Cyril de Cordova & Bro.

National Labor Relations Board - Board Decisions

Oct 20, 1950

91 N.L.R.B. 1121 (N.L.R.B. 1950)

In the Matter of EIJSTACE DE CORDOVA, ROBERT F. HOWARD, CHARLES A.
GRACE, EDNA DE CORDOVA AND GLADYS DE C. HOWARD, CO-PARTNERS
DOING BUSINESS AS CYRIL DE CORDOVA & BRO . and JOHN M. FINN
Case No. 0-CA-281.-Decided October 20, 1950
DECISION AND ORDER
On February 10, 1950, Trial Examiner Arthur Leff issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of
the Act, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions to the Intermediate Report and a supporting brief. The
General Counsel also filed a brief. The Respondents' request for oral
argument is hereby denied, as the record and briefs, in our opinion,
adequately present the issues and the positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-.
mediate Report, the Respondents' exceptions and brief, the General
Counsel's brief, and the entire record in the case, and hereby adopts:
the findings, conclusions, and recommendations of the Trial Examiner
with the following modification :
The Trial Examiner found that the Respondents discharged John
M. Finn for his failure and refusal to cross a picket line established at,
the New York Stock Exchange, and that such discharge was in viola-
tion of Section 8 (a) (1) and (3) of the Act. We agree with the
Trial Examiner's conclusions and recommendations in this respect..
As set forth in the Intermediate Report it has long been established
by both this Board and the Courts that such activity is protected and
that a discharge therefore is violative of the Act. Nor do we find
reason to deviate from our prior rulings in this respect because of the
amendments to the Act. Whatever may be the impact of the provisos
91 NLRB No. 187.
1121
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Section 8 (b) (4),' it is at least clear that it places no proscriptions
on the activity here before us. As we consider Finn's discharge for
what we find to be protected concerted activity to be the sole issue
before us, we do not adopt any of the findings or conclusions of the
Trial Examiner relative to alternative actions the Respondents may
have resorted to in lieu of discharging Finn.
The Remedy
Since the issuance of the Trial Examiner's Intermediate Report,
the Board has adopted a method of computing back pay different from
that prescribed by. the Trial Examiner .2 Consistent with that new
policy we shall order that the loss of pay be computed on the basis of
each separate calendar quarter or portion thereof during the period
from the Respondents' discriminatory action to the date of a proper
offer of reinstatement. The quarterly periods, hereinafter called
"quarters," shall begin with the first day of January, April, July, and
October. Loss of pay shall be determined by deducting, from a sum
equal to that which this employee would normally have earned for
,each quarter or portion thereof, his net earnings,3 if any, in other em-
ployment during that period. Earnings in one particular quarter
.shall have no effect upon the back-pay liability for any other quarter.
We shall also order the Respondents to make available to the Board
upon request payroll and other records to facilitate the checking of
the amount of back pay due.4
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Eustace de
Cordova, Robert F. Howard, Charles A. Grace, Edna de Cordova,
and Gladys de C. Howard, copartners doing business as Cyril de
The proviso to 8 (b ) ( 4) reads as follows :
Provided, that nothing contained in this subsection ( b) shall be construed to make
unlawful a refusal by any person to enter upon the premises of any employer (other
than his own employer) if the employees of such employer are engaged in a strike
ratified or approved by a representative of such employees whom such employer is
required to recognize under the Act..
2 P. W. Woolworth Company, 90 NLRB 289.
8 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for this unlawful discrimination, and the
consequent necessity of his seeking employment elsewhere . Crossett Lumber Company,
8 NLRB 440. Monies received for work performed upon Federal , State , county, municipal,
or other work-relief projects shall be considered earnings . Republic Steel Corporation
v. N. L. R. B., 311 U. S. 7.
A P. W. Woolworth Company, supra.
CYRIL DE CORDOVA & BRO. 1123
Cordova & Bro., New York City, and its officers, agents, successors,
.and assigns, shall:
1. Cease and desist from :
(a) Interfering with, restraining, or coercing their employees in
.the exercise of their right to join or assist Local 205, United Financial
Employees Union, -International Employees Union of Office Em-
ployes, A. F. L., or any other labor organization, and to engage in
concerted activities for the purpose of mutual aid and protection,
,or to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring membership
.in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act;
(b) Discouraging membership in Local 205, United Financial Em-
ployees Union, International Union of Office Employees, A. F. L.,
or any other labor organization of their employees, by in any manner
discriminating in regard to their hire or tenure of employment or any
term or condition of employment.
2. Take the following affirmative action, which it is found, will
effectuate the policies of the Act :
(a) Offer to John M. Finn immediate and full reinstatement to
his former position, or to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and make
whole John M. Finn for any loss of. pay he may have suffered by
reason of the Respondents' discrimination against him, in the manner
provided herein in the section entitled The Remedy ;
(b) Post immediately at its office in New York City copies of the
notice attached hereto, marked Appendix A.5 Copies of such notice,
to be furnished by the Regional Director for the Second Region, after
being duly signed by the Respondents' representative, shall be posted
by the Respondents immediately upon receipt thereof and maintained
by them for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other
material;
(c) Notify the Regional Director for the Second Region (New
York City) in writing within ten (10) days from the date of this
Order what steps the Respondents have taken to comply therewith.
CHAIRMAN HERZOG and MEMBER REYNOLDS took no part in the con-
sideration of the above Decision and Order.
& In the event this Order is enforced by a decree of a United States Court of Appeals
there shall be inserted before the words, "Decision and Order," the words, "Decree of
the United States Court of Appeals Enforcing."
917572-51-vol. 91-72
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in LOCAL 205, UNTIED
FINANCIAL EMPLOYEES UNION, INTERNATIONAL UNION OF
OFFICE EMPLOYEES, A. F. L., or any other labor organi-
zation of our employees, by discriminating in any manner with
regard to their hire and tenure of employment, or any term or
condition of employment.
WE WILL NOT interfere with,. restrain, or coerce our employees.
in the exercise of their right to join or assist LOCAL 205,.
UNITED FINANCIAL EMPLOYEES UNION, INTERNATIONAL
UNION OF OFFICE EMPLOYEES, A. F. L., or any other
labor organization, to engage in concerted activities for the
purpose of mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
WE WILL OFFER John M. Finn immediate and full reinstatement
to his former or substantially equivalent position without prej-
udice to any seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of pay suffered as the-
result of the discrimination.
WE WILL NOT discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any em-
ployee because of membership in or activity on behalf of any such
labor organization.
All our employees are free to become, remain, or refrain from be-
coming members of the above-named union or any other labor organ-
ization except to the extent that this right may be affected by an.
agreement in conformity with Section 8 (a) of the amended Act.
