IV

Unfair Labor Practices

The Board is empowered by the act "to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce." In general, section 8 forbids an employer or a union or their agents from engaging in certain specified types of activity which Congress has designated as unfair labor practices. The Board, however, may not act to prevent or remedy such activities until a charge of unfair labor practice has been filed with it. Such charges may be filed by an employer, an employee, a labor organization, or other private party. They should be filed with the regional office of the Board in the area where the unfair practice allegedly was committed.

This chapter deals with decisions of the Board during the 1954 fiscal year which involve novel questions or set new precedents.

A. Unfair Labor Practices of Employers

In general, the act requires an employer to bargain in good faith with the representative chosen by a majority of a group of employees which is appropriate for collective bargaining. To assure the freedom of employees in bargaining, the act forbids an employer to interfere with the right of employees to engage in concerted activities directed toward collective bargaining, or to assist or dominate an organization of employees which is formed, or is being formed, for the purpose of bargaining. The act also specifically forbids an employer from discriminating in the terms or conditions of employment against employees either because of their participation in the concerted activities protected by the act, or because of their refusal to participate in such activities except under a valid union shop.

1. Interference With Employees' Rights

Section 8 (a) (1) of the act forbids an employer "to interfere with, restrain, or coerce" employees in the exercise of their rights to engage in, or refrain from, collective bargaining and self-organizational activities as guaranteed by section 7. Violations of this general prohibition may take the form of (1) any of the types of conduct specifically iden

tified in subsections 2 through 5 of section 8,1 or (2) any other conduct which independently tends to restrain or coerce employees in exercising their statutory rights. This section treats only the cases coming within category (2)-independent violations of 8 (a) (1).

a. Questioning of Employees

The problem of the interrogation of employees regarding their union activities or sympathies was dealt with in a variety of contexts during fiscal 1954.

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Where the employer's highest official systematically questioned group of employees in order to learn the identity of the union organizer, the Board found that the action was clearly coercive and violated section 8 (a) (1) when viewed in the light of the organizer's later discharge. Similarly, section 8 (a) (1) was held violated by questions as to "when the union would come in," whether the employees belonged to it, and whether they participated in a strike vote and knew if a strike had been called. In the same case, the Board held that the employer unlawfully requested a show of hands to determine which employees would report for work the next day. The Board held that the employer's entire conduct indicated that the strike poll was intended to interfere with the employees' right to engage in a planned economic strike and was not in the nature of innocent interrogation.

In one case, an employer was enjoined from using, as part of a discriminatory hiring plan, application forms designed to elicit information concerning the union affiliation of prospective employees. And the questioning of prospective employees as to their union sympathies in another case also was held to have unlawfully restrained them in the exercise of their statutory rights.5 The Board here overruled the trial examiner's finding that the coercive effect of the interrogation had been dispelled by the later employment of the applicants.

However, an employer was held to have acted within his rights in inquiring whether an employee had been threatened with loss of employment unless she joined the union.

Isolated instances of interrogation in some cases where no other violations of the act were found were held not to constitute infractions of section 8 (a) (1) or to justify a remedial order."

1 Violations of these types are discussed in subsequent sections of this chapter. St. Louis Car Co., 108 NLRB No. 222. Members Murdock and Peterson expressed the view that the interrogation was illegal independently of the context of the illegal discharge.

3 New Hyden Coal Co., 108 NLRB No. 163. Compare A. E. Nettleton Co., 108 NLRB No. 236, involving similar interrogation. Chairman Farmer and Member Rodgers dissented on the ground that the remarks were isolated and not made in an antiunion context. McGraw Construction Co., 107 NLRB No. 210.

5 Babcock & Wilcox Co., 108 NLRB No. 233.

Hadley Mfg. Corp., 108 NLRB No. 224.

7 See for instance New Mexico Transportation Co., 107 NLRB No. 8; Livingston Shirt Corp., 107 NLRB No. 109; The Walmac Co. (Radio Station KMAC & FM Station KISS), 106 NLRB 1355. Compare Vanover Coal Co., 107 NLRB No. 286.

(1) Permissible Purposes of Interrogation

The Board has consistently held that questioning of employees regarding their union activities is privileged to the extent required by legitimate trial preparation in an unfair labor practice case. On two occasions during the past year, the Board concluded that this privilege was not exceeded because some of the questions relating to past union activities proved to be unnecessary in the proceeding. The Board noted that there had been no intention to intrude unduly upon the employees' privacy in their union affairs.

In one case, a majority of the Board also held that the questioning of employees as to a union's representative status was a bona fide attempt to determine the validity of the union's representation claim and did not violate section 8 (a) (1). The majority pointed out that the employer's subsequent recognition of the union conclusively established that the verification of its majority status was the sole purpose of the questioning.

b. Influencing Employee Elections

In addition to the conventional question of whether employers have sought unlawfully to influence the outcome of representation elections by the direct solicitation of antiunion votes or by threats and promises,10 the Board has had to deal with the problem of whether employers who confined themselves to privileged persuasion nevertheless violated section 8 (a) (1) by exercising their right of free speech in a manner and under circumstances which exerted an undue influence on the employees' election choice.

