Architectural Pottery

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.