CYRIL DE CORDOVA & BRO.,
Employer.
By -------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days, from the date hereof,,
and must not be altered, defaced; or covered by any other material.
CYRIL DE CORDOVA & BRO. 1125
INTERMEDIATE REPORT
11r. Samuel M. Kaynard, for the General Counsel.
Mr. Neilson Olcott (Olcott & Jackson), of New York, N. Y., for the Respondents.
STATEMENT OF THE CASE
Upon a charge duly filed by John M. Finn, the General Counsel of the National
Labor Relations Board, by the Regional Director of the Second Region (New
York, New York), issued his complaint dated October 3, 1949, against Eustace
de Cordova, Robert F. Howard, Charles A. Grace, Edna de Cordova, and Gladys
de C. Howard, eg-partners doing business as Cyril de Cordova & Bro., herein
called the Respondents, alleging that the Respondents had engaged ip, and, are
engaging in, unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and ,(7) of the National Labor
Relations Act, as amended (61 Stat. 136), herein called the Act.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondents, on May 7, 1948, discharged John M. Finn, and thereafter
failed and refused to reinstate him, because he had joined or assisted Local 205,
United Financial Employees Union, International Union of Office Employees,
AFL, herein called the Union, or had engaged in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection.
Copies of the complaint, accompanied by notice of hearing thereon, were duly
served upon the Respondents and Finn.
Thereafter the Respondents filed their answer to the complaint. In their
answer, the Respondents denied that they are engaged in commerce within the
meaning of the Act, and also denied generally the allegations of the complaint
relating to the unfair labor practices.
Pursuant to notice, a hearing was held at New York, New York, on December
8 and 9, 1949, before Arthur Leff, the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. The General Counsel and the Respondents
were represented by counsel and participated at the hearing. At the conclusion
of the General Counsel's case, the Respondents moved to dismiss the complaint
upon the ground that they are not engaged in commerce within the meaning of
the Act. The motion was denied with leave to renew at the close of the entire
case. Upon renewal of the motion, ruling thereon was reserved. Ruling was
also reserved upon the Respondents' motion, made at the close of the case, to
dismiss the complaint upon the ground that the General Counsel had failed to
substantiate the allegations of unfair labor practices therein contained. The
motions to dismiss are now disposed of in accordance with the findings of fact
and conclusions of law made below. A motion made by the General Counsel
at the close of the case, to conform the pleadings to the proof with respect to
minor matters, was granted. Opportunity was afforded all parties to argue the
issues orally upon the record and to file briefs and proposed findings of fact and
conclusions of law. Briefs were. received from the General Counsel and the
Respondents.
Upon the entire record in the case, and from my observation of the witnesses,
.1 make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Eustace de Cordova, Robert F. Howard, and Charles A. Grace, general partners,
and Edna de Cordova and Gladys de C. Howard, limited partners, are partners
1126 DECISIONS OF NA=C)NAL LABOR RELATIONS BOARD
doing business as stockbrokers under the name of Cyril de Cordova & Bro.,
with their principal office and place of business in New York, New York. The
Respondents, as a registered member firm of the New York Stock Exchange
(herein called the Exchange), are the authorized sole specialists in about 20
issues of limited stock, issued by corporations admittedly engaged in inter-
state commerce .' As such specialists , the Respondents execute orders for and
,on behalf of almost all stock brokerage houses on the Exchange a substantial
percentage of which have branch offices in States other than the State of New
York. The Respondents' transactions on the floor of the Exchange are initiated
by the receipt of orders from other stock brokerage houses in New-York City.
The orders are received by the Respondents either directly from the other bro-
kerage houses or from their representatives on the Exchange floor. After the
orders have been executed by the Respondents, they are cleared for the Respond-
ents by other Exchange houses through the New York Stock Clearing Corpora-
tion. In executing the orders, the Respondents act solely on behalf of the stock
brokerage firms from whom they have been received. The orders placed with
the Respondents do not disclose the names of the customers of the brokerage
houses which have placed the orders with the Respondents ; nor are such orders
identified in any instances as orders originating outside the State of New York.
It is conceded, however, that, considered as a group, the brokerage houses for
whose accounts the Respondents execute orders service customers in all sec-
tions of the United States ; and that a substantial percentage of the orders
executed by the Respondents on the floor of the Exchange actually originate
outside the State of New York, and are transmitted by telephone, telegram,
cable, wireless, or mail to the New York offices of such brokerage houses and
their representatives on the floor of the Exchange, who in turn refer them to
the Respondents for execution.
In the course of their specialist brokerage operations , the Respondents an-
nually execute on the Exchange orders for in excess of 500,000 shares of stock,
having a value of more than $5,000,000. In addition , the Respondents annually
buy and sell for their own account in excess of 300,000 shares of stock with a
dollar volume of over $5,000,000, involving listed securities for which they act
as specialists.
It is found, contrary to the position of the Respondents, that the Respondents
have engaged in commerce, and that their operations affect commerce, within
the meaning of the Act.'.
1 From time to time when large trading activity takes place in a given stock for which the
Respondents are designated as the sole specialist , another member firm may also be desig-
nated temporarily to act as an additional specialist broker for that stock . But that is not
a common occurrence.
' See Polish National Alliance v. N. L. R. B ., 322 U. S. 643 ; N. L. R. B. v . Jones &
Laughlin Steel Corp ., 301 U. S . 1; N. L. R. B. v. Fainblatt , 306 U . S. 601 ; Associated Press v.
N. L. R. B., 301 U . S. 103 ; Consolidated Edison Co . v. N. L. R . B., 305 U. S. 197. The
Board has asserted jurisdiction over the New York Stock Exchange and its affiliates. New
York Stock Exchange, 43 NLRB 766 , 58 NLRB 911 . It has also taken jurisdiction over
stock brokerage houses . Newberger Loeb and Company, 37 NLRB 683 ; Carlisle & Jacquelin,
53 NLRB 902 . To support their position, that their operations fall outside the jurisdiction
of the Board , the Respondents stress particularly that the orders executed by them in their
capacity as specialists are received from other New York City stock brokerage houses and
that the Respondents ' connection with the transactions begins and ends in New York. The
fact remains , however , that the Respondents ' operations form an integral function of the
operations of the Exchange and are closely related to the interstate operations of the
brokerage houses for whose accounts the Respondents execute such orders. Under similar
circumstances , the Board asserted Jurisdiction in Carlisle & Jacquelin, supra . See also
Texas Electric Service Company, 77 NLRB 1258 . Other facts stressed by the Respondents
CYRIL BE CORDOVA & BRO . 1127
II. TIIE LABOR ORGANIZATION INVOLVED
Local 205 , United Financial Employees Union, International Union of Office
Employees , AFL, is a labor organization , admitting to membership employees
of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. The factual issues
John Finn was discharged on May 7, 1948, after 29 years' service as an em-
ployee of the Respondents and their predecessor partnerships doing business
with uninterrupted continuity under the firm name of Cyril de Cordova & Bro..
