Architectural Pottery

National Labor Relations Board - Board Decisions

Jun 9, 1967

165 N.L.R.B. 238 (N.L.R.B. 1967)

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Architectural Fiberglass -Division of Archi-
tectural Pottery and Ventura County-
District Council of Carpenters of the United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Case 31-CA-38 (formerly
21-CA-6421).
June 9, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On September 27, 1966, Trial Examiner David F.
Doyle issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Charging
Party and the General Counsel filed exceptions to
the Trial Examiner's Decision and supporting briefs,
and the Respondent filed briefs in answer to the
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.
On October 21, 1964, the Union was certified as
the collective-bargaining representative of a unit of
the Respondent's production and maintenance
employees. Thereafter, on November 2, 1964, the
Union by letter submitted a proposed contract to
serve as a basis for negotiations; and on
November 17, 1964, it requested certain information
in preparation for negotiations. At the first
bargaining session held on November 25 the
Respondent submitted to the Union the requested
information, including a list of 14 employees who
had received wage increases since the certification,
and a roster of all employees and their present wage
rates. The parties met again on December 9, 1964,
and January 13 and March 15, 1965. In December
1964, the Respondent unilaterally granted certain
additional wage increases. On December 24, 1964,
the Respondent unilaterally laid off a number of
employees, whom it subsequently recalled. During
the negotiations the Respondent's negotiator
insisted on using a tape recorder over the Union's
strenuous objections.
The Trial Examiner found that the Respondent
did not refuse to bargain in violation of 8(a)(5), and
that the complaint should be dismissed. We
disagree.
1. As indicated above, on various dates in
October, November, and December 1964, after
certification and while negotiations were in progress,
the Respondent granted wage increases to
employees without informing the Union thereof until
after the effective dates of the increases. The Trial
Examiner found that the Respondent's unilateral
granting of these wage increases was not violative of
Section 8(a)(5), because they were given for the
reasons testified to by the Respondent's president,
Lawrence; that is, that increases were given to
female employees pursuant to an understanding
made at the time of their hire that they would start at
$1.50 per hour, after 30 days their pay would be
raised to $1.60 per hour, and after 60 days their pay
would be raised to $1.70 per hour; that raises were
given to male employees pursuant to the Equal Pay
Act' in order to equalize their pay with that of
female employees doing the same work; and that a
raise was given to employee Neri, in the "nature of
promotion," because he was assigned additional
duties.
However, stipulations entered into by the parties
at the hearing as to the names of the employees who
received wage increases and the dates thereof, and
the list of employees who received increases prior to
the first meeting and the roster of employees and
their wage rates both compiled by the Respondent
and submitted in evidence, fail to substantiate
Lawrence's testimony as to the reasons for the
raises. Thus, as to the increases granted to most of
the female employees, this written or stipulated
evidence fails to show as to some that the raises
were given 30 and 60 days subsequent to their hiring
date,2 and, as to others, the evidence affirmatively
shows that the raises were given at other intervals
and not in increments of 10 cents an hour.3
i Section 6(d) 1 of the Fair Labor Standards Act, cited as the
Equal Pay Act of 1963 (29 U S C A § 206 (d)(1)) provides, in
general, that effective June 11, 1964, an employer shall not
discriminate between employees on the basis of sex by paying
lower wages for equal work.
2 Tumua, Apelu, Mack, Moreno, Shutt, and Misi
S Heckman and Mallense were hired on September 17, but did
not receive an increase until the week ending October 31, and
Tikkanen, who was hired on September 16, did not receive an
increase until the week ending November 7 However, Smith, who
was hired on November 9, received an increase on November 14
The hiring date of Hackerott and Moa are not in evidence, but
on November 25, their wage rate was $1 50 per hour, and by
December 19 and 24, respectively, their wage rate was 81 70 per
hour Torrez does not appear on the list of employees submitted
by the Respondent on November 25, and we therefore find she
was hired subsequent to that date, yet on December 4, she
received a 10-cent-per-hour increase According to the
information submitted by the Respondent, Birch did not receive a
10-cent increase in November, but on December 24, she received
an increase from $1.60 to $1 70 per hour
165 NLRB No. 21
ARCHITECTURAL FIBERGLASS 239
There was therefore no pattern based on prehire
agreements for the women with which the Equal Pay
Act would require that the men's pay be conformed.
Furthermore, even if there had been, the record fails
to show, as to most of the men, that their raises
follow either a pattern based on increases 30 and 60
days after the Respondent first began to hire female
employees (September 16), or 30 and 60 days after
the men themselves were hired,' nor were they all
given increases from $1.50 to $1.60 and then to
$1.70.5
Moreover, although not referred to by the Trial
Examiner, the Respondent contended that Duenes
received a wage increase because he was promoted
to assistant leadman. However, we find that no such
promotion was made, as Duenes received his raise
on October 31, but was still a fiberglass gun operator
on November 25.
Therefore, except for the few remaining raises as
to which the evidence does appear to substantiate
the reasons given by Lawrence," we find that a
majority of the increases were not given for the
reasons advanced by the Respondent. Moreover,
there is no contention that the parties had reached
an impasse at the time the increases were granted,
and we find they had not. Accordingly, we conclude
that by unilaterally granting increases without
consulting and bargaining with the Union, the
Respondent violated Section 8(a)(5) and (1) of the
Act.7
2. The Trial Examiner also found that Mrs. Edwin
Selvin, the Respondent's bargaining agent , did not
condition bargaining on the use of a tape recorder,
and that Mrs. Selvin used the tape recorder as a
means of taking personal notes; and for these
reasons he recommended dismissal of this portion of
the complaint. We disagree with the Trial Examiner,
and find a violation based in part on the use of the
tape recorder.
Whether or not Mrs. Selvin specifically
conditioned bargaining on the use of the tape
recorder, the record clearly establishes that she
adamantly insisted on using it throughout the
negotiations, over the vigorous objections of the
Union. We find, in all the circumstances here, that
the Respondent by insisting on using the tape
recorder over the Union's objections, was not acting
in good faith. Rather, when the Respondent's
insistence is viewed in the context of the
Respondent's entire course of conduct, as found
herein, it is manifest, and we find, that the
Respondent had as its purpose to avoid, delay, and
frustrate meaningful bargaining with the Union.
Accordingly, we find that the Respondent's
insistence on the use of the tape recorder over the
objection of the Union, further evidenced its bad-
faith bargaining as discussed below, and further
violated Section 8(a)(5) and (1) of the Act."
3. We also find, contrary to the Trial Examiner,
that the Respondent's failure and unwillingness to
bargain in good faith is evidenced not only by its
above-described conduct, but also by its conduct in
accumulating the largest stockpile of merchandise in
its history prior to and during the period of
negotiations in order to counter the Union's possible
strike threat because of its anticipated unfair labor
practices; by proposing that the Union waive its right
to bargain and to information pertaining to
mandatory subjects of bargaining; by refusing to
bargain with the Union regarding a layoff of its
employees; and by misrepresenting to the Union that
it planned to discontinue the manufacture of
prefabricated concrete forms.
In November 1964, at or about the same time
negotiations began, the Respondent, as President
Lawrence testified, began to accumulate the largest
stockpile of merchandise in its history, motivated, as
both Lawrence and Selvin testified, by the
possibility of a strike. In all the circumstances, we
find that the stockpile was accumulated because the
Respondent had reason to anticipate that its
intransigence and its unlawful conduct during
negotiations might provoke a strike; and is therefore
evidence of the Respondent's bad faith.
At the November 25, 1964, meeting, the
Respondent submitted a counterproposal entitled
"Bargaining," which provided that:
Notwithstanding the provisions of Section 1, or
a Olivarez, Chacon, and Garcia, who were hired respectively on
June 25, July 28, and September 8, received 10-cent-per-hour
increases on November 14, Chacon received an additional 10-cent
increase on December 24 Vidalez and Perez were hired on
July 10 and August 17 , respectively, and received increases on
November 24, and an additional 10-cent increase on
December 12, Rudolfo does not appear on the list of employees
submitted by the Respondent on November 25, yet on
December 4, he received a 10-cent -per-hour increase The hiring
dates for Sam Apelu, Reyes , and Chapel are not in evidence
5 Lopes and Schommer received increases from $1 75 to $1 85,
and Duenes and Freeman from $1 50 to $1 75.
