TWENTY-SIXTH ANNUAL REPORT - National Labor Relations Board

Unfair Labor Practices 95
cants appioached to enter the office, blocked and otherwise impeded
their entrance, even as to those dischargees who weie meiely piesent
the group during such episodes and did not personally assault or
otherwise impede the applicants' entrance into the office, since they
"wet e engaged in a type of picketing designed and intended to prevent
free access to the employment office "28
In Kohler, the majority 29 also found that the employer did not
violate the act by discharging strikeis who were present in crowds of
"mob proportions" consisting of strikers and others at "home demonstrations"
against nonstrikers returning home from work, where
various persons m the assembled crowds shouted vile names, insults,
derisive epithets, and even threats at the nonstrikers as they entered
their homes. It held that it was not only those who actively engaged m
hurling abuse who intimidated and coerced the nonstrikers leturning
home, but also those who by their presence swelled the assemblage to
mob proportions, even though they did not join in the yelling and
shouting, sines by their presence they lent tacit approval to the entire
scene and contributed to the coercive effect 3°
(2) Condonation
The issue also arose m the Kohler Co al case as to whether the
employer had condoned or waived the strikers' mass picketing as a
ground for their discharge A Board majority,32 noting that under
the circumstances there condonation "may not be lightly presumed,"
held that it could not be inferred that the employer had condoned and
waived the misconduct of all the participants mei ely because it had
reinstated many strikers who were known to have engaged in the
unprotected activity and may have offered to hire still others 33 It
pointed out, moreover, that the employer's indications prior to the
discharge that some strikers would not be taken back because of then
misconduct did not reveal "an attitude of forgiveness" on the part
of the employer, nor was there "any other evidence showing express
forgiveness" by the employer 84
si Id , at pp 1107-1108
= Members Bean and Fanning dissenting
"Id, at pp 1106-1107
81 128 NLRB 1062
"Former Chairman Leedom and Members Rodgers and Jenkins
IC, at pp 1104-1105 Members Bean and Fanning, agreeing with the trial examinei
dissen ted
"Former Chairman Leedom and Member Rodgers pointed out tint they did not mes.n
to suggest that such an expression of ft,' giveness is indispensable to a finding of condone
tion However, Member Jenkins deemed two factors, (1) forgiveness and (2) restoration
of the offending party to that position he would ha y e occupied but for the offense, essential
to condonation Id, at p 1105, footnote 67 See also Plasts-Line, Inc , et at, 123 NLRB
1471, 1474 (1959), and Pleats Line, Inc v NLRB, 278 F 2d 482 (CA 6, 1960) As to
one employee, Member Jenkins found a violation on the basis of estoppel r tther than
condonation Kohler Co , above, 128 NLRB at p 1108, footnote 70 See also Twenty-fifth
Annual Report (1960), p 67, footnote 78