Getlan Iron Workers, Inc.

National Labor Relations Board - Board Decisions

Nov 18, 1965

155 N.L.R.B. 1052 (N.L.R.B. 1965)

1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) Post in its offices and in the North Bend-Coos Bay hiring hall, copies of the
attached notice marked "Appendix A." 1 Copies of this notice to be furnished by the
Regional Director for Region 19, shall, after being duly signed, be posted immediately
upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent Union to insure that said
notices are not altered, defaced, or covered by any other material.
(5) Notify the Regional Director, in writing, within 20 days from the receipt of
this Decision and Recommended Order what steps Respondent International Long-
shoremen's & Warehousemen's Union, Local No. 12, has taken to comply therewith.12
n If this Recommended Order Is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words, "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
2a If this Recommended Order Is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 19, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN'S &
WAREHOUSEMEN'S UNION, LOCAL No. 12
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause any discrimination in the course of the
employment of Donald Wilson, Bernard Warnken, or Lee Thomas by discrimi-
natory treatment in connection with their dispatch to work from the North Bend-
Coos Bay hiring hall.
WE WILL make whole Donald Wilson, Bernard Warnken, and Lee Thomas
for any loss of pay they may have suffered as a result of our discriminatory
action against them.
INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S
UNION, LOCAL No. 12,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Subregional Office, 612 Lincoln
Building, 208 SW. Fifth Avenue, Portland, Oregon, Telephone No. 226-3361.
Getlan Iron Workers, Inc. and Shopmen 's Local Union No. 455 of
the International Association of Bridge , Structural and Orna-
mental Iron Workers, AFL-CIO. Case No. 29-CA-72. Novem-
ber 18,1965
DECISION AND ORDER
On August 11., 1965, Trial Examiner Sidney D. Goldberg issued his
Decision in the above-entitled proceeding, funding that the Respondent
had engaged in and Was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
155 NLRB No. 90.
GETL-kN IRO- WORKERS, INC. 10o3
-ff7Tlllatil e action, as Set forth in the attached Tr-.al Examiner's Daci
-Sion.Thereaf :er, ti he Charging Part, and the Respondent filed excep-
tio1?s to the T_ial Examiner's Decision and supporting b rie fŝ. , and the
ll ,.l"ed a brief in support of the. Trial Exaniiner'aGeneral <:oullsc
De-cisi olh.
Pursuant to the provisions of Section 3 N of the N ational Labor.
Relations Act., as amended, the National Labor Relations Board has
deleg ated its owers In connection with this case to a three-memn-ber
p c nel Chairs an McCulloch and 1-embers Fanning and Jenkins].
The Board has re 17- wed the ruli l s of tile. Trial Examiner llhade at
the hea-.r1ug a:nd finds that no prejudicial error was conlinitted. The.
rulings are hereby affirmed. The Board has considered the Trial
E` amner's Decision and t e. entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, The National Labor Relatimas Board hereby adopts as its
Order the Rece-niii1ended Order of the Trial Exami er. asjniodified
herein, and orders that the Respondent, Uetlati Iron Works. Inc., its
officers, agents, successors, and assigns, shall take the action set forth
in the TrialExaminer's ()roles as so modified :
Delete the second paragraph of the Appendix attached to the Trial
ExGmiller's Decision and substitute therefor the, follo-wing
E Wilt, upon request, meet, and confer in good faith and bar-
gain collecti>-ely with Shopmen's Local Union No. 455 of the
International Association of Bridge, Structural and Ornamental
Iron `orkers, J.as the exclusive- re-:olesentative of all
es ipso--. ees 11 the bargaining unit described below, and, if all
understanding is reached, elnbody, it in a signed agreelnent. The
bargaining- uli't is:.. .
TRIAL EXAMINER'S DECISION
In this proceeding, under Section 10(b) of the National Labor Relations Act, as
amended, herein called the Act, the complaint! alleges that Respondent had, in viola-
tion of Section 8(a)(i), (2), (3), and (5) of the Act: (i) refused since August 27,
1964, to bargain collectively with the Charging Party, herein called Local 455,
although that Union was the exclusive collective-bargaining representative of Respond-
ent's employees in an appropriate unit; (ii) solicited employee members of Local 455,
who we-- engaged in a strike, to abandon the strike and return to work; (iii) rendered
assistance and support to the Party to the Contract, herein called Local 42, by induc-
ing employees to become members thereof and by entering into a contract with it; and
(iv) by including in the contract with Local 42 a requirement that employees become
and remain members of that labor organization, discriminated in regard to the tenure
of employment of employee members of Local 455 to discourage membership in
Local 455. - -
1Issued November 30, 1964, on a charge filed September 11, 1964, and amended charges
flied September 22 and November 17, 1964.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent and Local 42 answered, denying the commission of the unfair labor
practices alleged in the complaint. A hearing on the issues so raised was held before
Trial Examiner Sidney D. Goldberg at Brooklyn, New York, on February 24 and 25
and March 2 and 3, 1965, at which all parties were represented and afforded an
-opportunity to adduce evidence, cross-examine witnesses, and argue upon the facts
.and the law .2 During the hearing, a motion was made by the General Counsel to
amend the complaint to allege that Respondent's unlawful refusal to bargain in good
faith commenced on or about July 28, 1964, and the motion was granted. Briefs
-filed by the General Counsel, the Respondent, and the Charging Party have been
considered.
For the reasons set forth in detail below, I find that Respondent refused, on and
after July 28, 1964, to bargain in good faith with Local 455, the exclusive representa-
tive of its employees for that purpose; that on that date the strike by Local 455
became, and continues to be, an unfair labor practice strike, precluding the permanent
replacement of the members of Local 455 then employed and that Respondent. by
entering into a contract with Local 42, has unlawfully assisted it and has discrimi-
natorily interfered with the tenure of employment of members of Local 455.
Upon the entire record in this proceeding, and from my observation of the wit-
nesses, I make the following:
FINDINGS OF FACT
1. THE EMPLOYER INVOLVED
Respondent is a New York corporation engaged in the manufacture, sale, and instal-
lation of steel stairways, window supports, and other steel and iron products utilized
in building construction. It admits that, during the year ending October 1964, a
representative period, it sold products valued in excess of $50,000 to enterprises
engaged in interstate commerce and, during the same period, imported into the State
of New York goods and materials valued in excess of $50,000. I find that Respondent
is an employer engaged in interstate commerce,
II. THE LABOR ORGANIZATIONS
Locals 455 and 42 are labor organizations within the meaning of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. Sequence of events
1. Background
Respondent, which began business in 1958, appears to be under the sole control
of Marvin Getlan, a civil engineer, who testified that he is the president of the corpora-
tion.3 Directly under him is the general manager of the plant. The working force
consists of two separate groups of employees: the shopmen who fabricate the units,
and the construction crews, which install them in the buildings. The shop force-
the employees involved in this proceeding-varies from 5 to 12 men and includes
a foreman.
In 1959 the shop employees were organized by Local 455 and Respondent
signed a contract with it.4 After the termination of that contract, another contract
2During the first day of the hearing. Gerald Lasky, president of Local 42, was released
from subpena and he and counsel left.
8 His pretrial affidavit signed in November 1964 and a charge filed with the Board in
October 1964 also designates him .as president but, in contracts signed in December 1961
and September 1964. as well as in a letter dated June 29, 1964, he is identified as vice
president.