The General Counsel contends that he was illegally discharged for having en-
gaged in activity protected by the Act-more specifically, because of his refusal
to cross a primary picket. line established about the premises of the New York
Stock Exchange. The Respondents, on the other band, contend that he was
discharged because the Respondents' office force was overstaffed at the time,
because most of the work which Finn performed at the office was done away
with, and because Finn's position was no longer needed. They concede, how-
ever that
The refusal of Mr. Finn to obey the instructions of his employers during
the period of the strike, when he was very much needed to help out on the
floor [of the Exchange], was in part a cause of their recanvassing the office
situation to see who would be discharged.
- B. Finn 's employment history and duties
Finn was hired by the Respondents in May 1919, as a runner performing
special messenger work. In 1932, he was promoted to the position of clerk,
a position which he continued to hold until his discharge. In that position he
was given increasingly more responsible work assignments over the course of
years, and at one time or another performed substantially all forms of clerical
work in the office. In January 1941, after a reduction in force, Finn was given
an additional job on top of his other office clerical duties-that of relief spe-
cialist's floor clerk. The function of a floor clerk is to work on the Exchange
floor with the broker, to enter on the specialist's books the orders received from
other brokers through the tubes or on the floor, to prepare duplicate reports
of executed orders, and to perform miscellaneous clerical duties in connection
with floor operations. As a relief floor clerk, it was Finn's function to substitute
for the regular floor clerk during the latter's absences and to be available to
also are not controlling . It is immaterial that the Respondents are legally responsible to
the stock brokerage firms for whom it executes the orders , rather than to their customers,
and that, with respect to specific orders , the Respondents do not know whether the orders
are transmitted on behalf of customers located inside or outside the State of New York.
The stipulated facts show that a substantial percentage of such orders do in fact originate
outside the State of New York and that the Respondents ' services are in fact closely allied
to other interstate operations . These are the facts that must be viewed as controlling, and
not the Respondents ' legal responsibility or their knowledge of the origin of specific orders.
The fact that the orders which the Respondents execute might be otherwise executed on
the Exchange in the event of a stoppage of the Respondents ' operations , is wholly imma-
terial and "may not be considered in determining the jurisdiction of the Board." Cudahy
Packing Co . v. N. L. R. B., 118 F. 2d 295 , 299 (C. A. 10 ). See also N . L. R. B. v . Bradford
Dyeing Association, 310 U. S. 318, 326.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
come to the Exchange floor on call to assist during busy periods 3 During the
months immediately preceding the Stock Exchange strike, Finn was called to
the Exchange floor only sporadically, devoting in periods of normal trading about
10 to 15 percent of his working time to his functions as a relief floor clerk. The
balance was spent on his office clerical duties.
In view of the Respondents' contention that much of Finn's office work was
eliminated at or before the time of his discharge, it is necessary to consider
exactly what his office functions were. So that these functions may be brought
into proper focus, it is helpful preliminarily to outline the Respondents' opera-
tions generally.
As specialists in certain listed securities, the Respondents maintain certain
posts on the Exchange floor where tradings in the listed securities are carried
on. Orders for the purchase or sale of such securities are received by the Re-
spondents' representative from other stock brokerage houses, either directly
from representatives of such houses on the floor or through the tubes of the
Exchange. Some of the orders are day orders which must be executed, if at
all, on the day they are placed. Others are open orders, such as "month" orders
or "good until cancelled" orders. When orders to buy or to sell are not capable
of immediate execution, they are entered by the floor clerk in the appropriate
specialist book maintained by the Respondents. When an order has been ex-
ecuted, a memorandum to that effect is made by the specialist, and from that
memorandum the floor clerk prepares and dispatches a report of execution to
the 'buyer or seller, or to both if the specialist represents each side of the trans-
action. The specialist's memorandum or report is forwarded to the Respond-
ents' office. Throughout the day, about every hour, these order slips and reports
of executed orders are sent from the Exchange floor to the Respondents' office
for the clerical and bookkeeping work which the operations entail. At the
office the orders are sorted into stocks and prices. There is entered in. a com-
mission bill clerk's purchase and sales blotter a notation of all orders executed
that day. The blotter entries are drawn from the reports of executed orders
received from the Exchange floor. At the end of the day's transactions, the
specialists' books maintained by the floor clerk are checked at the office against
current open orders to be sure they are in proper order for the following day's
transactions. All open orders are then filed in their appropriate assortment
at the office. The purpose of sorting and maintaining a file of open orders at
the office is to provide a ready source of reference in the event of inquiries from
the Exchange floor or elsewhere concerning their current status.
In addition, it was the Respondents' practice during the entire period of
Finn's employment to check each day the entries made in the commission bill
clerk's purchase and sales blotter against all current orders on file in the office,
as well as against the orders dispatched that day from the Exchange floor. The
object of this operation was to detect any errors in execution or in transcription,
so that they might be rectified before any great damage was done. In a normal
market, the comparison work, alone-once, the sorting was completed-would
3 Before 1941 , Finn's employer had usually employed two regular specialist's floor clerks.
However, during the period from 1941 to 1946 it employed but one-Charles A. Grace, with
Finn as his relief. In 1946 Grace became a partner in the firm, and John Sexton was hired
to fill the floor clerk vacancy. Shortly thereafter, the Respondents hired an additional
floor clerk , Phillip Irrera , who continued in their employ until February 1948, when he was
discharged , partially because the market was not very active at the time . With Irrera's
departure , Sexton , as floor clerk , and Finn , as relief floor clerk , were the only employees of
the Respondents holding the special passes required of nonmembers for admittance to the
Exchange floor.
CYRIL DE CORDOVA & BRO. . 1129
consume about 25 minutes, according to the credited testimony of Finn. It is
this operation only that was eliminated with the discharge of Finn-but of that,
more later.
