South Akron Awning Co.

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD South Akron Awning Company and Moore Awning Company and United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 8- CA-6996 and 8-CA-7333 August 8, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 28, 1973, Administrative Law Judge John F. Funke issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief, and the General Counsel filed a memorandum in response. 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, brief, and memorandum, and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondents, South Akron Awning Company and Moore Awning Company, Akron, Ohio, their officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. 1 The Respondents have excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings. 2 In the absence of exceptions thereto, we adopt pro forma the Administra- tive Law Judge's dismissal of the complaint 's 8(a)(5) allegations DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Administrative Law Judge: This proceed- ing was brought before the National Labor Relations Board upon: 1. A charge filed on May 1, 1972, by United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein the Carpenters in Case 8-CA-6996, alleging South Akron Awning Company, herein Akron, violated Section 8(a)(1) and (3) of the Act. 2. An amended charge filed May 26, 1972, by the Car- penters in Case 8-CA-6996 alleging Akron and Moore Awning Company, herein Moore or collectively as Respon- dents, violated Section 8(a)(1) and (3) of the Act. 3. A complaint issued by the General Counsel on June 1, 1972, against Respondents alleging violations of Section 8(a)(1) and (3) of the Act. 4. Answer filed by Respondents in Case 8-CA-6996 de- nying the commission of any unfair labor practices. 5. Amendment to the complaint issued by the General Counsel in Case 8-CA-6996 dated October 11, 1972, alleg- ing further violations of Section 8(a)(1) of the Act. 6. Amended answer filed by Respondents denying the allegations of said amended complaint. 7. A charge filed November 9, 1972, in Case 8-CA-7333 by the Carpenters alleging Akron violated Section 8(a)(1) and (5) of the Act. 8. An amended charge filed December 27, 1972, in Case 8-CA-7333, alleging Respondents violated Section 8(a)(1) and (5) of the Act. 9. An order consolidating said cases and a complaint in Case 8-CA-7333 issued by the General Counsel alleging Respondents violated Section 8(a)(5) of the Act. 10. A hearing held before me at Akron, Ohio, on January 30 and 31, 1973. 11. Briefs received from the General Counsel and the Respondents on March 19, 1973. Upon the entire record in this case and from my observa- tion of the witnesses while testifying, I make the following: FINDINGS I THE BUSINESS OF RESPONDENTS Akron is an Ohio corporation with its principal place of business at Akron, Ohio, where it is engaged in manufac- ture, rental, storage, and erection of awnings. Moore is its wholly owned subsidiary performing canvas work. It has no officers apart from Akron and the businesses are integrat- ed, constituting a single employer operation. Akron in the course of its business performs services and provides goods valued in excess of $50,000 annually in the State of Ohio for such companies as General Electric, B. F. Goodrich, Firestone, and Crown Steel, all of which are en- gaged in commerce. Respondents are engaged in commerce within the mean- ing of the Act. II LABOR ORGANIZATION INVOLVED The Carpenters is a labor organization within the mean- ing of the Act. 205 NLRB No. 68 SOUTH AKRON AWNING CO. 371 Iii THE UNFAIR LABOR PRACTICES A. Preliminary Motions At the opening of the hearing counsel for Respondents moved to continue the hearing indefinitely on the ground that Ruth Minear, who had been the operating manager of Respondents since her husband suffered a stroke, was un- available. On June 15, Ruth Minear suffered a serious heart attack and in support of his motion counsel for Respon- dents submitted a physician's affidavit dated January 25, 1973, stating that Mrs. Minear had suffered another heart attack, was awaiting admission to John Hopkins Hospital, and could not appear as a witness Counsel for the Respon- dents assured the Administrative Law Judge that she was not in a condition which would permit the taking of testimo- ny by disposition nor could counsel give any assurance as to when, if ever, she would be able to appear. Conceding, and the record supports this concession, that Ruth Minear would be Respondents' chief witness the Ad- ministrative Law Judge denied the motion on the ground that the original charge herein had been filed on May 1, 1972, and that the employees could not wait indefinitely for vindication of their rights. The Administrative Law Judge assured counsel that he would entertain a motion to reopen the hearing for the purpose of taking Mrs. Minear's testimo- ny, should she become available, at any time prior to the issuance of his decision.' Counsel for Respondents then moved that all allegations of the complaint relating to violations occurring before the election herein be striken on the ground that the election and subsequent obligation to bargaining had made them moot, citing N.L.R.B. v. Advanced Business Forms, 474 F.2d 457 (C.A. 2, 1973).2 This motion was denied by the Administrative Law Judge. B. Violations of Section 8(a)(1) William