Ken's Building Supplies

KEN'S BUILDING SUPPLIES 235 Kenneth B. McLean d/b/a Ken 's Building Supplies and General Drivers & Helpers Union , Local 332 International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. Case No. 7-CA-3830. April 24, 1963 DECISION AND ORDER On February 7, 1963, Trial Examiner James A. Shaw issued his Intermediate Report 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 Intermediate Report. There- after, the General Counsel filed exceptions and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. 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 In- termediate Report, the exceptions and brief, and the entire record in the case. We find merit in the General Counsel's exceptions and ac- cordingly adopt the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent with this Decision and Order. 1. We agree with the Trial Examiner that the Respondent, by uni- laterally instituting in February or March 1962 the Blue Cross hospitalization plan for its employees without prior consultation with the Union, violated Section 8(a) (5) and (1) of the Act.' Following the Board-conducted election, the Union on October 13, 1961, was certified by the Board as the exclusive bargaining repre- sentative of "all yardmen, truckdrivers and helpers" employed by the Respondent at its Flint, Michigan, plant. The first bargaining session was held on November 21, 1961. The Union presented to Respondent McLean a so-called "model" contract, which, inter alia, provided for health insurance under the Teamsters plan. McLean said that he would consider the union demands and agreed that the men should have some type of hospitalization insurance. At the next bargaining session held on December 12, McLean offered to contribute $3 per ' We deem it unnecessary to decide whether the unilateral grant of wage increases of 5 cents to employees Swanson and Crago in the circumstances was violative of Section 8(a) (5). The increases were far below the Respondent's wage-raise offer to the Union on December 12, 19G1, and appear not to have been motivated by a desire to undermine the Union's status as the exclusive representative. 142 NLRB No. 13. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week for each employee toward health insurance under the Teamsters plan, and to pay $1.80 per hour as wages, but refused to pay any overtime. McLean also agreed to enter into a contract similar to the Union's contract with Builders' Wholesale Company. Business Agent LeBrecque said that he would talk to the employees and advise McLean of their reaction to the offer. The Trial Examiner found that neither LeBrecque,2 nor Business Agent Meints, who in February 1962 took over the "McLean account," ever informed McLean of the employees' reaction to the offer and that the Union did not seek another bargain- ing conference with McLean until July 3, 1962. In the latter part of February 1962, employee Ryan had a telephone conversation with McLean, then on vacation in Florida. At the sug- gestion of Clyde Backus, another employee who was standing by, Ryan told McLean that "if he [McLean] will give us Blue Cross and our uniforms that we will forget about the Union." McLean said, "Fine," and that he would attend to this matter after he returned from Florida. The Blue Cross hospitalization insurance became effective on March 12. The Union was not consulted. At the hearing and in its brief to the Trial Examiner, the Respond- ent sought to justify the unilateral grant of the Blue Cross hospitali- zation benefits on the ground that it was the employees themselves, not McLean, who had initiated the matter; and that McLean, not having heard from the Union for more than 3 months, was justified in assuming that the Union lost interest in the matter and that he was free to accede to the request of the employees. We see no merit in this contention. After the Union had been certified as the exclusive representative of the employees in the appropriate unit, the Respond- ent was under an obligation to bargain with respect to the terms and conditions of employment with the Union and no one else. There- fore, the Respondent's direct dealings with the employees in this case resulting in the grant of Blue Cross benefits were in derogation of the Union's position as the exclusive representative of the employees 3 and constituted a refusal to bargain within the meaning of Section 8 (a) (5) and (1) of the Act 4 The matter of health insurance and Mc- Lean's offer to contribute $3 per week for each of the employees to- ward insurance under the Teamsters' plan was still under considera- tion by the Union. By its unilateral action in establishing the health 2 The Trial Examiner rejected LeBrecque's testimony that he met with the employees to discuss the McLean offer and that some time in January 1962 he telephoned McLean that the employees had rejected the offer. The Trial Examiner credited McLean 's denial that he had such a conversation with LeBrecque. 8 As employee Ryan credibly testified, he and Backus , in return for the Blue Cross benefits, promised McLean "to forget about the Union " * N.L.R.B. v. Katz d/b/a Williamsburg Steel Products Co., 369 U.S. 736, May 1962, where a unilateral change in sick leave benefits was found to be a violation of Section 8(a) (5) of the Act since a change in sick leave benefits had been proposed by the Union and the Respondent's unilateral action inhibited and obstructed useful discussion of the issue. See also D.S. Sonic8 Corporation, 312 F. 2d 610 (C A. 1). KEN'S BUILDING SUPPLIES 237 insurance benefits under the Blue Cross plan, the Respondent con- fronted the Union with the accomplished fact, and thus inhibited any further discussion on the subject. Nor did the lapse of some 3 months without an answer to the Mc- Lean's offer of December 12, 1961, justify an assumption that the Union had abdicated its responsibilities as the exclusive agent and that from then on the Respondent was free to deal directly with the employees regarding this matter. The certification had still some 8 months to run and the delay in communicating with the Respondent with respect to this matter did not preclude the Union from doing so at some future time within the certification year.5 2. We find, in disagreement with the Trial Examiner, that by refus- ing on and after July 11, 1962, to meet and negotiate with the Union with respect to the terms and conditions of a collective-bargaining agreement, the Respondent violated Section 8(a) (5) and (1) of the Act. The record is clear that the Union in July 1962 made serious efforts to resume bargaining negotiations. On July 3 Business Agent Meints wrote McLean inviting him to a meeting to be held on July 11, and, if the proposed date was not convenient to McLean, asking him to con- tract Meints. Not receiving an answer, Meints wrote on July 13 to McLean again inviting him to a meeting to be held July 19. Both let- ters were admittedly received by McLean and ignored. In an effort to arrange a conference, Business Agent LeBrecque on July 19 and Busi- ness Agent Meints on July 22 had telephone conversations with Mc- Lean. On both occasions McLean flatly refused to attend any meeting and negotiate further with the Union. McLean sought to justify his refusal on two grounds: (a) the certification year had run out, and (b) the Union no longer represented a majority of his employees. The first ground is, obviously, without merit. The Union had been certi- fied on October 13,1961, and in July, when McLean ignored the Union's, invitations to confer with the Union' the certification had 3 more months to run. The second contention is equally untenable. The record contains no conclusive evidence that the Union since the certi- fication had lost its majority status.' Regardless, however, of the ac- tual majority status of the Union at that time, it is now well settled 6 Shannon & Simpson Casket Company, 99 NLRB 430, enfd . 208 F. 2d 545 , (C.A. 9), where the Board held that the alleged loss of interest in employees by the union was no defense to a unilateral wage increase within 6 months of the certification even assuming that the union 's representatives failed to contact the employer for over 3 months after the initial conference. See also: United States Gypsum Company, 94 NLRB 112, enfd. 208 F. 2d 545 ( C.A. 9), where the employer sought to justify the unilateral wage increase 3 months after the certification because of the union's delay in beginning contract negotiations. G The only evidence on this issue is that the number of the employees in the unit had increased from three at the time of the election to six at the time of the hearing; and McLean's uncorroborated testimony that he "knew" that some of the new men did not want the Union. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, absent unusual circumstances, an employer must bargain with the union for a period of 1 year from the date of the certification.7 Nor do we agree with the Trial Examiner's apparent conclusion that because of the Union's conduct the Respondent iv as relieved from its obligation to meet and negotiate with the Union during the balance of the certification year. The Trial Examiner found that after the December 12, 1961, bargaining session, at which McLean made his offer and agreed to sign a contract similar to that which the Union had with another lumber company, neither Business Agent LeBrecque nor Business Agent Meints, who in February of 1962 took over the "McLean account," made any serious efforts until July 1962 to com- municate with McLean and arrange for a new conference. Assuming, that, as the Trial Examiner has found, the Union was "lax and negli- gent" in this respect, and that the Union's conduct during this period was "adverse to the interest" of the employees concerned, such conduct is no defense to the Respondent's refusal to meet and negotiate with the Union on and after July 3,1962, when the certification had 3 more months to run .8 THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act, we shall order that it cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. Additional Conclusions of Law 1. All yardmen, truckdrivers, and helpers employed at the Em- ployer's Flint, Michigan, plant, excluding salesmen, office personnel, and all supervisory personnel, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. 