Amicus Curiae Brief — National Labor Relations Board v. Gissel Packing Co.

Supreme Court brief1969

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Text

ages oe . INDEX’

‘Section 9(c): ......--..6, 1, 8, 9,10, 11, 12, 13, 14, 15, 20, 21

' Section 9(e) ° > ie

NLRB Statements of’ Procedure, 29 CFR. § 20217

(1946) | 10

NLRB Statements of Procedure, 29 C.F.R. g 102. o ..'.:

“ (1961). mt 18

| MiscELLANEOUS 7

' Bok, The Reguiition of Campaign Tactics in aang

' . tation Elections under the National Labor Relations

Act, 78 Harv. L. Rev. 38 . 41

~ Comment, Union Authorization — 15. ‘Yale L. J.

805 .. , : ; 12, 15, 19

Form NLRB—707 a 18

- Gordon, Union. Authorization Cards and the Duty aa

Bargain, 67 LRR 155 : 26

H. heaters No. 245 on ELR. 3020, _— Cong.. ist Sess. sie

- 12, 14, 35, 36

Legislative History of ti the National Labor Relations Act

(NLRB Ed. 1935 etd 10.

' Lesnick, Establish of Bargaining Rights witliont ;

NLRB Election, 65 Mich. L. Rev. 851 .......... 7, 21, 39

McGuiness, Authorization Cards as — for Bargain-

ing Order, 68 LRR 85 13

-. Pekemper, Employer Free Speech Under the National

Labor Relations Act, 25 Md. L. Rev. 111 .. — 40

- 1962, Proceedings, Section: Labor were tew, ‘Ameri-

can Bar Association i

S. Report No. 105 on S. 1126, 80th Cong., 1st Sess. ....12, 35-36 |

' Hearings Before the-Special'Committee on Labor, Com-

mittee on Education and Labor, House of Representa-

tives, 90th Cong.; Ist Sess, (1967) H.R. 1175, Po

Amend the National Labor Relations Act to Increase ©

Effectiveness of waste pp. 383, 386-387, 393 (Com-

= mittee Print) .... , | 2

- Hearings .Before the Subcommittze on: Labor :of the.

Committee on Labor and Public Welfare, Senate, 89th

Cong., 1st Sess. (1965) S. 256, To Appeal Section

14(b)- of the National Labor Relation Act, pp. 195, -

196-198, 181-185 (Committee Print) .... 2

Hearings Before the Subcommittee on.the Separation

of Powers of the Committee on the Judiciary, Senate,

90th Cong., 2nd Sess., Congressional Oversight of .Ad-

ministrative Agencies (NLRB), April 30, 1968 ........... .-

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1968

THE SINCLAIR COMPANY :

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD,

Respondent -

On Warr or. CERTIORARI TO THE UNITED STATES

Court oF APPEALS FoR THE First Circurr

BRIEF FOR THE AMERCAN RETAIL FEDERATION |

AS AMICUS CURIAE.

INTEREST OF THE AMICUS CURIAE*

The American Retail Federation (hereinafter referred

to as the “Federation”).is an organization composed of 73

national and state retail associations. The membership of

these associations consists of a wide variety of retail busi-

nesses ranging in size from small local stores to large.na-

tional chains, representative of all aspects of the retail in-

dustry. ;

. “This brief is filed with the written consent of both parties,

pursuant to Rule 42(2) of this Court.

The interest of the Federation, in urging reversal .of

the Board and Court below, is predicated upon the’ potén-

tially substantial and far-reaching consequences that any

decision in-this case may have for the retail industry. The.

retail industry has been intimately involved in many land-

mark cases involving employer speech and communication |

.and the limitations placed thereon. See e.g. Bonwit Teller,

Inc., 96 NLRB 608 (1951), enf’t den’d.197 F.2d. 640 (1952),

cert. den’d 345 U.S. 905 (1953); May Department Stores —

Co., 136 NLRB 797 (1962); enf’t den’d 316 F.2d .797 (1963);

_ Montgomery Ward & Co., 145 NLRB 846 (1964), enf’d 339

' F.2d 889 (1965). ‘Likewise the use of bargaining orders

based upon authorization cards as a penalty: approach

limiting employer speech as well as an abridgement of

rights granted to employers and employees under the Na-

tional Labor Relations Act, 29 U.S.C. 151 et seq., has a

significant impact on labor relations in the retail industry.

This has been of such continuing vital concern that the -

_ Federation has.sought and’ has been given permission. to

present its views before~appropriate congressional commi¢z

tees in this atea. Hearings Before the Special Committee

on Labor, Committee on Education and Labor, House of

Representatives, 90th Cong., Ist Sess. (1967), H.R. 1175,

To Amend the National Labor Relations Act to Increase Ef-.

fectiveness of Remedies, pp. 383, 386-387, 393 (Committee

Print); Hearings Before the Subcommittee on Labor of the.

Committee on Labor and Public Welfare, Senate, 89th Cong.,

Ist Sess. ‘(1965) S. 256,:To Appeal ‘Section 14(b) of the

National Labor Relation Act, pp. 195, 196-198, 181-185 (Com-

mittee Print); Hearings Before the Subcommittee: on the

_ Separation of Powers of the-Committee on the Judiciary,

_ Senate, 90th Cong., 2nd Sess., Congressional Oversight of i

Administrative Agencies (NLRB), April 30, 1968. r

Pal

PRELIMINARY STATEMENT

InJ uly; 1965, the Teamsters Union began organizing

the Sinclair Company’s employees. From July to Decem-

ber, 1965, the Company, by written and oral communica-

tion, engaged in a4 campaign to persuade the employees to’

vote against the Union as their collective bargaining repre-

sentative (App. 171). During this period, the Union

claimed to have obtained signatures on authorization cards

from a majority of the employees and requested recogni-

tion. The request for recognition was declined by the Com-

pany and the Union petitioned for a National Labor Rela-

tions Board (herein the “Board”) election. In this election,

the employees rejected the Teamsters Union, 7 votes to 6

(App.-166, 188). The Union objected to the conduct of the

election, filed unfair practice charges alleging the employ-

er’s communication coerced the employees in the exercise _

of their statutory rights and alleging the employer unlaw-

fully refused to bargain collectively with it. The Board

found the communications violated section 8(a) (1) of the

_ Act (App. 183, 164 NLRB No. 49).. The election was set

_aside and, as the Board found the Company’s refusal to

_ grant recognition to the“Teamsters was not motivated by a

“sood faith doubt”, Sinclair was ordered to bargain with

the Teamsters. The First Circuit Court of Appeals, 397

F.2d 157, granted enforcement of the Board’s order (App. ©

210, 212) '

SUMMARY OF ARGUMENT

“ The National Labor Relations Act was designed to give -

employees the right to choose, or not to choose, a collective

bargaining representative through a Board conducted

secret ballot election.

_ The National Labor Relations Board has no authority ..

to compel an employer who refuses to recognize a labor

organization-on the basis of authorization cards to bargain

with the labor organization for the reason that the em- -

ployer “lacked doubt.” The policies and priorities of the.

Act, except-in certain. limited circumstances «where the

holding of a fair election is clearly impossible, are not ef-

fectuated by the determination of representative status on

the basis of authorization cards. Congress rejected the use

of authorization cards which are highly unreliable, and pro-

vided a more conclusive method for the determination of

_ ‘employee choice, the secret ballot. Because of the con-

flicting and confusing Board and Court. interpretations, this

Court should delineate the Board’s remedial authority. to

use authorization cards in lieu of secret ballot determina-

tions. a” as | "Oo"

The Board and First Circuit abridged employer’s free-

dom of speech as guaranteed by the First Amendment by

_ utilizing a test ‘which severely limits rather than. fosters

’ the traditional constitutional concept of~free debate. Free

debate and discussion is as vital in the labor-management

arena as it is in any other area of our society. Unless

the employer by clear language threatens to use his

economic power by way of reprisal or promise of benefit,

any curtailment of such debate ‘and discussion casts the

Board in the role of censor, and impinges on the First

.Amendment to our Constitution and Section 8(c) of the

National Labor Relations Act. |

I. : \

THE BOARD HAS NO AUTHORITY TO COMPEL

EMPLOYERS TO BARGAIN BASED ON UNION

AUTHORIZATION CARDS UNLESS THE CONDUCT

OF A FAIR ELECTION Is IMPOSSIBLE.

A. Where a Question of Representation Exists, Section

- 9(c) of the Act Requires That Employee Choice

‘Shall Be Determined hy Secret Ballot. ,

(1) The Nature of the Issue.

The dominant theme of the National Labor Relations

'. Act! is the right of employees to exercise a choice with

Tespect to whether they desire a bargaining agent. Sec-

| _ tion 7 of the Act? provides that employees shall have the ~

right to determine whether or not they desire union rep-

resentation; Section 8* provides that neither employers nor

_ labor organizations shall interfere with that right; and Sec-

tion 3* establishes an agency, the National Labor Rela-

tions Board, to protect the -exercise of this right through

remedial powers granted in Section 10°. Thus, in numer-

ous sections of the Act, using numerous forms of expres- -

1. 29 U.S.C. § 151, et seq. .

2. 29 U.S.C. § 157, which provides:

Sec. 7. Employees shall have the-right to ion,

to form, join, or assist labor organizations, to bargain collectively

through representatives of their own choosing, and to‘@ngage in

other concerted activities for the purpose of collective bargaining

or other mutual aid or protection, and shall also have the right to

refrain from any or all of such activities except to the extent that

such right may be affected by an agreement requiring .member-

ship in a labor organization as a condition of — as au-

thorized i in section 8(a) (3).

3. 29 U.S.C. § 158. nd ie

4, 29 U.S.C. § 153. |

5. 29U.S.C.§160. _ °

sion; “Congress in the statute hammered home the right

of the employees to a choice in a to a bargaining

agent.”°

Section 9 of the Act establishes procedures to deter-

mine union representation. Section 9(a) provides that:

“representatives designated or selected . . . by, the majority

of employees . . . shall be the exclusive bargaining repre-

sentative of all the employeés” in an appropriate bargain-

ing unit. A union may be “designated,” (usually by means

_ of authorization cards) by the employees and where the

employer voluntarily and properly’ accepts such desig-

nations, no question of representation® thereafter exists; or

where the employer does not voluntarily and/or properly

agree to such designations, a question of representation ex-

ists and the union may be “selected” by the employees

‘through the election processes of Section 9(c).

