statute.

    And accordingly, it directed the company to permit the union organizers to distribute literature on the front parking lot subject to reasonable and non-discriminatory regulations in the interest of time efficiency and discipline.

    The court below, as I have already indicated, disagreed with the Board.

    It concluded that since these organizers were not employees, but in this, outsiders, non-employee organizers and since in its view the employees could be reached in the nearby town, that the prohibition did not invade or bridge any rights of the employees themselves or constitute a serious impediment to the employees’ exercise of their rights under the statute.

    As I indicated earlier, the principal distinction between these to these cases or in this case and the LeTourneau case, here is the — the prohibition here is directed against — is directed the non-employees.

    Whereas, in the LeTourneau, the prohibition was directed against employees.

    If I recall correctly in the LeTourneau, the public were criticized during the hearings on the Labor Management Relation Act.

    Dominick L. Manoli:

    Yes, that’s correct, Your Honor.

    They were criticized.

    Was — was any change made in the law?

    Dominick L. Manoli:

    This Court has on two occasions in the Radio Officer case which Your Honor wrote the opinion for this Court and also the Universal Camera case, Your Honor has twice said here in the Court — this Court has twice said it seems to us that the statute has not been — has not affected the validity to those — those two cases, either LeTourneau or the Republic.

    The — in the LeTourneau case, this Court sustained the Board’s ruling which set aside an employer rule which prohibited the employees from distributing literature on the plant parking lot.

    This Court agreed with the Board that in that situation, the employer’s naked proprietary interest or his naked control over his property, was to be weighed in the balance against the employees’ interest in the effective exercise of their rights.

    And this Court also agreed with the Board that, since on the one hand, the prohibition was not necessary for the protection of any legitimate interest of the employer and since, on the other hand, it deprived the employers of an important and otherwise appropriate avenue of communication with respect to the distribution and receipt of organizational literature, that the Board, setting aside of the employer’s ruling — rule against the distribution of literature, represented an appropriate and a valid accommodation between the employees’ interest and the effective exercise of their rights under the statute and the employer’s naked proprietary interest.

    The considerations which underlie that decision, and which we think are relevant here, were that — were the employees as in that case, at their homes or dwellings scattered over a wide area that it is difficult and often impractical to have any systematic distribution of literature to them at their home.That from a practical standpoint, the logical, the natural and perhaps the most effective place for the distribution of literature is in the plant area.

    And that even though, as in that case, the employees were not wholly inaccessible away from the plant as they would have been if they had worked in a mining camp or a lumber camp which was owned by the employer, let them work in a place like that, that even though they were not wholly inaccessible away from the plant, nevertheless, the employer’s prohibition against the distribution of the literature on the plant parking lot created such a serious impediment, deprived them of a — an otherwise appropriate and important avenue of communication that on balance the — it was — it was wholly proper for the Board to subordinate the employer’s naked proprietary interest to the employees’ interest in the effective exercise of their rights including their right to receive organizational literature.

    Stanley Reed:

    Suppose this has been a private parking lot not owned by the company would the company have to provide, provide some facilities to make these employees available?

    Dominick L. Manoli:

    Well, I know of no case, Your Honor, which has presented that to the Board and I suspected that probably it might be — it would make a serious difference if the employer doesn’t own anything.

    He doesn’t have to supply — supply something which he doesn’t already have.

    Stanley Reed:

    Might he not have to open up his plant?

    Dominick L. Manoli:

    Pardon me?

    Stanley Reed:

    Let them come in the plant.

    Dominick L. Manoli:

    The Board does not permit even the employees to come into the plant to distribute literature, Your Honor.

    That’s under (Inaudible) case the — the Board has drawn that line.

    Dominick L. Manoli:

    While it — the employees are entitled to permit to distribute literature on the front parking lot, the Board has never permitted employee, even employees to come into the plant for the purpose of distributing literature.

    Stanley Reed:

    Even though they don’t have any place elsewhere?