2. At all times material herein, the Union has been and continues to be the exclusive bargaining representative of all the employees in the aforementioned unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other condi- tions of employment. 'Ray Brooks V. N.L.R.B., 348 U.S. 96; Henry Heide, Inc., 107 NLRB 1160, enfd. 219 F. 2d 46 ( C.A. 2), cert. denied 349 U.S. 952. See also Ridge Citrus Concentrate, Inc., 133 NLRB 1178, where a decertification petition filed during the certification year was asserted as a reason for the refusal to bargain. 8 Cf. Motor Valve & Manufacturing Company v. N.L.R.B., 149 F. 2d 247 (C.A. 6) enfg. 58 NLRB 1057 , where the Board and the court held that the failure of the union to start bargaining negotiations for 3'/2 months after the certification did not justify the employer's refusal to bargain during the balance of the certification year. See also, United States Gypsum Company, supra, where the Board rejected the Respondent's argument that it was "justified in ignoring the statutory representative because of the union 's delay in bargain- ing negotiations." KEN'S BUILDING SUPPLIES 239 3. By refusing on and after July 11, 1962, to meet further and ne- gotiate with the Union as the exclusive representative of its employees in the aforesaid unit, and by unilaterally adopting in February 1962 a hospitalization plan for its employees, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 4. By the aforesaid refusal to bargain with the Union, and by uni- laterally instituting a hospitalization plan, the Respondent has inter- ferer with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Kenneth B. McLean d/b/a Ken's Building Supplies, Flint, Michigan, his officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain with General Drivers & Helpers Union Local 332, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., as the exclusive repre- sentative of his employees in the unit found to be appropriate for the purposes of collective bargaining. (b) Instituting changes in the terms and conditions of employment in the appropriate unit, such as a hospitalization insurance plan, with- out first consulting with and bargaining with the aforementioned exclusive representative. (c) In any like or related manner interfering with, restraining, or coercing his employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act : (a) Upon request, bargain collectively in good faith with General Drivers & Helpers Union Local 332, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., as the exclusive bargaining representative of his employees in the unit found to be appropriate, and, if an understanding is reached, embody such understanding in a written agreement. (b) Post at his plant in Flint, Michigan, copies of the attached notice marked "Appendix."' Copies of such notice, to be furnished by the Regional Director for the Seventh Region, shall, after being 9 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 "Pursuant to a Decision and Order," the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by him for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to his employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that such notices are not altered, defaced, or cov- ered by any other material. (c) Notify the Regional Director for the Seventh Region, in writ- ing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 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 institute changes in the terms and conditions of employment in the appropriate unit herein without first con- sulting with and bargaining with General Drivers & Helpers Union Local 332, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., as the certified exclusive representative of such employees. WE WILL, upon request, bargain collectively in good faith with the aforementioned labor organization, as the exclusive bargain- ing representative of our employees in the unit found by the National Labor Relations Board to be appropriate for the pur- poses of collective bargaining, and if an understanding is reached, embody such understanding in a written agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guar- anteed in Section 7 of the Act. KENNETH B. MCLEAN D/B/A KEN's BUILDING SUPPLIES, 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. Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan, 48226, Telephone No. 963-9330, if they have any question concerning this notice or compliance with its provisions. KEN'S BUILDING SUPPLIES 241 INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed July 27 and August 7, 1962, by General Drivers & Helpers Union, Local 332, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Ind., herein called the Union, the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Direc- tor for the Seventh Region, issued his complaint dated August 30, 1962, against Kenneth B. McLean, d/b/a Ken's Building Supplies, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) and (5) and Sec- tion 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. With respect to the unfair labor practices the complaint as amended at the hear- ing, alleges in substance that the Respondent, commencing on or about January 27, 1962, and continuing to date has engaged in conduct violative of Section 8(a)(1) and (5) of the Act.' In due course the Respondent filed its answer in which it alleged in substance that: (1) the Respondent's business operations were not subject to the jurisdiction of the Board; and (2) it had not engaged in conduct violative of the Act. Since a considerable portion of the record herein is devoted to the vo- cifierous objections of counsel for the Respondent to the Board's assertion of juris- diction over the operations of the Respondent the Trial Examiner will dispose of this issue in the section of this report styled "The Respondent's Business." Suffice it to say at this stage of the report that the Trial Examiner has carefully considered this particular issue and that his findings are predicated upon the record considered as a whole. Pursuant to notice a hearing was held in Flint, Michigan, on October 25 and 26, 1962, before Trial Examiner James A. Shaw. All parties were represented by counsel. Full opportunity to be heard, to examine, to cross-examine witnesses, and to introduce evidence was afforded all parties. At the close of the hearing the General Counsel moved to amend the complaint to conform to the proof minor matters such as names, dates, and the like. The motion was granted. Counsel for the Respondent moved to dismiss the complaint in its entirety, primarily on the grounds that the General Counsel had failed to prove that the Respondent had engaged in the alleged unfair labor practices by a preponderance of the evidence adduced at the hearing herein in support of his case-in-chief; ruling thereon was reserved by the Trial Examiner; it will be disposed of in due course. After disposing of the above motions the Trial Examiner advised counsel for the parties regarding their rights to engage in oral arguments in support of their respective positions, only counsel for the Re- spondent availed himself of this opportunity. Thereafter the Trial Examiner ad- vised the parties regarding their rights to file briefs in support of their respective positions. On or about November 20, 1962, the Trial Examiner received briefs from counsel for the Respondent and the General Counsel, which he has carefully considered in the light of the record as a whole. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS As indicated above the Respondent in its answer denies that it is engaged in com- merce within the meaning of the Act. Consequently this issue was litigated at the hearing herein. From what the Trial Examiner is able to glean from the record the Respondent had a direct inflow of goods and materials of $41,808.98 and an indirect inflow of $81,227, purchased through or from local brokers and distributors, but manufactured or produced outside the State of Michigan. The record shows that the Respondent is engaged in the building supply business. For the most part it deals with building contractors, and home builders, to whom it sells such materials as lumber, roofing, insulating materials, bathroom fixtures, alu- minum siding and other items used in the construction industry. According to McLean's credible testimony he considers his business as "wholesale," and not retail. As a matter of fact he testified in substance that he was not interested in the "retail" sale of his materials to individuals, but preferred dealing with persons engaged in 1 See infra in re the designation of January 27, 1962, as the date the alleged unfair labor practices commenced. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the construction of homes and the like. Even so the Respondent does sell some of its merchandise at retail and is required to collect a 4-percent sales tax on its retail sales and file a return with the Michigan sales tax department. Such sales however constitute an infinitesimal fraction of the Respondent's total sales, which, according to McLean, amounted to approximately $325,000 per year, at times material herein. From all of the foregoing the Trial Examiner finds that the Respondent is engaged in a nonretail operation or business which has an annual inflow of goods and materials from States other than the State of Michigan valued in excess of $120,000.2 The Trial Examiner is convinced and finds upon the record considered as a whole that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act? II. THE LABOR ORGANIZATION INVOLVED Upon the record considered as a whole the Trial Examiner finds that General Drivers & Helpers Union, Local 332, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , Ind., is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background As the Trial Examiner sees it no proper understanding of the issues herein could be had without a resume of the relations between the Respondent and the representa- tives of the Charging Union prior to January 27 , 1962. As indicated above the issues herein concern alleged violations of Section 8(a) (5) and ( 1) of the Act. Specifically, the complaint alleges that the Respondent ". . . commencing on or about January 27, 1962, and continuing to date, the Charging Party has requested , and is requesting, Re- spondent to bargain collectively with respect to rates of pay, wages , hours of employ- ment, and other terms and conditions of