EASTEX, INC. v. NLRB
Legal provision: National Labor Relations, as amended
Argument of John B. Abercrombie
Chief Justice Warren E. Burger: We will hear arguments next in Eastex against the Labor Board.
Mr. Abercrombie, I think you may proceed when you are ready.
Mr. John B. Abercrombie: Mr. Chief Justice and may it please the Court.
This case arose out of refusal of Eastex to allow distribution of a union circular on its plant premises.
The circular is found on pages 2 and 3 of the appendix.
The refusal was because Sections 2 and 3 of the circular were considered to have no relevance to any matter concerning petitioner's employees as employees and was political in nature.
Petitioner had no objection to Sections 1 and 4 of the circular.
Section 2 of the circular consisted of a polemic against inclusion by a Texas constitutional convention of a right to work provision in a proposed revised constitution.
Section 3 contained criticisms of then President Nixon’s veto of a minimum wage bill, comments about oil industry profits and requested employees to register to vote.
Over one half of Section 3 was concerned with oil industry profits.
Sections 2 and 3 of the circular made up the bulk.
There was no evidence in this case that petitioner had taken a stand either pro or con with relation to any matter discussed in Sections 2 or 3.
The record is clear that the union had previously publicized its political messages by mail and with lists furnished by Eastex and that its only reason for requesting in-plant distribution of this circular was increased mailing cost.
There is no evidence that distribution off the plant premises was impractical.
The administrative law judge decided the case solely on Section 7 grounds, no consideration of Eastex’s property rights was made.
The Board pro forma affirmed.
The Fifth Circuit originally granted enforcement under Section 7 and the First Amendment and adopted the holding that the union could distribute whatever is reasonably related to the employees' jobs or status or condition as employees to the full range permitted by Section 7’s language, valid local laws and the First Amendment.
On motion for rehearing, the Court excised its First Amendment references, but denied rehearing.
The basic issue before the Court today is whether the mutual aid or protection language of Section 7 of the Act protects a distribution on an employer’s premises which is political in nature and is not significantly related to the employees' immediate employment relationship.
That issue divides into two parts; whether the mutual aid or protection language of Section 7 protects political expression and if it found that it does, does the nature and strength of such a right mandate or warrant the interference with the employer’s property rights which is inherent in an in-plant distribution.
Justice William H. Rehnquist: Is there not a subquestion there Mr. Abercrombie even assuming that both of the last two – both of your questions are answered by the Board as to whether the principle of Republic Aviation should be applied the same way to strictly political literature as to organizational literature?
Mr. John B. Abercrombie: Mr. Justice Rehnquist, we believe that that is part of the basic question of whether the mutual aid or protection language of Section 7 protects political expression, but to the extent that Republic Aviation states that there is a right to in-plant distribution, that case is of course limited by its terms to in-plant distribution by employees relating to organizational effort.
Justice William H. Rehnquist: But that -- and that was an upholding by this Court of the Board’s finding that this particular type of rule was reasonable with respect to organizational material?
Mr. John B. Abercrombie: Yes sir.
Justice William H. Rehnquist: And my question to you is even though one were to conclude that the sort of literature that were to be -- that was sought to be distributed here was covered under Section 7 and even though the Board were permitted to conclude under the Act that some distribution were permissible on the employer’s property, would it necessarily be entitled to simply use the Republic Aviation formula without any reweighing of factors?
Mr. John B. Abercrombie: No sir and that is exactly what the Board and the Fifth Circuit did in this case was to use the presumptive invalidity of the refusal to distribution, the presumptive rule of right to distribute on an employee’s property, growing out of Republic Aviation was of course based on the organizational efforts of employees under the fundamental provisions or the fundamental rights of Section 7.
We are asked in the Court to declare that political activity on an employer’s premises is unprotected.
Otherwise, the possible consequences of allowing unions --
Justice Byron R. White: Put that way, you are not necessarily arguing that it is unprotected.
You are just saying you cannot do it on the employer’s premises or are you arguing both of them?
Mr. John B. Abercrombie: Are you arguing both of them --
Justice Byron R. White: Even if it is protected, you cannot do it on the employer’s premises and it is not protected in the first place, is that it?
Mr. John B. Abercrombie: Mr. Justice White, it is our position that it is unprotected.
It is our further position that it is unprotected on the employer’s premises as a separate and distinct issue.
Justice Byron R. White: Well, I just -- I suppose you can say a lot of things are protected, but you just cannot do them some places.
It is like freedom of speech.
There is a time and place for it sometimes.
Mr. John B. Abercrombie: That is right.
Chief Justice Warren E. Burger: You would not challenge the right to circularize this outside the company gates on the public sidewalk, would you?
Mr. John B. Abercrombie: Yes sir.
Mr. Chief Justice --
Chief Justice Warren E. Burger: On the public sidewalk?
I am speaking now of employees leaving work to going home at night, after hours.
Mr. John B. Abercrombie: I would challenge the right to do so under the provisions of Section 7 of the National Labor Relations Act.
Chief Justice Warren E. Burger: Well, does the Section 7 have anything to do with it if it is out in a public place?
Mr. John B. Abercrombie: Section 7 establishes the rights of employees in dealing with their employer.
It does not establish the rights of employees as citizens to engage an off plant political activity.
Chief Justice Warren E. Burger: That is why I asked you whether Section 7 has anything to do with what they do out on the public highway?
Mr. John B. Abercrombie: No, sir.
Chief Justice Warren E. Burger: So the could hand the leaflets out on the sidewalk as the employees came out of the plant?
Mr. John B. Abercrombie: Yes sir, but you asked me not in the context of a union organization, but just whether it had anything to do with employees handing out political literature.
It does not.
It defines only certain rights within the employer/employee relationship.
