(dissenting) .
There is no issue of freedom of speech in this case. The employer has every right to make known to his employees his views on unionization. The National Labor Relations Board candidly states in its brief that Congress, in enacting Section 8(c) of the Act, was concerned with protecting the right of the employer to make known his views on unionization. But in order to enable a representative • of organized workers to have also a fair chance to unionize a plant, the courts have invariably held, in the many cases involving differing circumstances, that an employer who excluded a union representative from the plant property while he, himself, was campaigning against the union, was unfair. The issue in this case is not whether the employer had the right to express his views against the union. It is conceded that he had that right and that he was entitled to make the speeches against the union which he made. Here the question is whether it is unfair for an employer to carry on a campaign against the union and make speeches to his employees during working hours, and, at the same time, to exclude a union representative *86from the premises during or after working hours or at any other time, and refuse the right to solicit support for union organization. In brief, the question before us is not one of freedom of speech,but whether the use of certain campaigning methods is unfair.
It is stated in the declaration of policy of Congress, set forth in the Taft-Hartley Act, that “The denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest”;' that the “inequality of bargaining power bétween employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate-or other forms of ownership association * * * tends to aggravate recurrent business depressions” ; and that it is, the policy of Congress to encourage “the practice and procedure of collective bargaining and * * * .protecting the exercise by workers of full freedom of * * * self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment”. Title 29 U.S.C.A. § 151. This statement by Congress of the policy of the law is set forth to guide the courts in labor cases. In the light of this statement of the policy of Congress, I am of the opinion that the action of an employer. in using his premises to make speeches to his employees during working hours and to carry on a sustained campaign against union organization, while, at the same time, forbidding a representative of organized employees the right to solicit or speak on the.premises where the employees work, before, during, or after working hours, is unfair; and that it constitutes an unfair labor practice. I do not see that the fact that there may be a union hall several blocks, or several miles, away from the employer’s premises makes any difference. It is a substantial hardship on employees, after their day’s work, to oblige them to go to a union hall to hear the answer to their employer’s arguments aSj to. .union- organization. This burden upon- employees discourages, rather than encourages, employee organization, and as such, is an obstruction to carrying out’ the objectives of . the statute. For,, as Said in the declaration of policy of the Taft-Hartley Act: “Experience has, proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce, from .injury, * * * , and promotes, the flow of commerce * * * by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to, wages, hours, or other working condL tions, and by. restoring equality of bargaining povyer between employers and employees.” •
Because of the'-explicit statement of the policy of Congress, -set forth in the Taft-Hartley Act, and in accordance with what; in my opinion, has:heretoforebeen the view of eminent authorities in ■ the uniform and repeated decisions of the courts, I am of the .view .that the Board should be sustained..
In submitting this opinion!, it ■ seems proper to present 'the following factual background.
The F. W. Woolworth Company, respondent, is a retail store with it's place of business in Springfield, Ohio.
.. On September 10, 1951, the, Retail Clerks. International Association, AFL, hereinafter called the union, having theretofore commenced a campaign foy; the organization of respondent’s em-r ployees into the union, filed a petition with the National Labor Relations Board requesting certification as the bargaining representative of respondent’s employees. Subsequently, in due course, the Board directed that an election be held among the employees to determine whether they desired to be represented by the union; and, after an informal pre-election conference, the election was scheduled to be held on January 19, 1952.
Respondent company, during the period here involved, had in effect a rule, *87which it enforced, prohibiting all solicitations of employees, at all times, on the premises of the company; and such prohibition included solicitations to join labor unions.
On January 9, 1952, Harold Shannon, the manager of the store, made two speeches to respondent’s employees, and on January 12, Mr. Shannon made another speech to the employees, in all of which he urged them to reject the union in the forthcoming election.
It was found by the trial examiner that these speeches of Mr. Shannon were within the protection of the “freedom of speech provisions” of Section 8(c) of the National Labor Relations Act as amended, 61 Stat. 136, 29 U.S.C.A. §§ 151 et seq., providing that the expression of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, by án employer or a representative of the employer, should not constitute or be evidence of an unfair labor practice under ány provisions of the Act if such expression contains no threat of reprisal or force or promise of benefit. This finding of the trial examiner was affirmed by the Board; and it is conceded that the expression of views in the speeches in question did not constitute an unfair labor practice.
