Gray Line, Inc.

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gray Line, Inc. and Local Division 1138, Amalgamat- ed Transit Union, AFL-CIO. Case 5-CA-6144 February 15, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On September 28, 1973, Administrative Law Judge Eugene F . Frey issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' We share our dissenting colleague's interest in the provident expenditure of the taxpayer's money. We are at a loss nonetheless to understand why that interest impels our colleague to the position he has taken in this matter, particularly since it is the party at fault who has chosen litigation ad nauseam in preference to speedy compliance . Apparently our colleague concedes that a violation of our Act has been made out yet he avoids the necessary conse- quences of such a finding by characterizing the violation as "technical" and urging dismissal on the basis of a case, American Federation of Musicians, Local 76, AFL-CIO (Jimmy Wakely Show), 202 NLRB 620, which, even if we subscribed to the principles enumerated there , the Administrative Law Judge found, correctly we believe, inapposite on the facts. Furthermore, our colleague inquires as to the consequences of Respondent's conduct on the employees here involved and on the course of collective bargaining between these parties. Appar- ently he thinks there are none or that they are so minor as to be inconsequential . We disagree, and would ask our colleague how the Respondent's unilateral grant of wage increases at a time when the Union sought to negotiate terms and conditions of employment including wages could have other than a serious and adverse affect on the employees' percep- tion of the relationship between Respondent and the Union and on the utility of collective bargaining itself. ORDER Pursuant to Section 10(c) of the National Labor 209 NLRB No. 17 Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent Gray Line, Inc., Washington, D.C., its officers, agents. successors, and assigns, shall take the action set forth in the said recommended Order except that the attached notice is substituted for that of the Administrative Law Judge. CHAIRMAN MILLER, dissenting: How many angels can dance on the head of a pin? I suppose that several thousand dollars of taxpay- er's money have been spent on prosecuting and trying this case. It is difficult for me to imagine a more useless exercise, and impossible for me to justify such an improvident use of this Agency's resources. Perhaps a technical violation of our Act has been established . But was any employee substantially adversely affected here? Did the institution or process of collective bargaining suffer even one whit because of the events herein litigated ad nauseam? And what recognizable facet of Federal labor policy has been advanced a single millimeter by these proceedings?' The complaint , in my view, should never have issued, and once issued should, long since, have been summarily dismissed . American Federation of Musi- cians, Local 76, AFL-CIO (Jimmy, Wakel)y Show), 202 NLRB 620. i Although the Administrative Law Judge's recommended Order provides that no provisions thereof shall in any way be construed as requiring Respondent to revoke any wage increases theretofore granted to employees, the recommended notice provides that Respondent will not revoke any wage raises previously given to unit employees . We have therefore amended the notice so as to conform it to the recommended Order 2 My colleagues respond to these questions by the unenlightening device of asking another, t e , how the acts herein could have other than serious effects The answer to that inquiry is in the record-in the factual context here it is plain as a pikestaff that they had no effect whatever either on the bargaining (indeed . General Counsel makes no allegation of had-faith bargaining) nor on any other policy with which this Act is concerned APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has GRAY LINE, INC found that we violated the National Labor Relations Act and has ordered us to post this notice: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through represent- atives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOI grant merit raises or cost-of- living increases in wages to our employees, or make any other changes in wages or rates of pay, without prior notice to or consultation with Local Division 1138, Amalgamated Transit Union, AFL-CIO, as the exclusive bargaining represent- ative of our employees in the appropriate bargain- ing unit described below, or in any like or related manner refuse to bargain collectively with the above Union as such bargaining agent: except that nothing contained herein shall be construed as requiring us to revoke any wage increase that we have heretofore granted. WE WILL NOT by the above conduct in any like or related manner interfere with, restrain, or coerce employees in the bargaining unit described below in the exercise of the rights guaranteed to them by Section 7 of the Act, including the right to join, assist, or bargain collectively through the above-named Union or any other labor organiza- tion. WE WILL, upon request, bargain collectively with the above Union as the exclusive bargaining representative of our employees in the unit described below with respect to rates of pay, wages, hours of employment, and other condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is: All of our maintenance employees, including mechanics and servicemen, but excluding all office clerical employees, professional em- ployees, guards, supervisors as defined in the Act, and all other employees. GRAY LINE, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not he defaced by anyone. 