National Labor Relations Board v. United Steelworkers of America, CIO

PETITIONER:National Labor Relations Board
RESPONDENT:United Steelworkers of America, CIO
LOCATION:Philadelphia Board of Public Education

DOCKET NO.: 81
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 357 US 357 (1958)
ARGUED: Jan 29, 1958
DECIDED: Jun 30, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – January 29, 1958 in National Labor Relations Board v. United Steelworkers of America, CIO

Earl Warren:

Number 290 or 289, National Labor Relations Board versus Avondale Mills.

Mr. Manoli, you may proceed.

Dominick L. Manoli:

May it please the Court.

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

Like the preceding case, this case deals generally for the right of employees to communicate with fellow employees concerning unionization on their employer’s property premises.

It differs from the other case as I indicated in the other case, that here we have to do with oral solicitation as distinguished from distribution of literature.

There’s a further difference between this case and the other one is that here, Section 8 (c) plays no part in the resolution of this case.

As I indicated earlier, and as Mr. Feller has also confirmed —

Earl Warren:

Does that reduce it to the question of whether there is littering or not littering?

Is that the only distinction you make between the — the solicitation and the literature?

Dominick L. Manoli:

No, Your Honor.

We say in connection with the distribution of literature that the basic consideration for prohibiting employees from distributing such literature in the plant is not only the littering, but also the further fact that there are other avenues available to the employees for the distribution of such literature outside the plant.

Hugo L. Black:

I think this Court has said several times I think that at least on the constitutional level, that the fact, if there are other avenues to which a person might talk or might spread his views in writing cannot justify discretion of his views in one place.

Dominick L. Manoli:

Your Honor, that is true.

That is true.

It said that even one of our own case, Republic Aviation, but we think nevertheless, that these are problems of accommodation.

And that is not — I was certain it’s not an irrelevant factor and there is nothing to preclude the board, we think, to give it considerable weight.

And you can’t fit all of these cases into a nice logical pattern because each one of them involves some kind of an accommodation of conflicting interest and the — the result that you reach in one case may not square logically with the result in some other case, because I think it’s in the nature of the problem.

These are accommodation problems.

Hugo L. Black:

I can understand that.

If you are saying that by reason of the ownership, in fact of the wording of that, and I don’t — wanted to interrupt you, they have a general all inclusive rule that says, talking loud is bad in this plant.

They won’t have it.

Distributing literature is bad in this plant, they won’t have it.

But I didn’t understand you putting it on that basis, your distinction between delivering any question that the Chief asked you.

Dominick L. Manoli:

No, I thought the Chief was asking me as to what the basis of the distinction between the two is, solicitation and distribution.

Now, I’ve indicated with respect to distribution of literature, the rule rest not only upon the question of littering but also on the availability of other channels for the distribution of such literature outside the plant.

Now, as I will —

Hugo L. Black:

But I suppose it could be shown that the employer had implemented to rent a hole in town.

There are plenty of holes available and that he could do that, would that have any — would that have a relevance here?

Dominick L. Manoli:

Oh, I suppose there’s nothing (Voice Overlap) —

Hugo L. Black:

As he was doing the distributing himself and — or speaking himself and he just claimed that he shouldn’t be allowed to do it so he could rent a hole.

Dominick L. Manoli:

Well, it’s his own property after all, Your Honor.

The plant is his own property.

In fact, that he may rent a hole somewhere else should not curtail his proprietary control over the property after all.

I don’t think we could ignore the fact that it’s his property.

Hugo L. Black:

Yes.

I understand that but you’re talking — are you talking now by the general — are you talking about one where he limits the kind of information to be distributed in that plant, according to what he wants distributed?

Dominick L. Manoli:

I’m talking about the rule which prohibits the employers from distributing literature either pro or contra union, that he may prohibit them from doing it within the plant, even though he, himself, uses his own plant premises for the distribution of his own literature.

Hugo L. Black:

On the same subject?

Dominick L. Manoli:

On the same subject.

That’s right.

Felix Frankfurter:

Are you — did the Board — I ought to know, but I don’t.

I ought to appreciate it.

Did the Board in these two cases make a general rule to the effect that the employer may use his plant premises, for saying what he’s allowed to say, otherwise.

And at the same time quite unequivocally restrict the employee to another available, practically available forum or locals of communication.

Is that — is that what I’m supposed to take out of these two cases if the rule of the Court — of the Board?

Dominick L. Manoli:

I think that’s the upshot of the Board decision in NuTone, coupled with the Board’s decision in Livingston Shirt on which this Court — on which the Board in this case relied.

In Livingston Shirt, if I may explain, there, the employer had addressed his — the employees on company time and a union asked for an equivalent opportunity to address the employees on company time.

The Board not only stressed the protected character of the employer’s speech that would — wasn’t of course, it carried out time.

But it also stressed the fact, the union had available other places for reaching the employees for this purpose than the employer’s property.

