NATIONAL LABOR RELATIONS BOARD

80 THIRD ANNUAL REPORT OF NATIONAL LABOR RELATIONS BOARD
Typically, the discriminatory action rendering an application unnecessary
is an offer of reinstatement by the employer based upon
an unlawful condition. In Matter of Sunshine Mining Company,
just referred to, the Board stated :
The machinery set up by the respondent to handle the reinstatement of
strikers conditioned the reinstatement of "neutral" strikers upon the denial of
reinstatement to the active strikers. This interposed a discriminatory condition
to the employment of the "neutral" strikers, namely, that they could
return to work only upon their acceptance of the denial of reinstatement and
the discharge of the active strikers, in effect, the destruction of the Union.
Under these circumstances the "neutral" strikers were not required to make
application for reinstatement.
In several cases the unlawful condition of reinstatement imposed
by the employer provides for renunciation of an employer-opposed
union, the notorious "yellow dog" contract. In Matter of Carlisle
Lumber Company, 6° following a strike, the employer reopened the
plant and notified the strikers that as a condition of returning to
work they must renounce "any and all affiliation with any labor
organization"; consequently most union Members made no formal
application. The Board found a refusal to reinstate in violation of
section 8 (3), stating:
To say that because they have not made application to go to work they
were not refused employment would be to place a penalty upon them for not
doing what they knew would have proved fruitless in the doing. The respondent's
illegal conduct in publishing the aforesaid notice precluded all
possibility of employment and relieved them of the necessity of making a formal
application. Nor is it an answer to say that they were striking and would not
have applied in any event. That was for them to decide. Furthermore, under
the Act an employee cannot be required to renounce his union affiliation as a
condition of employment.
The Board has reached the same result Where the unlawful condition
attached to reinstatement was joining an employer-favored union :
"The erection of this illegal barrier against reemployment of these
employees relieved them of the necessity of making formal application
for work." Similarly, an employer who violates section 8 (3) does
not interrupt the continuance of the unfair labor practice by making
an offer of reinstatement to the employees discriminated against which
is qualified by the unlawful condition of their joining an employerfavored
union. The Board has held that failure to make application
pursuant to such a discriminatory offer is immaterial; even though
the employees might not have responded to an offer not so conditioned."
The offer of reinstatement must be unequivocal, else the
Board will not consider it bona fide."
66 Matter of Carlisle Lumber Company and Lumber and Sawmill Workers Union, Local
E511, etc., 2 N. L. 11. B. 248. enforced in National 'Labor Relat4ons Board v. Carlisle Lumber
Company, 94 F. (2d) 138 (C. C. A. 9th, 1937). c ortiorari dented. 304 U. S. 575 (1938).
el Matter of Jacob A.. Hunkele, trading as Tri-State Towel Service, etc., and Local No.
40. United Laundry Workers Union, 7 N. L. R. B. 1276; Matter of The Grace company
and United Garment Workers, etc.. 7 N. L. Ft. B. 766.
62 Matter of .Zenite Metal Corporation and United Automobile Workers of America,
Local 'No. 442, 5 N. L. R. B. 509.
63 Matter of National Motor Bearing Company and. International Union United Automobile
Workers of America, Local No. 76. 5 N. L. R. B. 409.
64 Matter of Ifueltne Manufacturing Company and Local No. 1791, United Brotherhood of
Carpenters and Joiners of America, 7 N. L. R. B. 304