89 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. Any questions cbncerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Tele- phone 301-962-2822. DECISION STATEMENT OF THE CASE EUGENE F. FREY, Administrative Law Judge: This case was tried before me on due notice on August 22, 1973, with all parties represented by counsel or other representative, after pretrial proceedings in compliance with the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act). The issue is whether or not Respondent Gray Line, Inc., in course of bargaining with the above-named Union as exclusive bargaining represent- ative of employees of Respondent in an appropriate unit, made unilateral grants of wages to employees which amounted to a refusal to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act.' At close of the testimony counsel for General Counsel made oral argument, and both General Counsel and Respondent filed written briefs which have been carefully considered in preparation of this Decision which was signed and released by me on September 27, 1973, for distribution to the parties in the usual course. Upon the entire record in the case, observation of witnesses on the stand, and consideration of the oral and written arguments of counsel, I make the following: FINDINGS OF FACT 1. RESPONDENr's BUSINESS AND STATUS OF FHE UNION Respondent is a District of Columbia corporation engaged in the operation of public sightseeing tours in the greater Washington, D.C.. metropolitan area. In course of its business in the last 12 months Respondent has had gross receipts in excess of $500,000, and has also had a direct inflow of supplies valued in excess of $3,000. Respondent admits, and I find, that it is and has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is and has been a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE 2 In a private election held on January 5, a majority of I The issue arises on a complaint issued July 31, 1973, by the Board's Regional Director for Region 5 and amended at the trial , after Board investigation of a charge filed June 4, 1973, by the Union and answer of Respondent admitting jurisdiction but denying the commission of any unfair labor practices s All dates stated herein arc in 1973, unless otherwise noted. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's maintenance employees in an appropriate unit3 selected the Union as their collective -bargaining representative , and since said date the Union has been and now is the exclusive bargaining agent of all employees in said unit, within the meaning of Section 9(a) of the Act.4 After due request by the Union for bargaining on January 8, the parties engaged in contract negotiations at meetings held on January 24, March 12 and 30, April 17, 23, and 26, and May 17, 24, and 31. In those negotiations, the wage issue arose at the outset when the Union presented its first contract proposal on February 19. The proposal was actually a list of proposed amendments to the Union's existing contract covering drivers and stand men of Respondent, which were designed to include the maintenance men and make special provision for their wages and working conditions. The Union first brought the proposal up for discussion on March 12 , when there was discussion of the wage demands but no agreement. Respondent submitted a counterproposal on March 22, but nothing on wages, indicating it would submit a wage proposal later. However, the Union 's wage demand was discussed, again without agreement. On March 11, Respondent gave employee Lewis Jackson a wage raise of 50 cents an hour, retroactive to January 7. On March 31, it gave six unit employees cost -of-living (herein called COL) raises which were based on the COL indices issued quarterly by the United States Department of Labor. The total amounts paid reflected changes in the cost of living as far back as the August 15, 1972, official release, with employees receiving varying amounts depend- ing upon whether they were hired before or after that date and the date of later quarterly releases. Four other unit employees received nothing, having been hired after February 15, and another employee of long service received nothing since he was classed as a supervisor. Explanation of the raises was given to each employee in a letter issued at the time he received his current paycheck which stated As a result of our annual independent audit, it has been brought to my attention that we have overlooked an increase in your wage rate for the cost of living adjustment. You will note in your present paycheck a retroactive payment of $2/m. The new increase will