205 F.2d 45 | 2d Cir. | 1953
Lead Opinion
This appeal (petition by the Labor Board to enforce) lies within a limited compass. The only question is whether the respondent exercised unfairly its conceded privilege, granted by § 8(c) of the Labor-Management Act,
Our decision in Bonwit Teller Inc. v. National Labor Relations Board, 2 Cir., 197 F.2d 640, rules the case at bar. There we said that it was an unfair labor practice for the employer to exercise his privilege under § 8(c) of addressing his employees on the premises and arguing against the formation of a union, if he imposed a “no solicitation” rule against union agitation on the premises. However, we held that, since the employer operated a number of retail stores in New York and elsewhere, it was lawful (as indeed the Board conceded) for such an employer to forbid solicitation at any time upon the premises. That was an exception to the general duty to allow solicitation on the premises in non-working hours, that the Supreme Court in Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, recognized that the Board might impose in factories and the like. We rested our decision wholly upon the exception and reversed that part of the Board’s order that had held it an unfair labor practice for an employer to address his employees on the premises during working hours, where he had refused to allow the representative of the union an equal privilege.
If therefore the Board’s order in the case at bar had depended upon the respondent’s refusal, or failure, to allow Cur-ran to address the employees on the property during working hours it could not stand. On the other hand, since the respondent refused to allow any solicitation on the premises during non-working hours, that was in itself an unfair labor practice, for it did not operate a retail store; and it was an added unfair practice for it to address the employees, while such a rule was in force. We have already quoted at the outset all that the record contains as to the existence of such a rule; it is no more than the answer given by the respondent’s vice-president to a question by the examiner at the close of his testimony. Moreover, the complaint did not charge such a rule as an unfair labor practice, but only the refusal to grant Curran an equal opportunity to speak to the employees on the premises. Nevertheless, the examiner based his decision altogther upon the rule (our decision in Bonwit Teller Inc. v. National Labor Relations Board having been made before he filed his intermediate report), and his only finding was “that in the discriminatory application of its established rule against solicitation the Respondent interfered with” its employees’ rights under § 7 of the Act, 29 U.S.C.A. § 157. That was also his only recommendation, and all that the Board’s order forbad, as we have said. Furthermore, although the respondent's exceptions to the examiner’s report were that the complaint did not charge discrimination in applying the rule that the parties had not considered or argued it, that the examiner had misapprehended our decision in Bonwit Teller Inc. v. National Labor Relations Board, supra, and in general that his conclusions,
Enforcement order to issue.
. § 158(e), Title 29, U.S.C.A.
Concurrence Opinion
(concurring).
Because constrained by the majority opinion in the Bonwit Teller case, 197 F.2d 640, I concur in the result.
Concurrence Opinion
(concurring).
I concur in the result. I do not join in the statement that it is not an unfair labor practice for an employer to address his employees in working hours if only the employer permits union solicitation in nonworking hours. We need not here decide that issue; much can be said for an opposite conclusion in the light of our opinion in Bonwit Teller, Inc. v. N. L. R. B., 2 Cir., 197 F.2d 640.