guarantees assured by the organic document. Said section reads as follows:

The expressing of any views, arguments, 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. This simple sentence should never have been required to be written into law because of the self-executing free-speech provision of the Constitution. Nevertheless, employers found, in the days of the Wagner Act, that it was a dead letter insofar as the National Labor Relations Board was concerned.

Anything expressed by employers, or by others however remotely connected with them, that indicated disapproval of unions or union leaders was considered as evidence that an employee discharged for misconduct was, in fact, discharged for union activity, even if the discharge took place years later; also, such expressions were used as the basis of a finding of bad faith in collective bargaining if an employer later refused to make concessions in negotiations. As a result, relatively few employers risked these sanctions.

The United States Supreme Court in part, and then the TaftHartley Act more fully, corrected that situation. It affirmed the basic right of an employer to express his views, arguments, or opinions without fear of committing a fictitious unfair labor practice, provided that he made no threats or bribes.

How has the Board reacted to this simple rule? It has decided that an employer's expression of his views as to the undesirability of his employees affiliating with a union, even though free of threats or promise of benefits, may be the basis for setting aside an election which the union has lost. The citation on that is the General Shoe Corp. (77 N. L. R. B., 124, 21 L. R. R. M., 1337, 1948).

This is done through the device of distinguishing a "representation" case from an "unfair labor practice" case, and then applying the congressional prohibition only to the Board's definition of an "unfair labor practice" case. Thus, the Board is able substantially to restrict the free speech provision of the act by ruling it to be inapplicable to a large and important segment of cases under its jurisdiction to wit, those involving the selection and certification of bargaining units.

We contend that this devious distinction used by the Board and its resultant severe impact upon the constitutional right of free speech was certainly not intended by Congress. The evidence seems clear that, at the time the Taft-Hartley Act was adopted, Congress sought through this provision to protect the employer's right of free speech without any such qualification. The House version of the free-speech provision was the one finally adopted without substantial change, and, thus, the House conference report thereon (No. 510 on H. R. 3020) is of special significance. At page 45 thereof is specified the restrictive practice theretofore followed by the Board and the intent of the proposed corrective legislation:

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 somę 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 as does not promise a prohibited favorable discrimination.

We submit that, in the face of such sweeping language as to the real intent of Congress, the Board's restriction on the right of free speech in representation cases is another circumvention of the law; in short, another fetter imposed upon employers from which labor organizers remain completely free.

Another illustration of the Board's innate hostility to free speech for employers is its initiation and expansion of the so-called BonwitTeller doctrine, the practical effect of which is that if the employer exercises the right to address his employees on a labor matter of mutual interest on his own premises and time, he must also permit unions to use his property and working hours to address his employees on the other side of the subject, regardless of the adequacy of other media of communication available by the union to the employees, thereby, in substance, assuring the union the "last word." 1

I might add parenthetically on that, that one thing the Labor Relations Board apparently conveniently overlooks in reaching that decision and following that doctrine is that this is not initiated. They refer to the fact that the Board is granting the employee, the union, the right to answer the objection or answer the arguments against unionization if that is the situation before them, giving the union the right to answer the points raised by the employer.

But what the Board conveniently overlooks is that in making that address, the employer is answering a campaign that had been conducted for days, weeks, or months, by the union in advance and this is his only opportunity to point up and head up his views to the contrary against what the union has been conducting for what might be an unlimited length of time.

In our opinion, the whole principle upon which the Board pins this device to give the union the last word in this case is just falling flat on its face. It is faulty rationalization.

Thus, it again becomes necessary for Congress to affirm that the constitutional right of free speech exists for American citizens, even if they are employers.

The last of our key points that we present here is the reorganization of the NLRB. The National Labor Relations Board and its staff should be reconstituted and reorganized.

Confidence in NLRB by all groups is necessary if it is to serve a useful purpose. Certainly, management has cause to doubt seriously whether the Board, as presently constituted, is able with intellectual honesty to administer the Taft-Hartley Act as Congress wrote it and intended it to be. As long as any Board members and key staff members apply the one-sided philosophy of the Wagner Act, we cannot have the balanced labor-relations policy sought by the Congress in

that act.

