The Rudolph Wurlitzer Co.

National Labor Relations Board - Board Decisions

May 28, 1941

32 N.L.R.B. 163 (N.L.R.B. 1941)

In the Matter of THE RUDOLPH WURLITZE11 COMPANY and PIANO,
ORGAN AND MUSICAL INSTRUMENT WORKERS' UNION, LOCAL No. 1190
Case No. R-2437.-Decided May 28, 1941
Jurisdiction : piano and accordian manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition until it is certified by the Board ; striking
employees held eligible to vote; discharged employees on behalf of whom
8 (3) charges are.pending allowed to vote; election necessary.
Persons hired after the commencement of a strike to replace striking
employees held eligible to participate in an election among the employees
in the appropriate unit.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees excluding office and clerical employees, the plant superintendent,
assistant plant superintendent, foremen, assistant foremen, truck drivers,
engineers, and firemen ; agreement as to.
Fyffe cfi Clarke, by Mr. Albert J. Smith, of Chicago, Ill., for the
Company.
Moses, Kennedy, Stein & Bachrach, by Mr. Stanley Morris, of
Chicago, Ill., for Local 1190. -
Meyers c Meyers, by Mr. Irving Meyers, of Chicago, Ill., for the
United.
Mr. Victor Handschug, of DeKalb, Ill., for the Independent.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 3, 1941, Piano, Organ and Musical Instrument Workers'
Union Local No. 1190,1 herein called Local 1190, filed with the
Regional Director for the Thirteenth Region (Chicago, Illinois) a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of The Rudolph Wurlitzer
Company, DeKalb, Illinois, herein called the Company, and request-
ing an investigation and certification of representatives pursuant to
i Incorrectly designated in the formal papers as Piano, Organ and Musical Instrument
Workers Union , Local No. 1190 (A. F. of L.). This was corrected by motion at the hearing.
32 N. L. R. B., No. 35.
163
448692-42-vol. 32-12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 9 (c) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. On March 25, 1941, the National Labor Rela-
tions Board, herein called the Board, acting pursuant to Section
9 (c) of the Act and Article III, Section 3, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, ordered
an investigation and authorized the Regional Director to conduct it
and to provide for an appropriate hearing upon due notice.
On March 25, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, Local 1190,
Independent Musical Workers' Association of DeKalb, Illinois, herein
called the Independent, a labor organization claiming to represent
employees directly affected by the investigation, and United Furniture,
Workers of America, herein called the United. Pursuant to notice,
a hearing was held on April 1, 1941, at Chicago, Illinois, before
Robert R. Rissman, the Trial Examiner duly designated by the Chief
Trial Examiner. At the commencement of the hearing, the Trial
Examiner granted a motion to intervene filed by the Independent.
Although the United filed a motion to intervene at this time, it
subsequently withdrew its motion and stated that it did not desire,
to appear at the hearing. The Company and Local 1190 were repre-
sented by counsel, the Independent by its representative; all par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties. During the course of the hearing
the Trial Examiner made several rulings on motions and on objec-
tions to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Rudolph Wurlitzer Company, an Ohio corporation, operates
a plant at DeKalb, Illinois, where it is engaged in the manufacture
of pianos and accordians. The Company purchases raw materials
valued at about $1,000,000 annually for use in its DeKalb plant,
approximately 90 per cent of which are shipped to it from points
outside the State of Illinois. The Company manufactures finished
products at its DeKalb plant valued at about $3,000,000 annually,
approximately 85 per cent of which are shipped by it to points out-
side the State of Illinois. The Company employs approximately
600 employees at its DeKalb plant.
THE RUDOLPH WURLITZER COMPANY
II. THE ORGANIZATIONS INVOLVED
165
Piano, Organ and Musical Instrument Workers' Union, Local No.
1190, chartered by United Brotherhood of Carpenters' & Joiners of
America, is a labor organization affiliated with the American Federa-
tion of Labor. It admits to membership employees at the DeKalb
plant of the Company.
