The Colonial Press, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1973

207 N.L.R.B. 673 (N.L.R.B. 1973)

- COLONIAL PRESS, INC. 673
The Colonial Press, Inc. and Graphic Arts Internation-
al Union, Local 203, AFL-CIO (formerly known
as Lithographers and Photoengravers International
Union Local No. 203). Case 17-CA-5533
November 30, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On July 24, 1973, Administrative Law Judge
George J. Bott issued the attached Decision in this
proceeding. Thereafter, all parties filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
with the following modifications.
We agree with the Administrative Law Judge that
the Respondent violated Section 8(a)(1) through an
unlawful threat, interrogation, and other like conduct
by certain supervisors. However, we also find,
contrary to the Administrative Law Judge, - that
Respondent's refusal to reinstate the strikers and
pickets in February 1973 violated Section 8(a)(3) and
(1).
The Respondent discharged seven employees on
August 22, 1972. Six of the seven' discharges were for
lawful reasons . The remaining discharge, that of
Bernard Nice, was found unlawful in a previous
case.' On August 23, the Union called a strike, which
the Administrative Law Judge found to be an unfair
labor practice strike.2 We agree with that finding for
reasons set forth in the Administrative Law Judge's
Decision.
The more difficult issue before us is whether the six
persons found to have been lawfully discharged
became , through the events hereinafter described,
entitled to the reemployment rights normally accord-
ed to unfair labor practice strikers, or whether they
continued throughout the series of events herein to
be dischargees having an insufficient nexus of
employment with Respondent to be considered
unfair labor practice "strikers."
As set forth in the Decision of the Administrative
Law Judge, whose findings of fact we adopt,
Respondent on various occasions during the strike
made statements to the dischargees which can only
1 The Colonial Press, Inc., 204 NLRB No. 126
2 Insofar as the record indicates, there were initially three unfair labor
be construed as offers of reemployment. Thus,
Foreman Nice stated, with respect to the dischargees,
"tell them that there was jobs open, just come on in,
the door was open." Furthermore, the highest official
of Respondent, President Swoboda, told dischargee
Birdsong, after complimenting him on his past good
work, that "his [Swoboda's] door was always open"
and told Birdsong that he would pay for any
damages to Birdsong's car and "pick you up from
your house, bring you to work, take you home from
work anytime." Again, as set forth in the Decision
below. Swoboda also advised Birdsong that he was
not "locked out," but stated that his job was inside
and that all that was necessary for him to do to have
it restored to him was to come in and talk with
Swoboda. Foreman Henderson also told Birdsong
that he and Jeff Louden, another of the dischargees,
could have their jobs back, possibly with a raise in
wages.
We find these statements to be unmistakable offers
of reemployment and clear evidence of condonation
by Respondent of the misconduct which had given
rise to the earlier lawful discharges. The only
question remaining, therefore, is whether, as Respon-
dent argues, the fact that these persons did not
accept these offers of reemployment during the strike
leaves them in an unprotected position for the reason
that they did not act affirmatively to reclaim their
status as "employees" and thus remained outside the
protection of the Act.
The Administrative Law Judge, distinguishing the
facts here from those in M. Eskin & Son, 135 NLRB
666, enfd. 312 F.2d 108 (C.A. 2), and E. A.
Laboratories, Inc., ,86 NLRB 711, enfd. 188 F.2d 885
(C.A. 2), held that where, as here, the discharges took
place prior to the commencement of the, strike the
evidence must show a clear acceptance of any offer
of employment thereafter made in order for the
persons involved to resume their status as employees
entitled to the reemployment benefits normally
afforded unfair labor practice strikers. He therefore
concluded that the six persons here involved had
been lawfully, discharged prior to the strike, did not
accept any offers of reemployment tendered during
the strike, and were therefore not striking employees
entitled to reemployment rights.
We do not agree. We do not perceive the
distinction made by the Administrative Law, Judge
between the facts of this case and those of Eskin and
E. A. Laboratories to be a meaningful one, and we
are of the view that to make such a distinction would
invite abuses of the purposes of the Act and an
unwarranted dilution of the doctrine of condonation.
We have long construed the Act to confer its
practice strikers-Bernard Nice. Donald Blenden , and Gary Pilcher
207 NLRB No. 114
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protection upon those who engage in a lawful strike
as a means of protest against the commission of
unlawful acts under our statute by their employer.
Unlike those who strike to secure economic objec-
tives in an atmosphere untainted by employer unfair
labor practices , unfair labor practice strikers are not
required to assume the risk of being replaced during
the strike , but instead are guaranteed a right to
return to their former positions as soon as they
unconditionally seek active reemployment. This
guarantee, we believe , is essential in order to
effectuate the purposes of the Act and the public
policies underlying it. Any other construction of the
statute would permit an employer, " through the
successful exercise of his economic power , to recruit
replacements for strikers , to defeat, for all practical
purposes , the interdictions of the Act against his
commission of unfair labor practices and lightly to
disregard the protests of his work force against his
unlawful acts. It would permit employers to recruit a
new group of employees and to leave without
employment some or all of those who had been
adversely affected by his unlawful infringement of
employee rights.
