Cyr Bottle Gas Co.

National Labor Relations Board - Board Decisions

Jun 26, 1973

204 N.L.R.B. 527 (N.L.R.B. 1973)

CYR BOTTLE GAS CO.
Cyr Bottle Gas Co. and United Steelworkers of Ameri-
ca, AFL-CIO. Case 30-CA-2000
June 26, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
JENKINS AND KENNEDY
On February 7, 1973, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief. Respondent filed no
exceptions, but did file an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the Administrative Law
Judge's rulings, findings, and conclusions only to the
extent consistent herewith.
The General Counsel excepts to the Administrative
Law Judge's findings that Respondent had perma-
nently replaced six of the striking employees and elim-
inated the positions of the remainder at the time they
made unconditional application for reinstatement.
We find merit to this exception
A review of the relevant facts reveals that on June
1, 1972,' nine employees went on a lawful economic
strike, after notifying Respondent's managerial per-
sonnel that they would return to work when Respon-
dent had set a definite date for negotiations with the
employees' certified bargaining representative.
On June 8, Respondent agreed to a definite date for
negotiations. On the afternoon of June 8, having
learned that Respondent had set a date for negotia-
tions, the striking employees notified Respondent of
their desire for reinstatement. However, Respondent
did not acknowledge this application for reinstate-
ment until June 27, at which time Respondent replied
that it had permanently replaced all of the nine strik-
ing employees.
The Administrative Law Judge found that at the
time of the employees' request for reinstatement, Re-
spondent had already hired six replacements, whom
he concluded were permanent. He further found that
during the strike, Respondent instituted its alleged
longstanding policy that there should be only six em-
1 All dates hereinafter are 1972 unless stated otherwise
527
ployees in addition to the office manager and assis-
tant manager, thus eliminating the remaining three
positions. The General Counsel has excepted to both
of these findings.
We agree with the General Counsel that, with the
exception of James Stewart, who was interviewed for
a permanent job before the strike, the replacements
were hired on a temporary basis. Thus, Raymond
Peterson and Ernest Grimsby, the only replacement
employees called as witnesses, testified that when they
were hired by Mel Ray, Respondent's assistant re-
gional manager, they were told that Respondent
could not promise any job tenure; that they might
work 2 weeks, a month, or maybe years. They further
testified that they were told by Ray that their jobs
were temporary and depended upon when the strikers
came back to work. This testimony was corroborated
by Ray who, as the Administrative Law Judge found,
admittedly told some of the replacements that they
might work a day, a week, a month, or a year; that he
did not know how long they would be employed; but
that a lot depended on how well they worked, how the
strike was resolved, and whether the Board would
order the strikers reinstated. From this testimony the
Administrative Law Judge concluded that the new
employees were hired as permanent replacements for
the strikers-subject only to their performance during
the probationary period-and that Respondent was
only being fair to advise these replacements that they
might be discharged if the Board ordered the strikers
reinstated.
While we do not quarrel with the genuineness of the
Respondent's asserted attempt to deal fairly with the
replacements, we view this latter warning as hardly
reassuring to the replacements that their jobs were
permanent, subject only to the probationary period.
Rather, it indicates that Respondent was not offering
permanent positions to the replacements and, indeed,
the testimony of these employees establishes that they
so construed these statements.
Our finding that Respondent did not hire the new
employees as permanent replacements for the strikers
is further buttressed by the fact that Respondent did
not immediately advise the strikers, upon their initial
unconditional offers to return to work, that they had
been permanently replaced. To the contrary, nearly 3
weeks elapsed from the time the strikers first offered
to return to work on June 8 until Respondent, on June
27, finally told them they had been permanently re-
placed. Between those dates, the Union made repeat-
ed requests on behalf of the strikers for their prompt
return to work. As described in the Administrative
Law Judge's Decision, these requests were uniformly
204 NLRB No. 83
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
met by evasive and noncommittal answers, which in
our view fairly indicate that Respondent had made no
firm decision regarding either the permanence of the
replacements or the reinstatement of the strikers. In
these circumstances, and upon the entire record, we
conclude, contrary to the Administrative Law Judge,
that Respondent had not in fact hired permanent re-
placements for the strikers before their first uncondi-
tional offer to return to work was communicated to
Respondent on June 8.
With respect to Stewart, we disagree with the con-
clusion of the Administrative Law Judge that Stewart
was hired as a replacement for one of the striking
employees. Thus, Stewart testified that on the morn-
ing of May 31, before the strike started, he was told
by the Michigan Employment Commission that Re-
spondent had two job openings. Stewart went to
Respondent's plant that day and applied for one of
these positions. Stewart was employed on June 5 in
one of these positions. To find that Stewart was a
striker replacement would be to overlook the fact that
he applied and was hired for a position which was
available before the strike ever began.