(1) Speeches on Company Time-The Livingston Rule

In the Livingston case," the Board had occasion to reexamine the question whether an employer unduly influences his employees by assembling and addressing them on company time and premises and by refusing the campaigning union's request for permission to reply under like circumstances. Concluding that, absent unusual circumstances, the act does not require an employer to grant such a request, a majority of the Board 12 rejected the "equal opportunity" principle of the earlier Bonwit-Teller case.13 In the view of the majority, the

8 Babcock & Wilcox Co., 108 NLRB No. 233; Partee Flooring Mill, 107 NLRB No. 249 (Member Murdock dissenting).

A. E. Nettleton Co., 108 NLRB No. 236 (Members Murdock and Peterson dissenting). 10 See for instance Partee Flooring Mill, 107 NLRB No. 249; Endicott-Johnson Corp., 108 NLRB No. 23; Armco Drainage & Metal Products, Inc., 106 NLRB 725; compare Sparkletts Drinking Water Corp., 107 NLRB No. 293.

11 Livingston Shirt Corporation, 107 NLRB No. 109.

12 Member Murdock dissenting.

18 Bonwit-Teller, Inc., 96 NLRB 608. The Board majority specifically overruled earlier decisions to the extent that they were based on the "equal opportunity" rule.

postulate that employers and unions alike should be free to persuade employees in their election choice does not require, and Congress did not intend, that an employer who uses his own property make his premises and working time similarly available to the campaigning union. In support of its conclusion, the majority pointed out that: 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 individual 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 conducted 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.

However, under the Livingston rule an employer is not privileged to make a preelection speech on his time and premises, and to deny a campaigning union's request for an opportunity to reply, if he has in effect "either an unlawful broad no-solicitation rule (prohibiting union access to company premises on other than working time) or a privileged no-solicitation rule (broad, but not unlawful because of the character of the business)." 14 On the other hand, the employer's privilege is not affected by a normal rule prohibiting solicitation only during working hours.

As noted in Livingston, the unfair labor practice rule of that case must be accommodated to the Peerless Plywood election rule of the same date which prohibits campaign speeches on company time and premises less than 24 hours before a scheduled Board election.15 Thus, an employer's speech to employees assembled on company time, which is privileged and not an unfair labor practice under the Livingston rule, will nevertheless be held to invalidate the ensuing election if the speech was made during the critical 24-hour period.16

c. Rules Restricting Union Activities.

The Board during fiscal 1954 has had occasion to reaffirm the employer's right to prohibit union activities to the extent that this is

14 In support of its ruling the majority cited N. L. R. B. v. American Tube Bending Co., 205 F. 2d 45 (C. A. 2).

18 See the discussion of Peerless Plywood Company, 107 NLRB No. 106, pp. 64-66. 18 Sparkletts Drinking Water Corporation, 107 NLRB No. 293.

For other cases where the Board held that the Livingston doctrine precluded a finding that the employer unlawfully denied a union company facilities to reply to a preelection speech, see Cooper's, Inc. (of Georgia), 107 NLRB No. 206; Nationally Famous Mary Jane Shoes, Inc., 107 NLRB No. 284; Detergents, Inc., 107 NLRB No. 281.

necessary to maintain plant efficiency and order. Thus, nondiscriminatory rules limiting legitimate union activities to nonworking time were held lawful. And no violation of section 8 (a) (1) was found where an employer issued a notice during rival organizing campaigns forbidding "the future use of company facilities on working time" for organizational purposes.18 The Board pointed out that the purpose of the prohibition was to maintain the employer's neutrality, that the rule was not enforced in a discriminatory manner, and that the employer was not aware of any of the infractions which allegedly occurred.

But in another case an employer was enjoined from enforcing a rule prohibiting the distribution of union literature on its parking lot during nonworking time.19 The majority of the Board here adopted the trial examiner's conclusion that under established precedent 20 the ban on the distribution of literature unduly restricted the employees' organizational freedom because distribution on the company's property was virtually impossible, at times hazardous, and could not readily be conducted.21

The Board also had to consider the effect of the promulgation of a rule against solicitation on the employer's own right to address his employees in the matter of their organization. The question arose in the Livingston case 22 where the employer was charged with having violated section 8 (a) (1) by making an antiunion speech to its assembled employees in disregard of its rule against solicitation during working hours, and by denying the campaigning union's request for a similar opportunity to reply. Dismissing the complaint, a majority of the Board 23 held that the employer's limited no-solicitation rule being lawful "there was nothing improper in [the] employer refusing to grant the union a right equal to his own in his plant." However, the majority indicated that its ruling here was predicated on “the absence of either an unlawful broad no-solicitation rule (prohibiting union access to company premises on other than working time) or a privileged no-solicitation rule (broad, but not unlawful because of the character of the business)."

In one case the Board held that the employer who operated on a 24-hour basis did not unlawfully interfere with the organizing efforts

17 See for instance Livingston Shirt Corporation, 107 NLRB No. 109.

18 Universal Oil Products Co., 108 NLRB No. 19.

10 Monsanto Chemical Company, 108 NLRB No. 151.

20 The trial examiner relied primarily on the Supreme Court's holding in N. L. R. B. v. LeTourneau Company, 324 U. S. 793.

21 Member Beeson, dissenting, believed that the case did not come within the LeTourneau rule because, in his view, there was adequate opportunity to reach the employees off company property, and the use of company property here would result in interference with business operations and undue hardship to the employer.

22 Livingston Shirt Corporation, 107 NLRB No. 109. 23 Member Murdock dissenting.