    Dominick L. Manoli:

    I know of no case, Your Honor, where the Board has permitted the distribution of literature inside the plant.

    It feels that there, the — the balance is in favor of the employer because of the danger of littering and other factors — that flow from the — the distribution of literature within the plant itself.

    Stanley Reed:

    The Board hasn’t yet taken the position that the employer is bound to make these employees available.

    Dominick L. Manoli:

    Available?

    Stanley Reed:

    Yes, for organization purposes.

    Dominick L. Manoli:

    It’s not so much of question of making them available, Your Honor.

    It’s the question of the employees themselves exercising their own right to receive organizational literature.

    And that determination should not be made by the employer as to whether they will be available to — or to — to the organizers or not.

    But that decision should be made by the employees themselves.

    In fact I’m quite sure.

    I just spelled out the considerations which we thought this Court rested — rested in, in deciding the LeTourneau case and which we think are applicable here, the Board in that case as I’ve said, sought to balance the competing interest, the naked proprietary interest of the employer, the employer as against interest of the employees in the effective exercise of their rights under the statute.

    In these — in this case, if I may add, and the other two cases, that are here for argument, the Board has also weighed the competing interest.

    On the one hand, it has found that to set aside the prohibition against the distributing of literature on the parking lot by these outside organizers, that the employer suffers an inconvenience which is no more substantial than the inconvenience which the employer suffers in the LeTourneau case, where the distribution of the literature is being made the employees themselves.

    Felix Frankfurter:

    What is the difference, that the — the employee himself will be questionable when he’s talking with his fellow employees that there’s something wrong.

    Dominick L. Manoli:

    Well —

    Felix Frankfurter:

    The employee of the plant, it’s very difficult to say you can’t talk to your fellow employees on the parking lot.

    Dominick L. Manoli:

    It’s more than that, Your Honor.

    I think —

    Felix Frankfurter:

    Isn’t that true?

    Isn’t that what — wouldn’t it practically get down to the fact that I’m — I’m restricted of my freedom to talk to you as a fellow employee and to take your time and —

    Dominick L. Manoli:

    Well, that was true in the LeTourneau, in the Republic case where it was a question of solicitation.

    Here, I think it’s something more than that.

    That is that there is a distribution of literature.

    Now, if — if the distribution of literature in the LeTourneau case caused so slight an inconvenience to the — to the employer, that on balance it should not outweigh the way the employer’s interest in the effective exercise of their rights in the statute, so here we say the —

    Felix Frankfurter:

    So, when you said effective exercise of their rights, is that — if — if I have to live with that statement, then I’ve already answered the problem.

    Dominick L. Manoli:

    Well, it’s their right to receive organizational literature.

    Felix Frankfurter:

    Well, but that the question is whether they have right to receive it, if that’s fine.

    Dominick L. Manoli:

    I understand that is, Your Honor.

    Dominick L. Manoli:

    Now —

    Felix Frankfurter:

    Well, that you can say it is (Inaudible)

    Dominick L. Manoli:

    At this point I’m trying to — I’m trying to make the point that the inconvenience which the employer suffers from permitting these — permitting these outside organizers to come into the parking lot with the purpose of distributing literature at the inconvenience from a practical standpoint, is no different, really, than the inconvenience which he suffers when the employees themselves distribute the literature.

    Felix Frankfurter:

    But the restriction upon the employee, if — if I can talk to you or give a piece of literature to my fellow employees the way I could talk to them, give them the literature to my colleagues on this Court.

    It’s a relationship statistics.

    Dominick L. Manoli:

    I know, Your Honor, but what difference is there really from a practical standpoint between the employees handing out a piece of literature to fellow employee or the union organizers handing him this piece of literature?

    Felix Frankfurter:

    I’m not looking merely at the employer (Inaudible) property, naked piece of property.

    I don’t see what the word “naked” while that the insertion of that word “naked” is sort of prejudicial to the whole case why, that is relevant?

