A-1 Schmidlin Plumbing Co.

National Labor Relations Board - Board Decisions

Sep 20, 1993

312 N.L.R.B. 191 (N.L.R.B. 1993)

191
312 NLRB No. 46
A-1 SCHMIDLIN PLUMBING CO.
1 On December 27, 1989, the instant backpay case, Case 8–CA–
18288, was consolidated with Case 8–CA–20688, an unfair labor
practice case alleging that the Respondent unlawfully prohibited
discriminatee James Neary from handbilling in its parking lot. As
explained below, we have decided to remand Case 8–CA–18288 for
further proceedings. We have also decided, in order to issue Case
8–CA–20688 most expeditously, to sever it from Case 8–CA–18288.
2 The Respondent has requested oral argument. This request is de-
nied as the record, the exceptions, and briefs adequately present the
issues and the positions of the parties.
3 As to James Neary, we award him backpay through the second
quarter of 1989, inasmuch as the General Counsel contends that his
backpay period continued until he was offered employment on May
31, 1989, and as the backpay specification with respect to Neary
does not rely on payroll records subsequent to the first quarter of
1989. The figures for the second quarter are supported by other
record evidence, as explained in sec. 3, below.
4 The Respondent also excepts to the judge’s finding that the Re-
spondent’s letter of August 18, 1987, failed to constitute a valid job
offer. In rejecting the Respondent’s contention, we rely on Esterline
Electronics Corp., 290 NLRB 834, 835 (1988). On its face, the letter
made clear that the offer would lapse if Neary failed to report within
3 days, an unreasonably short period of time.
A-1 Schmidlin Plumbing & Heating Company and
Schmidlin, Inc. and Local Union No. 1076,
International Brotherhood of Electrical Work-
ers, AFL–CIO. Cases 8–CA–182881 and 8–CA–
20688
September 20, 1993
SUPPLEMENTAL DECISION AND ORDER
AND ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 24, 1991, Administrative Law Judge David
L. Evans issued the attached supplemental decision.
The Respondent and the Charging Party filed excep-
tions, supporting briefs, and reply briefs.
The National Labor Relations Board has considered
the portions of the decision relating to Case 8–CA–
18288 and the record in light of the exceptions and
briefs.2 The Board has decided to affirm the judge’s
rulings, findings as modified, and conclusions as modi-
fied, to adopt a portion of the recommended Order,
and to remand for further proceedings, as set forth
below.
1. The judge found certain backpay amounts due to
discriminatees Roger Duncan, Kenneth Kuchinski,
James Neary, Edward Vaculik, Mark Warmath, Roy
Williams, and Steve Wood. In awarding backpay to the
discriminatees, the judge found that ‘‘the amounts set
forth in this supplemental decision are the net backpay
and benefit fund amounts due these employees through
the end of the first calendar quarter of 1989, the date
used as a cutoff for purposes of issuing the specifica-
tion.’’ However, the judge’s recommended Order,
adopting the specification’s allegations, awards back-
pay to discriminatees Mark Warmath, Kenneth
Kuchinski, and Steve Wood covering time periods
after the first quarter of 1989. We agree with the judge
that backpay should be awarded only through the first
quarter of 1989, as the record contains no documenta-
tion to substantiate the specification’s allegations after
April 15, 1989. We shall therefore deduct from the
judge’s recommended award backpay amounts to
Warmath, Kuchinski, and Wood for the second and
third quarters of 1989.3
2. The judge found that helpers James Cousino, Pat-
rick Cousino, John Couture, James Schmidlin, and Erol
Smolenski and students Chris Strause, Douglas Lynch,
and Richard Bartkiewicz were not entitled to backpay,
because the General Counsel failed to show that they
had ever performed bargaining unit work. The Union
excepts to the judge’s exclusion of those individuals in
his backpay award. Contrary to the judge’s finding, the
payroll records, and the testimony of witnesses, includ-
ing Schmidlin President Charles Schmidlin, indicate
that some helpers and students performed heating and
air-conditioning work. Accordingly, we shall remand
to the judge to determine which of these individuals
are properly included in the bargaining unit and per-
formed bargaining unit work, the appropriate rate at
which helpers should be compensated, and the proper
backpay amounts due.
3. The Respondent excepts to the judge’s calculation
of James Neary’s backpay on the basis of the hours he
worked during the 2 years prior to the unfair labor
practices. The Respondent proposes instead that
Neary’s backpay be based on the hours all journeymen
worked after January 1985, divided by the number of
journeymen employed, plus Neary. Although the Re-
spondent’s alternative formula may not be unreason-
able, we believe the formula used by the judge was
reasonably designed to approximate what Neary would
have earned had he not been unlawfully denied em-
ployment. We, therefore, find no merit to the Respond-
ent’s contention. See Am-Del-Co, Inc., 234 NLRB
1040, 1042 (1978).
We further agree with the judge’s finding that Neary
was entitled to backpay based on the hours worked in
Toledo and outside of Toledo, notwithstanding his fail-
ure to obtain a Toledo journeyman’s license. While
Neary’s lack of a license might have mitigated the Re-
spondent’s obligations during the entire backpay pe-
riod, the Respondent failed to produce records admit-
tedly within its possession to substantiate its assertions
as to the number of hours worked by journeymen out-
side of Toledo.
4. The Respondent excepts to the judge’s finding
that the Respondent did not make a valid offer of em-
ployment to Neary on September 1, 1987.4 We find no
merit to this exception.
The evidence shows that Neary, Union Representa-
tive Thomas Curley, and the Union’s attorney met with
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Respondent excepts to the judge’s finding that the September
1, 1987 meeting was set up after the August 18 offer was sent to
Neary. We find that even if the Respondent is correct that the meet-
ing was scheduled after Neary received the August 18 offer, this
would have no effect on the judge’s finding that the Respondent
failed to show that Neary received a valid reinstatement offer on
September 1, 1987. 6 See New Horizons for the Retarded, 283 NLRB 1173 (1987).
co-owners/officers Charles and Walter Schmidlin and
the Respondent’s attorney on September 1, 1987, to
discuss various matters regarding compliance with the
Board’s Order in the underlying unfair labor practice
case, including Neary’s employment.5 Charles
Schmidlin asked if Neary had a Toledo license to work
as a heating and air-conditioning mechanic. Neary re-
plied that he did not. Curley became upset because he
had allegedly asked Charles Schmidlin to assist Neary
in securing a city license but Schmidlin refused. At
that point, Curley threatened to institute an unfair labor
practice strike and consumer boycott and the meeting
broke up. Curley testified that he became angry be-
cause he thought that the Respondent’s insistence on
Neary’s obtaining a license was just another means of
denying Neary employment.