The critical question in the instant case involves an

asserted? judicial gloss on this statutory scheme: the

- @. Automated Clothing Workers (H. I. Siegel Co.) v.

Co ee LRRM 2207 (C.A. D.C., Jan. 9, 1969).

7. Where there are competing unions an employer may not

properly extend voluntary recognition to one of the unions. See,

e.g., Midwest Piping and Supply Co., Inc., 63 NLRB 1060; Novak

Logging Co., 119 NLRB 1573, ‘and cases cited therein. Voluntary

recognition ‘is also corisidered an improper denial of employee

freedom where: the union does not, in fact, have designations from

a majority of the employees involved. See International Ladies’ -

m1 Uiselye Union ae Altman) v. NLRB, 366 °U:S.

. 8 A “question of’ representation,” as used in Section 9(c) of

the Act, is defined as “a claim of representative status in the unit

covered by the petition, and rejection or questioning by the em-

ployer of the union’s claim to be -the present representative of

ae ee in the unit.” Kingsport Press, Inc., 150 NLRB

9. Amicus here assumes argueéndo that the Board has au-

_ thority to issue card check bargaining orders in a proper case.

However, persuasive argurnent can be made, and will presumably

be made by. the Respondent in NLRB v. Gissel Packing Co. et al.,

Nos. 573, 691, this term, that the Board has no authority to issue

card-based bargaining orders in any -case. Such a contention

‘a

7 . oa

Board policy to issue orders requiring that an employer

extend recognition to a union without a secret ballot elec-

tion. Thus, in the instant case, the Board concluded, and

and the court below affirmed,’® that the Union’s authoriza- .

tion cards, in addition to their potential means of acquiring

voluntary recognition, also ‘served the further function of

nullifying any question of representation and resultant need

to utilize Section 9(c) election machinery. The basis for

this conclusion, gnd for the issuance of an order requiring

the erhployer to recognize the union as the employees’ bar-

gaining representative, was that the Teamsters’ success in.

obtaining a majority of authorization cards, some four

months prior to the employees’ rejection of Union represenh-

tation in a Board election, gave rise to a two-fold infer-

ence: ' that based on-Sinclagr’s subsequent conduct (1) its

earlier. refusal to extend voluntary recognition was nega-

tively inferred not to be “motivated. by any good faith

doubt as to the Union’s majority status in an appropriate

bargaining unit’ and (2) that such refusal was affirma-

will, no doubt, emphasize that the Board has a number of devices -

to remedy pre-election employer misconduct, such as re-run elec~-

. tions, cease and desist orders and injunctions, and that these

‘ remedies were apparently considered adequate -by the, Board

in many cases for the ten years prior to the Board decision in

Bernel Foam Produc. Co., 146 NLRB .1277. The importance

‘is in encouraging the Board and courts “to focus on the problem

of ‘the re-run election and the importance of searching for imag-

inative means to ensure that the impact of employer violations is

dissipated.” Lesnick, Establishment of Bargaining Rights Without

an NLRB Election, 65 Mich. L. Rev. 851, 860-1 ;

_ 10. The Board did not, however, in significant contrast to the

court below, place the burden of proof on the employer to demon-

strate that his assertion of a good faith doubt has “some reasonable

or ratio basis in fact.” (App. 212) Instead, the Board places

the burden\on the Board General Counsel to prove the lack of a

godd faith dbubt. See Aaron Brothers Co., 158 NLRB 1077; John .

P. Serpa, Inc., 155 NLRB 99. . ~ ar

11. The Board views as determinative the basis of the em-

ployer’s asserted doubt. If any reason, other than a doubt of the

union’s majority status, for example, is advanced for requesting

. an election, and the employer is in error in believing that such

a reason would preclude certification, the fact that the refusal

coer ner eee run EP

ee Us

tively inferred to be “instead motivated = a 7 om to gain

time within which to Gienignte that majority status”

(App. 212).

While the Roard and the court ¥ helio have thus en-

grafted on Section 9(a) an involuntary designation, proc-

ess, other Circuits have jgken the far different viéW. that

such a bargaining order is warranted only where employer

misconduct makes impossible the holding of a fair election

‘under Section 9(c). A’ bargaining order under this ap-

proach is utilized only “in those exceptional cases where

the employer’s unfair labor practices are so outrageous |

pervasive and of such a nature that their coercive ma :

. cannot be eliminated by the application of traditional rem-

edies.”* The criteria is whether the employer’s conduct, ©

in the language of the Second Circuit, “was found to be

clearly hostile to the union, and without question to haye

contaminated ‘the results of any future election.” (Em-

phasis added).

was made in good faith and that a fair election could-still be held .

would not preclude issuance of a bargaining order. See, e.g.,

H & W Construction Co., 161 NLRB 852; Southland Paint Co., 156

NLRB 22; Oklahoma Sheraton Corp., 156 ‘NLRB 681. .

* 12. The Board finds a “rejection of the collective becgetnion

principle”: where the employer’s conduct, although not involving

any unfair labor practices, and not precluding a fair election from

being held, nevertheless discloses a lack of a “good faithr doubt” °

as to the union’s majority. See, e.g., Jem Mfg., Inc., 156 NLRB 643.

13. NLRB v. Logan Packing Co., 386 F.2d 562 (4th Cir. 1967).

14. NLRB v. Pembeck Oil Corp., ... F.2d ____, 69 LRRM

2811 (2nd Cir. 1968). See also NLEB v. River Togs, Inc., 382

F.2d 198 (C.A. 2). The recent position of the Sixth Circuit is

similar. In NLRB v. Priceless Discount Foods, Inc., __.. F.2d —°.__.,

70 LRRM 2007 (6th Cir. 1968), that court held that a bargaining

order was justified- only where “flagrant” unfair labor practices

were committed that render “it impossible for the Board to con-

duct .a fair: election” and, even in this case, such an order. -was

conditioned on Board notification to the employees involved of

- their right to petition for NLRB 3De See also the. Sixth Cir-

cuit decisions in Pulley v. NLRB, 395 F.2d “870 (6 Cir. 1968),

and NLRB v. Ben Duthler, Inc., 395 F.2d 28 (6th Cir. 1968).

The Board has for example held that bargaining drders should

only issue “in the exceptional and relatively infrequent situations

in which an employer has, by his unfair labor practices, made a

In short, the critical issue is whether the function of ~

card-based bargaining orders is to serve as a substitute ©

for the 9(c) election machinery or whether, on the other

hand, such orders constitute a.third substantive “means,

in addition to the 9(a) voluntary “designation” and 9(c)

“selection”. processes, by which a union may obtain em- .

ployer recognition of its alleged status to act as exclysive

bargaining agent for employees. The position of the amicus

is that, in view of the intent of Congress dnd the policies of

the Act, reliance on authorization cards as predicates for

bargaining orders should not constitute an alternate means

of acquiring ‘recognition and ‘should be limited to the ex-

' traordinary case (clearly. hot present in Sinclair) where

the election processes of Section 9(c) cannot’ be utilized.’®

2. The Statutory Framework.

Section 9(c) provides: “Whenever a petition shall have,

‘been filed ... (A) by ...a labor organization . . . alleging

that a substantial-number of employees (1) wish to be

fair election im le... .” McEwen Mfg. Co:, 172 NLRB No.

99. See also Hammond & Irving, Incorporated, 154 NLRB edge’

Clermont’s Inc., 154 NLRB 1397. Suppleméntal Memorand

the National Labor Relations Board to the Subcommittee

Separation of Powers Committee on the Judiciary, rere Bate

Oversight of Administrative Agencies (NLRB). United, States

Senate Hearings, 90th Cong., 2nd Sess., pp. 1666-7 (Committee

Print 1968).

While such language closely resembles the approach of the

Fourth, .Second and Sixth Circuits, in practice, as in the instant

case, the Board’s.focus has been on the employer’s good faith and

generally not, as a result, into whether a fair election in , may

' be held or the wisdom of issuing a bargaining order in @ partic-

' ylar case. “See Lesnick, supra, note 9 at 858-61. Such in ge-

ability and confusion between contradictory approaches, wich may

even occur in a single decision (e.g., Aaron Brothers Cp.) su: a),

underscores the need for the formulation of appropriate stan

by the Court in the instant cade. See Section: D, infra.

-15. The amicus also believes, as discussed in Section D pf |

this Brief, that in order to insure that bargaining orders will only

be employed in this exceptional situation, the Court should artic- -

ulate-appropriate criteria by which the "Board and lower courts

might adjudicate when, in fact, the dee of a fair election

should be deemed impossible.

ai, Sco

ieee aie “collective Siniiiien and ‘that their em-

ployer declines to recognize [fMe union] as the representa-

iy, pa defined in section 9(a), .. ke investigate

. [if] a question of representation it shall direct

. an aad by secret ballot and shall certify the results

: - thereof.” (Emphasis added.) Thus, unless the employer

voluntarily recognizes the ‘union, section 9 (c) requires that. ts

employee choice shall be determined by secret ballot.

This has not always been the case;

Section 9( ). was ‘the result of comprehensive revision

by Congress in\1947 when it enacted the Taft-Hartley :

amendments to the Wagner Act. Section 9 of the Wagner

Act, 49 Stat. 449 (1935), in section 9(c) had provided: _

Whenever a question affecting. commerce arises

concerning the representation of employees, the Board ©

may inveStigate such controversy and certify to the

. parties, in writing, the name or names of the repre- —

sentative that has been designated or selected. In any

such investigation, the Board ‘shall provide for an ap-

. propriate hearing upon due notice, either in conjunc-

tion with a proceeding under § 10 or otherwise, and

‘may take a secret ballot of employees or utilize any

_ other suitable method to ascertain such —

(Emphasis added.)**

Under this section initially the Board resolved ‘wncloves

. choice of representatives by checking. authorization: cards

or by approving recognition agreements, . by unfair

. labor practice proceedings under section 10. “But, the

Board was soon “persuaded by [its] experience” that “bar-

"46. Il, LEGISLATIVE HISTORY OF THE NATIONAL LABOR Re-

LATIONS Acr, 1935, 3274 (NLRB Ed. 1935).