4 Respondent conceded that the unit set forth in the complaint accurately describes the
shop employees and that it is a unit appropriate for collective-bargaining purposes. The
unit, which I find appropriate, is as follows:
All production and maintenance employees of Respondent employed at its plant, ex-
clusive of clerical employees, superintendents, foremen who do not handle material or work
with tools, employees who are represented by any other union affiliated with the AFL-CIO
with whom Respondent has signed a collective-bargaining agreement, employees engaged
in erection, installation, or construction work, and all supervisors as defined in Section
2 (11) of the Act.
The construction men are members of another Iron Workers' local and Respondent has
a contract with it.
y z
GETLAN IRON ;y^ CRIERS, INC. 1
0 55
was signed, covering the period July 1, 1961, to June 30, 1964, and from year to
year thereafter, unless canceled by either party 60 to 90 days prior to June 30.
This contract was the general contract which Local 455 had with about 200 employers
in the area. Of these employers, about half are members of Allied Building Metal
Industries, a trade association of metal fabricators and erectors,, herein called Allied.
In the past, the principal bargaining had been between Local 455 and Allied and the
contract agreed upon by them had been accepted by the nonmembers, called "inde-
pendents." Respondent is an independent and its contract with Local 455, expiring.
June 20, 1964, was reached in this manner.
2. Expiration of the contract and early negotiations
On April 17, 1964.6 Local 455 sent letters to all employers giving notice that it
elected to terminate the contract on June 30 and that a new agreement would be
negotiated to become effective July 1 s The letter also stated that Local 455's pro-
posals for a new contract would be submitted "at an appropriate time." Abcut the
end of May, Local 455 supplied its business agents with copies of a complete proisased
new agreement, herein called the proposal, which followed, in its organza' onal out-
line, the expiring cc=-.tract with the addition, however, of three new paragraphs and
these proposals were delivered to the independent employers during June.? Although
considerable testimony was taken on the subject, it is clear that no serous negotiations
were conducted during June and tl>at, on July 1, Local 455 notified the employers that
the expiring agreement was being extended to July 10, the terms of any new agree-
ment to be retroactive to July 1.
Respondent, represented by Getian and General Manager Walter Loechel, _net
with representatives of Local 455 on July 2. They went through the proposal, para-
graph by paragraph, Getlan approving some of them and rejecting others. He particu-
larly objected to the proposals on pension, welfare, sick leave, reporting pay, subletting,
and union security, and he complained that the provision for holding grievance
arbitration proceedings in downtown New York took too much of his time. He pro-
posed that these hearings be held in Hempstead and he offered a wage increase, to be
spread over the 3 years of a contract for that term, of 10, 10, and 5 cents per hour.
The union representatives asked Getlan to sign a stipulation extending the expired
contract to July 10 and providing that the appropriate terms of the successor contract
would be retroactive to July 1. Getlan declined to sign the stipulation at the time,
saying that he wished to consult his counsel who was out of town. At the end of this
meeting they agreed to meet again but set no date. The lack of urgency at this time
was based upon the pending negotiations between Local 455 and Allied and the fact
that the men continued to work under the terms of the expired contract.
About July 15, Local 455 prepared and distributed to the independents, including
Respondent,8 a new document, entitled "Stipulation of Settlement", hereafter called
the stipulation, which provided that the proposal, with about 18 specified changes,9
should become the new contract.
3. The strike
At a meeting on July 22, Local 455 voted to strike the employers who had not
signed the extension of the expired contract to July 10. Respondent was one of these
and the following morning its shop employees, instead of reporting for work, gathered
outside the plant. When Getlan arrived, he asked Shop Steward Willy-Schaller what
had happened. Schaller told him that, since Respondent had not signed a contract,.
they were on strike. Schaller assured Getlan, however, that Business Agent Candelora.
would be there before the end of the day and would straighten things out but it does.
not appear that Candelora did make the visit.
The picketing at the plant for the first 2 weeks of the strike was fairly regular but-
material was picked up at the plant and Respondent's employees engaged in construc-
tion work continued to work at building sites as usual. During later weeks the
picketing was intermittent.
I All dates hereinafter, unless otherwise specified, are 1964.
9 -lo issue was raised concerning the notices required by Section 8(d) to be sent to the
Federal and State mediation service and it is assumed that they were sent.
7It appears that Local 455, in delivering complete copies of its proposal for a new con-
tract, notified the independent employers that they would no longer be permitted, as in the
past, to await the outcome of negotiations with Allied and then to sign substantially the
same contract. -
8 Getlan's denial on this point is rejected.
9Some of these withdrew requests for changes sought bythe proposal in the expired
contract and provided for continuation of the previous provisions.
1056]_®OJ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The meeting of July 28
An arbitration meeting to deal with a grievance under the expired contract had
previously been set for Tuesday, July 28, at 2 p.m. at the offices of the New York State
Mediation Board in New York City. On July 27, Belle Harper, attorney for Local
455, telephoned Getlan and asking him to be at the mediation board office an hour
prior to the time set for the arbitration hearing so that they could discuss settlement of
the grievance and carry on negotiations for a contract. Getlan agreed and arrived at
the mediation board office at 1 p.m. accompanied by General Manager Loechel. The
Local 455 representatives were Seth Lilly, newly elected vice president, Business Agent
Candelora, and Mrs. Harper. The grievance was quickly settled and negotiations
concerning the contract began.
The negotiations at the meeting were based upon the stipulation. Each of those
present had a copy and the discussion moved from section to section of the stipulation
with reference, where necessary, to the Union's proposal, which was also available.
Some sections of the stipulation provided for withdrawal of charges sought in the
proposal and for continuation of provisions of the expired contract. To some of
these Getlan gave his tentative approval. He raised objections, however, to others of
these provisions in the stipulation notwithstanding they would also result in the con-
tinuation of contract provisions which had been in effect for 3 years. These included
the provisions for union security-which Getlan claimed was illegal-reporting pay,
subletting, and the arbitration procedure. Getlan also wanted the contract to run for
3 years but Local 455 was, at that time, adhering to its general position that the term
be 2 years.
5. Inducement of strikers to return to work
Respondent's shop employees, on the date the strike began, were Foreman David
Seavy,10 Willy Schaller, Zoltan Gally, Arthur Kunz, Frank Casaine, James and John
McClenic, John Johnson, and T. Graham. All except Johnson, John McClenic, and
Graham were members of Local 455 and all of them, with the exception of Johnson,
who drove a truck, went out on strike.
On the first day of the strike, while the shop employees were standing in front of
the plant, Getlan arrived and he asked what was going on. -Schaller informed him
they were on strike but Getlan protested that other plants had not been struck and
suggested that everybody go to work. None of those outside did.
After the first day, officials of Local 455 set up a schedule for the picketing of
Respondent 's plant by its striking employees and, for the first 2 or 3 weeks of the
strike, Respondent's plant was picketed regularly. During this period Getlan and
Loechel had several conversations with employees Schailer, Gaily, Kunz, and James
McClenic in which their individual return to work was discussed. Whether Getlan
and Lcechel endeavored to persuade the men to return to work or whether the men
initiated inquiries on this subject is in dispute. However, James McClenic did return
to work on August 24, 25, 26, and 27 but was called out of the shop by Business Agent
Candelora on the 27th and resumed picketing. He also worked September 3 and 4,
leaving on his own volition.
6. Negotiations after July 28
In accordance with her promise at the meeting of July 28, on July 31 Harper sent
Getlan a copy of the Act, her letter of transmittal calling his attention to the portion
of Section 8 (a) (3) authorizing contract provisions for union security.
