Gehnrich & Gehnrich, Inc., 1122 (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 Respondent 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, findings,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 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.

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 Respondent negotiated with the Union in bad faith during the 6month period preceding the filing of the charge.

Background ' Respondent operates a relatively small, custom shop, employing a normal work force ofabout 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 representative of Respondent's production and maintenance employees 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.

1122

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 modifications in workaday conditions of employment such as notification to the shop steward for new hires, hours of employment, including overtime and holiday work, reporting 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 4percent 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...