It is our position that nothing in the Act prevents an employer from discharging or refusing to hire an employee because of his political beliefs or actions as a citizen, not as an employee.
Justice John Paul Stevens: Mr. Abercrombie, following up on Justice Rehnquist’s question, I do not understand you to contend that the right to distribute literature is limited to organizational literature?
Mr. John B. Abercrombie: No, sir, I am not so contending.
I am contending that the right to distribute literature in-plant is limited to literature that is related to the fundamental employee rights to organization, collective bargaining, to join and assist labor organization, that it does not extend to the distribution of political literature.
Justice John Paul Stevens: You do concede, do you not, that if this pamphlet had included nothing, but items one and 4, it would have been protected?
Mr. John B. Abercrombie: Yes sir, it would have been.
Justice John Paul Stevens: Act 4 is a general exhortation in favor of the unions, is it not?
Mr. John B. Abercrombie: Yes sir.
I beg your pardon sit.
Justice John Paul Stevens: Act 4 is just sort of a general exhortation that unions are fined organizations, is it not?
Mr. John B. Abercrombie: Yes sir, it is.
Justice John Paul Stevens: That sort of general exhortation you say is protected, but why are not 2 and 3 in the same general category?
Mr. John B. Abercrombie: They are not -- four is at least relating to or could be considered as union institutional literature, not related to the question of political beliefs.
Bear in mind, we are talking in Sections 2 and 3 about political matters and that was the issue there, Mr. Justice Stevens.
Justice Thurgood Marshall: Mr. Abercrombie, I suppose they urge them to vote for minimum wage, that is political?
Mr. John B. Abercrombie: Mr. Justice Marshall, it is my view that that is unprotected for distribution on the employer's premises.
That is essentially the case before us today -- before this Court today.
I said that the purpose of what the Board and the Court have done would be to politicize the workplace on issues or candidates it supports or objects to.
The Board admits as much on page 34 of its brief.
We believe that this Court should draw the same sharp distinction between political activity and traditional and fundamental union representation activity that it drew in International Association of Machinists vs. Street and more recently, in Abood vs. Detroit Board of Education, certainly in a different context.
This Court recognized in Street and Abood, the separation between a union’s pursuit of its traditional role as a collective bargaining representative and its ancillary role as a political, social and fraternal organization.
We would also state to the Court that thus it is clear that Section 7 is not coextensive with the First Amendment as the Board and the Court below impliedly assert, nor is the employer’s plant a public park or a marketplace of ideas.
Justice William H. Rehnquist: Nor is that the employer is the Congress of the United States, I take it?
Mr. John B. Abercrombie: I beg your pardon.
Justice William H. Rehnquist: I said nor is the employer is the Congress of the United States so is to be forbidden from abridging Freedom of Speech?
Mr. John B. Abercrombie: No sir, this is not a First Amendment Freedom of Speech case.
This is a Section 7 case, but we would submit that the Board and the Court below have impliedly made it a First Amendment case.
By the assertion that the Board makes in its brief that the employer has not right to prevent distribution of union literature so long as it does now disrupt production or discipline and contains material relating to any union objectives, is a First Amendment argument.
No prior restraint except in case of clear or present danger or disruption.
Another fault of the Board and the Court below in this case is the assertion and the finding that the term employee used in Section 7 of the Act encompasses the generic employee as a worker of the world and that petitioner's employees are protected under Section 7 in rendering “mutual aid or protection to such workers as a broad class.”
This is also inherent in the Court’s rationale.
Certainly the language of Section 2 and 3 of the Act defining employee, encompasses more than employees of a particular employer, but we submit that it is no broader than the definition of labor dispute found in Section 29 of the Act and that a union’s rights to distribute on our premises or to deal in relationship with employees as workers is no broader than the definition of labor organization found in the provisions of Section 25 of the Act.
We might add to this Court that the Board itself has found that political literature is not protected wherein the Ford Motor Company case, it stated wholly political propaganda, not related to employee’s problems and concerns while employees can be prohibited.
The Board and the Court below would distinguish the particular political expression used on the grounds that it was reasonably related to the employee’s jobs or their status or condition as employees in the plant.
Apart from such rationale, the Court below would apparently agree that it was unprotected.
As our brief points out, the logical extension of such a rule would result in the politicalization of the workplace.
But we have also pointed out, the Court’s finding results from the Court’s consideration of the term employee as used in Section 7 of the Act in the generic sense which is overly broad and we submit is in error and does not take into consideration the purposes and policies of the Act to regulate the relations between an employer and his employees or the limited intrusion on an employer’s property rights allowed by this Court.
Place is of equal concern in defining Section 7 rights as is substance or actions taken.
It is only by limiting the protections of the other mutual aid or protection language of Section 7 to in-plant distributions which concern a matter significantly connected to the employee’s relationship to their employer that the policies of the Acts, the conflicts between opposing rights and the practical operation of employer/employee relations can be reconciled and harmonized.
This Court has never said and should not say here that any yielding of an employer’s property rights is necessary, except where an employer – except where they are in conflict with the fundamental right of self organization, representation and collective bargaining.
As this Court said in Central Hardware and I quote, “This principle requires a yielding of property rights only in the context of an organization campaign.
Absent such a yielding, there is no Section 7 right on an employer’s property.”
Republic Aviation referred to by Mr. Justice Rehnquist required a yielding only in the posture that prohibition of in-plant solicitation was an unreasonable impediment to the exercise of the right to self organization and then only on non-work time and in non-work areas.
Babcock & Wilcox did not require such a yielding in the absence of a showing of a special need, but again in an organizing context.
Magnavox cited by the Board in its brief was a waiver case, but to the extent that it dealt with the problem, it was concerned with fundamental Section 7 rights.
