In Matter of Republic Steel Corporation and Steel Workers Organizing Committee, the Board found in use a host of devices, old and new, through which the employer sought to thwart self-organization and collective bargaining. The Board, in summary, found that the respondent had engaged in violations of section 8 (1):

* * * By its espionage, shadowing, and beatings of organizers and active members of the Union; its announcements, before and after the presentation by the Union of its proposed agreement, that it would not sign any contract with the Union; its statements to its employees attempting to villify and discredit the Union; its threats to discharge union members and to close its plants before recognizing the Union, and its other threats and warnings to employees regarding the Union; its attempts to turn civil authorities, business, and other interests against the Union in order to further its own anti-Union activities; its incitement of violence and hysteria, in order to terrorize union adherents; its donation of tear and vomiting gas to the City of Massilon; its support to the Law and Order League of Massilon and the Back-to-Work Committees in Massilon, Canton, and Youngstown; its activities in connection with the incident at C. I. O. headquarters at Massilon; its lay-offs, discharges, and lock-out

*

* *

13

During the past year, several interesting cases have been decided which illustrate other types of employer activity which the Board has prohibited as an infringement upon the rights guaranteed in section 7. In Matter of Harlan Fuel Company and United Mine Workers of America, District 19,14 the employer excluded union organizers from a town completely owned by it and in which all its employees resided. The employer attempted to justify this antiunion device on the ground that it had the right to exclude people from its own property. The Board held that this could not be done, since the employees, as tenants of the respondent, had a right under ordinary property law to receive visitors, and under the act to consult with union organizers. The Board stated:

In entering and passing through Yancey on their visits to the employees there residing, the union organizers were engaged in a transaction of mutual interest, the exercise by the employees of their right under the act to form and join a labor organization for the purpose of collective bargaining and other mutual aid and protection. The use made by the organizers of the customary passways, roads, and streets to reach the employees was accorded by law and could not be defeated through the simple assertion by the respondent of a landlord's interest. By forcibly preventing the organizers from coming to or remaining in Yancey, the respondent not only violated this right but engaged in an unfair labor practice * The rights guaranteed to employees by the act include full freedom to receive aid, advice, and information from others, concerning those rights and their enjoyment.19

15

Employers are also prohibited from interfering with employees in their selection of representatives of their own choosing. Accordingly, the Board has held it to be an unfair labor practice within section 8 (1) for an employer to interfere with an election which the Board is conducting as part of its investigation to determine a question concerning representation.16 In Matter of Yale & Towne Manufacturing Company and United Electrical and Radio Workers of America, Local

12 9 N. L. R. B. 219, enforced as modified, November 8, 1939 (C. C. A. 3).

13 The Board found that deputies of the town, led by agents of the respondent, had without provocation opened fire upon union headquarters.

148 N. L. R. B. 25.

15 The same principle was applied in Matter of West Kentucky Coal Company and United Mine Workers of America, District 23, 10 N. L. R. B. 88, petition for enforcement filed June 21, 1939 (C. C. A. 6). Cf. Matter of Commonwealth Telephone Company and Theodore R. Siplon, et al., 13 N. L. R. B., No. 39.

16 Matter of Pacific Gas and Electric Company and United Electrical and Radio Workers of America, 13 N. L. R. B., No. 32.

227, C. I. O. the interference consisted in the spreading by a respondent of false rumors with respect to the effectiveness of the union in winning benefits for the employees at a nearby plant, during an election in which the union was a candidate for selection as bargaining representative. The Board found that the respondent knew the report to be false and none the less further circulated it among the employees, to discredit a labor organization.

