Abridging Free Speech

January 4, 1965

The National Labor Relations Board, in a 4-to-1 decision, has held that the General Electric Co. did not bargain in good faith with the International Union of Electrical Workers.

It would take a full recital of the record to show just how fantastic this decision is, but two aspects of it deserve special consideration.

The board majority argues that the company was not bargaining in good faith because it purportedly made an offer with a “‘take-it-or-leave-it’ attitude.” What did the board expect the company to do? Did it expect it to keep on making further concessions indefinitely, after it had already conceded as much as it felt it could afford? Or did it (as the company asks) expect General Electric to hold back from its initial offer, for last minute settlement, some substantial item that the IUE had demanded, so as to allow the union to create the appearance of having forced this item from the company against its will? Does the board expect sham and ritualistic play-acting at the bargaining table, or protracted oriental haggling?

As the NLRB itself decided in the Philip Carey case in 1963: “That the respondent considered its offer as final is a matter of its own judgment. One need not listen to argument endlessly. There comes a point in any negotiations where the positions of the parties are set and beyond which they will not go.”

DOUBLE STANDARD

But in the eyes of the NLRB majority, General Electric was guilty of other crimes. It sought “to create the impression that the employer rather than the union is the true protector of the employees’ interests.” Many economists would say that this is the simple truth. It is, after all, the employer who provides their jobs and their wages or salaries; they might get these without the union, but not without the employer. But, whether this is true or not, is the employer to be forbidden to say it?

The NLRB majority held the company guilty of “the purpose of disparaging and discrediting” the union officials in the eyes of the union members. Its decision said nothing whatever about the disparagement of the company by the union leader, James B. Carey, though the board’s own trial examiner referred to Carey’s “explosive temperament (several times to the point of threatening physical violence)” and to his “uninhibited” talk and “invective.”

But what is most amazing is the board’s ruling that it was an unfair labor practice even for General Electric to try to influence or communicate directly with its own employees. Is an employer to be denied the right to keep its employees and the public informed regarding the facts or his point of view on issues under negotiation? Are the rights of union members to know what is going on to be limited solely to what the union officials want to tell them?

REMEDIES

The NLRB’s decision is in effect a denial to employers of the right of free speech guaranteed by the Constitution and even by Section 8 (c) of the Taft-Hartley Act: “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this act, if such expression contains no threat of reprisal or force or promise of benefit.”

All anti-employer laws and rulings are, in the long run, anti-labor laws and rulings. Whatever penalties, uncertainties, and harassments cause investors to hesitate in starting new businesses or new plants must retard more employment or better wages.

What can be done? There is no point in arguing that the NLRB ought to make less one-sided and fantastic decisions. Recently it has been making more and more one-sided and fantastic decisions. A salutary step might be to abolish the NLRB and give the regular constitutional courts full jurisdiction, in law and equity, in all cases arising under the Taft-Hartley Act. A minimum reform would be to strike the “good faith” provision from the act, which enables the NLRB to find employers guilty of not making enough concessions. Has the Taft-Hartley Act become, in effect, a one-sided legal compulsion on employers to make concessions?