Tritac Corp.

522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Tritac Corporation, a subsidiary of Cellu Products Company and United Paperworkers Internation- al Union, AFL-CIO, CLC. Cases 11-CA- 10976, 11-CA-11112, 11-CA-11185, and 11- CA-11278 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 27 February 1985 Administrative Law Judge Howard I. Grossman issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs.I The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions, 3 as modified, and to adopt the recom- mended Order as modified. 1. In adopting the judge's conclusion that the Respondent violated Section 8(a)(5) and (1) by its blanket refusal to supply the Union with certain in- formation related to polygraph examinations ad- ministered to the Respondent's employees, we note that the judge did not suggest, as our dissenting colleague indicates, that the Respondent must re- spond to a request for confidential information with an immediate offer to provide the information conditionally. Instead, the judge stated that to the extent the Company's concern was its employees' right to privacy, the Respondent's appropriate re- sponse would have been an offer to submit its in- formation conditioned on employee consent. Addi- tionally, to the extent that the Company asserted its right to protect itself against liability, the judge ' The General Counsel has moved to strike from the Respondent's brief in support of its exceptions the assertion that the Regional Director for Region 11 approved a settlement agreement in Case 11 -CA-10976 prior to 5 October 1983 Although our determination of this issue does not affect the results in this proceeding , we agree with the General Counsel that the Respondent's assertion is unsupported by the record We therefore grant the motion to strike 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings a We note that the judge recommended that the initial period of certifi- cation be construed as beginning on the date the Respondent commences to bargain in good faith with the Union in connection with his finding that the Respondent engaged in bad-faith bargaining, which finding we reverse here Inasmuch as this recommendation is not included in the fudge's recommended Order, however , we find it unnecessary to modify the Order in this regard concluded it was incumbent on the Respondent to offer to bargain with the Union to accommodate their respective interests. Thus, the judge essential- ly concluded that the Respondent, in the face of such a request, cannot simply raise its confidential- ity concerns, but must also come forward with some offer to accommodate both its concerns and its bargaining obligation. See Oil Workers Local 6- 418 v. NLRB, 711 F.2d 348, 362, 363 (D.C. Cir. 1983). The judge here found, and we affirm, that the Respondent failed to do so. We further find it unnecessary to rely on Freddie Hester v. City of Milledgeville, 598 F.Supp 1456 (M.D. Ga. 1984), relied on by the judge, nor do we pass in any manner on the validity of polygraph testing gener- ally. With respect to the judge's conclusion that the Respondent violated Section 8(a)(5) and (1) by re- fusing to supply the Union with information re- garding the costs of insurance benefits to employ- ees, we affirm the judge without passing on wheth- er the Respondent's response of "nominal" would be sufficient to meet the requirements of the Act under any circumstances, as it clearly was not in the circumstances of this case. In affirming the judge, we rely, in particular, on the Union's renew- al of its request at the next bargaining session. Fi- nally, in adopting the judge's conclusion that the Respondent violated Section 8(a)(5) and (1) by its withdrawal of recognition from the Union, we rely on his finding that because of its prior unfair labor practices, which were of such a character to cause the employees' disaffection, the Respondent could not lawfully withdraw recognition and, thus, we do not reach the issues of whether the evidence es- tablished that the Union had lost its majority repre- sentative status or whether the Respondent had a reasonably based doubt concerning such status. 2. The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by, inter alia, bargaining in bad faith without intention to reach agreement with the Union. In so doing, the judge primarily relied on the positions taken in negotia- tions by the Respondent regarding wages, dues checkoff, and a management-rights clause. Con- trary to the judge, however, we find that the totali- ty of the Respondent's conduct throughout the course of negotiations constituted, at most, hard bargaining, but the evidence falls short of establish- ing that the Respondent engaged in surface bar- gaining. We thus disagree with the judge's conclu- sion that the Respondent's conduct during negotia- tions evidences an intention to avoid agreement with the Union and was therefore unlawful. Specifically, the judge concluded that, in reject- ing the Union's proposal for a dues-checkoff provi- 286 NLRB No. 47 TRITAC CORP. sion, the Respondent had no legitimate business justification. Similarly, the judge found no legiti- mate justification for the Respondent's rejection of an arbitration provision at a time when it was in- sisting on a broad management-rights clause. He further noted that the Respondent had refused at the 15 December 1983 meeting to consider open issues other than the pension plan. In addition, the judge concluded that the Respondent had no legiti- mate business justification for the wage positions taken in negotiations and thus found the Respond- ent's bargaining concerning wages constituted fur- ther evidence of bad faith and an intention not to reach agreement. In this regard, the judge relied, inter alia, on his finding that the Respondent un- lawfully unilaterally increased starting wages for employees on 12 October 1983. The judge also en- gaged in his own analysis of a wage survey con- ducted by the Respondent in mid-1983 and found it did not support the Respondent's bargaining posi- tions. Specifically, the judge attempted to recon- struct the prevailing wage patterns in the Respond- ent's geographical area and industry during the period of negotiations. While admitting that the documentary evidence was "vague" in regard to what other employers were paying in the fall of 1983, the judge, nevertheless, concluded that the Respondent's wages were comparable to those paid by other employers and that its asserted "balanced" approach of proposing increases in starting rates at the same time it proposed decreases in journeymen wages was a sham. It is well established that, under Section 8(d) of the Act, the Board may not compel concessions or otherwise sit in judgment of the substantive terms of collective-bargaining agreements.4 In this regard, the Board looks at the totality of the re- spondent's conduct. Having scrutinized the record in the instant case, we cannot find that the totality of the Respondent's conduct establishes that it was calculated to impede negotiations. This is particularly true given the Re- spondent's continuous willingness to negotiate with the Union and the substantial progress made by the parties in negotiations. 5 Indeed, the continuing dis- 4 NLRB Y. American National Insurance C7, 343 U.S 395, 404, 408- 409 (1952) 6 As the judge notes at fn 89 of his decision, during the course of 13 bargaining sessions held with the Union over a 7-month period , the par- ties reached agreement on numerous subjects Moreover, the record re- veals that the parties discussed at length those matters on which they did not reach agreement Even if, as the judge determined , the issues on which agreement were reached were not as significant as those on which the parties disagreed, contrary to the judge , we do not believe that such an assessment here is dispositive of whether a party has satisfied its statu- tory duty to bargain in good faith 523 parity between the parties on key issues despite continued bargaining may have been reflective of disparity in economic power rather than a refusal on the part of the Respondent to reach agreement.e Moreover, the Respondent was not required to accede to the Union's demand for dues checkoff, 7 and could lawfully insist on a broad management- rights clause.8 Additionally, the Respondent's un- willingness to agree to an arbitration provision is not, itself, a sufficient basis for finding bad faith, particularly as the Respondent proposed no limita- tions on the Union's right to strike-the generally acknowledged quid pro quo for agreement to such a provision.9 Finally, in his analysis of the wage survey, the judge clearly attempted to substitute his judgment for that of the Respondent concerning the appropriateness of the substantive terms of the collective-bargaining proposals. The Board may not substitute its judgment with respect to the sub- stantive terms of a collective-bargaining agreement. Accordingly, for all the reasons above, we find, based on the totality of the circumstances, the Re- spondent did not violate Section 8(a)(5) and (1) of the Act through its conduct in negotiations by bar- gaining in bad faith.10 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Tritac Corporation, a Subsidiary of Cellu Products Company, Conover, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(a), reletter the subsequent paragraphs, and insert the following in place of new paragraph 1(c). "(c) Unlawfully withdrawing recognition from and thereafter failing and refusing to bargain col- lectively with the Union as the exclusive collec- tive-bargaining representative of its employees in the following unit: All production and maintenance employees employed by the Company at its Conover, North Carolina facility, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act." 6 World Publishing Co, 220 NLRB 1065, 1071 (1975). American Thread Corp, 274 NLRB 1112 ( 1985). American National Insurance Co., supra at 409 Textile Workers Union v. Lincoln Mills, 353 U S. 448, 455 (1957) 10 What remains of the totality of conduct relied on by the judge in finding bad-faith bargaining is the other unfair labor practices found by the judge, which we affirm herein. Although these other unfair labor practices might be evidence of bad -faith bargaining in other contexts, we find that the totality of the Respondent's conduct, as described above, does not establish an intent not to reach agreement 524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, dissenting in part. I agree that the Respondent violated Section 8(a)(5) and (1) by unilaterally increasing starting wage rates 12 October 1983 and did not violate the Act by engaging in surface bargaining. I do not agree that it unlawfully refused to furnish informa- tion or unlawfully withdrew recognition from the Union and thereafter engaged in unlawful unilateral conduct. In my view, the facts of this case do not support the majority's finding that the Respondent unlaw- fully refused to furnish information about poly- graph tests and insurance costs. When the Union first asked for information about polygraph tests the Respondent had conducted, the Respondent re- plied that the material was confidential and it wanted to consult counsel. On a later occasion the Respondent explained that employees had been told the material would be divulged only to com- pany officials; during testing some employees had implicated other employees; and the Respondent might be liable if it released the information. The Union stated it would defer discussion until it con- ferred with its attorney. These circumstances do not demonstrate to me a blanket refusal to furnish the information requested or an unwillingness to continue bargaining about the subject. As the judge points out, the duty to disclose rel- evant information is not absolute; and an employer has a legitimate interest in protecting information confidential to employees or to the company-e.g., medical records and trade secrets.' An employer's bargaining obligation requires it to provide relevant information requested to the extent it can without compromising confidentiality and to bargain about appropriate safeguards for providing the remaining confidential information.2 This obligation does not, as the judge suggests, mean that an employer, con- fronted with a request for information it considers confidential, must respond with an immediate offer to provide the information conditionally. An ex- press conditional offer is not the only appropriate response, and I would not apply the judge's rigid rule which my colleagues adopt. Parties must have flexibility in bargaining to handle problems which arise and to accommodate their conflicting inter- ests. Here the Respondent raised and explained genu- ine concerns about the confidential nature of the i See Detroit Edison Co, 440 US 301 (1979), Minnesota Mining, 261 NLRB 27 (1982), enfd sub nom Oil Workers Local 6-418 v NLRB, 711 F 2d 348 (D C Cir 1983) 2 Minnesota Mining, supra polygraph material the Union requested and left open the opportunity for further bargaining on ways to protect the material's confidentiality con- sistent with the bargaining obligation to furnish rel- evant information. The evidence in the case also does not show that the Respondent unlawfully responded to the Union's request for information about the cost of insurance benefits. When the Respondent proposed an increase in insurance benefits, the Union asked what the cost would be to the Respondent, stating that it was interested in putting that amount into other areas. The Respondent replied that it did not know, but the cost was "nominal." Even assuming that the Respondent could have obtained a more precise cost figure, I do not consider its response inadequate. It made clear that the cost involved in the proposal was not significant, thereby enabling the Union to bargain further. As I would not find 8(a)(5) and (1) violations based on the alleged refusals to furnish information, I would not find that the Respondent's withdrawal of recognition from the Union occurred in a con- text of unfair labor practices. On the facts present- ed, I do not think that the Respondent 's unilateral increase of starting wage rates on 12 October 1983, which I agree was unlawful, tended to have a meaningful influence on employee dissatisfaction with the Union.3 Without the impact of unfair labor practices, the employee statements and peti- tions of disaffection, relied on by the Respondent in withdrawing recognition, constitute objective considerations supporting its doubt that the Union continue to have majority status. 