A key footnote omitted in the Magnavox quotation in the Board’s brief makes it clear that this Court has not extended Republic Aviation as the Board asserts.
That footnote states to indicate consideration of alternative means of communication is at least a part of the range of any inquiry into the need for in-plant solicitation if Section 7 rights are to be protected.
Republic, Babcock & Wilcox and Magnavox can be delineated as who and where cases in connection with self organization.
This case – this Eastex case seeks to define what can be distributed.
Section 7 does not exist in a vacuum.
Section 7 rights coexist with other competing interests and as this Court has stated, the exercise of such rights must be balanced against such competing interest to determine where they fall on this spectrum.
Organizational activity is obviously an overriding consideration under the Act, but even there, it has been circumscribed.
Political expression is at the other end of the spectrum, if it protected at all.
Unknown Speaker: Suppose a -- suppose an employee of a particular company on his off time helps – helps picket another employer and he gets fired for it?
Mr. John B. Abercrombie: That is protected activity --
Unknown Speaker: It has not anything to do with the relationship between the fired employee and his employer?
Mr. John B. Abercrombie: No sir, but he is engaging in primary fundamental rights and he is not engaging in that activity on the employer’s premises.
Chief Justice Warren E. Burger: Or the time.
Mr. John B. Abercrombie: Or the employer’s time.
Unknown Speaker: So what about the -- what if the – what if the union member and employee in his off hours time or in nonworking time distributes information about the union’s own welfare plan or medical plan or own legal services plan.
It has not anything to do with the employer or the relationships between the employer and the union, but they distributed on the property and the employer does not like it?
Mr. John B. Abercrombie: We would state that in that context, it would be the employer would have the right to prohibit that distribution in the same sense that it would have the right to prohibit a distribution by the union of literature extolling its parade or extolling its softball team and suggesting that people come out and join the softball team for the game with local IDEW.
Unknown Speaker: Although, I suppose if he fired some employee for participating in some union program that he just did not like, it might be a completely bona fide union program and the employer just did not like it and he fired the employee for it, although the program did not have anything to do with the employer’s business?
Mr. John B. Abercrombie: Your Honor that is a – really it is a closer question, but the protection if any that such an employee would receive under the Act -- under Section 7 of the Act which establishes those protections, would be the question of whether he was assisting a labor organization.
Unknown Speaker: Well, I would suppose -- you are not arguing it in this case, but I would suppose you could easily think up cases where it is a protected activity generally, but you just cannot do it on the employer’s premises?
Mr. John B. Abercrombie: Well sir, I will give you a good example of that.
An employee on strike against his employer has a right to picket that employer, but he has no right to do that to exercise that fundamental Section 7 right on the employer’s premises nor does he have a right as an employee or as a union member to go on someone else’s premises for the purposes of organizing.
That is what Babcock & Wilcox held.
Of course, you can always consider the Fansteel situation where they sit down on the employers --
Unknown Speaker: Well you would not suggest -- you would not suggest the employer could fire the union people for distributing right to work literature if they were not distributing it on the employer’s property and you would not say that – and would you not say it would violate Section 7 to do that?
The union is banding together and they all want to oppose right to work laws and they pass out literature out on the public street and the employer says, I just do not like you fellows getting into this business, I am going to fire you.
Now, is that an unfair legal practice?
Mr. John B. Abercrombie: Your Honor, we would submit that it was not.
That political activity is not protected under Section 7.
I agree with Mr. Justice White that it is a lot closer question, but it is not directed to fundamental employee rights.
Unknown Speaker: But you could lose that argument and still win the one you are making today.
Mr. John B. Abercrombie: Yes, sir.
Chief Justice Warren E. Burger: If it is not on the employer’s time and his premises, Section 7 has nothing to do with it, I thought you agreed before?
Mr. John B. Abercrombie: No sir, if it is off on the employer’s time, did you say off or on Mr. Justice Burger?
Chief Justice Warren E. Burger: Off, off, on the employee's own time out in the public place, Section 7 has nothing to do with it, does it?
Mr. John B. Abercrombie: Section 7 has nothing to do with political activity is what I said.
Justice William H. Rehnquist: Well, is that not the reason for you reply to Justice White since Section 7, if it did have something to do with political activity might protect the employee against the discharge and since you say Section 7 does not have anything to do with it then so far as the Section 7 effect is concerned, the employer is free to deal with the employees he chooses?
Mr. John B. Abercrombie: Yes, sir.
He can discharge a republican if he does not like republicans.
He can discharge a democrat if he does not like democrats and Section 7 of the National Labor Relations Act does not protect that employee.
The distribution off of the employee --
Unknown Speaker: The Collective Bargaining Contract would probably protect him, that is the point, is it not?
Mr. John B. Abercrombie: It would be a rather ill placed act of an employer to discharge --
Unknown Speaker: And he would probably violate the ordinary mind run collective bargaining contract if he discharged an employee if he is a republican, that is not the cause?
Mr. John B. Abercrombie: It certainly would not be just cause.
Chief Justice Warren E. Burger: And he might have a strike on his hands in addition?
Mr. John B. Abercrombie: Yes, sir.
Justice John Paul Stevens: Mr. Abercrombie, before you sit down, one thing puzzles me about this case.
Two parts of the circular, I think you have conceded can be distributed on the employer’s premises.
What is the significance of the employer’s right to say the other two parts must also be protected?
Say instead of political propaganda, they would simply had comic strips or a fictional story or something like that, would that justify including the entire pamphlet and why is the employer so interested and want some right to come on the property has been established?
Mr. John B. Abercrombie: It is the employer’s property that we are talking about Mr. Justice Stevens and we have a right subject to the limitation…
Justice John Paul Stevens: If you do not have a right to keep the people off who want to distribute parts 1 and 4.