    Dominick L. Manoli:

    Well, Your Honor, I’ve — that’s relevant because —

    Felix Frankfurter:

    On the other hand, this is the — the inconvenience to the employer.

    I’m not saying the burden is on the employee, in that case, to be forbidden to talk (Inaudible) fellow employees.

    That was the essence, that was of the core of those cases you got by.

    Dominick L. Manoli:

    And what I think is at the core of this case.

    And I think it’s a fact to which the court below has overlooked.

    That essentially, here, we are concerned with the rights of the employees to be informed because it is our position that whether — whether the distributors of the literature be these outside organizers or whether they be the employees themselves, that at bottom, what is fundamentally involved in these cases is the right of the employees to receive organizational literature.

    Felix Frankfurter:

    Where at — at a particular place have the abstract right?

    Dominick L. Manoli:

    At the parking lot where —

    Felix Frankfurter:

    Well, but that’s the question.

    Dominick L. Manoli:

    I know.

    Felix Frankfurter:

    That, we can’t answer the question by assuming the answer.

    Dominick L. Manoli:

    I hope I’m not assuming the answer.

    I was trying to develop the considerations which I think the Board has taken into consideration.

    Felix Frankfurter:

    (Inaudible) but just as the rules have said.

    Dominick L. Manoli:

    The Board has balanced that.

    Felix Frankfurter:

    Where?

    Dominick L. Manoli:

    As a matter of fact —

    Felix Frankfurter:

    Where?

    Dominick L. Manoli:

    — in a — in a series of cases —

    Felix Frankfurter:

    What?

    Dominick L. Manoli:

    — including these and as a matter —

    Felix Frankfurter:

    (Inaudible) the difference as it discussed the difference.

    Dominick L. Manoli:

    Between —

    Felix Frankfurter:

    Employee and non-employee as to this, in essence.

    Dominick L. Manoli:

    Yes, Your Honor.

    It has — it has drawn —

    Felix Frankfurter:

    As it was, give me the reference of the case.

    Dominick L. Manoli:

    There are two cases, Your Honor, on page —

    Felix Frankfurter:

    I know the Board has not refused to draw a line, but what I ask, has it taken into account what seems to me, is very important.

    If it’s up to me, I may (Inaudible) out, that the Board has the right to draw that line but hasn’t drawn it or it had just assumed from the employee issues that as to non-employee union policy.

    Dominick L. Manoli:

    The Board has drawn a difference with — it has taken into consideration the fact that these organizers are non — are not —

    Felix Frankfurter:

    It has said so.

    But doesn’t — the major consideration of doing obviously what it says.

    Dominick L. Manoli:

    It has made the consideration this way, Your Honor.

    That where the outside organizers are able to reach the employees in the immediate vicinity of the plant, in the public — public area, to mean the vicinity of the plant, the Board in those cases, unlike the employee situations, has said we will not permit the outside organizers to come on to the plant and parking lot, because they have an adequate opportunity to distribute literature to the employees in the public area in the — in the — the immediate vicinity of the plant.

    Felix Frankfurter:

    Well, let me — in all cases it says and it will consider all supremacy.

    I take it the Board has ruled that the — the employees have no right to the — to the propaganda is within the plant.

    Dominick L. Manoli:

    The important —

    Felix Frankfurter:

    So, whether there is a greater facility or equal facilities on other (Inaudible)

    Then there’s no occasion for using employer’s (Inaudible)

    I’m assuming in all these cases that there’s no suggestion from union and for any discrimination.

    Dominick L. Manoli:

    Oh, that’s quite true, Your Honor.

    There is no discrimination at all and these are — there’s no suggestion of that kind, here, any more than LeTourneau case.

    And in (Voice Overlap) —

    Felix Frankfurter:

    It’s not through (Voice Overlap) — what I want, I’d like to be referred to the court’s opinion in which they canvassed the property that you and I could canvass in our State and they’ve considered it and said on the whole, they’ve never been able to account we reached this conclusion.

    Where have they done that?

