# Petition — Local 203, Graphic Arts International Union v. Colonial Press, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0474%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 833 ## Text —— a eee | Supreme Court, U.S | FittED IN THE Supreme Court of the Anited States OCTOBER TERM, 1974 No. G4-] 496 LOCAL 203, GRAPHIC ARTS INTERNATIONAL UNION, AFL-Cl1O, Petitioner, VS. THE COLONIAL PRESS, INC. and the NATIONAL LABOR RELATIONS BOARD, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. IRVING M. KING, Ropert H. NICHOLS, RUSSELL Woopy, One IBM Plaza, Chicago, Illinois 60611, Attorneys for Petitioner. Cf Counsel: CoTTon, WATT, JONES, KING & BOWLUS, One IBM Plaza, Chicago, Illinois 60611. Gunthorp-Warren Printing Company, Chicago @ 346-1717 Be 56 INDEX ae i PAGE Opinions Below .......-.--ssee ese r teen er ereeeees 1 DeetieMatiem ooo cccccccccceseccccscccssescesesess 2 Questions Presented ......... 0000 cece cece eee reeces 2 Statutes Involved ..........2ccccccececeeceeeccess 3 Statement of the Case ........---- eee eee eeeeeeeeee 3 Background ......----sesee cree eee eeeenscees 3 Proceedings Before the Board ......-.-+-+++++:: 4 The Decision of the Court of Appeals ......--.--- 7 Reasons for Granting the Writ .......-- 0+ esse ee eeees 9 1. The Decision Below Is in Conflict with That of Another United States Court of Appeals and with Those of the National Labor Relations DE sks ce geens eaeeeeresneenesneeess 4 2. The Cese Is of Importance Because It Is Flatly Contrary to National Labor Policy in an Area of Great Significance .......--ee seer ee eeeeees 12 3. If Acceptance Is Required, National Labor Policy Dictates That in the Instant Situation, It Can Be Manifested by Continued Participation in the Unfair Labor Practice Strike ..........++++5> 14 Camdiaiam ooo ccc cccccccccccccccescscsesecceces 15 il AUTHORITIES CITED. Confectionery & Tobacco Drivers & Ware. U. v. N.L.R.B., 312 F. 2d 108 (2d Cir. 1963) «1.0... cee cece ee eeeee ) E. A. Laboratories, Inc., 86 NLRB 711 (1949), enfd, 188 F. 2d 885 (2d Cir. 1951) cert. denied 342 U. S. BI CIDSL) on cccccccccccccccccccccoccsssccecs 11 Griggs v. Duke Power Co., 401 U. S. 424, 433-34(1971). 11 M. Eskin & Son, 135 NLRB 666 (1962) ........-+-+> 11 Mastro Plastics Corp. v. N. L. R. B., 350 U. S. 270 (1956) 15 N. L. R.B. v. Coca-Cola Bottling Co., 350 U. S. 264, 269 COOOED . .ccccccccccsansecccnccevcccsscessoces 1] N. L. R. B. v. Community Motor Bus Company, 439 F. 2d 965 (4th Cir. 1971) 2... 2c cece cece eee rere e neers 9,14 N. L. R.B. v. Crean, 326 F. 2d 391 (7th Cir. 1964) .... 13 P. B. & ©. Chemical Co., 148 NLRB 152 (1964) ......- 13 Packers Hide Association v. N. L. R. B., 360 F. 2d 59, 63 (8th Cir. 1966) 2.0... eee eee ee eee ee eee ees 9,14 Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177 (1941). 13 Standard Aggregate Corp., 213 NLRB (No. 25) (1974).. 13 Udall v. Tallman, 380 U. S. 1, 16-7 (1965) ........-- 11 STATUTES. 28 U.S.C. Section 1254(1) ....-- cece re eens 2 29 U.S. C. Section 141, et seq. ....- ee ee eee eee ee eees 2 29 U.S.C. § 153(D) 2... cece cece cece eee en eeeeeees 5 29 U.S. C. § 187... ccc cece ccc ccccoevevscseses 2, 3, 13 29 U.S.C. § 158(9)(1) and (3) 2. e cece e cree ee ees 3,4, 5 29 U.S.C. § 160(€) 2... cece ee eee eee ee ee en eens 7 a ee ee - IN THE Supreme Court of the Anited States OcTOBER TERM, 1974 LOCAL 203, GRAPHIC ARTS INTERNATIONAL UNION, AFL-CIO, Petitioner, vs. THE COLONIAL PRESS, INC. and the NATIONAL LABOR RELATIONS BOARD, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. Petitioner, Local 203, Graphic Arts International Union, AFL-CIO, prays that a writ of certiorari issue to review the opinion and judgment of the United States Court of Appeals for the Eighth Circuit entered in National Labor Relations Board et al. v. The Colonial Press, Inc. on February 28, 1975. OPINIONS BELOW. The opinion of the United States Court of Appeals for the Eighth Circuit, Judge Lay dissenting, is reported at 509 F. 2d 850 and is reproduced as Appendix A hereto, infra, pp. Al-15. The Order, by an evenly divided Court, denying the Petition for Rehearing and Suggestion for Hearing En Banc, is not reported 2 but is reproduced as Appendix B hereto, infra, p. Al6. The Decision and Order of the National Labor Relations Board is officially reported at 207 NLRB (No. 14) (1973) and is repro- duced as Appendix C hereto, infra, pp. A17-46. JURISDICTION. The denial of the Petition for Rehearing and Suggestion for Rehearing En Banc was entered on February 26, and the Judg- ment of the Court ot Appeals was entered on February 28, 1975. Jurisdiction of this Court is conferred by 28 U. S. C. Section 1254(1). QUESTIONS PRESENTED. 1. Must a lawfully discharged former employee who receives an offer of reemployment during the course of an unfair labor practice strike, which offer thereby rescinds or excuses his prior discharge, formally and contemporaneously accept that offer, particularly when it is conditioned in such a fashion that the employee must thereby become a strikebreaker and give up rights protected by Section 7 of the Act,’ 29 U. S.C. § 157, in order to be entitled to reinstatement following an unconditional offer to return to work at the end of the strike? Stated other- wise, may an employer avoid his obligation to reinstate at the conclusion of an unfair labor practice strike by extending during the course of strike offers of reemployment containing an unlaw- ful condition, namely, a requirement that the employee cross the picket line and become a strikebreaker in order for the offer to be effective, which offer the employee fails to accept? 2. If an employee is in fact required to formally accept an offer of reemployment in order to regain the status of an employee entitled to the protection of the Act at the conclusion of an unfair labor practice strike, should not continued partici- 1. The National Labor Relations Act, as amended, 29 U. S. C. Section 141, et seq. All statutory references in this Petition are to this statute, which will be referred to herein as “the Act”. 3 pation in the strike, following such an offer, constitute such acceptance? STATUTES INVOLVED. Section 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in other mutual aid or protection... , 29 U.S. C. § 157. Section 8(a). It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;.. . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organi- zation... , 29 U. S.C. § 158(a)(1) and (3). STATEMENT OF THE CASE. Background. The Colonial Press, Inc. (hereinafter “the Company”) is a commercial printing firm in Omaha, Nebraska. The present case involves an unfair labor practice strike, commencing on August 23, 1972, by employees of the Company represented by Local 203, Graphic Arts International Union, AFL-CIO (hereinafter “the Union”), the duly certified collective bargaining repre- sentative, the conduct of Company representatives during the course of that strike, and the propriety of the Company’s refusal to reinstate six employees (Messrs. Sass, Baker, Birdsong, Louden, Classen and Blenden) in February 1973 following an unconditional offer of return to work made by the Union on their behalf. On one or more occasions during the month of August, 1972, the Union, because it felt the Company was manipulating its ee 4 work schedules to interfere with the Union's ability to com- municate with its members concerning negotiations, conducted meetings among unit employees during regularly scheduled working hours. The six employees named above were discharged for absenting themselves from work to attend these meetings. The Regional Director of the National Labor Relations Board (hereinafter “the Board”) declined to issue a complaint against the Company on charges which the Union filed asserting that discharges violated the Act, and his determination was upheld on appeal to the Board’s General Counsel. Notwithstanding this fact, it was and is the Union’s view that by making numerous offers of employment to the six men dur- ing the course of the unfair labor practice strike, the Company essentially forgave or rescinded the prior discharges or condoned their prior misconduct, and therefore was obligated under appli- cable law to reinstate them to their former positions at the end of the strike. When the Company refused to do so, unfair labor practice charges were filed by the Union, and a complaint was issued by the Board alleging that by failing to reinstate these and other former employees the Company violated Sections 8(a)(1) and (3) of the Act. Proceedings Before the Board. Following a hearing, the Administrative Law Judge issued his Decision. Insofar as the issue here is concerned, he held: _. . [T]hat Stroboda, Nice, and the other supervisors who spoke to the pickets . . . 