Neary testified that Curley told him to go to work
the next day and that he reported at the Respondent’s
premises on September 2, 1987, to go to work ‘‘if
there was work for me.’’ On September 2, 1987, the
Union established a picket line at Schmidlin’s prem-
ises. When Neary arrived, he joined the picketing.
On September 3, 1987, the Respondent’s attorney
sent a letter to the Union stating that Neary was sup-
posed to report for work ‘‘if at all’’ at 8 a.m. on Sep-
tember 2 and that he had failed to report. The letter
does not claim that an offer of employment was made
on September 1, 1987. Rather, the letter refers to the
‘‘notice of recall [of August 18]’’ and to ‘‘our subse-
quent meeting on September 1.’’ Charles and Walter
Schmidlin both testified at the hearing, but neither tes-
tified that they had offered Neary employment at the
September 1, 1987 meeting.
It is well settled that an employer bears the burden
of establishing that it has made a valid offer of rein-
statement tolling its backpay obligation. Garment
Workers, 300 NLRB 507, 514 (1990). In order to sus-
tain its burden, the employer must show that its offer
of employment was specific, unequivocal, and uncon-
ditional. Jones Plumbing Co., 277 NLRB 437, 449
(1985); Pace Motor Lines, 260 NLRB 1395 fn. 2
(1982), enfd. 703 F.2d 28 (2d Cir. 1983). The em-
ployer must also demonstrate a good-faith effort to
communicate the offer to the discriminatee.
Chromalloy American Corp., 263 NLRB 244, 246
(1982). Applying these well-established principles to
the facts here, we find that the Respondent has not met
its burden.
Charles and Walter Schmidlin, who were present at
the September 1, 1987 meeting, testified about what
the parties discussed, and yet neither mentioned that
they had offered Neary employment at the meeting.
The meeting broke up because of a dispute over
Neary’s qualifications for work. We find this inconsist-
ent with an inference that the Respondent made an
offer at the meeting.
Moreover, even assuming the Respondent discussed
an offer of employment at the meeting, there is no evi-
dence as to what specific job was allegedly offered—
whether it was to Neary’s former job, or if that was
unavailable, to an equivalent position; whether Neary
would work only non-Toledo jobs; what terms of em-
ployment were allegedly agreed on; or any other de-
tails of the alleged offer. The lack of specificity is of
even greater concern here than in most cases because
the offer was allegedly made orally, because there was
a dispute at the meeting as to Neary’s qualifications to
work Toledo jobs as he had done in the past, because
the Respondent is a successor employer, who had
never employed Neary, and because the Respondent
had refused to adhere to contractual wage rates and
made unilateral changes in employees’ terms and con-
ditions of employment.
Accordingly, we find, in agreement with the judge,
that there is insufficient evidence that the Respondent
made a valid offer on September 1, 1987. Further,
even if, arguendo, one or more of the parties may have
believed that some employment offer had been made,
we would not agree that the circumstances present here
constitute proof that the Respondent made a specific,
unequivocal, and unconditional offer. See Chromalloy
American Corp., supra.
Finally, we disagree with the Respondent’s conten-
tion that Neary’s backpay should be tolled when in-
terim employer, Pant Heating, ended his employment.
The evidence merely showed that Pant Heating was
dissatisfied with the speed of Neary’s work. This is in-
sufficient to sustain the Respondent’s burden of estab-
lishing that Neary willfully incurred a loss of earnings.
See Allied Lettercraft Co., 280 NLRB 979, 983 (1986);
L’Ermitage Hotel, 293 NLRB 924, 926 (1989), enfd.
mem. 917 F.2d 62 (D.C. Cir. 1990).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Schmidlin, Inc., Toledo, Ohio, its officers,
agents, successors, and assigns, shall
1. Pay the employees listed below the sums set op-
posite their respective names, with interest,6 in accord-
ance with appropriate deductions for taxes that are re-
quired to be withheld by Respondent under Federal
and state laws:
193A-1 SCHMIDLIN PLUMBING CO.
7 Any additional amounts due the funds shall be paid in accord-
ance with the criteria set forth in Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979).
1 Citation and footnote omitted.
Employee Amount
Roger Duncan $8,629.80
Kenneth Kuchinski 9,536.59
James Neary 27,519.83
Edward Vaculik 1,607.76
Mark Warmath 2,755.62
Roy Williams 27,602.35
Steve Wood 3,170.96
2. Pay the International Brotherhood of Electrical
Workers’ funds listed below, on behalf of the employ-
ees indicated, the amounts set opposite each such em-
ployee’s name.7 If any of the funds refuse to accept
such moneys on behalf of each such employee, the
amounts indicated shall be paid to the individual em-
ployees.
Employee Health and Welfare ApprenticeshipAdministration National Electrical Benefit Pension
Roger Duncan $7,336.15 $756.53 $2,003.18 $3,982.20
Kenneth Kuchinski 4,033.82 510.95 806.70 2,673.60
James Neary 4,806.71 493.67 1,310.40 2,598.20
Edward Vaculik 1,915.93 197.08 528.88 1,037.25
Mark Warmath 1,146.54 117.76 315.13 619.75
Roy Williams 6,040.61 620.43 1,651.00 3,265.25
Steve Wood 3,109.89 255.68 701.37 1,345.65
$28,389.65 $2,952.10 $7,316.66 $15,522.00
3. Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that this case is remanded
to Judge Evans for further proceedings, including addi-
tional hearing, if necessary, consistent with this deci-
sion. The judge shall prepare and serve on the parties
a Second Supplemental Decision setting forth the reso-
lution of such issues, findings of fact, and rec-
ommendations, including a recommended Order, where
appropriate, regarding the issues on remand. Copies of
the Second Supplemental Decision shall be served on
all parties after which the provisions of Section 102.46
of the Board’s Rules and Regulations shall be applica-
ble.
IT IS FURTHER ORDERED that Case 8–CA–18288 is
severed from Case 8–CA–20688.
Richard F. Mack, Esq., for the General Counsel.
Terrance L. Ryan, Esq. (Porter, Wright, Morris & Arthur),
of Cleveland, Ohio, for the Respondent.
John M. Roca, Esq. (Gallon, Kalniz & Iorio), of Toledo,
Ohio, for the Charging Party.
