Gehnrich & Gehnrich, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 528 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gehnrich & Gehnrich, Inc. and Shopmen's Local
Union No. 455, International Association of
Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO
Shopmen's Local Union No. 455, International Asso-
ciation of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO and Gehnrich &
Gehnrich, Inc. Cases 29-CA-6217, 29-CA-
6538, 29-CA-6886, and 29-CB-3437
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On December 31, 1980, Administrative Law
Judge Arthur A. Herman issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed cross-exceptions and a sup-
porting brief, and a brief in opposition to the Gen-
eral Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 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 Re-
'The General Counsel 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 re-
spect 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 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
' In adopting the Administrative Law Judge's conclusion that Re-
spondent did not violate Sec. 8(a)(5) and (I) of the Act by proposing that
strikers not accrue seniority for the time they were on strike or receive
general wage increases granted to nonstriking employees during the
strike, we emphasize that Respondent did not insist upon either proposal
and, indeed, as found by the Administrative Law Judge, Respondent sub-
sequently withdrew such proposals voluntarily during negotiations. Cf.
Interstate Paper Supply Company, Inc., 251 NLRB 1423 (1980).
We agree with the Administrative Law Judge that Respondent cannot
be found to have violated Sec. 8(a)(5) of the Act by unilaterally imple-
menting wage increases exceeding those in its pre-impasse offers to the
Union. In so doing, we note, as did the Administrative Law Judge, that
neither the original nor the amended complaint alleged such a violation,
that no party adduced testimonial evidence concerning such increases,
and that the General Counsel raised the issue for the first time in his post-
hearing brief to the Administrative Law Judge. In these circumstances,
we find that the matter was not fully and fairly litigated. We further find
it unnecessary to pass on the Administrative Law Judge's speculation as
to what meritorious defenses, if any, Respondent might have raised had
the matter properly been put in issue.
258 NLRB No. 75
lations Board adopts as its Order the recommended
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, except
that the attached notice is substituted for that of
the Administrative Law Judge.
MEMBER JENKINS, dissenting in part:
I concur with the decision of my colleagues
except that I would find that Respondent addition-
ally violated the Act by proposing in negotiations
with the Union that strikers not accrue seniority
for the time they were on strike nor receive gener-
al wage increases granted to nonstriking employees
during the strike.
My colleagues recognize that insistence upon or
implementation of such proposals would be unlaw-
ful. Indeed, it is clear that the implementation of
such proposals would be inherently destructive of
important employee rights. See N.L.R.B. v. Erie
Resistor Corp., et al., 373 U.S. 221 (1963); N.L.R.B.
v. Great Dane Trailers, Inc., 388 U.S. 26 (1967).
However, my colleagues conclude that since nei-
ther proposal was insisted upon or implemented by
Respondent, and both were later withdrawn during
negotiations, Respondent's conduct in making the
proposals was not unlawful. I cannot agree. In my
view, proposals such as these which would dis-
criminate against employees solely on the basis of
whether they chose to exercise their right to strike
inevitably carry with them a coercive effect and
plainly can serve no legitimate bargaining purpose.
The fact that Respondent did not insist upon or
implement the proposals and later withdrew them
(but not until after the Union filed unfair labor
practice charges) does not cure their unlawful
effect which continued from the time period of ap-
proximately 6 months. Accordingly, I would find
that Respondent, by making such proposals, violat-
ed the Act as alleged in the complaint.
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, Interna-
tional Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, as the
exclusive representative of our employees, by
refusing to furnish it with the home addresses
of our unit employees so that the above-named
528
GEHNRICH & GEHNRICH, INC.
Union can perform its duty properly as the
collective-bargaining agent of our employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL, upon request, furnish to the
above-named Union the home addresses of our
unit employees so that the Union can perform
its duty properly as the collective-bargaining
agent of our employees.
GEHNRICH & GEHNRICH, INC.
DECISION
STATEMENT OF THE CASE
ARTHUR A. HERMAN, Administrative Law Judge:
Upon charges filed by the Union against the Employer in
Case 29-CA-6217 on February 15, 1978, and in Case 29-
CA-6538 on July 19, 1978, the Regional Director for
Region 29, on October 19, 1978, issued an order consoli-
dating cases, complaint and notice of hearing alleging
violations of Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, hereinafter called the
Act.' Upon a further charge filed by the Union against
the Employer in Case 29-CA-6886 on January 2, 1979, a
complaint and notice of hearing issued on February 2,
1979, alleging additional violations of Section 8(a)(l) and
(5) of the Act. On August 7, 1978, the Employer filed a
charge against the Union in Case 29-CB-3437, and on
March 2, 1979, a complaint and notice of hearing issued
thereon, alleging a violation of Section 8(b)(3) of the
Act. On August 24, 1979, the Regional Director for
Region 29 issued an order further consolidating the cases
and rescheduling the hearing combining all of the above
charges and complaints for hearing. Pursuant to said
order, a hearing was held before me on November 26,
27, and 29, 1979, in Brooklyn, New York. All parties
were afforded full opportunity to be heard and to intro-
duce relevant testimony.2 Briefs were timely filed by the
General Counsel and the Employer.