Under the circumstances of the case, however, the Board has held there was no interference with self-organization within the meaning of section 8 (1), where an employer in good faith himself conducted an election among his employees, but showed no favoritism to either of the rival organizations contesting for designation as representative.18

The act requires an employer to bargain collectively on request with the union designated by a majority of his employees in an appropriate unit. The Board, accordingly, has held that an employer must not defeat collective bargaining by going behind the union so designated and dealing directly with the employees who have chosen such a union as their representative. In Matter of Williams Coal Company and United Mine Workers of America, District No. 23,19 the respondent had entered into a contract with the union but subsequently attempted to modify the terms of this contract through individual negotiations with its employees. The Board held that such activity was prohibited by the act.20 The Board has also condemned action where an employer, in response to a request by a union committee to negotiate on a matter of hours, has conducted his own ballot among the employees as to their wishes on the question of hours,21 and where the respondent has attempted to bargain individually with employees during a strike, called by a union chosen to represent these employees, in protest against the respondent's unfair labor practices.22

Similarly, the Board has pointed out the coercion involved in an employer's statement to its employees that collective bargaining will be futile, by posting a notice to the effect that the respondent would never agree to closed shop.23

Nor may an employer defeat collective bargaining and self-organization by entering into individual contracts with employees whereby

17 10 N. L. R. B. 1321, petition for enforcement filed on or about August 1, 1939 (C. C. A. 2). 18 Matter of J. Wiss & Sons Company and United Electrical, Radio, and Machine Workers of America, 12 N. L. R. B. 601. In this case, however, the Board held that the election could not be considered determinative of the wishes of the employees. See infra, p. 75. 1911 N. L. R. B. 579, petition for enforcement filed July 28, 1939 (C. C. A. 6).

29 The Board said in this case that a breach of the contract with the union, would not, in itself, have constituted an unfair labor practice.

Matter of The Weber Dental Manufacturing Company and The United Electrical and Radio Workers of America. 10 N. L. R. B. 1439.

Cf.

Matter of Newark Rivet Works and Unity Lodge No. 420, United Electrical & Radio Workers of America, C. I. O., 9 N. L. R. B. 498; Matter of Reed & Prince Manufacturing Company and Steel Workers Organizing Committee of the C. I. O., 12 N. L. R. B. 944. Matter of The Stolle Corporation and Metal Polishers, Buffers, Platers & Helpers International Union, 13 N. L. R. B., No. 44, where the employer confirmed its refusal to bargain with the union by entering into individual contracts with the employees.

Matter of Roberti Brothers, Inc., and Furniture Workers Union, Local 1561, 8 N. L. R. B. 925. The Board said in this case:

"Were the Act to sanction such notice by the employer, he could with equal impunity further forestall and defeat union organization by announcing to his employees that under no circumstances would he recognize seniority among his employees for the purpose of lay-offs, that under no circumstances would he consider a change in the hours of employment, that under no circumstances would he consider any change in any other term or condition of employment. In effect, at the outset of union organization he could discourage his employees from becoming members by warning them that any possible advantage to be derived from such membership was beyond their reach. We cannot permit the purposes of the Act to be so flouted."

192197-40-5

24

the employees surrender their right to concerted economic action. In Matter of Arcade-Sunshine Company, Inc. and Laundry Workers Cleaners & Dyers Union, the respondent, during a period of union organization and while the union was attempting to reach a collective bargaining agreement with the respondent, circulated among its employees a petition in which the employees pledged themselves to "remain at our post under present working conditions." The Board found that the circulation of such a petition discouraged collective action by the employees. The Board said:

An agreement not to strike is, on its face, a limitation on the exercise of such a right-the right to engage in concerted activities. Such a limitation also interferes with the right to self-organization, since it eliminates one of the most effective methods of organization and one of the activities for which organization is designed. The limitation may be unobjectionable when reached as a result of collective bargaining with the representatives of the employees in an appropriate unit; in such case, by hypothesis, organization has been attained, and the conclusion of the agreement is itself an exercise of the right of engaging in collective activities. But imposition of such a limitation upon the individual employee may constitute not only a form of coercion resulting from the inequality of bargaining position, but also an obstruction, at the outset, to the development of effective organization, concerted activity, and collective bargaining. The threat of cessation of work is practically the only economic force available to employees to invoke in their attempt to obtain concessions from their employer. Deprived of the possibility of utilizing this economic force before collective bargaining secures such concessions, the right to organize and bargain as guaranteed by the Act becomes meaningless. Its exercise would be futile.