SUPPLEMENTAL DECISION AND DECISION
AND ORDER
DAVID L. EVANS, Administrative Law Judge. This matter
was tried before me on December 19 and 20, 1990, in To-
ledo, Ohio.
The Cases Presented
On July 29, 1987, by Decision and Order of that date, 284
NLRB 1506, the Board found that Schmidlin, Inc. (the Re-
spondent or Schmidlin) was a successor employer to A-1
Schmidlin Plumbing & Heating Company (A-1), and that Re-
spondent was obligated to consult with Local Union No.
1076, International Brotherhood of Electrical Workers, AFL–
CIO (the Union) in establishing initial terms and conditions
of employment of its employees ‘‘from the time it began op-
erations’’ on January 1, 1985. In the remedy section of the
decision, the Board concluded (284 NLRB at 1508):
Because Schmidlin unlawfully refused to recognize
and bargain with the representative of its employees
and unilaterally changed terms and conditions of em-
ployment, we shall order it to bargain on request and
to restore the conditions it unilaterally changed and
continue them in effect until it fulfills its bargaining ob-
ligation, and to make whole employees for any loss of
wages due to Schmidlin’s unilateral action . . . and for
any benefits it unilaterally discontinued.1
And the Board ordered Respondent to ‘‘[r]estore the terms
and conditions of employment that it unilaterally changed
and continue them in effect until it fulfills its bargaining ob-
ligation.’’ 284 NLRB at 1509.
The Board further found that Respondent had
discriminatorily denied employment to James Neary when it
began operations, and it ordered Respondent to offer employ-
ment to Neary and make him whole.
Finally, the Board ordered Respondent to recognize the
Union as the collective-bargaining representative of the em-
ployees in the following unit:
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Douglas Lynch, Bruce Day, and Richard Bartkiewicz testified
consistently with Schmidlin, and I found the employees to be credi-
ble.
All employees engaged in the installation and service of
automatic heating and air conditioning equipment and
controls, including all types of oil burners, gas burners,
stokers, electric furnaces, air conditioning and auto-
matic control systems, solar heat systems, and the in-
stallation and service of refrigeration systems. Such de-
fined work shall be limited as follows:
Heating Systems—1,000,000 B.T.U.
Air Conditioning Systems—30 Tons
Commercial Refrigeration Units—5 H.P. (Combination
not to exceed 10 H.P.)
At footnote 11, the Board notes:
The bargaining unit described in [A-1’s last] collective-
bargaining agreement covers employees engaged in
heating and air-conditioning installation and service op-
erations without designating particular job classifica-
tions. It appears to include heating mechanics, plumb-
ers, warehousemen, and helpers who the record shows
engaged in installation and service work.
On January 3, 1989, the Court of Appeals for the Sixth
Circuit entered its judgment enforcing the Board’s Order.
On December 1, 1989, the General Counsel issued a com-
pliance specification alleging that, in certain respects, Re-
spondent had not complied with the Order of the Board.
(That matter will be referred to herein as the compliance
case.) On December 27, 1989, the General Counsel issued an
order that consolidated the compliance case with an unfair
labor practice complaint that had issued against Respondent
on April 20, 1988, in Case 8–CA–20688. (That matter will
be referred to herein as the complaint case.) Respondent filed
answers to both the specification and the complaint, admit-
ting jurisdiction and the status of certain supervisors, but de-
nying the commission of any unfair labor practices, and set-
ting forth what it contends is required for compliance with
the outstanding Board Order.
On the specification and the complaint, and the answers to
each, and the record herein, and the demeanor of the witness
who appeared at trial, and after consideration of the briefs
that have been submitted by all parties, I make the following
FINDINGS OF FACT
A. The Compliance Case
1. The issues presented
Respondent and the Union signed a collective-bargaining
agreement on February 1, 1990. The issues of compliance
antedating that point are:
a. Which of Respondent’s employees are entitled to recov-
ery under the Board’s Order, and on what standard (journey-
man, apprentice, or neither) is the remedy for each to be cal-
culated?
b. When did Neary’s backpay period end?
c. Is Neary’s gross backpay computation to be reduced be-
cause he did not hold a Toledo city license to work as a
journeyman?
2. Discussion and conclusions
a. The employees covered by the Board’s Order and the
appropriate standards of recovery
(1) Employees not covered by the Board’s Order
Although the Board’s unit description is quite specific, the
General Counsel would include all employees employed by
Respondent, except office clerical employees, in the purview
of the remedy. The General Counsel further contends that
since A-1’s contract with the Union provided only for jour-
neyman and apprentice wage scales, and since no employee
was registered in a union-approved apprentice program, all
employees are entitled to journeyman wage rates.
The record discloses that, although A-1’s contract did not
provide for it, A-1 regularly employed individuals other than
journeymen and apprentices to do work, some of which
could have been unit work. These included high school coop-
erative students, helpers, and others, whom A-1 paid less
than apprentice wages and no (other) contract benefits.
The General Counsel has the burden of proving entitle-
ment to gross backpay. To do this the General Counsel must
show that an employee named in a specification was within
the purview of the Board’s Order. In this case it is incum-
bent on the General Counsel to show that the named employ-
ees did at least some of the work covered by the Board’s
unit description.
For some of the employees listed in the specification, the
General Counsel made no attempt to show that they ever did
work covered by the unit description. Accordingly, I find and
conclude, consistent with testimony of Charles Schmidlin,
and, in some cases, the employees themselves,2 that the fol-
lowing individuals are not entitled to be ‘‘made whole’’
under the Board’s Order: James Cousino; Patrick Cousino;
John Couture; James Schmidlin and Erol Somolenski, field
helpers; Thomas Dollison and Mark Fergusen, store helpers;
Jim Lewis, shop helper; Chris Strause and Douglas Lynch,
cooperative students who alternated between themselves
working as a helper; and Richard Bartkiewicz, a student and
part-time serviceman. Schmidlin could not remember Todd
Hendricks, but payroll records indicate that he was a shop
employee, and there is no reason to believe that he did any
of the installation or service work that is covered by the unit
description.
Additionally, according to the credible testimony of
Charles Schmidlin, Bruce Day, Jim Madru, Richard
Malewski, George Streepy, and Jeffrey Rogge did plumbing
work unrelated to any of the work covered by the unit de-
scription, above. Schmidlin also could not remember Joe
Miller; the records indicate that Miller worked during 2
weeks of the fourth quarter of 1985 as a plumber or plumb-
er’s helper; there is no reason to believe that he did any
work covered by the unit description.
