stoppages, the National Labor Relations Board has held that, "in view of the interdependent functioning of the different departments and the need for round-the-clock operation of the department where the strikes occurred, there was economic justification" for the employer's conduct in shutting down the plant "until it had adequate assurance that the employees in all departments and all shifts were ready to work." 49

If striking employees engage in serious misconduct, such as physical violence or threats of violence, whether they are on strike to protest an employer's unfair labor practices or because of economic objectives, they may be discharged by an employer, although the discharges may be discriminatory. The Board will not order reinstatement in such cases of misconduct by the employee, but it is necessary for the employer to prove that the employee actually engaged in such misconduct.50 Instances reported by the Board of wrongful behavior of an employee on strike include (1) “forcible attempts to prevent nonstrikers from entering a struck plant"; (2) "zigzagging back and forth in traffic as a means of dangerous harassment on the highway of a nonstriker driving home"; (3) "deliberately bumping or jostling a nonstriker and then striking him as he sought to pass through a picket line at an entrance of the plant”; (4) attempting to throw a rock at police officers "who were escorting a strike sympathizer to a squad car”; (5) “breaking windows in the house of a nonstriker"; and (6) attempting "to block entrance to a plant physically." 51

Before an employer can be found guilty of discriminating against a nonunion member in connection with a union-security agreement, it is necessary for the union to be "(1) the lawful representative of the employees in an appropriate bargaining unit, and (2) free from employer domination or assistance." In addition the filing and noncommunist-affidavit requirements of the Taft-Hartley Act must be complied with. In applying these provisions, the National Labor Relations Board has held that it would be illegal discrimination for an employer to enforce an illegal union-security agreement.52

Section 10 (c) of the Taft-Hartley Act empowers the National Labor Relations Board “to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act." In the Phelps Dodge case, the Board held that the company should pay to individuals who were discriminated against a sum equal to what they normally would have earned from the date of the dis

49 International Shoe Co., 93 N.L.R.B. 907 (1951). See National Labor Relations Board, Sixteenth Annual Report, p. 175.

50 National Labor Relations Board, Sixteenth Annual Report, p. 178.

51 Ibid., pp. 178-179.

52 Ibid., p. 181.

crimination to the time of employment less their earnings during this period, but the Supreme Court of the United States held that deductions should be made not only for actual earnings by the worker, but also for losses which the worker willfully incurred through his unjustifiable refusal to take desirable new employment.

53

Bribes and Other Allurements. Both the Wagner and the Taft-Hartley Acts made it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in the Acts, and in a number of cases the National Labor Relations Board has condemned the use of bribery or attempted bribery of employees as an antiunion weapon. Economic benefits of one sort or another have been offered union leaders and employees as bribes or inducements for them to give up concerted action or collective-bargaining rights. Usually such inducements are offered immediately prior to balloting for or against a union, and a list of inducements constituting employer interference derived from National Labor Relations Board decisions includes wage increases, vacations and holidays with pay, profit-sharing plans, promotions, purchase discounts, loans, insurance, and hospitalization and welfare programs.

53 Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177 (1941). See also National Labor Relations Board v. Seven-Up Bottling Co. of Miami, Inc., 344 U.S. 344 (1953).

CHAPTER 16

Direct Action against Unionism (Continued)

1

The Checkoff. The checkoff is a method of dues collection whereby the employer deducts union-dues obligations from the pay checks of his employees and remits the deducted amounts to the union. In common with the closed shop, the union shop, maintenance-of-membership arrangements, and agreements which provide for exclusive bargaining rights, the checkoff may be regarded as a form of union security. In 1946 over 90 per cent of all employees working under collective agreements "in the aluminum, cotton-textile, hosiery, metal-mining, basic steel, and carpet industries were covered by checkoff provisions." The deductions of dues and initiation fees may be automatic and compulsory, or voluntary. The Taft-Hartley Act (Section 302) provides that "it shall be unlawful for any employer to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce" but that "the provisions of this section shall not be applicable . . . with respect to money deducted from the wages of employees in payment of membership dues in a labor organization: Provided, that the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable agreement, whichever occurs sooner." According to the Attorney General of the United States, the term "membership dues" in Section 302 includes initiation fees and assessments as well as regular periodic dues, particularly when the union constitution provides that such fees and assessments are included in the term "membership dues." 2

