The Reinstatement Offer CASE STUDY 9-3 On September 13 two employees went on strike to protest their employer's refusal to bargain in good faith. The two employees were approached on the picket line by the company's manager on September 13 and told they were fired for going on strike. On September 16, the company circulated a letter to building tenants stating: ‘‘Management has made it clear that any employee who decides to strike, his employment will be terminated immediately with no chance of reinstatement. The building superintendent has assured us he will continue to work. However, two porters have chosen their own demise. Their employment is hereby terminated!'' On September 23, ten days after the strike had begun, the company's manager sent a reinstatement offer to the two discharged employees by certified mail. The letter stated: ‘‘In view of your actions, management had no choice but to replace you. However, due to your fine performance at the position you held, management would be agreeable to reinstating you if you return to work immediately. Should you decide that you would like to return to work, please notify me within five (5) business days. If I do not hear from you I will have no choice but to search for permanent replacements.'' The two employees received the letter but made no response within the specified five business-day period or at any time thereafter. The Union filed an unfair labor practice charge on behalf of the two employees, alleging that they had been engaged in an unfair labor practice strike and therefore the employer's discharge was illegal. Approximately two years and two months later, the NLRB upheld the union's unfair labor practice charge, finding the employer's discharge of the two employees was illegal. At the unfair labor practice hearing, the employer argued that if it were found guilty of unlawfully discharging the two employees, any back-pay remedy should be limited to the first 15 days of the strike. The 15-day period covered the ten days prior to the date on which management sent the two employees the offer of reinstatement and the five business days in which the employees had the opportunity to accept the offer but chose not to do so.

Questions

1. Did the strike on September 13 by the two employees represent an economic or unfair labor practice strike?

2. Did the company make a lawful reinstatement offer to the two employees, thus terminating the employer's backpay liability after 15 days from their original termination date? Explain your reasoning.