17. Section 202.17, 29 C.F.R—NLRB STaTEMENtS oF Pro- |

‘CEDURE, Secs. 202.1-28, 11 Fed. py 177A-619 (Aug. 28, 1946).

} 18. See Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944);

NLRB + P. Lorillard Co., 314 US. 512 (1941); NLRB v. Brad-

| ford Dyeing Asrs, 310 U.S. 318 (1940). |

anew Ginter ,

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cores 11

_ gaining relations from the beginning” would be more satis-

factory “if doubt and-any disagreement ofthe parties re- _

_. garding the wishes of the employees” were éliminated. Ac-

_ cordingly, certifications in contested representation cases -

were discontinued in favor of resolution by secret ballot. ~

. The bess Packing Co., 13 NLRB 526, 531-32 (1939).

“By the Taft-Hartley amendments, ‘Congress, in addi-

‘ tion to providing the secret ballot as the exclusive means,

_ under section 9 for, resolving representative status, demon-

strated ‘its preference for resolution - by secret ballot in

other amendments to the Act, thereby attaching greaten -

. * - significance to such resolution by secret ballot. The twelve- _

month election bar period of section 9(c)(3), which was

designed to prevent industrial turmoil by repeated ques-

_ tioning of representation status, does not operate unless —

there has been an election.” Recognitional: picketing by

a rival union is prohibited by section 8(b) (7)?° only if the -

existing bargaining agent won a secret ballot election or

has reached a collective agreement. Congress, likewise,

chose the secret ballot election as the method for expedit-

ing the resolution of recognition strikes," for determining: -

bargaining agent authority to execute union ‘shop agree-

- ments” and for permitting represented employees to reject

their collective bargaining agent.” .

Congress was well aware of the effect the 1947 amend-

“ments had on the authorization card process. When ob- ~

jections were raised by the House Minority Report that the -

new section 9(c) would have the effect of eliminating the —

19. 29 U.S.C. § 159(e) (2); National Waste Material Com., ire

_ NLRB 477.

20. 29 U.S.C. § 158(b) (7).

21. “29 U.S.C. § 158(b) (7) (C).

22, 29 U.S.C. § 9(e) (1).

23. 29, U.S.C. § 9(c) (1) (A) (ii). - -

use of er checks and consitit election agreements (which

_the minority considered to be very useful in cases where

‘no, real question existed), the proyision from the Senate _

bill which permitted the use of consent election agreements

-was adopted in section 9(c) (4). But no recognition was

given to the use of card checks, even consent card checks.*

@ _- The Board thereafter recognized that a limitation had been »

a. imposed on its powers.”

. 24, ELR. 3020, as i cnenk sm One te in, did not

recognize consent election procedures. House Minority Report

No. 245 on H.R. 3020, 80th ‘Cone » 1st Sess., vigorously attacked

_. this omission. - S. 1126, 80th Gon.” 1st Sess., contained’a provision

for consent elections but no provisions . recognizing the use of

card checks. Senate Minority Report No. 105, Part 2, p. 34, argued

that by eliminating card checks Congress | “would deprive the

Board of a proved and useful technique. ba i

- 25. As the court observed in NLRB v. Heck’s, 398 F.2d 337,

340, the 1948 Board Annual Report. (p. 32) expressly. recognized

this limitation:

“Section 9(c) of the Act, as amended’ prescribes the election

by secret ballot as the sole method of resolving a question

-coneerning representation, and Jeaves the Board without the

discretion it’ formerly: possessed—but rarely exercised—to

utilize other ‘suitable means’ of ascertaining representatives. w

Two years later, however, in the leading case of Joy Silk Mills

‘v. NLRB, 185 F.2d 732 (D.C. Cir, 1950), cert. den’d 341 U.S. 914,

the Board’s adoption of a “good faith doubt” precondition to -in-

vocation of the Section 9(c) election processes was approved in

‘the following language which has —— the touchstone for

ee Board doctrine:

“The Act provides for election eueneetinites in order to pro-

vide a mechanism whereby an employer acting in good faith —

may secure a determination of whether or not the union

does in fact have a majority and is therefore the appropriate

- agent with which to >. Another purpose is to insure ~

that the employees-may freely register their individual choices

concerning representation. “Certainly it is not one of the pur-

‘-. poses of the election provisions'to supply an employer with a

procedural device by which he may secure the time:n

necessary

to defeat efforts toward organization being made by a union. %

“ * 185 F.2d at 741. (Emphasis supplied).

As a result, the intent of Congress to provide that Section 9(c)

be the exclusive means of determining questions of representation,

irrespective of the employer’s bona fides in desiring to utilize this

“procedural device”, has been ne ignored. “

POT NOR re,

| 13

_ As several commentators” have indicated, the legisla-

tive history of this revision, particularly when | coupled

with other coricurrent amendments to the Act,” ‘fully sup-

-ports-the view that Congress intended to grant.employers

. an absolute right to an election to determine questions of

representation and preclude the/use of authorization cards

for this purpose. Only when no question of representation ©

- existed,2* or when an election under Section ’9(c) was ren-

dered impossible, therefore, would a card-based bargaining

order be warranted.

26. Comment, Union Authorization Cards, ‘75 Yale L. J. 805

‘at 820-3; McGuiness, Authorization Cards As Basis for Bargaining

‘Order, 68 LRR 85. | | ae ites

27. - Employers, for example, were given for the first time the |

right to file a representation petition, thereby permitting an em-

ployer to question a union’s representative status and have the

question resolved by the Board election processes (29. U.S.C.

159(c)(1)(B)): ‘By ‘the’ simultaneous enactment of the“Section .

8(c) “free speech” provisions (29 U.S.C. 158(c)), such election

processes guaranteed employees the “opportunity to hear argu-

ments concerning -representation” and placed them “in a better

- position to make a more fully informed and reasoned choice.” Ex-

celsior Underwear, Inc., 156 NLRB 1236, 1240. ;

‘ 28. Thus the Supreme Court in Brooks v. NLRB, 348 U.S. 96,

101 £1954). recognized that while the Taft-Hartley amendments ,”

provid ification-could-onlybe-granted_as the re-

sult of: an. election . .’. an employer would presumably still be

under a duty to bargain with an uncertified union that had aclear «—

majority” (emphasis added). The emphasized language in-

dicates the case where there no longer existed any question of

representation,: e.g., the factual situation involved in NLRB v.

Sehon Stevenson & Co., 386 F.2d 551 (4th Cir. 1964).

_ Similarly, the other post-1947 Supreme Court decision which

touched upon the effect to be given authorization cards and which

is contin cited as controlling precedent, United Mine Workers >.

v. Arkansas Oak Flooring, 351 U.S. 62, 68-69 (956), stated’ merely

that while the union there involved could not utilize the Board’s

certification processes, it was nevertheless nof} precluded from

achieving voluntary recognition from an employer since a “Board

election is not the only method by which an employer ‘may satisfy

itself as’ to the union’s majority status” (emphasis added).

Again, the decision is clearly consistent with the position that

Congress intended the election procedures of Section 9(c) to be

the exclusive method for determining questions of representation,

although where no such quéstion -exists, Section 9(a) permits

voluntary “designation” through authorization cards. 4

‘ —

. a

Vv °

Tin Bours seipinen 03 Cle eglitiye History has Veet

to argue that the revision of Section 9(c) was merely in-

tended (g preclude the use of authorization cards and other :

_ non-election means to obtain Board certification through

the Act’s “selection” machinery; that Congress, by declin-

ing to simultaneously amend the reference to Section 9(a) .

in Section 8(a) (5) of the Act to require employer recog-"

nition of certified unions only (H. R. Rep. No. 245, 80th:

Cong., 1st Sess.,.30, 53 (1947) ), did not intend to foreclose

: the use of such other means as a basis for securing voluntary

recognition (Bd. Pet. for Cert., G@issel, p. 22). Even -

assuming, however, that Congress did not wish to disturb

the 9(a) voluntary designation processes, it is a wholly dif-

' ferent proposition to urge that Congress intended to estab-

lish card-based bargaining orders as a separate, alternative .

method of acquiring recognition or that it intended that Sec-

_ tion 9(a) embody the “good faith doubt” principle utilized

by the Board to justify such orders.” At most, Congress

. 29. The erpument. of the Board is thus’ based on what Con-

gress failed to do while ignoring what Congress did. The Board

: ro sai for example,- the following ae % Settee ae

$e):

decide whether it would conduct an. investigation. Thé

amendments required the Board to conduct an investigation

whenever a petition was filed by an employer or: labor. organ-

ization and hold an election if an employer denied recognition.

(2) Prior to 1947, Section 9(c)}- authorized the Board to -

issue bargaining: orders pursuant to Section 10 of the Act.°

The amendments specifically deleted this reference. -

(3) Prior to- 1947, the Board was empowered to use

“any other suitable method” besides

; an election to-determine —

__. a eolleetive- SNS Lee ° The amendments =.

bade it.

The retention of the ‘designation ‘or selection”’ language in Sec-

tion 9¢a)° of the Act, while eliminating the same language from

- Section P(c), was to accommodate the process of voluntary recog--

nition ch did not req an altering of the then lan-

guage of Section 8(a) oy the saan el

Section 8(a) (5), regardless of whether a union’s majority status

was established by a 9(c) election or voluntary recognition, there

(1) Prior to 1947, the Board had the urerogative to

—sincé an employer could violate .

merely permitted the Board to continue its prior practice”

of issuing card-based bargaining orders solely as a remedy

for situations where an election could not be —

under Section 9(c). .

This i is the mandate the Board must t follow. “As stated ,

by Mr. Justice Holmes sitting as ‘Circuit Judge in Johnson ©

Vv. United States, 163 Fed. 30, _ ee

policy of the law shall be, and if it has intimated its

will, however, indirectly, that will should be recognized —

_. and obeyed. The major premises of the conclusion

7 expressed in a statuté, the change of policy that induces .

; the enactment, may not be set out in terms, but it is

not an adequate discharge of duty for courts to say:

* “We see what. you are driving at, but you have not

said it, and therefore ave shall go on as before.”

