Cases by Issue - Distribution of Union Literature

Lechmere Inc. v. NLRB - Oral Argument

Fri, 09 Jan 2009 14:49:31 +0000

Case:

Lechmere Inc. v. NLRB

Media File:

90-970_19911112-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF ROBERT P. JOY ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument next in No. 90-970, Lechmere, Inc., v. National Labor Relations Board.

Mr. Joy, you may proceed whenever you're ready.

Mr. Joy: Mr. Chief Justice, and may it please the Court:

This case comes to the Court on writ of certiorari from the First Circuit Court of Appeals.

The question presented is whether an employer may legitimately bar nonunion... nonemployee union organizers from trespassing on its private property to seek to organize its employees when reasonable alternative means of reaching them are available.

This Court, in NLRB v. Babcock & Wilcox, a unanimous opinion in 1956, held that an employer may, in those circumstances, preserve his private property rights and exclude the union.

In this case, a divided panel of the First Circuit with a strong dissent endorsing a ruling of the National Labor Relations Board held to the contrary.

We submit, Your Honors, that the First Circuit should be reversed, and in so doing this Court should reaffirm its holding in NLRB v. Babcock & Wilcox.

Petitioner submits these principal arguments where Lechmere v. The National Labor Relations Board should be reversed.

First, the First Circuit endorsed the board's decisional model enunciated in Jean Country, which rests upon an erroneous legal foundation.

By taking the threshold inquiry into whether reasonable alternative means of reaching employees through the usual channels of communication exist before trespass will be authorized and denoting that inquiry in the analysis to one of three factors of seemingly equal standing, the analytical regime fashioned by this Court in Babcock & Wilcox is dismantled and the private property rights of the employer are substantially diminished and oftentimes destroyed.

A second principal argument that we submit to the Court why the First Circuit should be reversed is that the First Circuit and the board, while paying lip service to the holding of Babcock & Wilcox that so long as there are reasonable alternative means available to the union to reach the employees, no trespass should be authorized, nonetheless allowed the union's effectiveness in persuading employees as opposed to reaching employees to become a factor in judging whether trespass is warranted.

Third, the First Circuit endorsed the board's creation of an impermissibly low standard for establishing that the use of alternative communications methods is not reasonable.

In Sears & Roebuck v. San Diego Council of Carpenters, this Court stated that the burden of proving that trespass is necessary is a heavy one.

In Lechmere, the First Circuit and the board, we submit, in addition to allowing unfounded inferences, conjecture, and partial facts to satisfy this heavy burden, has given strong indications that a new and impermissibly easy standard for unreasonableness of a communication method has emerged by describing accessibility to the work force in terms of whether a union can obtain the names and addresses of employees through an employer-furnished list or otherwise.

Briefly, the facts in this case are as follows, Your Honors.

The petitioner Lechmere, a retailer, opened a store in Newington, Connecticut, employing 200 employees.

It established a no-solicitation, no-access rule, and consistently and unfailingly enforced that rule by prohibiting all efforts at solicitation, including the Salvation Army bell-ringer during the holiday season, the Girl Scouts of America, Burger King, the American Automobile Association, and so on.

On June 16, 198--

Unidentified Justice: Big hard-hearted employer, isn't it?

[Laughter]

Mr. Joy: --Your Honor, I would respond by saying that it's an indication of just how strongly this employer has asserted its private property interest.

On June 16, 1987, the United Food and Commercial Workers began a campaign to organize the employees at Lechmere by first putting a full-page ad in the Hartford Courant newspaper, which is the largest newspaper in the area of daily circulation.

The ad, by the way, was aimed directly at the employees.

A copy of one is attached to the joint appendix.

It was aimed directly at Lechmere employees, and it contained a clip-out authorization card with a self-addressed card for return.

Two days later, on June 18th, the union began a series of trespassory forays into the store and the parking lot of Lechmere, stuffing union literature inside merchandise and in the restrooms and handbilling in the parking lot, including the employee section of the parking lot, which was closest to a 46-foot-wide public grass strip that separated the parking lot from the Berlin Turnpike.

Forty-two feet of that grass strip is public land, meaning that the union organizers were able to come within 4 feet of where the employees parked in that section of the parking lot.

The employees arrived one-half hour before the store opened, and they left one-half hour after the store closed.

Unidentified Justice: Is that true of all of them?

Mr. Joy: It was true of most of them, Your Honor.

The testimony in the record indicates that the union was aware that the employees generally parked in that section of the parking lot.

In fact, may I quote the testimony of union organizer Lisa Meucci, who was asked this question by counsel for the general counsel of the National Labor Relations Board.

What steps did you take to ensure or attempt to ensure that leaflets reached the particular audience?

Answer: Arriving at the store between 9:15 and 9:30, making sure that people who parked their cars were employees.

The stores opened at 10:00, so most people that arrived at the store between 9:30 and 10:00 were employees.

The testimony of the union itself.

There's no question but that the union was aware that the majority of the employees parked in that section, which was accessible within 4 feet by public land.

On June 20th, the organizers again made three intrusions into the parking lot and handbilled.

The company's invocation of its no-solicitation rule against the union led to the--

Unidentified Justice: Excuse me.

So they knew that they parked there.

Mr. Joy: --Yes, Your Honor.

Unidentified Justice: But they still couldn't reach them there, right, unless... unless they went onto the land?

Mr. Joy: They... they could not walk up and touch them, Your Honor, but they certainly, within 4 feet, a distance greater than separates you and I, could beckon them to come over, all the while saying, I have a piece of literature here that you should be interested in.

Please come over and talk with me further about it.

I suggest to you that that short 4 feet distance should not rise to the level of making them inaccessible.

Indeed, Your Honor, there were other--

Unidentified Justice: Every car was 4 feet from this--

Mr. Joy: --No, Your Honor, but the... the length of property that bordered on Berlin Turnpike was several hundred feet in length, and the employees, while they all didn't, in one single line, up against that section of public land, park, nonetheless, I think that the testimony indicates that there may have been only two or three rows of cars, but certainly that first row of cars was within 4 feet.

And by the way, Your Honor, that's not the only method of reaching the employees that was available to the employees in this case.

Unidentified Justice: --I do hope you will expound the alternatives that were available.

Mr. Joy: Yes, Your Honor, and I will do that now.

The employees, for the next month and a half after the organizational campaign began, gathered the names and addresses of license plates of... gathered the names and addresses of employees through the taking down of license plate numbers, and going down the street a few miles to the Connecticut Division of Motor Vehicles, which... it would give them the names and addresses of those to whom the car was registered.

That was public information in the State of Connecticut.

The union employed that method to obtain the names of 49 employees.

It determined after speaking with an employee, with the help of an employee of Lechmere, that 8 of those 49 employees were supervisors.

Thus, they plugged the names of 41 of the 200 Lechmere employees into their computer, and then generated four pieces of mailing to each of those homes.

Those mailings included a stamped self-addressed envelope.

Each of those mailings exhorted the Lechmere employees, if they had an interest in improving their wages and benefits in terms of conditions of employment, to return that clip-out.

In addition, there was testimony in the record that none of those mailings were returned to the union addressee unknown.

There was no indication that these four mailings did not get through to these employees.

In addition to the mailings, the union made roughly 10 telephone calls to employees, and they made only two home visits.

The union doesn't explain why they only attempted two home visits.

They placed five more ads in the newspaper, four of them full-page ads and one half-page ad, one in the New Britain Herald and the other in the Hartford Courant.

In addition, for a month straight, this union picketed again on that grass strip, which allowed them to come within 4 feet of the employees' section of the parking lot, picketed for a month straight, and then for the next 6 months intermittently... now, that picketing switched its target from the organization of the employees to an area standards kind of a picket, but nonetheless, the employees every day when they came saw those pickets for a month and then intermittently for 6 months.

Justice O'Connor: Mr. Joy--

Mr. Joy: Yes, Your Honor?

Unidentified Justice: --The... the board found, I gather, that there were no feasible and effective alternatives to going on the property.

Mr. Joy: That's correct, the board so found, Your Honor, and I would submit to you that they applied an erroneous legal standard in defining what reasonable alternative means were.

We submit that what the board was saying and... and applying here was a standard under which the... the union must be effective, must have reasonable alternative means which are effective in persuading the employees, as opposed to effective in merely reaching them, and the Babcock command, the command that this Court gave in NLRB v. Babcock & Wilcox in 1956 was that the available methods need only be effective in reaching employees, not persuading employees.

Indeed, Your Honor, the Court in Babcock denied enforcement of a board order, and the underlying board decision found that there were no reasonable alternative means of communication because the methods of communication in the board's Babcock case were not... were in... were not as effective as placing the employees... the union organizers, I should say, on the employer's property.

The Court, while stating that the trespass that was authorized in Babcock was minimal and not unreasonable, nonetheless rejected the board's interpretation of that rule of law and said that more effective means isn't the issue.

The issue is whether or not reasonable alternative means are available by the usual methods of communication, and the Court cited as the usual methods of communication telephone calls, home visits, advertised meetings, and the like, and it appears in footnote 1, I believe, of the Babcock Supreme Court decision.

It... it also referred in Babcock not just to the usual methods of communication but the usual ways of imparting information.

In this case, the board and the First Circuit endorsing the board, I believe, has misunderstood that rule of law that was enunciated respecting reasonable alternative means.

It... indeed, in the board's own brief to this Court on page 11, it talks about the paraphrasing... or, I should say it paraphrased Babcock & Wilcox by talking about the effectively engaging in organizational activity.

That connotes to me that the definition, the interpretation, is one where they are convinced that the effectiveness means effectiveness in persuading and not reaching.

The summary dismissal of mass media by the board in Jean Country, endorsed by the First Circuit, where the board says, only in the exceptional case will we consider mass media to be an appropriate available method of communication.

And as Judge Torruella said in his dissent, in one clean swoop the board and the First Circuit have eliminated the very tools used by the entire advertising and political industry to reach its targeted audience, and without any evidence on the record in this case that the employees were not reached by these mass media attempts, the board summarily dismisses the very same method of communication that the union began its campaign with, and--

Unidentified Justice: Did the board explain, Mr. Joy, why it dismissed the mass media as a possible means of communication?

Mr. Joy: --It said, Your Honor, that in most cases it will be considered expensive or ineffective, and I believe that's further indication that they misconstrue the word effective to mean, effective in persuading as opposed to effective in reaching.

They also placed an expense component on it, and I submit to you that in this case the union certainly did not apparently consider that method of communication expensive.

Indeed, as I said, it utilized that method six times.

Your Honor, I would like to speak to the first argument that I mentioned, and that is that by relying on the Jean Country test the... the Supreme... the First Circuit relied on a legal erroneous foundation which fails to follow the applicable law.

As I mentioned, this was a unanimous opinion by eight Justices in 1956, and it construed the act and fashioned the legal rule that governs nonemployees seeking to trespass on an employer's property as distinguished from employees, and that rule prohibited trespassing except where the target employees were inaccessible and beyond the reach of less intrusive nontrespassory means.

We... I submit to you, Your Honor, that the Babcock Court placed a sentinel at the boundary of the private property, and that sentinel was a threshold inquiry... prove to me you have no reasonable available other means before I must let you by onto my property.

By reducing that inquiry to a relative contest among three of coequal status, the board and the First Circuit endorsing the board has taken that sentinel off his post guarding the property.

I... perhaps, if I may mix my metaphors, a little historical context of this most recent test enunciated by the board is helpful.

Two years prior to Jean Country... and by the way, Jean Country was decided in 1988... 2 years before that, in Fairmont Hotels, the board enunciated a test for access by nonemployees onto employers' private property, and in that test in Fairmont the board said, we're going to... going to balance the property rights on the one hand against the section 7 right on the other hand, and only if they are in equipoise will we then look to reasonable alternative available means.

Jean Country came along 2 years later, and the board apparently recognized its error and resurrected the threshold inquiry in Babcock from its obscurity and brought it up to a factor to be considered equally with the other two.

In essence, then, what the board did was it took the horse from behind the cart and put it into the cart, and that's what the First Circuit adopted by endorsing the board's order in this case.

Now, the... the Supreme Court decisions since Babcock have bolstered rather than diminished the vitality of the rule of law enunciated in Babcock.

Unidentified Justice: And what rule of law do you say has been violated by the board?

Mr. Joy: The... the board has taken the... mandated the required threshold inquiry into whether reasonable alternative means are available to reach the intended audience before we have to consider when and how much trespass is necessary.

The board has removed that threshold inquiry, that protection against unnecessary trespass, and that threshold inquiry, that decisional regime, was dictated by this Court in Babcock & Wilcox, I submit, Justice White.

Justice Souter: Would... would you agree that because the word reasonable is in there, it's perfectly appropriate for them to consider the strength of the property right and consider the particularity of the section 7 right acquired?

You just think they're giving it an undue prominence, and in effect promoting those two inquiries to the level of a test as opposed merely to being factors to be considered, is that true?

Mr. Joy: Our proposition, Justice Souter, is that before any analysis of the strength of the property right versus the strength of the section 7 right in question is to be engaged in, the threshold inquiry must first be asked and answered.

Unidentified Justice: Yeah, but the word reasonable is in there, and what are they supposed to consider when they... when they... when they inquire about reasonableness?

It seems to me that what you're saying is that... that they're really... that you're reading the word reasonable out of there, and it seems to me that you're saying as long as there is any other means of communication, any other means of reaching, that that's the end of the inquiry, but you've got to do something with the word reasonable.

Mr. Joy: Your Honor, allow me to respond by saying that we read the word reasonable in that context to mean reasonable in light and in the context of the remainder of the opinion... excuse me.

And the language in the remainder of the opinion says, but when the plant and the living quarters are isolated and rendered inaccessible, then reasonable alternative means may not be available.

So in that context of looking at the isolation of the plant and the living quarters, such as your lumber camps, your S&H Grossinger's Hotel, where the employees live on the premises, your Husky Oil, where employees of Husky Oil were up in Camp Lonely, 600 miles on the North Slope, north of Anchorage, in those contexts... contexts is... is reasonable alternative means intended to be read, and the word reasonable intended to be read?

So that I'm not suggesting to you that no... in no case would there be a situation where access would be required.

I'm using the language in the context of Babcock to define what is reasonable and what is not.

Justice Scalia: And you'd... you'd say expense has some bearing as to reasonable.

I mean, if the only way to get to them is to hire private detectives to find out where they live and one by one approach them in that fashion, that might not be reasonable.

Mr. Joy: I'm not submitting to the Court, Justice Scalia, that as an absolute rule expense is prohibited from consideration, but using an objective reasonable standard as applied to facts such as you present, certainly cost may be one factor.

But again--

Justice O'Connor: Mr. Joy, in... in Textile Workers v. Darlington Company, a case decided here after Babcock, I don't find a recitation of the structure that you say Babcock established, that you have to determine initially whether there are reasonable alternatives before you can weigh the business justification against the section 7 rights.

Darlington spoke of just going right ahead and... and weighing the section 7 rights against the employer's business justification.

Mr. Joy: --I don't believe, Your Honor, that Darlington involved the situation where nonemployees were part of the factual scenario of the case, but let me cite you to Sears & Roebuck, and the quotation appears on page 18, and this follows up to your comment on my earlier comment that subsequent decisions have tended to bolster rather than diminish the vitality of Babcock & Wilcox.

On page 18 of our brief, we cite the language in Sears which states as follows, if I may.

While there are unquestionably examples of trespassory union activity that might be protected under section 7, experience under the act teaches that such situations are rare, and that a trespass is far more likely to be unprotected than protected.

Experience with trespassory organizational solicitation by nonemployees is instructive in this regard.

While Babcock indicates that an employer may not always bar nonemployee union organizers from his property, his right to do so remains the general rule.

To gain access, the union has the burden of showing that no other reasonable means of communicating its organizational message to employees exists, or that the employer's access rules discriminate.

The burden is a heavy one, and has rarely been in favor of trespassing organizational--

Justice O'Connor: Do you think the board has changed the test from whether there are reasonable alternatives to whether there are reasonable and effective alternatives?

Mr. Joy: --Effective in persuading, Your Honor, and I would cite to you the board's own language in Jean Country, which says that, most significantly, in determining the factors that we will look at in assessing reasonable alternative means, most significantly, Your Honor, is the extent to which exclusive use of the nontrespassory alternatives would dilute the effectiveness of the message.

The--

Unidentified Justice: Well, the whole purpose of the communication is... is to... is to persuade--

Mr. Joy: --Correct, your Honor.

Unidentified Justice: --and it... it seems to me not a stretch at all to say that reasonableness and an evaluation of reasonableness includes an assessment of how effective the communication is going to be.

If you have a voice shouting in the wilderness, it just is... is not what this whole... the whole purpose of the organizers.

Mr. Joy: Your Honor, I would in response to your question say that the Babcock command which struck this construction of the act and erected this analytical regime required that only reaching... only whether the alternative means was effective in reaching the audience.

Now, someone who is using your hypothetical, crying in the wilderness, is not likely to be reaching the audience, and no consideration of persuasion should fall into that calculus.

Finally, let me say, Your Honors, that the board and the First Circuit rely on language from Hudgens v. the NLRB as its essential cornerstone in justifying the Jean Country analytical model, and that language states that the locus of that accommodation between property rights and section 7 rights may fall at differing points along the spectrum depending on the nature and strength of the respective section 7 right and the private property rights asserted in any given context.

We submit that this dictum may not be lifted out of context and used as a springboard for circumventing the Babcock analytical model.

As I've earlier stated, Hudgens falls in the middle of the line of Supreme Court cases reaffirming the Babcock formula.

It comes before Sears and the language I read.

The plain language in the Sears opinion informs that language in Hudgens.

The Hudgens language speaking of accommodation between property rights and section 7 rights and placing the locus on the spectrum is to be read as the board's function after the threshold inquiry commanded by Babcock has been answered in the negative, and that's what that language is intended to mean, and if it's interpreted that way, it fits.

If it's interpreted the way the board asserts, it circumvents the intention of Babcock & Wilcox and does not fit neatly into the line of cases I have identified.

Your Honors, we in conclusion request that the Court reaffirm the holding of Babcock & Wilcox.

Restore the sentinel of reasonable alternative means to its post, protecting private property against unnecessary trespass by nonemployee union organizers, and reverse the First Circuit's endorsement of the order of the board.

Mr. Chief Justice, I would like to reserve the remainder of my time for rebuttal.

Chief Justice Rehnquist: Very well, Mr. Joy.

Mr. Dreeben, we'll hear from you.

ORAL ARGUMENT BY MICHAEL R. DREEBEN ON BEHALF OF THE RESPONDENT

Mr. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court:

The issue in this case is whether the National Labor Relations Board has reasonably accommodated competing section 7 rights and property rights.

The board found in this case that petitioner's denial of access to its parking lot for organizational handbilling violated section 8(a)(1) of the act, which makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in their section 7 rights.

The board's interpretation of this general language is a reasonable one, and it should be upheld.

The petitioner's argument here today makes clear that its entire reliance is placed on the Babcock & Wilcox decision and inferences that petitioner draws from that decision.

But the board's rule that's under review today, however, is consistent with Babcock & Wilcox.

First, the central principle of Babcock & Wilcox is that the board must make an accommodation between private property rights and section 7 rights when the two conflict, and that accommodation must be obtained with as little destruction of one as is consistent with the maintenance of the other.

I would suggest that that formulation itself implies that the board should consider weighing the impact on respective rights before reaching the appropriate accommodation.

Chief Justice Rehnquist: Well, Mr. Dreeben, you're talking about an abstract proposition, which of course you have to talk about in a case like this, but there is a remarkable similarity to the layout, it seems to me, of Babcock & Wilcox and to the layout of this particular organization, yet in Babcock & Wilcox this Court said the board could not require nonemployee access, and in this case the board says yes, we can require nonemployee access.

Mr. Dreeben: Well, Chief Justice Rehnquist, the facts in Babcock were quite different than the facts in this case, despite the fact that both cases involve parking lots and both cases involve organizational activity.

From there, the cases fairly significantly diverge.

First of all, the property in Babcock was fenced property that was surrounding an employer's industrial plant, and it was entirely closed to the public.

There were no means of getting into... for any members of the public.

In this case, in contrast, the property is a parking lot that is essentially open to the public for anyone to come in and park and--

Unidentified Justice: I think the Court in Babcock emphasized that condition of the property.

They emphasize the availability of alternative means of communicating.

Mr. Dreeben: --No, the Babcock decision itself does not discuss the weight to be accorded to the property interest because of its characteristics--

Unidentified Justice: Yes.

Mr. Dreeben: --But I think that would be a mistake for this Court to read Babcock as having decided every possible case that could come before the board in the future without regard to significant factual distinctions.

This Court in Hudgins v. NLRB recognized that there are going to be--

Unidentified Justice: Well, do you think the board would be making a mistake under Babcock if they said it doesn't make any difference whether the media are available, or whether the telephone is available, or anything like that?

Mr. Dreeben: --Yes.

I think that the board does not have the freedom to say what it said in Babcock, which is that it doesn't matter whether nonemployees have alternative means.

What the board--

Unidentified Justice: Well, they... even, even if going on the property would be more effective?

Mr. Dreeben: --That's right.

The board... the board cannot simply make that judgment.

That's what the Court rejected in Babcock.

I think it's important to look at what Babcock actually decided.

The board in Babcock had equated the right of nonemployees to enter for purposes of engaging in organizational communications with the right of employees to engage in that form of communication, and this Court reversed that determination, and the central principle that the Court articulated was that the balance is different when you have nonemployees.

The employer has a right to maintain the privacy of the property if there are not reasonably effective... if there are reasonably effective alternatives available to the nonemployees.

Unidentified Justice: Well, is the board's position that the instruments of the mass media are less effective means of communication today than they were when Babcock was decided in 1956?

Mr. Dreeben: Well... well, in Babcock this Court never adverted to the availability of mass media as an alternative means.

The Court was... was looking at a small-town setting in which it spoke of meetings with employees on the streets of the community, visits at their home which were easily arranged, telephone calls... they were speaking of the kinds of personal contact that I think is not uncommon to be able to arrange in a small-town setting, particularly in that era in that part of the country.

The Court was not speaking of... of the kinds of suburban/urban setting that was present in this case, where the employees are widely dispersed and one newspaper is available that has a circulation that's perhaps 10 percent of the entire population.

It would be, I think, extremely different, and this Court never confronted the problem of whether mass media is effective in this setting.

Justice Souter: No, but in this... in this setting, Mr. Dreeben, the... on the... the people who are standing on the grassy strip could have held up a big sign saying there's going to be an organizational meeting at the legion hall on a given night at a given time.

They could have communicated that message certainly effectively as communication, and they could then have had just as much opportunity to meet with people on a person-to-person basis as they would have on the streets of the small town, except for one thing, and that is the people who went to the meeting would have to go to it because they wanted to go to it and not because they got buttonholed on the street.

Now, if that is an effective means of communication, then the only distinction between the two situations is that it may be a less effective means of persuasion, because it is a less effective means of getting less than willing employees before you.

Isn't that the only distinction?

