Angle Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1974

215 N.L.R.B. 443 (N.L.R.B. 1974)

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