It is true, however, that we make an exception to
this guarantee with respect to employees who commit
acts, during their employment, or for that matter
during the strike itself, which are sufficiently beyond
the pale of acceptable employee conduct to warrant
the employer's refusal to reemploy them. But we
have long engrafted on this exception the qualifica-
tion that his refusal to reemploy such persons must,
demonstrably , be founded upon a genuine concern
about the employees ' misconduct . Thus, when the
employer, by his statements or conduct, evidences a
lack of genuine concern about such misconduct by
forgiving it or by offering reemployment despite the
prior misconduct, we will not permit him subsequent-
ly to reassert the condoned conduct as a basis for
refusing reemployment . For, once he has indicated
that the misconduct on which he relied for severing
the employment relationship is no longer his true
reason for denying reemployment to those who have
protested his unlawful acts, there can remain only the
discriminatory reason for denying such reemploy-
ment-i .e., retaliation against such persons for
having struck or picketed in protest against the
employer's unlawful interference with employee
rights.
It seems plain enough , upon the facts here, that the
statements of the Respondent 's foremen and of its
chief executive officer demonstrated a willingness, as
we found in Eskin, "to `wipe the slate clean' and to
continue the employer-employee relationship not-
withstanding the fact that events occurred which
would have justified its termination, and notwith-
standing the fact that it was at one point terminated
because of such events."
Accordingly, at such time thereafter. as the six
employees evidenced their unconditional willingness
to resume such active employment , we can see no
justification for any 'refusal by Respondent to permit
them to do so. To hold otherwise would, we believe,
be inconsistent with our prior decisions , would dilute
the doctrine of condonation in an unwarranted
manner, and would invite abuse . For, the rationale
offered by Respondent and adopted by the Adminis-
trative Law Judge would require persons such as
those involved here either to forsake their legitimate
protests evidenced by their picketing activity and to
become strikebreakers , or else would require them to
be so counseled by those trained in the law as to
carefully recite that they were willing to resume
employee status ' but that they were continuing to
engage in concerted activity in support of the
protests of the work force against the employer's
unfair labor practices . To force such persons to
become strikebreakers would subvert the very pur-
poses underlying the protection afforded to unfair
labor practice strikers . To require an incantation of
carefully constructed legal phrases seems to us to
introduce wholly unnecessary and undesirable for-
malities and to make artificial our approach to
problems,of reality and substance,
To our mind , it is more consonant with the realities
to conclude upon the facts here that Respondent's
statements were such as to evidence a clear intent to
continue the employer -employee relationship and in
legal effect constituted a rescission of the previous
discharges . Having so acted , Respondent is not
entitled lawfully later to shift its position again and
refuse employment to the persons here involved.
In view of the foregoing , we find that Baker,
Birdsong, Wayne Blenden, Classen, Louden, and
Sass upon the aforesaid rescission of their discharges
became unfair labor practice strikers ; that the
Union's requests of February 2, 20, and 23, 1973,
that all strikers be reinstated were unconditional
offers of reinstatement ; and that Respondent's
refusal to reinstate pursuant to such requests violated
Section 8 (a)(1) and (3) of the Act. We reject
Respondent's contention that any or all of such
persons had effectively been replaced in view of the
fact that there is no evidence and no contention that
the replacements were hired until after the state-
ments evidencing condonation and the rescission of
their discharges had occurred. Since the persons
involved were , at the time of their alleged replace-
ment, unfair labor .practice strikers, the attempted
replacement was ineffective and cannot affect their
right to be reemployed.
COLONIAL PRESS, INC. 675
THE REMEDY
As we have found that the Respondent has
engaged in various unfair labor practices, we shall
adopt the Administrative Law Judge's recommended
remedial provisions with the following additions.
In view of our finding that the Respondent
unlawfully refused to reinstate the unfair labor
practices strikers upon the Union's unconditional
application on February 2, 1973, for their reinstate-
ment, we shall order it to offer them immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to' substantially equivalent
positions without prejudice to their seniority or other
rights and privileges, and make them whole for any
loss of earnings they may have suffered by reason of
the discrimination against them by payment to them
of a sum of money equal to that they normally would
have earned from the date of the Union's uncondi-
tional request for reinstatement to the date of
Respondent's offer of reinstatement, less any, net
earnings during 'such period. The backpay shall be
computed in accordance' with the remedial relief
policies set forth in F W, Woolworth Company, 90
NLRB 289, and Isis Plumbing and Heating Co., 138
NLRB 716. -
In view of the nature of the unfair labor practices
committed, and the recent violations found to have
been committed by Respondent in 204 NLRB No.
