strikers are being discriminated against.12 But strikers who engage in serious misconduct during the course of a strike may be denied reinstatement or reemployment by the employer. Employees who are forced to leave their employment as the alternative to accepting discriminatory transfers to other jobs or because of discrimination in regard to the terms or conditions of their employment are in the same position as discriminatorily discharged employees and are entitled to reinstatement.13

Several times during the last fiscal year the Board had occasion to consider the applicability of Section 8 (3) of the Act to supervisory employees. In Matter of Whiting-Mead Co., 45 N. L. R. B. 987, a majority of the Board, with one member dissenting, held that supervisory employees are protected from discrimination under Section 8 (3). Thereafter, however, the Board held that an employer properly demoted a supervisory employee who had engaged in union activities for which the employer might be held responsible," and also that the discharge of a foreman because during working hours and contrary to instructions he encouraged employees under his supervision to join a union was not discriminatory.18 On the other hand, the Board ruled in two other cases that the discharge of a foreman for refusing to participate in his employer's anti-union campaign was discriminatory," and that an employer could not properly demote one supervisory employee for violating a union-neutrality rule by making prounion statements, while at the same time taking no disciplinary action against another supervisory employee who violated the same rule by making anti-union statements. These and other cases are gradually delimiting the scope of the rights and status of supervisory employees under the Act.

16

Other new or special problems were involved in cases under Section 8 (3) of the Act decided by the Board during the last fiscal year. In Matter of The Texas Company, Marine Division, 42 N. L. R. B. 593, the Board, pursuant to remand by the Circuit Court of Appeals for the Ninth Circuit,18 considered the question of the applicability of Section 8 (3) to maritime employees in the light of the considerable body of legislation governing matters of marine safety and discipline. On the basis of a thorough consideration of the legislation in question, the Board held that there was nothing incompatible between compliance with these legislative safeguards and prevention under the Act of discrimination against maritime employees because of their union membership or activity.19

12 Matter of Precision Castings Company, Inc., 48 N. L. R. B. 870.

13 Matter of American Rolling Mill Company, 43 N. L. R. B. 1020; Matter of Hancock Brick & Tile Company, 44 N. L. R. B. 920; Matter of East Teras Motor Freight Lines, 47 N. L. R. B. 1023; Matter of Ford Motor Company, 50 N. L. R. B. 534: Matter of Waples-Platter Co., 49 N. L. R. B. 1156. The right of such employees to back pay is discussed below, under "Remedial Orders."

14 Matter of Armour Fertilizer Works, Inc., 46 N. L. R. B. 629.

15 Matter of Tabin-Picker & Co., 50 N. L. R. B. 928.

Matter of Richter's Bakery, 46 N. L. R. B. 447.

17 Matter of Boeing Airplane Company, 46 N. L. R. B. 267.

18 Teras Co. v. N. L. R. B., 120 F. (2d) 186.

The Board's view was subsequently sustained by the Circuit Court of Appeals. Texas Co. v. N. L. R. B., 135 F. (2d) 562 (C. C. A. 9).

Three cases decided by the Board involved the misuse of closedshop contracts, in a manner contrary to the purposes and policies of the Act. In Matter of Rutland Court Owners, Inc., 44 N. L. R. B. 587,20 certain employees were discharged by their employer, pursuant to and towards the end of the effective period of a valid closed-shop contract, because they had designated as their bargaining representative for the period following the termination date of the contract a union other than the contracting union. The Board stated the issue as being whether a closed-shop agreement for 12 months made in conformity with the conditions of the proviso may operate as a defense to otherwise discriminatory discharges effected toward the end of the contract term when the employees covered by the agreement seek to change their collective bargaining representative for the next contractual period.

The majority of the Board held the discharges discriminatory despite the proviso of Section 8 (3).

The mere fact that all closed shops are not unlawful, by virtue of the proviso, is no reason for holding that closed shops may be made perpetual because validly initiated pursuant to the proviso. * * * to sustain the contention of the respondent and the A. F. of L. Local would be to enforce a closed shop for an unreasonable period, indeed for an indefinitely long period or perhaps even in perpetuity. Effectuation of the basic policies of the Act requires, as the life of the collective contract draws to a close, that the employees be able to advocate a change in their affiliation without fear of discharge by an employer for so doing.

