Kansas Refined Hellum Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 July 6, 1977 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On June 25, 1969, the National Labor Relations Board issued Decisions and Orders in the above- entitled proceedings,' finding that 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 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 Region 17 issued a backpay specification and notice of hearing, to which 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, the Administrative Law Judge issued the attached Supplemental Decision, in which he found that the discriminatees 2 were entitled to the following pay- ments, upon which interest was to accrue at 6 percent per annum until paid, computed 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. On December 10, 1974, the National Labor Relations Board issued a Supplemental Decision and Order3 and found that the Administrative Law Judge erred in not concluding, as Respondent contended, that its April 25, 1967, offers of reinstatement to the discriminatees, pursuant to an injunction obtained by the Board under Section 10(j) of the Act, were sufficient to impose a duty on the discriminatees herein to either accept the offers or be guilty of a willful loss of interim earnings. Thereafter, on June 28, 1976, the Board's Order was reversed and the case remanded by the United States Court of I George A. Angle, d/b/a Kansas Refined Helium Company, 176 NLRB 1032 (Cases 17-CA-3021 and 17-CA-3021-2); George A. Angle, d/b/a 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 determination of liability in related litigations, and Garrett accepted a fixed sum in full satisfaction of his claim. 230 NLRB No. 98 Appeals for the District of Columbia upon a petition for review filed by the Union. 4 Pursuant to 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, having accepted the remand, will reconsider the above-mentioned Supplemental Deci- sion and Order in conformity with the court's opinion, which we respectfully recognize as binding on us for the purpose of deciding this case. The Board has again considered the record and the Administrative Law Judge's Supplemental Decision dated December 10, 1974, in light of the opinion of the United States Court of Appeals for the District of Columbia dated June 28, 1976, and, for the reasons set forth hereinafter, has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge. Respondent discharged six employees for engaging in union activities and committed other acts consti- tuting coercion and threats during the Union's 1966 organizational campaign. In November 1966, after charges had been filed, the Regional Director issued an unfair labor practice complaint and petitioned the Federal district court in Kansas for an order pursuant to Section 10(j) of the Act seeking reinstate- ment of the dischargees "pending the final determi- nation of this matter by the Board." On April 5, 1967, the district court granted the petition and its decision was affirmed by the court of appeals. Martin Sacks, Reg. Dir. v. Angle, 382 F.2d 655 (C.A. 10, 1967). On April 25, 1967, Respondent sent a letter to each of the discriminatees offering them reinstatement to their former positions. The letters made it clear that the offer was pursuant to the court order and was made only "pending the final determination of this matter by the Board." None of the three dischargees involved here accepted the offer. 5 On June 25, 1969, the Board found the discharges to be violative of Section 8(a)(3) of the Act and ordered the usual reinstatement and backpay reme- dies. Thereafter, the instant supplemental backpay proceeding was instituted to calculate the amount of backpay to which the illegally discharged employees were entitled. Respondent argued that the refusal of the employees to accept its April 25 offer of temporary reinstatement constituted a willful loss of 3 215 NLRB 443 (Chairman Fanning and Member Jenkins dissenting). 4 Oil Workers (OCA W) v. N.LR.B., 547 F.2d 575 (C.A.D.C., 1977), cert. denied 431 U.S. 966. 5 Although Bishop initially accepted, after Respondent wrote him a second letter in June 1967 emphasizing its efforts to dissolve the 10(j) reinstatement order, he changed his mind and declined the offer. 662 KANSAS REFINED HELIUM CO. earnings sufficient to halt the accrual of its backpay liability from the time the offers were made. The record shows that, at the time that Respondent made its offer of temporary reinstatement, Johnson and Harris had relocated their families at substantial distances (several hundred miles) from Respondent's plant, where they had obtained permanent employ- ment and were earning in excess of what they would have earned had they remained in Respondent's employ.6 Bishop, at that time, was employed 100 miles away from the plant and was earning some- what less than he would have with Respondent. In viewing the legal issue under consideration, it is important to note that Respondent was admittedly obligated at all times to offer these discriminatees unconditional and full reinstatement to their previ- ous jobs and to make them whole for all losses sustained as a consequence of Respondent's unfair labor practices, less interim earnings. It is thus within the framework of a discriminatee's obligation to find interim employment that the issue in this backpay proceeding has always been, as was noted by the court, whether or not the refusal of these dischargees to accept Respondent's offer of temporary reinstate- ment pursuant to an order granted under Section 10(j) of the Act constituted a willful loss of interim earnings on their part sufficient to negate Respon- dent's continuing backpay liability. The court, while not ruling directly on Respon- dent's contention that temporary reinstatement offers made pursuant to a 10(j) order necessarily toll backpay liability, concluded that, if such offers were so construed, resort to the 10(j) procedure would be discouraged, with the peculiar effect of limiting the scope of the backpay remedy that would otherwise be available. Instead, it found, even assuming that Respondent's April 25 offer was a valid interim offer as originally determined by a majority of the Board in this case, under the factual circumstances here, it was not unreasonable for these discriminatees to refuse Respondent's offer. As pointed out by the court, well-established