holding that exhibition of anti-union film expressing negative opinion of past local unions and speculating that similar abuses might accompany future unionization was protected speech under § 8(c)
How later courts described this case
- holding that exhibition of anti-union film expressing negative opinion of past local unions and speculating that similar abuses might accompany future unionization was protected speech under § 8(c)
- benefit program announced the day following the election
Written by the judges who cited it.
The opinion
HAYS, Circuit Judge
(concurring in part, dissenting in part):
I concur in the opinion of Judge Kaufman with respect to points I and III but dissent from the majority’s determination that the showing of the film “And Women Must Weep” was not a violation of Section 8(a)(1) of the Act.
We are not called upon to decide whether the showing of this film would interfere with, restrain or coerce United States circuit judges. (See NLRB v. Golub Corporation, 388 F.2d 921 (2d Cir. 1967) (dissenting opinion)). The question is what effect the film would be likely to have on the employees of Luxuray. In answering this question this Court is required to give great weight to the expertise of the Labor Board. The Board is in a far better position than we are to judge what effect the film would have. “[A] reviewing court must recognize the Board’s competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship * •>:• NLRB v. Gissel Packing Co., 395 U.S. 575, 620 , 89 S.Ct. 1918, 1943 , 23 L.Ed.2d 547 (1969).
Gissel holds that despite the protection of Section 8(c), the Board can properly find that an employer has committed an unfair labor practice, not only if he makes overt threats, but also if he makes a “prediction” with respect to the effect of the actions of a third party when the prediction is not “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control * * Id. at 618 , 89 S.Ct. at 1942 . As the First Circuit has recently said, Gissel deals with the situation where “consequences not within the control of the employer might be described as probable or likely, when in fact there was no objective evidence of any such likelihood. This would not be a retaliatory threat, but it would be an improper threat nonetheless.” NLRB v. C. J. Pearson Co., 420 F.2d 695 (1st Cir. 1969). “And Women Must Weep” does not deal with “objective fact” or “demonstrably probable consequences.” It contains grossly melodramatic distortions which the employer not only did not attempt to verify, but which he magnified by telling the employees that the incidents pictured in the film were “actually true” and that what “happened in that *122 movie could happen to us people, our community, our friends.”
The Board seems to me to have been acting well within its powers when it found that by showing this film to a captive audience of people who were economically dependent on the employer and who had a “necessary tendency * * * to pick up intended implications of the [employer] that might be more readily dismissed by a more disinterested ear,” NLRB v. Gissel Packing Co., supra, 395 U.S. at 617 , 89 S.Ct. at 1942 , the employer was in fact communicating a threat of retaliatory action. The Board’s view that the film, in the employer-employee context, implies that the company will by its behavior, act in a way that will bring about the type of confrontation depicted there, is by no means so unsupportable as to justify setting aside the Board’s order.
An employer can easily avoid committing this type of unfair labor practice. All he has to do is to “avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees.” NLRB v. Gissel Packing Co., supra at 620, 89 S.Ct. at 1943 .
I would enforce the Board’s order in full.