Mr. Dreeben: No, I don't think that it is, Justice Souter, but from the outset, the point here is that the section 7 rights that are being protected are the rights of the employees.

The Court has recognized that employees are not going to be capable of... of exercising those rights in a meaningful way unless they are provided with the information that enables them to make a choice.

Justice Souter: Yes, but you're not talking, though, about information, you're talking about effectiveness in persuading them to get to a place where the information can be given if they want to receive it, isn't that fair to say?

Mr. Dreeben: Well, I... I don't think that it's fair to say that the board looks at whether the... the information that the employees receive is persuasive to them.

A sign that's held up that merely announces a meeting doesn't really provide the employees with any information, doesn't provide them with... with much more than the knowledge that a union exists and would like to talk with them.

The--

Justice Souter: And will talk with them at a specific time and place if they are willing to go there.

Mr. Dreeben: --Well--

Justice Souter: That's more than just the picketing did.

I... you may feel they characterize the picketing, but that would be a fair characterization of my organizational meeting hypo.

Mr. Dreeben: --Well, I don't think that this Court had in mind, even in Babcock, that the only thing the union had to be able to do was announce its existence.

There's a recognition that the employees need to have a more sustained opportunity to hear from the union organizers before they're even going to want to come.

Justice Scalia: Even if they don't want to, you say that they must be given this information, even if they don't want the information?

Mr. Dreeben: Well, with the--

Justice Scalia: Even though it's only employees' rights... as you say, section 7 is only rights of employees.

It does not give rights to nonemployees, it does not give rights to organizers.

The only thing we're talking about here are rights of employees to receive information.

Mr. Dreeben: --That's correct, Justice Scalia.

Justice Scalia: And you say that they have a right... a right to receive information, even information they don't want to receive, and we're going to sort of force-feed them.

I... that's a very strange right to me.

Mr. Dreeben: Well, it's not clear that they don't want to receive the information.

Justice Scalia: Well, yes, it is.

They see the sign.

It says, there's a meeting for this information.

They say, I don't want to go to the meeting.

I don't want to go to the meeting.

You say that's not adequate.

Mr. Dreeben: No, I don't think that it is adequate, because it doesn't allow them to have any opportunity, it doesn't allow them to be confronted with the facts that may influence--

Justice Scalia: Which they don't want to hear.

Mr. Dreeben: --Well, they may ultimately not want to hear it, even if the employees simply get the opportunity to receive the information from the union.

They can reject it at that point, and there's no... the board is not saying here that... that nothing is effective short of persuading the employees that they ought to join a union, but what the board is saying is that the employees should be given the information so that they have the opportunity to make a decision.

Unidentified Justice: It seems to me if we're talking about employee's rights... and that's how the statute reads.

It talks about the right of employees.

Why isn't that adequately satisfied so long as the employer is not keeping employees from obtaining information that they want to receive, and it seems to me that's adequately done when he allow... you know, he's not blocking off the pickets so that they couldn't see those signs on the... on the grassy strip.

Mr. Dreeben: Well, this Court has recognized that it is a literal interference with the employees' ability to get information if the employer prevents someone from handing them a handbill.

I mean, Babcock & Wilcox itself recognizes that there is a violation of section 8(a)(1) by the employer's denial of access, so I don't think that there's any question that the language of the act read literally applies to an employer's attempt to keep the employees from getting the information.

In this case, the employer's representatives actually pulled a handbill out of the hands of the employees, and I would suggest that is a literal interference with the right to get information.

Unidentified Justice: Because it... because it had been delivered through... through trespass, because the people who passed it out had no right to be on the... on the property.

Mr. Dreeben: Well, that... that's the issue in this case, whether they had a right to--

Unidentified Justice: Of course it is.

Mr. Dreeben: --Federal law does give the employees the right to organize, and this Court has recognized that in order meaningfully to exercise that right there's a need for the employees to be addressed by organizers.

They are not likely to have the information on their--

Unidentified Justice: Well, Mr. Dreeben... Mr. Dreeben, I take it if the... let's assume the employer said, I will distribute to every single one of my employees this notice of the union meeting and the purpose of the meeting.

I take it that you would say that that's wholly inadequate.

Mr. Dreeben: --Well, I don't think that--

Unidentified Justice: Yes or no.

Mr. Dreeben: --Well, I'm not sure what the board would say about that question.

Unidentified Justice: You don't?

Well, what do you think the board would... should say?

Mr. Dreeben: I think that the board should look at the actual facts of the situation, but I don't think--

Unidentified Justice: Well, the fact is, the employer makes sure every single employee knows what... that there's a meeting and that the union wants to give them some information about how valuable it is to belong to a union.

Mr. Dreeben: --Well, I don't think that the act contemplates that the employer should be the vehicle for this--

Unidentified Justice: I know, but it just so happens the employer is willing to do that just to avoid a lot of hassle.

Mr. Dreeben: --Well, that is not likely to be a way that the employees are going to receive the undiluted message of what the union has to say.

Unidentified Justice: So you say that would not be enough, the board would be entitled to say that that is not a reasonably effective alternative way of communicating.

Mr. Dreeben: I... I'm not sure what the board would say about that.

I do not think that if--

Unidentified Justice: Well, what would you say if the employer went a little step farther and said look, I'm going to... I'm going to distribute to every single employee a notice of this meeting, and then I'm going to add to it a little paragraph that the union will write for me about how great it is to be a member of the union.

He hands... that's all out, now.

Do you think the... do you think there has to be some reasonable way of the union contacting the employees in person?

Mr. Dreeben: --I think that that's a very significant component of what the board is looking at.

I don't think it's--

Unidentified Justice: Well, your answer is yes, I guess.

Your answer is just plain yes.

There has to be some reasonably effective way of actually communicating in person.

Mr. Dreeben: --In an organizing setting, either in person or by the... over the telephone would likely be a necessity.

The employer would always have the option of giving the union a list of the employees and allowing the contact--

Unidentified Justice: No, not if the employees said, don't do it.

Mr. Dreeben: --Well, there's... there's certainly... this is not... this doesn't raise the case in which the employee said, don't do it.

There have been cases in which the employer has distributed a list of the employees and the board has found that to be a satisfactory alternative under these particular circumstances, so there are alternative ways for the employer to deal with this.

Unidentified Justice: And calling to them from a grass strip is not in person?

Hello, I want to talk to you about the union, and the person says, I don't want to hear it, that is not in person?

Mr. Dreeben: Well, that is... there's nothing in the record to show that that actually happened in this case.

What the employer did was attempt to eject the union from the public property itself and called a policeman to do that.

The policeman then informed the union that they had a 10-foot strip of public property that they could stand on.

Justice Scalia: That might... right, but I mean that might have been an unfair labor practice.

We're not talking about that, to try to eject them from public property.

But assuming that they're on public property and can... we know the distances here... could shout at the people getting out of the cars, we want to talk to you about the union.

That would not constitute a personal contact?

I mean, what does it take to constitute a personal contact?

Mr. Dreeben: Well, I... I think a personal conversation does constitute one.

I think, Justice Scalia, that what your question goes to essentially is whether there was substantial evidence to support the board's finding in this case.

Justice Scalia: I... I think what it goes to is... I do think you're saying what the board desires, and that is that there be more than just an opportunity afforded to the employee either in person or by advertisement to get information that the employee wants.

I think, as you say, the... the information must be given to the employee, whether the employee wants to hear it or not, and unless there's some opportunity for that, you just simply don't think it's adequate access.

Is that... is that an unfair characterization?

Mr. Dreeben: I think that... that whether there is or isn't adequate access is something that depends on particular facts, and... and it could well be that in a particular case the board would find that access from public property to the employees was certainly good enough.

Unidentified Justice: Well, that isn't the point, whether it's access from public property.

The point is whether it is enough access to give the employee the clear notice that the information is available and let him say that he wants to receive it or doesn't want to receive it.

Is that enough access?

Mr. Dreeben: I don't think that's what this Court said was enough access, even in the Babcock case.

In the Babcock case, the Court talked about the union communicating directly with the employees through visual methods such as telephone calls, visits on streets, home visits, and those... those were part... that was part of what the Court thought would constitute a reasonable way for the union to be able to get in touch with the employees.

Unidentified Justice: But communicating what?

Communicating, I'd like to talk to you about the union, and if the employee said, you know, to the person at the door or on the street, I don't want to hear it--

Mr. Dreeben: Sure.

That... that is certainly all that's required by the act.

The employees are not required to accept the message.

As the board--

Unidentified Justice: --So that presumably would work from the parking lot as well.

I want to talk to you about the union, and the person says, I don't want to hear it.

You say that... that would be enough.

Mr. Dreeben: --If the... if the union actually has the opportunity to talk to the employees.

Unidentified Justice: Holding up a sign, though, I want to talk to you about the union, and the person says, I don't want to hear it, that... that's... that doesn't work.

Mr. Dreeben: Well, I think the board has the right to make the judgment that that's not going to be a reasonably effective way for the employees to even understand what the union wants to talk to them about, and that is, after all, what the board's mission is in this case, and when the Court spoke of the accommodation of interests in the Hudgens case, it had in mind that the board would take into account the character of the property and the kind of section 7 right and question in deciding whether there was adequate protection of the section 7 right in question.

Justice O'Connor: Mr. Dreeben, do you think that Babcock & Wilson stands for the proposition that it is a two-tier inquiry, that you first have to determine whether there are reasonable alternatives to the trespass in order to contact the employees, and only if the answer to that is no would you go on?

Mr. Dreeben: I don't think, Justice O'Connor, that Babcock structures the inquiry so that the board is precluded from doing what it does here, which is considering the reasonableness of alternatives in conjunction--

Justice O'Connor: As part of the overall balance.

Mr. Dreeben: --That... that's correct.

Justice O'Connor: That is what the board does.

Mr. Dreeben: That is what the board does.

The board will not order access if there are reasonable alternatives available.

Justice O'Connor: But it doesn't consider that first or separately.

Mr. Dreeben: It does consider it separately in the sense that if there are reasonable alternatives available, that's the end of the case, but the board does not view that as a factor in isolation from other factors, and I would suggest that's exactly what this Court recognized that the board might do in Hudgens v. NLRB, where it spoke of the accommodation as falling as... on points along a spectrum.

There's nothing to suggest in that case that the Court's language should be read as... as saying that the board can only look at the section 7 right and property right after it looks at alternative means, and Babcock should not be read so as to restrict the board's latitude in interpreting the act in that fashion.

Unidentified Justice: Well, I... under Jean I would think that it may be that alternatives would be reasonable, considered reasonable in one case and unreasonable in another, depending on the degree of intrusion on the property?

Mr. Dreeben: That's correct.

The... the purpose of that inquiry is to fulfill what the board spoke of in Babcock.

Unidentified Justice: So you are balancing the reasonableness against the degree of intrusion.

Mr. Dreeben: What the board is balancing is how much section 7 rights will suffer against how much property rights will suffer.

Unidentified Justice: Mr. Dreeben, in the... the board's order here required, as I understand it, the employer to allow access to the parking lot for the purpose of distributing handbills and leaflets to the employees.

Is it possible to tell from the board proceedings whether they had in mind personal contact when the material was distributed, or whether it was thought it was just going to be left on the windshields of cars or stuck in the seats?

Mr. Dreeben: Well, I think that there's... there's aspects of both.

Unidentified Justice: Because one... one would think that if... if your requirement that it be a personal contact is uppermost in the board's mind, that putting it on the windshield or sticking it in somebody's seat is not certainly most people's definition of that sort of personal contact.

Mr. Dreeben: Well, what the board is doing is deciding whether there was an unfair labor practice with respect to the employer's conduct in this case.

What the union did in this case was attempt to place handbills on the windshields of cars.

They handed them to the employees who they saw.

The employer's unfair labor practice was in barring the union from doing that.

The board is not insisting that there be a particular kind of contact or interaction between employees--

Unidentified Justice: Or even a personal contact, as you earlier spoke of.

Mr. Dreeben: --It's not insisting that that be the case at all.

What it is requiring is that the union be permitted to do that which the act entitles it to do, measured against the union's actual conduct in... in this case.

Justice Kennedy: Well, it... it seems to me that if... if we affirm the board here, in effect there will be a general rule that absent some special circumstances union organizers always have access to an employer's parking lot.

Mr. Dreeben: No, I don't think that... that the rule, Justice Kennedy, would be absent special circumstances.

The question would be, are there reasonable alternatives to access under the--

Unidentified Justice: Well, in most cases it's going to advertising, telephone, and I don't see how the run-of-the-mill case would really be much different than what we have here.

Isn't that a fair assumption?

Mr. Dreeben: --No it isn't, because many kinds of facilities will have public property where the employees enter, and there will be an opportunity for the union to make contact with the employees before they get on the employer's property.

Unidentified Justice: But it seems to me that in almost any conventional suburban shopping mall or shopping center context that the general rule would have to be that there's access to the parking lot, even if the employer owns it and controls it.

Mr. Dreeben: Well, I--

Unidentified Justice: I just don't see how to... I'm not saying that's an unreasonable rule, but it seems to me that that's the necessary thrust of this decision.

Mr. Dreeben: --I think the thrust of this decision is that the board is entitled to take into account the fact that a parking lot is essentially open to the public and that the infringement on the employer's property interest in allowing a small amount of peaceful, quiet organizational activity is not a substantial infringement.

Unidentified Justice: I... I agree that that's a fair assessment of what the board has done here.

Mr. Dreeben: And... and what the board--

Justice Scalia: Mr. Dreeben, may I... Justice Kennedy may not think it's not... it's not an unreasonable rule, but hasn't the Court suggested that it would be an unreasonable rule in the... in the language from Sears that your colleague referred us to, where... where we did seem to establish... it's dictum, to be sure, but it reflects our understanding of Babcock & Wilcox.

We did seem to say that you don't weigh the reasonableness of access together with the degree of infringement on property rights.

It seemed to be a preliminary inquiry.

We said, to gain access the union has the burden of showing that no other reasonable means of communicating its organizational methods exists.

The burden is a heavy one and has rarely been in favor of trespassory organizational activity.

That statement could certainly not be made if we accept the board's action in the present case.

You could certainly--

Mr. Dreeben: --No, Justice Scalia, I don't--

Unidentified Justice: --not say that the burden is rarely in favor of trespassory activity.

Mr. Dreeben: --Well, I don't think that what the Court was doing in Sears was attempting to foreordain how the board might apply the act in future cases.

What the Court was doing in Sears was summarizing certain language from Babcock and stating what it had understood the board's practice to be, and that's what the Court meant when it said the balance has rarely been struck in favor of access.

Justice Blackmun pointed out in his concurrence in that case, I believe, that the board's experience had been comparatively limited in applying Babcock, because for several years there had been First Amendment holdings of this Court that recognized shopping centers as essentially forums protected by the First Amendment, and the board had not gained as much experience in developing and applying the law, so what the Court did in Sears was look to the existing state of the law and summarize it.

I don't believe that it purported to change it.

I certainly don't believe that it purported to overrule the statement in Hudgens, which was an access case, where the Court said that there are a spectrum of various accommodations that depend upon the character and strength of the property interest and the section 7 interest in any given case.

That is what the board is attempting to implement in this case.

What the board is doing is not inconsistent with Babcock, because the board does look to reasonable alternatives in every case.

Whether or not every decision is supported by substantial evidence is not a question that goes to the merits of the board's general approach, and the board's approach is fully consistent with the statutory language.

I think on that basis it is entitled to be upheld.

The... the question of mass media was raised by petitioner as being a panacea, as a form of access in all cases.

I think the board's answer to that is a quite reasonable one.

If you're attempting to reach 200 employees who live in a fairly large metropolitan area, the expense and the unlikeliness that the newspapers will actually convey the organizational message is a powerful reason for rejecting mass media as an alternative in every case.

Similarly, in this case the board looked at... at what the union had available for contacts with the employees at their homes through tracing license plates and concluded that that was not effective either.

The reason is that the union attempted to trace license plates over several months, and it obtained less than a fifth of the names of petitioner's employees.

That is not going to get the message about the union's existence and the programs that it supports to four-fifths of the work force, and I think the board was fully entitled to reject that.

Justice Stevens: May I ask you, on the newspapers, does the record show whether these were home-delivered papers, or were they suburban papers that are delivered in large blocks to different places like stores?

Mr. Dreeben: The record doesn't show that.

I think that the Hartford Courant is a general circulation daily newspaper, so that it would be delivered to homes and subscribers.

Of course, some of the newspapers actually--

Justice Stevens: What were the other two papers?

Are they the same character, do you know?

Mr. Dreeben: --I don't know, and I'm not sure that the record shows that.

Justice Stevens: You don't know whether they're even... they're throw-aways, or there was a... you know, they had to pay for them.

Does the record show that?

In other words, I notice there were bunches of newspapers at the stores, and the store took out the advertisements by the union from the ones they had at the store.

Mr. Dreeben: Yes.

That's precisely my point, Justice Stevens.

The... to the extent that we knew that there were newspapers that the employees might be exposed to, the employer did everything it could to prevent the employees from seeing it, so this is a far cry from any case where the employer was cooperating in communicating information to the employees for that purpose.

Justice Scalia: Mr. Dreeben, make sure I... is this an unfair characterization of what I think the board is saying?

Let's assume that through various means union organizers can reach 60 percent of the people in the shop they're trying to organize.

As I understand the board, the board is saying that that can be reasonably effective access to those employees in some cases, namely where the employer does not have a building open to the public, but that is not reasonably effective access to the employees in another case... 60 percent is good in one case and not good in the other.

Mr. Dreeben: In essence, Justice Scalia, that is correct.

The board does balance the impairment of the interests at stake, so the question is, how much have the section 7 rights suffered in a particular case by the denial of access versus how much have the property rights been injured in a particular case by access, and so it does matter what kind of property is at issue.

Unidentified Justice: This is hardly the way Babcock reads, is it?

Mr. Dreeben: Well, I--

Unidentified Justice: You would think under Babcock there was just some concept of reasonable alternative ways of communicating, which you talk about, and it's a constant.

Mr. Dreeben: --I don't think that Babcock can be read as answering all of the questions that the board--

Unidentified Justice: Well, I agree with that, but I take it you disagree with my characterization of Babcock in this respect.

Mr. Dreeben: --Yes, I do.

I think that Babcock was a specific application of... of the Labor Act to a particular set of facts, and it cannot and should not be read as foreordaining what the board has to do in future cases.

It's a widely shared consensus in the law that open property is of a different character than closed property.

This Court's Fourth Amendment cases treat the home and its curtilage far differently than open fields are treated.

California affords a right of access to shopping centers as essentially public places where it's appropriate to engage in expressive activity, and this Court upheld that against constitutional challenges.

Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Mr. Dreeben.

Mr. Joy, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF ROBERT P. JOY ON BEHALF OF THE PETITIONER

Mr. Joy: Thank you, Mr. Chief Justice.

With regard to the last point made by my colleague, let me simply state that the... the Court did not intend, it seems to me, that by exercising its right to invite, that a commercial retailer suffers a self-inflicted wound to the most essential property right in the bundle of property rights, the right to exclude, and by relying on this openness of property argument and trying to establish that a retailer, particularly, by inviting people to shop somehow has given away his right to exclude, I believe is misplaced.

Unidentified Justice: And he excluded every other kind of a--

Mr. Joy: Indeed he did, Your Honor.

Unidentified Justice: --Of a--

Mr. Joy: He excluded every other trespasser who came on to his property to engage in activity inconsistent with its commercial use.

Let me finally, if I may, refer you to the administrative law judge in this case, who found that reasonable alternative means did exist in this case.

He said, I would state that the facts herein convince me that reasonable alternative means were available.

The employees were easily recognizable here.

They parked in specific areas and arrived at predictable times.

Then he went on to state a distinction between availability and reaching an availability and persuading by saying, even if union representatives were unable to converse with them prior to entering the store, the union could and did utilize the procedure of writing down license plates, and went on to say that Fairmont does not require the union to be successful in its contacts with employees, only that it have reasonable means of communicating with them.

Unidentified Justice: --Do you have any courts of appeals that agree with you?

Mr. Joy: Your Honor, I can distinguish the courts of appeals cases that--

Unidentified Justice: But the answer is no.

Mr. Joy: --The answer is no, Your Honor, but Jean Country, if I may, has never been squarely challenged as has been done in the Lechmere case.

In all of the courts of appeals decisions up till now, Jean Country... there's been no challenge launched against Jean Country.

Thank you, Your Honors.

Chief Justice Rehnquist: Thank you, Mr. Joy.

The case is submitted.

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Debartolo Corp. v. Fla. Gulf Coast Trades Council - Oral Argument

Wed, 13 Apr 2011 20:09:55 +0000

Case:

Debartolo Corp. v. Fla. Gulf Coast Trades Council

Media File:

86-1461_19880120-argument.mp3

Related Transcript:

86-1461_19880120-argument.xml

Transcript:

ORAL ARGUMENT OF LAWRENCE M. COHEN, ESQ. ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: Mr. Cohen, you may proceed whenever you're ready.

Mr. Cohen: Mr. Chief Justice, and may it please the Court:

The facts in this case are simple and not in dispute High's, a building contractor, was engaged by Wilson's, a retailer, to build a department store.

The department store was to be located on a shopping center owned by DeBartolo.

The union had a dispute with High's because it allegedly paid non-union or sub-standard wages.

The union did not have a dispute with Wilson's.

It did not have a dispute with DeBartolo, and it did not have a dispute with any of the tenant stores, approximately eighty-five tenant stores, that were located on the shopping center.

Neither DeBartolo nor the tenant stores had any relationship whatsoever with High's.

Now, the union had many ways to express its message, but it did not its message as to High's allegedly substandard wages.

It did not, however, picket or place any economic pressure whatsoever on High.

It did not boycott or place any economic pressure on Wilson's.

It did not merely publicize to the public the fact that High paid sub-standard wages.

Instead, the union took a different lack.

For three weeks during the Christmas season, busiest time of the year, the union placed hand billers at all the entrances to the interior mall of the shopping center and urged a total consumer boycott of all the tenants of the shopping center.

It only stopped when it was enjoined after the Florida courts found irrevocable injury.

In 1983, this Court heard the case and unanimously concluded that the hand billing was not protected by the publicity proviso of Section 8(b)(4) of the National Labor Relations Act, that the required producer-distributor relationship of that section had not been met.

The proviso, the Court indicated, was not intended to preclude all types of peaceful, truthful hand billing, only hand billing that met the terms of the proviso, the three terms of the proviso was to be protected.

The case was then remanded.

Unidentified Justice: Why?

Mr. Cohen: For two reasons.

It was remanded to determine if there was coercion within the meaning of Section 8(b)(4).

Unidentified Justice: Whether this hand billing was coercive?

Mr. Cohen: Correct, and, if so, whether it was protected by the 1st Amendment.

The Labor Board first, there was no dispute, of course, that the union's objective was forbidden and that those tenants were neutral employers.

The only question, of course, was whether there was coercion.

The Board found there was coercion because the purpose of the union hand billing was to impose substantial economic harm on the tenant stores, and it concluded that was not unconstitutional.

The 11th Circuit, however, refused to enforce the Board's order.

It held that only picketing focused exclusively on the form of the union's conduct.

