NATIONAL LABOR RELATIONS BOARD

IV. PRINCIPLES ESTABLISHED 47
Whenever the Board finds that the discharge of employees was
actuated by their misconduct, and not by their union membership or
activity, the charges of discrimination are, of course, dismissed
as unsupported by the evidence. In Matter of Am-am'''. and Company,
32 for example, the Board found that two prominent .union
members had been discharged because of misconduct, nothwithstanding
that what they did was in furtherance of the union's interest.
The Board found (1) that these men had forcibly ejected
an employee from their department who was delinquent in the payment
of his union dues; (2) that prior to this incident, one of them
had on two separate occasions refused to permit nonunion employees
to work in the department, despite repeated warnings to desist from
such conduct. In holding that the discharges were not discriminatory,
the Board said :
* * * Although it appears from the evidence that the respondent knew
of the union membership and activity of both Hazel and Campbell, it had
shown no disposition to discharge them for that reason. On the other hand,
it clearly appears that Hazel and Campbell committed an act without any
right or authority to do so. Moreover, Hazel had been warned on two previous
occasions that he was exceeding his authority in attempting to prevent a nonunion
man from working in the margarine department. Such acts were in
derogation of the respondent's right to conduct and manage its plant in its
own way. Consequently, it must be inferred that the discharge which immediately
followed the ejection of Burns was for that reason and not because of
protected union activities. Upon all the evidence, we conclude, as did the
Trial Examiner, that Hazel and Campbell were discharged for ejecting
Burns from the margarine department.
An employee may be the victim of unlawful discrimination,
even though the union activity inducing the discharge was not his
and did not occur at the employer's plant. Thus, the discharge of a
nonunion employee was found to be discriminatory where the statements
of his supervisors made it clear that he was dismissed because
of his wife's participation in a strike affecting another employer.33
Section 8 (3), of course, prohibits discrimination on the basis of
union membership or activity in putting men back to work following
a strike. 34 Matter of Kokomo Sanitary Pottery Corporation, 35 is an
interesting case in this connection. On the settlement of a strike
(not caused or prolonged by unfair labor practices), the employer
agreed to recall the strikers to work as vacancies should occur, and
to establish a preferential rehiring list in their favor. In disregard
of its undertaking, however, the company hired new employees when
excluded from the departments affected, and (3) that the company suffered no financial
loss, since the men were docked for the time lost and completed their full day's work.
Cf. Matter of United Dredging Company, New Orleans, Louisiana and Inland Boatmen's
Division, National Maritime Union, Gulf District (C. I. 0.), 30 N. L. R. B., No. 118. In
that case employees struck in protest against the discriminatory discharge of three prominent
members of their union. The strikers were entitled to living quarters aboard the
dredge where they worked, and to the freedom of the dredge when off duty. Although
the strikers remained aboard the dredge while the strike was in progress, they were
orderly and refrained from interfering in any way with the operation of the dredge by nonstriking
employees. The Board concluded that their conduct in remaining aboard the
dredge was not a sit-down strike and was lawful, especially In view of the employer's
failure to order them ashore.
ma Matter of Armour and Company [Kansas City, Missouri] and Local Union No. 15,
United Packinghouse 1Vorkers of America, Packinghouse Workers Organizing Committee
((7. I. 0.), 32 N. L. R. B., No. 104.
Matter of Ford Motor Company [Dallas, Texas] and H. C. McGarity, et al., 26
N. L. R. B., No. 34, enrd as mod. in N. L. R. B. v. Ford Motor Co., 119 F. (2d) 326
(0.0. A. 5).
N. L. R. B. v. Mackay Radio d Telegraph Co., 304 U. S. 333.
35 Matter of Kokomo Sanitary Pottery Corporation and National Brotherhood of Operative
Potters, Local No. k6 (A. F. L.), 26 N. L. B. B., No. 1.