of America, CIO, before the Senate Committee on Labor and Public Welfare, April 16, 1953, supplemented by brief entitled "Taft-Hartleyism in Textiles," and that of William Pollock, executive vice president, Textile Workers Union of America, CIO, before the House Committee on Education and Labor, March 30, 1953. We also refer to a brief entitled "Taft-Hartleyism in Southern Textiles or Feudalism With a New Face," filed with the Senate Subcommittee on LaborManagement Relations of the Committee on Labor and Public Welfare, on December 7, 1950.

Each of those presentations dealt in part with the employer speech provision of the Taft-Hartley Act. This brief will supplement the remarks and observations previously made.

Any intelligible discussion of employer speech must begin with a statement of the law under the Wagner Act. We therefore turn directly to that subject.

I

EMPLOYER SPEECH UNDER THE WAGNER ACT

The Wagner Act did not expressly lay down rules for the treatment of employer speech, and none was required. The historic enfranchisement of workers' rights set out in section 7 of the act, and the prohibition against interfering with those rights stated in section 8 (1), clearly delineated the great policy design with which all specific rules were to be made consistent.

The law of institutions dictates that not all members will be on a level of precise equality, and that in the hands of the elevated members will rest some power to coerce the inferior members. But this truism only sets out the problem, for our common experience informs us that each institution contains its own type of coercion: e. g., in the family, the denial of affection; in the Army, the denial of rank; in the church, the denial of blessings; and in civil institutions, the power to impose physically painful sanctions. That aspect of the business enterprise known as the employment relation also displays its own peculiar set of coercives, and in recognition of this fact the Wagner Act established a Board that was expert in its knowledge of the employment relation.

The power of the business enterprise over the worker was found to rest in the employer's ability to deprive an employee of his livelihood; the business enterprise could live without him, but he could not live without it. To maintain his physical well-being an industrial worker has to learn to please, in small matters as well as large. It was obvious that much less than the explicit phrases of command would compel employee obedience. Even astutely phrased opinions projected by the voice of authority could dissuade employees from joining labor organizations as effectively as express orders. It was apparent that the policy of the act would be nullified unless fair rules were established that would remove the coercive element from employers' expressions regarding the organizational activities of their employees. A summary of these rules is set forth below: 1. Statements coercive on their face

An explicit threat of reprisal in the event union organization was successful was held to be an unfair-labor practice. A threat that the plant would close down in the event the union won an election (Eagle-Phenix Mills, 11 N. L. R. B. 361 (1939)); or to discharge employees because of union affiliation (Standard Knitting Mills, Inc., 25 N. L. R. B. 168 (1940)); or to deprive employees of various benefits if they joined a union (Wolverine Shoe & Tanning Corp., 49 N. L. R. B. 881 (1943)) were all held to be unlawful because they destroyed the employees' free choice of a bargaining representative.

2. Statements coercive in the context of employer's total activities

The Board's "totality of conduct" doctrine was merely the application of commonsense to employers' efforts to coerce employees through the combination of coercive acts and noncoercive language. As part of a pattern of coercion, the noncoercive language could be separately condemned and forbidden along with the connected coercive acts.

Hence, in R. R. Donnelley & Sons Co. (60 N. L. R. B. 635 (1945)), the Board held:

"It is clear, and we find that the respondent's numerous oral and published statements, set forth in the intermediate report and hereinabove, viewed in the light of the respondent's labor-relations history and the discriminatory demotion of Walter West, set forth in the intermediate report, in their totality amounted to more than the kind of employer persuasion sanctioned by the Constitution."

Congress who will filibuster if this comes up as a part of the law, and therefore we do not want to take the chance of filibustering, because it will disturb the President's program of amending the TaftHartley law. That is wonderful. We want to see the President's program a success. But we do not want to see it a success at the expense of our life blood and economy destiny. We want to see it. in a way the President himself would want to see it, on the basis of fair treatment for everybody. We have to face that problem. If the people are going to filibuster against the change, then there ought not to be any change.

The CHAIRMAN. Thank you very much, Mr. Mitchell. Any questions?

Senator LEHMAN. I want to make this observation. I have no idea what the committee is going to do. I cannot speak for the committee. But I think Mr. Mitchell's statement with regard to the legislative procedure has been absolutely realistic, that there is no chance of getting anything through Congress as a separate bill.

The CHAIRMAN. If that is true, then I would like to talk to Mr. Mitchell before the hearings are held. Maybe he would not prefer to have the hearings.

Mr. MITCHELL. Mr. Chairman, I do not think we have that choice. It is well known that those who favor fair employment practice legislation believe that hearings are important, because of the educational value that they have. But I respectfully submit that I doubt very much that any one of the sponsors of the FEPC bill honestly believes that even though we have the hearings there would be a ghost of a chance of passing the legislation. But Senator Lehman and Senator Ives and others believe that we must continue to educate the country on this problem.

What you are saying is that while we will educate on the problem, we will pass another kind of law which will make the problem worse until we put these safeguards in.

The CHAIRMAN. I have not said that.

Mr. MITCHELL. When you said an alternative, that is what it would amount to.

The CHAIRMAN. I am sorry, we will have to recess.