employment, as the exclusive collective bar- gaining representative of all the employees of Respondent . . ." in the unit appropriate for collective bargaining ; and that since on or about January 27, 1962, the Respondent has refused to, and continues to refuse , to bargain with the Charging Party, that is the Union, as the exclusive bargaining agent for the employees in the unit found appropriate herein below. In addition the complaint alleges certain specific acts of the Respondent as violative of Section 8(a)(5) and (1) of the Act, all of which will be disposed of below. The Union started its organizational campaign among the Respondent 's employees sometime in the early part of September 1962. Shortly thereafter it filed a Petition for Representation, Case No. 7-RC-5010 . On September 18, 1962, the parties entered into an "agreement for consent election." An examination of the agreement shows that it was signed by K. B . McLean , as "owner" of Ken's Building Supplies and "Ted" LeBrecque, as the representative of the Union. Further examination of the consent election agreement shows: 12. THE APPROPRIATE COLLECTIVE BARGAINING UNIT All yardmen and truck drivers and helpers employed at the employers Flint Michigan plant. Excluding salesmen, office personnel, and all supervisory per- sonnel, as defined in the Act. Pursuant to the above agreement, an election by secret ballot was conducted under the supervision of the Regional Director of the Seventh Region of the Board on October 4, 1961. The tally of ballots shows that there were three employees in the appropriate unit and that there were two votes for the Union, and one against it. There were no challenged ballots. On October 13, 1962, the Union herein was certified by the Regional Director for the Seventh Region as the exclusive representa- tive of all of the employees in the appropriate unit. At this point the Trial Examiner finds that: All yardmen and truck drivers and helpers employed by Respondent at its place of business in Flint, Michigan, exclusive of salesmen , office personnel , and all supervisory personnel , as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. As indicated above there were three employees in the appropriate unit at the time of the election. The record shows that they were, Kenneth Carl Ryan, Clyde Backus, The record shows a direct inflow of $41, 808.98, and indirect Inflow of $81,227. 3 See Sientons Mailing Service, 122 NURB S1. KEN'S BUILDING SUPPLIES 243 and Carl Swanson, all of whom testified at the hearing herein. The record also shows that they had been in the employ of the Respondent for at least a year before the election and at all times material herein. The sole purpose of the Trial Examiner's comment at this stage of the report will be apparent below in his findings regarding the credibility of the testimony of Ryan concerning one of the important issues herein. After the election was over LeBrecque, the union representative, had a conver- sation with McLean in which he requested a meeting with him to discuss the terms and conditions of a collective-bargaining agreement. McLean agreed to meet with him and told him to "call me and let me know," when he wanted the meeting .4 The first meeting of the parties for the purpose of negotiating a contract was held on November 21, 1961, at the union hall. In the interim, that is from the date of the election on October 4 to November 21, 1961, several incidents occurred which the Trial Examiner feels should be discussed and disposed of in this stage of the report as a part of the "background" that led up to the issues we are concerned with herein. According to LeBrecque he met with the employees on at least two occasions after the election, October 12 and 24, 1961, and discussed with them their problems, and in particular, their desires regarding wages, hours, and other conditions of employment. From what the Trial Examiner is able to glean from the record McLean also talked to the employees after the election, and before he met with LeBrecque on Novem- ber 21, 1961, to discuss the terms of a contract. The most important testimony was that of Kenneth Carl Ryan, a long time employee of the Respondent, and one of three employees who voted in the election on October 4, 1961.5 According to Ryan, McLean came to him and requested that he find out what the "fellows wanted" and why they wanted the Union and "... . to see if we couldn't make some kind of an agreement without having the Union in there." He further testified that he went to the employees and talked to three of them and asked them what they wanted. In the course of his testimony he only named one employee, Dale Ackerman, who was employed at the time as a helper. The gist of his testimony regarding what the employees wanted was a hospital plan, wage increases, and the trucks "fixed up." McLean denied Ryan's testimony about what was said in the above conversation. In addition he testified that he had ". . . never talked to Mr. Ryan to tell the em- ployees to do anything or give me anything. His testimony was as follows: Q. (By Mr. ORTLIEB.) Now, you remember Mr. Ryan's testimony about a conversation he said he had with you about two weeks after the election? A. Yes. Q. Now when was that conversation? A. About two weeks before the election. Q. It was two weeks before the election? A. Yes. Q. Did you at any time tell Mr. Ryan to go talk to the employees and try and influence them into an action to frustrate the union? A. Since the election, I have never talked to Mr . Ryan to tell the employees to do anything or give me anything . [Emphasis supplied.] Obviously the Trial Examiner is now confronted with a credibility problem about the foregoing conversation . The resolution of such issues are always difficult, par- ticularly where both witnesses, by their demeanor, impress the trier of the facts as basically honest and truthful persons. Even so, such issues must be resolved. That the Trial Examiner shall do, and let the chips fall where they may. Upon the record considered as a whole the Trial Examiner is inclined to and does credit McLean's denial that he made the remarks attributed to him by Ryan about ". . . having the Union in there." His reasoning is predicated upon the follow- ing: In the first place the Trial Examiner is convinced that there was a conversation between Ryan and McLean at about the time in question, 2 weeks after the election, or on or about October 18, 1961 . Since the election was on October 4, 1961, and the Union was certified by the Regional Director of the Seventh Region on Octo- ber 13, 1961, then the conversation would have been at least 5 days after a copy of the certification of the Union had been served upon the Respondent , that is McLean. In such circumstances the Trial Examiner is convinced and finds that McLean was well aware of the status of the Union at the time he had the above conversation with Ryan and was concerned solely with matters that his employees , acting through their k Quotes from LeBrecque's testimony. G See supra in re Ryan. 712-548-64-vol. 142-17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certified bargaining agent, the Union herein, would demand at the upcoming bargain- ing sessions between himself and LeBrecque. It also must be borne in mind that McLean had entered into a consent-election agreement, and presumably was well aware of the obligations that would be bestowed upon him in the event that the Union won the election and was thereafter certified as the exclusive bargaining agent for his employees. Consequently there would be no point in requesting Ryan to find ways and means to "keep the Union out" when its status was already an accom- plished fact within his own peculiar knowledge by placing his signature on the agree- ment for a consent election. In any event the remarks attributed to McLean by Ryan, whether they occurred before or after the election on October 4, 1961, were made before January 27, 1962, and would not in any event be violative of Section 8(a) (1) and (5) of the Act. The sole purpose of this issue and other incidents that occurred prior to that date is to give us a picture of what transpired before the alleged issues herein occurred . In other words, "what is past is prologue" and in order to understand the present we should "Study the Past." 6 This brings us up to the meeting between McLean and LeBrecque on November 21, 1961, at the union hall, in Flint, Michigan. The parties met and discussed the de- mands of the employees that had been made to LeBrecque in his conferences with them prior to the meeting. There is little if any dispute in the record as to what transpired at the meeting. Both LeBrecque and McLean testified that the meeting was on a friendly basis and consisted for the most part of a discussion of a "model contract" that the Union had with other employers engaged in the same type of busi- ness as McLean, such as lumberyards, and the like. Since LeBrecque's account of the meeting is about the same as McLean's, the undersigned feels that the following excerpt from his testimony in this regard would be helpful to all concerned herein: Q. Would you state to the best of your recollection the-what was said by you and what was said by Mr. McLean? TRIAL EXAMINER: What happened? The WITNESS: Well, I had the original demands of the employees, and I presented these to Mr. McLean, which were a model contract and a schedule "A" covering the majority of the lumber yards and places-business places doing the same type of business as Mr. McLean. I presented this to him, as our original demands. He went through the contract article by article, the model contract. The only exception that he had to the model contract was concerning the trucks. We have definite language in a contract whereby a man can refuse a truck if it is not up to the state recommendation. He said his men were tearing up the trucks, and he couldn't afford to keep them up. I told him it would be to his advantage, as well as the men's advantage, that trucks were kept up in top condition. He informed me also that he couldn't afford to pay the rates as called for in Schedule "A," but that he would take this with him and check into all aspects of it to see if he had any more exceptions than this. He agreed at that time the men should have some type of insurance. As to what type, I told him what was available under the Teamsters' plan, which