NATIONAL LAB RELATIONS BOARD - National Labor Relations ...

96 FIFTH ANNUAL REPORT OF NATIONAL LABOR RELATIONS BOARDof control are used, and the attention of the courts has shifted to thebackground and genesis of challenged organizations to uncover thesignificant differences which appear between spurious organizationsand those of genuine self-organization.-UNFAIR LABOR PRACTICES—SECTION 8 (3)Numerous questions concerning the interpretation and applicationof Section 8 (3) of the act have been considered by the courts duringthe current fiscal year, some of the more important of which arediscussed below :What constitutes violation of section 8 (3).—Termination of employmentby discharge or lay-off is not the only form in which thediscrimination prohibited by section 8 (3) of the act may be manifested.A transfer or change in the nature of the job may be heldto have been discriminatory." Likewise, discrimination againstunion leaders in the rehiring of strikers is a violation of the act.'Since an employer is under a duty to reinstate employees who havegone on strike because of the employer's unfair labor practices, it isa violation of Section 8 (3) to refuse such reinstatement uponapplic,ation. 66 Further, the necessity for any such application may beeliminated where the employer makes it clear that strikers will not betaken back if they do apply."Where men are employed under written contracts for a specifiedterm, it may be shown that it is customary, upon expiration of thecontractual term, to offer new contracts of employment. In such asituation, a discriminatory refusal to reemploy is a violation ofsection 8 (3) .68During the current fiscal year it was held by the first court which hadyet had occasion to pass on the question that a violation of section 8 (3)could not be found in a refusal to hire a man who was not, at the timeof the refusal, an employee within the meaning of section 2 (3) of theact.69A resignation procured by an employer because of the union activityof an employee may not be set up subsequently as a defense to analleged discriminatory discharge; 79 and an employer is responsible fora discharge, although effected by an official of a company-dominatedorganization who did not have authority to make the discharge, if thecompany approved his act. 71 However, where an employee is drivenfrom the plant by the hostility of other employees, the employer is notresponsible if it did not provoke the hostility,72 but an employer may" Kansas City Power & Light Co. v. N. L. R. B., 111 F. (2d) 340 (C. C. A. 8) ; ContinentalOil Co. V. N. L. R. B., 113 F. (2d) 473 (C. C. A. 10), certiorari granted, 61 S. Ct. 72.63 Republic Steel Corp. v. N. L. R. B., 107 F. (2(1) 472 (C. C. A. 3), certiorari denied, 309U. S. 684 on rehearing, Board order modified as to work-relief provision only, 311 U. S. 7..6 American Mfg. Co. v. N. L. R. B., 106 F. (2d) 61 (C. C. A. 2), affirmed as modified, 309U. S. 629; I. H. Ritzwoller v. N. L. R. B., 114 F. (2d) 432 (C. C. A. 7). In the American.case it was also held to be an unfair labor practice to condition reinstatement on acceptanceby the employees of individual contracts which were illegal under the act.e, N. L. R. B. v. Sunshine Mining Co., 110 F. (2(1) 780 (C. C. A. 9), certiorari denied,January 13, 1941.88 N. L. R. B. v. Waterman, Steamship Corp., 309 U. S. 206. rehearing denied, 309 U. S. 696.N. L. R. B. v. National Casket CO., Inc., 107 F. (2d) 992 (C. C. A. 2). Since the close ofthe fiscal year, the Circuit Court of Appeals for the First Circuit has reached the oppositeresult in N. L. R. B. V. Watimbeo Mills Inc., 114 F. (2d) 226 (C. C. A. 1), where it washeld that a refusal to hire a man, solely because of his union activities at plants where hehad previously worked, warranted a finding of 8 (3) violation and an appropriate order forreinstatement and remedial pay. The Second Circuit since followed its decision in theNational Casket case in Phelps Dodge v. N. L. R. B., 112 F. (2d) 202 (C. C. A. 2), and thequestion is now before the Supreme Court on writ of certiorari granted January 13, 1941.TO N. L. R. B. V. Leviton Mfg. Co., 111 F. (2d) 619 (C. C. A. 2).71 N. L. R. B. v. J. Greenebaum Tanning Co., 110 F. (2(1) 984 (C. C. A. 7). certioraridenied, 61 S. Ct. 18. The same result was reached without discussion in N. L. R. B. v.Planters Mfg. Co., 105 F. (2d) 750 (C. C. A. 4).72 N. L. R. B. v. Asheville Hosiery Co., 108 F. (2d) 288 (C. C. A. 4).