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VII. PRINCIPLES ESTABLISHED • 61To be within the scope of section 8 (3) the discrimination must bewith regard to "employment." 27 Accordingly, in Matter of CrossettLumber Company and United Brotherhood of Carpenters and Joinersof America, Lumber and Sawmill Workers Union'Local 2590,28the Board found that the respondent had not violated section 8 (3)because the discrimination was in regard to a contractual relationshipother than that of "employment." 29The concerted activity which the Board has found to be protectedby section 8 (3) has taken varied forms. 8° The Board has held thatsection 8 (3) protects concerted activity although not specificallyunion activity since such discrimination discourages the formationof and membership in a labor organization. 31 Section 8 (3) alsoforbids discrimination because of activity in protection of a unionorganizer from threatened violence by a foreman, 32 and a refusalto remove, while at work, a button designating the wearer as a unionofficer. 33 The Board has also held that section 8 (3) covers a discriminatoryrefusal to reinstate an employee subsequent to the effectivedate of the act for union activity occurring prior thereto,34 aswell as a discharge because the employer believed, although mistakenly,that the discharged employee had engaged in union activity."In some cases, employers have contended that the actions of adischarged employee infringed some rule or regulation of the employer,or in some other manner justified the employee's discharge,without violation of the act. In Matter of Harnischfeger Corporationand Amalgamated Association of Iron, Steel and Tin Workersof North America, Lodge 1.114, 36 the employer discharged unionstewards because they led the respondent's employees in a refusal to27 Cf. Matter of South Atlantic Steamship Company of Delaware and National MaritimeUnion of America, 12 N. L. R. B. 1367. where the employer contended that sailors, whoseshipping articles for a particular voyage had expired, were no longer employees and thereforenot within the protection of 8 (3). The Board found that, in accordance with theusual custom, the employment relationship between the sailors and the ship ov ners wasnot terminated at the end of a particular voyage. In addition, the Board pointed outthat even if the employment relationship had terminated, section 8 (3) covered discriminationas to "hire" as well as to "tenure" of employment, and would therefore beapplicable despite such termination of employment. See Third Annual Repo:1 at pp 72-73.19 8 N. L. B. B. 440, enforced, N. L. R. B. V. Crossett Lumber Co., 102 F. (26) 1003(C. C. A. 8).29 Cf. Matter of West Kentucky Coal Company and United Mine Workers of America,District No, ES, 10 N. L. R. B. 88, petition for enforcement filed May 29, 1939 (C. C. A. 6),discussed supra, where such discrimination was held to be a violation of section 8 (1)of the act.a° Cf. Associated Press v. N. L. II. B., 301 U. S. 103, affirming 85 F. (26) 56, enforcingMatter of The Associated Press and American Newspaper Guild, 1 N. L. R. B. 788, wherethe Supreme Court stated :The Act permits a discharge for any reason other than union activity or agitation forcollective bargaining with employers ° The petitioner is at liberty, wheneveroccasion may arise, to exercise its undoubted right to sever his relationship for anycause that seems to it proper save only as a punishment for, or discouragement of, suchactivities, as the Act decktres permissible" (itali^s supplied).31 Matter of Stehli & Co., Inc. and Textile Workers Union of Lancaster, Pennsylvaniaand Vicinity, Lo,a1 No. 113. Ii N L. R. B. 1297.32 Matter of Mexia Textile Mills and Textile Workers Organizing Committee, 11 N. L.R. B. 1167, petition to review filed May 5, 1939 (C. C. A. 5).33 Matto* of Armour & Company and Packing House Win kers Organizing Committee forUnited Packing House Workers, Local 347, 8 N. L. R. B. 1100, petition to review filedOctober 1, 1938 (C. C. A. 7)•34 Matter of Crossett Lumber Company and United Brotherhood of Carpenters andJoiners of America, Lumber and Sawmill Workers Union, L ocal 2590, 8 N. L. R. B. 440,enforced, N. L. R. B. v. Crossett Lumber Co., 102 F. (26) 1003 (C. C. A. 8).35 Matter of Hamilton-Brown Shoe Co., a Corporation and Local No. 125, United ShoeWorkers of America, affiliated with the Committee or Industrial Organization, 9 N. L.R. B. 1073, modified on another point and enforced in Hamilton-Brown Shoe Company v.N. L. R. B., 104 F. (2d) 49 (C. C. A. 8). Cf. Matter of The Good Coal Company andUnited Mine Workers of America, District 19, 12 N. L. R. B. 136, petition for enforcementfiled June 22, 1939 (C. C. A. 6).94 9 N. L. R. B. 676, enforced, N. L. 'R. B. v. Harnischfeger Corp., June 6, 1939(C. C. A. 7).