varies from three to five dollars per week per employee. Q. (By Mr. MCCORMICK.) What kind of a plan is this? A. It is a health and welfare plan, insurance hospitalization. Q. Did he take any position concerning that plan? A. He did take a position, saying they should have some type of hospitaliza- tion. As to what type, we never decided that. Q. Do you recall anything else from that meeting? A. No, that was the crux of that meeting. The next meeting between the parties was held on December 12, 1961 , at the union hall. According to LeBrecque they discussed the Union's proposals back and forth and McLean offered to pay $3 per week for each employee on a hospitalization plan sponsored by the Union ; and $1.80 per hour, but refused to go. along with the Union's proposal as to overtime pay. The record clearly shows that there was discussion back and forth and that McLean agreed to some of the Union's proposals and re- jected others. Insofar as the Trial Examiner is concerned there was "good faith" bargaining on the part of both LeBrecque and McLean at the meeting. Further evidence of McLean's cooperative approach to a solution of the differences between the parties regarding a contract between the Union and himself will be discussed below. Suffice it to say at this stage of the report that here lies the crux of the case. 8 Quotes from the legends at the entrance to the Archives Building In the Nation's Capital, Washington, D.C. KEN'S BUILDING SUPPLIES 245 LeBrecque on cross-examination testified that at the meeting on December 12, 1961, he and McLean discussed a contract that the Union had with the Builder's Wholesale Company, which was engaged in the same sort of business; and that McLean said, in substance that it "was his desire" to have a contract with the Union "similar to it." The upshot of the meeting, according to LeBrecque, was that McLean agreed to pay the employees in the unit $1.80 per hour, $3 per week for each employee on a health and welfare plan, but no overtime for over 40 hours per week. With this offer they adjourned the meeting and LeBrecque told McLean he would talk to the employees and advise him later of their reaction to his offer. This was the last meeting between LeBrecque and McLean for reasons which will be discussed below. Suffice it to say at this stage of the report that the "McLean account" was taken away from LeBrecque and assigned to one Norman Meints, another business agent for the Union, sometime around the latter part of February 1962. Let us now look at McLean's account of what transpired at the December 12, 1961, meeting Though there is little variation between McLean's account thereof and that of LeBrecque, nevertheless the Trial Examiner is convinced that McLean's testimony is the clearer of the two, and more to the point, for that reason the excerpt therefrom follows: Q. Did Mr. LeBrecque at this December 12th meeting report to you that he had talked with the employees? A. Yes. Q. Did he make demands? A. He did not make demands, no. Q. Now do you recall his testimony that you offered to pay three dollars per week per employee for insurance benefits? A. Yes. Q. Did you offer to pay this? A. Yes. Q. Do you recall his testimony that you offered to pay $1.80 an hour? A. No, I don't recall that, because the amount of money involved in Builders Wholesale contract it was $1.80, it would be a $1.80, if that is what it was, but I think it was $1.85. Q. You think it was $1.85? A. Yes. Q. Was there a discussion about the terms of the contract the union had with another employer? A. Yes. Mr. BIXLER: These are rather leading and there are certainly a lot of con- clusions. Why don't you ask what he said and what did he say? Mr. ORTLIEB: I thought this would be more orderly. TRIAL EXAMINER : Overruled. Q. (By Mr. ORTLIEB.) Did you discuss the contract they had with Builders Wholesale? A. Yes. Q. You knew about that contract? A. Yes. Q. What did you say, if anything, with regard to that? A. I said I didn't see no reason why I should pay any more than what they were. Q. Are you in a similar business? A. Yes. Q. Are you a competitor of Builders Wholesale? A. Some items. Q. Did you make an offer to the union at this meeting of the 12th, December 12th? A. Yes, I make an offer to pay the same as Builders Wholesale. Q. Your offer was to enter into an agreement with them, the same type that Builders Wholesale had? A. Yes. [Emphasis supplied.] McLean further testified that after he had told LeBrecque that he would enter into an agreement with the Union similar to the one it had with the Builders Whole- sale that he " ... said he would have to talk it over with the men and he would let me know." 7 7 Quotes from McLean's credible testimony. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition to the foregoing, McLean again agreed to accept the Union's proposal of a health and welfare plan for the employees. We now come to a phase of the case at hand that has caused the Trial Examiner considerable concern, primarily because the union representative relied upon it as an explanation or an excuse for their own shortcomings in handling the affairs of the employees in the appropriate unit over the months from December 1961 to July 1962. The Trial Examiner has reference to McLean's absences from his place of business during the winter of 1961-62. According to McLean he customarily spent considerable time in Florida during this period, primarily because of his wife's health, and had been doing so for at least 5 years before the Union entered the pic- ture i His testimony stands uncontradicted and undenied in the record and is fully credited by the Trial Examiner. At the hearing herein he testified that he was away from his place of business during this period for the following periods of time. 1. Left for Florida, December 21, 1961 and returned to Flint, Michigan, around January 15, or 16, 1962. 2. Left for Florida, around February 9, or 10, 1962, and returned to Flint, Michigan, around February 26 or 27, 1962. 3. Was in Florida, most or nearly all of March, 1962, except the last week of March. 4. Went back to Florida, around April 1, 1962, and stayed one (1) week, and stayed in Flint, Michigan until May 9, or 10, 1962. 5. Flew down to Florida, around May 9 or 10, 1962, to attend his step- son's wedding, and returned the same or next day. From all of the foregoing the Trial Examiner finds that McLean was available for meetings with the union representative during the major portion of December 1961, January and February 1962, and the last week of March 1962. McLean further testified without contradiction that he kept in touch with his office by telephone regularly and was available at all times should either his office or anybody else desired to communicate with him during the period in question. That this is so will be apparent below in the Trial Examiner's disposal of one of the most important issues herein. He has reference to McLean's conversation with two of his employees, Ryan and Backus, in February 1962, which will be discussed and disposed of below. We now come to another important issue herein: The activities of LeBrecque after his meeting with McLean on December 12, 1961. As pointed out above LeBrecque told McLean in substance that he would inform the employees of his offer to sign an agreement similar to the one the Union had with "Builders Wholesale," and other matters that were discussed at that meeting. LeBrecque's testimony concerning his activities after December 12, 1961, is to say the least, most confusing. For example at one point he testified that he met with the employees on December 21, 1961, at which time he told them of McLean's offer and that they rejected it. At another time he testified that he tried to get in touch with the employees and was unable to contact any of them except Backus, whom he saw on three or four occasions and tried to set up another meeting ". . with the employees." He also testified that he tried to get McLean several times on the telephone but was unable to do so except on one occasion in the latter part of January 1962. He could not recall the exact date. It is LeBrecque's testimony, when considered in the light of the testimony of the employees in the appropriate unit, who testified at the hearing herein, and Mc- Lean's flat denial that he had such a conversation with LeBrecque in January 1962, that has not only gravely concerned the Trial Examiner, but also perturbed him no end.What perturbs the Trial Examiner is LeBrecque's testimony that his attempts to contact McLean were always by telephone. The record shows that McLean's place of business is within the city limits of Flint, Michigan, and only 21 or 3 miles from the Union's office. There is no substantial evidence in the record that either LeBrecque or any other representative of the Charging Union herein ever took the trouble to drive out to the Respondent's place of business and talk to the office per- sonnel about McLean's whereabouts at the times they were unable to contact him by telephone. While to some this observation may seem frivolous and beside the point, nevertheless it is little things such as this that are at times most persuasive to some of us in arriving at a solution of the issues we are confronted with. So is it here and in similar cases, where the principal issues is (in the final analysis) equitable in na- ture, and subject to the age old maxim "That he who seeks equity must do equity." Further comment will be found below in another section of this report. 