And as I say in this NuTone — in the NuTone case, the first case we’ve got you arguing, the Board does rely upon that, the fact that it is the employer’s property and it also relies upon the availability of other ways of distributing literature.

It — well, let me say this.

It relies upon the Livingston Shirt, which I think permits us to make the full blown argument that the availability of other avenues for the distribution of literature away from the company’s plant is an additional factor which the Board may take into consideration and say concluding, that the employer’s use of his own property doesn’t require him to give a similar opportunity to his own employs to distribute literature within the plant.

Felix Frankfurter:

Now, this — this problem only arises in plants which either are not unionized, or in which there is a contest between, is that right?

Dominick L. Manoli:

Yes, sir.

Felix Frankfurter:

What I want to know is whether in the writings of the Board, no account is taken of the inevitable or the argumentative friction there arise in having that debate, joining the union or not joining a union, joining this union as against that union, or leaving this union and going to that union, whether that is not a factor that the — Board has considered, or is that included among the items of what does or does not we sought as production.

Dominick L. Manoli:

The Board does not give weight to that consideration with respect to the distribution of literature.

And it doesn’t give weight to that factor with respect to oral solicitation during non-working time —

Felix Frankfurter:

Yes.

Dominick L. Manoli:

— because often, the employees are permitted to discuss religion, politics —

Felix Frankfurter:

I’m not talking about non-working time, working time, how about working time?

Dominick L. Manoli:

Well, now, the rule is, the Board is held and the courts have approved this.

The rule is that the employees — that the employer may forbid the employees from engaging in oral solicitation during working time.

Now, the question in this case is whether such a rule becomes invalid.

And therefore, an improper basis for the discharge of employees who engaged in such solicitation during working time if the employer himself engages in coercive, or anti-union solicitation during working time.

Let me give the facts that give rise to this, for this issue here.

Here, in sometime in 1954, the Textile Workers union sought to organize the company’s employees.

Shortly thereafter, the company summoned a number of employees who were suspected of having solicited other fellow employees to join the union during working time and they were warned.

They were warned that it was against the company’s rules for them to engage in union solicitation during company time, during working time.

And that in the infraction of the rule would result in their dismissal.

Contemporaneously with this warning, the company also added a further warning, that if the union succeeded in organizing the plant, the plant would close down.

Shortly thereafter, a number of the company’s supervisory personnel engaged in what I think maybe fairly characterized as a widespread campaign against the union during working time.

During working time, these supervisory people approached various employees at their work.

They interrogated them concerning their union membership.

They solicit them to withdraw from the union.

They warned them that unionization of the plant would result in closing of the plant, and further warned them that they would lose their jobs and other benefits.

While this was going on, the company discharged two employees, allegedly for violating the rule against solicitation during working time.

And the record shows in fact that these employees had solicited fellow workers to join the union during working time.

And the one — one man was discharged because he had solicited the elevator operator as they were going up and down the elevator, the operator of the elevator, and the other one — the other one have solicited a fellow employee to join the union, who the fellow employee was at work, but the man who was doing the soliciting, a man who was discharged was off work at the time.

So I say the company discharged these two men allegedly for violating its rule against solicitation during working time.

The Board found that the employer had violated the statute by his coercive statements and conduct namely, the interrogation of employees concerning memberships, soliciting them to withdraw, the threats of economic reprisals if the union succeeded in organizing — in organizing the plant.

With respect to the two employees who were discharged, the Board found that their discharge was discriminatory within the meaning of the Act.

That they were discharged, in Board’s view, they were discharged not for the violation of a valid no-solicitation rule, but rather, that they were discharged for conduct, otherwise, protected by the statute.

And the basis of that was that the — in the Board’s view, the employer by his own action, by his own coercive anti-human solicitation during working time had in effect invalidated the rule.

And that therefore, the employer could not invoke the rule against the employers who engaged in similar conduct without violating the statute.

Earl Warren:

Now, wherein does that differ from the factual situation in the case you’ve just been starting with?

Dominick L. Manoli:

That differs —

Earl Warren:

And my point being this if there were unfair labor practices there that amounted to coercion, it fired employees because of union activities and so forth, how is it that you can so easily separate those from the — from this rule that he had broke himself in that case, and then bind them together so closely in this case?

Dominick L. Manoli:

Well, I think that largely depends I suppose upon how these issues have sort of come up the ladder to this Court.

I think it is an independent matter.

Dominick L. Manoli:

The Board might have said in the other case, that in view of the employer’s other unfair labor practices, we conclude that his invocation of the rule — again, in the prohibition against the employees was of a discriminatory character.

Conceivably might have said that, of course, we would have been faced with problems of what Section 8 (c) does to that since the employer’s speeches were not of a coercive character.

But that is not the way the issue has come up as I say.

The issue in — in that other case has finally boiled down to this very narrow one of whether standing alone without regard to the surrounding circumstances, the employer’s naked prohibition against the employees’ distributing literature within the plant is bad when he himself distributes literature within the plant himself.

Here, the case has not come up that way.