We further find no merit in Respondent's conten-
tion, first argued during the proceedings herein, that
the strike offered Respondent the opportunity to insti-
tute its alleged new staffing policy, thus eliminating
three positions. It is clear'that on June 8, Respondent
had not permanently replaced any of the striking em-
ployees. Further, the record is replete with evidence
that Respondent had work available, and was in fact
planning to hire additional employees, since the tem-
porary employees were working a great deal of over-
time and Respondent also brought in several
supervisors from other areas who helped with the
workload. Thus, Respondent hired George Parkonen
on June 16,2 and William Van Vickle on July 31.'
Again, when Stewart left Respondent's employ his job
was not offered to any of the strikers, although some
of the striking employees were fully qualified for that
position. Such evidence leads us to the conclusion that
the policy Respondent was attempting to institute
during the strike was that of eliminating employees
who had been the cause of the Union's recent certifi-
cation as bargaining representative.
2 We note the short duration of Parkonen 's employment . However, by
Respondent 's own testimony , Parkonen 's discharge was for cause , and not
because of any manpower overage.
3 Van Vickle 's extra supervisory duties are completely irrelevant As we
have already stated , the only questions before us are whether Respondent
had permanently replaced the striking employees and if there was work
available on June 8 to which the striking employees could be reinstated Van
Vickie clearly performed the same kind of work as the strikers had been
doing
We find, therefore, that as of June 8 Respondent
had positions available for nine striking employees
who requested reinstatement. By failing to reinstate
the striking employees to their previous positions
upon their application for unconditional rein-
statement when they had not been permanently re-
placed, Respondent violated Section 8(a)(1) and (3) of
the Act. N.L.R.B. v. Mackay Radio & Telegraph Co.,
304 U.S. 333; The Laidlaw Corporation, 171 NLRB
1366.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, we shall order that it cease and
desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Accordingly, we shall order Respondent to offer
immediate and full reinstatement to the nine employ-
ees who participated in the economic strike which
began June 1, 1972, to their former or to substantially
equivalent positions, without impairment of their sen-
iority and other rights and privileges, dismissing, if
necessary, any persons hired as replacements on and
after June 1, 1972. We shall also order that Respon-
dent make the striking employees whole for any loss
of earnings they may have suffered by reason of
Respondent's refusal to reinstate them, by payment to
each of a sum of money equal to that which he nor-
mally would have earned during the period from 5
days after the date on which he applied for reinstate-
ment, to the date of reinstatement, less interim earn-
ings. Backpay shall be computed on the basis of
calendar quarters, in accordance with the method pre-
scribed in F. W. Woolworth Company, 90 NLRB 289.
Interest at the rate of 6 percent per annum shall be
added to the net backpay and shall be computed in
the manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
AMENDED CONCLUSIONS OF LAW
We substitute the following for paragraph 3 of the
Administrative Law Judge's Conclusions of Law:
"3. By not reinstating its striking employees to
their former or substantially equivalent positions
upon their request for unconditional reinstatement
made on June 8, 1972, Respondent engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
CYR BOTTLING GAS CO.
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Cyr Bot-
tle Gas Co., Marquette, Michigan, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from discouraging membership
in United Steelworkers of America, AFL-CIO, or any
other labor organization, by refusing to offer rein-
statement to its striking employees to their former or
to substantially equivalent positions.
2. Take the following affirmative action, which we
find necessary to effectuate the policies of the Act:
(a) Offer Fred Beaudry, Frank Dupras, Charles H.
Maki, Ralph V. Lane, Arthur Myers, Raymond Neva-
la, Paul Feltner, Raymond Shorkey, and William
Lompri immediate and full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority and other rights and privileges, dismissing, if
necessary, any persons hired as replacements by Re-
spondent on or after June 1, 1972, and make whole
these employees for any loss of earnings they may
have suffered by reason of Respondent's refusal to
reinstate them, such loss of earnings to be computed
in the manner set forth in the section entitled "The
Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its plant in Marquette, Michigan, copies
of the attached notice marked "Appendix." ° Copies
of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by
Respondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
In the event that 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
National 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
529
After a trial in which both sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice and we intend to
carry out the order of the Board and abide by the
following:
WE WILL offer immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exists, to substantially equivalent posi-
tions, without prejudice to their seniority and
other rights and privileges, to all our employees
listed below who were on strike on or after June
1, 1972, dismissing, if necessary, any persons
hired by us on or after June 1, 1972, as replace-
ments for our striking employees:
Fred Beaudry Arthur Myers
Frank Dupras Raymond Nevala
Charles H. Maki Paul Feltner
Ralph V. Lane Raymond Shorkey
William Lompri
WE WILL make whole the above-mentioned em-
ployees, with interest, for any loss of earnings
they may have suffered by reason of our refusal
to reinstate them to their positions on June 8,
1972.