Immediately before the strike referred to below, Finn, in addition to his work
as a relief floor clerk, was charged principally with the duty of sorting and
matching orders according to stocks and prices, filing open orders and cancelling
others, comparing and checking entries on the commission bill clerk's purchase
and sales blotter against current order slips, checking errors or discrepancies
detected in the comparison process, answering inquiries concerning orders and
transactions that came over the Exchange wire and the office telephone, and
following through on "kicks" up to the point where a partner's attention was
required. Those were his regular duties, but his work was not always confined
to them. The Respondents' clerical force was a small one, consisting, in addi-
tion to Finn,.of Sexton, who was the regular floor clerk, Alexander Rosen, who
was the bookkeeper and office manager, Murphy, who was the commission bill
clerk, and Joseph Isaacs who was the runner. The clerical employees in the
.Respondents' employ were so organized and trained that each could fill in for
the others when needed. In addition to his regular work, Finn was also called
upon during periods when others were absent or busy to perform a variety of
-other duties. These included preparing forms and reports required of Exchange
.firms, making entries on the commission bill clerk's purchase and sales blotter,
checking the specialist books against open orders on file, assisting in the prepa-
ration of pay rolls and checks, and making entries on the ledger of purchases
and sales for the Respondents' own trading account.
Finn's competence as an employee, at least with regard to his office clerical
duties, is not questioned in this proceeding." The Respondents' high regard for
.him is evidenced in part by his long period of service, by the promotions and
increased responsibilities assigned him, by numerous wage increases given him,
and by the fact that on at least one occasion he survived a reduction of force when
employees of equal or greater seniority were released. Until the commence-
ment of the Stock Exchange strike in March 1948, Finn's relations with his
employers were always harmonious, and he was admittedly regarded by them
as a faithful and loyal employee.
C. The events leading to Finn's discharge
On January G, 1948, Finn became a member of Local 205, United Financial
Employees Union, International Union of Office Employees, AFL, herein called
the Union. He was the only member of the Union in the Respondents' employ.
The Union was the duly recognized bargaining representative of employees of
the New York Stock Exchange and its affiliated corporations. On March 29, 1948,
after an impasse in collective bargaining negotiations, the Union struck the
Exchange and its affiliates over economic terms. The strike lasted until April
28, 1948, culminating in a collective bargaining agreement. Throughout its
course, the strike was accompanied by picketing at the premises of the Ex-
change. The Respondents, as a member firm of the Exchange, were not involved
in the strike.
4 Although making no claim that Finn failed satisfactorily to perform his duties as a
relief specialist's floor clerk, the Respondents Howard and Grace testified that they did not
consider Finn fully qualified for a position as a regular floor clerk.
1130 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the morning of the first day of the strike, Finn received a telephone call
from Sexton, the Respondents' floor clerk, asking him to come to the Exchange
floor to pick up some reports. Finn, who on his way to the office that morning
had observed the picket line, declined to come. Sexton reported that fact to,
Robert F. Howard, the member of the Respondents' firm who was then on the
floor. It appears that Howard correctly interpreted Finn's refusal as due to.
a reluctance on his part to cross the Union's picket line at the Exchange ; for
that afternoon Howard made it a point to ask all others at the Respondents'
office whether they had any objection to crossing the picket line, and was told.
they had not.
A day or so later, Howard has occasion to require Finn's services on the-
Exchange floor. Telephoning Finn, he asked him to come over. Finn said he-
could not come. Asked for an explanation, Finn at first said he was nervous,.
but then quickly added, "But to tell you the truth.. . ." Beforq Finn could.
finish, Howard cut him off, saying, "Never mind now, I'm too busy. Send Mr.
Rosen over." . That afternoon, or perhaps on the afternoon of the following day,.
Howard called Finn into the partners' room, and asked him whether he was
ever coming over to the floor again. Reminding Howard of, their earlier con-
versation when he had not been permitted to complete his explanation, Finn told.
Howard that the "truth" was that it was against his conscience to work at
struck premises where a legal strike was in force. He also told Howard that:
because he was in sympathy with the strikers at the Exchange, he could not
cross their picket line. Howard asked Finn if he were a member of the Union..
Finn said he was.
Howard, his own testimony reveals, was "hurt and disappointed" by Finn's.
attitude in refusing to come to the Exchange floor when he was needed, and
considered this an act of "disloyalty" on Finn's part. Howard discussed Finn's-
refusal with his partner, Charles A. Grace, whose immediate reaction; according
to the latter's testimony, was that as far as he was concerned the firm did not.
need Finn's services, and would lose nothing by letting Finn go. Although it
admittedly was not his habit to run to Exchange officials with his firm's personnel.
problems, Howard also took up the subject of Finn's refusal with President Emil
Schram and other officials of the New York Stock Exchange. Schram and the
other Exchange officials advised Howard to replace Finn immediately. Howard,
however, refrained from taking any immediate action. His hesitation at the
time, testified Howard, was attributable to two considerations : First, he thought
that Finn might perhaps yet "voluntarily change his mind and cross the picket
line." Secondly, lie was reluctant to take any action before discussing the matter
with the firm's senior partner, Eustace deCordova, who was then absent from
the city on vacation.
In the meantime, Finn continued during the strike to perform all his regular
duties, save for his work as a relief clerk.` After 2 weeks had gone by, with Finn
giving no indication of changing his mind, Howard-on April 12, 1948-summoned
6 Howard testified at one point that during the strike there was nothing for Finn to do,
and that he "was sitting around doing nothing." But his testimony in that respect is not
credited . Other evidence in the record , including documentary evidence and the testimony
of Grace , satisfactorily establishes , and it is found , that, throughout the strike period,.
order slips and reports were being sent from the Exchange floor to the office every hour,
and were there sorted by Finn into stocks and prices , and checked against the commission
bill clerk 's blotter, all in the usual manner.
CYRIL DE CORDOVA & BRO . 1131
Finn to his office to advise him that his relief clerk 's pass to the Exchange had
+been cancelled . Howard , in his testimony , explained his action as follows:
I was disappointed , to say the least, in his actions during the whole time.
He hadn't volunteered to help out . He could see we were busy , and I was re-
luctant to ask him for it. One of my partners was away at the time, and I
frankly didn't know just how to deal with him. But I didn't think that he
should have the pass to go to the floor any more because we had been in-
structed by the Stock Exchange , as I recall , to make sure. that passes that
were out were only being used by the people who were actively using them at
the time during the strike.