You are objecting to something else being in the pamphlet and there is an equal invasion of your property right it seems to me whether the pamphlet has got two pages or four pages?
Mr. John B. Abercrombie: We would prefer that nothing be distributed Mr. Justice Stevens.
Justice John Paul Stevens: But having conceded that they can come on and distribute 1 and 4, what is you serious objection to letting them put pages 2 and 3?
Mr. John B. Abercrombie: Because it is political material which is not related to the employee’s relationship with the employer.
We do not want --
Justice John Paul Stevens: Would you make the same argument if it was comic strips?
Mr. John B. Abercrombie: Yes, sir.
I would certainly.
According to the Board’s theory, and according to the logical extension of the Fifth Circuit’s rule, Mr. Justice Stevens, we go from the distribution of this material to the distribution of handbills or literature solely supporting a candidate for public office who for one reason or another has promised that he would support a labor organization and its goals and efforts.
Justice William H. Rehnquist: Then your position really is your preference would be to have no solicitation, but you know Republic Aviation is on the books so you will allow solicitation to the extent the law requires it?
Mr. John B. Abercrombie: Yes, sir.
Justice John Paul Stevens: So your position really, I do not know why it is, if you will let it be distributed on the property what you have to, but if you do not like what else they mix with it, you are going to keep it off?
Mr. John B. Abercrombie: Yes, your Honor.
Thank you, Your Honors.
Chief Justice Warren E. Burger: Otherwise, if that were not so, they could have one union message and six political messages, is that not so, Mr. Abercrombie?
If that were not so, they could have one union message and six political messages and that would carry it if you were not correct on that position?
Mr. John B. Abercrombie: That is correct Mr. Chief Justice.
It is simply a matter of our right to do it and the question really then turns into one of what you are going to do go into a word count as to whether it is protected or unprotected.
Chief Justice Warren E. Burger: Mr. Allen?
Argument of Richard A. Allen
Mr. Richard A. Allen: Mr. Chief Justice and may it please the Court.
Chief Justice Warren E. Burger: While you are on that, before you get started, do you disagree with that last proposition that the union cannot carry six political messages and one union message in one pamphlet and be protected by Section 7?
Mr. Richard A. Allen: I agree with that proposition, Mr. Chief Justice to the extent that the union is simply sticking in incidental Section 7 material in literature that is primarily a vehicle for unrelated political propaganda.
The Board, I think its position is fairly clear would not contend that that was protected activity.
The Board’s position is the alternative ground for affirming the judgment in this case is limited to a situation where at least a substantial portion of the literature is protected by Section 7.
Chief Justice Warren E. Burger: Well, then let us reverse it.
I suppose it is three quarters union message and just 25% campaigning for some candidate, you think that is protected?
Mr. Richard A. Allen: Mr. Chief Justice, it is hard to speculate without knowing all of the circumstances of what the literature relates to and I would not want to say what the Board would decide.
Chief Justice Warren E. Burger: Let us say it is supporting a candidate for running for public office at that time?
Mr. Richard A. Allen: If in for example a union newspaper, one column out of a five page newspaper said Vote for Joe Smith, I do not think if the rest of the newspaper was substantially devoted to relevant Section 7 materials that were not suggesting --
Chief Justice Warren E. Burger: Then you would get into a word count?
Mr. Richard A. Allen: That is right, but the Board’s position in this case is designed to avoid a word count.
Justice Thurgood Marshall: You do not want census yet?
Mr. Richard A. Allen: That is right, Mr. Justice Marshall.
In a case like this where the employer is charged with having restrained his employees in the exercise of their Section 7 rights, we agree with petitioner that essentially the analysis presents two issues.
The first issue is whether the activity of the employees was an activity that comes within the scope of Section 7.
If not, then the case is over.
The employer has not committed any unfair labor practice by restraining the activity.
If however, the activity is within the scope of Section 7, a second issue is presented, namely whether the employer has shown some special management or property interest that would justify some restrictions by him on the manner in which the Section 7 rights are exercised.
Justice William H. Rehnquist: Why do you phrase the issue that way Mr. Allen, where the employer must show some special, is that on the base of Republic?
Mr. Richard A. Allen: That is on the basis of Republic Aviation in its progeny including NLRB vs. Magnavox most recently.
Justice William H. Rehnquist: But do you not concede that the Board might rationally adopt a different rule for the peripheral matter included under Section 7 or other mutual aid or protection than it did for organizational materials such as was involved in Republic?
Mr. Richard A. Allen: The Board has not made any such distinctions.
We contend that the Board has reasonably not made any distinctions, whether it could or not, I do not know, although I can think of many difficulties between trying to decide – trying to make categories among Section 7 rights as to which are more important and which are less important in the balance that Republic Aviation requires.
Justice William H. Rehnquist: Well, one of my difficulties here was that Republic Aviation of the opinion of the Court sets out at a great length the Board’s reasoning for concluding it organizational material was the kind of distribution to which the employer’s property rights had to yield and all I see in this -- the Board’s stream of this case is that they rather summarily affirm the findings of the administrative law judge?
Mr. Richard A. Allen: Well, Mr. Justice Rehnquist, it is the Board’s position we contend that legally correct position that the distribution that the news bulletin here came within the scope of Section 7, that it related to matter involving – it was a concerted activity for mutual aid or protection that is protected by Section 7 and the Board has adopted in cases involving employer restraint on Section 7 activities, the general rule of Republic Aviation that unless the employer has come up with some special interest in production or discipline, he may not lawfully prohibit the distribution by employees of Section 7 material on nonworking time and in nonworking areas.
Justice William H. Rehnquist: Is there any particular Board decision that says Republic Aviation should be carried over to all or rather mutual aid or protection and why it should be?
