Gehnrich & Gehnrich, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1977

232 N.L.R.B. 1122 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gehnrich & Gehnrich, Inc. and Shopmen's Local
Union No. 455, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO. Case 29-CA-4875
October 12, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 7, 1977, Administrative Law Judge
Abraham Frank issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and the Respon-
dent filed a brief in opposition thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, l and conclusions 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Gehnrich &
Gehnrich, Inc., Commack, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
The Charging Party has 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
credibility 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
ABRAHAM FRANK, Administrative Law Judge: The
charge in this case was filed on February 24, 1976, and the
complaint, alleging violations of Section 8(a)(1) and (5) of
the Act, issued on May 27, 1976. The hearing was held
between December 7, 1976, and January 4, 1977. The
Respondent filed a brief.
With respect to background evidence, I have resolved conflicting
testimony in favor of' Henry Gehnrich, president of Respondent, over that of
Meyer Tessler, the Union's business agent and Kenneth Mansmann, a
member of the Union's executive board. Gehnnch testified in a direct.
straightforward and responsive manner. Tessler's memory as to dates and
events was poor and he was at times admittedly confused. At one point he
testified that several pages of notes were his own personal notes, but almost
immediately thereafter contradicted himself and conceded that one page
was written by another person. Nor was Mansmann an impressive witness.
232 NLRB No. 182
The Respondent, with its principal place of business in
the Town of Commack, Suffolk County, New York, is
engaged in the business of manufacturing, selling, and
distributing industrial ovens and related products. During
the past year, which period is representative of its annual
operations generally, Respondent in the course and
conduct of its business purchased and caused to be
transported and delivered to its Commack plant, cast iron,
steel, aluminum, and other goods and materials valued in
excess of $50,000 of which goods and materials valued in
excess of $50,000 were transported and delivered to
Respondent's Commack plant in interstate commerce
directly from States of the United States other than the
State of New York. During the same year Respondent
manufactured, sold, and distributed at its Commack plant,
products valued in excess of $50,000 of which products
valued in excess of $50,000 were shipped from the
Commack plant in interstate commerce directly to States of
the United States other than the State of New York. I find
that the Respondent is engaged in commerce within the
meaning of Section (2), (6), and (7) of the Act.
The Charging Party, hereinafter called the Union, is a
labor organization within the meaning of the Act.
The principal issue in this case is whether the Respon-
dent negotiated with the Union in bad faith during the 6-
month period preceding the filing of the charge.
Background '
Respondent operates a relatively small, custom shop,
employing a normal work force of about 8 to 16 mechanics.
It does not maintain an inventory of its main product,
industrial ovens. These items are designed, manufactured,
and installed on order of particular customers. Business
fluctuates up and down considerably as some of the ovens
may cost from $20,000 to $40,000. As a result there are
valleys of employment when layoffs occur and peaks when
laid-off employees are recalled or new employees hired.
The Union has been the certified bargaining representa-
tive of Respondent's production and maintenance employ-
ees since 1955. Prior to July 1, 1975, there had been no
strikes at Respondent's plant at least since 1964. Relations
between the Union and Respondent were amicable. The
last contract between the parties terminated on June 30,
1975. Some time in April 1975, Respondent received notice
from the Union of a desire to negotiate a new contract.
Thereafter, on June 7, 1975, Respondent received a copy of
a "Proposed Agreement," comprising provisions of the
then current agreement with modifications and additions.
The new agreement with a termination date of June 30,
1976, left unspecified the amount of a wage increase
demanded by the Union, except that it provided for "a
substantial increase in wages and minimum rates of pay"
effective July I, 1975. The new agreement also provided
His testimony was generalized and hedged by his subjective impression of
what had occurred. He kept no notes, only "scnbblings," which were not
available to him because, he asserted, they had been stolen pnor to the
hearing. Tessler and Mansmann also contradicted each other with respect to
a meeting with Respondent, allegedly in October 1975. Tessler testified that
the meeting occurred by happenstance when they met Gehnrich while
picketing in front of the shop. According to Mansmann, the meeting was
prearranged by Tessler. I find, on the basis of Gehnrich's testimony, that
this meeting occurred on August 20, 1975.
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GEHNRICH & GEHNRICH, INC.
that there be "an increase contribution" by the Company
to each of the trust funds administered jointly by the
Union and representatives of the Companies. Other
provisions provided, inter alia, for changes and modifica-
tions in workaday conditions of employment such as
notification to the shop steward for new hires, hours of
employment, including overtime and holiday work, report-
ing pay, vacation, subletting of work, etc.
About June 15, 1975, Gehnrich, Leon Pedigo, a principal
of Respondent, and perhaps Charles (Buddy) Gehnrich, a
20 percent stock owner of Respondent, met with Tessler
and two shop stewards, Mostiekes and Hotzelt. Tessler
went through some of the proposals and explained the
reason why the Union was requesting the changes. The
meeting was exploratory. Tessler indicated that he would
return before the termination date of the existing contract
either to alter or explain some of the points in better detail.
On July 1, 1975, without further notice to Respondent,
the Union struck. The strike was industrywide affecting
about 150 companies with which the Union had contracts
expiring on that date. Most of the companies bargained on
a multiemployer basis in the Allied Association. Shortly
before July 1, 1975, about 28 companies banded together in
a new Independent Association. Respondent is I of about
30 companies bargaining separately with the Union. At the
time of the hearing the Union had concluded contracts
with 100 or 120 companies. A number of companies in the
Allied Association had gone bankrupt or closed their doors
following the July 1, 1975, strike.
Several days after the strike began, Mansmann gave
Respondent's receptionist a "Stipulation," providing for a
10-percent increase in wage rates for all employees and a 4-
percent increase in the annuity fund for all employees.