8 See Master Slack Corp., 271 NLRB 78 (1984), Hearst Corp, 281 NLRB 764 (1986). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to furnish the Union with the results of polygraph tests administered to our employees, the written statements provided to us and the polygraph examiner, and the recommenda- tions made to us by the polygraph examiner, on re- ceipt of consent to disclosure by the involved em- ployee in all cases where we assert no confidential- ity interest of our own; and, in all cases where we TRITAC CORP 525 do assert such interest, WE WILL NOT refuse to bar- gain in good faith with the Union in an attempt to accommodate our respective interests, on receipt of consent to disclosure by the involved employee. WE WILL NOT refuse to supply the Union with information concerning costs of insurance pro- grams offered to employees. WE WILL NOT unlawfully Withdraw recognition from the Union. WE WILL NOT unilaterally or without notice to the Union and an opportunity for it to bargain, in- crease starting wage rates, wages, or shift differen- tial pay, or implement a safety awards program or an employee evaluation program. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively with the above Union as the exclusive representative of the employees in the unit described below with re- spect to starting wage rates, Wages, shift differen- tial pay, safety awards programs, employee evalua- tion programs, hours of work, and other terms and conditions of employment: All production and maintenance employees employed by the Company at its Conover, North Carolina facility, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. WE WILL provide the Union with the informa- tion of polygraph tests described above on receipt of consent from the employee involved in all cases where we do not assert a confidentiality interest of our own and, in cases where we do assert such in- terest, WE WILL bargain in good faith with the Union in an attempt to accommodate our mutual interests, on receipt of consent to disclosure by the involved employee. WE WILL provide the Union with the informa- tion on insurance costs which it requests. TRITAC CORPORATION, A SUBSIDIARY OF CELLU PRODUCTS COMPANY Ann B. Wall, Esq., for the General Counsel. Robert A. Valois, Esq., and Albert R. Bell Jr., Esq. (Maupin, Taylor & Ellis), of Raleigh, North Carolina, for the Respondent. Mark M Brooks, Esq., of Nashville, Tennessee, for the Charging Party. DECISION STATEMENT OF THE CASE HOWARD I. GROSSMAN, Administrative Law Judge. The original charge in Case 11-CA-10976 was filed on July 29, 1983, by United Paperworkers International Union, AFL-CIO, CLC (the Union or the Charging Party), and complaint issued on September 12, 1983. The Union filed the original charge in Case I1-CA-11112 on October 31, 1983, and an amended charge on December 1, 1983. It also filed the original charge in Case 11-CA- 11185 on January 5, 1984, and an amended charge on February 17, 1984. A consolidated complaint issued on March 20, 1984. On April 2, 1984, the Union filed the original charge in Case 11-CA-11278. A second consoli- dated complaint issued on May 3, 1984, and an amend- ment thereto on May 11, 1984, alleging that Tritac Cor- poration, a subsidiary of Cellu Products Company i (Re- spondent or the Company) violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to provide information to the Union regarding the results of polygraph tests administered to company employees, the written statements provided to it by employees and the polygraph examiner, the recommendation made to it by the latter, and information regarding the costs of employ- ee insurance. The second consolidated complaint also al- leges that the Company violated the same sections of the Act (1) by unilaterally implementing new wage rates and starting wage rates, an increase in shift differential pay, a quarterly evaluation program providing for merit wage increases, and a safety awards program; (2) by unilateral- ly changing the employees' pension plan; (3) by with- drawing recognition of the Union as the exclusive collec- tive-bargaining agent of its employees; and (4) by negoti- ating in bad faith with no intention of reaching an agree- ment.2 A hearing was held before me on these matters in Hickory, North Carolina, on May 23 and 24, 1984. On the entire record, including briefs filed by the General Counsel and Respondent, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION The parties stipulated that Tritac Corporation is an Il- linois corporation, and the wholly owned subsidiary of Cellu Products Company, a Delaware corporation.3 The pleadings and stipulations of the parties establish that Re- spondent has a plant at Conover, North Carolina, where it is engaged in the business of coating paper and plastic film. Further, the pleadings establish that during the 12- month period preceding issuance of the second consoli- dated complaint, a representative period, Respondent shipped products valued in excess of $50,000 directly to points outside the State of North Carolina. The pleadings establish, and I find, that Respondent is an employer en- ' Respondent's name appears as stipulated at the hearing. 2 The first consolidated complaint, which issued on March 20, 1984, contains additional allegations (G C Exh 1(q)) However, the General Counsel has argued only in favor of those allegations in the second con- solidated complaint, and, in her posthearing brief, states specifically that the word "complaint" means the second order consolidating cases and consolidated complaint and the amendment thereto (G C Exhs 1(z), 1(cc)) Accordingly, I have not considered those allegations that are unique to the first consolidated complaint 2 On October 5, 1983, Cellu and its Tritac subsidiary were acquired by Sealed Air Corporation, a Delaware corporation 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings establish, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union's Certification and Subsequent Bargaining Sessions Following a Board election on February 24, 1983,' which the Union won by a vote of 11 to 9, the Union was certified on March 4 as the representative of Re- spondent's employees in the following unit: All production and maintenance employees em- ployed by the Employer at its Conover, North Carolina facility, excluding all office clerical em- ployees, professional employees, guards, and super- visors as defined by the Act.5 Thereafter, the parties participated in 13 bargaining sessions, the first on April 12 and the last on December 15.6 B. The Alleged Unlawful Refusal to Supply Polygraph Information 1. Company's asserted need for polygraph testing Union representative Harold Huffman testified without contradiction that during the second bargaining session on April 28, company representatives7 alleged sabotage in the plant, in that there had been loose belts on equip- ment. The Company sought the Union's assistance in the matter. Huffman replied that the Union would not con- done sabotage or theft, if the Company could prove it. Company representative Dowd called Huffman on May 26 and said that someone had tried to sabotage a piece of equipment. The Company was considering the use of polygraph tests, and Dowd asked Huffman 's opin- ion. The latter replied that the results of polygraph tests were not admissible evidence in court, and that he would need legal advice. A few days later, during the third bargaining session on June 2, Dowd produced a block of wood which, he * All dates hereinafter are in 1983 unless otherwise stated 5 G C Exh. 1(z), par 9; G.C. Exh 2. The dates of the bargaining sessions were April 12 and 28, June 2 and 23, August 15 and 16, September 7 and 8, October 5, 11, 12, and 19, and December 15 (G C Exh. 2) 7 The company representatives were Roy David Baucom, then Re- spondent's vice president for human resources, and Edward J. Dowd Jr Dowd was a management consultant who had been employed by Re- spondent as the chief negotiator to engage in bargaining with the Union. He was involved in development of company proposals , had authority to speak on behalf of the Company during negotiations, and exercised that authority The pleadings establish that Baucom was a supervisor within the mean- ing of Sec. 2(11) of the Act I conclude that Dowd was an agent of Re- spondent within the meaning of Sec 2(13) of the Act Jet Spray Corp, 271 NLRB 127 (1984); Gourmet Foods, 270 NLRB 578 (1984), Cahaba Resources. Inc, 268 NLRB 958, 959 fn 2 (1984) said, had been thrown into the equipment. Dowd said that the Company intended to hire an outside polygraph specialist, the Madley Company, and announce to em- ployees that they would be tested in the areas of thiev- ery, alcohol, and drug usage on company property, and sabotage, during the week of June 6. Employees who re- fused to take the test would be given the option of re- signing or being terminated. Those who had lied accord- ing to the test results would be subject to disciplinary action. Union Representative Huffman objected to the propos- al, saying that the subject of drugs and alcohol had not been raised previously by the Company. He stated the Union's intention to take legal action to defend the em- ployees. Polygraph tests were thereafter administered to com- pany employees. According to Huffman, 11 employees, 2 of them salaried, were terminated as a result of the tests.8 2. The June 23 bargaining session a. Summary of the evidence At the fourth bargaining session on June 23, according to Huffman, he went through the names of the 11 em- ployees, and asked company representative Dowd the reason that each had been terminated. Dowd replied that the answer lay within one of the four tested fields- drugs, alcohol, theft, or sabotage-but was unable to identify the specific reason. Huffman then asked Dowd to explain how the test had been administered. After receiving an explanation, Huff- man testified, he asked the Company for a copy of the test, copies of written statements that the employees had supplied to the Madley Company, and the latter's recom- mendations to Respondent . In addition, Huffman averred, he wanted to know where "the needle" sup- posedly had indicated that the employees were lying, and all information concerning the tests. Joe Pierce, a union committeeman who was present at the June 23 bargaining session, corroborated Huffman's testimony about the nature of the Union's requests to the Company. According to Huffman, Baucom replied that he did not have the polygraph reports with him and had not seen them, but that other people in the plant had seen them. The Company had hired a polygraph specialist, and the matter was confidential company business. Huff- man replied that he might have to resort to court action to protect the employees' rights. Company Representative Baucom testified that Huff- man "was just not really specific about what he wanted." On the other hand, Baucom also testified that Huffman asked for "the polygraph test results." Baucom contend- ed that Huffman asked for "disciplinary records" of the 8 Company Representative Baucom testified that five employees were terminated, and that three exercised their option to resign With respect to three more employees, Baucom was uncertain whether they refused to take the polygraph test, but averred that they did resign Three other em- ployees simply faded to show up for work , and Baucom was unable to state whether these instances were related to the polygraph tests I con- sider it unnecessary to resolve the differences between Huffman's and Baucom's testimonies, in light of the allegations in the complaint. TRITAC CORP. 527 nine bargaining unit employees who had left the Compa- ny and for employee performance evaluations, but that these requests were either ambiguous or irrelevant. The Company's vice president said that he never "fully understood" what the Union wanted, but never re- fused to supply it. He told Huffman that he would have to consult his attorney. Huffman said that he would call Baucom to set a date when he could look at the test re- sults, but never called. On the latter point, Huffman confirmed that he asked for a date to see the polygraph reports, and that Baucom said he would have to see his lawyer. Huffman testified that he could not remember whether he told Baucom that he would call him for a date, or whether he actually did so. b. Factual analysis Baucom's testimony is inconsistent. There is little that is unclear in a request for "polygraph test results" that, Baucom admitted, Huffman made. Moreover, Baucom never explained how he could see], legal advice on a re- quest that he himself did not understand. On the other hand, Huffman's testimony was repeated under cross-ex- amination, and was corroborated by another witness. Ac- cordingly, I credit Huffman's testimony about the speci- ficity of his requests to the Company on June 23. I also credit Baucom's testimony, not denied by Huff- man, that the latter said he would call Baucom for an ap- pointment to see the polygraph information, but never did so. 3. Filing and partial dismissal of original charge, appeal of dismissal, and issuance of first complaint As indicated above, the original charge in Case 11- CA-10976 was filed July 29. The charge alleged viola- tion of Section 8(a)(1), (3), and (5) of the Act because of Respondent's: (1) failure to meet at reasonable times; (2) taking unreasonable positions on issues and/or surface bargaining; (3) unilateral utilization of polygraph exami- nations and discipline of employees ; (4) unilateral termi- nation of nine employees;9 and (5) failure to furnish in- formation for bargaining.' 