Mr. Richard A. Allen: Well, I cannot think of any Board decision specifically making that point although I would submit that NLRB vs. Magnavox does so implicitly to the extent that, excuse me a second, according to petitioner’s definition, that would be an organizational activity, but I am sorry, I cannot think of one offhand although --
Justice Byron R. White: This case is not a bad one?
Mr. Richard A. Allen: Pardon me, Mr. Justice White.
Justice Byron R. White: This might be the first case?
Mr. Richard A. Allen: Well, each case depends on its facts.
This is the first case that involves minimum Texas Right to Work law.
It is different than – it is different, but it is fully within the general and well established principles that the Court and the Board have articulated under Section 7.
The principle issue in this case is the first issue whether the activity comes within the scope of Section 7.
That is an issue that goes beyond the particular facts of this case because if as petitioner quite clearly contends, Section 7 does not cover or bear on the distribution of the news bulletin because of its content, then nothing in the National Labor Relations Act would prohibit an employer from restraining employees by any means including discharge for distributing the bulletin either on or off the premises.
Mr. Abercrombie has made that quite explicit today and in connection with Mr. Chief Justice’s remarks, it is clear Mr. Chief Justice that Section 7 does apply to activity – to distribution of material off the premises on the sidewalk.
If for instance this material was being distributed on the sidewalk and the employer discharged the employee for doing that, then we would contend that the employer has violated Section 8 (a) (1) of the National Labor Relations Act because he has interfered with the exercise of Section 7 rights of his employees.
Now, the petitioner contends that the distribution of the news bulletin is not covered by Section 7 at all because in its view, Section 7 only applies to at least as it is stated in its brief and I quote from page 13 of its brief, “Activities which are related to a specific dispute with the employer over an issue which the employer has the right or power to control.”
Today, in oral argument, Mr. Abercrombie advanced additional reasons for its contention that the distribution of the news bulletin was not covered by Section 7 and namely that it involved what he termed to be political matters and also because it allegedly did not involve organization.
Chief Justice Warren E. Burger: How do you term those materials, Mr. Allen?
Mr. Richard A. Allen: I term those materials, Mr. Chief Justice as materials that are within the scope of the mutual aid or protection clause of Section 7.
They are materials that are directly related to the very significant concerns of the employees on this plant.
They are also materials that are related to the concerns of employees generally which we submit was one of the purposes of the mutual aid and protection clause of Section 7 and we would submit that also it was in a very real sense part of the union’s organizational efforts.
Chief Justice Warren E. Burger: What if they were advocating high tariffs on all products of Japan on the grounds that Japanese were guilty of unfair competition, lower labor?
Mr. Richard A. Allen: It was affecting their jobs?
I think the Board might have a very reasonable basis in a case like that for contending that it was within the scope of Section 7.
Justice Byron R. White: But you seem to agree then that there must be some kind of a reasonable connection with the employee’s job for this particular employer?
Mr. Richard A. Allen: Well, not exactly, Mr. Justice White.
Justice Byron R. White: So it need not have any connection?
What about circulars urging the employees to join other employees in a boycott of a certain supermarket chain?
It has not got anything to do with the employers, does it not?
Mr. Richard A. Allen: That seems to me clearly under the case that it would protected by Section 7.
The case for example --
Justice Byron R. White: But even though it has no connection with the job at all?
Mr. Richard A. Allen: That is correct, Your Honor.
It is well established in the cases recognized that for instance refusals of employees of one employer to cross the picket line of employees of another employer is protected by Section 7, although that has nothing to do with the employees, refusing employees jobs or their relationship with their employer.
Justice Byron R. White: That is not then on the employer’s premises?
Mr. Richard A. Allen: Well, but the first question we have to isolate is whether or not the activity is within the scope of Section 7.
Justice Byron R. White: Then I will ask you the next question, how about that boycott literature distributed on the employer’s premises?
Mr. Richard A. Allen: It would seem to me that under the established rules that the distribution of that literature by employees in nonworking areas on nonworking time was an activity that was protected by Section 7 unless the employer came up with some kind of reason as to why he had an interest of any kind in prohibiting it.
Justice William H. Rehnquist: When you said the case is recognized Mr. Allen, what cases are you referring to?
Mr. Richard A. Allen: Well, the cases we have cited in our brief, but the cases --
Justice William H. Rehnquist: Were they Court of Appeals cases?
Mr. Richard A. Allen: There are many Court of Appeals cases and Supreme Court cases as well that recognize that Section 7 is not limited to matters which affect the employee’s relationship with their employer or and that involve matters over which the employer has any right or power to affect.
Justice William H. Rehnquist: That was not the basis on which the Court of Appeals in this case proceeded. You proceeded under the basis that this particular distribution was reasonably related to these particular employees and their jobs.
Mr. Richard A. Allen: The Court of Appeals adopted that standard and we think that that standard is well within the standard boundaries of Section 7 and we think the Court of Appeals accurately found that the distribution of this news bulletin did affect the employees themselves in their jobs.
We think the case is established that that is not a necessary requirement.
Chief Justice Warren E. Burger: What about literature which urges them to vote against a given congressman or senator on the grounds that he favors right to work laws?
Mr. Richard A. Allen: Well, that is essentially what we have in this case.
Though the congressman was not really --
Justice Thurgood Marshall: Let me give you an easy one.
Urging the workers to support ERA and to oppose airplanes to the Arab countries?
Mr. Richard A. Allen: Oppose sales of airplanes to Arab countries?
Justice Thurgood Marshall: And to support the ERA?
Mr. Richard A. Allen: With respect to the first part of that, I cannot really see how it would affect the employee’s interests as employees unless perhaps they were employees of the aviation industry.
Justice Thurgood Marshall: You do not think that there will be a little argument?
