U.S. Supreme Court Labor Board v. Fansteel Metallurgical
Corp., 306
U.S. 240 (1939) Labor Board v. Fansteel
Metallurgical Corp. No. 436 Argued January 12, 13,
1939 Decided February 27,
1939 306
U.S. 240 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE SEVENTH
CIRCUIT Syllabus 1. Seizure and forcible retention of an employer's factory
buildings by employees, in a "sit-down" strike, is good cause for
their discharge. P. 306 U. S.
252 .

															2. The National Labor Relations Act does not undertake to
abrogate the right of an employer to refuse to retain in his employ
those who illegally take and hold possession of his property. P. 306 U. S.
255 .

															3. The National Labor Relations Act is not to be construed as
compelling employers to retain persons in their employ regardless
of their unlawful conduct. In recognizing the right to strike, it
contemplates a lawful strike, and where a strike, even though
actuated by unfair labor practices of the employer, is
initiated Page 306 U. S. 241 and conducted in lawlessness by the seizure and retention of the
employer's property, and the strikers are discharged because of
their lawlessness, they do not remain "employees" within the
meaning of § 2(3), and are not within the authority to reinstate
"employees" reposed in the Board by § 10(c). P. 306 U. S.
256 .

															4. The provision of § 10(c) of the Act, by which the Board may
require an employer to take such affirmative action as will
"effectuate the policies" of the Act, does not authorize the Board
to require reemployment of men who have been discharged for such
unlawful conduct. P. 306 U. S.
257 .

															5. Strikers who aided and abetted a "sit-down" strike are in no
better case than the "sit-down" strikers themselves. Assuming that,
through not having been formally discharged, they retained the
status of "employees" by virtue of § 2(3), that provision does not
automatically reinstate them, and the provision that the Board may
require "such affirmative action, including reinstatement of
employees," as will "effectuate the policies" of the Act, will not
countenance an order requiring reinstatement in such circumstances.
P. 306 U. S.
259 .

															6. An order of the National Labor Relations Board requiring
reinstatement of employees must be supported by specific findings.
P. 306 U. S.
261 .

															7. An order of the Board that the employer bargain with a
particular organization as exclusive representative of employees
should not be enforced where, by reason of valid discharges and new
employments, there is no ground to conclude that the organization
is the choice of a majority of the employees for the purpose of
collective bargaining. P. 306 U. S.
261 .

															8. An order of the Board requiring an employer to withdraw
recognition from an organization of employees should be upheld
where there is substantial evidence that the formation of this
organization was brought about through promotion efforts of the
employer contrary to the provision of § 8(2) of the Act. P. 306 U. S.
262 .

															98 F.2d 375 affirmed with modifications.

															Certiorari, 305 U.S. 590, to review a judgment setting aside an
order of the National Labor Relations Board. Page 306 U. S. 247 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

															The Circuit Court of Appeals set aside an order of the National
Labor Relations Board requiring respondent to desist from labor
practices found to be in violation of the National Labor Relations
Act, and to offer reinstatement to certain discharged employees
with backpay. While the other portions of the Board's order are
under review, the principal question presented relates to the
authority of the Board to require respondent to reinstate employees
who were discharged because of their unlawful conduct in seizing
respondent's property in what is called a "sit-down strike."

															Respondent, Fansteel Metallurgical Corporation, is engaged at
North Chicago, Illinois, in the manufacture and sale of products
made from rare metals. No question is raised as to the intimate
relation of its operations to interstate commerce, or the effect
upon that commerce of the unfair labor practices with which the
corporation is charged. The findings of the Board show that, in the
summer of 1936, a group of employees organized Lodge 66 under the
auspices of a committee of the Amalgamated Association of Iron,
Steel, and Tin Workers of North America; that respondent employed a
"labor spy" to engage in espionage within the Union, and his
employment was continued until about December 1, 1936; that, on
September 10, 1936, respondent's superintendent was requested to
meet with a committee of the union, and the superintendent required
that the committee should consist Page 306 U. S. 248 only of employees of five years' standing; that a committee, so
constituted, presented a contract relating to working conditions;
that the superintendent objected to "closed shop and check-off
provisions," and announced that it was respondent's policy to
refuse recognition to "outside" unions; that, on September 21,
1936, the superintendent refused to confer with the committee in
which an "outside" organizer had been included; that, meanwhile,
and later, respondent's representatives sought to have a "company
union" set up, but the attempt proved abortive; that, from
November, 1936, to January, 1937, the superintendent required the
president of the Union to work in a room adjoining the
superintendent's office with the purpose of keeping him away from
the other workers; that while, in September, 1936, the Union did
not have a majority of the production and maintenance employees, an
appropriate unit for collective bargaining, by February 17, 1937,
155 of respondent's 229 employees in that unit had joined the Union
and had designated it as their collective bargaining
representative; that, on that date, a committee of the Union met
twice with the superintendent, who refused to bargain with the
Union as to rates of pay, hours, and conditions of employment, the
refusal being upon the ground that respondent would not deal with
an "outside" union.

