J. - National Labor Relations Board

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VII. PRINCIPLES ESTABLISHED 105Moreover, if unfair labor practice strikers apply for and arerefused reinstatement the Board will order that these strikers receiveback pay from the date of the refusa1. 51 The basis for suchorder was stated as follows in Matter of Western Felt Works, acorporation and Textile Workers Organizing Committee, Western,Felt Local: 52At the time the striking employees offered to return to work, the questionas to whether the respondent would itself reinstate employees whose work hadceased as a consequence of unfair labor practices or await an order of thisBoard requiring it to do so reposed entirely in the judgment of the respondent.Where, as here, employees who cease work as a consequence of unfair laborpractices offer to return to work, without requiring as a condition that theemployer cease the unfair labor practices which caused them to cease work,and the employer refuses to permit them to return to work, thereby deprivingthe employees of their jobs and attendant earnings until this Board issues aremedial order, we are of the opinion that the policies of the Act will best beeffectuated by requiring that in addition to reinstatement, the employer payback pay to the employees from the date on which they offered to return towork.Further, if they have been discriminatorily discharged while out onstrike, they will receive back pay from the date of suchdiscriminatorx discharge.53Where there has been no refusal to reinstate or other discriminationagainst unfair labor practice strikers prior to the hearing, the Board,in ordering their reinstatement directs that these employees shall bepaid back pay during a period beginning 5 days after the date oftheir application for reinstatement pursuant to the Board's order.546. EFFECT ON BOARD ORDERS OF VIOLENT OR -UNLAWFUL CONDUCT ON THE PART OFEMPLOYEES WHO WERE DISCRIMINATORILY DISCHARGED OR WHO WENT ONSTRIKE IN PROTEST AGAINST UNFAIR LABOR PRACTICESAs stated in the Third Annual Report, the Board does not condoneviolence or illegal conduct on the part of any party to a labor dispute;and in determining whether or not to order the reinstatement of employeeswho have engaged in violent or unlawful conduct, considerswhether or not the reinstatement of such employees would effectuatethe policies of the Act. 55 In Matter of Republic Steel Corporationand Steel Workers Organizing Committee," the Board articulated twoand shift to other positions persons occupying the positions formerly held by these 17employees and to redistribute its other employees on a nondiscriminatory basis, to suchextent as necessary, for the purposes of making positions available for such reinstatement.• • •"" Matter of McKai g-Hatch. Inc., and Amalgamated, Association of Iron. Steel. and TinWorkers of North America, Local No. 1119, 10 N. L. R. B. 33; Matter of Reed & PrinceManufacturing Company and Steel Workers Organizing Committee of the C. I. 0., 12N. L. It. B. 944.5, 10 N. L. R. B. 407, enforced Western Felt Works v. N. L. R. B., March 25, 1939,(C. C. A. 7).Matter of El Paso Electric Company, a corporation and Local Union 565, InternationalBrotherhood of Electrical Workers et al., 13 N. L. R. B.. No. 28.u Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9N. L. R. B. 219. enforced as modified. Republic Steel Corp. v. N. L. R. .B., November 7,1939 (C. C. A. 3) ; Matter of Jack Schwab & Murray Schwab. individuals doing businessunder the firm name and style of S"hwab & Schwab and Textile "Workers Organizing Committee,C. I. 0., 10 N. L. It. B. 1455; Matter of Bennett-Hubbard Candy Company andBakery if Confectionery Workers Local Union No. 25, 11 N. L. R. B. 1090; Matter ofLightner Publishing Corporation of Illinois and-Chicago Printing Pressmen's Wnion No. 3,Chicago Typographical Union No. 16, 12 . N. L. R. B., 1255; Matter of Brashear FreightLinea, Inc. and International Association of Machinists, District No. 9, affiliated with theAmerican Federation of Labor, 13 N. L. R. B., No. 25.55 See Third Annual Report, p. 211,•50 9 N. L. R. B. 219 enforced as modified November 8, 1939 (C. C. A- 3). The Boardstated the following with respect to the question of proving violence in this connection:"We think also that the Board is entitled to rely upon the local law-enforcement agenciesfor proof of such matters. The record shows that the ponce and prosecuting authori-
106 FOURTH ANNUAL REPORT OF NATIONAL LABOR RELATIONS BOARDcriteria for ascertaining whether or not employees who' had engagedin violence should be reinstated. The Board inquired first whetherthe unlawful conduct was such as to render the employees who wereguilty thereof, unsuitable for further employment. The Board statedthe following in this connection :It must be remembered that the acts of which the respondent complains werecommitted by strikers in the heat and turmoil of bitter industrial strife inwhich the threat of violence on the part of the respondent against the strikerswas ever present and frequently carried into execution ; that the strike wasbrought on fundamentally by the respondent's own unlawful acts ; that therespondent had itself been guilty of brutal acts of violence in the period oforganization preceding the strike ; and that the respondent itself committed orwas responsible for acts of violence during the strike far more serious than thoseattributed to the strikers in question.'•The Board also inquired whether reinstatement would tend to encourageviolence in labor disputes and would not otherwise effectuate_the policies of the Act :* * * We cannot conclude that the reinstatement of strikers in this situationwill provide any material incentive to violence in future industrial conflict.Where passions are aroused by bitter industrial warfare the deterrent effects.of a possible failure to achieve reinstatement by Board order at some futuredate after the conclusion of the strike will scarcely be a .factor of significancein the amount of violence likely to occur. Furthermore, the primary control_of such misconduct is and must be found in the police power of State and localauthorities. In this case strikers guilty of misconduct have been prosecuted bythe local authorities and have paid the penalty for such misconduct. The Act'was not intended to regulate conduct subject to local police regulation butprimarily to protect the right of self-organization and collective bargaining.Insofar as the discouragement of crime may be accomplished in this case with--out sacrificing the effectuation of the policy of the Act, we exercise our discretionin excluding from our order of reinstatement those employees whose crimes.are insufficiently grave to disqualify them from reemployment. We think itevident, however, that the respondent's unfair labor practices should not beimperfectly remedied and that the important national policy of the Act, which is.fulfilled by the reinstatement of strikers, should not be imperfectly effectuated,merely because the respondent's striking employees have violated other laws,.where such violations have already been punished by the appropriate lawenforcementagencies and are not of such a character as to disqualify thestrikers from reemployment.