126, we shall order the Respondent to cease and
desist from in any other manner infringing upon the
rights guaranteed employees in Section 7 of the Act.
ORDER
Pursuant to Section 10(6) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, The
Colonial Press, Inc., Omaha, Nebraska, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Telling employees not to talk with picketing
employees.
(b) Creating the impression of surveillance of
employee union activity.
(c) Interrogating employees about their union
feelings.
(d) Stating to striking employees that other employ-
ees would be discharged if they were seen talking to
strikers.
(e) Discouraging membership in or activity on
behalf of Graphic Arts International Union, Local
203, AFL-CIO, or any other labor organization, by
refusing to reinstate upon their unconditional appli-
cation for reinstatement those employees engaged in
an unfair labor practice strike, or in any other
manner discriminating against such employees in
regard to their hire and tenure of employment,
except to the extent permitted by the proviso to
Section 8(a)(3) of the Act, as amended.
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Offer unfair labor practice strikers Gary
Pilcher, Gary Baker, David Birdsong, Wayne Blen-
den, Gilbert Classen, Jeff Louden, Russell Sass,
Donald Blenden, and Bernard Nice reinstatement to
their former positions or, if they no longer exist, to
substantially equivalent positions, without prejudice
to their seniority and other rights and privileges,
dismissing, if necessary, any employees hired as
replacements for such positions. Respondent shall
make whole said unfair labor practice strikers for any
loss of pay they may, have suffered by reason of
Respondent's refusal, if any, to reinstate them, by
payment to each of them a sum of money equal to
what he would have earned as wages during the
period from the date of the- Union's first uncondi-
tional request for reinstatement of the strikers to the
date of Respondent's offer of reinstatement, such
loss to be computed in the manner and with interest
as in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its Omaha, Nebraska, plant copies of the
attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director
for Region 17, after being duly signed by Respon-
dent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell employees not to talk to other
employees who may picket our premises or create
the impression of surveillance of employee union
activities.
WE WILL NOT coercively interrogate our em-
ployees about their union views.
WE WILL NOT tell employees that other employ-
ees will be discharged if seen talking to striking
employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in `the exercise
of rights guaranteed them in Section 7 of the Act.
WE WILL NOT discourage membership in or
activity on behalf of Graphic Arts International
Union, Local 203, AFL-CIO, or any other labor
organization, by refusing to reinstate in their jobs
employees who engage in an unfair labor practice
strike, when they unconditionally ask to be
reinstated.
WE WILL offer the following employees rein-
statement to their former positions or, if those jobs
no longer exist , to substantially equivalent jobs,
without prejudice to seniority or other rights and
privileges, dismissing if necessary any employees
hired to replace them and make them whole for
any loss of pay they may have suffered because of
our refusal to reinstate them:
Gary Pitcher Gilbert Classen
Gary Baker Jeff Louden
David Birdsong Russell Sass
Wayne Blenden Donald Blenden
Bernard Nice
THE COLONIAL PRESS,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 616 Two Gateway Center, Fourth at
State, Kansas City, Kansas 64101, Telephone
816-374-4518.
DECISION
STATEMENT OF THE CASE
GEORGE J. BoTT, Administrative Law Judge: Upon a
charge and an amended charge of unfair labor practices
filed by the above-named Union on March 6 and May 3,
1973, respectively, against The Colonial Press, Inc., herein
called Employer or Respondent, the General Counsel of
the National Labor Relations Board issued a complaint on
May 9, 1973, alleging that the Respondent had engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended , herein
called the Act. Respondent filed an answer and a hearing
was held before me at Omaha, Nebraska, on May 30, 1973,
at which all parties were , represented . Subsequent to, the
hearing, the parties filed briefs which have been consid-
ered.'
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTION OF THE BOARD
Respondent is a Nebraska corporation engaged in the
printing business at its plant in Omaha, Nebraska. In the
course and conduct of its business operations , Respondent
annually sells in excess of $500 ,000 worth of goods and
services, and annually purchases goods valued in excess of
$50,000 from suppliers located outside the State of
Nebraska.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Unfair Labor Practice Strike and Refusal
to Reinstate Strikers
1. Causation
On August 23, 1972 , Respondent's pressroom employees
went on a strike which was still current at the time of the
COLONIAL PRESS, INC. 677
hearing- The complaint alleges that the strike was caused
and prolonged by Respondent's unfair labor practices.'