    Dominick L. Manoli:

    I think they — let me start — start off by saying this, Your Honor, that the Board has regarded these cases as not significantly different from the LeTourneau case.

    Felix Frankfurter:

    That’s my complaint with the Board.

    Dominick L. Manoli:

    And the — in these cases here, the Board following the same lines of approach that it followed and which is as we thought this Court approved in the LeTourneau case.

    Felix Frankfurter:

    But that’s an employee case.

    Dominick L. Manoli:

    I understand.

    Dominick L. Manoli:

    It has balanced these competing — this has balanced these competing considerations and it has concluded that the natural, the logical, perhaps the most effective place for the distribution of literature in a situation like this is either is somewhere in the plant area, either in the public area adjacent to the plant area, in the immediate vicinity to the plant or on the parking lot.

    Where the outside organizers are able to reach the employees on the public area in the immediate vicinity of the plant, the Board says, we will not permit them to come on to the plant.

    But in situations however, where they aren’t — where they employees aren’t accessible in the immediate vicinity of the plant, then the Board has balanced the competing considerations at the inconvenience to the employer’s relatively slight, no greater than it that was in the — than the LeTourneau case and that the — however, on the other hand, that the impediment to the employees’ right to receive literature is a serious one because if deprives, it — it forecloses what is in those circumstances the most important and effective avenue of communication between the employees and the outside organizers.

    Felix Frankfurter:

    Mr. Manoli, you well know that this is the — this is at (Inaudible) this Court has sent cases back to the Board and said, you have great experience with this, and so, therefore, you have wide discretion.

    But your rule must be based on a consciously formulated recognition of factors that lead to your result.

    Way back (Inaudible) didn’t deny the policies of — of the Board but they didn’t go into a decision.

    What it is on the basis on the basis of experience.

    Our problems mean that the problems I can see, the Board has drawn no difference between employees, (Inaudible) where that employee persuaded, a non-employee persuaded.

    To me, there is a considerable difference.

    If the Board in the result of its experience and as a result of a specific consideration as a respective factor, said that the considerations that appeal to them by talking are unreal, I value their judgment.

    But they haven’t done so.

    Dominick L. Manoli:

    But, Your Honor, I think that they —

    Felix Frankfurter:

    Have decided but they haven’t considered.

    Dominick L. Manoli:

    That they’ve considered them in the sense that this is a largely the same kind of a problem.

    Felix Frankfurter:

    But I don’t think it is the same.

    Dominick L. Manoli:

    That the Board —

    Felix Frankfurter:

    The only advisory is why are they the same (Inaudible) this is your way to the fact that one employee talking to another employee is very different when it is an outside story.

    Dominick L. Manoli:

    Well, let me go back to the considerations, Your Honor which were — which underly the LeTourneau case, which I think are significant here, as I indicated before.

    That case seems to rest up on these considerations which the Board about virtue of the record in that case, its experience within, in the facts of industrial life drew mainly that where the employees’ homes are scattered over a wide area, that it is difficult and impractical to reach them whether it be by the employees themselves or by outside organizers for the purpose of distributing literature.

    That in that situation whether its employees who are involved or whether its outside organizers that are involved, the natural and the most effective and the logical place for the distributors of literature to get together with the employees is in the — in the plant area.

    And that —

    Felix Frankfurter:

    Added, considered alternatives, and maybe a problem in burden of proof.In the case of an employee to employee.

    I wouldn’t put the burden of proof on the employee.

    But in the case of the outsider, I would put it on the outsider.

    Dominick L. Manoli:

    The Board does as a matter of fact.

    Felix Frankfurter:

    But has it dealt with this problem so that we can (Inaudible) being spelled out.

    Dominick L. Manoli:

    I cannot refer you to any one single case.

    I think you must —

    Felix Frankfurter:

    You get to perfectly conclude here but with discussion.

    Dominick L. Manoli:

    I — I can only — I can only say this.

    Dominick L. Manoli:

    That the Board’s rule with respect to these cases is discussion of them must be obtained from reading a series of cases all of which have been cited in our brief.