Independent Musical Workers' Association of DeKalb, Illinois, is
an unaffiliated labor organization admitting to membership employees
at the DeKalb plant of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On February 20, 1941, Local 1190 requested the Company to recog-
nize it as exclusive representative of the employees at its DeKalb
plant. On March 7, 1941, the Company denied this request stating
that it would not recognize Local 1190 until it was certified by the
Board. A statement of the Trial Examiner introduced in evidence
shows that Local 1190 represents a substantial number of employees
in the alleged appropriate unit.'
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has arisen,
occurring in connection with the operations of the Company described
in Section I above, has a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and tends to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE APPROPRIATE UNIT
The Company, Local 1190, and the Independent agreed at the hear-
ing, and we find, that all production and maintenance employees at
the DeKalb plant of the Company, excluding office and clerical em-
ployees, the plant superintendent, assistant plant superintendent, fore-
men, assistant foremen, truck drivers, engineers, and firemen, constitute
an appropriate unit for the purposes of collective bargaining. We find
further that such unit will insure to employees of the Company the
2 The Trial Examiner 's statement shows that 329 employees whose names appear on
the Company's pay roll of March 28, 1941, have signed membership application cards
in Local 1190. The Trial Examiner also reported that the Independent presented a list
of its members to him bearing the names of 111 employees who appear on the Company's
pay roll of March 28 , 1941 . There are approximately 600 employees on the March 28,
1941 , pay roll.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
full benefit of their right to self-organization and to collective bargain-
ing and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of employees of the Company can best be resolved by an
election by secret ballot.
On January 24, 1941, a strike of the employees of the Company was
called by Local 1190. Twenty-three of the striking employees had
not returned to work at the time of the hearing. All of the parties
stipulated that the dispute was current at the time of the hearing. The
strikers have, therefore, continued to be employees of the Company,
within the meaning of Section 2 (3) of the Act. All of the parties
agreed, with specific reference to the strikers, that all persons who are
"legally employees" should be entitled to vote in the election. The
strikers being "legally employees" are therefore entitled to vote in the
election.
The Company, Local 1190, and the Independent agreed at the
hearing that in the event the Board directed an election the em-
ployees whose names appear on one or the other of the two pay rolls
for the two consecutive pay-roll periods immediately preceding the
Direction of Election should be eligible to vote, except that Local 1190
requested that persons appearing on such pay rolls who were hired to
replace the striking employees referred to above be excluded from
voting. The persons in question are employees of the Company and
as such are entitled to participate in the selection of the bargaining
representative of such employees. The request of Local 1190 is denied.
The Company discharged A. W. Tilt, Alphonse DeRatt, LeRoy
Cheney, Mark Masterson, Clyde Mann, and Lloyd Feltz. Local 1190
thereafter filed charges with the Board on behalf of these discharged
employees, alleging that they were discharged in violation of Section
8 (3) of the Act. These charges are pending at the present time.
Local 1190 asks that these employees be allowed to vote but that their
ballots be impounded. The Company and the Independent stated that
they had no objection to this procedure. Under these circumstances
we will allow them to vote in the election but their ballots will be
impounded and not tabulated unless the results of the election make it
necessary to do so. In the latter event, the question whether such
ballots should be counted will await the outcome of the unfair labor
practice proceedings. By allowing these six discharged employees to
vote under the above condition we are in no way passing upon the
merits of the pending charges.3
" See Matter of Irving Shoe Company and United Shoe Workers of America, Local 48,
26 N L R B 468
THE RUDOLPH WURLITZER COMPANY 167
Accordingly, we shall direct that those persons eligible to vote in the
election hereinafter directed shall be all employees whose names appear
on one or the other of the two pay rolls for the two consecutive pay-roll
periods immediately preceding the Direction of Election herein, plus
the striking employees who have not returned to work and the dis-
charged employees referred to above, subject to such limitations and
additions as are set forth in the Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of The Rudolph Wurlitzer Company, DeKalb,
Illinois, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. All production and maintenance employees at the DeKalb, Illi-
nois, plant, of the Company, excluding office and clerical employees,
the plant superintendent, assistant plant superintendent, foremen,
assistant foremen, truck drivers, engineers, and firemen, constitute a
unit appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act.