About a week after that meeting, Business Agent Candelora visited the plant.
According to Getlan's testimony, he asked Candelora why Harper had not sent him
a contract to sign and Candelora answered that there would be no separate contract
for Respondent. Candelora testified that he simply asked Getlan to sign the stipula-
tion so that the men could go back to work; that Getlan said he was awaiting advice
from his lawyer and, besides, he was giving his work to a plant out of town and did
not need any men.
7. Resumption of plant operations , appearance of, and contract
with, Local 42
On or about the same day as Candelora's visit, Respondent placed an advertisement
in the local paper seeking ironwork mechanics. The advertisement appeared from
August 4 through 10 and, as a result thereof, Respondent hired Vincent Iacono or
30 Seavy did not go out on strike with the others but resigned that dayfor other reasons.
His testimony is rejected as unreliable.
GETLAN IRON WORKERS, INC. 1057
August 15, informing him that the job was permanent, and he reported for work on
Monday, the 17th. Truck-driver John Johnson had not gone out on strike with the
others and was still working. On August 21, as stated, Getlan had discussed with
James McCienic his return to work and 3,1cCienic. came in on Monday, the 24th, work-
ing until he was called out by Candelora during the morning on the 27th. The roster
of Respondent's shop employees for the workweeks commencing August 27 and
September 3, as shown by its records, is set forth below.1=
Local 42 made its first public appearance when its representative, Gerald Lasky,
was outside Respondent's plant at the close of the working day on September 2 or 3,
or hour. He passed out literature relating to Blue Cross and Blue Shield services and
gave Johnson several authorization cards with instructions to have them signed by
the employees. The next day some signed cards were given to employee William
Kauderer. Sometime between September 3, which is the date of execution appearing
on its face, and September 15, when according to Getlan's testimony, it was executed,
Respondent signed a collective-bargaining contract with Local 42.
On September 7, Local 455 Business Agent Candelora visited the plant and was
told that there was "another union" in the shop.
Of the employees who were in the shop at the time of the strike, only Johnson is
still employed by Respondent. -
B. Contentions of the parties
The General Counsel contends that Respondent, when it met with representatives
of Local 455 on July 28, did so with the intention of not reaching agreement with
the Union; that its efforts, both before and after that meeting, to- get the striking
employees to abandon their strike also violated the Act and that these violations con-
verted the strike into an unfair labor practice strike as of that date so that the employ-
ees could not thereafter be permanently replaced. He also contends that Respondent
unlawfully assisted Local 42 by urging or forcing employees to join and by entering
into a contract with it.
Respondent contends that it bargained in good faith with Local 455 and that all
conversations concerning returning to work were initiated by the striking employees;
that it did not unlawfully assist Local 42 and that it entered into the contract with it
on the basis of that organization's valid representation of a majority of the employees
in the unit at the time.
C. Discussion and findings
1. Efforts to induce strikers to return
From Getlan's testimony, it is quite clear that he was dissatisfied with Local 455's
approach to negotiations for a new contract and that he felt that the system used in
1961 should have been continued; i.e., negotiations with Allied until agreement with
that association and the offer of the same contract to the independents. It is. also
clear that he hoped to retain the advantage that had been a part of that system
whereby the use of a strike to assist one side or the other was directed solely at or by
the employer-members of Allied. Candelora's testimony that he told Getlan, early
in June, that Local 455 would negotiate for a new contract directly with he inde-
pendents is corroborated by the correspondence between the parties, by the docu-
U See the following table:
Employee
John Johnson____________
Vincent Iacono
John McClenic________-__
James McCienic
William Kauderer
Thurs. Fri. Mon. Tues. wed. Thurs. Fri. Mon. Tues. Wed.
27 28 31 1 S. 1 ^2 3 4 7 8 a
s 8 6% 8 8 it 10iz 8 10 : 8
8 8 8 8 8%1 4 ( 8_ 8 8 8
8 j 8 8 8 1 8 8 8 ------- ----- --
----------- ------ ------- 8 8 ------------------------
K. Georges --------------- ----------------- 1 8
R. Bradley -- --- --------- - 8
John McLaughlin ==I ------
-n thQ tony uar araro
Number of employees----
8 7%z' 7 8 8 I 7%
6 1
S%i 8 8. 8 8 8
8'72 8 8 I 8 8 I -8
-8 I 8 8 8 8
8 8 6 1 6
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments distributed, and by the admitted meetings of July 2 and 28. Getlan's entire
course of conduct, however, manifested his rejection of this method of direct negotia-
tion and he admitted that he was "annoyed" when he learned that some of the inde-
pendents had not been struck when Respondent was. On the very first day of the
strike, he called out to the employees gathered outside the plant: "Why don't you
come back to work? All the other shops are working."
Within the first 2 weeks of the strike, while the plant was being regularly picketed
by the employees, Respondent made several attempts to persuade employees to
abandon the strike and return to work.
Zoltan Gaily: During the first 2 weeks of the strike, Gaily picketed the plant in
accordance with his assignment. He testified that, on one of these occasions, about a
week after the strike began, Getlan approached him and said: "Why don't you fellows
come back to work?" Gaily answered that as soon as Respondent signed a contract
the men would return whereupon Getlan replied that he world never sign such a
contract and that the Union had given him "so much trouble"; he also said that he had
"just paid off seven hundred dollars" and that he was going to get Local 455 out of the
shop and get another union. Gaily asked about his vacation pay and Getlan told
him he was then "on vacation" but that if he would come back to work with another
union he would receive his vacation pay and more pay raises than could be obtained
for him by Local 455. Gally refused to return.
Getlan's testimony concerning this incident was that Gaily asked him when the
men would be able to get back to work and that he said they could go back to work
"right now"; that Galley pointed out that they had no contract and that he told Gaily
about the wage offer of 25 cents he had made to Local 455; that Gaily said he had
not heard about it and Getlan told him to ask shop Steward Schaller who had been
present when it was made.
Gaily had difficulties with the English language but, due consideration being given
to those diil"iculties, he testified in a forthright manner and impressed me as making
an earnest and largely successful effort to testify truthfully. Getlan's contrary testi-
mony, however, must be considered in the light of his manifested conviction that
the strike against him, notwithstanding the absence of a collective-bargaining con-
tract, was unjustified because not in accord with past procedures whereby only
Allied employers were struck. Moreover, his testimony, on this and other matters,
was contradicted in many respects by credible testimony of other witnesses, includ-
ing those presented by Respondent, and was replete with self-contradictions. These
contradictions, his interest in the outcome of this proceeding, and his demeanor 12
while testifying, lead me to conclude that Getlan's testimony was designed to fur-
ther Respondent's business interests by supporting the acts it had performed and the
positions it had taken rather than to disclose what had actually occurred. I find that
the foregoing incident occurred as described by Ga'_ly and reject Getlan's version.
On another occasion, early in the strike, Gaily testified, Walter Loechel, Respond-
ent's general manager, also asked him to return to work.13
Willy Schaller: yShop Steward Schaller testified that, while he was picketing dur-
ing the first or second week of the strike, Getlan said to him:
Willy, I'm not going to sign with 455 any more. If you want to keep work-
ing for me you have to drop out of the union, and I will give you more money.