															Shortly after the second meeting in the afternoon of February
17th, the Union committee decided upon a "sit-down strike" by
taking over and holding two of respondent's "key" buildings. These
were thereupon occupied by about 95 employees. Work stopped, and
the remainder of the plant also ceased operations. Employees who
did not desire to participate were permitted to leave, and a number
of Union members who were on the night shift and did not arrive for
work until after the seizure did not join their fellow members
inside the buildings. At about six o'clock in the evening, the
superintendent, Page 306 U. S. 249 accompanied by police officials and respondent's counsel, went
to each of the buildings and demanded that the men leave. They
refused, and respondent's counsel "thereupon announced in loud
tones that all the men in the plant were discharged for the seizure
and retention of the buildings." The men continued to occupy the
buildings until February 26, 1937. Their fellow members brought
them food, blankets, stoves, cigarettes, and other supplies.

															On February 18th, respondent obtained from the state court an
injunction order requiring the men to surrender the premises. The
men refused to obey the order, and a writ of attachment for
contempt was served on February 19th. Upon the men's refusal to
submit, a pitched battle ensued, and the men successfully resisted
the attempt by the sheriff to evict and arrest them. Efforts at
mediation on the part of the United States Department of Labor and
the Governor of Illinois proved unavailing. On February 26th, the
sheriff with an increased force of deputies, made a further
attempt, and this time, after another battle, the men were ousted
and placed under arrest. Most of them were eventually fined and
given jail sentences for violating the injunction.

															Respondent, on regaining possession, undertook to resume
operations, and production gradually began. By March 12th, the
restaffing was approximately complete. A large number of the
strikers, including many who had participated in the occupation of
the buildings, were individually solicited to return to work with
backpay, but without recognition of the Union. Some accepted the
offer, and were reinstated; others refused to return unless there
were union recognition and mass reinstatement, and were still out
at the time of the hearing before the Board. New men were hired to
fill the positions of those remaining on strike.

															Meanwhile, the Union was not inactive. On March 3d and 5th,
there were requests, which respondent refused, Page 306 U. S. 250 for meetings to consider the recognition of the Union for
collective bargaining. There was no collective request for
reinstatement of all the strikers. The position of practically all
the strikers who did not go back, and who were named in the
complaint filed with the Board, was "that they were determined to
stay out until the Union reached a settlement with the
respondent."

															Early in April, a labor organization known as Rare Metal Workers
of America, Local No. 1, was organized among respondent's
employees. There was a meeting in one of respondent's buildings on
April 15th which was attended by about 200 employees, and the
balloting resulted in a vote of 185 to 15 in favor of the formation
of an "independent" organization. Another meeting was held soon
after for the election of officers. Respondent accorded these
efforts various forms of support. The Board concluded that the Rare
Metal Workers of America, Local No. 1, was the result of the
respondent's "anti-union campaign," and that respondent had
dominated and interfered with its formation and administration.

															Upon the basis of these findings and its conclusions of law, the
Board made its order directing respondent to desist from
interfering with its employees in the exercise of their right to
self-organization, and to bargain collectively through
representatives of their own choosing, as guaranteed in § 7 of the
Act; from dominating or interfering with the formation or
administration of the Rare Metal Workers of America, Local No. 1,
or any other labor organization of its employees or contributing
support thereto, and from refusing to bargain collectively with the
Amalgamated Association of Iron, Steel, and Tin Workers of North
America, Lodge 66, as the exclusive representative of the employees
described. The Board also ordered the following affirmative action
which it was found would "effectuate the policies" of the Act --
that is, upon request, to bargain collectively with the
Amalgamated Page 306 U. S. 251 Association as stated above; to offer, upon application, to the
employees who went on strike on February 17, 1937, and thereafter,
"immediate and full reinstatement to their former positions," with
backpay, dismissing, if necessary, all persons hired since that
date; to withdraw all recognition from Rare Metal Workers of
America, Local No. 1, as a representative of the employees for the
purpose of dealing with respondent as to labor questions, and to
"completely disestablish" that organization as such representative,
and to post notices of compliance. 5 N.L.R.B. 930.