6 The record appears to substantiate the reasons given for the
raises granted to King, Cordova, and Medlin on November 7,
1964 , and those granted to Garcia, King, Olivarez , and Smith on
December 12, 1964, and for the increase given to Neri We make
no determination regarding these increases , as to do so would not,
in any event, affect the scope of the order herein
N.I. R B v Katz, d/b/a Williamsburg Steel Products, 369 U S
736
d See Southern Transport, Inc , 150 NLRB 305 (Member Brown
concurring), enforcement denied 355 F 2d 978 (C A 8), St Louis
Typographical Union No 8, affiliated with International
Typographical Union, AFL-CIO (Union Employers' Section of the
Graphic Art Association of St Louis, Inc), 149 NLRB 750
(Members Fanning and Brown concurring), East Teras Steel
Castings Company, Inc, 108 NLRB 1078, 1084-85, Allis-
Chalmers Manufacturing Company, 106 NLRB 939, 950, Reed &
Prince Manufacturing Company, 96 NLRB 850, 854, enfd 205
F 2d 131 (C A 1), cert denied 346 U S 887
For the reasons set forth in the concurring opinion of Members
Fanning and Brown in the St Louis case, supra, Member Fanning
concurs in the finding that insistence on the use of the tape
recorder here was a violation of Section 8(a)(5), because it was
inherently unlawful
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other provision of this Agreement, each
party hereto expressly waives any obligation or
duty presently or hereafter imposed by State of
Federal Law on the other party, and
acknowledges and recognizes that no obligation
or duty exists under this Agreement on either
party, to bargain collectively or negotiate with
the other party, or furnish records or
information, over or pertaining to wages, hours,
pensions , insurance of other benefits, terms or
conditions of employment or retirement or any
other matters or subjects whatsoever during the
terms of this Agreement whether or not any
such subject is specifically referred to in this
Agreement or was discussed in the negotiations
concerning this Agreement.
As such a provision would require the Union to
abandon its statutory obligation to bargain
collectively as the representative of the
Respondent's employees, and its right to information
relevant and necessary for the fulfillment of this
obligation,9 the Respondent, in all the circumstances
herein, could not have proposed it in the good-faith
expectation that such a proposal might afford a basis
for the advancement of negotiations.
On December 24, 1964, the Respondent laid off
about 26 of its approximately 50 employees, without
notifying or consulting with the Union. At the
hearing, the Respondent's president testified that he
was confined in the hospital and lacked funds to
continue operations; and the Trial Examiner found
that this constituted an "emergency" and a
"reasonable explanation" of the Respondent's
conduct. We disagree.
Although economic reasons may have existed for
the Respondent's conduct, there is no evidence that
the Respondent became aware of such reasons so
suddenly as to render discussion with the Union
impossible. Moreover, the temporary incapacity of
President Lawrence was no impediment to such
discussion, as he had delegated full authority to
represent the Respondent in its negotiations to Mrs.
Edwin Selvin, and there is no contention that she
was unable to confer with the Union. Indeed, she
met with the Union only 2 weeks before the layoff.
Furthermore, when questioned at the January 13,
1965, bargaining session about this layoff, Selvin
stated that the Respondent would not negotiate with
the Union about the layoff, on the ground that it was
nondiscriminatory, and there was no contract
requiring such negotiations. Moreover, when the
Union demanded that the Respondent agree to
negotiate and consult with the Union on future
layoffs, Mrs. Selvin refused for the same reasons.
We find that the Respondent's conduct in this
respect is a further reflection of its unwillingness to
accord the Union the recognition and representative
status which is its statutory due, as well as being a
breach of its bargaining obligation under the Act.
As found by the Trial Examiner, at the session of
January 13, Mrs. Selvin told the union negotiators
that because of a consumer boycott which the Union
was conducting against the Respondent's
prefabricated construction forms, the Respondent
was discontinuing this portion of its business. At the
hearing, President Lawrence testified that he never
had any such intention. We disagree with the Trial
Examiner's conclusion that this misrepresentation
by Mrs. Selvin had no relationship to the bargaining,
and was an "innocent mistake" which did not
prejudice the Union. Misinformation concerning the
discontinuance of a significant portion of the
Respondent's business, the natural effect of which
would be to weaken the Union's bargaining position
by raising the false spectre of impending layoffs, was
clearly relevant to the issues and demands
presented in the negotiations. We are also
persuaded, particularly in view of the unlawful
conduct found above, and the long experience of the
Respondent's negotiator, that the misrepresentation
was not an innocent mistake.
Accordingly, we find that by its entire course of
conduct as hereinabove set forth, during the period
of negotiations, the Respondent failed to bargain in
good faith with the Union, in violation of Section
8(a)(5) and (1) of the Act.10
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent, set
forth above, occurring in connection with the
operations of the Respondent, have a close, intimate,
and substantial relation to trade, traffic, and
commerce among the several States, and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Architectural Fiberglass-Division of Architec-
tural Pottery , is, and has been at all times material
to this proceeding , an employer within the meaning
of Section 2(2) of the Act.
2. Ventura County District Council of Carpenters
of the United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, is, and has been at all times
material to this proceeding , a labor organization
9 See N.L R B v Acme Industrial Co., 385 U S 432,
Robertshaw Controls Company, Acro Division , 161 NLRB 103;
John S. Swift Company, Inc ,133 NLRB 185
10 Although conceding that the "Union was conscientiously
representing the Company's employees ," the Trial Examiner
suggested that the Board give consideration to the policy involved
in certifying as representative of the Respondent's employees this
Union, which apparently has been conducting a consumer boycott
against one of the Respondent 's principal items of manufacture
We find it unnecessary and inappropriate to discuss the Trial
Examiner's suggestion, as it is irrelevant to the issues presented
in this case.
ARCHITECTURAL FIBERGLASS 241
within the meaning of Section 2(5) of the Act.
3. At all times since October 21 , 1964 , Ventura
County District Council of Carpenters of the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, has been the exclusive representative for
the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment , and other
terms and conditions of employment, of an
appropriate unit of all production and maintenance
employees of the Respondent at its Oxnard,
California , plant , excluding professional employees,
guards, and supervisors as defined in the Act.
4. By unilaterally granting wage increases, and by
failing to bargain in good faith with the Union, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1 ) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
various unfair labor practices affecting commerce,
we shall order that it cease and desist therefrom and
take certain affirmative action designed to
effectuate the policies of the Act. Nothing herein
contained shall be construed as requiring the
Respondent to revoke any wage increase heretofore
granted.
Having found that the Respondent failed to
bargain collectively with the Union in good faith, and
unilaterally granted wage increases, we shall order
that the Respondent bargain collectively in good
faith regarding rates of pay, wages, hours of
employment, and other terms and conditions of
employment, upon request, with the Union, and,
if an understanding is reached, embody such
understanding in a signed agreement.
excluding professional employees, guards, and
supervisors as defined in the Act.
(b) Unilaterally granting wage increases without
consulting and bargaining with the Union, except
that nothing herein contained shall be construed as
requiring the Respondent to revoke any wage
increases it has heretofore granted.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain collectively in good
faith with the above-named labor organization as the
exclusive representative of the employees in the
above-described appropriate unit with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment, and,
if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its plant in Oxnard, California, copies
of the attached notice marked "Appendix."'t Copies
of said notice, to be furnished by the Regional
Director for Region 31, after being duly signed by
the Respondent's representative, shall be posted by
it 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 said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
" In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Architectural Fiberglass-Division of Architectural
Pottery, Oxnard, California, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
concerning rates of pay, wages, hours of
-employment, or other terms and conditions of
employment, with Ventura County District Council
of Carpenters of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, as
the exclusive representative if its employees in the
following appropriate unit:
All production and maintenance employees of the
Respondent at its Oxnard, California, plant,
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended , we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively in
good faith with Ventura County District Council
of Carpenters of the United Brotherhood of
Carpenters and Joiners of America , AFL-CIO,
as the exclusive bargaining representative of
our employees , nor will we unilaterally grant
wage increases without consulting with said
Union ; except that nothing herein contained
shall be construed as requiring us to revoke any
wage increase that we have heretofore granted.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain in good faith
with the above-named Union as the exclusive
representative of all our employees in the
bargaining unit described below with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment, and
embody in a signed agreement any
understanding reached.
The bargaining unit is:
All production and maintenance
employees at our Oxnard, California, plant,
excluding professional employees, guards,
and supervisors as defined in the Act.