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 aban- donment 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 renun- ciation of the Union in fact. I find that Respondent clearly indicated to the pickets, including those who had previously been discharged for cause, that they would be reemployed if they requested it. (App. C, pp. A37-38.) eel —— a | OO ee 5 In rejecting the notion that they must be reinstated, however, the Administrative Law Judge reasoned as follows: Gener™l Counsel argues that since Respondent offered all the pickets employment, all of them became unfair labor practice strikers entitled to reinstatement on application. Although | have found that offers of employment were made, I must reject General Counsel’s contention because the offers were never accepted . . . [While] Respondent forgave their misconduct by clearly indicating that they were employable, . . . it is something else to say that by virtue of the doctrine of “condonation”, nonemployees became striking employees .. . . . . [I]t 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 replace- ments legally hired must be discharged. (App. C, pp. A38, 41.) The matter then was appealed to the Board, which declined to adopt the Decision and Recommended Order of the Adminis- trative Law Judge on this issue.* Instead, the Board held that the Company's refusal to reinstate these men in February, 1973 in fact violated Sections 8(a)(1) and (3) of the Act and ordered the Company to grant immediate reinstatement. Characterizing the issue as one of “whether the six persons found to have been lawfully discharged became . . . entitled to the reemployment rights normally accorded 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”, the Board found, as had the Adminis- trative Law Judge, “unmistakable offers of reemployment and clear evidence of condonation by Respondent of the misconduct which had given rise to the earlier lawful discharges”. It there- 2. Pursuant to the provisions of Section 3(b) of the Act, 29 U. S. C. § 153(b), the Board delegated its authority in the matter to a panel consisting of the then-Chairman Miller and Members Fanning and Penello. 6 fore was of the view that “the only question remaining . . . is whether, as Respondent 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.” (App. C, pp. A18-19.) The Board commenced its analysis by reviewing the policy reasons behind the legal obligation of an employer to grant immediate reinstatement to unfair labor practice strikers follow- ing an unconditional offer to return to work. It then continued: 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 or this exception the qualification 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 for- giving it or by offering reemployment despite the prior misconduct, we will not permit him subsequently to reas- sert the condoned conduct as a basis for refusing reem- ployment. For, once he has indicated that the misconduct on which he relied for severing the employment relation- ship 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 reemployment—i.e., retaliation against such persons for having struck or picketed in protest against the employer's unlawful interference with employee rights. (App. C, p. A20.) The Board then held that, by its offers of reemployment to these men the Company plainly had manifested an intent to continue the employer-employee relationship, and thereby had rescinded the prior discharges. Accordingly, the men were en- ee 7 titled to reinstatement upon their unconditional offer to return to work. Addressing itself to the notion that some formal “acceptance” was required to restore employee status, the Board felt that such a holding would be “inconsistent with our prior decisions, would dilute the doctrine of condonation in an un- warranted manner, and would invite abuse” (App. C, p. A21). Amplifying upon its concern, the Board observed that: .. . [Thhe rationale offered by Respondent and adopted by the Administrative Law Judge would require persons such as those involved here either to forsake their legitimate protests evidenced by their picketing activity and to be- come strikebreakers, or else would require them to be so counseled by those trained in 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 purposes underlying the protection afforded te unfair labor practice strikers. To require an incantation of carefully constructed legal phrases seems to us to introduce wholly unnecessary and undesirable formalities and to make artificial our approach to problems of reality and substance. (App. C, p. A21.) The Decision of the Court of Appeals. The Company declined to comply with the Order of the Board, and the Board sought enforcement in the United States Court of Appeals for the Eighth Circuit pursuant to Section 10(e) of the Act, 29 U. S. C. § 160(e). The Union intervened in support of the Board. In the decision ultimately rendered in the enforcement pro- ceeding the majority of the panel of the Court of Appeals de- clined to adopt the findings and reasoning of the Board and denied enforcement on this issue. Critical to the court’s analysis was its finding that, contrary to the view of the Board,’ the 3. Of course, under the Board's analysis, it is irrelevant as to whether the offers were conditional or not, as the Board was of the 8 offers of reemployment were not unconditional, but that they were in fact conditioned on acceptance of “the Company's terms —one of the terms being tha’ persons accepting employment would work and not merely picket” (App. A, p. A9). The majority found no acceptance of this offer, and specifically de- clined to adopt the view that continuing participation in the unfair labor practice strike manifested acceptance of the Com- pany’s offer. Although not expressly stated, the majority ap- parently was of the view that only a return to work (i.e. only crossing the picket line and becoming a strikebreaker), would suffice, observing that “no ‘incantation of carefully constructed legal pharases’, to use the Boaid’s language, is needed for a worker to manifest a willingness to work” (App. A, p. AQ). Judge Lay dissented, pointing out that the inevitable con- sequence of the majority’s opinion is to require a former em- ployee who has been lawfully discharged to accept “an illegal condition that they denounce the Union and their protected rights under the Act” as the only method of gaining reemploy- ment (App. A, p. Al4). This result he flatly rejected, finding acceptance, if necessary, in the continued participation in the unfair labor practice strike, a legitimate employee function. Following the court's decision, the Union filed a Petition for a Rehearing and Suggestion for Rehearing En Banc. On Febru- ary 26, that Petition was denied by an evenly