Added to the Union's previous proposal on trust funds was
the clause "Trust Fund as negotiated in the Allied and
Standard Independent contracts." The terms offered were
for one year with the following condition: "(If a longer
term contract is negotiated in the industry then the parties
shall adopt and accept the changes made for the period
after the first Ist year as outlined above.)"
About July 9, 1975, Respondent's officials had another
meeting with the Union's representatives. Present at this
meeting in Gehrich's office were the same individuals who
had participated in the previous meeting and perhaps
Mansmann. Gehnrich made it clear at the outset that the
Respondent would not agree to any provision which would
be negotiated by other companies and then forced upon
the Respondent as a result of such negotiations. Gehnrich
also informed the Union that the Respondent wanted to
withdraw from the trust funds and would not accept any
article that left Respondent with a contingent liability of
any sort. However, without making any specific offer on
wages, Gehnrich indicated that the Respondent was
prepared to pay a substantial increase to the men in terms
of a direct wage increase. Respondent also agreed to the
Union's proposal that the shop steward be notified before
the Company called the Union for new employees. The
meeting was short. Tessler informed the Respondent that
Tessler could not accept their withdrawal from the funds.
He stated that everybody has to pay the same amount to
the funds and that was it.
August 20, 1975: The same participants, including
Mansmann, were present. At this meeting the parties went
over the Union's proposals. The Union agreed to change
the article on reporting pay to require that a person sent by
the Union would have to be "qualified." The Union also
agreed that the wording in the previous contract calling for
termination rather than, as proposed in the new contract,
discipline of an employee after 3 days of unexcused
absence from work should stand. Tessler informed the
Respondent that, in signing the stipulation, the Company
would be bound to the 10 percent wage increase and it
made no difference if the rest of the industry settled for
less. There would be no reduction after the Company
signed the stipulation. If the industry contract was for a 3
year term and provided any changes at all, the Company
would be bound to the entire "thing." According to
Mansmann, the parties appeared to be nearing an agree-
ment until they reached the sections dealing with the funds.
At this time Respondent again informed the Union that it
intended to terminate participation in the sick leave,
welfare and pension funds, and to provide those benefits
independently of the Union. Respondent also proposed
that it take over the vacation payments because of a phrase
in the contract calling upon the Company to make up any
deficiency in that fund at the end of the year upon demand
of the Union. The union representatives caucused and,
upon their return, told the Respondent that perhaps
something could be worked out with the sick leave and
vacation funds to give Respondent a little relief, but the
Union could not accept the Respondent's not contributing
to the other funds. Respondent took the position that it
could provide sick leave, vacation, and welfare benefits to
its employees at a lower cost. With respect to the pension
fund, Respondent offered to give each employee $1,000
each Christmas to buy a pension fund of his own choice.
Tessler said the Company's proposal was impractical. The
pension fund was portable within the Union so that if an
employee was discharged or left the Company's employ
and was employed by another Company under contract
with the Union his pension went with him. Mansmann
argued that Respondent could not provide its own small
group of employees with the major health and welfare
benefits secured by the Union for a much larger number of
employees. Respondent, however, was adamant in its
position on the funds. Respondent's officials were aware of
the new Pension Act enacted by Congress. They explained
to the union representatives that the law, as Respondent
understood it, required an employer to make a pension
fund whole in the event the trustees did anything to
dissipate the funds and that a substantial portion of the
capital structure of the Company could come under attack
from such a source and that the Company could be
bankrupt by such an action over which they had no
control. Gehnrich reaffirmed the Respondent's initial
position that it would not agree to an open ended contract
where the resolution of particular paragraphs depended
upon negotiations with a third party. Under those circum-
stances, Gehnrich stated the Respondent would never sign
a contract with Local 455. With that, the meeting broke up.
Tessler agreed to call Respondent by noon of August 22.
On that date Pedigo, with Gehnrich participating, called
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tessler. Tessler asked them if they were willing to go along
with remaining in the funds. Pedigo and Gehnrich replied
that their position was the same. Tessler said, "Well, if
that's your position, don't bother calling me, and I won't
call you. Change your minds, call me. Sign the stipulation
exactly as it is written, then the men will go back to work.
Otherwise it stays the way it is."
Negotiations and Events Within the 10(b) Period
and Thereafter2
December 30, 1975: This meeting was held under the
auspices of the New York Mediation Board at their offices
in New York City. By that time Respondent had retained
legal counsel. Thereafter, negotiations were conducted for
Respondent by Richard Wilsker of the law firm of Felner
and Rovins, counsel for Respondent in this case. Present in
addition to Wilsker and mediator James McCabe were the
same individuals who had participated in previous meet-
ings. McCabe asked the parties to review their positions for
him. Each side stated its position for about 15 minutes. The
Union gave McCabe the documents which the Union had
presented to Respondent. Tessler went down the entire
stipulation. With respect to the funds, Tessler indicated
that Respondent would be required to pay whatever
contribution rate was agreed upon between the trade
association and Local 455. Respondent was then asked for
its position. Wilsker stated that Respondent wanted to take
over all seven funds and provide the benefits through its
own funding medium. However, after caucusing with
McCabe, Respondent's negotiators modified their position.
Respondent agreed to continue paying into the Union's
annuity and severance funds. Respondent proposed to
provide sick leave, vacation benefits, and apprenticeship
training benefits directly to the employees. Respondent
would not continue to contribute to the welfare and
pension funds. In lieu thereof Respondent would provide a
$1,000 yearly pension fund for full-time employees and
would provide benefits in welfare substantially similar to
the union fund through its own funding program. The
union representatives' response was that they could not
consider the Respondent taking over the funds. Tessler
indicated that they had reached an impasse. Respondent
could either sign the contract or take a strike of an
indeterminative period of time. Wilsker and his client
started to leave. McCabe stopped them and suggested a
caucus. He called them into a side room and informed
them that Tessler did not have authority to change the
agreement, that the person in authority was William
Calovito, president of the Union. McCabe suggested that
they had better get Calovito to the bargaining table.