ARCHITECTURAL
FIBERGLASS-DIVISION OF
ARCHITECTURAL
POTTERY
(Employer)
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 employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 10th Floor, Bartlett Building, 215 West 7th
Street, Los Angeles, California 90014, Telephone
688-5801.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon the entire record and from my observation of the
witnesses, I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The Company concedes, and I find, that it is a
corporation engaged in the manufacture and sale of
fiberglass forms and garden planters, with its plant located
at Oxnard, California. During the year prior to the
issuance of the complaint the Company sold products
valued in excess of $50,000 to various firms within the
State of California which in turn each sold and shipped
products valued in excess of $50,000 directly to customers
located outside the State of California.
Upon the conceded facts above, I find that the Company
is an employer engaged in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is not disputed and I find that at all times material
herein, the Union is and has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges and the answer denies that the
Company violated Section 8(a)(5) and (1) of the Act by
engaging in surface and bad-faith bargaining and dilatory
and evasive tactics, including the following: (a) granting
and putting into effect wage increases unilaterally without
consulting and bargaining with the Union; (b) effectuating
the layoff of a large number of its employees unilaterally
without consulting and bargaining with the Union;
(c) conditioning the conduct of negotiations upon the use
of a tape recorder by its bargaining agent, Mrs. Edwin
Selvin; and (d) misrepresenting to the Union the nature,
extent, purpose, and effect of a layoff of its employees.
DAVID F. DOYLE, Trial Examiner: This proceeding, with
the parties represented by the counsel named above, was
heard by the Trial Examiner in Los Angeles, California, on
September 28, 1965, and January 18-19, 1966, on
complaint of the General Counsel and answer of the
Respondent. The issues litigated were whether the
Respondent had violated Section 8(a)(1) and (5) of the Act
by certain conduct more fully described hereinafter. i
i In this Decision, Architectural Fiberglass-Division of
Architectural Pottery, is referred to as the Respondent or the
Company, Ventura District Council of Carpenters of the United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, as
the Union; the National Labor Relations Board, as the Board, the
General Counsel of the Board and his representative at the
hearing, as the (,eneral Counsel, and the Labor Management
Relations Act, as amended, as the Act The charge in this
proceeding was filed on January 25, 1965, by counsel of record for
the Union An amended charge was filed by the same counsel on
June 3, 1965, and the complaint was issued by the Regional
Director, Region 21, Los Angeles, California, on June 11, 1965 At
that time, the docket number of the case was 21-CA-6421.
Thereafter, the case was transferred to Region 31, Los Angeles,
California, and was docketed as Case 31-CA-38
At one time, the hearing stood in recess for a considerable time
due to the serious illness of an indispensable and material
witness , Mrs Edwin Selvin
B. Undisputed Facts; Background
It is undisputed that on September 30, 1964, the
Regional Office of the Board, Region 21, conducted an
election in an appropriate unit of employees at the
Company's Oxnard plant. The Union won this election and
thereafter on October 21, 1964, the Regional Director
certified the Union as the collective-bargaining
representative of an appropriate unit consisting of the
Company's production and maintenance employees,
excluding professional employees, guards, and supervisors
as defined in the Act.
1. The meeting of Levy-Lawrence on October 27, 1964,
prior to the bargaining
The General Counsel's examination of Max Lawrence,
president of the Company, later referred to, was quite
restricted in scope, but it was substantially enlarged by the
examination of Lawrence by Levy. Upon examination by
Levy, Lawrence testified that on approximately
October 27, Levy phoned Lawrence and the two men met
at the company offices. This was prior to the beginning of
bargaining. Levy said that he sought this "exploratory"
personal talk with Lawrence because Levy had heard that
Lawrence had retained Mrs. Edwin N. Selvin as labor
ARCHITECTURAL FIBERGLASS
relations consultant, and based on Levy's past experience
with Selvin, this meant that the Company was going to
take a hard-nosed antiunion position in negotiations
inevitably leading to a strike situation. Levy told Lawrence
that at a previous meeting Lawrence had impressed Levy
as not being antiunion minded, so Levy sought to ascertain
Lawrence's feeling in this private talk. Levy then called to
Lawrence's attention that Selvin had an ultraconservative
political philosophy and both men in this conversation
agreed that they did not agree with Selvin's political
philosophy or views. After some discussion, Lawrence
agreed that the Union's proposed contract which Levy had
with him was a basis for negotiation and Lawrence said
that he would at all times control the negotiations and take
Selvin out of the picture This meeting of Lawrence-Levy
ended with Levy agreeing to send Lawrence a copy of a
proposed contract. Lawrence said he received this
contract from Levy, studied it, and turned it over to Selvin,
saying that a contract on working conditions seemed
reachable, but it would be destructive to the Company to
have a union shop.
On November 2, 1964, Levy, counsel for the Union, sent
a letter to Max Lawrence, president of the Company,
which informed Lawrence of the certification of
representative issued to the Union and requesting that
bargaining begin between the parties. This letter also
submitted a draft of a proposed contract which the Union
proposed as a basis for future negotiations. Upon receipt of
this letter Lawrence, in turn, notified Levy by letter that
Mrs. Edwin Selvin was the "official representative" of the
Company in negotiations and that he had forwarded to her
Levy's letter
On November 17, 1964, Levy sent Selvin a letter which
states the following:
... "please submit to us forthwith, so that we may
prepare for negotiations, the following information:
(1) A list of the job classifications within the
bargaining unit.
(2) The wage rate ranges in each job classification,
together with the number of employees in each job
classification, and pay rates received by each
employee.
(3) Job descriptions of each job classification, if the
company has formal job descriptions.
(4) A list of wage increases made by the Company
since the conduct of the election herein, setting forth
in detail the name, job classification, wage increase.
and reason for increase made for each employee.
(5) A full description of all insurance, medical care,
hospitalization, pension or retirement, and benefit
plans or any other fringe benefits which the company
does, either fully or partially, furnish its employees
within the bargaining unit.
Thereafter the representatives of the parties met at four
collective-bargaining sessions, November 25 and
December 9, 1964, and January 13 and March 15, 1965. In
these negotiations, Selvin alone acted for the Company;
the Union was represented by Levy at three meetings and
by one of Levy's law partners, Victor Van Bourg, Esq., at a
single meeting. On these occasions, the legal
representative of the Union was accompanied by Sam
Heil, the Union's business representative. These
representatives of the parties are the only witnesses in this
case. Other evidence is in the form of a number of
documentary exhibits. The testimony of these witnesses
presents one sharp conflict and because of the personal
243
interest of each of the witnesses, the testimony of each
warrants especially sharp scrutiny. Furthermore, on
certain legal aspects of the case, the General Counsel here
based his case on decisions of the Board which have been
reversed by the circuit courts of appeals (C.A. 7 and
C.A. 8). This fact does not bring a confusing element to
this Decision, because for reasons stated hereafter these
decisions are not pertinent to the problems presented
here.
2. The bargaining session of November 25, 1966; Selvin's
tape recorder
On November 25, 1964, the first meeting between the
representatives of the parties occurred. At this meeting,
the Company was represented by Selvin; the Union by
Levy and Business Agent Heil. At the outset, it should be
understood that Selvin has been a labor relations
consultant , active in Southern California labor
negotiations for approximately 25 years. It should also be
understood that her tape recorder, and the recordings
made at bargaining sessions have played a part in other
negotiations and in other Board proceedings. There have
been prior cases before the Board in which Selvin's
counsel has sought to introduce all or portions of some
recordings in evidence. The tapes have usually been
excluded from the evidence as inadmissable for a variety
of reasons. These facts are mentioned only as necessary
background to the full understanding of this issue, the use
of the tape recorder in the instant negotiations.
