NATIONAL LABOR RELATIONS BOARD

76 TIECIIID ANNUAL REPORT OF NATIONAL LABOR, RELATIONS BOARD
fusal to reinstate, because the unfair labor practice is already
complete.
Not all cases of employer discrimination occur while the employee
is at work. An employee may have been laid off temporarily for
a reason unrelated to his union affiliation or activity, or he may be
out on strike. In the normal course of events such an employee
will resume work at the end of the lay-off or strike. In the absence
of peculiar circumstances, such is his natural expectancy. But during
this period after work has ceased and before it has resumed, the
employer may take certain action; and the question arises, whether
or not this employer action constitutes a discriminatory discharge,
a refusal to reinstate, or other action violative of section 8 (3).
In Matter of Biles-Coleman Lumber Company," the plant reopened
with a small number of men, while a strike which had been caused
by unfair labor practices was in progress. The employer placed an
advertisement in the newspaper announcing that the jobs of employees
who had not returned to work by June 15 would be declared
vacant and the employer would be free to fill such positions with new
men. A number returned by the deadline. After June 15 the employer
hired new men and such strikers as returned from time to
time. It, was contended that the June 15 announcement constituted
a -discriminatory discharge. The Board dismissed the complaint as
to section 8 (3) in this respect, finding that the announcement did
not amount to a discharge or refusal to reinstate, but was a mere
threat:
It is clear that, under the circumstances of this case, the respondent issued
the notice only as a threat of the loss of Jobs for the purpose of demoralizing
the union membership in pursuance of the respondent's unlawful refusal to
bargain collectively with the Union. The evidence reveals that the respondent
intended the notice only as a threat and that it was so construed by the striking
employees. The record shows that striking employees, both those who had
designated the Union as their representative and those who had not, who
applied for work during the period from June 15, 1936, to the date of the
hearing were reinstated."
In Matter of Fansteel Metallurgical Corporation," upon the commencement
of a sit-down strike induced by the employer's violation
of section 8 (5), the employer announced in loud tones to employees
engaged in the sit-down that they were all discharged for seizure and
retention of the buildings The Board, in dismissing the section
8 (3) allegations because there was no discharge or refusal to reinstate,
stated :
We do not construe Swiren's announcement, coming as it did after the strike
had begun, as a discriminatory discharge of the men in the plant. We are
Matter of Pennsylvania Greyhound Lines, Inc., and Local Division No. 1063 of the
Amalgamated Association of Street, Electric Railway and Motor Coach Employees of
America, 1 N. L. R. B. 1, enforced in National Labor Relations Board v. Pennsylvania
Greyhound Lines, 91 F. (2d) 178 (C. C. A. 3d, 1937), 303 U. S. 261 (1938).
Afatter of Bites-Coleman Lumber Company d Puget Sound District Council of Lumber
and Sawmill Workers, 4 N. L. It. B. 679. enforced In National Labor Relations Board V.
Bites-Coleman Lumber Co., 96 F. (2d) 197, 98 F. (2d) 16, 18 (C. C. A. 9th, 1988).
a See also Matter of Stackpole Carbon Company and United Electrical and Radio Workers
of America, Local No. 502, 6 N. L. Ft. B. 171; wherein the Board stated : "On the record
we cannot flnd that the respondent had indicated that it would not reinstate striking
members of Local No. 502 upon application. That such application would not necessarily
have been futile is indicated by evidence that some em ployees—members of Local No. 502
who struck on March 3, 1937—did return to work thereafter."
"Matter of Fansteel Metallurgical Corporation and Amalgamated Association of Iron,
Steel and Tin Workers of North America, Local 66, 5 N. L R. B. 930, enforcement denied
in Fansteel Metallurgical Corporation v. National Labor Relations Board, 98 F. (2d) 375
(C• C. A. 7th, 1938), certiorari granted, November 19, 1938.