National Labor Relations Board v. F. W. Woolworth Co. , 214 F.2d 78 ( 1954 )

ALLEN, Circuit Judge.

The question squarely presented in this petition for enforcement is whether an employer which addresses its employees on the subject of unionization, on ■its premises and during working time in .a lawful and uncoereive manner protected by Section 8(c) of the National.Labor .Relations Act,- 29 U.S.C.A; § 158(c), is .required to admit union agents into its premises to address its employees for an . equal amount of time during working .hours, there being adequate facilities in , the. immediate area for contact between the union and employees. The Board de.cided that this was an unfair labor practice. Respondent contends that this ruling ignores and nullifies Section 8(c), the free speech provision of the Act..

-The Board found that Section 8(c) was not involved, but: that respondent ap- . plied its no-solicitation rule in effect on its premises in a discriminatory manner, and interfered with, restrained and coerced its employees; The Board issued .the usual cease and desist order, j

The- facts are not in controversy and are as-follows:

The incidents occurred at' one of the more than two hundred Woolworth stores. On September 10, 1951, the Retail Clerks International Association - (AFL) filed a petition with the Board for certification as bargaining representative of respondent’s employees at its .store in Springfield, Ohio, and an election ..was directed for January 19, 1952. This store has some 150 employees. On January 9, 1952, respondent’s manager held two meetings on the store property and in working time. At each of these meetings the manager read the employees a speech, which was found by the examiner and the Board not to violate § 8(c) of the Act. On the following day the general organizer of the union, who was not an employee of respondent, requested the manager to allow union agents to speak to the employees for an equal amount of time on respondent’s property and working time. This request was refused orally and in writing. On January 12 the manager again addressed respondent’s employees on respondent’s time and property and a second request of the union to address the employees for an equal time on respondent’s working time and property was refused. The election was held on January 19, 1952, and a majority of the voting employees voted against representation by the union.

The union began its campaign in August, 1951. During the five months before the election, as stated by the union organizer, it contacted respondent’s employees “in their homes and other public meeting places, such as drug store soda fountains, hotel lobbies.” The union hall of the Springfield Federation of Labor was approximately one and one-half blocks from the store. Eight weekly meetings which Woolworth employees attended and three meetings particularly for the Woolworth employees were held by the union during this period. Respondent’s employees left the store premises by one entrance and were easily available for contact there. The Board held that respondent, in refusing the union’s request for an opportunity to address the employees on its premises and in working time, discriminatorily applied its no-solicitation rule, which reads as follows:

“We are governed by the Business Protective Board of the Springfield Chamber of Commerce for the year ending December 31, 1952. Solicitations of all things must have the approval of the Board.”

Respondent contends that this finding defeats the Congressional intent underlying the enactment of Section 8(c), that it amounts to legislation by an administrative tribunal and denies freedom of speech. It also contends that there was no discrimination in the application of the no-solicitation rule.

Enforcement of the order should be denied. Section 8(c) of the National Labor Relations Act, which is part of the amendment enacted June 23, 1947, reads as follows:

“The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.”

This section imposes no limitation upon the expression of the employer’s views except that they must not contain a threat of reprisal or force or promise of benefit. It is conceded that the manager’s speech contained no threats nor promises and is protected by Section 8 (c). But the Board ruled that a limitation exists to the effect that the employer who expresses such views on his premises must give an equal amount of working time on the premises to the union.

The Board relied on the provision in the Federal Communications Act, 47 U.S.C. § 315(a), that when a candidate for public office is permitted to use a broadcasting station the licensee must give an equal opportunity to all other candidates for the same office. This analogy is not pertinent. Section 8(c) does not provide that an employer who expresses his views on unionization on his premises and within working time must give an equal amount of time to the union to speak to the employees in working time on the employer’s premises. Whether the Congress could have included such a provision in view of the First Amendment need not be considered. The Congress enacted the section in unlimited form.

The purpose of the enactment was to guarantee to employers as well as to unions the right of free speech. In view of the legislative history, while Section 8(c) is a restatement of the principle embodied in the First Amendment of the United States Constitution [N. L. R. B. v. Bailey Co., 6 Cir., 180 F.2d 278], its addition to the original National Labor Relations Board Act is an authoritative direction given by the Congress to the Board to apply the First Amendment in behalf of the employer as well as of the employee. The section was enacted to remedy the situation which arose from the holdings of the Board under the Wagner Act that it was unfair labor practice for an employer to address his employees in opposition to a union, even though his address was entirely uncoer-cive. As stated in the Senate report on the Senate Bill which embodied the proposed amendment:

“Section 8(c): Another amendment to this section would insure both to employers and labor organizations full'freedom to express their views to employees on labor matters, [so long as they] refrain from threats of violence, intimation of economic reprisal, or offers of benefit. The Supreme Court in Thomas v. Collins, (323 U.S. 516 [65 S.Ct. 315, 89 L.Ed. 430]), held, contrary to some earlier decisions of the Labor Board, that the Constitution guarantees freedom of speech on either side in labor controversies and approved the doctrine of the American Tube Bending case [N. L. R. B. v. American Tube Bending Co., 2 Cir., 134 F.2d 993]. The Board has placed a limited construction upon these decisions by holding such speeches by employers to be coercive if the employer was found guilty of some other unfair labor practice, even though severable or unrelated (Monumental Life Insurance, 69 N.L.R.B. 247) or if the speech was made in the plant on working time (Clark Brothers, 70 N.L.R.B. 60). The committee believes these decisions to be too restrictive and, in this section, provides that if, under all the circumstances, there is neither an expressed or implied threat of reprisal, force, or offer of benefit, the Board shall not predicate any finding of unfair labor practice upon the statement. (Senate Report No. 105 on Senate Bill No. 1126, dated April 17, 1947).

Similar statements appear in the various Congressional Reports dealing with this amendment. House Report No. 245 on Representatives Bill No. 3020, dated April 11, 1947; Statement of Managers contained in House Conference Report No. 510 on House of Representatives Bill No. 3020, June 3, 1947.

The summary of Bill and Analysis of Conference Report by Senator Taft, June 5, 1947, 93 Congressional Record 6601, shows that Section 8(c) contemplates primarily oral communication with employees. As Senator Taft said, the language of the report of the House Committee makes it clear that what the sponsors of the House Bill had in mind were primarily oral utterances. The language of the House Bill, “the expressing of any views, argument, or opinion,” was retained in the Act.

The section does not limit conference by the employer to individual employees nor to any particular time or place of conference. It plainly contemplates and protects conferences with the employees in a group, that is to say, a meeting of the kind called by the manager for his discussion of unionization. ' The statute expressly protected the address involved here, but by construing with the section a requirement of an allowance of equal time to be given to union agents the Board nullified the congressional protection. Whether the Board is authorized to enforce such a ruling is the controlling question in this case.

For a short time after the enactment of Section 8(c) the Board ruled that an employer could address its employees on the company’s own time and property without violating the purpose of the Act. The Babcock and Wilcox Co., 77 N.L. R.B. 577; S & S Corrugated Paper Machinery Co., Inc., 89 N.L.R.B. 1363, 1364. However, in Bonwit Teller, Inc., 96 N.L.R.B. 608, the Board reverted to its pre-amendment ruling and decided that such an address was an unfair labor practice unless the union was given an equal amount of working time on the employer’s premises. It overruled the S & S Corrugated Paper Machinery case, and in the Bonwit Teller case relied upon Clark Brothers, 70 N.L.R.B. 60, which had been condemned by the Congress. The Court of Appeals for the Second Circuit affirmed this decision, Bonwit Teller, Inc., v. N. L. R. B., 197 F.2d 640, certiorari denied 345 U.S. 905, 73 S.Ct. 644, 97 L.Ed. 1342, in a two-to-one decision, Chief Judge Swan dissenting. The majority of the court based its holdings upon constructions of the Wagner Act made by the courts prior to the Labor Management Relations Act of June 23, 1947. It held that the existing no-solicitation rule was discriminatorily violated because the employer conferred on his own premises with his employees. The Board had theretofore ruled that it was an unfair labor practice to relax the no-solicitation rule in favor of one union as against another, or of certain parties as against others but it had not decided that the rule applied to an employer.

There are substantial factual differences between the Bonwit Teller case and the instant controversy. In that case promises of benefit had been made by the employer in the announcement of pending wage increases and threats of reprisal had been made by a supervisory employee to influence an election. Here the one act alleged to have constituted coercion and interference was the refusal after the manager’s address to permit the union to use the premises for its campaign. The Board did not charge that respondent denied any employee the right to speak for the union on his free time and no proof to that effect was introduced. It now claims, without any support in the record, that such was the case.

In its reliance in the Bonwit Teller case upon the Clark Brothers case, which was cited in the Congressional reports as being one of the decisions of the Board calling for the enactment of new legislation, the Board indicated its unwillingness to apply Section 8(c) according to its terms.

The dissenting opinion of Chief Justice Swan in the Bonwit Teller case is the correct holding, that Section 8(c) has direct and controlling application and that a no-solicitation rule cannot cut down the rights given the employer under Section 8(c). In light of the sweeping statutory provision and the legislative history a no-solicitation rule cannot prevent an employer from conferring with his own employees on his own premises and on his own time and the rule is not dis-criminatorily applied because of the employer’s refusal to permit the union to campaign on its premises when there are adequate facilities for access to the employees.

The ruling of the Board nullifies the purpose of the amendment expressed in the reports and the discussion, namely, that the enactment was intended “to make it clear that the Board is not to construe utterances containing neither threats nor promises of benefit as an unfair labor practice standing alone or as making some act which would otherwise be legal an unfair labor practice.” Supplemental Analysis of Labor Bill as passed by Conference Committee, submitted by Senator Taft, June 12, 1947, 93 Congressional Record 7002. If the employer here had made no speech, its exclusion of the union from its premises would clearly have been legal under the no-solicitation rule, which the Board concedes to be valid. However, this lawful exclusion was converted into what the Board finds to be an unfair labor practice by the Board’s linking with the lawful exclusion lawful utterances of the employer which contained neither threats nor promises of benefit.