															The Board found that respondent had not engaged in unfair labor
practices by "discrimination in regard to hire or tenure of
employment" in order to "encourage or discourage membership in any
labor organization," and, accordingly, the complaint under § 8(3)
of the Act was dismissed. Id. On respondent's petition, the Circuit Court of Appeals set aside
the Board's order 98 F.2d 375, and this Court granted certiorari,
305 U.S. 590. First. The unfair labor practices. -- The Board
concluded that, by "the anti-union statements and actions" of the
superintendent on September 10, 1936, and September 21, 1936, by
"the campaign to introduce into the plant a company union," by "the
isolation of the union president from contact with his fellow
employees," and by the employment and use of a "labor spy,"
respondent had interfered with its employees, and restrained and
coerced them, in the exercise of their right to self-organization
guaranteed in § 7 of the Act, and thus had engaged in an unfair
labor practice under § 8(1) of the Act.

															Owing to the fact that, in September, 1936, the Union did not
have a majority of the employees in the appropriate unit, the Board
held that it was precluded from finding unfair labor practices in
refusing to bargain collectively at that time, but the Board found
that there Page 306 U. S. 252 was such a refusal on February 17, 1937, when the Union did have
a majority of the employees in the appropriate unit, and that this
constituted a violation of § 8(5).

															These conclusions are supported by the findings of the Board,
and the latter, in this relation, have substantial support in the
evidence. Second. The discharge of the employees for illegal conduct
in seizing and holding respondent's buildings. -- The Board
does not now contend that there was not a real discharge on
February 17th when the men refused to surrender possession. The
discharge was clearly proved.

															Nor is there any basis for dispute as to the cause of the
discharge. Representatives of respondent demanded that the men
leave, and, on their refusal, announced that they were discharged
"for the seizure and retention of the buildings." The fact that it
was a general announcement applicable to all the men in the plant
who thus refused to leave does not detract from the effect of the
discharge, either in fact or in law.

															Nor is it questioned that the seizure and retention of
respondent's property were unlawful. It was a high-handed
proceeding without shadow of legal right. It became the subject of
denunciation by the state court under the state law, resulting in
fines and jail sentences for defiance of the court's order to
vacate and in a final decree for respondent as the complainant in
the injunction suit.

															This conduct on the part of the employees manifestly gave good
cause for their discharge unless the National Labor Relations Act
abrogates the right of the employer to refuse to retain in his
employ those who illegally take and hold possession of his
property. Third. The authority of the Board to require the
reinstatement of the employees thus discharged. -- The
contentions of the Board, in substance, are these: (1) that Page 306 U. S. 253 the unfair labor practices of respondent led to the strike, and
thus furnished ground for requiring the reinstatement of the
strikers; (2) that, under the terms of the Act, employees who go on
strike because of an unfair labor practice retain their status as
employees, and are to be considered as such despite discharge for
illegal conduct; (3) that the Board was entitled to order
reinstatement or reemployment in order to "effectuate the policies"
of the Act.

															(1) For the unfair labor practices of respondent, the Act
provided a remedy. Interference in the summer and fall of 1936 with
the right of self-organization could at once have been the subject
of complaint to the Board. The same remedy was available to the
employees when collective bargaining was refused on February 17,
1937. But, reprehensible as was that conduct of the respondent,
there is no ground for saying that it made respondent an outlaw, or
deprived it of its legal rights to the possession and protection of
its property. The employees had the right to strike, but they had
no license to commit acts of violence or to seize their employer's
plant. We may put on one side the contested questions as to the
circumstances and extent of injury to the plant and its contents in
the efforts of the men to resist eviction. The seizure and holding
of the buildings was itself a wrong apart from any acts of
sabotage. But, in its legal aspect, the ousting of the owner from
lawful possession is not essentially different from an assault upon
the officers of an employing company, or the seizure and conversion
of its goods, or the despoiling of its property, or other unlawful
acts in order to force compliance with demands. To justify such
conduct because of the existence of a labor dispute or of an unfair
labor practice would be to put a premium on resort to force,
instead of legal remedies, and to subvert the principles of law and
order which lie at the foundations of society. Page 306 U. S. 254 As respondent's unfair labor practices afforded no excuse for
the seizure and holding of its buildings, respondent had its normal
rights of redress. Those rights, in their most obvious scope,
included the right to discharge the wrongdoers from its employ. To
say that respondent could resort to the state court to recover
damages or to procure punishment, but was powerless to discharge
those responsible for the unlawful seizure, would be to create an
anomalous distinction for which there is no warrant unless it can
be found in the terms of the National Labor Relations Act. We turn
to the provisions which the Board invokes.