B. Souet Ballot Choice Is a More Reliable Indicia

of Employee Choice Than Authorization Cards. _

hus, Congress. clearly’ recognized by “amendment, as

ae ae 6 Boa earlier, that the secret ballot election con-

ducted ‘under close supervision of the Board was the best

' vehicle for employees to exercise their right to select repre-

sentatives of their own choosing wherever questions of ©

representation exist.** ‘Today, the election process is still

was no need to revise that section, particularly since the, main

- goncern therewith “was-related to the subject of bargaining. as

ae from recognition.” Comment, 75 Yale L. J.. 805 at $20,

30. The leading pre-1947 Supreme Court decision authoriz-

ing card-based bargaining orders, Franks Bros. v. NLRB, 321 U.S.

702, thus justified issuance of such orders solely on the ground that

it represented a proper exercise of the Board’s remedial powers. .

, 31. Significantly, many of the same circuit courts which

have adhered ‘to the Board’s “good faith doubt” approach have

nevertheless voiced substantial disagreement with the Board’s

view on card misrepresentations and have suggested that such a

test applies a mechanistic and far too lax a standard. See En-

gineers & jeasamaatins Inc. v. NLRB, 376 F.2d 482 (CA. 5); NLRB

ee “. 46

“ecmalited by flip Board: et least ‘when subject to congree-

. sional inquiry, to be the “most conclusive, and therefore -

- the most satisfactory, means of testing a union’s majority

interest,®* since authorization cards are not as “reliable as

the secret ballot elections which the Board conducts. . . .”"*

Reviewing circuit courts have similarly recognized that ©

. . . it is beyond dispute that a secret election is a more

accurate reflection of the employees’ true desires than a

union organizer.”** Indeed, the AFL-CIO is most candid

on this issue: “. ; .cards are at best a signifying of-inten-

tiori at a given 1 ‘genienint. Sometimes. they are ‘signed to

get the union off my-back”. - whatever the reason, there

on v. Swan Siper Cleaners, 384 F.2d 609 (C:A. 6); and NLRB ,

“Ton Howard ‘Manufacturing Co., 390 F.2d 304: (C.A. 7).

Second and Fourth Circuits have also questioned the PR. a

the Board’s card misrepresentation principles. See Crawford Man-

ufacturing Co. v. NLRB, 386 F.2d 367, cert. den’d 390 aa 1028

and NLRB v.-Nichols Co., 380 F.2d 438: -

F ever, the question of solicitor Se sera and the

validity of the Board’ s sole and only purpose rule, Cumberland

Shoe Corp., 144 1268, enforced 351 F.2d 917 (C.A. 6), is

not directly an issue in this case. ais Rae Was salved tn thcee

casés in which petitions for certiorari were denied last term.

NLRB v. Crawford Mfg. Co., No. 1050, 390 U.S. 1028; Preston

Products Co. v. NLRB,’ . 1367, 392 US. 906; Bryant Chucking

Grinder Co. v. NLRB, "No. 1324, "392 U.S. 908. Indeed, the issue

is now before this Court on petition for a writ of certiorari to

the United States Court of. for the Sixth Circuit. : Thrift

- Drug Co. of Pennsylvania, Petitioner, v. NLRB, No. 906, this term.

The memorandum for the National Labor Relations Board opposed

granting of the writ on the. ground that “As in Atlas Engine Works

yv. NLRB, No. 598, this Term (Memorandum for. the respondent,

pp. 3-4), the Board sees no reason why review of this issue is any

more warranted now than it was last Term.”

32. -Memorandum from. Secretary Wirtz to Senator Javits,

TO REPEAL SECTION. 14(b) OF THE NATIONAL LABOR RE-

LATIONS ACT, Hearings Before the Subcommittee on Labor of

the Committee on Labor and Public Welfare, 89th Cong., ist Sess.,

Pp. 19 {committee print—1965). e

. 33. NOMINATION Hearings, Chairman Frank McCulloch Be-

‘fore the Senate Committee on Labor and Public Welfare, 89th —

Cong., Ist Sess., p. 4 (committee print—1965).

Bas NLRB v. Flomatic satis 347 F.2d ve 78 (2 Cir. 1965).

‘. check of authorization cards. collected\.at the behest of a ©

ts'no guarsaten of suyfiting'in a dquad MLRD platen cet ae

except that it will count toward an NLRB election.” -AFL-

CIO, 1961 GUIDEBOOK FoR UNION ORGANIZERS.

Statistics as well re ning conclusion. Board |

"Chairman apg statistics which demonstrate the

unreliability_of cards : See

oP eat In 58 elections, -the unions presented authorization

cards from 30 to 50% of the employees; and they won

11 or 19% of them.: In 87 elections, the unions pre-

sented authorization cards from 50 to 70% of the em-

ployees, ‘and they won 42 or 48% of them. In 57

elections, the unions presented authorization cards.

from over 70% of the — and they won 43 or

74% of them.*® von £ | :

Indeed, because of the circumstances aavcuiing the

organization effort, the conclusion that cards are inherently.

unreliable has‘r much support. Admittedly, at least where

two unions were involved, cards are “notoriously unre-

liable j determining majority of a union as the basis for

making a contract”, Sunbeam Corp., 99 NLRB 546, 550-51,

_ and cards.“do not necessarily — the ultimate choice

of a bargaining representative . Midwest Piping and

Supply Co., 63 NLRB 1060.°

Comparison of the seiiacatnattbi card process ih the

secret ballot process leads to a similar result... Authoriza- |

tion cards may be signed at work, at home, at union halls’

or in a number of places.*’ The card signer may not be

35. 1962 PROCEEDINGS, SECTION OF LABOR ‘RELA-

TIONS LAW, AMERICAN BAR ASSOCIATION 14-17. See also,

NLRB v. Johnnie’s Poultry Co., 344 F.2d 617, 620 (8th Cir. 1965),

relying on such statistics in a card check case.

<’36. In Levi Strauss & Cv.,.172 NLRB No. 57, 68 LRRM 1338,

1342 (1968),. the Board argues this only applies in a two-union

situation, but does not explain why it is not -_ signifigant in

any organizing situation. .

37. See Hearings on Section 14(b), supra, ‘apie 32, at p. 190,

for the many _—" cards are solicited.

ea ae RQ . Be

alone; union organizers, fellow employeés, or even a work-

~ .ing foreman may be peering over the employee’s shoulder.

But, the ballot, after it is received from. election observers

and the supervising Board representative, is cast in secrecy

in a ballot Booth, While the authorization card may abound

with fine print and use confusing language, the secret bal-

lot provides simple “yes” or “no”_squares for the placing ©

of an “X”. Although the employee may have been handed

the authorization card seconds before he signs, the sample

ballot has been displayed for several days as part of an

NLRB election poster which also explains in white arid

blue lettering the employees’ section 7 rights.** This elec- .

tion poster has been printed in virtually every significant

' foreign’ language to insure full understanding, but the

Board has accepted as valid indicators cards which are’ .

printed in a language foreign to the signing employee, with - -

no interpreter present. Then, of course, the free debate ©

in many cases has not been held and the employees, when:

requested to sign, have not received the full information

necessary. to a reasoned choice: ~ L

“The union is not likely to describe iniesaiane the

probable advantages of organizing much less present

the disadvantages when cards replace the secret bal-

.. - lot, an employee. may sign at any time; and when a

_ majority sign, the contest may be over. Thus; the em-

ployer loses the opportunity to rebut the final per-

suasive union argument. If that argument involves

‘inaccfrate or fraudulent assertions about the employer’

38. See NLRB Rules and ‘Regulations 102. 1, 102.69, 26 FR.

. 3885 (May -15, 1961). The electiom notice and sample ballot are

form NLRB-707 (1-67). <

39. In NLRB v. River Togs; Inc., 382 F.2d 198 (2d Cir. 1967), -

the Court denied enforcement of the bargaining order,. rejecting

the Board argument that inability to read-the authorization card

on the part of employees speaking a foreign language is not fatal. - ;

ped contrast, election notices have been translated into almost

aty, emgenge an he Lageate ecto, the Court noted. ° 382.

Fad at 205, i.” .

incistdiens or the union’s vest record, any employer re-

buttal comes too late to be effective."

Finally, as many reported cases demonstrate, employees =

.. because of solicitér statements may have only been initiat-

ing the election progess by signing the card (nomination ~

petitions are common) rather than making their ultimate

choice. 4 i |

Cc. The Policies of ian eit he tee Ce

L Predicating Bargaining Orders on the

ployer’s “Good Faith Doubt.”

‘ By placing the focus on the employer’ s subjective state

- of mind, the Board has rejected clear. congressional intent _.

and, instead, given independent meaning to a catch

phrase employed by the circuit court in Joy Silk Mills, Inc,

v. NLRB, 185 F.2d 732 (D.C. Cir. 1950), cert. denied 341

US. 914 (1951). Er, .

In. Joy Silk Mills, the employer, imimediately prior to

the election, interrogated employees as to their union sym-

pathy, threatened employees. with reprisals, and promised

additional benefits if the union were rejected. There was

no question the. union had a clear card majority. The Board

found- the unlawful acts rendered a’ “free election impos-

sible” and entered a bargaining order. 85 NLRB 1263,

1264. In enforcing the order, the Court stated:

An employer may. refuse recognition’ to a union

_ when motivated by a geod faith doubt as to the union’s:

majority status.... When, however, such refusal is

due to a desire to gain time and to, take action to dis-

40. Comment, 75 Yale L. J. at 827-828, 834.

41. NLRB v: Swan Super Cleaners, Inc. "384 F.2d 609 (6th

Cir. 1967); NLRB v. S. E. Nichols Co., 380 F.2d 438 (2d Cir. 1968);

ra NLRB v. Dan Howard Mfg. .Co., 390 epg 304 (7th Cir. 1967);

Bauer Welding and Metal Fabricators, I nc., 358 F:2d 766, 774 (8th ;

Cir. 1966); Crawford Mfg. Co. v. NLRB, 386: F.2d 367 (4th Cir.

