(specially concurring).
I agree that the order of the Board should not be enforced, but my reasons for this conclusion are different from my colleagues.
The turning point in the case is the finding of the Board that Betty Lundy applied for reinstatement, or reemployment, which was refused. The Board based its finding that the refusal was discriminatory upon the fact that the employer did not reply to the Union’s letter of January 10th, together with its finding that this letter constituted an unconditional offer of Mrs. Lundy to return to work. Conceding for the sake of argument that the Union was empowered to act on behalf of the employees, still the letter can not, under the circumstances here, be said to be an unconditional offer of return to work of Mrs. Lundy. The majority opinion does not quote the entire letter and it is set forth in the margin.1 While it uses the language “without condition”, it is apparent from the tenor of the letter as a whole, as well as the circumstances under which it was presented, that it was merely a legal maneuver and that further proceedings were contingent upon such subsequent action as the group might take, that is, as stated, “that the group may meet promptly to take appropriate action.” At this time a strike had already been called and picket lines were in progress around the employer’s bus terminal, as had been true for 15 days. The letter was delivered during the course of bargaining negotiations, during the course of which the Union representatives had expressly stated they were representing only the employees on strike, and not the approximately 12 employees who had stayed on the job. At the time the positions of each of the strikers had been filled and were then filled with permanent replacements, save only as to that of Mrs. Lundy. In her case, a replacement had been engaged but had discontinued work. She never at any time indicated any availability or willingness to return.
Under all of the circumstances, it is entirely illogical to construe the letter of January 10th as an unconditional offer to return to work by her and inherently unfair to the employer to penalize it for *824failing to segregate from the total of thirty employees the one position which had been filled, but was then temporarily available, or to impute to it discrimination resulting from its failure to “hunt up Mrs. Lundy and advise her that she could return to work.” In my opinion, this was not required in this case and there is no basis for the sanctions which the Board seeks to impose upon the employer.
.
“January 10, 1950
“Mr. A. J. Emory, President
“Union Bus Terminal of Dallas, Inc.
“1500 Jackson Street
“Dallas, Texas
“Dear Sir:
“This letter will constitute an offer made through the Transport Workers Union of America for the return of all strikers at the Terminal to their jobs without condition.
“All striking employees, thirty in number, are now ready and willing to return to work, and by this means make application for reinstatement. This is a continuing offer in the event it is not immediately accepted. “Please inform us in writing of the place and manner in which these striking employees should report for duty. We would appreciate and request a reply at your earliest convenience, and if possible by Wednesday noon, January 11th, so that the group may meet promptly to take appropriate action.
“A copy of this communication is being mailed to the 16th Region of the National Labor Relations Board.
“Very truly yours,
“Transport Workers Union Of America
“By: A. R. Hardesty,
"Representative.”