Eastex, Inc. v. Nlrb, 437 U.S. 556 (1978)

Eastex, Inc. v. National Labor Relations Board

No. 77-453

Argued April 25, 1978
Decided June 22, 1978
437 U.S. 556

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

Employees of petitioner corporation sought to distribute a four-part union newsletter in nonworking areas of petitioner’s plant during nonworking time. The first and fourth sections urged employees to support the union and extolled union solidarity. The second section encouraged employees to write their legislators to oppose incorporation of the state "right-to-work" statute into a revised state constitution. The third section criticized a Presidential veto of an increase in the federal minimum wage and urged employees to register to vote to "defeat our enemies and elect our friends." After representatives of petitioner refused to permit the requested distribution, the union filed an unfair labor practice charge with the National Labor Relations Board (NLRB), alleging that petitioner’s refusal interfered with the employees’ exercise of their rights under § 7 of the National Labor Relations Act (Act), which provides that

[e]mployees shall have the right . . . to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ,

and thus violated § 8(a)(1). Following a hearing, at which petitioner contended that the second and third sections of the letter were not protected by § 7 because they did not relate to petitioner’s association with the union, the NLRB ordered petitioner to cease and desist from the violation, having determined that both those sections of the newsletter came within the ambit of § 7’s protection. The second section of the newsletter was held to be protected because union security is "central to the union concept of strength through solidarity" and "a mandatory subject of bargaining in other than right-to-work states," and the fact that Texas already has a "right-to-work" statute was held not to diminish employees’ interest in the matter. The third section was held to be protected even though petitioner’s employees were paid more than the vetoed minimum wage, on the ground that the "minimum wage inevitably influences wage levels derived from collective bargaining, even those far above the minimum," and that the petitioner’s employees’ concern "for the plight of other employees might gain support for them at some future time when they might have a dispute with their employer." The Court of Appeals enforced the NLRB’s order, rejecting petitioner’s contention that § 7’s "mutual aid or protection" clause protects only concerted activity by employees that is directed at conditions that their employer has the authority or power to change or control, and that the second and third sections of the newsletter did not constitute such activity. The court concluded that

whatever is reasonably related to the employees’ jobs or to their status or condition as employees in the plant may be the subject of such handouts as we treat of here, distributed on the plant premises in such a manner as not to interfere with the work . . . ,

and that the material in the newsletter met that test.

Held:

1. Distribution of the challenged second and third sections of the newsletter is protected under the "mutual aid or protection" clause of § 7. Pp. 563-570.

(a) The Act’s definition of "employee" in § 2(3) was intended to protect employees when they engage in otherwise proper concerted activities in support of employees of employers other than their own, and it has long been held that "mutual aid or protection" encompasses such activity. Pp. 564-565.

(b) Employees do not lose their protection under the "mutual aid or protection" clause when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship, and the NLRB did not err in holding that distribution of the challenged parts of the newsletter was for the purpose of "mutual aid or protection." Pp. 565-570.

2. The NLRB did not err in holding that petitioner’s employees may distribute the newsletter in nonworking areas of petitioner’s property during nonworking time. The fact that the distribution is to take place on petitioner’s property does not give rise to a countervailing interest that petitioner can assert outweighing the exercise of § 7 rights by its employees in that location. Under the circumstances of this case, the NLRB was not required to apply a rule different from the one it applied in Republic Aviation Corp. v. NLRB, 324 U.S. 793, to the effect that an employer may not prohibit his employees from distributing union literature (in that case, organizational material) in nonworking areas of industrial property during nonworking time, absent a showing by the employer that a ban is necessary to maintain plant discipline or production. Here, as in Republic Aviation, petitioner’s employees were "already rightfully on the employer’s property," so that in the context of this case it is the employer’s management interests, rather than its property interests that primarily are implicated. Petitioner, however, made no attempt to show that its management interests would be prejudiced by distribution of the sections to which it objected, and any incremental intrusion on its property rights from their distribution together with the other sections would be minimal. In addition, viewed in context, the distribution was closely tied to vital concerns of the Act. Pp. 570-576. 550 F.2d 198, affirmed.

POWELL, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 578. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 579.