When de Cordova returned to the city, about 3 weeks after the beginning of
the strike , Howard took up with him the question of whether Finn should be
-retained . Howard's assertion at one point of his examination , that the question
was discussed merely from the point of view of whether as a matter of business
economics Finn's services were needed any longer, and not in the light of Finn's
refusal to cross the picket line , is not credited . On the basis of Howard ' s entire
testimony , as well as other evidence in the record , it is found that Finn 's position
with respect to the picket line was the focal, though perhaps not the only, point
of the discussion . Thus, Howard conceded that he reported to de Cordova his
-discussions concerning Finn with " the officials of the Exchange , the people most
interested in the strike negotiations at the time ." Howard explained that he was
prompted to make this report "because he [Schram ] had said we would be, as I
recalled it, within our rights to discharge Mr. Finn for not performing his
duties." Other testimony of Howard, some of which will be adverted to below,
likewise reveals that to Howard the impelling factor for considering Finn's
:discharge at that particular time was Finn's failure to come to the Exchange
-floor during the strike . The outcome of Howard's discussion with deCordova
was a decision on their part to do nothing at that particular time. "The strike
was still on [testified Howard], and we decided to wait and see if during the
strike period, or any other time, he [Finn] would change his mind."
The strike at the Exchange ended on April 28, 1948. At its conclusion all
employees in the Respondents' employ, except Finn, were awarded a week's
'bonus.
On April 29, de Cordova summoned Finn to his office. Addressing Finn, de
Cordova said, "Jake, I don't know what happened to you. If you are dissatisfied,
I don't know why. Maybe it would be better if you looked for another job."
Referring in reply to his long service with the firm, Finn assured deCordova that
he was in fact satisfied with his job. At that point, Grace, who had entered the
room in the meantime, interjected, "But what is there for you to do?" Without
replying directly to Grace's question, Finn again referred to his 29 years' loyal
:service, and commented that if that was the way the partners felt about him,
they should get together and decide what to do about him. But, he added, he
-did not intend to accept a discharge without fighting to retain his job. No defini-
tive action was taken against Finri that day, and Finn continued to perform his
usual office duties for another week.
On May 7 , 1948, Finn was discharged. He was called into the partners' room,
where Howard in the presence of Grace told him in substance:
You are a qualified man, and I don't think you will have much trouble
finding another job. I was very much surprised at you that day when I
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called you over to the floor and. you refused to come. You were very disloyal
to me. Before deciding to let you go, I spoke to Mr. Schram and others,
and they said you should have been fired immediately. However, I felt that
in the first two weeks that you might come to the Stock Exchange voluntarily.
I felt if you did, everything would be 0. K. But then, when you did not,
I cancelled your pass . . . you were very disloyal to me. I never
thought you would be disloyal to me. I could never have any respect for you
again . . . Your relief clerk's pass has been cancelled. Your job in
the office is no longer there, and Mr. Eustace [de Cordova] and Mr. Grace
and myself have decided to let you go and give you ten weeks pay.
Finn's protestations, based upon his long, loyal, and satisfactory services with
the firm, were of no avail. During the discussion, the failure of the Respondents
to make Finn a full floor clerk when there was an opening some years back was
raised. Howard declared that he did not consider Finn qualified for that job
although "you were all right as a relief clerk." The interview ended with Finn
rejecting the Respondents' offer of 10 weeks' pay and reiterating his intention to.
fight to retain his job. Three days later, Finn filed his charge which gave rise to
this proceeding. The Respondents were advised of this action the same day.
After Finn's discharge, the work he had theretofore performed was dis-
tributed among the other members of the Respondents' clerical staff,'except for
the checking of entries on the commission bill clerk's blotter of purchases and
sales. That checking process was partially eliminated. It is no longer per-
formed as a matter of normal office routine, but only on occasions when trad-
ing in a given security is particularly active. No one has since been hired to
replace Finn, in his particular duties. However, about a month after Finn's
discharge, the Respondents hired William Ranges-a former employee of the
Exchange, who as a member of the Union had participated in the strike-as a
regular floor clerk in addition to Sexton. Ranges was hired, according to the
testimony of the Respondents' witnesses, to replace the floor clerk who in Febru-
ary 1948 had been discharged partly for the reason, as has been noted, that
the market was not active at the time. Although Grace's testimony reflects that
the Respondents' volume of business was, if anything, less in June than in Febru-
ary, the Respondents, according to him, were looking forward to more activity
in the autumn. Ranges during the early part of his employment spent consider-
able time in the office learning the office practices and equipping himself to
fill in to perform duties of other clerical employees in an emergency. At
present, he spends most of his time on the floor of the Exchange during regular
Exchange hours, although he is still assigned to office work on occasions. Among
the duties which he now performs at the office, is the sorting of orders into
stocks and prices, one of the duties which Finn performed before his discharge.
D. Analysis of conflicting contentions and conclusions
There are two broad questions to be resolved. The first poses an issue of
fact. Was Finn discharged on May 7, 1948, because of his refusal to cross the
Stock Exchange picket line, as contended by the General Counsel, or because his
job duties had substantially been eliminated, as contended by the Respondents.
The second poses an issue of law which need be answered only if the first ques-
tion is resolved in favor of the General Counsel.' Under the circumstances of this
case, was Finn's refusal to cross the picket line a form of activity protected by
the Act, so as to make his discharge therefor a violation of Section 8 (a) (1)
and (3) of the Act?
CYRIL DE CORDOVA & BRO.
1. The issue of fact
1133
What was the moving force behind the Respondents' determination to dis-
charge Finn on May 7, 1948? The Respondents' counsel at the opening of his
case stated his clients' position to be as follows:
The respondent here contends that this man was discharged primarily
because he was no longer needed. The situation was that as a result of the
change of procedure which developed during the strike and continued there-
after for a considerable time, the comparisons which were practically the only
work we claim Mr. Finn did in the office, except occasional relief work,.
was done away with, and his position was no longer needed.
Such testimony as was adduced by the Respondents to support this position
is mainly conclusionary in form, and fails to stand the test of close scrutiny,
particularly when examined in the light of other specific facts clearly established
by the record. Thus the evidence as a whole, including admissions of the
Respondents' own witnesses, convincingly shows that the comparison work-that
is, the checking of open orders against the commission bill clerk's purchases and
sales blotter-was not in fact "practically the only work" that Finn performed,
but only a minor part of his work' Nor does the specific evidence support a
finding that the elimination of the comparison work resulted from any "change
of procedure which developed during the strike and continued thereafter for a
considerable time." The only relevant procedural change to which the Respond-
ents' witnesses were able specifically to advert was the adoption during the strike
of a practice on the Exchange floor under which each broker signed as a cross-
check the reports of the broker he traded with.' But this practice-which was
discontinued shortly after the strike-at no time operated as a substitute for the
comparison work Finn performed at the office. As has already been noted, the
comparison work at the office had a broader purpose-to check all current orders
for errors in execution and also to detect errors in transcription on the blotter.