What we have here is unfair labor practice and the validity or invalidity of the rule must be determined as against those unfair labor practice as I hope to show in just a moment.

Now, continuing with the Board’s order in this case.

The Board required the employer to refrain from engaging the unfair labor practice which it found.

It required the employer to reinstate these two employees and file it.

It required the employer to cease enforcing the rule against solicitation and the discriminatory action that the Board found had been enforced.

The court below approved the Board’s findings that the employer by his statements to these various employees during working time had engaged in conduct prohibited by the statute.

The court below, however, rejected the Board’s findings that the discharge of the two employees for allegedly for violating the rule against solicitation was discriminatory.

In the Court’s view, there was no basis in the record so except for concluding that the rule had against solicitation during working time by the employees had been invalidated by any action of the employer.

And this purpose was bottomed upon the subsidiary premise that there was no evidence in the record which indicated the employer had ever permitted any solicitation of any kind in violation of the rule.

Now, initially we think that the Court has misconceived — has misconceived the nature, the legal significance of the action of the — of the supervisory employees approaching these various employees during working time and asking them in effect to abandon the union.

As I have indicated, there was a widespread effort on the part of supervisory personnel to persuade the employees not to join — or to leave the union and not to join it.

But it’s more than persuasion, it was of a coercive character.

The Court of — and the court below of course agreed in accepting these findings, agreed that this was in violation of the statute and that it was of a coercive character.

And of course, Section 8 (c) plays no part.

But we think, and this is in — this is important to our case, we think that what the Court had — has failed to perceive that the action of the supervisory personnel in going to these various employees during the working time constitutes solicitation, just as much in violation of the company’s rules as to the action of the employees who were discharged when they were soliciting for the union.

Now, with that premise — with that premise, I think we come into the heart of this case namely, whether employer’s enforcement of a rule of this solicitation, by the employees during working time, becomes discriminatory.

When he enforces that — it would become discriminatory when he himself violates the rule in a manner that’s not protected by Section 8 (c).

The Board as I say, answered this question in the affirmative.

And the court below disagreed for the reasons that I’ve indicated.

And I do say that I think that the court below if I may use the expression went off the track because of its initial misconception, its initial misconception of what the supervisory employees were doing.

If they were violating the Act, that is the rule against solicitation, just as much as the employees.

Now, as I indicated in the other case, the basis, the accommodation which has been worked out under the statue with respect to oral solicitations is that the employer may permit the employees from engaging in oral solicitations during working time.

And the basis of that rule is, that the employers’ interest in the efficient running of this plant and plant discipline, compels that the employee’s interest in the effective communication of their ideas concerning unionization, that the employer’s interest should be paramount, it should be paramount to that — to the employees interest in communicating among themselves with respect to union matters.

Now, we believe, we believe that once the employer himself has engaged in coercive anti-union solicitation to — during the working time, he has destroyed the basis of the accommodation.

Now, I know the question is, “How do we distinguish this case from the other case?”

Dominick L. Manoli:

The distinction is this.

That the — that the accommodation in the other case rests on a much broader basis.

It rests upon the basis as we see it.

Not only the — of the — on the basis of the employer’s interest in preventing his plant from being littered but also the further consideration that there are other avenues of communication available to the employees for the distribution of literature.

But here, the accommodation which has been worked — which is been worked out under the statute with respect to oral solicitation rest upon the consideration of the employer’s interest in the efficient running of his plant requires the employees not to be permitted to engage in such solicitation during working time.

But we said, that once the employer engages in that kind of conduct, he didn’t think — as a matter of law we think manifest that he is no — when he enforces the rule against the employees, that he is no longer prompted by considerations of efficiency, but rather, that the dismissal of those employees rest not upon the violation of a valid plant rule, but rather upon activity which is otherwise protected by the statute.

And in that respect, we think that this case in that posture, this case is not unlike the Republic Aviation case.

In the Republic Aviation case, the employer had prohibited the employees from engaging in union solicitation during non-working time.

Of course, there is that difference between that case and this case, during non-working time.

But the Court and one or two employees I believe were discharged for having solicited during non-working time.

The Court said that rule was too broad.

It was invalid.

And therefore, even though the employer may not have been prompted by any anti-union advice nevertheless, when he discharged those employees on the basis of an invalid rule by respect to solicitation, the discharge, necessarily as a matter of law rested upon — was based upon the employee’s exercise of rights protected by the statute.

So here, we say that the employer’s conduct with anti-union solicitation during the working time, if that invalidated the rule, and the rule being invalid to discharge if these employees rest not upon the violation of a valid plant rule, but rather upon activity otherwise protected by the statute.

Earl Warren:

Mr. Constangy.

Frank A. Constangy:

May it please the Court.

I think in the statement of counsel and our own version of the facts arises what we contend as actually the issue here.

This is substantial disputed fact.

There was a substantial dispute of fact between the parties, between the Board, and its trial examiner, and by the court below in its evaluation of the Board’s findings of fact.

That dispute permeates this matter and brings the matter here.