Robert Powers, president of the Union, testified credibly
that on August 5, 1972, employees in the bargaining unit
voted to request the International Union to sanction a
strike against Respondent. Prior to the vote, which was 6 to
0 in favor of a strike, Carol Nice's discharge, "written
reprimands and oral chewing outs," as well as the
elimination of overtime were discussed, according to
Powers. These issues and Donald Blenden's layoff or
discharge, which was also considered, were the basis for
the vote to strike, according to Powers' credited testimony,
even though he conceded that the status of contract
negotiations was also mentioned in the discussion. Al-
though the strike did not take place until August 23, which
was the day after Respondent discharged six employees
whose terminations- were found to be for cause by the
General Counsel,2 I find that the strike was caused in
significant part by Carol Nice's termination, withdrawal of
overtime, Blenden's severance, and improper warnings and
"harassment" of employees, as Powers described Respon-
dent's conduct, although I also believe that the more recent
discharges and the unsatisfactory state of contract negotia-
tions must also have been factors which caused the strike
to occur when it did.
Respondent contends that since the matters which
Powers said caused the strike occurred more than 6 months
before the charges,in the instant case were filed they are
barred by Section 10(b) of the Act and may not be
considered in this proceeding. I find no merit in this
position. As indicated, these matters were litigated in the
prior proceeding before Judge Funke on the basis of timely
charges. What is being done here is determining the nature
of the strike and deciding on the basis of that decision
whether Respondent's refusal to reinstate certain strikers is
a new unfair labor practice. Since there is also a timely
charge alleging a discriminatory refusal to reinstate
strikers, there is no bar to considering matters outside the
10(b) period in order to shape the proper remedy of
reinstatement .3
2. Prolongation
The complaint alleges five independent violations of
Section 8(a)(1) of the Act which General Counsel contends
prolonged the ` strike which began on August 23, 1973.
Bernard Nice, whose alleged discriminatory discharge was
litigated in the earlier case, testified credibly that sometime
in September 1973, while he was picketing, his brother,
Donald Nice, foreman of the pressroom, advised him not
1 The unfair labor practices which it is alleged caused the strike were
litigated in Cases 17-CA-5301 and 17-CA-5300 (-3, -7, -9, -10 and -11).
That consolidated proceeding was heard by Administrative Law Judge John
F. Funke in January 1973, and on March 22, 1973, Judge Funke issued a
decision in which he found that Respondent had engaged in a variety of
unfair labor practices in violation of Section 8(a)(l), (3 ), and (5) of the Act
prior to the August 1972 strike, including the discharge of Carol Nice; and
discriminatory and unilateral issuance of warnings and ehmination of
overtime, which the Charging Party and the General Counsel contend
entered into the Union 's decision to go on strike Judge Funke did not find
that Donald Blenden's termination, another factor which it is contended led
to the strike, was an unfair labor practice. On July 9, 1973, the Board
affirmed Judge Funke's findings and conclusions with respect to Carol
Nice's discharge , the warnings and the elimination of overtime, but its also
to talk with bindery employee Murtaugh as he crossed the
picket line because Murtaugh would lose his job if seen
talking with the pickets. Donald Nice testified that he did
not tell his brother that Murtaugh could lose his job. He
recalled a conversation with Bernard about Murtaugh, but
he was hazy about the details. Based upon Donald Nice's
demeanor, I conclude that he actually recalled the threat
and was concealing it. I find that his remark to his brother
was coercive, regardless of their relationship, and a
violation of Section 8(a)(1) of the Act.
Tom Murtaugh testified that about 2 months after the
strike commenced Grotzinger, bindery foreman, sent him
to President Swoboda's office. On the way he met Kile,
Respondent's production manager, who asked him if he
would like to work in the pressroom. When Murtaugh
replied that he would not scab by taking a striker's job,
Kile said, "Yes, I see you are still out there talking to guys
on the picket line." Murtaugh explained that he " was
friendly with the pickets and what he did on his own time
was his private business.
When Murtaugh entered Swoboda's office, Swoboda
asked him why he talked with the pickets, and he replied as
he had to Kile. According to his credited testimony,
Swoboda commented that the Union was bad for the
employees and the Company could do more for them if
there were no union in the shop. Swoboda asked Murtaugh
what his professional goals were and'told him that he could
come in to see him at any time and talk about a promotion.
He added that he could not do this if there were a union,
because, with union representation, only the union bar-
gains for the employees and an employee must "take what
everybody else takes."
In January 1973, Murtaugh requested Swoboda to
transfer him to another department. Swoboda indicated
that there were no vacancies in the particular department
at the time, but he added that he would keep the request in
mind. During their' talk, Swoboda again asked Murtaugh
why he continued to speak with the pickets and wanted to
know what he thought about the strike. When Murtaugh
replied that the strikers probably had their "view," as
Swoboda had his, Swoboda stated that he would "prefer"
that he not speak with them. He also indicated that he
would get back to Murtaugh after considering his request
for a different job.