Notwithstanding the cross-checks made on the Exchange floor, the practice of
making comparisons at the office was continued throughout the strike and was
unaffected by it.' Any doubt on this point was dispelled by Grace, who at one
point of his examination expressly admitted that the strike itself had no direct
bearing on the Respondents' determination to discontinued the comparison or
checking of orders against the commission bill clerk's blotter.
Other admissions made by both Howard and Grace contradict assertions by
these witnesses that their determination to discharge Finn was purely a matter
of business judgment, unrelated to Finn's refusal to enter upon the Exchange
premises. during the strike. Thus we find Howard at various points of his
9 Finn's testimony, that in a: normal market the comparison work alone consumed only
about 20 or 25 minutes of his work clay, was not directly contradicted. Although Howard
testified that he thought Finn "may" have spent more time than that, he conceded that he
was not in the office most of the time, and he declined , therefore , to hazard an estimate of
how much more.
7 Another procedural change was to retain the specialist books in the Exchange building
at all times. This change, however , while affecting the checking of entries on the specialist
books, had nothing to do with the checking or comparison work that Finn regularly per-
formed prior to the strike.
9 Howard 's testimony on direct, that orders were retained during the strike at the
Exchange and that no comparisons were made at the office, is contradicted not only by his
own testimony on cross, but also by testimony of his partner, Grace. Finn 's testimony,
that he continued during the strike to sort orders and make comparisons in the usual
manner is credited , and so , too, is his testimony that he was never told during the strike
or thereafter that comparisons were being eliminated.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examination testifying: (a) that after President Schram of the Exchange had
told him Finn should be replaced immediately, "I said I didn't feel like I wanted
to do it, because he had been there a long time, and I thought maybe he would
change his mind very shortly" ; (b) that he at first decided to wait before
-discharging Finn "until such time as he [Finn] might voluntarily change his
mind and cross the picket line"; (c) that after discussing the matter with
de Cordova, they "decided to wait and see if during the strike period, or at-any
other time, he [Finn] would change his mind"; (d) that "at various times in
the past since 1940" he had considered letting Finn go, yet had refrained from
-doing so, but that in reaching his decision after the strike, he was influenced by
the fact that Finn had not performed his duties during the strike, a consideration
"that had a good deal to do with it"; (e) that "if he [Finn] had performed his
duties faithfully during the strike, I don't believe that we would have discharged
him as soon as the strike was over" ; and (f) that it was correct to say that if
:Finn had performed his duties as a relief clerk during the strike, the Respondents
"might very well have fitted him into the organization somehow," at least for
-a time. As has already been noted, Grace admitted that when Howard informed
him that Finn was not coming to the Exchange he "decided then that [the firm]
was losing nothing, the office organization didn't lose anything by letting Finn
go at the time." °
The chronological sequence of events leading to Finn's discharge as well as
Howard's comments to Finn coincidentally with his discharge, when considered
in the light of the admissions adverted to above, leave no doubt that the decision
to eliminate'part of Finn's duties at that particular time, flowed from rather
than toward the Respondents' determination to discharge Finn ; and that it was
Finn's refusal to enter upon the Exchange floor during the strike, rather than
the partial. elimination of his duties, that lay at the root of the Respondents'
-discharge action. It may be true, as-the Respondents assert, that their organiza-
tion was overstaffed at the time, and that they had no real need for Finn's
services. But the question here is not whether the Respondents could have dis-
charged Finn for that reason, but whether they did. Upon the entire record I
am convinced that, whatever action may have been taken against Finn in the
speculative future, the Respondents would not have discharged him on May 7,
1948, but for his refusal to cross the Union's picket line at the Exchange.
I so find.
2. The issue of law
Did the Respondents commit an unfair labor practice in discharging Finn for
the reason found? The answer must turn on whether or not Finn's refusal to
enter upon the Stock Exchange premises during the strike constituted a form
of activity protected by Section 7 of the Act. If it did, then Finn's discharge
on that account would clearly be interference, restraint, and coercion within the
meaning of Section 8 (a) (1). And since any discharge for protected activity-
particularly where such activity is in furtherance of the objectives of a union of
which the discharged employee is a member-necessarily discourages member-
ship in the union, the discharge would also constitute a violation of Section
8 (a) (3) 10 This conclusion would not be altered by the fact, established by
° Although Grace , according to his testimony , had for years urged the elimination of the
comparison work as an unnecessary practice justified only by tradition , he admittedly had
never before discussed the matter in the light of whether Finn should be retained.
10 See, e. g., Pinaud, Incorporated , 51 NLRB 235 , 236; Worthington Creamery and Produce
Co., 52 NLRB 121, 122-3; Massey Gin and Machine Works, Inc ., 78 NLRB 189, 191.
CYRIL DE CORDOVA & BRO. 1135.
the record in this case, that the Respondents were not motivated by union.
animus in effecting the discharge. For once it is otherwise established that an
employee's statutorily protected rights have been trenched upon by his discharge,
it is immaterial to a finding that the law has been violated that the discharge-
was not motivated by union hostility or ill intentions.1' Nor would it matter that
the Respondents may have in good faith equated Finn's refusal to cross the
picket line with a "disloyal" refusal to perform duties. For in a situation of this.
kind a refusal to work is perforce an inseparable characteristic of the activity
undertaken. The right to engage in such action is not to be determined by the.
characterization the employer assigns to it. A strike does not constitute "dis-
loyalty" or "insubordination" justifying a discharge merely because it is in
disobedience of an employer's orders not to strike. So, too, other union or
concerted activity, unless unprotected for different reasons, will not excuse a
discharge simply because it meets with the displeasure of an employer or takes;
a form which may well result in a refusal to comply With an employer's,
command.`
There can be little doubt that Finn's refusal to cross the Stock Exchange picket
line, established by his own Union, constituted an act of assistance to that labor
organization within the meaning of Section 7.
Beyond that, Finn's-refusal constituted "concerted activities" for "mutual
aid and protection ," within the scope of that section. Finn had a substantial and
legitimate interest in the successful prosecution of the strike against the Ex-
change, not only because of his union membership , but also because of the possible
reciprocal effect improved conditions in neighboring and associated business of
like kind might have on his own future conditions of employment ." That Finn
alone among the employees of his firm refused to cross the picket line , did not
detract from the concerted character of his action , for he was acting in alliance-
with and in support of his fellow union members who were striking the Exchange.
