Before KALODNER, STALEY and HASTIE, Circuit Judges.
KALODNER, C. J.: This is a petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, as amended, to enforce its order issued against the respondent in proceedings under Section 8(a) of the Act.*fn1
The issues presented are whether the Board properly found that (1) the respondent violated Section 8(a)(1) of the Act by enforcing its no-distribution rule so as to prevent employees from distributing union literature in the parking lot outside respondent's plant, and (2) respondent's foremen violated Section 8(a)(1) by interrogating employees about their union sympathies and "cautioning" them concerning their activities in behalf of union organization.
It must immediately be noted that the situation here is unusual in these respects: on the score of the first issue, the Board's trial examiner in his Intermediate Report found that since respondent had a long-standing valid rule prohibiting unauthorized distribution of literature on its property it did not engage in an unfair labor practice by denying an employee request to distribute union literature on the company parking lot, and the Board decided otherwise; on the score of the second issue the trial examiner found that respondent did not violate the Act by reason of its supervisory employees' conversation with and interrogation of three of its employees - Youngren, Case and Lenkerd, - and the Board held to the contrary. Adding further fillip to the conflict of findings between the trial examiner and the Board is the circumstance that while the former held that a speech of respondent's general manager (Hudson) to its employees anent efforts to unionize its plant violated the provisions of the Act, the Board held that the speech was "innocent of any threat of reprisal or force or promise of benefit" and was therefore "privileged under Section 8(c) of the Act."
Pursuant to its determinations, as above stated, the Board ordered respondent to cease and desist from preventing its employees from distributing union literature on its parking lots; from interrogating its employees concerning membership in, or activities on behalf of the union and from threatening them with sanctions because of such membership or activities.Affirmatively, the Board's order requires respondent to post appropriate notices announcing its intention to refrain from the prohibited activities.
It may be stated preliminarily that the respondent, Rockwell Manufacturing Company, is engaged in the production of a diversified line of industrial equipment sold and shipped in interstate commerce. Its Du Bois Division consists of Plants Nos. 1 and 2 in Du Bois, Pennsylvania, and a third plant in the neighboring town of Sykesville. Included as a part of Plant No. 1 is the NYA building, about two blocks away.
Plant No. 1, where most of the incidents here in issue took place, is located in an urban area. There are highways on two sides of the plant. It has broad sidewalks. Adjacent to one side of the plant is a large parking lot, owned by respondent, which accommodates some two hundred automobiles. Across from the plant, off the highway, is a smaller one-hundred car parking lot.
Approximately eighty to eighty-five percent of the plant employees use the larger parking lot. About 400 feet from the highway entrance to this lot there is an entrance to the plant. The respondent's time clock is located at the plant entrance - off the parking lot.
For the sake of convenience the separate issues presented will be separately discussed.
First, as to respondent's enforcement of its no-distribution rule on its parking lot, and the testimony adduced with respect to it
Respondent in 1951 promulgated a rule prohibiting distribution of all literature on its property without its specific prior approval.
In the latter part of January, 1957, Fred Mensch, an International Representative of the International Union of Electrical, Radio and Machine Workers, AFL-CIO, met with several Rockwell employees to discuss organization of respondent's plants.
On February 8, 1957, union advocates distributed pro-union literature to the employees of the plants on the public sidewalk as they entered the parking lot on their way to work. Later that day a notice was posted by respondent on its bulletin boards informing the employees that distribution of literature on its premises without its prior approval was prohibited by established company rules, and that violators would be subject to disciplinary action which might result in dismissal.*fn2
The respondent's no-distribution policy was complied with by all employees,*fn3 although four employees did request permission to distribute union literature at the employees' entrance to the plant - the point at which the employees left the parking lot to "punch in". There has been no discrimination in the enforcement of the rule. Both respondent and the employees who requested permission to distribute literature recognized that any permission would have to apply equally to pro- and anti-union employees. The request was not granted.
Respondent's failure to grant this request resulted in a complaint being filed with the National Labor Relations Board charging that the respondent committed an unfair labor practice in that it interfered with, restrained or coerced its employees in the exercise of their right of self-organization as guaranteed in Section 7 of the Act.*fn4 As earlier stated, the trial examiner dismissed these charges and the Board held to the contrary*fn5 and issued an order that respondent cease and desist from preventing employees from distributing union literature in its parking lot. Respondent was given the right to establish necessary, reasonable, non-discriminatory regulations governing such distribution.