Upon consideration of the entire record and the briefs
submitted, and upon my observation of the witnesses pre-
sented, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Respondent, with its principal place of business in Suf-
folk County, Commack, New York, is engaged in the
business of manufacturing, selling, and distributing indus-
At the hearing, the General Counsel moved to amend the consoli-
dated complaint. The motion was granted.
I At the hearing. I approved, over the Employer's objection, a unilater-
al settlement agreement in Case 29-CB-3437, inasmuch as the agreement
provided a full remedy of the 8(b)(3) violation alleged in the complaint.
Not having been advised of the Union's failure to comply with the terms
of the settlement agreement, I must assume that compliance has been ef-
fectuated, or will be, when and if negotiations resume, and I hereby dis-
miss the complaint in Case 29-CB-3437.
trial 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 de-
livered 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 other than the State of New York. I find that Re-
spondent is engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Shopmen's Local Union No. 455, Interna-
tional Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, hereinafter called the Union,
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Employer and the Union have had a long history
of collective- bargaining agreements dating back over 20
years covering the Employer's production and mainte-
nance employees. The last such agreement was effective
from July 1, 1973, to June 30, 1975. Prior to the expira-
tion date of the last agreement, negotiations were con-
ducted between the parties with a view towards signing
a new agreement. However, with no new agreement
signed, the Union struck the Employer on July 1, 1975.3
Subsequent to July 1, 1975, the parties continued to meet
and negotiate on many occasions, up to and including
May 7, 1976, but to no avail. On February 24, 1976, the
Union filed a charge in Case 29-CA-4875, alleging bad-
faith bargaining, and complaint issued therein on May 27,
1976. 4 A hearing was held before Administrative Law
Judge Abraham Frank on several dates between Decem-
ber 7, 1976, and January 4, 1977, which resulted in his
determination that the Employer did not engage in bad-
faith bargaining, but that it failed to furnish certain finan-
cial information which the Union was entitled to.5 With
the issuance of the Board decision on October 12, 1977,
affirming the Administrative Law Judge's determina-
tions, negotiations between the Employer and the Union
were resumed at the end of November 1977.
B. Issues
In summary, the issues as framed by the pleadings and
briefs are as follows:
1. Did the Employer negotiate in bad faith since No-
vember 1977 with no intention of entering into a collec-
tive-bargaining agreement?
2. Did the Employer violate Section 8(a)(5) of the Act
by originally taking the position in negotiations that it
'This strike has continued to the present day.
4 Despite the issuance of the complaint. the parties negotiated at one
more meeting in July 1976, but no agreement could be reached
I have taken official notice of that Decision (232 NLRB 1122), and
some of the facts recited herein have been gleaned from that Decision
529
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not grant seniority to striking employees for the
time they were on strike, and then later withdrawing
that position?
3. Did the Employer violate Section 8(a)(5) of the Act
by originally taking the position in negotiations that it
would not grant striking employees any general wage in-
creases that were granted to nonstriking employees
during the period they were on strike, and then later
withdrawing that position?
4. Had an impasse been reached in negotiations be-
tween the parties during the period of November 1977
and September 1979?
(a) If no impasse had been reached, did the Employer
violate the Act by granting wage increases to nonstriking
employees?
(b) If an impasse had been reached, did the Employer
violate the Act by granting wage increases to nonstriking
employees in excess of the amounts proposed by the Em-
ployer in negotiations with the Union?
5. Did the Employer violate the Act by refusing to
supply the names and addresses of unit employees as re-
quested by the Union?
C. Facts
The initial negotiating session following the Board De-
cision was held on November 28, 1977. Richard Wilsker,
the Employer's attorney, William Colavito, the Union's
president, and State Mediator McCabe were present. The
Union sought a 3-year agreement with wage increases of
35 cents in the first year, and 8 percent more in the
second and third years;6 it requested a contribution to
the Union's welfare fund of 8 percent plus 33 cents per
hour, and a contribution of 10 percent plus 30 cents per
hour to the Union's pension fund.7 On all other items the
Union's position was the same as it was in May 1976. As
for the economic strikers, the Union proposed that nine
employees be rehired immediately, and that when open-
ings occur the Employer should hire one striker to one
replacement. The Employer rejected the Union's propos-
al and the meeting ended.
The same parties met again on December 2, 1977, and
the Employer gave its responses to the Union's demands
and additional proposals. On wages, the Employer would
give an increase of 35 cents in the first year, and 20 cents
in the second and third years of the agreement. It would
contribute 8 percent plus 32 cents per hour to the wel-
fare fund, but would not contribute to the union pension
fund. Sick leave and vacation benefits would be the
same as what the parties agreed to in April 1976, and
agreement was reached on several other minor matters.
Remaining in dispute besides the pension fund were
6 Prior to the Board Decision, the Union's last position on wages was
35 cents in the first year, and 5 percent in the second and third years.
I It was the Union's position that whatever would be negotiated for the
rest of the industry with regard to welfare and pension plans would
apply to the Employer in future years. This was constantly opposed by
the Employer on the ground that he did not want any "open" items, i.e.,
undetermined contributions to funds.