8 See the testimony of Kenneth Carl Ryan at R-247 In re McLean's trips to Florida. KEN'S BUILDING SUPPLIES 247 As indicated above McLean denied that he talked to LeBrecque in the latter part of January 1962. In fact he testified that he did not talk to him after the meeting on December 12, 1961, until July 19, 1962. LeBrecque's relations with McLean after the meeting on December 12, 1961, are well summed up in the following excerpt from McLean's testimony on direct examination at the hearing herein. Q. Well, after that meeting which was on December 12th, when did you ever hear from Mr. LeBrecque again? A. I never did until in a telephone conversation of July 19th. Q. Did you hear Mr. LeBrecque's statement that he talked with you on the phone in January of 1962? A. Yes, I did. Q. Do you deny this? A. I deny that. Q. It is your testimony that you never again talked with Mr. LeBrecque, until this phone conversation on the 19th? A. Except one morning I met him in a restaurant-I didn't meet him. I was in having coffee in a restaurant. Q. You are going to have to speak up louder. A. I was in a restaurant having coffee and he was in there also and he said hello and wanted to know how business was going and that was just a brief conversation, and that was the first time I had seen him since the last meeting we had in December. Q. When was this, do you remember? A. I would say probably in April. Q. April? A. Yes. Q. And this was just a chance meeting? A. Yes. Q. I take it that you didn't discuss any union? A. No. Q. You did not? A. No. Q. I want you to search your memory and I am going to ask you again. You had no telephone conversation with him in the month of January? A. No. Q. Or February? A. No. Q. And the next conversation other than the one you had with him in the coffee shop was not until July, is that correct? A. Yes. [Emphasis supplied.] After long and careful consideration the Trial Examiner credits McLean's testimony and discredits that of LeBrecque, and finds that no such conversation occurred. Sev- eral factors have persuaded the Trial Examiner in rejecting LeBrecque's testimony. The first is the fact that LeBrecque testified that he made notes on a "desk calendar" of important telephone calls, "things to do" and the like as a part of his daily routine. This calendar was in the possession of the General Counsel at the time LeBrecque testified at the hearing herein, and in fact certain pages therefrom were given to counsel for the Respondent who offered them in evidence at the time he had LeBrecque on cross-examination. They were admitted by the Trial Examiner without objection and are in the exhibit file as Respondent's Exhibits Nos. 1, 2, 3, and 4. In view of LeBrecque's testimony that he kept a record of important calls and the like, presumably, if he had made a call as important as the one at issue herein, he would have made some reference to it on the calendar. Though such reasoning borders on conjecture and speculation nevertheless it does raise a question of doubt as to the accuracy of LeBrecque's memory of the purported call to McLean. A further factor is the fact that shortly after the alleged telephone call, the "McLean" account was taken away from LeBrecque for reasons that will be discussed below. Suffice it to say at this point that it was because, to use the phraseology of Meints the business agent that succeeded him, "Mr. LeBrecque didn't seem to be getting any place with it." To the Trial Examiner, at least, this is an indication that even to his colleagues, LeBrecque had been somewhat lax in handling the McLean account.9 The record shows that LeBrecque had been a business agent for only a short period of time when he was assigned the McLean account. In addition he serviced around 15 other accounts, at times material herein, in which several hundred employees were involved. In the circumstances his handling of the McLean account is understandable. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And, finally, the most persuasive factor of all is that three of the employees in the appropriate unit testified at the hearing herein, and not a single one was interrogated about the meeting that LeBrecque mentioned in his alleged conversation with McLean. The reason that this factor disturbs the Trial Examiner is that both LeBrecque and McLean testified that the latter offered to pay the employees $1.80 per hour at the December 12, 1961 meeting. Since this was a substantial increase to each of them it is indeed most baffling that they did not mention this factor in their testimony at the hearing herein, particularly Ryan and Backus, who testified regard- ing the dissatisfaction of the employees with their working conditions around the middle of February 1962. As the Trial Examiner sees it if the employees had been informed of McLean's offer by LeBrecque then it is reasonable to assume that they themselves would have exercised their rights long before the charges were filed herein by expression of some kind to their "exclusive bargaining representative." Since the record is barren of any action on their part, the Trial Examiner, quite frankly, is con- vinced that LeBreque did not keep them fully informed of his efforts on their behalf with their employer, McLean, the Respondent herein. The incident that the Trial Examiner has reference to will be fully discussed below. As indicated above the General Counsel offered the testimony of several of the Respondent's employees at the hearing herein in support of his "case-in-chief." Among those who testified were Kenneth Carl Ryan and Clyde Backus. The primary purpose of their testimony was to support the allegations in the complaint regarding certain unilateral action taken by the Respondent without prior consultation with the Union, particularly; (a) "changed existing working conditions of employment by instituting a hospitalization plan for the employees in the unit . . . ' "and paying the premiums therefor." 10 Ryan testified inter alia that sometime in February 1962 that he went into the office "to get warm" which was the custom, and that while he was there McLean called from Florida and talked to the "office girl," Theda Cummings. As the Trial Exam- iner interprets Ryan's testimony, particularly in the light of the whole record, he was in a position to hear her entire conversation with McLean. According to Ryan he overheard Miss Cummings tell McLean that ". . . they were having trouble with the boys." At this point McLean requested her to put Ryan on the telephone, which she did. What transpired and was said during the course of that conversation is best told in the following excerpt from Ryan's credible testimony: Q. You talked to Mr. McLean? A. Yes. Q. What was said? A. He asked me what the trouble was up there, and I told him about the guys, having trouble with the guys. Q. You told him about having trouble with the guys? A. Yes. Q. What did you say? A. About refusal, and while we was talking about the trucks and so forth, about what the guys were hollering about. Q. Well, what did you say? What did you say to him? TRIAL EXAMINER: Tell us what he said and what you said. THE WITNESS: Well, he asked me what the trouble was, and I told him the guys just didn't want to work with the situation like it was. "The guys don't want to work with the situation like it is, with the trucks being in bad shape, and no Blue Cross, and stuff like that", and then he came in-Clyde come in-and he said to tell the old man- Mr. ORTLIEB : Objection. TRIAL EXAMINER: Overruled. THE WITNESS: Clyde says, "Tell the old man if he will give us Blue Cross and our uniforms that we will forget about the union". TRIAL EXAMINER: Go ahead. THE WITNESS: So I told Mr. McLean over the telephone, and he said, "Fine," and he said, "We will get the Blue Cross started when I come back from Florida," and that was in February. Q. (By Mr. MCCORMICK.) Did he mention the Blue Cross and uniforms? A. Yes. Q. Did he say anything about the uniforms? 10 See paragraph 11(a) of the complaint. KEN'S BUILDING SUPPLIES 249 A. Yes, he said he would go along with that deal . So when he come back, well, we got our Blue Cross and we got our uniforms. [Emphasis supplied.] Before proceeding further regarding the above conversation the Trial Examiner desires to point out that the "Clyde" referred to in the foregoing excerpt from Ryan's testimony, was Cylde Backus. Ryan testified later on that Backus' statement about the Blue Cross and other benefits ". . . came right out of a clear blue sky, . .." and that there had been no discussions between them before the above conversation took place. Ryan's testimony regarding the above incident was corrobrated by that of Clyde Backus and McLean. The upshot of the foregoing was that McLean , upon his return from Florida, sometime around the latter part of February 1962, got in touch with the "Blue Cross" and entered into a . hospitalization agreement with it for the employees that became effective March 12, 1962. The record shows that neither McLean nor any of the employees in the appropriate unit notified or consulted the Union regarding the installation of the Blue Cross hospitalization plan at any time material herein. In other words McLean took the foregoing action without prior consultation with the Union, the certified bargaining agent. At this point the Trial Examiner desires to point out that the record shows that the employees in the appropriate unit had discussed with McLean their desires for a Blue Cross hospitalization agreement for several years before the Union entered the picture. In fact both Ryan and McLean testified in substance that they had discussed the plan with a representative of the Blue Cross shortly before the Board election on October 4, 1961. The gist of their testimony was that the Blue Cross representative told them that the plan would not be available to the employees if the "Teamsters" won the election, because it had its own program, and for that rea- son the Blue Cross plan was not acceptable to it. The record contains considerable testimony regarding McLean's purchase of uni- forms for the employees sometime in either January or February 1962. Though the General Counsel does not allege in the complaint that his action was violative of Section 8(b) (1) of the Act and indicia of the Respondent 's bad faith, neverthe- less he does refer to it in his brief . Even so the Trial Examiner is convinced that since the record clearly shows that Ryan and the other employees acquired the uni- forms on their own initiative without consultation with either McLean or the Union, and for other reasons set forth in the record , that this incident to too picayunish to merit further discussion herein. Suffice it to say that 1962 was a cold winter and the jackets the employees rented served a useful purpose, regardless of the fact that McLean voluntarily assumed their cost after he was informed of their action. The complaint further alleges that the Respondent engaged in unilateral action violative of Section 8(a)(5) and ( 1) of the Act by granting wage increases to its employees . The record shows that the Respondent did grant wage increases to two of its employees, Carl Swanson and John Crago under the following circumstances: According to the credible