E. Monk was employed by Akron as an awning stripper from August 1971 until June 1972. He signed an authorization card for the Carpenters on March 16, 1972, at the request of John Koerschner, a fellow employee. Later, in April, he had a discussion in the plant with Mike Kornas, plant foreman, in which Kornas asked him who were mem- bers and leaders of the Union. On another occasion in April he was called to the office by Ruth Minear, then managing the business, to discuss a broken window and was asked by Minear if he knew who was the organizer for the Union and he told her he did not know. After the election Ruth Minear 1 The shop was in fact a "mom and pop" operation After the illness of Minear, Sr , Ruth Minear ran the business and after her illness Mike Kornas and Doy Minear, Jr, both of whom had been working foremen, took over There had been 10 employees at the time of the election and there were 4 at the time of the hearing The business is seasonal since it is customary to put awnings up in the spring and take them down in the fall When additional help was needed at the peak seasons it was acquired from Manpower, Inc I find the case inapposite In Advanced the only unfair labor practice alleged, imposition of a union fine, had been remedied before issuance of complaint of recision of the fine Here there had been no remedy for the unfair labor practices and the election did not serve to cure them remarked to him that she knew who her friends were and that when he was on the street she would be eating a ham sandwich. Kornas denied the conversation as alleged without expla- nation. Kornas was a poor witness and on this issue of credibility I find Monk, who made a credible witness, testi- fied to the truth. Due to the unavailability of Minear I must find the witnesses' unfavorable testimony against her credi- ble except where it is contradicted by contrary credible testimony or is inconsistent with the facts. Obviously this ruling is to the disadvantage of the Respondents but the alternative procedure has been rejected for the reason stat- ed. Janet Oakes was employed as a sewer from January 24 until October 1, when shejoined the strike. She testified that on a day before the election she went to see Ruth Minear about her job (she thought it might be in jeopardy) and Minear asked her if she knew about the Union and told her that John Koerschner, Bob Parker, and Hugh Bentley had gone to the Union, adding that it was always the shirkers who caused the problems. She was then asked how she would vote and told Minear that she had to work with the men for 8 hours a day but that she only had to say good morning to Minear. There is no reason to discredit this testimony. William Friedrichsen testified that he had been employed by Akron from November 1967 until September 30 (when the strike started). In March he signed a union card at the request of Koerschner. Just before the election he was asked by Kornas if he was going to vote for the Union and he told Kornas he had been involved with a union before and did not want to get involved again. Kornas laughed. In early April he was at a bar with Doy Minear, Jr., vice president of Akron, who asked him what he knew about the Union and told him Koerschner and Bentley were trying to start one. Friednchsen denied knowing anything about it. On the Thursday before the election Ruth Minear asked him about the Union and told him she had heard that the Union had bought chicken dinners for anyone who attended a union meeting. She also told him Koerschner and the Treitingers 3 tried to start a union before and were not with the Company anymore. She then told him the Company had been good to him and that he should vote against the union and that if he did not "we aren't going to be responsible for what happens to you afterward." Kornas again denied making such interrogation. Mi- near, Jr., admitted interrogating Fnedrichsen at the bar in question. There were no witnesses to Fnednchsen's conver- sations with Minear. Fnedrichsen, who did repair work, had his own office or shop where he kept a radio. The day after the election Ruth Minear had told him there would be no more radio and told him that "If you guys can do that to me, I can do that to you." Later she came back with a man who identified him- self as an insurance man who told him there would be no more smoking except in the johns. There had been no previ- ous rule about smoking and ashtrays had been placed at the sewing tables. Friednchsen had one in his room. Later the 3 The Treitingers were identified as John Trietinger, vice president, Milka, his wife, and Don, his son All had worked at Akron 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees were permitted to smoke in designated areas during two 5-minute breaks in the morning and two in the afternoon. This testimony stands uncontradicted. Joseph Carney was employed by Akron as an awning installer from September 1971 until the end of April 1972. He signed a union card at the request of Koerschner. On or about April 27 Ruth Minear asked him if any of the men had approached him about the Union and asked him if Koerschner (known as Cherry Pop) had tried to influence him. The conversation took place in Minear's office and there were no witnesses. Conclusions I find that Respondents violated Section 8(a)(1) of the Act by: 1. The interrogation of Monk by Kornas and Minear which was neither casual nor noncoercive. I also find Minear's statement that the election showed her who her friends were and that when Monk was out on the street she would be eating a ham sandwich a thinly veiled threat that his job was in jeopardy. Both the interrogations and the threat violated Section 8(a)(I). 