Abe F. Levy, counsel for the Union, testified that Selvin
and he had agreed to meet at the offices of the Federal and
Conciliation Service, Los Angeles, on November 25, 1964,
for the purpose of beginning negotiations. Through an
error on Selvin's part, no room was reserved at the Federal
office so the negotiations were adjourned to the library of
Levy's law offices. Levy said that during the conversation
about holding the negotiations at his office, Selvin said
that she did not have a clean tape and she would have to
stop to get one. At that point, Levy said nothing about
Selvin's recorder. When the representatives met at Levy's
library, the representatives of the Union were: Levy, Heil,
and another business agent named Harkelroad. Levy said
that in starting the meeting he asked Selvin if she had
brought with her certain documentary information
concerning wage rates, insurance programs, etc., which he
had requested by letter Selvin said that she had, and she
furnished to Levy the requested documents. Selvin also
said that she had secured a tape for the recorder. Levy
then testified as follows, "I asked her whether it was
absolutely necessary that a tape recording be made of the
meeting. I didn't feel that this was conducive to honest,
forthright negotiating, and she said she would not and did
not make it a practice to negotiate without a tape recording
being made. Thereupon, she plugged herself [sic] into our
power source, and we turned on the tape recorder and we
went to work." Levy said that was the only and entire
reference to the tape recorder but that thereafter a tape
recording was made of the entire meeting. In addition to
supplying Levy with the information which he had
requested in his letter, Selvin also submitted to Levy and
Heil written counterproposals on the following subjects:
bargaining; management's retained rights; shop rules.
According to Levy, the representatives of the parties
discussed these proposals with the result that the only
entire sections of the Union's initial proposal'' which were
2 This document is G C Exh 2 in evidence
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accepted by Selvin were the sections dealing with the
preamble, union recognition, and a savings clause. In
rejecting the Union's proposal on union security, Selvin
stated that, "the Company did not desire to propose
membership in the Union as a condition of employment
because the employees would then have loyalty to the
Union rather than to the Company, but this would also
limit the Company's market for hiring new employees, and
the Company would have a threat of work stoppage
hanging over its head all the time."
The above were the main features of this first meeting.
3. The bargaining session of December 9, 1964; the
conflict between Selvin and Van Bourg
on the use of the tape recorder
On the above date, Victor Van Bourg, law partner of
Levy, and Business Agent Heil met with Selvin at the law
offices of the Levy firm. Present also were an employee
named Gibbs and a second business agent named
Harkelroad, neither of whom testified in this proceeding.
Van Bourg testified that the meeting began about 11
a.m. He said that Selvin came in with the tape recorder
and before really identifying herself, plugged the machine
into the power line. Although he had been in collective
bargaining for some 10 years, he had not been confronted
with such a situation before so he asked Selvin what the
machine was. She replied that it was a recording device.
He asked what she was going to record and she replied
that she was "going to record everything that you say."
Van Bourg then asked Selvin, "Will you engage in
collective bargaining today without this machine?" He
explained that he thought that collective bargaining should
take place in an attitude of mutual trust. According to Van
Bourg, at that point Selvin said, "I will not bargain without
this machine." Then he asked Selvin directly, "Are you
conditioning the continuation of the bargaining on the
existence of this machine in this office during these
sessions?" Selvin then replied that she would not bargain
unless the machine was turned on and added that, "You
can file charges against me , if you want, but I will not
bargain without this machine." Van Bourg testified that
Selvin interrupted him frequently as he discussed various
provisions of proposals and was abrupt and brusque with
him. He noticed that she kept turning the machine on and
off so he asked her why she turned the machine off
occasionally if she wanted to record the entire discussion.
She did not answer this question immediately, but toward
the end of the session she said that she wanted the
machine in operation, because she wanted a record of
what was said and done to show that she had bargained,
when and if an unfair labor practice charge was filed
against her. Van Bourg then asked, "Are you already
anticipating that we will file an unfair labor practice
charge?" Selvin said, "That does often happen with me."
Van Bourg then said that the representatives discussed
two basic questions, (1) the terms and conditions of the
proposed contract and (2) the discharge of Gibbs, an
employee who was present in the room. Mrs. Selvin
telephoned an official of the Company and then informed
Van Bourg that Gibbs had been discharged for good
cause and that she was not going to give him any further
information about the discharge.3
3 There is no charge in the complaint relating to the discharge
of Gibbs, so this reference is only for the purpose of giving the
complete picture of the bargaining.
After discussing the situation with the union
represestatives, Van Bourg offered to accept Selvin's
counterproposals if three conditions were met: (1) Marvin
Gibbs to be reinstated; (2) the contract to contain a union-
shop clause; and (3) a 50-cent wage increase to be given to
all employees. Selvin stated that she rejected the proposal
saying that the Company was willing to pay $1.50 for
unskilled labor, and that after training the employees
would advance on a merit basis to the maximum of $2.50
per hour without any automatic raises. As to female
employees, she said that they would start at $1.50 per hour
and advance to $1.60 per hour after 30 days, and $1.70
after 60 days, and after that on merit. There would be no
ceiling on merit raises and no automatic raises.
According to Van Bourg, at this meeting he insisted that
Selvin state why the Company would not accept a union-
security clause in the contract. She said, "We do not wish
to strengthen the Union's position to our detriment."
4. The bargaining session of January 13, 1965
At this meeting Selvin represented the Company and
Levy represented the Union. Also present were Business
Agent Heil and employees Torrez and Olivarez. Levy
testified that as this meeting began he requested Selvin to
negotiate with him concerning the reinstatement of an
employee named Gibbs, who had been fired by the
Company since the meeting of December 19. Selvin said
that she would not discuss the matter but went on to say
that Gibbs had terminated himself; that he had told the
supervisor that he was quitting because he was not
satisfied with the wages and on December 3 he had called
in, saying that he would not be in for work and gave no
reason. On the Tuesday after December 3, he had been
called by the Company and told that he was being
replaced. Levy asked who had replaced Gibbs and Selvin
said that she would get the name of the person and the
date he was hired and forward it to Levy.4 Levy then
stated that the Union had information that there had
occurred "a substantial layoff" in the plant and that the
Union had not been advised of the layoff by the Company
nor had it been "bargained with" or "consulted with" on
the terms and conditions of the layoff, or on the recall of
employees. Selvin stated that the layoff was strictly an
economic layoff and the Company did not negotiate with
the Union about it, or about the recall of employees
because there was no contract requiring that the Company
bargain on that issue. Selvin said that both the layoff and
recall were nondiscriminatory. Levy then inquired why
Olivarez, who was then present, had not been recalled.
Selvin said that she was not aware of the facts of the
situation but she would make a phone call and find out.
After several minutes, she returned to the conference and
said that she had phoned Lawrence, president of the
Company, who had informed her that the people had
been laid off and recalled in order of seniority. Then Selvin
stated that she was taking this opportunity to advise the
Union that there were going to be further layoffs, which
would be caused by the discontinuance of the form
business on the part of the Company; that the Company
had laid off a salesman who had been selling these
prefabricated fiberglass forms which were used in
construction and that the Company was in fact quitting
4 There is no allegation in the complaint of discrimination
against Olivarez . this is mentioned only to afford a complete
picture of the bargaining.
ARCHITECTURAL FIBERGLASS
this business . The representatives of the parties then
discussed the fact that the Company was going out of the
construction -form business . Selvin said that Lawrence had
said that he had run up against the Union on the jobs
where the premade forms were being used, and "he wasn't
going to butt heads with the Union ." Then Levy said that
all the steps which the Union had taken to stop the use of
the premade fiberglass forms on construction jobs were
perfectly legal steps , which it had a right to take ; that the
Union had appealed to the Company's consumers and had
engaged in no picketing which was violative of the Act and
that the Union would continue to take such action. Selvin
said that Lawrence would rather go out of this
prefabricated-form feature of the Company 's business
than have trouble with the Union on every job where the
fiberglass forms were used.
Levy then demanded that the Company negotiate with
and consult with the Union on any future layoffs. Selvin
replied there was no authority in the law requiring the
Company to consult with the Union on economic layoffs,
as long as the Company didn't discriminate for reasons of
union activities , and until such consultation was required
by a contract between the parties , the Company would not
negotiate on such layoffs. Then Levy asked if there was
any change of position on the part of the Company and
Selvin replied that she was offering a management - rights
clause because the Company wished to preserve its ability
to compete . Levy then informed Selvin that the Union had
reached a contract with a company called International
Plastics Co., located in Ventura, which was in the same
geographical area as the Company. At that point, the
representatives of the parties discussed a contract which
the Union had with a company named Kimstock, and the
contract with the International Plastics Co. Selvin agreed
to take these contracts , to study them, and consult her
client about them.