reflect in your future paychecks. All of these raises were given without prior notice to or discussion with the Union . Its president, driver James L. Tuthill, learned of them in discussion with one employee on April 17. At the negotiation session of that date, the Union raised the point, protesting the raises as an unfair interference with the contract negotiations. In discussing, 3 All of Respondent 's maintenance employees , including mechanics and servicemen, excluding all office clerical employees , professional employees, guards , supervisors as defined in the Act , and all other employees, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Sec. 9(b) of the Act. 4 Prior to the election, the Union had been operating as bargaining agent for Respondent's drivers and stand men, under a contract signed with Respondent in May 1972. The 1973 election , which was requested by at that session , its wage counterproposal previously given to the Union , Vice President Jack E . Brown of Respon- dents explained the existing wages of mechanics and the fact that they included the COL raises, giving the reason stated in the above letter as the explanation for the March 31 raises. At the same time the Union was also given an explanation of the extra 50-cent raise given to Jackson. Wages and other issues were discussed in that and later meetings, but no agreement had been reached through the May 31 meeting, the last held between the parties. At the May 24 meeting, the Union submitted an oral counterpro- posal on wages at the end of the session through a Federal mediator. At the final meeting of May 31, Respondent presented a detailed counterproposal on that and other subjects through the mediator, which was discussed by each party with the mediator. No agreement was reached on this issue , but the Union reluctantly agreed to take the company counterproposal back to the membership for their decision . The counterproposal was apparently not accepted by the unit employees .6 Contentions of the Parties and Conclusions General Counsel relies mainly on the fundamental principle stated in N.L.R.B. v. Katz, 369 U.S. 736, 743 (1962) that any unilateral change by an employer in conditions of employment which are under negotiation is a basic violation of Section 8(a)(5), for it is a circumvention of the employer's duty to negotiate which frustrates the collective-bargaining principle just as much as a flat refusal to negotiate . Applying the rule to merit raises given unilaterally, the Supreme Court noted that such raises were under negotiation at the time the employer granted a large number, varying in size, and found they were also violative of Section 8(a)(5) "unless the fact that they were in line with the company's long-standing practice of granting quarterly or semi-annual merit reviews-in effect were a mere continuation of the status quo--differentiates them from the wage increases and the changes in the sick-leave plan." The Court held it did not, saying Whatever might be the case as to so-called "merit raises" which are in fact simply automatic increases to which the employer has already committed himself, the raises here in question were in no sense automatic, but were informed by a large measure of discretion." In conclusion the Court said "While we do not foreclose the possibility that there might be circumstances which the Board could or should accept as excusing or justifying unilateral action, no such case is presented here." The Jackson Raise Respondent argues that special circumstances here show Respondent. enabled the maintenance employees to vote to be covered by the terms of the drivers' contract. 5 As executive vice president and general manager of Respondent, Brown has final responsibility for establishing wage policies and changing wage rates. s The above facts are found from a composite of credited testimony of Tuthill, Brown , stipulated facts, and documentary proof. GRAY LINE, INC. the legality of the Jackson raise, because he received it pursuant to an agreement made with him when hired, which was consistent with its normal practice of grant of such raises based on prehire agreements. In support of this claim, Brown testified without contradiction, and I find, that when Jackson was hired on July 7, 1972, as a mechanic at $3.75 an hour, he had no diesel maintenance experience. The maintenance supervisor promised him that when he had acquired 6 months' satisfactory experience in servicing diesel buses, he would get an automatic raise of 50 cents an hour. Although the 6 months expired on January 7, 1973, Brown says Jackson did not get the raise because of the "union atmosphere" then existing, that Respondent did not want to affect the election or its results. After the election, Jackson continually pressed Brown for the raise every time he met him in the shop, so Brown finally gave it to him March 11, retroactive to January 7. The promise to Jackson was not unusual, for Respondent had hired two experienced diesel mechanics 7 in April and May 1972, at $4 an hour. with a promise of a 50-cent raise at the end of 90 days, and they received the raise at the end of that time. The only reason Jackson had