2. I find the interrogation of Janet Oakes as to her voting intentions while at the same time disparaging the employees who had gone to the Union a violation. 3. I find the interrogation of Friedrichsen by Kornas, Minear, Jr., and Ruth Minear and the additional state- ments by Ruth Minear that the Treitingers were not with the Company any more and that she would not be responsible for what happened to him if he did not vote against the Union in violation of the Act. 4. I find that the cutting off of Friedrichsen's radio privi- leges was made in reprisal for the Union's victory at the election and not because it interfered with intercom com- munications. This finding is based on the remark of Ruth Minear implying that such was the reason together with the timing (the day after the election). On the other hand, the record does not establish that the curtailing of smoking privileges was not at the demand of an insurance agent. The General Counsel has not sustained his burden that the rea- son was discriminatory. 5. The interrogation of Carney I find a violation since it occurred in a context of other coercive interrogation and threats. Minear was vice president at that time and Doy Mi- near, Sr., was also employed. Doy Minear, Sr., had been present, according to Koerschner, when he had discussed his health problem with Garmen and Koerschner discussed his breathing problem with him at subsequent periods. When Ruth Minear went to work for Akron in 1971 she had the employees make out application forms. On the back of this form (G.C. Exh. 2) Koerschner had listed under "Physi- cal Defects" the words "1 bad Lung." The next day when he took the application to her he told her he had been in the sanatorium and that there were several jobs he could not do.' Ruth Minear advised him that her son had told her that. He had no further problem with her until his discharge on April 29. On March 15, 1972, Koerschner went to see Elmer Ja- cobs, state organizer for the Carpenters, who gave him au- thorization cards. Koerschner signed a card and took 10 cards back to the plant where the employees signed them the next day. On April 3 and 6 he testified on behalf of the Carpenters at a representation hearing conducted by the Labor Board. He was never interrogated by any representa- tive of management concerning his union activity. On April 29 he heard from a fellow employee that he was going to be assigned the Firestone job. At noon on April 29 (a Saturday) he returned to the plant and was told by Mike Kornas that he would work the Firestone job on Monday. He told Kornas he could not work it and that Kornas knew it and Kornas told him to see Ruth Minear. Later that afternoon he saw Minear and told her his lung problem would not permit him to work Firestone or pull heavy awn- ings. Minear told him that if he could not work Firestone or pull the heavy tents he was not wanted. He was also told not to report on Monday. He reported on Monday never- theless, found his timecard was lifted, and was told by Ruth Minear he had been fired. The last time Koerschner had tried to pull heavy awnings had been in 1969. He had spit blood and Garmen had taken him off the job. In the winter of 1971 or 1972 Kornas had directed him to pull heavy awnings and he worked at it for several months. Kornas testified that he told Koerschner to work the Firestone job on April 29 and that Koerschner told him he was not going to do it and gave him no explanation. He did testify that Koerschner had worked the scaffold job before and that he was the only one left Kornas could assign to it. Kornas stated he left the plant after Koerschner refused the assignment and that he did not speak to Ruth Minear about C. Violations of Section 8(a)(3) The complaint alleges that John Koerschner, an installer of awnings, was discharged on April 29, 1972, in violation of Section 8(a)(3) of the Act. Koerschner had been em- ployed at Akron as a summer employee in 1960 and 1961. In 1962 and 1963 he had been hospitalized at Edwin Shaw Sanatorium for tuberculosis returning to Akron in 1964 where he was employed continuously until his discharge. Koerschner testified that when he was released from the sanatorium he asked Ray Garmen, then the owner of Ak- ron, for a job as salesman but the only available job was driving and installing. Koerschner expressed some doubt about his physical ability but was asked to try it. A Mr. it. On cross-examination Kornas admitted that Koerschner had previously refused the Firestone assignment but did not 4 Koerschner specifically mentioned the Firestone job because the heavy soot affected his lungs The other was pulling heavy awnings A great deal of testimony was taken on the nature of the work at Firestone The job required scaffolding and took 4 to 5 days The General Counsel's witnesses testified that the awnings contained heavy soot, and the Respondents' wit- nesses testified that it was no heavier than on residential construction in the area I credit the General Counsel's witnesses for the reason that it is common