At this point, Levy offered to settle the negotiations on
the basis of Van Bourg's proposal at the prior meeting,
which was (1) the reinstatement of Gibbs, (2) a wage
increase of 50 cents an hour across the board in addition
to the last employer proposal, and (3) acceptance of a
union-security clause in the contract . Selvin replied that
she had rejected this proposal at the last meeting and that
she was rejecting it again for the reasons she had stated
previously. In reference to Gibbs, she said that he had not
been replaced; that his work had been assigned to other
workers who had the time available . This meeting ended
when Levy suggested that the Union submit to Selvin the
International Plastics Co. contract and she submit to the
Union, in writing , the reason for the nonrecall of employee
Olivarez.'
5. The bargaining session of March 15, 1965
At this meeting, which was the last meeting between the
representatives of the parties, Selvin iepresented the
Company and Levy and Heil the Union . At this meeting,
Levy demanded that Lawrence , president of the
Company, or Flanagan , another of its officers, be present
and participate in the negotiations. Selvin replied that she
had been authorized by the Company to represent it and
that the named gentlemen were not experienced
negotiators nor were they temperamentally suited for that
5 While there was discussion at the meetings concerning
employees G ibbs and Olivarez , there is no allegation in the
complaint or claim by the (.eneral Counsel that there was
245
job. Levy then asked if further negotiations were
predicated on the Company' s part on the continued use of
the tape recorder by Selvin. He demanded on behalf of the
Union that the tape recording of the session cease or that
the Union be furnished with copies of all tape recordings
made in previous sessions. According to Levy, Selvin
replied that the negotiations were predicated upon the
continuation of the tape recorder ; she would not negotiate
without the tape recorder being in use and operating and
that she would not allow the Union to have the tapes or
furnish copies of the tapes ; nor would she furnish a
transcript of the tape unless the Union was willing to pay
for the transcribing.
The representatives of the parties then discussed the
agreement of International Plastics Co with the Union
which Levy had sent to Selvin. She stated that the
Company rejected the contract in its entirety as unsuitable
for the Company' s business . Levy then directed the
conversation to the subject of the union-security clause.
Selvin replied , among other things , that the Company had
strong reasons for not granting the union shop. The
Company didn't believe that it had an obligation to recruit
members for the Union. It also experienced a large
turnover of employees and had many temporary
employees ; the union shop would lessen the Company's
pool of persons to be hired , and the only benefit from such
a clause would go to the Union . The Company would not
be serving its own interests in granting such a proposal.
Selvin said that the Company had decided not to engage in
any form of compulsory membership for its employees.
This was the final meeting of the parties.
6. The increase of wage rates to employees
At he hearing, it was stipulated by counsel , and certain
charts in evidence established , that wage increases were
given to the following employees during the payroll period,
set opposite each name . (See chart on p. 246.)
7. The layoff of December 24 and recall of employees on
approximately January 15
It is undisputed that on December 24, 1964, the
Company laid off approximately 26 employees out of its
work force of approximately 50 without notifying or
consulting with the Union about the prospective layoff. It
is likewise undisputed that on approximately January 15,
1965, the Company recalled the employees to
employment.
8. The testimony explaining the conduct of the Company
Mrs. Edwin Selvin testified that she is a labor relations
consultant and was authorized by the Company to
represent it in the negotiations with which we are
concerned. Selvin said that the first meeting of the parties
on November 25, 1964, was scheduled for the office of the
Federal Conciliation Service, but through a
misunderstanding , no room was available for the
representatives at that place . Levy then suggested that
they conduct the bargaining session in the library of his
law firm. At that point , Selvin had opened her tape
recording machine and discovered that she did not have an
anything discriminatory in the mcidents involving these
employees
299-352 0-70-17
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Name Date Amount per hour
Jacqueline Heckman October 31, 1964 1.50 to 1.60
Eva Mallense Octobet 31, 1964 1.50 to 1.60
Louetta Tikkanen November 7, 1964 1.50 to 1.60
Ramon Duenes, Jr. October 31, 1964 1.50 to 1.75
Raymond Neri November 11, 1964 1.70 to 1.80
Carlos H. Chacon November 14, 1964 1.50 to 1.60
Clyde M. Garcia November 14, 1964 1.50 to 1.60
Ernest Olivarez November 14, 1964 1.50 to 1.60
Francisco Perez November 24, 1964 1.50 to 1.60
Francisco Vidalez November 24, 1964 1.50 to 1.60
Margaret A. Smith November 14, 1964 1.50 to 1.60
Nelda S. King November 7, 1964 1.50 to 1.60
Irene M. Cordova November 7, 1964 1.50 to 1.60
Carolyn L. Medlin November 7, 1964 1.50 to 1.60
In the course of his testimony Levy said that no one representing the Union was notified of these
increases until the bargaining session of November 25, 1964.
It was also stipulated by counsel that the following named employees received an increase in
wages as of the date set forth-
Name Date Amount per hour
Tumua Apelu December 4, 1964 1.50 to 1.60
Sam Apelu December 4, 1964 1.50 to 1.60
Dorotha Birch December 24, 1964 1.60 to 1.70
Carlos Chacon December 24, 1964 1.60 to 1.70
Louis D. Chapel December 12, 1964 1.50 to 1.60
Irene Cordova December 12, 1964 1.60 to 1.70
James Freeman December 24, 1964 1.50 to 1.75
Clyde M. Garcia December 12, 1964 1.60 to 1.70
Ida M. Hackerott December 19, 1964 1.60 to 1.70
Nelda King December 12, 1964 1.60 to 1.70
Jesus Lopes, Jr. December 4, 1964 1.75 to 1.85
Marjorie Ann Mack December 19, 1964 1.50 to 1.60
Osofaiga Mist December 4, 1964 1.50 to 1.60
Tuloto Moa December 24, 1964 1.60 to 1.70
Mary Moreno December 4, 1964 1.50 to 1.60
Ernest Olivarez December 12, 1964 1.60 to 1.70
Francisco A. Perez December 12, 1964 1.60 to 1.70
Tony Reyes December 14, 1964 1.50 to 1.60
Mary Torrez December 4, 1964 1.50 to 1.60
John Rudolfo December 4, 1964 1.50 to 1.60
Robert Schommer December 4, 1964 1.75 to 1.85
Dorothy L. Shutt December 12, 1964 1.50 to 1.60
Margaret A. Smith December 12, 1964 1.60 to 1.70
Francisco Vidalez December 12, 1964 1.60 to 1.70
The Union received no notification of these increases until the March 15, 1965 , bargaining session.
ARCHITECTURAL FIBERGLASS 247
unused tape. She explained her dilemma to Levy. Heil,
Harkelroad, and Levy told Selvin that she could obtain a
tape very quickly from a store which was nearby. She
obtained a tape at the store and the representatives of the
parties met at Levy 's law office a few minutes later. She
plugged the recording machine into an electric outlet and
the bargaining session began. Levy had requested the
Company to supply him with the wage rates,
classifications , and a quantity of other information
pertinent to working conditions . These had been prepared
by the Company and at this first meeting, Selvin delivered
the requested data to Levy. Selvin also submitted to Levy
three proposals on the subject of bargaining,
management's retained rights; and shop rules . Thereafter,
the parties discussed the Union ' s contract proposals
paragraph by paragraph and the proposals of the
Company. Selvin said that there was no objection by Levy
in this meeting to her use of the tape recorder.
Parenthetically it may be noted here that the
handwritten notes made by Levy in the course of this
meeting are extensive and referred to most of the
paragraphs of the Union 's proposed contract item by item.
In these notes of the first meeting there is no reference to
any objection by Levy to the use of the tape recorder or
any reference to any conversation about it. The only
reference to the recorder is the words at start of notes,
"Tape recording of mtg made by Mrs. Selvin."s
Selvin stated that all the discussions at this first meeting
took place in an atmosphere of mutual courtesy.
However, according to Selvin, the atmosphere of
courtesy did not exist in her second meeting with
representatives of the Union at which Mr. Victor Van
Bourg was spokesman for the Union. At this meeting,
Selvin hooked up her tape recorder , but as soon as the
meeting opened , Van Bourg made strenuous objections to
the tape recording and he asked Selvin a series of
questions which she believed were directed to entrapping
her. Selvin testified as follows.
He asked me , among other things, what my purpose
was in wanting to use the tape recorder.
And I explained that I had many clients for whom I
bargained , and that this seemed to be the easiest way
for me to keep my notes, and that I used this only for
the purpose of keeping notes. If I had the occasion to
refresh my memory, I just listened to the tape.