testimony of Carl Swanson the Respondent granted him two increases in pay of 5 cents per hour sometime during the winter and spring of 1962. McLean admitted he gave Swanson the raises without prior consultation with the representatives of the Union . He advanced as one reason for granting the first raise was because Swanson got married and he thought a raise would help him out a bit, particularly in view of the fact that there were several garnishments pending against him. In other words a "wedding present" is what it amounted to. There is no dispute about this issue, and the Trial Examiner finds that McLean, that is the Respondent herein, granted Carl Swanson a "unilateral wage increase" without discussing the matter with the Charging Union. As to Crago, McLean admitted he gave him a 5-cent per hour raise sometime in June 1962 without consultation with any of the representatives of the Union. The Trial Examiner finds that the Respondent granted a "unilateral " wage increase to John Crago without prior consultation with the Union . McLean testified in sub- stance that the reason he granted the increase was because Kenneth Ryan, told him that Crago was a good worker. At this point the Trial Examiner desires to point out that at times material herein Swanson's hourly rate of pay, before he was granted the wage increases referred to above was $ 1.45 per hour, and at the time of the hearing herein , $ 1.55 per hour. In the considered opinion of the Trial Examiner this factor should be considered in assaying the overall picture of the relations of the parties between the date of the election, October 4 , 1961 , and the filing of the original charge herein on July 26, 1962. This is of particular importance in view of LeBrecque's testimony that he 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told the employees sometime after the December 12, 1961, meeting of McLean's offer to sign an agreement similar to the Builders Wholesale contract and that they rejected to the offer. The importance of LeBrecque's testimony is that the record shows that the Builders Wholesale contract with the Union called for a $1.80 per hour rate for the employees, which in the case of Swanson alone would have meant an increase of 35 cents per hour at times material herein. This is the sort of testi- mony that has greatly perturbed the Trial Examiner in resolving the issues as to credibility that he has been confronted with herein, and quite frankly the principal reason he rejected LeBrecque's testimony that he discussed McLean's offer of Decem- ber 12, 1961, with the employees, and later notified McLean of their rejection of said offer. The Trial Examiner has pointed out above that LeBrecque was taken off the "McLean account" sometime around the middle of February 1962, and that it was turned over to Norman S. Meints, another business agent for Local 332. The record shows that one of the reasons for assigning the "account" to Meints was because he was servicing several others at the time that involved employers whose business opera- tions were similar to that of the Respondent herein. Meint's testimony of his rela- tions with McLean and the employees in the appropriate unit will be discussed and disposed of below. Insofar as the Trial Examiner is concerned Meints' testimony is of the utmost importance, particularly when considered in the light of the record as a whole, regarding the role of the Charging Union herein as the certified and exclusive rep- resentative for the purposes of collective bargaining of the Respondent's employees in the unit found appropriate for that purpose. From what the Trial Examiner is able to glean from Meints' testimony he took over the "McLean" account sometime in the latter part of February or early in March 1962. He spent the first 3 or 4 weeks trying to get the employees in the unit together for a meeting to discuss their problems. The record is none too clear as to when and where this meeting was held. As a matter of fact the record is most barren in this regard despite the fact that all of the employees who were in the appropriate unit at the time the election was held on October 4, 1961, testified at the hearing herein, Ryan, Backus, and Swanson. Of the three, only Ryan testified con- cerning meetings with Meints. According to Ryan there was a meeting of the employees with Meints sometime in the spring of 1962 ". . . over at the Clark Gas Station next door to us." He placed the time of this meeting as sometime in the late spring of 1962.11 Meints further testified that he called the Respondent's office 8 or 10 times after he took over the account and was unable to get in touch with McLean until some- time in the latter part of July 1962. He further testified that he sent a letter to McLean sometime in June 1962 in which he requested a meeting at the union hall to discuss contract negotiations. McLean testified that he never received the letter in question but that he did receive two letters from Meints at a later date regarding meetings at the union hail.12 The first of these letters was dated July 3, 1962. It is set forth below: JULY 3, 1962. KEN'S BUILDING SUPPLY, 4040 N. Dort, Flint, Michigan. DEAR SIR: This letter is to inform you that there will be a meeting on Wednesday, July 11, 1962, at 10:00 A.M. at the Union Hall, 116 Pasadena Ave., Flint, Michigan to discuss contract negotiations. If this date is not satisfactory, please contact me at the Union Hall so an- other date may be agreed upon. Thank you. Yours truly, NORM MEINTS, Business Agent. McLean acknowledged receipt of the above letter, and admitted in his testimony at the hearing herein that he never replied to it nor called at the union hall on the date suggested by Meints. "The record is so vague in this regard that it is almost impossible to make a definite finding as to the date except that it was before a meeting at the union hall, sometime in June 1962. 12 Dleints was unable to produce a copy of the June 1962 letter at the hearing herein. KEN'S BUILDING SUPPLIES 251 On July 13, 1962, Meints wrote the Respondent again. It is likewise set forth below: JULY 13, 1962. KEN'S BUILDING SUPPLY, 4040 N. Dort Hwy., Flint, Michigan. DEAR SIR: There will be a meeting at 10 : 00 A.M. on Thursday, July 19, 1962, at this Local Union's office for the purpose of negotiating a collective bargaining agreement with your company. If we do not hear from you by Thursday, July 19, 1962, we will interpret this as a refusal to bargain. Yours truly, NORM MEINTS, Business Agent. N.M/rc Reg. Mail-Ret. Rec. Req. McLean admitted that he received the above letter and that he neither replied to it nor called at the union hall on the date set forth therein. The reasons advanced by McLean for ignoring the Union's letters will be discussed below. On July 14, 1962, Meints went on vacation and did not return until July 21, 1962. Before he left he designated Robert Roach , another business agent for Local 332, to handle the McLean account. This brings us up to July 19, 1962, the date that McLean was requested to meet with the union representatives and "negotiate" a collective-bargaining agreement. What transpired on that date follows below: Roach called McLean on July 19 from the union hall. LeBrecque was with him when he made the call . Roach did not testify at the hearing herein , consequently the only witnesses as to what transpired and was said by the persons involved in this important incident would be LeBrecque and McLean. Their testimony will be dis- cussed and disposed of below. The record shows that Roach called McLean on the telephone from the union hall on July 19, 1962. LeBrecque was seated nearby. During the conversation be- tween Roach and McLean, LeBrecque asked Roach if he could talk to McLean. LeBrecque's account of what was said during the conversation is best told in the following excerpt from his testimony: Q. What was said during that conversation? A. I asked him why he didn't want to come down and have further negotia- tions. He said that our certification , our year's certification, had run out. And I told him that he was misinformed ; there were still quite a few months left as far as the year was concerned . He said, "Well, I am not coming down." I said, "Well, why aren't you coming down?" and he said, "Because I don't have to bargain with you," and he said , "Do whatever you want to do." I said , "Well, I will guarantee that we intend to do something about this," and he said, "Well, strike me, then. I don't care," and that was the end of the conversation. McLean's version of the incident was as follows: He testified that Roach insisted that he come over to the union hall and sign a contract and that he refused to do so for the following reasons: Q. (By Mr. ORTLIEB. ) What was Mr. Roach's attitude? A. Well, he demanded more or less that I get over there and sign a union contract. Q. Were those in substance his words? TRIAL EXAMINER : What did he say to your best recollection? The WITNESS : Well, to my best recollection the conversation was longer than that but to remember it word for word, I could not. TRIAL EXAMINER: Well, in substance. The WITNESS : It was like that, and I said I wasn't going to come over and sign the contract. As far as I was concerned, I had more than three men that originally voted for the union and I know some of them didn 't want the union and therefore I wasn't going to come over and sign a contract. TRIAL EXAMINER: All right. Q. (By Mr. ORTLIEB. ) Mr. Roach was talking in terms of signing a con- tract? A. Yes. Q. Was he talking in terms of sitting down and bargaining about a contract? A. The word bargaining was never mentioned. Q. The word was attributed to you by Mr. LeBrecque's testimony that you stated "I don't have to bargain with you." Did you use those words? 