-” 1967), cert. den’d 390 Us. ‘1028 (1968). . ae

“

eee nlp a ole nem ey BN a eT el Mme we se

mnie the union’s wandintio. the refusal is no ener

cera ‘and constitutes a violation of = — to .

bargain. . - 185 F.2d at 741. |

The phrase “good faith doubt” was nennrontintety taken

from precedent decided prior to Taft-Hartley, and

gaining order was ‘not predicated on a construction of

tion 9(c) and section 8(a) (5); but on the Board’s section 10 a

‘remedial powers as its citation to this Court’s decision in

Franks Bros. Co. Vv. NLRB, 321 —_ 702° -* demon-

Strates. - a |

: But today, by giving unprecédented emphasis. to the

» Court’s prefatory reference to “good faith doubt,” resolution

of represeniation status by the- card process has equal

stagding with the secret ballot process. Thus, when pre-

sented with a request for recognition based pon an as-

_” serted card majority, the duty to bargain is said to have’

commenced irrespective of. the existence of the prefefred

secret ballot process, and although the employer com-

_ mitted no unlawful acts. H-W Construction Co., 161 NLRB -

852. ne a Tig pee:

Likewise, the insistence on an election does not give

rise to the inference the employer was rejecting the princi-.

ple of collective bargaining. If an employer has a right

to file a representation. petition when presented with a

~ request for: recognition (and section 9(c) gives him this

' right), and if the employer may inform the employees of

the “cons” of union répfesentation (and section 8(c) gives

him this ‘right), then-it follows that the employer has a

right not to deal with the union until his employees vote

“ by secret ballot:to the contrary. “But, in disregard of both

employer and employee rights, the Board prefers a Hobson’s

choice: . If the employer refuses to grant recognition, and

the union had a majority, it violates section 8(a) (5). If,

however, the-employer has no “good faith doubt” and bar-

gains with the union, which did not in fact have a majority,

it likewise violates the Act. International Ladies’ Garment

Workers v. NLRB, 366 U.S. 731 (1961).. The statute did

not intend such a legal anachronism. ,

In sum, as Judge Learned Hand aptly observed: “AS

-a penaltys[a bargaining order based on subsequent em-

ployer conduct] might be proper, but as a link in reasoning ~

it seems to us immaterial.”** ‘The significance of unfair

labor practices is only as a measure of whether a fair elec-

tion is possible and employer conduct subsequent to a rec-

ognition demand, lawful or otherwise, clearly is irrelevant.

_D. The Court Should Articulate Criteria to De-

termine When, in Fact, the Holding of a Fair

. Election Should Be Deemed Impossible,

(1) The Need to Articulate Appropriate Criteria. ~.

. The amicus believes that it is essential, for the reasons

described in Sections A to C, supra, that the Court should

limit the issuance of card-based bargaining orders to those

situations where it is expressly found that utilization of

the Section 9(c) election machinery Has been precluded

by employer misconduct. In order to insure, however, that

such a “fair election impossible” rule will result in a wholly

‘different Board approach, not merely a different Board

talisman, the Court we respectfully submit, should also -

define appropriate standards to determine when, in fact,

the election processes cannot properly be invoked.

The necessity for an articulatior »f specific criteria

is evident from the interchangeabili of the language of -

the substantive and remedial approac ies, with no apparent

' 42. Lesnick, Establishment: of Bargaining Rights Without an

NLRB Election, 65 Mich. L. Rev. 851, 855 (1967), criticizes the

" inference the “doubt” test requires the Board to draw.

43, NLRB v. James Thompson & Co., 208 F.2d 743, 746 (C.A.

apie iil ai sea

ee ee ee ee ee ee ete er ee ee

difference in actual ‘result, reflécted in past Board deci-

sions.“ ‘The current Board practice, in determining whether

__an employer-has evidenced lack of a “good faith” doubt or

“a rejection of the collective bargaining principle”, is to

look .at. “311 the relevant facts of the case, including any

unlawful conduct of the employer, the sequence of events,

‘ ‘conduct.’** It is indeed doubtful whether another set of

_ rules or standards could be constructed which would be

less predictable, less precise, and give less assistance to

those who would seek to employ them as a guide for future

_ to the Board practice in the’ related field of authorization

card misrepresentations: “The extensive discussion of evi-

'. . + Was necessitated by the Board’s use of the wrong

standard and the courts’ desire to avoid a time consuming

"| under the [present Board standard].

The concern of the amicus is that even if the suggested

“fair election impossible” view of card-based bargaining

_ , orders is adopted herein, the Board will merely thereafter

employ & different vehicle to arrive at its present position.

This fear is underscored by the Board’s insistence that it

44. See footnote 14, supra.

45. Aaron Brothers Co., supra.

46. The vacillating criteria may perhaps explain how the

Board can assert on one hand that card-based bargaining orders

tions” (Levi Strauss & Co., supra) or, as described by Former

Secretary of Labor Wirtz, in “rare exceptions” (Wirtz, supra, n

20, 25), while, conversely, suggesting in the instant case that such

cases occur “frequently” and “often” (Bd. Pet. for Cert., pp. 17-18).

47. Bryant Chucking Grinder Co. v. ee 389 F.2d 565

Puce Cir. Leet) (concurring. opinion).

and the time lapse between’ the refusal and the unlawful —

conduct." As Judge Friendly has observed with respect .

dence in such cases [citing circuit court decisions] .

are used only in “the exceptional and relatively infrequent’ situa- —

‘remand; once the Board adopts the proper standard, judicial a

-- review . .. should not be- substantially more difficult than

wa an ie hein inci ie iy Senanitas le tartare : ot

must be left free to broadly \determine in which cases a

bargaining order is warranted,“ a degree of discretion

which has been readily granted by several courts. The

Board has been unable to articulate a rational position. _

The decisions are replete with confusing and conflicting

interpretations, which do not clarify, but which obfuscate. .

Reviewing courts need not adhere to assumed Board ex-

‘pertise where the matter at issue involves substantial legal

questions or fundamental policy decisions. As this Court

observed in NLRB v. Brown, 380 U.S. 278, 291 (1965):

“Reviewing courts are not obliged to stand aside and

rubber-stamp their affirmance of administrative : de-

cisions that they deem inconsistent with a statutory

mandate or that frustrate the congressiorial : policy

underlying a statute.’”® : Fenn |

Courts have attempted to. indicate appropriate. criteria

to resolve the difficult “determination of whether a re-run

election er the cards will more reliably indicate the de-

Sires of the employees or whether a re-run election will be

contaminated by the prior violations : : .”™ .The signifi-

cance of this determination, however, requires that it not

be left to meg and conflicting opinions of the Board :

48. See, e.g./Bd. Pet. for Cert., Gissel, p. 18, fn. 18.

49. See, e.g., NLRB v. Goodyear Tire & Rubber Co., 394 F.2d

a Cir. 1968); Furr’s, Inc. v. NLRB, 381 F.2d 562 (10th Cir.

50. See also NLRB v. Gotham Shoe Mfg. Co., 359 F.2d 684

(2nd Cir. 1966) (concurring and dissenting opinion), .and the .

_ Court’s utilization of, and reliance on, appropriate standards in

the application of another p n of the Act in Local 761, IUE

v. NLRB, 366 U.S. 667 (1961), where the Court articulated specific .

guidelines for determining the legality, of reserved gate picketing

under Section 8(b) (4) (A) of the Act. care

51. NLRB v. Ben Duthler, Inc., supra, where the Sixth. Cir-

cuit went on to define the “pertinent considerations” to be “the

nature of the Section 8(a)(1) violations, the percentage of .era-

ployees signing authorization cards, the wording of the cards and

the method of soliciting signatures, and the results of any Board: -

election”. See also Clothing Workerswy. NLBEB, supra, note 6..

‘and: lower .courts but, rather that this Court should:

. alleviate the current confusion rampant in the area by es-

— as predictable | and specific standards as possible.

(2) " Suggested Criteria to Determine When, in Fact,

the Holding of a Fair Election Should Be Deemed

Impossible.

Any attempt to delineate the limits of that area in

which a card-based bargaining order should be utilized as

a substitute for the Act’s election processes must take into

"account, as the court observed in NLRB v. Ben Duthler,

“Ine., two values of paramount importance: the right of

_ employees to. ‘determine whether they desire to bargain

collectively or to refrain from such bargaining; and the

need to remedy employer unfair labor practices.’ There

_ must be adequate recognition of the primacy of secre*ballot

election for employees, with a workable solution ter the

extreme situation in which a pattern of coercive and op-

premive conduct precludes the holding of a fair election.

- One such proposal, which has received both Congres- |

sional and Board™ recognition, is suggested by the amicus

for consideration. This approach recognizes three separate

components of the “fair election” test, each of which must

be demonstrated by the Board’s general counsel, to provide

evidentiary guide lines for a reviewing court in determin-

ing whether the “strong medicine” of a card-based bar-

gaining order was justified: ‘ .

. . _ 52. Bill introduced by Senator Fannin during the 1965 hear-

ings on the proposed repeal of Section 14(b) of the Act entitled

S. 2226, 89th Cong., Ist ‘Sess. (1965). See 111 Cong. Rec. 14584

(daily ed. June 29, 1965).

53. .An approach was advocated in 1968 in a statement pre-

sented to the ate Judiciary Committee Subcommittee on Sep-

aration of Powers by Gerard C. Smetana, which was. thereafter

— with approval by the Board ir its Supplemental Memo- ©

randum. pee Hearings, supra, note Sia pp. 1078-9 (Committee.

Print 1968

os \m

-(1) That the union obtained authorization cards

from .a-majority of the employees in an appro- -

priate unit without coercion or mistepresenta-

tion.** . | ghee aia

(2) That thereafter, the employer engaged in an

intentional course of unlawful conduct, the ef-

fects of which ‘cannot be dissipated by other .

available remedies. This would require a show-

' ing of (a)- the requisite employer intent (which

would exclude minor. and advertent vidlations by:

lower-level superyision), (b) a course of em-

ployer conduct (which would exclude isolated

incidents), and (c) the futility of utilizing other

‘Temedies, such as those discussed at footnote 2,

supra, to, ascertain the true union desires of’ the

employees, oe

(3) ‘That each of the improper acts on the part of

the employer: constituted independent: violations

of Section 8 of the Act rather than merely con- __—

duct which the-Board-considéred sufficient to

set aside on election or, as in’ the instant case,

a “totality” of otherwise lawful conduct.