Wilsker said, "Fine, let us have another meeting."
On January 6, 1976, Respondent sent a letter to all of its
striking employees, notifying them that as of January 12,
1976, Respondent would commence the hiring of perma-
nent replacements for those employees still on strike.
2 My findings of fact as to events and meetings within the 10b) period
take into account the testimony of all witnesses. Generally, I have credited
Richard Wilsker, Respondent's attorney and negotiator, over Tessler and
William Calovito. president of the Union. With few exceptions. Wilsker
appeared to me to have a complete grasp of the detailed negotiations. He
testified in a direct manner and impressed me with his willingness to state
Respondent offered the strikers the opportunity to report
for work between the hours of 7 and 8 a.m. on January 12.
January 7, 1976: The parties held a second meeting at the
mediation board's offices. The meeting was brief. Present
for the Union were Tessler, Mansmann, and the top shop
stewards. Wilsker represented the Respondent. Gehnrich
and Pedigo did not appear at that or any subsequent
bargaining meetings. At this meeting the Union informed
Wilsker that the Union was very close to a settlement with
the Allied Association. However, Tessler indicated that not
much could be accomplished at that time in the absence of
Calovito. Tessler requested that Wilsker provide Tessler
with a typewritten document stating the Respondent's
position. Wilsker replied that the matter was not esoteric or
lengthy and that he would either write Respondent's
proposal himself as he sat there or dictate them to Tessler.
Tessler wrote down Respondent's proposals at Wilsker's
dictation. Respondent's proposals were: (I) That the
contract be for one year effective from the date of
execution. (2) That the contract include a clause holding
the Company harmless for use of the Union's hiring hall.
(3) Respondent would not pay for the holiday of July 4,
1975 (when its employees were on strike). (4) Respondent
rejected a change in reporting pay. (5) Respondent would
agree to 24 months recall rights for laid-off employees, but
wanted a change in language. (6) Respondent would not
make any contribution to the vacation fund, but would
provide the same benefit to the employees without paying
110 percent of the Union fund. (7) Respondent would give
$15 toward the cost of safety shoes instead of the $24 asked
by the Union. (8) Respondent would continue to pay 2
percent to the Union's annuity fund. (9) Respondent would
make no further contribution to the Union's welfare or
pension funds. Respondent would itself provide the same
welfare benefits. Respondent would give every full-time
employee $1,000 every Christmas to purchase and pay for a
pension fund of his choice. (10) The Respondent would
provide its employees the same sick leave as provided
through the Union's fund. (I 1) Respondent would discon-
tinue paying into the Union's apprenticeship fund, but if
any employee wanted to take a course, Respondent would
pay for that course. (12) Respondent would continue to
make payments into the Union's severance fund. (13)
Respondent would grant a 5 percent intrease in wages
across the board. (14) Starting rates for new assemblers
were to remain the same as in the old contract. The
meeting ended with an agreement to have another meeting.
January 19, 1976: Calovito was present for the first time
joined by Tessler and the two shop stewards. Wilsker
appeared on behalf of Respondent. McCabe continued as
the mediator. The meeting opened with each side present-
ing the items as to which there was still no agreement.
Tessler pointed out that Respondent's position with respect
to welfare and pensions would deprive employees of
portability and vested credits they could only obtain
through the Union's funds.
clearly and fully the events as he recalled them. He kept notes, which were
useful to him in refreshing his recollection. Calovito's testimony was difficult
to follow. He gave me the impression that his testimony was tailored to
support his charge in this case. He was evasive. At one point he was
reluctant to identify his own handwriting,
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GEHNRICH & GEHNRICH, INC.
Wilsker asked Calovito to check with the strikers and
find out how many wanted to return to their jobs after the
strike terminated. 3 Calovito refused to do so, suggesting
that the Company call the strikers back in order of
seniority as they were needed, replacing the strike replace-
ments. Wilsker said the Respondent planned to retain the
replacements, but perhaps might call back a few of the
strikers.
There was no essential change in Respondent's position.
Tessler proposed a 7-percent, rather than a 10-percent,
increase in wages. Calovito looked perplexed and asked
Tessler if Wilsker had seen the new stipulation. Tessler
indicated that the parties were still bargaining on the basis
of the original stipulation. At that point Calovito took over
negotiations. Wilsker was handed the new stipulation,
which represented the tentative agreement between the
Union and the Allied Association. It provided for a 35-
cent-per-hour wage increase in each of 3 years. The
amount of the increase in contributions to the funds was
left open, but Calovito informed Wilsker that the actual
amount was 21 cents per hour in each of 3 years. At some
point in the discussion Wilsker indicated that the minimum
or trainee progression rates were also an open item for
Respondent. In connection with this open item, Calovito
proposed a "formula" which he believed could resolve the
entire dispute. The Union suggested a "formula for
possibly resolving it and getting a contract settlement on
the basis of if we can agree that the Company would take
over the benefits of the vacation and sick leave, the
administration of that, and we can work out a mutually
acceptable trainee progression, could we get an agree-
ment?" 4 Calovito assumed that Wilsker understood that
the Union wanted to retain pension and welfare and that
by yielding on vacation and sick leave the Union was
providing the quid for the quo of pension and welfare.