A dispassionate review of the decisions of the Board seems to disclose a studied attempt to evade the clear-cut intent of Congress, as expressed in the Taft-Hartley Act, and to revert to the principles

Bonwit-Teller, Inc. (96 N. L. R. B. 608, 28 L. R. R. M., 1547 (1951)); Metropolitan Auto Parts, Inc. ()99 N. L. R. B. 401, 30 L. R. R. M., 1079 (1952)); National Screw and Mfg. Co. (101 N. L. R. B. 218, 31 L. R. R. M., 1208 (1952)).

established under the Wagner Act. These include various decisions on the lockout and strike, on free speech for employers, and on secondary boycotts, among others.

Men steeped in one philosophy of life do not readily change their concepts in response to a legislative mandate. Thus, we say that two changes are in order:

First, a reconstruction and reorganization of the Board and its staff; also an increase in membership of the newly constituted Board to seven members to achieve more efficient and prompt action.

Second, a separation of functions. Administrative tasks, such as the issuance of complaints and the holding of representation elections, should be separated entirely from the judicial functions of the Board. More important still, the Board should have no control over, or participation in, the prosecution of NLRB cases, and this calls for the complete independence of the General Counsel.

Senator IVES. You would have the Board act primarily as a court? Mr. GRONER. I think so, sir. I think, Senator, that that is basically what we should reach for in this thing.

When you combine the functions of investigator, prosecutor, judge, jury, and executioner in a single agency, then to expect the judicial function to be exercised completely independent of and free from the influence of the other functions is to strain credulity beyond the breaking point.

Now, I would like to add a few comments on that because when I appeared before the House that was where I was shot at most. That is, the House Labor Committee. It was on the matter of a reconstitution of the Board.

There has been some correspondence on the subject between me and General Counsel Bott, of the Board, who said very generously that he agreed with most of the things I said, but he took exception to my criticism of the Board.

(The correspondence referred to follows:)

CHAMBER OF COMMERCE OF THE UNITED STATES,
Washington 6, D. C., March 30, 1953.

Senator H. ALEXANDER SMITH,

Chairman, Senate Labor and Public Welfare Committee,
United States Capitol, Washington 25, D. C.

(Attention: Mr. Rodgers.)

DEAR SENATOR SMITH: When I testified before the Senate Labor and Public Welfare Committee on March 25, I referred to an exchange of correspondence between NLRB General Counsel Bott and myself. This reference is at page 266 of that day's transcript.

Copies of the correspondence were not placed in the record at the time I testified, so I am enclosing copies with the hope that you will have them incorporated in the proceedings.

DEAR MR. GRONER: I have read your testimony before the House Committee on Education and Labor with a great deal of interest. Although I agree with much of

what you had to say, I disagree most positively and respectfully with your feeling that most of the staff are unable to adjust their thinking to the Taft-Hartley law.

When I was regional director in Kansas City, I tried to enforce the Wagner Act to the best of my ability, and, I hope, with sympathy for the problems of the employers involved and from a commonsense point of view. It has been my experience that practically every one of our people in their jobs are today doing the same job under the Taft-Hartley Act. It might interest you to know, in passing, that I recently supplied the House committee with figures which show that 65 percent of our people have been hired since the passage of the TaftHartley Act. I have made it my business by visiting our regional offices to try to get to know all these people personally.

I hope sometime when I am in Kansas City that I can drop in and talk to you about our people, about the job we are trying to do, and about labor relations in general. I have made this field my life's work and I would leave it within a moment's notice if I thought I could not approach it objectively.

I am enclosing a copy of the statement I made before the House committee and I hope you will read it with as much interest as I read the statement of the United States Chamber of Commerce.

DEAR MR. BOTT: I have your letter of the 11th, this month, commenting upon the testimony which I recently presented, on behalf of the national chamber, before the House Labor Committee relative to the course which we believed that new labor legislation should take.

From that letter I note that, while you agree with much of what I had to say, you disagree with my feeling that most of the "staff" are unable to adjust their thinking to the Taft-Hartley law.

My comments on that point were not limited to the "staff"; they extended equally to the members of the Board. They represented not only my personal convictions but those of the "grassroots" membership of the national chamber; and, by so doing, we were not impugning the personal integrity of any man but merely applying human nature to the facts of life.

We all now know that the Wagner Act was designedly one sided in its inception; that it was initially administered mostly by hot-eyed young zealots, carefully screened and molded in their formative years by Nathan Witt and others of his ilk; and that the real objective sought was not to promote industrial peace but, rather, dissension and an autocracy of labor.