B. ENCOURAGEMENT OR DISCOURAGEMENT OF MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION

* *

Section 8 (3) makes it an unfair labor practice for an employer: By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this act or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this act as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 9 (a) in the appropriate collective bargaining unit covered by such agreement when made.*

As pointed out in the Third Annual Report,26 the Board, in administering section 8 (3), has been careful not to interfere with the normal exercise of the right of the employer to select its employees or to discharge them. And conversely the Board has been equally determined not to permit in any case an unfair labor practice within the meaning of this section to go unchallenged under cover of that right. The Board has never held it to be an unfair labor practice for an employer to hire or discharge, to promote, or demote, to transfer, lay-off or reinstate, or otherwise to affect the hire or tenure of employees or their terms or conditions of employment, for asserted reasons of business, animosity, or because of sheer caprice, so long as the employer's conduct is not wholly or in part motivated by antiunion cause.

24 12 N. L. R. B. 259.

25 By section 9 (a), the representative designated by the majority of the employees in the appropriate collective bargaining unit is the exclusive representative of all the employees in such unit for the purposes of collective bargaining.

At p. 65.

To be within the scope of section 8 (3) the discrimination must be with regard to "employment." 27 Accordingly, in Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590,28 the Board found that the respondent had not violated section 8 (3) because the discrimination was in regard to a contractual relationship other than that of "employment." 20

The concerted activity which the Board has found to be protected by section 8 (3) has taken varied forms.30 The Board has held that section 8 (3) protects concerted activity although not specifically union activity since such discrimination discourages the formation of and membership in a labor organization.31 Section 8 (3) also forbids discrimination because of activity in protection of a union organizer from threatened violence by a foreman,32 and a refusal to remove, while at work, a button designating the wearer as a union officer.33 The Board has also held that section 8 (3) covers a discriminatory refusal to reinstate an employee subsequent to the effective date of the act for union activity occurring prior thereto, as well as a discharge because the employer believed, although mistakenly, that the discharged employee had engaged in union activity.35 In some cases, employers have contended that the actions of a discharged employee infringed some rule or regulation of the employer, or in some other manner justified the employee's discharge, without violation of the act. In Matter of Harnischfeger Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1114,36 the employer discharged union stewards because they led the respondent's employees in a refusal to

34

Cf. Matter of South Atlantic Steamship Company of Delaware and National Maritime Union of America, 12 N. L. R. B. 1367, where the employer contended that sailors, whose shipping articles for a particular voyage had expired, were no longer employees and therefore not within the protection of 8 (3), The Board found that, in accordance with the usual custom. the employment relationship between the sailors and the ship ov ners was not terminated at the end of a particular voyage. In addition, the Board pointed out that even if the employment relationship had terminated, section 8 (2) covered discrimination as to "hire" as well as to "tenure" of employment, and would therefore be applicable despite such termination of employment. See Third Annual Report at pp 72-73. 28 N. L. R. B. 440, enforced, N. L. R. B. v. Crossett Lumber Co., 102 F. (2d) 1003 (C. C. A. 8). Cf. Matter of West Kentucky Coal Company and United Mine Workers of America, District No. 23, 10 N. L. R. B. 88, petition for enforcement filed May 29, 1939 (Ć, C. A. 6), discussed supra, where such discrimination was held to be a violation of section 8 (1) of th act.

Cf. Associated Press v. N. L. R. B., 301 U. S. 103, affirming 85 F. (2d) 56, enforcing Matter of The Associated Press and American Newspaper Guild, 1 N. L. R. B. 788, where the Supreme Court stated:

The Act permits a dis harge for any reason other than union activity or agitation for collective bargaining with employers ** The petitioner is at liberty, whenever occasion may arise, to (xercise its undoubted right to sever his relationship for any cause that seems to it proper save only as a punishment for, or discouragement of, such activities, as the Act declares permissible" (itali ́s supplied).

Matter of Stehli & Co., Inc. and Textile Workers Union of Lancaster, Pennsylvania and Venity, Local No 1833. 11 N L. R. B. 1997.