to wait 6 months for a similar raise was his lack of diesel experience when hired. These facts tend to support the claim that the Jackson unilateral raise was not illegal because made in accordance with a past pattern of prehire agreements. In Architectural Fiberglass-Division of Archi- tectural Pottery, 165 NLRB 238, the Board refused to find violations of Section 8(a)(5) as to six unilateral raises to individual workers where the evidence supported the defense that they were given strictly in fulfillment of prehire promises to those employees. However, it did find that other unilateral raises violated Section 8(a)(5) where the times and amounts of such raises varied substantially and did not conform to the pattern of prehire agreements stated in testimony by company officials. The Board's decision as to the six raises which conformed to past practice would seem to require a finding that the Jackson raise did not violate the Act, except for one circumstance: Respondent offers no business reason why it could not have given the raise automatically on January 7, which would have conformed exactly to past practice. Brown explained that the raise was not given then because of the "union atmosphere," that the raise might "hurt" the election and the "subsequent results of the election." When Jackson asked about the raise, Brown told him it was "touchy" at this time. As Brown testified Respondent was acting on advice of counsel before and after the election and during negotiations with the Union, it is inferable that it probably received advice to avoid grant of any benefits to employees pending and after the election and during negotiation which could be charged as violative of the Act. However, the delay in fulfilling the promise for this reason r Edward White and Willie Thomas 8 The delay in giving the raise for the reasons stated by Brown shows that Respondent was actmg at variance with its usual practice , that such delayed action would not have been taken but for the presence of the Union, and that theie were no economic or other reasons wholly unrelated to the election or tile presence of the Union Hence, the grant in such circumstances violated the Act See Dorn's 7ransporration Compunv, Inc , 168 NLRB 457, Marshal! Durbin & Company o_f Jasper, Inc, 179 N1.RB 1027, 1028 9 Cf United Aircraft Corporation. Hamilton Standard Dnuron (Boron 91 was clearly an act of independent judgment by Respondent which negated any inference of "automatic" action based on a prior commitment such as would have been justified if the raise had been given January 7, notwithstanding the outcome of the election and before the Union's demand for bargaining, under the Board's reasoning in the Architectural Fiberglass case, supra, and the limiting caveat of the Supreme Court in the Katz case, supra.s Since the Katz decision, the Board has held that where an employer proposes or promises to grant a raise, so that the employees involved can reasonably expect that the promise will be fulfilled, the promise and actual grant become a "condition of employment," such that when the employer withdraws the raise after certification of a union, and it appears that the raise would have been given but for that certification, the withdrawal without consulting with the union or giving it a chance to negotiate on that change of a condition of employment violated Section 8(a)(5) of the Act. Liberty Telephone & Communications, Inc., and Century Telephone Enterprises, Inc., 204 NLRB No. 54. The Board there rejected the argument that any other course of action after the certification would have subjected the employer to an unfair practice finding, because the employer could have in good faith consulted with the Union before taking that action. Under this reasoning, the grant of the promised raise to Jackson on the date promised, regardless of the outcome of the election, would have been a continuance or fulfillment of that "condition of employment" which could hardly be said to have a tendency to adversely affect the Union or its bargaining rights, whereas the deliberate change of that "condition" by unilaterally withholding and later granting it during negotiations, without the existence of any impasse on wages, was a change in Jackson's working conditions which required prior notice to or consultation with the Union .9 Hence, I am constrained to conclude that the actual unilateral grant of the raise long after it was due under the prior agreement and practice and during actual negotiations with the Union violated Section 8(a)(5) of the Act and also interfered with the employees' rights to have their representative consulted about any change in their working conditions, in violation of Section 8(a)(1) of the Act. The COL Raises Respondent argues that the general COL raises were part of a past pattern of automatic raises which in effect continued existing conditions of employment and thus justified its unilateral action. On this point Brown testified that since 1962 Respondent has followed the practice of giving periodic automatic COL increases in base wage rates to its drivers under terms of contracts with the Union. Such raises are triggered by the