CYR BOTTLE GAS CO
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JOHN M. DYER , Administrative Law Judge : The United
Steelworkers of America , AFL-CIO, herein called the
Union or Charging Party , filed a charge alleging violations
of Section 8(a)(1), (3), and (5) against Cyr Bottle Gas Co.,
herein called the Company , Cyr, or Respondent , on June
22, 1972. 1 The charge was amended on August 3 to delete
the 8(a)(5) allegation and to allege that Respondent had
refused since on or about June 8 to reinstate nine economic
strikers 2 who had made an unconditional offer to return to
work on June 8.
On August 11, the Regional Director of Region 30 issued
his Complaint and Notice of 'Hearing which in essence al-
leges that Respondent refused to reinstate six of the nine
named economic strikers on or after June 8 because they
had engaged in a strike or other concerted activity against
Respondent . This complaint was amended during the hear-
ing over the opposition of Respondent to allege alternative-
ly that Respondent had failed or refused to reinstate all nine
of the economic strikers on or after June 8.
Respondent's August 22 answer denied that it had in any
way violated the Act while admitting the requisite service
and commerce allegations and the agency and supervisory
status of named company officials.
All parties were afforded full opportunity to appear, to
examine and cross -examine the witnesses , and to argue oral-
ly at the hearing held in Marquette , Michigan , on Septem-
ber 28 and 29 and October 24 . General Counsel and
Respondent filed briefs which have been carefully consid-
ered.
The essential question in this case is whether Respondent
hired permanent replacements for the economic strikers
prior to their unconditional offer to return to work, with a
subsidiary question being when the offer was made. I have
concluded that the offer to return to work was made by the
employees on June 8 , but that all the replacements hired by
Respondent were .permanent replacements and that, with
the exception of one , they were hired before June 8. That
one individual , McKenzie , was hired in September to re-
place a strike replacement who left on September 1 and, by
not offering this position to one of the strikers on or after
September 1, Respondent violated 'Section 8(a)(1) and (3) of
the Act . (The Laidlaw Corporation , 171 NLRB 1366). In
evaluating the evidence in this case , I was particularly im-
pressed by the forthright testimony of Charles Ricker whom
I found to be a trustworthy, unbiased witness.
On the entire record in this proceeding, including my
evaluation of the reliability of the witnesses based on the
evidence received and my observation of them , I make the
following:
1 Unless stated otherwise , all dates herein refer to 1972
2 The nine are Fred Beaudry, Charles Maki, Arthur C Myers, Raymond
Shorkey, Raymond Nevala, Frank Dupras , Ralph V Lane, Paul R Feltner,
and William Lompri.
FINDINGS OF FACTS
I THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION
Cyr Bottle Gas Company is a Michigan corporation
wholly owned by Empire Gas Company (herein called Em-
pire) and owning and operating a facility at Marquette,
Michigan, where it is engaged in the wholesale and retail
sale of bottled gas. During the past year, Respondent's gross
receipts were in excess of $500,000 and during the same
period it purchased and received gas and other goods direct-
ly from outside Michigan valued in excess of $50,000.
Respondent admits, and I find, that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
Respondent admits, and I find, that the Union herein is
a labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICE
A. Background and Undisputed Facts
Respondent was a local bottle gas corporation operating
in Marquette, Michigan, and vicinity for a number of years
prior to its purchase on October 1, 1971, by Empire Gas.
Empire has purchased it large number of local gas compa-
nies and has established operating procedures for these lo-
cal companies which are set forth in a manual . One of the
first changes made following the purchase was that delivery-
men were told that they should collect accounts, both on
present deliveries and on prior or past-due accounts.
Empire's policy was to reduce the large accounts receivable
which Cyr had allowed to grow. According to the evidence,
the drivers expressed dissatisfaction at being asked to col-
lect accounts. On October 21, 1971, the Cyr employees went
on strike. Unfair labor practice charges were filed, the case
heard , and a decision issued . A settlement was reached on
the matter which terminated with 10 striking employees
returning to work on April 4. On April 12, the Union was
certified as the collective-bargaining representative for the
Cyr employees and on May 3 the Company and Union met
in a first negotiation session. Topics other than the econom-
ic issues were discussed. The chief union negotiator was Leo
Prusi, a field representative for the Union, who sent an
economic proposal to the Company by mid-May.
On May 20, Local Manager Charles Ricker, who had
been with the Company for some 10 years, first as the office
manager and later as the manager under Empire, submitted
his resignation to be effective June 10.