(2) Employees who are covered by the Board’s Order,
other than Neary
Respondent’s first contention is that, while the Board or-
dered a return to the status quo before the unfair labor prac-
195A-1 SCHMIDLIN PLUMBING CO.
3 What the employees were paid by Respondent during the back-
pay period is herein referred to as ‘‘interim earnings.’’
4 Respondent contends that the funds involved would not now ac-
cept payment on behalf of the employees. That assertion is without
foundation; however, if Respondent proves correct, the amounts
specified shall be paid directly to the employees. See Southland
Dodge, 232 NLRB 878 (1977), citing Rice Lake Creamery Co., 151
NLRB 1113, 1129–1129 (1965), enfd. as modified 365 F.2d 888
(D.C. Cir. 1966).
tice was committed, the status quo was a situation in which
the employees who are covered by the Board’s Order were
receiving less than contractual wage rates and other benefits
because A-1 had not been complying with its agreement with
the Union. Therefore, Respondent contends, it owes nothing
to any employee covered by the Board’s Order because the
benefits of the covered employees remained unchanged, or
essentially unchanged, when they were hired by Respondent.
Absent proof that the Union had agreed to something else,
A-1’s last contract with the Union memorialized the lawful
status quo. The unit employees’ lawful terms and conditions
of employment were the terms specified in the A-1 contract,
regardless of whether A-1 had been living up to that con-
tract. Certainly, the Board did not intend, in its status quo
Order, to return the employees to a point at which they
would continue to be denied their lawfully established terms
and conditions of employment. That is, that A-1 had not
been living up to the established terms and conditions of em-
ployment of the unit employees affords Respondent no de-
fense.
Therefore, computations for the employees covered by the
Board’s Order are properly based on what the last A-1 con-
tract required. For the employees other than Neary, the com-
putations are based on the holding that they are entitled to
be made whole for the difference between what they were
paid by Respondent3 and what they should have been paid
by Respondent during the backpay period.
The backpay period for those employees begins at January
1, 1985, when Respondent purchased A-1, and ends at Feb-
ruary 1, 1990, when Respondent and the Union signed a col-
lective-bargaining agreement, although the specification here-
in terminated at the first quarter of 1989 for the purpose of
issuance.
Wage Rates and Hours Included
The A-1 contract, negotiated in 1982, does not state spe-
cific journeyman wage rates to be paid during its last year,
1985. Rather, the contract provides a base journeyman rate
of $16.20 per hour for 1982 and package-type increases
thereafter which were to be allocated among wages and other
benefits determined by the Union. The record does not dis-
close what the final wage rates were, but the specification al-
leges that the journeyman rate was $16.77. The Regional
compliance officer testified that this amount was calculated
by examination of Respondent’s records to determine what
had been paid to three journeymen during the last eight quar-
ters that A-1 operated. Respondent admits the allegation that
‘‘the appropriate hourly rate for [journeyman James] Neary
is $16.77,’’ and I accept that figure as the appropriate basis
for Neary and the other journeymen found herein to be cov-
ered by the Board’s decision.
Respondent’s records for 1985 and 1986 are broken down
according to office, shop, plumbing, heating, and air-condi-
tioning work. Respondent’s records for 1987 forward are
broken down only according to field work and shop work,
the latter always being the less.
I use only the field work to compute the unit employees’
hours, as there is no reason to find that the shop work was
the unit work of ‘‘installation or service’’; conversely, there
is no reason to exclude any of the field work because Re-
spondent produced no records to distinguish what field work
was, or was not, unit work, although Charles Schmidlin ad-
mitted that such records were in Respondent’s possession.
Moreover, appropriate contributions to the Union’s Health
and Welfare Fund, its Apprentice Administration Fund, its
Pension Fund, and its National Electrical Benefit Funds shall
be required, as they were also established terms and condi-
tions of employment at the time of the unfair labor practice.
Although Respondent generally denies any obligation to the
benefit funds, it does not specifically dispute, or suggest al-
ternatives, to the specification’s allegations that the contribu-
tions on behalf of journeymen (all except Kenneth
Kuchinski) are properly calculated as follows: Health and
Welfare Fund, $1.85 per hour; Pension Fund, $1; Apprentice-
ship Administration Fund, 19 cents per hour; National Elec-
trical Benefit Fund, 3 percent of gross pay. As discussed
infra, fund contributions on behalf of Kuchinski, an appren-
tice, shall be on a sliding scale according to the amount of
apprenticeship he had served.4
On review of the voluminous exhibits, I found that certain
parts of exhibits proffered by Respondent were missing.
Those were records of the following of the Respondent’s pay
periods:
1985: Payroll periods ending April 20, and Novem-
ber 2, 9, 16, and 23.
1986: Payroll period ending April 5.
1987: Payroll period ending February 21 and num-
bered page 2 of the records for payroll period ending
June 6.
1988: Payroll periods ending January 8, 16, and 23
and September 10.
1989: Payroll period ending March 25.
I notified counsel for Respondent of the missing exhibits
by letter dated June 12, 1991. By letter dated June 27, copies
to all parties, counsel furnished the records, except for pay-
roll periods ending November 2, 9, 16, and 23 which, coun-
sel represented, had been destroyed ‘‘in a break-in which oc-
curred some years ago.’’ The destroyed records are relevant
only in the computations for Duncan. To make a fair and
reasonable estimation of the hours that Duncan worked dur-
ing those pay periods, I have used as substitutes the hours
Duncan worked during two payroll periods immediately be-
fore the payroll period ending November 2, and the hours
that Duncan worked during two payroll periods immediately
after the payroll period ending November 23.
The only other employee whose computations are affected
by the lacunae in Respondent’s exhibits is Kenneth
Kuchinski. However, since Kuchinski’s backpay period did
not begin until the first quarter of 1987, the computations for
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The General Counsel and the Charging Party having raised no
question as to the propriety receiving into evidence Respondent’s
posthearing submission, I receive same, including counsel’s cover
letter as R. Exh. 15.
6 I reject the General Counsel’s contention that Kuchinski should
be made whole at the journeyman rate because he was not in an es-
tablished apprenticeship program. Schmidlin testified that Kuchinski
was worked as an apprentice, whether in a formal apprenticeship
program or not, and there was no rebuttal of that testimony.
7 As established at the hearing, an apprenticeship of 4 years was
required for an individual to become a journeyman heating and air-
conditioning mechanic.
8 Duncan had an undisclosed ownership interest in Respondent’s
business.
