N.L.R.B. v. Colonial Press, Inc.

• Decision Date: 26 February 1975
• Docket Number: No. 74--1304,74--1304
• Citation: 509 F.2d 850
• Parties: 88 L.R.R.M. (BNA) 2337, 75 Lab.Cas. P 10,599 NATIONAL LABOR RELATIONS BOARD, Petitioner. v. The COLONIAL PRESS, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 850

509 F.2d 850

88 L.R.R.M. (BNA) 2337, 75 Lab.Cas. P 10,599

NATIONAL LABOR RELATIONS BOARD, Petitioner. v. The COLONIAL PRESS, INC., Respondent.

No. 74--1304.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 17, 1974.

Decided Jan. 17, 1975.

Rehearing and Rehearing En Banc

Denied Feb. 26, 1975.

Joseph Oertel, Atty., National Labor Relations Board, Washington, D.C., made argument for petitioner.

Soren S. Jensen, Swarr, May, Smith & Andersen, Omaha, Neb., made argument for respondent.

Irving M. King, Chicago, Ill., made argument for intervenor.

Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.

GIBSON, 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 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 employees, 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 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 employment 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, ³ thus inhibiting their rights to engage in concerted activity under Section 7 of the Act. The judge further determined that although the Company'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 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 condonation, additionally found that the Company violated §§ 8(a)(1) and (3) by refusing to reinstate all strikers. The Board concluded that various informal statements made by Company managers were 'unmistakable offers of reemployment and clear evidence of condonation by (the Company) * * * of the misconduct 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 distinctions, the Board commented, would 'invite abuses of the purposes of the Act and an unwarranted dilution of the doctrine of condonation.' ⁴ 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 the Company's statements reestablished an employment relationship 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. It argues that Section 10(b) of the Act, 29 U.S.C. § 160(c), 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 enacted for the purpose of stabilizing existing bargaining relationships 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' * * *.' Machinists Local 1424 v. N.L.R.B., 362 U.S. 411, 419, 80 S.Ct. 822, 828, 4 L.Ed.2d 832 (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. ⁵ This case fits within the first situation discussed in Machinists Local 1424 v. N.L.R.B., supra, 362 U.S. at 416--417, 80 S.Ct. 822. ⁶ The Board's ruling that the instant strikers were protesting unfair labor practices could not be said to be 'inescapably grounded on events predating the limitations period * * *,' Machinists Local 1424, supra, 362 U.S. at 422, 80 S.Ct. at 829, as the current complaint rests on failure to reinstate unfair labor practice strikers. Otherwise, the Board would never be able to punish an employer's refusal to reinstate unfair labor practice strikers after a strike lasting more than six months and in which the employer's conduct complained of occurred before and after but not during the strike. N.L.R.B. v. Brown & Root, Inc., 203 F.2d 139, 145--146 (8th Cir. 1953).

II. CONDONATION.

On the condonation issue, we think the Board has expanded and stretched that concept beyond its basic purpose and proper utility. The principle of waiver by condonation used in the context of labor relations is that, if after an employee commits acts of misconduct lawfully justifying his discharge, and thereafter the employer, fully cognizant of the acts, agrees not to discipline him, the employer may not thereafter rely on the same misconduct as the basis for discharging or refusing to reinstate the employee. Thus, the doctrine is properly invoked 'only where there is clear and convincing evidence that the employer has completely forgiven the guilty employee for his misconduct--and agrees to a resumption of (the) company-employee relationship as though no misconduct had occurred.' Packers Hide Association v. N.L.R.B.,360 F.2d 59, 62 (8th Cir. 1966).

Condonation may not be lightly presumed. Plasti-line, Inc. v. N.L.R.B., 278 F.2d 482, 486--487 (6th Cir. 1960); N.L.R.B. v. Marshall Car Wheel & Foundary Co., 218 F.2d 409, 414 (5th Cir. 1955). Thus, to order reinstatement on the basis that an employer has condoned an employee's prior misconduct, the record must contain clear and convincing evidence that the employer has in fact agreed (1) to forgive the misconduct and 'wipe the slate clean,' and (2) to resume the former employment relationship with the employee. Moreover, resumption of the employment relationship necessarily rests on a mutual agreement. N.L.R.B. v. Community Motor Bus Co., 439 F.2d 965, 968 (4th Cir. 1971); see N.L.R.B. v. Cast Optics Corp., 458 F.2d 398,...