NATIONAL LABOR RELATIONS BOARD v. MAGNAVOX COMPANY OF TENNESSEE
No. 72-1637.
Argued January 14-15, 1974—
Decided February 27, 1974
Douglas, J., delivered the opinion of the Court, in which Burgee, C. J., and BrenNAN, White, Marshall, and Blackmun, JJ., joined. Stewart, J., filed an opinion concurring in part and dissenting in part, in which Powell and Rehnquist, JJ., joined, post, p. 327.
Peter G. Nash argued the cause for petitioner. With him on the brief were Solicitor General Bork, John S. Irving, Patrick Hardin, and Norton J. Come.
George K. McPherson, Jr., argued the cause and filed a brief for respondent. Winn Newman and Ruth Weyand filed a brief for the International Union of Electrical, Radio & Machine Workers, AFL-CIO, petitioner below, urging reversal.
Mr. Justice Douglas
delivered the opinion of the Court.
In 1954, the International Union of Electrical, Radio, and Machine Workers (IUE) became the collective-bargaining representative of respondent's employees. At that time respondent had a rule prohibiting employees from distributing literature on any of its property, including parking lots and other nonwork areas. The collective agreement authorized the company to issue rules for the “maintenance of orderly conditions op plant property,” provided the rules were not “unfair” or “discriminatory.” It also provided that bulletin boards would be available for the posting of union notices, subject to the company’s right to reject “controversial” notices. All subsequent contracts contained similar provisions. Throughout the period since 1954 respondent has prohibited employees from distributing literature even in nonworking areas during nonworking time.
In due course, the IUE challenged the validity of the company’s rule and requested that the rule be changed. The request was denied and the IUE filed charges against respondent for unfair labor practices in violation of § 8 (a) (1) of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U. S. C. § 158 (a)(1). The Board held for the IUE, following its earlier decision in Gale Products, 142 N. L. R. B. 1246, where it had said:
“Their place of work is.the one location where employees are brought together on a daily basis. It is the one place where they clearly share common interests and where they traditionally seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.” Id., at 1249.
The remedy in Gale Products ran in favor of employees whose distribution project was to reject a union representative. The Board in the present case, however, broadened the relief to embrace those who wanted to support a union representative, 195 N. L. R. B. 265. The Court of Appeals denied enforcement of the Board's order, because in its view the union had waived objection to the ban on on-premises distribution of literature and had the authority to do so. 474 F. 2d 1269. The case is here on petition for certiorari, which we granted because of the conflict between this decision of the Court of Appeals for the Sixth Circuit with that of the Eighth in International Association of Machinists v. NLRB, 415 F. 2d 113, and that of the Fifth in NLRB v. Mid-States Metal Products, 403 F. 2d 702.
Employees have the right recognized in § 7 of the Act “to form, join, or assist labor organizations” or “to refrain” from such activities. 29 U. S. C. § 157. We agree that a ban on the distribution of union literature or the solicitation of union support by employees at the plant during nonworking time may constitute an interference with § 7 rights. The Board had earlier held that solicitation outside working hours but on company property was protected by § 7 and that a rule prohibiting it was “discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.” In re Peyton Packing Co., 49 N. L. R. B. 828, 843-844. We approved that ruling in Republic Aviation Corp. v. NLRB, 324 U. S. 793, 801-803. No contention is made here that considerations of production or discipline make respondent’s rule necessary. The sole issue concerns the power of the collective-bargaining representative to waive those rights.
The union may, of course, reach an agreement as to wages and other employment benefits and waive the right to strike during the time of the agreement as the quid pro quo for the employer’s acceptance of the grievance and arbitration procedure. Textile Workers v. Lincoln Mills, 353 U. S. 448, 455. Such agreements, however, rest on “the premise of fair representation” and presuppose that the selection of the bargaining representative “remains free.” Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 280. In that case we held that the waiver of the “right to strike” did not embrace a waiver of the right to strike “against unlawful practices destructive of the foundation on which collective bargaining must rest.” Id., at 281. We dealt there with rights in the economic area. Yet, as the Fifth Circuit held in the Mid-States case, a different rule should obtain where the rights of the employees to exercise their choice of a bargaining representative is involved — whether to have no bargaining representative, or to retain the present one, or to obtain a new one. When the right to such a choice is at issue, it is difficult to assume that the incumbent union has no self-interest of its own to serve by perpetuating itself as the bargaining representative. 403 F. 2d, at 705. The place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees. So long as the distribution is by employees to employees and so long as the in-plant solicitation is on nonworking time, banning of that solicitation might seriously dilute § 7 rights. For Congress declared in § 1 of the Act that it was the policy of the United States to protect “the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.” 29 U. S. C. § 151.
It is argued that the use of the bulletin board is a fair substitute. But as the Fifth Circuit said in the Mid-States case the bulletin board may be an adequate medium for “preserving the status quo” and yet not give a union’s adversaries “equal access to and communication with their fellow employees.” 403 F. 2d, at 705.
Moreover, a limitation of the right of in-plant distribution of literature to employees opposing the union does not give a fair balance to § 7 rights, as the Board ruled in the present case. For employees supporting the union have as secure § 7 rights as those in opposition. The Board’s position, as noted, has not always been consistent. But its present ruling is, we think, quite consistent with § 7 rights of employees. It is the Board’s function to strike a balance among “conflicting legitimate interests” which will “effectuate national labor policy,” including those who support versus those who oppose the union. NLRB v. Truck Drivers Union, 353 U. S. 87, 96. Moreover, as respects employers, the rights of solicitation of employees by employees concerning § 7 rights are not absolute. As we noted in Republic Aviation Corp. the Board may well conclude that considerations of production or discipline may make controls necessary. No such evidence existed here and the trial examiner so found. Accordingly, this is not the occasion to balance the availability of alternative channels of communication against a legitimate employer business justification for barring or limiting in-plant communications.
Reversed.
IUE, in a brief supporting the Board’s position, states there are some 2,300 employees in the bargaining unit who live scattered over a two-state area covering more than 100 square miles. The plant is located in Greenville, Tennessee. Some workers live 30 miles distant in Johnson City, Tennessee, and others live in Morrison, North Carolina. It claims that handing out leaflets at the plant gate is impractical as cars enter or exit four abreast at fast speeds. We mention these statements not to resolve a controversy, but to indicate at least a part of the range of any inquiry into the need for in-plant solicitation if § 7 rights are to be protected.
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