0 On September 12 the Acting Regional Director for Region 11 dismissed the first four allegations numbered above," but stated in a letter to the Union with a copy to Respondent that this did "not affect the remaining 8(a)(1) and (5) allegations contained in the charge."12 On the same date, September 12, com- plaint issued in Case 11-CA-10976, alleging that Re- spondent unlawfully refused to supply information to the Union on polygraph testing of Respondent's employ- 9 David L Aiken, Tony A. Coffey, Steven D Coulbourne, Bobby R Hare, Robert P. Nelson, Kenneth E Yount, John Cornwell, Steve Dobur, and Jay Walker L O G C Exh 1(a) 11 The charge in Case 11-CA-11112, filed on October 31, again al- leged surface bargaining (G C Exh 1(i)), and the second consolidated complaint, which issued on May 3, 1984, alleged that Respondent had bargained in bad faith with no intention of reaching agreement (G C Exh. 1(z), par 14). 12RExh 6 ees.13 The partial dismissal was appealed by the Union, and was sustained on January 31, 1984.14 4. October 5 bargaining session As indicated above, the parties met on four occasions between June 23 and the October 5 session.15 At the latter meeting, the parties agreed that Huffman asserted that it was his understanding that the Company was ready to bargain concerning the release of polygraph re- sults. Baucom testified that he told Huffman that the Company had agreed to do so as part of a proposed set- tlement of the outstanding complaint, but that the Union's attorney had disagreed with the proposed settle- ment and had appealed it. Accordingly, Baucom testified that he told Huffman, the Company did not know where the matter stood at the moment. Huffman conceded that the parties disagreed on the then current status of the matter. Baucom testified that Dowd told Huffman the material was confidential because the employees had been told that the information would be revealed only to company officials. Further, Baucom told Huffman that the state- ments made by employees implicated other employees in the bargaining unit, that the unit might be damaged, and that the Company might be liable if it divulged such in- formation. Huffman corroborated this testimony, and I credit it. Further, according to Baucom, Huffman then said that he would defer any further discussion of the matter until he had a chance to consult his attorney. Huffman agreed that it was possible that he said this. I credit Baucom's testimony as to the way in which the matter concluded on October 5. Huffman testified that he had not received any infor- mation on polygraph testing by the time of the hearing. Baucom testified that the matter never came up between the parties subsequent to the October 5 bargaining ses- sion. 5. Legal analysis and conclusions a. Employer's obligation to disclose relevant information It is well established that an employer must provide a bargaining representative with relevant information nec- essary for the proper performance of the representative's duties . NLRB v. Acme Industrial Co., 385 U.S. 432, 435- 436 (1967). Where the request concerns conditions of employment within the bargaining unit, the request is presumptively relevant . Pfizer, Inc., 268 NLRB 918 (1984). The Board has held that a request for information as to the reasons an employer has disciplined employees constitutes a request for relevant information . General Dynamics Corp., 270 NLRB 829 (1984). As the polygraph information requested by the Union in this case presum- ably contained the reasons that at least some of them had is G.C Exh 1(c) 14 Stipulation of the parties 15 August 15 and 16 and September 7 and 8. 528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD been discharged, I conclude that it constituted relevant information. b. Issue of confidentiality The duty of disclosure is not absolute, however. In Detroit Edison Co., 218 NLRB 1024 (1975), enfd. 560 F.2d 722 (6th Cir. 1977), vacated and remanded 440 U.S. 301 (1979), the company administered aptitude tests to employees with the promise that the test scores would remain confidential. The tests and test scores were kept in the offices of the company's industrial psychologists, who deemed themselves ethically bound not to reveal them to management or union representatives. The union requested all the materials, and, although the company supplied some of it, it declined to turn over the actual test battery and the scores of each applicant . Later, during an arbitration proceeding, the company offered to turn over additional information, and the scores of indi- vidual applicants who signed waivers releasing the psy- chologists from their pledge of confidentiality. The union declined to seek such releases. The Board held that the company's refusal to supply the materials violated Sec- tion 8(a)(5) and (1), and ordered the respondent uncondi- tionally to turn over the test and test scores to the union. The Board's order was enforced by the Court of Appeals for the Sixth Circuit. The Supreme Court disagreed. The Court noted that "[t]he sensitivity of any human being to disclosure of in- formation that may be taken to bear on his or her basic competence is sufficiently well known to be an appropri- ate subject of judicial notice." 440 U.S. at 307. Accord- ingly, the Court stated, "[t]here are situations in which an employer's conditional offer to disclose may be war- ranted," and concluded that this was one such case. Id. The Court concluded that the Board's order requiring the company unconditionally to disclose the employee scores to the union was erroneous, and vacated the order of the Sixth Circuit Court of Appeals. Thereafter, the Board reached a similar conclusion on the issue of confi- dentiality of employee medical records. Johns-Manville Sales Corp., 252 NLRB 368 (1980). In other cases, the Board has based a fmding of confi- dentiality in part on the employer's interest in protecting trade secrets, t 6 and on a private study prepared in con- templation of litigation. General Dynamics Corp., 268 NLRB 1432 (1984). In the instant case, the requested polygraph records presumably include employee responses to questions in- volving use of drugs or alcohol, and crimes such as theft and sabotage. Such records may well include instances of hospitalization or incarceration. The sensitivity of any human being to disclosure of such information is at least as well known as the sensitivity to disclosure of evidence relating to an individual's competence, cited by the Court in Detroit Edison. It is true that the information requested by the Union was not kept exclusively by the polygraph testing com- pany, unlike the retention of the aptitude test scores by the company psychologists in Detroit Edison, and was disclosed to management representatives. However, in this case the employees were promised only limited con- fidentiality, in that the Company assured them that the information would be disclosed only to plant officials. In similar circumstances, where medical records were dis- closed to various persons in the supervisory hierarchy, the Board held that there nonetheless existed "a legiti- mate aura of confidentiality." Johns-Manville Sales Corp., supra at 368. In addition, the Company has asserted an interest in protecting itself against potential liability in the event of disclosure. In these circumstances, I conclude that the polygraph information requested by the Union was confidential. c. Employer's obligation on receipt of a request for confidential information The Board has concluded that an employer who, on receipt of a request for both confidential and nonconfi- dential information responds with a blanket refusal, thereby violates Section 8(a)(5).17 The Board further concludes that the appropriate remedy in such circum- stances is to require the parties to bargain in good faith in an attempt to reach an accommodation of their respec- tive interests with respect to the confidential information, and to require the employer to furnish the nonconfiden- tial information to the Union.18 Information about which an employee has a right to privacy, such as medical records, is not quite the same. In Johns-Manville Sales Corp., supra, the Board stated that in such circumstances "[t]he privilege in question be- longs to the employees and not to the Respondent." 252 NLRB at 368. Nor does it belong to the Union. I submit that requiring the parties to bargain over a privilege which does not belong to either of them is an inappropri- ate remedy. Instead, the employer should be required to release the information to the Union on receipt of au- thorization from the employee who is the subject of the information. 19 Respondent, in its posthearing brief, states that "[t]he union made no proposal toward protecting the privacy of the employees." This statement appears to argue that a union demand for relevant, confidential information is somehow inadequate unless it proposes a resolution of the confidentiality issue. This puts the matter backwards. A union has no way of knowing to what extent, if any, employer records of employees contain confidential in- formation. Such information is peculiarly within the knowledge of the employer, and it is the latter's responsi- bility to assert it. Utilizing the Supreme Court's language in Detroit Edison, which is repeated by the Board in Min- nesota Mining Co., supra, on receipt of such a demand 16 Colgate-Palmolive Co, 261 NLRB 90 (1982); Borden, Inc, 261 NLRB 64 ( 1982), Minnesota Mining Co, 261 NLRB 27 (1982), enfd. sub nom Oil Workers Local 6-418 Y. NLRB, 711 F 2d 348 (D C Cir 1983), Plough, Inc, 262 NLRB 1095 (1982); Kelly-Springreld Tire Co., 266 NLRB 587 (1983) 17 Authority cited in fn 16 18 Ibid 19 See Johns-Manville Sales Corp, supra See also N J Bell Telephone Co. v. NLRB, 720 F 2d 789 (3d Cir 1983), denying enf 265 NLRB 1382 (1982) TRITAC CORP. 529 the employer must make a "conditional offer to dis- close " 261 NLRB at 30. This procedure is all the more appropriate herein be- cause confidentiality is also based on Respondent's assert- ed interest in protecting itself against liability in the event of disclosure How could the Union possibly know the potential ground for such liability when it does not even know the information in the first place ? According- ly, where confidentiality was grounded on the employ- er's interest in protecting the privacy of a study prepared in preparation of litigation, the Board held that the re- spondent's "complete refusal" to honor a request for the study was violative of Section 8(a)(5) and ( 1). General Dynamics Corp., supra.20 In this case, as noted above , confidentiality is based both on the employees' right to privacy, and on the em- ployer's asserted right to avoid liability for disclosure. The case is thus similar to Minnesota Mining Co., Col- gate-Palmolive Co., and Plough, Inc., supra. However, in those cases, the Board found that the respondent had violated the Act by refusing to turn over medical data that did not contain characteristics identifying particular individuals. The reason for the exclusion of identifying characteristics was the fact that the union's responsibil- ities did not require such individual knowledge . In this case, however, the Union does need to know the poly- graph information concerning each employee , because its stated objective is to defend each employee against the discipline imposed on him or her by Respondent. It is obvious that this is impossible without knowing the names of individual employees and the supposed deroga- tory information about them contained in the polygraph records. I therefore conclude that Respondent 's appropriate re- sponse to the Union's request for polygraph information would have been an offer to submit such information conditioned on employee consent in all cases where the company asserted no right to protect itself against liabil- ity, and, as to cases in which it did assert such a right, an offer to bargain with the Union in order to accommodate their respective interests , with the further condition that the employee's consent be obtained. Inasmuch as Respondent made no such conditional offer, it would appear that its refusal to honor the Union's request was violative of the Act. d. The waiver issue The record, however, contains evidence that raises the issue of whether the Union waived its right to this infor- mation . The credited evidence shows that union repre- sentative Huffman told company representatives, during the June 23 bargaining session, that he would call to make an appointment to see the polygraph information, but