    William J. Brennan, Jr.:

    Mr. Manoli is — could any other solicitor or political parties or religious persuasion or advertising anything go upon this one?

    Dominick L. Manoli:

    No, Your Honor.

    There’s a difference, we think, between those two situations.

    William J. Brennan, Jr.:

    It’s just that — that you make the — a difference, or to leave the solicitors for union organization.

    Dominick L. Manoli:

    And let me indicate why we think there is a difference.

    William J. Brennan, Jr.:

    Well, I — I see your time is up.

    So, I don’t want to take your time.

    I just want to get your statement of this.

    Dominick L. Manoli:

    I was just wondering if I could take —

    Earl Warren:

    You may not (Inaudible)

    Dominick L. Manoli:

    — a little more of my time on — on the — the next case if that’s —

    Earl Warren:

    That’s directly to it.

    Dominick L. Manoli:

    — my argument on this one.

    Earl Warren:

    I would like to know what the difference is, too, if you consider it.

    Dominick L. Manoli:

    Yes.

    With respect to the distributors of literature, they aren’t under the same kind of handicap or difficult when it comes to distributing literature that the union organizers are.

    You mean a political campaigner can go around all the places.

    Dominick L. Manoli:

    To all the homes, that’s right.

    But he is just —

    And your people can’t.

    Dominick L. Manoli:

    No.

    They — because their homes are scattered.

    Very often the organizers doesn’t have the names of all the employees.

    Whereas, in the case of a — in the case of a person distributing new literature he merely has to go up and down the street and pass them out to whoever is coming by or simply go from one house to the next.

    But that is impossible.

    That, of course, cannot be done by the union organizers because obviously in a community such as this as the record here shows the employees homes are scattered within a radius of some 30 miles.

    Then you ought to sell automobiles.

    Dominick L. Manoli:

    Well, I think the same would apply there.

    That he can reach them somewhere else.

    Dominick L. Manoli:

    The — and the distribution of literature of this kind of literature, has a special protection under this statute.

    It is not like, as this Court said in — in the Martin versus Hunter’s if I remember correctly that you can’t lump constitutional rights, or rights which are protected by the statute with the right to sell tea kettles or what have you.

    That there is a difference between the two.

    I’ll stop here, Your Honor.

    Earl Warren:

    Mr. Fisher.

    O. B. Fisher:

    May it please the Court.

    Mr. Manoli here — I couldn’t expect to know how to make an argument in this Court, when this is the first time and it’s been my privilege to appear in this Court.

    The first natural impulse when (Inaudible) what my opponent say was to refer to the Fifth Amendment.

    That was done.

    Intricacies and various considerations were given some time.

    And then it was decided that probably this Court would dispose of this case without regard to the Fifth Amendment.

    However, it is the position of the respondent that the Fifth Amendment is involved.

    Next, not knowing how to present this case in this Court, I attempted to contemplate the — or recognize the position of the Board as taken from its brief.

    And then attempted to think of — of what would be said.

    That doesn’t fit either at — at this time.

    So, even at the risk of taking too much of my time, I do want to point out to this Court some things about the facts that are before the Court, some things in particular and then in general.

    Now, first, I would like to mention that the argument has been made to this Court that these employees a mile out from this country town of Paris, Texas I don’t know just how much judicial knowledge the Court takes, the record shows that it is of town of 21,000 people.

    Hugo L. Black:

    You don’t call that country town, do you?

    O. B. Fisher:

    Yes, we do, Your Honor.

    It’s a county seat town and a county seat lawyer is addressing you which probably account for wanting (Inaudible) by the Fifth Amendment instead of the Labor Law, having engaged in General Practice and not a specialized practice.

    And it’s mentioned in the — the brief of the Board in this case that — that is, the facts are stated in a negative way, so to speak, and this plant is one mile from the corporate limits, that’s true.

    The record may show its several miles from the center of town, if though I will want to give the chamber of commerce that information.

