NATIONAL LABOR RELATIONS BOARD

74 THIRD ANNUAL REPORT OF NATIONAL LABOR RELATIONS BOARD
ment to constitute discrimination of so minor a nature as not to warrant a finding
that the respondent discriminated, within the meaning of the Act, in regard
to Thamert's condition of employment.
3. WHAT CONSTITUTES DISCHARGE, LAY-OFF, REFUSAL TO REINSTATE ; APPLICATION
FOR REINSTATEMENT
Whether or not the employer did discriminate in regard to hire,
tenure, any term or condition of employment depends, of course, on
whether action by the employer, or attributable to him, affects an
employment relationship. In Matter of the Grace Company," several
employees were excluded from the plant, upon its reopening,
by leaders of the company-dominated Workers Union, who relied
upon a closed-shop agreement with the employer for their action.
The employer contended that no unfair labor practice had been
committed, since no one with authority to hire and discharge had
prevented these employees from resuming their position. The Board
held the employer responsible because the exclusion "was known to
the respondent and was within the scope of the authority purported
to be granted the Workers Union by the closed-shop agreement."
The Board overruled a somewhat similar defense in Matter of Clover
Fork Coal Company." In enforcing the Board's order in this case,
the Circuit Court of Appeals said :
The contention that employees were not discharged because of union activities
by the petitioner but were forced out by the determined attitude of the petitioner's
nonunion men in refusing to work with members of the United Mine
Workers, must be rejected in view of evidence which supports findings that
the attitude of the petitioner's nonunion men was, if not inspired by, at least
encouraged and promoted by the petitioner and its agents.
Though the discharge or other discriminatory act might be without
authority, if the employer knows of its occurrence and does nothing
"to rectify the situation" he has committed an unfair labor practice.3°
In the usual case coming before the Board there is no difficulty as
to whether the employer has discharged, laid off, or refused to hire
or reinstate an employee; or in some way has affected a term or
condition of his employment. However, in a number of cases, the
question has , wisen as to whether the action taken by the employer
did or did not effectuate or constitute such a change in or refusal
to change an employment relationship The Board holds that the
determination of the question must be based upon a realistic examination
of all the surrounding circumstances. In Matter of United
Fruit Company," the evidence showed that longshoremen were
selected for a day's work from a group whenever needed. There
was no certainty that any one person would receive employment on
any particular day. Hence, the Board held that mere failure to
procure employment on a single day was insufficient to prove a . discharge.
In Matter of T. W. Hepler, 32 an employee was sent home
because of insubordination by a floorboy, who had no authority to
discharge. Before leaving, the employee roundly cursed the floorboy.
•n Matter of the Grace Company and United Garment Workers of America, etc., 7
N. L. R. B. 766.
21, Matter of Clover Fork Coal Company and District 19, United Mine Workers or
America, 4 N. L. R. B. 202, enforced in Clover Fork Coal Company V. National Labor
Relations Board, 97 F. (2d) 331 (C. C. A. 6th, 1938).
30 Matter of Trenton Garment Company and International Ladies' Garment Workers
Union, etc, 4 N. L. R. B. 1186.
al Matter of United Fruit Company and Richard Schmidt, etc., 2 N. L. R. B. 896.
32 Matter of T. TV. Depict. and International Ladies' Garment Workers Union, 7 N. L.
R. B. 256.