did not make the call. The Union did file a charge on July 29 alleging, inter alia, that the Company's failure to provide information for bargaining was violative of the Act. This was fol- lowed by four bargaining sessions. Thereafter, there was a partial dismissal of allegations in the charge unrelated to the alleged failure to provide information, issuance of complaint on the latter, an appeal of the partial dismissal, and, apparently, some settlement discussion. At the Octo- ber 5 bargaining session , the parties disagreed on the status of the matter. Huffman said that he would defer discussion of the subject until he had an opportunity to consult his attorney, and the matter was never again raised during the bargaining sessions that followed. The right to relevant information is a statutory right, and waiver of such right may not be found unless the waiver is expressed in clear and unmistakable language. Proctor & Gamble Mfg. Co., 603 F.2d 1310, 1317-1318 (8th Cir. 1979), enfg. 237 NLRB 747 (1978), and author- ity cited therein. "Even when the parties consciously ex- plore the matter during negotiations and the contract fails to touch upon it, something more is required before the union will be held to have bargained away its rights, name, a conscious relinquishment by the union, clearly intended and expressed." Perkins Machine Co., 141 NLRB 98, 102 (1963), enfd. 326 F.2d 488 (1st Cir. 1964). The record in this case is devoid of any evidence that the Union consciously relinquished its right to the re- quested information. Although Huffman failed to call the Company after the June 23 session, he did not withdraw his request for the information, and, indeed , filed a charge on July 29 based, in part, on the Company's fail- ure to supply the information . Thereafter, the parties met on four separate occasions prior to the October 5 session, and the Company could have supplied the information or could have made a conditioned offer to do so during those sessions. Instead, it remained silent on the issue. Respondent argues, in its posthearing brief, that the par- ties put the matter "on ice" pending the Union's appeal of the Regional Director's partial dismissal. But that appeal concerned the Regional Director's dismissal of other allegations in the charge. As for the subject 8(a)(5) allegation, complaint issued in Case 11-CA-10976 on September 12. It alleged that Respondent violated Sec- tion 8(a)(5) and (1) by refusing to provide the Union with the results of the polygraph examinations.21 Re- spondent received a copy of the Regional Director's par- tial dismissal of the charge that stated : "However, this does not affect the remaining Section 8(a)(1) and (5) alle- gations in the charge."22 Although Huffman told the company representative on October 5 that he would defer further discussion of the issue until he had an opportunity to consult with his at- torney, this did not constitute conscious relinquishment of the Union's statutory right to the information. Defer- ral does not constitute abandonment . In a similar case in which the company contended that the union first raised and then abandoned its demand for information , the First Circuit stated that the "sparse bargaining history" did not contain evidence of a "clear and unmistakable" waiver by the Union. Communications Workers Local 1051 v. NLRB, 644 F.2d 923 (1st Cir. 1981), enfg. 250 NLRB 47 (1980). Respondent's "on ice" theory appears to be that the parties, on October 5, somehow settled the outstanding 20 268 NLRB at 1433 21 G C Exh 1(c) 22 R Exh 6 530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD complaint that issued on September 12. It is well estab- lished, however, that "the Board alone is vested with lawful discretion to determine whether a proceeding, when once instituted, may be abandoned." Robinson Freight Lines, 117 NLRB 1483, 1485 (1957), enfd. 251 F.2d 639 (6th Cir. 1958).23 e. Conclusion For the foregoing reasons , I conclude that Respond- ent, by its failure to respond to the Union's request for confidential information with an offer to submit such in- formation conditioned on employee consent in all cases in which Respondent asserted no confidentiality interest of its own; and, in the instances in which it did assert such an interest, by its failure to offer to bargain with the Union in an effort to accommodate their respective inter- ests, subject to receipt of employee consent , thereby vio- lated Section 8(a)(5) and (1) of the Act. This conclusion is consistent with the recent decision of the United States District Court for the Middle Dis- trict of Georgia holding that a polygraph examination is not a valid test of whether a person is answering ques- tions truthfully, and that discipline or discharge of a mu- nicipal employee based in whole or in part on such a test results in denial of due process. Freddie Hester V. City of Milledgeville,, 598 F.Supp. 1456, (M.D. Ga. 1984). C. Alleged Unlawful Refusal to Supply Information on Costs of Insurance 1. Summary of the evidence The Company provided life and disability insurance for its employees. According to Company Representative Baucom, the Company was "self-insured" with respect to the disability insurance. I infer from this testimony that Respondent utilized an insurance carrier for the life insurance. The parties engaged in bargaining over wages in the tenth session, on October 11. In connection with a wage proposal, the Company offered an increase in life insur- ance benefits of $500 per employee, and an increase in disability benefits of $2.50 per week. According to com- pany representative Baucom, the latter offer was in- creased to $5 the next day. Union representative Huffman testified that he asked on October 11 what the cost of the increase was to the Company. The company representatives said that they did not know, but that it was nominal. On October 12, Huffman said that he wanted to put the cost of the insur- ance increase "elsewhere" in employee benefits, and again asked the cost of the increase in life and disability insurance. The company representatives again replied that they did not know. Huffman agreed on cross-exami- nation that the cost was "probably nominal." The testimonies of the company representatives are not entirely consistent. At one point, Baucom's testimony reads as follows: We never really fully understood that he [Huffman] was making a specific demand for the information. It was like a point of inquiry, you know, "What's the cost of this?" Elsewhere, Baucom agreed that Huffman asked for "the cost" of the insurance benefit increases, and repeated this request in the next session. With respect to the cost of the life insurance increase, Baucom testified that Respondent simply could not go to its insurance carrier and ask the cost of "a $500 improve- ment to life insurance on a very small piece of a very large contract very easily." The work engaged in by ac- tuaries is "a long process and is very tedious and meticu- lous work." Because of the fact that Respondent was self-insured on disability insurance, Baucom asserted, the requested cost of the addition was "very difficult to compute. You can have a small cost factor . . . this year, and next year it can just go right out of sight." With respect to the costs of both kinds of insurance, Baucom said that he was "not sure it is even possible" to comply with the Union's request, and that the Company "didn't really know how to get that information." The Company had engaged in "a great deal of analytical work" to "cost out" the various wage proposals. Baucom maintained that the Company refused to comply with the request for insurance information only to the extent that it was "unable" to do so. Company negotiator Dowd flatly denied that the Company ever refused to supply the information. 2. Factual and legal analysis The evidence clearly shows that, during negotiations over economic matters, the Company offered increases in life and disability insurance. It is also clear that the Union asked for the cost of the increases, saying that it wanted to apply that cost elsewhere to employee bene- fits. Also, there is no doubt that the Company failed or refused to supply the information. The cost, as conceded by Huffman, was "nominal," although the exact meaning of this adjective is not indicated in the record. Knowledge of the cost of life and disability insurance provided to employees is reasonably necessary to the functioning of a collective-bargaining representative. Borden, Inc., 235 NLRB 982 (1978), enfd. in relevant part 600 F.2d 313 (1st Cir. 1979).24 I conclude that the rel- evance of such knowledge is not vitiated by the fact that the cost was "nominal." It is not clear whether Respond- ent contended it was "nominal" in connection with its overall insurance costs, or "nominal" if used to increase other employee benefits. The Company submitted vari- ous wage proposals. The vagueness of the characteriza- tion of the insurance cost as "nominal" makes it unwar- ranted to conclude that, if Huffman had decided to apply the cost of the insurance to one of the Company's wage proposals to increase the amount, the result would have been so negligible as to have had no effect on the bar- gaining process. Accordingly, the information was pre- sumptively relevant. 23 See Panoramic Industries, 267 NLRB 32, 39 (1983) 24 Cf E I du Pont & Co, 271 NLRB 1245 (1984) TRITAC CORP. 531 With respect to the burden imposed on Respondent by the request for life insurance data, Baucorn never con- tended that it was impossible to ascertain this figure. He simply asserted that the Company could not go to its carrier and ask for the cost, although the reason that it could not do so is unstated. Apparently, it was the fact that the work of actuaries is long, tedious, and meticu- lous Similarly, the company representative did not con- tend unequivocally that the disability information was impossible to obtain. He simply asserted that it was "dif- ficult to compute" because of the Company's self-insured status. And, apparently with respect to the costs of bpth insurance proposals, Baucom variously asserted uncer- tainty about the way to get the information, and doubt that it was possible to do so. Respondent argues in its posthearing brief that union representative Huffman "was in as good a position as the company to estimate the [in- surance] cost"-an argument that is. plainly wrong. Respondent cites Korn Industries v. NLRB, 389 F.2d 117 (4th Cir. 1967), enfg. in part 161 NLRB 866 (1966). In that case, the Board had rejected the company' s argu- ment that the requested data (employee names, classifica- tion, wage rates, and seniority positions) did not exist on the ground that no proof had been advanced in support of this contention. Moreover, it was clear from the re- spondent's proposals that at least some of the information existed, and the Board held that the company violated the Act to the extent that it failed to furnish the informa- tion that did exist. The court reversed the Board on this point, holding that the Board's finding that the company had not supplied all the information that it had was not supported by substantial evidence. Included in the court's opinion is the dictum, relied on by Respondent, that an employer "cannot be required to furnish informa- tion which is not available to it." 389 F.2d at 123. On the facts in this case, it is by no means clear that the information requested by the Union was not " avail- able" to the Company. Moreover, the Board and the courts have imposed on employers the responsibility to engage in some effort to comply with requests for rele- vant information. In Borden, Inc., supra, the union, inter alia, requested the cost of insurance for unit employees, and the compa- ny responded with the average corporate cost per em- ployee. The Board noted that at least some of the infor- mation requested by the union was already available to the company, and added the following statement: Moreover, even if some of the information was un- available in the form requested, the record indicates that Respondent fell short of its obligation to make a reasonable effort to obtain this information, or to explain or document the reasons for its unavailabil- ity. [235 NLRB at 983.] Accordingly, the Board concluded, the company violat- ed Section 8(a)(5) and (1) by failing to provide the Union with the requested information. 235 NLRB at 984-985. The decision of the Court of Appeals for the First Cir- cuit, enforcing this portion of the Board's decision, con- tains the following passage: ... Despite the Union's persistent requests for the Leominster (unit) costs, [the company representa- tive] did not attempt to obtain further information from Company headquarters as to reasons why the corporate costs could not be allocated nor did he explore alternatives. The blanket refusal of the Company's chief nego- tiator to do more than repeat to the Union the Company's statement that unit figures were not available does not evince a good faith bargaining effort. . . . [600 F.2d at 317.] In Chesapeake & Potomac Telephone Co., 259 NLRB 225 (1981), enfd. 687 F.2d 633 (2d Cir. 1982), the Board affirmed the administrative law judge's finding that the company representative's testimony about the difficulty of obtaining the requested information was "vague, sec- ondhand, and contradictory." 259 NLRB at 231. This is a fair characterization of Respondent's position in this proceeding. The finding in Chesapeake & Potomac was cited with approval in the decision of the Court of Ap- peals for the Second Circuit enforcing the Board's Order. 