•Employees denied reinstatement had either pleaded or been foundguilty of the possession or use of explosives or the malicious destructionof property. Employees reinstated had been found guilty of'very minor crimes such as disorderly conduct and assembling together'to do an unlawful act.In Matter of El Paso Electric Company, a corporation and Local.Union 585, International Brotherhood of Electrical Workers et al,'the Board held that employees who had committed sabotage -againstthe respondent's property would be reinstated in those instances where:ties of various cities were active throughout and after the strike. Numerous arrests.were made and many convictions obtained. Under these circumstances the Board is inclinedto feel that it can presume that any significant crime committed was investigatedby the proper authorities and, if adequate evidence was found, was prosecuted by them.As a result, especially in view of the administrative difficulty of trying such collateralissues, the Board will not go into alleged acts of violence of individual strikers beyond'accepting the offer of proof, and taking Judicial notice, of convictions and pleas of guilty."57 Compare Matter of Berkey and Gay Furniture Company and International Union.,United Automobile Workers of America, Local 418, 11 N. L. R. B. 282, petition for enforcementfiled May 22, 1939 (C. C. A. 6) : discriminatory discharge provoked a brawl with aforeman. The Board' ordered reinstatement, stating :"The respondent will not be permitted, under the circumstances, to set up the consequencesof its own wrongful conduct as an excuse for failing to remedy the unfair laborpractice engaged in by it."0 13 N. L. B. B., No. 28.
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LETTER OF TRANSMITTALNATIONAL LABOR
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6 FOURTH ANNUAL REPORT OF NATIONAL
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FOURTH ANNUAL REPORT OF NATIONAL LA
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10 FOITRTH ANNUAL REPORT OF NATIONA
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IV. WORK OF THE BOARDUnder the act
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,24 FOURTH ANNUAL REPORT OF NATIONA
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IV. WORK OF THE BOARD 27If all case
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V. UNFAIR LABOR PRACTICE CASES 29of
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TABLE VI.—Analyses of charges rec
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V. UNFAIR LABOR PRACTICE CASES 33Th
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TABLE VIII.—Disposition of unfair
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V. UNFAIR LABOR PRAWICE CASES 37TAB
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General Tax Tips #46TO BE PRINTED B
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V. UNFAIR LABOR PRACTICE CASES 41TA
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VI. REPRESENTATION CASES 43tion. In
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TABLE XV.—bisposition of represen
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VI. REPRESENTATION CASES 47'unions.
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VI. REPRESENTATION CASES 49TABLE XV
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VI. REPRESENTATION CASES 51C. ELECT
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TABLE XX.-Elections conducted by th
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Page 116 and 117: VII. PRINCIPLES ESTABLISHED 109In a
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Page 120 and 121: VIII. JURISDICTION 113This result h
Page 122 and 123: IX. LITIGATION 115ing Mill Employee
Page 124 and 125: IX. LITIGATION 117ployees after ref
Page 126 and 127: IX. LITIGATION 119-which they forme
Page 128 and 129: IX.. LITIGATION 121which had gained
Page 130 and 131: IX. LITIGATION 123Court held that t
Page 132 and 133: IX. LITIGATION 125B. MISCELLANEOUS
Page 134 and 135: IX. LITIGATION 127had given full ef
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Page 140 and 141: IX. LITIGATION 133established altho
Page 142 and 143: IX. LITIGATION 135corporation's fai
Page 144 and 145: IX. LITIGATION 137Corp. v. N. L. R.
Page 146 and 147: DC. LITIGATION13gopposed to that un
Page 148 and 149: IX. LITIGATION 141B. CONSENT DECREE
Page 150 and 151: IX. LITIGATION 143Dupuy Storage d F
Page 152 and 153: IX. LITIGATION 145L. C. Phenix Co..
Page 154 and 155: IX. LITIGATION 147Tenth Circuit Cou
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XL DIVISION OF ECONOMIC RESEARCH 15
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XI. DIVISION OF ECONOMIC RESEARCH 1
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XII. INFORMATION DIVISION 159The ac
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INFORMATION DIVISION 161,Throughout
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XIII. LIST OF CASES HEARD AND DECIS
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XIII. LIST OF CASES HEARD- AND DECI
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LIST OF CASES HEARD AND DECISIONS R
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XM. LIST OF CASES HEARD AND DECISIO
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APPENDIX ATABLE T.—Comparison of
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CHART A6NUMBER OF STRIKES CONTRASTE
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' •Arpti-smix"A 193TABii -1L-Comp
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NUMBER OF WORKERS INVOLVED IN ORGAN
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CHART EMILLIONS OFMAN-DAYS OF IDLEN
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APPENDIX B• ,. "Pft,LIST .7 F 3RE
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200 FOURTH ANNUAL REPORT OF NATIONA
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