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The limits on an employer's free speech rights during a union representation campaign were established by the Supreme Court in NLRB v. Gissel Packing Co. But the proper interpretation of Gissel first requires an understanding of the limitations on employers' property rights set out by the Court in Textile Workers Union v. Darlington Manufacturing Co. A proper understanding of Darlington leads to the conclusion that the National Labor Relations Board (Board) and the circuit courts have been incorrectly applying the limits on an employer's first amendment right of free speech. The effect of the misapplication in the context of a unionization campaign is to deny employers the complete latitude of their free speech liberties as determined by the Supreme Court.

Part I of this comment analyzes the relationship of Gissel and Darlington to explain the criteria used in determining whether a statement made by an employer of his intention to close a plant is a threat-which is not protected speech-or an announcement-which is protected speech. In Part II, selected circuit court cases that exemplify the current status of Gissel are discussed.