687 F.2d 638. The Court of Appeals for the District of Columbia Circuit has also rejected claims than an employer's obli- gation to provide information was too burdensome, noting that such matters can be dealt with at the compli- ance stage of the proceeding. Oil Workers Local 6-418 v. NLRB, 711 F.2d 348, 363 (D.C. Cir. 1983), enfg. 261 NLRB 27 (1982), 261 NLRB 64 (1982),.and 261 NLRB 90 (1982).25 For these reasons, I conclude that Respondent, by fail- ing to submit the requested information on costs of insur- ance to the Union, thereby violated Section 8( a)(5) and (1) of the Act. D. The Alleged Unilateral Increase in Starting Wages on October 12 1. The 10th and 11th bargaining sessions a. Summary of the evidence At the ninth bargaining session on October 5, the Union presented an economic proposal that included a wage increase. The testimonies of the witnesses establish that, at the next session on October 11, Company Nego- tiator Dowd told the union representatives that the Com- pany's starting or entry level wage rates were not com- petitive with the rest of the industry, according to a survey. Accordingly, Dowd stated, the Company was experiencing a high turnover rate and proposed to in- crease starting rates quickly. Union Representative Huffman asked what the amounts of the increases would be, and the job classifica- tions to which they would apply. Dowd replied that the as Respondent has not set forth in this record any of the details of bur- densomeness described in Westinghouse Electric Corp., 129 NLRB 850, 859-861 , 866 (1960) In McCulloch Corp, 132 NLRB 201, 208-209 (1961), the facts are distinguishable, and the trial examiner appears to have relied on a rationale different from that set forth by the Board and affirmed by the courts in the more recent cases cited above 532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Company had not made its determinations on these mat- ters yet, but that the increases would probably range from 0 to 10 percent. The evidence is conflicting about what was said next in the 10th session. According to company negotiator Dowd, Huffman responded to Dowd's statement by averring that the Union's proposal was based on "single rates . . . and words to the effect that [the Union] had no objection to a training rate." Dowd asked Huffman for suggestions, but the union representative did not give any. Dowd testified that he took Huffman's silence and lack of objection as agreement with the Company's pro- posal. Company Representative Baucom described Dowd's announcement about starting rates, Huffman's questions, and Dowd's responses thereto in a manner similar to Dowd's. Baucom's testimony at this point reads as fol- lows: And then there was no response by Mr. Huffman at all. At that point Mr. Dowd said, "What next?" And I believe the union caucused and came back in and discussed other subjects. The starting rates really never came up again in that session. Baucom immediately corrected this testimony, and contended that, after other subjects had been discussed and the Union had caucused, Huffman said, "We're only interested in proposing the single rate structure for fully qualified employees. Until that time you can pay them a training rate." Baucom asserted that he took this to mean that the Union was "not concerned" about negotiating a "training rate," but only about the "top rate" after em- ployees had qualified. Asked on cross-examination whether Huffman said that it was all right for the Com- pany to implement new starting wage rates without con- sulting the Union, Baucom replied, "Not directly." On cross-examination, Huffman described the wage pattern in the industry as one of both single and progres- sive rates. At the time of the negotiations in this case, Respondent had a progressive rate structure, whereby the employees received quarterly increases. In the bar- gaining process in this case, however, each party was using a single rate structure, i.e., each was proposing one rate to which the other did not agree. Huffman described a "starting rate" as one that contin- ues from the beginning of employment until the end of the probationary period, 60 to 90 days, depending on the terms of the contract. A "training rate," on the other hand, is one that continues beyond the probationary period until the employee is qualified A training rate is "separate and distinct" from a starting rate, according to Huffman. The Union's wage proposal set forth the rate to be paid a fully qualified employee after training. Huff- man denied that he was thereby telling the Company that the Union did not care what it did about starting rates. He did not recall telling Dowd that the Company could pay a training rate, and denied that either party was talking about training rates. As described above, when Dowd proposed an increase in starting rates, Huffman asked for the amounts and ap- cated by the witness plicable classifications. When the Company said that it did not have this information , Huffman saw no reason to give a response, because he "didn't know what they were even talking about." He denied that Dowd asked him for suggestions . Huffman acknowledged telling an employee at a membership meeting that he did not object to the Company's giving the employee his quar- terly raise . As noted above, Huffman stated that the Company had a rate structure providing for quarterly in- creases during the time that the negotiations were taking place. Joe Pierce, a union committeeman, was present at the hearing at the request of counsel for the General Coun- sel, but was not called by her. Instead , he was called by Respondent, and questioned concerning notes that he took during the bargaining sessions. The notes of one session read as follows: Company said their wages were low according to survey. They were going to raise them zero to ten percent on starting rates. He said, what classifica- tion and what percent is to be applied to this or those rates. The company said that they hadn't worked the details out, but would let us know .26 Pierce testified that the notes in question were made during the bargaining session, but that the language given above was added to his notes at a later time just before he gave an affidavit to a Board agent. With re- spect to a similar addition to his notes for the following day, Pierce said that he did this so that he could "re- member it," and that no one had told him what to put into his notes, or what to say to the Board agent. He did not take complete notes at the time of the bargaining ses- sions, because he believed that he would need them only for the next session. b. Factual analysis The evidence is undisputed that the Company pro- posed an increase in "starting rates." None of the compa- ny witnesses contended that it proposed an increase in "training rates." It is also clear that the Union asked for the rates and the employees involved, and that the Com- pany said only that it had not yet made these determina- tions, but that the increases would be from zero to 10 percent. I also accept Huffman's unrebutted testimony distinguishing starting rates from training rates. Respondent's evidence to the effect that Huffman told the Company that he had no objection to its increasing starting rates is unpersuasive. In the first place, none of Respondent's witnesses testified that he said this, and Baucom agreed that Huffman did not say so "directly." Respondent's argument that Huffman did so indirectly by a reference to training rates is not compelling. In the first place, Dowd alleges a statement from Huffman only "to the effect" that the Union did not object to a training rate (not to an increase thereto). Baucom first testified that there was no response from Huffman after Dowd's starting rate proposal. He then added, however, that 26 Notes read into the record by Respondent's counsel, and authenti- TRITAC CORP. 533 Huffman said he had no objection to a training rate after the parties had discussed other subjects. The record shows that the other principal subject during the 10th bargaining session was the Company's wage proposal in response to the Union's proposal, wherein the Company suggested a decrease in the "top rates." Each party called the other's proposal "ridiculous." Huffman did not recall saying anything about a train- ing rate . It is highly improbable that the union represent- ative, an experienced negotiator, would have agreed to a unilateral change by the Company on a subject over which the parties were then engaged in intense negotia- tions.27 Because of this improbability, the inconclusive- ness of the evidence on what was said about training rates, and the undeniable difference between training rates and starting rates, I conclude that Huffman did not "indirectly" tell the Company that he had no objection to an increase in starting rates. All that happened was that the Company made an incomplete statement about a proposed increase in starting rates. When it failed to re- spond to Huffman's inquiry concerning the rates and em- ployees involved, Huffman remained silent.28 2. The starting rate increase and 11th bargaining session, October 12 a. Summary of the evidence Company Representative Baucom testified that, at the end of the 10th bargaining session on October 11, the Company looked at its wage survey data and turnover rate and "made the adjustments" the next day, i.e., in- creased starting rates. The 11th bargaining session took place in the afternoon of the next day. Company negotia- tor Dowd gave union representative Huffman a notice from the company bulletin board announciing increases in starting rates for all classifications in the plant. Dowd said that the increases averaged about 5 . 3 or 5.4 percent, and that this represented a "balanced approach," consid- ering the Company's proposed reduction in "top rates." Baucom contended that , although Huffman talked about insurance and other subjects, he did not protest the starting rate increase at that time. Dowd , on the other hand, testified that Huffman objected to the "action that had been taken." The company negotiator replied that he had interpreted Huffman's silence during, the prior ses- sion as agreement with the Company's proposed in- crease. Huffman testified that he did object, although not strenuously , and said that he would submit a counter- offer. b. Factual analysis The evidence is clear that the Company increased starting rates on October 12, and then notified the Union 27 The fact that Huffman told an employee that the Union had no ob- jection to the employee's receiving his regular quarterly increase has nothing to do with the subject of the bargaining, nor is there any evi- dence that this statement was made at the time of the 10th and 11th bar- gaining sessions 28 It is unnecessary to rely on Pierce's notes to reach these conclu- sions Those notes in any event merely recite the Company's starting rate proposal , Huffman's inquiries, and the Company 's response thereto-as established by other witnesses of the rates and employees involved. Because Baucom was contradicted by both Dowd and Huffman, I do not credit his testimony that Huffman failed to protest this action, and, instead, find that Huffman did protest.29 3. The 12th bargaining session and the filing of charges At the 12th bargaining session about a week later on October 19, Huffman proposed that the Company re- scind the starting wage increases, and apply the amounts thereof against the Company's proposed decrease in top rates. Dowd told Huffman that the latter had already agreed to the increase in starting rates. Huffman denied this, saying that the parties had "signed and stamped" everything that had been agreed on, and that the Compa- ny could not point to any such agreement on starting wages. The parties, in fact, did sign and date agreement on various articles as they were made. Although agree- ments of this nature are in evidence, there is no such agreement concerning a starting wage increase.30 Huffman said that he was going to file charges, and Dowd replied, "Go ahead and file your charges. You'll get about as far as you did the last time you filed charges." On October 31, the Union filed a charge that the Company had unilaterally changed wage rates and had engaged in surface bargaining.31 4. Factual and legal analysis and conclusions It is well settled that "an employer's unilateral change in conditions of employment under negotiation is . . . a violation of Section 8(a)(5), for it is a circumvention of the duty to negotiate which frustrates the objectives of Section 8(a)(5)." NLRB v. Katz, 369 U.S. 736, 743 (1962).32 The principle exception to this rule is where 29 Respondent again elicited testimony from Pierce about what Pierce said in his notes about this session As before, I have not relied on those notes 30 In response to a question on cross-examination as to whether the parties had "sign[ed] off" on "ground rules," Huffman replied in the neg- ative However, in G C Exh 4, a group exhibit, the first document reads as follows During the course of contract negotiations, the Company and the Union will initial those articles which are mutually agreed upon However, the Company or the Union may alter, change, add to or delete from, or withdraw any proposal or any article pnor to accept- ance by the Company or ratification by the employees This document is purportedly signed by Huffman and Dowd, and is dated June 2 Huffman was shown the document on cross-examination, said that he had agreed to it, and that it applied to "anything that was on the table " Many of the remaining documents in the