If the test is not met, representation questions should |

_be. determined solely by secret election. Otherwise, nor-

mal Board curative remedies should be applied,> ~

54. The standards to determine whether such coercion or

misrepresentation occurred: should, in the opinion of: the amicus,

be similar to those which have been adopted by the Second, Fourth,

Fifth, Sixth and Seventh Circuits. See note 14, supra.

55. See riote 9, supra.’ Where a union presently does not

‘have authorization cards from a‘majority of the employees: in-

volved, and the employer engages in pervasive and substantial

misconduct, the Board has devised imaginative remedies to’ meet .

the situation. See, J. P. Stevens & Co., 157 NLRB 869 and ©

e.g.,

H. W. Elson Bottling Co., 155 NLRB 714.

' “right ta listen” and to make’a reasoned choice, by setting’

- . rejected Teamster representation. The Board did so by

improperly finding the employer's speech was an unfair ~

be reversed.

_ Conclusion: AE Order Was Not Appropriate

e Instant Case.

Cleariy; the Board’s rejection in the present case of

the employees’ right to choose or not to choose a bargain-

ing agent is not compatible with the intent of Congress

and the underlying policies of the Act. There was no

. finding by the Board, nor could there be, that a fair elec-

tion would have been an “exercise in futility.” Far from

it: Sinclair did not engage in a series of independent un-

'” fair labor practices; rather, any alleged misconduct could —

have’ been easily dissipated by applicatién of* traditional

Board remedies. The decision of the court below should

a ies SPEECH IS PROTECTED BY FIRST _

AMENDMENT AND SECTION 8(c) OF THE

, . TAFT-HARTLEY ACT ;

A. The Nature of. the Issue.

_ It is the view of amicus that the Board abridged Sin-

clair’s ‘right to free speech and the employees’ equivalent

aside the secret ballot election in which the employees

56. In an address by NLRB hint General ‘Counsel H.

Stephan Gordon before the George Washington University -Na-

' ‘tional Law Center on February 15, 1968, entitled “Union Au-

thorization Cards and the Duty to Bargain”, reprinted at 67 LRR

155, 183, in which Mr. Gordon recognizes the importance of the

" gecret ballot by quoting the simple but eloquent phrase of Win-

ston Ch

“At the ioitiem of all tribute paid to democracy is the little

man, walking into the little booth; with a little pencil, making

a little cross, on a little bit of paper . . {, no amount of rhetoric

or voluminous discussion can possibly diminish the over- .

eas importance of that point.”

ee ees a

“

. 27.

labor practice and by using ‘this speech as evidence that

the employer refused to bargain. This Court has tradi-

tionally held speech, not a. part of. unlawful conduct as

such, entitled to constitutional protection. Congress in

1947 accommodated the right of speech within the poli-

cies of the National Labor Relations Act by formulating

an objective standard which limited the Board’s authority’

_ to abridge speech: the Board cannot censor speech when

speech’ contains no threat of reprisal or force or promise

of benefit. The-Congress’ and the Constitution intendel

free debate among all participants so that a reasoned _

) choice could be exercised. _

In the campaign preceding the election in the case -

bar, there was vigorous debate on the question of repre-

sentation by both sides. , Sinclair expressed its views to

_ the employees ‘vigorously but truthfully on the merits of

selecting the Teamsters Union as the ‘bargaining agent.

The scope of the campaign is set forth in petitioner Sin- -

clair’s brief and need not be here repeated. Suffice it to

say that the Board found-no single communication to be

an unfair labor practice; only that the “totality” of the

__employer’s communjcations corstituted improper threats

within the meaning of section 8 (a) (1).

In finding the speech an unfair labor practice, we

submit that the Board and the Court impinged on the

Standards set down by the First Amendment and by sec- .

tion 8(c) of the Taft-Hartley Act when (1) it grounded

_ Its decision on the “belief” or “impression” allegedly created

on the employees rather than on the “speech itself,” and (2)

it censored speech dissociated from conduct which was

subject to free debate. o | “i

4 | 98

B. Test Used by Board and Court in Evaluating

Employer Speech Offends the Constitutional.”

Freedom of speech extends to speech in the context

of a labor dispute. While decisions do not draw a hard

and fast line of demarcation for thé outermost limits be-

fore speech ceases to be free, it is immaterial that the

‘forum for speech is the working place and not the mar- .

. ketplace. This Court has long recognized that govern-

mental regulation in the labor relations field must yield

to First Amendment freedoms and free speech can rio

“more be abridged by invoking the National Labor Rela- -

tions Act than by invoking state statutes to regulate

such activity. Thornhill v. Alabama, -310 U.S. 82 (1940);

‘ NLRB v.. Virginia Electric-& Power Co., 314 US. 469

(1941); Thomas v. Collins, 323 U:S. 546 (1945). .

“In the case-at- bar, the Board;in determining the

- speech and writings were coercive ignored the total ab-

sence of illegal activities or conduct. The Board found: ©

--. |. the series of letters, pamphlets, leaflets, and ~

es from and by President Sinclair, hereinabove ~

. described, taken together and considered as a whole,

reasonably tended to convey to’ the employees the : .

belief or impression that selection of the Union in the ;

. . . forthcoming election could lead Respondent to close

its plant, or to the transfer of the weaving produc-

e tion, with the resultant loss of jobs to the wire weav-

- ers, (Emphasis added, App. 183). si,

The “First Circuit, in’ rejecting Sinclair’s. argument

that since the statements considered separately were law- |

ful, the combination of them was simply cumulative and .

could not be characterized as illegal conduct, stated: .

E The problem is not as simple as that. Convey-

ance of the employer’s belief, even though sincere,

————

that unionization will or may result in the closing of

the plant is not a statement of fact, unless, which is

most — the eventuality of closing -is capa-

ble of proof. . . . Moreover, in considering coercive

effect the test is the totality of the cee

. (Citations omitted, App. 209). | a

Then, noting that whether the employer has used lan-

‘guage that is coercive in its effect “is a question essen-

tially for the specialized experience of the Board,” the.

Court set out the “coercive” statements: _ |

It is evident that Sinclair’s communications were

‘designed to impress upon the wire weavers. (1) that .

the 1952 strike had left the company in a state of con-

tinuing financial difficulty; (2) that the union’s only.

-weapon is a strike and the Teamsters Union is a “strike

happy outfit”; (3) that another strike could, and in

his opinion. would, close the plant: and (4) that it

would be difficult for the wire weavers because of

their age and limited on to secure other em-

ployment. (App. 210).

employees believed rather than the words the employer:

used to determine whether speech was coercive demon-

-- strates clearly the Board has returned to its ——

Wagner Act test. , ; “ #

The Wagner Act, by section 8(1), prokiilied an em-

ployer from restraining, coercing or interfering with em-

ployees’ exercise of statutory: rights. P No portion. of the

57. The same,-provision appears as Section 8(a) ¢1), 29

U.S.C. § 158(a)(1): “It shall be an unfair labor practice for an

employer—(1) to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in’ section 7.”

Section 7, 29 U.S.C. 157, provides:

Employees. shall have the right to ett eumeniaetion, to ;

bargain collectively through representatives of their own

choosing, and to engage in other concerted activities for the

30 eink

. Act expressly curtailed the application of section 8(1) in

_ cases involving speech or communication, and any antiunion .

expression by an employer was initially viewed by the -

Board, with some circuit court approval,” as “interfér-—

ing” with the exercise by employees of their organiza-:

tional rights. ‘Thus, BW Oe ie IDE: 3

. - Arguments by an ematover directed to his em-

‘ployees have ... an ambivalent character; they are

legitimate enough as such, and pro tanto the privi-

lege of “free speech” protects them; but, so far as they

also disclose his wishes, as they generally do, they

have a force independent of persuasion. The Board

‘is vested with power to measure these two factors

against each other, a power whose exercise does not

trench upon the First Amendment. -

The standard for review of Board findings was then re-

garded as limited, with the emphasis on what the ert-.

ployees might think, rather than on what employers said.

. Judge Learned Hand in 1943, in NLRB v. American Tube -

Bending Co., 134 F.2d 993 (2d Cir. 1943), cert. den’d 320

U.S. 768 (1944), summarized what he believed to be the

early, erroneous approach:

. 2. any address . . from an’ employer sie

‘directly to his employees may have, and ordinarily .

will have, a double aspect: on the one hand it is an

expression of his own beliefs and an attempt to per-

‘purpose of collective barg gaining or other mutual aid and

and shall have the rig # to rejrein from eng or all

of such activities...

The italicized portion was added by Taft-Hartley.

58. See Se, AUDITS BG. Inc., 18 NLRB 925; Ford 3 Motor

Co., 23 NLRB 342

59. See, a Continental She Co. v. NLRB, 113 F.2d 93 (Sth.

Cir. 1940). But ‘see, Midland Steel Products Co. v. NLRB, 113.

F.2d 800 (6th Cir. 1940).

1941). NLRB v, Federbush Co., Inc.,.121 wach 954, 957 - Cir.

p* soa dt f 31 ,

suade his employees to accept them; on the Other -

hand, it is an indication of his feelings which his -hear-

ers may believe will take a form inimical to those

. whom he does not succeed in convincing. Insofar as_ .

dt is the first,.the Constitution’ protects him; insofar -~

as it is the second, it does not. The-Board, being .

'" composed of those especially versed in the subject

_ matter, must decide how far the second aspect pre-

dominates, and if they conclude that-it will seriously

coerce the employees’ freedom of choice, they may

* forbid it. (Emphasis added.) 134 F.2d at 994. .

and rejected it. He stated: 3 ’

But there was no intimation of reprisal against those

who thought otherwige; quite. the opposite. The most -

that can be gathered from them was an argument,

temperate in form, that a union would be against the

employees’ interests as well as the employer's, and

that the continued prosperity of the company depended

on going on as they hdd been. 134 F.2d at 995.

Judge Hand’s conclusion was” formulated from this

' Court’s rationale in Virginia Electric, supra, decided ‘two |

‘ years earlier. There, although this Court indicated ‘support

for the Board’s conclusion of employer domination of a

union in violation: of section 8(2) of the Wagner Act, this

Court, in assessing the statutory prohibition in light of the.