															(2) In construing the Act in Labor Board v. Jones &
Laughlin Steel Corp., 301 U. S. 1 , 301 U. S. 45 -46,
we said that it "does not interfere with the normal exercise of the
right of the employer to select its employees or to discharge
them;" that the employer

															"may not, under cover of that right, intimidate or coerce its
employees with respect to their self-organization and
representation, and, on the other hand, the Board is not entitled
to make its authority a pretext for interference with the right of
discharge when that right is exercised for other reasons than such
intimidation and coercion." See also Associated Press v. Labor Board, 301 U.
S. 103 , 301 U. S. 132 . Compare Texas & New Orleans R. Co. v. Brotherhood, 281 U. S. 548 , 281 U. S. 571 ; Virginian Railway Co. v. System Federation No. 40, 300 U. S. 515 , 300 U. S.
559 .

															It is apparent under that construction of the Act that, had
there been no strike, and employees had been guilty of unlawful
conduct in seizing or committing depredations upon the property of
their employer, that conduct would have been good reason for
discharge, as discharge on that ground would not be for the purpose
of intimidating or coercing employees with respect to their right
of self-organization or representation, or because of any
lawful Page 306 U. S. 255 union activity, but would rest upon an independent and adequate
basis.

															But the Board, in exercising its authority under §10(c) to
reinstate "employees," insists that, here, the status of the
employees was continued, despite discharge for unlawful conduct, by
virtue of the definition of the term "employee" in § 2(3). By that
definition, the term includes

															"any individual whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of any unfair
labor practice, and who has not obtained any other regular and
substantially equivalent employment. . . ."

															We think that the argument misconstrues the statute. We are
unable to conclude that Congress intended to compel employers to
retain persons in their employ regardless of their unlawful conduct
-- to invest those who go on strike with an immunity from discharge
for acts of trespass or violence against the employer's property,
which they would not have enjoyed had they remained at work. Apart
from the question of the constitutional validity of an enactment of
that sort, it is enough to say that such a legislative intention
should be found in some definite and unmistakable expression. We
find no such expression in the cited provision.

															We think that the true purpose of Congress is reasonably clear.
Congress was intent upon the protection of the right of employees
to self-organization and to the selection of representatives of
their own choosing for collective bargaining without restraint or
coercion. Labor Board v. Jones & Laughlin Steel Corp.,
supra, page p. 301 U. S. 33 . To
assure that protection, the employer is not permitted to discharge
his employees because of union activity or agitation for collective
bargaining. Associated Press v. Labor Board, supra. The
conduct thus protected is lawful conduct. Page 306 U. S. 256 Congress also recognized the right to strike -- that the
employees could lawfully cease work at their own volition because
of the failure of the employer to meet their demands. Section 13
provides that nothing in the Act "shall be construed so as to
interfere with or impede or diminish in any way the right to
strike." But this recognition of "the right to strike" plainly
contemplates a lawful strike -- the exercise of the unquestioned
right to quit work. As we said in Labor Board v. Mackay Radio
& Telegraph Co., 304 U. S. 333 , 304 U. S.
347 ,

															"if men strike in connection with a current labor dispute, their
action is not to be construed as a renunciation of the employment
relation, and they remain employees for the remedial purposes
specified in the act."

															There is thus abundant opportunity for the operation of § 2(3)
without construing it as countenancing lawlessness or as intended
to support employees in acts of violence against the employer's
property by making it impossible for the employer to terminate the
relation upon that independent ground.