Unlike the no-solicitation rule, I mean, the no distribution rule, we think insofar as these matters have been consistent in their holding.

The rule on the solicitation has been relatively consistent for a long time.

The rules on solicitation arise out of the Peyton Packing case, which was affirmed by this same Court from which this certiorari was taken and was approved by this Court.

The Peyton Packing case in the last analysis adopts the premise that working time is for work and that quoting exactly with — from the language as approved by this Court, “It is therefore within the province of an employer to prohibit and enforce, to promulgate and enforce a rule, prohibiting union solicitation during working hours.

Such a rule must be presumed valid in the absence of evidence that it was adopted for discriminatory purpose.”

Fundamentally, we get to this situation here, this plant doesn’t go the whole way if the Court please.

This plant has only one limitation insofar as its employees are concerned.

And that — and that limitation is that they may not engage in solicitation during the time that they are actually supposed to be at work, or of people who actually is supposed to be at work.

That means that they solicit, they can talk about the union, they can talk about anything else, during all of the time they’re in the plant except those times when the nature of their job and their duties require their attention to their job.

Now, the evidence in this record although the Board disregarded it, the court below recognized it, was that this room was a rule of some many years standing.

Frank A. Constangy:

And that it had been invoked and applied in matters other than union solicitation.

It was undisputed evidence that a man was reprimanded for soliciting a series of signatures on a petition to get his son parole from imprisonment long before this union question.

And he was warned then that it was against the rules to solicit during working hours.

Now, what happened in very simple short statement was this.

This union began a very active campaign.

It gave out and early in November of 1954, some 600 cards according to the evidence to get signed up.

It became apparent to the supervisors that the soliciting of signatures on these cards were interfering with production.

There was testimony about men being grouped up in the hours.

There was testimony about people leaving their jobs and going to other departments.

And the respondent in keeping with the rule of 60 years standing and a practice of 60 years standing, made the employees aware of the rule in exactly the same way it made them — made them aware of the other rules.

It notified the people, various people, that the rule is that you may not solicit during working hours, and you may not solicit other people who are working.

And we are putting you on notice that if in the future you violate that rule, you would be subject to discipline.

In the case of the two men that are ultimately before this Court, one man on the evening before engaged in solicitation that involved his leaving his own work, in an operating machine that he had to cut off to leave according to the testimony, and going across the room to another employee, several times during the course of the evening, where that employee was at work, and soliciting him to sign a union card.

The testimony was incidentally that that employee finally signed it, so he leave him alone.

This was reported to his supervisor.When he came in to work early the next shift, the supervisor called him in and called his attention to the rule, and told him that future conduct of this sort would subject him to disciplinary discharge.

The evidence shows that during that very same shift, he then solicited another employee, first, while the employee — while the man discharged himself was at work.

And then, after he have gotten off from work and the man that succeeded him had come to work, and was working, to again sign — to sign a union card, and he was discharged.

In the other case, although counsel belittles the — the facts in terms of soliciting a man while riding on the elevator, if the Court please, that was not the fact at all.

It was a man who had been reported by one supervisor as leaving his department to go into another department to solicit.

As a result of that report, he was called in and cautioned about this rule and warned that future violation would lead to his discharge.

Within the same week, this employee went again into this department, and stopped the man who operates an elevator which isn’t a passenger elevator at all, it’s a freight moving vehicle, at a place where neither he had any business being and where the employee should not have stopped, to sign a union card and to help him solicit other people in this employee’s department, to join the union.

This was observed again by the supervisor and reported and he was discharged.

In the second case, the man in his own testimony admitted it.

In the first case, there was some denial but there was a credibility finding.Incidentally, that was not accepted to that the denial was not believed.

Now, in those cases if the Court please, independently of the no-solicitation rule, an employer has a right, we submit, to say to an employee when you are supposed to be at work, stay on your job, don’t engage in extraneous activity during that period whether it’s union or any other union or — or non-union, or any other activity.

And if an employee disregards that instruction, under the Act itself, under the decisions of this Court, an employer has a right to discharge for that independently of this issue.

Getting further into this matter, into the question of solicitation if you please, if the Court please, the fundamental here, the basic reason for the existence of an industrial establishment is the work time, it’s work time of the employee.

And that is the only thing.

And that is the only time that this respondent has restricted solicitation.

Now, counsel argues that the Board found that the respondent engaged in solicitation in work time itself and that that was discriminatory and violative of the Act.

Frank A. Constangy:

In the first place, if the Court please, that isn’t what the Board found.

The Board found that because in each version, the employer didn’t invoke his rule until after the union began soliciting.

And two, because the employer didn’t invoke its rule by posting a notice on the bulletin board, or some other method that the Board approved of.

And three, because the employer permitted talking of any kind during non-work time.

And four, because the employer didn’t show the extent to which this solicitation interfered with production, that the respondent invoked its rule, not for a business purpose, but for a purpose of stopping or interfering with organization.

