Warren E. Burger: We’ll resume arguments in number 72-1637. Mr. McPherson, I think you have about 22 minutes remaining.
George K. McPherson, Jr.: Thank you Mr. Chief Justice and may it please the Court. Yesterday, general counsel attempted to categorize or characterize the right to strike as being different from other Section 7 rights guaranteed under the National Labor Relations Act. I frankly don’t think that Section 7 either graduates or categorizes any of the rights under Section 7 into separate categories or characterizations. I do know, however, that the right to strike is dealt with specifically by the National Labor Relations Act whereas the right to distribute literature is not. There is no provision in the Act that per se gives and fully leaves the right to distribute literature on company property. It is a right that has arisen inferentially as a means of communication to effectuate Section 7 rights. As a means of communication, it is therefore, not so unique or not so fundamental that it cannot under certain circumstances be waived. And as I mentioned yesterday on the point of fair representation, the Court’s holding in the Mastro case was based upon the premise of fair representation. That fair representation theory, I think, should extend to the collective bargaining process. And in this case, particularly when you are looking at the fundamental purpose of the Act, being to foster collective bargaining or the principle of freedom of contract. Where you have freedom of contract and collective bargaining being engaged in, that process should go without being interfered in, except where absolutely necessary. I think the Court stated the concern that it would have with undue interference into the collective bargaining process when they talked about conflicting rights in Babcock & Wilcox. There, the Court was faced with distribution rights of non-employees as opposed to property rights of employers. In that particular case, this Court held that where there was no necessary conflict, there should not be an abridgment of either right. I think that is particularly true in the type of case we have here where we have freedom of contract on one hand versus a means of communication on the other which would lead me into this Court’s decision in Nutone, the steelworkers’ case. There, the Court was faced with whether or not employers could utilize a means of communication which they prohibited employees from using. And in that case, stated that unions and employees are not guaranteed every means of communication simply because the employer may utilize it. But that whether or not an unfair labor practice is committed, whether or not no distribution or no solicitation rules should be invalidated is dependent upon the circumstances of the particular case. The Court noted in Nutone that there was no showing just as in this instant case of any undue influence or interference with the employees’ ability to communicate with one another. It also stated to the Board that alternate means of communication was highly relevant to a consideration as to whether distribution or solicitation rule should be invalidated, and stated that since that issue was not presented to the Board and no evidence taken on it, the employer’s conduct could not be found wanting. That basically is what I think the respondent’s position is in this case. We do not argue as the Supreme Court pointed out in the Nutone case that under every factual situation or under every circumstance it may arise there may not be an unfair labor practice committed. What we do say is that the Board should not presume away the freedom of contract of the parties, but should rather look to see if there has in fact been an interference with the communication rights that employees may have under Section 7, and that was not done here. No analysis was made whatsoever of the alternatives available to employees. Had there been, they would have seen that the evidence on the record clearly established the fact that for 16 years, the union and employees had effectively distributed literature at company gates, that the employees had the right of free discussion and free solicitation on company property which brings with it the right to sign union cards or to sign petitions, to decertify or to start to the decertification proceeding.
Byron R. White: But that's the contract provision that there is a rule against distribution of company property on -- at nonworking time where challenged on its bottom, it wouldn’t stand, would it?
George K. McPherson, Jr.: Mr. Justice White, if it had not been bilaterally agreed to, we would fall within the Republic Aviation Theory.
Byron R. White: Yes, yes.
George K. McPherson, Jr.: That is correct.
Byron R. White: So that you must rest on the contract?
George K. McPherson, Jr.: That is correct.
Byron R. White: And I suppose, the contract provision is in itself in part invalid. I mean, it is unforeseeable in the sense that it purports to permit the company to waive the rights if they have any of some other union?
George K. McPherson, Jr.: I don’t think I would agree with that statement. I think the -- I think again --
Byron R. White: Well, doesn’t your rule purport to bar the distribution of literature by anybody?
George K. McPherson, Jr.: By anyone. It would apply equally to the incumbent as to another labor union --
Byron R. White: Well then, how about a non-incumbent union distributing union literature -- anti-union literature or anti-incumbent literature on company property at nonworking time?
George K. McPherson, Jr.: They would not be permitted to do so.
Byron R. White: Under your rule?
George K. McPherson, Jr.: Under the rule. Under the contract waiver.