															Here, the strike was illegal in its inception and prosecution.
As the Board found, it was initiated by the decision of the Union
committee "to take over and hold two of the respondent's key'
buildings." It was pursuant to that decision that the men occupied
the buildings and the work stopped. This was not the exercise of
"the right to strike" to which the Act referred. It was not a mere
quitting of work and statement of grievances in the exercise of
pressure recognized as lawful. It was an illegal seizure of the
buildings in order to prevent their use by the employer in a lawful
manner, and thus, by acts of force and violence, to compel the
employer to submit. When the employees resorted to that sort of
compulsion, they took a position outside the protection of the
statute, and accepted the risk of the termination of their
employment Page 306 U. S.
257 upon grounds aside from the exercise of the legal rights
which the statute was designed to conserve. (3) The Board contends that its order is valid under the terms
of the Act "regardless of whether the men remained employees." The
Board bases its contention on the general authority, conferred by §
10(c), to require the employer to take such affirmative action as
will "effectuate the policies" of the Act. Such action, it is
argued, may embrace not only reinstatement of those whose status as
employees has been continued by virtue of § 2(3), but also a
requirement of the "reemployment" of those who have ceased to be
employed.

															The authority to require affirmative action to "effectuate the
policies" of the Act is broad, but it is not unlimited. It has the
essential limitations which inhere in the very policies of the Act
which the Board invokes. Thus, in Consolidated Edison Co. v.
Labor Board, 305 U. S. 197 , we
held that the authority to order affirmative action did not go so
far as to confer a punitive jurisdiction enabling the Board to
inflict upon the employer any penalty it may choose because he is
engaged in unfair labor practices, even though the Board is of the
opinion that the policies of the Act may be effectuated by such an
order. We held that the power to command affirmative action is
remedial, not punitive, and is to be exercised in aid of the
Board's authority to restrain violations and as a means of removing
or avoiding the consequences of violation where those consequences
are of a kind to thwart the purposes of the Act.

															We repeat that the fundamental policy of the Act is to safeguard
the rights of self-organization and collective bargaining, and
thus, by the promotion of industrial peace, to remove obstructions
to the free flow of commerce as defined in the Act. There is not a
line in the statute to warrant the conclusion that it is any part
of the policies Page 306 U. S. 258 of the Act to encourage employees to resort to force and
violence in defiance of the law of the land. On the contrary, the
purpose of the Act is to promote peaceful settlements of disputes
by providing legal remedies for the invasion of the employees'
rights. Elections may be ordered to decide what representatives are
desired by the majority of employees in appropriate units as
determined by the Board. To secure the prevention of unfair labor
practices by employers, complaints may be filed and heard, and
orders made. The affirmative action that is authorized is to make
these remedies effective in the redress of the employees' rights,
to assure them self-organization and freedom in representation, not
to license them to commit tortious acts, or to protect them from
the appropriate consequences of unlawful conduct. We are of the
opinion that to provide for the reinstatement or reemployment of
employees guilty of the acts which the Board finds to have been
committed in this instance would not only not effectuate any policy
of the Act, but would directly tend to make abortive its plan for
peaceable procedure.

															What we have said also meets the point that the question whether
reinstatement or reemployment would effectuate the policies of the
Act is committed to the decision of the Board in the exercise of
its discretion, subject only to the limitation that its action may
not be "arbitrary, unreasonable, or capricious." The Board
recognizes that, in "many situations," reinstatement or
reemployment after discharge for illegal acts would not be proper,
but the Board insists that it was proper in this instance. For the
reasons we have given, we disagree with that view. We think that a
clearer case could hardly be presented, and that, whatever
discretion may be deemed to be committed to the Board, its limits
were transcended by the order under review. Page 306 U. S. 259 The Board stresses the fact that, when respondent was able to
obtain possession of its buildings and to resume operations, it
offered reemployment to many of the men who had participated in the
strike. The contention confuses what an employer may voluntarily
and legally do in the exercise of his right of selection, and what
the Board is entitled to compel. In announcing the reopening,
respondent stated its belief that a large number of men who had
taken part in the seizure of the plant were compelled to do so
through coercion and intimidation, and that applications for
reemployment from such men would receive favorable consideration.
The Board challenges the statement that respondent limited its
rehiring to such applicants. The Board points to evidence showing
that everyone who applied for reemployment during the period of
restaffing was taken back without condition, except two employees
who were advanced in years and were not reinstated solely for that
reason, and to the testimony of the superintendent that at least
thirty-seven were rehired "who had been in the sit-down."