The trial examiner found to the contrary and the court below in the evaluation of the evidence, found that the boards inferences which were contrary to the evidence were not supported by substantial evidence in the record.

And the Court found one that there was no validity to the finding.

That this respondent invoked its rule for the purpose of interfering with the employees’ rights under the Act rather than for a legitimate business purpose.

Felix Frankfurter:

Is it your contention that we cannot look back of the Court’s finding under those circumstances?

Frank A. Constangy:

Oh, I think Your Honor, this Court can look back of it, but I think this Court has said in the excess that the primary responsibility of determining whether a finding of the Board is supported by substantial evidence, is a function of the Court of Appeals.

I’m satisfied that in this Court’s discretion, it could review a factual finding too, but it has said in the Universal Camera case that it will not.

Felix Frankfurter:

You — do you regard this as a case coming under our Universal Camera (Voice Overlap)?

Frank A. Constangy:

Yes, sir.

I think there is no question that the ultimate issue that was raised in the court below, entered his appeal from, is a question of whether or not this record contains substantial evidence to support certain inferences the Board has drawn, because everybody in this case, if the Court please from the trial examiner right after the Board’s brief in this Court, premise this case on the rule in Peyton Packing Company.

And the Board contending that the facts bring it within the exception to the — to the presumption, the court below, the trial examiner, and of course the respondent contending that the facts do not meet the — the exceptions to Peyton Packing.

In this case, the Court agreed with the trial examiner and disagreed with the Board.

Frank A. Constangy:

In part, it disagreed with the trial examiner in part.

It agreed — disagreed with the Board in part.

You see, the trial — there were three discharges in this case originally.

The trial examiner held all three of them were valid.

The Board held that all three of them were illegal.

The Court held that one was — was illegal and two were valid under the circumstances before the Court.

The other factor in this case which we think is extremely significant if the Court please, is the fact that insofar as the so-called 8 (a) (1) violation is of concern.

The testimony in the record and incidentally respondent did not accept and do not resist enforcement in the court below of the findings of 8 (a) (1) except insofar as it related to the discharges in the no-solicitation rule.

But the court below recognized as the trial examiner recognized that there must be some reasonable relationship between this alleged coercive and acts in violation of 8 (a) (1) and the so-called no-solicitation doctrine.

There were several cases.

There are not too many of these instances that involve half a dozen supervisors conceivably with over 5000 employees involved.

There were several instances of interrogation.

Incidentally as the Chief Justice pointed out by his question, it was exactly the same sort of interrogation that was involved in the NuTone case.

There were several instances of conversation, in which in supervisors expressed opinions which taken in context were construed to be threats, threats that conceivably the plant might close.

Frank A. Constangy:

There were one or two instances of very, very close statements where the trial examiner in effect said that taken as stated, it was not a violation of the Act but in — the employee could’ve construed it to be a threat.

Now, insofar as the two employees here are concerned, the two dischargees, there was no-solicitation of them to do anything except to stay on the jobs.

And that they refused to do and they were disciplined for it.

And there was no dispute about that.

But if an employee must establish as the Board contends here, one, not only that there is some business purpose in it’s restricting work time to work, but also must establish the extent in a manner satisfactory to the Board that these activities interfere with work and must promulgate the rule in accordance with some set formula that the Board favors and must thereafter be restricted from interfering with virtually a carte blanche authority of employees to walk off their jobs when they please, to engage in other activities, simply because some supervisor has gone over the line in some point.

Then, it seems to me that the Board has undertaken not to administer the act but to set a whole philosophy of industrial operations of that kind.

Now, if the Court please, in the Board’s orders enforced by the Court, there are specific findings that the employer shall not do this, that or the other.

That he shall take certain affirmative actions.

And if he fails or if he violates him again, he is obviously subject to contempt.

Now, those unfair labor practices as found by the Board and as supported by substantial evidence, or by virtue of the decree of the court below rectified, he is prohibited, he is required to make the necessary posting that he will cease and desist from this conduct and he is prohibited from engaging in it in the future, including, if the Court please, a prohibition against the supervisors soliciting employees to withdraw from the union.

There was one incident.

An incident that the record shows he was not doing work outs of a conversation between a supervisor and an employee in which he said to the employee in substance.

Don’t you think you ought to get your card back?

Or, don’t you want your card bank?

The Board within its province of interpretation has held that any solicitation of withdrawal from a union is a violation to the Act.

Whether I accept that premise or not, the respondent did not accept to it insofar as a petition for enforcement is concerned.

And these orders enforced by the Court prohibits the employer and his supervisors from soliciting withdrawals from the union.

What did the Board’s order do to you in respect to solicitation beyond what you’ve just described?

Frank A. Constangy:

The only other thing it did was in it in effect said that you may not enforce a no-solicitation rule in the same discriminatory manner as you have.

That — that isn’t quite the language.

But the implication of it was that if you’re supervisors, at any time violates Section 8 (a) (1) you may not impose a no-solicitation rule, that’s the — the import.

In other words, the Board’s order was predicated entirely on his findings of the specific abusage that had —

Frank A. Constangy:

That’s right.