Mr. Richard A. Allen: A little argument on behalf of the employees?
Justice Thurgood Marshall: Yes, you do not think all of them would agree one way or the other, do you?
Mr. Richard A. Allen: I think there would be a dispute among the employees as --
Justice Thurgood Marshall: Do you not think the employer would prefer not to have dispute among his employees?
My whole point is do you have to say this is wide open?
Mr. Richard A. Allen: No, it is not wide open.
Justice Thurgood Marshall: And then you say who decides the boundaries?
Mr. Richard A. Allen: It is certainly not wide open and we want to emphasize that it is not.
The very scheme of the National Labor Relations Act suggest that Section 7 activities have to relate somehow to the employee status as employees under the statute, but we suggest that petitioner is erroneous in contending that those matters have to relate specifically to their disputes with the employer.
We suggest that the case was clearly established.
Justice Thurgood Marshall: What is the boundary is what I am trying to get?
Mr. Richard A. Allen: Where is it bounded?
Justice Thurgood Marshall: Yes sir.
Mr. Richard A. Allen: That is difficult to say and the Board has not -- it is difficult to articulate a standard other than the language of Section 7 itself to describe the outer boundaries of Section 7.
As I suggested --
Justice Potter Stewart: What is the boundary that as my brother Marshall asked, who determines it?
Is the union leadership, does it have unreviewable discretion to decide in this gray area what is for the mutual protection benefit of employees such as let us take environmental legislation.
Now, one can argue on either side whether that is good or bad for employees of a particular plant or employees generally or the economy generally?
Mr. Richard A. Allen: The answer to that question Mr. Justice Stewart is that the union does not have the unreviewable discretion.
Justice Potter Stewart: Let us say this particular union, head of the local is a very strong environmentalist and he is convinced that proposed environmental legislation in the state of Texas is going to be very good for the employees of this plant as well as employees generally, can he have literature distributed along those lines?
Mr. Richard A. Allen: Well, if in fact his opinion is unreasonable I do not think that he is entitled to an unreasonable opinion.
Justice Potter Stewart: No, no, it is perfectly reasonable and so would an opposite opinion be perfectly reasonable?
Mr. Richard A. Allen: Well, I think the Act vests in a Board, the ultimate determination of whether or not the activity is within the scope of Section 7.
Justice Potter Stewart: And does it depend upon whether it is reasonable?
Mr. Richard A. Allen: Yes, I think it would.
Though I think if the employee – if the union had one view is – if the union’s view was that we think this literature about environmental legislation is protected and the Board said no we do not think so and then under the Act the Board has the ultimate say.
Justice Potter Stewart: Why because the Board has the opposite view about the environmental legislation?
Mr. Richard A. Allen: No, the Board has the function not of determining the merits of environmental legislation, but determining the scope of Section 7.
Justice Potter Stewart: That is the question of course.
Mr. Richard A. Allen: And I would like to emphasize in that connection Mr. Justice Stewart that as this Court has recognized many times, the Board’s determination or the question of whether -- of the scope of Section 7 and whether -- and how it applies to particular fact situations is a question that the Board’s determination should we believe be given a large measure of latitude and the reason for that is that the field of labor management relations obviously involves an infinite variety of situations.
The Board has to deal with these situations everyday and it has to make distinctions that are sometimes difficult, but they are nevertheless necessary to make.
Justice William H. Rehnquist: Mr. Allen, all I find that the Board has said in these cases on 24 (a) and 25 (a) in the petition for certiorari are four paragraphs simply a boiler plate affirmance of the findings the administrative law judge.
I would be more persuaded by your argument if I could find somewhere where the Board had reason to think through and said this outer bounded Section 7 does include this kind of action, but certainly the Board’s order in this case does not do it.
Mr. Richard A. Allen: You are referring to the Board’s order of adopting the decision of the administrative law judge?
Justice William H. Rehnquist: Yes.
Mr. Richard A. Allen: Well, the decision of the administrative law judge, Mr. Rehnquist has to be deemed to be incorporated within the Board’s order.
Justice William H. Rehnquist: Well, then you say in effect that the discretion ultimately is not necessarily lodged in the Board, but in the administrative law judge?
Mr. Richard A. Allen: Not at all, the administrative Board has power to review and reverse the administrative law judge.
But with respect to your broader point that the Board has not articulated a reason, well, we believe that the administrative law judge whose opinion was incorporated by the Board, adopted by the Board made quite clear the reasons for it, but in any event, the Board has throughout the administration of Section 7 articulated standards that have quite clearly indicated and relied in this case on former decisions that have quite clearly indicated that activity of this kind is activity -- that it is activity that can be in some sense deemed to be political is an activity that is protected by Section 7 if it is reasonably related to the interest of the employees as employees under the statute and there is a long and well established history.
Chief Justice Warren E. Burger: Let me come back to the last answer you gave me and see if you still want to stand on it.
My hypothesis was that the literature distributed was simply a lists of candidates they should vote against because these candidates were against the right to work law and you said that was all right, that is protected.
Now, you still want to stand on that?
You said that is this case, it is not this case.
Mr. Richard A. Allen: This case urged -- the paragraph -- the bulletin of this case urged its employees – urged the members of the union to vote for legislators who would support a minimum wage legislation.
Chief Justice Warren E. Burger: Yes but that is not my hypothesis.
Mr. Richard A. Allen: Your hypothesis is different because it specifically sets out a list of candidates --
Chief Justice Warren E. Burger: Nothing else?
No union message at all?
Mr. Richard A. Allen: In your hypothesis, I think it might well be open to the Board to determine that that kind of purely political solicitation in the context of a political campaign was and I am saying I think it might be open or not, I do not -- of course I cannot predict how the Board would find it, but I think it might be open to the Board to determine that that kind of activity was sufficiently removed from the interest of the employees as to not merit Section 7 protection.