William Randolph is the regional manager of region 6 of
Empire Gas and has under his direction the Respondent
and some 35 other local gas companies . Under Randolph
were two assistant regional managers , Mel Ray and Larry
Minor. After receiving Ricker's resignation, Randolph sent
Ray to Marquette to hire a manager and an office manager.
A meeting of the employees was called for the morning of
May 31 and Ray was introduced to the employees.
Arthur Myers, who was then the spokesman for the em-
ployees, testified that in the meeting of May 31 Ray said he
was there to accept Ricker's resignation and wanted to
know if any of the employees wanted the job or could
CYR BOTTLING GAS CO.
suggest someone for the position. Ray said that in May
Empire regularly conducted a wage review to determine
annual wage raises . Ray concluded the meeting by inviting
any of the employees to see him in the office if they wished.
As the meeting concluded, Myers asked Ray if he was aware
that the Cyr employees had a bargaining representative.
Ray said he was aware of it and Myers told him that the
Union would be the one to be bargaining for the wages. Ray
replied that it was the Company's policy to review wages
during May.
A short while later, Myers went to the office and asked
if Ray had any information on the contract negotiations.
Ray said that he didn't , that he had recently become an
assistant regional manager and wasn 't aware of all the mat-
ters , but that he would find out about the contract negotia-
tions and let Myers know . Myers told Ray that if they didn't
get any information on a scheduled negotiation meeting for
a new contract there would be another strike . Ray said that
he would be in touch with headquarters in Lebanon, Mis-
souri , and find out if negotiations were being set up and let
Myers know by the end of the day. Sometime between 4 and
4:30 p .m., Myers asked Ray if he heard anything from
Lebanon . Ray said no, that he had tried to call but hadn't
heard anything. Myers told Ray there would be a strike the
next morning. Myers had previously cleared this with the
employees.
The next morning the employees gathered in the parking
lot and Myers went in to see Ray . Ray asked if they were
going to strike or go to work and Myers asked whether he
had heard anything on the contract negotiations . Ray said
he hadn't . Myers told Ray than when Ray heard something
the employees would be out in front of the building on a
picket line.
B. Strike Chronology
Around 2:30 p.m. on June 1, union staffworker Leo Prusi
arrived in Marquette and went to the picket line. The pick-
ets told Prusi that they were not satisfied with the progress
of negotiations and wanted either a signed contract or a firm
date for a negotiation meeting . Prusi said he had recently
sent an economic proposal to the Company and that the
Company had not had sufficient time to reply . The strikers
said they were still dissatisfied with the progress and he
asked if a definite date for a negotiation meeting would
satisfy them so that they would return to work . They said
it would . Prusi said he would contact his office and Ray and
try to set a date.
Prusi testified that on Monday , June 5 , he called
Respondent 's office in Marquette and talked to Ray, stating
that he had talked to the strikers and they were willing to
go back to work as soon as a date for the next negotiation
meeting was set. Ray said that he would relay the message
to someone in authority , stating that he didn't have any
authority to set such a meeting . Ray denies that such a
conversation took place.
On either June 6 or 7 , Prusi received a letter , dated June
2, from John Price then counsel for Respondent, which
asked that future correspondence be directed to him rather
than President O'Brien of Empire . Price commented briefly
on the Union's economic proposals, stated that they could
531
meet to negotiate the differences, but added that he had
been informed that a strike had been called and he assumed
that the Union did not wish to meet , but he was willing to
be corrected if that assumption was incorrect. Prusi testified
he called Attorney Price 's office on June 7 and was in-
formed that Price was in Europe and that Mr . Gritta was
in charge of the case . Prusi called Gritta on June 8, men-
tioned the letter from Price , and stated that they were inter-
ested in negotiations , that the strike had been called because
the men wanted a definite date set, and that once it was set
they would go back to work. Gritta and Prusi agreed on
June 27 as a firm date for negotiations.
In the interim , Myers had found another job and asked
to be relieved of his spokesman position for the Union,
suggesting Charles Maki as his replacement . The employees
agreed to Maki taking Myers' place.
On June 8 , Prusi called Maki and advised him that a
definite date for negotiations had been set and gave him
Gritta's name and telephone number so that this informa-
tion could be confirmed by Respondent . While on his way
to the picket line to talk to the employees , Maki saw
Ricker's car approaching from the opposite direction; he
blinked his headlights and they both stopped . Maki walked
over to Ricker's car and told him that a date had been set
for negotiations and since this was what the employees were
waiting for they were willing to go back to work , adding that
he was speaking on behalf of all the employees . Ricker said
he only had 2 or 3 days left with the Company and that there
wasn 't much he could do about it , but he would tell higher
personnel at the plant about it. Maki stated that he gave
Gritta's name and telephone number to Ricker for the Com-
pany to verify the information, if they wished . Ricker, who
was a convincing witness, essentially confirmed Maki's tes-
timony.