He asked if I would supply him with a copy of the
tape-with the transcript , and I said I had no
intention at that time of transcribing it; that I never
did transcribe them unless there was some special
reason for them to be transcribed , and it was a big job.
He said the union would be willing to pay to have it
transcribed , and I said I wouldn't care to turn my
notes over to the Union to be transcribed . And this
was my notes, and I might never-I might have
occasion to go and listen to them.
Many of them I make and put away in a safe, and I
have got hundreds of them that have never been
opened since they were made.
Q. Did Mr. Van Bourg ask you whether the
continuation of the bargaining was conditioned upon
your using the tape recorder?
A. I believe he did. He said words to that effect.
Q. Do you recall what your answer to that was?
A. I said I must have my notes at my meeting.
These are my notes.
I said, "You are making notes, and you have other
people around the table making notes, and I must
have my notes , and these are my notes."
Selvin testified that each time that she was asked the
question-did she condition future bargaining on the use
of the tape recorder-she replied in the same fashion as
stated above . After that , the parties would then resume
discussion on the proposed contract.
In the course of his testimony , Business Agent Samuel
Heil, who was present at all of the meetings , furnished
strong support for Selvin ' s version of the conversation
concerning the tape recorder. Heil testified that at the first
meeting after the representatives of the parties reached
Levy's office, there was some discussion of the tape
recorder . His testimony at this point reads as follows:
A. There was some general discussion as to the
legality and whether they were going to have to put up
with the tape recorder at all of our negotiating
sessions ; that it would be a hindrance.
Q. Who said it would be a hindrance?
A. Mr. Levy.
Q. What did Mrs. Selvin reply to that if anything?
A. She never did give a direct answer. She would
say something to the effect it was not illegal as far as
the Board was concerned , and it was not an unfair
labor practice to use the tape recorder.
As to the second meeting, Heil testified as follows as to
the use of the tape recorder.
Q. What did Mr. Van Bourg say about it?
A. He asked whether they were going to condition
collective bargaining on the use of the tape recorder,
and again , Mrs. Selvin gave the same answer that she
did not give a pat answer insofar as she stated this
was not an unfair labor practice and it was a standard
practice for her to use this tape recorder in her
negotiations.
Mr. Van Bourg said he felt this would impede the
negotiations because we wouldn't have as fair a
discussion as without the tape recorder.
Later the witness testified in regard to the March 15
meeting as follows:
THE WITNESS: Again, I will have to say that Mrs.
Selvin at no time during any of these conversations
would give us an answer as to whether they were or
were not predicated upon the use of the tape recorder,
and she had a pat answer that this was not an unfair
labor practice and she had a right to use it.
Max Lawrence, president of the Company , was called as
a witness by the General Counsel and examined under
Rule 43(B); he was recalled by the Company . Lawrence
testified that there were 26 people laid off by the Company
on December 24, 1964. He said that they were laid off
because he was in the hospital under traction treatment
and could not give his attention to the Company and
because he (the Company ) had run out of money. For some
time after the election , he had stockpiled some products,
but he could not meet the next week's payroll and he
couldn't get out of the hospital, so he had no choice but to
lay the employees off. Later , on approximately January 15,
he received some orders and with the finances of the
Company straightened out, he was able to call the
employees back to work. Lawrence said that both the
layoff and the recall were based only on business
6 Levy 's notes of this meeting are Resp Exh 4 in evidence
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerations; the less-skilled employees being laid off.
As to the wage increases which were given by the
Company during the November-December period,
Lawrence testified that women finishers were hired at a
scale of $1.50 per hour to start; with an automatic increase
to $1.60 after 30 days, and an automatic increase to $1.70
after 60 days. Lawrence explained that there were no
automatic raises for the men who were hired. They were
hired at a flat rate for the job they were to perform.
Lawrence said that some of the women during the period
received their automatic increases and then the Congress
passed the statute which required that men and women
performing the same work be paid the same wage so he
boosted the wages of some men to make them equal to the
wages paid the women. Lawrence testified that all the
raises were given in conformity with the usual and
customary procedure in the plant and without any
discriminatory basis.
In her testimony, Selvin gave a different version of the
conversation in regard to discontinuing the making of
prefabricated construction forms. She denied that she had
ever told Levy that there had been a layoff because the
Company had decided to go out of the fiberglass-form
business. Selvin said that she told Levy that one salesman
had quit because he had run up against the pamphlets of
the Union directed against the premade forms in the hands
of contractors and he felt that he couldn't sell forms in
case of a fight with the Union. Then, in talking to Selvin,
Lawrence, himself, had used the expression that he would
not "knock heads with the Union." Selvin said that she did
not say that this entailed a decision of Lawrence to go out
of the making of construction forms. She said that
Lawrence had determined that he would tell prospective
purchasers of the forms of the union boycott being
conducted against the forms and leave it to the
contractor's judgment, as to whether they would use the
forms or not. Lawrence had determined that he would not
mislead the customers or in any way try to force the forms
on them.
In addition to the affirmative testimony of Selvin and
Lawrence, some discrepancies in the testimony of Van
Bourg and Levy were disclosed, which cast substantial
doubt on the reliability of their testimony. Each of these
lawyers, who are busy practitioners in labor negotiations,
stated that they relied heavily upon notes made at or near
the time of the bargaining meetings for the purpose of
refreshing their recollection. In the course of cross-
examination, notes made by Levy and Van Bourg were
shown to the witnesses, and some notes were offered in
evidence by the Company. Levy's notes for the first two
meetings in which he represented the Company show no
reference to the fact that Selvin refused to negotiate or
conditioned bargaining on the use of the tape recorder. In
Levy's notes, as to the last meeting on March 15, 1965,
there is a reference to the tape recorder. This reference
reads, "I asked if Negs are predicated on her part on
continuing use of tape recorder and demand it cease and
copies of." The reference in the notes ends as quoted.
Selvin's answer is not noted and of course that is an
important item in any such exchange. Surely, Levy was
aware of this, but Selvin's answer is not recorded.
In the course of his testimony, Levy said that before the
' N L R B v American National Insurance Co , 343 U S 395,
410
B N L.R.B v . National Shoes , 208 F 2d 688 (C A. 2), N. L R.B v.
December 9 meeting, he conferred with Van Bourg. He
told Van Bourg to ask Selvin not to use the tape recorder,
and if she persisted in its use, to ascertain if she
conditioned future bargaining on its use. He also told Van
Bourg to discuss the discharge of employee Gibbs and to
again raise the question of the union shop. In his
testimony, Van Bourg testified that he was taken by
surprise when Selvin appeared with the tape recorder, as
he had never encountered such recording of negotiations
before that day. Van Bourg also testified that Levy had
made no suggestions to him about the negotiations prior to
the meeting. Much of Van Bourg's testimony was given in
a most positive manner, and at one point, he testified most
positively that he did not have a pencil with him, and did
not make penciled notes of the December 9 meeting.
However, when his notes were produced at the hearing, he
admitted ruefully that the notes were in fact written in
pencil, and they were made in the course of the
conference.
The above is a summary of the highlights of the
testimony of the principal witnesses presented at the
hearing by counsel for the parties. There was testimony on
other phases of the negotiations but reference to those
have been omitted in the interest of brevity. The Trial
Examiner has considered all the testimony and all the
exhibits in evidence in reaching the ultimate findings
hereafter expressed.
Concluding Findings
The ultimate issue in this proceeding is the good faith of
the Company's representative in these negotiations. The
courts are in agreement that the good faith required of
parties in bargaining negotiations is a "state of mind"
which must be determined by a consideration of all the
pertinent facts in each particular case.7
It has also been stated that "an unpretending, sincere
intention and effort to arrive at an agreement is required
by statute; the absence thereof constitutes an unfair labor
practice."8
Here the General Counsel claims that the Company
engaged in surface and bad-faith bargaining, and dilatory
and evasive tactics as evidenced by four specific acts:
(1) granting and putting into effect wage increases
unilaterally without consulting and bargaining with the
Union; (2) effectuating the layoff of a large number of its
employees unilaterally without consulting and bargaining
with the Union; (3) conditioning the conduct of
negotiations upon the use of a tape recorder by its
bargaining agent, Selvin; and (4) misrepresenting to the
Union the nature, extent, purpose, and effect of a layoff of
its employees.
On the other side of the coin, while an employer is
required to bargain in good faith, the Supreme Court has
said that Section-8(d)"does not compel either party to
agree to a proposal or require the making of a concession"
and that the Board may not "sit in judgment upon the
substantive terms of collective bargaining agreements.""