President Swoboda basically denied the main thrust of
Murtaugh's testimony, but his testimony was vague,
occasionally incomprehensible, and somewhat contradicto-
ry. He said, for example, that he did not ask Murtaugh
about his union sympathies or refer to his talking with
found that Blenden had been discriminatorily terminated . The Colonial
Press, Inc., 204 NLRB No. 126,
2 The status of these six persons is discussed infra.
3 N.L.R.B. v Brown and Root, Inc., et al., d/b/a Ozark Dam Constructors
and Flippen Materials Co., 203 F.2d 139,145-146 (C.A. 8, 1953); N.L R B I
Lundy Manufacturing Corporation, 316 F.2d 921, 927 (C A. 2, 1963). Not
only are testimony and findings about the nature of the strike not barred by
Section 10(b) of the Act, as the cases hold, but neither is General Counsel
reitigating matters already litigated, for the unfair labor practice strike issue
was not litigated in the earlier case. It could have been , but it was
unnecessary and premature to have done so because the strike was still
current and the issue of refusal to reinstate may never have arisen. Cases
like Monroe Feed Store, 1 12 NLRB 1336, and New Enterprise Stone and
Lame Co; Inc., 176 NLRB 586, cited by Respondent , are not in point
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pickets, but later he said that on one occasion he did
mention "talking to pickets" to Murtaugh, but only to
caution him not to tell them. anything about company
affairs. I do not believe Swoboda's unclear and condensed
version of his, conversations with Murtaugh, and I find in
accord with the latter's testimony.
By interrogating Murtaugh about his feelings toward the
strikers and about why he spoke to them, and by
requesting him not to speak with them, in a context which
included a discussion of a possible promotion and
expressions of union animus, Respondent restrained and
coerced the employee in violation of his. Section 7 rights.
I find and conclude, as the complaint alleges, that
Respondent coercively interrogated an employee, inter-
fered with his statutory rights by coercively indicating that
he should not talk to strikers, and created the impression of
surveillance of employee union activity, all in violation of
Section 8(a)(1) of the Act.
Murtaugh also 4; testified that in late November 1972,
Foreman Grotzinger spoke to the bindery employees in a
group and told them that - information about what was
going on inside the plant was being transmitted to the
strikers and that their "jobs will be on, the line" if
Grotzinger discovered who had conveyed such informa-
tion.
Grotzinger testified that, on Production Manager Kile's
instructions, he did tell the bindery employees that they
should not talk to pickets about "company business," but
he denied that he said that their jobs "would be on the
line" if his instructions were disobeyed. Grotzinger
explained that he understood Kile's instructions to relate to
keeping the names of customers who were doing business
with Respondent during the strike from the Union because
of possible harassment. He said he made this clear to
employees, because he told a questioner that it was all right
to talk with pickets about other subjects. I was impressed
by , Grotzinger's sincerity and care in testifying on this
issue, and I find that he did not threaten employees with
discharge in violation of the Act, as the complaint alleges.
Although I have found that Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) of the
Act during the strike, I cannot find that they had any
connection with the length of the strike. The acts of
interference, restraint, and coercion which Swoboda
engaged in were directed toward only one employee, and a
nonunit employee at that. Foreman Nice's statement to his
brother that Murtaugh, could be fired' for talking to him
and the other pickets, although coercive, hardly reaches the
level of an unfair labor practice impeding the settlement of
the dispute in the context of the many other issues which
have caused the strike to continue. For, example, Respon-
dent and the Union signed a labor agreement in February
1973, but when Respondent refused to reinstate all strikers,
or other persons who were discharged before the strike who
General Counsel contends are also unfair labor practice
4 Bernard Nice was also discharged on August 22, but his case was
litigated before Judge Funke in Case 17-CA-5300-7. Judge Funke's finding
that Bernard Nice was discrimmatorily discharged was sustained by the
Board.
5 The Union 's February 20 letter was in reply to Respondent's letter of
February 5 advising the Union, in response to its communication of
February 2, referred to above, that the Union's offer was "conditional"
strikers, an issue to be treated next, the Union continued to
picket. I find that the strike has not been prolonged by the
unfair labor practices in violation of Section 8(a)(1) of the
Act found herein.