															We find it unnecessary to consider in detail the respective
contentions as to respondent's offer of reemployment, for we think
that its action did not alter the unlawful character of the strike
or respondent's rights in that aspect. The important point is that
respondent stood absolved by the conduct of those engaged in the
"sit-down" from any duty to reemploy them, but respondent was
nevertheless free to consider the exigencies of its business and to
offer reemployment if it chose. In so doing, it was simply
exercising its normal right to select its employees. Fourth. The requirement of reinstatement of employees who
aided and abetted those who seized and held the buildings. There is a group of fourteen persons in this class who were not
within the buildings, and hence do not appear to have been within
the announcement of discharge, Page 306 U. S. 260 but who went on strike and fall within the order for
reinstatement. The Board made no separate findings with respect to
these particular persons, and refers us to the evidence to show
their relation to the transactions under review. This, however,
sufficiently appears in the stipulation of facts, to which the
Board was a party, naming in paragraph 12 these fourteen persons
and describing their conduct as follows:

															"All of the following men were employees of the company on
February 17, 1937, but did not participate in the seizure and
retention of the building, but aided and abetted the men within the
said buildings 3 and 5 in the retention of the said buildings by
soliciting, procuring, and delivering of food, bedding, cigarettes,
stoves, or other supplies, or in some other manner, and thereby
assisted the said men in buildings 3 and 5 to remain therein
contrary to the injunction order and writ of injunction heretofore
mentioned; that all of the said men named in this paragraph had
actual knowledge of the issuance of the said injunction order and
writ of injunction ordering and directing the men in buildings 3
and 5 to vacate the same, and that their activities in aiding and
abetting the men in buildings 3 and 5 were done with a view to and
for the purpose of assisting the said men to remain in the said
buildings after the issuance of the said injunction order and writ
of injunction and with knowledge thereof. None of the men named in
this paragraph was discharged by the company on February 17, 1937,
or thereafter, and none of these men was recalled to work by the
company upon the resumption of plant operations shortly after
February 26th, 1937: [the names follow]."

															It cannot be said that, independently of the Act, respondent was
bound to reinstate those who had thus aided and abetted the
"sit-down" strikers in defying the court's order. If it be assumed
that, by virtue of § 2(3), Page 306 U. S. 261 they still had the status of "employees," that provision did not
automatically provide reinstatement. Whether the Board could order
it must turn on the application of the provision empowering the
Board to require "such affirmative action, including reinstatement
of employees" as will "effectuate the policies" of the Act. We are
thus returned to the question already discussed, and we think that,
in that respect, these aiders and abettors, likewise guilty of
unlawful conduct, are in no better case than the "sit-down"
strikers themselves. We find no ground for concluding that there is
any policy of the Act which justifies the Board in ordering
reinstatement in such circumstances. Fifth. -- There are nine other persons apparently
embraced within the order of reinstatement as to which respondent
interposes special objections. As to seven, respondent objects to
the reinstatement upon the ground that they were inefficient, and
that no showing of union activity by any of them was made. As to
two others, respondent contends that they refused its request to
return to work without any conditions, and that their places were
accordingly filled.

															With respect to these nine persons, and to a miscellaneous group
of five others, including three as to whom the trial examiner
recommended dismissal of the complaint, the Board has not supplied
specific findings upon the points in controversy to sustain its
order.

															We are of the opinion that the Circuit Court of Appeals did not
err in setting aside the requirement of reinstatement. Sixth. The requirement that respondent shall bargain
collectively with Lodge 66 of the Amalgamated Association as the
exclusive representative of the employees in the described
unit. Respondent resumed work about March 12, 1937. The Board's order
was made on March 14, 1938. In view of Page 306 U. S. 262 the change in the situation by reason of the valid discharge of
the "sit-down" strikers and the filling of positions with new men,
we see no basis for a conclusion that, after the resumption of work
Lodge 66 was the choice of a majority of respondent's employees for
the purpose of collective bargaining. The Board's order properly
requires respondent to desist from interfering in any manner with
its employees in the exercise of their right to self-organization,
and to bargain collectively, through representatives of their own
choosing. But it is a different matter to require respondent to
treat Lodge 66 in the altered circumstances as such a
representative. If it is contended that Lodge 66 is the choice of
the employees, the Board has abundant authority to settle the
question by requiring an election. Seventh. The requirement that respondent shall withdraw all
recognition from Rare Metal Workers of America, Local No.
1. While respondent presents a strong protest, insisting that Local
No. 1 of the Rare Metal Workers was the free choice of the
employees after work was resumed, we cannot say that there is not
substantial evidence that the formation of this organization was
brought about through promotion efforts of respondent contrary to
the provision of § 8(2), and we think that the order of the Board
in this respect should be sustained. Whether Rare Metal Workers of
America, Local No. 1, or any other organization, is the choice of
the majority of the employees in the proper unit can be determined
by proceedings open to the Board.