9 A differentiation between regular and overtime hours was not
possible; the records in evidence for 1985 and 1986 do not separate
regular hours from overtime hours. (Because unit hours, which are
used to compute gross backpay, and nonunit hours, which are used
to compute interim earnings, are both treated as regular hours, there
will be something of a balancing out.)
Kuchinski are not affected by the fact that certain of the
1985 records had been destroyed.5
(a) Kenneth Kuchinski
Charles Schmidlin admitted that Kenneth Kuchinski was a
registered heating and air-conditioning apprentice for Re-
spondent, and, for some time which Schmidlin did not know,
Kuchinski had been an apprentice for A-1. Respondent’s
records introduced at the hearing indicate that Kuchinski
worked in the store or shop, at or near minimum wage dur-
ing 1986. Respondent’s records indicate that, during the pay-
roll period ending January 10, 1987, Kuchinski began receiv-
ing $5 per hour, and he began receiving wage increases at
various times thereafter. Therefore, it is reasonable to con-
clude that Kuchinski began working as an apprentice in Janu-
ary 1987. However, Kuchinski was not paid the full appren-
tice rate. Kuchinski was paid at rates apparently negotiated
between himself and Respondent, and it was a rate less than
that in effect for apprentices at the time the unfair labor prac-
tices were committed. Therefore, Kuchinski is entitled to be
compensated according to the difference between the appren-
tice wage rate that existed at the time the unfair labor prac-
tice was committed and the rate he was actually paid.6 A-
1’s contract, the embodiment of the terms and conditions of
employment of all employees, including apprentices, speci-
fies various wage rates for apprentices according to the num-
ber of semiannual periods that the apprentice has worked,
from first through eighth.7 For example: the wages for an ap-
prentice during the first 6 months of his apprenticeship was
$7.56, the second was $9.13, the third was $9.91, etc.
Kuchinski’s first 6 months as an apprentice, as I have con-
cluded, began in January 1987; computations of his wage
scale and benefits recovery shall be made on that basis. (Ex-
cept for the IBEW Pension Fund, all fund contributions on
behalf of apprentices are also on a graduated basis.)
Computations for the wages and other benefits due
Kuchinski, or due the various union funds on Kuchinski’s
behalf, are found in Appendix A [omitted from publication].
(b) Roger Duncan
Roger Duncan was employed by A-1 at the time Respond-
ent purchased A-1. Duncan testified that he held a Toledo
apprentice card, and that he worked as an apprentice for both
companies. Duncan testified that when Respondent became
his employer, his wage rate was reduced ‘‘maybe 75 cents
to a dollar,’’ and he and Respondent agreed that Respondent
would pay for his health insurance so, ‘‘it kind of balanced
everything out.’’
Although, for some reason, Duncan testified that he was
hired by Respondent as an apprentice,8 Charles Schmidlin
was clear that Duncan had always worked for Respondent as
a journeyman.
Respondent negotiated with Duncan a wage rate lesser
than that existing for journeymen on January 2, 1985. Under
the Board’s Order, as enforced by the court of appeals, Re-
spondent was not free to do this; the terms and conditions
of employment of unit employees that existed when Re-
spondent purchased the business, as embodied in the A-1
contract, continued unless and until they were modified by
agreement with the Union or impasse was reached. There-
fore, for his tenure of employment, Duncan is entitled to be
made whole on the basis of the difference between the jour-
neymen wage scale and what he was actually paid.
Duncan was placed on straight salary during the pay pe-
riod ending March 12, 1988, and the specification makes no
claim on behalf of Duncan beyond that point.
The calculations of Duncan’s back pay and benefits are
contained in Appendix B [omitted from publication]. That
appendix requires some explanation. The first part lists, by
quarter, the hours of Duncan’s work that I have found do not
constitute work covered by the Board’s Order; i.e., shop
work, as opposed to service or installation work. The second
part is a computation of backpay due Duncan for the work
which, as I have found, is covered by the Board’s Order. In
the second part, the ‘‘Hours Claimed’’ column represents the
hours of work per quarter claimed by the specification.
Those figures are not set out separately in the specification;
they are multiples of the claims for benefits that are based
on the hours worked. (Specifically, the specification claims
that Respondent should have contributed $197.50 on behalf
of Duncan to the IBEW pension fund in the first quarter of
1985; as the required contribution was $1 per hour for that
pension plan, the General Counsel is necessarily claiming
that Duncan worked 197.50 hours during that quarter.) Re-
spondent has not disputed the number of hours used for such
computations. The ‘‘Nonunit Hours’’ column represents the
number of hours that were included in the specification that
I have found are not the type of work that was covered by
the Board’s Order, as computed in part 1 of Appendix B;
i.e., office and shop work. The ‘‘Unit Hours’’ column is the
difference in the hours claimed and the nonunit hours that I
have found to be properly excludable from the computa-
tions.9 The ‘‘Gross Backpay’’ column represents those wages
which, at $16.77 per hour, should have been paid for the unit
hours. The ‘‘Admitted Interim Earnings’’ column represents
all pay, for unit and nonunit work, that Duncan received, as
admitted by the specification. The ‘‘Paid for Nonunit Hours’’
represents the pay received by Duncan for the hours that I
have determined are not covered by the Board’s Order. Dun-
can’s hourly wage during the entire backpay period was
197A-1 SCHMIDLIN PLUMBING CO.
10 According to C.P. Exh. 1, received at the original hearing, Dun-
can’s hourly wage during 1985 was $14.20 per hour, and according
to Respondent’s exhibits introduced at the hearing before me, he
continued to receive that rate through the end of the backpay period
(the first quarter of 1988). The records that would show his 1986
rates, if any different, were not offered by any party; presumably,
there was no change in 1986.
11 At Tr. 240, L. 13, Schmidlin used the word ‘‘or’’ to correct
himself, not to imply that Warmath was either a plumber ‘‘or jour-
neyman heating and air conditioning [mechanic].’’ Also, Schmidlin
was specifically asked by his own counsel if Warmath did any
plumbing; Schmidlin replied, ‘‘Very little, if any.’’
12 Kansas Refined Helium Co., 252 NLRB 1156, 1157 (1980),
enfd. 683 F.2d 1296 (9th Cir. 1982).
13 Br. 3.
14 All parties use the term ‘‘reinstatement,’’ even though initial
employment was actually what was required. The law is the same,
and it is clear that all parties understood that initial employment was
meant whenever ‘‘reinstatement’’ was used in the discourse between
them.