If the Court please, insofar as the application of the rule concern us, the court below held in one of the three cases it — before it that the employee did not apply the rule in a legal manner.

It held that this man, I think his name is Jones, as I recollect.

Jones was discharged not because he violated the no-solicitation rule, because he literally didn’t solicit during working hours.He — he actually — according to some disputed testimony, asked a man of giving back the card that he’d given him outside the plant that was signed.

But in this instance, the evidence show that a man or personnel clerk had been sent by the supervisor to Jones to ask him to refrain from the union activities.

What is — what is there in this case beyond the question as to whether we should apply the Universal Camera rule or whether we shouldn’t?

Is there anything else?

Frank A. Constangy:

As far as I — I see it, if the Court please —

As you state it, I can’t see anything (Voice Overlap) —

Frank A. Constangy:

— the Board has — has taken in its brief, in a completely opposite position here than its taken in NuTone within its decision in order, all the Board has done is raised the factual questions covered by Universal Camera.

I can’t you see what relationship this case has to the other one.

Frank A. Constangy:

I — if the Court please, we can’t see it either because here we have a rule.

The Board has not in — in Avondale annunciated as Mr. Justice Frankfurter asked counsel a minute ago, some new general rule, the rule in Avondale is the Peyton Packing rule.

And the Peyton Packing rule is purely an evidentiary matter as to whether or not a certain conduct brings it within the exceptions, or brings it in the presumption of the validly of the rule.

Felix Frankfurter:

Supposed it was suggested to you that what the Court — what the Board has done is to divide the rule of law from the fact that it found.

What would you say to that?

And therefore, what is in question is, the rule of law that when coercion been established to working time talk, that — that — as it were, vitiates the whole restrictions of — upon the employees.

Frank A. Constangy:

May I answer that two ways, if Your Honor please.

Felix Frankfurter:

That —

Frank A. Constangy:

First of all, I think the Board conceivably could have — could evolve such a rule of law, but I still think it would be subject to a good many questions both as to its authority and the factual basis of it.

Felix Frankfurter:

Well, if you would go to the merits, but I’m — I understand that.

Frank A. Constangy:

Yes, but —

Felix Frankfurter:

But —

Frank A. Constangy:

Incidentally, I would like to point out that obviously the Board hasn’t evolved the rule of law because it supplied an entirely different rule to the same substantial facts in NuTone as Avondale.

In Avondale, you have discriminatory discharges.

In NuTone, you have discriminatory discharges.

In Avondale, you had discriminatory or illegal interrogation.

In NuTone, you had the illegal interrogation.

You have other violations of Section 8 (a) (1) of the Act.

Yet, in Avondale, in con — dealing with the essence of industrial management, work time, the Board says that if you do these things, you are deprived of your right, to hold the man on his job during work time.

Felix Frankfurter:

But it’s — holds — as I understand it, the Board insist that in the Steel case, NuTone, these were non-coercive use expressed by the employees.

Frank A. Constangy:

But, if the Court please —

Felix Frankfurter:

I’m not (Inaudible) that the (Voice Overlap) —

Frank A. Constangy:

In the NuTone —

Felix Frankfurter:

— is erroneous of that.

I’m trying to find out the distinction.

Frank A. Constangy:

There is no distinct — because also in NuTone, there was a no-solicitation rule, which somehow and other in the shuffling of the case ceased to be an issue.

Felix Frankfurter:

But —

Frank A. Constangy:

But the Board didn’t say in NuTone, that your no-solicitation rule is illegal.

Felix Frankfurter:

But what the employer’s to be — in the Board’s findings, did it find that the manner in which it availed itself of talk using it’s own word, was not a anti-labor practice.

Frank A. Constangy:

In — in NuTone?

Felix Frankfurter:

Yes.

Frank A. Constangy:

That only insofar —

Felix Frankfurter:

(Voice Overlap)

Frank A. Constangy:

— as the distribution is concerned.

Yes, you’re your Honor.

Felix Frankfurter:

All right.

Frank A. Constangy:

But not insofar as any of the other facets of the case were concerned because every — every factor that exist in Avondale existed in NuTone, except that the ultimate issue that the Board has drawn on appeal is one in the application of the no-distribution rule which is certainly a less attribute to production than the no-work time rule which is a major attribute to production.

And they come up with entirely diametrically opposed propositions on the major and the minor purpose of this thing, with the factual background virtually identical for all practical purposes.

So they couldn’t be a new rule evolved in Avondale unless the Board has evolved the rule that applies to Avondale, period.

And then, it becomes a Universal Camera matter.

It’s a factual matter in here.

We — we make one further point if the Court please, and that is even if we get into the premise that the Board argues with the validity of NuTone, obviously, the full gambit of accommodation is accomplished when employees are only restricted from utilizing the employer’s premises doing the one circumstance that it is at the time that they’re suppose to be giving their attention to their jobs.

