(concurring).
I am of the opinion that the respondent is not guilty of an unfair labor practice within the meaning of Sec. 8(a)(1) of the Labor-Management Relations Act, as charged by the complaint, paragraph 10 thereof.
The Board found that the respondent had a rule prohibiting solicitation of employees for any purpose at any time within the store; that the store manager Shannon addressed groups of employees during working hours in the store in opposition to the Union; and that respondent refused to permit a Union representative to make an answering address to the employees during working hours in the store. It held that by that refusal, the respondent applied its rule prohibiting union activities on its premises in a discriminatory manner, thereby violating Sec. 8(a)(1) of the Act. Conceding the finding that respondent discriminatorily applied its rule prohibiting union activities on its premises to be correct, I do not think it follows that respondent thereby violated Sec. 8(a)(1) of the Act.
Despite some earlier views to the contrary, it now appears to be conceded by the Board that, in the absence of a rule prohibiting solicitation of employees on company property on other than working time, an employer does not commit an unfair labor practice if he makes a pre-election speech on company time and premises to his employees and denies the union’s request for an opportunity to reply. Livingston Shirt Corp., 107 N.L. R.B. 109, decided December 22, 1953, subsequent to the hearing in this case. This is the logical and necessary result of a careful consideration of the wording of Sec. 8(c) of the Act. As stated in the opinion in that case, “ * * * we find nothing in the statute which even hints at any Congressional intent to restrict an employer in the use of his own premises for the purpose of airing his. views. On the contrary, 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.” This is in accord with the views expressed by the Court of Appeals for the Second Circuit in Bonwit Teller, Inc. v. N. L. R. B., 197 F.2d 640, at page 646, wherein it said, “Nothing in the Act nor in reason compels such ‘an eye for an eye, a tooth for a tooth” result so long as the avenues of communication are kept open to both sides.” The same Court again recognized this *84rule in its later case of N. L. R. B. v. American Tube Bending Co., 205 F.2d 45, at page 46.
However, that Court held in the Bon-wit Teller case, one judge dissenting, which ruling was followed in the American Tube Bending Co. case, that the existence of a rule prohibiting solicitation of employees on other than working time changed the refusal by the company of the union’s request from an act that was valid into one that was an unfair labor practice. The Board asks us to follow that ruling.
Refusal to permit the Union to use the employer’s property during working time for union purposes, although used by the employer for anti-union purposes, may be discrimination against the Union, but I do not construe it as illegal discrimination prohibited by the Act. In any contest between management and labor, each side uses the facilities which are available to it, and nothing in the Act calls for a sharing of those facilities or resources with the other. As said by the Board in the Livingston Shirt Corp. case, supra; “ * * * we do not think one party must be so strangely open-hearted as to underwrite the campaign of the other. We reject the idea that the union has a statutory right to assemble and make campaign speeches to employees on the employer’s premises and at the employer’s expense. We see no real distinction in principle between this and admitting an employer to the union hall for the purpose of making an anti-union speech, a suggestion which our dissenting colleague would doubtless view with abhorrence. We believe that the equality of opportunity which the parties have a right to enjoy is that which comes from the lawful use of both the union and the employer of the customary fora and media available to each of , them. It is not to be reális-tically achieved by attempting, as was done iii Bonwit Teller, to make the facilities of the one available to the other.”
I do not think' the no-sólicitation rule in the present case changes this result. If the rule was a valid rule, it is difficult to construe the enforcement of it against the Union as an unfair labor practice. Clearly, it cannot be the enforcement of the rule against the Union that is objected to. In the Livingston Shirt Corp. case, supra, there was a rule prohibiting activities for or against any union during working hours. The non-observance of the rule by the employer and the refusal by the employer of the Union’s request for a similar use of the premises was held not to be an unfair labor practice. In N. L. R. B. v. American Tube Bending Co., supra, the Court conceded that if the no-solicitation rule had been limited to working hours, it would have been a valid rule and the refusal by the employer of the union’s request would not have been an unfair labor practice. Basically, it seems to me that the validity of the Board’s ruling rests upon the alleged invalidity of the rule, in that it prohibited any use of the employer’s property, even during non-working hours, the enforcement of which interfered with the employees’ right to engage in union activities. Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372; N. L. R. B. v. Lake Superior Lumber Co., 6 Cir., 167 F.2d 147. But in the present case, due to the nature of the business, such a rule which prohibits solicitation both during working hours and non-working hours is not invalid. May Department Stores Co., 59 N.L.R.B. 976. In addition, the act complained of dealt with working time only. That portion of the rule pertaining to non-working time was not involved and was not enforced. That portion of the rule which was enforced was a valid regulation. Whether that portion of the rule dealing with nonworking time is invalid, and whether an attempt by respondent to enforce it against the Union would constitute an unfair labor practice, presents an entirely different and separable controversy, to be properly determined in a separate proceeding when and if such an act occurs.
The Board, however, attempts to sustain its ruling on a different ground, *85namely, that the discriminatory enforcement of the rule against the Union, constituted a violation of Sec. 8(a) (1) of the Act. But Sec. 8(a)(1) does not so provide. It provides that it shall be an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7”, which are the rights of self-organization and related activities. Accordingly, discrimination against a union is not an unfair labor practice per se. Unless it unlawfully interferes with the employees’ rights or restrains or coerces them in the exercise of such rights, it is not illegal under Sec. 8(a)(1) of the Act. Certainly, it is not restraint or coercion in the usual and ordinary sense of the word for an employer to refuse permission to a union to use the employer’s premises during working hours for a union meeting of its employees, who would have to stop work in order to attend the meeting.
Nor do I think such a refusal by respondent interfered with the exercise by the employees of their rights under the Act as that word in the Act is properly interpreted. Clearly, interference on the part of the employer means something more than opposition to the union. The Act recognizes certain permissible anti-union activities, such as those included in Sec. 8(c). Any opposition to the Union or the expression of anti-union views constitutes interference with organizing activities of the Union in a certain sense of the word. But interference under the Act contemplates some sort of activity that prevents an employee from exercising the rights which are given to him by the Act, or those constitutional or common law rights which any individual has, employee or otherwise, such as the right of free speech, the right of assembly, the right to own and use property, the right to make contracts, and the right to be free from intimidation, assault, false imprisonment, and libel and slander. Neither the Constitution, the common law, nor the Labor Management Relations Act confers upon employees the right to use for union purposes the property of their employer during working hours, over the objections of the employer. Certain statutory exceptions to the general rule which recognizes the exclusive use by one of his own property, as are found in Republic Aviation Corp. v. N. L. R. B., supra, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, and N. L. R. B. v. Lake Superior Lumber Corp., supra, 6 Cir., 167 F.2d 147, deal with periods of time other than working time. I am of the opinion that the prohibition in the Act against interference by an employer with the rights of an employee cannot reasonably be construed as granting to employees the right to use their employer’s property during working hours for their own purposes over the objections of the employer.
Enforcement of the Board’s order should be denied.