It held that only picketing could be coercive within the meaning of Section 8(b)(4), and that every other form, hand billing or any other form of publicity, would not be in any way coercive or prohibited by Section 8(b)(4).

The decision, we submit, is contrary to the specific language of the Act itself.

The Act itself does not only talk about hand billing I mean, about picketing, the Act talks about any action that threatens, coerces or restrains a neutral employer.

A threat, for example, to engage in conduct to shut down the business of a secondary or to impose substantial economic harm on them, however that threat is communicated, would be prohibited by the Act.

Similarly, coercion, as this Court indicated in Tree Fruits, whether by picketing or otherwise, is forbidden by Section 8(b)(4), and coercion, as this Court has defined it in both Safeco and Allied International, is any conduct which predictably encourages customers to boycott a secondary business or which reasonably can be expected to threaten neutral employers with ruin or substantial loss.

That's certainly what happened here, and that's what the Board found.

The only type of coercive conduct that's exempted from the statute is that which meets the three specific terms of the proviso; it has to be truthful, it has to involve a producer-distributor relationship, and it cannot induce a work stoppage.

If it doesn't meet the terms of the proviso, then it is coercive within the meaning of the Act and prohibited by the Act.

The union here did not, let me repeat, did not just try and express its message.

That, it was permitted to do.

It could have said in any way it wanted to that High did not pay sub-standard wages.

What it did impermissibly here was go a step further and add to that message the fact of trying to impose pressure, economic pressure, on the neutral tenant stores.

That's where the union violated the Act.

Prior to the decision in this case, that's been the decision of not only all the lower courts and the Labor Board itself consistently from the thirty years since those amendments to the statute were passed.

The court below disregarded that history and it disregarded that language.

Its read of the publicity proviso, as the 7th Circuit said in Boxhorn, as simply so much blab.

The publicity proviso served no useful purpose.

It was a pointless gesture.

It was a mere collection of idle words because if the publicity proviso, as the union now argues, was only a clarification point.

The statute never covered anything but picketing to begin with and the proviso only applies to non-picketing publicity.

That is, we submit, the vice here.

It's not a the union position is not one that is supported by the legislative history of the Act.

When the Act was passed, the purpose was to prevent direct coercion of secondary employers.

That's what this Court indicated in Tree Fruits.

Now, there were differences, of course, as between the House and the Senate as to how you could prevent direct coercion of secondary employers.

The House said, we think it ought to be prohibited, as they explained in the joint analysis, by any conduct, whether it be picketing, leafleting, radio broadcasts, advertisements, any of that conduct would have been prohibited by the House.

The Senate did not agree.

The Senate had no restrictions on secondary consumer boycotts.

As a result, there was a compromise, and that compromise is embodied in the publicity proviso to the Act.

Some non-consumer some non-picketing consumer boycotts are allowed, but only those that meet the three terms of the proviso.

Other non-picketing publicity, if it's coercive and it's not protected by the proviso, is forbidden.

It doesn't matter on how the union does it, whether it's doing by picketing, hand billing, leafleting.

The only question is whether it has complied with the terms of the proviso.

If it has, then it can make its appeal, even if it's coercive.

If it hasn't, it can't.

That's the parameters of the conflict--

Unidentified Justice: Mr. Cohen, can I ask you this question?

Assume that the union wanted to disseminate precisely the same message by using some trucks and outside the shopping center, maybe radio ads or newspaper ads, which would, of course, not be picketing, would that have been prohibited by the statute?

Mr. Cohen: --If the intention is to cause substantial harm to the secondary--

Unidentified Justice: Well, it's the same intention here.

Mr. Cohen: --That is correct.

Unidentified Justice: That's precisely the same because they don't want people to be going to the shopping center and buy in these stores until High gets its wages up.

Well, it still has to be objectively coercive.

Mr. Cohen: That's correct.

It has a trivial effect for example, if it's an advertisement placed in some distant location that's--

Unidentified Justice: No, no.

I'm assuming the audience is the same.

It's beamed at the people who regularly shop there by sound or something, but it's not right on the at the that still would be coercion.

Mr. Cohen: --In our opinion, yes, because that predictably encourages a secondary boycott, and that's the test of coercion as this Court has set it in Safeco and Allied.

Unidentified Justice: Would it matter in this case if nobody ever paid any attention to the hand billing?

Mr. Cohen: The question would come up at the outset of the hand billing.

If the Labor Board could conclude, and the Labor Board, of course, is the expert tribunal, conclude that what the union is doing has the foreseeable consequences of causing loss of business to the secondary, if that's a foreseeable consequence, if that's the likelihood, and that was proven at the course of the hearing, an injunction or unfair labor practice, then that would be a coercive conduct and forbidden.

Unidentified Justice: Were there--

Mr. Cohen: The union could come in and say, well, no one paid attention, it wasn't effective, it didn't have those foreseeable consequences, then, of course, that would be counter-evidence the Labor Board would have to assess.

Unidentified Justice: --Were there findings in this case as to what the consequences of the hand billing were?

Mr. Cohen: The finding of the Board was that the union's conduct would cause substantial loss to secondary employers.

Secondary employers being the neutral tenant stores and, by process, then, of course, also DeBartolo.

Unidentified Justice: Well, Mr. Cohen, suppose we think the statute was intended to reach this kind of activity, how do you deal with Organization for a Better Austin, that case, that says even coercive hand billing is entitled to 1st Amendment protection, and what standard do we then apply?

Mr. Cohen: The difference is this case arises under the Labor Act, where you have a delicate balance, to use Justice Blackmun's phrase, between the public interests, public interests in precluding this threat of labor discord on one side, public interest, as opposed to the interest in communicating the message.

In Better Austin, the opposite was not a public interest, it was a private interest of an individual business man to be free from embarrassment and ridicule.

Secondly, in Austin, what you see--

Unidentified Justice: The language was very broad.

Mr. Cohen: --That's correct, but it wasn't done by a labor organization which, here, has many ways to express its message.

The union here was entitled to go out and communicate its message that High did not pay sub-standard wages.

It could communicate that coercively, if it wanted to, by picketing High or boycotting Wilson's.

In Citizens for Better Austin, there was a blanket injunction which prohibited anyway of communicating that message throughout the whole town that was involved where the real estate broker had his residence.

It was a blanket injunction that precluded any spread of the message.

It was a situation where the only counter-balance to communicating the message was a private message on the part of the broker as opposed to the public interests we have here, which is the public interest of Section 8(b)(4), which is not to enmesh neutral employers in labor disputes of others.

That's the counter-balance here.

Unidentified Justice: And what tests do we employ?

Do we look for a compelling state interest or what?

Mr. Cohen: We look to the test of whether we're regulating this type of conduct, is there a strong government interest, does the statute directly advance that strong government interest, and does it advance it no further than necessary--

Unidentified Justice: Some commercial speech standard.

Mr. Cohen: --It's akin to the commercial speech.

That's correct.

It's analogous to the commercial speech cases.

Unidentified Justice: Is that a standard applied in the picketing?

Mr. Cohen: It's a standard that was applied in Safeco, we believe, and it's the standard that was applied in Allied, which was not a picketing case.

Allied International.

Unidentified Justice: Were there five on that constitutional holding?

Mr. Cohen: In Safeco, there were six members of the Court that reached the constitutional issue.

Unidentified Justice: And--

Mr. Cohen: And found that that was constitutional.

Unidentified Justice: --that was constitutional.

Mr. Cohen: That's correct.

There were three dissents who did not reach that question because they found it was not covered by the statutes.

The key in the constitutional argument in our point, in our opinion, is that since at least 1940, this Court has said that Congress can set the permissible contact, the limits of permissible contact, that's open to industrial combatants.

Where conduct is designed not to coerce and not to communicate, that has always been held to be consistently conduct which this Court can regulate which the Government can regulate consistent with the 1st Amendment.

In Safeco, the situation was precisely that we have here.

The union was attempting to communicate to consumers a message, don't shop or don't do business with the particular employer.

The only difference between the two cases is that case involved communication by picketing, this case involves communication by hand billing.

Chief Justice William H. Rehnquist: We'll resume there at 1:00, Mr. Cohen.

Mr. Cohen, you may resume your argument.

Mr. Cohen: Unless the Court has additional questions of me, I think this is probably an appropriate time to save the rest of my time for rebuttal and turn it over to the Government.

Chief Justice William H. Rehnquist: Very well, Mr. Louis Cohen, we'll hear now from you.

ORAL ARGUMENT OF LOUIS R. COHEN, ESQ. IN SUPPORT OF PETITIONER

Mr. Cohen: Mr. Chief Justice, and may it please the Court:

What the union is claiming in this case is that it has a constitutional right to do exactly what Congress has forbidden, if enough shoppers in the East Lake Square Mall agree with it.

Congress said thou shall not coerce the neutral businesses in the mall into helping in the dispute with High's, and the union's core claim is that it is constitutionally entitled to put that prohibition to a sort of shoppers' referendum, to issue an explicit call for a secondary boycott and ask the shoppers to decide that the neutral businesses should be coerced after all.

Some calls for boycott, of course, receive the highest constitutional protection.

Claiborne Hardware and Citizens for a Better Austin are leading examples.

But the Court has said repeatedly, including in Claiborne Hardware, that the tactics used by the combatants in a particular labor dispute are not entitled to that level of protection.

In particular, the Court said in Claiborne Hardware, secondary boycotts by labor unions may be prohibited in the interests of preventing the coerced participation of neutrals in industrial strife.

Professor Cox put it this way in his comment on Safeco, he said,

"requests for immediate assistance in putting economic pressure upon one with whom the speaker is engaged in driving a private business bargain are readily distinguishable from words looking forward to political action."

Unidentified Justice: Who is being coerced in this case by the hand billing?

Mr. Cohen: The objects of the coercion in this case are the other stores in the mall who have no relation to any of the parties, either of the parties to the dispute, but who the union felt would be in a position to bring pressure on the mall owner, to bring pressure on their co-tenant, Wilson's, to bring pressure on its contractor, High's, to offer better wages and conditions to its employees.

Unidentified Justice: That's the coercion the Board identified?

Mr. Cohen: It is the coercion of the neutral stores in the mall, yes.

Unidentified Justice: But how does that coerce in the ordinary sense of the word, other than by the persuasive power of the idea?

Mr. Cohen: The coercion takes the form of asking shoppers not to patronize the neutral stores so that the neutral stores will be afraid that they will lose business, unless they become involved in somebody else's dispute and enter that dispute on the union's side.

Unidentified Justice: So, even though the message to the shoppers from the hand bills is not coercive, the result on the neutral stores could be coercive?

Mr. Cohen: Yes.

There isn't any requirement of an additional level of coercion.

Indeed, the shoppers may be people who are willing supporters of the union, who are merely waiting for the union to give them a signal by the hand bills or picket signs as to what they can do to help.

What the statute says is that the help that the union may not ask of them is help bringing innocent bystanders, who are merely subject to economic pressure, into the dispute to help the union win it.

Unidentified Justice: That's the same kind of coercion that would be involved in picketing.

Mr. Cohen: It is exactly, we think, the same kind of coercion as would be involved in picketing.

Unidentified Justice: In the same degree as well.

Mr. Cohen: I think that the--

Unidentified Justice: It's just a difference in the message to the shopper, I suppose.

Mr. Cohen: --I think that the effectiveness of the delivery of the message can vary in a picketing case and can vary in a hand billing case.

Here, you had a hand bill distribution continuously over a three-week period during the Christmas season at all four entrances to a shopping mall.

Unidentified Justice: Mr. Cohen, I asked your Petitioner's counsel whether the issue would be the same as a matter of statutory construction if the communication was in a different form, say a radio or sound truck or something like that, and he said it would be the same statutory issue.

Do you agree it would be the same constitutional issue, that it would still violate the command of Congress and it's still equally coercive if it is not at the front of the door but, rather, at the front of the shopping mall, as I say, by sound rather than by hand billing or a newspaper ad, something like that?

Mr. Cohen: We think it is the same constitutional issue.

There are differences between hand billing and other methods of distribution and picketing, but this case doesn't differ in any constitutional-irrelevant respect from, for example, Safeco.

Unidentified Justice: So, you would say it's correct to judge this case as really a pure speech case in which the prohibition is justified entirely on the basis of the message and the audience that's involved?

Mr. Cohen: I think it is a case of regulation of tactics which are, by their nature, expressive tactics in a labor dispute.

I think the question is whether this is one of the, to quote the Court going all the way back to Thornhill,

"one of the permissible limits on the conduct of the disputants in a particular labor dispute."

Unidentified Justice: And you say it's proper for us to judge the case, even though there's absolutely no element of physical concern by the people receiving the hand billing?

It isn't that there are very large individuals who strike fear into the heart of those.

If that isn't involve, it would be just the same as if it were very small harmless-looking people doing it?

Mr. Cohen: I think it should be judged on the assumption that this was an effective communication with a message.

I think in that respect, it doesn't differ from Safeco.

Picketing does present some problems that warrant regulation, but the Court has made it very clear more than once that regulation of picketing as such must be content-neutral.

If it's constitutional to regulate particular picketing, solely because it conveys a message, do not shop at neutral stores, when that's used as an expressive tactic in a labor dispute, that's got to be because it's constitutional and to regulate that message however it is effectively delivered.

Unidentified Justice: The picketers usually carry the message anyway.

Mr. Cohen: The picketer carries a message.

Unidentified Justice: I mean, something that you can read, not just his conduct carrying the message, but there's signs and manners and I suppose.

Mr. Cohen: Yes.

One difference is that the message, do not shop, may not be on the picket sign.

The presence of the picketer may imply that message, but, of course, that message was explicit here.

Let me put it a different way in terms of Safeco.

I think Safeco would have been easy on the statutory question and it wouldn't have divided this Court six to three on that question if there had been disorder or if there had been a violation of a neutral time, place and manner restriction or if there had been physical or psychological barring of the doors or, indeed, if there had been signalling to other union members.

The Court found the conduct of the Safeco pickets unlawful because, and I'm quoting the Court,

"they were trying to persuade the customers of the secondary employer to cease trading with him."

Unidentified Justice: Mr. Cohen, suppose Congress is concerned about the trade imbalance and it makes it unlawful to picket in order to make somebody cease doing business with a foreign country, and you have a labor union that pickets the same mall, say this mall is selling products of South Africa or you pick your country, the Soviet Union or whatever, could the Government enforce that prohibition?

Mr. Cohen: Well, in the labor context where what you had was not picketing but other signalling to union members--

Unidentified Justice: Well, they do the same thing.

They just hand bill.

They say please don't patronize this mall, this mall sells products of South Africa.

Congress has passed a law that says you can't do that, you can't coerce somebody not to carry the products of a of a foreign country.

Mr. Cohen: --I think probably, I think probably not.

Unidentified Justice: What's the--

Mr. Cohen: Probably Congress cannot do that.

Unidentified Justice: --Why?

Mr. Cohen: Because that is raising an issue of public importance on which there is a fully-protected constitutional right to speak, but--

Unidentified Justice: He wasn't watching.

I think you could have gotten away with the end of that sentence.

Mr. Cohen: --I tried that once.

Chief Justice William H. Rehnquist: Even Homer nodded.

Okay.

We'll hear now from you, Mr. Gold.

Lawrence Gold: That might have been discretion rather than valor.

Thank you, Mr. Chief Justice, and may it please the Court:

I wish to begin by recharacterizing what the union's message is in this case from what DeBartolo's counsel said it was.

The union's message is set out in full in the appendix to the red brief, and the message is not simply that High's, the construction company, pays sub-standard wages; it is that there are a series of relations here between the tenants, the mall owner, Wilson's Department Store, and High's.

The relationships, insofar as they support giving business to High's to do the construction, is contrary to some important social interests, buying power of people, community interests in adequate demand along Keansian lines, although there's no citation of that in the hand bill, and argues that given this set of relationships, the mall tenants and the mall owner are blame-worthy insofar as they are supporting what High's is doing and how it's treating its employees, and on the basis of that argument, the union asks people to make their judgment, please don't patronize, and to show their disapproval of these arrangements.

The facts are fairly set out.

The message is temperate.

There was no picketing or patrolling.

No misconduct of any kind.

And the way that the Board would read the statute at the present time, although it has never so read it before the remand and the decision in this case, is that that message can be obliterated from the face of this country.

Unions may not make that argument to members of the general public who owe the union no fealty and they may not do it no matter what method of communication is used and how the point is made.

ORAL ARGUMENT OF LAURENCE GOLD, ESQ. ON BEHALF OF THE RESPONDENT

Unidentified Justice: Whether it's made at the entrance to the mall or whether it's a full-page ad in the morning paper?

Lawrence Gold: That is correct.

The union is completely silenced.

This is a restraint, a prior restraint on all forms of making this of communicating this message, this argument, to any member of the public under any circumstance.

Unidentified Justice: What if it wasn't?

What if it just related to the mall?

You'd still be making this same argument?

Lawrence Gold: Well, we believe, based on the decisions of this Court that if the statute was directed at leafleting, in other words, if Congress said that the streets are close to union that want to communicate this message with this viewpoint, that would be unlawful because leafleting has always been regarded by this Court from Schneider v. State on as a form of pure speech.

My only point, Justice White, is that I don't have to carry that burden.

The argument here is that this message, because it may have an adverse effect on these store owners, if members of the public are persuaded by it, is subject to total ban, and that is the situation we find ourselves in.

That is why we are in the dock, because we have made this argument to members of the general public, and I wish to emphasize in the regard that in contrast to the standards secondary boycott cases, if i can call them that, that have come to this Court before, this is a situation in which the message is directed at people who have a total absolute right, a freedom maybe more accurate, to act on the message without violating any law.

Congress has not required and has never required, I don't know of any legislature that has ever required, anyone to shop at a store whose policies that person finds unpleasant, wrongful, in any way.

So, this--

Unidentified Justice: But that's not unusual, Mr. Gold.

Let's take an antitrust case in which a bunch of distributors ban together and go to the manufacturer and they say, we want you to cut off this other distributor because he's selling at too low prices.

Now, there are those who think that would be in violation of the Sherman Act.

The manufacturer is entitled to cut off any distributor he wants to.

So, he's entitled to get that kind of information, that kind of urging from the distributors, and, yet, it is made unlawful for the distributors to induce him to do that.

Now, why is that any different from what's at issue here?

I mean, the principle that you can't forbid someone from inducing somebody else to do something that he's perfectly entitled to do is it doesn't prove your case.

Lawrence Gold: --Well, it seems to me that insofar as Congress regulates the underlying actions, you have a different case.

That has been the rule and that's why I used it in terms of the secondary boycott cases.

Secondary strikes, strikes by a group of workers against a neutral employer are banned, and to that extent, if you seek to induce them to engage in unlawful activity, that is prohibited, but I don't know of any law which limits the right of individuals acting as individual consumers, acting as individuals,--

Unidentified Justice: Well, if you limit it to consumer, I can't think of a parallel, but it seems to me what I've just given you is a precise parallel.

The manufacturer is entitled, if he wishes, to cut off a distributor, but if a bunch of distributors get together to induce him to do that, that inducing of him can be made unlawful.

It's the same thing here.

The customer is entitled not to shop at the mall.

That's up to the customer, but the Congress has said the union cannot induce the customer to do that.

I don't know any principle in the law, in other words, that you can't make it unlawful to try to induce somebody to do something which he has a legal right to do.

Lawrence Gold: --I really am hard-pressed.

I'm not clear enough on the antitrust law whether the combination, except insofar as it's a combination directed at other distributors who are in competition, insofar as it simply made a reasoned argument even to a manufacturer, has ever been made unlawful.

I do not know of any case in this Court in terms of the 1st Amendment which has provided that a message advising people of facts and circumstances, individuals of facts and circumstances, on which they have the right to act, has been successfully banned, even though you're not asking for unlawful activity.

Indeed,--

Unidentified Justice: Doesn't it depend on the purpose of it?

Can't you make it bad depending on the purpose?

Let's assume someone comes up to the people in the mall and says, I'm selling protection.

For a certain payment a month, I will not tell the customers what a filthy place you have here, that there are cockroaches and unsanitary conditions in your restaurant.

Lawrence Gold: --Well, I don't--

Unidentified Justice: If you pay me $30 a month, I won't tell them.

Now,--

Lawrence Gold: --I don't know of any state that doesn't have a blackmail law.

Unidentified Justice: --Right, and one can do that, even though the customers are entitled to know how dirty the place is and you have a 1st Amendment right to tell the customers how dirty the place is.

It can be made unlawful if you tell them that for a certain purpose or if you threaten to tell them that for a certain purpose.

Lawrence Gold: Well, I'm just not certain of that, and there's no social purpose of the 1st Amendment which is furthered by non-communication in exchange for money, but if the 1st Amendment doesn't protect your communication at least when you're not talking about commercial speech, not in the Posados controversy that, you know, the Puerto Rican gambling case that the Court had two years ago, I don't know of any case which says that a communication advising people of the facts and making an argument to them and asking them to do something which they have a lawful right to do and which is not banned in any way would withstand constitutional muster.

Certainly, the 1st Amendment would be a far narrower protection of the right for people to argue and persuade on basic matters if it reaches activity which is argument and persuasion directed at entirely lawful ends.

Unidentified Justice: You don't think there's any difference between a union who's got a labor dispute with some tenant in the mall doing this hand billing than, say, some community group that's just a do-good community group saying we just don't like people to pay sub-standard wages, so they take out a big ad in the paper, they can do that?

You say the union there's no difference between them and the union?

Lawrence Gold: No.

I think the label of being a union doesn't deprive us of our constitutional and civil rights.

I mean, there's an argument here suggesting that even though we're engaged in activity which, on its face, is perfectly appropriate because we're a union and otherwise regulated, that the regulation is somehow all right.

That just hasn't been the trend in this Court's cases, and even--

Unidentified Justice: Do you think, Mr. Gold, that Safeco and decisions like that rest at bottom on the understanding that in the labor law context, unions have been given certain powers and corresponding duties and the same with employers in that context and that has somehow changed the standard a little bit under which we view some of these regulations?

How else can you justify Safeco?

Lawrence Gold: --As the losing advocate in Safeco, I--

Unidentified Justice: Let's hear a good argument for Safeco.

Lawrence Gold: --I'm not about to try it, but I would hate to redouble my losses.

From day one, and this was the understanding at the time that Congress acted in 1959, the jurisprudence in this Court has been that picketing is different from leafleting, taking out advertisements and so on, and that that has been the law in general.

Now, the opinions and we've reviewed the opinions, obviously we can only reproduce the Court's words, are replete with discussions of picketing.

If I can, back in Hughes v. Superior Court, which is the fountain head of these cases, the Court said while picketing is a mode of communication, it is inseparably something more indifferent.

Industrial picketing is more than free speech.

Publication in the newspaper or by distribution circulars may convey the same information or make the same charge as do those patrolling a picket line, but the very purpose of the picket line is to exert influences and it produces consequences different from other modes of communication.

Unidentified Justice: Did Gibboney involve picketing?

Lawrence Gold: Gibboney was a case which involved picketing in part, but it also involved secondary strikes under union discipline.

