NATIONAL LABOR RELATIONS BOARD

210 THIRD ANNUAL REPORT OF NATIONAL LABOR RELATIONS BOARD
The employer is ordered to reinstate strikers upon application. As
in cases of employees discriminatorily discharged, 5° he must dismiss,
if necessary to effect such reinstatement, all persons hired since the
occurrence of the unfair labor practices to take the place of strikers.51
The manner in which strikers must be reinstated, similar to that
applicable to the reinstatement of employees who have been discriminatorily
discharged, is set forth in Matter of Electric Boat Corapany,
52 as follows:
All employees hired after the commencement of the strike shall, if necessary
to provide employment for those to be offered reinstatement, be dismissed. H,
thereupon, by reason of a reduction in force, there is not sufficient employment
immediately available for the remaining employees, including those to be offered
reinstatement, all available positions shall be distributed among such remaining
employees in accordance with the respondent's usual method of reducing its
force, without discrimination against any employee because of his union affiliation
or activities, following a system of seniority to such extent as has heretofore
been applied in the conduct of the respondent's business. Those employees
remaining after such distribution, for whom no employment is immediately
available, shall be placed upon a preferential list prepared in accordance with
the principles set forth in the previous sentence, and shall thereafter, in accordance
with such list, be offered employment in their former or in substantially
equivalent positions, as such employment becomes available and before other
persons are hired for such work.
Unlike employees who have been discriminatorily discharged, however,
strikers are awarded back pay only from the date of their application
for reinstatement pursuant to the Board's order 53 to the
date upon which the employer complies with its terms by offering
them reinstatement, or, if so ordered, by placing them upon a preferential
list for employment when it becomes available. 54 Such back
Labor Union No. 19981. 5 N. L. R. B. 577. See also Matter of Oregon Worsted Company
and United Textile Workers of America, Local 2485, 3 N. L. R. B. 36, order enforced in
National Labor Relations Board v. Oregon Worsted Co., 96 P. (2d) 193 (C. C. A. 9th),
where the Board said : "We have found that the respondent impeded and interfered with
the election which the Board by its decision in case numbered R-111 (supra) directed to
be held among respondent's employees on December 21, 1936. In the light of the purposes
of the Act and the experience upon which it is based, we are justified in assuming
that had the election been held when scheduled, respondent's striking employees would
thereafter have returned to work. It does not lie in the mouth of respondent, whose
conduct precluded that possibility, to assert the contrary."
0 See p. 200, et seg., supra.
51 See, for example, Matter of Oregon Worsted Company and United Textile Workers of
Anwrica, Local 2435, 3 N. L. R. B. 36, order enforced in National Labor Relations Board
v. Oregon Worsted Co., 96 F. (2d) 193 (C. C. A. 9th) • Matter of Biles-Coleman Lumber
Company and Puget Sound District Council of Lumber and Sawmill Workers, 4. N. L. R. B.
679, order enforced in National Labor Relations Board v. Biles-Coleman Lumber Co.,
98 F. (2d) 18 (C. C. A. 2d, 1938).
62 Matter of .Electric Boat Company and Industrial Union of Marine and Shipbuilding
Workers of America, Local No. 6, 7 N. L. R. B. 572. (This is a case in which the unfair
labor practices preceded the strike.)
In the more recent cases, the Board has limited the back pay period to commence 5
days after such application for reinstatement (Matter of Tiny Town Togs, Inc. and International
Ladies Garment Workers Union, 7 N. L. R. B. 54; Matter of Electric Boat
Company and Industrial Union of Marine and Shipbuilding Workers of America, Local No.
6, 7 N. L. R. B. 572).
54 Cf. Matter of American Manufacturing Company; Company Union of the American
Manufacturing Company; ,The Collective Bargaining Committee of the Brooklyn Plant of
the American Manufacturing Company and Textile Workers' Organizing Committee, C. I. 0.,
5 N. L. R. B. 443, where the Board ordered back pay for strikers from the date upon which
the employer refused them reinstatement unless they would accept conditions, the imposition
of which constituted new unfair labor practices, stating :
"When employees voluntarily go on strike, even if in protest against unfair labor practices,
it has been our policy not to award them back pay during the strike. However,
when the strikers abandon the strike and apply for reinstatement despite the unfair
labor practices, and the employer either refuses to reinstate them or imposes upon their
reinstatement new conditions that constitute unfair labor practices, we are of the opinion
that the considerations impelling our refusal to award back pay are no longer controlling.
Accordingly, we hold that where, as in this case, an employer refuses to reinstate strikers
except upon their acceptance of new conditions that discriminate against them because
of their union membership or activities, the strikers who refuse to accept the conditions
and are consequently refused reinstatement are entitled to be made whole for any losses
of pay they may have suffered by reason of the respondent's discriminatory acts."