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were: employer suggestions for formation of the labor organization, participation by management representatives in its formation and administration, and financial support of, or other assistance to, the labor organization, such as: use of company facilities, payment for time spent at meetings outside working hours, turning over to it commissions from vending-machine proceeds, conduct of elections on premises during working hours, and payments to its medical department. The issue in proceedings under this section is not what choice of organization the employees might have made, absent interference, but whether the allegedly illegal organization was free from interference or domination by the employer. Consequently, a contention that the employees really wanted to be represented by an employer-sponsored organization was held unavailable as a defense. 62

Interpreting the provisions of the new act, the Board has held that section 14 (a) thereof, permitting supervisors to become members of a union, does not preclude the Board from considering such membership a factor in finding that an employer dominated a labor organization; and, that section 302 (c) of the amended act, authorizing certain employer contributions to unions for welfare purposes, does not legitimize an employer's support of a labor organization merely because welfare purposes are involved.63

The Board has been required to determine, as indicated above, whether a successor to an employer-dominated labor organization was tainted with the illegality of its predecessor. In one case decided during the fiscal year, where the absence of an effective line of fracture rendered recognition of successor organizations unlawful from their inception and where the employer took no steps to deprive the latter organizations of unlawful benefits that had inured to them, the Board held that the employer extended illegal support to still another union, subsequently organized, in violation of section 8 (2) of the act, because that organization had obtained a measure of unlawful advantage from the unremedied earlier assistance and support extended some 8 years before to the predecessor organizations. 64 In another case, the Board held that an employer's failure to grant recognition to a so-called independent union, which accordingly was unable to function as bargaining representative, was not inconsistent with a finding that the independent union was the “successor” to its illegal predecessor. However, although the employer did "interfere" and "contribute support” to the independent union in violation of section 8 (2), the Board found, under the circumstances of the case, that the employer's unlawful conduct fell short of "domination." 66

60 The limited participation of a supervisor in the affairs of an employees' committee after its inception did not establish illegal domination of the committee by the employer, inasmuch as the supervisor, so far as appeared, exercised little influence on the committee's decisions. Matter of Hershey Metal Products Co. (76 N. L. R. B. 695).

61 Matter of Red Arrow Freight Lines (77 N.L. R. B. 859): Matter of Fontaine Converting Works, Inc. (77 N.L.R. B. 1386); Matter of The Carpenter Steel Co. (76 N. L. R. B. 670); Matter of Rathbun Molding Corp. (76 N. L. R. B. 1019); Matter of Kresge Department Store (77 N. L. R. B. 212).

62 Matter of Red Arrou Freight Lines, Inc. (77 N. L. R. B. 859), In the same case, where a dominated organization was formed by one employer and some years later was introduced by other employers among their employees, the Board sustained that portion of the complaint alleging that the latter employers had "formed this labor organization. 63 Matter of Kresge Department Store (77 N. L. R. B. 212).

64 Matter of The Pacific Telephone & Telegraph Co. (76 N.L.R. B. 889). Mere statements only to representatives of successor organizations that the employer could no longer furnish support and assistance are inadequate to effect a clear line of cleavage between predecessor dominated organizations and successors. Ibid. 63 Matter of Hershey Meal Products Co. (76 N. L. R. B. 695). 66 See p. 50, supra, for a discussion of the Board's remedial policy in this connection,i n the light of sec. 10 (c), as amended.

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The act does not prohibit assistance, domination, or support by an employer except in connection with an organization of employees which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment. In a case decided during the fiscal year, the Board found that an Advisory Committee, formed by an employer during the pendency of a union's objections to a representation election for the purpose of eliminating causes of employee-dissatisfaction, was a labor organization although it confined its activities to recommendations concerning employee grievances. 68 ENCOURAGING OR DISCOURAGING MEMBERSHIP IN A LABOR

ORGANIZATION BY DISCRIMINATION Section 8 (a) (3) of the act, as amended, provides that it is an unfair labor practice for an employer to encourage or discourage membership in any labor organization by discriminating in regard to hire or tenure of employment, except as permitted by a union-security contract which meets the conditions prescribed in the proviso to this section.69 As in the past, the Board has been careful to administer this section so as not to interfere with the normal exercise by an employer of his right to select, discharge, lay-off, transfer, promote, or demote his employees for any reasons other than those proscribed by the act.

In the usual type of case arising under this section, the Board was called upon to determine whether an employee was treated discriminatorily because of his membership in or activities in behalf of a labor organization.70 Unlawful discrimination was found in various forms. Most commonly, the discrimination was accomplished by discharge, lay-off, or denial of reinstatement. In addition, other types of employer conduct were found to be discriminatory within the meaning of the act. For example, as in previous years, the Board has held that employees who are forced to leave their employment because of discriminatory transfers to other jobs, or because the employer otherwise has discriminated in regard to the terms and conditions of their employment, have been constructively discharged in violation of the act.72

The act, however, does not preclude an employer in all cases from treating union employees differently from nonunion employees. Special circumstances may justify an exception. Thus, in Matter of Shell Oil Co. (77 N. L. R. B. 1306), the Board held that, absent an unlawful motive, an employer might grant wage increases to his unorganized employees at a time when his other employees were seeking to bargain collectively through a statutory representative; and that he was under no statutory obligation to make such wage increases applicable to union members pending conclusion of the bargaining negotiations. In

67 The term "labor organization” is defined in sec. 2 (5) of the amended act; it continues in force, without change, the definition under the act before amendment.

