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The Taft-Hartley Act does not command that labor organizations as a matter of abstract law, under all circumstances, be protected in the use of every possible means of reaching the minds of individual workers, nor that they are entitled to use a medium of communication simply because the employer is using it. No such mechanical answers will avail for the solution of this non-mechanical, complex problem in labor-management relations. If, by virtue of the location of a plant and of 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 National Labor Relations 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.
The question of employers' guilt of unfair labor practices, under 8(a) (1) of the amended National Labor Relations Act, as a consequence of their enforcement of rules preventing union solicitation, was involved in two cases. In No. 81, the employer had enforced the rule at a time when it was itself engaging in anti-union solicitation. In proceedings before the National Labor Relations Board, the Board dismissed the allegation that the employer had discriminatorily enforced its no-solicitation rule, but the United States Court of Appeals for the District of Columbia Circuit reversed, concluding that it was an unfair labor practice for the employer to prohibit distribution of organizational literature on company property during nonworking hours while the company was itself distributing anti-union literature. In No. 289, a no- solicitation rule had been enforced by an employer who was engaged in anti- union solicitation constituting a separate unfair labor practice; a Board order finding enforcement of the rule to have been an unfair labor practice was denied enforcement by the United States Court of Appeals for the Fifth Circuit, which found insufficient evidence of discrimination in the application of the rule.
Was it an unfair labor practice within the meaning of § 8 (a)(1) of the National Labor Relations Act, as amended, for an employer to enforce an otherwise valid rule forbidding employees to engage in pro-union solicitation during working hours or to distribute literature in the employer's plant, when the employer was engaging in anti-union solicitation and was committing other acts which constituted unfair labor practices?
The court found that there was no showing in either case that the no-solicitation rules truly diminished the ability of the unions to carry their messages to the employees and that without such a showing it could not find that the employer's behavior constituted an unfair labor practice.