I Throughout these negotiations, the Employer never agreed to contin-
ue contributions to the Union's pension fund. It contended that, in addi-
tion to the rate being excessive, future contributions would require sub-
stantial increases due to the poor financial condition the fund was in, and
it doubted the soundness of the fund.
training, annuity, and severance funds. Also, the Em-
ployer refused to layoff permanent replacements in order
to call back strikers. In addition, the Employer raised
anew the question of superseniority for members of the
families of management; wanted to insert affirmative lan-
guage in the subcontracting clause; wanted the union-se-
curity clause kept open for discussion;9 wanted a breach
of the no-strike clause to be an arbitrable issue; wanted
the right to bring in arbitration; and proposed that re-
turning strikers would lose seniority for their time out,
but they would pick up the increase in wages that oc-
curred while they were out on strike.
At the next meeting on December 9, 1977, the parties
appeared to be sparring with no concrete proposals of-
fered and no decisions arrived at. Another meeting was
set for December 22, but it did not materialize.
By letter dated December 14, 1977, Colavito advised
Wilsker that the Union was prepared to go along with
the Employer's position as of May 1976, and on the Em-
ployer's subsequent further tightening of that position.
The letter then goes on to state what, according to Cola-
vito, the Employer's position was on the various items in
dispute in May 1976, and to list the Union's position on
strikers, contributions to welfare and pension funds, ef-
fective date of new agreement, wage increases of 5 per-
cent (35 cents per hour) in each year of the contract, and
several other items that were in dispute. On December
29, 1977, Wilsker responded by letter, advising Colavito
that Colavito's recollections of the Employer's positions,
both in May 1976 and during the December meetings,
were inaccurate. The letter goes on to point out the dif-
ferences still existing, i.e., wages, strikers, welfare pay-
ments, and the Employer's total rejection of making any
further contributions to the pension fund. At the same
time, the letter indicates acceptance of some of the items
listed in the Union's letter of December 14. The letter
then reminds the Union of other Employer proposals,
i.e., the Employer's right to grieve, a change in union se-
curity, and the no-strike provision that the Employer
raised at the December 2 meeting, and suggests that the
Union prepare a sample agreement so that there should
be no further misunderstandings between the parties.
The parties met again on January 12, 1978, and dis-
cussed their positions on superseniority of family em-
ployees, preferential hiring list, and contributions to the
welfare fund. Nothing was accomplished. At the Febru-
ary 10, 1978, meeting, the parties did not meet face to
face. State Mediator McCabe moved back and forth with
the parties' proposals. Wages and superseniority were
again discussed. The Employer wanted a time limit on
recall rights of the strikers, and opposed the obligations
imposed on employers in the event of a delinquency in-
volving the trust funds. I' No agreement was reached.
With the conclusion of this negotiating session, the
Union filed its first unfair labor practice charge herein,
9 On May 10. 1976, a decertification petition had been filed, and that
formed the basis for the Employer's desire to do away with the union-
security clause.
,o These two items had not been raised before during the latest round
of negotiations
530
GEHNRICH & GEHNRICH, INC.
on February 15, 1978, alleging surface bargaining by the
Employer with no intent to arrive at an agreement.
However, the parties met again on April 6, 1978. Cola-
vito asked Wilsker if they could have an agreement if the
Union dropped the pension fund demand, but Wilsker
stated that there were other issues involved, e.g., recall
rights of strikers. Whereupon, a request was made of
Wilsker, by either Colavito or McCabe, that he, Wilsker,
furnish Colavito with the Employer's position on open
items. By letter dated April 19, 1978, Wilsker submitted
a list of 12 open items to Colavito, and reiterated his re-
quest of December 29, 1977, that Colavito provide
Wilsker "with a sample collective bargaining agreement
containing all language changes which have already been
agreed to." Colavito responded by letter dated April 21,
1978, informing Wilsker that, although he listed the open
items, he did not state his position on each item. And so,
Wilsker, using the same letter dated April 19, inserted, in
handwritten fashion, his position on each item and for-
warded it to McCabe. When the parties met again on
April 24, Colavito objected to not having received a
copy of Wilsker's position on open items; whereupon,
Wilsker by letter dated April 24 to Colavito, stated his
specific position on all 12 open items and again requested
a sample contract from Colavito." When the parties met
again on May 26, 1978, each side reiterated its position.
The Employer advised the Union that it had its own
welfare plan, and the Union requested a copy of the
plan. The Employer was adamant that it would not
accept a pension plan and threatened to file a charge
with the Board on the Union's refusal to supply informa-
tion on its pension plan. 2 The Union, while admitting
that it finally got the Employer's position, did not offer
any changes in its position as stated in its December 14,
1977, letter. At this point, Wilsker stated that the negoti-
ations had reached an impasse, and his uncontroverted
testimony was that State Mediator McCabe remarked
that "there would never be a settlement of this dispute."
In fact, this was the last negotiating session that McCabe
attended. According to Colavito, Wilsker said he would
not meet again until he received the information he re-
quested on the union-pension plan. By letter dated June
2, 1978, the Employer provided the Union with a list of
the children of management and also a copy of the wel-
fare plan.
On May 30, 1978, the Employer sent a mailgram to
the Union advising it that the Employer intended to im-
plement the agreed-upon 5-percent wage increase as soon
" Pars. 5 and 6 of the April 24, 1978, letter read as follows:
5. Rate of Pay to Returning Strikers: Returning strikers will receive
their old wage rate plus any across-the-board increases which
become effective during their actual active employment.