We don't deny and it's been a long time since we've had much of an argument that there's a constitutional right to strike, but that isn't what we're talking about here.

The question is similar to one that could have been asked, it seems to me, in the Central Hudson line of cases.

One of the Central Hudson issues was whether institutional advertising, talking about the desirability of nuclear power, was tree free speech to be judged on true free speech based on not.

The answer wasn't this utility is regulated and therefore the regulatory authority can do whatever it chooses as a guid pro quo.

The understanding was that the real question, and this is the point, too, of Colautti, that the real question is what does free speech demand.

What are the interests of the listeners?

What is the interests of the society?

The Court said in Colautti, to say that a corporation can't speak was to ask the wrong question.

The real question was what was the 1st Amendment about.

Was the message one which deserved to be heard which was part of the continuing dialogue by which we build this country.

Unidentified Justice: Isn't part of the question involved here whether this is commercial speech or not?

Lawrence Gold: Yes.

Yes, indeed.

Although the arguments on the other side fall one step short of this, and this is the issue that the Court was so conscious of in the Ohralik case in 436 U.S. and In Re Primus; namely whether we are going to have not only the paradox of first picketing being said to be different from leafleting and newspaper advertising and then gobble it up, but also whether we're going to have another paradox, namely the overruling of Valentine v. Chrestensen, leading to the conclusion that commercial speech is not limited to offers to buy and sell of a commercial kind, building going to start to chew up other aspects of what has historically been part of the 1st Amendment.

After all, the lead case with regard to the 1st Amendment and all of this is Thornhill v. Alabama, and although Thornhill v. Alabama has not survived as a picketing case, it certainly has survived as Colautti shows and as other cases show in terms of what we understand to be the generous confines of the 1st Amendment.

Whether the issue is one raised by a community group, saying that, as Justice Scalia's example suggests, that someone is running his business in a way which is contrary to the interests of the society by investing in South Africa or by moving facilities overseas or whether the argument is that the employers in general have moved to such a strong position in the society that they're hurting the society by not providing adequate health and safety, by violating the rights of women or minorities, whatever the issue is, it seems to us that those issues have always been understood to be part of a public dialogue.

A particular dispute, whether it is the dispute that generated Thomas v. Collins, whether a union leader could go to Texas and make a speech asking people to join the union, which was held to be true free speech, or Thornhill, where there was a dispute as to a particular factory, those are the nuclei around which public debate is fashioned.

Unidentified Justice: Mr. Gold, if a standard approaching to used in commercial speech cases were applied here, would your client lose?

Lawrence Gold: I don't know whether this interest that is asserted ought to suffice even in that context.

I'd like to take it in two parts.

First of all, in Organizations for a Better Austin, as you raised, if this is a case which, like that case, is to be judged under the standards applied to speech generally, it seems to us that protecting these neutrals, these secondary employers and their right to have any business relationships they want, without anybody knowing about it, and without being able to make their own judgments about whether that's good or bad, is plainly not a sufficient interest.

And I want to point out that it was not simply the state was not simply protecting a particular business man there as Mr. Cohen was suggesting.

It was protecting a basic right of privacy, though the leafleting, the demonstrating in that case was taken to the individual's home and his home territory, and as the Court noted in Carey v. Brown and this is going to be a debate that continues this term from the cert grants, the question of whether the privacy interests in neighborhoods and homes is sufficient to limit expressive conducts.

So, that was not a small interest, but going on, if the test here is the test of Central Hudson, we don't believe that this is narrowly limited.

Even in Central Hudson, the complete ban did not stand up to scrutiny under that test and we don't believe that saying that this message is obliterated so long as it's forwarded by union is obliterated from this society, is one that can possibly be justified by this supposed interest in industrial peace.

We're not disrupting industrial peace in any sense other than telling people facts which they have a right to know which they either will believe or won't believe, will find convincing or won't find convincing, and will either act on or not.

I don't think that any of this, if I may, would come as any great surprise to the 1959 Congress because the point that given the nature of the discussion with my colleagues I jumped over and very improperly is that it is our position that the Board has misread this statute.

The constitutional background is critical to making that argument.

So, I also started as I did in part for that reason, but in the first DeBartolo case, and in the Bishop of Chicago case, the Court has made it plain that there is a presumption that when Congress uses words which could be applied to expressive conduct, that language is to be read narrowly if it is at all possible to do so.

Indeed, in Bishop of Chicago, the Court said that there had to be an affirmative indication of legislative history.

The Congress focused on the particular expressive activity and decided to prohibit it.

Certainly, as this Court has made plain many times in the Labor Act context, the words "threaten", "restrain" and "coerce" are not words with a single definite meaning, and, in reality, what this case comes down to insofar as the Board makes a statutory argument, aside from the fact that it started from a totally erroneous premise and didn't grant us the presumption that the Court stated, is to say that the fact that there is not only threaten and restrain and coerce in the statute, but there is this publicity proviso which, as the Court said in terms, is more limited than the situation here, creates a negative inference and shows that Congress intended in using the words "threaten", "restrain" and "coerce" to reach this kind of reasoned non-picketing appeal to consumers.

The language of publicity proviso, among other places, is set out at page 23 of our brief.

I want to note two points about the language.

First of all, it's in the form saying that nothing contained in the overall section shall be construed to prohibit a particular kind of picketing.

That language was added in conference in a situation where the House had a bill which prohibited threatening, restraining and coercing and the Senate had no provision.

Opponents of the House language had claimed that it might reach pure speech activity.

No proponent of the language had over so claimed.

At that point, the conference ensued.

Now, it seems to us that there are two fair way of understanding what happened in that conference.

I was not there.

None of the legislators have both kissed and told.

What one is that the House conferees said to the Senate, what is it that you're afraid of, what do you think we have up our sleeve, and the Senate conferees said, we believe that this language could reach not only picketing, which we all agree is subject to a greater degree of regulation, both in the labor and non-labor context since Hughes v. Superior Court was not a case involving a union, but would also reach other forms of expressive activity in the example that President Eisenhower had given in his speech, which was an example involving a producer-distributor relationship, and that the House people said, we don't intend to do that, and we'll show you we don't intend to do that.

You're afraid we're going to do that.

We will state in so many words we have no intention of doing that because we really do not.

Another way--

Unidentified Justice: That's the explanation.

Why would they limit the proviso to situations in which there's a primary dispute with an employer whose products are being distributed by another employer?

Lawrence Gold: --My point is that was the only example over raised in the debates, even insofar as the debates talked about picketing.

Unidentified Justice: But if the reason for including it is to show we don't mean speech to be covered, they wouldn't have put in there distributed by another.

They would have just put in just shall be construed to prohibit publicity other than picketing period.

Lawrence Gold: Justice Scalia, I'm not arguing that they the issue was either posed or answered in those general terms.

There was a debate going on.

There had been only one example used.

Certainly, the way you are reading it is the other fair way of reading the language, that there was a different discussion than the one I just indicated, namely a discussion which said there are other situations than the one than President Eisenhower mentioned and those situations, we do intend to prohibit other forms of communication.

In other words, that this really was done with malice aforethought to narrow the provision.

My point is that there are two ways of seeing it against the background of the overall debate.

Normally, that would not be of any help to someone attacking a Board decision reading the language the other way, but we're not in the normal situation.

That is my point.

The presumption is that unless you can show an affirmative indication of Congress to reach the activity in question, then you're to read the statute narrowly to as not to limit the expressive activity, and I wish to conclude by saying not only are there these different ways of reading both the general prohibition and the proviso against the background of constitutional doubts requires a narrow construction, I do wish to point out that when the parties left the conference, the manager on the House side of the Landry-Griffin Bill, Representative Griffin, and Senator Kennedy was the manager on the Senate side, went back to their colleagues and explained what they had done, the language--

Chief Justice William H. Rehnquist: Mr. Gold, your time has expired.

Mr. Lawrence Cohen, you have seven minutes remaining.

ORAL ARGUMENT OF LAWRENCE M. COHEN, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Cohen: Let me be clear at the outset exactly what it is the message that's being limited in this case.

The union is not being limited in articulating the facts of its dispute with High.

It's not being limited in any way from asking for customers or the public to aid it in its dispute with High.

The only message that is being limited is a message that says injure neutral parties who have no connection whatsoever with this dispute.

Don't shop at the center.

That's the only message that's limited, and that type of message being limited is similar to acts of limitation in the labor context and in many other ways.

For example, an employer, although he may have a free speech right in other contexts to make predictions about unionization, can't under Gissel say to his employees, I think if you vote for a union, you're going to have to close this plant.

That would be impermissible.

And that's the same type of restriction which other members of the public, other community organizations, other people unconnected with that labor campaign, are perfectly free to make.

So, there is a difference that this comes up in the context of a labor dispute, because the Labor Act sets the permissible limitations of the combatants in that labor dispute, and it tells the union, you can predict and you can indicate the facts of the case--

Unidentified Justice: You think, I take it, or do you, you say the full-page ad in the morning paper reproducing this hand bill would also be bad?

Mr. Cohen: --I would say--

Unidentified Justice: That would be also illegal under the--

Mr. Cohen: --If the foreseeable consequences of that advertisement--

Unidentified Justice: --What if the Board found that it was coercive, just as coercive as hand bills?

Mr. Cohen: --Then, it would be impermissible.

Unidentified Justice: And then it would be just as constitutional--

Mr. Cohen: Because what's impermissible is not to say we have a dispute with High or High pays sub-standard wages.

That's never been held impermissible.

What's impermissible is that they add to that the fact, don't shop at the center.

Unidentified Justice: --Then, you don't think it's--

Mr. Cohen: Because however they communicated it, if that's--

Unidentified Justice: --You don't think the place that this took place, where this occurred, is really very significant?

Mr. Cohen: --That's correct.

What's significant is whether the union effectively put pressure on a neutral party to the dispute, whether it enlarged the labor dispute, whether it widened industrial strike.

I think that's illustrated by Safeco because the only difference between Safeco and this case is picketing.

Safeco tried went to neutral customers and it said please don't shop here.

They were not coerced.

They had free reason of choice.

The only difference was that they, instead of handing out a hand bill that said that, they carried a picket sign that said it or wore a placard.

Unidentified Justice: But that is a distinction under our constitutional cases.

Mr. Cohen: That is--

Unidentified Justice: Picketing is always thought to be speech plus or something more.

Mr. Cohen: --Let me indicate that in many contexts, it may be.

If you're talking about a manufacturing plant and the union puts up a picket sign, Teamster drivers coming into that plant see the sign, whether it's stuck in a snow bank or it's on a car, and they turn away.

It's union discipline.

That's a signal effect.

But in the case of consumer picketing, as occurred in Safeco, and consumer hand billing here, there is no difference.

They're not relying on the fact that union discipline is going to turn people away.

Unidentified Justice: But there are non-union members who won't cross a picket line.

Mr. Cohen: There are going here, if they make a choice of not shopping at the center, whether it's because of the picket sign or hand billing, they are going to do it not because they're fearful of union discipline, they're going to do it because they have made a reasoned decision and that reasoned it's not if a customer, whether he's a union member or whatever beliefs, decides I don't want to shop at East Lake Square Mall, it's not because, as he would in a single picketing case, he's fearful that the union is going to discipline him if he does anything.

The union doesn't know who's shopping at the center.

People are going to go in and shop at the center either because they disagree with the union or they're going to refuse to shop because they agree with the union, and how that message is communicated to them, whether it's by a picket sign, a sound truck, an advertisement, or a hand bill, is immaterial.

The effect in each case is harm the neutral, and embroil the neutral in the dispute, and that's what Section 8(b)(4) was designed to preclude.

Whether not how the union did it, but what the union was intending to do.

This is the purpose and that purpose is equally communicated by an individual standing up in front of the shopping center holding a sign or wearing a placard that says please don't shop here or somebody handing out a hand bill which individuals can read and decipher and think about and then go ahead and go in.

Unidentified Justice: Or somebody who is somebody who has a union sign on them then handing out a hand bill, too.

Mr. Cohen: That's correct.

Picketing and hand billing, and the important point is that that's what Congress forbid.

When it came out of the conference committee, and there was a publicity proviso, Congress said you can only engage in picketing and publicity other than picketing if you meet these three conditions, and the only way Mr. Gold's other argument is fairly possible, which is the standard of Catholic Bishop, is if you disregard the expressed language of the proviso and simply dismiss it as so much legislative blab, and that's what I think the Court should not do.

It should pay attention to the language.

It should limit non-publicity picketing in only those cases which don't meet the proviso.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Cohen.

The case is submitted.

We'll hear argument next in Number 87-65, United States against Providence Journal Company.

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Regents Of Univ. Of Cal. v. Public Empl. Rel. Bd. - Oral Argument

Wed, 13 Apr 2011 20:12:04 +0000

Case:

Regents Of Univ. Of Cal. v. Public Empl. Rel. Bd.

Media File:

86-935_19880112-argument.mp3

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86-935_19880112-argument.xml

Transcript:

ORAL ARGUMENT OF JAMES N. ODLE, ESQUIRE ON BEHALF OF APPELLANT

Chief Justice William H. Rehnquist: We will hear argument next in Number 86-935, Regents of the University of California v. Public Employment Relations Board, Et Al.

Mr. Odle, you may proceed whenever you are ready.

Mr. Odle: Mr. Chief Justice, and may it please the Court:

Most people that I know would not buy a stamp if they could get their letters delivered without one.

This case is about whether a labor Union can get its letter delivered across postal routes without a stamp.

The United States Postal Service does not think so.

Neither does the University of California.

But the PERB, that is the California Public Employment Relations Board, and the California Court of Appeal, have found that California law requires the University to deliver that letter.

The Federal body of law known as the Private Express Statutes generally prohibits delivery of mail in competition with the Postal Service.

PERB argues that two exceptions apply here.

These are the letters of the carrier exception and the private hands without compensation exception.

This is a technical case, in that it turns on careful reading of those exceptions.

But while it is a technical case, it is an important one, because there are millions of dollars of Postal Service revenue at stake here.

Unidentified Justice: Isn't it going to cost the University some money either way?

Mr. Odle: It will cost the University perhaps some money in that there may be more letters sent.

Unidentified Justice: But it will cost the Postal Service, is that it?

Mr. Odle: It will cost the Postal Service a lot of money.

Unidentified Justice: Thanks.

Of course, it will also save them a lot of work, too, won't it?

Mr. Odle: It will not save them very much, actually.

Unidentified Justice: It will save all the work involved in delivering this mail from where it is given to your client to deliver to the Union people, won't it?

And if they are losing money on delivery now so that they need postal rate increases, they will actually be better off.

Mr. Odle: Justice Scalia, I don't think they are losing money on this kind of delivery.

There is a single postal rate whether you send a letter from Maine to California or across Berkeley.

And this is mail sent, the letters in this case would have been sent from a location in the City of Berkeley to the University in Berkeley, and it probably would not have 22 cents a letter to deliver those.

Unidentified Justice: I thought they were delivered throughout the University system?

Are all the deliveries in Berkeley?

Mr. Odle: The case arose over deliveries in Berkeley, but I think that you are right, Justice Stevens, that at stake here is a larger mail system.

Unidentified Justice: It is a big State and there are a lot of branches of the University.

Mr. Odle: That is right.

Unidentified Justice: Will how we decide this case help me to get my mail faster?

Mr. Odle: Yes, it will, Justice Marshall.

Unidentified Justice: Do you really think so?

Mr. Odle: I do.

Or at least, I take that back, it may, what it may do is make your mail slower.

I doubt that it will make it faster.

The amici, in this case, by their own account, represent some 3,500,000 employees, to whom they are eager to deliver unstamped letters.

Unidentified Justice: 3,500,000 employees of what?

Mr. Odle: These are employees of employers across the country.

Unidentified Justice: Oh, I see.

I see.

Mr. Odle: The Union represents those employees.

Unidentified Justice: Employers who would be in the position of the University?

Mr. Odle: I believe so.

Unidentified Justice: Yes.

Mr. Odle: It has to be recognized that if the Postal Service loses the revenue from those letters, other patrons of the Postal Service are going to have to pay for it, either in lower quality of service or in higher rates.

And, Justice Marshall, I would suggest that you would pay for it in lower quality of service.

Let me talk about the two exceptions.

The letters of the carrier exception is the exception that allows the University to deliver its own letters without a stamp.

The language of that exception and the legislative history of it I think have been very thoroughly briefed.

We think it is clear that the exception applies to letters sent by or addressed to the carrier... in this case, the University.

Unidentified Justice: You think it is clear from the language?

Mr. Odle: I think it is very clear from the language of the regulation, Justice Scalia.

Unidentified Justice: Let's talk about the regulation.

You urge that we must give deference to the regulation.

We give deference to the regulations of agencies that are charged with the administration of particular schemes.

But it seems to me that the Post Office is not charged with administration of this law prohibiting persons other than the Post Office from carrying mail.

That is like saying that the Attorney General is charged with administration of the criminal laws so we should defer to the prosecutor's determination of what a criminal law means.

You are not administering this statute at all.

It would be very strange to say you are administering it.

To the contrary, you are the chief competitor of those who are trying to avoid the statute.

Why should we give you deference?

Mr. Odle: It is certainly true that the Postal Service is the chief competitor of those who would deliver it in competition with the Postal Service.

The Postal Service, however, it seems to me, does administer the statute, in fact.

It is authorized by Congress, for example, to suspend the operation of the statute in what the Postal Service considers to be appropriate cases.

And it writes suspensions of the statute which specifically enable others to deliver letters which the Postal Service would otherwise deliver itself.

Unidentified Justice: What provision is that that enables them to do that?

Mr. Odle: I can point you to the Code of Federal Regulations sections in which the suspensions are written.

The legislation is in Section 601.

The Postal Service may suspend the operation of any part of this section upon any mail route where the public interest requires the suspension.

That is Section 601, 39 U.S.C.--

Unidentified Justice: Thank you.

Mr. Odle: --The letters of the carrier regulation provides that the sending or carrying of letters is permissible if they are sent by or addressed to the person carrying them.

Now, the regulations recognize that "person" for this purpose may be an institution.

And the regulations also recognize that when a letter is sent by or addressed to an institution it is going to have to be carried by some individual.

So the regulation provides, and I am reading here:

"If the individual actually carrying the letters is not the person sending the letters or to whom the letters are addressed, then such individual must be an officer or employee of such person. "

In other words, the individual who actually carries the letter must be an officer or employe of the institution sending them or to whom they are addressed.

Now, the person carrying these letters is an employe of the University.

When a third party, like a Union, sends a letter, the sender is the third party.

So the issue is, is the University the receiver of that letter?

And the answer is, it depends.

If the letter is sent to someone who receives it as an agent for the University, who receives it on behalf of the University, it makes sense to call that a letter to the University.

If the person who receives that letter doesn't receive it as an agent of the University, but receives it on his own behalf, it is not a letter to the University.

For example, if, as the University's lawyer, if I receive a letter from the Union about this case, I receive that letter on behalf of the University and it is a letter to the University.

If I receive a letter from a Union saying Mr. Odle, we think you ought to join the Union and authorize it to bargain on your behalf with the University and try to get you a higher wage and maybe strike against the University if you don't get it, that is not a letter to the University.

That is a letter to me.

Unidentified Justice: Mr. Odle, I thought that the State legislature in California has determined that providing Unions access to the internal mail of the mail system is the current business of the University, or has made some effort legislatively to say that it is defining the business of the university as including this.

Now, what do we do with that?

Mr. Odle: Well, you realize first that the regulation states a two-part test.

The letter must relate to the current business of the University and it must be to or from the University.

Unidentified Justice: Well, of course, the statute itself, Section 1694, refers to, as the exception, except such as relates to the current business of the carrier.

Mr. Odle: That is right.

And I believe that the intent in enacting that statute in 1909, as we have argued in the brief, was to codify an Opinion of the Attorney General dated 1896.

Unidentified Justice: Is that your interpretation of the regulation and the validity of it?

You would not fall within the letters of the carrier exception?

You depend on the regulation totally, I gather.

Mr. Odle: I think we would if we read the statute properly.

I think that we would fall, that these letters would fall outside of the intent of the statute, if that is your question.

I think that because the Attorney General's Opinion which preceded the statute is very clear and I think the legislative history is very clear that what Congress meant was to embody that opinion in the statute.

And there is another Attorney General's Opinion a year later, in 1910, which says that that is what Congress meant and that is what it did.

And that law has been on the books in that form ever since.

Unidentified Justice: It would have been so easy to say that, though.

It would have been so easy to say except letters addressed to or from a business and relating to its business.

It is not as though it is difficult to describe what you say they meant.

They just didn't put it that way.

They just said it has to relate to the business.

Mr. Odle: That is true, Justice Scalia.

And I don't know why they did not put it that way.

I do know that Congress was told by other Congressmen, by Congressmen who were instrumental in promoting the 1909 legislation, that it would in fact embody the Attorney General's Opinion.

But as to why they felt it was not necessary to go into that detail, I don't know.

I think they felt that they read this phrase, relates to the current business, in a somewhat narrower way than it could be read.

Why that is, I am not sure.

As further evidence that the letter is not a letter to the University, if more evidence of that is needed, it seems pretty clear that it would violate California labor law for the University to read that letter, just as it would violate Federal law for an employer covered by the National Labor Relations Act, to read such a letter from a Union to the employee.

PERB argues that if the letters of the carrier exception doesn't apply, the private hands without compensation exception does.

The problem with that is that the University is compensated.

We receive money from the California Legislature which pays for the operation of the mail system.

And the California Legislature is also the entity that has ordered us to deliver the mail.

It just offends common sense to say that mail which is ordered and paid for by the same entity is not compensated.

PERB argues that the intent is the key here, that if the intent is to compete, the exception does not apply but if there is another intent, it may apply.

The problem is that the California intent here, the Legislature's intent, is clearly to withhold revenue from the Postal Service.

The purpose is to facilitate communication, but to facilitate it in just one way... by making it cheaper.

It is sophistry to say that the Legislature intends to save significant dollars for the Unions but doesn't intend to withhold significant dollars from the Postal Service when they are the very same dollars.

Anyone setting up to compete with the Postal Service on more economical routes like these could claim to be facilitating communication by making it cheaper.

The problem is that there has been a national decision, there should be a national postal rate, there should be a Postal Service to accomplish that.

And to preserve that service, it is necessary to say you cannot compete with it unless you fall under one of the exceptions.

Those exceptions are to be made by Congress, not by the California Legislature.

Unidentified Justice: Counsel, it is still not clear to me how many people use this system.

Mr. Odle: The University of California has about 100,000 employees.

We use the system to deliver our own mail.

That is, mail sent to or from the University of California employees.

Unidentified Justice: What if a professor wants to send a letter to another professor down the hall?

Mr. Odle: If it is down the hall, he probably carries it.

He may send it through the University's mail system.

It may not be involved with these laws, because it has to cross a Postal Route to be subject to these laws.

Unidentified Justice: It can be mailed by the same system.

Why do you draw the line between the professor and the other people?

Mr. Odle: Because if the professor's letter is sent to another university employee on the business, that is, as a representative of the University, it is a letter to the University.

The problem is that the Union letters are not.