68 Matter of Wrought Iron Range Co. (77 N. L. R. B. 487).

ha Sec. 8 (a) (3) continues in force sec. 8 (3) of the original act, except that the proviso clause of the original sec. 8 (3) was considerably modified in the amended sec. 8 (a) (3), as hereinafter set forth.

70 In determining whether an employee's discharge was discriminatorily motivated, the Board has ruled that it will not consider management expressions of opinion to the extent privileged under sec. 8 (C) of the amended act. Matter of Consumers Cooperative Refinery Association (77 N. L. R. B. 528).

" See, for example, Matter of Ames Spot Welder Co., Inc. (75 N. L. R. B. 352); Matter of Differential Steel Car Co. (75 N.L.R. B. 714); Matter of Container Manufacturing Co.(75 N. L. R. B. 1082).

12 Matter of American Patrol Service (75 N. L. R. B. 662).

same time.73

another case, the Board held that an employer did not discriminate against employees in a unit represented by a union by granting a retroactive pay increase to employees outside the unit, because the employer contemplated that a new contract providing for a similar increase for employees represented by the union would be executed upon conclusion of pending bargaining negotiations and that payment of the increase to both groups would be made at approximately the

An employer was also held not responsible under this section for the eviction from the plant of members of the charging union by a rival union squad, where the employer had no foreknowledge of the eviction, no supervisory employee participated in the eviction, and the employer promptly restored the evicted employees to their jobs and guaranteed them protection from further molestation.74

The types of union or concerted activity protected by section 8 (3) of the original act and preserved in section 8 (a) (3) of the amended act are varied. While an employer has the right to rebut untrue statements about his policies, made in union discussions, the Board has held that he does not have the right to discharge an employee who makes such statements without knowing that they are false. In Matter of Atlantic Towing Co.,75 the Board found discriminatory the discharge of an employee for an unintentionally untrue statement made at a union meeting to the effect that the employer violated the law against interference with employee rights guaranteed by the act. A majority of the Board (Member Gray dissenting) held that an employer's interest in accurate representation of facts to his employees is subordinate to the conflicting interest of his employees in being free from interference in their utterance at union meetings of unintentional misstatements, and that such an economic sanction as discharge, if permissible, would defeat the organizational rights of employees. In another case,76 the Board ordered reinstated an employee who was discharged after he questioned, in a bargaining conference, the veracity of a statement by the company's president that the company was losing money, and then repeated his doubts to the president in a public tavern after the meeting. A majority of the Board (Member Gray dissenting) regarded the tavern incident as a continuation of the conference, and observed that free collective bargaining would be thwarted if employees could be penalized for statements made during bargaining negotiations. In a third case, the Board held that an employee did not forfeit his right to protection under the act by making, without malice or deliberate intent to falsify, inaccurate statements to fellow employees concerning allegedly higher wages at another plant of his employer.

However, when an employee engages in union or other concerted activity not protected by the act, he may be subjected to disciplinary measures. Thus, an employer may discharge employees because they personally forbade supervisors and other employees to enter the employer's plant during a strike by use of implied threats of violence

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73 Matter of the Duluth Glass Block Store Co. (76 N. L. R. B. 1064). 74 Matter of Cleveland Graphite Bronze Co. (75 N, L. R. B. 481). 75 75 N. L. R. B. 1169. 76 Matter of the Bettcher Manufacturing Corp. (76 N. L. R. B. 526). 17 Matter of Westinghouse Electric Corp. (77 N. L. R. B. 1058).

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as his

on the picket line.78 While an employer may not punish employees for attempting to accompany fellow employees, acting as union representatives, to negotiations with management, he may discharge or otherwise discipline such nonrepresentatives for refusing to obey orders not to leave their jobs during working hours for such purpose.79 And, in Matter of Fontaine Converting Works, Inc., the Board held that employees who engaged in an economic strike, solely to further the interests of their foreman, were lawfully discharged because their concerted activities were not of the character protected by the act.8

The Board has decided numerous cases in which the employees' concerted activity consisted of participation in a strike.81 In the case of an economic strike, the employer may not at any time, either during or after the strike, discriminate against the strikers because of their lawful participation in the strike. However, a majority of the Board Member Houston dissenting) has ruled that an employer may lawfully refuse reinstatement to economic strikers if he reasonably believes, though incorrectly, that they obtained permanent employment elsewhere and thereby relinquished their status employees.82.

