Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 121show that it had majority support, would have found a bargainingorder to be inappropriate in this case."13. Offer of ReinstatementOn remand, the Board in Consolidated Freightways 162 held that"[i]f, and only if, an offer of reinstatement is fully valid on itsface, then an examination of a discriminatee's reasons for decliningthe offer must be undertaken" (slip op. at 5).The respondent discharged employee Hennessey for conductfound to be protected. An arbitrator ordered that Hennessey bereinstated without backpay, and that a final warning letter beplaced in Hennessey's personnel file. The respondent's offer ofreinstatement, on those terms, was rejected by Hennessey.The administrative law judge found the offer invalid due tothe warning letter and ordered the respondent to offer Hennesseyreinstatement with backpay. The Board adopted the judge'sdecision.The Court of Appeals for the District of Columbia Circuit remandedthe case to the Board (669 F.2d 790 (1981)), instructingthe Board to explain its rationale for not inquiring into the reasonsHennessey rejected the respondent's offer and to reconcileits position with Research Designing Service 163 and L. Ronney &Sons Furniture Mfg. Co.164The Board responded that in Research Designing "the reinstatementoffer, when made, apparently had no invalid conditions attached."The Board then stated:[A]ssuming arguendo that L. Ronney indicates that the Boardwill examine a discriminatee's reasons for declining a reinstatementoffer even when the only offer made is invalid on itsface, we overrule it and other similar cases and adhere to therule of Craw & Son 165 . . . that a reinstatement offer invalidon its face obviates the obligations on the part of a discriminateeto respond and that a discriminatee's refusal of the offer, onwhatever ground, will not relieve the respondent employer ofits obligation to make a valid offer in order to toll the runningof backpay.The Board reasoned that it was "the Respondent who actedunlawfully in discharging Hennessey," and the equities fell withHennessey. Thus, the respondent must extend "a facially validoffer of reinstatement before the burden shifts to the injured employeeto accept or reject the offer."161 Citing Gourmet Foods, 270 NLRB 578 (1984).162 290 NLRB No. 85 (Chairman Stephens and Members Johansen and Babson).163 141 NLRB 211 (1963).164 97 NLRB 891 (1951), enfd. as modified 206 F.2d 730 (9th Cu .. 1953), cert. denied 346 U.S. 937(1954).166 244 NLRB 241 (1979).