divided court. Judges Lay, Heaney and Bright voted to grant the Petition, and Judge Ross took no part in the consideration of it. (App. B, p. Al6.) view that once the offer was made, employee status was restored. It was not in any event prepared to enforce the illegal condition im- posed by the Company. REASONS FOR GRANTING THE WRIT. 1. The Decision Below Is in Conflict with That of Another United States Court of Appeals and with Those of the National Labor Relations Board. The decision of the court in this case, narrowly stated, holds that the operation of the doctrine of condonation in the situa- tion of an individual whose employment relationship is termi- nated prior to the condonation does not in and of itself restore the individual te, the status of an employee, entitled to all the rights of one in the employer-employee relationship, but that instead formal contract principles of offer and acceptance are applicable and controlling. In articulating this rule, the court below distinguished the situation of an employee whose status had not been terminated prior to condonation:* Thus . . . if the employment relationship was, in fact, terminated before the alleged condonation, something ad- ditional must be done by the former employee, in response to the Company's reemployment offer, in order to re- establish the employer-employee relationship. If, however, the employer-employee relationship has not been terminated and the employee seeks to return to work, as is the con- ventional fact pattern in labor condonation cases, then the employer’s offer for the worker to return to work may be determinative. 509 F.2d at 855. This decision is in direct conflict with the decision of the United States Court of Appeals for the Second Circuit in Con- fectionery & Tobacco Drivers & Ware. U. v. N. L. R. B., 312 F.2d 108 (2d Cir. 1963). That case, like the present, involved a lawful severance of the employee relationship for cause prior to the condonation of the misconduct. In that case a group of dissident employees, dissatisfied with their union, demanded 4. This fact, inter alia, distinguishes several of the cases dis- cussed in the court’s opinion, e.g. Packers Hide Association Vv. N. L. R. B., 360 F.2d 59 (8th Fir. 1966), and N. L. R. B. v. Community Motor Bus Company, 439 F.2d 965 (4th Cir. 1971). cn esl, )Tt#4.gs eee 10 that the company not enforce a valid union security clause against two employees. When the company refused, the group walked off the job in protest, in violation of the no-strike clause of their contract. The following morning the striking employees sought to end their walkout and return to work but were told that they had been fired. The discharged employees began picketing the plant and the company filed suit to enjoin the picketing. In a court hearing approximately a week later, the’ company’s attorney announced that the parties had reached agreement to end the picketing and return all “strikers” to work. When the individuals reported for work, however, the company declined to reinstate six of them because of asserted misconduct unrelated to the strike and, together with three others. also because their jobs had been filled. The court granted enforcement of the Board order finding this refusal unlawful: Upon these facts we find substantial evidence to sup- port the Board’s conclusion that [the Company] . . . condoned the prior unlawful actions of the striking em- ployees. Condonation requires a demonstrated willingness to forgive the improper aspect of concerted action, to “wipe the slate clean.” After a condonation the employer may not rely upon prior unprotected activities of employees to deny reinstatement to or otherwise discriminate against them... . (312 F.2d at 113) More significant to this case, however, was that court’s rejec- tion of the company’s argument that it should be excused from reinstating the individuals because they had not carried out their end of the bargain. To this contention the court tersely re- sponded that the company “misconceive[d] the nature of the condonation principle, which, reflecting a clear public interest in the prompt settlement of labor disputes, is more akin to the doctrine of waiver than to the technicalitie, of contract law”. 312 F.2d at 113. Although the court there did not address itself to the specific fact of the prior discharge, the Board, in the decision which | 11 was on review in the court, did. M. Eskin & Son, 135 NLRB 666 (1962). The Board succinctly stated: Condonation indicates an 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 termination, and notwith- standing the fact that it was at one point terminated be- cause of such events. 135 NLRB at 667. Thus, both in the case at bar, in Eskin and in other cases as well, the Board has demonstrated that its view on this issue is identical to that of the Second Circuit. It is, of course, axiomatic that the Board’s interpretation and application of the provisions of the Act, as explicated in its decisions, is entitled to great weight, as it is the agency charged with the administration of the Act. NV. L. R. B. v. Coca-Cola Bottling Co., 350 U. S. 264, 269 (1956); Udall v. Tallman, 380 U. S. 1, 16-7 (1965); Griggs v. Duke Power Co., 401 U. S. 424, 433-34 (1971). And on this particular issue, the Board’s position is one of long standing, going back as far as 1949. In E. A. Laboratories, Inc., 86 NLRB 711 (1949), enf'd, 188 F. 2d 885 (2d Cir. 1951),° cert. denied, 342 U. S. 871 (1951), the Board was confronted with a situation involving prior discharged em- ployees, and found no difficulty in ordering reinstatement based on the doctrine of condonation: [W]e conclude that when [company] President Auferio announced that “these people can come back to work, “. . the Respondent waived its prior discharge of these union leaders and more active union members, and, like the remainder of the striking employees, they became undis- charged strikers whom the Respondent was bound to rein- state upon unconditional application; and that the Re- spondent’s refusal to do so . . . when they applied for reinstatement was therefore unlawful. 86 NLRB at 713. Thus, contrary to the view of the Eighth Circuit, both the Second Circuit and the Board view the operation of the doctrine 5. It should be noted that the panel enforcing the Board's decision in this matter included Circuit Judges Learned Hand and August N. Hand. 12 of condonation in a situation such as the instant case as akin to a waiver or rescission of the prior discharge and not in the nature of an offer requiring acceptance as in an ordinary com- mercial contract case. Once the offer of reemployment is made, the employee-employer relationship thereby is renewed, and the employee entitled to all consequences which flow from that status. The Eighth Circuit, on the other hand, would require some affirmative act of acceptance of the offer. As will be dis- cussed, infra, such a doctrine is susceptible to substantial abuse. In any event, however, the conflict is clear, and definitive deter- mination by this Court is required. 