NATIONAL LABOR RELATIONS BOARD

88 THIRD ANNI.TAL REPORT OF NATIONAL LABOR RELATIONS BOARD
by the employer from one reason to another, in rejecting an affirmative
defense."
A minor infraction followed by a serious penalty like discharge
7 also raises an inference that the claimed reason is only a pretext;
as where the employer claimed lie discharged an employee for resuming
work after lunch 7 minutes late, i. e., 4 minutes after the period
ograce ; though the employer's practice with respect to other employees
had been to use warnings and lighter penalties before discharging.
The Board found the "unusual measures * * * so
extraordinary under the circumstances" as to satisfy the BOard that
the alleged tardiness was not the honest reason. 12 Frequently, the
imposed
on the complaining employee was not imposed on
/ other employees for identical or for equally serious offenses. The
Board has found in this disparate treatment convincing evidence that
the alleged reason is not sincere; as, for example in Matter of Botany
Worsted Mills:" the alleged reason was, talkin g during working
hours ; the employees, with the knowledge of, and without complaint
or penalization by, the supervisors, customarily discussed a wide
miscellany of subjects during working hours." In Matter of Kentucky
Firebrick Company, 15 following a strike attended by some
violence, the employer refused to reinstate several employees allegedly
on the ground that they were guilty of the violence. The employer
did reinstate many others equally guilty. This disparate
treatment cast doubt on the honesty of the purported ground. The
Board found the alleged violence of the strikers a "pretext" and not
the "real motive" pointing out that "despite the fact that the respondent
knew that violence had been committed by both its union and
nonunion employees, not a single nonunion employee was denied reinstatement."
16
5. THE CLOSED-SHOP PROVISO
For the employer to require membership in a labor organization
as a condition of employment iis ordinarily an unfair labor practice
within section 8 (3). However, the so-called closed-shop proviso
to the section permits such a condition provided certain statutory
requirements are met. The condition, membership in a labor organization,
is in violation of the section, unless it satisfies the requirements
of the proviso. In a number of cases the Board has been called
upon to determine whether the discrimination was privileged; that
is, to determine whether the discrimination was saved from the
section, generally, by the proviso.17
u For example Matter of Waterman Steamship Corporation and National Maritime Union
of America, etc., 7 N. L. R. B. 237; Matter of Scandore Paper Bow CO., Inc., etc., and
Paper Bow Makers Union, etc., 4 N. L. It. B. 910.
r, Matter of The Jacobs Bros. Co., Inc., and United Electrical and Radio Workers of
America, Local No. 1256, 5 N. L. It. B. 620.
it, Matter of Botany Worsted Mills and Textile Workers Organizing Committee, 4 N. L.
R. B. 292.
14 Also, Matter of Electric Boat Company and Industrial Union of Maine and Shipbuilding
Workers of America, etc., 7 N. L. R. B. 572.
15 Matter of Kentucky Firebrick Company and United Brick and Clay Workers of America,
Local Union No. 510, 3 N. L: R. B. 455, enforced in National Labor Relations Board V.
Kentucky Firebrick Company, 6 Cir., 99 F. (2d) 89, (rehearing denied Oct. 12, 1938).
14
Whether or not the Board will order reinstatement of an employee guilty of violence,
Is discussed below at p. 211.
17 Discussion of agreements and section : 8 (1), at p. 57; 8 (2), at p. 120; 9 (c), at p.
134; and 10 (e), at p. 212.