Unidentified Justice: If a professor is writing to another professor about a third professor at Harvard, that involves the University?

Mr. Odle: I would say it depends, Justice Marshall, if I may just take a moment to answer.

Unidentified Justice: Because if you take Harvard, I'm going to go to Oxford.

Mr. Odle: Let us suppose that the professor at Harvard has applied for a job, and one professor writes to another and says he is good, I think you ought to hire him.

That would be a letter to the University.

On the other hand--

Unidentified Justice: What if he asks him how about his Union business?

What does he think of his Union?

Mr. Odle: --I don't think that would be a letter to the University and I don't think it could be carried by the University.

Unidentified Justice: This is to another professor?

Mr. Odle: That's right.

Unidentified Justice: I am writing to you to find out how is Joe Droke's standing with the Union.

Mr. Odle: Unless you wanted to know that in order to conduct University business, your letter would not be a letter of the University.

You could write to that other professor asking him if he wants to join you for Halloween, and that would not be a letter of the University.

Unidentified Justice: Isn't it?

Isn't that University business?

Mr. Odle: I think the answer to that is more complicated than yes or no.

Certainly, collective bargaining is the University's business in the sense that we engage in it, we hire people to do it, and if there is a letter from our collective bargainer, to the President of the University, about Union negotiations, that is certainly a letter of the University.

But the issue here is, if there is a letter from the Union encouraging an employee to join the Union, is that a letter to the University?

And we think it is not.

Chief Justice William H. Rehnquist: Thank you, Mr. Odle.

We will hear now from you, Mr. Wright.

ORAL ARGUMENT OF CHRISTOPHER J. WRIGHT, ESQUIRE AS AMICUS CURIAE IN SUPPORT OF APPELLANT

Mr. Wright: Mr. Chief Justice, and may it please the Court:

Broad constructions of the private express statutes like the decision of the Court of Appeal below do reduce the scope of the Postal monopoly and threaten to reduce Postal revenues.

As Mr. Odle said, the fact that three and a half million employees are represented by the amici in this case shows that a substantial amount of mail could be diverted from the Postal Service.

Unidentified Justice: Mr. Wright, what authority does the Postal Service have to issue this regulation?

Mr. Wright: Section 401, 39 U.S.C. 401, which is quoted in a footnote on Page 23 of our brief.

Unidentified Justice: So you think that authority to issue that regulation entitles the Postal Service interpretation of the statute to some deference?

Mr. Wright: I certainly do.

The statute says that the Postal Service has authority to adopt, amend, and repeal such rules and regulations as it deems necessary to accomplish the objectives of this title, which include the private express statutes.

Congress has quite clearly given the Postal Service authority to define what these statutes mean.

It is true that the Postal Service is also the beneficiary of this statute.

I take that to mean that Congress would not expect the most liberal interpretation of the statute.

It would expect the contrary.

Unidentified Justice: How long has the Postal Service interpreted this Act that way?

Forever?

Mr. Wright: Yes.

In turning to the letters of the carrier exception, this is a classic case of deference.

This is a long standing interpretation that was originally formulated contemporaneously with the relevant statutory amendment which was in 1909, and it has been consistently followed ever since.

I would like to go through that briefly, the legislative history.

First, let me note, the words of the statute are ambiguous.

It could be construed the way the Postal Service has done it.

It could be construed the way the Court of Appeals has done it.

I would say that the issue here is whether letters to institutions can only be sent to their representatives.

That is the way the Postal Service has construed it, and the issue is whether they have properly done so.

I would think that the language of the statute letters relating to the current business of the carrier would normally be sent to representatives, would not be sent to someone else in the case of an institution.

It is true that you can define the business of something like a university very broadly and include almost everything, including the letters here.

So I start with the proposition that the language is ambiguous.

But this is a case where the legislative history is very, very clear.

In the 1896 Attorney General Opinion letter that was referred to, the Attorney General concluded, despite the lack of a basis in the language of the private express statutes at that time, that a railroad could carry its own letters.

He said that the right he identified was quote:

"to carry letters written and sent by the officers and agents of the railroad company which carries and delivers them, about its business, and these only. "

Unquote.

He added that:

"companies could not carry letters that are neither written by that company nor addressed to it. "

Unquote.

IN 1909, when Congress added the language at issue here, the principal proponent of the amendment was Senator Bacon.

And he wanted to revise the statute to express in exact language what the Attorney General says it means.

The Senator who actually proposed the language of the amendment was Senator Sutherland, and he said that that was its purpose.

And the Conference Report, which was printed in the Congressional Record at that time said that it put the statute quote:

"in exact conformity with the construction placed upon existing law. "

Unquote.

And then referred to Attorney General Harmon's 1896 Opinion letter.

Legislative history is rarely this clear.

But there can be no question that Congress intended to codify the 1986 Opinion which stated that railroads could carry letters sent to or by its officers and agents but not letters that are neither written by nor sent to the company.

Unidentified Justice: Mr. Wright, educate me, because I speak from ignorance.

In the last decade or so, we have seen a proliferation of Federal Express and Emory and all these other overnight carriers.

Do they operate under some special statute?

Mr. Wright: Yes.

The Postal Service is also authorized to suspend the operation of the statutes where the public interest so requires.

In 1979, it did so for extremely urgent letters which are defined in the regulations basically to be letters that cost a certain multiple of normal postage.

It is a regulatory suspension under which Federal Express operates.

Unidentified Justice: It seems to me that this is devastating competition to the Postal Service.

Mr. Wright: The legislative history of the 1979 amendment... we cited the hearings in our brief... the Postal Service adopted that suspension somewhat reluctantly.

I think it is fair to say that Congress would have enacted it statutorily if the Postal Service had not come up with a regulation.

But it did and that solved the problem.

PERB suggests that its interpretation of the private express statute warrants deference.

We think that that is plainly wrong.

Its interpretation of the California statute that says that Unions can use... the California statute says that Unions can use... the means of communication of employers.

PERB has construed that to mean internal mail systems.

We have not quarreled with that.

That is entitled to deference.

But Congress gave the Postal Service, in Section 401, the authority to construe the private express statutes.

It didn't give that authority to PERB.

I would like to turn to the other exception that PERB says authorizes the deliver here, the private hands without compensation exception.

This is another long standing exception.

The precise language dates back to 1845, the private hands without compensation.

In 1846, a District Court stated that a deliverer of merchandise could not also deliver letters even though it did not make any separate charge for the delivery.

And the Postal Service has followed that interpretation ever since.

More recently, in the 1970s, a number of cases came up involving school districts who wanted to deliver Union letters, very similar cases to this one.

In some of these cases, collective bargaining agreements spelled out a duty to carry the Union's letters.

IN those cases, I think it is clear beyond doubt, and I do not understand PERB to disagree, that compensation was involved.

As the prior case demonstrates, employers and Unions are in an adversarial relationship.

Unidentified Justice: Mr. Wright, what is the compensation in this case?

Mr. Wright: There are three different kinds of compensation here.

First, this is all part of a bargain under which the employees give their labor to the University.

Unidentified Justice: But it is a statutory requirement, isn't it, that they do this?

Mr. Wright: If there was a statutory requirement that the University's dental school give free service to Union employees, or just employees of the University, I do not think there would be any question that that would arise out of the employment relationship, and the compensation to the University of the employees' labor was compensation whether or not it was statutory or contractual.

Unidentified Justice: Tell me again, what is the compensation to the University for doing this?

Mr. Wright: Three things.

Our first argument is that it is the labor of the employees, and their agent, the employees' agent, the Union, gets to send these letters.

Unidentified Justice: It is like a fringe benefit for the employees?

Mr. Wright: Exactly.

Unidentified Justice: You don't have any cases that are remotely like?

I mean, I can understand the theory of what you are saying, but that is quite different from any of your precedents.

Mr. Wright: This is a unique case, because the State has ordered the carrying.

Unidentified Justice: Yes.

Mr. Wright: Second, the fact is that the State is the employer here, and it is just like the school district cases, in our view, except that the Unions go and negotiate with the legislature rather than directly with the University.

They've gone up a step.

We think that that is clear, if you look at the next case.

Unidentified Justice: I still don't understand.

What I am asking is, what is the compensation?

One thing you say, the compensation is the services of the employees who receive the mail.

Mr. Wright: Right.

Unidentified Justice: That's the compensation.

Now, you said there are two other things that might be compensation.

Mr. Wright: Our next answer is that this is just like the school district cases.

If the Union had bargained a contract provision, if you will grant me that there is clearly compensation there, if an employer agrees to deliver an Union's mail--

Unidentified Justice: In exchange for what?

What is the compensation?

Mr. Wright: --Presumably it is agreeing to some other demand in the collective bargaining agreement.

It is usually implicit.

It is not spelled out.

In this case, they've got that through the legislature.

In the next case, if we should lose this case, the Unions will go to State legislatures and say, you can give us a big benefit.

We will save a lot of money if we can use internal mail systems, and this will cost you very little.

Please pass a law.

Unidentified Justice: You are saying that this exception would not apply if I asked a friend to deliver a mail to someone, he is going to Chicago on an airplane and I say would you take a letter along and he says yes, I'll do it for you if you'll do the same thing for me a week from now on the return trip, then they have to pay postage?

Mr. Wright: We would say there is compensation here.

As it happens, the special messenger exception to the private express statutes would cover that, in any other case where he was handling fewer than 25 letters.

But the private hands without compensation exception would not apply there.

There would be compensation.

Unidentified Justice: Now, what is your third compensation?

Mr. Wright: The third case is, PERB says we're wrong.

It says you are wrong to say the State is the employer.

The State and the University are different.

But if that is true, then it is even more clear that it is compensation, that there is compensation here, because the University is both ordering them to carry mail and paying for it, because it funds the University.

Unidentified Justice: I take it there is always some expense to the private carrier making the delivery.

The fact that he has to pay his own bills cannot make it.

Mr. Wright: But it is different if the person ordering it also pays for it.

If I ask you to deliver a letter and give you money to do it, even if it is a letter from someone else and being received by someone else, even if it is not my letter, if I am both telling you to pay for it and paying you to do so, I am compensating you for that.

Unidentified Justice: Mr. Wright, may I inquire whether you think we owe the same degree of deference to an agency's interpretation or construction of a statute by regulation if the effect of it is to pre-empt State law?

Mr. Wright: Yes, we think so.

I would like to make one other point.

PERB has also argued that the Postal Service has not been consistent in its application of these statutes, relying on an Indianapolis cased where the Postal Service said that a school district could carry letters from a community service group to students about Food Stamp programs.

We think it quite clear that there is no form of compensation there.

None of the three forms of compensation that I mentioned briefly a moment ago or in more detail in our brief would apply.

Chief Justice William H. Rehnquist: Thank you, Mr. Wright.

We will hear now from you, Ms. Biren.

ORAL ARGUMENT OF ANDREA L. BIREN, ESQUIRE ON BEHALF OF APPELLEES

Mr. Biren: Mr. Chief Justice, may it please the Court:

The question here is whether California's strong State interest in efficient communication and effective communication between employees and their representatives as codified in HEERA can be harmonized with the private express statutes.

The State has determined that the University of California has a statutory duty to allow employee organizations to carry this mail to employees in order to make the HEERA scheme of cooperative labor relations effective.

The private express statutes, we submit, can be harmonized with the State law by using either one of the two exceptions that have been discussed this afternoon, the business of the carrier exception or the private hands without compensation exception.

Postage foregone under one of these exceptions is postage forgone pursuant to Congressional design.

Unidentified Justice: Ms. Biren, let me ask you.

Supposing if the 3,500,000 were filing an amicus brief here all succeed in getting what you say the University of California employees get, do you think that would be pursuant to Congressional design?

Mr. Biren: First of all, I think it is not the least bit clear that all 3,500,000 of them would be covered under a decision in our favor in this case.

We have relied substantially on a specific statute here, HEERA, which really sets up a very cooperative labor relations scheme in which the employees are supposed to be allowed the fullest participation possible through their employee organizations in the determinations of conditions of employment, and there is an access statute which specifically says that these employees can hear from their employee organizations through the mail system.

That is not the case in many states represented by amici.

Unidentified Justice: What difference does that make in interpreting the provisions here?

Mr. Biren: If you were particularly bothered by the fact that--

Unidentified Justice: Let's assume you accept the regulation.

Do you think that this means that these State law provisions take these deliveries out of the regulation?

Mr. Biren: --I think that these deliveries are within both the statute and the regulation.

Unidentified Justice: Because the employees, the recipients, are agents of the University?

Mr. Biren: For several reasons.

First, I think--

Unidentified Justice: But in terms of the regulation.

Mr. Biren: --In terms of the regulation, that is what I am going to talk about.

As I said, here is a cooperative labor relations scheme in which the employees are part of the decision making on something that is patently the business of the carrier... the terms and conditions of employment of the employees.

Through their representatives, they participate in bargaining over this.

Therefore, as to this particular business of the University... labor relations, the determination of terms and conditions of employment... these employees are equal partners in that decision making, and their representatives, therefore, are their agents.

They are their agents.

And I think it is stretching it, but I think in a broader view, if you insisted upon the agency concept, which I do not think is present in either the statute or the regulation, you could say that they are the agents of the University as a whole in fulfilling its total duty under HEERA to allow employees to participate to the fullest extent in the labor relations scheme.

I have made one of the points I wanted to make, regarding carriage, at issue here, being within the statute and the regulation, because of the carrier's business.

The other point that I would go into at more length is under the private hands without compensation exception, to show that the University is not private hands, because it is not the Postal Service, and there is no compensation for carriage because compensation has traditionally been interpreted as money, identifiable goods or services, and lately, since 1976, good will, flowing between the user and the carrier.

State funding does not meet that description.

State funding is not compensation, within the intent of Congress when it passed the private hands without compensation exception.

Unidentified Justice: When you say State funding, I mean, did the California legislature appropriate money to the University of California to perform these services?

Mr. Biren: The State of California appropriates money to fund the mail system.

It did before HEERA existed.

It did before this order existed and there is no showing in the record that there is any relationship between the order to carry this mail and the type of funding they received for the mail system.

Unidentified Justice: So far as you can see, the University will get the same line item, if it is a line item, for carrying mail, even after this as before?

Mr. Biren: To the extent that the record deals with this matter, that seems to be the case.

There is no showing that made any difference.

Unidentified Justice: The line item meaning what?

100 percent?

Mr. Biren: Right.

Unidentified Justice: 100 percent of whatever mail they carry gets paid for by the State.

Mr. Biren: That's right.

Unidentified Justice: The State has told them to carry the mail and the State is going to pay for 100 percent of the carriage.

Bingo.

It seems to me that is all the regulation requires, isn't it?

Isn't that compensation?

How could it be not private carriage?

The State is directing the carriage by the University and is paying the University for doing the carriage.

Mr. Biren: Because I think if you look at the traditional interpretation of the meaning of compensation within this exception, if you start from 1792, in the first statute it talked about for hire or reward.

It went through, and there was an identifiable exchange of money, goods or services between the user and the carrier.

The State here is no the user.

Unidentified Justice: Do you have any cases that are even close to this case?

Mr. Biren: No.

Well, the only thing that is close is the Advisory Opinion in 77(a) which allows the Indianapolis School Board to carry the circular.

Obviously, in terms of the compensation they receive, the compensation for that mail system is no different than the compensation here.

The State funds the mail system for the School Board in Indianapolis.

Or I am not sure exactly who funds it.

But the Government funds it.

Just following that through, staying with the private hands without compensation exception, in 1846, in United States v. Thompson, the paying for merchandise there was, on could see it as pumped up to include the payment for the carriage of letters.

This Court, in 1878, in Ex Parte Jackson, talked about the purpose of the Postal monopoly as being to prohibit carriage for hire.

In 1896, the Attorney General's Opinion talked about traded services between railroads.

And in 1908, in the discussions in Congress about the business of the carrier exception, they talked about their understanding of the Postal monopoly, which was to prevent carriage for profit.

Again, the intent of Congress here was to avoid entrepreneurial competition with the Postal Service.

Unidentified Justice: It would be one thing if the University were here insisting that they had a right to do this under the statute.

But the University says no.

Mr. Biren: The University does say no.

But I am afraid I'm missing the import of your question.

Unidentified Justice: It seems to me you would have a little bit different case here if the University were on the other side of the case and it was the University and the Unions against the Government, in effect.

Mr. Biren: Are you talking specifically about the private hands exception?

Unidentified Justice: I'm talking about both.

The business of the University and the private hands.

Mr. Biren: Let me give you an example in return, because I think it shows.

When a State law imposes a duty on an employer, it is not always a happy thing.

Suppose a developer had to fill out environmental impact statements.

They don't necessarily want to do that.

But it still their State law duty.

It is still part of their business.

And I think that is analogous to the situation here.

The University may not want to do it, but the State has said, in the interests of society and in the University's interests, and in the interests of the employees, they do need to do this.

Unidentified Justice: I don't know whether they want to do it or not, but I suppose they want to obey the Federal law, too.

Mr. Biren: They do, indeed.

Unidentified Justice: What if the University had been convinced that they could legally carry this and wanted to, but they just happened to be wrong.

What does the Postal Service do?

Do they sue somebody or what?

Mr. Biren: It appears to me that what they do is they inform them that they are carrying in error.

Unidentified Justice: And they have informed the University here, haven't they?

Mr. Biren: They have.

Unidentified Justice: So the University has some grounds for saying, let's be careful.

Mr. Biren: And that's why we're here.

Precisely.

But our contention is that these two statutory and regulatory exceptions provide for this type of carriage, because in the business of the carrier exception, to do otherwise, we submit, would simply be irrational and as we have said with private hands without compensation it would be inconsistent with the previous interpretation.

Now, it may well be that Congress may wish to expand its definition of compensation from these identifiable goods and services, but until it does so--

Unidentified Justice: I haven't heard you argue yet that the regulation here is invalid.

Do you argue that?

Mr. Biren: --Which regulation are we talking about?

Unidentified Justice: The regulation on the letter.

Mr. Biren: No, I don't argue that it is invalid.

Unidentified Justice: So it is a legitimate interpretation of the statute?

Mr. Biren: Correctly interpreted to allow employees to receive mail in the labor relations situation, yes.

Unidentified Justice: But what if we disagree with you on the interpretation of the regulation?

Would you then say it is invalid?

Mr. Biren: I think that the regulation is certainly an expansion of the plain words of the statute.

The plain words of the statute say such as relates to the business of the carrier.

We have not directly attached the validity of the regulation and have assumed arguendo it is valid because we believe that this carriage is appropriate under both the statute and the regulation.

It is appropriate under the regulation because mail is going to UC.

The address says "University of California", to University of California employees.

It is from a UC employee representative organization.

In this case, it was also from a UC employee on the UC campus.

And it is on University business.

And we believe that brings it within the letter and the spirit of the regulation, as well as the statute.

In the labor relations context, it would really be unreasonable not to interpret it this way, because when you talk about agency in terms of control of the employee response, which the University has done in its brief, that is illegal in the labor relations context.

And it is specifically illegal under the HEERA scheme.

Rather, in this cooperative scheme, you have a pluralistic university with many parts, and the employee part has a role to play in decision making on terms and conditions of employment.

In other words, there is a middle ground between an identity of interest with management and a personal interest.

And that middle ground is the interest we find here, which is of employees participating in the labor relations scheme through their employee organizations.

Unidentified Justice: I just wonder whether you could not, by extending that reasoning, apply it to a business man and his client.

I mean, in the same sense that there is a symbiotic relationship between the employer and the Union, there is the same kind of relationship between a businessman and a client of his and you could say that in facilitating the correspondence of let's say a lawyer, facilitating the correspondence of one of his clients with another client who are more or less in the same businesses, he is really engaged in his own business in a say so that if a large law firm got in the business of distributing mail of its clients one to another, by parity of reasoning with what you just told us, they are really parts of a multi-faceted business arrangement.

Mr. Biren: But there are two distinctions.

The first distinction is that in this case the business is State law duty.

There is no State law bonding between the client and the attorney in your example.

And secondly, in the regulation there is also the necessity that it be to the carrier.

And in your, I believe in your hypothetical, it is not necessarily to the carrier.

I'm not sure who was carrying in your hypothetical.

Unidentified Justice: That's right.

That's right.

It's from one client to another.

But yours is to the carrier only in the address sense, that is, it is to somebody whose address is in the University of California.

Mr. Biren: My argument is twofold in that case, too.

It is more than just the address, although I believe the address is important.

When you think of the administration of this regulation,--

Unidentified Justice: The President of the University of California could not say "give me that letter" and open it up and read it, could he?

Mr. Biren: --Well, in fact,--

Unidentified Justice: It is not addressed to him.

Mr. Biren: --But under this exception, they do have the right to monitor the mail.

And so I am not sure it is at all true that he could not open it up and look at it.

The University has claimed that that might subject them to an unfair labor practice charge.

But I would submit to you that anyone can file a charge about anything.

Whether or not it leads to the issuance of a complaint and whether or not it would be upheld by the Board is a totally different matter.

In a situation in which the University is compelled to monitor this mail, I find it highly doubtful that PERB would decide that it would be an unfair labor practice to monitor the mail.

So the distinctions I was pointing out were that it was to the carrier in the sense of the labor relations scheme that the employers are part of the components of the entity that make business decisions; and it is to them in terms of their address, as well.

I think it is important also to note that there is no agency requirement on the face of the statute or the regulation.

It simply doesn't say that.

Unidentified Justice: I wonder if that is right.

Read the second sentence of the regulation:

"If the individual actually carrying the letters is not the person sending the letters. "

and of course, here, it is not,

"or to whom the letters are addressed. "

and here it is not,

"then such individual must be an officer or employee of such person. "

Mr. Biren: That is talking about who carries the letters.

Unidentified Justice: Correct.

Mr. Biren: What they are saying is you cannot have a subcontractor carrying these letters, it has to be a regular employee of the University.

Unidentified Justice: No, a regular employee of either the addressee or the sender.

Mr. Biren: Exactly.

Unidentified Justice: And he isn't here.

The carrier is not an employee of the Union which originates the letter nor is that individual an employee of the addressee of the letter.

Mr. Biren: Our contention is that in the sense that the employees here represent part of the University that makes its business decisions on labor relations, that that carrier is being employed by the University.

And they are part of the University.

Unidentified Justice: You are assuming that the addressees are the University, then?

Mr. Biren: Oh, yes.

The addressees were at the University.

Unidentified Justice: You are saying the letters are addressed to the University?

Mr. Biren: They are addressed to the University.

It says here, William Wilson, U.C., Berkeley.

So it is addressed to the University.

But also, that they participate in this decision making.

And as I said, if the agency concept is pushed to its outer limits, I think you could see them as agents of the entire University, in that it is under HEERA, the specific responsibility of the University to foster and environment in which the employees can participate to the fullest in the labor relations scheme.

Unidentified Justice: Making that argument, what if the State of California, or the Legislature, passed a statute saying it is part of the responsibility of the University to foster good neighborhood relationships and one way to do that will be to add to the business of the University delivery of free mail to everybody within five miles of the campus?

Would that be then part of the business of the University?