2. The Case Is of Importance Because it Is Flatly Contrary to National Labor Policy in an Area of Great Significance. In addition to the fact of the conflict between decisions of the Courts of Appeals as discussed above, in an area where it is of compelling importance that the rights of both management, unions and individual employees be clearly understood, as the stakes in a strike situation cannot be exaggerated, the decision of the Court of Appeals is of importance for several other reasons. Most significantly, the decision stands for the proposition that during the course of an unfair labor practice strike, which is a strike occasioned by the employer's own violation of the law, a former employee, offered reemployment, an action which mani- festly forgives the prior discharge, may be compelled to accept such reinstatement on the employer’s terms and conditions or forever lose his claim to the status of an employee and to all rights flowing from that status even if the employer’s terms include abandoning and foregoing protected concerted activity. While some justification from a policy standpoint might be found in a situation where an employer is confronted with an unauthor- ized work stoppage, or arguably even in an economic strike, there surely can be no justification for such a result when the 13 strike is itself occasioned by the unlawful actions of the em- ployer. The force of this argument is underscored in a situation such as that which exists here. The Company in this case, as found by the Administrative Law Judge and as underscored by the court, offered reemployment to these individuals only on the condition that they immediately cease picketing and commence working. This offer, the court points out, was not accepted. Yet in this off-hand disposition of the case, the court below has sanctioned a plainly unlawful action by a company, and not only has approved it sub silentio, but more remarkably has permitted this new action to become the vehicle by which the employer is excused from all legal obligations to these employees which arose out of its own unlawful activities! That the conditioning of employment on the dischargees’ refraining from engaging in concerted activity protected by Section 7 of the Act, 29 U. S. C. § 157, is patently unlawful is not open to serious dispute. See, e.g., Phelps Dodge Corp. Vv. N. L. R. B., 313 U.S. 177 (1941); N. L. R. B. v. Crean, 326 F. 2d 391 (7th Cir. 1964); Standard Aggregate Corp., 213 NLRB (No. 25) (1974); P. B. & S. Chemical Co., 148 NLRB 152 (1964). Yet it is the very making of this offer, and the dischargees’ failure to act upon it, which the court below has ruled excuses the Company from now reinstating these men. The majority opinion, therefore, author- izes an employer such as the Company, whose pervasive and flagrant unfair labor practices have provoked a strike of its employees, to solicit prospective employees, including those who were former employees and therefore can well be said to have a greater interest in the Company, with offers unlawfully condi- tioned upon abandonment of their Union. If the offerees accede to the conditions, the Company’s illegitimate effort to “break” the legally protected strike will be materially advanced. If the illegal offers are not accepted, the Company is in no worse posi- tion than if they had not been made. Totally left abandoned is the former employee who, while his earlier discharge is plainly 14 forgiven, cannot see his way clear to abandon his Union and forswear his statutory rights. Thus, the majority opinion adopts a view of the law which may actually encourage an employer— who has nothing to lose, and a great deal to gain in this situation —to commit further unfair labor practices in the hopes of avoiding the economic consequences of his past violations of the law. To require an individual to manifest his acceptance of such an illegal offer by abandoning his statutory right to engage in concerted conduct or otherwise to lose rights which should be his once his past discharge is rescinded is not only inconsistent with, but totally abhorrent to, the national labor policy. “Such a [result] . . . violates the spirit and purpose of Act in that it is calculated to stimulate and aggravate ill-feeling between management and employees rather than promote industrial peace”. Packers Hide Association v. N. L. R. B., 360 F. 2d 59, 63 (8th Cir. 1966). 3. If Acceptance Is Required, National Labor Policy Dictates That in the Instant Situation, it Can Be Manifested by Con- tinued Participation in the Unfair Labor Practice Strike. If in fact formal acceptance is required, as the court below has held, and as suggested by at least one other Court of Appeals,” then in the circumstances of an unfair labor practice strike such acceptance, at least insofar as prior discharged employees are concerned, must be found, as Judge Lay in dissent has suggested, in the continued participation in the strike. In a practical sense, there is no other reading which can be given to such conduct, and the national labor policy surely cannot permit any other result. Participation in the strike is a protected employee activity, and by continuing to picket former dischargees who have been offered reemployment conditioned 6. See N.L. R. B. v. Community Motor Bus Company, 439 F.2d 965 (4th Cir. 1971). 15 on an abandonment of their union and their statutory rights must be construed as having resumed the status of employees, entitled, as are all other striking employees, to reinstatement upon unconditional offer. Mastro Plastics Corp. Vv. N. L. R. B., 350 U. S. 270 (1956). Any other result sanctions continued unlawful activity, and penalizes only innocent employees whose past misconduct has been forgiven. CONCLUSION. Petitioner respectfully requests that this petition for a writ of certiorari be granted. Respectfully submitted, IrviING M. KING, Rospert H. NICHOLS, R 3sELL Woopy, One IBM Plaza, Chicago, Illinois 60611, Attorneys for Petitioner. Of Counsel: CoTToN, WATT, Jones, Kinc & BowLus, One IBM Plaza, Chicago, Illinois 60611. Al APPENDIX A. UNITED STATES COURT OF APPEALS For the Eighth Circuit No. 74-1304 National Labor Relations Board, ) Petitioner, | On Application for En- forcement of an Or- vs. > der of the National Labor Relations The Colonial Press, Inc., Board. Respondent. J Submitted: October 17, 1974 File: January 17, 1975 Before Gipson, Chief Judge, Lay and STEPHENSON, Circuit Judges. Gipson, Chief Judge. The National Labor Relations Board petitions, pursuant to Section 10(e) of the National Labor Relations Act as amended, 29 U.S. C. § 160(e), for enforcement of its decision and order’ 1. The Board’s order directed the respondent Company infer alia (1) to cease and desist from discouraging union activity or interfering with employees’ § 7 rights by means such as threatening and interrogating its e ployees, telling them not to talk with picketers, creating the impression of surveillance of employee union activity, or otherwise; and (2) to offer designated unfair labor practice strikers reinstatement to their former positions without prejudice to seniority or other rights, dismissing, if necessary, any employees hired as replacements, and to make the strikers whole for any loss of pay suffered. A2 issued November 30, 1973, and reported at 207 N. L. R. B. No. 114 (1973). Local 203, Graphic Arts International Union, AFL-CIO, the charging party in the proceeding before the Board, was granted leave to intervene. In its decision the Board ordered reinstatement of nine persons categorized as unfair labor practice strikers. Six of the persons ordered to be reinstated had previously been lawfully discharged on August 21 and 22, 1972, for engaging in “long union meetings on company time.” Unfair labor practice charges filed on their behalf were later found by the NLRB Regional Director and General Counsel to be without merit and were dismissed. The Company, on this appeal, is resisting enforcement of only that part of the Board’s order relating to reinstatement of the six workers lawfully discharged. The organizational campaign from which this dispute arose commenced in late 1971 and continued into 1972. It concerned an organizational unit of nine employees in the pressroom of the Company's Omaha, Nebraska, printing plant. The campaign was accompanied by employer conduct which was found by the Board in a prior proceeding to be violative of §§ 8(a)(1) and (3) of the Act.2 