The Board contends in its brief before this Court that the address of the manager to the employees “removed all doubt concerning the employer’s position on the question of representation.” The precise purpose of the amendment was to establish for the employer this very right which is denied by the instant Board decision. To compel the employer, if he exercises his right of free speech, to accord, not to employees on their free time, Republic. Aviation Corp. v. N. L. R. B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, bút to union representatives a similar opportunity in working time, limits the application of the freedom of speech provision written in Section 8(c).

The Board decided that the no-solicitation rule controlled the case and that it was discriminatorily violated because the employer himself conferred on his own premises with his employees and then refused a like privilege to the union. None of the Supreme Court cases which it cites declare this doctrine. Republic Aviation Corporation v. N. L. R. B., Supra, decided together with N. L. R. B. v. Le Tourneau Co., held that employees could not be discharged for violating no-solicitation rules on their own time within the plant or premises of the employer. It has never been held by the Supreme Court that the no-solicitation rule prohibits an employer from conferring with his own workmen.

Here, too, as in the Bonwit Teller case, the majority of the cases relied on by the Board were decided prior to the enactment of the amendment. Moreover, the decisions cited by the Board present situations so factually different that they cannot be called-controlling here. There is no secondary boycott here as in International Brotherhood of Electrical Workers v. N. L. R. B., 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299. No discrimination between rival labor unions is involved. Cf. N. L. R. B. v. Waterman Steamship Corporation, 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. 704, decided 1940. International Association of Machinists v. N. L. R. B., 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50, was a case of a union assisted by the employer against a rival union. No discrimination against an employee is alleged or proved here, as in Republic Aviation Corporation v. N. L. R. B., supra. No exceptional circumstances exist to limit access of the union to the employees who live on the premises and are not readily open to contact by representatives of the union. The premises are not a ship, N. L. R. B. v. Waterman Steamship Corporation, supra, nor a lumber camp, N. L. R. B. v. Lake Superior Lumber Corp., 6 Cir., 167 F.2d 147 nor a company owned and company-dominated town, N. L. R. B. v. Stowe Spinning Co., 336 U.S. 226, 69 S.Ct. 541, 543, 93 L.Ed.. 638. These cases lay down the rule that, when 'the employees live upon premises owned by the employer, controlled by him, and removed from contact with the outside world, reasonable access must be given union organizers. In N. L. R. B. v. Stowe Spinning Co., supra, the mills owned and rented houses to the employees. The school, the building housing the post office and store, were owned or controlled by the mill owners. It was a company town. In this case on the conceded facts there is no such situation. No employees live on the premises. The union hall is very near the store. Frequent union meetings were held during this period for respondent’s employees. The union organizers, had numerous opportunities for meeting the employees. In fact, they contacted them so satisfactorily to themselves that they thought they had a majority. We think the exception established for the unusual cases cited above does not here apply.

In N. L. R. B. v. Lake Superior Lumber Corp., supra, stressed by the Board, the sole access to the employees was through the lumber camp, and this court held the Board justified in finding that an unreasonable restriction had been placed upon the access of union organizers to the premises. The camp in that case was some seventeen miles from the nearest city on property controlled by respondent and access to it was over respondent’s logging roads. The men lived and spent all their free time there, including Sundays. In view of the limited free time of the men and the fact that they lived and worked on the employer’s premises, this court sustained the findings of the Board that access to the bunkhouses could not be limited as the employer had determined. As there held, plainly the union organization must proceed upon the employer’s premises or be seriously handicapped. However, the union in that case was not permitted by the court to have access to the men in working time.

The Board contends here that adequacy of facilities is irrelevant. But the Supreme Court in N. L. R. B. v. Stowe Spinning Co., supra, clearly indicates that the question is material. As stated by Justice Murphy, “We cannot equate a company-dominated North Carolina mill town with the vast metropolitan centers where a number of halls are available within easy reach of prospective union members.”

Under the statute and under the adjudicated cases enforcement of this order must be denied. To decide that a no-solicitation rule deprives the employer of the right to confer with his employees about any important matter, including unionization, is to deprive him of the freedom of speech specifically guaranteed by the Constitution and by Section 8(c) of the Act. The Board is not authorized to write into the Act a limitation that does not exist.

The Board contends finally that its ruling must be upheld because of the “economic power” of the employer and also because the plant or shop is a convenient place for the union to canvass for members. If this rule is to stand it will be applied to employers of very small resources as well as to the far-flung Woolworth Company. Freedom of speech is guaranteed under the Constitution alike to the weak and the powerful. The Board is not authorized by construction and implication to limit the freedom of speech established in the Constitution and re-emphasized in Section 8(c).

The petition for enforcement is denied.