group exhibit consist of signed and dated agreements of the parties on various articles Each such agreement is stamped with the language of the first document, stated above Other documents are company proposals on which there was no agreement (G C Exh 4) I conclude that the signatures are genuine, and that the documents rep- resent the agreements of the parties on various dates Si G C Exh 1(i) 32 See also Old Man's Home of Philadelphia, 265 NLRB 1632 (1982), revd on other grounds 719 F 2d 683 (3d Cir 1983), European Parts Ex- change, 270 NLRB 1244 (1984), Great Lakes Coal Co, 268 NLRB 1207 (1984) 534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the parties have reached an impasse. However, there is no issue of impasse in this case-on the contrary, the Company asserts that the parties reached agreement. The evidence does not support this argument. Al- though the parties had "signed and stamped" articles on which they had previously agreed, and although at least some of these agreements are in evidence, there is none concerning a starting wage increase. There is, therefore, no documentary evidence in support of the Company's position that agreement was reached, although docu- ments manifesting other agreements are in evidence. What actually happened is that the Company an- nounced that it proposed to increase starting wages. When union agent Huffman asked the amount of the in- creases and the employees involved, the Company said that it had not yet made these determinations. Respond- ent's argument, in effect, is that Huffman's silence in the face of this response gave the Company carte blanche to make any change in starting wages that it wished to make. In essence, the Company argues that Huffman's conduct amounted to waiver by silence. This argument is also devoid of merit. As the Court of Appeals for the Ninth Circuit has stated, "An employer must give express notice of specific proposals before im- plementing unilateral changes." American Distributing Co. v. NLRB, 715 F.2d 446, 451 (9th Cir. 1983), enfg. 264 NLRB 1413 (1982). In light of the Company's failure to answer Huffman's inquiries about the amount of the in- creases and the employees to whom they applied, Re- spondent did not make a "specific" proposal. As the Court of Appeals for the Sixth Circuit has stated with respect to similar facts, "[t]he union's silence in the face of [the employer's] erroneous legal claims does not constitute a clear and unmistakable waiver." Park-Ohio Industries v. NLRB, 702 F.2d 624, 628-629 (6th Cir. 1983), enfg. 257 NLRB 413 (1981). Finally, it must be noted that Respondent, after its brief and incomplete statement to the Union on October 11, promptly instituted the starting rate increases the next day prior to the afternoon bargaining session. In similar circumstances, the Court of Appeals for the Fifth Circuit, citing two of its own prior decisions and one from another circuit, has stated as follows: The company's second defense . . . is that the union waived its right to bargain over the layoffs by failing to protest them. It is, however, well estab- lished that a union cannot be held to have waived bargaining over a change that is presented to it as a fait accompli [authority cited]. "An employer must at least inform the union of its proposed actions under circumstances which afford a reasonable op- portunity for counter arguments or proposals" [au- thority cited]. ("Notice, to be effective, must be given sufficiently in advance of actual implementa- tion of a decision to allow reasonable scope for bar- gaining . . . Notice of a fait accompli is simply not the sort of timely notice upon which the waiver de- fense is predicated.") [Citations omitted.] Simply put, a union cannot be found to have waived bar- gaining when it never had an opportunity to bar- gain. [Gulf States Mfg. v. NLRB, 704 F.2d 1390, 1397 (5th Cir. 1983), enfg. in part and denying in part 261 NLRB 852 (1982).] I therefore conclude that, because Respondent did not submit a complete and specific offer for an increase in starting wages, and because it failed to give the Union an adequate opportunity to bargain over the matter, the Union did not waive its right to bargain over this issue. Accordingly, by its unilateral increase in starting wage rates on October 12, Respondent thereby violated Sec- tion 8(a)(5) and (1) of the Act. F. Alleged Unlawful Change in Pension Plan 1. Factual summary The complaint alleges that, about December 15, Re- spondent "unilaterally changed the pension plan applica- ble to its employees." According to Union Representative Huffman, the par- ties agreed to a pension plan during the October 12 bar- gaining session. This was a plan already in effect at other plants owned by Cellu Products Company. Included in the eligibility provisions were requirements that a partici- pant be 25 years of age, and not be included in a collec- tive-bargaining unit.33 Huffman said that he believed that the company representatives agreed to delete these two provisions, but that it was "not signed out." The Company was going to prepare a new document with these deletions, which would be signed at a later date. Company negotiator Dowd acknowledged that the Company agreed to delete the requirement that a partici- pant not be a member of a collective-bargaining unit, but denied that the Company ever agreed to waive the age requirement, and denied that the parties had ever "signed off" on the agreement. Baucom referred to a "verbal agreement to strike the non-union clause," and concurred with Dowd that the parties had not "signed off' on the matter. Baucom also testified that "no benefits had actu- ally accrued to any union member, [and] there was no one actually in the pension plan at that time at Tritac." There is no signed article, evidencing agreement on a pension plan, included in the other articles signed by the parties.34 As set forth above, Sealed Air Corporation acquired Cellu Products Company and its Tritac subsidiary on October 5. Baucom testified that Sealed Air became ac- tively involved in management in mid-December. Sealed Air decided to terminate the existing pension plan, be- cause certain of its provisions violated Federal rules gov- erning pension plans, and to substitute a new plan begin- ning January 1, 1984. Accordingly, Dowd called Huffman about December 13, and the parties held their last bargaining session on December 15. The company representatives said that Sealed Air had taken over, and that the existing plan did not meet Federal regulatory requirements. The Company presented Huffman with a different plan that, they said, was in effect between the Union and another company 88 G C Exh 4, union attachment 8, "Your Retirement Plan . Cellu- Products Company Retirement Plan Il," p 2. 34 Supra, fn 30 TRITAC CORP. 535 plant at Paxinos, Pennsylvania. This plan did not have the eligibility requirements to which the Union had ob- jected with regard to the original plan presented by the Company.35 The company representatives said that it was a better plan, and Huffman agreed on cross-examina- tion that it was "probably" better. Huffman replied to the company representatives that they already had agreed on a plan, and that he would need time to prepare a counteroffer. Dowd became upset, and said that the substitute plan was the one that would be installed January 1, according to Huffman. Baucom denied that either company representative ever said this, and denied that the "Paxinos Plan" was ever put into effect at Tritac. Under date of December 21, Huffman wrote Dowd saying that he had not had time to prepare a counterpro- posal because of his busy schedule.36 2. Legal analysis and conclusion It is doubtful that the parties ever agreed to a pension plan. Huffman stated only his belief that the Company had agreed to delete both the age and nonunion require- ments from the original plan, whereas Dowd denied that the Company ever agreed to waive the age requirement. Baucom's testimony-that the Company had agreed "to strike the non-union clause"-tends to support Dowd. There is no documentary evidence of any such agree- ment, and, in any event, the parties signed a provision that allowed them to withdraw agreed-on provisions prior to acceptance.37 No pension plan was ever begun for the employees at the Tntac plant. It is therefore clear that Respondent did not, as alleged in the complaint, change a pension plan "applicable to its employees." The original plan was either subject to fur- ther negotiation, or, if agreed on, was withdrawn ac- cording to procedures agreed on between the parties.38 I therefore conclude that Respondent has not violated the Act as alleged in this section of the complaint, and will recommend that the allegation be dismissed. G. Alleged Unlawful Withdrawal of Recognition 1. Summary of evidence As set forth above, the Board election on March 4, 1983, resulted in 11 votes for the Union and 9 opposed to it. Supervisor Lisa Hahn testified that, following the an- nouncement of the tally of ballots, five or six employees said that the same thing would not happen the following year. Plant Manager Martin J. O'Toole affirmed that, im- mediately following the election, six employees began wearing antiunion T-shirts. Two employees asked him how to get rid of the Union. Three employees said that they were not going to join the Union, and that they would wait a year and see what happened. O'Toole fur- ther stated that a company official gave him a memo in June advising that employee James Webb had said that 38 G C. Exh 4, union attachment 9, "Your Retirement Plan a summary plan description, Cellu-Products Company Retirement Plan No I" 38 G C Exh 7 37 Supra, fn 30 38 See KTCR AM Radio, 272 NLRB 237 (1984). he was fed up with the Union and did not want any part of it. Webb, originally a union supporter, corroborated this testimony. The reason for his disaffection, Webb as- serted, was "the falsehoods they told about the Company and . . . the general attitude of the union members to- wards the Company." Webb gave no examples. He also testified about expressions of dissatisfaction with the Union stated to him by other employees. "All of the statements were just about the same. They wanted the Union out, that it wasn't doing anything for them." Other company officials reported that they had re- ceived similar expressions of disaffection from employ- ees. In sum, a total of four management officials39 testi- fied about receiving such expressions from 10 employ- ees.40 Plant Manager O'Toole testified that Supervisor Larry Robb told O'Toole that two other employees4 i had made such statements to him. Of the 12 employees to whom such statements were directly or indirectly at- tributed, 542 were not employed in the certified unit on March 21, 1984, when Respondent withdrew recognition from the Union as appears hereinafter, and 743 were em- ployed in the unit, which then had, according to Re- spondent, 16 employees. 44 In some instances, the super- visors reported reasons assertedly given by the employ- ees-that things would be much better if the Union left, that an employee made a mistake when he signed a union card, or that the Union had not done anything for any- body. These reports were passed on to Plant Manager O'Toole. The latter testified that he reported all "union related" matters to Company Vice President Baucom. Baucom asserted that two members of the union nego- tiating committee left Respondent's employment after the last bargaining session in December 1983, and that he did not receive notice of replacements. However, Baucom admitted that on prior such occasions, the Union did not give him advance notice of new committeemen, but merely supplied them at the next bargaining session. The next bargaining session after the December 1983 meeting was scheduled to take place on April 3, 1984, but this meeting was cancelled because of the Company's with- drawal of recognition. Employee Mary McLaughlin testified that she voted in the election, and described herself as "more or less neutral." However, by the end of 1983, she was no longer neutral. McLaughlin averred that, although the Union discussed what it was that the Company was doing "wrong," it never "showed anything," and Union Representative Huffman was unable to answer McLaughlin's questions at union meetings. 39 Donald Killian, Lisa Hahn, Phillip H Bracewell Jr, and Martin J O'Toole 40 Dwight Hahn, William C Robinson, James Webb, Wallace 0 MacKinnon, Mary McLaughlin, Frank P Hutchins, Lon A McGrath, David Atkins, Robert Nelson, and Jay Withers 41 Larry Hill and Dennis Neinmeyer. 