1 - National Labor Relations Board

Supreme Court 115
been necessary to repair the unlawful effect of those threats."
However, in the .three Fourth Circuit cases (Gissel, Heck's, and
General Steel), the Board did not make a similar finding, nor did
it find that, "even though traditional remedies might be able to
ensure a fair election, there was insufficient indication that an
election (or a rerun in General Steel)" would definitely be a
more reliable test of the employees' desires than the card count
tak^n before the unfair labor practices occurred." Accordingly,
the Court remanded those cases to the Board for further findings.12
C. Antiunion Speeches by Employer
In Sinclair," the Supreme Court considered, in addition to the
authorization card issues discussed above, the scope of protection
which section 8 (c) of the Act 14 and the First Amendment afford
antiunion statements made by an employer in the course of a
union's organizational drive. The Court noted that section 8(c)
recognizes the right of the employer to express to his employees
his views concerning unionization, so long as the communications
do not contain threats of reprisal or promises of benefit. The
employer may even make a prediction as to the precise effects
he believes unionization will have on his company. But, the
Court added: " [T] he 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. . . . 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" and section 8 (c) .
"The Court approved the Board's Bernet Foam doctrine (146 NLRB 1277 (1969) ),
noting that thereunder "there is nothing inconsistent in the Union's filing an election petition
and thereby agreeing that a question of representation exists, and then filing a refusal-tobargain
charge after the election is lost because of the employer's unfair labor practices."
12 Subsequently, the Court reversed the judgments of the Sixth Circuit enforcing bargaining
orders in three cases—Atka Engine Works v. N.L.R.B., 396 F.2d 775. Thrift Drug Co. of
Pa. V. N.L.R.B., 404 F.2d 1097; and N.L.R.B. v Lou De Young's Market Basket, 406 F.2d
17—and the judgment of the Second Circuit denying enforcement of the bargaining order, in
N.L.R.B. v. Pembeek Oil Corp., 404 F.2d 105, and remanded all four cases to the Board for
further consideration in the light of Gissel.
" N.L R B. v Sinclair Co. 395 U S 575.
"Sec. 8(c) reads: "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."
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FrATTP CR TY
OF THt UNITED STATES GOV ERNMENT
NATIONAL LABOR RE LATIONS 130Apn