Livingston Shirt Corp.

National Labor Relations Board - Board Decisions

Dec 17, 1953

107 N.L.R.B. 400 (N.L.R.B. 1953)

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 timead 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 isdize 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 emp loyees 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.