Once the strike started , Randolph sent Larry Minor to
run the Company and detailed Mel Ray to hire replace-
ments for the strikers . Ricker , who was due to leave on June
10, gave up his managerial responsibilities when the strike
commenced and Ray and Minor were present . Ricker testi-
fied that, when he returned to the office after his conversa-
tion with Maki , he told Minor he had just seen Charlie Maki
who told him that Prusi said a date for a negotiation meeting
had been set up and that the men were willing to return to
work . Minor said he would relay this information to the
"brass."
On June 12, Prusi called Respondent 's office and asked
Mr. Evans if the men had been put back to work. Evans said
they had not . When asked why not, Evans replied that it
wasn't his job to do so but was up to somebody higher up.
Prusi asked if they had called the "higher-ups" and Evans
said no , that it wasn 't up to him to call them , that the
"higher-ups" call him . Evans was not asked about this con-
versation , so it is undenied.
On June 13, Maki called Respondent and talked to Office
Manager Wangberg . A meeting was set up for 9 a .m. Larry
Minor , who was then charged with running Respondent,
and one of the local managers , Evans, who had been sent
in to assist in training new employees , met Maki and Arthur
Myers outside the front door of the Company. Minor testi-
fied that he introduced himself to Maki and told him that
he was there to run the Company. The parties agreed that
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of the conversation had to do with a charge by the
Union that the Company was breaking Michigan law by
bringing in "strike-breakers" from out of the State. Minor
agrees that Maki asked him about the employees returning
to work. Minor told Maki that was not his function, that he
had nothing to do with negotiations, that such was between
Maki's union representatives and Respondent's negotiators.
Maki's testimony was not as specific, but he stated that
Minor or Evans said they did not have an answer about
taking the men back.
During cross-examination, Leo Prusi remembered a sec-
ond telephone conversation with Respondent's Attorney
Gritta in which he told Gritta that the Company was violat-
ing Michigan law by employing "strike-breakers." Gritta
told him the people referred to were supervisors from other
locations who were there to train the employees who had
been hired locally in Marquette. There was also some con-
versation about the requirements of the newspaper ads in
stating the Company had openings. Prusi also recalled that
in this second conversation he asked Gritta about the status
of the strikers. He did not remember whether Gritta said
anything concerning the strikers or that replacements had
been hired.
On June 19, all but one or two of the striking employees
met at the Union's office in Negaunee and drew up a written
offer to return to work which was dated that day and signed
by nine strikers? That same day, the entire group, with
Maki as the spokesman, went to Respondent's office and
presented the written offer to Office Manager Wangberg.
Maki asked if Wangberg had heard anything about taking
the employees back. Wangberg said he had not. Maki said
the offer was a bona fide offer to return to work signed by
all the employees. Wangberg said he couldn't act on it but
would relay it to someone else who could and added that
some of the Company's officials were due in that afternoon
by plane. On the following day, Maki returned to the office
and asked Wangberg if the company officials were acting
on the letter. Wangberg said the plane never got to Mar-
quette.
At the beginning of the scheduled negotiations meeting of
June 27, Prusi stated that the Union was not going to negoti-
ate for the men presently working, that the strikers had
offered to go back to work and had submitted a letter to that
effect, and that the Company had not acted; he saw no
reason to negotiate until the men were back at work. The
company negotiators said they had no knowledge of such
The document addressed to Respondent stated,
Dear Sir:
We, the undersigned employees of Cyr Gas Company of Marquette,
constituting all of the striking employees , have elected to discontinue the
strike , return to work at once and resume negotiations as agreed upon
and scheduled.
It was signed by:
Fred Beaudry Arthur Myers
Frank Dupras Raymond Nevala
Charles H. Maki Paul Feltner
Ralph V Lane Ray Shorkey
William Lompri
The only striker who did not sign the document was Arthur Saano who had
been a regular part-time employee
an offer or a letter and an inquiry was made to
Respondent's office which confirmed the existence of the
letter. Respondent asked for a recess until after lunch to see
the document and consider its position. When they recon-
vened, the Company stated that the men had been out on
an economic strike and, exercising its rights, the Company
had permanently replaced them to keep its business going
and there were no openings presently available. Gritta's
offer to negotiate was refused by the Union and the meeting
ended.
C. The Replacements
General Counsel's added position is that under the
Company's rules all new employees are hired as probation-
ary employees and are not considered regular employees.
Specifically, the Company's manual uses these definitions:
Regular Employee:
A regular employee is one, other than a temporary
employee, who has completed thirty work days.