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. No, I didn't use the word "bargain" because it is not ordinarily in my vocabulary. Q. So you were asked to come over to the union hall and sign a contract? A. Yes. The Trial Examiner feels that the following excerpt from McLean's credible testi- mony should be inserted herein for the reason that in his considered opinion it not only sums up the situation herein, but illustrates the difficulties he has been faced with in arriving at his ultimate disposition of the issues herein, particularly when viewed in the light of the plain language of Section 8(d) of the Act. TRIAL EXAMINER: That is the first you had talked to the union man since when? The WITNESS: Since December 12th. Q. (By Mr. ORTLIEB.) Of 1961? A. 1961. TRIAL EXAMINER: What was that date in July again? Mr. ORTLIEB: July 19th. The WITNESS: July 19th. Q. (By Mr. ORTLIEB.) Now, from December 12th to July 19th did you receive an answer to the offer you had made back on December 12th? A. No. Q. Your testimony is you were never given an answer to that offer? A. Yes. McLean in the course of his testimony of what transpired on July 19, 1961, testified that Roach's attitude irritated him because, " ... He told me about getting over there and sign a contract and I told him I didn't have to come over there and sign a contract." 13 As indicated above Meints was on vacation from July 14 to 21, 1962. He returned to work on Monday, July 23. He testified that either on July 23 or 24, he called McLean and had the following conversation with him: Q. (By Mr. McCoRMICK.) I will ask you to repeat what you said. I think you have only given one statement. A. I said I called him up, talked to him, and asked him if he was willing to come down to the union hall to negotiate a contract for his men, for his employees. Q. Was there any more to the conversation? A. Oh, yes. Q. Just relate the conversation. A. He said no, and I asked him why not, and he said, "You do not represent the majority of my men," and I said, "I'm sorry, sir, but we are certified by the National Labor Relations Board, and we are both compelled to bargain with good faith on a contract," and he said, "It is my understanding that your .certification has run out," and that he was not going to come down and nego- tiate a contract, so I asked him why-I asked him why again. I repeated it. TRIAL EXAMINER: Speak up. The WITNESS: I asked him why again, and he repeated his statement that I did not have a majority of his men, and if I didn't like it. I could put up a picket line. Q. (By Mr. MCCORMICK.) Was that the entire conversation? A. No. I told him then, "It is not our custom to. put up a picket line every time an argument arises," and inasmuch as we were certified by the Labor Board that I would file charges if he refused to come down and bargain, and he said, "You can put up a damn picket line, if you want to." TRIAL EXAMINER: He said what? The WITNESS: That I could put up a damn picket line if I wanted to. Q. (By Mr. MCCORMICK.) During any of your- A. Could I- Q. Is there more? A. Yes. I also told him before we hung up if at any time he changed his mind and wanted to come down and negotiate a contract with me that I would be more than happy to do so, at any time. Q. Is this the only time you ever talked to him after you were assigned to the case? A. Yes. [Emphasis supplied.] 13 Quotes from McLean's credited testimony. KEN'S BUILDING SUPPLIES 253 McLean flatly denied that he had the above conversation with Meints. Moreover he further testified that he had never talked to Meints "in my life" over the telephone.14 In view of McLean's denial it is obvious that the Trial Examiner is again faced with another credibility issue. After long and careful consideration the Trial Examiner is convinced that Meints did talk to McLean on or about the date in question. In the circumstances he credits Meint's testimony in its entirety and dis- credits McLean's denial thereof. Quite frankly McLean's testimony regarding what transpired on July 19, and regarding the Meint 's testimony is very confusing. For example McLean in the course of his testimony regarding the July 19 , 1962, incident testified as follows: Q. Then did Mr. LeBrecque cut in or come in on the conversation? A.Yes, the last of it. Q. Pardon me? A. Yes. Q. Now what was the substance of that conversation? A. Well, it practically was the same thing what Meints said in his statement. The Trial Examiner is convinced that McLean was a bit confused about the Meints conversation. Though McLean, in the main, impressed the Trial Examiner as an honest witness, nevertheless he cannot and does not credit his testimony re- garding the above conversation . Singularly, enough the foregoing excerpts from McLean's testimony regarding the similarity of LeBrecque 's conversation with him with that of ". . what Meints said in his statement," is at little variance with McLean's own testimony as to what was said in his conversation on July 19, 1962, with Roach and LeBrecque . In the circumstances , despite all the confusion the record clearly shows that there was such a conversation and that McLean 's testimony is at little variance with that of LeBrecque's and Meints'. In other words Meints' testimony, insofar as the issues herein are concerned is about the same as that of LeBrecque and McLean regarding the purpose of the telephone calls and McLean's reaction to the requests of the union agents in the telephone calls discussed above. On July 26, 1962, the Union filed the original charge herein. The Trial Examiner desires to point out that from what he has been able to glean from the records the only representative of the Charging Union herein who ever called at the Respondent 's place of business from the date of the election, October 4, 1961, to at least the date of the hearing herein was Roach. The record shows that he called at the plant sometime in June 1962 and posted a notice to the employees of a meeting that was to be held at the union hall at a later date. The record also shows that the only time that McLean saw LeBrecque after their meeting on December 12, 1961 , was when they met by chance in a restaurant several months later. On this occasion there was merely an exchange of greetings and no conversation between them about any of the issues herein. Another factor herein that has perturbed the Trial Examiner is the testimony of LeBrecque and Meints to the effect that they were unable to reach him by telephone throughout the months of January , February, March, April, May, and June 1962. Their testimony, when considered in the light of what transpired in July 1962 when they had no difficulty contacting McLean by telephone , causes one to ponder and at least a lifting of the eyebrows , so to speak, as regarding the veracity of other portions of their testimony . Even so, the Trial Examiner has credited certain portions thereof and discredited it regarding other matters at issue herein. The position of a trier of the facts in such a situation was well put by the late Justice Learned Hand in the Universal Camera case, where he said: . It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all . . . .. Universal Camera Corporation, 179 F. 2d 749 (C.A. 2). The foregoing observation is likewise applicable to McLean and other witnesses who appeared and testified at the hearing herein. Concluding and Overall Findings of the Issues Herein It has been well said that ". . . hard cases make bad laws." 15 So it is here, insofar as the Trial Examiner is concerned. At first blush the "stare decisists" would 14 Quotes from McLean's testimony. 15 A lifting out of context , from Justice Holmes' oft-quoted words in Northern Securities Co. Y. U.S., 193 U.S. 197, 400 [1904], wherein he said, "Great cases like hard cases make bad law." 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no doubt consider the issues herein commonplace and easily and quickly disposed of. But such is not the case for reasons that will be apparent below. Suffice it to say at this point that the word "employees" and Section 8(d) of the Act play an important role in the Trial Examiner 's ultimate disposal of the issues that we are with herein.16 The Trial Examiner has found above that the Union and the Respondent met and bargained in good faith on November 21 and December 12, 1961 . The record clearly shows that McLean agreed to sign a contract similar to that which the Union had with the Builders Wholesale Company, which was engaged in the same type of business as the Respondent. LeBrecque told McLean at the close of negotiations on December 12, 1961 , that he would inform the employees in the appropriate unit of his offer. Such was the status of negotiations between the parties on December 12, 1961 . It is what happened from this date to July 19, 1962, that is at issue herein. The Trial Examiner's findings will be discussed below. As the Trial Examiner sees it and in fact has found above, after long and careful consideration of the record , the briefs of the parties , and from his observation of the witnesses who testified at the hearing herein , the major and most perturbing issue before him is, who failed to bargain in good faith , the Respondent or the Union? To the Trial Examiner at least this is indeed the most pestiferous issue he has been faced with in recent years. He has found above that LeBrecque never contacted McLean by telephone, letters, or by personal calls to his place of business from December 12, 1961 , until July 19, 1962 , when he talked to him over the telephone from the Union's offices during the course of a conversation between Roach and McLean. He has also found that LeBrecque was taken off the McLean account sometime in the latter part of February 1962, for reasons , which though none too clear in the record, clearly indicate that it was because he wasn't "getting anywhere" with it.17 The record shows and the Trial Examiner has found that Meints , another business agent for Local 332, took over the account from LeBrecque sometime in the latter part of February or early March 1962. The gist of the Trial Examiner's findings as regards Meints is that he never called at the Respondent 's place of business at any time after he took over the account from LeBrecque , though it was only some 2 or 3 miles from the union hall and within the city limits of Flint , Michigan . He has also found that Meints' contact with the employees in the appropriate unit was most in- frequent, and that the record shows that he met with them on only one occasion, sometime in either the latter part of March or early April 1962. The only evidence that there were subsequent meetings is found in the testimony of Ryan to the effect that there were some meetings in June 1962 . Quite frankly the record is so vague in this regard that the Trial Examiner is convinced and finds that the only real effort to resume bargaining relations with the Respondent occurred on July 19, 1962, while Meints was on vacation . Summed up , here is what the Trial Examiner finds regard- ing the Union's efforts to negotiate with the Respondent during the regime of Meints: 1. No meetings with McLean. 