According to Calovito, Wilsker replied in words to the
effect, yes, that sounds okay. During a discussion of the
pension and welfare funds and the contribution the
Association had agreed to give, Wilsker commented "We
will work something out." Calovito gave Wilsker a
breakdown in the 3-year 21-cent contribution to pension
and welfare funds for each year. Wilsker requested a
caucus to acquaint his principals with the new proposal.
The meeting was adjourned when Wilsker was informed by
McCabe that Calovito had another meeting scheduled. The
parties arranged for a further meeting. After Wilsker left,
McCabe said to Calovito, "If you guys can work out those
two points, you got an agreement."
3 Although Wilsker testified that the first discussion of replacements
occurred on January 30, I believe he was mistaken on this point. Tessler
testified to such a discussion on January 19, the only meeting he attended
with Calovito.
4 Calovito gave at least four versions of his formula. Three of the four
versions conform substantially to that cited above. In his third version
Calovito included a specific statement that the Union would retain pension
and welfare. Although Calovito insisted that Wilsker had made such a
concession, Calovito's testimony up to that point was couched in general
terms, avoiding any claim that Wilsker had said "Okay" to a specific
proposal that the Union retain pension and welfare. From the beginning
Respondent had taken an adamant stand on those items. It is most unlikely
that Wilsker would have casually agreed to give up that position without at
least consulting his client or demanding a firm agreement on all other items
January 30, 1976: This was the third meeting under the
auspices of Mediator McCabe. Wilsker asked Calovito if
the latter had found out which strikers intended to return
after the strike ended. Calovito replied, "No, we don't have
the information." Calovito suggested that Respondent call
the employees back and "if they don't come back, they are
terminated." 5 Calovito had previously taken the position
that all employees of Respondent, including those who had
been laid off as long ago as September, 1974, were entitled
to reinstatement in preference to the strike replacements.
At this meeting he indicated that he would think about the
recall rights of the September 1974 laid-off employees.
Wilsker explained that Respondent wanted to know the
number of potential returning strikers so that it could
average out its wage costs by totaling the wages of the
higher priced old employees with those of the new, lower
priced trainees. However, Wilsker did not retreat from his
previous position that the Respondent intended to retain
the economic replacements and would not discharge them
to make room for the strikers. He told Calovito that as of
that time the Respondent was fully staffed; that the strikers
would be placed on a preferential hiring list; that once the
strikers were reinstated as openings occurred, they would
return to work with all of their seniority as against other
employees, including the economic replacements. Calovito
asked Wilsker how many employees the Company would
need if the strike terminated. Wilsker said he assumed the
Company would need approximately the same number
then working and maybe a few more. The conversation
became quite heated. Calovito said that he could not be
called the president of the Union if he left the scabs
working and the strikers out on the street.
During this meeting Respondent offered a new proposal
on minimum rates for trainees. The Respondent proposed
a minimum rate of $3, with a progression to $4.20 over the
length of the contract. This was a reduction from the
previous contract, which started at $4.41 for trainees
classified as assemblers and went up to $5.55 or $5.60.
Respondent now sought a 3-year contract rather than the
I-year contract it had earlier proposed. Respondent offered
no increase in the cost of safety shoes although it had
earlier agreed to a $15 contribution. Respondent's position
remained the same on sick leave, vacations, holidays, and
no pay for July 4. Wilsker also proposed a deletion of the
clause on subcontracting that had been contained in the
previous contract. On wages, Wilsker offered a 5 percent
increase, effective on execution of the contract. The offer
was pennies apart from the wage increase in the Allied
Association agreement. Wilsker told Calovito that "a few
in dispute. Calovito's testimony was given in response to my questions as to
whether Wilsker. contrary to his testimony. had ever specifically committed
his principal to such a position. In responding to my questions Calovito did
not appear to me to be entirely open and candid. I do not credit his
testimony that he had specifically proposed and Wilsker had specifically
agreed that the Union could retain pension and welfare.
I Clearly, Calovito's suggestion was not responsive to Wilsker's request
for information as to the future intentions of current strikers. As president of
the Union. Calovito knew or should have known that Respondent could not
lawfully insist that a striker return to work during the strike under penalty of
termination if he refused. Calovito's advice was therefore a good example of
parry and thrust, consistent with his position that all stnkers must be
recalled as part of the strike settlement agreement.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pennies is not going to make or break this deal."
Respondent's position on welfare and pension had not
changed. Wilsker said the Respondent would pick up the
welfare costs and repeated Respondent's offer of $1,000 to
each employee each year. Wilsker explained that this offer
would be very beneficial to the Respondent and the
employees with the tax benefit the employee would receive
as well as a funding program for his own pension. Calovito
accused Wilsker of backing out of an agreement to
continue payments to the welfare and pension funds in
accordance with the "formula" proposed by Calovito on
January 19, 1976. Wilsker denied that he had made such an
agreement. Calovito asked Wilsker what his position was
on welfare and pension. Wilsker responded, "We'll discuss
it." Calovito requested a caucus before responding to
Respondent's last proposal. McCabe informed Wilsker that
the Union needed more time and suggested that the
meeting be adjourned. Wilsker protested on the ground
that he would be leaving for Europe in a few days.
However, he agreed to have an associate in his office meet
with the Union in the interim.
On February 5, 1976, Respondent filed an RM petition
with the Board, asserting a good-faith doubt of the Union's
majority status on the ground: (1) that from July 1, 1975, to
February 5, 1975, a total of 14 permanent replacements
had been hired by Respondent; (2) that the total number of
employees in the unit as of July 1, 1975, were 12 of which 8
had left on strike and had not returned and 2 did not
participate in the strike. On June 8 the Regional Director
dismissed the petition in view of the issuance of the
complaint in the instant case.