Mr. Biren: Certainly it would be a State law duty of the University, and to that extent, it would be the business of the University.

The letters, I believe, in your example, would not be from the University or to the University, though.

Unidentified Justice: They would be people who are neighbors of the University.

Mr. Biren: But that is not to or from the University.

Those are the kind of through letters that are talked about in the Attorney General's Opinion.

The letters here were not through letters.

They went to the University.

Unidentified Justice: By reason of the statute, they have been made part of the University, in the common enterprise of fostering community relations, just as the Union, under your theory, has been made part of the University by the labor laws.

Whenever laws push people together and require them to deal with one another, you can develop a theory that there are all part of the same agency.

That is what I understand your theory to be.

Mr. Biren: My theory is beyond that, because we are not... without having your entire statutory scheme about the neighborliness before me it is somewhat difficult.

But in this situation, they are doing cooperative decision making on what is patently the business of the carrier, which is the terms and conditions of employment under which the carrier's employees work.

Unidentified Justice: From whom do these letters... who sends them and who receives them?

Mr. Biren: In this case, a University employee, William wilson, sent the letters to other University employees.

Unidentified Justice: What was the subject of the letters?

Mr. Biren: The subject of the letters was an organizing meeting.

Unidentified Justice: To get people to join the Union?

Mr. Biren: Exactly.

Exactly.

And self organization is explicitly one of the rights guaranteed to employees under HEERA and one of the rights which the University is supposed to help create the atmosphere for.

Unidentified Justice: What if William Wilson sent another kind of letter to another University employee that said let's organize a camping trip next weekend?

Is the reason that would not be barred or would be barred by the private carrier exception that it isn't the business of the University?

Mr. Biren: Well, it is not the private carrier exception, it would be the business of the carrier exception.

Unidentified Justice: Pardon me.

The business of the carrier exception.

Mr. Biren: Yes.

It is not the business of the University.

It is a personal letter.

Unidentified Justice: What if the Legislature then says we think we should encourage all employees of the University to get out in the great California park system and that is a State duty of the University to encourage these people to get out?

Now, then, would that change it?

Mr. Biren: It would be then the State law duty and yes, it would change it, but... yes, it would change it.

But here we have a specific police power of the State involved, labor relations, in which there is a strong interest in having--

Unidentified Justice: But the California Legislature surely has any number of areas of authority over the State University of California.

Its police power is very, very broad, I would think.

Mr. Biren: --That is right.

Its police power is broad.

But I think it does have an outer limit, at which point the harmonization required between Federal law and State law--

Unidentified Justice: Would you say it was beyond the competence of the California Legislature to pass a statute saying that it is the business of the University of California to encourage its employees to get out in the wilderness over the weekend?

Would you say that that is just beyond the competence of the Legislature?

Mr. Biren: --No, I don't think it is beyond the competence of the Legislature.

No.

But I am afraid I must be missing the thrust of your question.

Unidentified Justice: You agree then that with a letter from Mr. Wilson of the circumstances I have described and with the statute, could that be carried by the University mail system without violating the Private Express Act?

Mr. Biren: It could be carried if it was specifically the State law duty imposed by law and it was going either from the carrier... in other words from--

Unidentified Justice: Mr. Wilson.

Mr. Biren: --Well, it could be going from Mr. Wilson to other agents of the carrier on the business of the carrier.

Yes.

But I think it is important to realize that labor relations holds a very special place and that it isn't the case that it is likely for California to pass that type of law.

I did do a great deal of thinking about those types of laws, in preparing for this argument.

And I think it is important to realize that labor relations is a special subject and this decision by the Legislature to foster these labor relations puts this type of carrier in a special place.

And further, perhaps another distinction is that in this statutory scheme, there is a special place for access, that the facilitation of effective communication is particularly important because of the problems in labor relations that this Court knows about historically, of employee organizations being able to communicate with their employees.

There is a long standing public policy in California to allow in public employment this type of mail system communication between public employees and their organizations.

There is a 1965 California Attorney General Opinion on the subject.

And in the hypotheticals that you were propounding, I don't think you will see that kind of long standing history.

Unidentified Justice: Who wants to go camping by themselves?

You have to get some other people.

Mr. Biren: That's right.

Well, through the U.S. Mail.

If there are no other questions, I think I will take my leave.

Thank you very much.

Chief Justice William H. Rehnquist: Thank you, Ms. Biren.

The case is submitted.

Unidentified Justice: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Eastex, Inc. v. NLRB - Oral Argument

Sun, 08 Aug 2010 19:13:46 +0000

Case:

Eastex, Inc. v. NLRB

Media File:

77-453_19780425-argument.mp3

Related Transcript:

77-453_19780425-argument.xml

Transcript:

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.

Thank you.

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.

Thank you.

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.

Mr. Abercrombie?

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.

Attribution:

The OYEZ Project

Featured:

Beth Israel Hospital v. NLRB - Oral Argument

Sun, 08 Aug 2010 19:13:57 +0000

Case:

Beth Israel Hospital v. NLRB

Media File:

77-152_19780424-argument.mp3

Related Transcript:

77-152_19780424-argument.xml

Transcript:

Argument of Louis Chandler

Chief Justice Warren E. Burger: We will hear arguments next in Beth Israel Hospital against the Labor Board. [conferring]

Mr. Chandler, you may proceed whenever you are ready.

Mr. Louis Chandler: Mr. Chief Justice and may it please the Court.

This case involves the validity of a no solicitation, no distribution rule as it applies to a nonprofit hospital's cafeteria which is used by patients, their families and employees.

The primary function of a hospital is to provide patient care and critical to that function is providing an atmosphere as free from stress and strain as possible.

The hospital's rule, banning solicitation and distribution of literature which can be disruptive to the care of patients and all patient and family access areas including the cafeteria is clearly in furtherance of that concern.

Congress, in amending the National Labor Relations Act in 1974 to include coverage of nonprofit hospitals explicitly stated that hospitals are unique and expressed its concern for the well being of hospital patients and a need to avoid disruption wherever possible.

This concern was recognized by the DC Circuit Court of Appeals in NLRB versus Baylor, cited in the brief, and the Tneth Circuit Court in NLRB versus St. John's Hospital also cited both of which denied enforcement to Board orders and upheld no solicitation rules in patient access areas of those hospitals.

The lead and justification of Beth Israel's rule is graphically demonstrated in this case where union literature was passed out in the cafeteria viciously disparaging the quality of healthcare provided by the hospital.

Let us consider the effect on an ambulatory patient visiting with his family in the cafeteria who picks up a union leaflet left on a table with statements such as the following: "They totally ignored me while I was a patient.

My experience was bewildering, painful and ugly.

I was lucky it was not a complicated delivery.

Do not ever have a baby here unless you have a private doctor.

Reports and films have become backed up.

Doctors cannot get their films and reports on time.

Patient care is suffering."

Chief Justice Warren E. Burger: Who is speaking in this material you are reading?

Mr. Louis Chandler: This is union literature distributed by employees in the cafeteria at Beth Israel Hospital, in an area where patients and their families frequent.

Unknown Speaker: Mr. Chandler, the coffee shop is closed now, is it?

Mr. Louis Chandler: Yes, it is.

Unknown Speaker: And why was it closed?

Mr. Louis Chandler: There was a renovation and the space of a cafeteria was expanded to include the coffee shop area, so now there is a greater seating capacity in the cafeteria than when the case first arose.

Unknown Speaker: Was the coffee shop run by the hospital per se or by some women's organization 04:13 or how?

Mr. Louis Chandler: The coffee shop was also run by the hospital personnel with employees.

There were vending machines in this area and seating areas for patients and employees and visitors of patients.

There were other remarks that are contained in the record Appendix and union propaganda.

"Due to understaffing, lab specimens sit on countertops for hours therefore results are misleading or altogether wrong.

Much of the hospital is not maintained in a sanitary manner.

Respiratory treatments ordered by doctors are not always performed.

Patients who need treatments to stay alive get them but those who need them to get better do not get them.

The ratio of patients to nurses presents a hazardous environment and precludes the delivery of optimal healthcare."

The record Appendix is replete with such examples.

Justice William H. Rehnquist: Mr. Chandler, I do not claim to be an expert on union organizing tactics but this does not strike me as the ordinary union organizing literature which would be urging claims for added benefits or criticizing in some other way than this.

Is there something in the record that suggests why this sort of criticism was resorted to?

Mr. Louis Chandler: Your Honor, the Board, National Labor Relations Board, has recognized in numerous cases that union solicitation -- forget about scurrilous propaganda -- but the normal union solicitation as a part of an organizational campaign is potentially disruptive.

In the retail store industry and restaurants, they find that this is enough to warrant a broad ban on such activity, union solicitation and distribution wherever customers are present or likely to be present.

What the hospital is asserting is the same interest that applies to an employer who operates a restaurant or retail store, that patients who are sick and their families who are coming to a hospital setting and understandably anxious and vulnerable, as the Board itself has recognized, should be entitled to at least the same treatment as customers who come into a retail store.

It is a matter of common sense.

Chief Justice Warren E. Burger: Is one of the claims of the union based on what you read of their literature that the hospital is understaffed and that is part of the union organizing that if they get a union, they will see that it is properly staffed?

Mr. Louis Chandler: Yes, your Honor.

The tenor of this literature is geared towards complaints about working conditions as most union campaigns are.

Chief Justice Warren E. Burger: But they do not always in their organizing stage emphasize so much the need for more employees as this literature would appear up here to --

Mr. Louis Chandler: Not in other kinds of situations but here we are dealing with a hospital and they are raising concerns that are concerns to patients and here where the hospital has areas that are set aside for employees to engage in this activity.

There are employee only areas within the hospital and they may organize, they may distribute literature in those areas without interfering with patients or their families.

So the hospital feels that in order to protect patients, to insulate them from the potential disruption of this kind of literature or any kind of disruptive literature, and especially union literature because the Board itself has given its staff approval to banning that kind of distribution because that in and of itself is inherently disruptive according to the Board.

The controversial remarks such as this --

Chief Justice Warren E. Burger: Has the hospital allowed political candidates to come in the restaurant to distribute literature?

Mr. Louis Chandler: No, they do not.

As a matter of fact, the hospital's rule was promulgated initially during the Vietnam War to avoid demonstrations in the hospital throughout patient care at patient access areas.

The rule has been amended since then a number of times, however, the present rule involves a total ban on solicitation and distribution in patient access areas.

Justice John Paul Stevens: Mr. Chandler, does the record tell us how often this material actually fell into the hands of patients or visitors?

Mr. Louis Chandler: There is no evidence in the record your Honor to indicate that it fell into patients' hands at all.

However, the Board, in its other case precedent, recognizes that leaflets may be left in customer access areas and may be discarded and picked up by a customer and we feel that there is a logical inference that that could happen in this setting as well.

Rather than being sensitive to the unique conditions found in the hospital, and to the declared intent of Congress to recognize the special needs of patients, the Board has mechanically applied rules that pseudo factory environment where no patients, customers or third parties are involved.

I have already alluded to the special circumstances present in a hospital environment involving patient care considerations.

Inherent in the nature of the hospital operation and the treatment of patients, is the fact that patients are understandably anxious and vulnerable and likely to be upset by union solicitation and distribution in patient access areas.

The Board itself recognized this principle prior to the 74 amendments, in the Guyan Valley Hospital case which was cited in the brief.

Justice William H. Rehnquist: Mr. Chandler, do you think it necessarily follows that a patient would upset by a leaflet that said, "Beth Israel employees get only so much an hour, Peter Bent Brigham employees get 10% more", do you think that would upset a patient?

Mr. Louis Chandler: I think your Honor, that there is a question of degrees and if the hospital were to allow some union solicitation on a selective basis, it would create problems of deciding which to allow and which not to allow.

In that particular case, I would think that there could be a problem from a patient's point of view feeling that there is some undercurrent within the hospital that employees are dissatisfied with the hospital and they may not be able to go about their duties properly.

As I was saying earlier, the Board, in Guyan Valley, affirmed administrative law judge's decision, and the administrative law judge found that the hospital services ill individuals who in their weakened condition may readily be upset if they overhear anti union, pro union arguments among employees while they, the patients, are in their rooms or in the halls or elevators and taking into consideration the nature of the institution and the necessity for protecting patients, any presumption of illegality is over come.

Justice Thurgood Marshall: Does this case involve patients' rooms?

Mr. Louis Chandler: This case does not, your Honor.

Justice Thurgood Marshall: I thought you just said room.

Mr. Louis Chandler: The Guyan Valley case that I am citing now involved patient access areas.

This was a rule that was in effect prior to the amendments.

The Board recognized that a hospital creates a special circumstance and they allowed just like they did with retail stores, they allowed an exception to the normal presumptions and said that in patient access areas and they defined them as the gift shop, elevators, stairways, corridors, patient rooms and so forth.

This was in the administrative law judge's decision affirmed by the Board.

They recognized that solicitation could be prohibited, however after the amendments were enacted in 1974, a-year-and-a-half later, despite the fact that the Board conceded before the Tenth Circuit in the St. John's case, that Guyan Valley represented an accurate state of the law at the time the amendments went into effect.

A-year-and-a-half later, in the St. John's decision, the Board's St. John's decision, the Board without articulating any reason for departing from the Guyan Valley analysis, without medical evidence, without any medical expertise, reversed its position and they ruled that although special conditions exist in a hospital that although a tranquil atmosphere is essential to a hospital's primary function of providing patient care, and that although solicitation might be unsettling to patients in strictly patient care areas that solicitation could have no adverse effect on patients in other areas such as cafeterias, lounges and alike.

Justice William H. Rehnquist: Did the board have jurisdiction over Guyan Valley because it was a for profit hospital?

Mr. Louis Chandler: Yes, the Guyan Valley was a for profit hospital and was covered by the Act, and Congress in amending the Act to include nonprofit hospitals said that "at least the same treatment should be afforded to employees and hospitals as under the prior legislation".

And what has happened here is the Congress added safeguards because of the taking of jurisdiction over the nonproprietary hospital involving specific amendments to statutes involving -- getting federal mediation involved earlier, strike notices and so forth, but they did not give recognition to the already existing state of the law.

Congress realized that the same condition should apply and they stated as much.

In the Congressional record, there is ample support for the proposition that at least the same rights for proprietary hospital should continue in effect plus additional safeguards.

Justice Byron R. White: Are you suggesting that the Board has the wrong standard in these kinds of cases or are you just challenging the application of an accepted standard in this context?

Mr. Louis Chandler: I am challenging the notion of not applying at least the same standard that is applied in a customer access area of a retail store to a hospital setting where patients are involved and where Congress in amending the Act to include nonprofit hospitals specifically stated that the Board in treating these situations should give special attention to the needs of patients.

So it seems to be more necessary to look at patients' needs in a hospital environment than to look at customers needs in a retail store environment.

Justice Byron R. White: So you are really then challenging the application of the rule that has evolved to the hospital?

Mr. Louis Chandler: That is correct.

I am challenging the disparate treatment of the Board in a retail context and a hospital context where in the hospital context, we have specific guidance from Congress that patients should be treated specially.

Justice William H. Rehnquist: Well, I suppose it depends on how high a level of abstraction you want to reach in answering my brother White's question.

If you complain that the Board is not applying the same standards to hospitals as it is to retail stores, you are, in effect, complaining about the standard that the Board has adopted, aren't you?

Mr. Louis Chandler: Yes, Your Honor.

I would agree with that.

Chief Justice Warren E. Burger: Now, when you say retail, do you include restaurants, open to the public?

Mr. Louis Chandler: Yes, I do Your Honor and this is a case which involves a hospital cafeteria with the substantial number of patients and visitors that use that cafeteria and they are just as much customers of this cafeteria.

Chief Justice Warren E. Burger: Is it necessary for a uniform application that there would be any patients or any family in the restaurant if it is a restaurant in what just happens to be in a hospital?

In other words if they cannot go into the Rive Gauche and distribute literature, is it your position they cannot go into any other restaurant just because it happens to be in a hospital?

Mr. Louis Chandler: Yes, sir.

Chief Justice Warren E. Burger: It does not make any difference whether it --

Mr. Louis Chandler: No, it does not.

Chief Justice Warren E. Burger: If the patients are nervous or the families are nervous?

Mr. Louis Chandler: That is a second position that the hospital asserts Your Honor.

First, we feel that the retail store precedent should be applied in this case because patients are involved.

A hospital is a special circumstance in and of itself and that need interest should be protected to insulate patients from potentially disruptive influences.

Secondly, this is a cafeteria and cafeterias outside of hospital setting have been given this kind of protection against union solicitation.

Justice Potter Stewart: Generally, in an ordinary cafeteria, the employees of the cafeteria are not sitting around at the tables, are they?

Mr. Louis Chandler: They may sit around the tables.

They may intermingle with patients and visitors.

Justice Potter Stewart: No.

A nonhospital cafeteria, a nonhospital cafeteria.

It is a usual thing to find employees sitting around at the table having lunch or dinner or breakfast.

Mr. Louis Chandler: I think we have to distinguish between employee only cafeterias and public cafeterias.

Justice Potter Stewart: I am talking about a public cafeteria, open to public.

Is it normal in such a cafeteria to find employees of the cafeteria patronizing it as customers.

Mr. Louis Chandler: Yes, Your Honor.

In fact, in the Goldblatt case which is a Board decision dating back to 1948 involving a department store.

The Board applied its retail store precedent to the department store's cafeteria which was used by employees and customers and there is no indication --

Justice Potter Stewart: That was a department store rule.

Mr. Louis Chandler: That was a department store rule.

Justice Potter Stewart: And that is your first point.

Your second point is the eating place rule, right?

Mr. Louis Chandler: No, the department store has a cafeteria on the premises and that is used by employees as well as customers.

And the Board in that case says that not only is the selling function of the department store at stake but the rapport of customers who happen to eat in that area.

Justice Thurgood Marshall: Why do not you not give a very simple answer to my brother Stewart, that most employees that handle the food in the cafeteria know better than to eat that. [Laughter]

Mr. Louis Chandler: I wish I had thought of that Your Honor.

In the Boards McDonald's restaurant case which is sited in the brief, the Board has said from the administrative law judge's decision --

Justice Thurgood Marshall: But in this case they were not passing out this literature to the employees of the cafeteria, were they?

Mr. Louis Chandler: They were -- employees working in that cafeteria.

Justice Thurgood Marshall: Employees of the hotel, I mean of the hospital, but not the ones in the cafeteria that is my brother Stewart's point.

Mr. Louis Chandler: There are employees at the hospital however Your Honor that work in that cafeteria that could be distracted.

This is a work area as well as a --

Chief Justice Warren E. Burger: Well, how many employees do you have in the cafeteria?

Mr. Louis Chandler: I do not have that information, it is not on the record.

Justice Thurgood Marshall: And first of all, when you have about 50 times that many seats so it is obviously not for them.

It is for the employees that do not work in the cafeteria.

Mr. Louis Chandler: It is for the employees that do not work in the cafeteria.

It is also for the patients and visitors of the hospital.

Justice Thurgood Marshall: That is right.

Who also do not work in the cafeteria.

Mr. Louis Chandler: That is correct.

Justice Thurgood Marshall: That is the point, that is a little different.

It is a little different, isn't it?

Mr. Louis Chandler: It is no more different than the Goldblatt case which is also a cafeteria where there are fewer employees working.

There are off duty employees and there are customers that share that facility and the Board in that situation has applied the rule that we would ask them to apply in this case.

Justice William H. Rehnquist: Was Goldblatt a restaurant or a department store which had a restaurant?

Mr. Louis Chandler: That was a department store that had a restaurant Your Honor.

Justice William H. Rehnquist: And I presume there would be some employees from other branches of the store than the cafeteria who ate in the cafeteria?

Mr. Louis Chandler: Yes Your Honor.

Chief Justice Warren E. Burger: Well, I suppose if it is like any other cafeteria there are employees circulating around constantly taking away the trays and the plates of customers who have departed?

Mr. Louis Chandler: Yes Your Honor that is correct and that is why I indicated that this is also a work area.

There are employees at the hospital that work in the cafeteria.

The Board in St. John's moved away from this Guyan Valley principle and they said that only non-ambulatory patients or patients who are confined to their rooms and to immediate care areas or treatment rooms are entitled to the protection from Union solicitation distribution, that other patients who are ambulatory are better able to endure the unsettling effects which the Board recognizes that might be the case in the immediate patient care areas.

The Board apparently has rendered its expert judgment that the unsettling effects of such solicitation and distribution for some reason are suspended while a psychiatric patient is in the cafeteria with his family awaiting psychiatric treatment or a cancer outpatient.

Justice John Paul Stevens: Mr. Chandler I have been trying to figure out where do you recommend the solicitation should take place?

Mr. Louis Chandler: We recommend that the solicitation be allowed in employee only areas of the hospital.

Justice John Paul Stevens: Which are what?

Mr. Louis Chandler: There are locker rooms and adjacent restrooms in the hospital and outside of the hospital.

Justice John Paul Stevens: Outside the hospital?

Mr. Louis Chandler: Outside of the hospital.

Justice John Paul Stevens: Front steps?

Under the same danger on the front steps that may be a leaflet would be handed to a patient not knowing he is a patient.

Mr. Louis Chandler: Yes Your Honor outside of the hospital on public grounds that the hospital has no control over.

I would not --

Justice John Paul Stevens: Or it could direct its employees not the solicit of the front because it might have the same adverse effect, couldn't it.

Mr. Louis Chandler: But the hospital has no control over what may happen on public property.

Justice John Paul Stevens: But it has control over its employees, doesn't it?

Why did not it imply the same rule, say, that you get fired because this may jeopardize the health of the psychiatric patient walking in the front door.

Isn't it precisely the same risk as in the coffee shop where 1% of the people are patients as I understand or 2% ro something like that.

Mr. Louis Chandler: I think there is a less of a risk involved, becuase there is --

Justice John Paul Stevens: But there is a risk.

Mr. Louis Chandler: There is some risk but there is a balance Your Honor that has to be made.

Justice John Paul Stevens: Whereas in the coffee shop, of course, they can at least ask the person whether a patient or not but I suppose it is out in front of me little more difficult.

People who are walking along, you sort of stick a leaflet in front of them.

We just figured that risk is outweighed by the need to organize in that particular context, is that right?

Mr. Louis Chandler: I believe so in that context, yes Your Honor.

In the cafeteria, no because there are patients who regardless of whether they are able to walk to the cafeteria maybe quite ill and are in need of protection and insulation and in need of an environment to help them cope.

Justice John Paul Stevens: Because every patient I suppose has to walk in the front door, but everyone does not eat in the cafeteria.

Most patients I assume get most of their meals in their rooms.

Mr. Louis Chandler: Most inpatients Your Honor.

There are eight times as many outpatients as in patients in the hospital according to the record evidence and there are 400 beds in the hospital so there are substantially more outpatients who may coming off the street for --

Justice Thurgood Marshall: Do you mean outpatients go to the hospital cafeteria indeed?

Mr. Louis Chandler: Yes, Your Honor.

They may while they are awaiting --

Justice Thurgood Marshall: And they are not held there for psychiatric treatment. [Laughter]

Mr. Louis Chandler: The Board has held that it is disruptive to organize in public areas in other cases not in hospital cases.