_” First Amendment, stated in an opinion by Justice Murphy: —

The employer in ‘this case is as free now. as ever

‘ take any. side it may choose on this controversial

‘issue. But certainly conduct, though evidenced in part

by speech, may amount in connection with other cir- |

_ cumstances to coercion within the. meaning of the |

Act. If the total activities of an employer restrain or |

coerce his employees in their, free choice,. then —

etnployeés are entitled to the protection of. the | Act.

(Emphasis added.) 314 U.S. at 477, - |

Ce &

ees . 32

The Court regarded as critical the activities of the company

consisting of a discriminatory discharge and unlawful acts

of assistance-to the union, and questioned whether a bulletin -

and speech were coercive without regard to the other con-

duct. The Court therefore remanded. Significantly, the

Court noted that if the utterances were separated from con-:

duct it would “find it difficult to sustain a finding of.coer-

* cion with respect to them alone.” 314 U. S. at 479. ”

Any question concerning the applicability of the First

Amendment guarantees to employer free speech rights was

finally resolved by this Court in Thomas v. Collins, 323.U.S.. .

516 (1945). There, in setting aside-a Texas licensing statute

on constitutional grounds, this Court held that by —

. .. Electric it had

. recognized that erhployers' attempts to persuade

to action with respect to joining or not joining unions

are within the First. Amendment. guarantee. . ce *

_. short of that limit [where conduct is added] the em-

_ ployers’ freedom cannot be impaired. The Constitution

- protects no less the er converse right. 323

US. at 537.

The Court, in Thomas, reiterated its earlier — ;

in Thornhill v. Alabama, supra:

In the circumstances of-our times, the dissemination of

information concerning the facts of a labor dispute must

bé regarded as within that area of free discussion that

is guaranteed by the Constitution. ... Free discussion

| concerning the conditions in industry and causes of

61. Judge Hand, reviewing the Court’s decision i in Virginia

Electric, said that: .

* The conclusion seems inevitable that the Court did not believe

that the bulletin and the speech would alone support a finding

_ of coercion. Possibly it so concluded because they could not

have, in fact, coerced the employees; but we do not so under-

stand it; the’ employer had raised his privilege and we read

the decision as fuera it. 134 F.2d at 995, .

The Court also rejected the approach which the Board

and the First Circuit now takes in its “totality”. concept,

which failed to distinguish between “speech” dissociated

from “conduct.” J ustice Douglas, joined by Justices Black

and Mupphy, concurring, distinguished between the use of .

economic power. and speech dissociated. from ’ conduct,

stating: S ie ; !

” But as long as he [the employer] does no more. than

speak, he has the same unfettered.right, no matter what

side of an ‘issue he espouses, 323 USS. at 544.

. Justice Jackson, also concurring, asserted:

- Free speech ‘on both sides and for every faction on any

side of the labor relation is to me a constitutional

and useful right.. Labor is free to turn its publicity

on any labor oppression, substandard wages, employer

unfairness, or objectionable worki g conditions. The

employer, too, should be ‘free to answer, and to turn

publicity on the records of the leaders or the unions

which seek the confidence of his men, and if the em-

ployer or organizers associate violence or other offense

against the laws with labor’s free speech, or if the em-

-ployer’s free speech is associated with’ discriminatory

' discharges ‘or intimidation, the constitutional remedy

would be to stop the evil, but permit the speéch if the |.

two are separable; and only rarely and when they are

| tmseparable, to stop or punish speech or publication.

+ 323 US-at 547... ee |

Since Virginia Electric, this Court has refused to con-

_ Sider words as an unfair labor practice When they are dis-_

_ Sociated from conduct. NLRB v. Exchange Parts Co., 375

US. 405, 410, n. 3 (1964). | ’

34 :

_ Free speech is no less free speech because the utter-

ances occur prior to a representation election, though robust

- ahd vigorous. This Court gave recognition to this in Linn

v. United Plant Guard Workers, 383 U.S. 53 (1963), and,

relying on traditional free speech concepts, held: that or-

| ganizing campaign speeches

. are to be considered “against the background of a

. f profound .: ; . commitment to the principle: that de-

' bate... should be uninhibited, robust, and wide open,

and that it may well include vehement, caustic, and

sometimes unpleasantly sharp attacks.” 383 U.S. at 62.

Yet, in the case at bar, the Board, in determining that

the speech and: writings were coercive,, acted as though

Virginia Electric and Linn were dead letters. Ignoring the

_ fact that the speech was in no sense- associated“ With any

illegal. conduct," the Board found that the employer com- .

. munications created “the belief or impression that selection

of the union in the forthcoming election could lead” to dire

consequences.- (App. 183, Emphasis added.) ~

The Board’s conclusion was adopted by the Court. But®

such a focus on employee surmise has been abandoned, as

shown by this Court’s pronouncements in Virginia Electric,

supra; Fhomas v. Collins, supra; and Thornhill v. Alabama, .

supra... To paraphrase Justice Douglas in Thomas.v. Collins,

. “Here, Sinclair did no more than speak” and the “rare case”’”

referred to by Justice Jackson, where ‘speech was insepa-

rable’ from other unlawful conduct, patently did: not exist.

. ‘62. --The only other act involved was the employer refusal ‘ \

' to grant recognition. This act is not illegal per se and was found . \ \

to be illegal only because the speech was found “coercive”. This

.finding of coercion gave rise to the inference the refusal was

unlawful (App. 195). It would indeed be anomalous to continue

with the circuitous reasoning and hold the speech was unprotected

as it was connected with conduct, otherwise legal, which was illegal

- because of the speech, which without the illegal conduct would

-. have been protected.

The decision of this Court in Thomas v. Collins guaran-

ing full freedom of speech was approved when Congress,

by the Taft-Hartley amendments, enacted section 8 (c) of

_ the Act. This limitation on Board authority provides:

The expressing of any views, argument, or opin-

ion or the dissemination thereof, whether fn written,

printed, ‘graphic or visual form, shall not constitute or ,

be evidence of any unfair labor practice under any of

the. provisions of this Act, if such expressions contain -

no threat of reprisal or force or’ promise of benefit.

.The purpose of the Amendment ‘was made clear by the

"_ Committee reports on the proposed ‘bills: .

: This guarantees free speech to employers, to em-

Pployees, and to unions. Although the Labor Board says

- it does not limit free speech, its decisions show that it

uses against people what the Constitution says they can

Say freely .. . the bill corrects this, providing that

nothing that anyone says shall constitute or .be’ evi-

dence of an unfair labor practice unless it, by its own

express terms, threatens ‘force or economic reprisal.

House Report No. 245 on H.R. 3020, Section 8(d) (1),

80th Cong., 1st Sess. iss

The Senate Committee report provided:

_ _ Another amendment to this section would insure

‘both to employers and to labor organizations full free-

‘dom to express their views to employees on labor

matters, as long’ as they refrairi from threats of vio-

lence, intimation of economic reprisal, or offers of

- benefit. The Supreme Court in: Thomas v.. Collins,

(323 U.S. 516), held, contrary to some earlier decisions

of the Labor Board, that the Constitution guarantees

freedom of speech on either side in labor controversies

and approved the doctrine of American Tube Bending

case (134 F.2d 993). The Board had placed a limited

63. 29 U.S.C. § 8(c).

| construction upon these decisions . . . the Committee

_ believes these decisions to be too. restrictive... .

Senate Report No. 105 on S. 1126, Section 8(c), 80th

Cong., Ist Sess. :

. If balancing the interests isg “judgment in the first instance

. forthe legislative 64 the judgment of Congress

was clear. The only exception in the judgment of Congress

was communication containing’ “threat of reprisals, or

force, or promise of benefit” and no other. Indeed, Con- ,

gress went further by providing protected statements could

not be “evidence” of an unfair labor — under “any

provisions of this Act.”

| But the Board in this case has again ignored the

guarantees of the First Amendment and Congressional in-

tent. In an almost identical case, NLRB v. Golub Corp.,

388 F.2d 921 (2nd Cir. 1967), the Board found employer

speech was likely to create and instill in the minds of the

employees fear of economic loss or suffering. Theré, as

here, the focus was not on the language used in the com-

munication but on the “belief” which might be created.

Judge Friendly rejected this approach: Hie

This is reading the Act as if § 8(c) did not exist;

while there is a risk that an employer’s prediction of

advetse consequences from unionization may be taken

as a threat to produce them, to hold that this danger

alone suffices to convert a prediction into a threat of

‘ reprisal ‘would go back to the very position of the -

early 1940’s which § 8(c) was adopted to change. .

388 F.2d at 928.

64. Justice Rutledge in Thomas v. Collins, sei 323 U. Ss.

at 531.

65. . To be sure the modifying language “by its own eens’ of

H.R. 3020, Section 8(c)(1), was eliminated in final conference,

but ‘the conference also eliminated the modifying language “under

all the circumstances” of S. 1126, Section 8(c), which would have -

initiated an unlimited search of the “background”, rather than a

hard look at the words spoken.

{ ‘ ;

» s

Sian nected ie aed abten. neue diepheregi fae bial tied

The views of Judge Hand in American Tube, supra

(which were given congressional recognition by the 8(c)

amendments to the Taft-Hartley Act) further support this

conclusion. There is no difference between this expression

and the American Tube expression that “a union would be _.

against the employees’ interests . . . and that the continued

Prosperity of the company depended on going on as they

had been.” The Speeches may not have been as “temperate

in form” as those in American Tube, but-speegch is no less

Protected because of “vehement, caustic, and sometimes un-

pleasantly sharp -attacks.” Linn v. Plant Guards, supra.

Other circuits have rejected the employee “belief” or

“impression” test. The focus has properly been placed on

the word used and only unless the employer uses his

economic power, or threatens to use his economic power,

will the words “constitute intimidation” to bring abdut the

“rare” case where speech may be enjoined.

Likewise, requiring the erhployer to prove economic

justification for its views, as did. the First Circuit,

clearly. offends constitutional Standards. “Authoritative

interpretations of the First Amendment guarantees have

NLRB v. Hobart Brothers Co., 372 F.2d 203 (6th Cir.

