Crown Beer Distributors, Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1989

296 N.L.R.B. 541 (N.L.R.B. 1989)

CROWN BEER DISTRIBUTORS
Crown Beer Distributors , Inc. and Local 153, Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO and Craig H. Livingston . Cases 22-CA-
15103 and 22-CA-15224
September 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 26, 1988, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
a supporting brief. The Respondent also filed a
brief in answer to the General Counsel's cross-ex-
ceptions, and the General Counsel filed a brief in
answer to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions, 2 as modified, and to adopt the recom-
mended Order as modified and set forth in full
below.
i The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir . 1951).
We have carefully examined the record and find no basis for reversing
the findings
The Respondent also excepts to the judge 's findings that the three non-
struck employers , who together with the Respondent were members of
an employer association , locked out their employees in mid-April 1987;
that the Respondent discontinued its delivery system due to the difficulty
of maintaining it, and that association negotiator Francis Heston informed
those present at the June 15, 1987 negotiation session that the lockout
would end on June 22 . The record shows that the lockout began May 1,
1987, and there is no evidence indicating why the Respondent discontin-
ued its deliveries, or that Heston made the above statement at the June 15
meeting . These corrections , however, have no effect on the outcome of
the decision
8 The Respondent contends that the judge found that it unlawfully
"refus[ed ] to grant full reinstatement to strikers " and that this issue was
neither alleged in the complaint nor litigated at the hearing . We note that
the judge found that the Respondent violated Sec 8(a)(1) and (3) by of-
fering returning strikers reinstatement only as casuals and by refusing to
reinstate them except as casual employees . We further find that although
this matter was not alleged as such in the complaint , it is closely related
to the complaint allegation that the Respondent failed to reinstate the re-
turning strikers to their former positions Moreover, on our review of the
record, we find that the nature of the Respondent 's offers of reinstate-
ment was fully litigated and that the Respondent was given a full oppor-
tunity to present evidence on and to cross -examine witnesses regarding
this issue . In light of all the above, we find no merit to the Respondent's
argument that any variance between the complaint allegations and the
judge's findings precludes our finding of a violation here See , e g., Chel-
sea Laboratories, 282 NLRB 500 (1986), enfd 825 F 2d 680 (2d Cir 1987)
We shall amend the judge 's Conclusions of Law to conform to the
judge's findings and to the recommended Order
541
The judge found, and we agree, that the Re-
spondent violated Section 8(a)(1) and (3) of the Act
by offering former strikers reinstatement only as
casual employees, in effect depriving them of the
rights and protections to which they were entitled
as regular employees. In fashioning a remedy, the
judge recommended, inter alia, that the Respondent
be ordered to offer the 22 discriminatees immediate
reinstatement as regular employees. The Respond-
ent excepts, inter alia, to this recommendation, con-
tending that such a remedy is inappropriate given
the judge's finding that the replacements hired be-
tween April 6 and June 22, 1987,3 were permanent
and that a number of the former strikers had been
permanently replaced, and given the absence of
evidence showing that there were vacancies for all
22 former strikers. We find merit to the Respond-
ent's exceptions.
The record shows that in March 1987, prior to
the April 1 strike, the Respondent had approxi-
mately 41 drivers and warehousemen. Between
April 6 and June 22, the date of the unconditional
offer to return, a number of former strikers re-
turned to work. In addition, during that time, the
Respondent hired a number of new employees.
Thus, by the conclusion of the strike, the Respond-
ent employed approximately 61 drivers and ware-
housemen. On June 29 and 30, the Respondent of-
fered reinstatement to two former strikers, Scar-
pino and Miller. Further, from late August through
September 1987, the Respondent made offers of re-
instatement to at least 15 employees based, by its
own admission, on 5 vacancies at that time. There
is no record evidence regarding additional vacan-
cies or offers of employment.
Although the judge found it unnecessary to de-
termine whether all strikers had been permanently
replaced, he nonetheless found that at least some
had been replaced. He further found that all re-
placements hired between April and June 22, 1987,
were permanent employees. As the number of em-
ployees in the Respondent's employ by June 22,
1987, clearly exceeded the number of its employees
in March 1987, we find it reasonable to infer that
there were no vacancies for returning strikers as of
June 22. We also find, however, that the Respond-
ent's offers of reinstatement to two former strikers
(Miller and Scarpino) on June 29 and 30, together
with its admission regarding five additional vacan-
cies , show that by September 1987 there were at
least seven vacancies for which former strikers
should have been offered full reinstatement.4 Ac-
3 All dates are in 1987 unless otherwise indicated
4 We shall leave to the compliance stage the determination of when ad-
ditional vacancies for regular employees became available since June 22,
1987.
296 NLRB No. 78
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cordingly , we shall modify the judge's recommend-
ed remedy and Order to provide for reinstatement
to vacancies that became available after June 22,
1987, and to provide for a preferential hiring list
for the remaining strikers.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
3.
"3. The Respondent violated Section 8(a)(1) and
(3) of the Act by offering to reinstate the returning
strikers only as casual employees , without accumu-
lated benefits or seniority."
AMENDED REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices , we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
We have found that the Respondent violated
Section 8(a)(1) and (3) of the Act by offering rein-
statement to former strikers only as casual employ-
ees. To remedy this violation , we shall order the
Respondent to offer immediate reinstatement as
regular employees , without prejudice to their se-
niority or any other rights and privileges, to all
strikers for whom vacancies became available after
June 22 , 1987, discharging , if necessary , any per-
sons hired as permanent employees to perform
drivers ' or warehousemen 's work after June 22,
1987.
Those former strikers for whom no positions are
immediately available shall be placed on a prefer-
ential hiring list in accordance with their seniority
or other nondiscriminatory criteria and they shall
be reinstated before any other persons are hired, or
on the departure of their permanent replacements.
Those former strikers entitled to immediate rein-
statement shall be made whole for any loss of earn-
ings or benefits caused by the Respondent 's unlaw-
ful conduct . In addition , because employees Scar-
pino and Miller accepted employment with the Re-
spondent initially in casual status, they will addi-
tionally be made whole for any loss of earnings or
benefits suffered by being reinstated as casual,
rather than regular , employees during this period.