and pursuant to Article III, Section 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purpose of collective bargaining
with The Rudolph Wurlitzer Company, DeKalb, Illinois, an election by
secret ballot shall be conducted as soon as possible, but not later than
thirty (30) days from the date of this Direction, under the direction
and supervision of the Regional Director for the Thirteenth Region,
acting in this matter as agent for the National Labor Relations Board,
and subject to Article III, Section 9, of said Rules and Regulations,
among all production and maintenance employees at the DeKalb plant
of the Company whose names appear on one or the other of the two
pay rolls for the two consecutive pay-roll periods immediately preced-
ing the date of this Direction, including employees who did not work
during such pay-roll periods because they were ill or on vacation, or
in the active military service or training of the United States, or tem-
porarily laid off, employees who were on strike at that time, and A. W.
Tilt, Alphonse DeRatt, LeRoy Cheney, Mark Masterson, Clyde Mann,
and Lloyd Feltz, but excluding office and clerical employees, the plant
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
superintendent, assistant plant superintendent, foremen, assistant fore-
men, truck drivers, engineers, firemen, and employees who have since
quit or been discharged for cause, to determine whether they desire
lo be represented by Piano, Organ and Musical Instrument Workers'
Union, Local No. 1190, affiliated with the American Federation of
Labor, or by Independent Musical Workers' Association of DeKalb,
Illinois, for the purposes of collective bargaining, or by neither.
SUPPLEMENTARY OPINION: (CHAIRMAN HARRY A. MIuas)
In cases of this type-strikes of the non-unfair labor practice cate-
gory, with positions filled by individuals from the local labor markets-
it is my opinion that, contrary to the Sartorious doctrine,4 both the
strikers and those who have been hired to replace them should be
permitted to vote.
In support of the Sartorious doctrine, it has been contended that to
permit both strikers and those who have been hired to do the work left
undone by the strikers to vote means that the number of voters would
be in excess of the number of jobs for employees. This is true, but
the Board frequently rules that more employees are eligible to vote
than there are jobs. Both employees who 'are ill, or on vacation, or
temporarily laid off, or called for military service and those who fill
their positions are permitted to vote.' Much more important, when
business needs fall off because a plant or a department is closed, em-
ployees no longer needed may be placed on a preferential list for the
purpose of future hirings. If so, they are permitted to vote because of
the expectancy of employment in the future."
But, it is said, suppose practically all employees go on strike and
the employer fills their places. Were both strikers and so-called
strikebreakers eligible to vote, there would be twice as many voters as
jobs. It must be admitted that, though extremely rare, such instances
have occurred and that they may occur again. But were the so-called
strikebreakers made ineligible to vote, it would mean that the scales
would be turned against the employer who is not charged with any
unfair labor practice. In purely economic strikes, the employer and
the striking employees should have equal rights; the Board should be
neutral.
Somewhat related to this, it is said that unless the Sartorious doc-
trine is applied, the settlement of strikes is interfered with. It would
* Matter of A. Eartorious & Co., Inc. and United Mine Workers of America, District 50,
Local 12090, 10 N . L. R. B. 493.
6 See, for example, Matter of Radio Wire Television, Inc. and Local 430, United Elec-
trical, Radio & Machine Workers of America, C. I. 0 , 30 N L R . B. 930.