6. Seniority for Returning Strikers: There will be no accrual of se-
niority during the period of the strike. Seniority accrual will again
commence upon the execution of the agreement but will be limited
to a period of time equal to the recall rights under the agreement.
The recall rights of the returning strikers will be as per the National
Labor Relations Act.
These two paragraphs form the basis for the General Counsel's allega-
tions regarding the Employer's refusal to grant seniority and wage in-
creases to strikers while they were on strike.
'2 This was the charge that resulted in the settlement agreement dis-
cussed, supra.
as possible, and asked for a response. 13 The Union ob-
jected to the implementation of the increase on the
ground that wages were an integral part of the whole
collective-bargaining agreement. The Employer then re-
quested negotiations on this point by mailgram dated
June 2 and by letter on June 12. The Union responded
affirmatively and Colavito and Wilsker met on June 21,
1978. Again no agreement was reached, and the Employ-
er implemented the 5-percent wage increase, effective
retroactively to May 1, 1978.14 According to Colavito,
Wilsker stated that he was not making any change in his
position and that his offer was final. Wilsker, however,
states that the meeting broke up on the basis that they
would meet again when Colavito gave him the informa-
tion he had requested many months ago. '5
On July 13, 1978, Colavito requested the names and
addresses of all employees, and on July 19, 1978, he filed
an unfair labor practice charge with the Board in Case
29-CA-6538 alleging unilateral change in working condi-
tions. On August 24, 1978, the Employer, rather than
give the names and addresses of its employees to the
Union, advised the Union that it had obtained a special
post office box for the employees and to contact the em-
ployees by writing to "Shop Employees of Gehnrich and
Gehnrich, P.O. Box 1382, Commack, N.Y. 11756."
On October 12, 1978, the Employer, by letter ad-
dressed to the Union's attorney, advised the Union that it
was withdrawing its position set forth in paragraphs 5
and 6 of its April 24, 1978, letter.6 Also in the October
12 letter, the Employer advised the Union that it is
"ready, willing and able to continue bargaining as soon
as the pension and welfare information . . . is available
.... " The letter goes on to suggest bargaining even
without that information.
On October 19, 1978, Region 29 issued a consolidated
complaint herein, alleging (1) bad-faith bargaining, (2) re-
fusal to grant seniority and wage increases to striking
employees for the time they were out on strike, and (3)
unilaterally granting wage increases to nonstriking em-
ployees.
Colavito and Wilsker met again on November 22,
1978. State Mediator Davis was present. The major part
of the meeting was devoted to updating the mediator on
the positions of both sides. Colavito again asked for the
names, addresses, dates of hire, and wage rates of the
employees. While Wilsker was not averse to giving the
names, dates of hire, and wage rates, he flatly refused to
give the addresses. Wilsker testified that he had spoken
to the employees about the Union's request for addresses,
and the employees had voiced adamant opposition to the
request, for fear of being harassed by the Union. :"
"' It was the Employer's contention that since these employees had not
received an across-the-board wage increase in about 4 years, there was a
good possibility that it would lose a good portion of its work force if an
increase was not put into effect.
" Although G.C Exh. 21 states the retroactive date to be May 1. 1977.
I believe that to be a typographical error. All of the testimony relating
thereto stated the date to be May 1, 1978.
' In view of what transpired thereafter. discussed infra, I do not credit
Colavito that Wilsker was so adamant as to refuse to modify his position.
'6 See fn. I 1 .supra.
" It appears that at the commencement of the strike in 1975 there had
been some violence and property damage in the vicinity of the plant, al-
Continued
531
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilsker stated that he then offered Colavito other meth-
ods to contact the employees: (I) leaflet the employees at
the plant; (2) use bulletin board in the plant; (3) make a
speech on the plant premises to the employees; (4) use
the post office box; and (5) call telephone information.' 8
The same parties met again on December 7, 1978. On
direct examination, Colavito testified that the question of
seniority was discussed; that the Employer did not want
to list the employees by classification; that the Employer
would study the question of strikers getting the old wage
rate plus the general increase; and the Employer wanted
the Union to give it a list of employees entitled to recall.
According to Colavito, Wilsker said the Employer
would insist on an open shop even if it meant an impasse.
Also, the Employer wanted some updated information
on the pension fund. On cross-examination, Colavito
stated that, despite prior agreement between the Union
and the Employer on wage progressions, the mediator
proposed a higher rate for trainees and the Employer
said it would consider it; the Employer agreed to
plantwide seniority, rather than a classification system.
At the December 18, 1978, meeting, the Employer of-
fered a training schedule of $3.50-$5 per hour, which
represented an increase over its prior offer of $3-$4.50
per hour; strikers on recall would receive the old rate
plus the June 1 general increase; the Employer continued
to oppose classification of jobs claiming it did not apply
in a shop of its kind; they offered plantwide seniority; in-
stead of contributing to the pension fund, the Employer
would implement an individual retirement account (IRA)
for its employees; as for the welfare fund, the Employer
would pay 8 percent plus 16-1/2 cents during the first
year of thc agreement, an additional 5-1/2 cents in the
second year, and an additional 11 cents in the third year.
The Employer stated that there were 13 members of the
Employer's family for whom it wanted superseniority.