Backpay shall be computed in accordance with the
formula set forth in F. W. Woolworth Co., 90
NLRB 289 ( 1950), with interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set forth in full below and
orders that the Respondent , Crown Beer Distribu-
tors, Inc., Wall Township , New Jersey , its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to reemploy recalled economic
strikers except as new employees and refusing to
credit them with their accrued seniority.
(b) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of any of the rights guaranteed them by Sec-
tion 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer the following employees reinstatement
to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and
privileges, to the extent vacancies have become
available since June 22, 1987, discharging , if neces-
sary, any persons hired to perform work as drivers
and warehousemen since that date.
Frederick Baker David Miller
Richard Bertoncin Peter Novak
Kenneth Damurjian James Parnell
George Delp
Mark Furiato
Kirk Gardner
William
Greenwood
Fredric T. Hand
Mark Klotz
Scott Laird
Thomas McNamara
Joseph Scarpino
Joseph Scarpino, Jr.
Joel Scholtz
Michael Softcheck
Scott Thomson
Robert Wademan
James White
James Yukka
(b) Make these employees whole , with interest,
for any loss of earnings and other benefits suffered
as a result of the discrimination against them, in the
manner set forth in the "Amended Remedy" sec-
tion of this decision.
(c) Reimburse Joseph Scarpino and David Miller
for any additional loss of earnings and other bene-
fits suffered by reason of being reinstated as casual,
rather than regular, employees.
(d) Place the remaining former strikers on a pref-
erential hiring list in accordance with their seniori-
ty or other nondiscriminatory criteria, and offer
them reinstatement before any other persons are
hired , or on the departure of their permanent re-
placements.
(e) Preserve and, on request , make available to
the Board or its agents , for examination and copy-
ing, all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
CROWN BEER DISTRIBUTORS
amount of backpay due under the terms of this
Order.
(f) Post at its Wall Township, New Jersey facili-
ty copies of the attached notice marked "Appen-
dix."5 Copies of the notice, on forms provided by
the Regional Director for Region 22, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
a If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
Kirk Gardner
William
Greenwood
Fredric T. Hand
Mark Klotz
Scott Laird
Thomas McNamara
Joel Scholtz
Michael Softcheck
Scott Thomson
Robert Wademan
James White
James Yukka
543
WE WILL place the names of the remaining em-
ployees on a preferential hiring list and offer them
reinstatement before any other persons are hired,
or on the departure of any permanent strike re-
placements.
WE WILL make them whole, with interest, for
any loss of earnings and other benefits suffered as a
result of our failure to offer them reinstatement as
regular employees and WE WILL make whole
Joseph Scarpino and David Miller, with interest,
for any loss of earnings and other benefits suffered
by their being reinstated as casual , rather than reg-
ular, employees.
CROWN BEER DISTRIBUTORS, INC.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to reemploy recalled eco-
nomic strikers except as new employees and WE
WILL NOT refuse to credit them with seniority for
their prior service.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you in Section 7 of
the Act.
WE WILL offer the following employees rein-
statement to their former jobs or, if those positions
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights and privileges previously enjoyed, to
the extent these positions are available, discharging,
if necessary , any persons hired as permanent em-
ployees since June 22, 1987, to perform the work
of drivers and warehousemen.
Frederick Baker David Miller
Richard Bertoncin Peter Novak
Kenneth Damurjian James Parnell
George Delp Joseph Scarpino
Mark Furiato Joseph Scarpino, Jr.
Mitchell A. Schley, Esq., for the General Counsel.
Irving L. Hurwitz, Esq. (Carpenter, Bennett & Morrissey),
for the Respondent.
Edward A. Cohen, Esq. (Schneider, Cohen, Solomon, Leder
& Montalbano), for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This
case was heard by me on April 19, 21, 22, 27, and 28,
1988, in Newark, New Jersey. The consolidated com-
plaint herein, which issued on December 30, 1987,1 was
based on an unfair labor practice charge filed on June 24
by Local 153, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO (the Union), and an unfair labor practice
charge filed on September 1 by Craig Livingston. The
consolidated complaint alleges that Crown Beer Distrib-
utors, Inc. (Respondent) violated Section 8(a)(1) and (3)
of the Act, since on or about June 21, by failing and re-
fusing to reinstate 22 named strikers despite the fact that
they made an unconditional offer to return to work.
On the entire record, including my observation of the
witnesses, and the briefs received, I make the following2
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION STATUS
There being no dispute , I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union
i Unless indicated otherwise , all dates herein refer to the year 1987
2 General Counsel 's motion to correct the transcript , dated June 29,
1988, was unopposed and is granted.
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is a labor organization within the meaning of Section
2(5) of the Act.
11. THE FACTS
Respondent is a member of the Monmouth and Ocean
County Beer Distributors Association (the Association),
which negotiates with the Union on behalf of Respond-
ent and its three other members. A collective-bargaining
agreement effective April 1, 1984, through March 31
covered the drivers , warehousemen , and helpers em-
ployed by Respondent. Under article 2.1 of the agree-
ment there are three distinct categories of employees:
regular, extra, and casual . When a new employee is hired
he is a casual employee for the first 6 months of his em-
ployment with Respondent ; this is similar to what other
agreements would refer to as a probationary employee
with few benefits other than a basic wage ; additionally,
they may be laid off at the discretion of Respondent.
After being employed by Respondent for 6 months of
continuous employment the employee becomes an extra
with a resulting wage increase . There are two methods
of becoming a regular employee of Respondent with its
resulting protections and benefits : being employed for 1
year by Respondent (without more than a specified
number of absences) or pursuant to the first sentence in
article 2 . 1 of the agreement:
Regular employees are those employees listed on
the regular employee list at the Company as of
March 31, 1984 . This list shall be initialed each
March 31st by the Company and the Union.
Negotiations for a new agreement commenced on
March 4; the principal negotiator on behalf of the Asso-
ciation was Francis Heston and for the Union , Michael
Markowitz and Henry Tchorzewski, union president.