On February 6, 1976, Calovito appeared at McCabe's
office for another scheduled meeting with a representative
of Respondent. When none appeared McCabe made a
phone call and thereafter asked Calovito if he wanted to
talk to Respondent's attorney. Calovito spoke to Ronald
Kreismann, an associate of Wilsker. Kreismann told
Calovito that the Company had just filed a petition.
According to Calovito, Kreismann also said, "Well, we're
not coming down because we filed a petition, so there is no
sense bargaining." Respondent introduced into evidence
an affidavit of Kreismann, who was not available in the
State of New York at that time. The affidavit asserts that
Kreismann asked Calovito if he thought, under the
circumstances, it was necessary for Kreismann to appear;
that Calovito said he would check with his office, but failed
to call Kreismann thereafter. In accepting the affidavit of
Kreismann I indicated that the document had little
evidentiary value in view of the unavailability of Kreis-
mann for purposes of cross-examination. Nevertheless,
without relying on the affidavit, I do not believe Calovito's
testimony that Kreismann bluntly refused to appear solely
on the ground that an RM petition had been filed by
Respondent. I have elsewhere found Calovito not to be a
credible witness and I find that in this instance he
exaggerated what Kreismann may actually have said.
There is no allegation that Respondent withdrew recogni-
tion from the Union in conjunction with its RM petition.
In these circumstances it is most doubtful that Kreismann,
6 Based on the testimony ofCalovito. Wilsker's recollection was not clear
on this point. He vaguely recalled that another mediator may have
a member of a prominent labor relations law firm, would
deliberately refuse to meet for a scheduled negotiation
session. In any event, assuming Kreismann failed to attend
the meeting because he did not believe it was necessary,
Wilsker immediately remedied that error upon his return to
this country, as indicated below. I find no evidence of bad
faith in this incident.
When Wilsker returned from Europe during the last
week in February he contacted McCabe, who had also just
returned from vacation, and arranged for a meeting with
the Union on March 12.
As indicated above, the charge in this case was filed on
February 24, 1976.
March 12, 1976: Calovito again accused Wilsker of
bargaining backwards. Calovito recalled to Wilsker that
the Union had proposed conceding to Respondent the
administration of vacation and sick leave; that they would
try to work out a progression of minimums; that they
would work along those lines and see if they could hammer
out an agreement based on those two points. Calovito
charged that the Respondent was backing out of an
agreement to let the Union retain pension and welfare.
Wilsker again denied that he had made such an agreement.
He said something to the effect that Calovito had been led
down the garden path. Calovito also pointed out that
Wilsker was bargaining backwards with respect to shoes.
Wilsker agreed that he had made a mistake and corrected
it. Wilsker denied Calovito's charge that Wilsker had
agreed to a June 30 contractual expiration date. I credit
Wilsker's denial. Wilsker insisted that the contract be
effective for a period of 3 years from the execution date.
The parties then discussed what the Respondent would
give the employees in terms of sick leave and vacation.
Wilsker said the Respondent would give the employees
whatever was in the contract. Calovito pointed out that the
trust fund booklets provided for certain benefits that were
not mentioned in the contract. Wilsker asked Calovito to
send Wilsker the booklets and Calovito agreed to do so.
They then began to consider other items. Calovito
indicated to Wilsker that Calovito was not aware of the
Respondent's position on a number of items that the
Respondent had set forth at the December 30, 1975, and
January 7, 1976 meetings. Wilsker was aggravated and
suggested that they have another meeting after Calovito
had sent Wilsker the information the latter had requested
on sick leave and vacations. It was at this meeting that the
Union made a concession on the starting rate for trainees,
reflecting only a part of the proposed 35-cent increase
during the first year of employment. The starting rate
would be $4.55 the first year, an increase over the $4.41
rate of the prior contract, but not the full 35-cent increase
theretofore sought by the Union.
On March 20, Wilsker received the booklets on sick leave
and vacation that had been promised to him by Calovito.
The parties met on April 6, 1976, but McCabe was
unavailable to mediate on that date and Wilsker indicated
that he preferred not to meet with a substitute mediator. 6
At this meeting Calovito asked Wilsker if the Respondent
would match any improvement in welfare benefits during
substituted for McCabe on April 6, 1976. and that Wilsker may have
indicated he did not want to proceed without McCabe. Although Wilsker's
1126
GEHNRICH & GEHNRICH, INC.
the course of the contract if the Union made such
improvements. Wilsker replied, "Of course." Calovito then
asked Wilsker for information on costs to the Respondent
of welfare benefits equal to the Union's program. Wilsker
replied, "Sure, I'll get them to you."
April 15, 1976: Wilsker told Calovito that Wilsker had
received the material on sick leave and vacation rules and
the Union's annual financial report. The parties agreed
that the Respondent would provide sick leave and vacation
benefits set forth not only in the contract but in the
booklets Calovito had sent to Wilsker. Such benefits would
be provided by Respondent under a Company program
rather than through the funding medium that had been
utilized in the past. There was some discussion of the rights
of laid-off employees and it was agreed that they would
receive pro rata sick leave and vacation benefits. Wilsker
raised the Respondent's offer on minimum, trainee rates to
$3.10, which would be reflected vertically and horizontally.
Calovito asked Wilsker how Wilsker could justify such a
rate in terms of the rate in the old contract. Wilsker replied
that Respondent was getting all the people it wanted at $3
an hour.7 They were doing a bang up job, in fact, better
than some of the old timers. At this meeting McCabe took
Wilsker aside and pointed out that pension and welfare
funding through the Union was traditional, and something
union members expected. Wilsker said he understood
Calovito's problem and advised McCabe that Respondent
eventually would "collapse" on the welfare issue, but that
minimums were important. Calovito testified that McCabe
did not tell Calovito of Respondent's intention on welfare.
