or restraint or coercion of employees' union activities. The cases decided by the Board during the fiscal year 1943 show, for example, that espionage and surveillance by employers of the union activities of their employees, and the use of violence against union organizers, members, and meetings, have not as yet entirely disappeared from the American industrial scene. Similarly, there are still some employers who insist upon interrogating employees as to their union membership or activity, not infrequently by way of an inquiry as to union affiliation contained in the form of employment application which prospective employees are required to fill out. In some cases, employers have discouraged employees from joining or forming unions by threatening to close down the plant or to move it to another community or by coercing employees into signing individual contracts of employment designed to discourage concerted activities and the ultimate formation of a labor organization. Where employees have nevertheless engaged in union activity, some employers have attempted to make it difficult for them to obtain employment elsewhere, or have interfered by approaching employees individually and persuading them to abandon their acting in concert with their fellow employees. It is now well established that all these activities by employers constitute interference, restraint, or coercion, within the meaning of the Act, although the Board has, of course, continued to investigate carefully each charge of such activity and to determine on the basis of all the facts and circumstances revealed in the record whether or not the charge was justified.

Two cases decided by the Board during the fiscal year 1943 involved an old problem given new meaning by the fact that the Nation is at war. In each of these cases it appeared that the employer had refused to grant passes to officials of the union which had been certified as the bargaining representative of the employees on board the employer's oil tankers, and that it had thereby been made impossible for these officials to board the tankers and to confer with the employees in question. The employers in these cases pressed the contention that denial of the passes was only a necessary wartime safety measure. The Board, however, found the contention not to be borne out by the facts, and decided the cases in accordance with its established principle that an employer's denial of access to union representatives is an unwarranted interference with the employees' right to self-organization. The Board ordered the employer in each of these cases to grant passes to the duly authorized representatives of the labor organization involved, permitting them to "go aboard its vessels for the purposes of collective bargaining, for the discussion and presentation of grievances, and for other mutual aid and protection of the employees represented by the union, including the collection of dues and distribution of trade papers to union members, provided, however, that the re

1 Matter of Richfield Oil Corporation, 49 N. L. R. B. 593; Matter of General Petroleum Corporation of California, 49 N. L. R. B. 606..

spondent is not required to issue passes for the solicitation of member

ship number of cases which came before the Board during the fiscal

year 1943 involved the question of whether and to what extent an employer may prohibit or limit union solicitation or other activity on company time or property. The fact that the problem thus appeared and reappeared indicated that it was of general interest, and the Board therefore felt it wise to evolve a clear and general policy for the guidance of employers and labor organizations alike. The Board's policy was stated in Matter of Peyton Packing Company, 49 N. L. R. B. 828, as follows:

The Act, of course, does not prevent an employer from making and enforcing reasonable rules covering the conduct of employees on company time. Working time is for work. It is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours. Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose. It is no less true that time outside working hours whether before or after work, or during luncheon or rest periods, is an employee's time to use as he wishes without unreasonable restraint, although the employee is on company property. It is therefore not within the province of an employer to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours, although on company property. Such a rule must be presumed to be an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.

The rule thus formulated by the Board is designed to protect the rights of employees under the Act, but at the same time to discourage needless interference with the uninterrupted production so vital under present wartime conditions. Since the decision in the Peyton Packing case, the Board has in general followed the rule there announced that an employer may properly prohibit union activities during working time, but not during the employees' own time even though they are on company property. However, the fact that a no-solicitation rule promulgated by an employer is by its terms applicable to employees on company property even on their own time does not make improper the employer's discharge of an employee who engages in union activity during working time."

The Board has also been faced in a number of cases with the general problem of whether anti-union statements made by an employer are protected by the constitutional guarantee of freedom of speech or whether such statements are violations of Section 8 (1) of the Act. Since the Supreme Court's decision in the Virginia Electric and Power Company case, the Board has continued to hold that anti-union statements by an employer, when an integral phase of other anti-union conduct, constitute interference, restraint, and coercion within the meaning of the Act. This is particularly clear where the anti-union statements and conduct of the employer take place shortly prior to an

3

Matter of Scullin Steel Company, 49 N. L. R. B. 405.