Nor is it controlling that Finn's activity was in connection with a labor dispute-
involving employees in another bargaining unit and of another employer. The.
reach of the Act is not limited to situations involving proximate employer
employee relationships .14 It is well settled that-except where the means used
or the objectives sought are otherwise illegal or improper-the Act extends to,
protect employee activity conducted in furtherance of a labor organization's
aims in another unit of the same employer ,16 or even , as here, in a unit of a dif
-ferent employer.1e
The Respondents argue, however , that Finn 's refusal to cross the picket line,.
though based upon a desire to assist his union, may not in the circumstances
"See, e. g., in addition to cases cited in preceding footnote , N. L. R. B. v. LeTourncan
Company , 324 U. S. 793, 797; Republic Aviation Corp. v. N. L. R. B., 142 F . 2d 193, affd.
324 U. S. 793; N. L. R. B. v. Gluck Brewing Co ., 144 F. 2d 847, 843 (C. A. 8) ; Home-
Beneficial Life Insurance Co. v. N. L. R. B., 159 F. 2d 280. 285 (C. A. 4).
12 See , e. g., Gardner-Denver Co ., 58 NLRB 81, 83; Hazel-Atlas Glass Co. v. N. L. R. B..
( on rehearing ), 127 F. 2d 118 (C. A. 4).
13 See N. L. R. B. v. Peter- Cailler-Kohler Swiss Chocolates Co., 130 F . 2d 503, 505
(C. A. 2) ; cf. Section 13 of the Norris-LaGuardia Act (47 Stat. 70) ; United States v..
Hutcheson , 312 U. S. 214.
14 See Section 2 (9) of the Act; see also Congressional Reports, National Labor Relations
Act, S. 1958, 74th Cong ., 1st Sess. , Senate Rep . No. 573, p. 7.
",See, e. g., N. L. R. B. v. Bites-Coleman Lumber Co ., 98 F. 2d 18 ( C. A. 9), enfg. 4
NLRB 679; Club Troika, Inc., 2 NLRB 90, 94; Montag Bros. Inc., 51 NLRB 366; Pinaud
Incorporated, supra ; Columbia Pictures Corporation , 82 NLRB 70.
" Fort Wayne Corrugated Paper Co . v. N. L. R. B., 111 F. 2d 869 , 873-874 (C. A. 7) ;
N. L. R. B. V. Peter- Cailler-Kohler Swiss Chocolates Co., supra; N. L. R. B. v. J. G. Boswelt
Co., 136 F. 2d 585, 596 (C. A. 9).
1136 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
of this case be considered a protected activity, because it involved a refusal
on his part, while continuing to work, to obey an instruction given him in the
regular course of his employment. To support their argument, the Respondents
cite a number of Court and Board decisions, all concerned with certain so-called
"partial strike" situations.17 The cases cited hold in substance that it is not
illegal for an employer to discharge employees, who, instead of striking in the
conventional manner to support their grievances, persist in remaining on their
jobs, while refusing in defiance of reasonable instructions of their employer
to perform part of their allotted work tasks, and thereby in effect unilaterally
attempt to prescribe their own terms of work. These cases, and others like them,
are, generally speaking, .compatible with the principles most recently restated
and expanded by the Supreme Court in International Union, U. A. W. v. Wisconsin
ERB, 336 U. S. 245. That case stands for the proposition that employee activity
aimed at an interruption or curtailment of work operations is not necessarily
protected merely because it is concerted. It also makes clear that such activity
will not be afforded the shelter of the Act where the method used or the object
sought is illegal, or where the particular activity engaged in is under all the
circumstances of a character so "indefensible" as to overcome the presumed
intent of Congress to sanction it.18 But, though a superficial similarity may at
first appear, closer analysis shows that the underlying principles of the cases
upon which the Respondents rely-particularly when read in the gloss of the
cited Supreme Court decision-neither control nor are applicable to the case
which we must here decide.
Here we do not have a situation where employees, foregoing the traditional
methods available to them to bring economic pressure to bear upon theirtheir em-
ployer, deliberately choose and then pursue while remaining at work, a tactic,
somewhat akin to a "sit-down" or "slowdown," that is deliberately calculated
to flout managerial authority and plant discipline to force their end. In giv-
ing expression to his desire to aid and assist his Union through sympathetic
action, Finn"utilized a conventional method, time-honored in the history of the
American labor movement, and one, moreover, that was the only practical means
available to him for that purpose.1D Had all of Finn's work been behind the
picket line, so that his observance of it would have involved a complete cessa-
tion of work on his part, there would be no question of the protected character
,of his activity.20 The question is raised here only because as a happenstance
of his employment he was required on intermittent occasions to enter upon the
struck premises. But that circumstance did not alter the basic character of
.his activity. Unlike the situation in the "partial strike" cases referred to above,
Finn's refusal to perform part of his work was not a wilfully contrived viola-
tion of, plant discipline as a means to an end. It was, rather, a necessary and
unavoidable incidental effect of a form of concerted action undertaken in a con-
ventional and traditional manner.
17 The Respondents' brief cites N. L. R. B. v. Montgomery Ward & Co. Inc., 157 F. 2d 486
(C. A, 8) ; Home Beneficial Life Insurance Co. v. N. L. It. B., 159 F. 2d 280 (C. A. 4) ;
Conn. Ltd. V. N. L. R. B., 108 F. 2d 390 (C. A. 7) ; and Aurora Wallpaper Mills, Inc., 73
NLRB 188.
18 See, as to "indefensible" conduct, dicta in Harnischfeger Corp ., 9 NLRB 676, and
Armour & Co., 25 NLRB 989, quoted with approval by the Supreme Court in the Inter-
national Union, U. A. W. case.
10 Cf. Oil Workers International Union (Pure Oil Company), 84 NLRB 315.
20 Montag Bros . Inc., supra ; Columbia Pictures Corporation, supra. And see, Peter-
-Cailler -Kohler Swiss Chocolates Co., supra, at p. 505.
CYRIL DE CORDOVA & BRO. 1137
None of the conditions that might warrant a denial of protection to union
or concerted activity is here present. The means used by Finn were not
unlawful. In the circumstances of this case it cannot be claimed that Finn's
observance of the picket line-posted by a union engaged in an approved eco-
nomic strike against an employer required to recognize it under the Act-was
in supporf of illegal objectives. And the character of Finn's activity clearly was
not such as to make its protection antithetical to the purposes of the Act or
otherwise opposed to public policy.
Indeed, one need search no further than the Act itself for proof that Congress
intended not to condemn but to protect activity of the sort for which Finn was
discharged. The proviso to Section 8 (b) (4) of the Act reads :
Provided, that nothing contained in this subsection (b) shall be construed
to make unlawful a refusal by any person to enter upon the premises of any
employer (other than his own employer) if the employees of such employer
are engaged in a strike ratified or approved by a representative of such em-
ployees whom such employer is required to recognize under the Act.