42 David Atkins, Robert Nelson, Larry Hill, Dennis Nemmeyer, and Jay Withers 43 Dwight Hahn, William C Robinson, James Webb, Wallace O. MacKinnon, Mary McLaughlin, Frank P Hutchins, and Lon A McGrath 44 R Exh. 4 536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD McLaughlin testified that employees Frank P. Hutch- ins and Wallace O. MacKinnon asked her in late Decem- ber, or early January 1984, how to get the Union out of the plant. In late January 1984, McLaughlin had conver- sations with Supervisor Lisa Hahn and Plant Manager O'Toole. After the former declined to discuss the matter, O'Toole told her to contact the Board. McLaughlin did so, and received a letter of explanation, copy of a peti- tion, and two copies of a notice. McLaughlin testified that she had several meetings with employee James Webb in December and January 1984, and that the two of them secured employee signa- tures on individual petitions concerning the Union. McLaughlin said that she composed the language of a petition stating that the employee did not wish to be rep- resented by a union. Neither the Company nor the Union was named. McLaughlin got "4 or 5" individuals to sign this petition. She then called one of the Board's Regional Offices to discuss the language of the petition, and was informed that it was inadequate. McLaughlin then com- posed a new statement, naming the Company and the Union, and approached "all the employees" listed on an exhibit introduced by Respondent. This list is dated March 16, 1984, and contains the names of 16 individ- uals.45 Respondent's counsel stated that it shows the em- ployees in the certified unit on that date.46 McLaughlin said that she obtained "6 or 7" signatures from the people on this list, including her own, which would "make 8." McLaughlin further affirmed that Webb obtained two signatures47 and that the total of signed petitions was 10. At the hearing, McLaughlin examined 10 signed, un- dated photocopies asserting that the signatory, an em- ployee of Respondent, did not wish to be represented by the Union.48 McLaughlin said that these were the 10 pe- titions whose signatures, including her own, had been ob- tained by her and by Webb. As indicated, the latter testi- fied that he obtained the signatures of Charles Barrs and Terry B. Danner. Called as a witness for Respondent, Webb did not examine any of the petitions at the hear- ing. In response to leading questions, he testified that he obtained signatures "on the documents" that had been described by McLaughlin and received into evidence. The names of 2 of the 10 signatories49 do not appear on the list of employees who, according to Respondent, 45 Charles L. Barrs, Tim Verden Beard, Billy Ray Chapman, Charles T. Daniels, Terry B Danner, Dwight T Hahn , Frank P Hutchins, Juan R Lobo, Wallace 0 MacKinnon, Carol Y McElroy, Lon A. McGrath, Mary D McLaughlin, Joe A Pierce, William C Robinson, James D Webb, and Freddie L Whitener (R Exh 4) 48 The record shows that counsel stated that the March 16 date should be replaced with the date of March 21, although the exhibit itself is not so corrected (R Exh 4) 47 This statement was corroborated by Webb, who testified that he ob- tained the signatures of Charles L Batts and Terry B Danner 48 R. Exhs 8(a)-()) Lori McGrath, Mary McLaughlin, James D Webb, Frank P Hutchins , Wallace 0 MacKinnon, Dwight Hahn, Terry B Danner, William C Robinson, Larry Hill, and Jay H Withers 49 Larry Hill and Jay Withers (R Exhs 8(i) and (1)). Compare with R Exh 4 Plant Manager O'Toole acknowledged that Withers was not em- ployed on March 21, 1984 were in the unit when the Company withdrew recogni- tion of the Union on March 21. The remaining eight in- clude petitions purportedly signed by Webb, and by Terry B. Danner, whose signature was obtained by Webb. McLaughlin asserted that 2 of the 10 petitions were not submitted to the Board, because the employees were then on layoff. Accordingly, eight signed petitions were submitted. Before mailing them, McLaughlin called the Regional Office again, and was informed that the peti- tions had to be dated. McLaughlin asserted that she dated them all on the same date, either "the 4th or the 5th. 1150 On March 5, 1984, McLaughlin dated and mailed a de- certification petition to the Board, accompanied by the eight individually signed petitions. The decertification petition asserts that there were then 18 employees in the unit.51 As indicated, Respondent submitted a document dated March 16 or March 21, stating that there were 16 employees in the unit.52 McLaughlin asserted that she received a letter from the Board in mid-March stating that the eight signatures were acceptable. This document is not in evidence. McLaughlin said that she then went to Plant Manager O'Toole and requested a meeting with Vice President Baucom. Baucom testified that he had a conversation with McLaughlin on March 12, 1984. In that conversation, McLaughlin showed him a letter from the Board ac- knowledging receipt of petitions signed by eight individ- uals. There is no evidence that Baucom saw copies of the petitions, and McLaughlin testified that she first supplied copies to Respondent on the day of the hearing. Baucom averred that McLaughlin told him that there were actu- ally 11 signed petitions, two of them by employees on layoff, and that she had submitted nine signed petitions to the Board. Finally, Baucom contended, McLaughlin told him that "all but four" of the employees in the unit preferred to deal directly with management "which would be about 12." McLaughlin was present in the hearing room when Baucom testified, and affirmed that his account of their conversation was accurate. Company Vice President Baucom also stated that he obtained legal advice after talking with McLaughlin, and, on March 20, 1984, went to the plant and talked to the supervisors. The company executive stated that he obtained signed statements from all the supervisors, which constituted "very firm information and evidence that the Union no longer represented the majority of [the Company's] employees."53 Based on this information, so The copies introduced into evidence were not dated (R Exhs 8(a)- (1))5'RExh2 Sz R Exh 4 as There are only two supervisory memos in evidence, both to Plant Manager O'Toole from Supervisor Bracewell The first, dated December 13, 1983 (the date given as corrected by Bracewell), states that employee MacKinnon had approached Bracewell with a request for information on how to get his "name removed from the Union" (R Exh 9) The second memo, dated February 28, 1984 , states that a petition was being "passed around" and that from "what I understand," there are II signatures However, only three names are given "for sure," with two other possi- bilities (R Exh 10) TRITAC CORP. 537 and on the information supplied to him by McLaughlin, Baucom said that it was his opinion that the Union did not represent a majority of the 16 employees listed on Respondent's Exhibit 4. Accordingly, on March 21, 1984, Baucom sent a telegram to the Union. The plead- ings establish that, about that date, Respondent withdrew recognition of the Union as the exclusive collective-bar- gaining agent of the employees in the certified unit.54 On March 23, 1984, the Board sent McLaughlin a letter dismissing the petition because of the outstanding unfair labor practice charges.55 As previously noted, an- other bargaining session had been scheduled April 3, 1984, but this was canceled. 2. Conclusion on unit size The size of the unit at the time of Respondent's tele- gram to the Union on March 21, 1984, is not entirely clear. Although Respondent asserted that there were 16 employees in the unit on that date, McLaughlin contend- ed in her decertification petition, dated March 5, that there were 18. As there may have been a reduction in the size of the unit between the time of the petition and the time of the telegram, I accept the figure of 16 as cor- rect. 3. Factual and legal analysis and conclusion The law governing these matters is well established and has been stated by the Board as follows: [A] certified union, upon expiration of the first year following its certification, enjoys a rebuttable pre- sumption that its majority representative status con- tinues. The presumption also continues to apply after the expiration of a collective-bargaining agree- ment. The presumption may be rebutted , however, by evidence establishing that the union no longer enjoys majority representative status. Also, even without such showing of loss of majority, an em- ployer may refuse to bargain if he relies on a rea- sonably based doubt as to the continued majority status of the union . As to a reasonably based doubt, two prerequisites for sustaining that defense are that the asserted doubt must be based on objective con- siderations and such doubt must be raised in a con- text free of unfair labor practices . [Guerdon Indus- tries, 218 NLRB 658, 659, citation to authorities omitted (1975).] The evidence in this case is insufficient to establish actual loss of majority. The statements attributed to em- ployees by supervisors have little probative weight. In the first place, two such reports (assertedly from Super- visor Robb) are hearsay. As for the rest, a supervisor's report of what an employee said about his support of the Union "is unreliable, since an employee, when engaging in conversation with supervisory personnel regarding his union sentiments, will tend to make statements he be- lieves management would like to hear." Valley Nitrogen Producers, 207 NLRB 208, 214 (1973). As indicated, 54 G C. Exh 1(z), par 13(d), R Exh 1, par I 55 R Exh 3 there was a substantial minority of employees opposed to the Union at the time of the election, and any antiunion actions and/or statements made by members of this mi- nority do not show loss of support for the Union. Ken- tucky News, Inc., 165 NLRB 777, 779 (1967). Further, statements that a union has done nothing for the employ- ees does not necessarily indicate lack of support for it. Id. at 778. In any event, those employees to whom such statements were attributed constituted less than half the employees in the unit when the Company withdrew rec- ognition.5 6 Baucom's testimony that he obtained written state- ments from "all his supervisors" when he visited them on March 20 is without documentary support. The only two such statements are from one supervisor, Bracewell, are not dated March 20, and do not even begin to evidence that the Union had lost majority support. Baucom's testi- mony in this respect is no more than uncorroborated company testimony entitled to little weight. MRA Associ- ates, 245 NLRB 676, 678 (1979). McLaughlin's testimony is entirely unreliable-she ad- mitted sending eight signed petitions to the Board, and telling Baucom that she had sent nine.57 Her testimony that 11 petitions were signed is contradicted by the fact that only 10 are in evidence. One employee's statements about the union sentiments of another employee are enti- tled to "little, if any, weight." Sahara Hotel, 241 NLRB 106, 113 (1979), enfd. 648 F.2d 553 (9th Cir. 1980). I do not credit McLaughlin's testimony that 11 petitions were signed. Finally, the petitions themselves may not be relied on as evidence of loss of majority support. In the first place, 2 out of the 10 purported signatures were those of em- ployees who were not in the unit when the Company withdrew recognition. Although McLaughlin claimed that the remaining eight signatures were genuine, this testimony establishes nothing with respect to the pur- ported signature of Terry B. Danner, because it was Webb who obtained this signature-and Webb did not even look at the petitions at the hearing. Baucom was not shown copies of the petitions prior to his withdrawal of recognition. There is therefore no evi- dence that he compared the signatures thereon with sig- natures known to be accurate. None of the purported signatories except McLaughlin was asked to authenticate his or her signature-not even Webb, who was called by Respondent as a witness and purportedly signed a peti- tion.58 Certainly the Board had no way of knowing whether the signatures submitted by McLaughlin were genuine. The only evidence of their authenticity, there- fore, is the testimony of McLaughlin, an unreliable wit- ness. In Guerdon Industries, supra, the general manager 56 Cf. U-Save Food Warehouse, 271 NLRB 710 (1984), in which such statements were attributed to a majority of the employees In the instant case I count only named employees, and give no weight to anonymous reports asserted by O'Toole, as these may be duplicates, or part of the original minority opposed to the Union, and in any event are not shown to be unit members at the time of withdrawal of recognition sT McLaughlin's admission concerning what she told Baucom is estab- lished by her testimony that his account of their conversation was accu- rate. ae R Exh. 8(c). 538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD received undated petitions from a majority of the em- ployees stating that they did not wish to be represented by the union. The company made no effort at that time to authenticate the signatures, and withdrew recognition. A clerical employee testified that she made a later check of employee tax forms, and that the signatures on the pe- tition appeared to be genuine. The Board concluded that the petitions were not properly authenticated, and that the employees were not shown to be in the unit when recognition was withdrawn. 218 NLRB at 660. In the case at bar, there has not even been company testimony authenticating the signatures. I conclude that the evi- dence is insufficient to establish actual loss of majority.69 I also conclude that Respondent has not established that it had a reasonably based doubt of the Union's con- tinued majority status. It could not rely on the mere fact that a decertification petition had been filed. Dresser In- dustries, 264 NLRB 1088 (1982). The Board's established rule is that such a petition creates a reasonable doubt of majority status only when it is signed by a majority of the employees. Sanderson Farms, 271 NLRB 1477 (1984), and authorities cited. For the reasons given above, the evidence is insufficient to establish that the petitions in this case contain bona fide signatures of a majority of the 16 employees in the unit. 60 Baucom could not reasonably have relied on what McLaughlin told him. She presented him with a letter from the Board stating that she had mailed eight peti- tions, and simultaneously told him that she had mailed nine. McLaughlin showed him no copies. The disparity in the number of petitions and the absence of copies were sufficient to have created doubt of McLaughlin's veracity in a man of ordinary prudence. Nor could Baucom have relied on the fact that the Union had not replaced the two committeemen who had left the Com- pany after the 13th bargaining session, since the Union's established practice was to make such replacements at the next bargaining session-and the April 3, 1984 ses- sion was canceled following the withdrawal of recogni- tion. Even if Respondent had established a reasonably based doubt of continuing majority status, it could not lawfully have withdrawn recognition because of its prior unfair labor practices. In opposition to such a conclusion, Re- spondent cites Master Slack Corp., 271 NLRB 78 (1984). 