However, Donald A. Filmer, the union’s representative, upon being informed of the meetings and speeches, asked Mr. Shannon that he be allowed a similar opportunity to address the employees. The speeches of Mr. Shannon had been made on company time — during working hours for which time the employees were paid — and, as remarked above, on the premises of the company. Mr. Shannon refused the request of Mr. Filmer. It is admitted that the company, in this instance, as always, enforced its “no-solicitation” rule, and would not permit representatives of the union to solicit its employees on company property.
On the basis of the foregoing facts, the Board concluded that respondent’s pre-election conduct violated Section 8 (a) (1) of the Act, which sets forth that it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their rights to self-organization and to bargain collectively through representatives of their own choosing. The conduct which the Board specifically found violated the Act consisted of the company’s refusal to permit the union to address its employees in the same manner as its manager had addressed them, while, at the same time, it enforced its rule prohibiting union representatives from soliciting its employees on company premises. This, the Board found, was a discriminatory application of the company’s rule against solicitation, and amounted to interference with the employees’ rights to the selection of a collective bargaining representative of their own choosing.
Many labor cases involving “no-solicitation” rules have been before the courts for adjudication, and such rules have been found non-discriminatory, or discriminatory, according to the varying circumstances of each case. Thus, an employer may not so apply a no-solicitation rule as to preclude solicitation by one union while permitting solicitation by others; Industrial Ass’n of Machinists v. National Labor Relations Board, 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50; and where a steamship company had issued passes to its ships to the representatives of one union and refused them to another, pending a representative election, it was held that this conduct amounted to an unlawful interference with the employees’ rights to self-organization and to collective bargaining through a representative of their own choosing. National Labor Relations Board v. Waterman S. S. Corp., 309 U. S. 206, 60 S.Ct. 493, 84 L.Ed. 704. See also National Labor Relations Board v. Bersted Mfg. Co., 6 Cir., 124 F.2d 409. On the other hand, under normal conditions, solicitation may be properly limited to the employees’ non-working time, although even in these cases, such a reasonable rule may be administered in an arbitrary and discriminatory manner. *88National Labor Relations Board v. Pey-ton Packing Co., 5 Cir., 142 F.2d 1009. Normally, an employer cannot forbid union solicitation on company property during non-working time, even where there is no showing that solicitation away from the plant would be ineffective. Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. In National Labor Relations Board v. American Furnace Co., 7 Cir., 158 F.2d 376, 380, where a company had permitted certain persons to distribute, upon its premises, anti-union literature, pending a representative election, and denied the same right to distribute literature of the union, at. relatively the same time and spot, the court, in an opinion by Judge (now Mr. Justice) Minton, held that this was an unlawfully discriminatory act, and that, aside from discrimination, “an employer may not prohibit employees from distributing union literature upon his premises during non-working hours except under exceptional circumstances which are not shown in this case.” In department stores, a rule prohibiting union discussion and solicitation, at all times, on the selling floors, has been held to be reasonable, in view of the presence of customers at such places, yet, at the same time, such a rule prohibiting union solicitation off the selling floors during non-working hours has been held invalid. National Labor Relations Board v. May Department Stores Co., 8 Cir., 154 F.2d 533.