388 F.2d 395 (10th Cir. 1964); NLRB v. Threads, Inc., 308 F.2d 1.

9 (4th Cir. 1962); P. R. Mallory & Co. v. NLRB, 389 F.2d 703

The Eighth Circuit, in NLRB v. Herman Wilson Lumber Co.,

355 F.2d 426 (1966), relying upon decisions of the Fifth, Sixth -

ahd Third Circuits, decided: ~ ~ yy :

; eee

: consistently — ahaa to: recognize an exception . to the

test. of fruth—whether administered by judges; -juries,or__ . i

- administrative officials—and especially one that puts the

burden of proving truth on the speaker,” and “the con-

stitutional protection does not turn upon ‘the truth, popu-

larity, or social utility of the ideas and beliefs which are

_ offered’.”- New York Times Co. v. Sullivan, 376 U.S. 254,

. Finally, the Court erred in duferting the speech ques-

tion to Board: expertise. “The Court must examine for

itself” the statements in issue and the circumstances under >

which they were made to see . . . whether they are of a

character which principles of the First Amendment . . . pro-

tect.” spa gag Florida, 328 U.S. 331, 335. “Whatever

- vitality decisions . . . giving weight to an agency’ Ss con-

struction of mabebexy langingp may have generally . . . such

_considerations Have little weight when the statute being

enforced approaches the limits of constitutional power.”

NLRB v. Golub. Corp., 388 F.2d 921, 928 (2d Cir. 1967)..

‘Thus, when proper recognition is given to constitutional

principles, the statement of Sinclair “that another strike

- Gould, and in his opinion would, close the plant” is recog-

‘nized by all other circuits as a prediction of “dire conse-

_ quences” and not a threat that the employer himself will

_- take economic reprisals. This is particularly true as Sinclair

told the employees it wouldbargain in good faith (G.C.

Ex. 14; App. 126) and “we would not close the plant in

retaliation for employees.yoting for the union” (G.C. Ex.

17; App. 132). For this. reference to strike and the other

‘ statements enumerated by the First Circuit, the remedy un-

der the. principles of the free debate “is for the union to

answer them, not a cease and desist order.” NLRB y.TRW-

_ Semiconductors, Inc., 385 F.2d 753, 760, (9th Cir. 1967). Or,

put another way, “. .. it is up to the participants in a cam-

WeF " ' one ee

- St etl “ir “Wir ty = OT rs POEL OL IL DEL NG LE EOE ANE AAI tig ep

eee

Me ‘paign to find and counteract any statements that’they deem

inaccurate or misleading.” NLRB v. Hobart Brothers Com-

Se ppany, 372 F.2d 203, 206-07 (6th Cir. 1967).

_. ° And short of clear threats by an employer to take re-*”

prisals or of vote buying by promising benefits, all other

views, arguments or. opinions must be. protected, as Congress

recognized. If this were not the case, the free debate would _

cease to be useful as a tool to provide information to fa-

-Cilitate a reasoned choice concerning the direction the plant

or industrial. democracy is to take.

The selection of a bargaining representative, with its

manifold long-term ramifications on the industrial life of

an employee, is a-sufficiently weighty decision to warrant

a free discussion of all the relevant considerations involved

and to test the durability of the union’s alleged majority

in the crucible of a pre-election campaign. The-need for

such a discussion, in addition, is not only contemplated by.

the statute to permit a reasoned choice by employees, but

al > properly may be considered to find justification in the

interests of the employer to exercise its free speech rights:

and in @ need to protect employees “from the hazards of

letting their militancy outrun their power”. Employees

should be informed by such debate = *'—S—

-.. of the realities that may result from union repre-

_Sentation in choosing whether to- accept or reject a .

collective bargaining representative. -Moreover, if the

chofee by employees as to union representation is to .

_ be rational, employees stiould be entitled to know the

possible. consequences of strike action and how such

action may affect them and their future.... The em- .

ployer’s bargaining. attitude, the possibilities of losing |

present omers, long and crippling strikes, replace-

‘ ment of Strikers, are all signficant factors which em-

67. ais supra, note ®, at 857-8

‘

ee ee ee FOS LOE II POE LION E MELA

ployees should °9 able to —— in making a siemens

choice. .. .™

“\

But while the Board ios traditionally” van just 1 re-

- cently” been concerned with providing every opportunity

for union rebuttal to employer’s speech, it has returned

to the Wagner Act by regulating the contents of the speech,

-particularly if the views _— are unpopular with it." It

68. Pokemper, Employer. Free Speech Under the National

Labor Relations Act, 25 Md. L. Rev. 111, 146-47 (1965).

- 69. Peerless Plywood Co., 107 NLRB 427, provided “cap-

tive” audience speeches within *the 24-hour period preceding the

election would be the basis for setting aside the election. Holly-

wood Ceramic Co., 140 NLRB 221, declared material misrépre-

sentations of material facts made on the eve of the election and

thereby \precluding-reply would be the basis for setting aside the

election. Other rules for the conduct of the “debate” limit captive

audience speeches if union access or solicitation is limited by com-

pany rule. See, Livingston Shirt Co., 107 NLRB 400, and the de-

cision of this Court in NLRB v. United Steelworkers (Nutone, Inc.

and Avondale Mills), 357 U.S. 357 (1958).

70. Excelsior Underwear, ‘Inc., 156 NLRB 1236, 1239 (1966). .

Within seven days after the’ election is dir , the employer

must file with the Regional Director an eJection eligibility list, con-

taining the names and addresses of all eligible voters. The Re--

gional Director, in turn, makes this information available to all

parties. The purpose of this rule, as well as the ryles in no 69,

-was to establish a free debate. In Excelsior, ihe Mened un

Among the factors that undoubtedly tend to aN sails

a choice is a lack of information with respect to the choices

available. In other words, an employee who has had an ef-

fective opportunity to hear arguments concerning representa-

tion is in a better position to make a more fully inférmed and

reasoned choice. 156 NLRB at 1240.

Thus, another step. was taken in this direction by providing the

union with names and addresses of eligible employees so the union

might, distribute its views in writing (the mode of expression

found so inimical by the Board: here) or visit employees at their

homes. This is anaJogous to the very limited regulation of federal

elections by such measures, for example, as the equal time pro-

vision of the Federal Comrftunications Act.

71. motion picture “And Women Must Weep” has: been

roundly con by the Board as “it pictures a labor dispute as

one in which sijemaions. religion, family, motherhood, ‘and in-

nocent childhood are arrayed on one side, and goons, brutes, and

’ murdérers on the other or pro-union side.” Carl T. Mason, 142

NLRB 480, 486. Showing of the movie has been held by-the

Board to violate Section —_ said but enforcement was denied

‘gested:

has failed to recognize, as an eminent commenator has sug-

| «.. the policies adopted towards rebuttal [are]

intimately related to those that govern the context of

hat may be said and written on both sides. More

specifically; as the opportunity to reply is enhanced,

the need for regulating the context of speech tends to

diminish® Of courge, the two policies are not perfect _

substitutes; one can hardly reply on rebuttal to cure

clear threats of retaliation or serious misrepresentations .

on the eve of the election. But in the gray areas with

which-doctrinal controversy has been concerned, an

adequate opportunity to reply will go far to remove the

need: for expanding controls over the - context -of

speech.” Sie

_ CONCLUSION

We respectfully submit that speech here involved was

entitled to constitutional and 8(c) protection. The whole

span of the constitutional history of the First Amendment

in labor relations demonstrates a clear. recognition that

restraint of speech presenting only the most serious danger

should dampén the free discussion ‘and free debate en-

visioned by the Constitution. Where, as here, speech is

_ dissociated from unlawful conduct and in itself contains no

in NLRB v, Hawthorn Co ___. F.2d —_., 70 LRRM 2193 (8th

Cir. 1969). The Court re! ed-in part on the fact organized labor’s

answer; another film “Anatomy of a Lie,” was shown at the next

union meeting. :

72. Bok, The Regulation of Campaign Tactits in Representa-

tion Elections Under the National Labor Relations Act, 78 Har.

L: Rev. 38, 91 (1964). This somewhat restrained criticism of the

Board was written before the adoption of Excelsior, supra, note 70,

and Professor Bok’s concern over the opportunity for reply would °

seem to be obviated. -

—— LED LE GOERS ILS LEA LE OTE: THe

- _ —— _— - -_ — = a

—

jn ¢ .

threat or promise 6f benefit, it is fair comment and free

speech. Where, as here, speech otherwise free is deter-

mined by the Board to be unlawful because in the Board’s

_-view the “totality ‘of speech” unfairly “impresses” the lis-

tener’s state of mind then¢the Board is acting as a censor and

applying its own standards, not the ‘standards set down, by .

- law. The,answer is found/not in censorship, but in debate.

This answer was nae by this Court in New York Times

Co..v. Sullivan, 376 U.S/ 254 and in Linn, 383 US. at 162,

where this Court recognized that 8(c) encouraged “debate -

on issues dividing labor and management”; debate which

should not be limited but which may be “uninhibited, robust,

and wide open”; debate which “may well include ve-_

hemency, caustic and sometimes unpleasantly sharp at-

“tacks.” Debate then, and the op ity to reply, is the

. answer—not censorship.

“This Court spoke of our constitutional guarantees of

freedom of speech in Thomas and in related decisions. Con-

_ gress spoke through the 8(c) amendments to the Taft-

Hartley Act, and that willis to be obeyed. The Board, no

less than the courts, must give the law its full effect “in

accordance with its design and purpose. ..””; it must “look

‘to the provisions of the whole law and to its ro and

policy.” This the Board failed to do.

Siasiakits So Cnn senigs ak hte Chace ealh Congoees

we submit, would have required a: finding that the commu-

73. _ Takao Ozawa Vv. United States, 260 US. 178, 194. .

74. " Magstro Plastic Corp. Vv. NLRB, 350 U.S. 270, 280.

ee aes

43 meee é

nications to the employees here was free speech ‘and’ fully

protected. The decision of the Board should be reversed. -

~- Respectfully submitted, .* .

Harry L, Browne

Jack L, Warracre” ;

1000 Power and Light Building ~ .

106 W. 14th Street |

Kansas City, Missouri 64105

Attorneys for American Retail

. ' Eee Federation As Amicus Curiae

SPENCER, Fane, Britt & BROWNE

_ 1000 Power and Light Building et

106 W. 14th Street v .

‘Kansas City, Missouri 64105 7

Of Counsel __ |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.