However, at this meeting the Union made a further
concession on trainee progression rates. The Union agreed
to freeze the first year and modify the second and third
years, a little downward at the beginning. Calovito asked
Wilsker for the costs on welfare and Wilsker indicated that
it would take a few more days before he had that
information. The parties agreed to meet on April 22.
April 22, 1976: At this time Calovito again asked Wilsker
for the information on Respondent's costs with respect to
welfare coverage for the employees. Wilsker said he did not
yet have that information. Apparently. on this as well as
other occasions Wilsker and Calovito were at times in
separate rooms. Mediator McCabe went back and forth
attempting to iron out the differences. McCabe told
Calovito that if the Company could get low enough
progression rates they should be able to get an agreement.
Probably at this meeting Wilsker explained to Calovito in
some detail why Respondent no longer wanted to partici-
pate in the Union's pension fund. Wilsker said that he
foresaw great problems with the Union's pension plan
because of the recently enacted Employees Retirement
Income Security Act of 1974. This law required certain
minimum funding standards, which could be disastrous in
an unhealthy industry. Over a number of years the Union
had lost 50 or 40 percent of its membership and a
substantial number of members during the strike with the
Association. A number of Companies had gone out of
business. The number of contributing employers was
notes show that he had made a pnvate proposal to McCabe on Apnl 6,
1976, 1 find this conversation and the events Wilsker relates as of this date
occurred on Apnl 15. 1976. as set forth below.
diminishing drastically. In view of this situation Wilsker
indicated that he was concerned about the involvement of
the Respondent in the Union's pension fund. Although the
Union had offered Respondent a fixed contribution rate
for the 3-year contract, Wilsker believed the time was ripe
to disengage his client from a very difficult future pension
situation, which would probably occur at the bargaining
table at the next go-around.
On this date there was another brief discussion of the
recall rights of the strikers. Wilsker took the position that
the strikers would be called back to work on the basis of
seniority once the strike ended. Calovito testified that he
was unable to understand Wilskcr's statement that the
strikers would be placed on a general seniority list.
McCabe asked Wilsker to have his principals present at
the next meeting, which was scheduled for May 4, 1976.
Thereafter, McCabe notified the Union that the Respon-
dent had requested that the meeting be postponed and it
was rescheduled for May 7, 1976.
May 7, 1976: Before McCabe arrived, Wilsker and
Calovito had a discussion of their positions. Calovito asked
Wilsker if Wilsker had the information on welfare costs.
Although Wilsker at this time had the information, which
indicated that the comparative costs were a "wash," he did
not supply Calovito with that information. Wilsker told
Calovito that Calovito did not need the figures because if
Calovito did not back off the economic replacement strike
situation the parties would never have a settlement. The
parties renewed their argumentspro and con with respect to
the economic replacements. Wilsker told Calovito that the
strikers would have their seniority rights except that the
strike period would not be counted for seniority. Calovito
replied that if he had to strike for 5 or 10 years it would be
over his dead body that his strikers did not go back to work
and all Respondent's scabs back out on the street where
they belonged. Wilsker restated Respondent's position.
Calovito responded. At that point McCabe arrived.
McCabe asked Wilsker where his principals were. Wilsker
replied that he had had a full afternoon discussing
potential positions and solutions with his principals and
that their position was the same as it had been on April 22.
McCabe said he would like to have "a shot" at Wilsker's
principals and Wilsker agreed to bring them with him to
another meeting.
On May 10, 1976, Albert Lester, an Individual, filed an
RD petition seeking to decertify the Union at Respon-
dent's plant. As indicated above, the complaint in this case
issued on May 27, 1976. No further meetings were held at
the offices of the mediation board.
However, about the beginning of July, 1976, Wilsker met
with attorneys for the board at the board's offices in
Brooklyn, New York, in connection with the instant
proceeding. Calovito and a shop steward were also present.
At that time Calovito and Wilsker had a private meeting.
Calovito reduced his demand on minimum trainee rates for
new hires to $3.50 as against Respondent's last offer of
$3.10. Under Calovito's proposal the new trainees would
also receive automatic increases over a 24-month period
? Respondent hired new trainees in the classification of mechanics at
rates as low as $2.50 per hour.
1127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amounting to $1.20. Calovito also retreated somewhat from
his position that strikers be given total preference in
available jobs over strike replacements. He proposed that
nine strikers be recalled immediately upon final agreement,
that six more strikers receive preference in future job
openings, and that the remaining strikers be recalled, as
new jobs became available, on a one-to-one basis with the
strike replacements who were on layoff.8 According to
Calovito, Wilsker said the proposal sounded fair, but he
would have to consult with his clients. A week later Wilsker
and Calovito happened to meet at the elevator in the
board's office building and Wilsker told Calovito that
Wilsker's clients had turned down Calovito's proposal.
Conclusions 9
The complaint alleges that the Respondent bargained
with the Union in bad faith; that Respondent had no
intention of reaching agreement; and that Respondent
refused to furnish the Union with information relating to
Respondent's proposal to provide welfare benefits to its
employees; all in violation of Section 8(a)(1) and (5) of the
Act.
In determining whether a Respondent has engaged in
bad-faith bargaining, the first and last question is one of
motivation, which invariably must be inferred from
circumstantial evidence. It is clear under Section 8(d) of the
Act that the term "bargain collectively" does not require
either party to agree to a proposal or make a concession.