In Matter of The Wallace Corporation, 50 N. L. R. B. 138, a consent election was held among the company's employees pursuant to a settlement agreement which provided, in part, that the company would enter into a closed-shop contract with the union which won the election. After the election, the company accordingly signed a closedshop contract with the winning union, although the company knew at the time that the contracting union intended to exclude from membership employees who had previously been active on behalf of the rival union. Thereafter, employees thus excluded from membership in the contracting union were discharged by the company pursuant to the closed-shop contract. The Board held that, under the circumstances, the contract was invalid and the discharges pursuant to the contract were discriminatory, within the meaning of Section 8 (3) of the Act. In Matter of Monsieur Henri Wines, Ltd., 44 N. L. R. B. 1310, discharges made pursuant to a closed-shop contract, found to have been fraudulently entered into by the employer and the union for the purpose of depriving of employment the employees who had designated the union as their bargaining representative, but who were denied union membership after the contract was signed, were held by the Board to be discriminatory.

DISCRIMINATING AGAINST EMPLOYEES BECAUSE THEY HAVE FILED CHARGES OR GIVEN TESTIMONY UNDER THE ACT

Cases under Section 8 (4) of the Act, which makes it an unfair labor practice for an employer to discharge or otherwise discriminate against

20 Noted in the Board's Seventh Annual Report, p. 48.

an employee because he has filed charges or given testimony under the Act, continue to constitute a very minor part of the Board's work. In one of the few cases which arose under this Section during the fiscal year 1943, the Board held that an employer could properly refuse to settle a charge of discrimination by reinstating the discharged employee and could insist upon having the charge fully litigated."1

REFUSING TO BARGAIN COLLECTIVELY

Section 8 (5) of the Act makes it an unfair labor practice for an employer to refuse to bargain collectively with the representatives designated or selected by the majority of the employees in a unit appropriate for collective bargaining purposes. The Board's decisions during the fiscal year 1943 did not, on the whole, involve any major innovations in the interpretation and application of this Section.

As usual, a number of the cases arising under this Section raised the question of whether the charging union, at the time of the alleged refusal by the employer to bargain collectively, had been designated by a majority of the employees as their bargaining representative. In resolving questions of this kind, the Board has continued to follow the judicially approved nontechnical approach in determining what amounts to designation of a union by employees. For example, where more than a majority of the employees involved had signed membership cards, but some of the cards bore the name of the local charging union whereas others bore the name of the parent union, the Board nevertheless held that the cards constituted adequate designation of the charging union as the bargaining representative, since the record showed in part that the employees were aware of the relationship between the unions.22 Similarly, the Board held, as it has before, that membership application cards signed by a majority of the employees are enough to designate the union in which membership is requested as the bargaining representative of the employees.23 Where a union has, after appropriate proceedings under the Act, been certified by the Board as the duly designated bargaining representative of a unit of employees, its status as such representative normally continues thereafter for at least a reasonable period of time during which the parties can, through the process of collective bargaining, attempt to settle their problems amicably. In the interest of stability in bargaining relationships, the Board has held that this is so even where its certification of a union has been followed by the filing under the Act of another petition for investigation and certification of representatives.25 And in several cases the Board affirmed earlier rulings

24

"Matter of American Linen Service Co., 45 N. L. R. B. 902.

22 Matter of Franks Bros. Company, 44 N. L. R. B. 898. A different situation is presented where a decisive number of employees in the appropriate unit sign cards designating the charging union but also sign cards designating a rival union. Matter of Harry Stein, 46 N. L. R. B. 129; Matter of Abraham B. Karron, 41 N. L. R. B. 1454.

13 Matter of Coca-Cola Bottling Works, 46 N. L. R. B. 180.

Matter of Marshall Field & Co., 43 N. L. R. B. 874; Matter of Dadourian Export Corporation, 46 N. L. R. B. 498; Matter of Appalachian Electric Power Company, 47 N. L. R. B. 821; Matter of John Engelhorn & Sons, 42 N. L. R. B. 866.

25 Matter of Grieder Machine Tool and Die Company, 49 N. L. R. B. 1325.

that an employer may not properly refuse to bargain collectively with a union which had attained majority status on the ground that it thereafter lost its majority status, where the loss of majority followed the commission by the employer of unfair labor practices forbidden by the Act.26 A showing merely that there has been a substantial turn-over of personnel does not affect a union's majority status established in an election among the employees held under the auspices of the Board.27

In one case which came before the Board under Section 8 (5), the employer had refused to bargain with a union previously certified by the Board, on the ground that the unit of employees for which the union had been certified was inappropriate for collective bargaining purposes because it had been fixed by the Board partly on the basis of the desires of the employees involved.28 The Board held that there was nothing improper in relying upon the desires of the employees as one of the factors affecting the determination of the unit of employees appropriate for the purposes of collective bargaining, and found that the employer had refused to bargain collectively within the meaning of the Act.29