Schaller declined to do so and Getlan replied: "It's been nice knowing you for 5
years." He also testified that, upon another occasion during the same period, he
12 Getlan is a civil engineer and he impressed me as a very intelligent man. On the
witness stand, however, he frequently gave unresponsive answers to simple questions,
hesitated for long periods before answering, argued from the witness stand, and several
times had to be admonished concerning his conduct. Upon one occasion, while he was not
on the stand, it was necessary to direct him to cease making gestures at the witness who
was testifying. His bustling activity at the counsel table, even his gestures and grimaces
at the witnesses while testifying, might be attributed to the nervousness of a nonlawyer
at an adversary hearing, but when there are added to these an argumentative and evasive
attitude on the witness stand, many nonresponsive answers and many self-contradictions,
I am required to conclude that his testimony was heavily colored by self-interest and that
he was not a credible witness. -
32 The testimony concerning this incident was adduced by Respondent's counsel on cross-
examination of Gaily. Loechel did not dispute it and admitted that about this time he
had asked another employee, Kunz, to come back to work and, in early September, again
made the same suggestion to Gally. I find that this incident occurred as stated.
GETLAN IRON WORKERS, INC. 1059
was picketing the plant and Arthur Kunz, another striking employee, was with him
when General Manager Walter Loechel said to them:
Why walk with the pickets? You can make yourself a couple of dollars. Here
is the key. I will open the shop and you can go in.
Schaller refused to return, but there was testimony that Kunz did work for a
couple of hours loading a truck and that he was reprimanded by the executive board
of Local 455 as a result. Loechel admitted having P. conversation with Kunz about
coming back to work and I find that this incident occurred as described by Schailer.
James McClenic: As other striking employees of Respondent obtained temporary
jobs elsewhere, they arranged for James McClenic to take over their picketing
assignments.14 He was the last one left to picket and was picketing on Friday,
August 21, when, according to his credited testimony, had a conversation with Getian
outside the plant in which Get_lan invited him to come into the plant office and he
did so. In the office, Getlan asked him why he did not come back to work and
McClenic said they were on strike. Getian pointed out that Respondent had no
contract with Local 455 and, with a sheaf of papers before him, ridiculed several
of the Union's proposals, including the provision for reporting pay. Getian said
that he would not sign anything like that and again asked McClenic to come back
to work but McClenic only said he "would see about it." 15
McClenic testified, and Respondent's records confirm, that he worked full days
on Monday, Tuesday, and Wednesday, August 24, 25, and 26, and 2 hours on
Thursday, the 27th. Candelora testified that on the morning of the 27th he came
to Respondent's plant to picket and, looking into the shop, saw McClenic at work.
Candelora called him out and asked him why he was working during the strike and
said he could be called before the executive board. McClenic explained that he
bad no money and that food was low. Candelora made some telephone calls to
get help for him and McClenic resumed picketing, on and off, during the next few
days.
While McClenic was picketing the following week, Getlan again invited him into
the office and again asked him to come back to work. This time McClenic asked
Getlan if there was a union in the plant and Getlan said there was not. McClenic
asked about welfare payments if his wife became pregnant, about entry into the
Blue Cross plan, and about a raise in pay. Getlan said that Respondent "would
take care" of welfare payments and Blue Cross and that, since he had worked 6
months as an apprentice, a pay raise was due him and that his new rate would be
$2.30 per hour; that Respondent would add the 16 cents it had been paying into the
welfare fund and that, taking back the "odd penny," his new rate would be $2.45.
When McClenic expressed concern over what might happen if Local 455 came back
into the shop, Getlan assured him that under the Taft-Hartley Act there could not
be an "all union shop." 16 McClenic returned to work for Respondent on Thursday
and Friday, September 2 and 3, but found that his pay was not increased as prom-
ised and he decided not to continue.
14 _McClenic was a young apprentice who had begun working for Respondent in March.
15 Getlan testified that _McClenic, while picketing outside the plant, asked to talk with
him and he invited him into the office; that _McClenic said he had no money, that he
needed a job, and asked to be taken back. He also testified that McClenic apologized for
having gone out on strike when told to do so by the Union, said that it was not his idea
and he did not want Getlan to think he was responsible for it. Getlan testified that he
then told McClenic he had offered Local 455 an increase of 25 cents over a 3-year contract
period and then read hicClenie some of the Union's proposals, including one providing for
reporting pay and for 3 days' pay on the death of a close relative, asking _licClenie whether
he, _licClenie, would sign a contract with such provisions and that McClenic said he would
not. As McClenic thanked him and left, according to Getlan, he promised to be in Monday
morning "bright and early." Not only was Getlan's testimony in direct contradiction to
Mcclenic's, but General -Manager Loechel admitted having suggested to McClenic that he
come back to work. Upon all the testimony on this point, as well as the demeanor of the
witnesses, I reject Getlan's testimony and find that the incident occurred as described by
McClenic.
16 Getlan denied having any conversation with McClenic before his second return to
work and testified that these arrangements were made by Loechel. Getlan's denial is
rejected. I find McCienic's account credible, particularly since the course of the conver-
sation as described by him reflects the events of this time, September 2, as set forth below
in describing the activities of Local 42.
212-809-66-vol. 15 5-6 8
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The refusal to bargain
The complaint alleges as follows:
13. On or about August 27, 1964 [amended at the hearing to July 28, 1964]
Respondent refused, and since said date has continued to refuse, to bargain
collectively with Local 455 as the exclusive collectively bargaining representa-
tive of Respondent 's employees in the unit described above in paragraph 8.
At the hearing and in their briefs, the General Counsel and the Charging Party
take sharply differing positions concerning the manner in which, they contend,
Respondent violated the bargaining requirement of Section 8(a) (5 ) of the Act.
the Union contends that, at the meeting of July 28, Respondent agreed to all
the terms of the stip ulation; that since this document incorporates by reference the
proposal , Respondent then and there reached agreement with the Union and that
Respondent is committing an unfair labor practice by its refusal to execute a writ-
ten contract incorporating the agreement.
The General Counsel has declined to accept or adopt this theory but takes the
position that the evidence discloses that Respondent h as refused to bargain in that,
when it conferred, at the meeting of July 28 and thereafter, it did so not in good
faith but with a fixed determination not to reach an agreement.
All the evidence offered by the parties covering or affecting the meeting of July 28
and the good faith of the Respondent in its bargaining with Local 455 was taken and
both theories were thereby fully litigated.
Assuming, arguendo , that the Union's theory of violation is entitled to be consid-
ered by me ,i% the evidence herein fails to support its contention that agreement was
reached between Respondent and Local 455 . Although, as the Union 's brief points
out, both Harper and Getlan testified that they believed an agreement had been
reached, their respective impressions of the details of that agreement present such
marked differences that I :rust conclude that their beliefs , even if truly held,18 were
the products of wishful thinking and that there had been no " meeting of the minds."
Analysis of the testimony shows that, in several areas of dispute, where each had
expressed a belief that the other had acceded to his position, the others present held
widely varying views.h°
17 The "final authority" placed by Section 3( d) of the Act on the General Counsel con-
cerning the issuance and prosecution of complaints must be construed harmoniously with
the Board's judicial powers and duties ( Haieston Drug Stores, Inc. 3.L.R.B., 187 F. 2d
418 (C.A. 9) ). The statement by the court, in Retail Clerks Union Local 7 7 0, et al. ( Yrito
Company) v. N.L.R.B., 330 F. 2d 458 (C.A. 9), that this power of the General Counsel
. . cannot limit the scope of the decision which may be rendered upon the evidence
adduced" appears to have been adopted by the Board in Indepcnde:nt Metal Workers Union,
Local ltio. 1 (Hugh es Tool Compan y), 147 NLRB 1573, 1577. (See also Danner Press,
Inc., 153 NLRB 1092 ; but compare Northeastern Indiana Building and Construction.