The Board may not sit in judgment upon the substantive
terms of a collective-bargaining agreement.' 0 If an employ-
er's insistence on the inclusion of a proposed contract
terms "is genuinely and sincerely held, if it is not mere
window dressing, it may be maintained forever though it
produce a stalemate."" Usually, no one factor is conclu-
sive' 2 and mere doubts or suspicion are not enough to
establish a violation.' 3 On the other hand, these rights may
not be used as a cloak to avoid good-faith bargaining. An
employer must enter into bargaining with an open mind
and a sincere purpose to reach agreement.14 He cannot
engage in mere surface bargaining. And bad faith is bad
faith though done with sophistication and finesse.' 5
I have set forth in considerable detail the nature and
extent of the negotiations between the Respondent and the
Union, including background evidence, which constitute
the basis for the General Counsel's complaint in this case. I
cannot find that a preponderance of this evidence supports
the allegation of the complaint that the Respondent
s At the time of the strike, July 1, 1975. Respondent employed 10
employees in the appropriate unit. As of December 15, 1976, there were 16
full-time employees in the unit, including 2 employees who had been
employed prior to the strike and who had returned to work on or after July
1, 1975. The Union initially asserted that 24 prestrike employees, including
all those who had been laid off and were entitled to recall under the expired
contract, should be given preference in employment when the strike
terminated.
9 In view of my decision herein, the motion of Charging Party for a
compensatory remedy in this case is denied.
IO N.L.R.B. v. American National Insurance Co., 343 U.S. 395 (1952);
H.K. Porter Co., Inc., Dission Division-Danville Works v. N.L.R.B., 397 U.S.
99 (1970).
12 NL.R.B. v. Herman Sausage Company, Inc., 275 F.2d 229, (C.A. 5,
1960).
entered into these negotiations without an honest intention
to reach agreement with the Union.
The Union struck the Respondent on July 1, 1975, before
the parties had had an opportunity to engage in meaningful
collective bargaining. To terminate the strike the Union
offered Respondent a contract containing terms and
conditions of employment, including the amount of
contribution to the Union's trust funds, to be determined
in ongoing negotiations with the Allied and Independent
Associations. However, a wage increase of 10 percent
demanded by the Union would not be diminished in the
event the Associations settled for less. Clearly, Respondent
had a right to object, as it did, to the open ended nature of
this contract, particularly since Respondent would be held,
in any event, to a 10-percent wage increase. Not until
January 19, 1976, a period of more than 6 months, was the
Union prepared to offer Respondent specific terms for a
new contract, based essentially upon the terms negotiated
with the Allied Association.
Thereafter, the parties bargained hard. With respect to
the contract, the Union's main effort was to break down
Respondent's resistance to its continued participation in
the Union's trust funds. Tessler and Mansmann had
indicated at the outset of negotiations that the Union might
be willing to let Respondent take over sick leave and
vacation benefits. Respondent, on its part, agreed at the
first meeting with the mediator to continue contributing to
the annuity and severance funds. But it is clear from the
record that the Union was at no time prepared to give in or
even compromise on the issues of welfare and pensions.
Obviously, Calovito hoped to settle the matter by trading
an advantage to the Respondent on minimum progression
rates for Respondent's participation in the important trust
funds. Respondent did, in fact, indicate to the mediator
that it was prepared to yield on the issue of welfare
benefits, but remained adamant on pensions. As to the
latter item, the alternative of a $1,000 yearly pension fund
for each employee was never seriously considered or
discussed by the Union. Tessler dismissed the concept as
impractical. Calovito testified that he did not pursue the
offer and appeared to be unaware that it was a major point
in Respondent's bargaining position.
Another hard fought issue was the status of the strikers
vis-a-vis the economic replacements. Respondent early took
the position that it would not discharge its economic
replacements to make room for the strikers upon termina-
tion of the strike. Respondent agreed to put the strikers on
a preferential hiring list and recall them with all of their
seniority rights as jobs became available.'6 The Union
i2 Southern Saddlery Company, 90 NLRB 1205, 1206, (1950).
13 Specialty Container Corporation, Specialty Papers Company, and
Specialty Bag Corporation, 171 NLRB 24, 29 (1968).
14 Hondo Drilling Conpany, N.S.L, 213 NLRB 229 (1974).
iS N.LR.B. v. Herman Sausage, supra.
Is Respondent contends in its brief that the Union's strike is unlawful
because the Union has not complied with the notice requirements of Sec.
8(dX3). Respondent argues that it therefor has the legal option, in any event.
to refuse to reinstate the strikers at the termination of the dispute. I find no
merit in this contention. This issue was not litigated in this proceeding.
Calovito testified that a notice form, which he produced, was given to him
by the secretary of the Local and, as far as he knew, that was all that was
necessary. Calovito's testimony is not conclusive evidence that the Union is
1128
GEHNRICH & GEHNRICH, INC.
insisted that the strikers be recalled immediately as part of
a strike settlement agreement. The Respondent refused to
accede to this demand. It is well settled, of course, that
Respondent need not discharge permanent replacements to
make room for economic strikers should the latter
eventually request unconditional reinstatement.' 7
It is not easy for a union to gain its bargaining demands
once it has struck an employer and the employer, replacing
the strikers, manages to continue its business successfully.
Under those circumstances, for all practical purposes, the
strike has been lost. By the time the Union was willing to
bargain seriously in this case, the Respondent was in a
strong economic position. It did not need the strikers, but
bargained nevertheless as it had a legal obligation to do.
A certain amount of gamesmanship occurred on both
sides of the bargaining table. Calovito proposed a vague
"formula" and then used it to accuse Wilsker of bargaining
backwards. Wilsker sought to gain the maximum in
concessions before announcing that the Respondent would
yield on welfare. Minor issues were resolved without great
difficulty. However, Respondent, fortified by Wilsker's
experience in the field of pension law, would not yield on
the pension issue.
At some point during the hearing, counsel for the
General Counsel alleged that the Respondent had granted
the strike replacements fringe benefits and wages it was
unwilling to offer the Union. No such allegation was
proved. Nor did counsel for the General Counsel prove
that there were openings for jobs at Respondent's shop, but
that Respondent refused to consider strikers for such jobs.