In Bonwit Teller, Inc. v. National Labor Relations Board, 2 Cir., 197 F.2d 640, 645, it appeared that the Board, apparently because of considerations mentioned in the May case, supra, having authorized a practice of allowing retail department stores the privilege of prohibiting all solicitation within the selling areas of the stores during both working and non-working hours, Bonwit Teller, a retail department store, availed itself of that privilege. However, during the pendency of an election to determine a bargaining representative for its employees, the president of the company addressed the employees on several different occasions in speeches in which he strongly urged them to vote against a union at an approaching representative election, while, at the same time, he refused a union representative a similar right to address the employees. The court declared that the speeches in question did not, in themselves, constitute an unfair labor practice; but that, since the employer had chosen to avail itself of the privilege of refusing to permit the union to solicit on its property during nonworking hours, it was required to .abstain from campaigning against the union, at the store. The court, accordingly, held that it was an unfair labor practice, within the meaning of the National Labor Relations Act, as amended by the Taft-Hartley Act, for the president of the employer to make an anti-union speech in the store during nonworking hours and then deny a union official the right to speak to the employees in the store during non-working hours. In speaking for the court, Judge Augustus Hand, referring to the company’s availing itself of the privilege of prohibiting all solicitation on its premises, said: “Bonwit Teller chose to avail itself of that privilege and, having done so, was in our opinion required to abstain from campaigning against the Union on the same premises to which the Union was denied access; if it should be otherwise, the practical advantage to the employer who was opposed to unionization would constitute a serious interference with the right of his employees to organize.”
The Bonwit Teller case was followed, in the Second Circuit, by National Labor Relations Board v. American Tube Bending Co., 205 F.2d 45, 46, involving an employer and the employees of an industrial plant in which a rule was enforced prohibiting any solicitation of the employees during working or non-working hours. Pending the holding of a representative election, the president of the company addressed the employees in an effort to persuade them that it was not in their interest to organize as a union, and ig*89nored requests of a union representative that he also be given the opportunity to address the employees. In holding that the Bonwit Teller case ruled the case at bar, Judge Learned Hand, speaking for the court, declared that “since the respondent refused to allow any solicitation on the premises during non-working hours, that was in itself an unfair labor practice, for it did not operate a retail store [which was of the class of businesses authorized, by the Board, to prohibit solicitation]; and it was an added unfair practice for it to address the employees, while such a rule was in force.” It is contended by the respondent that the order of the National Labor Relations Board defeated the intent of Congress which, in Section 8(c) of the Act, insured to employers, as well as to labor organizations, full freedom to express their views to employees on labor matters; and respondent submits that such freedom cannot be restricted by a provision circumscribing the time and place for the dissemination of such views. But the freedom of speech insured by the Act to employers is not here questioned. It was found by the Board that the employer had the right to express its views in the speeches which its president delivered. No unfair labor practice was based on any such expressions of opinion by the employer, for it is conceded that they did not constitute an unfair labor practice, and the employer had every right, under the law, to communicate its views by such speeches to the employees. The unfair labor practice upon which the Board’s order was based was the making of such speeches while, at the same time, enforcing a rule prohibiting the solicitation of its employees on its premises at any time by union representatives. It is true that the National Labor Relations Act did not specifically make such conduct an unfair labor practice. As said in Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 798, 65 S.Ct. 982, 985, 89 L.Ed. 1372: “The Wagner Act did not undertake the impossible task of specifying in precise and unmistakable language each incident which would constitute an unfair labor practice. On the contrary that Act left to the Board the work of applying the Act’s general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms. Thus a ‘rigid scheme of remedies’ is avoided and administrative flexibility within appropriate statutory limitations obtained to accomplish the dominant purpose of the legislation. * * * So far as we are here concerned that purpose is the right of employees to organize for mutual aid without employer interference. This is the principle of labor relations which the Board is to foster.” It was the making of speeches by the employer against the union on the company premises, while at the same time prohibiting union representatives from soliciting the employees, which the Board found was an unfair labor practice, and which, in the language of Judge Augustus Hand, in the Bonwit Teller case, constituted a serious interference with the rights of the employees to organize.
Respondent argues that an individual property owner has the right to regulate his own private property so as to exclude therefrom such persons as he may desire to have excluded. In National Labor Relations Board v. Lake Superior Lumber Corp., 6 Cir., 167 F.2d 147, 151, this court, in considering a similar contention, referred to the language of the Supreme Court in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, to the following effect: “ ‘We do not agree that the corporation’s property interests settle the question. * * * Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.’ ” And the court went on to observe that the right of access to the employer’s property, under reasonable regulations, for the purpose of exercising the rights guaranteed by the National Labor Relations Act, had been *90recognized and enforced, both in this circuit, and in other circuits. Moreover, it also pointed out, as the Supreme Court observed in Republic Aviation Corp. v. National Labor Relations Board, supra, that conditions may make it necessary to work out “an adjustment between the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee. Opportunity to organize and proper discipline are both essential elements in a balanced society.” 324 U.S. at page 797, 65 S.Ct. at page 985.