The checkoff has been opposed by employers on the grounds (1) that it is the duty and responsibility of the union to collect its dues, and not that of the company; (2) that it involves extra costs to the company arising out of the burden of bookkeeping; and (3) that it is undemocratic

1 U.S. Bureau of Labor Statistics Bulletin 908, 1947, p. 40.

2 Opinion of Attorney General, May 13, 1948.

in that it tends to make union officials independent of their members in the conduct of the union's affairs. On the other hand, the second War Labor Board has pointed out that the checkoff "prevents the necessity for discharging a would-be delinquent" and saves the time of union leaders "for the settlement of grievances and the improvement of production." Furthermore, "this sharing by the company and the union of their common problems and their responsibilities for shop discipline and efficient production through the maintenance of a stable membership and the prompt collection of union dues, makes for a better and more cooperative company, and a more responsible and more cooperative union. The time, thought, and energy given in tense struggles for the organization, maintenance of membership, and collection of dues, necessary and educationally valuable as they are, should as fairly and wisely as possible now be concentrated on winning the war." 3

The Railway Labor Act, in Section 2 (eleventh), permits carriers and their employees to make agreements providing for the deduction from the wages of the employees and payment to their labor organization of "dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership." No such agreement can, however, "be effective with respect to any individual employee until he shall have furnished the employer with a written assignment to the labor organization" of such sums, and this assignment "shall be revocable in writing after the expiration of one year or upon the termination date of the applicable collective agreement, whichever occurs sooner."

Although in general the practice by employers of deducting union dues from the pay checks of those of their employees who request this service is not considered to be unlawful, the checkoff is forbidden by the National Labor Relations Board if the union is company dominated. In the Virginia Electric and Power Company case, the Supreme Court held that where the National Labor Relations Board had found that the employer created and dominated an unaffiliated union and agreed to give the union closed-shop and checkoff privileges in order to entrench it among the employees and to ensure its financial stability, the National Labor Relations Board had the power to order the employer to reimburse the employees for dues checked off their wages and paid to the companydominated union.*

Interrogation and Requesting Statements of Preference. Employers have been found in violation of the Taft-Hartley Act when they have interrogated employees concerning protected concerted activities. Thus,

3 In the "Little Steel" Companies case, 1 War Lab. Rep. 325 (1942).

4 Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533 (1943).

inquiring of employees whether or not they are in favor of a union, conducting a poll of employees by the employer to find out whether they prefer an independent or a company union, asking an employee what his attitudes are concerning union activities, or questioning a job applicant concerning his past union activities have been held by the National Labor Relations Board as constituting interference with the rights of employees.

In the Standard-Coosa-Thatcher case involving the questioning by an employer of an employee's organizational activities under the TaftHartley Act, the Board declared in a unanimous opinion:

Interrogation by an employer not only invades the employee's privacy and thus constitutes interference with his enjoyment of the rights guaranteed to him by the Act. Its effect on the questioned employee, like that of open surveillance of union activity, is to “restrain" or to "coerce" the employee in the exercise of those rights. The employee who is interrogated concerning matters which are his sole concern is reasonably led to believe that his employer not only wants information on the nature and extent of his union interests and activities but also contemplates some form of reprisal once the information is obtained... he fears that a refusal to answer or a truthful answer may cost him his job. He is also in effect warned that any contemplated union activity must be abandoned, or he will risk loss of his job. Weighing these “subtle imponderables," the Board early characterized direct interrogation as a “particularly flagrant form of intimidation of individual employees." The Board assumed the violation "obvious." Many courts did likewise.

The National Labor Relations Board, in this case, rejected the employer's contention that interrogation is protected by Section 8(c) of the TaftHartley Act, which provides that "the expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit." The Board declared: "Interrogation cannot be considered an expression of 'views, arguments, or opinion,' within the meaning of that provision. Moreover, the purpose of that section is to permit an employer to express his views, not to license him to extract those of his employees. The employer is explicitly accorded a right to ‘influence' his employees by verbal appeals to reason, but not to fear.” 5

Making Coercive Statements and Using Threats. Coercive antiunion statements have been condemned both by the National Labor Relations Board and by the courts. The following terms, when used by employers in speaking to employees, have been considered coercive and in violation

5 The Matter of Standard-Coosa-Thatcher Co., 85 N.L.R.B. 1358. Quoted in National Labor Relations Board, Fifteenth Annual Report, 1951, pp. 94–96.