1. State the basis of Sinclair’s challenge to the Board’s

1. State the basis of Sinclair’s challenge to the Board’s decision.
2. Discuss the free speech differences between a union representation election and the election of a legislator or the enactment of legislation.
3. What standards did the Supreme Court set forth for evaluating employer statements to employees during an organizational campaign?

[Partial statement of facts relating to the Sinclair Company, one of the four cases considered by the Court in its Gissel opinion.

After the president of the company learned of the union’s organizational drive, he made speeches, issued pamphlets and leaflets, and sent letters conveying the message that the union was strike-happy and that a vote for the union could result in the plant’s being shut down. Moreover, he informed the employees that because of their age, they could have difficulty finding other employment. The union lost the election, and the union filed charges before the Board. The Board found that under the “totality of the circumstances,” the company’s activities amounted to a violation of Section 8(a)(1). Because the company’s activities tended to foreclose the possibility of holding a fair new election, it ordered the company to bargain as requested with the union. The Court of Appeals for the First Circuit enforced the Board’s order, and the company appealed to the Supreme Court, arguing that the statements made by the employer were protected by the First Amendment and that a bargaining order was inappropriate.]


… We consider finally petitioner Sinclair’s First Amendment challenge to the holding of the Board and the Court of Appeals for the First Circuit. At the outset we note that the question raised here most often arises in the context of a nascent union organizational drive, where employers must be careful in waging their antiunion campaign. As to conduct generally, the … gradations of unfair labor practices, with their varying consequences, create certain hazards for employers when they seek to estimate or resist unionization efforts. But so long as the differences involve conduct easily avoided, such as discharge, surveillance, and coercive interrogation, we do not think that employers can complain that the distinctions are unreasonably difficult to follow. Where an employer’s antiunion efforts consist of speech alone, however, the difficulties raised are not so easily resolved. The Board has eliminated some of the problem areas by no longer requiring an employer to show affirmative reasons for insisting on an election and by permitting him to make reasonable inquiries. We do not decide, of course, whether these allowances are mandatory. But we do note that an employer’s free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union, or the Board. Thus, Section 8(c) merely implements the First Amendment by requiring that the expression of “any views, argument or opinion” shall not be “evidence of an unfair labor practice,” so long as such expression contains “no threat of reprisal or force or promise of benefit” in violation of Section 8(a)(1). Section 8(a)(1), in turn, prohibits interference, restraint or coercion of employees in the exercise of their right to selforganization.

Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer’s rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in Section 7 and protected by Section 8 (a)(1) and the proviso to Section 8(c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. Stating these obvious principles is but another way of recognizing that what is basically at stake is the establishment of a non-permanent, limited relationship between the employer, his economically dependent employee and his union agent, not the election of legislators or the enactment of legislation whereby that relationship is ultimately defined and where the independent voter may be freer to listen more objectively and employers as a class freer to talk. Compare New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Within this framework, we must reject the Company’s challenge to the decision below and the findings of the Board on which it was based. The standards used below for evaluating the impact of an employer’s statements are not seriously questioned by petitioner and we see no need to tamper with them here. Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, n. 20 (1965). If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. We therefore agree with the court below that “conveyance of the employer’s belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof.” 397 F.2d, at 160. As stated elsewhere, an employer is free only to tell “what he reasonably believes will be the likely economic consequences of unionization that are outside his control,” and not “threats of economic reprisal to be taken solely on his own volition.” NLRB v. River Togs, Inc., 382 F.2d 198, 202 (C.A. 2d Cir. 1967).


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