There were four or five negotiating sessions prior to
March 31; as of the March 31 meeting no new agreement
had been reached by the parties . At that meeting Tchor-
zewski told those present that the Union was going to
strike Respondent at midnight ; Heston said that if the
Union struck Respondent , it was Respondent 's intent to
permanently replace the strikers . A strike of Respondent
began April 13 at Respondent 's premises ; in about the
middle of April the three other Association members
locked out the Union 's members . Between April 2 and
June 15 there were approximately nine negotiating ses-
sions; at each of these sessions Heston told the union ne-
gotiator (initially Tchorzewski, then, commencing on
May 21 , Markowitz) that Respondent was permanently
replacing its striking workers . Beginning with the May
8 By letter dated April 1 to its employees Respondent stated, inter alia:
"We want you to know that we intend to continue our operations in
order to meet customer demands This will be done with the help of our
supervisors and by hiring permanent replacements for our striking em-
ployees." By letter dated April 11. Respondent wrote its employees:
We previously advised you that the Company planned to continue
operations to meet our customers' needs by , among other things
hiring permanent replacements . Since our last letter to you, a
number of new employees have been hired for pemanent [sic] jobs to
replace strikers for those of you who are permanently replaced,
you will be placed on a preferential hiring list for any future vacan-
cy that might open up for which you are qualified.
21 meeting Markowitz asked how many of the workers
had been replaced and Heston told him that he didn't
know . In late April the union membership voted against
ratifying a tentative agreement reached by the parties.
Another tentative agreement was reached by the parties
at a meeting on June 10; at that time Markowitz told
Heston that the Union's bargaining committee would
recommend that the membership accept the contract.
Shortly thereafter Markowitz called Heston and told him
that the contract had been overwhelmingly rejected by
the membership . Respondent and the other three Asso-
ciation members then decided that beginning on June 22,
they would resume deliveries4 to their customers and at
the next negotiation session on June 15, Heston told
those present that effective June 22 the lockout at the
three employers' premises would end, and the four Asso-
ciation members would resume making deliveries to their
customers . On Sunday morning , June 21 , Respondent's
employees ratified the contract that they had rejected 10
days earlier . That morning Tchorzewski called Heston
and told him that the employees ratified the agreement
so they have a contract and the strike was over; he told
Heston that he instructed his members to report for
work the following morning . Heston answered "that's
fine" or "it was the right thing to do."
On June 22, about 6:30 a.m., Joseph Scarpino, the
union shop steward at the facility , and almost all the re-
maining strikers ,5 went to the facility. Scarpino testified
that he met Richard Koenig, Respondent 's manager of
corporate affairs, in the parking lot. Koenig asked what
they wanted and Scarpino told Koenig that the member-
ship had ratified the contract and that Tchorzewski had
told Heston of the ratification and that Heston said the
men should return to work and they were ready to
return to work . 6 Koenig said that he was not aware of
any of that, and that he had no work for them. Two of
the strikers asked if they had been permanently replaced
and Koenig said they had. Scarpino asked him to supply
them with letters to that effect . Scarpino then asked if
they had been replaced and Koenig said: "Yes, some of
you have been replaced," and that they would be put on
a preferential hiring list and that they would be recalled
as casuals . The following day Scarpino went to the facil-
ity and picked up identical letters addressed to each of
the returning strikers.' The letter said that they had been
4 During April , Respondent used managers , administrators, and any-
body else capable of doing so to drive the trucks making deliveries. Due
to the difficulty of maintaining this delivery system, commencing on or
about May I Respondent discontinued its delivery system and instituted a
system whereby its customers came to Respondent 's facility to pick up
their orders. Deliveries resumed June 22
5 Scarpino testified that he went with the remainder of the strikers
"just about all of them ." He believed that all the alleged discriminatees
listed in the complaint were with him, except , "if anyone was missing it
was maybe one man " Striking union member James Parnell (listed in the
complaint) testified that he did not go to the facility on the morning of
June 22 because he did not know that the strike had ended.
6 One of the individuals present with Scarpino was Robert Giles, who
was originally listed in the complaint as one of the discriminatees whom
Respondent refused to reinstate . At the commencement of the hearing,
General Counsel moved that Giles' name be withdrawn and this motion
was granted . Apparently , Respondent fired Giles before the strike began.
4 There are 22 discriminatees alleged in the complaint . For some unex-
plained reason there was a 23d letter to a Patrick Fallon.
CROWN BEER DISTRIBUTORS
permanently replaced and they would be placed on a
preferential hiring list. Scott Thompson, a member of the
Union who participated in the strike through its conclu-
sion, testified that although he arrived at the facility on
June 22 before the time set, when he got there he saw
that a discussion was taking place between Koenig and
the drivers. At that time, one of the drivers asked
Koenig if they had all been replaced : "Mr. Koenig's
reply was that some of us have been replaced ."A driver
then asked Koenig which of them had been replaced and
he said that , at that time , he did not know, but they
would soon be receiving a letter in that regard . Striker
Bill Greenwood testified that he was a member of the
group that came to the facility early in the morning on
June 22; Koenig asked if he could help them and Scar-
pino said that they ratified the contract and wanted to
return of work . Koenig said that he had not been in-
formed that they had ratified the contract and he was
not expecting them . Koenig then said that they had all
been permanently replaced , "and after some discussion,
he contradicted himself and said , some of you have been
replaced but he doesn't know the exact number yet." He
also told the strikers that they would be put on a prefer-
ential hiring list for future jobs.
Koenig testified that on the morning of June 22 Scar-
pino and about 20 other strikers came to the facility;
Scarpino said that they were there to return to work.
Koenig said that he did not have any jobs available, that
they had been permanently replaced and would be
placed on a preferential hiring list . Somebody asked that
it be put in writing , which Respondent did in a letter
sent to each of the strikers. He testified that he never
told anyone they only some of them had been replaced.
The General Counsel introduced into evidence a newspa-
per article in the June 23 edition of the Asbury Park
Press, stating as follows:
Although he did not know how many, Crown
spokesman Richard D. Koenig said some of the
drivers had been permanently replaced. He said the
union workers who had been replaced would be put
on a preferential hiring list , and when jobs opened
up for which they were qualified, they would be
called back.
Koenig testified that during the strike he spoke to report-
ers about the situation . On either June 21 or 22, he never
told anyone that some of the strikers had been replaced,
although he did say that to reporters prior to the middle
of June.