knowledge that soot and grime are more extensive the closer buildings are to industrial areas 5 This testimony is not too clear but it was not developed to cure any inconsistency SOUTH AKRON AWNING CO. remember when the refusal took place. On this occasion Koerschner had been sent to Firestone and had called in to say he was going to report sick the next day. He did call in sick and Kornas reported this to Garmen who assigned the job to some other employee.6 373 All production, maintenance and installer employees of South Akron Awning Company at 763 Kenmore Blvd. and Moore Awning Company at 798 North Main Street, Akron, Ohio, but excluding all office clerical employees and professional employees, guards, and su- pervisors as defined in the Act. Conclusions I find that Koerschner was discharged in violation of Section 8(a)(3) of the Act. I must credit his testimony that he worked for Akron for about 5 years after his discharge from the sanatorium and that his lung condition, of which he made no secret, was known to all the changing manageri- al personnel. It must have been equally well known that he could not work the Firestone job or pull the heavy awnings. In a shop of only 10 employees such conditional employ- ment must have been established and accepted. Ruth Minear's statement on his application form (G.C. Exh. 2) sets forth the reason for discharge as: Discharged for refusing to work the Firestone Job. Has previously refused to sew on tents "not pulling them thru a machine for nobody." First man at time clock to check out-never had to wash up-did nothing to get dirty. 5/1/72 Showed up for work like he couldn't be fired. While this was not introduced by the General Counsel to establish Ruth Minear's reason for discharge it was never attacked by Respondents on the ground of authenticity. It is equally clear that Koerschner was not only the insti- gator of union activity but, on the basis of credited testimo- ny, that this fact was known to management (Koerschner had solicited Kornas for membership) and particularly to Mrs. Minear. Akron's opposition to the Carpenters was equally well established. We are faced with a situation in which an employer has over a period of years made allowance for an employee's physical inability to perform two specific tasks. Until he engaged in union activity the question of his disability was never raised as affecting his employment status. Shortly after he engaged in such activity he was ordered to perform the Firestone job with the knowledge on the part of Kornas that he had been exempted from this assignment. Upon his refusal he was summarily discharged. These facts I find sufficient to support an inference of discriminatory motive. Accordingly, I find Respondents in violation of Section 8(a)(3) and (1) of the Act. D. Violations of Section 8(a)(5) On May 30, 1972, the Regional Director for Region 8 certified the Carpenters as the exclusive collective -bargain- ing agent for the employees of Respondents , following an election held May 22. The appropriate unit was described as follows: 6 Called on rebuttal Koerschner testified that in the fall of 1971 he had been asked by Kornas to work Firestone and had refused and explained that it was due to his lung condition Kornas then got Doy Minear to go I find the unit appropriate for the purpose of collective bargaining. The complaint alleges six specific violations of Section 8(a)(5) together with a general allegation of failure to bar- gain in good faith. Paragraph 9(a) alleges that Respondents, during August 1972, met with the Carpenters in afternoon sessions after requesting that the meetings be held at night. During the afternoons of August 11 and 16 the plant was closed. The meetings were thereafter held at night until December when daytime meetings were resumed. At this time the plant was on strike but it was not shut down. I find no merit in this allegation for the following reasons. Leo Petri, business representative of the Carpenters Dis- trict Council, testified that some time after certification bar- gaining negotiations were requested and Herman Rabe, attorney for Akron, advised him that Mrs. Minear had suf- fered a heart attack and that this presented a problem of supervision. After further communication it was agreed that negotiations would be held in the afternoon and the plant shut down. The only Akron managerial representatives who could attend were Doy Minear, Jr., and Mike Kornas, fore- man. Their absence left the plant without any supervision and it was this that necessitated the closedown. Rabe, Doy, Jr., and Kornas represented Akron. After the second meet- ing the Carpenters felt their members were being locked out and agreed to night meetings. On November 30 daylight meetings were resumed but the plant was not closed down. While this testimony is not disputed neither is the fact that some time in October Mrs. Minear was able to return to the plant on a part-time or limited capacity so that super- vision was available. It is true that Mike Kornas did not attend either of the December meetings which casts some doubt on the necessity for his attendance at all meetings. This doubt does not, however, serve to sustain the charge. Both the meetings by day and the meetings by night were held after negotiation and by agreement of the parties and, in any event, no demand was made for meetings at