Livingston Shirt Corp.

400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LIVINGSTON SHIRT CORPORATION, S. J. BILBREY, UNION BANK & TRUST CO., DR. J. D. CAPPS, MARVIN LESLIE, MITCHELL LESLIE, LESLIE BROS. DRY GOODS STORE, J. B. MORGAN, LIVINGSTON DRY GOODS STORE, CLAR- ENCE DAVIS, LANSDEN-COWARD DRUG CO., S. B. SMITH, L. G. PUCKETT, JENKINS & DARWINS DRYGOODSSTORE, HOUSTON HOLMAN, HOLMAN'S DRY GOODS STORE and AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO. Case No. 10-CA-1571. December 17, 1953 DECISION AND ORDER STATEMENT OF THE CASE Upon a charge filed August 25, 1952, and an amended charge filed November 28, 1952, by the Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organi- zations, and herein called the Amalgamated, the General Coun- sel of the National Labor Relations Board , by the Regional Director for the Tenth Region, issued his complaint dated March 31, 1953, against Livingston Shirt Corporation, herein called Respondent Livingston, and against its alleged agents, S. J. Bilbrey, Union Bank & Trust Co., Dr. J. D. Capps, Marvin Leslie, Mitchell Leslie, Leslie Bros. Dry Goods Store, J. B. Morgan, Livingston Dry Goods Store, Clarence Davis, Lansden- Coward Drug Co., S. B. Smith, L. G. Puckett, Jenkins & Dar- wins Dry Goods Store, Houston Holman, and Holman's Dry Goods Store, herein called the Respondent Citizen's Com- mittee, 1 alleging that the Respondents had each engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and Section 2 (6) and (7) of the National Labor Relations Act (61 Stat. 136), herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the Respondents and the Amalgamated. With respect to the unfair labor practices, the complaint alleged, in substance, that Respondent Livingston by certain agents, to wit, the Respondent Citizen's Committee, warned its employees against union activity by threats that the plant would close and threats that economic reprisals would be taken against employees engaging in concerted activities. Thereafter the Respondent Livingston and the Respondent Citizen's Com- mittee filed answers denying the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held in Livingston, Tennessee, on May 18 through May 21, 1953, and on June 8, 1953, before Richard N. Ivins, the Trial Examiner duly desig- nated by the Chief Trial Examiner. The General Counsel, the Respondent Livingston, the Respondent Citizen's Committee, 1 The nomenclature "Citizen's Committee" is here used as a convenient reference to the individual and company Respondents (other than Respondent Livingston), collectively Actually, there was no formal organization by that name. 107 NLRB No. 109. LIVINGSTON SHIRT CORPORATION 401 and the Amalgamated were represented by counsel and partici- pated in the hearing . All parties were afforded full opportunity to be heard , to examine and cross -examine witnesses, and to introduce evidence pertinent to the issues. At the opening of the hearing , the General Counsel moved to amend the complaint , alleging , in substance , that Respondent Livingston ( 1) by its officers and supervisory employees threat- ened its employees with reprisals , including a threat that the plant would close , if they engaged in concerted activities; and (2) had discriminatorily applied its rule prohibiting union solic - itation during working hours , and that such conduct constituted further unfair labor practices . The Trial Examiner allowed this amendment to the complaint. At the conclusion of the General Counsel's case, various motions were made by the Respondents to dismiss the entire complaint. The Trial Examiner orally granted these motions. On June 15 , 1953, the General Counsel filed a request for review of the Trial Examiner ' s action, pursuant to Section 102.27 of the Board ' s Rules and Regulations . Briefs in support of that request were submitted by both the General Counsel and the Amalgamated ; and briefs in support of the Trial Ex- aminer ' s action were submitted by both Respondent Livingston and Respondent Citizen's Committee. The Board has considered the Trial Examiner ' s action, the General Counsel ' s requestfor review , the briefs filed by allthe parties , and the entire record in the case . The Trial Examiner ' s rulings , including his dis- missal of the entire complaint herein, are hereby affirmed. Because the Trial Examiner failed to issue an Intermediate Report or to make any fact findings , we make our own findings, conclusions , and order , as follows: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT LIVINGSTON Livingston Shirt Corporation is a Tennessee corporation, with its principal office and place of business at Livingston, Tennessee . At its plant, it manufactures men's and boys ' shirts. The Respondent Livingston annually sells and ships shirts valued in excess of $45,000 to customers located outside the State of Tennessee. We find that the Respondent Livingston is engaged in com- merce within the meaning of the Act at its Livingston, Tennessee, plant. II. THE LABOR ORGANIZATIONS INVOLVED The Amalgamated Clothing Workers of America , affiliated with the C . I.O., and the United Mine Workers of America, herein called UMW, are labor organizations admitting to membership employees of the Respondent Livingston. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of events The Amalgamated began an organizing drive among Re- spondent Livingston's employees sometime in March 1952. A number of the Amalgamated's international representatives were in charge of that campaign. Membership cards and hand- bills were distributed to the employees. Some success having been achieved by the Amalgamated, it filed a representation petition with the Board on April 15 , 1952, seeking certification as the bargaining representative of Respondent Livingston's production and maintenance employees. At the same time, both the UMW and the Respondent Citizen's Committee began distributing leaflets and handbills urging their respective positions on the question of unionization of the em- ployees. That distribution was conducted on the public streets at the entrances to the Respondent Livingston's plant. The UMW also made use of a sound truck. B. Interference , restraint , and coercion Prior to the first election , Badami, a partner in Respondent Livingston, Gray, and Rich, the latter two being supervisors 2 at Respondent Livingston ' s plant, each made statements to employees to the effect that the plant would close in the event of a union victory. There were also two isolated instances of supervisory interrogation of employees. According to well-established principles, an employer ordi- narily is responsible for the acts of officers and supervisors because of their positions as management representatives.3 Thus, unlawful statements of supervisors, whether or not spe- cifically authorized, will be attributed to the employer.4 How- ever, an employer may avoid liability in this type of situation by an appropriate repudiation or disavowal of the officer's or supervisor's statements. Migliore, then president of Respondent Livingston, on May 21, 1952, informed the employees in a speech that the super- visors were to remain neutral and to make no statement re- garding the election , and further reassured them of their rights 2 We find, contrary to the Respondents' contentions, that both Assistant Foreman Gray and Forelady Rich are supervisors in so finding we relay particulary upon the fact that they exercise, if they do not possess, the power to transfer and discipline employees and upon the Respondent Livingston's rules which state in part: Rule 14 - Employees shall obey the instruction of the supervisor to whom they report in respect to the performance of their work and the manner in which it will be per- formed .. . Rule 17 - In the case of complaints or grievances on the part of any employee redress or correction should be sought from the supervisor or the forela , and failing in this from the factory manager . . [emphasis added] 3See, e.g , Howell Chevrolet Co., 95 NLRB 410. 4Edwards Bros., Inc , 95 NLRB 1451. LIVINGSTON SHIRT CORPORATION 403 to self-organization without fear of reprisal. That speech clearly apprised the employees of Respondent Livingston's repudiation of any coercive statements thereafter made by the supervisors. Then, on July Z1, Migliore in his speech stated that " . . . I have not made the statement that if the union gets in here 1 will close this plant." We find that this statement constituted a repudiation by Respondent Livingston of all prior threats and was sufficient- ly specific to dissipate the coercive effects of such threats.5 In so finding, we rely not only upon the fact that Migliore spoke as president of Respondent Livingston, but also upon the isolated character of the coercive statements, the publication of Migliore's repudiation to all the employees, and, as here- after discussed, the lack of any other proscribed conduct by Respondent Livingston. Regarding interrogation by supervisors, the entire record discloses but two isolated instances of such conduct. As we find hereafter that the Respondent Livingston has engaged in no violation of the Act, neither a remand nor a remedial order is justifiable on these isolated interrogations.6 C. The agency contentions Shortly after the Amalgamated's arrival on the scene, anti- union campaigning began. Spearheading this campaign was the Respondent Citizen's Committee. A series of 4 handbills was distributed to the employees. The first 2 were paid for by the town of Livingston through the check of Respondent Smith, then mayor of the town. Some 7 individuals in the Respondent Citi- zen's Committee were identified as among those distributing the handbills. The first handbill was signed by, among others, some 6 businesses and 2 individuals in the Respondent Citizen's Committee. The second was signed by the town of Livingston. The third and fourth handbills lacked the names of their sponsors. In essence , these handbills warned the employees, either explicitly or by implication, of the likelihood of the plant closing in event of union success in the elections. Five individuals in the Respondent Citizen's Committee appear to have lent money to the town of Livingston for the construction of the plant. In return for these loans, the town executed notes, payment of which were secured by the property upon which the plant lies and by the plant itself. The Respond- ent Livingston rents the plant from the town. Two further facts' were relied upon by the General Counsel. First, 3 individuals, 2 being from the Respondent Citizen's Committee, attended Migliore's May 21st speech. Indeed, all 3 had participated in the distribution of antiunion handbills out- 5 Cf Fulton Bag & Cotton Mills, 75 NLRB 883. 