Thus, in National Labor Relations Board v. Lake Superior Lumber Corp., supra, this court emphasized that, as stated by the Supreme Court in Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, the Act included the right of the employees to freely discuss and be informed concerning their collective bargaining rights, and the correlative right of the union to discuss with and inform them concerning the matters involved; and, accordingly, the court held that union organizers had the right to visit employees on property of the employer under reasonable regulations where the circumstances were such that union organization must proceed upon the employer’s premises or be seriously handicapped.
The Taft-Hartley Act, amendatory of the National Labor Relations Act, declares it to be the policy of the United States to encourage the practice of collective bargaining and to protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing. Title 29 U.S.C.A. § 151. In the foregoing, the Taft-Hartley Act does not alter the original Act. As Mr. Chief Justice Hughes said in Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6; the above mentioned remedial purposes of the Act are quite clear.
As remarked in the Bonwit Teller case, the place of work has been recognized to be the most effective place for the communication of information and opinion concerning unionization. There is no reason to doubt the statement that: “Union meetings to organize employees tired from their day’s work and faced with added travel are usually poorly attended. Comprehensive individual solicitation off the premises is rarely achieved because of cost, time, and difficulty of locating workers at home. And campaigning by individual employee-organizers on a catch-as-can basis in the plant, even when not precluded by no-solicitation rules, hardly substitutes for the systematic arguments that can be presented at a mass meeting on working time.” 61 Yale L.J. 1074-1076.
In the case at bar, respondent enforced .a rule prohibiting all solicitation of employees at all times on and throughout its property and premises, which it was privileged to do, by the authorization of the National Labor Relations Board, on account of the nature of its business which was a department store. Because of the enforcement by. the employer of this rule prohibiting all solicitation of its employees at all times, while, at the same time, it campaigned on its premises by speeches to its employees urging them to reject the union, we are of the opinion that these actions were a serious obstruction to carrying out the policy of Congress to encourage the practice of collective bargaining, and to protect the exercise by workers of full freedom in selecting representatives of their own choosing; and that such conduct constituted an unfair labor practice.
Respondent refers to the legislative history of the Taft-Hartley Act as disclosing that the order of the Board holding the action of respondent to constitute an unfair labor practice was contrary to what' Congress intended in its enactment of the “freedom of speech” provision. There is, in pur view, nothing to indicate that the Board’s interpretation, of Sec-*91tión 8(c) defeated the Congressional intent, as manifested therein, or in the legislative history. The holding of the Board is in conformity with the adjudications of the courts in the past, notably in the Bonwit Teller case; and Congress has manifested no disapproval of such conclusions or any intent to avoid or change the results of such holdings.
As stated by Judge Miller in his concurring opinion, it seems now 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. It is said that, in the instant case, the portion of the company’s rule pertaining to non-working time was not involved, and was not enforced, and that the question whether an attempt by respondent to enforce it 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. But it would clearly appear that the portion of the company’s rule pertaining to non-working hours was involved and was enforced in this case, and that the determination whether the enforcement of such portion of the rule constitutes an unfair labor practice is properly before us now and calls for determination in this proceeding. For it is stipulated “That at all times material to the events involved in the above-captioned matter and for some period of time previous thereto, Respondent enforced a; rule prohibiting all solicitations of employees at all times on and throughout its property and premises.” This is the portion of the rule which I believe to be invalid, under the decision of the Board in the Livingston Shirt Corp. case and under the authority of National Labor Relations Board v. American Tube Bending Co., 2 Cir., 205 F.2d 45, discussed in the concurring opinion.
In accordance with the foregoing, it is my view that a decree should be entered enforcing the order of the National Labor Relations Board.