Strikers are not always afforded the protection of the act. An employer may discharge employees who engage in a strike in violation of a no-strike clause of their collective bargaining contract.83 Similarly, he may discharge those responsible for such a strike, while retaining the rank-and-file strikers. 84

An employer may not attach a discriminatory condition to the reinstatement of economic strikers whose places have not been filled and who have made an unqualified request for reinstatement.85 However, not every condition that an employer. might attach is necessarily discriminatory. Special_circumstances may justify the condition. Thus, a majority of the Board has held that an employer was entitled to make certain of the future reliability of strikers by imposing a condition that they be interviewed individually before reinstatement.86 The special circumstance there present was that the strike had been conducted in a critical plant during wartime, when it was important that the reliability of employees be established, particularly as the employees were supervisors. 87

In the proviso to section 8 (a) (3) of the amended act, the prior legislative sanction for the closed-shop agreement has been replaced with that of the union-shop contract. If a majority of all employees in the unit vote in favor of a union shop, the employer may enter

78 Matter of National Grinding Wheel Co., Inc. (75 N. L. R. B. 905); see also Matter of International Nickel Co., Inc. (71 N. L. R. B. 286), where an employer was held justified in refusing to reinstate an economic striker who refused to permit a company official to cross a picket line. 78 Matter of Briggs Manufacturing Co. (75 N. L. R. B. 569).

50 77 N. L. R. B. 1386. The Board distinguished the Fontaine case from such cases as Matter of Container Manufacturing Co. (75 N.L.R. B. 1082) and Matter of Phoenir Mutual Life Insurance Co. (73 N. L. R. B. 1463), in which the employees engaged in the concerted activity in question to protect interests of their own.

31 See, for example, Matter of The Gould Mersereau Co., Inc. (75 N. L. R. B. 784); Matter of Ol:lahoma Rendering Co. (75 N. L. R. B. 1112). 9 Matter of National Grinding Wheel Co., Inc. (75 N. L. R. B. 905). # Matter of Lancaster Foundry Corp. (75 N. L. R. B. 255). U Matter of Copperueld Steel Co.(75 N.L. R. B. 188).

85 An employer did not violate sec. 8 (3) of the act by denying reinstatement to economic strikers whose request for reinstatement was conditioned upon reinstatement of a fellow employee whose lawful discharge was the motivating cause of the strike. Matier of Wilson & Co. (77 N. L. R. B. 959).

* Matter of Pullman-Standard Car Manufacturing Co. (76N. L. R. B. 1254) (Member Houston dissenting).

# The alleged unfair labor practice occurred before the amended act became effective; as indicated supra, pp. 46-47, supervisors are no longer employees under sec. 2 (3) of the amended act and thus are not entitled to its protection.

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into a contract requiring all employees in the unit to become members on or after the thirtieth day following the beginning of employment or the effective date of the agreement, whichever is later. Section 8 (a) (3) of the amended act further provides that union membership must be available to an employee on the same terms and conditions generally applicable to other members, and that membership must not be denied or terminated on a ground other than the employee's failure to tender uniform dues and initiation fees. If the employer has "reasonable grounds" to believe that these two requirements have not been met, he must retain an employee even if the latter has not joined the union or has been expelled from membership. It is an unfair labor practice under section 8 (a) (3) for an employer to discriminate in regard to hire or tenure of employment or any term or condition of employment contrary to these provisions. The Board had no occasion during the 1948 fiscal year to decide any unfair labor practice case involving the new proviso to section 8 (a) (3) of the act. It did, however, decide a number of cases involving the applicability of the closed-shop proviso of section 8 (3) of the National Labor Relations Act. Since the principles applied in these cases were established in earlier cases discussed in prior annual reports, and are no longer important in the administration of the amended act, they are not reiterated here.

DISCRIMINATION FOR FILING CHARGES OR TESTIFYING UNDER THE ACT

Section 8 (a) (4) of the amended act provides that it shall be an unfair labor practice for an employer to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under the act.88

As in past years, there were few cases decided under this section during the 1948 fiscal year. The term "employee" includes members of the working class generally and is not limited to employees of a particular employer. Applying this definition, the Board held that an employer violated section 8 (4) by refusing to reemploy an applicant for a supervisory job unless and until the applicant arranged for withdrawal of pending charges that the employer had previously discharged the applicant in violation of section 8 (3) of the act, although in fact the employer had not terminated the prior employment of the applicant for discriminatory reasons.89 In two other cases decided during the fiscal year, the Board found that discharges of employees who had testified in prior Board proceedings were for reasons other than those proscribed by the act."

REFUSING TO BARGAIN COLLECTIVELY

Section 8 (a) (5) of the amended act makes it an unfair labor practice for an employer to refuse to bargain collectively with the representatives designated or selected by a majority of his employees in an appropriate collective bargaining unit. 91

88 Sec. 8 (a) (4) continues in force without change sec. 8 (4) of the act before amendment. 89 Matter of Briggs Manufacturing Co. (75 N. L. R. B. 569).

" Matter of Electrical Testing Laboratories, Inc. (75 N. L. R. B. 384); Matter of The Hills Bros. Co. (76 N.L. R. B. 622).

01 This provision is identical with former sec. 8 (5) of the National Labor Relations Act.

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