9 See for example , Matter of Paragon Rubber Co. American Character Doll Company
and Toy & Novelty Workers organizing Committee of the C I. 0 ., 6 N L. R B 23;
Matter of American Cyanamid Co. and United Phosphate Workers' Union No. 22036,
A. F L, 19 N. L. R. B. 1026; Matter of The Johnston Glass Company, Inc and Federal
Labor Union No. 22379, of the American Federation of Labor, 30 N. L. R. B. 629.
THE RUDOLPH WURLITZER COMPANY 169
be more accurate to say that the settlement of disputes on the strikers'
terms may be interfered with. The right to strike, protected. by the
Act, is not limited by permitting all employees to vote.
Again it is said that the jobs of so-called strikebreakers are tenuous.
That is true. The same is true of the jobs of employees engaged in
an economic strike, particularly when the struggle lasts for weeks
or months.
Under the Act strikers are employees as long as a dispute is current
(Sec. 2 (3) ). The Board and the courts have consistently ruled that
men hired during strikes are employees whom, unless there is unfair
labor practice, the employer may not be required to discharge in order
that strikers may be reinstated in their jobs.7 Both groups have
lawful claims to jobs. Both should have the same right to vote in
it representation election.
Ma. EDwiN S. SMrrH, dissenting in part :
I dissent from the ruling of the majority that persons hired to re-
place striking employees may participate in the election to be con-
ducted in this case.
In December 1938 the Board made a ruling in the Sartorious repre-
sentation proceeding," which has since been referred to as the Sar-
toriovs doctrine. In that case, so far as the record disclosed, there
was a current labor dispute not involving unfair labor practices by the
employer in progress at the time of the hearing, at least some of the
employees being on strike and other persons, strikebreakers so-called,
having been hired by the employer to replace the strikers. The Board's
ruling was that the strikers would be permitted to participate in the
selection of bargaining representatives but that the strikebreakers
would not. The Board has consistently followed the Sartorious doc-
trine since that time .9 Within the past few months the present Board
has unanimously applied the Sartorious doctrine in several cases 10
In the instant case the majority has not indicated that it is overruling
the Sartorious doctrine, nor has the majority indicated why it refused
' See National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U. S. 333,
rev'g 92 F. (2d) 761 and 87 F. (2d) 611 (C. C. A. 9), and affirming Matter of Mackay Radio
& Telegraph Company, a corporation, and American Radio Telegraphists' Association, San
Francisco Local No. 3, 1 N. L. R. B 201; National Labor Relations Board v. American
Manufacturing Co., 106 F. (2d) 61 (C. C. A. 2), enf'g as mod Matter of American Manu-
facturing Company, et al. and Textile Workers' Organizing Committee, C. I. 0., 5 N. L.
R. B. 443, affirmed 309 U. S. 629; Matter of American Shoe Machinery & Tool Company
and International Association of Machinists, District No. 9, 23 N. L R. B. 1315.
8 See footnote 4, supra.
b Mr. Leiserson has at times dissented from the application of the doctrine. See, for
example, Matter of Easton Publishing Co. and Easton Typographical Union No. 258,
affiliated with International Typographical Union, 19 N. L. R B. 389.
10 Matter of Burton-Dixie Corporation and Furniture, Bedding & Casket Local 325,
Upholsterers' International Union of North America, 29 N. L. R. B. 446; Matter of
Greene, Tweed & Co. and American Federation of Labor, Federal Labor Union # 22532,
29 N L R B 1166; Matter of the Eastern Box Company and Baltimore Paper Box and
DTICeellaneons Workers Union, No. 481 (A F. L ), 30 N. L. R. B. 673.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to follow the Sartorious doctrine in this case, although it has followed
it in other cases. To my mind, all the arguments in opposition to the
Sartorious doctrine now advanced were applicable equally in the recent
cases in which the doctrine was sustained.
