NATIONAL LAB RELATIONS BOARD - National Labor Relations ...

V. PRINCiPLES ESTABLISHED 37tion. The respondent's right so to interfere with, restrain, and coerce itsemployees is not sanctioned by the First Amendment.As to the respondent's contention that the act does not prohibit an employerfrom influencing his employees, it is clear, for the reasons already stated, thatthe respondent's actions here constitute not mere influence but interference,restraint, and coercion, expressly forbidden by the act.In the light of the foregoing considerations, and upon the entire record, whichportrays the systematic employment by the respondent of unfair labor practicesdirected against the union, we find that the respondent, by distributingto its employees "Viewpoint on Labor," has interfered with, restrained, andcoerced its employees in the exercise of their rights guaranteed in section 7of the act.That the Board considers "the entire factual background" in determiningwhether to sustain or dismiss a complaint alleging that anemployer made coercive statements is also illustrated by Matter ofSinclair Refining Co. and W. B. McKay. 34 There a foreman madestatements to employees derogatory to the union. The Board held,however, that the effect of the statements was not coercive in the lightof the entire record and the posting of notices by the employer, pursuantto agreement with the union, which gave assurances that theemployer would not interfere with employees in the exercise of theirrights under section 7 of the act.B. ENCOURAGEMENT OR DISCOURAGEMENT OF MEMBERSHIP IN ALABOR ORGANIZATION BY DISCRIMINATIONSection 8 (3) makes it an unfair labor practice for an employer :By discrimination in regard to hire or tenure of employment or any term orcondition of employment to encourage or discourage membership in any labororganization : Provided, That nothing in this act * * or in any otherstatute of the United States, shall preclude an employer from making an agreementwith a labor organization (not established, maintained, or assisted byany action defined in this act as an unfair labor practice) to require as a conditionof employment membership therein, if such labor organization is therepresentative of the employees as provided in section 9 (a) in the appropriatecollective bargaining unit covered by such agreement when made.35As pointed out in previous annual reports 36 the Board in administeringsection 8 (3) has been careful not to interfere with the normalexercise of the right of the employer to select his employees or todischarge them. The Board has never held it to be an unfair laborpractice for an employer to hire or discharge, to promote or demote,to transfer, lay-off or reinstate, or to otherwise affect the hire ortenure of employees, or the terms or conditions of employment forasserted reasons of business animosity or because of sheer caprice solong as the employer's conduct is not wholly or in part motivatedby antiunion cause. Thus, the Board in one case dismissed thecomplaint as to certain employees on the ground that the employerhad laid them off not because of union membership or activity but"capriciously * * * when in a state of anger and in order toassert his authority." 87 Conversely the Board has been equally20 N. L. R. B., No. 75; cf. Matter of Adams Brothers Manifold Printing Companyetc., and Topeka Typographical Union, etc., 17 N. L. R. B. 974.86 By section 9 (a), the representative designated by the majority of the employeesIn the appropriate collective bargaining unit is the exclusive representative of all theemployees in such unit for the purposes of collective bargaining.34 First Annual Report, p. 77; Second Annual Report, pp. 69-70; Third Annual Report,p. 65: Fourth Annual Report, p. 60.BY Matter of E. Hubschman d Bons, Inc., etc., and National Leather Workers' Association,etc., 14 N. L. R. B. 225.