    But it’s unimportant of the question has been asked with reference to what was the situation around this plant.

    The Court showed an interest in just what the situation was.

    And Mr. Manoli correctly told the Court that property just across the road was vacant property.

    That it was probably available to anybody and for any lawful use.

    That addition by me, of course.

    He only stated correctly that there was a vacant property across the road.

    This plant is, it is out in the country, it’s three quarters of a mile to the first road leaving the farmed market road on which the plant is situated that is traversing it east and west when you travel north from the plant.

    Such is the findings in the record.

    O. B. Fisher:

    It’s some two or three miles south of the plant before a road is reached leading east, either or west from the side of the plant.

    Now, it’s been stated that the employees leaving that plant normally drive direct home, directly home without stopping.

    That maybe true.

    If there’s any evidence in this record to that affect it passed my attention.

    I just did — It just as did the evidence in the record which is brought out in the brief of the Board in this case or (Inaudible) that this company policy or company rule not only applies to union organizers and outsiders but it’s made to apply to their own employees.

    I didn’t remember that until it was noted and then I do find that representative of the company on the witness stand was asked of the trial examiner or of the counsel for general counsel.

    Is it not a fact that you would object under your company policy to permitting the employees to drive to the — to the distribute literature on a parking lot because it would litter it up.

    And he gave an affirmative answer.

    That was something insignificant.

    In this case until it reached the — the Appellate Court and this Court.

    It had no significant in the sense of time.

    If the evidence shows that those employees drive directly home from the plant why, it was insignificant at the time and it still insignificant.

    The union has accessibility or has access rather to the employees of this Babcock & Wilcox plant at Paris, Texas on the streets, in their homes, at meeting halls and at all the other places that are normally found in a county seat town of 21,000 people.

    Likewise, they have all the area between the plant and Paris, Texas and all of the area south and east and west to attract the attention of the employees if they should really and energetically desire to do so.

    The record shows that the plant is situated in a farming and grazing community.

    The land is either in cultivation or it is in pasture land..

    So, all of that space around this approximately 100 acres that is occupied for this plant is just as available to the union as it is to any other individual.

    The record in this case shows that the union did reach the employees right at the plant gate and in mentioning that we certainly do not want to admit to this Court — admit to this Court that we agree with the contention that it’s necessary to carry out for the purposes of the law that the organizers be able to meet with and see and discuss matters with the employees right at the company gate or in the immediate vicinity of the plant if such is true.

    Nevertheless, they did see them there on three occasions.

    There were at that time approximately 500 employees.

    On one occasion they delivered literature to 325 of the 500 are to — are delivered 250 pieces of literature to 345.

    On another occasion they delivered a lesser number of pieces of literature up to 250.

    And on another occasion some different number all of which is set out in the brief in this case.

    Now, they were able to reach the employees in the immediate vicinity with the plant, but we don’t want to capitalize that if you please.

    Of course, our position is that the maternal case is not a kin to the case that’s now before this Court that it’s different, a proposition all together as has been indicated.

    Mr. Manoli, has said now that the Board does not consider this case different from the LeTourneau case.

    Such is the sense of the brief of the Board when it’s taken as a whole.

    So that seems to be issue on number one maybe that before this Court at this time.

    If it is we think we are prepared and we think we have demonstrated that we are prepared to show the difference between this case and LeTourneau case.

    It has been mentioned in colloquially with Mr. Manoli.

    O. B. Fisher:

    First, there is an outside organizer not only involved here, there you were dealing with the employees of the plant in Paris, Texas and as we understand property rights, we look upon those employees not only as being employees, but they are persons at the plant, there are licensees there.

    They are there to do their work and the fact that they are there working doesn’t mean that they will cease breathing.

    They’ve ceased eating, they ceased any usual activity of life and nor does it mean that they will lose all their interest in citizenship when they go to work there.

    Therefore, we go along with the idea that no restriction should be put upon their activity in the plant regardless of what it is, unless it interferes with production or discipline within the plant.