On August 23, 1972, the pressroom em- ployees. including those who had been lawfully discharged, commenced a strike against the Company in response to those unfair labor practices. Replacements were hired by the Company. The Board eventually found that the Company committed further unfair labor practices during that strike, consisting of telling employees to quit talking to the strikers, bad-mouthing the Union, engaging in surveillance of employees who talked to the picketers, and telling the employees that the Company 2. In its prior order, reported as The Colonial Press, Inc., 204 N. L. R. B. No. 126 (1973), the Board found that the Com- pany had violated § 8(a)(1) by interfering with, restraining, and coercing employees in the exercise of their §7 rights when it made anti-union warnings, eliminated overtime work, and unilaterally changed rules. The Board also found that the Company had violated §§8(a)(1) and (3) by discriminatorily discharging employees because of their union activity. A3 would never sign a contract with the Union. During the course of the strike several of the lawfully discharged pressmen were asked by Company officials or straw bosses to come in to talk to the Company about going back to work. Most common among their invitations were statements such as, “My door is always open; any time you want to come down and talk to me you're welcome.” A contract agreement was finally reached between Company and Union in February, 1973. The Union, in two letters, promptly requested unconditional reinstatement of all strikers, including the six workers previously discharged for cause. When the strikers and former employees reported for work on February 23, the company president, Mr. Swoboda, refused to reemploy the six lawfully discharged workers. He told them they had been replaced, but offered to consider their applications for employ- ment on a preferential basis if they wished to file them. In response, charges were filed alleging company unfair labor practices in violation of §§ 8(a)(1) and (3) of the Act. The Union complained that certain employees were threatened, and, without distinguishing between strikers and dischargees, claimed that the Company refused to reinstate unfair labor practice strikers and thereby discriminated against them because of their union activity. The Administrative Law Judge concluded that the Company had in fact violated Section 8(a)(1) of the Act by coercively interrogating and threatening certain employees,® thus inhibiting their rights to engage in concerted activity under Section 7 of the Act. The judge further determined that although the Com- pany’s § 8(a)(1) violations had not prolonged the strike, its previous unlawful practices had in fact caused it. Thus, it was an unfair labor practice strike and those who were unfair labor practice strikers were entitled to reinstatement and back pay from the date they requested it. However, the judge also 3. Bernard Nice and Tom Murtaugh (a bindery employee out- side the pressmen’s bargaining unit). A4 determined that because the six lawfully discharged workers were no longer employees and hence not unfair labor practice strikers, they were not entitled to reinstatement. In so doing, the judge rejected the Union’s argument that the Company had condoned or forgiven the six lawfully discharged workers’ misconduct by asking them to return to work, and that the six had thereby regained the status of employees who were on strike in response to the employer’s unfair labor practices, having refused its invitations to return to work. On appeal the Board affirmed the Administrative Law Judge’s rulings, but, disagreeing with his findings on the issue of con- donation, additionally found that the Company violated §§ 8(a) (1) and (3) by refusing to reinstate all strikers. The Board con- cluded that various informal statements made by Company managers were “unmistakable offers of reemployment and clear evidence of condonation by [the Company] * * * of the mis- conduct which had given rise to the earlier lawful discharges.” The Board rejected as insignificant factual distinctions drawn by the Administrative Law Judge between the instant case and prior cases of alleged postdischarge condonation. To draw such dis- tinctions, the Board commented, would “invite abuses of the purposes of the Act and an unwarranted dilution of the doctrine of condonation.”* The Board concluded that statements by Company representatives inviting the strikers to return to work rescinded their previous discharges and waived the Company’s right to rely on the discharge-provoking misconduct as a basis for denying reinstatement. In short, the Board concluded that 4. The decisions in Confectionery & Tobacco Drivers & Ware- housemen’s Local 805 v. N. L. R. B. (M. Eskin & Son), 312 F. 2d 108 (2d Cir. 1963), and N. L. R. B. v. E. A. Laboratories, Inc., 188 F. 2d 885 (2d Cir. 1951), were distinguished by the Adminis- trative Law Judge (1) because they involved broken strike settle- ment agreements to which workers had responded, reestablishing their employment relationships; or (2) because they, along with most conventional condonation cases, may have involved only “tac- tical” discharges which in fact did not terminate employment, while the discharges in the instant case were true discharges which did terminate the six workers’ status as employees. AS the Company’s statements reestablished an employment relation- ship between the Company and the six workers, so that the workers might enjoy the status of unfair labor practice strikers who are entitled to reinstatement. I. Section 10(b). The Company argues, as a preliminary point on appeal, that the Board erred in considering evidence of events which occurred more than six months before the filing of the instant charges, March 6, 1973. 't argues that Section 10(b) of the Act, 29 U. S. C. § 160(b), prevents the Board from labeling the strike as an unfair labor practice strike because that determination must rest upon evaluation of Company conduct which occurred before the six-month limitations period. Section 10(b) was en- acted for the purpose of stabilizing existing bargaining relation- ships by barring “litigation over past events ‘after records have been destroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and confused’ * * 7 Machinists Local 1424 v. N. L. R. B., 362 U. S. 411, 419 (1960). Those purposes would not be advanced by adoption of the Company's argument in the instant case. Granted, the Company's unfair labor practices which caused the instant strike occurred prior to the § 10(b) limitations period. Those practices were themselves fully recorded in litigation and declared by the Board to be violations of the Act.® This case fits within the first situation discussed in Machinists Local 1424 v. N. L. R. B., supra at 416-17.