The Employer continued to insist on an open shop, and
on affirmative language in the subcontracting clause. The
Union offered to drop the welfare fund in favor of a pen-
sion fund or to drop the welfare fund in favor of a 10-
percent increase. The Employer opposed both sugges-
tions. The Union promised to make the pension plan in-
formation, which the Employer had asked for repeated-
ly, available to the Employer in 2 weeks.
On January 2, 1979, the Union filed its charge in Case
29-CA-6886, and on February 21, 1979, complaint issued
thereon alleging a refusal by the Employer to supply the
Union with the names and addresses of its employees.
The parties met again on January 15, 1979. By this
time, the Employer had received the pension informa-
tion, and after having read it, was more adamant than
ever against agreeing to contribute to it. The Union
sought to get wages increased 10 percent each year, but
the Employer felt that since they had previously agreed
on wages, there should be no shifting on that. The Em-
ployer offered, however, to pass on to the employees the
savings it would have by maintaining its own health and
welfare plan versus contributing to the Union's welfare
though there was no evidence to attribute it to the Union or striking em-
ployees.
" On cross-examination, Colavito admitted that he never attempted to
use any of these methods to contact the employees.
plan. The Union thought this was insufficient. The medi-
ator, Davis, then suggested that the meetings be suspend-
ed, and the parties agreed.
At the behest of Region 29, the parties met again on
August 27, 1979. Colavito asked for information on new
employees' starting dates, job operation, rates of pay, in-
creases for old employees, their addresses, and benefits.
Wilsker provided what information he had and agreed to
forward the rest. ' Colavito offered a new wage proposal
of a 5-percent increase to start and 5 percent for each 6
months of a 3-year contract, in exchange for dropping
the welfare fund contributions. Other items were brought
up in a general discussion but neither side made any con-
cessions.
On September 10, 1979, the parties met again and
Wilsker orally reviewed practically every clause of the
prior agreement, and gave his position on each one.2 It
appears that Colavito requested that Wilsker put in writ-
ing the Employer's counterproposals to the predecessor
agreement. Using the section number of the prior agree-
ment, the Employer, by letter dated September 12, 1979,
sent the Union its response to each and every section it
disagreed with plus additional sections it wished added
to the agreement.2 This gave rise to the final meeting
between the parties on September 24, 1979. Colavito
asked Wilsker some questions on some clauses contained
in the letter, both appeared to see the futility of it all,
and both agreed that it made no sense to continue nego-
tiations.
Discussion
Issue 1: First and foremost for discussion in this pro-
ceeding is a determination regarding the Union's allega-
tion that the Employer engaged in surface bargaining
with no intention of ever reaching an agreement.
In the instant proceeding, the parties met on 13 sepa-
rate occasions from November 1977 to September 1979,
to engage in negotiations. In the interim between meet-
ings, numerous communications changed hands, all with
the view towards reaching an agreement. On December
14, 1977, the Union initiated the correspondence with the
first substantial position taken by it since the resumption
of negotiations. In its letter, however, the Union misstat-
ed the Employer's position on several counts, e.g., its re-
fusal to contribute to the pension fund, a position main-
tained in the earlier negotiations, wages, and the amount
of the Employer's contribution to the welfare fund; and
the Employer, by its letter of December 29, 1977, was
quick to advise the Union of its erroneous assumptions.
And, for the second time in 2 months, the Employer
'9 By letter, dated September 6 1979, the Employer did furnish the in-
formation requested, except for the addresses of employees.
20 Colavito, throughout the hearing. referred to agreeing in principle to
a point or a concept, and that until agreement is reached in principle the
parties would be wasting time talking about language to be used in a con-
tract. Wilsker, on the other hand, appeared to want proposals written
down so that opposing positions could then be argued concretely.
21 An analysis of the Employer's response shows agreement on about
10 sections of the agreement, the inapplicability of a few items inasmuch
as they pertain to an associationwide agreement, disagreement on the re-
maining 17-19 items, and the addition of a zipper clause and a manage-
ment-rights clause.
532
GEHNRICH & GEHNRICH, INC.
asked the Union to prepare and forward "a sample col-
lective bargaining agreement containing all language
changes so there can be no question once an agreement
is in 'black and white,"' but to no avail. 22 Nevertheless,
and while negotiations were in progress, the Employer,
by its letter of April 24, 1978, forwarded to the Union its
list of 12 open items, with its position on each one.23 As
stated above, the parties met on May 26, 1978, but nei-
ther side gave an inch, and it was at this meeting, ac-
cording to Wilsker's uncontradicted testimony, that Me-
diator McCabe made the comment that "there would
never be a settlement of this dispute."2 4 Based on all that
had transpired previously, I come to the conclusion that
an impasse had been reached for the first time at the
May 26 meeting, despite the fact that the parties met
again on June 2, but with no success.
At this point, we have a 5-month hiatus before the par-
ties met again on November 22, 1978, together with a
new state mediator. As discussed above, the parties also
met on December 7 and 18, 1978, and again on January
15, 1979, but all meetings proved futile. At that last
meeting, the mediator suggested that the meetings be sus-
pended, and the parties agreed. I find that a second im-
passe had now been reached on January 15, 1979. De-
spite the fact that the parties met again on three more
occasions in the fall of 1979, and the Employer, in an
effort to make a breakthrough submitted its counterpro-
posals in a nine-page letter dated September 12, 1979,
which runs the whole gamut of the prior collective-bar-
gaining agreement, no agreement was forthcoming.