Probationary Employee:
A probationary employee is one who is hired for a
regular job, but has completed less than thirty days of
work. All new employees hired for a regular job, must
be hired as probationary employees and must have that
understanding at the time they are hired. The Retail
Manager should observe the employee carefully during
the thirty day period, and if his work is not satisfactory,
the employee should not be retained beyond the thirty
day period.
It is the General Counsel's position that since none of the
replacements had worked for 30 days before the offers to
return to work were made, that the replacements were all
probationary employees and did not have status as regular
permanent employees and should have been displaced by
the strikers. General Counsel cites Danner Press, Inc., 153
NLRB 1092, as his authority.
I find Danner Press inapplicable in the present situation.
In that case, the respondent had always hired journeymen
for its principal positions and during a strike hired new,
relatively unskilled employees and stated that they were
replacing journeymen. It was found by these and other facts
that Danner had not permanently replaced its strikers and
further did not intend these new probationary employees to
be replacements.
More to the point in this case is the decision in American
Machinery Corporation, 174 NLRB 130, 133. Judge Libbin
in commenting on a position taken by General Counsel that
probationary employees were not permanent replacements
where the company had a policy of hiring probationary
employees, stated that the Board had refused to accept such
a position in Kansas Milling Company, 97 NLRB 219, 220-
226. In Kansas Milling, the Board found that only proba-
tionary employees who were terminated during the proba-
tionary period were not permanent replacements. This
holding was adopted by the Board in American Machinery
Corporation and I find it applicable in the present proceed-
ing.
This holding is in concert with the Board's holdings in
"R" cases where it includes apprentices, trainees, and pro-
bationary employees in units of permanent employees
CYR BOTTLING GAS CO.
where they have reasonable expectation of continuing to
work in the relevant job classifications after completing
their initial periods of employment.
I, therefore , dismiss General Counsel's complaint amend-
ment and theory that none of the replacement employees
are permanent employees because they were or may have
been probationary.
The testimony is clear that those listed below were hired
on the specified dates as strike replacements:
1. John Warjonen, hired on June 2 as a bulk driver.
2. James Kurian , hired on June 5 as a serviceman and
salesman.
3. Joe Bierman , hired on June 6 as a bulk driver.
4. Ray Peterson, hired on June 6 as a bottle truckdriver.
5. Ernest Grimsby, hired on June 5, originally tried as a
bottle truckdriver and finally given a position as a plant
serviceman, filling gas bottles.
6. James Stewart , originally applied for a position as a
manager or assistant manager on May 31, was finally hired
on June 5 by Mel Ray as assistant manager in the Big Bay
area . Stewart asked for additional time before reporting
since he had to move his family to the Big Bay area and
finally reported for work on June 12.
Under General Counsel's alternative theory, he agrees
that Warjonen , Kurian , and Bierman were hired as perma-
nent replacements . The parties agreed that neither Bierman
nor Stewart were supervisors within the meaning of the Act.
Stewart resigned his job on September 1 and Respondent
replaced him with Donald McKenzie . Respondent also
hired an individual named Parkonen on June 13 and termi-
nated him the same or the following day and did not there-
after replace him.
General Counsel maintains that William Van Vickie was
a strike replacement in that he performed ordinary service
duties some 75 percent of the time . Respondent maintains
that Van Vickie was hired as assistant manager to its local
manager , Stillwell , at Stillwell's request . The testimony was
uncontradicted that Van Vickie had the authority to hire,
fire , and discipline employees , that he assisted Stillwell in
his duties, helped train employees, and checked on vehicle
maintenance . As did Stillwell, Van Vickie had a company
truck assigned for his use in commuting to work.
Ricker testified that during the first strike he got Respon-
dent to set up the position of an assistant manager and filled
that position , but after some months the person left and the
position was not refilled . He said that the position duties
which Stillwell described, and said Van Vickie was hired for,
were the same as had been originally established . I find that
Van Vickie was a supervisor within the meaning of the Act
and that his position was not that of a strike replacement.
General Counsel contends that Peterson , Grimsby, and
Stewart were not hired as permanent replacements. Pe-
terson testified on direct examination that when he was
hired he did not know how long the job would last, whether
2 weeks, a month, or 10 years, and that Ray did not say why,
but that Peterson figured it had to do with the labor dispute.
He said the first time he figured his job was permanent was
some 3 weeks later when Respondent President O'Brien told
the employees at a company meeting that they were doing
a good job and could have theirjobs as long as they wanted
them.