3. The refusal to reinstate strikers
The strike took place on August 23, 1972. As indicated
earlier, on August 22, Respondent discharged Wayne
Blenden, Gilbert Classen, Jeff Louden, Russell Sass, Gary
Baker, and David Birdsong, all then employed in the
bargaining unit. Although charges of unfair labor practices
based on these discharges were filed, the Regional Director
of the Board' dismissed the charges and his actions were
sustained by the General Counsel of the Board on appeal.4
On February 2, 1973, the Union wrote Respondent,
making what it described as "an unconditional offer for
everyone to return -to work." Although the Union's letter
does not specifically name the individuals fired on August
22 whose charges had been dismissed, it became clear from
later correspondence between the parties that it was the
Union's position that the dischargees were also entitled to
reinstatement because they had been offered reinstatement
during the strike but had refused it. This appears from the
Union's letter to Respondent on February 20, 1973, in
which it stated that Baker, Birdsong, Blenden , Classen,
Louden, and Sass were included in the Union's "uncondi-
tional offer to return to work" because they had been made
offers of reinstatement by Respondent subsequent to their
discharges.5
It is the General Counsel's and the Union's position that
Baker, Birdsong, Wayne Blenden, Classen, Louden, and
Sass have the same status as any unfair labor practice
striker in regard to reinstatement because Respondent
offered them employment after it terminated them for
cause, but they refused the offers and joined the strike. The
evidence which was offered to support the theory follows:
Bernard Nice, brother of Foreman Nice, testified
credibly that approximately a month after the strike began
his brother spoke with him on the picket line and asked
him why he did not return to work and bring his "guys"
with him. He said that Foreman Nice commented that the
Respondent would never sign a union contract and that
"we could sign one of our, oown." " Striker Nice told his
brother that because the Company had fired the employ-
ees, they would stay on strike until a contract was signed.
Bernard Nice said'-that he had many conversations with
his brother to the same effect while picketing during the
strike. On one occasion Foreman Nice responded to his
chiding him about the Respondent's discharge of "eight
employees by stating, "Tell them that there was [sic] jobs
open, just come on in, the door was open."
Birdsong, one of the August 22 dischargees, testified that
he had a conversation with Swoboda, Respondent's
president, in a bar shortly after his discharge in which
since it included the individuals who had been discharged for "illegal"
activities and whose discharges were sustained by the Board. On February
21, 1973, the Respondent replied to the Union's letter of February 20 and
again took basically the same position that the Union's offer to return
strikers to work was "conditional" because it included those persons whose
charges of unfair labor practices had been dismissed and their appeals
denied
COLONIAL PRESS , INC. 679
Swoboda stated that he wished that he had not "gone out"
because he was a good worker. Swoboda ' also stated,
according to Birdsong, that "his door was always open" if
he wanted to come in and talk with him, and he added that
he would pay for any damages to Birdsong's car and "pick
you up from your house, bring you to work, take you home
from work anytime." Birdsong also said that at some place
in their discussion Swoboda advised him that he could
withdraw from the Union by writing to the Union and
requesting it.
Birdsong picketed with a sign which stated, among other
things, that the employees had been "locked out." He
testified that `Swoboda spoke to him on the picket line a
week after he had been discharged and advised him that he
was not "locked out," but that his job was inside, and that
all that was necessary for him to do to have it restored to
him was to come in and talk with Swoboda 6
Birdsong testified, without contradiction, that a few
weeks after he was discharged and began picketing
Foreman Henderson told him that he and Jeff Louden,
another of the dischargees, could have their jobs back,
possibly with a raise in wages.
Birdsong testified that he understood these remarks of
management representatives to be offers of employment
conditioned on his abandoning the Union.
Jeff Louden also testified, without contradiction, that
Henderson spoke with him about reemployment many
times while picketing in the same vein as he had with
Birdsong. He, too, said that he considered the words to be
offers of employment on condition that he drop the Union.
He said he never responded to Henderson's overtures in
any way.7
Swoboda testified that anything he said to Birdsong in
the bar was not intended as an offer of employment. He
said that Birdsong was "confused" and uncertain about
whether he should return to work or remain on strike. He
advised him to make up his mind first and-then come and
talk to him. He also testified that only he had authority to
make offers of employment to those who were picketing
and that he had not delegated that authority to Foreman
Nice.
Foreman Nice also testified that he made no'statements
to his brother about returning to work, but he did tell him
that his "door was always open." He did not, however,
consider this an offer of employment.
Swoboda's testimony about the Birdsong conversation
was inconsistent8 and generally unimpressive. He realized
that the "offer" issue was a sensitive area and carefully
selected and emphasized parts of the conversation to make
it appear that Birdsong, not he, was definitely interested in
Birdsong's return to work.
In my opinion, and I so find, both Swoboda and Nice
attempted to conceal the main thrust of their talks with
6 Production Manager Kile twice invited Birdsong to come into the plant
and talk with him while Birdsong was picketing.
7 Russell Sass , another dischargee who picketed, testified that when he
mentioned replacements hired by Respondent during the strike to Foreman
Nice, Nice said "the door is always open," but he could not remember
anything else that was said by Nice or what he replied, if anything. He, too,
"assumed" that if he did go to the plant and talk with Nice, the subject of
the Union would arise, and he would probably be asked to quit the Union.