They have held it in the Guyan Valley case.

Our position is they should hold that in this case as well where you have patience involved and patient access areas that their rule this distinction between ambulatory and non-ambulatory is not supported.

Justice Byron R. White: What if the news in the cafeteria was only minimal by the patients, and I take it here it is not a very high percentage of patients or at least not a very high percentage of the customers or patients.

Mr. Louis Chandler: There are substantial number of customers, however, based upon the figures that are in the evidence on an annual basis for over 54,000 patients and their families, visitors who use that cafeteria just to purchase meals, and in the decision of the administrative law judge which is appended to the brief of the petitioner in a related case, he found that patients use the cafeteria for visiting children and not necessarily to purchase meals, so there could be a substantially greater number than the 54,000.

Justice Thurgood Marshall: So Mr. Chandler you keep saying that the Board does not follow its own precedents, is that your complete argument?

Mr. Louis Chandler: No, Your honor, I think that we have here a situation where Congress has spoken.

Congress has said that special attention must be given to the needs of patients, and our position is that the Board has not recognized the special needs.

Not only because of the retail store exception but because the hospital is a special circumstance, it is a unique environment and should be given special attention.

Thank you.

Chief Justice Warren E. Burger: Mr. Come.

Argument of Norton J. Come

Mr. Norton J. Come: Mr. Chief Justice may it please the Court.

I think that much of my brother's argument proceeds on the assumption that when Congress enacted the Healthcare Amendments of 1974 and brought non-profit hospitals under the National Labor Relations Act it somehow mandated the Board to restrict solicitation and distribution by employees in an organizational context.

We submit that the legislative history of that statute and those amendments shows quite contrary that Congress intended to leave it to the Board's discretion to continue the exercise its preexisting responsibility to accommodate employee's organizational rights and the employer's management interest which in the case of a hospital is to maintain patient care.

Chief Justice Warren E. Burger: Do you challenge the findings that a significant number of non-employees use that cafeteria over a period of a year?

Mr. Norton J. Come: The findings of the Board which were sustained by the Court of Appeals and which are based upon a survey hospital conducted that appear at record Appendix 124 shows that employees purchase 77% of the meals served in this cafeteria, visitors 9%, and patients only 1.56%.

The remainder of the meals were purchased by students, volunteers, doctors, nurses, and others.

There is no employee only facility in this hospital.

The hospital's employees' handbook states that a modern cafeteria is provided for all employees where a nutritious well prepared meal is maybe purchased at reasonable prices.

In short, the point that I am making is that this hospital cafeteria is primarily a employee eating facility that hospital held out to its employees as such, and indeed it has used the cafeteria area to communicate with employees concerning hospital programs and is permitted employees to obtain literature there concerning a variety of commercial matters.

Chief Justice Warren E. Burger: These controversial matters, these communications?

Mr. Norton J. Come: Well, they were not Union organizational matters.

Chief Justice Warren E. Burger: But they were controversial in any respect.

Justice Thurgood Marshall: Red Cross.

Mr. Norton J. Come: Well, the trial examiner, at petitioners Appendix 33, indicates the nature of them.

The poster is publicizing the hospitals buck a day a cost reduction program, travel brochure, a rat carpool board, literature concerning nutritional ideas, commercial literature relating the tennis camps, film processing, magazine subscriptions, united fund and combined Jewish philanthropies drives and things of that sort.

The point is though that whether hospital drew the line was at solicitation and literature relating to Union activity.

Justice William H. Rehnquist: Mr. Come following up a little bit on the Chief Justice's question.

The leaflets described by Mr. Chandler in his opening arguments, if this case is to depend on facts at all and perhaps it should not, it seems to present the very worst possible situation for the Union's position and the Board's position.

A good deal or worse, I would think normal the organizing tactics would present.

Is there anything in the Board's record that suggests why the Union resorted to this type of statements in its organizing campaign?

Mr. Norton J. Come: I submit Your Honor that although some of this literature perhaps gets to the outer fringes, it is still a probe test working conditions and often Union literature on that subject is not for exactly the language of the filer.

Now the Court of Appeals found reading from Petitioner's Appendix 55, Beth Israel argues that its no distribution rule will prevent the Union's scoreless attacks and quotes and the hospital's healthcare from falling into the hands of patients.

There was no evidence however that literature offensive or otherwise was distributed to patients or visitors.

Employee Schunior testified that she took care to distribute only to employees.

Justice Potter Stewart: Well, the emphasis is on distribute, doesn't the record show that these are left on the tables and available to anybody?

Mr. Norton J. Come: I think that all that the record shows what employee Schunior distributed and what she was disciplined for.

I think that the rest of it is speculation as the Court of Appeals so finds here, and as the Court goes on to add that if in the future in fact scoreless or offensive literature is distributed, the remedy is to ban that kind of literature or to discipline employees for distributing that kind of literature not to ban all of it, and that is what the hospital has got here.

It has got a total ban on the distribution of any Union literature even the most innocuous or any Union solicitation in any area of the hospital other than the employee only areas and the only employee only areas here were the locker rooms which on the findings of the Board --

Justice Thurgood Marshall: And the restrooms you have got restrooms.

Mr. Norton J. Come: And the restrooms.

Justice Thurgood Marshall: I can conceive how you pass them out. [Laughter]

Mr. Norton J. Come: The restrooms were joining the locker rooms as I understand it.

But on the findings of the Board and affirmed by the Court of Appeals these locker rooms were not open to all employees and they were segregated by sex and as a matter of fact not even the hospital use the locker rooms or bulletin boards and some of the locker rooms when it found it necessary to communicate with the employees, and either did so by posting bulletins in the cafeteria or by giving them fliers in conjunction with there paychecks, so that the long in short of it is that if the employee organizes -- and we are not talking about outside organizers we are talking about employees of the hospital -- are not free to engage in orderly solicitation of their fellow employees who are off duty and distribute literature to them at that time in the cafeteria.

There is no other place in this hospital second where these employees organizers can get their message across to their fellow --

Chief Justice Warren E. Burger: What about the locker rooms that you have just spoken to us about.

Why is not that a perfectly adiquate place where no one has access except employees?

Mr. Norton J. Come: Well, those locker rooms are not open to all employees.

Chief Justice Warren E. Burger: Well, any employee that is interested can carry a literature in there if he wants to can't he?

Mr. Norton J. Come: Not every employee can get access to those locker rooms.

Justice Thurgood Marshall: What about the entrance to the hospital?

I mean every employee does not have to go to the cafeteria, but every employee does have to come in the door.

Mr. Norton J. Come: Well, the hospital's rule as I understand it also preclude the distribution of literature in front of the hospital and as a matter a fact in the second Board case involving the Beth Israel Hospital which is still pending before the Board.

Three employees were disciplined for handing out literature right in front of the entrance of the hospital.

Chief Justice Warren E. Burger: Do the employees of this hospital use the same front entrance that the patients and the visitors do, if so it is the first hospital that I have ever heard of?

Are they having employees entrance that has special access?

Mr. Norton J. Come: So far as the record show --

Chief Justice Warren E. Burger: 400-bed hospital?

Mr. Norton J. Come: There is no such restriction.

Chief Justice Warren E. Burger: Well I would not believe it unless you could demonstrate it affirmatively on the record.

It is just incredible to suggest that they do not have an employee's entrance.

Mr. Norton J. Come: Well, there maybe an employees entrance but in so far as the record shows there is no indication that they are confined to entering the hospital through that entrance.

Chief Justice Warren E. Burger: But the place for distribution to employees is at the employee's entrance, is it not?

That is where you are going to get the best traffic for the purposes of the Union.

Mr. Norton J. Come: Well, that is certainly not the rule with respect to other establishments.

The Board is entrusted with the duty of balancing the employee's organizational rights against the employer's property rights.

This Court has recognized that the place of work is the place that is uniquely appropriate for the employees to obtain such information.

Going as far back as Republic Aviation, the Court approved of the Board's presumptions that working time is for work and therefore a rule barring employee solicitation and distribution during working time is presumptively invalid but by the same token, non-working time is the employees own time and therefore a rule barring solicitation and distribution during that time is presumptively invalid absent the showing.

Chief Justice Warren E. Burger: Even when it is only 77% of the employees and the balance is someone other than employees, that is the figure you gave as I understood it.

Why should the balance of the people have to be exposed to this kind of activity, anymore than people walking into the Rive Gauche or the Mayflower Hotel Restaurant?

Mr. Norton J. Come: Well, an accommodation has to be made between the organizational rights of the employees and those of the hospital.

Chief Justice Warren E. Burger: Do you think some consideration needs to be given to the patients on the purpose of running a hospital?

Mr. Norton J. Come: Yes, Your Honor and the Boards St. John's principle in which the board attempted to accommodate the general Republic Aviation principles to the special needs of the hospital is an effort to make such an accommodation.

Unknown Speaker: Were we reveiwing that case or this one?

Mr. Norton J. Come: We are reviewing this case, Your Honor.

Unknown Speaker: Well, where do you find a real discussion in the Board's order in this case or in the administrative law judge's decision by the way?

Mr. Norton J. Come: Well, I think that the line that St. John's draws is between patient care areas and other areas of the hospital to which patient's may have the access.

I think that the only issue that we have in this case is the cafeteria, that is admittedly not a patient care area but it is an area to which patients have access, and the question is whether balancing the needs of the employees for obtaining information concerning union activity in the cafeteria against the possible harm to the patient care function of the hospital, the Board was reasonable in drawing the accommodation in favor of the employee rights.

Unknown Speaker: Where do you find any discussion by the Board or the administrative law judge about such a balance as that in this case?

Mr. Norton J. Come: It is the administrate law judge's decision is replete with such discussion, Your Honor beginning on pages --

Unknown Speaker: Did you recite the contentions of the parties that is about -- it does not tell me where he comes to a real finding except on page 42.

Mr. Norton J. Come: Well, I think that 42 is his ultimate conclusion.

Unknown Speaker: Why would you treat this cafeteria different than a cafeteria in a retail store?

Mr. Norton J. Come: All right, I think we come down to that.

Unknown Speaker: The administrative law judge and the Board certainly did not discuss the matter.

Mr. Norton J. Come: The Board discussed it in the St. John's decision which the Board referred to in a Footnote in this case in affirming the administrative law judge.

Unknown Speaker: So we should read it up at that decision and incorporate that discussion in this case?

Mr. Norton J. Come: In so far as the distinction between a retail cafeteria and a hospital cafeteria is concerned and the essence of the distinction is this: The Board has got obviously in the exercise of this discretion that it has, make this accommodation in the light of the different situations that you have in different industries.

This is a difficult problem that requires a lot of fine tuning, and that is one of the reasons why Congress left it to the Board subject of course to judicial review.

The Board has always had the view that an employee cafeteria in an industrial plant for example, there was a right to solicit and distribute on nonworking time.

On the other hand, the Board, with respect to a commercial restaurant has found that --

Unknown Speaker: Retail store or anything separate.

Mr. Norton J. Come: That is correct.

That to permit solicitation or distribution there, involved too great a likelihood of disrupting the main function of the commercial enterprise which was to serve customers.

Justice William H. Rehnquist: Even though in a department store restaurant, presumably a number of employees with the various departments would eat.

Mr. Norton J. Come: That is correct, Your Honor.

That is correct.

Justice Thurgood Marshall: So it is all cafeterias except those in hospitals under one roof?

Mr. Norton J. Come: Well, not the cafeterias in industrial plants.

Justice Thurgood Marshall: Well, cafeterias in retail establishments?

All other than hospitals are covered but the hospitals are not?

Mr. Norton J. Come: Hospitals are not covered because the Board believes that to permit solicitation by fellow employees and distribution in such facilities is not likely to interfere with the function of the hospital.

It is not likely to interfere with patient care.

Justice Thurgood Marshall: (Inaudible).

Mr. Norton J. Come: That is correct.

Justice Thurgood Marshall: And participated in a labor controversy helps people to get well.

Mr. Norton J. Come: Well, as Judge White had pointed out in the Lutheran Hospital case, which did sustain the Board, in this day and age, patients are not likely to be upset by overhearing discussion of Union activity any more than they would be by overhearing doctors and nurses who talk in a cafeteria about operations or diseases or the normal things that are likely.

Justice Thurgood Marshall: They are the same things that is in those pamphlets?

Mr. Norton J. Come: That is correct, Your Honor.

Chief Justice Warren E. Burger: Did Judge Parker state any evidence to support this conclusion or was that just some generalization that occurred to him?

Mr. Norton J. Come: He did not cite any evidence but there Your Honor, I think we get back to the point that this Court made in Republic Aviation namely that the Board is entitled in drawing up these rules as to the proper balance between employee and management rights to draw reasonable inferences based upon its experience in this area and that it is not necessary for a Board rule to be sustained to have evidence that would establish the results of the particular rules.

I mean, they have to be reasonable.

Chief Justice Warren E. Burger: Your time is expired now, Mr. Come.

Mr. Gold.

Argument of Laurence Gold

Mr. Laurence Gold: Mr. Chief Justice and may it please the Court.

Continuing with the point that Mr. Come was making, I think it is important to stress that this case brings to this Court a question concerning the validity of certain basic rules presumption that the Board has stated.

One of those presumptions is that employee solicitation and distribution of union literature in nonworking areas and during nonworking times is presumptively lawful.

It is a presumption, the hospital in any case can seek to overcome that presumption.

In this case, the hospital did not seek to overcome that presumption with any facts.

What it did was say that the rules here should be presumptively lawful.

Justice William H. Rehnquist: Mr. Gold, do you view this primarily as a review of a rule making proceeding or as an adjudication?

Mr. Laurence Gold: I would believe that it is of an adjudication.

Justice William H. Rehnquist: Substantial evidence considered on a rule?

Mr. Laurence Gold: That is right, in other words, the Board has, at least since the Republic Aviation case, followed this approach of stating a presumption and then litigating the applicability of the presumption in particular cases.

Chief Justice Warren E. Burger: We will resume there at 1 o'clock.

Mr. Gold, you make continue.

Mr. Laurence Gold: Thank you, Mr. Chief Justice.

At that break for lunch, I was making the point that the basic Board rule here is in the form of a presumption, restrictions on union solicitation and union distribution in a cafeteria like this, says the Board, is presumptively unlawful.

Chief Justice Warren E. Burger: It is like this that is in quotation marks if I may quote you that perhaps creates the problem.

Can you have a presumption which is applied to factories and other places and have that apply with the same force to the restaurant in a hospital?

Mr. Laurence Gold: Well, what the Board has done is say that in certain areas, rules are presumptively lawful and others presumptively unlawful, and the burden --

Chief Justice Warren E. Burger: In a factory as you know and I know and we all know, except for a rare exception of a visiting fireman, the only people lunching are the employees and perhaps officers of the company.

Here you have something that is open to 28 some percent, 23% I think it was of people other than employees and the considerations of the tranquility of the establishment.

Mr. Laurence Gold: Mr. Chief Justice, the figures are that employees and other staff comprise 89% of the customers and there are --

Chief Justice Warren E. Burger: Well, (Inaudible) doctors.

Mr. Laurence Gold: I do not think there will be the doctors would be disturbed nor does the hospital argue it, and so the question is whether the 1.5% patients and 10% guests argue for a different presumption.

I think that the Board preceded perfectly, rationally in the following sense.

There are two lines of cases as we have developed and contrary to the impression created by the petitioner that there is one.

Line one says that where you have an employee only cafeteria, a restriction to this type is presumptively unlawful.

Presumption number two says that where the facility is primarily for the general public, such rules are presumptively lawful.

And what the Board did here was to say that to begin this process as a working hypothesis, we will say that this rule is presumptively unlawful and put the burden on the hospital which after all claims to have the medical expertise to show that there are special circumstances which make the rule lawful, and the hospital did not accept that invitation instead, they argued what the Board's presumption is arbitrary and capricious.

We think that that places a very heavy burden on them under this Court's general law regarding the review of administrative agency determinations and that they have not begun to carry it.

First of all as we have been discussing --

Unknown Speaker: But it is not a substantial evidence problem?

Put that way is, it is a statutory construction problem?

Mr. Laurence Gold: There are two steps.

That is right.

First is the did the Board proceed properly in stating this presumption?

Unknown Speaker: That is a legal question?

Mr. Laurence Gold: Yes, and then if it did -- I do not think that --

Unknown Speaker: Well, there are two: It does not proceed within its statutory to hardly state and presumption, and secondly, if it may state one, it is also a second legal question whether this is a proper one as they have created it here.

Mr. Laurence Gold: Right.

Unknown Speaker: And those are legal questions, I think.

Mr. Laurence Gold: Yes.

Unknown Speaker: So we do not get into Universal Camera types of inquiries for judicial review in this case?

Mr. Laurence Gold: No, I think that the problem here is exactly the same as the problem for factories and other facilities as in Republic Aviation where this Court answered the first question you posed, yes, the Board --

Unknown Speaker: Well, but tell me Mr. Gold, if we agree that the presumption was proper then we still have to determine that whether its application on the factual record here that was proper in the conclusion?

Mr. Laurence Gold: Yes.

Justice William J. Brennan: So we do have -- to that extent, we have a judicial review of factual determination?

That is right.

Justice William J. Brennan: I know you do not have too much time but if you do, I hope you will be able to give a few seconds to tell us where are the factual findings here?

Mr. Laurence Gold: Okay.

Unknown Speaker: Particularly with relation to this St. John's, about the Judge Campbell cause a puzzling footnote?

Mr. Laurence Gold: Well, the footnote is in our view basically -- the puzzling aspect of the footnote is basically out of the case because the Court of Appeals said that except as to the cafeteria, there has not been a sufficient articulation of the Board's theory sent all other aspects of the case back and the Board accepted the remand.

So what we have here is the application of the Board's presumption to this cafeteria and the administrative --

Unknown Speaker: And our findings as to that?

Mr. Laurence Gold: The administrative law judge's findings, I apologize, I do not have the petition.

I have the decision, are set forth at length at 220 --

Unknown Speaker: He has a long discussion, but I have the tough time in identifying any findings excep that Page 42.

Unknown Speaker: Will you get to that summary, Mr. Gold to summarize.

Is that where we find the findings based on --

Mr. Laurence Gold: No, I would say that beginning at the portion of the decision at 223 NLRB 1197, and continuing through the end of 1198, the administrative law judge considers each of the factors which were argued namely the effect on patients, the discrimination point which I would like to stress the availability of access to people elsewhere, he reviews each aspect of the record and says that in this situation, the presumption was not overcome.

As to the discrimination point which I guess will be the only thing and if I can have even one minute on that we do want to make the point that the administrative law judge found, the Board accepted the finding and the Court of Appeals affirmed it as well that the employer put a greater restraint on communications concerning union activity than on any other type of communication in one of the best settled rules here, and we think one which is plainly derived from the Act itself which protects discussion of union activity and other matters concerning mutual aid and protection but does not protect charity drives or discussions of sporting events or public affairs is in itself sufficient to sustain the finding here.

This is not a normal cafeteria.

It is not like Rive Gauche, I would point the Court to the pictures at Pages 111 through 114.

Justice Thurgood Marshall: Mr. Gold the one thing worries me if we agree me with you, how do we explain away the retail store?

Mr. Laurence Gold: Well, This was my point Mr. Justice Marshall, in the retail store the basic function of the cafeteria of the store is to serve the general public.

Here the basic function of this cafeteria was to serve the employees.

You would not walk in to a general public facility and find slogans addressed to the employees BAD means save a buck a day or you would not find bulletin boards, table setup for the employees.

The employer's actions here demonstrate that this was basically a place used by employees and other staff and was the place at which employees spoke to each other.

After all union solicitation distribution sound like archaic terms, but what they are, are people talking to each other or people reading literature or exchanging literature.

Chief Justice Warren E. Burger: But they can do that in the locker rooms?

Mr. Laurence Gold: Well, as Mr. Come endeavored to indicate Mr. Chief Justice only a third of the locker rooms are open to employees generally.

The other locker rooms are open only to the employees who have a locker in that particular facility and what the employers rule does in this instance is to close off communication between somewhere around 2/3rds of the employees because what he wants to do is to say that any place you ever find a patient, it is improper for employees to be discussing unionization whether or not they are working.

Chief Justice Warren E. Burger: Your enlarged time is not expired Mr. Gold.

Mr. Laurence Gold: Yes, I apologize Mr. Chief Justice.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further Mr. Chandler?

Rebuttal of Louis Chandler

Mr. Louis Chandler: Yes, Your Honor.

Chief Justice Warren E. Burger: We have enlarged your time to compensate for your friends.

Mr. Louis Chandler: Thank you.

Briefly there are several points in reply.

The record Appendix verifies that there are approximately 700 lockers in just four of locker areas to which all of that Beth Israel employees have access.

Secondly, brother counsel stated that the Board's rule is a rule prohibiting solicitation during work time is presumptively valid.

What he neglected to say was that the Board rule also says it is presumptively valid to prohibit solicitation in work areas and public or customer access areas.

Here the Beth Israel cafeteria apart from being a place where employees are working is a customer access area and the customers here happen to be patients and their families.

At the very least the hospital is entitled to the same consideration.

The question of numbers has been raised.

The Board has never raised question of how many customers are in a particular area in an elevator of a department store or in a cafeteria in a department store.

We see no reason to apply it in a cafeteria setting especially here where there are substantial numbers.

The primary function that brother counsel mentioned that apply in the retail store I cite again the Goldblatt Case because in that case because in that case the primary function was selling merchandise cafeteria and that case was not for selling merchandise or was with selling food and adjunct to that operation.

In the remand that brother counsel referred to in the related Beth Israel Case, the Administrator law judge made certain findings of fact and I would read from the addendum in the brief.

Solicitation and distribution --

Chief Justice Warren E. Burger: What page?

Mr. Louis Chandler: This is on page 49.

"Solicitation and distribution in patient access areas can interfere with patient care functions.

Such activity can be disturbing to patients and their families.

Persons who are particularly susceptible to being disturbed such disturbance can interfere with Beth Israel's primary function of curing illness."

However, he goes on to say that he was bound by the Board's rule in St. John's not by the Tenth Circuit Court which reversed the Board's rule.

Curiously, the Board in the McDonald's Hamburger case apply the restaurant rule by saying and I quote from the decision of the Board.

"Union solicitation can lead to heated verbal exchanges among the solicitors and those solicited.

Indeed it is certainly not unknown for violent physical exchanges to occur in such circumstances should such that be in the presence of customers would not be unlikely the employer can well foresee the destruction of the rapport which this employer and any normal employer would like to have with its customers."

Justice Thurgood Marshall: Well, wouldn't that be a crime?

Mr. Louis Chandler: Excuse me Your Honor.

Justice Thurgood Marshall: Wouldn't it be a crime to fight?

Mr. Louis Chandler: Would it be a crime?

Justice Thurgood Marshall: Yes, it would be a crime.

You take care of that one separate.

Call in the police and arresting the man.

Mr. Louis Chandler: You are right Your honor.

Justice Thurgood Marshall: That solves that problem.

Wouldn't that to solve that with NLRB Case?