unrea- sonable times. I find that Respondents made reasonable efforts to accommodate the Carpenters in an awkward situ- ation. I therefore find that paragraph 9(A) of the complaint must be dismissed. Paragraph 9(B) of the complaint alleges Respondents re- fused to offer any increase in wages or to fix a quitting time for employees. It is not disputed that Respondents refused to grant a wage increase on the ground that they were already paying higher wages than their competitors. This allegation was not supported by evidence of competitive wages in the industry but neither was it denied by the Carpenters. The record indicates that Respondents paid their installers a starting 7 Petri frankly admitted that he thought the reason Akron finally agreed to day meetings was that its representatives were tired of meetings at night. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage of $2.40 per hour and the sewers $1.80 with a 10-cent increase each April. The Carpenters demands as set forth in Respondents' Exhibit B were $5 per hour for journeymen installers and $4 for journeymen sewers with apprentice installers starting at $3.75 per hour and apprentice sewers at $3 per hour.' This disparity (over 100 percent in increas- es) would immediately suggest that chances of agreement were remote. Petri stated that at one of the later meetings the Carpenters offered to reduce their demands by 25 cents per hour. Respondents never offered economic concessions except two paid holidays and a slightly improved vacation plan. As a per se violation the allegation must be dismissed.9 Section 8(d) of the Act expressly relieves any party of the obligation to agree to a proposal or make a concession. The refusal will, however, be considered in dealing with the totality of Respondents' conduct at the bargaining table. Neither is it disputed that Respondents refused to agree to a fixed quitting time. Their reason was simple and plausi- ble. They were engaged in a special service operation and could not permit their employees who traveled to their as- signments to quit in the middle of an operation.1° A fixed quitting time would destroy the flexibility which was, as the Carpenters must have known, essential to this type of opera- tion. It will be recommended that paragraph 9(B) be dismissed. Paragraph 9(C) alleges Ruth Minear told Mike Kornas, in the presence of employees, that she would not give the Union a damn thing. This allegation is based on the testimony of James Led- ford who was employed by Respondents during September and October 1972. Ledford testified that he was in the Ak- ron office on October 12 (during the strike) and heard her tell someone on the telephone that she "wasn't going to give the Union a damn thing." On cross-examination Ledford admitted that he did not know to whom Minear was talking but that he did overhear conversations concerning unemployment and that she told the other party she wanted to get two girls who had worked at Moore back to work at Akron. Ledford then testified that she made the same remark to Kornas right after she got off the telephone but later changed his testimony to state that the remark to Kornas was made the next day, October 13, and later that she made the remark a couple of times. Both or all of these conversations took place, according to Led- ford, in the office in the presence of the employees who were going to work. Ledford amplified his testimony to state that Mike Kornas, in the presence of all the employees, asked Mrs. Minear what she was going to give the employees and she told him "not a damn thing." He could not recall any- thing that was said which would precipitate such a question and answer. I think this allegation must be dismissed on several grounds. There is no evidence to show that the remark was 8 The record does not establish that Respondents had any such classifica- tion as apprentices 9 The General Counsel in his brief does not contend that the refusal, standing alone, constituted a violation of Sec 8(a)(5) 10 As Rabe pointed out in his testimony a prime difficulty in negotiations was the attempt to impose a contract suited to conditions in the construction industry to a small service operation made in any context of a discussion of bargaining demands. Clearly the remark made on the telephone was not made to any union representative but in a discussion of some aspect of the unemployment situation. This is the only part of Ledford's testimony to which I give credit. His testimony concerning Minear's remark to Kornas was too confused to support a finding. Apart from Kornas' denial of having heard Minear make such a remark at any time there appears to have been no reason for such a question to have been asked and answered. Kornas and Minear were unlikely to be discussing Respondents' bargaining position in the pres- ence of the employees. If, as Ledford testified, Minear made such a remark on the telephone in the presence of Kornas on October 12, Kornas had little reason to ask that question, and only that question, on the succeeding day. I do credit Kornas that he had no discussions with Minear concerning negotiations for, from his demeanor while testifying and his testimony itself, he appears to have taken very little interest in the negotiations. It will be recommended that paragraph 9(C) be dis- missed. The remaining allegations, including the refusal