Byron R. White: Well, under the contract, but what if the union -- let’s say the union, the non-incumbent union has a spy or has some friends among the working force and they are distributing its literature on company property in nonworking time?
George K. McPherson, Jr.: Well, there would be no distribution of literature allowed on company property.
Byron R. White: But I thought it -- isn’t that an unfair labor practice?
George K. McPherson, Jr.: Under Republic Aviation, that rule would not be valid unless special circumstances --
Byron R. White: So that you couldn’t enforce it. Again, you couldn’t enforce that as the non-incumbent union could have you on the carpet for an unfair labor practice?
George K. McPherson, Jr.: I think either could have us on the carpet on an unfair labor practice if there were not the waiver that’s really involved.
Byron R. White: So that's really the -- well, the waiver is inoperative with respect to other union?
George K. McPherson, Jr.: We do not contend that the waiver is inoperative as respect to other unions.
Byron R. White: Well, you mean the waiver -- it still binds the incumbent union?
George K. McPherson, Jr.: We think that the waiver should be binded against all employees.
Byron R. White: The only thing is it just doesn’t give you any right to exclude the non-incumbent union?
George K. McPherson, Jr.: No, it does. The waiver is only --
Byron R. White: Well, it isn’t illegally effective right?
George K. McPherson, Jr.: Well, that, I think is one of the issues that this Court has to face that the waiver, I mean, the rule -- the rule was in effect against all employees for distribution of literature of any kind on company property. That was what had been waived by the union. That would apply to any employee who is going to distribute regardless of what the cause.
Byron R. White: Well, what would the union say -- what would the union say if they -- if they thought they were -- if they were willing to agree to a company rule that excluded everybody? All unions from --
George K. McPherson, Jr.: That’s what this rule is.
Byron R. White: Yes. But they suddenly found out that the company’s rule against non-incumbent union wasn’t enforceable?
George K. McPherson, Jr.: Well, again I think that may be what we come up with here if you go the route of Gale Products. Now, Gale Products split employees into two groups.
Byron R. White: Well, let’s assume -- now, let’s assume Gale Products is still good law or it is good law, just assume that it is good law then the company’s rule against the non-incumbent is not enforceable?
George K. McPherson, Jr.: That’s correct.
Byron R. White: And the union didn’t get what it thought it was bargaining for perhaps?
George K. McPherson, Jr.: Well, of course, Gale Products was the status of the law at the time the bargain was struck and was the status of the law until the time of this decision and I would assume that the parties would be presumed to know their rights and the law at the time they’re sitting at the bargaining table.
Byron R. White: And that was in the Gale, was it ’54, 1954?
George K. McPherson, Jr.: Gale was in 1963.
Byron R. White: And -- but you say for 16 years they’ve --
George K. McPherson, Jr.: The first contract was struck in 1955.
Byron R. White: When there was a -- when before Gale --
George K. McPherson, Jr.: Before Gale and at that time we would have been under May Department Store.
Byron R. White: Yes. Thank you.
Harry A. Blackmun: And of course your position clearly would apply to the dissident member of your union?
George K. McPherson, Jr.: That would be. That is our interpretation of the rule. That is correct.
Harry A. Blackmun: So that in effect you have called his mouth or his dissident views?
George K. McPherson, Jr.: I disagree with that analogy of the situation Mr. Justice Blackmun for the reason that we do have full and complete solicitation rights and discussion rights on company property.
Speaker: Unless we --
George K. McPherson, Jr.: I disagree with that also from the standpoint of the fact that for 16 years, the history has shown that the employees have been able to effectively distribute literature at plant entrances and exits. And this, it would seem to me would -- it is what the Board has recognized in Stoddard-Quirk. In Stoddard-Quirk, they talk about the discussion between or the distinction between oral solicitation or discussion and a written communication and state in Stoddard-Quirk that a written communication is meant to be of a permanent nature to be read and re-read at the leisure of the recipient and its purpose is satisfied so long as it is received. That even go on to recognize and state in their decision in Stoddard-Quirk that plant entrances and exits are in fact an effective means of distributing this literature. So, I do not feel that the dissidents’ right to voice their opposition to the incumbent union is in any way impaired in this situation. What we have here really is full discussion by anyone on any subject that they want within the plant facility, including the ability to pass out union authorization cards and get them signed or a petition to decertify, as well as the ability to effectively pass out literature of whatever nature they may want at the plant gate.