It is the contention of the Charging Party and the
General Counsel that the Employer is at fault because it
has backtracked on positions taken earlier, it has raised
new issues, and it has taken such a firm position on some
items as to leave no room for bargaining. I do not find
that to be the case.
It is readily apparent from a review of the foregoing
that a considerable number of topics were explored at
the 13 negotiating sessions held between the Union and
the Employer, and a considerable number of proposals
and concepts exchanged between the parties. Such a situ-
ation lends support to the belief that the mandates of the
Act with respect to collective bargaining had been ful-
filled.25 However, in order to determine whether an em-
ployer has bargained in good faith or is merely engaging
in surface bargaining with no intent to reach agreement,
it is necessary to examine the totality of the employer's
22 It should be noted that at no time during the negotiations did the
Union provide such an agreement.
2" This was a followup to the Employer's letter of April 19, 1978, in
which it only listed the open items, and in which it requested, for the
third time, "a sample collective bargaining agreement containing all lan-
guage changes which have already been agreed to."
21 I credit Wilsker's testimony in this regard.
X Sec. 8(d) of the Act provides in pertinent part as follows:
For the purposes of this section, to bargain collectively is the per-
formance of the mutual obligation of the employer and the repre-
sentative of the employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other terms and condi-
tions of employment, or the negotiation of an agreement, or any
question arising thereunder, and the execution of a written contract
incorporating any agreement reached if requested by either party,
but such obligation does not compel either party to agree to a pro-
posal or require the making of a concession.
actions. If the totality of an employer's conduct demon-
strates that it was seeking to avoid an agreement, then
the employer violates the Act. But, if an employer uses
its economic power to seek a lawful agreement, there is
no violation.
In the instant case, the Employer has successfully
weathered an economic strike and is in a strong econom-
ic position. In addition, it is the benefactor in a prior
Board proceeding involving prior negotiations.2 6 Under
the circumstances, it is not unlawful for such an employ-
er to use its "muscle" to secure a collective-bargaining
agreement completely suitable to itself, so long as it bar-
gains in good faith. As was held in World Publishing
Company, 220 NLRB 1065, 1071-72 (1975), enfd. 545
F.2d 1138 (8th Cir. 1976):
. . .there is no law that says that when economic
power shifts from the Union to the employer that
the employer cannot retrieve some of the economic
benefits that it lost in the prior contracts.
In short the economic background against which
Respondent was negotiating had substantially
changed during the period of the strike and it had a
right to capitalize on the fact by negotiation for the
conditions under which it had found it could suc-
cessfully operate.... Respondent at all times ne-
gotiated with the intention of reaching a contract if
it could, although it surely engaged in hard bargain-
ing in every sense of the word.
All of the Employer's proposals throughout the nego-
tiations were not of such a nature as to warrant the con-
clusion that the Employer was insisting on contract
terms which it knew no self-respecting union could
accept. 27 All of the Employer's proposals can be attribut-
ed to the economic strength that the Employer felt it
had after having withstood a 5-year-old strike, and had
received a favorable Board decision in a prior proceed-
ing.
Under all of the circumstances, I am firmly of the
opinion that the Employer herein was attempting to
obtain, through hard bargaining, an agreement which
would contain economic benefits superior to those it had
in prior contracts, and that it was not the intent of the
Employer to prevent the culmination of an agreement. I
shall therefore recommend that that portion of the com-
plaint which alleges that the Employer engaged in sur-
face and bad-faith bargaining be dismissed.28
Issues 2 and 3: The General Counsel next asserts that
despite the fact that the Employer, during the course of
negotiations, withdrew its position regarding its refusal
to grant seniority to striking employees for the time they
were on strike, and its refusal to grant striking employees
general wage increases that were granted to nonstriking
employees during the period they were on strike, the
2
6 See fn. 5, supra.
2: Cf. L.R.B. v. Reed d Prince Manufacturing Company, 205 F.2d
131, 139 (Ist Cir 1953). cert. denied 346 U.S. 887 (1953)
2
O'Malley Lumber Company, 234 NLRB 1171 (1978)
533
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer nevertheless violated Section 8(a)(5) of the
Act.
This dual contention arises from the correspondence
that the Employer had with the Union during negotia-
tions. In its letter of April 24, 1978, the Employer listed
these 2 items among the 12 items in dispute, and in its
letter of October 12, 1978, it withdrew its position on
these 2 items. The General Counsel, in his brief, con-
tends that the Employer's two proposals constituted bad-
faith bargaining, and cites several cases in which the
Board found violations of the Act where employers uni-
laterally implemented such actions. However, it appears
to me that a distinction must be drawn between the uni-
lateral acts of an employer after a strike settlement agree-
ment, and proposals made by an employer during the
course of negotiating a strike settlement agreement. In
the former situation the employer's act reflects a verita-
ble fait accompli, whereas in the latter case, the employ-
er, in seeking to settle a strike, is engaged in hard bar-
gaining. While it is well settled that the former action is
violative of the Act, it is questionable whether such a
proposal during negotiations constitutes a per se violation
of the Act, and that proposition does not appear to have
been answered by the Board as yet.