															The provisions of the Board's order contained in Paragraph 1,
subdivisions (a) and (b), in Paragraph 2, subdivision (d), and in
Paragraph 2, subdivisions (e) and (f), so far as these refer to the
first-mentioned provisions, and the final Paragraph of the order
dismissing the charge Page 306 U. S. 263 under § 8(3) of the Act, are sustained. The other provisions of
the order are set aside.

															The judgment of the Circuit Court of Appeals is modified
accordingly, and, as modified, is affirmed. Modified and affirmed. MR. JUSTICE FRANKFURTER took no part in the consideration and
decision of this case.

															MR. JUSTICE STONE, concurring in part.

															I concur in so much of the Court's decision as holds that the
Board was without statutory authority to order reinstatement of
those employees who were discharged on February 17, 1937. But I
rest this conclusion solely on the construction of § 2(3) and §
10(c) of the National Labor Relations Act. By § 10(c), the Board is
given authority to reinstate in their employment only those who are
"employees." Before the Board made its order, respondent's
employees, by reason of their lawful discharge for cause, had lost
their status as such, which would otherwise have been preserved to
them under § 2(3).

															The National Labor Relations Act, as its purpose and scope are
disclosed by its preamble and operative provisions and explained by
the reports of the Congressional committees recommending its
enactment, Report No. 573, Senate Committee on Education and Labor,
74th Cong., 1st Sess.; Report No. 1147, House Committee on Labor,
74th Cong., 1st Sess., is aimed at securing the peaceable
settlement of labor disputes by the prevention of unfair labor
practices of the employer, and by requiring him to bargain
collectively with his employees. Since one means adopted by the Act
to secure this end is the reinstatement, by the discretionary
action of the National Labor Relations Board, of employees when
unfair labor Page 306 U. S. 264 practices have caused them to cease work, it was necessary to
provide that they should not lose their status as employees by
reason of that fact. This was accomplished by § 2(3), which
provides:

															"The term 'employee' shall include . . . any individual whose
work has ceased as a consequence of, or in connection with, any
current labor dispute or because of any unfair labor practice. . .
."

															Having in mind the purposes of the Act and the end sought by the
enactment of this section, I think its fair meaning is that
attributed to it by the Senate Committee Report, supra, pp. 6-7, which declared:

															"The bill thus observes the principle that men do not lose their
right to be considered as employees for the purposes of this bill
merely by collectively refraining from work during the course of a
labor controversy. . . . And to hold that a worker who, because of
an unfair labor practice, has been discharged or locked out or gone
on strike is no longer an employee would be to give legal sanction
to an illegal act, and to deny redress to the individual injured
thereby."

															But it does not follow, because the section preserves this right
to employees where they have ceased work by reason of a labor
dispute or unfair labor practice, that its language is to be read
as depriving the employer of his right, which the statute does not
purport to withdraw, to terminate the employer-employee
relationship for reasons dissociated with the stoppage of work
because of unfair labor practices. The language which saves the
employee status for those who have ceased work because of unfair
labor practices does not embrace also those who have lost their
status for a wholly different reason -- their discharge for
unlawful practices which the Act does not countenance. Page 306 U. S. 265 There is nothing in the Act, read as a whole, to indicate such a
purpose, and there is no language in § 2(3) directed to such an
end. I cannot attribute to Congress, in the adoption of § 2(3),
explained as it was in the Senate Committee Report, a purpose to
cut off the right of an employer to discharge employees who have
destroyed his factory, and to refuse to reemploy them, if that is
the real reason for his action. If a plainer indication of such a
purpose had been given by the language of § 2(3), I should have
thought it of sufficiently dubious constitutionality to require us
to construe its language otherwise, if that could reasonably be
done, leaving it to Congress to say so, in unmistakable language,
if it really meant to impose that duty on the employer.

															As to the fourteen employees who aided and abetted the sit-down
strike, but who were not discharged, I think they retained their
status under § 2(3), and that the Board had power to reinstate
them. Whether that power should be exercised was a matter committed
to the Board's discretion, not ours.