° The Board’s ruling that the Insofar as the record indicates, there were initially three unfair labor practice strikers—Bernard Nice, Donald Blenden, and Gary Pilcher. rr LL lll OTT Al9 We find these statements to be unmistakable offers of reem- ployment and clear evidence of condonation by Respondent of the misconduct which had given rise to the earlier lawful dis- charges. The only question remaining, therefore, is whether, as Respondent 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 affirma- tively 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 em- ployment 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 in- vite abuses of the purposes of the Act and an unwarranted dilu- tion of the doctrine of condonation. We have long construed the Act to confer its protection upon thse who engage in a lawful strike as a means of protest against the commission of unlawful acts under our statute by their em- ployer. Unlike those who strike to secure economic objectives in an atmosphere untainted by employer unfair labor practices, un- fair labor practice strikers are not required to assume the risk of being replaced during the strike, but instead are guaranteed a A20 right to return to their former positions as soon as they uncondi- tionally 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 exer- cise 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 em- ployees 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 guaran- tee 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 employcr’s refusal to reemploy them. But we have long engrafted on this exception the qualification 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 subsequently 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 reemploy- ment to those who have protested his unlawful acts, there can remain only the discriminatory reason for denying such reem- ployment—i.e., retaliation against such persons for having struck or picketed in protest against the employer’s unlawful interfer- ence 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 A21 demonstrated a willingness, as we found in Eskin, “to ‘wipe the slate clean’ and to continue the employer-employee relationship notwithstanding the fact that events occurred which would have justified its termination, and notwithstanding the fact that it was at one point terminated because of such events.” Accordingly, at such time thereafter as the six employees evi- denced their unconditional willingness to resume such active em- ployment, we can see no justification for any refusal by Respond- ent 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 Administrative Law Judge would require persons such as those involved here either to forsake their legitimate protests evidenced by their picketing activity and to become strike- breakers, 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 purposes 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 formalities and to make artificial our approach to problems of reality and substance. To our mind, it is more consonant with the realities to con- clude 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 pre- vious 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 A22 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 re- quests 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 evi- dence and no contention that the replacements were hired until after the statements evidencing condonation and the rescission of their discharges had occurred. Since the persons involved were, at the time of their alleged replacement, unfair labor prac- tice strikers, the attempted replacement was ineffective and can- not affect their right to be reemployed. 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 re- instatement, 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 unconditional request for rein- statement to the date of Respondent's offer of reinstatement, less any net earnings during such period. The backpay shall be com- puted in accordance with the remedial relief policies set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb- ing and Heating Co., 138 NLRB 716. A23 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 Re- spondent 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(c) 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 employees 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 un- conditional application for reinstatement those employees en- gaged 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, restraining, 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 Blenden, Gilbert Classen, Jeff A24 Louden, Russell Sass, Donald Blenden, and Bernard Nice re- ‘nstatement to their former positions, or if they no longer exist, to substiantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if neces- sary, 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 Respond- ent’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 un- conditional request for reinstatement of the strikers to the date of Respondent’s offer of reinstatement, such loss to be com- puted in the manner and with interest as in F. W. Woolworth Company, 90 NLRB 2839, 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 at- tached notice marked “Appendix.”* Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. 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 RELA- TIONS BOARD” shall read “POSTED PURSUANT TO A JUDG- MENT OF THE UNITED STATES COURT OF APPEALS EN- FORCING AN ORDER OF THE NATIONAL LABOR RELA- TIONS BOARD.” A25 (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. Dated, Washington, D. C. November 30, 1973. Edward B. Miller, Chairman John H. Fanning, Member John A. Penello, Member National Labor Relations Board (SEAL) A26 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 em- ployees who may picket our premises or create the impression of surveillance of employee union activities. WE WILL NOT coercively interrogate our employees about their union views. WE WILL NOT tell employees that other employees 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 be- half 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 reinstatement to their former positions or, if those jobs no longer exist, to sub- stantially 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: A27 Gary Pilcher Gilbert Classen Gary Baker Jeff Louden David Birdsong Russell Sass Wayne Blenden Donald Blenden Bernard Nice The Colonial Press, Inc. (Employer) nn : ) cc (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 compliance with its provisions may be directed to the Board's Office, 616 Two Gate- way Center, Fourth at State, Kansas City, Kansas 64101, Tele- phone 816—374-4518. A28 UNITED STATES OF AMERICA, Before the National Labor Relations Board, Division of Judges, Washington, D. C. The Colonial Press, Inc., : and Graphic Arts International Union, Local 203, AFL-CIO (formerly Case No. 17-CA-5533 known as Lithographers and Photo- engravers International Union Local No. 203). J Gerald A. Wacknov, Esq., for the General Counsel. Thomas J. Young, Esq. and David R. Flebbe, Esq., Omaha, Neb., for the Respondent. Russell Woody, Esq., of Cotton Watt, Jones, King and Bowlus, Chicago, Ill., for the Charging Party. 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, '1c., 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 A29 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 considered. Upon the entire record in the case and from any observation of the witnesses, I make the following: Findings of Fact. I. Jurisdiction of the Board. Respondent is a Nebraska corporation engaged in the printing business at its plant in Omaha, Nebraska. In the course and con- duct 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. Il. The Labor Organization Involved. The Union is a labor organization within the meaning of the Act. Il]. 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 hearing. The complaint alleges that the strike was caused and prolonged by Respondent's unfair labor practices.’ 