Mr. Louis Chandler: No, we do not Your Honor, but the Board has recognized in a retail store setting and a restaurant setting that solicitation can be disruptive, and if they give that kind of consideration in the McDonald's hamburger place we would expect that they would be able to apply that same logic to a hospital setting.

Chief Justice Warren E. Burger: There are only complaint I would say that you are really lying which is the complain about the NLRB being consistent and then nothing we have been able to do so far to compel them to do that, so (Inaudible) doing on this case.

Mr. Louis Chandler: I would hope that this case where there is express congressional intent to give the needs of the patient's special attention that this would be the case where the Board has acted contrary to that congressional intent and where the Court should strike them down as did the Tenth Circuit and DC Circuit Courts in the St. John's and Baylor Cases.

I would ask that this Court reverse the First Circuit's decision as did those Circuit Courts of the same reasoning.

Unknown Speaker: Mr. Chandler, may I ask you one question?

Mr. Louis Chandler: Yes.

Unknown Speaker: Was the rule against solicitation apply to all solicitation or just to union solicitation?

Mr. Louis Chandler: The rule was applied to controversial solicitation Your Honor.

Justice William J. Brennan: How was that defined?

Mr. Louis Chandler: Pardon me.

Unknown Speaker: How was that defined?

Mr. Louis Chandler: As I indicated earlier, the rule originated when certain political activity was occurring in the hospital involving the Vietnam War and demonstrations.

That was one reason for banning that kind of activity.

The hospital, I am talking about medical people who make a determination as to what may be detrimental to patients in a hospital setting, made a determination consistent with the Board's own case law that union solicitation is potentially disruptive.

They have indicated to doctors.

The hospital has indicated to its staff not to discuss concerns inpatient access areas that could affect patients and this is a consistent concern.

The Baylor Court and the DC Circuit has recognized that this is controversial material that should be banned as opposed to innocuous things, and unless the Board shows that the hospital's administration has made a bad medical judgment, then we see no basis for the Board to insist upon a new rule.

As this Court determined recently in the University of Missouri Case against Horowitz.

That involved the academic field, but there they recognized that academic people are better able to make determinations as to academic problems and subject matter than the Courts or Administrative agencies.

Here we would suggest that the same principle applies in a medical field especially where there was no medical evidence or medical testimony other than the Board's own medical perceptions that supports this distinction for ambulatory as against non-ambulatory.

Justice Byron R. White: Did you put in any evidence of that?

Mr. Louis Chandler: Your Honor at the time the hearing arose the Board case precedent was established.

As indicated earlier, it was the Guyan Valley precedent.

We presented evidence that patients and visitors were present and that solicitation activity occur.

Justice Byron R. White: With this medical judgment did you think that will be left to the doctors?

We have nothing in the record about it.

Mr. Louis Chandler: I do not believe you need to pass on that Your Honor because of the mere presence of the customers in a patient access area of just as in the retail store.

This presents a special circumstance.

Justice Thurgood Marshall: Mr. Chandler, my brother Powell's question that you and I did not understand it, so let me try again.

In this case limited to this hospital was any other solicitation, other than unions, barred?

Mr. Louis Chandler: In the cafeteria there was solicitation allowed.

There were pledged cards that were distributed for uniting.

Justice Thurgood Marshall: I have not said a word about what was allowed.

I am asking what else was prohibited other than union solicitation?

Mr. Louis Chandler: I have already indicated that and the records supports it.

There were numerous letters sent to staff directing them not to discuss potentially upsetting things in the presence of customers.

Justice Thurgood Marshall: Weren't they signs of no solicitations?

Mr. Louis Chandler: There were no signs there was a --

Justice Thurgood Marshall: But what did you say no solicitation.

What did you mean?

Mr. Louis Chandler: We said there are patients and visitors.

Justice Thurgood Marshall: What did you mean?

Who did you mean should not solicit?

Mr. Louis Chandler: I am not sure I followed your question Your Honor.

Justice Thurgood Marshall: Who was included in the phrase no solicitation?

Who was no?

Mr. Louis Chandler: All employees may not solicit.

Justice Thurgood Marshall: Anything?

Mr. Louis Chandler: Anything other than --

Chief Justice Warren E. Burger: They should not solicit to be repaid the money they told them.

Mr. Louis Chandler: That is right.

In a work area what are talking about?

Justice John Paul Stevens: Mr. Chandler.

Mr. Louis Chandler: Yes Your Honor.

Justice John Paul Stevens: On the medical judgment point, can we tell from the record whether the rule was drafted by doctors and people concerned with medical problems as opposed to the possibility that might simply been drafted by the Labor Relations Director?

Mr. Louis Chandler: On the face of the rule, no Your Honor, you cannot.

Justice John Paul Stevens: Or the record just does not tell us, does it?

Mr. Louis Chandler: I believe the record does indicate that Dr. Rabkin who was the General Director of the Hospital, responsible for drafting the rule.

Justice John Paul Stevens: Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.

Attribution:

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Transcript:

Argument of George K. Mcpherson, Jr.

Chief Justice Warren E. Burger: We’ll resume arguments in number 72-1637.

Mr. McPherson, I think you have about 22 minutes remaining.

Mr. George K. Mcpherson, Jr.: Thank you Mr. Chief Justice and may it please the Court.

Yesterday, general counsel attempted to categorize or characterize the right to strike as being different from other Section 7 rights guaranteed under the National Labor Relations Act.

I frankly don’t think that Section 7 either graduates or categorizes any of the rights under Section 7 into separate categories or characterizations.

I do know, however, that the right to strike is dealt with specifically by the National Labor Relations Act whereas the right to distribute literature is not.

There is no provision in the Act that per se gives and fully leaves the right to distribute literature on company property.

It is a right that has arisen inferentially as a means of communication to effectuate Section 7 rights.

As a means of communication, it is therefore, not so unique or not so fundamental that it cannot under certain circumstances be waived.

And as I mentioned yesterday on the point of fair representation, the Court’s holding in the Mastro case was based upon the premise of fair representation.

That fair representation theory, I think, should extend to the collective bargaining process.

And in this case, particularly when you are looking at the fundamental purpose of the Act, being to foster collective bargaining or the principle of freedom of contract.

Where you have freedom of contract and collective bargaining being engaged in, that process should go without being interfered in, except where absolutely necessary.

I think the Court stated the concern that it would have with undue interference into the collective bargaining process when they talked about conflicting rights in Babcock & Wilcox.

There, the Court was faced with distribution rights of non-employees as opposed to property rights of employers.

In that particular case, this Court held that where there was no necessary conflict, there should not be an abridgment of either right.

I think that is particularly true in the type of case we have here where we have freedom of contract on one hand versus a means of communication on the other which would lead me into this Court’s decision in Nutone, the steelworkers’ case.

There, the Court was faced with whether or not employers could utilize a means of communication which they prohibited employees from using.

And in that case, stated that unions and employees are not guaranteed every means of communication simply because the employer may utilize it.

But that whether or not an unfair labor practice is committed, whether or not no distribution or no solicitation rules should be invalidated is dependent upon the circumstances of the particular case.

The Court noted in Nutone that there was no showing just as in this instant case of any undue influence or interference with the employees’ ability to communicate with one another.

It also stated to the Board that alternate means of communication was highly relevant to a consideration as to whether distribution or solicitation rule should be invalidated, and stated that since that issue was not presented to the Board and no evidence taken on it, the employer’s conduct could not be found wanting.

That basically is what I think the respondent’s position is in this case.

We do not argue as the Supreme Court pointed out in the Nutone case that under every factual situation or under every circumstance it may arise there may not be an unfair labor practice committed.

What we do say is that the Board should not presume away the freedom of contract of the parties, but should rather look to see if there has in fact been an interference with the communication rights that employees may have under Section 7, and that was not done here.

No analysis was made whatsoever of the alternatives available to employees.

Had there been, they would have seen that the evidence on the record clearly established the fact that for 16 years, the union and employees had effectively distributed literature at company gates, that the employees had the right of free discussion and free solicitation on company property which brings with it the right to sign union cards or to sign petitions, to decertify or to start to the decertification proceeding.

Justice Byron R. White: But that's the contract provision that there is a rule against distribution of company property on -- at nonworking time where challenged on its bottom, it wouldn’t stand, would it?

Mr. George K. Mcpherson, Jr.: Mr. Justice White, if it had not been bilaterally agreed to, we would fall within the Republic Aviation Theory.

Justice Byron R. White: Yes, yes.

Mr. George K. Mcpherson, Jr.: That is correct.

Justice Byron R. White: So that you must rest on the contract?

Mr. George K. Mcpherson, Jr.: That is correct.

Justice Byron R. White: And I suppose, the contract provision is in itself in part invalid. I mean, it is unforeseeable in the sense that it purports to permit the company to waive the rights if they have any of some other union?

Mr. George K. Mcpherson, Jr.: I don’t think I would agree with that statement.

I think the -- I think again --

Justice Byron R. White: Well, doesn’t your rule purport to bar the distribution of literature by anybody?

Mr. George K. Mcpherson, Jr.: By anyone.

It would apply equally to the incumbent as to another labor union --

Justice Byron R. White: Well then, how about a non-incumbent union distributing union literature -- anti-union literature or anti-incumbent literature on company property at nonworking time?

Mr. George K. Mcpherson, Jr.: They would not be permitted to do so.

Justice Byron R. White: Under your rule?

Mr. George K. Mcpherson, Jr.: Under the rule.

Under the contract waiver.

Justice Byron R. White: Well, under the contract, but what if the union -- let’s say the union, the non-incumbent union has a spy or has some friends among the working force and they are distributing its literature on company property in nonworking time?

Mr. George K. Mcpherson, Jr.: Well, there would be no distribution of literature allowed on company property.

Justice Byron R. White: But I thought it -- isn’t that an unfair labor practice?

Mr. George K. Mcpherson, Jr.: Under Republic Aviation, that rule would not be valid unless special circumstances --

Justice Byron R. White: So that you couldn’t enforce it.

Again, you couldn’t enforce that as the non-incumbent union could have you on the carpet for an unfair labor practice?

Mr. George K. Mcpherson, Jr.: I think either could have us on the carpet on an unfair labor practice if there were not the waiver that’s really involved.

Justice Byron R. White: So that's really the -- well, the waiver is inoperative with respect to other union?

Mr. George K. Mcpherson, Jr.: We do not contend that the waiver is inoperative as respect to other unions.

Justice Byron R. White: Well, you mean the waiver -- it still binds the incumbent union?

Mr. George K. Mcpherson, Jr.: We think that the waiver should be binded against all employees.

Justice Byron R. White: The only thing is it just doesn’t give you any right to exclude the non-incumbent union?

Mr. George K. Mcpherson, Jr.: No, it does.

The waiver is only --

Justice Byron R. White: Well, it isn’t illegally effective right?

Mr. George K. Mcpherson, Jr.: Well, that, I think is one of the issues that this Court has to face that the waiver, I mean, the rule -- the rule was in effect against all employees for distribution of literature of any kind on company property.

That was what had been waived by the union.

That would apply to any employee who is going to distribute regardless of what the cause.

Justice Byron R. White: Well, what would the union say -- what would the union say if they -- if they thought they were -- if they were willing to agree to a company rule that excluded everybody?

All unions from --

Mr. George K. Mcpherson, Jr.: That’s what this rule is.

Justice Byron R. White: Yes.

But they suddenly found out that the company’s rule against non-incumbent union wasn’t enforceable?

Mr. George K. Mcpherson, Jr.: Well, again I think that may be what we come up with here if you go the route of Gale Products.

Now, Gale Products split employees into two groups.

Justice Byron R. White: Well, let’s assume -- now, let’s assume Gale Products is still good law or it is good law, just assume that it is good law then the company’s rule against the non-incumbent is not enforceable?

Mr. George K. Mcpherson, Jr.: That’s correct.

Justice Byron R. White: And the union didn’t get what it thought it was bargaining for perhaps?

Mr. George K. Mcpherson, Jr.: Well, of course, Gale Products was the status of the law at the time the bargain was struck and was the status of the law until the time of this decision and I would assume that the parties would be presumed to know their rights and the law at the time they’re sitting at the bargaining table.

Justice Byron R. White: And that was in the Gale, was it ’54, 1954?

Mr. George K. Mcpherson, Jr.: Gale was in 1963.

Justice Byron R. White: And -- but you say for 16 years they’ve --

Mr. George K. Mcpherson, Jr.: The first contract was struck in 1955.

Justice Byron R. White: When there was a -- when before Gale --

Mr. George K. Mcpherson, Jr.: Before Gale and at that time we would have been under May Department Store.

Justice Byron R. White: Yes.

Thank you.

Justice Harry A. Blackmun: And of course your position clearly would apply to the dissident member of your union?

Mr. George K. Mcpherson, Jr.: That would be.

That is our interpretation of the rule.

That is correct.

Justice Harry A. Blackmun: So that in effect you have called his mouth or his dissident views?

Mr. George K. Mcpherson, Jr.: I disagree with that analogy of the situation Mr. Justice Blackmun for the reason that we do have full and complete solicitation rights and discussion rights on company property.

Unknown Speaker: Unless we --

Mr. George K. Mcpherson, Jr.: I disagree with that also from the standpoint of the fact that for 16 years, the history has shown that the employees have been able to effectively distribute literature at plant entrances and exits.

And this, it would seem to me would -- it is what the Board has recognized in Stoddard-Quirk.

In Stoddard-Quirk, they talk about the discussion between or the distinction between oral solicitation or discussion and a written communication and state in Stoddard-Quirk that a written communication is meant to be of a permanent nature to be read and re-read at the leisure of the recipient and its purpose is satisfied so long as it is received.

That even go on to recognize and state in their decision in Stoddard-Quirk that plant entrances and exits are in fact an effective means of distributing this literature.

So, I do not feel that the dissidents’ right to voice their opposition to the incumbent union is in any way impaired in this situation.

What we have here really is full discussion by anyone on any subject that they want within the plant facility, including the ability to pass out union authorization cards and get them signed or a petition to decertify, as well as the ability to effectively pass out literature of whatever nature they may want at the plant gate.

Justice Harry A. Blackmun: I am interested in the fact you cited the Machinists case and the Board, but you didn’t cite its non-enforcement order in the Eighth Circuit.

Do you regard the Machinists case as authority contrary to your position here?

Mr. George K. Mcpherson, Jr.: I do not believe that the Machinists case is totally contrary to the position that we have here.

Justice Harry A. Blackmun: The facts are somewhat different --

Mr. George K. Mcpherson, Jr.: The facts are considerably different in that case and the Court there as you will well recall discussed or took the position that there could not be a total waiver of rights in this type of a situation.

Additionally, the Court refused and so noted in its opinion to pass on the question of whether or not distribution of literature could be waived at a time when the bargaining agent could not be changed, which I think throws it into a somewhat different category than what we are really faced here.

But I think the Eighth Circuit is generally tending to go in the direction of the Fifth Circuit which I think really has a fear that the union will not protect employee rights when there can be a distinction between the union’s rights and the employee’s rights.

That gets me back to my fair representation premise that I think we must work off of in a collective bargaining context.

Justice Byron R. White: Can I ask you one other thing?

We’ve talked about whether some right is waivable or not but it might be that the right would be waivable, statutorily it would be waivable, but it has to -- it can’t be waived by the bargaining agent.

What is the function and purpose of the bargaining agent, an incumbent anyway?

I suppose you could say that the right would be waivable by union members or by the personal rights, but that the authority to bargaining agent just wouldn’t reach the waiving the rights of somebody else?

Mr. George K. Mcpherson, Jr.: Well, I would think that the bargaining agent being chosen as the duly certified representative of the employees to a duly conducted election by the National Labor Relations Board, the employee has chosen him as his bargaining representative.

In other words, he has the alter ego for the employee.

Justice William J. Brennan: Of course, the dissenter at trail.

Mr. George K. Mcpherson, Jr.: Well, Mr. Justice Brennan, I think that in any case, the majority must rule.

Justice William J. Brennan: Well, what you’re saying really is that once the majority chooses then the chosen representative may waive the rights for all dissenters and those supporters of --

Mr. George K. Mcpherson, Jr.: That is correct.

That would be our position.

So long as --

Justice William J. Brennan: And what happens to Republic Aviation and to Gale if we agree with you about that?

Mr. George K. Mcpherson, Jr.: Well, I think Gale Products would definitely be overruled, but of course, the Board itself is deviating from Gale Products.

But Republic Aviation to me would not be touched.

Justice William J. Brennan: Why not?

Mr. George K. Mcpherson, Jr.: Because of the bilateral nature and freedom of contract concept as opposed to --

Justice William J. Brennan: Because I gather of your basic premise of bargaining agent can waive for everybody?

Mr. George K. Mcpherson, Jr.: That is correct.

And it’s his primary duty to protect the rights of his employees.

Justice William J. Brennan: I suppose that’s really what we have to decide in this case, isn't it?

Mr. George K. Mcpherson, Jr.: I think that is one of the major considerations that has to be given in this.

Justice Potter Stewart: Well, that’s certainly true in many other areas, he can waive -- the bargaining agent can waive the right to strike for everybody.

Mr. George K. Mcpherson, Jr.: That is correct.

Even though some of those may not want to stay --

Justice Potter Stewart: May not want to and certainly, that’s the whole structure and premise hypothesis upon which the framework of the act is based, isn’t it?

It's majority rule.

Mr. George K. Mcpherson, Jr.: That is absolutely correct in my opinion Mr. Justice Stewart and I would also point out that this waiver as was pointed out by this Court in Mastro should be given effect so long as the selection remains free.

And what we are really asking for is for a determination for the Board to make a determination and not a presumption as to whether or not there has been an interference with that selection.

Now, if freedom to select a bargaining representative were dependent entirely upon the rights of employees to distribute literature then surely we would not have the Nutone case, surely, we would not have the Republic Aviation or Babcock & Wilcox.

So, what we’re asking for is really what I think the Court was looking for in Nutone when they said, “look at the case and make a determination.”

My whole point basically is that freedom of contract under the National Labor Relations Act, being one of its primary purposes, is simply too fundamental to that Act to be presumed away as was done here.

And as I stated, I don’t say that in every circumstance we will not have an unfair labor practice.

Justice William J. Brennan: Well, I take it though, if -- I think you said earlier, basically, there’s a conflict here between two policies in the Act.

Mr. George K. Mcpherson, Jr.: That is correct.

Justice William J. Brennan: Right.

And ordinarily, I gather or I think that’s what we held in the many cases, did we not, conflicts of this kind are for the Board to resolve, didn’t we?

Mr. George K. Mcpherson, Jr.: I --

Justice William J. Brennan: That's what we held, the general preposition --

Mr. George K. Mcpherson, Jr.: -- would say conflicts of this kind is for the Board to resolve so long as they fulfill their duty in looking at the facts necessary to resolve that question.

Justice William J. Brennan: But I mean -- but that’s a general premise, isn’t’ it?

Where the conflicts between different policies and the act, we expect the Board in the first instance to resolve them?

Mr. George K. Mcpherson, Jr.: We expect the Board to resolve them, but we expect them --

Justice William J. Brennan: And then -- then what’s the scope of our review of the resolution?

Mr. George K. Mcpherson, Jr.: I think the scope of the review would be basically the same scope of review that this Court exercised in Babcock & Wilcox, and Nutone and that is whether or not the Board fulfilled its role in that regard by looking at the relevant factors to make that determination.

Now, one other point --

Justice William J. Brennan: Does that amount to saying that we look for to see whether that was an error of law?

Mr. George K. Mcpherson, Jr.: I would -- I would not quite categorize it in that -- in that term.

Justice William J. Brennan: It’s a broader review?

Mr. George K. Mcpherson, Jr.: Yes, sir, Now, I would say this.

One other point, I think is of concern in this case is the Board in overruling its decision in Gale Products has gone farther in formulating its remedy than it has ever gone before in this area and much farther than it went in the Fifth Circuit or the Eighth Circuit.

In those circuits which the Board relies on as supporting their proposition, the remedy there was limited to distribution or solicitation on behalf of any other labor organization other than the incumbent or distribution or solicitation against any labor organization.

Now, here, they have also gone that step, but they have added the additional step of throwing in all other Section 7 rights, regardless of whether you have the potential split between employee interest and the incumbent union’s interest as seems to be feared by the Fifth Circuit in Mid-States.

In other words, under the Board’s remedy as they have fashioned it in this case, it would apply to a handout announcing a union meeting.

It would apply to a reminder to pay union dues.

It would apply to an announcement of the filing of a grievance.

Justice Byron R. White: Can I ask you?

Does an incumbent union have some rights independent of the people in the bargaining unit with respect with distribution of literature?

It may be one thing to say that the incumbent union can waive the rights of the people of the union, but if the union -- if an outside union has rights to the throne?

Mr. George K. Mcpherson, Jr.: Mr. Justice White, I would say that if -- if the union can waive some rights of employees, certainly, they should be able to waive their own rights.

And as has been pointed out --

Justice Byron R. White: Oh!

That's (Voice Overlap) the rights of an outside union?

Mr. George K. Mcpherson, Jr.: Are you talking about the incumbent or the outside?

Justice Byron R. White: The outside union.

Mr. George K. Mcpherson, Jr.: The outside union have the rights I would say as defined in the area of solicitation and distribution as defined by this Court in Babcock & Wilcox.

Justice Byron R. White: Well, there shouldn’t be any power in the incumbent union to waive those rights?

Mr. George K. Mcpherson, Jr.: Oh!

No, sir.

And there has been no diminishment in the outside unions right because under Bab --

Justice Byron R. White: Your rule, your rule supports to bar that too?

Mr. George K. Mcpherson, Jr.: It bars them from -- on property distri -- employees from on property distribution.

Justice Byron R. White: And you don’t bar outside union?

Mr. George K. Mcpherson, Jr.: Oh!

Outsiders would fall under the Babcock & Wilcox rule which says that they may, under any circumstances be barred to off of company property for distribution and solicitation.

Justice William H. Rehnquist: At least, you can’t bar them under your waiver theory?

Mr. George K. Mcpherson, Jr.: Yes, we could bar them under our waiver theory.

Justice William H. Rehnquist: No, I would think not.

If the theory of your waiver is that the incumbent union and the employees have consented by virtue of a contract that’s well and good for them, but for -- for a non-employee, soliciting for another union, maybe, you can bar them under Babcock & Wilcox, but you can’t bar them under your waiver theory?

Mr. George K. Mcpherson, Jr.: Well, there would be no -- I don’t think you’d really face that question out of the waiver because of the Babcock & Wilcox.

Chief Justice Warren E. Burger: When you bar them because they’re strangers to the plant and strangers to the entire relationship, that is not so?

Mr. George K. Mcpherson, Jr.: That is correct, Mr. Chief Justice which is the reason for Babcock & Wilcox.

But if this Court should decide that the presumption of the Fifth Circuit in Mid-States is a very real fear that the union will not fairly represent employees in this type of context, I would hope that this Court would take a very serious look at the remedy that it has purported to follow which is far in access of the Fifth Circuit and Eighth Circuit's holding.

Thank you Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you Mr. McPherson.

Thank you gentlemen.

The case is submitted.

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