Justice Harry A. Blackmun: What would be an example of political activity that in your opinion would not be subject to Section 7 protection?
Mr. Richard A. Allen: Well, one case we cite in our brief is it was a decision by the Board in the Ford Motor Company case, cited in our brief at page 30, where the Board held that an attempt by the union to distribute a newspaper which I believe was a socialist worker’s party newspaper, was not activity that was protected by Section 7 because the Board said, it was purely political propaganda.
Justice Harry A. Blackmun: Can it be anything more political than supporting a candidate for office or opposing another candidate?
That is the essence of politics --
Mr. Richard A. Allen: That is right.
But the Board’s position is not that because it is political, it is protected.
That is certainly not the Board’s position.
The Board’s position is that it is protected if it reasonably relates to the interest of the employees.
Of course it happens also to be something that can be characterized as political advocacy.
The Board submits that that does not remove it from this protection of Section 7.
Justice Harry A. Blackmun: In a general election, let us assume that all that was distributed was a list of the candidates with some biographical data saying these are friends of labor?
Mr. Richard A. Allen: That is the hypothesis that the Chief Justice gave me and I was suggesting that in those circumstances it might be open to the Board to determine that this was not a bona fide --
Justice Harry A. Blackmun: Just might be open?
Mr. Richard A. Allen: It might be open.
I do not know how the Board would decide it.
I would not blush at defending the Board’s conclusion that that was protected by Section 7.
After all, the phrase concerted activities for mutual aid and protection is by its very terms an extremely broad phrase.
The history of the Act indicates that it had a broad intent and I think that perhaps Judge Learned Hand in the Peter Cailler Kohler case most eloquently explained the reason for that.
He explained that the every notion of mutual aid and protection is the notion that when employee A assists employee B with respect to employee B’s problem, that serves both of their mutual interests.
The reason as he stated was that, I cannot find it directly, but essentially that when A’s turn comes, he knows that B is going to help him.
That is the very concept of mutual aid and protection.
It is a concept that is consistently not been limited to what the Court of Appeals called the battlefield of employer/employee relations.
It is a broader concept.
Chief Justice Warren E. Burger: If your quotation of the foreign case is accurate and I assume it is on page 30, I do not think you will have to either defend the Board or blush at defending them.
My hypothetical was drawn from that precise case in the Board and it concluded saying this is wholly political propaganda which does not relate to the employee’s problems and concerns all employees.
Do you think the Board might change its mind?
Mr. Richard A. Allen: With respect to your hypothetical?
Chief Justice Warren E. Burger: Yes, well not in particular my hypothetical, the Board’s own decision in the Ford case?
Mr. Richard A. Allen: No I think the Board stands by that decision.
Chief Justice Warren E. Burger: Well, then you would not have to worry about defending them because unless they change their position?
It is either this is political or not.
Mr. Richard A. Allen: It am not sure that that position would necessarily foreclose the Board from determining that in your hypothetical.
I am suggesting that the Board could reasonably decide it either way, but I do not think it would foreclose the Board from determining that a message to union members vote for ABC friends of labor was something that fell outside the scope of Section 7 I think.
Unknown Speaker: Your point I gather is that it is the Board’s position that whether or not literature is or is not political is not a relevant test under Section 7?
That it may be political and protected under Section 7?
Mr. Richard A. Allen: That is correct
Unknown Speaker: It may be nonpolitical and unprotected under Section 7?
Mr. Richard A. Allen: And you raise a very good point.
The term political is a term that is hard to define.
Unknown Speaker: But it is not a relevant test for Section 7 in your submission?
Mr. Richard A. Allen: That is correct.
The relevant test of Section 7 is to the extent we can paraphrase the language of Section 7 matters that affect the interests of employees as employees and not as for example football fans or connoisseurs of fine wine, but as employees, that is the purpose of Section 7.
Unknown Speaker: What is the basis for the presumption that is applied?
It is presumptively invalid if you bar, what is the basis for that?
Mr. Richard A. Allen: That is the basis that, well, the basis for that is a long line of decisions starting with public --
Unknown Speaker: I do want to know, what is the reason for the presumption?
Mr. Richard A. Allen: The reason for the presumption is that when employees are engaged in Section 7 activity on the employers plant, particularly activity being the distribution of literature, on the employer’s plant where they have a legitimate right to be on nonworking time and in nonworking areas for the employer to flatly prohibit that is an activity that invades their rights.
Unknown Speaker: But you are saying that the employee – you are saying that this presumption applies even to distributions that have very little to do with anything with the employer’s business and his relationship with the union?
That is your position on the Board’s position and I am not able to understand the basis for the presumption where the distribution does affect the relationship between the employer whose property is being used for the distribution and his employee, but what is the basis for a presumption, that reason for him closing on the employer is not there?
Mr. Richard A. Allen: The question might be best answered by converse question if the activity is something that Congress designed intended to protect when it passed Section 7, what is the reason for allowing the employer to prohibit that activity when the employers are already on this plant and when they are not on working time and not invading any working areas?
Unknown Speaker: The reason is his property right, I guess.
He does not like what they are distributing on his property and it has nothing to do with his relationship for the union --
Mr. Richard A. Allen: But the premise of the National Labor Relations Act is that his naked property rights have to yield to rights of employees under --
Unknown Speaker: Not without limit?
Mr. Richard A. Allen: Not without limit.
There is a requirement that there would be a proper accommodation.
The Board has determined that in cases where all the employer alleges which is this case right here is a naked property right, that accommodation, the proper resolution of that accommodation is to allow the employees to engage in their Section 7 activities.
Unknown Speaker: Well, let me ask you again the question.
I think was included in what brother Rehnquist asked you.