6See, e g., Waffle Corporation of America, 103 NLRB 895; American Thread Co., 97 NLRB 810 7 Various conversations between individuals on the Respondent Citizen's Committee and employees were related by the latter. This testimony, however, proved patent hearsay on the agency issue 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD side the plant. Secondly, subsequent to the second election, Migliore placed an advertisement in a Livingston newspaper thanking the townspeople for their "cooperation" during the campaign periods. We believe that the sum total of the foregoing evidence, even viewed in a light most favorable to the General Counsel's position, fails to establish the existence of the requisite prima facie agency relationship. The record is barren of any evidence that Respondent Livingston aided, abetted, assisted, or co- operated with the Respondent Citizen's Committee.8 Nor did Respondent Livingston allow the Respondent Citizen's Com- mittee the use of company time or property for the distribu- tion of antiunion argument, by either written or spoken words. 9 We therefore find no merit in the agency contentions of the General Counsel. Accordingly, we need make no finding as to whether the handbills were coercive or whether various indi- viduals in the Respondent Citizen's Committee had engaged in coercive conduct. The above finding further disposes of so much of the General Counsel's case wherein remedial orders are sought as to the individuals and businesses in the Respond- ent Citizen's Committee. D. The Respondent Livingston's speeches Pursuant to a consent-election agreement, the first election was scheduled to be held on May 22, 1952, between 12 and 4 p. m. On May 21, at 11 a. m., during working hours, Migliore made an antiunion, noncoercive speech to the assembled em- ployees. One hour later, an employees' committee visited Migliore and requested that the Amalgamated be granted a similar opportunity to address an employee as sembly. Migilore refused. Subsequently, on the morning of May 22, an Amalga- mated representative requested an opportunity to reply to Migliore ' s speech. Migliore again refused . " This electionre- sulted in a defeat for the Amalgamated. The Regional Director, however, relying upon the Board's Bonwit Teller 11 doctrine, set the election aside. A second election was scheduled for July 24, 1952, from 7 to 11 a. m. On July 21, at 11 a. m., during working hours, Migliore again spoke to the assembled employees. This speech, like the first, was antiunion but noncoercive. One hour after this speech , some employees requested that Respondent Living- ston grant to the Amalgamated the opportunity to reply to Migliore ' s speech under similar circumstances . Migliore's 8Armco Drainage & Metal Products, 106 NLRB 725. 9Cf. H & H Manufacturing Co , 87 NLRB 1373; Waynline, Inc , 81 NLRB 511; S D. Cohoon, 101 NLRB 966 10Because of our ultimate finding herein, we deem it unnecessary to explore the various offers, excuses, and justifications made by Migliore either to the Amalgamated or before the Trial Examiner, with reference to any of the Amalgamated's requests. 11 Bonwit Teller, Inc , 96 NLRB 608 (Member Reynolds dissenting). LIVINGSTON SHIRT CORPORATION 405 answer to this request does not appear in the record. It can be assumed, however, that he denied this request; for, on two further occasions before the second election, Migliore did in fact deny the Amalgamated's reply requests,. once in writing and once orally. This election resulted in another defeat for the Amalgamated. Once again, however, the Regional Director set aside the election in reliance upon the Bonwit Teller doc- trine. Respondent Livingston had in effect during the period from April through August 1952, various rules which had been promulgated to its employees. One such rule prohibited union solicitation during working hours. Its exact wording follows: "Activities for or against any union must not be carried on during working hours" (emphasis added). The General Counsel and the Amalgamated both contend that the foregoing conduct constitutes an unfair labor practice in that the Respondent Livingston discriminatorily applied its no- solicitation rule. The Trial Examiner dismissed this part of the General Counsel's case, stating that the "cases on the Bonwit Teller doctrine . . . convinced me that the Bonwit Teller doc- trine is not violated . . . . " We agree with the Trial Examiner. We are asked to hold that Respondent Livingston, in seeking-- as concededly was its right--to influence the outcome of the election, committed an unlawful act in violation of the proscrip- tion of the Act. It is true, as the General Counsel points out, that in the past the Board has held an employer's refusal to give the union equal opportunity to address its employees in the plant to be unlaw- ful. 12 In substance, that view rested on the belief that the em- ployer exerted undue and unlawful influence upon the employees by monopolizing their workplace as a speechmaking platform. Board appraisal of the basic elements underlying this type of situation persuades us that the Act does not require the em- ployer, absent unusual circumstances, to accede to sucha union request. A basic principle directly affecting any consideration of this question is that Section 8 (c) of the Act specifically prohibits us from finding that an uncoercive speech, whenever delivered by the employer, constitutes an unfair labor practice. There- fore, any attempt to rationalize a proscription against an employer who makes a privileged speech must necessarily be rested on the theory that the employer's vice is not in making the speech but in denying the union an opportunity to reply on company premises. But to say that conduct which is privileged gives rise to an obligation on the part of the employer to accord an equal opportunity for the union to reply under like circum- iSBonwit Teller's broad "equal opportunity" principle was applied in the following cases: Metropolitan Auto Parts, Inc., et. al , 102 NLRB 1634 (Chairman Herzog dissenting in part); Seamprufe, Inc , 103 NLRB 298; Onondaga Pottery Co., 103 NLRB 770; Stow Manufacturing Co., 103 NLRB 1280. The Board found a discriminatory application of a no- solicitation rule in American Tube Bending Co., 102 NLRB 735. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stances, on pain of being found guilty of unlawful conduct, seems to us an untenable basis for a finding of unfair labor practices. If the privilege of free speech is to be given real meaning, it cannot be qualified by grafting upon it conditions which are tantamount to negation. It is conceded by everyone that Congress intended that both employers and unions should be free to attempt by speech or otherwise to influence and persuade employees in their ulti- mate choice, so long as the persuasion is not violative of the express provisions of the Act; and we find nothing in the statute which even hints at any congressional intent to restrict an employer in the use of his own premises for the purpose of airing his views. On the contrary, an employer's premises are the natural forum for him just as the union hall is the inviolable forum for the union to assemble and address employees. We do not believe that unions will be unduly hindered in their right to carry on organizational activities by our refusal to open up to them the employer's premises for group meetings, particularly since this is an area from which they have traditionally been excluded, and there remains open to them all the customary means for communicating with employees. These include in- dividual contact with employees on the employer' s premises outside working hours (absent, of course, a privileged broad no-solicitation rule ), solicitation while entering and leaving the premises , at their homes , and at union meetings . These are time-honored and traditional means by which unions have con- ducted their organizational campaigns , and experience shows that they are fully adequate to accomplish unionization and accord employees their rights under the Act to freely choose a bargaining agent. In the original Bonwit Teller case, the Board, as then con- stituted, found that a "fundamental consideration" in support of its decision was the right of employees under Section 7 to "hear both sides under circumstances which approximate equality." We have no quarrel with this principle, but we think that it is to be achieved not by administratively grafting new limbs on the statute, but by a strict enforcement of those pro- visions of the statute which afford employers the right of free and uncoercive speech and grants employees the protected right to join labor unions free from coercion or discrimination. The majority in Bonwit Teller did not cite, nor have we been able to find, any support in the statutory language or legislative history for holding that the employer who exercises his own admitted rights under the statute thereby incurs an affirmative obligation to donate his premises and working time to the union for the purpose of propagandizing the employees. We agree that both parties to'a labor dispute have the equal right to disseminate their point of view, but our disagreement with the old majority and our dissenting colleague stems from the fact that we do not think one party must be so strangely open- hearted as to underwrite the campaign of the other. We reject the idea that the union has a statutory right to assemble and LIVINGSTON SHIRT CORPORATION 407 make campaign speeches to employees on the employer's premises and at the employer ' s expense . We see no real dis- tinction in principle between this and admitting an employer to the union hall for the purpose of making an antiunion speech, a suggestion which our dissenting colleague would doubtless view with abhorrence . We believe that the equality of oppor- tunity which the parties have a right to enjoy is that which comes from the lawful use of both the union and the employer of the customary fora and media available to each of them. It is not to be realistically achieved by attempting , as was done in Bonwit Teller, to make the facilities of the one available to the other. It will be seen from our dissenting colleague ' s recitation of the history of Bonwit Teller that it stemmed from the "captive audience " concept of Clark Bros . 