That shameful chapter in our legislative and administrative history is fortunately long since closed; but the memory lingers on and, more important, vital precedents were set and thinking crystalized which, we sincerely feel, still prevails to some extent to this day. Men raised in that atmosphere, or its aftermaths, would be more than human if they were able entirely to divorce themselves from its effects. The human mind does not readily reorient itself merely

by reason of legislative fiat.

Even if we of the national chamber are completely wrong in our belief that the "Wagner Act philosophy" still prevails in strong segments of the NLRB setup and I do not think we are wrong-yet we do not believe that anyone familiar with the facts can seriously deny that the administration of the act (whether Wagner or Taft-Hartley) has been consistently vested in men who have the labor viewpoint and have had to be satisfactory to labor before being appointed. I know of no instances in which employers' recommendations of, or objections to, prospective appointees received real consideration. And, unless I have completely misread the trend of decision, there appears to be a studied effort to construe the act strictly and narrowly where employers' rights are concerned as against a liberal and broad interpretation of those provisions which are favorable to unions and, particularly, to union leaders.

Undoubtedly there are men on the Board and on its staff who are completely honest, intellectually as well as otherwise, and have thus succeeded in reorienting their thinking to the constitutional concepts of equality before the law for all, and of justice and fair dealing even for employers, which concepts the Taft

31346-53-pt. 1--11

Hartley Act sought to invoke. But we in business have been reluctantly forced to the conclusion that those concepts are not sufficiently prevalent as to dominate NLRB policies, as that agency is now constituted, with the unhappy result that the Board does not command the confidence as to its strict impartiality and complete objectiveness, of at least one of the adversaries appearing before it; and such lack of confidence breeds contempt and suspicion of our democratic processes.

In short-the businessmen represented by the national chamber invoke against NLRB the same rule which NLRB has so often invoked against them in "domination" cases, to wit, that indications of control of an organization at any time in the past will be deemed to have continued so as to contaminate that organization in its independence of action and thus to require its disestablishmentbarring only complete, conclusive, and uncontradicted evidence to the contrary. It is a poor rule that does not work both ways--and we have not been given the "complete, conclusive, and uncontradicted" evidence of reorientation of the Board's policy to the concepts of equality for all before the law.

When realistic men come face to face with such a situation, it seems to us in the national chamber that the best solution is to start afresh with an administration which, like "Caesar's wife," must be completely above suspicion.

As suggested in the next-to-last paragraph of your letter I would welcome the opportunity to talk to you concerning the entire labor situation and trust that such an opportunity will come in the near future. There is nothing personal in the views above expressed.

Yours sincerely,

POWELL C. GRONER.

Mr. GRONER. I think the Bible tells us that it is difficult, if not impossible, for the leopard to change its spots. I think it is true, we feel it is true in this situation. Vital precedents were established and men in their formative years were trained in this prounion bias which pervaded both the wording and the administration of the Wagner Act in its early days.

Now, that is not a very pleasant chapter in our legislative and administrative history. Fortunately, it has been very largely eradicated behind us, but nevertheless the economic and political philosophy of those days, we sincerely feel, have not been entirely eradicated from the thinking of the Board and its staff. At least we believe that it comes to the surface in Board decisions periodically.

Senator GRISWOLD. Might I ask a question there, Mr. Groner? Would it be possible to reorganize the Board so that it truly represented the public and was not an apostle for either the employer or the employee, and was there to serve only the broad general public interest? Then under those conditions would it not be proper that they select their own general counsel to protect the public?

Now, as a case in point, I cite, as I understand it, the theory back of the Federal Trade Commission which is, in theory at least, only to represent the interests of the public, and they are not interested in problems between competitors and all of that; they are simply there to represent the public interest. Then I think they choose their own counsel and present the issues just from the standpoint of the public.

Now, could the NLRB not be reconstituted, probably requiring some new membership in general, so that it did not have any tendency to represent either labor or the employer, but simply to represent the American people as a whole?

Mr. GRONER. Well, Senator, of course that should be the objective of every governmental agency. It should be so set up, every governmental agency should be so constituted as to represent the public interest and not represent either party. Unfortunately, that has not occurred in this situation.