Evening star., 1946-10-29
Circuit Court Decision
On Free Speech Clear
Wagner Law Does Not Compel
Closed Shop Recognition

Wagner Law Does Not Compel
Closed Shop Recognition
By Dapid Laurence
Several weeks ago in these dispatches
reference was made to the attempt Of
the National Labor Relations Board In
the Clark Brothers case to sustain an
unfair labor practice" charge under
the Wagner Act when an employer
summoned his employees to a meeting
during working hours to discuss union
questions. The board claimed this was
the exercise of superior economic pow
er" because the employees had to listen.
Now the United States Circuit Court
Of Appeals, In different case but ons
In which the facts are virtually identi-
cal with those in the Clark case, says
that the employer is protected by the
free-speech clause Of the Constitution.
The decision is so clear-cut as to re-
move any substantial doubt about the
fact that the Constitution still super
sedes the Wagner Act, though it is
plausible to assume that the matter will
nevertheless be carried by the board
to the. Supreme Court of the United
States for final decision If that court
chooses to hear the matter. The Circuit
Court also said incidentally that refusal
to bargain on the closed shop was not
unlawful.
1T is argued that compulsory at
tendance at the meetings." says the
Eighth Circuit Court, was q species Of
coercion. The employees attended in
groups and certainly employers havs
the right to meet their employees for
discussion and presentation Of matters
Of policy Of mutual interest.
Paid for Meeting Time.
"In the instant case the employees
were paid for the time spent at ths
meetings. The first amendment Is con-
cerned with the freedom OF thought
and expression Of tpe speaker or writer.
not with the conditions under which
the auditor or listener receives ths
precedent to his right Of free speech
under the first amendment, secure per-
mission of his auditor. The first amend
ment does not purport to protect the
right Of privacy, nor does 1t require
that the audience shall have volunteered
to listen.
"In asking its employees to attend Q
meeting on company time, at which
affairs Of mutual interest to respondent
temployer) and the employees were to be
discussed, respondent was employing q
convenient means Of communicating
with its employees The employees were
paid for attending and were not incon-
venienced in the least. If they were
Influenced against their will by the
arguments presented, this was a legiti-
mate consequence Of free speech and
presumably one Of its purposes. Free
speech is not to be limited to ineffective
speech the occasion on which the
employer elects to utter his thoughts Is
not to be considered as an element of
coercion. He is as free to speak at one
time as another. The first amendment
does not prohibit the communication
Of ideas but rather guarantees that
right
IF the speaker must hesitate before
uttering his thoughts, If he must weigh
and nicely balance every word so as to
determine whether what he is about to
say Is permitted or forbidden, the guar
i anty rendered by the Constitution Is lit
,tle more than theoretical He Is wholly
at the mercy of the varied understanding
OF his hearers and consequently Of
whatever inference may be drawn as to
his intent and meaning. Such distinc-
tion offers no security for free discus
sion quoted from opinion Of Suprems
Court of the o. S. in case called Thomas
VS.. Collins. If subtleties may be In
voked as the bases for an inference that
noncoercive remarks may have had an
altered import in the minds of the
listeners. any employer would be sub
jected not only to the varied under.
standing Of his hearers, but also sub
jected to the chance OF what the board
might infer. We think such doctrine
would take away all security for free
discussion
Opinion on "Closed Shop"
Even more important In the same
opinion from the Eighth Circuit Court
of Appeals is the comment on the charge
that when the employer in the case
stated TO his employees his opposition to
the CLOSED shop" this was notice that
the employer would refuse to bargain
collectively with the designated bargain-
ing agent. The court says:
1.-THE statute (the Wagner law) merely
authorizes but does not purport to COM
pei the employer to recognize the closed
shop. The most that can be said is that
bargaining for closed shop or for q
signed agreement with the employer Is
frequent subject of negotiation between
employer and employees. There Is no
indication that there would be refusal
to negotiate, but on the contrary the
right of organization and Of collective
bargaining by the employees is definitely
and expressly recognized in Bars lths
employer's) remarks reference to
. policy opposed to the closed shop was
not, we think. improper and 1t has the
implied approval Of other courts"
The sad part Of all this Is THAT no
matter what the courts say, there Is q
disposition to employ every technicahty
to keep litigation going against employ
ers so that, under Wagner Act proce-
dures, there is no way the employer can
be assured of his rights Of free speech
guaranteed by the Constitution except
presence In the courts.