13 In that case, the majority of the Board found that it was an unfair labor practice for an employer to make a noncoercive speech to employees on his own premises during working hours . This doctrine was short lived. Congress specifically repudiated it, and said so, when it enacted Section 8 (c) of the Act . But the concept was not so easily laid to rest, for the Board soondevised the Bonwit Teller doctrine . This latter case held that , while the speech was pro- tected by 8 (c), an employer who made a privileged speech was guilty of an unfair labor practice if he denied a request by the union to reply on his time and property . It requires little analysis to perceive that Bonwit Teller was the discredited Clark Bros. doctrine in scant disguise . It is equally contrary to the statute and congressional purpose. Moreover , even if Bonwit Teller had been well conceived in principle , it proved unworkable in the arena of practical labor'-management relations . While purporting to establish equality, its real effect was to set in motion a forensic seesaw which at any given time pointed at the sky for one party and at the ground for the other . This was because it inevitably re- sulted in giving unnatural prominence to the employer's premises and tended to make them the exclusive forum for airing the divergent points of view. At the same time, it did not bring the parties together on a platform to debate before the employees the issues in controversy . Rather, Bonwit Teller visualized the first one party and then the other should address the employees , and so on sereatim and ad infinitum , thus com- pelling a game of wits and an endless jockeying for position, winner's prize being the treasured backfence advantage of having the last word. While the dissenting member disavows adherence to the "last -word" concept , it is implicit in Bonwit Teller. Our dissenting colleague , as his opinion shows , directs his main attack , not at our conclusion herein, but at our holding in Peerless Plywood , a repre sentation case in which we pre scribe, 13Clark Bros., 70 NLRB 802. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as an election rule , a prohibition against employer speeches to employees on his premises during working hours within 24 hours prior to a scheduled Board election . The dissenting mem- ber attacks this rule on the ground that it "extinguishes" the employer's right of free speech . Aside from the foreignness of such an argument coming from one who espouses Bonwit Teller, we do not believe that this criticism , which is relevant only to Peerless Plywood, and not to this decision , has real validity . The rule laid down in Peerless Plywood is a rule of conduct governing Board elections and, in our opinion, con- stitutes a narrow and reasonable limitation designed to facili- tate the holding of free elections in the atmosphere of relative tranquility conducive to a sober choice of representative. It is beyond question a much more limited and, in our view, a more reasonable and practicable qualification on absolute freedom of speech than Bonwit Teller. It should , perhaps , be pointed out that, even during the 24-hour period , the employer and the union still have the right to use all lawful means of persuasion, in- cluding speech , subject only to the one qualification that they cannot assemble employees on company premises during work- ing hours for the purpose of addressing them en masse. They may issue statements , talk to individual employees, write letters to them, or even invite them to listen to a speech on or off the employer ' s premises , so long as the occasion is on the employees ' own time and their attendance is voluntary. We would be less than candid if we did not concede that the imposition of the 24 -hour rule in election cases gives rise to the argument that we are deviating from the strict logic of our decision in this case . But we consider this " departure" as both a minor and a necessary one. As Justice Holmes so aptly said , " The life of the law has not been logic ; it has been ex- perience ." And, for reasons more fully set forth in Peerless Plywood, we believe that experience in holding elections has shown that elections are likely to more truly reflect employee desires if the employees are afforded a brief breathing spell from employer or, indeed , union speeches at their place of work during working hours immediately before the election. This will not in our opinion unduly restrict employers and unions in their right to publicize their point of view, but will at the same time provide ameasure of protection for the employee, whose rights are after all paramount , from last-minute bland- ishments which he may feel compelled to hear and which may becloud his judgment and interfere with his thoughtful weighing of the issues involved . With this rule in election cases, we see no reason in law or equity for seeking to impose further restraints. This is a rule of practical labor relations governing the conduct of elections . We do not think that it seriously impinges on the principle laid down in this unfair labor practice case. Accordingly, we are convinced that, absent special circum- stances as hereinafter indicated , there is nothing improper in an employer refusing to grant to the union a right equal to his LIVINGSTON SI-fIRT CORPORATION 409 own in his plant. We rule therefore that, in the absence of either an unlawful broad no-solicitation rule (prohibiting union access to company premises on other than working time) or a privi- leged no-solicitation rule (broad, but not unlawful because of the character of the business ), 14 an employer does not commit an unfair labor practice if he makes a preelection speech on company time and premises to his employees and denies the union's request for an opportunity to reply. Our holding here finds support in the recent decision of the Second Circuit Court of Appeals in the American Tube Bending case, 15 in which it explicated its view of permissible em- ployer conduct within the scope of the Bonwit Teller doctrine. 16 Respondent Livingston's rule prohibited solicitation only during working hours. This rule was therefore not unlawful. Indeed, nowhere in the record does it appear that the Amalga- mated was denied access to Respondent Livingston ' s premises after working hours. Under these circumstances, we find that Respondent Livingston was under no obligation to grant the Amalgamated's reply requests and that its' conduct was not unlawful as alleged in the complaint. 17 Upon the foregoing findings of fact and upon the entire record in the case, we make the following: CONCLUSIONS OF LAW 1. Respondent Livingston Shirt Corporation is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Amalgamated Clothing Workers of America, CIO, and the United Mine Workers are labor organizations within the mean- ing of Section 2 (5) of the Act. 3.' Respondent Livingston Shirt Corporation and the Re- spondent Citizen's Committee have not engaged in unfair labor practices as alleged in the complaint, as amended, within the meaning of Section 8 ( a) (1) of the Act. [The Board dismissed the complaint.] Member Peterson , concurring: Although I agree with the result reached by my colleagues, I am unable to subscribe to the view that the "employer free speech" section of the Act is the basic principle governing the disposition of the precise question before us. The Court of Appeals for the Second Circuit, in the Bonwit Teller case, re- jected a similar argument advanced by the employer. There, the employer urged that the Board's decision was contrary to 14Marshall Field and Company, 93 NLRB 88. 1$N. L. R. B. v. American Tube Bending Co., 205 F. 2d 45. l6Bonwit Teller, Inc. v. N. L. R. B., 197 F. 2d 240, cert. denied 345 U.S. 905. 17 To the extent that our decision herein is inconsistent with the Board decisions cited in footnote 12, supra, the latter decisions are hereby overruled. 41 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 ( c) in that it imposed an unlawful condition upon the employer's right to speak to his employees . The court, how- ever, ruled that "neither Section 8 ( c) nor any issue of 'em- ployer free speech' " was involved in that case . I do not under- stand that that court has ruled otherwise in the more recent American Tube Bending case. I do, however , concur in holding that Respondent Livingston has not violated the Act in refusing to grant the Amalgamated's requests for the same facilities to reply to the Employer's preelection speeches on company time and premises . " But I do so because I am now persuaded , as I was not prior to the Second Circuit' s decision in the American Tube Bending case, that the Board's so-called "broad" rule announced in its Bonwit Teller .decision and subsequent cases , was in fact ex- pressly rejected by the Second Circuit in that court ' s opinion in Bonwit Teller . In the recent American Tube Bending case the Second Circuit made clear that its decision in Bonwit Teller "rested . . . wholly upon the exception " the Board had made for retail establishments , " to the general duty to allow solicitation on the premises during non -working hours ." More- over , the court stated that , in Bonwit Teller , it had "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 " ( emphasis supplied). On the authority of American Tube Bending , I hold here that as the Union had access to the Employer's premises, it was not an unfair labor practice for him to deny the Union the use of his time as well as his property to reply to the Employer's speech. Member Murdock , dissenting in part: My colleagues , in the majority decision in this proceeding, have this day, overruled that body of Board decisions commonly classified as the Bonwit Teller doctrine. Inasmuch as I cannot agree that this step is compelled or advised either by applicable decisions of the courts or by the experience of this Board, I must vigorously dissent from the action thus taken. I would reaffirm the principle stated in the Board ' s Bonwit Teller decision ty and find that the Respondent Livingston violated Section 8 (a) (1) of the amended Act by its conduct preceding the elections in this case. I cannot believe that the majority ' s action in holding that an employer may lawfully monopolize the most effective forum for persuading employees is consistent with the declared con- 18 Even under the Board's broad Bonwit Teller rule, I would find that Livingston' s offer to pay employees while attending, and furnish transportation to, a meeting in the town at which the Amalgamated could reply to the second speech, satisfied the requirement that employees be given the opportunity to hear both sides under conditions approximating equality. l9Bonwit Teller, Inc., 96 NLRB 608; remanded 197 F. 2d 640 (C. A. 2) (1952); company's petition for certiorari denied 345 U. S. 905. LIVINGSTON SHIRT CORPORATION 411 gressional policy which is not that of neutrality but of "en- couraging the practice and procedure of collective bargaining." Practically every employer speech on company time andprop- erty is designed to perpetuate individual bargaining and to dis- courage collective bargaining . Certainly, therefore, to the extent legally possible the Board should effectuate the con- gressional policy by seeing that the parties who seek to im- plement that policy by bringing collective bargaining to the employees have an equality of opportunity to have their argu- ments reach the employees in the same effective forum used by those who would defeat collective bargaining. It is advisable , I believe, before discarding a concept of such importance and prominence to examine the doctrine' s genesis, the reasons which led to its adoption , and the condition which it was expected to ameliorate . Both the original National Labor Relations Act of 1935 and the succeeding Labor-Management Relations Act of 1947 state, as basic findings , an intent to pro- tect the rights of employees to organize and bargain collectively and an intent to encourage "practice s fundamental to the friendly adjustment of industrial disputes ." In its administra- tion of these Acts the Board early observed that one of the most potent and effective methods by which self-organization of employees could be stifled was through employer pressure transmitted at and to assemblies of employees at the place where they worked. In this, as in other areas of employer- employee relationships , the Board was thus presented with the problem of the delicate balance between the rights of employees as guaranteed in the Act and the employer' s rights to freedom of speech and the use of his own property. The Board first met this problem by requiring absolute im- partiality by an employer when organization of his employees for collective action was taking place . 20 As stated in the Third Annual Report, 21 the Board was influenced by the fact that: In considering the effect of the employer's conduct upon the self-organization of employees, there must be borne in mind the control wielded by the employer over his em- ployees--a control which results from the employees' complete dependence upon their jobs , generally their only means of livelihood and economic existence . As the natural result of the employer' s economic power, employees are alertly responsive to the slightest suggestion of the em- ployer. Activities, innocuous and without significance, as between two individuals economically independent of each other or of equal economic strength , assume enormous significance and heighten to proportions of coercion when engaged in by the employer in his relationships with his employees . . . . 20See, e.g , Nebel Knitting Co., 6 NLRB 284, 293, enfd as modified 103 F 2d 594 (C A. 4), Knoxville Glove Co , 5 NLRB 559; Virginia Ferry Corp., 8 NLRB 730, Hamilton Brown Shoe Co., 9 NLRB 1073, 1140; Citizen-News Co, 21 NLItB 1112, 1118 21 Third Annual Report of the National Labor Relations Board (1938) p 125. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As this inherent fear of economic reprisal could thus lend inordinate weight to antiunion but otherwise noncoercive state- ments by an employer, the Board found, with court approval, that the employer appeals against unions to employees con- stitute interference with the rights of those employees within the meaning of Section 8 (1).22 Later , however, in response to a decision of the Supreme Court in N. L. R. B. v. Virginia Electric & Power Company, 23 the Board modified this position tote end that an employer's statements to its employees would be viewed and judged in the context of all the employer's actions, and that a speech, not coercive in its text , might be treated as coercive only when found to be part of a coercive course of conduct. 24 To this point, accordingly, the Board, and the Courts in re- viewing the decisions of this agency, were primarily concerned with the content of statements by an employer to its employees or the general background of conduct surrounding the employer's remarks. In the period immediately preceding the 1947 amend- ments to the Act, however, the Board directed its attention to the different , but related , question concerned in the immediate circumstances under which employer antiunion speeches are heard by employees. In short, the Board shifted its attention from an exclusive concern with what was said by employers to employees, to the issues involved in how and where such speeches were given . In the much publicized Clark Bros. case , 25 the act of compelling employees to listen to antiunion 22 See N L. R. B. v. The Federbush Co., Inc., 121 F 2d 954 (C. A. 2), enforcing 24 NLRB 829. In dealing with the issue in that case, Judge Learned Hand, speaking for the court, stated, "No doubt an employer is as free as anyone else in general to broadcast any arguments he chooses against trade-unions, but it does not follow that he may do so to all audiences. The privilege of 'free speech', like other privileges, is not absolute, it has its seasons; a demo- cratic society has an acute interest in its protection and cannot indeed live without it, but it is an interest measured by its purpose. That purpose is to enable others to make an informed judgment as to what concerns them, and ends so far as the utterances do not contribute to the result Language may serve to enlighten a hearer, though it also betrays the speakers feelings and desires; but the light it sheds will be in some degree clouded, if the hearer is in his power Arguments by an employer directed to his employees have such an ambivalent character; they are legitimate enough as such, and pro tanto the privilege of 'free speech' protects them; but, so far as they also disclose his wishes, as they generally do, they have a force independent of persuasion " ( Emphasis supplied.) 23314U S 469 24 The Court stated, in the Virginia Power case, "The employer ... is as free now as ever to take any side it may choose on this controversial issue. But, certainly, conduct, though evidenced in part by speech, may amount, in connection with other circumstances, to coercion within the meaning of the Act. If the total activities of an employer restrain or coerce his employees in their free choice, then those employees are entitled to the protection of the Act And in determining whether a course of conduct amounts to restraint or coercion, pressure exerted vocally by the employer may no more be disregarded than pressure exerted in other ways. For 'slight suggestions as to the employer's choice between unions may have telling effect among men who know the consequences of incurring that employer's strong dis- pleasure ' (citing International Association of Machinists v. N. L. R B., 311 U S. 72, 78] " 25 Clark Bros. Co , Inc , 70 NLRB 802 The position set forth in this case had been anti- cipated, to some degree, in prior Board decisions . See, for example, American Tube Bending Co , 44 NLRB 121, reversed 134 F. 2d 993, cert. den. 320 U. S 768; Thompson Products, Inc., 60 NLRB 1381; Montgomery Ward & Co., 64 NLRB 432, 434, reversed 157 F. 2d 486; and Van Raalte, Inc , 69 NLRB 1326. LIVINGSTON SHIRT CORPORATION 413 speeches by their employer on company time and property was found to be a violation of the Act. In so holding , the Board stated: The compulsory audience was not , as the record shows, the only avenue available to the respondent for conveying to the employees its opinion on self - organization. It was not an inseparable part of the speech , anymore than might be the act of a speaker in holding physically the person whom he addresses in order to assure his attention. The law may and does prevent ause of a force without denying the right to speak. Similarly we must perform our function of protecting employees against that use of the employer's economic power which is inherent in his ability to control their actions during working hours. Such use of his power is an independent circumstance , the nature and effect of which are to be independently appraised . . . . [Footnotes omitted.] In granting enforcement to the Board order in this case, the Second Circuit Court ruled directly upon this issue , and held: The Board argues that one of the rights guaranteed em- ployees . . . is the right to be free to determine whether or not to receive aid, advice and information concerning their self- organization for collective bargaining , and that this right is violated whenever the employer utilizes his power to compel them to assemble and listen to speeches relative to matters of organization . But the present case does not call for laying down sobroada rule . An employer has an interest in presenting his views on labor relations to his employees. We should hesitate to hold that he may not do this on company time and pay, provided a similar ppportunity to address them were accorded representative s of the union . . . But in the case at bar the respondent not only engaged in the unfair labor practices already dis- cussed but entered upon an agressive anti-union campaign which wound up with the president ' s speech at the com- pulsory meeting one hour before the voting began. In these circumstances we believe the Board was justified in finding that the respondent ' s conduct was coercive and an inter- ference with the employees ' right to self- organization, despite the generally unexceptionable character of the president's remarks. (Emphasis supplied.)26 In the period between the Board decision in Clark Bros. and the enforcement of that decision by the court, the 1947 amend- ments to the Act were passed. These amendments included the provision in Section 8 (c) that ""The expressing of any views, argument, or opinion , or the dissemination thereof , whether in written, printed, graphic, or visual form, shall not constitute 26N. L. R. B. v Clark Brothers Company, Inc., 163 F. 2d 373. 376. 337593 0 - 55 - 28 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or be evidence of an unfair labor practice under any of the pro- visions of this Act, if such expression contains no threat of reprisal or force or promise of benefit." Thereafter, finding that the language of Section 8 (c)andits legislative history was intended to overrule the "compulsory audience" doctrine as set forth in the Board decision in Clark Bros., the Board formally abandoned that rule.27 To this point, therefore, the Board's approach to the essential problem of the inordinate pressures inherent in employer anti- union speeches to employees had been matured and molded by the actions of the Board itself, the decisions of the courts, and by congressional action in the 1947 amendments to the original Act. Thus, while the problem in no manner had disappeared, the questions of "what" an employer could state to its em- ployees on union matters and, to some extent, the question of "where" and "how" such speeches could be made, were com- paratively settled. In the Bonwit Teller case, 28 however, the Board was con- cerned with a new facet of the basic problem albeit one which had been suggested by the court itself in the earlier Clark Bros. case.29 This question was whether an employer who chooses to use his premises and employee working hours to assemble his employees and speak against a union, may deny that union's reasonable request for the same opportunity to present its case. In that case the employer, 6 days before a representation election, closed its retail store a half hour before the regular closing time. At that time the employer's president gave a speech to the assembled employees which was antiunion and which, the Board found, contained a promise of benefit for voting against the union. Three days after this speech, the union asked the employer for an opportunity to speak to the employees under similar circumstances. The request was not answered. The union thereafter lost the election and filed charges with the Board. The Board, in these circumstances, found that the employer's denial of the union's request constituted an unfair labor prac- tice under Section 8 (a) (1) and created conditions which were incompatible with a free, uncoerced choice in the election. The Board, let it be emphasized, did not find that the employer could not deliver an antiunion speech to employees assembled on company time and property. The Board did find that, once an employer had chosen such a method of influencing the em- ployees, a refusal of an equal opportunity to the union consti- tuted interference and restraint of the employees' rights. It should be obvious that this was neither the "captive audience" doctrine in "scant disguise" or a determination of that 27 See The Babcock & Wilcox Co , 77 NLRB 577; Merry Brothers Brick R, Tile Co., 75 NLRB 136 28 Footnote 19, supra. 29 The question was also raised in a supplemental representation case in the form of a compulsory audience issue S & S Corrugated Paper Machinery Co., 89 NLRB 1363, later overruled insofar as inconsistent with the Bonwit Teller decision LIVINGSTON SHIRT CORPORATION 415 question whatsoever. In this instance, the employer had law- fully prohibited union solicitation on its "selling floors" during either working or nonworking hours. 30 The employer then utilized its premises and its working hours to assert its anti- union position. Under these circumstances, the refusal to allow the union the same opportunity to address the employer was clearly a discriminatory application of the employer's rules concerning such solicitation. The Board, both before and after the Bonwit Teller case, has consistently held that such appli- cation of plant rules governing solicitation so as to favor one union over another or antiunion elements over union adherents is a patent violation of the statute.31 Further, the Board, in Bonwit Teller, held that the rights of employees, as guaranteed by the statute, to select or reject union representation "necessarily encompasses the right to hear both sides of the story under circumstances which reason- ably approximate equality." The antiunion arguments ex- pressed to the employees in this instance were of an origin and delivered in a locale which necessarily tended to lend them inordinate weight. The broad no-solicitation rule which pre- vented the union from exploiting at least the usual methods of contacting employees on company premises; the commission of other unfair labor practices by the employer during the organizational campaign; and the proximity of the speech to the election all joined to limit severely the circulation of opposing arguments . Absent an opportunity, therefore, to hear contrary facts and contentions under reasonably equal circumstances, the ability of employees to choose fairly between asserting and not asserting their statutory rights to self-organization was seriously impaired. The employer's refusal of the union request, perforce , thus resulted in an intereference and re- straint of the rights of its employees as guaranteed in Section 7. In short, the decision in Bonwit Teller does not in any man- ner prohibit an employer from utilizing its premises and the paid working time of its employees for antiunion speeches. It did, and does, seek to prevent interference with employees' rights which may occur as a result of conduct by an employer preventing adequate airing of the issues raised by his exercise of free speech. Having thus considered why and how the Bonwit Teller doctrine was enunciated by this agency, we may better con- sider the wisdom and implications of the action now taken by my colleagues in discarding that principle. The majority opinion agrees that, under the Bonwit Teller rule, the conduct of the Respondent Livingston in this case would have consti- tuted a violation of Section 8 (a) (1) of the amended Act. Chair- 30 For a discussion of the permissible limits upon union solicitation in department stores, see Marshal Field & Company, 98 NLRB 88, 90. 3iSee Standard-Coosa-Thatcher Company, 85 NLRB 1358; The Great Atlantic & Pacific Tea Company, 97 NLRB 295. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man Farmer and Member Rodgers, however, find no unfair labor practice to have been committed here on the ground that Section 8 (c) of the Act, either--which, it is not clear--by its terms or by necessary implication, prohibits the Board from finding such a violation . Member Peterson concurs in this decision only insofar as it rests, further, upon the ground that the American Tube Bending decision constitutes a repudiation of the Bonwit Teller doctrine by the Second Circuit Court of Appeals. The majority concludes, therefore, that "in the ab- sence of either an unlawful broad no-solicitation rule (prohib- iting union access to company premises on other than working time) or a privileged no-solicitation rule (broad, but not un- lawful because of the character of the business), an employer does not commit an unfair labor practice if he makes a pre- election -speech on company time and premises to his em- ployees and denies the union's request for an opportunity to reply." I am struck first by what seems to me to be the glaring internal inconsistency in the majority opinion in the applica- tion of Section 8 (c) of the Act. The majority says that the free- speech provision precludes the Board from making a finding that an employer commits an unfair labor practice by denying the union the right to make a speech under similar circum- stances. This is so, according to the majority, because treat- ing "conduct which is privileged" as giving rise to an obliga- tion to accord an equal opportunity to the union on pain of being found guilty of an unfair labor practice, is "an untenable basis" for a finding of unfair labor practices. Thus, "if, the privilege of free speech is to be given real meaning, it cannot be quali fied by grafting upon it conditions which are tantamount to negation," in the opinion of my colleagues(emphasis supplied). Yet after making this solemn pronouncement as a basis for overturning Bonwit Teller the majority then turns completely around and, in the companion Peerless Plywood decision, which they refer to, entirely extinguishes the employer's supposedly sacrosanct right of speech on company time and property for a period of 24 hours before the election! The majority announces this new rule, they say, to provide a "measure of protection for the employee , whose rights are after all paramount, from last-minute blandishments which he may feel compelled to hear and which may becloud his judgment and interfere with his thoughtful weighing of the issues in- volved" (emphasis supplied). It is comforting to know, despite the reverse implications of the instant decision, that we are all in agreement as to the need for protection of the rights of em- ployees and the fact that an employer's speech on company time and property may interfere with a free choice of a bargaining representative. We apparently differ only inmatters ofdegree-- when the employer's sole speech interferes and on how to remedy the interference. But how can a right which the majority says cannot be qualified to deal with this problem, then be ex- tinguished? How can the majority's express prohibition on the LIVINGSTON SHIRT CORPORATION 417 exercise of free speech by an employer for a stated period of time before an election be squared with their findings that there is "nothing in the statute which even hints at any congressional intent to restrict an employer in the use of his own premises for the purpose of airing his views"? Certainly neither logic, which the majority apparently admits is opposed to its position, nor the undocumented and nebulous experience referred to by my colleagues supports the making of such flatly contradic- tory findings. Nor does it seem appropriate, as the majority opinion suggests, to ignore such inconsistencies because they are contained in 2, not 1, decisions. The Bonwit Teller doc- trine never prohibited the exercise of free speech by an em- ployer at any ti mead I would not have the temerity to begin doing so now by acquiescing in the new 24-hour prohibition. We must turn, however, to the question as to whether Section 8 (c) does in fact bar the Board from finding the denial of an equal right to a union to speak on company time and property tobe an unfair labor practice. In its original decision setting forth the Bonwit Teller doctrine, the Board considered and re- jected the' contention that Section 8 (c) barred an unfair labor practice finding under these circumstances, noting, as I have emphasized herein, that it was the denial by the employer of an equal opportunity to the union to speak which was the act found illegal and not the employer's speech. Thereafter, as pointed out in the concurring opinion of Member Peterson herein, the Second Circuit Court of Appeals has specifically affirmed the Board's conclusion on this point, stating that, "neither Section 8 (c) nor any issue of `employer free speech' is involved " 32 (emphasis supplied). Nor can 1 agree that any implication arising out of Section 8 (c) is support for the theory advanced in the majority decision. Freedom of speech, far from being "foreign" to the Ponwit Teller doctrine, is basic to, and inherent in, that decision. Behind the Bonwit Teller principle that employees have the right to hear both sides under circumstances of ap- proximate equality, is the explicit recognition that freedom of speech is for all and not for a few. In direct conflict with this view that decisions in an industrial democracy should be made after free and open discussion is the opinion of the majority, implied by their holding herein, that an employer's arguments will have no weight or value unless he is assured sole access to the most prominent and effective forum. I prefer to 3elieve that the free speech which is our heritage does not comprehend such a monopoly and that its implementation in the field of labor relations must also be concerned with what the Supreme Court has termed the employee's "right fully and freely to discuss and be informed." 33 It is somewhat startling, therefore, to find this affirmance of the American concept of open and complete discussion by sources of varied opinion 32Bonwlt Teller, Inc . v. N. L. R . B., su ra 33 Thomas v. Collins, 323 U S. 516. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being labeled a "negation " of free speech . I deem the attitude of restriction basic to my colleagues ' decision in this case to be far more a negation of that freedom than any remote result of Bonwit Teller. Turning from the question of the impact of Section 8 (c), the majority decision states that while it has no quarrel with the principle that employees should hear both sides under approxi- mately equal circumstances , there is no specific support in the statute for finding the denial of such equality by an em- ployer to be an unfair labor practice . As with other arguments advanced in the majority decision , the appropriate answer to this was given by the Supreme Court , when, in reference to a similar contention , it stated , " The Wagner Act did not under- take the impossible task of specifying in precise and unmis- takable language each incident which would constitute an unfair labor practice . On the contrary , the Act left to the Board the work of applying, the Act's general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms ." 34 That the Congress did not attempt, either in the Labor - Management Relations Act of 1947 or in the Wagner Act , to detail this or others of the "infinite combinations" which might constitute interference with the right of self-organization and call for the Board ' s remedial action thus hardly suffices as a reason to deny employees the protection of the broad rights set forth in Section 7 of both those Act-- rights which necessarily encompass the right at issue herein. The majority further attacks the Bonwit Teller doctrine on the ground it has proven unworkable in the arena of practical labor-management relations . We are informed that "while purporting to establish equality" the real effect of the doctrine was to set in motion a "forensic seesaw" giving "unnatural prominence " to the plant premises as the "exclusive forum" for presentation of the issues of organization. We are told that "Bonwit Teller visualized that first one party and then the other should address the employees , and soon sereatim and ad infinitum, thus compelling a game of wits and an endless jockey- ing for position , the winner ' s prize being the treasured back- fence- advantage of having the last word ." Interesting and picturesque as this purported description is, it hardly con- forms to what have actually been the rulings of this Board and the practical results thereunder. As I have been at pains to point out in this opinion, the natural prominence of the plant premises as an extremely effective forum for dissemination of employer antiunion views had, long before the advent of Bonwit Teller, been recognized as a fact of industrial life. To be short , this is true not because of any decision of this Board but simply because that is where the employees work. Indeed, it is the harmful consequences of employer actions in that 34Repubhc Aviation Corp. v. N. L R. B., 324 U S. 793, 798. This concept, of course, is basic to the whole administrative system. LIVINGSTON SHIRT CORPORATION 419 sensitive locale which gave rise to Bonwit Teller as a pro- tective instrument . As for the further undocumented charac- terizations of the majority opinion, it is best to look at the record. Following enunciation of the Bonwit Teller doctrine in the case of that name, the Board , in anumber of decisions , ampli- fied and spelled out the conditions and circumstances necessary for its operations . I submit that these decisions not only show an absence of the "results " listed by the majority opinion but show the existence of ample safeguards for the rights of all concerned . First , of course , is the prerequisite that an em- ployer , of his own volition , utilizes plant property and time for an antiorganizational speech to his employees . Until that action is taken by the employer of his own free will , no basis on which to require union access to the same forum exists . Once such a speech is made, the union must request a comparable audience with the employees or be placed in aposition where such a re- quest would be futile . " Again, there is no compulsion upon the union to make a request and if it does not think that it is de- sirable or necessary for it to utilize the plant forum and does not request an opportunity to do so , the employer is under no obligation to offer it . 36 Thus, where the union had anticipated the employer ' s preelection speech in the union' s own propa- ganda and had attempted to rebut in advance any effects the speech might have had upon the employees , the Board has held, in the absence of a request by the union , that the employer did not interfere with the election , despite the fact that the em- ployer spoke shortly before the election.37 Further , the union's request, if made, must be clear , timely , and proper . 3e A union request which is made contingent upon some prospective em- ployer speech, rather than in response to a past speech, will not result in a violation where the employer does not again use the plant forum. 39 Likewise, a request delivered in an offhand manner in a casual conversation several days before any em- ployer speech has been held insufficient. 40 Finally , the employer is under no obligation to provide precisely equal facilities but only reasonably equivalent conditions under which the union speech might be given. Where an employer conditioned approval on the union' s request by limiting the union ' s audience to group meetings with the employer present, his actions have been held to meet any obligation arising from Bonwit Teller.41 There remains for consideration whether , in actual fact, the Bonwit Teller doctrine requires that either party have the "last word" and induces arguments seriatim to that end. The 35 See The Hill Brothers Company, 100 NLRB 964; Belknap Hardware & Manufacturing Company, 98 NLRB 484, and cases cited therein. 36See Fulton Bag and Cotton Mills, 106 NLRB 370 37 See Reeves Instrument Corporation, 104 NLRB 371. 3s See Wilson & Company, 100 NLRB 1512 39See The Muter Company, 104 NLRB 1101. 4o See Silver Knit Hosiery Mills, Inc., 99 NLRB 422. 4' See F W Woolworth Company, 105 NLRB 214 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board, of course, has specifically stated that neither party is guaranteed the last word -'nd that the union's opportunity to speak to the employees does not, necessarily, have to follow rather than precede the employer's speech.42 But for a con- clusive determination as to whether or not the charges of the majority are accurate, it is appropriate to turn to an actual example of the $onwit Teller rule in operation. In the Snively Groves case,43 a repre sentative of the petition- ing union, on its request, attended a plant meeting of employees held the day before a Boardelection. Boththe union representa- tive and the employer spoke to the assembled employees. On the day of election, the union distributed copies of a handbill following which the employer held a plant meeting on company time at which he replied to the handbill allegations. The union lost the election and filed objections contending that the em- ployer's speeches on the day of the election constituted inter- ference under the Bonwit Teller rule. The Board, however, overruled the objections, stating: While it is true that, by making the speeches in question on the day of the election, the Employer had the opportunity of addressing the employees at a point of time closer to the election, the Board's policy does not hinge on who has "the last word" as a basis for setting aside an election, but rather on whether the timing of the speeches was such as deliberately to preclude a presentation of the union's views. In the context of the facts of this case, including the fact that the Petitioner addressed the employees at the plant on the day before the election, we hold that the Em- ployer's conduct did not constitute interference with a free election. [Emphasis added.] [Footnotes omitted.] It is interesting to note that, according to the decision of my colleagues in the Peerless Plywood case, mentioned earlier, this election would now be set aside because of the last-minute activity of the employer although it was not under Ponwit Teller. It is probable that unions and employers, like other human contestants, will continue, either under or without a rule such as Bonwit Teller, to present their case as effectively as possib e. This being so, there will inevitably be attempts by each to seek the final thrust in a campaign. It is also clear, however, that the $onwit'Teller doctrine neither ac- centuates nor encourages such action. This objection, like the remainder urged by the majority, is shown by the Board's records to be far more fanciful than real. It is also contended by the majority that the Bonwit Teller doctrine, in effect, forces an employer to sub i s dize the organizational campaign of a union. Again the argument does not bear analysis. The only obligation which arises under 42See Foreman & Clark, Inc., 101 NLRB 40 43Snively Groves, Inc., 102 NLRB 1617. LIVINGSTON SHIRT CORPORATION 421 Bonwit Teller comes as a result of the voluntary use by an employer of his economic strength in such a manner as to jeopardize the rights of his employees. If an employer, of his own volition, so chooses to use the economic power inherent in his control of his employees at the situs of their employment, the Bonwit Teller doctrine prescribe s measures which are in the nature of requital rather than subsidization. Moreover, as my colleagues well know, ithas long been settled law that "inconvenience or even some dislocation of property rights may be necessary to safeguard the right to collective bargaining." 44 The central question posed by the majority decision in this case, however, is whether, in fact, those means of com- munication available to a union under normal circumstances are sufficient to meet the problems posed by an employer's exclusive use of company time and property for antiunion purposes. My colleagues answer in the affirmative, finding that these "time honored and traditional means " are shown by experience to be fully adequate to accomplish unionization and accord employees their statutory rights. As the experience upon which the majority bases its conclusion is neither stated nor documented, it is again appropriate to look at the record of this Agency and the results of expert inquiry into this field.' As noted in the majority decision, a union may obtain access to employees during the course of an organizational campaign in a number of ways, i.e., by individual contacts among workers at the plant during nonworking time where no privileged rule prohibits such activity, and by contacts secured while employees are entering or leaving the plant, at employees' homes, and at union meetings. Personal solicitation, handbills and other printed material, and mechanical equipment such as sound trucks may be utilized by varying degrees at these points of access. It is necessary , however, to examine these methods and media closely in order to determine their effectiveness as compared to that of an antiunion speech delivered on company time and property. The first of the areas in which solicitation is sometimes possible is, of course , at the plant itself. Contacts in this locale, however, even when not prohibited by a privileged no-solicitation rule, are severely restricted by the fact that they must be confined to the relatively brief intervals of nonworking time such as lunch periods and "breaks." Little or no comprehensive solicitation can be accomplished where contacts are limited to the number of employees whom one individual can meet or approach in a limited time and area. Moreover, this type of solicitation is frequently hampered 44N L. R. B v. Cities Service Oil Co., 122 F. 2d 149, 152, as quoted by the Supreme Court in Republic Aviation Corporation v. N L. R B., 324 U S. 793 at 803 6 For comprehensive studies of this question see 61 Yale Law journal 1066, and 14 Uni- versity of Chicago Law Review 104. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by employer antagonism to unionization - - an opposition which, whether outright or merely understood , may well stifle organization attempts entirely or reduce them to sub rosa and hazardous efforts incapable of reaching the mass of employees . 48 Contacts at the plant gate , either before or after work , are often made unavailable or ineffective through the location of the plant or the transit facilities used by the employees . Even when possible , such opportunities are handi- capped by the relatively brief period of attention available from workers anxious either to get to their jobs or return to their homes . 47 Unavailability of home addresses , extensive turnover of a working force making available information out of date , problems of transport , time, and cost , may limit, if not bar, the use of home solicitation . 48 Public meetings sponsored by unions or organizing committees are subject to the handicaps of transportation mentioned previously. "Workers whose jobs fill their days are tired and amusement- hungry at night; they are not eager to break away from their families or forego 'dates ' or relaxation to attend union meetings ." 49 Organization through public meetings also suffers from the pressure of employer antagonism expressed through surveillance and other interference . Organizers for one of the most successful trade unions are specifically instructed to "avoid any organization methods . . . which would require the workers to identify themselves openly with the union . . . Public meetings are seldom advisable , particularly in the smaller towns where everybody knows, everybody else's business . Some workers will be afraid to come, and those who do may be reported to the employer." so There are like weaknesses inherent in the various methods by which employees may be reached . Personal solicitation, as we have seen , is limited , in most instances , to contacts with a few individuals at a time and is subject to numerous restrictions and pressures . 51 Handbills, leaflets , and other 45 The 18-year history of the Board is replete with examples of interference of this type and the number of cases so finding is too large to permit citation See, however , the Board's Annual Reports for comments and conclusions concerning the prevalence of employer activity in this field. 41 See Barbash, Labor Unions in Action, chap. 2. 48See Brooks, When Labor Organizes , pp. 1-15, for a description of typical problems in- volved. Employees at plants located in predominantly rural areas are not infrequently re- luctant to allow such home visits because of the difficulty of keeping such visits unknown to their employer. In metropolitan areas, the problems of transportation and the time and cost involved in contacting a large number of individuals may be prohibitive . In plants employing a large number of women or young, unskilled and semiskilled workers, the labor turnover itself may make home address records incomplete or impossible to obtain 4961 Yale Law Journal 1066 at 1075 , citing Kopald, Democracy and Leadership in Bakka R, Kerr , Unions, Management and the Public, p. 180. so International Ladies ' Garment Workers' Union, Handbook of Trade Union Methods, p. 10 These conclusions, it may be noted, have been amply substantiated in the Board 's history and reported cases. 51Such personal solicitation, for example, is in contrast to the emotional and psychological pressures which may be utilized in a mass meeting See Key, Political Parties and Pressure Groups, p. 595. LIVINGSTON SHIRT CORPORATION 423 printed material must necessarily be brief in content and argument.52 Moreover, it is now well established that such material usually reaches only a portion of the intended audience and is consideraly less effective than oral presentation of arguments and opinion.53 The use of sound trucks is often made inadvisable and impracticable because of the physical location of the plant and, even where feasible, is restricted by the necessity of reaching an audience moving to other destinations.' Arguments, under these circumstances, must be abridged to brief, repetitive appeals rather than full attempts at persuasion.55 The media and methods available to unions and employees intent upon self-organization are thus, upon analysis, seen to be under considerable handicaps. This is not to say that these media and methods are not often successful despite the restrictions under which they operate. Their defects, however, must be clearly borne in mind if we are to equate them, as does the majority, with the force and effect of an employer antiunion speech delivered on company time and property. In contrast to the means open to the organizing employees, the employer speech on company time and property has the tremendous advantage of securing the undivided attention of all employees--interested, passive, and antag- onistic. A carefully planned, extensive, and well-organized speech, under these circumstances, is hardly on a par with the limited time, argument, and opportunity open to the union. But of even more importance is the physchological impact which accompanies the employer's solicitation in this environ- ment. I have mentioned the recognition by this Agency and the courts of the effect which employer antiunion arguments have when delivered to an audience assembled on his property in the presence of all the indicia of his economic control over their livelihood. It is both interesting and importnat to note that these conclusions have been affirmed by independent studies in this field. As pointed out recently," Social scientists have noted the existence of what might be called deference patterns, which predispose people to respond automatically towards those to whom they 52ILGWU, Handbook of Trade Union Methods, p. 43, which notes that most handbills pre- pared for street distribution are given a hurried glance and thrown away. 53See 61 Yale Law journal 1066 at 1074(footnote 33) citing Klapper, The Effects of Mass Media; Wilke, An Experimental Comparison of the Speech, the Radio, and the Printed Page as Propaganda Devices, Archives of Psychology No.169, Lazarsfeld, Berelson and Gaudet, The People's Choice. This is particularly true of workers in plants. See Baker, Ballantine & True, Transmitting Information through Management and Union Channels; Peters, Communication Within industry. 54 See ILGWU, Handbook of Trade Union Methods, p 11. 55 See Doob, Public Opinion and Propaganda, pp 529-32. 5614 University of Chicago Law Review 104 at 108, citing Roethlisberger & Dickson, Man- agement and the Worker; Gardner, Human Relations in Industry; Whyte, Who Goes Union and Why; Whitehead, Leadership in a Free Society; and Mayo, Human Problems of an Industrial Civilization 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have been in the custom of responding. Thus, while they are in the plant, employees customarily obey the instructions of company supervisors and officials. Habitual responses of this type tend to operate whether the employee is responding to the desires of the employer that he should perform some shop operation or that he should pursue some less objective course such as voting against a certain union . . . . Field studies indicate how deep- rooted is the feeling among workers that their future welfare depends upon "not crossing the boss." [Emphasis supplied.] Accordingly, it is clear from the 18-year experience of this Agency, as well as from the evidence and expert opinion available, that once the pressures inherent in employer antiunion speeches delivered on company time and property are exerted, other methods of communication with those employees are not adequate for purposes of reply. This being so, the assertion of the majority that union use of these unequal and subsidiary methods and media is sufficient to dispel the harmful effects of such employer speeches is clearly erroneous. To this point, I have been concerned with the majority opinion insofar as it dealt with the practicality of, and the philosophy underlying, the Bonwit Teller doctrine. The full majority, however, in rejecting that doctrine here, further rely upon an'asserted disapproval of the rule by the courts. It is therefore pertinent to examine the decisions relied upon. The original findings of the Board in the Bonwit Teller case were considered by the Second Circuit Court of Appea s in 1952. Since that time, the same court has ruled on one other Board decision also involving an employer denial of a union's request to speak to its employees. In both these cases, the decision of the Board that the employer had committed unfair labor practices was sustained by the court. No other court decision on the issue, to this date, has been handed down in any circuit.57 The majority, although in part rejecting the square holding of the Second Circuit on the effect of Section 8 (c), nevertheless base their decision, to an extent, upon other expressions of that court. In the decision rendered in Bonwit Teller v. N. L. R. B., 58 the court noted that: Normally, an employer cannot forbid union solicitation on company property during non-working time even where there is no showing that solicitation away from the plant would be ineffective. Public Aviation Corp. v. N. L. R. B., 324 U. S. 793. This is so because the place of work has been recognized to be the most effective place for the 57 See, however, F. W. Woolworth Company, 102 NLRB 581, now on petition for enforcement in the United States Court of Appeals for the Sixth Circuit. 58 Su ra footnote 19 LIVINGSTON SHIRT CORPORATION 425 communication of information and opinion concernin unionization . The Board , however, has allowed retai department stores the privilege of prohibiting all solicita- tion within the selling areas of the store during both working and non-working hours . Bonwit Teller chose to avail itself of that privilege and, having done so, was in our opinion required to abstain from campaigning against the Union on the same premises to which the Union was denied access; if it should be otherwise, the practical advantage to an employer who was opposed to unionization would constitute a serious interference with the ri ht of his employees to organize . [Emphasis sup- plied.] The court , therefore , concluded that it was the disparate use of the solicitation rules put in force by Bonwit Teller in that instance , which was the heart of the unfair labor practice which it committed . In the following case, N . L. R. B. v. American Tube Bending Co ., 59 the same court found a dis- criminatory application of a no-solicitation rule and a violation of the Act where an employer delivered a speech on company time and property while denying the union access to his plant at all times. It is true , as noted by the majority opinion, that the court in both opinions , included dicta implying rejection of the "equal opportunity " rule set forth in the Board's Bonwit Teller decision in situations not involving discriminatory application of no - solicitation rules. Specifically , the court noted in its opinion in the Bonwit Teller proceeding that: . the violation here was the discriminatory application of the no-solicitation rule. If Bonwit Teller were to abandon that rule, we do not think it would then be re- quired to accord the Uniona similar opportunity to address the employees each time . . . [the employer] made an antiunion speech. Nothing in the Act nor in reason compels such "an eye for an eye, a tooth for a tooth" result so long as the avenues of communication are kept open to both sides . [Emphasis supplied .] The court, in its later decision in American Tube Bending expanded on this thought and state d that in Bonwit Teller, "we rested our decision wholly upon the . . . [discriminatory application theory] 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 ." Judge Frank , however , in a special concurrence , stated that 59205 F . 2d 45, June 15, 1953, enforcing 102 NLRB 735. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 solicita- tion in non-working 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 . . . . [Emphasis supplied.] In summation of the court position , accordingly , the decision of this Board in both Bonwit Teller and American Tube Bending that unfair labor practices had been committed by the employer was sustained but on a limited basic, i.e ., the discriminatory application of no-solicitation rules . Whether or not the court would, in fact , reject the doctrine of equal opportunity where a no-solicitation rule did not exist or existed in a limited form has not been decided for no case requiring such a decision has been before the courts . Indeed, the language of the court in the Clark Bros. decision points in the opposite direction, and the concurring opinion of Judge Frank in the American Tube Bending case indicates that the Second Circuit Court is not in complete agreement on the dicta expressed in that case and in Bonwit Teller . I need hardly add the well - recognized principle that the denial of certiorari requested by the employer in the Bonwit Teller case did not indicate approval of the circuit court's decision by the Supreme Court, let alone its dicta. It is not unusual , or in any way improper, moreover , for the Board to adhere to an important principle arrived at through full and thorough consideration - -despite the existence, par- ticularly at the first stages of exposition , of contrary decisions by one or more circuit courts of appeals -- until the Supreme Court has finally ruled on the question . A fortiori , there is no good reason for sacrificing such an important principle as involved herein simply because of dicta by one court of appeals. The assertion of a respectful disagreement with a court of appeals is the only way in which a dispute over an important issue can reach the Supreme Court . The decision of the Second Circuit Court in the Bonwit Teller case indicated an interest and an awarement of "avenues of communication" which must be "kept open to both sides ." The Board , through its position as an ''expert " agency in the specialized field of labor-management relations , is well equipped to determine and weigh the utility and value of such "avenues ." As the Supreme Court has remarked on a previous occasion, 60 "To say that the Board must disregard what preceded and what followed the membership drive would be to require it to shut its eyes to potent imponderables permeating this entire record . The detection and appraisal of such im- ponderables are indeed one of the essential functions of an expert administrative agency" ( emphasis added). 60 International Association of Machinists v. N. L R B , 311 U S. 72, at 72 PEERLESS PLYWOOD COMPANY 427 I have set forth herein some of the long and complex investigation and determination by the Board, the Courts, and the Congress, which led to the development of the principle at issue. That history is marked by frequent appraisals of the subtle but powerful pressures inherent in employer, speeches on union organization given in a plant environment and on working time. Until we are certain that the Bonwit Teller doctrine has been rejected not only by the circuit courts but by the Supreme Court, or that the doctrine, itself, is unsuitable for the purpose for which it was designed, I submit that we are mistaken in abandonment of a rule so grounded in our particular and specialized knowledge and so vital in preserving employee rights to the choice of bargaining representatives free from employer interference. To do otherwise is to ignore the function the statute prescribes and to avoid the rights the statute protects. For these reasons, accordingly , I cannot join in the action of my colleagues and would find that the Respondent Livingston, by its conduct prior to the election in this case, thereby violated Section 8 (a) (1) of the Act. PEERLESS PLYWOOD COMPANY and UNITED FURNITURE WORKERS OF AMERICA, C.I.O., Petitioner. Case No. 11-RC-517. December 17, 1953 SUPPLEMENTAL DECISION, ORDER, AND SECOND DIRECTION OF ELECTION Pursuant to a Decision and Direction of Election' issued herein on May 13, 1953, an election by secret ballot was conducted on May 26, 1953, under the direction and super- vision of the Regional Director for the Eleventh Region, among employees in the unit found appropriate by the Board. Following the election, a tally of ballots was furnished the parties. The tally shows that of 50 votes cast in the election, 20 were for , and 29 were against, the Petitioner, with 1 ballot challenged.: On May 28, 1953, the Petitioner filed objections to conduct affecting the results of the election . The Regional Director investigated the objections and, on August 19, 1953, issued and duly served upon the parties a "Report on Objections," in which he recommended that the election be set aside and a new election ordered. Within the proper time therefor, the Employer filed exceptions to the Regional Director ' s report. Having duly considered the matter , the Board finds as follows: ' Not reported in printed volumes of Board decisions. 2 Local Union No. 2566, United Brotherhood of Carpenters and Joiners of America, AFL, also appeared on the ballot but received no votes. 107 NLRB No 106.