Trades Counci l, et at . (Centlivee Village Apts.), 352 F. 2d 696 (C.A.D.C.) ).
18 In view of my holding, below, that at this meeting Getlan had already determined not
to reach agreement with Local 453, I do not credit his testimony on this point.
19 Duration-: Getlan testified that he insisted on a 3-year contract and that Local 455
agreed; Loechel testified that a 3-year term was Getlan's proposal.
Candelora testified that Getlan asked for a 3-year term but that the Union offered only
2; Lilly testified that 2 years was the only union offer and that nobody mentioned a 3-year
term; Harper testified that she couldn't recall that any question was raised as to the
duration of the contract but that Getian said he would "go along" on the termination date
requested by the Union.
Arbitration: Getlan testified that he insisted that sessions be held in Hempstead and,
upon his undertaking to pay half the cost, the Union agreed: Loechel testified that Get'_an
insisted he wanted the sessions in Hempstead and that Harper stated that Respondent
would then be required to pay half the cost but he did not recall that Getlan agreed
to do so.
Harper testified that, although Getlan was unhappy about it. he agreed to continue the
old system whereby sessions were held at the office of the State mediation board in Man-
hattan: Lilly testified that Getlan wanted sessions at Hempstead and that the Union said
"it couldn 't be done" ; Candelora testified that Getlan said he wanted sessions in Hempstead
and Harper said she'd look into it.
Reporting pay: Getlan testified that the Union agreed to take it out ; Loechel testified
that there was no agreement on the point.
GETLAN IRON WORKERS, !-NC. 1061
It is also to be noted that, with respect to the general course of the meeting,
Getlan testified that the Union agreed to continue its relationship with him for an
additional 3 years on the basis of the expired contract, plus the increase in wages
which he offered, subject only to proof of the legality of the union-security provi-
sior_, whereas Loechei could recall no such general agreement but testified that the
discussion "skipped" and that they went "back and forth over the whole document";
i.e., the stipulation. Vice President Lilly testified that, when, a subject had been
discussed, Getlan would neither agree nor disagree but simply say, "Well, how about
this?" moving on to antler subject.
From the foregoing summary it appears, and .1 find, that no agreement between
Respondent and Local 455 was reached at the meeting on July 28.
The conduct of Get as at the meeting of July 28, which so clearly shows that
Respondent did not reach agreement with Local 455, when considered with other
evidence, however, supports the General Counsel's contention that Respondent, on
and after July 28, did no-, confer wit Local 455 in good faith bit went through the
motions of negotiating with a =xed determination not to reach an agreement.
During the first 2 weeks of the strike, Getlan told two of his veteran employees,
Schaller and Gaily that he had no intention of signing a contract with Local 455.
It is important to note that these statements were not credibly linked by Getlan to
he Union's contract demands but were indicative of Respondent's complete rejec-
tion of the Union as the bargaining representative of its employees. It is also impor-
tant to note that several of the Union's proposals to which Getlan expressed strong
opposition at the July 28 _neeting were virtually the same as provisions in the
expired contract-which Getlan expressed a willingness to continue. The reporting
pay clause in the proposal (section 9c) seems substantially the same as that in the
expired contract (section 8c) and the union-security clause in the proposal (section 4)
is almost the same as that in the expired contract (section 4) except that the pro-
posal gives the nonmember employee 3 days' grace in which to join the Union before
being discharged for nonmembership.
The fact that there were other areas in which the Union's demands were genuinely
opposed by Respondent 20 does not preclude consideration of these feigned issues in
reaching the conclusion that Respondent, on July 28, had a fixed determination not
to reach agreement with Local 455.
A week later, on August 4, Candelora visited Respondent's plant. According to
Candelora, he asked Getlan to sign the stipulation and put the men back to work
but Getlan said he did not need any men because he was having his work done out
of town and that he would have to consult his attorney before signing anything.
Getian admitted Candeicra's visit and his request that the men be put back to work.
He testified that he told Candelora he had not yet received the contract from Harper
and that Candelora said: ":Veil, it's not acceptable. You will just have to sign the
regular contract," which he refused to do, stating that he would sign the contract
reached with Allied but Candelora would not guarantee that it would be available
to him. Getian also testified that immediately after this meeting with Candelora, he
Candelora had no recollection on the subject and Harper, although she testified that
Getlan agreed to the provision, conceded that there was still the question mark she had
placed on her working copy of the stipulation next to the provision on this subject.
Subletting: Getlan testified that the Union agreed to take it out ; Loechel testified that
there was no agreement on the point.
Candelora testified that there was no agreement and Harper testified that Getlan said
he couldn't "live with" this provision. Her working copy of the stipulation shows a
question mark next to the provision on this subject and she testified that they dropped the
matter, didn't return to it and it was "left dangling."
Union security: Getlan testified that he took the position that the Union's provision on
this point was illegal but that if it could be proved legal he would accept it; Loechel testi-
fied that Getlan said a provision requiring an employer to collect union dues was illegal.
Lilly testified that Getlan said the provision was illegal and that, if Harper could prove
to him that it was legal, he would sign the stipulation; Candelora testified that Getian
raised the question and Harper promised to provide him with authority ; Harper testified
that there was no agreement on this point and that she subsequently sent Getlan a copy
of the Act to prove that the clause requested by Local 455 was authorized.
2l In connection with subletting of work, the other subject on which Getlan expressed
strong views, the Union's proposal adds an element-prohibition of subletting while men
are laid off-that might have a substantial effect on Respondent's operations.. Moreover,
there can be no doubt that Getian considered it a burden upon bins to travel to Manhattan
for arbitration hearings and he was entitled to try to change that procedure.
1062 DECISIONS OF NATION-AL LABOR RELATIONS BOARD
placed the newspaper advertisement for men. I find that Getlan's offer to sign a
contract embodying the agreement he claimed was reached on July 23 or to sign
whatever agreement was reached with Allied was a continuation of his determina-
tion not to reach agreement with Local 455 and I credit Candelora's testimony that
Getlan said he was having his fabrication work performed out of town.
Finally, Candelora testified that on August 27, after he called James ICCleric
out of the shop and put him on the picket line, he talked with Getlan and again
asked him to sign a contract but that Getlan unequivocally stated that he was
through" with Local 455. Get-an did not deny having made the statement and I
find that he did so.
3. Assistance to Local 42
a. In obtaining designations
John Johnson testified that he did not go out on strike but continued to work
steadily. While the record is not clear, it is possible that John McClenic, was not a
member of Local 455, also continued to work without interruption. On August 17
Vincent Iacono began working and James McClenic returned to work on August 24.
There were, therefore, these four men at work in Responden s shop when the work-
week ended on August 26 and, during the 2 following workweeks, Respondent's
complement of shop employees was as set forth in footnote 11, above.
It was about this time that Gerald Lasky, president of Local 42, appeared upon
the scene. The precise place, time, and manner of his first appearance is the subject
of vague and conflicting testimony but there is little doubt that he was on the street
outside Respondent's plant when the employees quit work on Wednesday, Septem-
ber -2, and that he solicited authorization cards from the men. General Manager
Loechel testified, however, that Getlan had introduced him to Lasky about 2 days
earlier and said that they were "bargaining for a contract." 21 Loechel also testified
that, during working hours on the day Lasky was on the street outside the plant, he
received a message "from the office" th.:at Lasky warted the men to wait for him
and that he relayed this message to each of the men individually.