Where it is established that the charging union in a case under Section 8 (5) represents a majority of the employees in an appropriate unit, the only remaining question is whether the employer's conduct constitutes a refusal to bargain. Here the problem which the Board most frequently must decide is whether the evidence in the case shows that the employer has sought in good faith to reach an understanding with his employees' representatives. Over a long period of time, the cases decided by the Board have revealed a recurrent pattern of the indicia of bad faith in bargaining negotiations, and a number of the cases decided during the last fiscal year reflect this pattern. Thus, the Board had occasion to reiterate that bad faith is demonstrated by an employer's unreasonable delay in beginning or resuming negotiations on request; by an employer's failure to make counterproposals after the union's proposals have been made and rejected; 30 by an employer's appointment of bargaining representatives without authority to reach agreements; and by an employer's taking unilateral action, during bargaining negotiations, on matters properly the subject of collective bargaining.

20 See, e. g., Matter of Porcelain Steels, Inc., 46 N. L. R. B. 1235; Matter of Hirsch Mercantile Company, 45 N. L. R. B. 377. But cf. Matter of Louis Natt, 44 N. L. R. B. 1099, where the charging union's loss of majority was not attributable to any unfair labor practices on the part of the employer.

27 Matter of The Century Orford Manufacturing Corporation, 47 N. L. R. B. 835.

28 This is the so-called Globe doctrine, under which the Board, in determining whether different groups or classifications of employees properly constitute one bargaining unit or separate bargaining units, rests its determination in part on the desires of the employees as expressed in an election, other factors being equal. Matter of the Globe Machine & Stamping Co., 3 N. L. R. B. 294.

29 Matter of Marshall Field & Co., 43 N. L. B. R. 874. The case was subsequently remanded by the Circuit Court of Appeals. Marshall Field & Co. v. N. L. R. B., 135 F. (2d) 391 (C. Ć. A. 7). As hereinafter appears, the Board's practice in such representation cases now is to determine the appropriateness of joining or separating different groups or classifications of employees only after the election has been held, and then on the basis of the entire record, including the results of the election.

30 An employer's counterproposals may also show bad faith, where they suggest the abandonment of previously granted benefits without any justification shown. Matter of Register Publishing Co., Ltd., 44 N. L. R. B. 834.

Other cases decided during the last fiscal year repeated equally well-established propositions. An outright refusal to negotiate with the employees' designated representatives is, of course, a refusal to bargain. Failure to reply to communications from the employees' representatives or to grant them recognition as representing all the employees in the appropriate unit is also a refusal to bargain. Bargaining with employees individually does not satisfy the employer's obligation, if a duly designated representative has requested collective bargaining. Nor does an employer bargain collectively, within the meaning of the Act, merely by meeting with his employees' representatives and insisting that he continue to have absolute and unilateral control over wages at all times.31 Assuming a refusal to bargain collectively, it is not a defense that one of the union's proposals was for a closed shop, or that a strike was in process when the request for collective bargaining was made, or that the employer then had a contract with another labor organization which had previously been given the employer's support and assistance, or that individual contracts of employment between the employer and his employees had been made prior to the designation of a collective bargaining representative by the employees.32 And clearly, since the Heinz case in the Supreme Court,33 it is a refusal to bargain collectively for an employer to refuse to embody in a written contract any terms upon which he has reached agreement with the representatives of his employees.34

35

In a case of first impression under Section 8 (5) of the Act, the Board during the last fiscal year held that an employer, after entering into a collective bargaining contract with the duly designated representative of his employees establishing a complete and detailed procedure for the handling of grievances, could not properly promulgate another complete and detailed procedure for the handling of grievances without reference to the contract or the exclusive bargaining representative. The problem thus presented is one of reconciliation between the employer's obligation under the Act to bargain exclusively with the duly designated representatives of the employees in an appropriate unit and the proviso to Section 9 (a) of the Act"that any individual employee or a group of employees shall have the right at any time to present grievances to their employer." Subsequent to the North American case, the Board's interpretation of the proviso to Section 9 (a) was clarified and more fully restated in an opinion rendered by its General Counsel, which concluded that the proviso is properly limited to "permitting individuals or groups of employees to present grievances to their employer by appearing in behalf of themselves at every stage of the grievance procedure set up

Matter of V-0 Milling Company, 43 N. L. R. B. 348.

"Matter of J. 1. Case Company, 42 N. L. R. B. 85; Matter of Texas, New Mexico & Oklahoma Coaches, Inc., 46 N. L. R. B. 343. "H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514.

Matter of American Creosoting Company, Incorporated, 46 N. L. R. B. 240.

35 Matter of North American Aviation, Inc., 44 N. L. R. B. 604, set aside, N. L. R. B. v. North American Aviation Co., 136 F. (2d) 898 (C. C. A. 9).