533
Grimsby testified during direct examination that after
completing his application, Mel Ray asked about his experi-
ence and told him that the job would be temporary depend-
ing on the negotiations and when the strikers would be
coming back. Grimsby said he first heard the job would lie
permanent when O'Brien told the men several weeks la.er
that they had done a goodjob and had a permanentjob with
the Company. On cross-examination, Grimsby stated noth-
ing had been said about a probationary status and that he
took out group insurance and found out later that only
permanent employees could get group insurance . He stated
that Ray said something about the Company having the
right to replace the strikers and he was one of the replace-
ments and that the law might require the strikers to be put
back to work, but nothing was said about being laid off.
Finally, Grimsby recollected that he was told that he would
not be permanent until the Company saw what he could do
and that Ray had said they would be employed there unless
the Labor Board said the strikers had to come back.
Mel Ray testified that he told some of the replacements
that they might be employed for a day, a week, a month, or
a year, that he did not know how long they would be there,
but a lot of it would have to do with how they worked and
what had happened in the past because of the last strike.
Despite some confused testimony, it seems clear that Ray
told the replacements they were hired to replace the strikers
and might be there for a short or long time depending on
whether the Company was ordered by the Labor Board to
replace them with the strikers, but that their tenure with the
Company also had to do with how well they performed. In
essence, this means that the people were hired as permanent
replacements subject to a probationary period and subject
to the possibility that if the Board found that the strikers
should be taken back by Respondent, the replacement em-
ployees would be subject to discharge because of such or-
der. With the background of the prior strike, charges,
decision, and settlement, it seems that Respondent was
being fair to the replacements by informing them of that
possibility and qualifying the permanence of their jobs in
that manner.
As to Stewart, it appears to be General Counsel' s conten-
tion that he was hired on June 12 as he testified on direct
examination. During subsequent examination, it became
clear that Stewart submitted his application on May 31 and
was hired during the following week, by June 5, on the
premise that he would be located in the Big Bay area. Stew-
art asked for additional time to move his family up and
reported for work on June 12. It is clear from his testimony
that he had the job on June 5 and would have reported for
work then but for the additional time given him by the
Company for his family move.
On the basis of the testimony, I conclude that all six
replacements were hired as permanent replacements on or
before June 8. The sole exception is McKenzie, who re-
placed Stewart in September.
Respondent offered uncontroverted testimony that it was
its position in 1971 that besides the manager there should
only be eight male employees including the office manager
and any assistant manager and that it ordered Ray not to
hire any other employees after Parkonen was discharged,
feeling that it had a full complement of employees for its
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
needs. Further, it is Respondent's position that this was an
occasion for instituting the staffing plan that Empire drew
up when it purchased Respondent. It states that it had no
chance to establish its table of organization before or after
the first strike since the time was so brief before the first
strike and it had agreed under a settlement agreement to
reinstate all the strikers following that strike.
Since the various offers to return to work were made
between June 8 and 19, and there were no other employees
hired until September, it is clear that the date of the offer
to return to work whether it be June 8 or 19 or some date
in between, does not affect any jobs under these circum-
stances.
However, I would find that the offer made by Maki
through Ricker to Ray on June 8 was a bona fide offer of
the strikers to return to work. It is clear that on June 8
Respondent through Ray and through its attorney, Gritta,
was aware of the fact that the employees would return to
work if a date was set for the resumption of negotiations.
This fact had been made known to Ray on May 31 and June
1. It is clear that the knowledge of the June 1 strike took very
little time (I to 2 days) to get from Marquette, Michigan,
through Respondent's supervisory hierarchy to its attorney,
Price, in Texas, since Price wrote to Prusi on June 2 and the
strike was one of the topics. It is clear that Ray knew of the
offer to return as of June 8. Ray was not questioned about
this conversation and it stands undenied and I credit it. It
is clear from the succeeding events, from the way that Maki
and Prusi talked to the local managers, including Ray, Ev-
ans, Minor, and Wangberg, and from their replies that local
management understood that the employees had offered to
return to work, but local management was trying to turn
away responsibility by stating that the decision whether to
accept the offer was to be made by the "higher-ups" or
should be made through the union representative. Whether
or not local management ever relayed these offers to upper
management or Attorney Gritta was not demonstrated, but
it is clear that the offer was known to local management
which was entrusted with the hiring responsibility and cer-
tainly Respondent is responsible for this knowledge.
The June 19 written offer by the strikers to return certain-
ly could not have been misunderstood. This was delivered
to Respondent's office and if for unknown reasons
Respondent's local officials did not report it to Empire
cials, such failure was not the fault of the strikers
In any event it is clear that an offer to return to work was
made and that Respondent did not have any openings from
June 8 until September 1.
General Counsel argues that Respondent has not filled all
the available positions since 10 people went out on strike
and Respondent has only 6 strike replacements. Respon-
dent claims that it has filled all the available positions in
that it has revamped the Company to some extent and done
away with some of the positions. For example, Cyr used to
employ regular part-time employees throughout the year.