to grant a wage increase, must be considered in the context of the totality of Respondents' conduct. One of the major items of disagreement was the Carpen- ters demand for both a union-security clause (referred to by Rabe as a union shop) and a checkoff. This issue was con- fused from the beginning by the use of the terms "mandato- ry" and "voluntary" by Rabe in describing the checkoff. Since all checkoffs are required by statute to be voluntary the distinction is meaningless. If Rabe meant that all dues payments should be made voluntarily directly to the Car- penters then there was no checkoff. In other parts of his testimony Rabe indicated that the Respondents would only agree to a voluntary union shop, which would eliminate any union-security clause. The record certainly casts some doubt as to whether the parties at all times fully understood each other when discussing this issue. The complaint alleges that Respondents, on December 7, repudiated an agreement made on November 30 to accept a union-security clause 11 in exchange for a management rights clause.i2 There is background to this. Petri testified that on September 7 Gearinger, substituting for Rabe, of- fered such an agreement and the Carpenters accepted.i3 There was to be no checkoff. Gearinger testified that the Carpenters rejected this, which would be consistent with the Carpenters position.14 The issue arose again on November 30 when, according to Petri, Rabe admitted that the Respondents had agreed to the union-security clause. Rabe's testimony with respect to November 30 is that he told the Carpenters that he thought Gearinger had agreed to the clause. In any event the Car- penters, on November 30, had reason to believe that there i See G C Exh 5 for this clause (art I, sec 2) 12 G C Exh 6 (art VIII) 13 Petri also testified that at the preceding meeting of August 28 Gearinger offered no proposal on either a union security or checkoff clause i4 Petri's notes on G C Exh 6 which was prepared after the September 7 meeting do not indicate agreement on the management rights clause which was marked "Co proposal " G C Exh 5, also prepared by Petri after Sep- tember 7, indicates agreement on union security and no agreement on check- off SOUTH AKRON AWNING CO. 375 had been an agreement on an exchange of the union-securi- ty clause for the management rights clause. Rabe, however, then testified that after the close of the November 30 meeting Doy, Jr., told him that Gearinger had not agreed to a union shop. At the meeting of Decem- ber 7 Rabe told the Carpenters that there had been a misun- derstanding on the union shop issue; that what Gearinger had offered as a complete package proposal would contain all the items agreed upon and that this would comprise the contract. Some time later Rabe told Ray Sheppard the Car- penters attorney, who attended the meetings, that Gearinger's notes showed no agreement on the union shop. Sheppard, according to Rabe, said that if Gearinger told him that he (Gearinger) was probably right. That is where the issue rests. A third issue on which agreement was never reached was Respondents' so-called outside purchases plan. Petri testi- fied that it was first proposed at the August 22 meeting. This plan as set forth in General Counsel's 7 reads: The Company retains the right to contract for or pur- chase any material, parts, services, supplies or labor it deems necessary in connection with the operation of its business. Lines were drawn through this clause and in handwriting were added the words "shall not be construed as reason for the layoff of regular employees." This handwriting notation was not, however, made a part of the exhibit. Rabe testified that one of the purposes of this clause was to protect Re- spondents' right to continue use on Manpower, Inc., for temporary emergency help. Such situations would arise when Respondents were called upon to erect tents at fair grounds or during other rush periods. The Carpenters of- fered to provide men from the union hall on request but the practicality of this solution did not appeal to Respondents, at least it was not accepted. On December 14, when Petri read through the list of proposals, Rabe objected to the omission of this clause from the list and, as Petri said, "reac- tivated" it. Petri stated that he asked Rabe at the August 14 meeting if this clause was a part of the proposed agreement and Rabe stated it was not and that this was the reason for lining it out. It was, according to Petri, never again raised as an issue until December 14. The Carpenters thought the issue had been withdrawn. The last of the four issues was the no-strike clause. Rabe testified that it was first given the Carpenters at the August 14 meeting. The General Counsel contends that it was first given to the Carpenters on December 14. In support of this contention he points out that it was not included in Respon- dents' Exhibit B. There is, however, further confusion as to Respondents' Exhibit B. This exhibit was identified by Petri on cross-examination as a proposal prepared by State Or- ganizer Jacobs and given to Respondents prior to the first meeting on August 11. Since this document contains the Carpenters original wage demands which more than dou- bled Respondents' wage rates and since it contains all the other Carpenters proposals it obviously is not an agreement of the parties. Yet