NATIONAL LABOR RELATIONS BOARD

92 THIRD ANNUAL REPORT OF NATIONAL LABOR RELATIONS BOARD
handling the negotiations for the union to travel from his headquarters
in another city to the place of the meeting. As a result, the
meeting was not held. The Board found that on April 5 the employer
had refused to bargain collectively with respresentatives of
its employees.
In Matter of Atlas Mills, inc. 236 the employer, immediately after
being asked to meet with the union representative, called a meeting
of its employees and gave them the alternative of giving up their
membership in the union or leaving its employ. The Board, in
analyzing the situation, stated that, "To condition employment upon
the abandonment by the employees of the rights guaranteed them by
the act is equivalent to discharging them outright for union activities";
the Board then asserted the principle that—
To answer a request for collective bargaining from a duly authorized labor
organization by the discharge of all employees who refuse to give up their
affiliation with it is, taken by itself, a conclusive and effective refusal to
bargain.0
In many cases in which the employer argued that the situation then
existing justified its refusal to bargain
'
the Board held that the
excuse advanced was inadequate and that the employer had not been
relieved of its duty to bargain collectively.
The duty of an employer to bargain collectively with the representative
of its employees is not extinguished by the occurrence of a
strike. 38 This is true both of the strike which is the result of an
employer's 'unfair labor practice and the strike which is not. In
N. L. R. B. v. Black Diamond Steamship Corporation," the Circuit
Court of Appeals for the Second Circuit, in dealing with the duty
of an employer to bargain during a strike said :
All engineers were employees under the act, having left work in consequence
of labor disputes. But having done so before any unfair labor practice, they
were relying, and were only entitled to rely, upon a test of economic strength.
They struck at a time when the Board was conducting an election. Since the
act expressly leaves the right to strike unaffected, any remedies they had were
unaffected by continuing on strike. When, on December 14, 1936, the Black
Diamond refused to bargain with the certified bargaining agent of its employees,
it violated the act • • •."
03 Matter of Atlas Mills, Inc., and Textile House Workers Union, No. 2269, United Textile
Workers of America. 3 N. L. R. B. 10.
4 Cf. Matter of Suburban Lumber Company and International Brotherhood of Teamsters.
Chauffeurs, Stablemen, and Helpers of America, Local Union No. 676, 3 N. L. R. B. 194
(discharge of union members on the day that the employer's president learned that the
union's business representative had called and left his card and a proposed contract)
Matter of Jacob Cohen, Lee M. Cohen, Lawrence L. Cohen, Milton Cohen„ Morton Cohen
and Hyman Cohen, Trading as S. Cohen d Sons and Local No. 227, International Ladles'
Garment Workers' Union, 4 N. L. R. B. 720 (two union leaders discriminatorily discharged
the day after the union sent a letter requesting a bargaining conference) •, Matter of Omaha
Hat Corporation and United Hatters, Cap and Millinery Workers International Union,
Local Nos. 7 and 8, 4 N. L. R. B. 878 (discriminatory discharges the day following the first
Meeting between the union and the employer).
la Matter of Black Diamond Steamship Corporation and Marine Engineers' Beneficial
Association Local No. 83, 3 N. L. R. B. 84: Matter of Suburban Lumber Company and
International Brotherhood of Teamsters, Chauffeurs. Stablemen and Helpers of America,
Local Union No. 676, 3 N. L. R. B. 194; Matter of The Jacobs Bros. Co., Inc. and United
Electrical and Radio Workers of America, Local No. 1226, 5 N. L. R. B. 620 ; Matter of Art
Crayon Company, Inc., and It Affiliated Company. American Artists Color W' orks, Inc. and
United Artists Supply Workers, 7 N. L. R. B. 102.
.9 94 P. (2d) 875 (C. C. A. 2d., 1938).
40 In Matter of Art Crayon Convpany, Inc. and Its Affiliated Company, American Artists
Color Works, Inc., and United Artists Supply Workers, 7 N. L. R. B. 102, the employer
refused to confer after its employees had gone on strike because of unfair labor practices.
The Board stated : We find that on May 24 the respondents refused to bargain collectively
with the union, basing its refusal to bargain on the ground that the employees
had gone on strike. The strike, which resulted from the discharge of Rothfeld and Bortoluzzi
and the previous course of conduct of the respondent in intimidating and coercing its
employees, was clearly caused by a labor dispute. The respondents clearly were not, on
the basis of the strike, justified In refusing to bargain."