8 At one point he flatly stated that Birdsong could have returned to work
if he wished, but at another he hedged and added that it would depend on
employees. Cutting . through all the vague explanations
about what "my door is always open" means when spoken
to a striker, it is clear to me that Swoboda, Nice, and the
other supervisors who spoke to pickets like Birdsong, Nice,
Sass, and Louden were soliciting them to return to their
jobs in order to break the strike. Whether or not the men
were told that their return was conditioned on abandon-
ment of the Union is not too important. The reality is that
Respondent and the strikers and pickets undoubtedly knew
their return to work during the strike meant renunciation
of the Union in fact. I . find that Respondent clearly
indicated to the pickets, including those who had previous-
ly been discharged for cause,, that they ' would be reem-
ployed if they requested it.
General Counsel argues that since Respondent offered
all of the pickets employment, all of them became unfair
labor practice strikers entitled to reinstatement on applica-
tion. Although I have found that offers of employment
were made, I must reject General Counsel's contention
because the offers were never accepted. The most that can
be drawn from the facts surrounding Respondent's
overtures to pickets is that it considered them all
reemployable despite the prior improper actions of any of
them .9 In this sense, Respondent forgave their misconduct
by clearly indicating that they were employable, but it is
something else to say that by virtue of the doctrine of
"condonation," nonemployees became striking employees.
Employees who engage in misconduct do not automati-
cally lose their employee status but only become subject to
discharge. Thus, when an employee tells strikers who have
engaged in conduct for which they might properly be
discharged that they all may return to work, ' he condones
their prior misconduct and waives his right to terminate
them.i° But in this case Respondent discharged six persons
who had engaged in misconduct, thereby severing the
employment relationship. The discharges were no longer
employees under the Act when the strike took place, and
all the offers that Respondent might make to them could
not restore their lost status until they accepted the offers.
This none of them did. The best that can be said for those
who had been previously discharged and then assisted the
Union in striking and picketing is that they are applicants
for employment who may not be discriminated against
because of their union activities, but this is not what the
complaint alleges nor how the case was tried."
In his excellent brief , counsel for the Charging Party
concedes that in practically all the cases where the doctrine
of condonation has been applied the misconduct has been
found to have been condoned prior to discharge, whereas
his lawyer's advice and availability of employment.
9 The dischargees had been terminated for engaging in long union
meetings on company time.
10 Wallick, Sam, et at., d/b/a Wallck and Schwalm Corp., and Spring
Mills Apparel, Inc, 95 NLRB 1262, 9264; Dorsey Trailers, inc., 80 NLRB
478,483.
11 The distinction between reinstatement and reemployment is well
established See N.L.R.B. v. Textile Machine Works, Inc., 214 F 2d 929,
933-934 (C.A. 3); N.L.RB. v. Childs Company, 195 F.2d 617, 619-621 (C A
2); N.L.RB. v. Pennwoven, Inc, 194 F.2d521, 525-526 (C.A. 3). _
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here the individuals were lawfully discharged before they
were solicited to return to work-12 It also appears from the
cases that the condonation rule has been applied only in
cases of strikers who have engaged in strikes in violation of
contract or have been liable to discharge for other
misconduct in the course of the strike.13 No cases have
been called to my attention, and to my knowledge there are
none, where the facts parallel the facts in this case and
where it has been contended and held that employee status
legally extinguished is revived by an unaccepted offer of
employment.
In two cases, however, condonation was found where
there had been a prior severance, or an attempt to sever,
the employee relationship. In M. Eskin & Sons,'4 it
appeared that employees struck in violation of a contract
and were in effect told that they were discharged when
they reported for work on the following day. The employer
sought a State court injunction against picketing immedi-
ately, and during the proceeding, settlement terms,
including reinstatement of all the strikers, were agreed
upon, but thereafter the employer refused to reinstate some
of the strikers. The Board found condonation and stated:
Condonation indicates as employer's willingness to
"wipe the slate clean" and to continue the employer-
employee relationship notwithstanding the fact that
events occurred which would have justified its termina-
tion, and notwithstanding the fact that it was at one point
terminated because of such events. (Emphasis sup-
plied.) 15
In M. Eskin & Sons,- the Board cited E. A. Laboratories,
Inc.,16 where the Board had concluded that when the
employer's president had announced in a court proceeding
that "these people can come back to work," the employer
waived its prior discharge of union leaders and more active
union members who had engaged in an illegal strike, and
that they became "undischarged strikers" whom Respon-
dent had to reinstate.17
Principally on the basis of M. Eskin & Sons and E. A.
Laboratories, it is argued that to make the fact of discharge
prior to the strike conclusive would be to make a fetish out
of formalism. Although the argument is troublesome, I
think the cases are distinguishable on the basis of principle.
