NATIONAL LABOR RELATIONS BOARD

WI. PRINCIPLES ESTABLISHED 77
convinced by the record before us that this announcement was not so regarded
by the strikers. The evidence does not show that they were deterred from
applying for their jobs by reason of these assertions of Swiren. On the contrary,
it was well known throughout the strikers' ranks that the respondent was
taking back many of those who had occupied the plant. As a matter of fact
the respondent did reinstate 35 of the sit-down strikers, or over one-third of
the total. Emissaries of the respondent were actively seeking out individual
strikers and imploring them to return to work. At the same time, the evidence
clearly shows that the position of practically all of those strikers who did not
go back, and who are named in the complaint, was that they were determined
to stay out until the Union reached a settlement with the respondent.
In Matter of American Manufacturing Concern," upon receiving
information that a strike was about to start, the employer notified the
employees that a walk-out would automatically sever their employment.
As the men walked out, they were instructed to surrender
their time cards. The Board dismissed the section 8 (3) complaint
upon the ground that the purported discharge was not real but merely
tactical, saying:
As we have previously observed, such statements are primarily intended, not
to effectuate a discharge, but as a tactical step designed to coerce the employees
into resuming work or to defer those remaining at work from going out on
strike."
However, the action taken by the employer may operate as an effective
discharge which prevents the employee from resuming work
upon the termination of the strike. Whether the employer's behavior
is a mere "tactical step" or constitutes an effective discharge depends
on all the circumstances in the case.45
In Matter of Kaeh,ne Manufacturing Com,pany," the employer operated
plants in two towns, 60 miles apart; the employees in one of
the two plants went on strike and enrolled in a union ; thereupon the
employer notified all the employees in the struck plant by letter that
it had abandoned operations at the plant, advised them to seek employment
elsewhere, and served notice of the cancelation of their
group insurance policies; the employer moved part of the machinery
to the other plant and sold another portion, though it still retained
the buildings. Operations at the other plant were increased from
day shift to steady day and night shift with augmented force. On
these facts the Board found a discriminatory lock-out. 47 In its consequences,
an unequivocal assumption of a position by an employer
during a strike or lay-off not to resume the normal employer status
upon the termination of the strike or lay-off, because of discrimina-
48 matter of American Manufacturing Concern and Local No. 6, Organized Furniture
Workers, 7 N. L. R. 13. 753.
The Board held this "tactical step" in violation of section 8 (1).
'° Whether the employer's purported discharge or purported refusal to reinstate Is a
mere "tactical step" or a genuine declaration, it can have no effect on the employee's
status as conferred upon the employee by section 2 (3) of the act. In Matter of Carli,sle
Lumber Company and Lumber and Sawmill Workers' Union, Local 2511. etc., 2 N. L. R. B.
248, enforced in National Labor Relations Board v. Carliale Lumber Company. 94 F. (2d)
138 (C. C. A. 9th, 1937). certiorari denied, 304 U. S. 575. 1938. the Board stated : "The
respondent by its notice of discharge sought to alter its legal relationship to these employees.
This it was powerless to do under the Act, without their consent * • • Under Section
2 of subsection 3 of the Act an employee whose work has ceased as a consequence of or
in connection with a labor dispute retains his employee status as long as such labor dispute
remains current and as long as he has not obtained regular and substantially equivalent
employment." See also National Labor Relations Board v. Mackay Radio d Telegraph
Company, 304 U. S. 333 (1938). enforcing Matter of Mackay Radio d Telegraph. Company,
etc.. and American Radio Telegraphists' Association, etc., 1 N. r,. R. B. 201.
46 Matter of Knehne Manufneturina Company and Local No. 1791, United Brotherhood
of Carpenters and Joiners of America. 7 N. L. R. B. 304.
" See also cases cited below, pp. 79. 80, notes 59-63.