Evening star., 1946-09-10
Employers Deprived
Of Rights by NLRB
Limit on Free Speech Expressed
by Herzog
BY Dovid Laurence

By D0pid Laurence
The Constitution of the United
States says the Congress shall make no
law "abridging freedom of speech" 1t
doesn't say that employers are to make
only certain kind Of speeches or that
some other conduct In which they nay
engage separate from the speech-making
is to cause them to forfeit their rights
of expression.
Yet Paul Herzog. Chairman of the
National Labor Relations Board, in an
address Just delivered, explaining recent
decisions Of the board, says that free
dom Of speech where employers are
concerned is now limited" by the Wag-
ner Act and what the Labor Relations
Board considers privileged.
Mr.. Herzog is an able and conscien-
tious public servant and believes i'm
plicitly in the doctrine which he ex-
pounds but, it looks, unfortunately, rs
If he has adopted the New Deal philo-
sophy, which is that the Constitution
shall be interpreted by Governmental
boards and the courts In such q way Is
to please labor unions irrespective of
the damage it does to the economic
life Of the country or public confidence
in a system of constitutional law.
Discusses Clark Case.
Mr. Herzog's address reviews recent
decisions on the freedom Of speech
issue but interest centers now on the
Clark Brothers case which he endeavors
to explain in his latest speech. The
labor board chairman says that in
some cases what the employer may do
by way Of threat or coercion separate
from the speech constitutes an unfair
labor practice" within the meaning of
the Wagner law. But in the Clark
case he frankly states that the employ
er's speech. standing by itself. and
though containing In It's language no
threats or reprisals is violation of
the law because the employer compelled
his audience to listen by assembling
them during working hours.
The boards decision said the chief
sin was that the employer used his
superior economic power in coercing
his employees to listen to speeches relat-
ing to their organizational activities,
and thereby independently violated Sec
ton 8 O of the act"
This language from the decision ap-
pears to go contrary to the final para
graph of the labor board chairman's
address in which he says:
when words are only words, they
are-and should be-immune from ac-
tion by the board. When words be-
come, or portend, or are closely asso-
ciated with acts of interference by an
employer exercising superior economic
power they cease to be words alone.
Free speech is one thing; unrestrained
conduct is another. The board must
be careful neither to inhibit the first nor
wink at the second"
Employers Lose Rights.
But actually is there any employer
who doesn't today possess superior
economic power" in the opinion of the
National Labor Relations Board? The
boards decision could, therefore, as well
have said that "all employers" lose
their constitutional right Of free speech
because they possess superior economic
power" Perhaps as one strike weapon
is intensified, employers will lose their
superior economic power" in which
case presumably the board will some
day reverse itself.
a. -,
however, tells employers what defni-
tions are to guide them so as not to run
afoul Of q labor board charge of unfair
labor practice" The board chairman,
for instance, in speaking of the Clark
case, quotes from that decision as fol-
lows:
THUS, standing alone and in the alb
sence Of other evidence, the presenta-
ton Of an argument, temperate In form
and containing no intimations of re-
prisal may not support an in
ference Of coercion suficient to out
weigh the employer night Of free speech"
Who is to say what is temperate in
form? The employer in the Clark case
read speech prepared in advance and
which contains no threats or hints of
reprisals and appears in every respect
to an impartial eye to be temperate in
form
Board Not Satisfied.
Yet the labor board wasn't satisfied
with the words -alone-theory" and de-
clared that because the speech was de-
livered in working hours, this was an
act of coercion" Will the next limita-
ton be that the employer must allow
employees to circulate scurrilous litera-
ture in his plant attacking the manage
ment and yet he cannot mail reply to
the homes of the employees because he
alone possesses the mailing list and
that's superior economic power?
The Constitution says nothing about
freedom of speech in temperate form"
or about limiting it to those who do not
possess superior economic power" A
great liberal jurist on the Supreme Court
said that freedom of speech meant
freedom for the thought we hate" but
the labor board says 1t must be "tem-
perate in form" and, of course, the
judge Of what is temperate is the labor
union which brings the charge and the
National Labor Relations Board which
sets itself up as mind-reading or mo-
tive-reading tribunal on what Is or Is
not temperate"
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