Board law requires only that a discriminatee make a reasonable effort to obtain interim employment. Mastro Plastics Corp., 136 NLRB 1342, 1349 (1962). The court went on to note that the Board has held that, in fulfilling his obligation to mitigate his loss of income, a discriminatee is not required to accept employment which is located an unreasonable distance from his home (The Madison Courier, Inc., 180 NLRB 781, 789 (1970)), even if the offer is for permanent employment (Florence Printing Company, 158 NLRB 775, 792 (1966)). H In subsequent penods they each earned less than they would have earned with Respondent. Accordingly, upon reconsideration and in light of the applicable Board law, we find that the discrimi- natees involved did not act unreasonably in rejecting Respondent's April 25 offer of temporary employ- ment. Thus, with respect to Johnson and Harris, at the time Respondent made its offer, both were employed at permanent jobs several hundred miles from Respondent's plant, where they had relocated their families. In addition, both were earning in excess of what they would have earned with Respondent at that time. We find, therefore, that considering the circumstances of distance and the amount of income each was earning at the time, as well as the temporary and tenuous nature of Respondent's offers, Johnson's and Harris' refusals to accept them was not unreasonable and therefore did not consti- tute a willful loss of earnings. With respect to Bishop, he too had obtained interim employment approximately 100 miles from Respondent's plant. While it is true that at the time he was receiving lower pay in his new employment than he would have if he had ultimately accepted Respondent's offer, the record shows that he did initially accept the offer, but later changed his mind after receiving a June 9 letter from Respondent which strongly emphasized the temporary nature of its offer by referring to its court challenge to the 10(j) order. Under these circumstances, we agree with the court that he did not act unreasonably in deciding to remain in his permanent, albeit lower paying job, rather than risk returning to his previous employ- ment with Respondent at a significant distance from his new residence, with the attendant risk of imminent loss of employment. We therefore find that Bishop did not incur a willful loss of earnings. Inasmuch as the parties have stipulated as to all questions of backpay liability, except the effect of the employees' rejection of Respondent's April 25 offer of temporary reinstatement, which we have found not to constitute a willful loss of earnings, we shall adopt the recommended Order of the Administrative Law Judge in the attached Supplemental Decision. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Kansas Refined Helium Company, a Division of Angle Industries, Inc., Wichita, Kansas, its officers, agents, successors, and assigns, shall make whole Dwayne A. Johnson, 663 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Russell Bishop, and John Harris by payment to them of the amounts set forth in the attached Supplemen- tal Decision. 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 Rodgers, Dwayne Johnson, and Thomas Garrett in violation of Section 8(a)(l), (3), and (5) of the Act,2 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)(l), (3), and (4) of the Act.3 Said Orders included 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 specifica- tion and notice of hearing, setting forth therein the computation of gross backpay due to Bishop, Harris, Sims, Rodgers, Johnson, 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 amendment 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 observa- tion of the witnesses and their demeanor while testifying, and after careful consideration of the posthearing briefs, I make the following: FINDINGS OF FACT A. 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 pleadings. 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. The name of Respondent as set forth in the caption appears as amended at the supplemental hearing. 2 George A. Angle, d/b/a Kansas Refined Helium Company, 176 NLRB 1032 (Cases 17-CA 3021 and 17-CA 3021--2). First with respect to Arel 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 inappropriate 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 determina- tion of which could conceivably 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. Respon- dent 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 Sim and Rodgers was denied, an all party agreement was reached whereby Sims and Rodgers would be dropped from the instant specifica- tion upon relatively immediate payment of certain speci- fied sums, consisting of both interest and principal. This agreement, in my judgment effectuated 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 specification, 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 infirll satisfaction of his backpay claim. Garrett stated for the record his assent to this arrangement 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 agreement on the mechanics of computing their net backpay within the backpay period asserted by the Regional Director. However, the Respondent in entering these stipulations preserved 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 3 George A. Angle, d/b/a Kansas Refined Helium Company, 176 NLRB 1037 (Case 17-CA-3378). 664 KANSAS REFINED HELIUM CO. 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 on the propriety of Respondent's 1967 offer of reinstatement, I shall confine myself below to this limited question, which is the sole matter in controversy at this time. B. Concluding Findings The issue as to the validity of the 1%967 offers of reinstatement 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 Cases 17-CA-3021 and 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(j) of the Act.4 The petition in said 10(j) proceeding alleged, inter alia, that there was reason- able 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 (I) of the Act. By way of relief, the 10(j) petition, included the prayer set forth below requesting that the court issue an Order: (iii) Directing the respondent to reinstate the six discharged employees pending the final determi- nation of this matter by the Board. On April 5, 1967, the district court issued an injunction, which, inter alia, 