Evening star., 1943-10-24
Employers Are Advised
To Speak Softly
By John H. Cline.

Two rulings by the supreme Court,
one Of which was announced only last
week, have been rather widely inter-
preted as giving employers consider
able leeway i'll debating unionism with
their employees. careful examination
Of what the court has said, however.
dlScourages any such assumption. AS
the matter stands today an employer
may express himself with a bit more
freedom, under certain conditions, than
formerly was the case. But there is no
reason to suppose that he can speak
his mind" with impunity.
The question reached the Supreme
Court on the issue of measuring an en-
ployer's right of freedom of speech un-
der the first amendment to the Consti-
tuition in the light of the restraints i'm
posed by the National Labor Relations
Act. This issue was neatly sidestepped,
the court holding, in effect, that, while
an employer has the same constitutional
right of free speech as any other cit
lzen, he exercises it at his peril in talk
ing with his own employees.
Until December %, 194l. it had been
widely assumed that an employer could
not discuss any union issue with his
employees without exposing himself TO
punitive action under the Labor Rela-
tons Act. But on that date the court
announced its opinion in the Virginia
Electric & Power Co. case-an opinion
which conveyed at least the superficial
gIr hot
protection Of the first amendment,
might discuss Nnionism with his work
ers provided his statement was not
coercive on its face. Actually, however.
the freedom, if any, which the court
gave to an employer in this decision
was so limited as to be almost meaning
less. Nor is there good reason to be-
Aere that last weeks ruling did very
much to enlarge the area in which an
employer may express his views with
out running a1oul of the labor law.
Labor Board Cautioned.
IN the Virginia case. Justice Murphy
emphasized that the Wagner Act pro-
VldeS that the findings OF the National
Labor Relations Board. il supported pv
evidence, shall be conclusive" This he
said. 'precludes all independent copsid-
eIdtlon 10y lhe courts of the facts"
But the Labor Board had not been very
specific in setting out the reasons s,ln-
porting Its finding that the EMPLOYER
was guilty Of unfair labor practices
IheIe was a history in the plant n
SdlC, OF 9ntnINin,,
company also had posted bulletin board
statement discussing the prospect of
uNlonlZlng the plant and the comDanv
president had mace speech to the en-
pIoEeS dealing with the same subject
Both Of these statements, on their facee
at least. were temperate and norco-
eEclIe. but the board singled then, ont
IN support OF its finding. The Supreme
Colnt, IN Sendlng the case back to the
coard FOR Clarlhcation. indicated il din
not feel that these Statements stand
ing alone amounted to unlawful co.
erclon. But the court also made it clear
alat the board, If it desired to DO 60
eould Mt the statements into the pattern
OF the companys general attitude
toward unions, and use them in that
context TO support its findings. As
matter OF fact, that is precisely what
the board did when it reconsidered the
case, ana Its second finding against the
company was upheld in the courts.
Inc question cropped up again last
week "hen the Supreme Court turned
Gown a request from the Labor Board
1of review Of a decision of the Second
Circuit Court which. in effect. SET aside
HNdlAg by the board that the American
LUBE Bending Co. had been guilty of an
unfair labor practice In other words
the supreme Court approved the nosi-
tlon taken by the Circuit Court. and this
was nailed as mailing down an EMPLOYERS
right TO speak his piece But a reading
OF the Circuit Court opinion would lead
any lawyer to advise an employer to be
extremely careful what he says. how he
says 1t and when he says it.
In the Tube Bending Co, case the
employees, as shown by an NLRB election.
emphaucaIly did not want any union in
the plant. But the employer neverthe-
less had written form letter to all en-
ployes and had made a speech to them
prior to the election, and the statements
mace on these occasions formed the
sole basis for the Labor Boards finding
that he had been guilty of an unfair
IdpoE pfactlce. But once again the
statements were not coercive on their
lace, and the Circuit Court, speaking
through Justice Learned Hand. refused
to enforce the order.
Legal Double Talk.
Judge Hand was quite frank in saving.
however, that had it not been for the
Supreme Courts decision in the Vir-
ginia case, he and his associates might
have considered earlier rulings as re-
quir1ng them to enforce the boards
order. Those (earlier) decisions" he
said, might be interpreted as holding
that any address or other communica-
ton from any employer made directly
to his employees may have, and ordinarily
Will have, double aspect-on the one
hand 1t is an expression of his own be-
heis and an attempt to persuade his en-
ployeS to accept Them. on the other, it is
an indication of his feelings which his
hearers may believe will take a form
lnlmical to those of them whom he does
not succeed in convincing. Insofar as
1t 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 predominateS and If thew COZ,