They can solicit, they can talk, they can literally distribute literature during lunch hours, during smoking periods, in the restrooms, before shift, after shift, in the plant property.

The only thing that they’re restricted from is using the time when their attention should be at the machine, to engage in some extraneous activity.

Now, that draws with it if the Court please, a rather fundamental distinction between the function and duty of a supervisor, and the function and duty of the attendant of a machine.

Without going into it, it’s perfectly obvious that a supervisor even though he may ultimately step over the line of legality, inherently would be in a better position to determine from an employer standpoint when production might be interrupted without loss, that an employee who simply takes literally a French leave whenever he — the notion strikes it.

And that, we submit is also inherent in this distinction that the Board seeks to draw.

This —

Earl Warren:

Mr. Constangy —

Frank A. Constangy:

Yes, sir.

Earl Warren:

— do you — does your argument go to the limit of saying that in the absence of coercion, the supervisors or any others in the — in the plant who are authorized by the employer to do so, may interrupt to talk to the — the other employees at any time, in any place against the labor unions, and still be in the position to enforce the law against no-solicitation.

Frank A. Constangy:

To the extent that they enforce it only during the time —

Earl Warren:

Yes.

Frank A. Constangy:

— when they have determined that an employee should devote his attention —

Earl Warren:

During —

Frank A. Constangy:

— to his — to his job?

Yes, sir.

Earl Warren:

During where (Voice Overlap) —

Frank A. Constangy:

I — I think that is the law —

Earl Warren:

(Voice Overlap) to that extent.

Frank A. Constangy:

— Your Honor.

Earl Warren:

Yes.

Frank A. Constangy:

Might answer you in using the language of Justice Miller in the Woolworth case, it’s a sentence.

But ultimately, Justice Miller in his conquering opinion to the Woolworth case said that neither the Constitution, the common law, nor the Labor Management Relations Act confers upon the employees the right to use for union purposes the property of their employer during working hours over the objection of the employee.

Now, literally, whether we call it in inherent element of property or ownership or whether we call it a part of the relationship that exist by virtue of the employer’s right to control or diminish production as he sees fit because ultimately it’s his production, if the Court please.

The employer has a right, we submit, to interfere with working time, which is his working time, and at the same time, to prohibit anyone else from interfering with his working time.

So long as he draws the line there and does not carry it beyond the point of working time to non-working time, plant time, and the related times.

Could I ask you a hypothetical question?

Frank A. Constangy:

Yes, sir.

Supposing one were to reach the conclusion that you would refer him in the first case, does — do you think that requires a reversal in your case?

Frank A. Constangy:

No, sir.

If you affirm the first case, then the very ultimate premise of the second — I’m sorry, I beg your pardon.

In the affirming in the first case would be affirming on the accommodation, but I don’t think that that gets to the question in our case which is that it’s a factual issue in a different rule.

Felix Frankfurter:

If what —

Frank A. Constangy:

On the other hand, a reversal in the first case would knock the ground completely out of the premise of the Board’s position.

Felix Frankfurter:

When you say it is a factual case, what is the if, would you mind (Voice Overlap) —

Frank A. Constangy:

Well, the point — the point is — this issue, if Your Honor please, that comes in my — in the Avondale case is a pure and simple determination of whether the facts in this record bring it within the exemption of Peyton Packing or do not.

That’s the premise that the whole thing is bottomed on.

That is, was the rule invoked for business purpose or was it invoked to disturb, to interfere with the organization rights of the employee.

And that is a factual question because the Board’s decision was a determination of the respondent’s motive, not anything else.And the Court of Appeals said that the evidence in the record simply did not sustain that determination.

Earl Warren:

You (Inaudible) if you wish.

Mr. Manoli.

Dominick L. Manoli:

I just have one or two things to add your — if the Court please.

Felix Frankfurter:

Would you mind answering at the outset, Justice — the question Mr. Justice Harlan put to respondent’s counsel?

Dominick L. Manoli:

In —

Felix Frankfurter:

Agreement with —

Dominick L. Manoli:

If — if the Court of Appeals’ decision in the NuTone case is —

Felix Frankfurter:

If this Court affirms.

Dominick L. Manoli:

Affirms that decision?

Felix Frankfurter:

Yes.

Dominick L. Manoli:

As we have suggested in — in our own brief in — in this case that if you affirm the Court of Appeals of NuTone, you must reverse —

And that’s what I can’t understand.

Dominick L. Manoli:

You must — you must reverse I think the decision of the Fifth Circuit in this case.

Would you elaborate that because I can’t see it at all.

Dominick L. Manoli:

Well, fundamentally the position of the Court of Appeals is at — at this sort of thing is a two-way street or if I may put it in this fashion that what is sauce for the employer is also a sauce for the goose.

And that if the employer distributes literature, he must also permit the employees to distribute —

But the Court of Appeals in this case has decided no such issue.

It hasn’t — it hasn’t said in the solicitation field, if you won’t let your employees solicit, you can’t solicit.

That’s the issue you had in the first case.