1. The unfair labor ee which it is alleged caused the strike were litigated in Cases Nos. 17-CA-5301 and 17-CA-5300 (-3, -7, -9, -10 and -11). That consolidated proceeding was heard by Ad- ministrative Law Judge John F. Funke in January 1973, and on A30 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 O in favor of a strike, Carol Nice’s discharge, “written reprimands and oral chewing outs,” as well as the elimination of overtime were dis- cussed, 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. Although 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.” I find that the strike was caused in significant part by Carol Niee’s termination, with- drawal of overtime, Blenden’s severance, and improper warn- ings and “harassment” of employees, as Powers described Re- spondent’s conduct, although I also believe that the more recent discharges and the unsatisfactory state of contract negotiations 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 that 6 months before the charges in the instant case were filed they are barred by Section 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)(1), (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 elimination 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 found that Blenden had been discriminatorily terminated. The Colonial Press, Inc., 204 NLRB No. 126. > The status of these six persons is discussed infra. A3l 10(b) of the Act and may not be considered in this proceed- ing. 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 determin- ing the nature of the strike and deciding on the basis of that decision whether Respondent's refusal to reinstate certain strik- ers 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.* 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 press- room, advised him not 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 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. 3. N.L.R.3.v. Brown and Root, Inc., 203 F. 2d 139, 145-146 (C. A. 8); N. L. R. B. v. Lundy Manufacturing Corporation, 316 F. 2d 921, 927 (C. A. 2). 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! relitigating 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, 112 NLRB 1336 and New Enterprise Stone and Lime Company, Inc., 176 NLRB 586, cited by Respondent, are not in point. A32 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 pro- duction 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 Mur- taugh’s testimony, but his testimony was vague, occasionally incomprehensible and somewhat contradictory. He said, for example, that he did not ask Murtaugh about his union sym- A33 pathies or refer to his talking with the 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 conversation 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 discus- sion of a possible promotion and expressions of antiunion anicus, Respondent restrained and coerced the employee in violation of his Section 7 rights. I find and conclude, as the complaint alleges, that Respon- dent coercively interrogated an employee, interfered with his statutory rights by coercively indicating that he should not talk to strikers, and created the impression of surveillance of em- ployee union activity, all in violation of Section 8(a)(1) of the Act. Murtaugh also testified 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 information. Grotzinger testified that, on Prod tion Manager Kile’s instructions, he did tell the bindery empfoyees 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 instruc- tions 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 A34 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 dur- ing 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 talk- ing to him and the other pickets, although coercive, hardly reaches the level of an unfair labor practice impeding the set- tlement of the dispute in the context of the many other issues which have caused the strike to continue. For example, Re- spondent 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 Gen- eral Counsel contends are also unfair labor practice 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 prac- tices 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, Garry Baker and David Birdsong, all then employed in the bargaining unit. Al- though charges of unfair labor practices based on these dis- charges 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.’ On February 2, 1973, the Union wrote Respondent, making what it described as “an unconditional offer for everyone to 4. Bernard Nice was also discharged on August 22, but his case was litigated before Judge Funke in Case No. 17-CA-5300-7. Judge Funke’s finding that Bernard Nice was discriminatorily discharged was sustained by the Board. A35 return to work.” Although the Union's letter does not specifi- cally 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 Feb- ruary 20, 1973, in which it stated that Baker, Birdsong, Blen- den, Classen, Louden and Sass were included in the Union's “unconditional offer to return to work” because they had been made offers of reinstatement by Respondent subsequent to their discharges.° 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 em- ployment 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, testfied 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 own.” Striker Nice told his brother that because the Company had fired the employees, they would stay on strike until a con- tract was signed. 5. The Union’s February 20 letter was in reply to Respondent's letter of February 5 advising the Union, in response to its communi- cation of February 2, referred to above, that the Union’s offer was “conditional” since it included the individuals who had been dis- charged 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. A36 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 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. arid he added that he would pay for any damages to Bird- song'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.° Birdsong testified, without contradiction, that a few weeks after he was discharged and began picketing Foreman Hender- son told him that he and Jeff Louden, another of the discharg- ees, could have their jobs back, possibly with a raise in wages. Birdsong testified that he understood these remarks of man- agement representatives to be offers of employment condi- tioned on his abandoning the Union. Jeff Louden also testified, without contradiction, that Hender- son spoke with him about reemployment many times while 6. Production Manager Kile twice invited Birdsong to come into the plant and talk with him while Birdsong was picketing. _——— A37 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 re- sponded to Henderson's overtures in any way." 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 employ- ment to those who were picketing and that he had not delega- ted 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 inconsistent* 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 at- tempted to conceal the main thrust of their talks with employ- ees. 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 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 his lawyer’s advice and availability of employment. A38 to pickets like Birdsong, Nice, Sass and Louden were soliciting them to return to their jobs in order to break the strike. Whe- ther or not the men were told that their return was conditioned on abandonment 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 previously been dis- charged for cause, that they would be reemployed if they re- quested it. General Counsel argues that since Respondent offered all of the pickets employment, all of them became unfair labor prac- tice strikers entitled to reinstatement on application. Although I have found that offers of employment were made, 1 must reject General Counsel’s contention because the offers were never ac- cepted. 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.” 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,” non- employees became striking employees. Employees who engage in misconduct do not automatically lose their employee status but only become subject to discharge. Thus. when an employee tells strikers who have engaged in con- duct 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."’ 