' N. L. R. B. v. Virginia Electric and Power Company, 314 U. S. 469. • Matter of Virginia Electric and Power Company, 44 N. L. R. B. 404.

election among his employees for the purpose of determining whether they desire to be represented by a labor organization and, if so, by which organization, and where they constitute in effect a campaign by the employer to affect the result of the election. The purpose and the normal effect of an employer's statements under such circumstances, either opposing unions or favoring one union over another, are obvious, and the Board has held them improper under the Act." Even where the employer's preelection statements are not accompanied by or a part of other anti-union conduct, the Board has nevertheless made findings that such statements can be coercive under certain circumstances."

DOMINATING OR INTERFERING WITH THE FORMATION OR ADMINISTRATION OF A LABOR ORGANIZATION OR CONTRIBUTING FINANCIAL OR OTHER SUPPORT THERETO

Under Section 8 (2) of the Act, it is an unfair labor practice for an employer to dominate or interfere with the formation or administration of, or to contribute support to, any organization in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Several cases decided by the Board during the fiscal year 1943 fell somewhere between this Section of the Act and Section 8 (1), which has been discussed just above. These cases involved the question of assistance by an employer of a labor organization, the assistance falling short of domination or support within the meaning of Section 8 (2) of the Act. The Board has distinguished this kind of case from the usual case of domination and support of a labor organization, in which the illegally dominated or supported organization is ordered disestablished, and has held simply that such assistance by an employer constitutes interference, restraint, and coercion within the meaning of Section 8 (1) of the Act. The assisted labor organization is not disestablished, but the employer is directed to withdraw or withhold recognition of the assisted organization as the collective bargaining representative of the employees until and unless it is certified as such representative by the Board."

The number of Section 8 (2) cases which came before the Board during the year was somewhat smaller than in the past, and in the main they embodied no substantial departure from previous cases. Old-fashioned employee-representation plans now appear compara

See Matter of Sunbeam Electric Mfg. Co., 41 N. L. R. B. 469.

• Matter of American Tube Bending Co., Inc., 44 N. L. R. B. 121. The Board's decision has since been set aside by the Circuit Court of Appeals for the Second Circuit, in N. L. R. B. v. American Tube Bending Co., Inc., 134 F. (2d) 993, and the Supreme Court on October, 18, 1943, denied the Board's petition for certiorari, so the question of whether and under what circumstances an employer's anti-union statements may be considered coercive, even though anaccompanied by the other anti-union conduct, is not yet settled. Matter of Heather Handkerchief Works, Inc., 47 N. L. R. B. 800; Matter of The Bradford Machine Tool Company, 44 N. L. R. B. 759; Matter of Wayne Works, 47 N. L. R. B. 1437; Matter of John Engelhorn & Sons, 42 N. L. R. B. 866; Matter of Louis F. Cassoff, 43 N. L. R. B. 1193; Matter of Premo Pharmaceutical Laboratories, Inc., 42 N. L. R. B. 1086; and Matter of National Silver Company, 50 N. L. R. B. 570.

tively infrequently in Board proceedings, although their successors still present the Board from time to time with the problem of deciding, on the facts of each case, whether the effect of the employer's domination and support of the predecessor was effectively dissipated prior to the formation of the successor organization, so that employees who joined the successor or designated it as their bargaining representative were able to do so freely and voluntarily. Cases involving newer company-dominated unions revolved for the most part around such now familiar considerations as participation by the employer in the formation of the organization, activities of supervisory employees in promoting the formation or supporting the administration of labor organizations, disparagement of and opposition to rival unions by the employer, use of company facilities or property by the supported organization, and other means of lending a labor organization the support of the employer.