The facts of the present case bring it squarely within the principle
established by the Board in the Sartorious case. In enunciating such
principle the Board there stated :
We held that the employees who went on strike were eligible
to participate in the selection of the bargaining representative
of the employees in the appropriate unit because their status
as employees for the purposes of the Act is expressly preserved
by Section 2 (3) of the Act, which provides that the term
"employee," when used in the Act, shall include any individual
whose work has ceased "as a consequence of, or in connection
with any current labor dispute." The strike began on July 18,
1938, and was current at the time of the hearing. But by
holding that individuals, who took jobs vacated by striking
employees, also were eligibile to participate in the selection of
the bargaining representative of the employees in the appro-
priate unit, there resulted a situation where two individuals,
with interests diametrically opposed, were, by virtue of one and
the same job, entitled to participate in the selection of the
bargaining representative. If those who have, during the cur-
rency of the strike, replaced the strikers are permitted to vote,
and the strikers are also permitted to vote, possibly twice as
many as can be employed may participate in the election. This
was not the intent of Congress. Yet the intent that strikers
should remain employees for the purposes of the Act is clear.
By preserving to employees who go on strike their status as
employees and the rights guaranteed by the Act, the Act con-
templates that during the currency of a strike, with the striking
employees returning to their former jobs, displacing individuals
hired to fill those jobs during the strike. Strikes are commonly
settled in this manner.* The hold of individuals who, during
the currency of a strike, occupy positions vacated by striking
* See, for example , the account of the settlement of the strike in 1934 of longshoremen
on the West Coast in Yellen , American Labor Struggles , p 355, where it is said :
After its success in getting itself recognized as mediator by both longshore strikers and
employers, three problems still faced the National Longshoremen's Board : what to do
with the strike-breakers, how to settle the grievances of the marine workers, and how to
return the longshoremen to work. But all three were soon solved. On July 27 the
Waterfront Employers ' Union agreed to discharge all men hired since the inception of
the strike and not to discriminate against any worker for union affiliation or for strike
activity ; the seamen voted on July 30 for arbitration, as did the other maritime crafts ;
and it was agreed that , pending the arbitration proceedings , both the National Long-
shoremen 's Board and the I. L. A. were to have observers in the hiring halls to see that
the employment of longshoremen was fair and without discrimination.
THE RUDOLPH WURLITZER COMPANY 171
employees is notably tenuous.** To accord such individuals,
while the strike is still current, a voice in the selection of the
bargaining representative of the employees in the appropriate
unit would be contrary to the purposes of the Act and the ends
contemplated by it, since it might effectively foreclose the possi-
bility of the settlement of the labor dispute, whether by the
return of the striking employees to their jobs and the displace-
ment of the individuals occupying those jobs during the strike,
or by some other settlement agreement, a possibility which the
Act contemplates should not be foreclosed during the currency
of the strike. Accordingly we hold that such individuals are
not eligible to participate in the selection of the bargaining
representative of the employees in the appropriate unit.
It is my considered opinion that the rationale of the Board's Decision
in the Sartorious case is correct."
In the present case it so happens that there are only 23 employees,
out of some 600, who have replaced active strikers. In many cases,
however, a much higher percentage of the strikers may be replaced, at
least temporarily, sometime during the course of a strike. To hold
that both a large group of strikers and a large group of strikebreakers,
each laying claim to the same jobs, should participate in the election
seems to me to deprive the election of all meaning. I cannot believe
that a ballot conducted under such circumstances can possibly serve
as a basis for effective collective bargaining.
On the contrary, I believe the clear intent of the Act as a whole, and
of Section 2 (3) in particular, to be that where a strike occurs the
employer shall continue to negotiate with the employees then on his
pay roll in an honest endeavor to compose differences and end the
obstruction to interstate commerce. As long as the strike remains
current, it is the employer's obligation under the Act to bargain with
his striking employees. I do not see how that obligation can be ful-
filled if the choice of representatives of those employees is to be deter-
mined in any measure by individuals, with openly conflicting inter.
ests, hired to do the work of the strikers. When the strike is no longer
current then the strikers are no longer employees, a new situation
arises, and the employer must deal with the employees, including the
strikebreakers, then on his pay roll. But until that point is reached
his primary obligation under the Act is to bargain collectively with the
individuals in his employ when the labor dispute arose.
