# Amicus Curiae Brief — National Labor Relations Board v. Gissel Packing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0029%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1969 - **Citation:** 395 U.S. 575 ## 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 ........... .- os VR Beet TEN RENE ELI " . o ‘ « . . - « . “ . - “e 7 & e . ° . P was - ; ° . . ¢ ‘ P z - . i . . “ . 4 a _° ’ e . . od ° Z . . ° ° ‘ . re : . . ‘ ‘ 2 ° 4 . . F » . . ? ® : P * . ; 0] ; . . r . ; ° . zs ’ >» ° : ® ss e . : . ry ® ° . . ne . . . € . . . . a %y o ° “ m - a - i . E ‘ 78 ; rd ‘ “i f ’ S&S e. ; - P } , ‘ ; oe f . t o a . ’ . } o ° 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. 0. 2 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 er 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 r “ 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. 4 _ 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. _ ° 6 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 . 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, 0 | 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 . ‘ — os . 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 t (1) Prior to 1947, the Board had the urerogative to —sincé an employer could violate . 15 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 © The Legislature has the | power to decide what the 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). 6 ‘. check of authorization cards. collected\.at the behest of a © go as ¥ 2 ce pe 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. ~ 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. 26 _ 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 i. 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 a fs 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, ———— 29 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). The focus by the Board and the Court on what the © 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, - | ee o 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, . \ ~ 2- 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. ce 35 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). 36 | 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 : 37 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, i . 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 40 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: 41 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 — a2 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 __ | i) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0029%3A13. Public record. Not legal advice.