In United Aircraft Corporation (Pratt & Whitney Divi-
sion), 192 NLRB 382, 387, the Board stated:
The policy of the Act is not only to protect the
Section 7 rights of employees, but also to encourage
the "practice and procedure of collective bargain-
ing" as a means of resolving labor disputes. This en-
couragement of the procedure of collective bargain-
ing extends to the negotiation of strike settlement
agreements.
There is therefore a public policy embodied in the
Act which favors enforcement of voluntary agree-
ments settling strikes.
In that case, the parties were attempting to bring to an
end a lengthy and acrimonious economic strike and, in
the course of negotiating that agreement, the parties
agreed to limit the employment preference rights of eco-
nomic strikers to 4-1/2 months. To this the Board said
(192 NLRB at 388):
So long, therefore, as the period fixed by agreement
for the reinstatement of economic strikers is not un-
reasonably short, is not intended to be discriminato-
ry, or misused by either party with the object of ac-
complishing a discriminatory objective, was not in-
sisted upon by the employer in order to undermine the
status of the bargaining representative, and was the
result of good-faith collective bargaining, the Board
ought to accept the agreement of the parties as ef-
fectuating the policies of the Act which, as we have
previously stated, includes as a principal objective
encouragement of the practice and procedure of
collective bargaining as a means of settling labor
disputes. [Emphasis supplied.]
In applying the reasoning to the instant case, I am of the
opinion that the Employer, herein, never intended to un-
dermine the status of the Union, but was attempting to
strike the best bargain it could in negotiating an agree-
ment. It had successfully weathered an economic strike
for several years and was not about to indulge the Union
with concessions, but rather, in the course of good-faith
bargaining, to seek to regain advantages it had lost in
earlier contract negotiations. In the course of attempting
this, the Employer sent its April 24, 1978, letter to the
Union in which it included these 2 items among the 12
items in dispute. This letter was its proposal for reaching
a settlement of the strike and obtaining a new collective-
bargaining agreement. No strikers actually lost any bene-
fits and no advantage enured to the Employer as a result
of this letter. This was the discussion stage which contin-
ued on for over a year thereafter. Moreover, and of
great importance, while negotiations were still going on,
the Employer withdrew both items from among its pro-
posals. Not only does this vitiate any possible connota-
tion of illegality, it goes even further to establish the
good-faith bargaining that I previously found the Em-
ployer had engaged in.
Since the Employer's course of conduct in my view
reflects no intent to flout the Act's prohibitions, I shall
dismiss these allegations in the complaint.
Issue 4: Previously in this decision I held that two im-
passes had been reached in the negotiations. The first im-
passe took place on May 26, 1978, and shortly thereafter,
after advising the Union that it intended to implement
the agreed-upon 5-percent general wage increase, the
Employer granted the increase retroactive to May 1,
1978. As stated above, the second impasse occurred on
January 15, 1979, and the parties did not meet again until
August. In June 1979 the Employer instituted the second
general wage increase. Inasmuch as I have already found
that impasses had been reached, thereby leaving the Em-
ployer free to grant general wage increases consistent
with its proposal at negotiations, 29 the sole question to be
responded to is whether said increases were in excess of
the proposed amount. The General Counsel, in his brief,
contends that although the Employer had maintained a
position that the wage increase would be 5 percent annu-
ally for each of the 3 years of the agreement, the Em-
ployer's records show that between November 1977 and
August 1979 the increases given six employees exceeded
the 5-percent proposal, thereby violating Section 8(a)(5)
of the Act. It is interesting to note that although the
General Counsel introduced the two exhibits 30 through
its only witness, Colavito, no questions were asked of the
witness regarding the figures contained therein, and there
is absolutely no evidence adduced by the General Coun-
sel to show how those figures were arrived at. Quite nat-
urally, and unaware of the General Counsel's motive in
introducing the documents, the Employer offered no evi-
dence and asked no questions regarding them. While fig-
ures do not lie, and they do show that the percentage in-
crease for these six employees exceeded two 5-percent
2 Eddie' Chop House, Inc., 165 NLRB 861 (1967).
3°G.C. Fxhs. 9 and 29.
534
GEHNRICH & GEHNRICH, INC.
increases over a 2-year span, I am at a loss to find the
handle by which to explicate the increases.
Not having the advantage of hearing testimony about
these increases, either by the General Counsel's witness,
through whom the exhibits were introduced, or through
the Employer's witness, I am left to speculate the reason
or reasons why the increase given these six employees
exceeded the allowable 10 percent. Might these employ-
ees have been promoted to higher positions, justifying a
larger increase? Could length of service or prior practice
of granting individual merit increases have been the
factor? Or, were these increases, in fact, granted without
any just cause? It seems to me that the burden of proving
the illegality of the increases lies with the General Coun-
sel, and that burden only shifts to the Employer after the
General Counsel has established his prima facie case. I do
not consider the mere introduction of exhibits to be suffi-
cient evidence to establish a violation where no reference
whatsoever is made to the pertinent contents of the ex-
hibits. I do not believe, therefore, that the General Coun-
sel has met the burden.
More importantly, however, the complaint does not
allege the granting of wage increases which exceeded the
bargaining table proposal,a3 nor did the General Counsel
ever move to amend the complaint in this regard.32
Under all of the circumstances, the allegation as written
shall be dismissed inasmuch as I have found that an im-
passe had been reached prior to the granting of the wage
increase, and the alternative allegation as stated in the
General Counsel's brief must also fall on the grounds
that it never was fully litigated.