Under the ruling of the majority, not only is the obligation of the
employer to deal with his striking employees hopelessly diluted and
**See National Labor Relations Board v. Remington Rand, Inc. (C. C. A. 2nd, 1938) 94
F (2d) 862, 871, where the court said, " and, indeed , it is probably true today tbat
most men taking fobs so made vacant, realize, from the outset how tenuous is their he],]
u See my concurring opinion in the Eastern Box Company case, footnote 10, supra.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confused, but the employer is actively encouraged to evade that obliga-
tion. By the majority decision the employer is given to understand
that, if he can put off a settlement of the labor dispute with the strikers
and meanwhile hire new employees, he will eventually be legally re-
lieved of any duty to bargain with his striking employees or even to
meet and to talk to them. Such a ruling means in practical application
that employees are thus penalized for striking by the termination of
the bargaining relationship and, therefore, the chance to return to their
jobs. Such a penalty, in my opinion, operates to "interfere with or
impede or diminish the right to strike" contrary to the limitations on
such a result contained in Section 13 of the Act. From another view-
point, rejection of the Sartorious doctrine, and the attendant estab-
lishment of the right of strikebreakers to vote in representation elec-
tions, will result inevitably in reluctance on the part of strikers to resort
to the Board for the determination of representation disputes. Under
the circumstances, I do not see how such a doctrine can fail to result
in the prolongation of many strikes and in increased bitterness of
industrial warfare.
Moreover, even if an employer makes a bone fide effort to deal with
his employees during a strike, he may find it difficult under the majority
decision to know with whom to bargain. Fora strike seldom remains
static. An increasing number of strikebreakers may be employed each
day. If these strikebreakers be given a choice in the determination of
representatives, then the majority representative may shift from day
to day. Under such circumstances it may become impossible for the
employer to know, at any specified time, with whom the Act obligates
him to deal.
Furthermore, I think it should be emphasized that the Sartorious
doctrine conforms with the realities of labor relations. In practice
an employee on strike has always considered that the job in the plant
still belongs to him 12 On the other hand, the claim of the strike-
breaker to the job, as pointed out in the Sartorious decision, is notably
tenuous.13 Again, statistics indicate that in the majority of cases the
strikers do, in fact, return to their jobs. Thus, in 1940 the average
duration of all strikes was 21 calendar days, with 62 per cent being
settled within 2 weeks and over 90 per cent within 2 months.14 It is
hardly likely that the great majority of strikes, lasting for such a
'a See United States Department of Labor , Report of the Commission on Industrial
Relations in Great Britain ( 1938 ), page 11, where it is said , ". . . There is a general
feeling among workers and employers that `the job belongs to the man' and that it is not
right for men to take , or to be asked to take, the job of their fellows."
13 See Restatement of the Law on Torts ( 1939 ), Section 776, Comment, b , where it is
said, ". . . When workers are still continuing their strike activities and their efforts to
prevent normal operations , their replacement can not be regarded as permanent. It
is probably true today that most men taking jobs so made vacant realize from the outset
how tenuous is their hold"
'4 Strikes in 1940, Bureau of Labor Statistics , Serial No R. 1282 , page 16.
THE RUDOLPII WURLITZER COMPANY 173
short period, should result in the elimination of the strikers and their
final replacement by strikebreakers. It follows from these considera-
tions that, in actual practice, the claim of the striker to his job is
superior to that of the strikebreaker, and should be so recognized by
the Board.