quarterly announcement of Filament Plant/, 199 NLRB 658, where the unilateral withholding during negotiations of a raise which had been promised long before, for the purpose of using that increase as an item in bargaining, was held to have violated Section 8(a)(5) of the Act, while the later institution of the raise was held not to violate the Act because under the peculiar facts of that case the later raise did not have any tendency to obstruct bargaining, the union did not protest the raise or request bargaining about it but had previously requested that the raise he granted under a practice created under a poor bargaining contract 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changes in the COL index by the U.S. Department of Labor. Since 1966, Respondent has given similar raises to its maintenance men at the same time as, and in amounts proportionate to, those given the drivers. Respondent discontinued the program as to maintenance men about May 15, 1972, because from late 1969 up to June 1972 that department had been having a large turnover of personnel with four retirements of experienced workers in an 18- month period between 1969 and 1972; though new employees were hired as probationers, many left after a short stay because most of the service work was nightwork, so that Respondent was having great difficulty in hiring and keeping maintenance workers who gave indication they intended to become permanent employees.10 Respon- dent's past practice had been to give COL raises only to permanent employees, but since the maintenance work- force consisted of all new workers in early 1972, and Respondent had no reason then to believe it was stable, it discontinued that program, pending acquisition of a more stable maintenance crew.11 It appeared to Respondent in late 1972 that new maintenance workers hired early in the year gave indica- tions they would remain as permanent workers, as few of them left, some were buying their own toolkits, and all were getting diesel maintenance experience.12 When the evidence of stability accumulated with the continued employment of mechanics B. Jordan (hired October 23, 1972) and F. Tester (hired February 12, 1973), Respondent concluded early in 1973 that the workforce had become stable, so that by February 12, when one Tester was hired, conditions were favorable for resumption of the COL increases. However, nothing was done until late in March 1973, when according to Brown, management learned it had "made a mistake" in not resuming the COL raises sooner, since their suspension was in fact penalizing the two oldest employees.13 So management decided to resume the program, but to make the payments retroactive to August 1972, mainly in order to bring senior employees Summers and Jordan up to date without penalty. Thus, the exact retroactive amounts given the maintenance crew varied according to their date of hire: those employed before August 15, 1972 (three mechanics and one service- man), got three COL raises based on the Department of Labor indices of August 15 and November 15, 1972, and February 15, 1973; mechanic Jordan received two raises, based on a hire date of October 23, 1972, and mechanic Tester received one raise, as he was hired 3 days before the February 15, 1973, COL index release. Four servicemen hired after the last date received nothing. Brown testified that none of these raises were ever announced to or discussed with the Union, because they were considered as 10 Of five mechanics hired in 1972, three have remained at work. Ten servicemen were hired in the same year, but eight quit before the year ended, and the other two left early in 1973. -11 In the maintenance department, according to Brown, Respondent had always considered the grant of COL increases as a form of reward to employees who stayed with Respondent and indicated their intention of becoming permanent employees. 12 Besides three mechanics hired in 1972 who remained at work in 1973, three more hired in 1973 were still at work at time of trial. Seven new servicemen were hired in 1973, and six were still employed at time of trial. 13 Mechanic J.C. Streeter (hired February 1960) and serviceman A. Summers (hired August 1960). owing to the employees under the existing COL raise practice, and the contract negotiations included only "new matters." 14 As in the case of Jackson, the issue here is whether the circumstances of the COL raises denote merely a continua- tion of the 1972 pattern of automatic periodic raises to which Respondent had committed itself and which employees had a right to expect, or whether they were discretionary action by Respondent in the exercise of a judgment based on other factors. If the chain of quarterly COL raises had continued unbroken throughout 1972 and in 1973 through the period of the election and negotiations with the Union, there would be merit to Respondent's contention, as strict adherence to past practice would have afforded persuasive proof of the automation feature which might have exempted the raises from coercive inferences under the caveat of the Katz case and the failure to find violations in similar situations in the Architectural Fiberglass