*1 BOARD RELATIONS NATIONAL LABOR v. AMERICAN TUBE BENDING CO., Inc. 266, 22662. Docket
No.
United States Circuit. Second Bott, Somers, George Gen- A. Norman J. Argued May 13, 1953. Counsel, Findling, Associate eral David P. Decided June Counsel, General Reel and Frederick U. Attorneys, National Eisenberg, Milton La- Washington, bor Relations all of C., petitioner. D. for II, Larkin, Carmody, William J. Torrance, Waterbury, Larkin & all of Conn., respondent. SWAN, Judge,
Before Chief L. FRANK, HAND Judges. Circuit HAND, Judge. L. Circuit appeal (petition by This enforce) compass. lies within a limited only question The is whether the exercised unfairly conceded privilege, granted by 8(c) of the Labor-Manage- Act,1 ment to argue to its case the formation of a union. The order that the Board seeks to enforce was that the should “cease and desist” from “interfering with” its em- plo3'-ees’right organizations “to form labor * =1=* by discriminatingly applying its rule,” no-solicitation post and that it should appropriate notice. The facts were as follows: The International Brotherhood Boilermakers, Shipbuilders Iron Helpers America, A.F.L., wished to or- ganize respondent’s employees, and a representative of the union and the re- spondent signed stipulation elec- should be held on December between the hours of three and four-thirty respondent’s afternoon in the plant. On December 6th at about four o’clock— being the hour when the shifts changed —the of both shifts were as- in one sembled plant, room in the president talked to them for minutes, seeking persuade about that it was not to their organize interest to as a union. He told them that no one 158(e), Title *2 46 it an un had held the Board’s order that hear what not want to stay,
need who did employer ad practice to labor for an remarks, con- fair far as said, so and his was premises dur employees the concededly dress his on with- content, were cerns their hours, he had refused ing working where by 8(c) of conferred privilege the § in an representative the union the of to allow not therefore did The Board the Act. practice equal privilege. labor an unfair utterance find their circumstances se, find that the per but it did in If the Board’s therefore spoken they were which made under upon depended re case at bar had the the 13, 1951, parties on November so. When spondent’s refusal, failure, Cur- or to allow said, an to hold have stipulated, as we employees prop the address the on ran to Curran, rep- 7th, the on December election not erty could during working hours it thq president union, told of the resentative re hand, other stand. On the since the “personal man- respondent and its of the spondent any to solicitation refused allow employees that, they the talked to ager” hours, premises during non-working on the elections, he other before they had done as practice, in labor that was itself an unfair him the same they give would hoped that store; it operate retail for it did not a and any made of them opportunity. Neither practice to an unfair for it was added comment, and no consent any or answer employees, rule the such a address while examiner, nor neither the given; but was already quoted at was in force. We have un- was an the refusal held that Board the to outset all that the record contains as the However, was practice. there labor fair rule; it more the existence of such a is no “that company had a rule that the evidence by given than the answer the on will be no solicitation there vice-president by question to the examiner a examiner and property”; the time or Moreover, testimony. close at the of his in company had that the found the Board complaint charge not such a the did rule as on its against solicitation “a rule effect only re an unfair labor but practice, the rule, property.” this It was time grant equal opportunity fusal to Curran an made, was coupled the address with speak premises. the on to the by the order. wrong forbidden the Nevertheless, examiner deci the based his Teller in Bonwit Inc. Na decision Our (our upon altogther the rule decision sion Board, Cir., 2 Relations tional Inc. v. National Labor in Bonwit Teller at There we the case bar. rules having been before Relations Board made practice that it was said report), intermediate his he filed his privilege employer exercise his for the finding “that in the only discriminatory was addressing his 8(c) of under § application against of its established rule arguing against the premises and on the Respondent solicitation interfered with” the imposed union, a if he a of formation Act, employees’ rights under 7 of the union agita rule solicitation” “no 157. That was also However, held premises. we the tion on recommendation, all that the Board’s that, employer operated number a since the forbad, have as we said. Further elsewhere, York and retail stores New of respondent's excep more, although the the con (as indeed Board was lawful it report to the examiner’s were that the employer to forbid ceded) for such complaint charge not did discrimination premises. upon any time the at solicitation parties applying the rule that the not had duty exception general to the That was it, argued or considered the examiner premises in on the solicitation to allow misapprehended our decision had in Bonwit hours, Supreme that the non-working Inc. v. National Labor Relations Corp. La Republic v. National Aviation Board, supra, general and in that his conc Board, 324 65 S. Relations U.S. bor facts, lusions,1 both on law and the 1372, recognized that the 89 L.Ed. Ct. wrong, exceptions none of the were so much impose might in factories rule, that there was as intimated no such wholly upon decision We rested our did not or that the like. enforce it. that, part exception We do think this and reversed that inac- po- in no respondent is part, the on issue upon rehearing an. ask for sition to n whose upon the uncontra- rested decision ,dieted officers. own of its testimony one *3 ruling in directly our within falls The case Rela- National Teller Inc. Bonwit enforcement supra, and will issue. issue.
Enforcement (concurring). Judge
SWAN, Chief majority by the constrained Because
opinion case, F.2d in the Bonwit the result. I concur Judge (concurring).
FRANK, Circuit join in result. I do not
I concur it is not statement employer to address em-
practice for the em- hours working
ployees in in non- permits union solicitation
ployer decide need not here
working hours. We oppo- issue; can be said much opinion our conclusion site B., Cir., Teller, L. R. Inc. v. N. Bonwit CITY, WIL- al. v. etMO.
KANSAS al. et LIAMS CITY, KANSAS et al. v.
WILLIAMS et al. MO. 14664, 14666.
Nos. States
United Eighth Circuit. 10, 1953.
June Denied
Writ of Certiorari Oct.
See