According to Getlan, he first met Lasky the day Lasky was on the street outside
the plant and that Lasky came to him, saying he represented the employees and
would bring in a contract proposal the next day; that he, Getlan, then went looking
for Loechel to find out whether Lasky did, in fact, represent the men but Loechel
had gone for the day; that later that evening he talked with his lawyer who instructed
him to find out whether Local 42 represented the men and what it wanted and that,
if it did represent the men, he would have to bargain with it. Getlan further testi-
fied that the next morning he put the question to Loechel who said that Local 42
did represent the men; that he then entered into negotiations with Lasky; and that
about September 15, he signed the collective-bargaining agreement with. Local 42
dated September 4.
Loechel's testimony was specific, contradicting Getlan's well-tailored but uncon-
vincing account, and Lasky conspicuously failed to testify.
I reject Getlan's testimony and find that Lasky's solicitation of authorization cards
on September 2 followed, rather than preceded, his negotiations with Respondent
and that the message conveyed by Loechel personally to each employee to wait for
the "union man" assisted Local 42 in obtaining representative authorizations.
There were introduced into evidence three signed authorization cards, all dated
September 3.22 In addition, James McClenic testified that on September 3 Loechel
called him into the office and told him that a new union was coming into the shop
and that a man would be there later that day. McClenic asked whether that
could be done but Loechel merely shrugged. As he left the plant at 4:30 that day,
McClenic saw Lasky outside distributing authorization cards and circulars concern-
ing Blue Cross. He took a card and, the next day, signed it and put it on a table
where some other cards had been placed.
21 Even before he first met Lasky, Loechel testified, he and Getlan discussed Local 42,
Lasky, and the men in the shop. John Johnson, the employee who did not go out on
strike, testified. that some time before Lasky first appeared Getlan told him another union
was coming into the shop. Iacono testified that, 2 days before he first met Lasky outside
the plant, General Manager Loechel told him and Johnson that the place was going to
go union and that a man would be down to see them. Iacono also testified that, when he
first met Lasky on the street, Lasky said that he was bargaining with Getlan for a contract.
22 Signed by Iacono , Quartararo, and E:auderer. Quartararo testified that one of the
documents he signed as part of his application to Local 42 was given to him by Lasky in
the plant office.
GETLA_1- IRON WORKERS, INC. 1063
On September 3 and 4, however , there were eight employees in the shop 28 and
these authorizations-even if bona fide designations by permanent employees-could
net, and did not, Justify Respondent 's recognition of Local 42.24
b. In signing the contract
According to Getlan's testimony, Lasky returned on the morning following his
first visit in which he claimed to represent the shop employees and, at this time,
delivered a form of contract, asking Getlan to look it over. Getlan testified that
he did so; that thereafter he had a number of conversations, personal and by tele-
phone,23 with Lasky and that he signed the contract on September 15, dating it
back to September 3 for the purpose of welfare computations, but quite certain that
it was not signed until the 15th.
In rejecting Getlan's testimony and finding that the contract was signed by Getlan
-on September 4, I have given considerable weight to the fact that the complaint
-alleges that Respondent executed a contract with Local 42 "on or about September 3,
1964," and that this allegation was admitted (by failure to deny) in the answers of
-both Respondent and Local 42. In addition thereto, Getlan, in his pretrial state-
ment, fixes the date of signing as September 4 and also notes that "since we signed
-the contract" McClenic left 26 The record is clear that the last day of the employ-
ment of both McClenics was September 4. Moreover, Candelora testified, under
,questioning by Respondent's counsel, that on September 7 he visited the plant and
Loechei told him that there was "a new union in there, representing the men."
Accordingly, I find that Respondent signed the contract with Local 42 on Sep=
tember 4, that it did so notwithstanding that Local 42 did not represent an uncoerced
majority of the employees actually in the shop, and that it did so in derogation of
its duty to bargain in good faith with Local 455.
About 2 weeks after the contract with Local 42 was signed, Loechel informed
Johnson that, under its terms, he was required to join. Johnson refused, stating
-that on his wages he could not afford to pay union dues. Loechel thereupon raised
his wages sufficiently to pay the union dues and promised him a further raise later
in the year.
The contract provides for union membership as a condition of employment and
that, upon authorization, Respondent shall deduct union dues and membership fees
.and pay them over to Local 42. The record does not reflect the circumstances sur-
rounding the execution of checkoff authorizations but Respondent stipulated that,
beginning some time in October or November, it withheld sums of money for union
'dues and fees from the wages of its shop employees and paid them over to Local 42.
D. Conclusions
Although it is conceded that the strike by Local 455, when it commenced on
July 23, was economic in nature , Respondent's solicitation of Gally and Schaller to
return to work during the first 2 weeks of the strike, as well as Getlan' s statements
that if they would foresake Local 455 and return to work they would receive more
pay raises than Local 455 could obtain for them and he -would not sign a contract
with Local 455, converted it into an unfair labor practice strike 21 Respondent's
23 If Quartararo, who had just been hired, was a supervisor from the start, as his testi-
mony indicates he was at the time of the hearing, there were only seven employees but,
since his was one of the signed cards, there were only three authorizations.
23 Kauderer testified he gave Lasky five cards but his testimony is not supported and is
xejected.
25In which, he testified, he raised a question concerning vacations but not, apparently,
concerning the location of hearings under the arbitration clause since the contract with
Local 42 provides for such hearing before personnel of the State mediation board and
-these are held only at its offices in Manhattan. Nor with respect to other matters hotly
contested with Local 455 but in the Local 42 contract.
2,3 Getlan testified that he gave his pretrial statement on October 26 when he came to the
Board office to file a charge against Local 455 based on its picketing (the date of filing
on the charge is October 12, 1964) and that he took the statement away with him, un-
signed. He testified that he kept the statement for 2 weeks, examined it at his office and
then took it back to the Board office, pointed out several errors, and finally signed and
swore to it on November 6, which is the date of the jurat.
27 Federal Dairy Company, Inc., 130 NLRB 1158, enfd. 297 F. 2d 487 (C.4. 1) ; Esti
Neiderman, et al. d/b/a Star Baby Co., 140 NLRB 678, mod. 334 F. 2d 601 (C. A. 2).
1064 DECISIONS OF NATIONAL LABOR FEL 3T1ONS BOARD
conduct at the meeting of July 28 when, I have found, it failed to confer in good
faith,2S served also to prolong the strike and to convert it ir_to an u ;fai labor prac-
tice strike. The strike having become one based, in part at least. upon Respondent's
unfair labor practices, the shop employees did not, under Section 2(3) of the Act,
lose their status as Respondent's employees and con d not be permanently replaced.
Plant Manager Loechel's personal statement on September 2 , to each man in the
shop, that a union representative would be there that day- and that they were to
wait for him. as well as his handing a blank card to .James ,1cCienic, constituted
assistance to Local 42,29 and the designations by these pen of Local 42 as their
representative, were inflective for the purpose.3°
Respondent's execution of a contract with Local 42 occurred at the time when
Local 455, the representative of its employees, was still on strike. Moreover, even
if this factor were to be disregarded, even if the men in the slop on September 4
were considered as employees and even if their designations of Local 42 were
accepted as valid, nevertheless this record discloses that only four of the e:ght men
in the shop 31 had designated Local 42 as their representative. Since this was less
than a majority at the time,32 the execution of the contract also constituted unlawful
assistance to Local 42 33 and a violation of its duty to bargain with Local 455.