    There is nothing like that in this law suit.

    We are simply dealing with the question that I think is fairly and squarely presented by the Court of Appeals in its opinion and that is whether or not on outside organizer shall be accorded or permitted to go on to the premises.

    My authority, not of any constitutional right but by authority of the decision in the LeTourneau case.

    That is what the Board seems to base its position upon here, now.

    And it’s our position that the Board has misconstrued and misapplied of what this honorable court intended by the LeTourneau decision.

    It’s been said in oral argument here that not — that the immediate vicinity of the plant as stated in the brief of the Board is the most appropriate and the most desirable place to distribute union literature.

    But now, it’s carried one step further and is argued that the plant area itself is the most appropriate place.

    And it’s also mentioned that in many instances the union organizers have difficulty in communicating with employees because they don’t have their names.

    That’s not this case now before this Court.

    The evidence shows and the record shows that the union had communication with the employees.

    That it wrote letters to the tune of 100 or more on different occasions to the employees of the company at page 36 of the brief for respondent, I believe.

    The facts in this case when brought to a quick conclusion are that the union organizer sought to avoid going to the homes of people, avoid or sought to avoid seeing them on the streets, sought to avoid going to probably call him on the telephone and sought to avoid writing them letters or by seeing him at the gate of the plant.

    Now, then after that was done and a congestion resulted there being a public area between the plant property and the travel portion of highway.

    And after a letter had been written which is here say insofar as we’re concerned telling the union that it was dangerous to distribute literature there he terminated such activity.

    This case, this matter in this case received very little attention at the outset.

    This respondent was charged with 16 separate ungrounded violations of law, so to speak or acts of unfair labor practice.

    The Board determined that it was not guilty of any of the 15.

    This was the 16th and the last and it determined that it was guilty of an unfair labor practice because it did not give permission to the union to distribute a literature upon its premises.

    There is no question, —

    Earl Warren:

    Just proceed Mr. —

    O. B. Fisher:

    Thank you, sir.

    There — there is no serious question of inaccessibility in this case.Or there is no question of discrimination.

    The — there’s no history of unfair labor practices.

    There is no history of any anti-union campaign by the company.

    The company, under this record, and under the findings has occupied a hands-off policy.

    It was charged with surveillance.

    O. B. Fisher:

    It was charged with interrogation of employees and those charges were dismissed by the Board.

    Felix Frankfurter:

    Would you mind — would you mind telling us without indicating whether you are right or wrong —

    O. B. Fisher:

    I’ll tell you anything I know, sir.

    Felix Frankfurter:

    As a matter of law (Inaudible)

    O. B. Fisher:

    Thank you, sir.

    Felix Frankfurter:

    — in spite of that the evidence that are important, apart from merely legal rights (Voice Overlap) —

    O. B. Fisher:

    It certain — it certainly is, sir.

    Yes.

    Oh, I’m glad to respond to that question in — in my way which will certainly not be in any technical fashion, I fear.

    As a country lawyer, my interest in this case is protecting of what I consider a valuable right and the necessary element of freedom and democracy.

    If we do not have the right to own and control property subject to reasonable regulations, why, then we have lost a lot of our citizens here, a lot of that that inspires or impels us to get up at morning and go to work and to work late at night.

    We have lost a lot of what it takes to energetically going about doing things.

    That would be number one maybe.

    Number two, because I do not think that it’s fair to call upon one man whether it be Babcock & Wilcox’s company with a country plant out in Texas or whether it be an individual to furnish his facilities and his property to some other person or some group of persons to operate on.

    And that does what this sort of thing would lead to, if we are compelled, not we, but I mean, if the company is compelled by the Board to let this group men in.

    Certainly, the company will be compelled to let another group in.

    And certainly then we will be furnishing an arena for the operation of two or more unions probably, with follow up that you have the sanction and disturbances among the employees.

    The reason I am here, is because I think, a happy situation exists down there at this time, I fear that an unhappy situation will exist if we do not sustain this court of civil appeals in this action that refused to enforce this order.