15 All dates in this section are in 1987, unless otherwise indicated.
$14.20 per hour.10 The ‘‘Adjusted Interim Earnings’’ column
represents the difference between the admitted interim earn-
ings and the pay that was received for nonunit work; this
computation is necessary since, otherwise, interim earnings
for hours not covered by the Board’s Order would be offset
against the gross pay for hours of work that are covered by
that Order. ‘‘Net Backpay’’ is the quarterly difference be-
tween gross backpay and the adjusted interim earnings.
Computations of the benefit fund contributions due on be-
half of Duncan (which, of course, are figured on the basis
of unit hours) are contained in the third part of Appendix B.
(c) and (d) Steve Wood and Mark Warmath
Schmidlin admitted that Mark Warmath and Steve Wood
were unit journeymen heating and air-conditioning mechan-
ics; therefore, they are entitled to recover at the wage rates
specified by the General Counsel.11 Moreover, Respondent
shall be required to make appropriate benefit contributions
on their behalf.
(e) Edward Vaculik
Schmidlin testified that Edward Vaculik was a journey-
man, but that he had been salaried with A-1, and Respondent
continued to keep him on salary. When Respondent hired
Vaculik, it hired him as a journeyman; it was not free to ne-
gotiate a salary with him individually; it was required to pay
him the established journeyman hourly rate and pay on his
behalf the other benefits based on an hourly wage.
Vaculik worked some nonunit hours in the shop which the
General Counsel has included in the specification. In the case
of Duncan, I have excluded from the computations his
nonunit hours, and I have, of course, excluded from his in-
terim earnings the pay for such nonunit hours. However, be-
cause Vaculik was always on salary with Respondent, there
is no possible way to segregate his interim earnings for unit,
and nonunit work. The burden of the uncertainty shall fall
upon Respondent.12
Accordingly, Vaculik is entitled to the wages and fringe
benefits as set forth in the specification.
(f) Roy Williams
Schmidlin testified that Roy Williams had been journey-
man for A-1, and he was paid as such by A-1. Schmidlin
testified that Williams had a physical problem and could not
do all the work of a journeyman, so Respondent negotiated
a salary with him and assigned to him shop duties and lighter
field duties. Again, Respondent was not free to negotiate sep-
arately with any employees. Under the law, if Williams was
to get special consideration because of his physical problems,
it was properly the subject of negotiations with the Union.
Again, the Board’s Order to restore the status quo ante re-
quires that Williams be made whole for any wages lost as
a result of Respondent’s changing his method of pay. Of
course, as Williams was a journeyman, he is entitled to re-
covery at the journeyman rate, and, as in the case of Vaculik,
no allowance for nonunit work can be made because of the
uncertainties created by Respondent.
Accordingly, I find and conclude that Williams is entitled
to the wage and benefits as set forth in the specification.
(3) The remedy as it applies to Neary
James Neary was employed a journeyman heating and air-
conditioning mechanic when employed by A-1. He has never
been employed by Respondent. It is not contested that any
wages and benefits due to him are to be calculated at the
journeyman rate. The Board ordered Respondent to offer
Neary ‘‘employment to the job he would have received if he
had not been discriminated against, or, if that job no longer
exists, to a substantially equivalent position . . . and make
him whole for any resulting loss of earnings and other bene-
fits . . . from 2 January 1985 to the date it offers him proper
employment . . . .’’ 284 NLRB at 1508. The General Coun-
sel contends that Neary’s backpay period did not end until
May 31, 1989, ‘‘when Neary received a valid offer of rein-
statement.’’13 Respondent contends that Neary was given a
valid offer of ‘‘reinstatement’’14 on August 18, 1987,15 and
backpay liability terminated as of that date. Respondent fur-
ther contends that Neary was given a second offer of em-
ployment at a Company-Union meeting on September 1. Fi-
nally, Respondent argues that any backpay determination for
Neary should take into account the fact that Neary never pos-
sessed a valid Toledo journeyman’s license.
On August 18, by hand-delivered letter of that date,
Charles Schmidlin notified Neary:
Schmidlin, Inc. unconditionally offers reinstatement to
you of [sic] your former job at A-1 Schmidlin Plbg. &
Htg. Company. Please report within three days of re-
ceipt of this letter. If not, we will consider you having
refused the offer.
Neary did not attempt to report. Neary called Union Rep-
resentative Thomas Curley. As Curley testified, Curley had
previously arranged a September 1 meeting with Respondent
to discuss compliance with the Board’s Order. On September
1, Curley, a union attorney, and Neary met at Respondent’s
office with Charles and Walter Schmidlin and Respondent’s
attorney.
Curley and Neary testified that after other matters were
discussed, the discussions turned to the subject of Neary.
Curley and Neary testified that Charles Schmidlin asked if
Neary had a Toledo license to work as a heating and air-con-
ditioning mechanic. Neary replied that he did not. According
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 At the hearing, the General Counsel attempted to make much
of Charles Schmidlin’s refusal to assist Neary in his efforts to get
certification of his work record during the preceding 4 years.
Schmidlin refused, for only the most transparent of reasons. How-
ever, even if he had cooperated, the certification would not have got-
ten Neary licensed as a journeyman; Neary had not, as required by
Toledo, performed such work in an established apprenticeship pro-
gram. (Neary had been in an apprenticeship program from 1971 to
1975; but he did not pass the journeyman’s examination; however,
he continued to work for A-1 as a journeyman thereafter.)
17 A & T Mfg. Co., 280 NLRB 916 (1986).
18 Respondent proposed a formula for determining what portion of
the noncity work Neary might have received, but it tendered no ad-
missible records in support thereof.
19 I do not accept the bare statement of Charles Schmidlin that al-
though A-1 worked unlicensed mechanics inside Toledo, Respondent
has never done so. The Schmidlins were corporate officers of A-1;
there is no basis that they had a change in attitude about the (unen-
forced) city regulations when they became principals of Respondent.
(However, I do grant Respondent’s motion to correct the transcript,
Tr. 219, L. 1, to change ‘‘licensed’’ to ‘‘unlicensed’’; otherwise, the
following testimony would be nonsensical, as well as incredible.)
to Curley and Neary, Curley became upset because he had
previously asked Charles Schmidlin to assist Neary in secur-
ing a city license, but Schmidlin had refused.16 Curley
walked out, and the meeting terminated.