James Parnell , who participated in the strike for its du-
ration , testified that about a week before the strike's con-
clusion he went to the facility to speak to Paul Long-
street, Respondent 's assistant warehouse manager. Long-
street called him into his office and Parnell asked him if
he had been replaced , "because if I was replaced, I need
it in writing because I wanted to go on with my life."
Longstreet walked out of his office and returned with
Steve Etting , Respondent 's warehouse manager. Parnell
asked him if he was replaced . "Steve, if I'm replaced, I
have to have it in writing . . . this way I can forget all
this and go to work and I got to go on with my life."
545
Etting asked Parnell to wait a few minutes while he
went up front (where Respondent 's main offices are lo-
cated). About 15 minutes later Etting returned and said:
"As of right now, nobody' s been replaced . Until this
contract dispute is resolved , nobody's being replaced."
On March 31 Respondent employed 32 regular drivers
and 5 regular warehousemen . On April 1 every one of
these regular employees joined the strike . From April 6
through June 20, 17 of these strikers crossed the Union's
picket line and returned to work; 13 of these were regu-
lar employees and when they crossed the picket line and
returned to work, they returned as regular employees.
All these employees who returned prior to June 22 were
told that their positions (whether driver or warehouse-
men) were permanent . The 22 alleged discriminatees in
this matter are the regular employees who did not at-
tempt to return to Respondent's employ until June 22, at
which time they were told that they had been perma-
nently replaced and would be placed on a preferential
hiring list and thereafter would be reemployed as casual
rather than regular employees.
On June 29 and 30 Scarpino and striker David Miller
were reinstated as casual employees; shortly thereafter
Miller told Koenig that he did not want to be reinstated
as a casual employee, that he felt that he deserved to be
reinstated as a regular employee. When Respondent re-
fused this request Miller ceased his employment with Re-
spondent . Scarpino maintained his employment with Re-
spondent and, at the time of the hearing herein, was an
extra employee . Beginning on July 1 Respondent wrote
to, and called , 15 former strikers informing them of
available positions . A large number of these individuals
wrote to Respondent saying that they felt that they were
entitled to be reinstated as regular employees and would
not return as casuals. Since the last of Respondent's let-
ters referred to above, dated September 8, Respondent
has made no further offers of reinstatement to the strik-
ers.
Between the fall of 1986 and March, Respondent main-
tained a staff of about 41 drivers and warehousemen. At
the conclusion of the strike, on June 22, it employed 61
employees in those classifications ; Respondent alleges
that they were all permanent employees . In addition, it
employed three temporary summer employees. By
August 31 this number had dwindled to 31 drivers, 4
warehousemen , and 5 temporary drivers, who were com-
pleting some work. When Longstreet left Respondent's
employ in February 1988, Respondent employed about
33 drivers and 4 warehousemen.
Respondent alleges that (with minor exceptions) all the
employees it hired between April 1 and June 22 were
hired as permanent replacements for the strikers, and
were so informed . Koenig testified that when the strike
began Respondent 's president told him to start hiring
people to replace the striking employees . At this time, he
met with Longstreet and Etting and told them that Re-
spondent was going to hire employees to permanently re-
place the drivers and they were to tell the applicants that
they were being hired for a permanent position to re-
place the strikers and they would not be let go when the
strike ended . He personally interviewed and hired four
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
men;8 he told each what the job involved , and that Re-
spondent was hiring to replace their striking workers.
That they were being hired for permanent positions with
Respondent and would not be let go when the strike
ended . They accepted the jobs. In addition Respondent
employed a number of employees in administrative non-
unit positions who expressed an interest in becoming
drivers for Respondent. On about June 8 Koenig met
with four of these employees9 who told him that they
wanted to be employed as drivers; Koenig told them that
the jobs would be permanent and they would be replac-
ing drivers . When the drivers returned they would not
be replaced , but, on the other hand , they could not
choose to return to their former positions if they became
drivers . About a week later each said that he wanted to
become a driver, and all four did so . Koenig testified fur-
ther that during May and June (until June 22) he had a
number of meetings with employees (both individually
and in groups). They principally said that they had heard
that when the strike was over the strikers would return
and they would be out . Koenig said that was not so; they
had been hired by Respondent as permanent replace-
ments for the strikers and would remain, even when the
strikers returned.
Longstreet testified that in about early April, Koenig
instructed him to interview people because Respondent
was going to hire permanent drivers and warehousemen
to replace the striking employees . In that pursuit, Long-
street interviewed and hired 27 drivers and warehouse-
men; he told each what the job involved and that the
drivers and warehousemen were on strike and that Re-
spondent was looking to hire people to permanently re-
place them . The dates of these interviews and hires oc-
curred between March 28 and June 18, although some
employees who were hired in about mid-June did not ac-
tually begin working for Respondent until June 22 or
shortly thereafter . This is because although they accept-
ed employment with Respondent prior to June 22, they
wanted to give notice to their prior employer . When he
interviewed these people he asked them about their prior
experience and whether they would have any problem
crossing a picket line. Since Respondent needed employ-
ees badly, his question and interview were not as exact-
ing as it would have been in a nonstrike situation, but
there were still a few employees whom he interviewed
but did not hire. Koenig testified that , normally Re-
spondent checks references for all employees it inter-
views for hire . During the strike they checked references
for some, but not all, applicants . The reasons were their
urgent need for employees and the fact that they previ-
ously knew some of the applicants.
Etting testified that in the beginning of April Koenig
told him that Respondent was going to hire permanent
drivers to replace the drivers who were on strike. In
April and May he interviewed three applicants for em-
ployment; he told each that Respondent was looking for
permanent drivers to replace their striking drivers, and
6 One of these men had worked for Respondent in 1986 in a temporary
position as a summer employee.
At the beginning of the strike these four employees drove the trucks;
in May , when the Respondent ceased deliveries , they worked in the
warehouse
these employees accepted the positions and became em-
ployees of Respondent . He also testified that during the
strike, on a few occasions , about 15 or 20 employees
asked him whether they would be replaced when the
strikers returned , and he told them that they would not
be replaced if and when the strikers returned.