    I think it’s a human right as well that we’re defending and I’m glad to have come here for that purpose even though there — there’s nothing involved except just whether a man goes on there and hands out some papers.

    I’m not concerned about the littering we read about perticular but we can clean that up.

    But there’s no way we can regain that right we have lost if the property is taken away from us without due process of law or without just compensation.

    I thought it would be if — if that parking lot is to be dedicated to an arena for union activity and if we the people of the United States should desire to furnish that arena, then we should enter a condemnation proceeding against my client.

    Take the property and compensate the — the client for it and invite the union representative and the employees there.

    But we have (Voice Overlap) —

    (Voice Overlap) — what do you think (Inaudible)

    O. B. Fisher:

    (Inaudible)

    In other words, you think the union ought to rent a hall.

    O. B. Fisher:

    That’d be fine or if we are dispose to why, so if the Government wants to rent one for them, that’s all — that’s all right, too.

    We’ll furnish a town hall.

    There are town halls (Inaudible) in Paris.

    O. B. Fisher:

    It may not be in the record.

    I don’t want to get out of the record, but we have everything with a town that size has.

    And there are plenty of places to meet, Your Honor and Mr. Justice Minton.

    And we just don’t feel obligated to permit these people to come in there on a profit/loss company.

    We’re not going to do it until this Honorable Court tells us we must do it.

    Hugo L. Black:

    Any other — are there any other practical reasons why (Inaudible)

    O. B. Fisher:

    What I know —

    Hugo L. Black:

    Except those you have mentioned.

    I mean —

    O. B. Fisher:

    Yes, sir.

    That there are others, Mr Justice Black.

    I don’t know what the consequence would be.

    I know what the — the relationship is between an invitee or a licensee or a grantor or an employer, but just what is the relationship between this plant ownership and the union organizer if this court should require that the company is permitting to come in there?

    He’s a licensee of the Board or of the Court.

    He’s coming in there, I don’t know what the company liability would to him.

    I don’t know how much duty to protect him we’d have.

    I don’t know whether he if he stumbled on a railing and broke his leg, we’d be liable in damages.

    Hugo L. Black:

    It has a (Inaudible)

    O. B. Fisher:

    Yes, sir.

    There are some, very well (Inaudible)

    I love that sort of (Inaudible)

    O. B. Fisher:

    Yes, I think they’ll — I’ll think they’ll show me.

    They’re all in the map.

    If he stumbled over that why, I don’t know what the company liability would be but just this sort of thing leads to so many things that I think at this moment before this Court comprehend even a small part of them.

    Because I — I may not be thinking now just like I think in (Inaudible) Texas and under these circumstances.

    But we do want to urge our position upon the Court and I have to outline here what I want to say and haven’t said any of it.[Laughter] First of all I want to make it brief.

    First is I gave you the facts.

    I haven’t done all of that but I’ve given you part of them.

    They’re in the brief and in the record.

    The Board’s position is to stand in old LeTournea as far as I am concerned.

    O. B. Fisher:

    Our position is that LeTourneau doesn’t stand for the proposition that the Board is now urging.

    That strangers are not involved in LeTourneau but they are here.

    And that even if — if LeTourneau, if all of the reasoning in LeTourneau applied why, it wouldn’t mean that this order of this Board should be enforced.

    If this order is enforced it will be an extension of the LeTourneau reasoning that we fear will later result in disturbance and affecting of affecting of people, employees and persons who were not employees, whether they’d be owners of farms or owners of homes in the community where this plant is located.

    I don’t believe there are people.

    And I’m not talking about my client, the company, but our people would understand just why it was that the law would require a man to open his farm, his backyard or his front porch to a stranger.

    All of such claims they’re reasoning, how it’s offered here.

    That is that, the union cannot readily, if the Court please, just cannot readily, that’s the most defining amount and if they cannot readily communicate with the employees of the plant property and that is expensive.

    And that the whole extent of this finding.

    Thank you for listening to me.