															In other respects I concur with the decision of the Court.

															MR. JUSTICE REED, dissenting in part.

															This Court agrees with the conclusion of the Labor Board that
the respondent was guilty of unfair labor practices, prior to the
strike, in campaigning for a company union, isolating the union
president, making, through its superintendent, anti-union
statements and employing a labor spy. It also accepts the Board's
conclusion that there was further pre-strike violation by
respondent of the Labor Relations Act by refusal to bargain
collectively. None questions the power of the Board to reinstate
striking employees as a means of redress for unfair labor
practices. The issue, while important, Page 306 U. S. 266 is narrow. Can an employee, on strike or let out by an unfair
labor practice, be discharged, finally, by an employer so as to be
ineligible for reinstatement under the act?

															The issue, so stated, glows feebly apart from the fire of
controversy. But it may permit a more objective appraisal than to
examine it when illustrated by conduct on the part of the employees
which is thought to put "a premium on resort to force," and to
subvert "the principles of law and order which lie at the
foundations of society." None on either side of the disputed issue
needs be suspected of "countenancing lawlessness," or of
encouraging employees to resort to "violence in defiance of the law
of the land." Disapproval of a sit-down does not logically compel
the acceptance of the theory that an employer has the power to bar
his striking employee from the protection of the Labor Act.

															The Labor Act was enacted in an effort to protect interstate
commerce from the interruptions of labor disputes. This object was
sought through prohibition of certain practices deemed unfair to
labor, and the sanctions adopted to enforce the prohibitions
included reinstatement of employees. To assure that the status of
strikers was not changed from employees to individuals beyond the
protection of the act, the term employee was defined to include

															"any individual whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of any unfair
labor practice. . . ."

															§ 2(3), Act of July 5, 1935. Without this assurance of the
continued protection of the act, the striking employee would be
quickly put beyond the pale of its protection by discharge. As now
construed by the Court, the employer may discharge any striker,
with or without cause, so long as the discharge is not used to
interfere with self-organization or collective bargaining. Friction
easily engendered by labor strife may readily give rise to
conduct, Page 306 U. S. 267 from nose-thumbing to sabotage, which will give fair occasion
for discharge on grounds other than those prohibited by the Labor
Act.

															The Congress sought by clear language to eliminate this prolific
source of ill feeling by the provision just quoted, which should be
interpreted in accordance with its language as continuing the
eligibility of a striker for reinstatement, regardless of conduct
by the striker or action by the employer. The constitutional
problem involved in such a conclusion is not different from the one
involved in compelling an employer to reinstate an employee
discharged for union activity. There is here no protection for
unlawful activity. Every punishment which compelled obedience to
law still remains in the hands of the peace officers. It is only
that the act of ceasing work in a current labor dispute involving
unfair labor practices suspends for a period, not now necessary to
determine, the right of an employer to terminate the relation. The
interference with the normal exercise of the right to discharge
extends only to the necessity of protecting the relationship in
industrial strife.

															The point is made that an employer should not be compelled to
reemploy an employee guilty, perhaps, of sabotage. This depends
upon circumstances. It is the function of the Board to weigh the
charges and countercharges and determine the adjustment most
conducive to industrial peace. Courts certainly should not
interfere with the normal action of administrative bodies in such
circumstances. Here, both labor and management had erred grievously
in their respective conduct. It cannot be said to be unreasonable
to restore both to their former status. Such restoration would
apply to the sit-down strikers and those striking employees who
aided and abetted them.

															I am of the view that the provisions of the order of the Board
ordering an offer of reinstatement to the employees Page 306 U. S. 268 discussed above should be sustained. As the remainder of the
order is affected by the determination upon this issue but not
wholly controlled by the conclusions, no opinion is expressed as to
the other requirements of the order.

															MR. JUSTICE BLACK concurs in this dissent.

Summary: In the case of Labor Board v. Fansteel Metallurgical Corp., the United States Supreme Court ruled that employees who engage in a "sit-down" strike, illegally seizing and holding possession of their employer's property, can be lawfully discharged and are not protected by the National Labor Relations Act. The Court also upheld the employer's right to refuse to reinstate these employees, even if their strike was initially prompted by unfair labor practices. The Court further ruled that an order from the National Labor Relations Board requiring reinstatement must be supported by specific findings and that exclusive bargaining with a particular organization should only be enforced if that organization represents the majority of employees.