In addition to the above, the Board and the courts
through the years have created a body of case law
applicable to the conduct of parties engaged in collective
bargaining, which defines the rights and duties of the
parties under certain circumstances. This body of case law
Shannon, 208 F 2d 545 (C A 9), N L R B v.R . D Nesen, 211 F 2d
559 (C A 9).
N.L R B v American National Insurance Co , supra
ARCHITECTURAL FIBERGLASS
is the daily guide of those working in the fields of labor
relations. Lawyers, labor relations consultants, and union
business agents usually try to conduct their labor relations
in conformity with their rights and duties under the Act as
expounded in the Board and the court decisions.
Although the good faith of the Respondent must be
assessed in the light of the totality of the circumstances
surrounding the bargaining, there must be some division of
the facts if each of the specific alleged instances of unfair
labor practices is to be discussed in the light of applicable
cases. For that reason the Trial Examiner will set forth his
conclusions as to the four particulars of the General
Counsel's complaint and then his general finding as to the
good faith of the Company as exemplified in the evidence.
C. The Unilateral Increase in Wages
It is undisputed that during November and December
1964, the Company granted wage increases to its
employees. These increases were given to both male and
female employees. In the course of his testimony, Max
Lawrence testified credibly that some increases were
given to female employees because at the time of hire they
were hired with the understanding that they would start at
an hourly rate of $1.50 per hour; after 30 days they would
be raised to $1.60 per hour; and after 60 days they would
be raised to $1.70 per hour. He said that such automatic
wage increases became due and payable during the period
in question, so the increases were given to the women as
they fell due. He also testified that during this period the
Equal Pay Act 10 was enacted into law and some raises
were given to male employees who were doing the same
work as female employees to equalize their pay. He also
explained that one employee named Neri received a
10-cent-per-hour increase in December because he
was assigned additional duties which made this increase
in the nature of a promotion, in accordance with the long
established practice of the Company. This testimony of
Lawrence is not challanged in this record by any other
witness or any of the exhibits in evidence. Because every
witness in this case has some personal stake in its
outcome, the Trial Examiner subjected each witness to
most careful observation, to glean maximum benefit from
the examination of the demeanor and bearing of each
witness, as the witness was examined and cross-examined.
Lawrence was called in the first instance by the General
Counsel and examined as an adverse witness under Rule
43(b) of Rules of Civil Procedure for the district courts of
the United States. The General Counsel required
Lawrence to produce certain documents pertinent to the
wage increases and the layoff involved, and then
Lawrence's examination by leading questions followed.
When he was called as the first witness Lawrence
exhibited some initial surprise, but answered the General
Counsel's questions intelligently, and with every
indication of candor and truth. I accept Lawrence's
testimony in its entirety because: (1) as a witness his
demeanor and bearing were persuasive; (2) his testimony
is inherently plausible and credible; and (3) his testimony
is consistent with the body of facts which are undisputed
in this record. Furthermore, since a majority of the
Company's employees are members of the Union, the
General Counsel had a large number of persons available
10 Section 6(d)1, Fair Labor Standards Act (29 U S C A. § 206
(d)(1))
ii N.L.R B. v Katz, d/b/a Williamsburg Steel Products, 369 U.S
249
with whom he could check the accuracy and truth of
Lawrence's testimony.
Therefore, I find that the wage increases of late
November-December 1964, were granted to employees for
the reasons stated by Lawrence. Therefore, I must find
that the wage increases do not constitute a violation of
Section 8(a)(5) of the Act, or constitute evidence of bad
faith on the part of the Respondent.
The general rule has long been established that an
increase in wages or other benefit granted to employees
without notice and negotiation concerning the same with
the union representing the employees is a violation of
Section 8(a)(5) of the Act," but, it is equally as well
established that an increase in wages pursuant to a plan,
promise, or agreement of hire made before unionization of
the employees may be paid lawfully after unionization of
the employees occurs, without consultation or bargaining.
In N.L.R.B. v. Southern Coach and Body Co.,12 the court
explains the theory upon which the exception is based. In
its discussion of the Supreme Court's decision in the Katz
case,supra, the Circuit Court has this to say:
However, the Supreme Court clearly indicated in both
the Crompton-Highland and Katz cases that a mere
continuation of the status quo during the bargaining
period cannot constitute a disparagement of the
bargaining process; there must be an actual change in
working conditions. Therefore, as to the three-month
and six-month automatic increases there is no
evidence on which to base a conclusion that section
8(a)(5) was violated.
The Board has recognized this exception to the general
rule for many years. In Briggs IGA Foodliner, 146 NLRB
443, the Board held that the company had not violated
Section 8(a)(5) by unilaterally increasing wage rates when
the company moved into its new store because the record
showed that the company had promised its employees
months before the union appeared on the scene, that these
increases would be made at the time the move to the new
store took place.
In Standard Candy Company, 147 NLRB 1070, the
Board considered the problem of an initial increase in
wages granted to comply with the minimum wage section
of the Fair Labor Standards Act. The Board found that the
employer did not violate the Act in granting wage
increases unilaterally to bring the wages of employees to
the minimum standards, but the employer did violate the
Act by unilaterally granting increases that exceeded the
minimum rate, without consulting the union.
Under those circumstances, the Company was not
required to notify or bargain with the Union before it
complied with the mandate of the law. Therefore, upon the
basis of the undisputed and credited testimony of
Lawrence, I find that the Company was not required by
law to bargain with the Union before granting the pay
raises of November-December 1964.
D. The Refusal to Bargain About the Layoff of
December 24
Upon a consideration of all relevant evidence on this
point , I find that the Company' s failure to bargain with the
Union about the layoff of December 24 was not an act of
bad faith. It is undisputed on this point that on
736
12336F2d214(CA 5)
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 24, 1964, the Company laid off all employees
except those key employees who would be necessary to a
reopening of the plant at a later date. On this point
Lawrence testified, and his testimony is uncontradicted in
this transcript, that on December 24, 1964, he was in the
hospital under traction and the Company had run out of
funds to continue its operations . It had insufficient funds
to meet the next payroll, so most employees were laid off.
Approximately 3 weeks later, on or about January 15, all
the employees laid off were rehired and operations at the
plant were resumed. In the course of negotiations Levy
asked Selvin about employee Olivarez who allegedly was
not recalled. However, there is no mention in this
complaint of any discriminatory layoff or discriminatory
failure to recall any employee. The General Counsel cites
as a basis for his contention on this point, Southern Coach
and Body Co., 141 NLRB 80. That case states the
following:
The principle is well established that layoffs and
recalls of employees come within the term "working
conditions" and are, therefore, mandatory subjects for
bargaining . Although the privilege of deciding that an
economic layoff is required belongs to the employer,
absent an emergency or other reasonable explanation,
it is the employer's duty at least to notify and discuss
with the employees' representative the methods of
selecting employees to be laid off before the event
takes place. [Emphasis supplied.]
On the basis of his undisputed testimony, I must find that
Lawrence's confinement in the hospital and the
Company's temporary lack of funds certainly constituted
"an emergency" and his recital of these facts is certainly a
"reasonable explanation " of his conduct. From the
foregoing, I conclude that there is no evidence of bad faith
in this action of the Company.
E. The Incident of the Tape Recorder
On this point I credit the testimony of Selvin and Heil,
both of whom appeared to be truthful and accurate
witnesses, and reject the testimony of Levy and Van
Bourg. Both the last-named witnesses readily admitted
that they testified mainly from notes which they said were
made during or near the time of the meetings. As
illustrated in the recital of testimony and evidence
heretofore, each of these witnesses were shown to have an
unclear memory of, or insufficient notes as to, certain
portions of their testimony. Both Selvin and Business
Agent Heil were in agreement that when the union
representatives pressed Selvin for an answer as to whether
she would continue bargaining without the use of the tape
recorder, that she gave them a pat answer that she always
used the tape recorder, that it was her manner of taking
notes, and that the Board had never forbidden such use of
the tape recorder. Therefore I find the facts to be as
testified to by Selvin and Heil. In one aspect of this
statement of Selvin, she is correct-there is no case that
the Trial Examiner has found, or that has been cited to him
by the General Counsel in his brief, to the effect that the
use of a tape recorder by one of the parties to collective
bargaining for the purpose of refreshing the parties'
personal recollection at a later date and as a means of
taking personal notes has ever been passed upon by the
Board. The General Counsel claims that the Board's
decision in Southern Transport, Inc., 150 NLRB 305,
affords a basis for a finding that such use of the tape
recorder inhibits the free discussion which should take
place in bargaining negotiations . This argument the Trial
Examiner must reject because there is no similarity
between the facts of the two cases. 13 In the cited case the
Board and the court dealt with the question of whether an
employer violated Section 8(a)(5) of the Act by
conditioning further bargaining negotiations with the
union on the presence of a court reporter paid by the
employer to make a binding verbatim record of the
negotiations which would be the stipulated and sole record
of the bargaining. That is a far cry from this case, in which
the representative of the Union used a tape recorder as a
means of taking personal notes , for use only by herself and
the company officials.