2. One meeting with the employees in the appropriate unit, that is supported by substantial evidence in the record as a whole. 3. At most, 8 or 10 telephone calls on undisclosed dates during the months of March, April, May, June, and July 1962. 4. Letters to McLean dated July 3 and 13, 1962.18 5. A telephone conversation with McLean sometime during the week of July 22, 1962. 6. The filing of the original charge herein on July 26, 1962. 11 The word "employees" is found in the first sentence of Section 1(b) of the Act where we find the following, "Industrial strife which interferes with the normal flow of commerce and with the full production of articles and commodities for commerce , can be avoided or substantially minimized If employers, employees, and labor organizations each recognize under law that neither party has any right in its relations with any other to engage in practices which jeopardize the public health, safety, or interest . . . . " [Emphasis supplied .] From this language the Trial Examiner is convinced that "employees" have a status on the same level as "employers" and "labor organizations ..." and consequently were considered by the Congress when the Act was adopted and became effective in 1935 . That the Congress still is concerned with the rights of "employees" is found in Section 8 ( d) of the Act. 17,See supra in re reasons advanced by Meints in his testimony at the hearing herein. is See supra for contents of letters. KEN'S BUILDING SUPPLIES 255 As far as the Trial Examiner is concerned the foregoing sums up his findings of Meints' activities on behalf of the employees in the appropriate unit during the period that he was in charge of the account. The Trial Examiner has found above that McLean was away from his place of business for several weeks during the months of December 1961 and January, Feb- ruary, and March 1962. A schedule of his absences has been set forth above. While McLean's absences no doubt, under ordinary circumstances, would cause delay in arranging meetings for bargaining purposes, but where as here, they were clearly not engaged in by him for that purpose, the Trial Examiner is precluded from making such a finding primarily because the record shows otherwise. As a matter of fact the record shows, not only in McLean's uncontradicted testimony, but in that of Ryan, one of the employees in the unit, that he had been going to Florida each winter for at least 5 years before the Union entered the picture. One of the reasons advanced by McLean for the trips was his wife's health, as to the other reasons the record is barren. Even so, McLean further testified that he spent less time in Florida during the 1961-62 season than in previous years. That he kept in touch with his office at regular intervals is amply demonstrated above, particularly regard- ing the conversation that he had with Ryan and Backus in February 1962. There was no secret about his trips to Florida and the employees were well aware of his custom. In the circumstances the Trial Examiner is convinced that had the agents for the Union kept in touch with the employees in the unit, as they should have, then they too would have been informed. Regardless of McLean's absences the agents for the Union could have at least written him a letter during this period and requested meetings with him upon his return trips, which the record shows were at frequent intervals, or at least called in person at his place of business and informed those in charge during his absences of their desire to meet with him and discuss the problems and demands of their "principal," that is the "employees" involved herein. Even so, the record is silent regarding this. The Trial Examiner finds that the Union itself was lax and negligent in this regard. The Trial Examiner has found above that the Respondent unilaterally granted wage increases to two of the employees in the appropriate unit, Swanson and Crago, without prior consultation with the Union. He has also found that the Respondent unilater- ally entered into a contract with the Blue Cross for hospitalization benefits for the employees without prior consultation with the Union. There is no dispute in this regard and, since the circumstances surrounding the foregoing have been thoroughly discussed above, the Trial Examiner deems further discussion unnecessary. Suffice it to say that such conduct was violative of Section 8(a) (5) and (1) of the Act, and the Trial Examiner so finds. As to the overall picture the Trial Examiner finds that from December 12, 1961, to July 19, 1962, no responsible representative of the Union talked to McLean, the Respondent herein, a period, if you please, of a little more than 7 months. He fur- ther finds that during this same period that McLean, the Respondent herein, made no effort to get in touch with a representative of the Union. And finally, he finds that the "employees" were dissatisfied with the conduct of both the Respondent and the Union, their chosen bargaining agent, as is amply demonstrated by the conduct of Ryan and Backus in February 1962, in their conversation with McLean regarding their desires for Blue Cross and other benefits.'9 That the Respondent's admitted conduct regarding McLean's unilateral action which has been discussed, described, and disposed of above, was clearly violative of the Act is well settled. Though the Trial Examiner sees no necessity in citing cases ad infinitum in support of his findings, nevertheless he feels that reference should be made to a recent decision of the Supreme Court of the United States, N.L.R.B. v. Benne Katz et al., 369 U.S. 736, decided May 21, 1962.20 Though the Court's de- cision in that case is final and well states the law on the question at issue herein, there yet remains another facet to the issues we are faced with herein. By that observa- tion the Trial Examiner has reference to Section 8(d) of the Act, and the peculiar facts we are faced with herein ; and the fact that McLean had agreed to sign a con- tract similar to that which the Union had with Builders Wholesale, a competitor of McLean, on December 12, 1961. An examination of the Katz case, referred to above and the decision of the United States Court of Appeals for the Second Circuit, 289 F. 2d 700; 126 NLRB 288, in the same matter, clearly shows that the facts therein were different than those we are faced with herein. In the Katz case, the record before the court clearly showed that the parties had actually sat down and discussed their respective posi- ie See supra. 20 Cited in the General Counsel's brief at page 7. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions on several occasions and that they were honestly and sincerely trying to solve their problems by means of collective bargaining in its truest sense. Such is not the case here. Quite frankly both parties herein in the considered opinion of the Trial Examiner , were lax in the duties imposed upon them by Section 8(d) of the Act, which provides, inter alia, that; 21 (d) For the purpose of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder , and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: . It has been well said that "Circumstances alter cases." So is it here, particularly in the light of the aged-old maxim that "Two wrongs do not make a right." 22 Since the Trial Examiner has found that the Union itself engaged in dilatory and negligent conduct adverse to the interest of its "principal," the employees involved herein, the Trial Examiner quite frankly and in good conscience cannot and will not recommend the issuance of a Remedial Order herein, but on the contrary will recommend the dismissal of the complaint in its entirety for additional reasons set forth below. As the Trial Examiner sees it, in the final analysis the real parties in interest in this as well as in any Board proceeding are the "employees" and the "public." Since the hearing herein was held a little over a year after the Union was certified by the Board as the exclusive bargaining agent for the employees what useful purpose would be served by "saddling" the Union upon the employees for another year, when the record clearly shows , in the vernacular of the day , that they themselves were "fed up" with it and were convinced that it had ignored them for months prior to the filing of the charges herein. This was amply demonstrated at the hearing herein by the demeanor of the employees who testified regarding the issues herein . Since in the final analysis it is the right of "employees " that we are concerned with herein then it should be borne in mind that regardless of the final disposition of the issues herein, they still have their rights under the Act. Again, this question arises, would it be in the public interest, to use the facilities of the Board to pull the Charging Union's "chestnuts out of the fire," so to speak , in complete disregard of the plain language of Section 8(d) of the Act? 23 In the considered opinion of the Trial Examiner , the answer is "NO." Consequently, for this reason he will likewise recommend the dismissal of the complaint herein.2 In all the circumstances discussed, described, and found above the Trial Examiner will recommend the dismissal of the complaint herein in its entirety. Upon the basis of the foregoing findings of fact, and on the record as a whole, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Kenneth B. McLean d/b/a Ken's Building Supplies, the Respondent herein, is engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act. 2. General Drivers & Helpers Union Local '332, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., is a labor organziation within the meaning of Section 2(5) of the Act. 3. For reasons stated above the complaint herein should be dismissed in its entirety. RECOMMENDED ORDER The Trial Examiner recommends that the complaint herein be dismissed in its entirety. 21 Except as to McLean's offer to sign the Builders Wholesale contract on December'12, 1961. 22 See "Bartlett' s Familiar Quotations ," at page 796(b). . . . wrong cannot right the wrongs that wrong hath done." "John Oxenham," William Arthur Dunkerley [1861-1941]. 23,See "Bartlett's Familiar Quotations." Page 86(b). 21 See the The Crossett Company case, 140 NLRB 667.