on cross-examination Rabe testified that it was submitted as a compilation "prepared by Mr. Petri of the things agreed upon and not agreed upon, which he supplied to the meeting of September 13." This exhibit, as it stands in this record, is not such a document. If this document was in fact a recompilation by Petri of agreement reached after negotiations had taken place on Jacob's origi- nal agreement then it was improperly introduced in the first place. That, however, could not account for the wage rates set forth. The record is clear that wages were never agreed upon at any time. The contention of the General Counsel that the outside purchases plan was reactivated and the no-strike clause was introduced for the first time on December 14 cannot find support in Respondents' Exhibit B. As to the contention that the clause was unduly onerous, the clause (G.C. Exh. 8) reads: NO STRIKE, NO LOCKOUT Since an adequate remedy has been provided under this Grievance and Arbitration Procedure for resolving all grievances, it is mutually agreed and understood during the life of this Agreement, the Company shall not lockout any or all of its employees, and the Union will not call or sanction any strike, slow-down or work stoppage nor will the Union permit its members to take part in any strike, slow-down, work stoppage or inter- ference with the Company's production or operations. If an employee is engaged in conduct prohibited in the preceding paragraph, the Company shall notify the Union in writing at . Such notice shall designate the place to which the Union's reply shall be delivered in writing. Within twenty-four (24) hours after delivery of such notice, the Union shall reply by signed docu- ment or telegram delivered to the place designated in the Company's notice. Such reply shall state whether or not the activity is authorized by the Union. If no reply is received in writing by the Company from the Union within said time, the activity shall be deemed to be authorized by the Union. If the Union notifies the Company within the time specified that the action is authorized by the Union, the Company shall have the right to institute proceedings in Court for damages, including punitive damages and/or injunction or other legal relief. If the Union notifies the Company within the time specified that the activity is unauthorized, each employee actively involved in such activity shall be fined three (3) days wages for each day, or fraction thereof, that the activity continues. Each employee pas- sively involved in such activity shall be fined one (1) day's pay for each day or fraction thereof that the activity continues. Absence of an employee from work when a work stoppage is in effect, (without being ex- cused by the Company) when he is supposed to be at work, shall constitute a violation of this section, unless his absence from work was due to cause beyond his or her control which prevented him or her from working. Conclusions The witnesses who testified to the bargaining negotia- tions, Petri, Rabe, and Gearinger, impressed me as truthful 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witnesses testifying to the best of their recollection as re- freshed by notes. The prime difficulty in reaching agreement lay in the essential incompatibility in applying a craft construction industry contract to a small service operation requiring no craft skills. However fairminded the negotiators may have been this chasm could not be bridged. The disparity be- tween the wages paid and the wages demanded would alone indicate that agreement could never be concluded on that issue alone unless the Carpenters abandoned its historic position based on skilled labor wages or the Respondents' accepted wages far higher than the skills merited or the nature of its business could afford. In such a situation the failure of Respondents to offer any wage increase is imma- terial for the gap would hardly be closed by, say, a 10- percent offer. This is equally true of the outside purchases plan. Both the seasonal nature of the business and the requirement of temporary employment on the tent erection phase of Re- spondents' business had been solved by Respondents through the use of Manpower employees. The continuance of such a practice must establish that it met Respondents' needs. The Carpenters could hardly have been expected to accept such an arrangement under a union-security con- tract; at least it never suggested it could. I believe the reason there was so little discussion of these two vital issues during negotiations is that the parties recognized they were irrecon- cilable. About the best that can be made of the union-security and checkoff demand versus the management rights clause is that the Carpenters believed, and with some reason, that agreement had been reached by dropping the demand for checkoff. Respondents believed with equal good faith but with less support in the record that no such agreement had been reached. I am unwilling, however, to find the Respon- dents repudiated such an agreement in bad faith, a conclu- sion I reach largely on my observation of Rabe and Gearinger as witnesses. I would hold that the no-strike clause imposed severe burdens upon both the Carpenters and the employees. This clause was never the subject of negotiation so I am not confronted with a situation where Respondents took an adamant