True, the proviso is attached to a section of the Act other than the one with
which we are immediately concerned. But that does not mean that it must be
considered as divorced from the remainder of the statutory scheme. The pro-
viso clearly reflects that Congress recognized the traditional reluctance of em-
ployees to cross picket lines, and-under the particular conditions described in
the proviso, and present also in this case-regarded an employee's refusal to
cross a picket line as a form of conduct not unjustifiable from the point of view
of public policy. And this is so, no matter how the proviso in its relationship
to Section 8 (b) (4) is interpreted. If, as has been contended, the proviso is
to be interpreted not as qualifying the provisions of Section 8 (b) (4), but as
a general reaffirmation of individual rights, the conclusion that Congress in-
tended to retain within the protection of the Act conduct such as was engaged
in by Finn would appear to follow as a matter of course. If, as it believed, Con-
gress intended the proviso to engraft an exception on 8 (b) (4), applicable to
union unfair labor practices, the same result would follow. For obviously it
would be absurd to say that a union may lawfully induce or encourage em-
ployees to refuse to cross a picket line under the circumstances described in the
proviso, and yet simultaneously say that employees who refuse to cross are sub-
ject to forfeiture of their rights under the Act.
For the reasons indicated, I am led to the conclusion that Finn, in refusing
to cross the picket line during the strike, was engaged in exercising a right
guaranteed by Section 7 of the Act, for which he could not be legally discharged.
What has been said is not to be taken to mean that an employer, confronted
as were the Respondents with a failure of an employee to perform part of his
duties because of his respect for a picket line, is helpless to cope with the
situation. Simply because Finn's activity was protected, the Respondents were
not required to acquiesce in his conduct by permitting him to remain at work
while he was unwilling to perform all of it. The Respondents were privileged
to require Finn to elect either to perform all his work as instructed or to assume
the status of a full striker by quitting work entirely for the period his sympathetic
action would have infringed upon part of it. And if Finn chose the latter course,
21 The precise meaning of the proviso has not as yet been interpreted by any Board or
Court decision. It is now in issue in a proceeding pending undetermined before the Board.
See Trial Examiner's Intermediate Report in Newspaper and Mail Deliverers' Union (In-
terborough News Company). Case No. 2-CC-103.
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents lawfully could have replaced him while he was out, without
incurring any liability to reinstate him if his position was no longer open when
he chose to return 22
But though the Respondents could have put Finn to an election during the
strike, they did nothing. And under the circumstances it was not for Finn to
assume that because his union and concerted action disabled him for performing
his occasional and intermittent work tasks on the Exchange floor, his employers
would have preferred him to cease his work altogether. Finn was thus justified
in viewing the Respondents inaction during the strike as acquiescence on their
part in his union and concerted action. With the end of the strike, the Re-
spondents had no reason to suppose that Finn would not thereafter faithfully
perform his duties as a relief clerk. At that time, the removal of Finn from his
job could no longer be excused on the ground of necessity in maintaining business
operations. It could only be interpreted, as it is here, as action taken in
retaliation for Finn's protected union and concerted activity in respecting the
picket line of his Union.
Nor may the Respondents find comfort in Section 10 (c) of the Act, upon the
plea that its office force was over staffed at the time and Finn was expendable.
It has been found that Finn in fact was not discharged for that reason, but
because of his protected activity in refusing to cross the Stock Exchange picket
line. Under the circumstances it cannot be said that Finn's discharge was for
"cause" within the meaning of that term as used in 10 (c) of the Act. The law
is clear that it matters not that for reasons apart from an employee's union
or concerted activity his employer might have been justified in discharging him,
if in fact the real reason for discharge, was, as here, his protected activity.23
It is concluded and found that by discharging Finn on May 7, 1948, for the
reason that he assisted the Union and engaged in concerted activities for the
purposes of mutual aid and protection, the Respondents restrained and coerced
their employees in the exercise of rights under Section 7 of the Act. It is further
found that by such discharge the Respondents discriminated in regard to the
hire and tenure of Finn's employment, thereby discouraging membership in the
Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring in.
connection with the operations of the Respondents described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening anti
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondents have engaged in certain unfair
labor practices, it will be recommended that they be ordered to cease and desist
therefrom and take certain affirmative action which, it is found, will, effectuate
the purposes of the Act.
It has been found that the Respondents discharged John Al. Finn in violatioia
of Section 8 (a) (1) and 8 (a) (3) of the Act. It will therefore, be recommended'_
z= See Pinaud, Incorporated, supra ; Gardner-Denver Co ., supra.
23 See N. L. R. B. v. Electric City Dyeing Co., 178 F. 2d 980 (C . A. 3) ; N. L. R. B. v. Dixie
Shirt Co., 176 F . 2d 969 (C. A. 4) ; N. L. R. B. v. Sandy Hill Iron & Brass Works, 165 F. 2c1
660, 662 (C. A. 2).
CYRIL DE CORDOVA & BRO. 1139
that the Respondents offer him immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges, and that the Respondents make him whole for any loss of
pay he may have suffered by reason of the Respondents' unlawful discharge by
payment to him of a sum of money equivalent to that which he would have
earned as wages from the date of his termination to the date of the offer of rein-
statement, less his net earnings during said period."
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , I make the following :
CONCLUSIONS OF LAW
1. Local 205, United Financial Employees Union, International Union of Office
Employees , A. F. L., is a labor organization within the meaning of Section 2 (5)
of the Act.
2. By interfering with, restraining, and coercing their employees in the
exercise of the rights guaranteed in Section 7 of the Act, the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of John
M. Finn, thereby discouraging membership in labor organizations, the Respond-
ents have engaged in and are engaging in unfair labor practices, within the
meaning of Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
24 In recommending an order in the usual form for reinstatement and back pay, consid-
eration has been given to the evidence indicating a possibility that, absent the illegal
reason for Finn's discharge on May 7, 1948, the Respondents might, nevertheless, there-
after have discharged Finn for purely business reasons. It is clear, however , and it has
been found, that Finn would not have been discharged on May 7, 1948, but for the fact
that he engaged in activity safeguarded by the Act. Whether he would have been there-
after discharged at all , and if so, when, must necessarily remain a matter of speculation.
Since, as has been found, the discharge on May 7, 1948, was violative of the law, the
burden is on the Respondents to "disentangle the consequences" of their own wrong.
N. L. R. B. V. Remington Rand, Inc., 94 F. 2d 862, 872 (C. A. 2), cert. den. 304 U. S. 576.
It may be noted, however, that merely because Finn is ordered reinstated does not mean
that in the future the Respondents will be precluded from discharging him for legitimate
business reasons , or for any other reason unconnected with his union or concerted
activities.
917572-51-vol. 91- 7 3