Here, they have said, you can’t prevent the employees from soliciting because you have discriminatorily used that program yourself.

Dominick L. Manoli:

That’s right.

And —

Dominick L. Manoli:

And in the other case, the Court said in NuTone, the Court of Appeals said, you can’t enforce the rule against distribution of literature in the plant which you normally can’t because you, yourself, have destroyed the reason for that rule.

Now, that is — our reading of the Court of Appeals’ decision in — in NuTone that employer by his own action.

Of course, we disagree with it — with its decision that the employer by his own action has destroyed the reason for the rule.

And therefore, he cannot invoke the rule against the employees.

Here, our position was that the employer has destroyed the basis of his rule by forbidding employees from engaging in oral solicitation during working time, but his own entire union coercive solicitation during working time.

Now, if it’s a two-way street in the other case as the Court of Appeals thought in NuTone, it’s also has to be a two-way street in this case.

Now, however though, of course our position is that we can reverse the Court of Appeals’ decision in NuTone and also reverse the Court of Appeals’ decision in this case.

Felix Frankfurter:

Are you going to say a word about the chief contention that — what’s the name of this company — Avondale is merely an application of Universal Camera?

Dominick L. Manoli:

Well, that’s why (Voice Overlap) —

Felix Frankfurter:

I don’t mean to make any special claim of protection further.

I just accept it as a starting point.

Dominick L. Manoli:

I got up to make a comment on that — on that problem.

Fundamentally, we — we read the Board’s decision to hold that where an employer engages in this kind of coercive anti-union solicitation during working time, that he thereby as a matter of law invalidates the rule with respect to the employees.

And that if he discharges employees for engaging in oral solicitation during working time, when he, himself is engaged in the counterpart of that conduct, that is a matter of law, he has discriminated against them.

Felix Frankfurter:

Are you saying when — you’re saying invalidate, he himself has for all practical purposes repealed the rule?

Dominick L. Manoli:

That’s right.

I mean — as I’ve indicated earlier, the phases for the rule to begin with is that the employer is in (Inaudible) — the efficient running of his plant is such that he can forbid the employees from engaging in — in solicitation during working time.

Felix Frankfurter:

Or permit them or permit —

Dominick L. Manoli:

Or when he himself — when he himself engages in that very conduct, he has destroyed the basis of that accommodation.

And this case is not — is not a factual issue, Your Honor.

This case I think is more like the Warren case which came up from the Fifth Circuit.

In that case, the Court will recall the problem was whether or not an employer had refused to bargain with the union after the Court of Appeals had enforced the Board’s order — required, whether the employer was in contempt with the Court’s decree which enforced the Board’s bargaining order.

In that case, the Court said, “Well, if we looked at the — the Court of Appeals said, “We’ve looked at the record and we find that there is no basis, no basis for holding that the union — that the company as a matter of fact has — has failed to bargain.”

Now, this Court in disposing of that problem said these words, now I think they apply here, that if we had so understood the record, certiorari would not have been granted, but we do, sir, not so understand, it would belittle the facts over the contrary in each instance.

Now, in this case here, the Court of Appeals here has failed to give a — has failed to appreciate the legal significance of a non-disputed fact namely that the employer engaged in anti-union — in anti-union solicitation, a form of solicitation just as much in violation of the rule as what the employees were doing.

So, in short, we don’t think that this case presents a factual issue, but on the contrary, with very important legal questions.

Felix Frankfurter:

Before you sit down, you still have — would you mind telling me what you conceive to the pairing of American Tube Bending Company, that’s one of our problem, and the significance of the — the stages of the rule of that decision as — as played in this field.

Dominick L. Manoli:

American Tube Bending, I — I gather is the first case, that Your Honor is referring to.

As I indicated earlier in connection with my original argument, in American Tube Bending, the — the Board had held —

Felix Frankfurter:

(Inaudible) — I didn’t hear you.

Dominick L. Manoli:

In American Tube Bending, the Board had held that where the employer aired his views, even though they were of a non-coercive character that he aired those views on his premises, that the mere use of it — the mere utilization of these premises gave a coercive thrust to his speech.

And this is important we think in connection with NuTone that 8 (c) wasn’t disapproved or rather Congress expressedly disapproved of the holding in American Tube where the Board in effect had penalized the employer for the use of his property, rather in for what he said.

And we use that as an additional factor for supporting the Board’s position in the NuTone.

In addition to the availability of other means of distributing literature.

The further fact that the legislative history of Section 8 (c) indicates that an employer was not to be penalized because he is using his property for the dissemination or distribution of (Inaudible) literature.

Felix Frankfurter:

When you say in effect, did — did it — did any report of Congress actually referred to American Tube?

Dominick L. Manoli:

Yes, Your Honor.

Felix Frankfurter:

Have you read the — the matter here.

Dominick L. Manoli:

You will find it in our brief —

Felix Frankfurter:

All right.

Dominick L. Manoli:

— in the NuTone case.

We have quoted — they reported for in that —

Earl Warren:

We’ll recess now.