Respondent's deduction of membership fees and dues was based upon the inclu-
sion of union-security and checkoff provisions in its contract with Local 42 and,
notwithstanding the submission by the employees of the authorizations necessary
under Section_ 302(c), I find that Respondent coerced the deductions by means of
those provisions.34
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set for th in section III. above , occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade. traffic, and commerce among the several States, and
constitute unfair labor practices which tend to lead to labor disputes burdening and
obstructing commerce and the free low of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in unfair labor
practices as set forth above, I shall recommend that it cease and desist therefrom
and take certain affirmative action to effectuate the policies of the Act.
Having found that the Respondent has failed to bargain with Local 455 as the
representative of its employees in an appropriate unit, 1 shall recommend that the
Respondent, upon request, bargain collectively with Local 455 concerning rates of
pay, wages, hours of employment, or other terms and conditions of employment,
and, if an understanding is reached, embody such understanding in, a signed
agreement.
Having found that Respondent's employees, since July 28, 1964, have been
engaged in an unfair labor practice strike, I shall recommend that Respondent, upon
application, reinstate the employees in its shop as of July 28, 1964, discharging, if
necessary, others hired since that date.33
Having found that Respondent assisted Local 42 in obtaining designations from
shop e=nr loyees and by entering into a contract with it containing maintenance-of-
membership and checkoff provlsior_s, I shall recommend that Respondent cease to
honor such designations and checkoff authorizations, cease maintaining and enforc-
ing its agreement with Local 42 and withdraw and withhold recognition from Local
2 See Sofway Steel Scaffolds Company of Georgia, 153 NLRB 417.
29 Fotochrome, Inc., 146 NLRB 1010, enfd. 343 F. 2d 631 (C.A. 2) ; Continental Distilling
Sales Co ., 145 NLRB 520, enforcement denied 348 F. 2d 24.3 (C.A. 7).
30 International Association of Machinists, Tool and Die _lakers Lodge 3'0. 35 (Serrich
Corp. ) v. N.L.P.B., 311 U.S. 72, 79.
"Three out of seven if Quartararo was a supervisor at the time.
32 Johnson' s designation , even if freely executed, came much later.
zslnternational Ladies' Garment Workers' Union. ( Bernhard-_'tmann Texas Corp.) V.
27.L.R.B., 366 U.S. 731.
3} Topes Kerrrrail, Inc., 143 NLRB 694, set aside 325 F. 2d 293 (C.A. 1); Salmirs OR
Company, 139 NLRB 25. See also Simko Manufacturing and Tool Company, 149 NLRB
201, and compare Carlson Furni ture Industries , Inc.. 153 NLRB 162.
35 3tastro Plastics Corp ., et al., 103 NLRB 511. enforcement affd. 350 U. S. 270.
GETLA1 IRON WORKERS, INC. 1065
42 unless and until that labor organization shall have been certified by the Board as
the exclusive representative of the shop employees. I shall also recommend that,
since Respondent had no right to execute the union-security agreement with Local
42 or to collect the dues and fees required under that agreement, it shall reimburse
all its employees , present and former, for dues and other sums of money unlawfully
exacted from them since September 4, 1964, the date of its agreement with Local
42.36 Such reimbursement shall bear interest as provided in Isis Plumbing & Heat-
ing Co., 138 NLRB 716, and be computed in the manner set forth in Seafarers Inter-
national Union of North America, Great Lakes District, AFL.-CIO, 138 NLRB
1142.
I shall also recommend that the Company preserve and upon request , make avail-
able to t - e Board or its agents, all pertinent records and data necessary to assist in
the commutation of the amount of reimbursement due.
Because of the nature and extent of the unfair labor practices engaged it by
Respondent, which evince an attitude of opposition to the purposes of the Act in
general , I sha'_l recommend that Respondent cease and desist from in any manner
infringing upon the rights of employees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS of LAw
1. Respondent is an employer engaged in commerce within the meaning of Sec
tion 2(6) and (7) of the Act.
2. Locals 455 and 42 are labor organizations within the meaning of Section 2(5)
of the Act.
3. At all times since July 1, 1964, Local 455 has been, and is , the collective-
bargaining representative of the employees of Respondent in the unit described as
follows:
All production and. maintenance employees of Respondent employed at its plant,
exclusive of clerical employees, superintendents, foremen who do not handle mate-
rial or work with tools, employees who are represented by any other union affiliated
with AFL-CIO with whom Respondent has signed a collective-bargaining agree-
ment, employees engaged in erection, installation , or construction work, and all
supervisors as defined in Section 2 ('-, 1) of the Act.
4. By its solicitation and promise of benefits, between July 23 and August 7,
1964, to striking employees Schaller and Gally to abandon the strike of Local 455
and return to work, and by stating to them that it would not agree upon a collective-
bargaining contract withLocal 455, Respondent committed unfair labor practices
within the meaning of Section 8(a) (5) and (1) of the Act.
5. By its solicitation of and promises of benefit, on August 27 and September 1,
1964, to James McClenic to abandon the strike of Local 455 and return to work,
Respondent committed unfair labor practices within the meaning of Section 8(a) (5)
and (1) of the Act.
6. By its failure, on and after July 28, 1964, to confer in good faith with Local
455 with respect to wages, hours, and other terms and conditions of employment,
and by its execution of a collective-bargaining agreement with Local 42 including
a maintenance-of-membership provision, Respondent has committed and is com-
mitting an unfair labor practice within the meaning of Section 8(a) (3), (5), and
(1) of the Act. - - - - - -
7. By reason of Respondent's said unfair labor practices, the strike of Respond-
cut's employees, in the unit set forth above, has been, since July 28. 1964, an unfair
labor practice strike and Respondent's employees in said unit on that day continue
to be its employees.
8. By requesting employees to meet with representatives of Local 42; by giving
employees authorization cards of Local 42; by entering into and maintaining a
collective-bargaining contract with Local 42 containing union-security and checkoff
provisions, notwithstanding Local 42 was not the designated representativ e of its
employees ; by enforcing those provisions of said. contract and by paying over to
Local 42 money collected from employees under said contract, Respondent has
assisted and is assisting Local 42, thereby committing unfair labor practices within
the meaning of Section 8(a)(2), (3), and (1)-of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
31 See Simko Han-uf acturing and Tool Company, 149 NLRB 201.
1 066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this proceeding, it is recommended that the Respondent, Getian
Iron Works, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Soliciting employees, by promises of benefit or otherwise, to abandon their
membership in Local 455 or their strike against Respondent.
(b) Threatening that it will not reach or sign an agreement with Local 455 con-
cerning wages, hours, and other terms and conditions of employment.
(c) Refusing to bargain with Local 455 as the collective-bargaining representative
of the employees in a unit composed of all production and maintenance employees
of Respondent employed at its plant, exclusive of clerical employees, superintend-
ents, foremen who do not handle material or work with tools, employees who are
represented by any other union affiliated with the AFL-CIO with whom Respondent
has signed a collective-bargaining agreement, employees engaged in erection, instal-
lation, or construction work, and all supervisors as defined in Section 2(11) of the
Act with respect to rates of pay, hours, and other terms and conditions of employment.
(d) Assisting Local 42; recognizing it as the representative of Respondent's
employees in the above-described unit for the purpose of dealing with it concerning
wages, hours, or terms or conditions of employment unless and until it shall have
been certified by the Board as the exclusive representative of said employees.