Do you know what case it is, if there is any, where the Board itself or a hearing examiner or an administrative law judge has addressed the question of why a protected literature that has nothing to do with the job must be allowed to be distributed on an employer’s property?
Mr. Richard A. Allen: Well, I am not sure what you mean by nothing to do with the job.
The literature in this case…
Unknown Speaker: But you say it does not have to have anything to do with the job?
Mr. Richard A. Allen: It does not have anything to do with the job directly --
Justice Byron R. White: All it has to do is that you can --
Mr. Richard A. Allen: Yes, so we would cite you the General Electric case for example where the activity there was activity by employees in the parking lot collecting, soliciting support for and I believe funds for support of the Great American Farm grape workers and I think the Board expounded it is rational in that case.
I do not want to take the Court time, but I would say to you that case and also the Kaiser Case where the activity being engaged in was writing --
Unknown Speaker: Do you mean the Grape Workers never went to the Court of Appeals?
Mr. Richard A. Allen: Yes, it did.
411 F2 750 enforced it.
Justice Thurgood Marshall: What would happen if the AB-furniture factory they pass out a leaflet saying in the XY furniture factory they have a better working contract, therefore, we urge all of the workers in this plant to buy their furniture from the competitor, he could not protect himself from that?
Mr. Richard A. Allen: Yes, I think he could Mr. Justice Marshall if the activity was simply a disparagement of your employers product, this Court is held a local 1229 --
Justice Thurgood Marshall: It was not disparaging the product it was just taking the money I was buying?
Mr. Richard A. Allen: In the sense your hypothetical seems to me the disparaged product but saying somebody else has got a better one.
Justice Thurgood Marshall: I said that they have a better working contract over there.
Mr. Richard A. Allen: Better working contract so by their products?
Justice Thurgood Marshall: Yes.
Mr. Richard A. Allen: I am afraid you have, I am not terribly familiar with the rules in their 8 b) (4), but I think that…
Justice Thurgood Marshall: I hate to see an employer to have to pay for that?
Mr. Richard A. Allen: I am not familiar with those rules but --
Justice Thurgood Marshall: What was that I said before, I think we are in a place where the lines are burning, smoky?
Mr. Richard A. Allen: The Board frequently faces those smoky lines Your Honor and has to do the best they can.
Unknown Speaker: Does the statute impose any limit on the employer, say you have union political propaganda that is distributed, is there any statutory restriction on the employers right to distribute literature expressing a countervailing political point of view?
Mr. Richard A. Allen: The only one that I know off is one alleged by the Chamber of Commerce in their brief, the Federal Elections Campaign Act and I do not think that would apply to distributions in his plant.
As far as I know there is none.
Unknown Speaker: Thank you.
Chief Justice Warren E. Burger: What about -- you mentioned only the naked property right, I think you put it that way, what about the interest of the employer not having his employees get into a big argument, fist fights or less if they are arguing over the Panama Canal or the right to work, is not that factor in --
Mr. Richard A. Allen: It would be a factor Your Honor.
It might well be a factor if the employer advanced such reasons.
The Board has recognized that if he can show that that is going to disrupt his working environment that there can be accommodation of the rights, but the petitioner here made no such claim.
Chief Justice Warren E. Burger: If you had people advocating the Panama Canal treaty on the one hand opposing on the other, a subject that was as heated as that --
Mr. Richard A. Allen: I cannot see why the Panama Canal Treaty would be related to the interest of employees.
Chief Justice Warren E. Burger: So that he could forbid it, could he not?
Mr. Richard A. Allen: Yes, I believe he could.
Unknown Speaker: By the way, I think some day you might look at the enforcement procurian in the General Electric case?
Chief Justice Warren E. Burger: And the Ford Motor Case.
Rebuttal of John B. Abercrombie
Mr. John B. Abercrombie: Mr. Chief Justice and may it please the Court.
The Board's focus in this argument is wrong.
We are not talking about Section 7 as a whole.
We are only talking about non fundamental rights under the other mutual aid or protection language of Section 7.
The suggested rule which we have advanced in our brief has application only in this context and I would respond to Mr. Justice Rehnquist’s question, there was no discussion in the administrative law judge's opinion of the basis for his decision.
He simply cited the presumption of invalidity by the -- because of the limited distribution or the limitation on distribution of this material on the employer’s premises.
The Board and the court below have placed the cart before the horse on the matter of accommodation of Section 7 rights to property rights.
I note Mr. Allen’s reference to our naked property right.
We are quite proud of that naked property right and believe that we have a right to enforce it under the constitution and the laws of this country except in those instances where they would amount to an unreasonable impediment to the organization of employees on the employer’s premises.
The Board would adopt a presumption of right of any Section 7 rights, presumably, including the right to picket on the employer’s premises in the absence of showing by the employer of special circumstances.
Certainly no balancing was undertaken in this case.
The presumption alluded to by the Board only relates to distributions affecting fundamental section rights, particularly the right to organize.
This Court has never said that the presumption is applicable to any union distribution regardless of its content.
The distinction between what is distributable and appliant is one of substance in the same sense as that issue was addressed in Babcock and Wilcox.
There the Board made the same assertion that it did hear that Republic Aviation established a presumption of the right of a non-employee organizer to enter the employer's premises for the purposes of organizing.
The Court held that here was no such presumption.
That only by showing of special need to do so could a non-employee enter the employee's premises.
We suggest that there has been no accommodation made in this case.
but that because of the nature of the literature that is being distributed, political in nature.
That the accommodation must necessarily fall on the right of the employer to prohibit such distribution in the exercise of his property rights and that as a matter of law, the distribution of political material on the employers premises is and cannot be allowed under the provisions of Section 7 of the National Labor Relations Act.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.