case.15 However, the voluntary suspension of the automatic feature of the raises in August 1972, based on Respon- dent's informed judgment as to the instability of the maintenance crew, without any proven announcement of that reason to the employees or promise of resumption of the raises when the situation changed, and the resumption of the raises, with retroactive features, in 1973 after Respondent had reached a decision that the disabling uncertainty of the workforce had substantially disap- peared, strongly indicates the exercise of a deliberate judgment after consideration of many factors in the composition and operation of the maintenance crew, as opposed to pure automatic action based on a government release. I have also noted that Brown testified, and Respondent admitted in its brief, that it has used these increases over the years as an inducement to hold mechanics, and that their reinstatement in 1973 after the short suspension came "when the prospect of holding the new mechanics became a realistic one." It is obvious that determination of the reality of such prospect involved an appraisal of various aspects of the work of employees, and the grant or denial of a "reward" on that basis is patently the result of a judgment by the donor on the existence or nonexistence of factors governing the right to such reward. Hence, I must conclude that both the suspension of the COL raises in 1972 and their resumption in 1973 involved the exercise by Respondent of a large measure of business judgment and discretion, which prevents any finding of a continuation of the pure "automation" which may have existed in the pattern of COL raises prior to suspension of the practice in 1972.16 The absence of this factor in 1973, plus Brown's admission that the explanation to employees, 14 The above facts are found from uncontradicted testimony of Brown and documentary proof. 15 See also State Farm Mutual Automobile Insurance Co., 195 NLRB 871, where the Board found no illegality in COL increments given under a longstanding program where the issuance of the raises came in routine fashion upon information gleaned from the periodic BLS indices. The Board in effect held that such raises were of "totally automatic nature." 16 Brown's testimony also contains an admission that the past COL raises were never fully "automatic," in the sense that he made the decision to grant each raise on review of the current BLS index . Respondent argues that this only indicates a negligible exercise of discretion over a period of grant of regular raises in 26 consecutive quarters from 1966 to 1972. The GRAY LINE, INC. that the retroactive payment of the missed COL increases was an "oversight" recently revealed by an audit of company books, was a deliberate but "innocuous" expla- nation designed to prevent any appearance of interference with the pending negotiations or undercutting of the Union, clearly shows that Respondent was acting from ulterior motives based in large part on the presence of the Union, in resuming the COL raises in the negotiation penod.17 Hence I must conclude that the unilateral grant of the retroactive COL raises during the negotiations was the type of conduct which falls within the principle and prohibition of the Katz decision and later Board cases, and violated Section 8(a)(5) of the Act.18 III. THE EFNL•CI OF THE UNFAIR LABOR PRACTICi•S UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship 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. IV. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act.19 Nothing herein contained shall be construed as requiring Respondent to revoke any wage increases heretofore granted. Although Respondent has not been charged with or found guilty of overall bad-faith bargaining, and it appears that negotiations are still pending and Respondent is willing to resume bargaining when requested, I will still recommend a pro forma bargaining order. Benne Katz, salient factor, however, is that Respondent exercised substantial judgment in suspending the regularity of this pattern of raises in August 1972 and in resuming it in April, -973. it The fact that Respondent felt It necessary. as it admits, to use the pretext of "clerical error" in its explanation to the employees "so as not to undermine or reflect discredit on the Union in any manner" and to "reinforce the concept of its past practice in the minds of the employees," further strengthens the conclusion that the grant of raises during negotiations was well calculated to affect the bargaining process and to lessen employees' confidence in the Union as their bargaining agent is i have carefully considered other authorities cited by Respondent in its brief and conciude that they are either not inconsistent with the authorities cited above, or not controlling on the facts is Respondent has argued that no remedial order should issue, claiming that the unilateral raises are "de mimmis," because General Counsel does not claim that Respondent engaged in bad-faith bargaining with the Union. and Respondent's wage offer to the Lmon on May 31 for all classifications of maintenance workers started from a base of current wage rates, which included all the raises here in question, hence the grant of those raises did not hinder the Umon in the actual negotiations. which are still pending. This argument is without merit because the Supreme Court in the Katz case held that such raises were a serious obstacle to collective bargaining. saying (369 U S at 747)• Unilateral action by an employer without prior discussion with the union does amount to a refusal to negotiate about the affected 93 Alfred Finkel and Murray Katz, d/b/a Williamsburg Steel Products Company, 126 NLRB 288, 290, affd . 