The law which governs the validity of a non-discriminatory no-distribution rule has been laid down in three Supreme Court cases.
The first was Republic Aviation Corporation v. National Labor Relations Board (together with National Labor Relations Board v. Le Tourneau Company of Georgia ), 324 U.S. 793 (1945). In the Le Tourneau case the employer had a broad no-distribution of literature rule which was enforced without discrimination so as to bar employees from distributing union literature on company-owned parking lots. The Board, holding that such a bar was an unfair labor practice, specifically found that because of the physical isolation of the plant and because of the widely scattered residences of employees, the distribution of literature to employees was rendered "virtually impossible", direct contact with employees away from the plant "extremely difficult" and self-organization "seriously impeded".*fn6 The Board, in part, relied on Matter of Peyton Parking Company,*fn7 where it adopted a presumption that a broad company prohibition against solicitation on company property during non-working hours was presumed invalid unless "special circumstances make the rule necessary . . ."*fn8 The Supreme Court upheld the Board's determination, finding no error in the Board's adoption of the presumption.
The second case was National Labor Relations Board v. Babcock & Wilcox Co ., 351 U.S. 105 (1956) where the employer refused to permit distribution of union literature by non-employee union organizers on company-owned parking lots. The Board held this to be an unreasonable impediment to the employees' right to self-organization. It found that due to the physical location of the plant the only safe and practicable place for the distribution of literature to employees was on the parking lots. The sidewalks and streets were not safe. Other means of communication, such as telephone, advertising, mailing and home visitations were available. The Supreme Court reversed the Board stating that the rule with respect to non-employee distributions on plant property differed from that for employees. Unless the non-employees could show that the employees were beyond the reach of reasonable union efforts to communicate with them through other means, the employer could bar the non-employees from distributing union literature so long as the bar did not discriminate against the non-employees by allowing other distributions.
The third case was National Labor Relations Board v. United Steelworkers of America, 357 U.S. 357 (1958). In this case NuTone, Inc. posted a series of no-solicitation rules which included a rule against the distribution of any literature on company property - company property being defined to include parking lots.*fn9 The company enforced this rule against pro- and anti-union employees but itself distributed non-coercive anti-union literature. The proceeding before the Board was instituted by the union, whose rights, as non-employees, were governed by the principles enunciated in the Babcock & Wilcox case. The issue raised was whether enforcement of the rule - at the same time the company was violating it - constituted an unfair labor practice. The trial examiner,*fn10 the Board,*fn11 and the Supreme Court*fn12 all conceded that the rule itself was valid, apparently because, as the trial examiner stated, ". . . prohibiting the distribution of literature on the parking lot did not, under the circumstances shown by the record, constitute an unreasonable impediment to communication . . . since distribution was as effectively made from the sidewalk, immediately adjacent, as on the lot itself."*fn13 After stating that "employer rules prohibiting organizational solicitation are not in and of themselves violative of the Act, for they may duly serve production, order and discipline. See Republic Aviation Corp. v. Labor Board, 324 U.S. 793; Labor Board v. Babcock & Wilcox Co ., 351 U.S. 105",*fn14 the Supreme Court said:
"No attempt was made . . . to make a showing that the no-solicitation rules truly diminished the ability of the labor organizations involved to carry their message to the employees. Just as that is a vital consideration in determining the validity of a no-solicitation rule, see Republic Aviation Corp. v. Labor Board, supra, at 797-798; Labor Board v. Babcock & Wilcox Co., supra, at 112, it is highly relevant in determining whether a valid rule has been fairly applied. . . . If, by virtue of the location of the plant and its facilities and resources available to the union, the opportunities for effectively reaching the employees with a pro-union message, in spite of a no-solicitation rule, are at least as great as the employer's ability to promote the legally authorized expression of his anti-union views, there is no basis for invalidating these 'otherwise valid' rules. The Board, in determining whether or not the enforcement of such a rule in the circumstances of an individual case is an unfair labor practice, may find relevant alternative channels available for communications on the right to organize. When this important issue is not even raised before the Board and no evidence bearing on it adduced, the concrete basis for appraising the significance of the employer's conduct is wanting."*fn15
The Supreme Court then reversed the Board for failing to make findings that reasonable alternatives were not open to the union to ...