Under Section 8 (2) of the Act, however, the employer's interference, domination, or support is forbidden only in connection with an organization of employees which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. In two cases decided shortly before the end of the fiscal year, the Board had before it the question of whether an employer's support and domination of what was allegedly a social organization of his employees constituted an unfair labor practice. In Matter of Donnelly Garment Company, 50 N. L. R. B. 241, the Board held that the company's domination and control of an organization of its employees allegedly established for purely social purposes, and the company's utilization of that organization to oppose the formation of a union by its employees, constituted unfair labor practices. Matter of Essex Rubber Co., Inc., 50 N. L. R. B. 283, presented a somewhat similar problem with respect to an organization established among the company's employees ostensibly for the sole purpose of promoting sports and social activities. However, it appeared that the organization was formed and led by strongly anti-union employees, some of whom had been officers of an employee-representation plan previously dominated by the company; that the organization, immediately upon its formation, began a campaign to facilitate and encourage the resignation of employees from an affiliated union which they had previously joined; and that the organization, upon threat of calling a strike, obtained from the company an agreement to check off a certain amount from the wages of each of its members. Some time thereafter the organization formally amended its bylaws to denominate itself a labor organization. The Board held that it was in fact a labor organization prior to the formal amendment of its bylaws. To avoid any future misunderstanding, the Board went on to state that, even if the organization had not been a labor organization prior to the amendment of its

The Board then held that, although the organization was a labor organization, the evidence did not establish its domination or support by the employer.

bylaws, its domination and support by the company during that period, if that were established by the evidence, would nevertheless constitute an unfair labor practice, since any other view would make effective enforcement of Section 8 (2) of the Act extremely difficult. ENCOURAGING OR DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION

Section 8 (3) of the Act makes it an unfair labor practice for an employer to encourage or discourage membership in any labor organization by discrimination in regard to hire or tenure of employment or any term or condition of employment, except where he enters into a closed-shop contract under conditions prescribed in the Act. As in the past, the Board has continued to make every effort to see that Section 8 (3) of the Act does not interfere with the normal exercise by employers of the right to hire and discharge employees. The Board is firmly committed to the principle that this Section of the Act shall not be used as a screen for incompetence, misconduct, or insubordination on the part of union employees, although it is of course the Board's duty, upon the basis of a careful consideration of all the facts in each case decided by it, to determine whether the employer's action of which complaint has been made was due to such alleged reasons or to reasons forbidden by the Act.

Some of the cases decided by the Board under Section 8 (3) of the Act during the fiscal year 1943 only affirmed previously established principles. Thus, an employer's refusal to hire a new employee, as well as the discharge of an old employee, because of his union affiliation or activities, constitutes an unfair labor practice under the Act. However, if a refusal to employ is to be found discriminatory, it must appear at least that there was a suitable vacancy available for the applicant.' If employees go out on strike for economic reasons and not because of any unfair labor practices on the part of their employer, the latter may replace them in order to keep his business running, and the strikers thereafter have no absolute right of reinstatement to their old jobs.10 After the termination of a strike, however, an employer may not discriminatorily refuse to reinstate or reemploy the strikers merely because of their union membership or concerted activity." The plea that strikers have lost their seniority merely by virtue of going on strike, and that their reinstatement or reemployment must therefore be subordinated to that of other employees who did not voluntarily participate in the strike, is merely another way of stating that the

• Matter of American Rolling Mill Company, 43 N. L. R. B. 1020.

10 Matter of The Solvay Process Company, 47 N. L. R. B. 1113. But it is an unfair labor practice for an employer to contract out part of his operations and thereby to displace union employees in order to discourage union membership and activity. Matter of Tampa Shipbuilding Company, Incorporated, 50 N. L. R. B. 177; cf. Matter of Gluck Brewing Co., 47 N. L. R. B. 1079.

A different situation is presented where employees concertedly refuse to work overtime and leave the plant at the beginning of each overtime period, but continue to report for work each day at the start of their regular working hours. It is not discriminatory for the employer not to permit such employees to return for their regular working periods so long as they continue to refuse to work overtime. Matter of Mt. Clemens Pottery Co., 46 N. L. R. B. 714.