Matter of Meria Textile Mills and Textile Workers Organizing Committee, 11 N. L. R. B. 1167, petition to review filed May 5, 1939 (C. C. A. 5).

Matter of Amour & Company and Packing House Workers Organizing Committee for United Packing House Workers, Local 347, 8 N. L. R. B. 1100, petition to review filed October 1, 1938 (C. C. A. 7).

Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440, enforced, N. L. R. B. v. Crossett Lumber Co., 102 F. (2d) 1003 (C. C. A. 8).

Matter of Hamilton-Brown Shoe Co., a Corporation and Local No. 125, United Shoe Workers of America, affiliated with the Committee for Industrial Organization, 9 N. L. R. B. 1073, modified on another point and enforced in Hamilton-Brown Shoe Company v. N. L. R. B., 104 F. (2d) 49 (C. C. A. 8). Cf. Matter of The Good Coal Company and United Mine Workers of America, District 19, 12 N. L. R. B. 136, petition for enforcement filed June 22, 1939 (C. C. A. 6).

89 N. L. R. B. 676, enforced, N. L. R. B. v. Harnischfeger Corp., June 6, 1939 (C. C. A. 7).

work overtime in protest against the respondent's unlawful refusal to bargain collectively. The Board held that the stewards had led the employees in what was, in essence, a partial strike, that such activity was protected by the act, and that the discharges discouraged membership in a labor organization in violation of section 8 (3) of the Act.37 In another case, the employer, after acquiring knowledge that the union planned a demonstration on Labor Day, posted a notice stating that its mine would operate on Labor Day. Despite this, the union demonstration was held according to schedule. The respondent then discharged all employees who had not reported for work on that day. The Board held that these discharges were discriminatory and an attempt to discourage concerted activities on the part of the employees, saying:

It is well known that industry in general ceases its operations on Labor Day and that labor in general engages in special celebrations on that day. It was under these general circumstances that a majority of the employees of the respondent decided not to work on the Labor Day in question and that the respondent decided to operate its mine on that day. It is clear that the respondent and the employees each knew of the position of the other in this matter and that each party intended to adhere strictly to its position. We find that there existed as a result of these conflicting positions of the parties a current labor dispute with respect to the terms and conditions of employment.

Inasmuch as the failure of the men to work on Labor Day was a consequence of and in connection with the current labor dispute and since the respondent had not at the time it refused to allow the men to return to work filled their positions, the refusal constituted a discrimination against the men, within the meaning of Section 8 (3) of the Act.88

The Board has held that a refusal to reinstate an employee who engaged in personal invective against his employer was not discriminatory since the refusal was motivated by personal animosity. That the invective had occurred in the course of union activity was, in the Board's view, immaterial.89

As pointed out in the Third Annual Report,40 in the usual case coming before the Board there is no difficulty in determining the question as to whether the employer has, in fact, discharged, laid off, or refused to hire or reinstate an employee; or in some way has affected a term or condition of his employment. In a number of cases, however, the employer's actions have been somewhat less obvious, and the determination as to whether these actions constitute discriminatory conduct within the meaning of 8 (3) is considerably more difficult. In all cases, the Board has resolved this question upon the basis of a realistic examination of the record.

37 The Board said in this case: We do not mean that it is unlawful for an employer to diseharge an employee for any activity sanctioned by a union or otherwise in the nature of collective activity. The question before us is, we think, whether this particular activity was so indenfensible, under the circumstances, as to warrant the respondent, under the Act, in discharging the stewards for this type of union activity. We do not think it was.' 38 Matter of The Good Coal Company and United Mine Workers of America, District 19, 12 N. L. R. B. 136, petition for enforcement filed June 22, 1939 (C. C. A. 6). The Board held, in addition, that the discharge of employees who were away from work on Labor Day because they were ill was also discriminatory.

Matter of Trenton Mills, Inc. and Ralph Knox, 12 N. L. R. B. 241. Cf. Matter of Marathon Rubber Products Co. and Frank Reindl, et al., 10 N. L. R. B. 704 (employee had stated that employer had told a "damn lie").

40 At p. 74.