PER CURIAM.
In Simmons, Inc. v. NLRB, 1 Cir., 1963, 315 F.2d 143, we held, reversing the Board in part, that the discharge on March 24, 1959 of a group of employees, known as the Comite, for inducing a strike to obtain recognition of the Comite when the employees were already lawfully represented, was not an unfair labor practice as to the majority of the Comite, but was as to one Aviles Padilla who had not taken part. We further held that the continuation of the strike to protest, these discharges became unprotected after the lawful representative executed a no-strike agreement on April 10, and that strikers after that date were not entitled to reinstatement. We excepted, and left open, the rights of Aviles Padilla, and returned the case to the Board for consideration of whether he was entitled to special treatment.
Finding that Aviles Padilla’s participation in the strike after April 10 was minimal and peaceful, and carrying to the limit our suggestion that he was in a special category because his discharge had been a clear unfair labor practice, the Board concluded that, on balance, the policies of the Act would be best advanced by requiring his reinstatement with back pay in spite of his post-April 10 activities.
On the facts found it seems to us that this is a typical matter in which we should not interfere with the Board’s decision. The fact that an employee who was clearly unlawfully discharged made an appearance to witness and perhaps passively encourage a strike in part initiated by his discharge, (see Simmons, Inc. v. NLRB, supra) need not cut off the rights which accrued to him by his wrongful discharge even though the strike itself was unprotected.
A decree must be entered enforcing the order of the Board, if 2(a), as it pertains to Aviles Padilla. The scope of the actual relief, in terms both of back pay and reinstatement in the light of certain allegedly changed circumstances, will be for the Board to determine in subsequent proceedings in accordance with its usual practice. See National Labor Relations Board v. Deena Artware, Inc., 1960, 361 U.S. 398, 411, 80 S.Ct. 441, 4 L.Ed.2d 400 (concurring opinion); NLRB v. Trinity Valley Iron & Steel Co., 5 Cir., 1961, 290 F.2d 47.
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".