The Colonial Press, Inc.

- 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.]