Issue 5: The final question to be resolved involves the
failure of the Employer to provide the Union with the
employees' addresses33 when requested to do so.
The legal principles which govern this question are
well settled. The duty to bargain in good faith, imposed
by Section 8(a)(5) of the Act, may be violated by an em-
ployer's refusal to furnish requested information relevant
to the union's negotiation of a collective-bargaining
agreement.3 The Board cases are legion in stating that
an employer, in the absence of a valid affirmative de-
fense, violates the Act when it refuses to give addresses
of unit employees to a union who claims it needs the ad-
dresses in order to perform its duty properly as the col-
lective-bargaining agent of the unit employees. 5 Wheth-
3' The pertinent allegation of the complaint reads as follows:
13. Since on or about June 1978, Respondent has bargained in bad
faith with Local 455 by unilaterally granting non-striking employees
a wage increase, although no impasse had been reached in the collec-
tive-bargaining negotiations between Respondent and Local 455 and
although Respondent was notified by Local 455 of its opposition to
the grant of such wage increase.
" It should be noted as stated supra that the General Counsel did
amend par. 13 at the hearing but only to add the second round of in-
creases in 1979. See fn. , supra.
3' The record indicates that the Employer supplied the Union with a
list of the names of the unit employees as late as September 6, 1979. See
G.C. Exh. 29.
3 Detroit Edison Co. v. N.L.R.B., 440 U.S. 301, 303; NL.R.B. v Acme
Industrial Co., 385 U.S. 432, 435-436 (1967); N.L.R.B. v. Truitt Manufac-
turing Co., 351 U.S. 149, 152 (1956).
Is Wellington Hall Nursing Home, 240 NLRB 639; The Kelly-Springfield
Tire Company, 223 NLRB 878 (1976); General Corporation, 215 NLRB
351 (1974); Standard Oil Company of California, Western Operations. Inc.,
166 NLRB 343, 344-345 (1967); United Aircraft Corporation (Pratt &
er there has been a violation turns upon the facts of the
case. While the General Counsel follows a straight line
leading him to the untroubled conclusion that the Em-
ployer's refusal was a violation of the Act, the Respond-
ent interposes a dual contention in claiming no violation.
Initially, it relies upon the standard established in Shell
Oil Company v. N.LR.B., 457 F.2d 615 (9th Cir. 1972),
i.e., "a clear and present danger of violence and harass-
ment" exists, and states the concern of the employees if
their addresses are revealed. As the General Counsel has
so ably argued and as I have stated supra, the only vio-
lence and harassment referred to in the instant case oc-
curred 4 years prior to the refusal, and there was no evi-
dence presented to link either the Union or its adherents
to those events. I, therefore, reject that contention. The
Employer also argues that it has offered the Union sever-
al alternatives for contacting the employees and that the
Union has not taken advantage of them. I know of no
case which requires a union to seek other paths to the
requested information, except where the compilation of
the information places an undue burden on the employer.
In the instant case, the Employer has not contended that
to be so. Under the circumstances, I find the alternative
methods of communication unfeasible for the Union, and
I conclude that the Union is entitled to receive the unit
employees' addresses from the Employer, which has
demonstrated no proper justification for refusing to fur-
nish it.36 Accordingly, I find that the Employer violated
Section 8(a)(5) and (1) of the Act by refusing to furnish
the Union with the addresses of the unit employees.
However, I do not regard the Employer's action in this
regard to be evidence of bad-faith bargaining. Rather, it
appears to me that the Employer was being too solici-
tous of the employees' feelings, thereby unwittingly
overextending itself on their behalf, and in the process
violated the Act.
CONCLUSIONS OF LAW
I. Gehnrich & Gehnrich, Inc., is and has been at all
times material herein an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Shopmen's Local Union No. 455, International As-
sociation of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, is and has been at all times material
herein a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By refusing to furnish the Union with the addresses
of unit employees the Employer has violated Section
8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Employer has not engaged in other unfair labor
practices as alleged in Cases 29-CA-6217 and 29-CA-
6538, as discussed above.
Whitney Aircraft and Hamilton Standard Divisions), 181 NLRB 892, 903
(1970).
36 Rose Arbor Manor. a Division of Geriatrics. Inc.. 242 NLRB 795
(1979).
535
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
REMEDY
Having found that the Employer has engaged in cer-
tain unfair labor practices, I find it necessary to order the
Employer to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 37
The Respondent, Gehnrich & Gehnrich, Inc., Com-
mack, New York, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(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 the home addresses of unit em-
ployees needed by the Union to perform its duty proper-
ly as the collective-bargaining agent of the employees.
:7 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.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, furnish to the above-named Union a
list of the home addresses of the unit employees so that
the Union can perform its duty properly as the collec-
tive-bargaining agent of the employees.
(b) Post at its Commack, New York, plant copies of
the attached notice marked "Appendix."3" Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by the Employer's au-
thorized representative, shall be posted by the Employer
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Employer to insure that said notices are not al-
tered, 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 the Employer has taken to comply herewith.
IT IS FURTHER ORDERED that the amended consoli-
dated complaint in Cases 29-CA-6217 and 29-CA-6538
be, and it hereby is, dismissed in its entirety.
a3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
536