Respondent has no history of union animus. It engaged
in no illegal activity to wean its employees away from the
Union or to discredit the Union in their eyes. It met and
conferred with the Union frequently as soon as the Union
was prepared to bargain on the basic issues. Its arguments
were not spurious or so unreasonable that a self-respecting
union could not accept them. If the Respondent was
adamant, so too was the Union. No judge can look into a
man's heart and soul to determine with certainty his
innermost motivation. So far as the evidence presented in
this case is concerned, there is not enough to prove that
Respondent's totality of conduct amounted to bargaining
in bad faith in violation of Section 8(a)(5) and (1) of the
Act. "'
in violation of Sec. 8(dX3). The burden is not on the Union to disprove
Respondent's allegation. Moreover, it is clear on this record that the New
York State Mediation Board was actively and extensively involved in
attempting to resolve this dispute. fulfilling the spint and purpose of Sec.
8(dX3),
i7 N.L.R.B v. Mackay Radio i Telegraph Co.. 304 U.S. 333 (1938);
N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221 (1962). During the course of his
testimony Wilsker remarked that as of January 30. 1976, Respondent had
not made an "absolute determination" that the economic replacements were
permanent or temporary: that the matter was on the bargaining table. From
this, counsel for the General Counsel argues that Respondent was
bargaining in bad faith because it did not accede, at least in part. to the
Union's demand that all stnkers be returned to their jobs as part of a strike
settlement agreement. The question whether an economic replacement is a
permanent or temporary replacement is generally determined in an 8(aX3)
proceeding following the end of the strike and the strikers' request for
reinstatement. Strikers, while on strike. remain employees of their employer
and are eligible to vote in any Board-conducted election during the first year
of the strike. It is not unlawful for an employer to agree to permit all
employees, strikers as well as permanent replacements, to compete on a
There remains for consideration the allegation of the
complaint that the Respondent refused to furnish the
Union with financial information and other data relating to
the cost of providing welfare benefits to Respondent's
employees in lieu of contributing to the Union's welfare
fund.
Clearly, information of this nature was information to
which the Union normally would be entitled to enable it to
bargain intelligently. In the instant case the issue arises in a
peculiar context. By May 7, 1976, when Wilsker had the
information and refused to provide it to Calovito, Wilsker
had already informed the mediator that the Respondent
was prepared to yield on this point. However, Wilsker did
not inform Calovito of Respondent's contemplated change
in position. Wilsker sought a tactical bargaining advantage,
first, in delaying his announcement that the Respondent
might be willing to continue its contribution to the Union's
welfare fund and, second, in refusing to furnish Calovito
with information to which the Union was entitled in the
absence of agreement on this bargaining item. Under these
circumstances, I cannot find that the duty of Respondent
to furnish the requested information on May 7, 1976, and
thereafter was mooted by Respondent's tentative conces-
sion to which only the mediator was privy. Accordingly, I
find that Respondent violated Section 8(aX5) and (I) of the
Act by refusing on May 7, 1976, to furnish the Union with
financial and other related information with respect to
Respondent's projected costs in providing welfare benefits
to its employees independent of the Union's welfare fund. I
do not, however, regard Respondent's conduct in this
matter to be evidence of bad faith bargaining. Rather, it
seems to me Wilsker withheld the information as a ploy to
elicit further concessions from the Union.
Upon the basis of the foregoing findings of fact.
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 19
The Respondent, Gehnrich & Gehnrich Inc., Commack,
New York, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
seniority basis for available jobs. In that event, one hired as a permanent
replacement may not be a permanent replacement permanently. Cf. Sub
Grade Engineering Company, 93 NLRB 406 (1951). where, the majority
having held that "persuasion" which results in discrimination is not
protected by Sec. 8(c), the dissenting member remarked: "Persuasion is not
persuasion when it persuades." In the instant case the record shows that the
replacements were hired as permanent replacements and there is no
evidence to the contrary. Counsel for the General Counsel indicated that she
had a theory to support a finding of bad faith on this point and that she
would "obviously" bnef her argument to me. No such brief having been
filed and being unable myself to conjecture what her theory might be, I find
her contention to be without merit.
is The Dow Chemical Company, Indianapolis Division, 186 NLRB 372
(1970): American Weldingd Industrial Sales, Inc.. 214 NLRB 1086(1974).
19 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.
1129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to bargain collectively with Shopmen's
Local Union No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO, as
the exclusive representative of its employees, by refusing to
furnish it with information consisting of financial data and
other related information with respect to Respondent's
proposal to provide welfare benefits to its employees in
place of and as an alternative to benefits provided in said
Union's welfare benefit fund.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Furnish, upon request, to the above-named Union,
financial data and other related information with respect to
Respondent's proposal to provide welfare benefits to its
employees in place of and as an alternative to benefits
provided in said Union's welfare benefit fund.
(b) Post at its Commack, Suffolk County, New York,
shop copies of the attached notice marked "Appendix." 2 0
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges that Respondent engaged in
bad faith bargaining in violation of Section 8(a)(5) and (1)
of the Act.
20 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Shopmen's Local Union No. 455, International Associ-
ation of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, as the exclusive representative of
our employees, by refusing to furnish it with informa-
tion consisting of financial data and other related
information with respect to our proposal to provide
welfare benefits to our employees in place of and as an
alternative to benefits provided in said Union's welfare
benefit fund.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL, upon request, furnish to the above-named
Union financial data and other related information
with respect to our proposal to provide welfare benefits
to our employees in place of and as an alternative to
benefits provided in said Union's welfare benefit fund.
GEHNRICH & GEHNRICH,
INC.
1130