It is significant, also, that in the only instance, so far as I am aware,
where the question has been specifically considered by a legislature, the
doctrine of the Sartorious case has been approved. In the New York
State Labor Relations Act it is provided :
Nor shall any individuals employed only for the duration of a
strike or lockout be eligible to vote in such election.15
Finally, public opinion has long been attuned, and the whole media-
tion machinery of Government testifies, to the fact that the normal
and socially desirable thing is for the employer to negotiate with the
striking employees looking toward a return by them to work and a
termination of the labor dispute. The rule applied by the majority
in this case would have the inevitable effect of discouraging bargain-
ing with strikers, thereby prolonging strikes.
The supplementary opinion contains certain observations in opposi-
tion to the Sartorious doctrine which require brief comment. To
the contention made in support of the Sartorious doctrine that to per-
mit the strikebreakers as well as the strikers to vote will result in
there being more voters than there are jobs, the concurring opinion
answers, "the Board frequently rules that more employees are eligible
to vote than there are jobs." None of the cases referred to, however,
are comparable to the Sartorious case or the case at bar, for in none
of those cases is there the conflict in interest between the two persons
who vote by virtue of the same job as there is in the Sartorious case.l"
It is this conflict in interest between two persons having a single job
which, when both are allowed to vote, makes the election an ineffectual
instrument for settling the labor dispute, particularly in a situation
11 New York Labor Law, Section 705 (4).
19 There are other distinctions worthy of note between the cases cited in the supplement.
cry opinion and cases similar to the one at bar In cases where employees who are ill,
or on vacation, or called for military service are allowed to vote as well as their replace-
ments, it is apparent that a relatively small proportion of the total working force will be
affected . In cases in which we permit temporarily laid off employees and employees on
preferential lists to vote, we do so because there is a reasonable expectation that they
will be employed in the future. When they are employed, they do not replace employees
who wish to continue to work but supplement them We let such employees vote because
we believe that they and the employees working kill, in the future, all work together
at the same time In a case like the one at bar , however, employees are not working
because of a current labor dispute. When the dispute is settled, as between the strikers
and the strikebreakers, one group will be working and one will not. The group that is not
working will have no expectancy of employment since the employer will have a full com-
plement of employees. As I have stated in other portions of this opinion, I believe that the
strikers will normally be working , and for that reason should be permitted to vote in
preference to the strikebreakers.
174 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
where, as the concurring opinion admits may occur , practically all
employees go on strike and the employer fills their places.
The supplementary opinion urges , however, that "were the so -called
strikebreakers made ineligible to vote, it would mean that the scales
would be turned against the employer who is not charged with any
unfair labor practice ." Such an argument , it seems to me, rests upon
a misconception of the Board's function in this proceeding. We are
not here concerned with weighing the relative rights of the employer
and the strikers in the current labor dispute . Rather we are admin-
istering a statute passed by Congress designed to effectuate the signifi-
cant public policies expressed therein. We should , therefore, in the
exercise of an informed discretion , provide for an election upon terms
which will best effectuate the policies of the Act. That is precisely
what the Sartorious doctrine accomplishes.
The supplementary opinion seeks to meet the fact that unless the
Sartorious doctrine is applied the settlement of strikes is interfered
with by the assertion that "it would be more accurate to say that the
settlement of the strike on the strikers ' terms may be interfered with."
But neither in this case nor in any other case in which the Sartorious
doctrine has been applied have the "strikers' terms" been known or
been the subject of inquiry . The application of the doctrine merely
preserves fully the strikers ' status as employees for the purposes of
collective bargaining and maintains inviolate the right to strike, as
the Act expressly provides.
Finally, both the principal opinion and the supplementary opinion
assert that the strikebreakers are employees and that therefore they
should vote in the election . It is true that the strikebreakers are
employees, but that is not decisive of the issue, which is not , who are
employees , but rather who shall participate in the election . That issue
of eligibility must be decided in terms of how the policies of the Act
may best be effectuated. I think it is plain upon the basis of all the
considerations which I have discussed herein that the application of
the Sartorious doctrine best effectuates the policies of the Act. I
would, therefore , exclude from participation in the election employees
hired to replace strikers.