First of all, both cases involved strike settlement agree-
ments, which it needs no citations to show the Act
encourages. Both agreements to return all strikers to work
were made in court proceedings involving - the labor
dispute, and the strikers acted in reliance on the promises
to reinstate them. In the instant case there were no mutual
promises; as indicated above, no one accepted Respon-
dent's offer.18 Having agreed to reinstate all strikers, and
the strikers having agreed to return to work, it is not
difficult on the basis of the offer and acceptance to
characterize the result as a restoration of "employee
status" to the discharged strikers.19
A second real difference in the cases is that employers
often engage in "tactical discharges" of strikers for reasons
which they may or may not later want to rely on at the end
of the strike. Not only is it desirable to prevent a striker
from easily losing the employee status which the Act
promises him if he strikes, but it is not always certain that
the employer actually intended to effect a complete
severance of employment 20 In such circumstances there
are greater reasons of policy for inferring "condonation"
and concluding that a striker's status as an "employee"
continues regardless of how his employer characterizes his
status during the strike than there is where the employer
has been legally discharged before the strike ever began.
He was not a "striking employee" when the strike began,
and it seems that in balancing the rights of employees to
strike against the right of employers to discharge them for
cause and to replace them, it should take more than
"condonation" or an unaccepted offer of employment to
turn a dischargee into a striker and then into an unfair
labor practice striker entitled to reinstatement, upon
application, even if replacements legally hired must be
discharged.
I find and conclude that Baker, Birdsong, Wayne
Blenden,, Classen, Louden, and Sass are not employees on
strike because of Respondent's unfair labor practices and
therefore entitled to reinstatement upon application. I do
find, however, that any other persons who struck or joined
the strike after it commenced are unfair labor practice
strikers.21
Since the Union's applications to return to work made
on behalf of strikers were not unconditional because they
included the dischargees, I find and conclude that
Respondent did not violate Section 8(a)(3) and (1) of the
Act when it rejected them.
12 See for example, Brantly Helicopter Corporation, 135 NLRB 1412;
Union Twist Drill Co, 124 NLRB 1143, California Cotton Cooperative
Association, Ltd, 110 NLRB 1494, 1500, Alabama Marble Company, 83
NLRB 1047; The Carey Salt Company, 70 NLRB 1099.
13 Cases cited In. 12, supra See also Stewart Die Casting Corporation v.
N.L.R.B, 114 F.2d 849 (C.A 7); Plasti-Line, Incorporated, d/bfa Sign
Fabricators, 123 NLRB 1471, reversed 278 F.2d 482 (C A. 6, 1960); N.L.R B.
v. E A Laboratories, Inc, 18& F.2d 885 (C.A. 2). American River
Constructors, 163 NLRB 551, involved improper concerted activities
engaged in and condoned prior to a refusal to rehire, but it may be viewed
as really a "pretext" case
14 135 NLRB 666, enfd. 312 F.2d 108 (C.A. 2, 1963).
15 Id at 667.
16 86 NLRB 711, enfd N.L.R.B. v. E. A Laboratories, Inc., 188 F 2d 885
(C A. 2).
17 Id at 713.
18 In E. A. Laboratories, Inc., 80 NLRB 625,662-663, 673-674, the Trial
Examiner found that the strikers accepted the Respondent's offer by going
to the plant and that they did this "in reliance" on the employer's promise.
In The Carey Salt Company, 70 NLRB 1099, there was also a strike
settlement agreement which was violated by the employer.
19 Carey Salt Company, supra, at 1101.
20 In E. A. Laboratories, Inc, 80 NLRB 625, 673, the Trial Examiner
thought that the strikers actually had not been discharged and that the
employer had engaged in a "tactical mamiever" is stating that they were.
See also, Columbia Pictures Corporation and Association of Motion Picture
Producers, Inc., et at, 82 NLRB 568; Fafnir Bearing Co., 73 NLRB 1008,
Home Beneficial Life Insurance Company, Inc v. N.L.R.B., 159 F.2d 280
(C.A. 4)
21 Although the General Counsel alleged in Case I7-CA-5300-3, tried
before Judge Funke, that Gary Pitcher had been discriminatorily dis-
charged, Judge Funke found that he had not been discharged but had
voluntarily joined the strike. It would appear, therefore, that Gary Pilcher is
the sole unfair labor practice striker entitled to reinstatement.
COLONIAL PRESS, INC. 681
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in_ commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By engaging in the conduct found to be unfair labor
practices in section III; A, 2, above, Respondent violated
Section 8(a)(1) of the Act.
4. The strike which took place on August 23, 1972, was
caused by Respondent's unfair labor practices.
5. Said strike was not prolonged by Respondent's
unfair labor practices.
6. Any employee who struck on August 23, 1972, is an
unfair labor practice striker who is entitled to reinstate-
ment upon unconditional application for employment.
7, Gary Baker, David Birdsong, Wayne Blenden,
Gilbert Classen, Jeff Louden, and Russell Sass are not
unfair labor practice strikers entitled to reinstatement- upon
application.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , it shall be recommended that
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the'policies of the
Act:
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
and pursuant to Section 10(c) of the Act , I hereby issue the
following recommended. -
[Recommended Order omitted from publication.]