stand on an onerous proposal. It was the Respon- dents' first proposal and original proposals in negotiations are apt to go beyond what a party either expects or is willing to accept. In concluding that Respondents have not violated Sec- tion 8(a)(5) of the Act it must be stressed again that this finding is made with full awareness of the almost insur- mountable difficulties in reconciling skilled craft conditions with those in an unskilled service operation. I doubt if any remedial order could resolve this impasse. Upon the foregoing findings and upon the entire record in this case, I make the following: cause the Carpenters won the election Respondents violated Section 8(a)(1) of the Act. 2. By discharging an employee to discourage union mem- bership Respondents violated Section 8(a)(3) and (1) of the Act. 3. Respondents did not refuse to bargain in good faith with the Carpenters in violation of Section 8(a)(5) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in and are engaging in certain unfair labor practices it will be recom- mended that they cease and desist therefrom and take cer- tain affirmative action. Having found that Respondents discharged John Koer- schner in violation of Section 8(a)(3) of the Act it will be recommended that they offer him full and immediate rein- statement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges, including the right of exemption from certain designated work as found herein, and that they make him whole for any loss of earnings or other monetary loss he may have suffered by reason of the discrimination practiced against him. Such loss is to be computed on a quarterly basis with interest at 6 percent per annum. Upon the foregoing findings of fact and conclusions of law and upon the entire record I recommend, pursuant to Section 10(c) of the Act, issuance of the following: ORDER 15 Respondents South Akron Awning Company and Moore Awning Company, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating their employees concerning their union activity; threatening their employees that their jobs were in jeopardy if they continued their union activity; and taking away radio privileges in reprisal for union activi- ty. (b) Discharging or otherwise affecting the hire, tenure, or terms and conditions of employment of any employee to discourage membership in a labor organization. (c) In any like or related manner interfering with, re- straining, or coercing their employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action: (a) Offer John Koerschner full and immediate reinstate- ment to his former job or, if that job no longer exists, to a CONCLUSIONS OF LAW 1. By coercively interrogating their employees concern- ing their union activity; by threatening employees that their jobs were in jeopardy if they continued in union activity, and by taking away radio privileges from an employee be- 15 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes SOUTH AKRON AWNING CO. substantially equivalent position, without loss of his seniori- ty or other rights and privileges, including the right of ex- emption from certain designated work as found herein, and make him whole for any loss of earnings or monetary loss he may have suffered by reason of the discrimination prac- ticed against him in the manner set forth in "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, person- nel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this recom- mended Order. (c) Post at their Akron, Ohio, offices, copies of the at- tached notice marked "Appendix." 16 Copies of the notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondents' authorized repre- sentatives, shall be posted by the Respondents immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint, as to all allega- tions not specifically found to be in violation of the Act, shall be dismissed. 16 In the event the Board 's Order is enforced by a Judgment of the 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 WE WILL NOT coercively interrogate our employees regarding their union membership or activity. 377 WE WILL NOT threaten our employees that they might lose their jobs if they continued their union activity or if the Union won the election. WE WILL NOT take away radio privileges from any employee because he engaged in union activity or be- cause the Union won the election. WE WILL NOT discharge any employee to discourage union activity or membership. WE WILL offer John Koerschner his job back or, if his job no longer exists, a similar job, without loss of sen- iority or other rights and privileges. WE WILL pay John Koerschner for any wages he may have lost since we fired him because of his union activi- ty and we will pay him interest on such money at 6 percent per annum. All our employees are free to become or remain members of any labor organization or to refrain from becoming or remaining members of any labor organization, except to the extent membership in a labor organization may be required under a union-security clause in a collective-bargaining contract lawful under Section 8(a)(3) of the Labor -Manage- ment Relations Act, as amended. Dated By SOUTH AKRON AWNING COMPANY MOORE AWNING COMPANY (Employer) (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 compliance with its provisions may be direct- ed to the Board's Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216- 522-3715.