62 FOURTH ANNUAL REPORT OF NATIONAL LABOR RELATIONS BOARDwork overtime in protest against the respondent's unlawful refusalto bargain collectively. The Board held that the stewards had ledthe employees in what was, in essence, a partial strike, that such activitywas protected by the act, and that the discharges discouragedmembership in a labor organization in violation of section 8 (3) ofthe Ad." In another case, the employer, after acquiring knowledgethat the union planned a demonstration on Labor Day, posted anotice stating that its mine would operate on Labor Day. Despitethis, the union demonstration was held according to schedule. Therespondent then discharged all employees who had not reported forwork• on that day. The Board held that these discharges were discriminatoryan,d an attempt to discourage concerted activities on thepart of the employees, saying:It Is well known that industry in general ceases its operations on Labor Dayand that labor in general engages in special celebrations on that day. It wasunder these general circumstances that a majority of the employees of therespondent decided not to work on the Labor Day in question and that therespondent decided to operate its mine on that day. It is clear that the respondentand the employees each knew of the position of the other in thismatter and that each party intended to adhere strictly to its position. We findthat there existed as a result of these conflicting positions of the parties acurrent labor dispute with respect to the terms and conditions of employment.*Inasmuch as the failure of the men to work on Labor Day was a consequenceof and in connection with the current labor dispute and since the respondenthad not at the time it refused to allow the men to return to work filledtheir positions, the refusal constituted a discrimination against the men, withinthe meaning of Section 8 (3) of the Act.88The Board has held that a refusal to reinstate an employee whoengaged in personal invective against his employer was not discriminatorysince the refusal was motivated by personal animosity.That the invective had occurred in the course of union activity was,in the Board's view, immaterial."As pointed out in the Third Annual Report," in the usual casecoming before the Board there is no difficulty in determining thequestion as to whether the employer has, in fact, discharged, laidoff, or refused to hire or reinstate an employee; or in some way hasaffected a term or condition of his employment. In a number ofcases, however, the employer's actions have been somewhat less obvious,and the determination as to whether these actions constitute discriminatoryconduct within the meaning of 8 (3) is considerablymore difficult. In all cases, the Board has resolved this questionupon the basis of a realistic examination of the record.v The Board said in this case:"• • • We do not • * • mean that it is unlawful for an employer to dischargean employee for any activity sanctioned by a union or otherwise in the natureof collective activity. The question before us is, we think, whether this particular activitywas so indenfensible, under the circumstances, as to warrant the respondent, under theAct, in discharging the stewards for this type of union activity. We do not think it was."8g Matter of The Good Coal Company and United Mine Workers of America, District 19,12 N. L. R. B. 136, petition for enforcement filed June 22, 1039 (C. C. A. 6). The Boardheld, in addition, that the discharge of employees who were away from work on LaborDay because they were ill was also discriminatory.s9 Matter of Trenton Mills. Inc. and Ralph Knox, 12 N. L. R. B. 241. Cf. Matter ofMarathon. Rubber Products Co. and Prank Reinert, et at., 10 N. L. R. B. 704 (employeehad stated that employer had told a "damn lie")." A t p. 74.
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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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Page 25 and 26: IV. WORK OF THE BOARDUnder the act
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Page 34 and 35: IV. WORK OF THE BOARD 27If all case
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Page 50 and 51: VI. REPRESENTATION CASES 43tion. In
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VII. PRINCIPLES ESTABLISHED 111by i
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VIII. JURISDICTION 113This result h
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IX. LITIGATION 115ing Mill Employee
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IX. LITIGATION 117ployees after ref
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IX. LITIGATION 119-which they forme
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IX.. LITIGATION 121which had gained
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IX. LITIGATION 123Court held that t
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IX. LITIGATION 125B. MISCELLANEOUS
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IX. LITIGATION 127had given full ef
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IX. LITIGATION 129'Where the corpor
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IX. LITIGATION 131• When the unio
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IX. LITIGATION 133established altho
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IX. LITIGATION 135corporation's fai
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IX. LITIGATION 137Corp. v. N. L. R.
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DC. LITIGATION13gopposed to that un
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IX. LITIGATION 141B. CONSENT DECREE
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IX. LITIGATION 143Dupuy Storage d F
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IX. LITIGATION 145L. C. Phenix Co..
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IX. LITIGATION 147Tenth Circuit Cou
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X. THE TRIAL EXAMINERS' DIVISIONThe
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X. THE TRIAL EXAMINERS' DIVISION 15
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XI. DIVISION OF ECONOMIC RESEARCH 1
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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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