NATIONAL LABOR RELATIONS BOARD

230 THIRD ANNUAL REPORT OF NATIONAL LABOR RELATIONS BOARD
and substantially equivalent employment." 23 Many of the Board's
decisions passed upon by the courts during the present year have
involved controversies growing out of industrial strife. The principle
was early established in these cases that under Section 2 (3)
strikers remain employees and are entitled to the protection of the
act so long as the dispute is current, irrespective of whether the strike
was caused in the first instance by an unfair labor practice on the
part of the employer.24
Employers desirous of interfering with the fundamental rights
guaranteed their employees by the act, often seize the opportunity to
break the unions within their plants presented by the conclusion
of an unsuccessful strike
'
and refuse to reinstate active union members.
The principle that such action on the part of an employer is
a violation of section 8 (3) of the act was clearly established by
the Supreme Court in National Labor Relations Board v. Mackay
Radio & Telegraph Company, 304 U. S. 333. In this case the Court
sustained an order of the Board requiring the company to reinstate
with back pay five workers who had been refused reinstatement at
the end of a strike because of their union activities. Rejecting the
company's contention that the men were not entitled to reinstatement
because the Board had failed to find the company guilty of an unfair
labor practice prior to the strike, the Court said :
The wisdom or unwisdom of the men, their justification or lack of it, in
attributing to respondent an unreasonable or arbitrary attitude in connection
with the negotiations, cannot determine whether, when they struck, they did
so as a consequence of or in connection with a current labor dispute.
Emphasizing that under section 2 (3), the term "employee" includes
persons whose work has ceased as "a consequence of, or in
connection with, any current labor dispute," the Court added :
Within this definition the strikers remained employees for the purpose of the
act and were protected against the unfair-labor practices denounced by it.
The Court then pointed out that under section 8, "discrimination in
regard * * * to hire or tenure of employment to encourage or
discourage membership in any labor organization" is prohibited, and
concluded :
But the claim put forward is that the unfair labor practice indulged in by the
respondent was discrimination in reinstating striking employes by keeping out
certain of them for the sole reason that they had been active in the union. As
we have said, the strikers retained, under the act, the status of employes. Any
such discrimination in putting them back to work is, therefore, prohibited by
section 8.
Striking employees are entitled not only to the protection of section
8 (3) of the act but also to that of section 8 (5). In Jeffery DeWitt
Insulator Company v. National Labor Relations Board, 91 F. (2d)
134 (C. C. A. 4th), cert. denied, 302 U. S. 731, the Court upheld an
is The term "labor dispute" is defined in section 2 (9) to include "any controversy concerning
terms, tenure or conditions of employment or concerning the association or representation
of persons in negotiating, fixing, maintaining, changing or seeking to arrange
terms or conditions of employment, regardless of whether the disputants stand in the
proximate relation of employer and employee."
National Labor Relations Board V. Mackay Radio d Telegraph Company, 304 U. S.
333; Black Diamond Steamship Corp. v. National Labor Relations Board, 94 F. (2d)
875 (C. C. A. 2d), cert. denied, 304 U. S. 579; Jeffery DeWitt Insulator Company V. National
Labor Relations Board, 91 F. (2d) 134 (C. C. A. 4th), cert. denied, 302 U. S.
731; Mooresville Cotton Mills v. National Labor Relations Board, 94 F. (2d) 61 (C. C.
A. 4th) '• Standard Lime & Stone Co. v. National Labor Relations Board, 94 F. (2d) 531
(C. C. A. 4th); National Labor Relations Board v. Carlisle Lumber Company, 94 F. (2d)
188 (C. C. A. 9th), cert. denied, 304 U. S. 575.