On the morning of September 2, the Union, pursuant to a
membership vote the night before, established a picket line
at Respondent’s premises. The signs stated, inter alia, that
Respondent was guilty of unfair labor practices. Neary testi-
fied that he reported to the premises to ‘‘go to work if there
was work for me.’’ However, he began picketing along with
Curley. (Neary picketed regularly until September 25, at
which time he began distributing handbills at the premises;
the handbilling gave rise to other incidents which are the
subject of the complaint case.)
On September 3, by letter of that date, the Respondent’s
attorney notified the Union’s attorney:
In accordance with the notice of recall made to Mr.
Neary by Schmidlin, Inc. and our subsequent meeting
on September 1, 1987, Mr. Neary was to report for
work, if at all, at 8:00 o’clock a.m. on September 2,
1987. This letter is to advise you that I have been ad-
vised by my client that Mr. Neary failed to report at
that time.
There is no evidence of record of why Respondent’s attor-
ney stated that Neary was expected to report at 8 a.m. on
September 2, and there is no evidence of record of why
Neary appeared at Respondent’s premises as of that date.
Apparently, something was said during the September 1
meeting to cause Neary to come to the premises on Septem-
ber 2, but no witness testified as to what that was.
Whatever may have happened at the September 1 meeting,
there is no evidence that Neary was offered, unconditionally,
his former job, or an equivalent job, as required by the Board
Order.
As there was no offer of employment on September 1, Re-
spondent is left with the contention that the written offer of
August 18 complied with the Board’s Order. The instruction
to report ‘‘within three days’’ is plainly inadequate. An offer
of employment, like an offer of reinstatement, must give an
employee a reasonable amount of time to report. ‘‘Within
three days’’ or, literally, less than 3 days is not such a rea-
sonable period of time.17
Therefore, I find and conclude that the backpay period for
Neary continued to run until he received an unconditional
offer of employment on May 31, 1989, as admitted by the
General Counsel.
Respondent contends that because Neary did not have a li-
cense to work in the city of Toledo, computations of his
backpay should be reduced accordingly.18 It was established
at the hearing by testimony of the city official in charge that
Toledo did not enforce its license requirements of heating
and air-conditioning mechanics before September 1, 1987.
After that date, it did. Therefore, Neary’s lack of a license
could not have been a factor in the computation of his gross
backpay before September 1, 1987.19
Although Neary’s lack of a Toledo license could have
been a factor in computation of his gross backpay after Sep-
tember 1, 1987, Respondent offered no records that would
demonstrate what noncity hours of work would have been
available. Charles Schmidlin acknowledged that there was
some work outside the city, and Neary would have been as-
signed to some of that, had he returned to work on Septem-
ber 2, 1987. Walter Schmidlin, corporate treasurer, acknowl-
edged that records indicating the situs of such jobs existed.
However, none of those records were produced. Therefore,
how many noncity hours were available, and what percentage
of such hours Neary would have worked, between September
1, 1987, and May 31, 1989, is left entirely to conjecture. The
burden of the uncertainty shall fall on Respondent, who is
the wrongdoer and the person who partially created the un-
certainty by not producing the relevant records.
The specification assumes Neary would have continued to
work a number of hours consistent with that he and other
journeymen worked during the 3 years prior to the unfair
labor practice. I find that this is a reasonable standard, and
in view of the Respondent’s failure to establish that any
other standard should apply, I shall accept as a basis for con-
cluding what amounts Neary would have worked, absent the
unfair labor practice.
The specification alleges, and the answer admits, that
Neary worked 262.1 hours per calendar quarter during the
eight calendar quarters preceding his unlawful denial of em-
ployment. As noted, Respondent further admits that ‘‘the ap-
propriate hourly rate for Mr. Neary is $16.77.’’ The speci-
fication further projects that Neary would have continued to
work 262.1 hours per calendar quarter during the backpay
period. As further noted, although Respondent denies the ap-
propriateness of the projected hours per quarter, Respondent
has failed to propose, and substantiate, a more accurate
standard, and I find it fair, under all the circumstances, to
adopt the specification’s projection. Accordingly, Neary’s
gross backpay shall be computed on the basis of $16.77 per
hour, for 262.1 hours, per calendar quarter from January 1,
1985, to May 31, 1989.
The specification alleges that Neary is also entitled to
$242 as medical expenses incurred during the fourth quarter
of 1985 and $1056 as medical expenses incurred during the
fourth quarter of 1986. This was denied, and the General
Counsel introduced no evidence on the issue. Accordingly, I
199A-1 SCHMIDLIN PLUMBING CO.
20 No claims for medical or other expenses are made on behalf of
any other employees.
21 The General Counsel apparently concedes that, during some of
Neary’s interim employment, equal or greater contributions were
made on his behalf to the various IBEW benefit funds; the specifica-
tion reduces, or omits, claims for such fund contributions during sev-
eral of the quarters in which Neary had interim employment.
22 The last measurement is exact, having been made by the deputy
sheriff. The other measurements are my estimations based on the ex-
hibits.
find that the General Counsel has failed to prove Neary’s en-
titlement to those amounts as medical expenses. Finally, the
specification alleges that Neary incurred certain expenses
which should be deducted from interim earnings. This allega-
tion was denied, and the General Counsel introduced no evi-
dence on the issue other than the hearsay, conclusionary tes-
timony of the Regional compliance officer. Accordingly, I
shall not deduct any of the expenses from the interim earn-
ings.20
The computations of backpay due to, and benefit fund
contributions on behalf of, Wood, Warmath, Vaculik, Wil-
liams, and Neary are contained in Appendix C [omitted from
publication].21
B. The Complaint Case
1. Interference with Neary’s handbilling
The complaint alleges that on September 25, 1987, Re-
spondent interfered with an employee’s right to engage in
handbilling under circumstances protected by the Act ‘‘by
summoning officers from the Lucas County [Ohio] Sheriff’s
Department who unlawfully denied said employee [Neary]
the right to engage in lawful handbilling at Respondent’s
premises by directing him to leave, prohibiting his activity,
and by threatening him with arrest if he continued the
handbilling.’’ Respondent admits calling the sheriff’s depart-
ment; it denies that Neary’s handbilling was protected and
therefore denies a violation of the Act in this regard.
Respondent’s place of business premises is located near
the intersection of Dorr Street and McCord Road in Lucas
County (outside the Toledo city limits). The property lies
west of McCord Road, which runs north and south, and north
of Dorr Street, which runs east and west. Its facilities consist
of a metal building and a parking lot. The building has large
signs indicating to the public the nature of Respondent’s
wholesale and retail business, and there is a large red arrow
pointing to the door which prospective customers would use.
All doors of the building that are used by the public face east
and open into the parking lot. Access to the parking lot, and
ultimately to the building, is by a 75-foot-long driveway that
connects to Dorr Street. The mouth of the driveway is about
20 feet wide, and it is 108 feet from the intersection of Dorr
and McCord.22
There is no sidewalk along Dorr Street. It is undisputed
that Dorr and McCord are major thoroughfares.
On September 25, the Union stopped its picketing and
started handbilling. Neary did the handbilling, starting about
8 a.m. The handbills say ‘‘Do Not Patronize’’ and explains
that Respondent had been found guilty of ‘‘several labor law
violations’’ and that it had been ordered to perform five
specified acts of compliance which Respondent had failed to
do. The handbills argue that such practices affect all workers,
and the reader is asked not to do business with Respondent
or anyone who does business with Respondent.
Neary testified that he sat in his car in the parking lot until
a customer appeared to be approaching the entry to the build-
ing. Neary would get out and ask the apparent customer if
he/she would take a handbill.
Walter Schmidlin testified that:
I seen customers bringing in the fliers and they handed
them to me. They may say [sic] ‘‘what’s this’’ and so
forth. And as the day proceeded, I had a customer who
was here asking for a piece of pipe, and he said he was
going to get rid of the guy. I said, ‘‘I don’t need that.’’
. . . I had a gentlemen say that he had a shotgun in
his trunk of the car. I said ‘‘I don’t need this kind of
stuff.’’
Schmidlin further testified that customer Don Tapio re-
counted his experience with the person distributing the fliers,
obviously Neary. Tapio testified that Neary had stood in
front of Tapio’s vehicle for about 10 seconds in an attempt
to get Tapio to take a flier. Tapio took the handbill, wadded
it up, and threw it back at Neary.
Walter Schmidlin testified that he had an office employee
call the Sheriff’s department about 9 a.m.
About 10 a.m., Deputy Sheriff Glen Ray Pitzen arrived
and spoke to Walter Schmidlin. Pitzen testified that Walter
Schmidlin told him that ‘‘he wanted the gentleman standing
out by the door off his property; he was bothering the cus-
tomers.’’
Pitzen approached Neary and asked Neary to leave the
premises. Neary replied that he did not have to do so. Pitzen
then asked Neary to move to the 8-foot County right-of-way
on the Dorr Street frontage of Respondent’s property, next
to the driveway. Then Pitzen decided that it would not be
safe for Neary to handbill there, so Pitzen called for his ser-
geant. Sergeant Clarence Vaughn arrived a few minutes later.
After conferring with Pitzen, and after conferring with the
chief of the sheriff’s department by radio, Vaughn told Neary
that it would be unsafe for him to handbill at the driveway
entrance and that Neary would have to leave the premises al-
together or be arrested. Neary left.
Pitzen and Vaughn testified that it would be unsafe to
handbill at the parking lot entrance because traffic was
heavy, and there could be a collision if an automobile
stopped so that the driver could take a handbill. Pitzen testi-
fied that there are ‘‘a lot of accidents in that intersection,’’
referring to the intersection of Dorr and McCord.
None of this testimony was disputed by Respondent.
In Jean Country, 291 NLRB 11 (1988), the Board con-
cluded that, in access cases such as this, once the threshold
property interest is demonstrated, the availability of reason-
able alternative means of communication must be considered
in conjunction with a consideration of the Section 7 rights
and property rights involved.
Although Respondent owns the property involved, privacy
is not a consideration because the public is invited (by the
use of large signs) to use the driveway and parking lot to
do business with Respondent; indeed, there is no other way
for a retail customer to approach the building. Although one
customer claimed that he was delayed for about 10 seconds
by Neary, there is no showing of any significant obstruction
to the operation of Respondent’s business by Neary’s
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Neither the threat by the ‘‘gentleman’’ to get his shotgun, nor
the request for a length of pipe to assault Neary with, constituted
wrongful interference with Respondent’s property rights by Neary.
handbilling in the parking lot. Certainly, there is no showing
that if Neary had been asked by the police (or anyone else)
not to engage in such tactics, the requests would have been
futile.23
In this case there was no alternative to the handbilling in
the parking lot. The police forbade Neary from handbilling
on the county right-of-way as it would have imperiled Neary
or traffic approaching or leaving the hazardous intersection
of two busy streets. Respondent suggests that the Union
could have continued picketing on the right-of-way as it had
done earlier. However, as noted in John Ascuaga’s Nugget,
298 NLRB 524, 533 (1990),
We note particularly that the Union’s message of prot-
estation of the Respondent’s unlawful refusal to bargain
is not easily conveyed by picket signs, or at least picket
signs alone; handbilling is a reasonable, effective means
of communicating this message.
In the instant case, the refusal to bargain was just one of the
issues addressed by the handbills; the compliance issues were
multifaceted, and the protestation could not be adequately ex-
plained in the legend of a picket sign.
The Section 7 right to protest unfair labor practices is, of
course, fundamental.
In sum, the Respondent’s private property right to restrict
handbilling from its parking lot is not strong; the Union’s
Section 7 right publicly to protest the Respondent’s unlawful
refusal to bargain and other unlawful conduct is strong; and
there was no reasonable, effective alternative means for the
Union to communicate its Section 7 message to the audience
for which it was properly intended—the Respondent’s cus-
tomers. Therefore, on balance, the degree of impairment of
the Union’s Section 7 right to protest publicly the Respond-
ent’s unfair labor practices if access to Respondent’s parking
lot were denied greatly exceeds the degree of impairment
that Respondent’s private property right would suffer if such
access were granted.
Accordingly, I find and conclude that Respondent’s Sep-
tember 25, 1987 interference with the Union’s above-de-
scribed Section 7 activity on the Respondent’s premises vio-
lated Section 8(a)(1) of the Act.
2. Other alleged unfair labor practices
The complaint alleges that Respondent’s August 18, 1987
tender of an invalid offer of reinstatement violated Section
8(a)(3) and (1). The General Counsel offers no citation or ar-
gument that, as well as being invalid, the offer independently
violated the Act. I shall recommend dismissal of this allega-
tion.
Finally, the complaint alleges that on September 3, 1987,
Respondent discharged Neary because he joined the Union’s
picketing. Neary could not have been discharged from em-
ployment if, as I have found, Respondent never offered, un-
conditionally, to employ Neary in the first place.
Accordingly, I shall recommend dismissal of this allega-
tion of the complaint, as well.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
[Recommended Order omitted from publication.]