The agreement between the parties contains a provi-
sion regarding the maximum limit for one- and two-man
trucks; it was Respondent 's position that this provision
was meant to be used only occasionally by drivers who,
for some personal reason , were unable to handle a full
load on a particular day. Beginning in about January,
however, all (or most) of Respondent 's drivers invoked
this provision . The result of this was that Respondent
had to hire new employees as either drivers or helpers to
complete its deliveries ; these individuals were all hired as
temporary employees to work until the dispute was re-
solved. Some of these individuals were still employed by
Respondent on April 1 when the strike began and Re-
spondent maintained these individuals in their employ. In
about May Respondent offered permanent employment
to eight of these individuals; Koenig testified that he
spoke to all but one of these employees and told them
that he was offering them permanent positions of replace
the striking employees . All accepted the offers . Etting
spoke to the other driver and offered him a position as a
permanent driver to replace the striking drivers and he
accepted the offer . One employee , John Dolan , who was
hired during the slowdown to supplement the work
force, quit Respondent 's employ prior to April 1; in June
Paul Rapisardi , Respondent 's vice president , asked Dolan
if he wanted to return to Respondent 's employ and he
said that he did ; Rapisardi then offered Dolan a job as a
permanent replacement for the striking drivers and
Dolan accepted the position; he began working again for
Respondent the week ending June 16.
On rebuttal, the General Counsel presented four wit-
nesses who were interviewed and hired by Respondent
during the strike. Brian Lukowitz testified that his first
day of employment with Respondent was June 29; he
was interviewed by Longstreet about 10 days earlier.
Lukowitz testified that he asked Longstreet about the
starting salary and told him that he could not begin im-
mediately , and would have to give his present employer
2 weeks' notice . He asked about the permanency of the
job; Longstreet told him "for the summer I could be a
permanent employee, but after that , he couldn 't really
say one way or another. He couldn't really guarantee a
full time job." Lukowitz then asked if he would still
have a job when the strikers returned, " and he couldn't
say that I would definitely still have a job." Neither
Longstreet nor any other official of Respondent told him
that he was being hired as a permanent replacement for
the striking employees. During this interview Longstreet
did not use the words "permanent," "temporary " or "re-
placement ." On cross-examination , Lukowitz was asked
if it was his understanding that the job he accepted was a
permanent job; he answered: "That was what I had
hoped for." He testified that he left a job that he had
held for 6 years at a higher salary to accept employment
CROWN BEER DISTRIBUTORS
with Respondent.' ° During the interview , Longstreet
told him that "if everything worked out," after being
employed by Respondent for 6 months , he would receive
a union book and a pay increase . Counsel for Respond-
ent showed Lukowitz an affidavit that an associate in his
firm took from Lukowitz at his place of employment in
February 1988. The affidavit states that he was inter-
viewed by Longstreet on June 19 and that Longstreet
told him that he had a permanent job; that he was hired
as a permanent employee, not contingent on the return
of the strikers . When Lukowitz was asked whether he
read this affidavit before he signed it, he testified that it
was taken in the back room of his place of employ-
ment-"which was rather inconvenient"-he looked at
it, "but I didn 't really have time to actually sit down and
read it well."
Edwin Brandt testified that he had an interview with
Longstreet in mid -June; during this interview Longstreet
never said that he was being hired as a permanent re-
placement for strikers , but "I 'm not sure exactly how it
was worded by Mr . Longstreet . My intentions were that
it was a permanent position ." At the time he was em-
ployed elsewhere at a salary higher than that offered by
Respondent ; he was looking for a permanent position
and would not have accepted a temporary position with
Respondent . During the interview, Longstreet told him
that the first 6 months of employment was a probation-
ary period and the foreman would decide whether he
would remain in Respondent 's employ . Brandt gave an
affidavit in February 1988 to the same associate of coun-
sel for Respondent ; it states, inter alia, that Longstreet
"told me that employees were on strike, but that I was
hired for a permanent position at Crown, and that I
would not be let go when the strikers returned ." Brandt
began working for Respondent on June 19 (to allow for
notice to his prior employer) and remained in Respond-
ent's employ for approximately 6 weeks.
Matthew Henry testified that he was interviewed by
Longstreet on June 12; at the time he was employed by a
lumberyard at an hourly rate of $6.25 with a lot of over-
time work . Henry asked what Respondent paid, and
Longstreet said for the first 6 months of employment
that pay was $40 a day; he did not tell him what the rate
would be subsequent to that time . "I asked him if the job
was temporary or permanent . Paul said he wasn 't sure."
Longstreet did tell him that after 6 months of employ-
ment he would be a permanent driver . He accepted the
job and began working for Respondent on June 29 in
order to give his employer 2 weeks' notice . At the time
of the hearing herein , he was still employed by Respond-
ent.
Richard Lazzaro testified that on June 18 he had an
interview with Etting at the facility (he was unemployed
at the time). Etting told him that after the initial 6-month
probationary period he would receive a small increase in
pay. After the second 6-month period he would become
"a full time employee , I would have benefits, I would be
a union member." He testified that during this interview
Etting did not tell him that he had been hired as a per-
10 After 3 weeks' employment with Respondent , he left to return to
work at his prior employer.
547
manent replacement for strikers . Lazzaro also gave an af-
fidavit to the same associate of counsel for Respondent
in February 1988 which he read and signed. It states,
inter alia, that at the interview "Etting told me that I
had a regular position subject to a period when I was
called a casual . It was my understanding that the job was
permanent . ..." Lazzaro began working for Respond-
ent on June 22 and ceased his employment with Re-
spondent 3 weeks later.
The obvious question herein is why Respondent had to
hire such a large number of permanent employees be-
tween April 1 and June 22, so that by June 22 it em-
ployed approximately 64 permanent employees when
prior to the strike , its normal complement of permanent
employees was about 40? Every summer prior to 1987, in
about May , Respondent hired between 20 and 40 tempo-
rary summer employees , principally students who
worked from about Memorial Day through Labor Day,
which is Respondent 's busiest time. Koenig testified that
in 1987 Respondent hired only three individuals as tem-
porary summer employees ; the other employees were
hired as permanent employees to replace the strikers.
The General Counsel , alleges that Respondent 's claim
that these employees are permanent is a subterfuge for
the fact that most or all of these replacement employees
were really temporary summer help and the fact that so
many left Respondent 's employ prior to Labor Day
proves it.
Koenig and Longstreet testified to the disparity be-
tween Respondent 's normal employment complement of
about 40 permanent unit employees and its alleged com-
plement of about 60 during the strike . Koenig testified
that one reason for the larger number of unit employees
is that they purposely "overhired," because their experi-
ence was that they lose a large number of employees
through attrition ; employees quit because they can not
physically handle the job or they are fired because they
can not perform it adequately . In addition these were
new inexperienced employees-"they couldn 't do the
work of the people that were there before." Therefore,
Respondent had to give these drivers lighter loads or put
two men on a truck instead of one . Finally, Respondent
had to put more than one driver on some trucks during
the strike because the pickets were harassing the drivers
on some routes . Longstreet testified that Respondent em-
ployed more employees at that time than usual : "I knew
that it was higher than we usually ran with , but the
people were less experienced and it really wasn't my
place to question it." Another factor Longstreet testified
to, was that the replacements did not have the "guid-
ance" of the senior drivers, although almost one -half of
them crossed the line and worked.
One aspect of the General Counsel (and Charging
Party 's) case herein is that after the strikers made an un-
conditional offer to return on June 22 , Respondent of-
fered to reinstate them as casuals , whereas strikers who
returned prior to June 22 returned as regular employees.
Respondent defends that this action was mandated by its
agreement with the Union . As stated , supra, the agree-
ment that expired on March 31 provided for two meth-
ods for employees to become regular employees ; the first
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was: "Regular employees are those employees listed on
the regular employee list at the Company as of March
31, 1984. This list shall be initialed each March 31 by the
Company and the Union." The other method of obtain-
ing regular status is, basically, to complete a year of em-
ployment with Respondent with minimal breaks in serv-
ice. The new contract between the parties, dated June
22, states in this regard: "Within ten (10) days following
execution of this agreement, each distributor shall com-
pile and give to the Union an up-to-date list of their reg-
ular employees. This list shall be initialed each March
31st by the Company and the Union." The alternate
method, as stated supra, is also set forth. Michael
Markowitz, the chief negotiator for the Union during
this period, testified that at the final negotiating session
on June 10, Heston gave him a draft agreement; this pro-
vision was the same as it had been in the prior agreement
except that the date (March 31) had been crossed out:
He said, they wanted to make a change on that
because had they given us a seniority list, as of the
31st, it would have been immediately incorrect in
that we were now two and a half months on strike.
There were indications that a number of people
were-would take retirement. Some others had in-
dicated they may not be coming back and there also
might be some new employees. So, current seniority
list as of March 31, would have been, by its issu-
ance immediately, incorrect.
Markowitz testified that there was a very brief discussion
on this point and the Union agreed that the list of regu-
lar employees should be prepared 10 days after the new
agreement was executed ; there was no discussion that
through this provision the Union was waiving any rights
of the strikers in returning . Koenig testified that the
agreement between the parties in negotiations on this
provision was that regular status would be determined
by those employees who were on the regular seniority
list on the date the new agreement was executed-June
22, and since the 22 alleged discriminatees were not on
this seniority list on June 22, they were not regular em-
ployees under the new agreement . By letter dated
August 17, Respondent sent the Union a list of its regu-
lar employees as of June 22; it listed 14 employees, 10 of
whom had been regular employees as of March 31. The
other four began their employ with Respondent May
1984, October 1985, and May 1986.
Finally, Respondent defends that this matter should be
deferred to the arbitration procedure under the agree-
ment under Collyer Insulated Wire, 192 NLRB 837
(1971), and United Technologies, 268 NLRB 557 ( 1983).
In this regard on July 1 and 2 Scarpino and Miller filed
three grievances alleging that Respondent paid them
below their "seniority status after recall to work in viola-
tion of Article 8.2." Respondent denied all three griev-
ances on July 7. By letter dated July 9 to Koenig, the
Union informed him that it was proceeding to the second
step with these grievances . By letter dated July 17 to the
American Arbitration Association (the AAA), the Union
stated : "A dispute has arisen between the parties con-
cerning the grievances above noted . Please process the
same for arbitration ." In the following paragraph, how-
ever, the letter states : "I would ask that you defer the
issuance of panels for the present time as determinations
are being awaited from the National Labor Relations
Board with regard to the surrounding issues ." By letter
to the parties dated February 8, 1988, AAA stated that
they had received a "communication " from counsel for
the Union "advising that the above entitled matter has
been withdrawn from arbitration ." The AAA requested
written confirmation of this withdrawal from the parties.
Counsel for the Union wrote the AAA stating that he
never meant to withdraw the Scarpino and Miller mat-
ters and by letter dated February 26, 1988, the AAA in-
formed the parties that the "case remains open, but in
abeyance pending further instructions by the parties."
Apparently , it has proceeded no further . The agreement
between the parties states that if a grievance has not
been adjusted at step 1 or step 2, either Respondent or
the Union may submit the grievance to arbitration. Re-
spondent is willing to arbitrate the matters involved
herein.
Analysis
On June 21 Tchorzewski informed Heston that the
contract had been ratified, the strike was over and the
employees would be reporting for work the following
day; on the next morning, Scarpino appeared at the facil-
ity with the other employees and told Koenig that they
were there to return to work. Counsel for Respondent,
in his brief, alleges that this offer to return was not a
valid offer to return. First, alleges counsel for Respond-
ent, "in effect, Scarpino said that unless all the strikers
were reinstated together, none of them would return"
(emphasis added). Starting with that unsupported
premise, counsel for Respondent concluded that the offer
to return was invalid because: (1) it included Giles,
whose name had been withdrawn from the complaint,
apparently, because he was fired by Respondent prior to
the commencement of the strike; (2) because the offer to
return was an "all or nothing" offer, if only one striker
had been replaced it was not a valid offer for anyone; (3)
the offer included George Delp, a warehouseman prior
to the strike , and all the warehouse jobs were filled on
June 22 (three by returning strikers and two by replace-
ments); (4) "[t]here is no evidence that is was made on
behalf of anyone other than Scarpino, Thompson and
Greenwood," and (5) as Parnell was not present with
Scarpino and the other strikers on June 22, this "prohib-
its any finding that all strikers were present on June 22
when they allegedly made application to return."
All these arguments are rejected as frivolous; on June
21 the Union informed Respondent's chief negotiator
that the employees would be reporting for work the next
day and he agreed that it was the right thing to do. The
following morning Scarpino and the other employees ap-
peared at the facility. Obviously, he could not remember
precisely each and every individual who was with him;
one or two (including Parnell) were not there. However,
Scarpino's credible testimony establishes that he made an
unconditional offer to return to work on behalf of the
striking employees and I reject Respondent's unsupport-
CROWN BEER DISTRIBUTORS
ed contention that this was an "all or nothing" offer to
return . I therefore find that Scarpino made an uncondi-
tional offer to return to work, on behalf of the striking
employees , to Koenig on June 22.
Did Respondent violate Section 8 (a)(1) and (3), of the
Act by failing to reinstate the 22 discriminatees named in
the complaint? Employees engaged in an economic strike
are entitled to reinstatement upon making an uncondi-
tional offer to return to work. However, their employer
may refuse to reinstate them if it has a "legitimate and
substantial business justification" for doing so. NLRB v.
Fleetwood Trailer Co., 389 U.S. 375, 379 (1967). The per-
manent replacement of economic strikers in order to con-
tinue business operations is a legitimate business justifica-
tion for refusing to reinstate economic strikers following
an unconditional offer to return NLRB v. MacKay Radio
& Telegraph Co., 304 U.S. 333 (1938). However it is the
Respondent 's burden to establish that the replacements
were hired on a permanent basis prior to the strikers'
offer to return. Zapex Corp., 235 NLRB 1236 (1978); As-
sociated Grocers, 253 NLRB 31 (1980); Medallion Kitch-
ens, 275 NLRB 58 (1985); NLRB v. Cutting, Inc., 701
F.2d 659 (7th Cir. 1983). In order for replacement em-
ployees to be determined to be permanent replacements
of the strikers, there must be a mutual understanding and
commitment on the part of both the employer and the
employees of the permanent nature of their employment.
Hansen Bros. Enterprises, 279 NLRB 741 (1986); and
NLRB v. Murray Products, 584 F.2d 934 (9th Cir. 1978).
Koenig, Longstreet, Etting , and Rapisardi each testi-
fied that they told each of the replacements they hired
that they were being hired as permanent replacements of
the strikers ; Koenig also testified that, during the strike,
he met with replacement employees to assure them that
they were permanent employees and they would not be
let go when the strikers returned . The four replacement
employees called as witnesses for General Counsel each
testified that Longstreet and Etting never told them that
they had a permanent position;" however a careful ex-
amination of their testimony establishes that both sides
considered the positions to be permanent . In this regard,
Longstreet told Henry what the salary was for his first 6
months of employment and that subsequent to that, he
would no longer be a casual employee; Etting told Laz-
zaro that after his initial 6 months of employment he
would receive a small wage increase , and after the
second 6-month period he would become a regular em-
ployee and union member . Although I credit the em-
ployees over Longstreet and Etting and find that the
magic word "permanent" was not used , both sides un-
derstood it to be such. Lukowitz and Brandt were like-
wise told of the casual status of employment for the first
6 months and of the extra benefits later on. In addition,
at the time of their interviews , both had been employed
at their present employer for an extended period (6 years
and 4 years) where they were earning substantially more
than Respondent was offering them , and assumed that
they were being offered, permanent positions . Longstreet
i i I credit the employees ' testimony over the statements contained in
the affidavits which were taken almost 9 months after the incidents and,
apparently , at inconvenient times for the employees
549
was aware of this and both he and the applicants could
have assumed that Lukowitz and Brandt would not have
left these jobs for temporary positions . I therefore find
that Respondent has satisfied its burden that the replace-
ments it hired during the strike were hired on a perma-
nent basis . It should be noted , however, that although I
have made this finding , I am not totally comfortable
with it. That the Respondent hired in excess of 20 more
"permanent employees" than it usually employs, while
employing only 3 summer employees , whereas in the
past it has employed 20 summer employees , leads to the
suspicion that it is calling what would otherwise be
summer employees permanent employees . Additionally
suspicious is that almost 30 of these "permanent replace-
ments" left Respondent 's employ (two-thirds quit) within
a few months . However, suspicion is not enough to over-
come the record testimony of Koenig , Longstreet,
Etting, Lukowitz , Brandt , Henry , and Lazzaro and I
therefore find that Respondent employed the strike re-
placements as permanent employees.12
That does not end the inquiry, however . The General
Counsel alleges that Respondent violated Section 8(a)(1)
and (3) of the Act by offering to reinstate the strikers
only as casual employees , i.e., to start at the bottom
again . Section 2(3) of the Act defines an employee as in-
cluding "any individual whose work has ceased as a con-
sequence of, or in connection with , any current labor dis-
pute . . . and who has not obtained any other regular or
substantially equivalent employment ...." In Laidlaw
Corp., 171 NLRB 1366, 1368 ( 1968), the Board addresses
this issue:
But its offer of employment as a new employee or
as an employee with less than rights accorded by
full reinstatement (such as denial of seniority) was
wholly unrelated to any of its economic needs,
could only penalize Massey for engaging in concert-
ed activity, was inherently destructive of employee
interest ... .
In Mark Control Corp., 244 NLRB 931, 935 (1979), the
Board stated:
The offer of a substantially equivalent job made
to a returning economic striker not only has refer-
ence to the nature of the job offered , but "must also
permit the employees to earn the same wages and
benefits as before and to receive credit for accumulat-
ed seniority. [Emphasis supplied.]"
See also Harrison Ready Mix Concrete, 272 NLRB 331
( 1984), and Bingham Willamette , 282 NLRB 1192 (1987).
There is similar language in Glade Springs, 273 NLRB
944, 950 (1944): "The law is clear, to condition the rein-
statement of economic strikers as new hires , with depri-
vation of previously enjoyed benefits, is a straight dis-
12 Because of my finding, discussed supra, that Respondent's offer of
reinstatement to the strikers as new employees was inadequate, I find it
unnecessary to determine whether all, or some, of the strikers were per-
manently replaced However, I would credit Scarpino and the other em-
ployees over Koenig and find that on the morning of June 22 Koenig
told the strikers that some of them had been replaced.
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
crimination in retaliation for protected concerted activi-
ty, and in violation of Section 8(a)(3) of the Act."
The instant situation is a perfect example of this. The
22 employees named as discriminatees in the complaint
'remained on strike until making an unconditional offer to
return on the morning of June 22. They" were offered
reinstatement only as casual employees as if they had
never previously been employed by Respondent, with
the resulting loss of many benefits they had previously
enjoyed. On the other hand 17 strikers who crossed the
picket line to return to work beginning April 6 returned
with full seniority and status; this includes 3 employees
who returned to work on June 20, 2 days before the
strikers offered to return. Respondent offered no business
justification for granting full reinstatement rights to em-
ployees who returned on June 20 and none to those who
returned June 22. Respondent' s sole defense in this
regard appears to be that the Union bargained away the
employees' regular status in negotiations at the June 10
negotiating session when the parties agreed to change
paragraph 2.1 of the new agreement from March 31 to
provide for it to be 10 days after the execution of the
agreement . I agree with General Counsel's characteriza-
tion of this argument in his brief as preposterous.
Markowitz' testimony regarding this change was very
reasonable (Heston never testified about it): it was then
June 10; providing that Respondent would provide the
list of March 31 did not make sense since that date had
passed 2 months earlier. Since the parties did not know
when the agreement would be reached and ratified, the
best means of doing it was to provide that it would be
provided to the Union 10 days after the execution of the
agreement. That way any retirements or voluntary quits
during the strike could be accounted for. It certainly did
not constitute a waiver by the Union of the strikers' reg-
ular employment status. I therefore find that by offering
only casual reinstatement to the strikers,14 Respondent
violated Section 8(a)(1) and (3) of the Act.
A more serious defense is that these matters should be
deferred to the arbitration status under Collyer Insulated
Wire, 192 NLRB 837 (1971), and United Technologies
Corp., 268 NLRB 557 (1984). As required by these cases,
Respondent has demonstrated its willingness to arbitrate
the three pending (albeit held in abeyance) grievances
and the grievance procedure provided in the contract is
broad enough to clearly encompass this (or practically
any) dispute between Respondent and the Union or Re-
spondent and the employees. I would initially agree with
is General Counsel 's brief refers to 17 employees being offered inad-
equate reinstatement , rather than the 22 named in the complaint. These
17 were Scarpino and Miller , as well as 15 other strikers to whom letters
offering reinstatement were received in evidence I must assume that all
22 were offered the same form of reinstatement If this is not the case,
Respondent can litigate this as part of the backpay proceeding.
i4 In its brief, counsel for Respondent argues that "there is no evidence
that the strikers knew that the job offers were at casual status" because
the letter offering reinstatement did not specify the casual status of the
jobs However, Scarpino and Miller were reinstated in casual status and
Miller left for that reason; it is not reasonable to assume that the other
striking employees were aware of this Additionally, in evidence are nine
letters from former striking employees to Respondent, explaining that
they would not accept the jobs being offered to them because they would
be in the casual status. Finally, Koenig told Scarpino and the other re-
turning strikers on June 22 that they would be recalled as casuals.
Respondent 's argument that the instant matter is a typi-
cal case that the Board would defer to under Collyer and
United Technologies , supra; General Dynamics Corp., 271
NLRB 187 ( 1984); Denver Hilton Hotel, 272 NLRB 488
(1984). However, there is one infirmity to Respondent's
argument : the three pending grievances involve only
Scarpino and Miller; the Union 's letter to Respondent
dated July 9 refers to the grievances as "On behalf of
Joseph Scarpino and David Miller ." Yet, there are 20
other named employees in the complaint who suffered
the same discrimination as Miller and Scarpino . The con-
tract specifies time limits for filing grievances: 7 days
after the occurrence for the first step , and 14 days after
the first step has been concluded . Those time limitations
have long passed for these 20 employees . At footnote 22
in United Technologies , supra, the Board stated : "The Re-
spondent must, of course , waive any timeliness provi-
sions of the grievance arbitration clauses of the collec-
tive-bargaining agreement so that the Union's grievance
may be processed . . . ." Respondent has never indicat-
ed that it would waive the time limitations set forth in
the contract; Clinchfield Coal Co., 275 NLRB 1384
(1985). To defer to arbitration herein would be proper
for Scarpino and Miller, but would leave the others in
the cold . For this reason I reject Respondent 's argument
that the matter be deferred.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the
Act by failing and refusing to reinstate the following
named employees to their former positions of employ-
ment , i.e., as regular employees with full seniority:
Frederick Baker
Richard Bertoncin
Kenneth Damurjian
George Delp
Mark Furiato
Kirk Gardner
William Greenwood
Fredric T. Hand
Mark Klotz
Scott Laird
Thomas McNamara
David Miller
Peter Novak
James Parnell
Joseph Scarpino
Joseph Scarpino, Jr.
Joel Scholtz
Michael Softcheck
Scott Thomson
Robert Wademan
James White
James Yukka
THE REMEDY
The Respondent is ordered to cease and desist from
committing the unfair labor practices found herein. More
specifically, Respondent shall offer reinstatement to the
22 above-named employees as regular employees, credit
them with seniority for prior service by restoring them
to the place on the seniority list where they would have
been but for Respondent's unlawful conduct against
them, and make them whole for any loss of benefits
caused by such unlawful conduct, offering them rein-
statement in casual, rather than regular, employment
CROWN BEER DISTRIBUTORS
status. In addition , as Scarpino accepted employment
with Respondent , initially, in casual status, and has main-
tained his employment with Respondent (presumably as
an extra and subsequently as a regular employee), and
Miller accepted employment with Respondent for a brief
time as a casual employee, they will additionally be com-
551
pensated by Respondent by being reimbursed for any
loss of earnings of benefits they suffered by being em-
ployed as casual, rather than regular employees during
this period.
[Recommended Order omitted from publication.]