Respondent maintains that under its scheme of operations
where part-time employees are needed they are hired only
for the winter season and terminated in the spring. In the
same manner , Cyr used to have helpers on the bottle trucks
but Respondent has no such positions and insists that the
bottle truckdrivers do not need assistants and it has abol-
ished those positions. It would further seen. `hat having an
assistant manager performing some "unit duti, i" would fur-
ther decrease Respondent's need of more employees. With
this revamping of positions, I can not find that Respondent
has any unfilled positions presently available.
Under the The Laidlaw Corporation doctrine, 171 NLRB
1366, the hiring of new employees when strikers were able
and available to take such positions violater Section 8(a)(1)
and (3) of the Act.
It would appear from the testimony that Stewart's job in
the Big Bay area was that of a bottle truckdriver and ser-
viceman. When he left that job, it seems clear that any of
the striking servicemen or truckdrivers or the mechanic
could have taken that position, if it had been offered. Under
Laidlaw, hiring McKenzie without offering the position to
the strikers violated Section 8(a)(1) a n d (i of the Act. Re-
spondent has not offered any business reason why it did not
offer the position to any of the strikers except that it wanted
the person to reside in the Big Bay area. At the very least,
this condition could have been made and the job offered to
the strikers. Respondent has sought to establish that the
strikers wanted to all come back together or none would.
There is no convincing evidence to establish that as a fact.
I, therefore, find and conclude that Respondent, by fail-
ing to offer reinstatement to one or more of the strikers
following their unconditional offer to return to work and
when the September 1 vacancy occurred, violated Section
8(a)(1) and (3) of the Act.
III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section II, above,
have herein been found to constitute unfair labor practices
in violation of Section 8(a)(3) and (1) of the Act, and, occur-
ring in connection with Respondent's business operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
IV THE REMEDY
Having found Respondent in violation of Section 8(a)(3)
and (1) of the Act in that it did not offer reinstatement to
any of the nine strikers when a position was open and avail-
able, I shall recommend that Respondent cease and desist
from such unfair labor practice and that it offer reinstate-
ment to the nine striking employees to the extent that their
jobs were not filled by permanent replacements or that
other comparable positions became available and that it
place the remaining strikers on a preferential hiring list.
Specifically, Respondent can not continue to employ Mc-
Kenzie, who was hired subsequent to the strikers applica-
tion for reinstatement, unless it has offered reinstatement to
each of the strikers. Respondent is to offer to reinstate one
striker with backpay from September 1, 1972, the date that
position became available. In addition, vacancies occurring
since the date of the hearing in this case must be offered to
the strikers with backpay from the date of such vacancies.
There are a number of problems which may anse in com-
CYR BOTTLING GAS CO.
puting the backpay in this case. In order to help ease such
complications, I recommend that the Order direct Respon-
dent to list the nine strikers in the order in which it would
have offered them reinstatement, using any fair, equitable,
and lawful method, as for example, seniority, in compiling
such a list. Some consideration may be given to the job
duties of the jobs and it is possible that one or more lists
should be compiled. Such list or lists should be furnished to
the Regional Director for Region 30, to the Charging Party,
and to each of the strikers. Such list or lists will serve as the
basis for offering reinstatement to the position presently
held by McKenzie and to subsequent vacancies which may
occur prior to the time of compliance with this Decision
and, to the extent any names remain on the lists or lists, they
will constitute a preferential hiring list or lists.
It is possible that within the framework of Laidlaw some
of the strikers may have accepted regular and substantially
equivalent employment elsewhere ° or might not desire to
accept the position held by McKenzie with its attendant
company-imposed location in the Big Bay area. It would
seem possible that a striker might accept a position at one
time and might not have been available for it at a subse-
It is possible that Myers and Nevala may have taken substantially equiva-
lent positions elsewhere, but whether and when such were obtained and
whether they had them at the time of the September I, 1972, vacancy are
questions to be answered in the compliance stage of these proceedings
535
quent or earlier time. Therefore, on the basis of the list or
lists drawn up, it would seem that backpay from the date of
the vacancy, September 1, should be granted to the first
qualified person. However, I do not preclude any other
division of the total backpay which may commend itself to
the affected parties, as for example, an equal division of the
total backpay among those strikers who remain able and
available to fill the position.
All sums to be paid under this proceeding should be
computed in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
On the basis of the foregoing findings and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Cyr Bottle Gas Co. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By not offering the position, formerly occupied by
James Stewart and vacated by him on September 1, to any
of the strikers on or after that date and by hiring Donald
McKenzie for that position in September 1972, Respondent
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act.
[Recommended Order omitted from publication.]