Harry A. Blackmun: I am interested in the fact you cited the Machinists case and the Board, but you didn’t cite its non-enforcement order in the Eighth Circuit. Do you regard the Machinists case as authority contrary to your position here?
George K. McPherson, Jr.: I do not believe that the Machinists case is totally contrary to the position that we have here.
Harry A. Blackmun: The facts are somewhat different --
George K. McPherson, Jr.: The facts are considerably different in that case and the Court there as you will well recall discussed or took the position that there could not be a total waiver of rights in this type of a situation. Additionally, the Court refused and so noted in its opinion to pass on the question of whether or not distribution of literature could be waived at a time when the bargaining agent could not be changed, which I think throws it into a somewhat different category than what we are really faced here. But I think the Eighth Circuit is generally tending to go in the direction of the Fifth Circuit which I think really has a fear that the union will not protect employee rights when there can be a distinction between the union’s rights and the employee’s rights. That gets me back to my fair representation premise that I think we must work off of in a collective bargaining context.
Byron R. White: Can I ask you one other thing? We’ve talked about whether some right is waivable or not but it might be that the right would be waivable, statutorily it would be waivable, but it has to -- it can’t be waived by the bargaining agent. What is the function and purpose of the bargaining agent, an incumbent anyway? I suppose you could say that the right would be waivable by union members or by the personal rights, but that the authority to bargaining agent just wouldn’t reach the waiving the rights of somebody else?
George K. McPherson, Jr.: Well, I would think that the bargaining agent being chosen as the duly certified representative of the employees to a duly conducted election by the National Labor Relations Board, the employee has chosen him as his bargaining representative. In other words, he has the alter ego for the employee.
William J. Brennan, Jr.: Of course, the dissenter at trail.
George K. McPherson, Jr.: Well, Mr. Justice Brennan, I think that in any case, the majority must rule.
William J. Brennan, Jr.: Well, what you’re saying really is that once the majority chooses then the chosen representative may waive the rights for all dissenters and those supporters of --
George K. McPherson, Jr.: That is correct. That would be our position. So long as --
William J. Brennan, Jr.: And what happens to Republic Aviation and to Gale if we agree with you about that?
George K. McPherson, Jr.: Well, I think Gale Products would definitely be overruled, but of course, the Board itself is deviating from Gale Products. But Republic Aviation to me would not be touched.
William J. Brennan, Jr.: Why not?
George K. McPherson, Jr.: Because of the bilateral nature and freedom of contract concept as opposed to --
William J. Brennan, Jr.: Because I gather of your basic premise of bargaining agent can waive for everybody?
George K. McPherson, Jr.: That is correct. And it’s his primary duty to protect the rights of his employees.
William J. Brennan, Jr.: I suppose that’s really what we have to decide in this case, isn't it?
George K. McPherson, Jr.: I think that is one of the major considerations that has to be given in this.
Potter Stewart: Well, that’s certainly true in many other areas, he can waive -- the bargaining agent can waive the right to strike for everybody.
George K. McPherson, Jr.: That is correct. Even though some of those may not want to stay --
Potter Stewart: May not want to and certainly, that’s the whole structure and premise hypothesis upon which the framework of the act is based, isn’t it? It's majority rule.
George K. McPherson, Jr.: That is absolutely correct in my opinion Mr. Justice Stewart and I would also point out that this waiver as was pointed out by this Court in Mastro should be given effect so long as the selection remains free. And what we are really asking for is for a determination for the Board to make a determination and not a presumption as to whether or not there has been an interference with that selection. Now, if freedom to select a bargaining representative were dependent entirely upon the rights of employees to distribute literature then surely we would not have the Nutone case, surely, we would not have the Republic Aviation or Babcock & Wilcox. So, what we’re asking for is really what I think the Court was looking for in Nutone when they said, “look at the case and make a determination.” My whole point basically is that freedom of contract under the National Labor Relations Act, being one of its primary purposes, is simply too fundamental to that Act to be presumed away as was done here. And as I stated, I don’t say that in every circumstance we will not have an unfair labor practice.
William J. Brennan, Jr.: Well, I take it though, if -- I think you said earlier, basically, there’s a conflict here between two policies in the Act.
George K. McPherson, Jr.: That is correct.
William J. Brennan, Jr.: Right. And ordinarily, I gather or I think that’s what we held in the many cases, did we not, conflicts of this kind are for the Board to resolve, didn’t we?