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 -_-- —_— LN - 9. The discharges had been terminated for engaging in long union meetings on company time. 10. Wallick & Schwalm Company, 95 NLRB 1262, 1264; Dorsey Trailers, Inc., 80 NLRB 478, 483. A39 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 con- cedes 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 here the in- dividuals were lawfully discharged before they were solicited to return to work.'* It also appears from the cases that the con- donation 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. No cases have been called to my attention, anc to my knowledge there are none, where the facts parallel the facts in this case and where it has been contended and held that em- ployee 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 11. The distinction between reinstatement and reemployment is well established. See N. L. R. B. v. Textile Machine Works, Inc., 214 F. 2d 929, 933-34 (C. A. 3); N. L. R. B. v. Childs Co., 195 F. 2d 617, 619-621 (C. A. 2); N. L. R. B. V. Pennwoven, Inc., 194 F. 2d 521, 525-26 (C. A. 3). 12. See for example, Brantly Helicopter Corp., 135 NLRB 1412; Union Twist Drill Co., 124 NLRB 1143; California Cotton Coop Ass’n., 110 NLRB 1494, 1500; Alabama Marble Co., 83 NLRB 1047; The Carey Salt Co., 70 NLRB 1099. 13. Cases cited n. 12, supra. See also Stewart Die Casting V. N. L. R. B., 114 F. 2d 849 (C. A. 7); Plasti-Line, Inc., 123 NLRB 1471, reversed 278 F. 2d 482 (C. A. D.C.); N. L. R. B. v. E. A. Laboratories, Inc., 188 F. 2d 885 (C. A. 2). American River Con- structors, 163 NLRB 551, involved i:nproper concerted activities engaged in and condoned prior to a refusal to rehire, but it may be viewed as really a “pretext” case. A40 relationship. In M. Eskin & Sons,” 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 picket- ing immediately, 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 re- lationship notwithstanding the fact that events occurred which would have justified its termination, and notwith- standing the fact that it was at one point terminated be- cause of such events. (Emphasis supplied. )’* In M. Eskin & Sons, the Board cited E. A. Laboratories, Inc.,2* 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 dis- charge of union leaders and more active union members who had engaged in an illegal strike, and that they became “undis- charged strikers” whom Respondent had to reinstate."’ Principally on the basis of M. Eskin & Sons and E. A. Labora- tories, 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 agreements, which it needs no cita- tions 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 14. 135 NLRB 666. Enf'd. 312 F. 2d 108:(C. A. 2). 15. Id. at 667. 16. NLRB 711, enf'd., N. L. R. B. v. E. A. Laboratories, Inc., 188 F. 2d 885 (C. A. 2). 17. Jd. at 713. A4l mutual promises; as indicated above, no one accepted Respond- ent’s offer.’* 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." A second real difference in the cases is that employers often engage in “tactical discharges” of -trikers 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 ef- fect a complete severance of employment.” In such circum- stances there are greater reasons of policy for inferring “con- donation” 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 ap- plication, 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 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 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 manuever” is stat- ing that they were. See also, Columbia Pictures Ass'n., 82 NLRB 568; Fafnir Bearing Co., 73 NLRB 1008; Home Beneficial Life ins. Co. v.N. L. R. B., 159 F. 2d 280 (C. A. 4). A42 Respondent's unfair labor practices and therefore entitled to re- instatement upon application. I do find, however, that any other persons who struck or joined the strike after it commenced are unfair labor practice strikers.” Since the Union's application to return to work made on be- half 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. 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 Sec- tion 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 un- fair labor practice striker who is entitled to reinstatement 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. 21. Although the General Counsel alleged in Case No. 17-CA- 5300-3. tried before Judge Funke, that Gary Pilcher had been discriminatorily discharged, Judge Funke found that he had not been discharged but had voluntarily joined the strike. It would appear, therefore, that Garry Pilcher is the sole unfair labor practice striker entitled to reinstatement. A43 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 recom- mended :** ORDER. Respondent, 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 employees would be discharged if they were seen talking to strikers. (e) In any other like or related manner interfering with, restraining or coercing employees in the exercise of rights guar- anteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: 22. In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Secion 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes A44 (a) Upon application, offer to unfair labor practice strikers reinstatement to their former positions, or if they no longer exist,2* to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any employees hired after August 23, 1972, for such positions. Respondent shall make whole said unfair labor practice strikers for any loss of pay they may suffer by reason of Re- spondent’s refusal, if any, to reinstate them, upon request, by payment to each of them a sum of money equal to what he would have earned as wages during the period beginning 5 days after ‘the date on which he applies for reinstatement and terminating on the date of Respondent's offer of reinstatemc nt, 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 make available to the Board or its agents all payroll and other records necessary to compute the back- pay and reinstatement rights of unfair labor practice strikers. (c) Post at its Omaha, Nebraska, plant, copies of the at- tached notice marked “Appendix.”** Copies of said notice, on forms provided by the Regional Director for Region 17, shall, after being duly signed by Respondent, be posted im- mediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and be maintained by it for 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced or covered by any other material. 23. See fn. 21, supra. 24. In the event the Board’s Order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shai! be changed to read “POSTED PUR- SUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.” A45 (d) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Dated at Washington, D. C. /s/ George J. Bott George J. Bott Administrative Law Judge A46 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 sur- veillance of employee union activities. WE WILL NOT coercively interrogate our employees about their union views. WE WILL NOT tell employees that other employees will be discharged if seen talking to striking employees. WE WILL NOT in any other like or related manner interfere with, restrain or coerce employees in the exercise of rights guar- anteed them in Section 7 of the Act. WE WILL, upon application offer Gary Pilcher reinstatement to his former position and without prejudice to seniority or other rights and privileges, dismissing if necessary any employee hired after August 23, 1972, for such position. In the event we fail to reinstate said employee, we shall make him whole for any loss of pay he may suffer because of our refusal to reinstate him. The Colonial Press, Inn (Employer ) (Representative ) 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 compliance with its provisions may be directed to the Board’s Office. 616—Two Gateway Center, Fourth at State, Kansas City, Kansas 66101 (Tel. No. 816-374-4518). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0474%3A1. Public record. Not legal advice.