NATIONAL LABOR RELATIONS BOARD

VII. PRINCIPLES ESTABLISHED 79
Steamship Corporation. 55 There the employees went out on strike;
during the strike on December 11, the Board certified the union as
the exclusive collective bargaining representative; nevertheless, on December
14 the employer refused to bargain collectively; the strike continned;
on December 31 the union asked the employer to reinstate all
the strikers and to bargain with the union. The Board found that
the application for reinstatement was not conditional, and that the refusal
was in violation of section 8 (3) : "The respondent can find no
refuge in the fact that the application for reinstatement may have
been coupled with demands for collective bargaining."
The Board has held that under some circumstances an application
for reinstatement is not prerequisite to finding a refusal to reinstate
in violation of section 8 (3) : as where the employer's policy was to
notify laid-off employees when they were to resume work." In
Matter of Waterman Steams/tip Corporation," the respondent contended
through Ingram, its assistant port engineer, that an engineer
on vacation notifies the respondent when ready to resume work, and
that the employee in question, O'Connor, did not do this. The Board,
finding a discriminatory discharge and refusal to reinstate, said :
However, the evidence discloses that the respondent was well aware of the
fact that O'Connor was ready to resume work. O'Connor testified that he met
Ingram on the street one day after he had left the ship and had asked him if
he thought that the respondent would give him employment. Ingram did not
consider this request formal enough, and indeed, testified that he thought
that O'Connor was joking when he made the request. Moreover, it was customary
for the respondent to notify an engineer when his services were wanted,
and in the past O'Connor had been so notified on numerous occasions.
The employer may take other discriminatory action that induces
a reasonable employee to believe that application would be futile.
Here, too, the Board has not required a timely application. In
Matter of Mackay Radio c6 Telegraph Company, 58 at the close of a
strike, the employer blacklisted four employees because of their union
leadership and induced in them "the reasonable belief that they
would not be permitted to return to work" with the others; this
caused them to postpone their applications for reemployment; by
the time they applied, the available positions were taken. The Board
held: "To apply the 'first come, first served' principle to these four
operators under these circumstances constituted a violation of Section
8, subdivisions (1) and (3)." In Matter of Sunshine Mining
Conyany,59 the Board found that application for reinstatement by
pickets, upon the collapse of the strike, would be futile because the
power of reinstatement had been delegated by the employer to a
committee (formed with the unlawful assistance of the employer)
whose policy it was to deny reinstatement to pickets.
." Matter of Black Diamond Steamship Corporation and Marine Engineers" Beneficial
Association of Iron. Steel and Tin Workers of North America. etc.. 3 N. L. R. B. 84.
enforced in Black Diamond Steamship Corporation v. National Labor Relations Board,
94 F. (2d) 875 (C. C. A. 2d). certiorari denied. 304 U. S. 579 (19381.
'Hatter of Atlanta Woolen Mills and Local No. 2397. United Textile Workers of .4 meriea,
1 N. I,. R. B. 316 Matter of Columbia Radiator Company and Internatfonal Brotherhood
of Foundry Workers. Local Nn. 79, 1 N. L. R. B. 847.
.7 Matter of Waterman Steamship Corporation sand National Maritime Union of America.
7 N. L. R. B. 237.
" Matter of Mackay Radio d Telegraph Company, a corporation.. and American Radio
Telegraphists' Association. etc., 1 N. L. R. B. 201. enforced In National Labor Relations
Board v. Mackay Radio ct Telegraph Company. 304 U. S. 333 (1938).
" Matter of Sunshine Mining Company and International Union of Mine. Mill and
Smelter Workers, 7 N. L. R. B. 1252. •