George K. McPherson, Jr.: I --
William J. Brennan, Jr.: That's what we held, the general preposition --
George K. McPherson, Jr.: -- would say conflicts of this kind is for the Board to resolve so long as they fulfill their duty in looking at the facts necessary to resolve that question.
William J. Brennan, Jr.: But I mean -- but that’s a general premise, isn’t’ it? Where the conflicts between different policies and the act, we expect the Board in the first instance to resolve them?
George K. McPherson, Jr.: We expect the Board to resolve them, but we expect them --
William J. Brennan, Jr.: And then -- then what’s the scope of our review of the resolution?
George K. McPherson, Jr.: I think the scope of the review would be basically the same scope of review that this Court exercised in Babcock & Wilcox, and Nutone and that is whether or not the Board fulfilled its role in that regard by looking at the relevant factors to make that determination. Now, one other point --
William J. Brennan, Jr.: Does that amount to saying that we look for to see whether that was an error of law?
George K. McPherson, Jr.: I would -- I would not quite categorize it in that -- in that term.
William J. Brennan, Jr.: It’s a broader review?
George K. McPherson, Jr.: Yes, sir, Now, I would say this. One other point, I think is of concern in this case is the Board in overruling its decision in Gale Products has gone farther in formulating its remedy than it has ever gone before in this area and much farther than it went in the Fifth Circuit or the Eighth Circuit. In those circuits which the Board relies on as supporting their proposition, the remedy there was limited to distribution or solicitation on behalf of any other labor organization other than the incumbent or distribution or solicitation against any labor organization. Now, here, they have also gone that step, but they have added the additional step of throwing in all other Section 7 rights, regardless of whether you have the potential split between employee interest and the incumbent union’s interest as seems to be feared by the Fifth Circuit in Mid-States. In other words, under the Board’s remedy as they have fashioned it in this case, it would apply to a handout announcing a union meeting. It would apply to a reminder to pay union dues. It would apply to an announcement of the filing of a grievance.
Byron R. White: Can I ask you? Does an incumbent union have some rights independent of the people in the bargaining unit with respect with distribution of literature? It may be one thing to say that the incumbent union can waive the rights of the people of the union, but if the union -- if an outside union has rights to the throne?
George K. McPherson, Jr.: Mr. Justice White, I would say that if -- if the union can waive some rights of employees, certainly, they should be able to waive their own rights. And as has been pointed out --
Byron R. White: Oh! That's (Voice Overlap) the rights of an outside union?
George K. McPherson, Jr.: Are you talking about the incumbent or the outside?
Byron R. White: The outside union.
George K. McPherson, Jr.: The outside union have the rights I would say as defined in the area of solicitation and distribution as defined by this Court in Babcock & Wilcox.
Byron R. White: Well, there shouldn’t be any power in the incumbent union to waive those rights?
George K. McPherson, Jr.: Oh! No, sir. And there has been no diminishment in the outside unions right because under Bab --
Byron R. White: Your rule, your rule supports to bar that too?
George K. McPherson, Jr.: It bars them from -- on property distri -- employees from on property distribution.
Byron R. White: And you don’t bar outside union?
George K. McPherson, Jr.: Oh! Outsiders would fall under the Babcock & Wilcox rule which says that they may, under any circumstances be barred to off of company property for distribution and solicitation.
William H. Rehnquist: At least, you can’t bar them under your waiver theory?
George K. McPherson, Jr.: Yes, we could bar them under our waiver theory.
William H. Rehnquist: No, I would think not. If the theory of your waiver is that the incumbent union and the employees have consented by virtue of a contract that’s well and good for them, but for -- for a non-employee, soliciting for another union, maybe, you can bar them under Babcock & Wilcox, but you can’t bar them under your waiver theory?
George K. McPherson, Jr.: Well, there would be no -- I don’t think you’d really face that question out of the waiver because of the Babcock & Wilcox.
Warren E. Burger: When you bar them because they’re strangers to the plant and strangers to the entire relationship, that is not so?
George K. McPherson, Jr.: That is correct, Mr. Chief Justice which is the reason for Babcock & Wilcox. But if this Court should decide that the presumption of the Fifth Circuit in Mid-States is a very real fear that the union will not fairly represent employees in this type of context, I would hope that this Court would take a very serious look at the remedy that it has purported to follow which is far in access of the Fifth Circuit and Eighth Circuit's holding. Thank you Mr. Chief Justice.
Warren E. Burger: Thank you Mr. McPherson. Thank you gentlemen. The case is submitted.