369 U.S. at 747. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and the above-named Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All of Respondent's maintenance employees, includ- ing mechanics and servicemen, but excluding all office clerical employees, professional employees, guards, super- visors as defined in the Act, and all other employees, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. Since January 5, 1973, the Union has been the exclusive bargaining agent of all employees in said unit within the meaning of Section 9(a) of the Act. 4. By granting unilateral merit raises and cost-of-living increases in wages to individual employees and groups of employees in said unit, Respondent has failed and refused to bargain collectively with the Union as exclusive bargaining agent of employees in said unit, and also interfered with, restrained, and coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act, including the right to join, assist, or bargain collectively through a labor organization of their choosing, thereby engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: conditions of employment under negotiation. and must of necessity obstruct bargaining, contrary to the congressional policy-it will rarely be justified by any reason of substance it follows that the Board may hold such unilateral action to be an unfair labor practice in violation of Section 8(a)(5), without also finding the employer guilty of overall subjective had faith See also, Boot-Ster Manufacturing Co. Inc, 165 NLRB 318, 322 Applying this principle here, and considering that the COL raises were given to all employees who were in the appropriate unit on February 15, 1973, the presumptive effect on unit employees and detriment to the Union in the ensuing bargaining was far more than minor , technical or de rnrntmrs, notwithstanding that Respondent has apparently had amicable relations with the same Union in administration of a contract covering drivers Hence, I cannot consider this a case of minor import such as to warrant the Board in staying its remedial hand Cf. Bob Morgan Motor Company, Inc, 106 NLRB 334, Pittsburgh Reflector Company d/h/a National Wood Products Company and National Store Fixture and Equipment Company, 177 NLRB 812. 1 also consider American Federation of Musicians, 202 NLRB 620, as inapposite on the facts. I do not consider the 1973 raises as isolated, per se violations of the Act, but have reached the conclusion of violation only after consideration of the record as a whole, including all past and current events, as required by the defense raised by Respondent See N LR B. v Cone Mills Corp. 373 F 2d 595, 599 (C A. 4. 1967) 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER20 Respondent, Gray Line, Inc., of Washington, D.C., its officers, agents. successors , and assigns, shall: 1. Cease and desist from: (a) Unilaterally granting merit raises or cost-of-living increases in wages to employees in the appropriate bargaining unit found above , or making any other unilateral changes in wages or rates of pay, or in any like or related manner refusing to bargain collectively with Local Division 1138, Amalgamated Transit Union, AFL-CIO, as the exclusive bargaining agent of its employees in the appropriate bargaining unit consisting of all Respondent's maintenance employees, including mechanics and service- men, but excluding all office clerical employees , profes- sional employees, guards, supervisors as defined in the Act, and all other employees. (b) By the above conduct or in any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act, including the right to join, assist, or bargain collectively through the above-named Union or any other labor organization. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: 20 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations . be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes (a) Upon request, bargain collectively with the above- named Union as the exclusive bargaining representative of all its employees in the unit described above concerning rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment However, no provisions of this Order shall in any way he construed as requiring Respondent to revoke any wage increases heretofore granted to employees in the unit aforesaid. (b) Post at its plant and place of business in Washington, D.C., copies of the notice attached hereto and marked "Appendix." 21 Copies of said notice, on forms provided by the Regional Director for Region 5. after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Si In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "