Angle Industries, Inc.

KANSAS REFINED HELIUM COMPANY 443 Kansas Refined Helium Company , a Division of Angle Industries, Inc. and Oil, Chemical, and Atomic Workers International Union, AFL-CIO. Cases 17-CA-3021, 17-CA-3021-2, and 17-CA-3378 December 10, 1974 SUPPLEMENTAL DECISION AND ORDER On June 25, 1969, the National Labor Relations Board issued Decisions and Orders in the above-enti- tled proceedings,' finding that the Respondent had discriminated against Russel L. Bishop, John Harris, Russell Sims, Arel Rodgers, Dwayne Johnson, and Thomas Garrett in violation of Section 8(a)(1), (3), and (5) of the Act, and directing that the Respondent make the discriminatees whole for any loss of pay suffered as a result of said violations. On October 10, 1973, the Regional Director for Re- gion 17 issued a backpay specification and notice of hearing, to which the Respondent duly filed an answer. A hearing was held before Administrative Law Judge Joel A. Harmatz on February 26 and 27, 1974, for the purpose of determining the amount of backpay due the discriminatees. On April 23, 1974, Administrative Law Judge Harmatz issued the attached Supplemental Deci- sion, in which he found that the discriminatees2 were entitled to the following payments, upon which interest was to accrue at 6 percent per annum until paid, com- puted on the basis of the quarterly amounts of net backpay due, less any tax withholding required by law; Dwayne A. Johnson, $974.90; Russell Bishop, $8,828.40; John Harris, $13,583.20. Thereafter Respondent filed exceptions to the Administrative Law Judge's Supplemental Decision and a support- ing brief. Counsel for the Regional Director filed an answering brief. The Board has considered the record and the at- tached Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge to the extent consistent herewith. The illegal discharges herein occurred in September 1966. Thereafter, in November 1966, the Regional Di- rector issued the original complaint in this case. However, before the matter was heard by the Board, the General Counsel petitioned the district court in Kansas for a temporary injunction seeking various forms of relief, including an order to reinstate the six dischargees pending final determination of the matter by the Board. On April 5, 1967, the district court I George A. Angle, d/b/a Kansas Refined Helium Company, 176 NLRB 1032 (Cases 17-CA-3021; 3021-2); George A. Angle, d/bla Kansas Refined Helium Company, 176 NLRB 1037 (Case 17-CA-3378). 2 Rodgers and Sims were dropped from the instant specification by an all-party agreement upon payment of specified sums, pending final determi- nation of liability in related litigation, and Garrett accepted a fixed sum in full satisfaction of his claim. granted the petition, which was affirmed on an appeal by the Tenth Circuit Court of Appeals on August 28, 1967. In the interim period, not having been successful in seeking a stay of the order pending appeal, Respondent, on April 25, 1967, wrote a letter to each of the six discriminatees offering him reinstatement to his former position. The letters made it clear that the offer was pursuant to the court order and was made "pending the final determination of this matter by the Board." None of the discriminatees involved here accepted the offer. Thus, at this stage of the proceedings, Respondent has raised the issue of whether or not its offers of reinstate- ment, made pursuant to an injunction obtained by the Board under Section 10(j) of the Act, were sufficient to impose a duty upon the discriminatees herein to either accept the offers or be guilty of a willful loss of interim earnings. The Administrative Law Judge found that, inas- much as the offers were limited by the language of the court order, the discriminatees were not obligated to accept them. We disagree. There is no contention that Respondent did not fully comply with the district court's order to offer these men reinstatement, pendente lite. Respondent having been careful to follow the court's order exactly, we see no reason not to give these offers of reinstatement the same status as any other valid, interim offer. Though it is true that, should Respondent have prevailed before the Board, the alleged discriminatees' reinstatement would in all likelihood have come to an end, that would have been an implied risk regardless of whether or not Respondent expressly so stated. Moreover, while the discriminatees would have been "taking a chance" in accepting Respondent's interim offer, depending on the outcome of the litigation, so also was Respondent, in the sense that, pursuant to the court's order, it was being required to do something which, ultimately, the Board or'courts might find it had not had an obligation to do. Since Respondent offered interim employment to these employees, to their old jobs and at their old rates, at the express request of the Board under Section 10(j), we are hard-pressed to say this was not satisfactory, equivalent interim employment, sufficient to toll Re- spondent's backpay liability during this period. Since Respondent's offers were temporary in nature, for the duration of the litigation, we would not find them to be substitutes for the normal, permanent offer required of employers to terminate final backpay liabil- ity for 8(a)(3) violations. Respondent was apparently of this view also, since, shortly after the Supreme Court denied certiorari in this case, Respondent concedely offered unconditional permanent reinstatement to each of the discriminatees here involved, sufficient to satisfy 215 NLRB No. 67 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its obligations under the terms of the Board and court orders. REMEDY The parties have stipulated to Respondent's backpay liability, should the Board find the April 15, 1967, offers to have constituted valid, interim offers. The amounts awarded below are in accordance with that stipulation. ORDER Upon the basis of the foregoing, it is ordered that the Respondent, Kansas Refined Helium Company, a Division of Angle Industries , Inc., Wichita, Kansas, its officers, agents, successors, and assigns, shall pay to the employees involved in this supplemental proceeding, in the manner, described in the attached Supplemental Decision, the amount set forth opposite their names below: Dwayne A. Johnson $ 527.87 Russell Bishop 2,650.80 John Harris 2,297.46 MEMBER FANNING and MEMBER JENKINS , dissenting: Contrary to the majority, we agree with the Ad- ministrative Law Judge, for the reasons stated in this Decision, that Respondent was not relieved of its back- pay liability for the period during which it had offered temporary reinstatement to discriminatees Bishop, Johnson, and Harris pursuant to a court injunction. Admittedly, this Respondent was obligated at all times to offer these discriminatees unconditional and full reinstatement to their previous jobs and to make them whole for all losses sustained as a consequence of Respondent's unfair labor practices , less interim earn- ings. With respect to the latter provision , the law re- quires that the discriminatees themselves make an hon- est effort to find interim employment. If they deliberately refuse to make such an effort or make an inadequate effort, the offending employer, here the Re- spondent, despite its wrongdoing, is relieved of backpay liability. Obviously, the purpose of this qualification upon the discriminatees' right to backpay is not to ameliorate the wrongdoer's obligations, but in the pub- lic interest to encourage all able-bodied workmen to work rather than loaf. Contrary to the majority, the Respondent's offer of temporary court-ordered employment is not entitled to the same consideration as "any other valid offer." The fact of the matter is that such an offer, coming from this Respondent, is not a valid offer and until this date has never been considered such by the Board. The only valid offer this Company, as distinguished from other companies, could offer these discriminatees was uncon- ditional, permanent reinstatement to the jobs from which they had been unlawfully discharged. To hold, as the majority does, that a lesser offer can operate to reduce the Respondent's backpay liability defeats the whole purpose of the Board's historic remedial order requiring reinstatement with full backpay where, as here, an employer has been found to have committed unfair labor practices going to the heart of the statute. The issue of a willful loss of earnings cannot and should not be attached to an offer of employment from a wrongdoing respondent . No employee who has been the object of loss of his job and livelihood in violation of Federal law to such an extent that a judge would require reinstatement pendent lite should be forced to accept such employment against his will or lose back- pay. That rule operates to encourage discriminatees to accept reasonable offers of interim employment. It should not be used, as the majority uses it here, to coerce them into accepting a job with an unwilling employer and submitting to the psychological strains implicit in the carefully calculated terms of the respon- dent's offer. It is clear, as a matter of law, from the numerous cases decided by this Board and the courts , see, e.g., J. H. Rutter-Rex Manufacturing Comany, Inc., 206 NLRB 656 (1973); Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177, 197-200 (1941), that it is the obligation of Respondent to offer full, permanent, and unconditional reinstatement to these discriminatees. If, as the majority here holds, this were not the case, then the risk of accepting interim offers would, and does in this case, fall on the innocent employees rather than the guilty employer. Regardless of the reason why the Re- spondent made these offers, the majority's decision in this case serves to shift the risk of accepting tenuous employment to the discriminatees, who, by virtue of having been discharged initially for exercising rights which this Board has been entrusted with the duty of protecting, are already understandably uncertain in their employment status and therefore less likely to accept thus undermining the essential nature of the Board's remedial power. By cutting off Respondent's backpay liability as of the date these conditional offers were refused, the majority has taken a principle deve- loped to require fairness from discriminatees in seeking interim employment and turned it into a rule that effec- tively discourages violators of the Act from providing a full remedy. A wrongdoing employer may choose to litigate to the end without reinstating the employee, and assume the risk of full reimbursement if he loses and no reimbursement if he wins. Or he may eliminate his losses, and his and employee's risk, by offering full KANSAS REFINED HELIUM COMPANY and unconditional reinstatement to the employee. But we do not think the wrongdoer can or should have it both ways, and if he chooses not to reinstate the em- ployee, unconditionally, then he must bear the conse- quences and pay the employee for lost wages. To hold otherwise would be to frustrate the "make whole" remedy the act establishes. Moreover, the record shows, as the Administrative Law Judge pointed out, that both Johnson and Harris were gainfully employed at the time of Respondent's offer of April 25, 1976. At that time Johnson had moved to Carrollton, Texas, and Harris was living in Seattle, Washington. While the court did include a re- quirement in its injunctive order that Respondent recompense these men for travel costs as part of the interim offer of reinstatement, from our standpoint it would be unreasonable to require these men to abandon their permanent jobs and newly established lives, to return to an employer on a limited basis, at the risk of ultimately being without any employment and having to renew their residences at distant locations. It is therefore clear, even under the majority's view of this case, that they were not incurring willful losses by refusing to accept the Respondent's legally phased of- fer. Johnson and Harris made substantial earnings dur- ing all four quarters of 1967. The public interest does not require more of them. Nor was their conduct such as to warrant an impingement upon the effectiveness of the Board's remedial order addressed to this Respond- ent. With respect to Bishop, he did, indeed, initially accept Respondent's April 25 offer. Thereafter, however, Respondent sent the discriminatees another letter on June 9, 1967, gratuitously informing them that it had filed a request that the order of temporary in- junction be vacated and dissolved. Treading on the verge of contempt of court, Respondent attempted to dissuade the discriminatees from accepting reinstate- ment by suggesting that they might not want to "dis- rupt the status that you have been in for over 8-1/2 months to return to KRH on a temporary reinstate- ment basis set forth in the order of temporary injunc- tion." Faced with the possibility that the injunction would soon be vacated and the Respondent would then discharge him a second time, Bishop, declined the offer. In the circumstances it seems to us, far from incurring a willful loss, he acted as a prudent working man. It was apparent to him that Respondent's offer was not made in good faith, that it would be retracted as soon as legally feasible, and that, if he accepted, he would be precluded from seeking desirable employment with a willing employer. In our opinion, none of these discriminatees incurred any willful loss of earnings by rejecting Respondent's reluctant offers of interim employment. We believe, on the contrary, that these employees acted reasonably 445 and properly in their own interest and for their own security. We would not hand this Respondent a bonanza which does not benefit the public and which impairs the effectiveness of the Board's remedy in this case. SUPPLEMENTAL DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge:` This is a supplemental backpay proceeding involving determination of the amounts of backpay due under a Board Decision and Order dated June 25, 1969, wherein the Board found that Respondent' discriminated against Russell L. Bishop, John Harris, Russell Sims, Arel Rogers, Dwayne Johnson and Thomas Garrett in violation of Section 8(a)(1), (3), and (5) of the Act,? and a Decision and Order issued by the Board on June 25, 1969, finding that Respondent had engaged in further discrimination against Arel Rodgers in violation of Section 8(a)(1), (3), and (4) of the Act.' Said Orders in- cluded the customary reinstatement and make whole remedial provisions. On September 10, 1971, the United States Court of Appeals for the District of Columbia entered its decree enforcing the respective orders of the Board in their entirety. On January 17, 1972, the United States Supreme Court denied Respondent's petition for a writ of certiorari. Subsequent to the issuance of the Board's Orders and the entry of the court decree, the Regional Director for Region 17 on behalf of the Board and pursuant to Section 102.52, et seq., of the Board's Rules and Regulations, Series 8, as amended, issued on October 10, 1973, a backpay specification and notice of hearing, setting forth therein the computation of gross backpay due to Bishop, Harris, Sims, Rodgers, John- son, and Garrett, as well as admissions of interim earnings, and the net backpay allegedly due to said discriminatees. An answer to the backpay specification was duly filed by the respondent on November 9, 1973, and followed by an amend- ment thereto dated December 14, 1973. Pursuant to notice, the supplemental hearing was held before me in Wichita, Kansas, on February 26 and 27, 1974, for the purpose of determining the amount of backpay due to the discriminatees. Upon the entire record in this case, including observation of the witnesses and their demeanor while testifying, and after careful consideration of the posthearing briefs, I make the following: FINDINGS OF FACT Accommodations Made at the Hearing In the course of the hearing, a variety of agreements were reached on the part of counsel for the Regional Director and the Respondent which narrowed to a single question the multitude of issues that had existed on the face of the plead- i The named Respondent as set forth in the caption appears as amended at the supplemental hearing. 2 Russell A. Angle d/b/a Kansas Refined Helium Company, 176 NLRB 1032 (Case 17-CA-3021 and 17-CA-3021-2). 3 GeorgeA. Angled/b/a Kansas Helium Company, 176 NLRB 1037 (Case 17-CA-3378). 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rags. Prior to a definition of that issue , it might be helpful to outline the matters removed from present controversy as a result of these amicable dispositions. First with respect to Are] Rodgers and Russell Sims, it is noted that an accord was reached which provided the basis for my granting a motion by Respondent to drop them from the instant litigation without prejudice . In this regard, I note that the allegations in the specification relative to Rodgers and Sims were at all times of an interim nature . Thus, it was the position of the Regional Director that a complete and final determination of the amounts due them would be inap- propriate at this time in view of certain presently pending collateral litigation . For it was asserted that a civil contempt proceeding against Respondent involves issues relative to Rodgers and Sims the determination of which , could conceiv- ably affect the amounts ultimately due them In consequence, it was the expressed intention of the Regional Director to issue a further supplemental backpay specification, following disposition of the contempt proceeding, pursuant to which any remaining amounts due Rodgers and Sims, not asserted under the instant specification , would be claimed. Respond- ent objected strenuously to the dual litigation that would result from the procedure that the Regional Director elected to follow. After Respondent's objection was overruled and its motion to strike Sims and Rodgers was denied, and all party agreement was reached whereby Sims and Rodgers would be dropped from the instant specification upon relatively im- mediate payment of certain specified sums, consisting of both interest and principal . This agreement, in my judgment effec- tuated statutory policies, by providing some economic relief to the discriminatees, while at the same time enhancing the administrative process by avoiding two separate hearings to determine the amounts due the same individuals . Pursuant thereto, I granted Respondent's unopposed motion to sever Rodgers and Sims, both of whom stated their assent to this consequence on the record, from the instant specification, a ruling which leaves the entire backpay claim of Rodgers and Sims to resolution through a single supplemental specifica- tion, if necessary, and litigation at a single hearing at a time when all relevant facts are available. Secondly, with respect to Thomas Garrett it was agreed at the hearing that Garrett would be paid a fixed sum consisting of principal and interest in full satisfaction of his backpay claim. Garrett stated for the record his assent to this arrange- ment which disposed of all issues relative to his claim. Finally with respect to the remaining discriminatees , Bishop, Harris, and Johnson, the parties at the hearing reached full agree- ment on the mechanics of computing their net backpay within the backpay period asserted by the Regional Director. However, the Respondent in entering these stipulations pre- served its position that, contrary to the Regional Director, the backpay cutoff date for all three was in the spring of 1967, when the Company allegedly offered them reinstatement, rather than, February 1, 1972, as alleged in the specification as to Johnson, August 21 , 1970, as alleged as to Bishop, and February 16, 1972, as alleged as to Harris Accordingly, the sole remaining issue in this supplemental litigation is whether a valid offer of reinstatement was made so as to terminate any and all backpay obligations as of the second quarter in 1967. In the interest of expediting this determination, the parties agreed to submit documents evidencing their agreement as to the specific amounts that would be due Johnson, Bishop, and Harris under either cutoff date or dates. Pursuant thereto, after close of the hearing, said documents were forwarded to me and marked Joint Exhibit 2(A-C) and 3(A-C); they are hereby received in evidence and made a part of the record. Accordingly, there being no dispute as to the net amounts due, other than that which turns upon the propriety of Re- spondent's 1967 offer of reinstatement, I shall confine myself below to this limited question, which is the sole matter in controversy at this time. Concluding Findings The issue as to the validity of the 1967.offers of reinstate- ment herein presents a legal question somewhat novel to the administration of Board backpay remedies. The undisputed facts, show that following the filing of charges in Case 17-CA-3021 and Case 17-CA-3021-2 in September 1966, and the issuance of a complaint thereon, a proceeding was instituted in the United States District Court for the District of Kansas by the Regional Director pursuant to Section 10(1) of the Act.' The petition in said 10(1) pro- ceeding alleged, inter alia, that there was reasonable cause to believe that Arel Rodgers, Russell Sims, Dwayne Johnson, Russell Bishop, John Harris, and Thomas Garrett had been discharged on September 20, 1966, in violation of Section 8(a)(3) and (1) of the Act. By way of relief, the 10(1) petition, included the prayer set forth below requesting that the court issue an order: (iii) Directing the respondent to reinstate the six dis- charged employees pending the final determination of this matter by the Board. On April 5, 1967, the district court issued an injunction, which, inter aka, ordered the Employer to reinstate the six dischargees pending a final disposition of the issues by the Board, and ordered the Employer to tender sufficient tran- sportation costs to permit the dischargees and their families to return to work. A motion by Respondent to stay the temporary injunction pending appeal was denied by the district court on April 24, 1967. On May 3, 1967, the United States Court of Appeals for the Tenth Circuit entered an Order denying Respondent's motion to stay the injunction pending appeal. Thereafter, the Respondent sought review of the tempo- rary injunction in the Tenth Circuit Court of Appeals. On August 28, 1967, said court issued its decision, denying the 4 Sec 100) of the Act is designed to allow the Board to secure interim relief with respect to alleged unfair labor practices prior to a determination of their merits, and provides as follows (l) The Board shall have power, upon issuance of a complaint as provided in subsection (b) charging that any person has engaged in or is engaging in an unfair labor practice, to petition any district court of the United States (including the District Court of the United States for the District of Columbia), within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or re- straining order Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restrain- ing order as it deems just and proper KANSAS REFINED HELIUM COMPANY 447 appeal, and affirming the district court's order, with a minor modification to the transportation expense provision thereof. In the interim, Respondent, by identical letters dated April 25, 1967, and over signature of George A. Angle, wrote each of the six discriminatees, including Johnson, Bishop, and Davis, stating as follows: Judge Brown has now ruled that you are to be offered reinstatement to your former position pending the final determination of this matter by the Board; and that we are to pay transportation costs sufficient to enable you and your family to return to work, if you accept rein- statement to your former position pending the final determination of this matter by the Board. In order for the employees and their families to make their plans and in order for me to make the necessary arrangements regarding the present personnel at the KRH plant, and to expedite Judge Brown's temporary injunction, will you please let me know if you desire to return to work pending the final outcome of this KRH matter. If so, please calculate transportation costs suffi- cient to enable you and your family to return to work. In case you do not desire to return to work pending the final outcome of the KRH matter before the NLRB, it is not necessary that you calculate these transportation costs. In either event, will you complete the attached information and return it to me in the enclosed envelope. Each of said letters, contained the following questionnaire as an attachment: To: KANSAS REFINED HELIUM COMPANY 1720 Wichita Plaza Wichita, Kansas 67202 1. I will accept reinstatement to my former position pending the final determination of this matter by the Board. Check one. Yes No 2. (If the answer to No. 1 is Yes) Transportation costs sufficient to enable me and my family to return to work are $ . Such costs are computed as fol- lows: On May 3, 1967, identical letters, over the signature of George Angle were sent to Johnson, Davis, and Bishop, stat- ing as follows: This will confirm that you are offered immediate rein- statement to your former position pending the final determination of this matter by the NLRB. A check for transportation costs claimed in your letter of April 31, 1967, is enclosed. If you are not accepting temporary reinstatement as outlined above, this check is not to be cashed and instead is to be returned immedi- ately to me. Respondent contends that these offers of reinstatement, pursuant to the district court's 10(j) order were adequate to toll backpay, arguing that they were valid offers and sufficient to impose a duty on the discriminatees to either accept them or be guilty of a willful loss of earnings.' The General Counsel, in asserting the inadequacy of said offers points to the fact that they were to temporary positions, and hence failed to qualify under statutory remedial policy as imposing any duty of acceptance on the discriminatees. I find merit in the General Counsel's position. Concededly, the jobs offered by Respondent in the above correspondence were identical to those held by the dis- criminatees prior to their discharge, and hence the offers quite clearly cannot be faulted on that ground. On the other hand, considering the total circumstances surrounding these offers, a serious question exists as to whether the duration of the employment offered was such as to render them deficient and to relieve the discriminatees of any obligation to accept and return to the employment from which they had been unlawfully terminated some 8 months earlier. In its brief, Respondent argues that there should be "no concern in the instant case about the duration of the offer . . . " since it would protect the discriminatees "throughout the entire pro- ceedings until the matter was `finally determined' by the Board." I do not ascribe to this interpretation of the evidence. It is true that, by virtue of their terms, the offers incor- porated the language of the district court, by reciting that reinstatement was offered "pending the final determination of this matter by the NLRB." However, the offer also suggested to the discriminatees that these offers were not being offered voluntarily but, rather, were effected by Respondent in order to comply with the district court order. This, in my opinion, is the vice in Respondent's position; for it is apparent that immediately after issuance of the 10(j) order, Respondent sought its stay at both district court and appellate levels, while all the time seeking its dissolution through an appeal to the Tenth Circuit. The evidence further establishes that Respondent intended its offers to be viable only so long as the 10(j) order refrained in effect, and I am satisfied that through Respondent's com- munication with the discriminatees, the latter were led to believe that the offers would be withdrawn if Respondent's challenge to said order proved successful. Indeed, this addi- Dated this day of , 1967. Signature 5 In accordance with well-established principle, discriminatees, who reject invalid offers of reinstatement, cannot, for that reason, be said to have incurred a willful loss of earnings . Leeding Sales Co., Inc., 155 NLRB 755, 757 (1965). Therefore, the sole issue for decision is whether or not the offers were valid. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional limitation on the duration of the offers explicitedly appeared in a letter sent to Bishop, Garrett, and Rodgers on June 9, 1967, again over signature of George A. Angle, advis- ing as follows: In my last letter to you dated May 25, 1967, I told you I was going to the KRH plant. Following my return from the plant, I received a copy of an order from the NLRB indicating that the Union has withdrawn its re- quest for an election and vacating the original order that an election should be held. A copy of this order is en- closed. In view of the effect which this new order by the NLRB would seem to have, our attorney has filed a request that the order of Temporary Injunction previ- ously issued by Judge Brown in Wichita, also be vacated and dissolved. A copy of this motion is also enclosed. It is my understanding that two of you are employees and one has been self-employed in some connection with a family business. I am sending this information, since it appears these latest developments might affect your decision to disrupt the status that you have been in for over 8-1/2 months to return to KRH on a temporary reinstatement basis set forth in the order of temporary injunction. I am also enclosing other proceedings since the court hearing in January since you were not present for these proceedings and may not have this information. Would you please advise me at your earliest convenience as to whether or not you intend to accept the offer of temporary reinstatement at KRH under the temporary injunction order by Judge Brown in view of these new circumstances. Any ambiguity that may have existed as to the Company's intention to retract the offers upon elimination of the 10(j) injunction was erased by this letter, which in plain terms called on discriminatees to consider the risk of the Com- pany's new grounds for challenging the 10(j) order before disrupting their intenm employment and returning to their former jobs. Clearly implicit in such admonition was the message that the offers were to temporary positions and coex- tensive in duration with the life of the, then under challenge, 10(j) order. The General Counsel concedes in his brief that Board precedent does not treat squarely with the circumstances presented here. However, commonsense and an appreciation for the considerations underlying the conventional remedy for unlawful discharges lead to the conclusion that the dis- criminatees were under no obligation to respond to the offers involved here. Under the statutory remedial scheme, backpay and rein- statement remedies familiar to unlawful discharge cases are designed both to redress the losses incurred by victims of discrimination, and at the same time to erase the effects of the unfair labor practice. The purpose of reinstatement is the "restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination."' An offer of reinstatement to those victi- mized by discrimination has been described as "the only 6 Phelps Dodge Corp v N..LR B., 313 U S 177, 194 sanction which prevents an employer from benefiting from his unfair labor practices through discharges which may weaken or destroy a union . . . "' and ". . . is not only the final achievement of the Act's protection in respect to the [discharged] employee but is the most realistic and articulate demonstration of the Act's protection to other employees."' Backpay, at the same time, in addition to sav- ing whole the employees, operates as a means whereby wrongdoers are encouraged to make genuine offers of rein- statement, by abating additional backpay liability when such an offer is made. However, the achievement of statutory ob- jectives requires that such an offer be "immediate and full," and it is only when it is ". . . not possible to restore the absolute status qud' that something less is permitted.' It would clearly be inconsistent with this scheme, were the Board to cut off backpay, on the basis of an unanswered reinstatement offer which lacks guarantees that tenure of employment will not be curtailed by the same considerations leading to the original terminations. Discnminatees can hardly be expected to abandon their intenm endeavors,1° and return to an offending employer, pursuant to offers of reinstatement made under circumstances which suggest that, upon acceptance and a return to work, the discriminatees might suffer further job dislocation for reasons other than just cause. Here the offers were neither unconditional , nor guarantees of employment unfettered by the causative influence of the original discharges. They were made pursuant to court order and dependent on the continuing viability of that order. At the same time, the Respondent was actively seeking a dissolu- tion of the court order. Discriminatees, if required to accept reinstatement under such conditions, perforce would also be required to accept the risk that Respondent's efforts to over- turn the 10(j) injunction might prove fruitful. For, the dis- criminatees were on notice that dissolution of the court order would again result in their termination ." The termination of backpay cuts too deeply into the remedial formula in dis- 7 Local 833, International Union, United Automobile, Aircraft and Agricultural Implement Workers ofAmerica [Kohler Co.] v NLR B, 300 F 2d 699, 703 (CAD C , 1962) 8 Burn up and Sims, Inc, 157 NLRB 336 (1966) 9 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827, 829 10 Johnson and Harris had substantial interim earnings in all four quarters of 1967 Harris had then left the Wichita area and was then gainfully em- ployed in Seattle, Washington Bishop initially accepted the offer, but apparently was persuaded by the risks defined in Angle's letter of June 9, 1967 (set forth in the above text), and on the basis thereof, he apparently reconsidered Bishop, on cross- examination by Respondent's counsel, testified that in June of 1967, he "declined temporary reinstatement " 11 The fact that this infirmity in the offers related to Respondent's legiti- mate efforts to overturn the 10(1) injunction lends no solace to the Respon- dent's position Offers of reinstatement, where made by employers seeking to defend the validity of discharges in a subsequent Board proceeding, are always under protest The fact that the form of protest involved here con- sisted of an effort to overturn 10(1) injunction should in no sense be con- strued as requiring the discriminatees to disrupt their interim employment and accept offers of reinstatement which might well be rescinded long in advance of a Board determination of the merits of their cause Whatever the nature of the protest, the offer made, under such conditions, to qualify as valid and genuine , must be free of express or implied reservations upon restoration of the status quo The fact that the offers herein were subject to recision in the event the injunction was dissolved renders them no less conditional than would be the case where offers are subject to defeasance on other contingencies KANSAS REFINED HELIUM COMPANY 449 charge cases to permit a wrongdoing employer to impose such conditions of risk on discriminatees and then claim that, in failing to assume such risks, the discriminatees forfeited further rights to reimbursement. Offers which, as here, through implicit conditions, express less than an employer's willingness to restore the status quo ante-at least until the discharge issues are resolved on the merits-do not effectuate statutory remedial objectives, and hence cannot fairly be con- strued as imposing a duty of acceptance upon discriminatees. For the above reasons, as the offers of reinstatement in the spring of 1967 did not constitute genuine unconditional offers of reinstatement, made in good faith, and since no further valid offers were made prior to the cutoff dates alleged in the specification, I find that the amounts of backpay'Z due are as claimed by the General Counsel and as set forth in Joint Exhibit 3(A-C). [Recommended Order omitted from publication.] 12 Interest is to be added at the rate of 6 percent per annum on the respective amounts of backpay due, computed in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962) The net backpay awards are to be reduced by such tax withholdings as are required by Federal and State laws