When all the evidence on this point is considered, it
becomes clear that Selvin did not at any time refuse to
bargain , or condition bargaining on her use of the tape
recorder, nor did she suspend the negotiations which
appear to have been very brief and comprised of only four
bargaining sessions . On the other hand, it is undisputed
that the Union suspended negotiations when it sought the
intercession of the Board by filing its charge. If we review
the conduct of the union representatives it is clear that as
early as October 27 the Union was skeptical, to say the
least, about bargaining with Selvin. On that date Levy
tried to oust Selvin from her retainer as negotiator for the
Company in his private talk with Lawrence. Thereafter, it
is clear that the Union was determined to force Selvin into
a statement as to whether she conditioned bargaining on
the use of the tape recorder or not. After only one meeting
at which the proposed contract of the Union had been
discussed paragraph by paragraph, the use of the tape
recorder by Selvin had attained paramount, transcending
importance. At the second meeting, the Union offered to
accept Selvin's counterproposals if three conditions were
met: (1) Gibbs reinstated; (2) the contract contain a union-
shop clause; and (3) a 50-cent increase for all employees.
Selvin countered this offer by saying that the Company
would pay $1.50 per hour for unskilled labor and that after
training , the employees would advance on a merit basis to
$2.50 per hour without either automatic raises or any
ceiling on merit increases . On the money proposals the
parties had, at that point , made some progress. The
problem of the union shop was unresolved. At the last
meeting the union representatives swung back to the
union shop question, and when Selvin restated her
opposition, the union representatives went back to the
tape recorder proposition and bargaining ended.
From a consideration of the four brief bargaining
sessions it is clear that when the Union wanted to discuss
any question, the tape recorder did not prevent discussion.
At one point, the Union asked for a copy of the tape, or a
transcription of the tape. These requests imply that the
use of the tape recorder did not actually inhibit bargaining,
and that if the Union had a copy of the tapes it would have
no objection to the recorder's use.
Upon all the evidence on this point I find that Selvin did
not condition bargaining on the use of the tape recorder to
make her notes
13 Note that N L R B v Southern Transport, Inc , 355 F.2d 978
(C A 8), reversed the Board and refused enforcement of the
Board's order
F
ARCHITECTURAL FIBERGLASS
F. The Alleged Misrepresentation by Selvin, the Union's
Conflict ofInterest
This contention of the General Counsel is most curious
and it puts in focus an element of the case, which, in my
opinion , warrants the attention of the Board.
The testimony establishes without room for doubt that
the Union , acting on behalf of its members, engaged in the
construction industry, had conducted a consumer boycott,
accompanied by picketing against the Company and its
product, the prefabricated construction forms. From the
evidence it is clear that the consumer boycott had been
successful to some degree , and the Company had been
forced to curtail its manufacture of that item. The claim of
the Union that Selvin said that the Company had gone out
of this business of making construction forms relates to
that feature of the union -company relationship, the
consumer boycott, and appears to have no relationship to
the bargaining here. In this case , presumably , the Union
was conscientiously representing the Company's
employees , and not exploring the results of its consumer
boycott on behalf of its members in the construction
industry.
Upon a consideration of the evidence on this point, I find
that the alleged misrepresentation by Selvin was an
innocent mistake in interpreting Lawrence 's phrase that
he was not going to "butt heads with the Union." I am not
sure whether Selvin misinterpreted Lawrence, or the
union representatives misinterpreted Selvin, suffice it to
say that I find that this misunderstanding on a matter only
remotely connected with the bargaining was not evidence
of bad faith on the part of the Company . Further, in the
light of Lawrence ' s testimony as to the layoff of
December 24, 1964 , I cannot perceive how or where the
Union was prejudiced or disadvantaged by the
misunderstanding.
In conclusion , I find that the General Counsel has failed
to prove by a preponderance of the evidence that the
Company committed the unfair labor practices alleged in
the complaint . The basic inadequacy which I find with the
proof submitted is, that it does not go far enough . In each
case of the General Counsel's four specific failures to
bargain , he presents only a prima facie case, the bare fact
that the Company did this or that on a certain date. In each
case, the Company presented substantial evidence which,
if accepted by the Trial Examiner , constituted a defense to
the prima facie case . I found Lawrence and Selvin to be
most credible witnesses . This finding was based on the
fact, largely, that the General Counsel neither in the
course of cross-examination or by affirmative evidence,
disproved or cast doubt upon the facts testified to by these
two witnesses . On one point , Business Agent Heil
supported the testimony of Selvin rather than that of the
union representatives . In cases involving allegations of
unfair labor practices , the intial burden of proof is on the
General Counsel. He must establish a prima facie case.
When and if the Respondent introduces substantial
evidence to explain or rebut the General Counsel 's case,
then the ultimate burden of proof is on the General
Counsel to establish by a preponderance of the evidence
that the unfair labor practices have been committed. In
this respect , I find that the proof introduced by the
General Counsel to support the allegations of the
complaint is insufficient . On all the particular items
251
Respondent has introduced substantial credible evidence
explaining and rebutting the General Counsel's prima
facie case I am sure that the General Counsel made
adequate investigation, but if that is all the proof he has of
the alleged unfair labor practices, it is not sufficient to
fulfill his duty as to the weight of the evidence.
In conclusion I might also say that the representatives of
the Union by their conduct, demonstrated that they began
negotiations with the utmost distrust and pessimism.
Before negotiations began Levy sought to oust Selvin from
her retainer as the Company's representative. Thereafter,
Levy and Van Bourg seemed to be as intent on making a
record for the purpose of prosecuting Selvin for the use of
her tape recorder as in attempting to reach agreement on a
contract. While it may be true that Levy's experience in
bargaining with Selvin in the past was a basis for his
pessimism about the fruitfulness of the bargaining here, he
had no alternative but to bargain in good faith and by
exhibiting good faith, put Selvin's good faith to the test.
Selvin in the past may have taken a,hard-nosed antiunion
position in other bargainings, which led Levy to fear the
worst in this bargaining, but that did not justify Levy and
Van Bourg in curtailing their good-faith bargaining in favor
of making a case against Selvin Here, the parties met on
four occasions only, and at two of the meetings, little
discussion, except for the tape recorder, took place. In this
record, it appears that Selvin stood ready to bargain at all
four meetings. Levy and Van Bourg may have speculated
or been fearful that the bargaining would not be fruitful,
but speculation and fears are not evidence, and by their
conduct here, the representatives of the Union did not
really put Selvin's good faith to the acid test, which would
disclose the sham in Selvin's conduct, if any existed.
Therefore, I find that the General Counsel has failed to
prove by a preponderance of the evidence that the
Respondent committed the unfair labor practices alleged
in the complaint.
It is also recommended to the Board that it give
consideration to the policy involved in issuing its
certification of representative to the Union for the
employees in the appropriate unit, of the Company's
employees. It appears that the Union has been conducting
a consumer boycott against one of the principal items of
manufacture of the Company which, if successful, will
substantially curtail the extent of the Company's business
and in all likelihood force the Company to reduce the
number of its employees by the number engaged in this
manufacturing process. Thus, it is clear that the consumer
boycott is inimical to the interests of the employees in the
appropriate unit. However, the Union must take this
position because it represents the large number of its
members employed in the construction trades. In these
days, when a conflict of interest on the part of legislators
and public officials is a matter of the gravest national
concern, it would seem to be questionable that the Union
could fulfill its duties to each of the groups of employees
whose interests are in conflict.
RECOMMENDED ORDER
For the reasons stated above, it is ordered that the
complaint herein be, and hereby is, dismissed in its
entirety.