(e) Giving effect to the collective-bargaining agreement entered into Septem-
ber 4, 1964, or to any extension, renewal, or modification thereof. unless and until
Local 42 shall have been certified by the Board as the exclusive bargaining repre-
sentative of its employees in the above-described unit; provided that nothing in this
Recommended Order shall require Respondent to vary or abandon any wage, hour,
or other substantive feature of its relationship with its shop employees which
Respondent has established in the performance of such agreement, or to prejudice
the assertion by its shop employees of any rights they may have thereunder, not
inconsistent with the foregoing Decision or with other provisions of this Recom-
mended Order.
(f) Requiring employees to join or execute checkoffs of dues and other sums of
money to Local 42.
(g) Withholding from employees' wages dues or other sums of money for Local
42, pursuant to said contract, or paying sums of money so withheld to Local 42.
(h) In any other manner interfering with, restraining, or coercing its said employ-
ees in the exercise of rights guaranteed them in Section 7 of the Act, except to the
extent that such rights may be affected by a lawful agreement requiring member-
ship in a labor organization as a condition of employment as authorized by Section
8(a)(3) of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Industrial Production Employ-
ees Union, Local 42, as the representative of its employees in the above-described
unit, unless and until it shall have been certified by the Board as such representative.
(b) Reimburse all employees for dues and other sums of money collected under
the terms of its contract with Industrial Production Employees Union, Local 42,
together with interest at the rate of 6 percent per annum, all in the manner set forth
in the section hereof entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and all other pertinent data and records necessary to assist
in the computation of amounts of reimbursement due hereunder.
(d) Upon application, reinstate to their former, or substantially equal positions,
Willy Schaller, Zoltan Gally, Arthur Kunz, Frank Cassaine, James and John Mc-
Clenic, and T. Graham, without prejudice to their seniority and other rights and
privileges, discharging, if necessary, persons hired since July 28, 1964.
(e) Notify any of the above-named employees presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
(f) Upon request, bargain collectively with Local 455 as the exclusive collective-
bargaining representative of the employees in the aforesaid unit, with respect to
wages, hours, and other terms and conditions of employment, and, if an agreement
is reached, incorporate the same in a written contract.
GETLAN IRON WORKERS INC. 1067
(g) Post at is plant in Hempstead, New York, copies of the attached notice
marked "Appendix." 37 Copies of this notice, to be furnished by the Regional Direc-
tor for Region 29, shall, after being duly signed by a representative of Respondent,
be posted by Respondent 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 Respondent to insure that such notices are not altered, defaced, or covered by any
other material.
(h) Notify the aforesaid Regional Director, in writing, within-2C days from the
date of this Decision, what steps the Respondent has taken to comply here,xith38
371f this Recommended Order is adopted by the Board. the words "a Decision and
Order" shall he substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice shall be further amended by the substitution of the words "a Decree
of the United States -Court of Appeals. Enforcing an Order" for the words "a Decision
and Order."
3s If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 29, in writing, within 10 days from the
date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL E3 PLOYFES
Pursuant t, the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
'E WILL NOT interfere `?'itn, restrain, or coerce our shop employees in the
exercise of their rialit to self-orgartizai:o', to form, o", or assist a labor orga-
nization, by soliciting our shop employees or promising then benefits to aban-
do_ a strike ca led by Shopamen's Local Union No. 55 of the International
Association of Bridge, Structural and Ornamental Iron Workers. AFL-CIO, or
any ether labor organization which they may join or designate as their
coilective-bargaining representative.
WE WILL, upon request, meet and confer in good faith with representatives
of said labor organization with respect to wages, hours, and Other conditicus
of employment of our shop employees in the unit described as follows:
All production and maintenance employees of Respondent employed at
its plant. exclusive of clerical employees, superintendents, foremen who
do not handle material or work with tools, employees who are represented
by any other union affiliated with the AFL-CIO with whom Respondent
has signed a collective-bargaining agreement, employees engaged in erec-
tion, sta'latio i, or construction work, and all supervisors as defined in
Section 2(11) of the Act.
WE WILL offer to Willy Schaller, Zoltan Gaily, Arthur Kunz, Frank Sasaine,
James and John -1cClenic, and T. Graham full reinstatement to their former
or substantially equal positions, without = rejudice to their seniority and other
rights and privileges, discharging, if necessa y, persons hired since July 28, 1964.
We hereby withdraw recognition from Industrial Production Employees
Union, Local 42. as the representative of our employees in the above-described
unit and we will not recognize it as such representative unless and until it shall
have been certified by the National Labor Relations Board for that purpose.
WE WILL NOT observe or enforce the terms of the contract entered into with
Industrial Production Employees Union, Local 42, on September 4, 1964, par-
ticularly those requiring our employees to become and remain members of that
union and providing for checkoff of dues. and other fees to that union; provided,
however, that we will not withdraw from our employees any rights or privileges
not inconsistent with the Decision referred to above.
WE WILL refund to our employees, past and present, all sums of money
checked off and withheld from their compensation as dues and fees to indus-
trial Production Employees Union, Local 42, with interest thereon.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'?TE `'ILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, j oin, or
assist a labor organization, to bargain collectively through a bargaining agent
chosen by themselves, to engage in other concerted activities for the purposes
of collective bargaining or otter mutual aid or protection, or to refrain from
any such activities (except to the extent that the right to refrain is limited by
the lawful enorce_nent of a lawful union-security requirement).
All our employees are free to become or remain, or refrain from becoming or
remaining, members of Shopmer_'s Local Union No. 455 of the International Asso-
ciation of Bridge, Structural and Ornamental Iron Workers, AFT; CIO, or any other
labor organization (except as limited above).
GETLAN IRON WORKS, INC.,
Employer.
Dated------------------- By------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to reinstatement upon applica-
tion in accordance with the Se'iective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 16 Court
Street, Brooklyn , New York, Telephone No. 596-5386.
Furniture Workers Union Local No. 500 and Canoga Creations
Incorporated . Case NNo. 31-CC-18 (formerly 21-CC-8:58), No-
vember 19,196-5
DECISION AND ORDER
On epte.I111Je .1965, r 1l Examiner James R. Tebster i s s ed
his Decision in the above-entitled proceeding, rrtdi.lg that the
Respondent had en„aged in and '=as engaging in certain unfair labor
pract.-ices and reconllnendlh _ hat cease and desist there fro . and
take. certain airma ive cation as set forth in the `_ttache d Trial
Exantiller's Dec Lion. Thereafter, the Respo _ce-r_ flied exceptions to
,2.1 f and 2, c_d pp eE .the Tr ' E` `nil ler'ti Dec.is_o ort -ig r_ i,i -
Purs ant to t_1e - _ o; isions of Section 3 i b of the ;ati 1a' a^bor
Relations Ac as _.__ended, the Na•t?on ! L: -or Relations Boa d has
delegated its DOAVC-rs in connection with this Case. t_o a three-member
panel [ embers I` anning, Ei J : n, a 1C Zagv=_a j.
T he Board has revie e d the rulings of the Trial Examiner .lade at
the hearing and ids thc._t• no 1hre4udicial er or was c.o- mitred. Tlhe
rulingss are hereby a rmed. The- Board _'_as consi ered "e Trial
Exal liner's Decision, t e. exceptions and brief, end the e'_'_tire record
LI 73T1 L^ C?Se. an_,c= E.dC.sL° t-l,e _ ildings, conc_usions. alit",( recoil-
7uendzations of tale Trial Examiner.
[ -he Board adopted the Tria.i Examiner's Recommended Ora erj
155 NLRB No. 111.