J. - National Labor Relations Board

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.