STATEMENT OF EDGAR G. BROWN, DIRECTOR, NATIONAL NEGRO

COUNCIL

Mr. BROWN. I would like to make a brief statement before the recess, Mr. Chairman, Senator Lucas, who took the position that has been so well outlined by Mr. Mitchell, was defeated because he took the position he did against the FEPC and his unwillingness to include it in this type of legislation.

I further make the statement as a director of the National Negro Council that if this committee proceeds under Senator Ives and the chairman and Mr. Purtell's and Mr. Lehman's and other Senators who have already signed their names on this antidiscrimination amendment, it should be included in this legislation, it must be in my judgment, and if it is, it will go a long way to settle the whole issue of fair employment practices.

As Mr. Mitchell more or less indicates here, we do not want to go through the motions any more of some hearings that do not mean anything, and have this thing filibustered to death by the southern Democrats on the floor of the Senate. I think the liberal Democratic Senators and the Republican Senators ought to get together this time. and pass this legislation. As I heard you say, Mr. Chairman, it is so important that the individual worker be protected. Certainly if you are going to pass this amendment to the Taft-Hartley law after nearly 20 years, there ought to be some protection for 12 million Negroes who had to send 1 million of their sons to fight for democracy. I think all these people along with my son who is in that group would like to see this committee do it now.

The Republican Party ought to keep its promises and pledges as well as the Democratic Party.

The CHAIRMAN. Thank you.

The meeting will recess until 10 o'clock Monday morning, when the witnesses will be Eric Peterson of the International Machinists; Don Mahon of the National Independent Union Council; Joseph McGrath of the National Association of Home Builders, Elisha Hanson of the American Newspaper Publishers Association; and Emil Rieve of the Textile Workers Union of America.

(Thereupon at 12 o'clock noon, a recess was taken until Monday, February 1, 1954.)

3. Noncoercive statements as proof of other unfair labor practices

The full flavor of the vindictive spirit that pervades the Taft-Hartley Act can be distilled from the following piece of legislative history:

"It is provided that expressing any views, argument, or opinion or the dissemination thereof, whether in written, printed, graphic, or visual form, is not to constitute or be evidence of an unfair labor practice if such expression contains no threat of force or reprisal or promise of benefit. The practice which the Board has had in the past of using speeches and publications of employers concerning labor organizations and collective bargaining arrangements as evidence, no matter how irrelevant or immaterial, that some later act of the employer had an illegal purpose gave rise to the necessity for this change in the law. The purpose is to protect the right of free speech when what the employer says or writes is not of a threatening nature or does not promise a prohibited favorable discrimination." (Conference report, H. Rept. 510, 80th Cong., p. 45.) The foregoing extract is unprecedented in legislation effecting adjudicative bodies. By virtue of the language of section 8 (c) which prohibits the use of noncoercive statements to prove unfair labor practices, Federal labor law is now the only body of law in which a person's statements are excluded as evidence of his motive.

If Federal courts abused the use of statements to prove criminal motive, would Congress consider amending Federal criminal law so that statements could never be considered in proving motive? Is it conceivable that Federal courts could consider a defendant's possession of a gun, but not his statement, "Your money or your life?"

Congress chose only the National Labor Relations Board to handcuff in this fantastic fashion in order to make the proof of unlawful motive difficult and frequently impossible. In this purpose, Congress has been successful.

4. Captive audience doctrine

In Babcock and Wilcox, supra, the Board decided that section 8 (c) of TaftHartley abolished its captive audience doctrine. No longer could it hold that the compulsory aspect of a captive audience address constituted an unfair labor practice:

"Even assuming, therefore, without deciding, that the respondent required its employees to attend and listen to the speeches, we conclude that it did not therefore violate the act.

If employees were not to be totally deprived of their rights of self-organization, partial reinstatement of the captive audience doctrine was inevitable. It came in Bonwit Teller, Inc. (99 N. L. R. B. 608 (1951)).

The gravamen of the wrong, however, did not rest in the compulsion per se, but rather in the employer's refusal to grant the union an opportunity to reply. The employer committed an unfair labor practice because he made an antiunion speech during working hours on his premises, "without according, upon reasonable request, a similar opportunity to address the employees to the labor organizations against which such speeches are directed."

Member Reynolds dissented on the ground that the right to reply should be given a union only when it could be shown that other avenues of communication were not open to a union:

"The respondent's business is conducted in metropolitan New York City, where facilities for union organization and meetings are abundant."

Critics of the Bonwit Teller doctrine similarly leveled their dissent at the alleged mechanistic and hence arbitrary application of the doctrine. They felt that the Board should inquire in every case whether full and adequate means of communicating with employees were available to a union, and if they were, the Board should not grant a union the right to reply. All agreed, however, that when due inquiry revealed the absence of adequate channels of communication, a union should be granted the right to reply.

On December 17, 1953, the Board issued its decision in Livingston Shirt Corporation (107 N. L. R. B. No. 109 (1953)), and in one stroke abolished the Bonwit Teller doctrine. But for insignificant exceptions, the rule today is that an employer may compel workers to listen to an antiunion address on company time and property without according a union a right to reply.

Essential to the Board's decision was its finding:

"[There] are time-honored and traditional means by which unions have conducted their organizational campaigns, and experience shows that they are fully adequate to accomplish unionization and accord employees their rights under the act to freely choose a bargaining agent."