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 transportation costs to permit the dischargees and their families to return to work. A motion by Respondent to stay the temporary injunc- tion 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 appeal, and affirming the district court's order, with a I Sec. 10(j) 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: Uj) 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 distnct court of the United States (including the Distnct Court of the United States for the 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 reinstatement 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 sufficient 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. I is Yes) Transportation costs sufficient to enable me and my family to return to work are $---. Such costs are computed as follows: Dated this --- day of---, 1967. SIGNATURE On May 3, 1967, identical letters, over the signature of George Angle were sent to Johnson, Davis, and Bishop, stating as follows: 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 restraining 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 restraining order as it deemsjust and proper. 665 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This will confirm that you are offered immediate reinstatement 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 immediately 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.5 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 discriminatees prior to their discharge, and hence the offers quite clearly cannot be faulted on that ground. On the other hand, considering the total circumstances surround- ing 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 proceedings 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 incorporated the language of the district court, by reciting that reinstatement was offered "pending the final determi- nation 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 intend- ed its offers to be viable only so long as the 10(j) order remained in effect, and I am satisfied that through Respondent's communication 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 additional 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, advising as follows: I 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, 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 request for an election and vacating the original order that an election should be held. A copy of this order is enclosed. 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 conve- nience 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 Company's new grounds for challenging the 10(j) order before disrupting their interim employment and returning to their former jobs. Clearly implicit in such admonition was the message that the offers were to temporary positions and coextensive 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 apprecia- tion for the considerations underlying the conventional remedy for unlawful discharges lead to the conclusion that the discriminatees were under no obligation to respond to the offers involved here. Under the statutory remedial scheme, backpay and reinstatement 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."6 An offer of reinstatement to those victimized by discrimination has been described as "the only sanction which prevents an employer from benefiting 757 (1965). Therefore, the sole issue for decision is whether or not the offers were valid. 6 Phelps Dodge Corp. v. N. LR.B., 313 U.S. 177, 194 (1941). 666 KANSAS REFINED HELIUM CO. from his unfair labor practices through discharges which may weaken or destroy a union" 7 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." s Backpay, at the same time, in addition to saving whole the employees, operates as a means whereby wrongdoers are encouraged to make genuine offers of reinstatement, by abating additional backpay liability when such an offer is made. However, the achievement of statutory objectives requires that such an offer be "immedi- ate and full," and it is only when it is "not possible to restore the absolute status quo" that something less is permitted. 9 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. Discriminatees can hardly be expected to abandon their interim endeavors, 0O and return to apt offending employer, pursuant to offers of reinstatement made under circum- stances 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 guaran- tees 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 dissolution 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 overturn the 10(j) injunction might prove fruitful. For, the discriminatees were on notice that dissolution of the court order would again result in their I Local 833, International Union. UAW [Kohler Co.j v. N. LR.B., 300 F.2d 699, 703 (C.A.D.C., 1962). 1 Burnup andSimr, 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 (1946). 'O Johnson and Harns had substantial interim earnings in all four quarters of 1967. Harris had then left the Wichita area and was then gainfully employed 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 1967, he "declined temporary reinstatement." " The fact that this infirmity in the offers related to Respondent legitimate efforts to overturn the IO(j) injunction lends no solace to the Respondent's position. Offers of reinstatement, where made by employers seeking to defend the validity of discharges in a subsequent Board termination." The termination of backpay cuts too deeply into the remedial formula in discharge 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 construed as imposing a duty of acceptance on discrimina- tees. 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 due are as claimed by the General Counsel and as set forth in Joint Exhibit 3(A-C). RECOMMENDED ORDER Upon the basis of the foregoing findings and conclu- sions, 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, as net backpay,' 2 the amounts set forth opposite their names. Dwayne A. Johnson Russell Bishop John Harris $974.90 8,828.40 13,583.20 23,386.50 proceeding, are always under protest. The fact that the form of protest involved here consisted of an effort to overturn IO) injunction should in no sense be construed 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. 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 prescnbed in Isis Plumbing A 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. 667