59 See A. Wermon & Sons, 114 NLRB 629 (1955), relied on by the General Counsel in support of her argument that a petition must be dated by the signer I do not pass on this argument 60 Assuming arguendo that the 8 signatures in a unit of 16 were genu- ine, a case of first impression would be presented If the eight signatures were genuine, the petition would still be insufficient to support with- drawal of recognition, because the signatures would not manifest support of the petition by a "majority" of the employees On the other hand, the remaining equal number of eight employees-still presumably in favor of the Union-would not have evidenced continuing "majority" support of the Union. Therefore, application of the Board's rule in cases where em- ployee sentiment is equally divided would appear to lead to representa- tion of the employees by a union supported by less than a "majority " I find it unnecessary to resolve this conundrum because of my conclusion that the signatures have not been properly authenticated Cf. Tajon, Inc, 269 NLRB 327 fn. 4 (1984), in which recognition was based on a card check rather than certification, employee sentiment thereafter was equal- ly divided, and the Board held that the Union no longer had majority support. In that case, the company had committed various unfair labor practices 8 or 9 years before being presented with a decertification petition. In the interim, the company had complied with ordered remedies in many significant respects prior to circulation of the petition, had offered reinstatement, and had posted a notice agreeing to take the action ordered by the Board. All the petition signers testified at the hearing that the prior and pending litiga- tion had no impact on their signing of the petition. The administrative law judge found no causal relationship be- tween the unfair labor practices and the signing of the petition, and the Board, citing the circumstances of the case, agreed. It is obvious that the facts in this case are distinguish- able in significant respects. Respondent's unfair labor practices were not engaged in many years prior to the filing of the decertification petition. Instead, they were committed within the certification year, and employee disaffection with the Union began soon thereafter. Only two of the petition signers testified in this case, and nei- ther said anything about the effect of the Company's ac- tions on the petition. Indeed, as company witnesses, nei- ther even admitted that the Company had done anything wrong. Respondent nonetheless argues that any unfair labor practices that it may have committed had no substantial impact on any loss of majority status. The record and es- tablished Board law lead to an opposite conclusion. Although there was some manifestation of antiunion sentiment among the employees immediately following the election, there is no evidence that the number of such employees exceeded the minority of nine that voted against the Union, nor any evidence that such employees included previous union adherents. The Company conducted polygraph tests in June, dis- charged employees as a result of such tests, and thereaf- ter unlawfully refused to supply the Union with informa- tion concerning the tests. Although the Union opposed the tests, it was unable to stop them. The Company's po- sition on the tests, including its unlawful refusal to supply information to the Union, prevented the latter from accomplishing its intended objective of defending the employees. The natural and probable consequence of these events was to convince employees that the Union was ineffective as a defender of employee rights. The first expression of dissatisfaction with the Union from a known union supporter came from James Webb in June, the month that the Company conducted its tests and dis- charged employees. Although Webb contended that his own reasons for the change in his union sympathies were union attitudes and falsehoods about the Company, he was not specific, and I am convinced that Webb was not completely candid. He admitted that all the other em- ployees who made statements gave as the reason the fact that the Union "wasn't doing anything for them." This is consistent with supervisory reports of employee senti- ments, and with my above-stated conclusion regarding the natural and probable effect of the refusal to supply information. The Board has held that an employer's rea- sons for withdrawing recognition were invalidated by unfair labor practices, which included a refusal to furnish TRITAC CORP. 539 relevant information to the Union. Ace Machine Co., 249 NLRB 623, 635, 638 (1980). I reach the same conclusion herein with respect to Respondent's unlawful refusal to supply information to the Union about polygraph testing of its employees. The Company committed additional unfair labor prac- tices that tended to cause employee dissatisfaction with the Union. In addition to its unlawful refusal to supply information on insurance costs, Respondent, on October 12, unilaterally increased starting wage rates. The Board has held with judicial approval that the unlawful promise of a wage increase, if the employer's plant became non- union, encouraged the circulation of an antiunion peti- tion, and invalidated the employer's reliance on the peti- tion as justification for a refusal to bargain. P. A. Inc., 248 NLRB 491, 498 (1980), enfd. mem. 656 F.2d 698 (5th Cir. 1981). In Guerdon Industries, supra, the Board stated that "the unilateral implementation of the incentive plan, with its promise of possible higher employee earnings, coupled with the threat of the plan's demise should the Union gain a wage increase, graphically portrayed to the employees that Respondent was in a posit ion to confer or withdraw economic benefits without regard to the presence of the Union." 218 NLRB at 661-662. The Board has held with judicial approval that an employer who unilaterally terminated contractually mandated fringe-benefit contributions for its employees thereby "fa- tally tainted" its assertion of a reasonable doubt of the union's representative status. Abbey Medical/Abbey Rents, 264 NLRB 969 (1982), enfd. mem. 709 F.2d 1517 (9th Cir. 1983). For the foregoing reasons, I conclude that Respond- ent, by its withdrawal of recognition of the Union on March 21, 1984, thereby violated Section 8(a)(5) and (1) of the Act. H. Additional Unlawful Unilateral Actions The pleadings establish that, about April 4, 1984, Re- spondent, without notifying or bargaining with the Union, unilaterally implemented a safety awards program for its employees. The pleadings also establish that, about May 1, 1984, to be effective June 4, 1984, the Company, without noti- fying or bargaining with the Union, unilaterally an- nounced (a) a wage increase for its employees, (b) an in- crease in its shift differential pay rates, (c) an increase in its starting wage rates, and (d) a quarterly evaluation program for its employees that provides for merit wage increases. By these actions, the Company additionally violated Section 8(a)(5) and (1) of the Act, for reasons already stated. 1. The Company's unfair labor practices As set forth above, the Company unlawfully refused to supply relevant information to the Union on polygraph testing of its employees, and on the costs of insurance. The Board and one circuit court of appeals have held that such conduct evidences bad-faith bargaining.61 In addition, the Company unilaterally increased starting wage rates and made other unilateral changes after with- drawing recognition. Considered in context with other unfair labor practices, the Board has also concluded that such unilateral changes in benefits constitute evidence of surface bargaining.62 Finally, the Company unlawfully withdrew recognition of the Union. The Board has found that such conduct also evidences an intention not to reach agreement.63 The same rationale is applicable to Respondent's unfair labor practices in this case. 2. Bargaining on wages a. Respondent's position Respondent took the position in the October bargain- ing on wages that it had to increase starting wages be- cause they were too low, and the Company as a conse- quence was suffering from high turnover in entry-level jobs. In addition, the Company had to decrease top rates because they were too high. Accordingly, the Company presented what it called a "balanced" approach to bar- gaining, where the cost of increasing starting wage rates was offset in part by a decrease in top wage rates. b. Summary of documentary evidence Statistical evidence for or against Respondent's bar- gaining position on wages is less than satisfactory. The Company itself presented no documents, and the only ones in evidence are those introduced by the General Counsel. General Counsel's Exhibit 8(d) purports to be a letter dated July 18 from Company Vice President Baucom to six North Carolina companies. The letter thanks them for their participation in a recent wage and benefit survey, and notes that the companies are listed on an enclosed exhibit by numerical code. The letter identi- fies Respondent as company number one, and states that, since the survey, Respondent's rates had increased six percent, effective July 11. Enclosed with the letter was a two-page document listing starting and maximum wages for 14 positions at seven numbered companies. There are various markings on the enclosure. Baucom identified the enclosure as "a wage survey compilation that our office did back in June of 1983 which we relied on to a large extent in arriving at our starting wage adjustments." Baucom explained that cer- tain rates that were circled were those of jobs considered comparable with Respondent's jobs. Other jobs are I. Allegation that Respondent Bargained in Bad Faith with no Intention of Reaching an Agreement It is well established that a determination about wheth- er a party has engaged in bad-faith bargaining depends on the totality of the circumstances, and that each case is unique. With these principles in mind, I shall consider various aspects of the bargaining. 61 NLRB v All Brand Printing Corp, 594 F 2d 926 (2d Cir 1979), enfg. 236 NLRB 140 (1978), S-B Mfg. Co, 270 NLRB 485 (1984), Quality Engi- neered Products Co, 267 NLRB 593, 598 (1983), Ace Machine Co., 249 NLRB 623, 635, 638 (1980); M E. Carter & Co, 223 NLRB 506, 513 (1976), Beyerl Chevrolet, 221 NLRB 710, 723 (1975) 62 S-B Mfg. Co, Ibid 63 Ace Machine Co, supra, 249 NLRB at 638-639 fn 61, American Gypsum Co, 231 NLRB 1291 (1977) 540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "scribbled through" and considered not comparable. One company's rates (company number four) were complete- ly eliminated from consideration, because the company was not comparable. General Counsel's Exhibit 8(b) is a two-page, undated, handwritten document entitled "Start Wage Adjust- ment-Tritac." Baucom described it as "the data and a recap of the wage survey and information relevant to our movement on starting wages." This document lists various job classifications with titles somewhat different from those in General Counsel's Exhibit 8(d), but pur- ports to state a relationship between them. The first line reads: "HH took liberties in reference to survey." General Counsel's Exhibit 8(a) is a three-page, undat- ed, handwritten document entitled on page 1 as "Logic: Salary Reductions to Top Prices," and entitled on page 3, "Logic: Start Rate Increases." Baucom said that this document was "pulled together in preparation for our defense" against an unfair labor practice charge. Other documents were introduced by stipulation with- out any explanation from the Company. General Coun- sel's Exhibit 6(a) is a letter from union agent Huffman to company negotiator Dowd, dated October 31. It affirms that the Company said in the last two bargaining sessions that it had made "an extensive study of the pay rates of other plants in the Hickory area," and includes a request for the study. General Counsel's Exhibit 6(b) is a reply from Dowd, dated November 7, stating that Dowd did not understand Huffman's letter, that the latter had "taken liberties" with discussion at the bargaining table, and denying that the Company ever said that it had done "an extensive wage survey." General Counsel's Exhibit 6(c) is a letter from Baucom to Huffman, dated November 9, also denying that the Company had done an "extensive study" of wage rates. However, the letter encloses a document described as "competitive wage data we have gathered from several sources."64 The document itself is typewritten and un- dated. It lists six job classifications, three of which65 are the same as those in General Counsel's Exhibit 8(d). No companies are listed on this document, but various differ- ent wage rates are shown. With respect to the three jobs with titles identical to those on General Counsel's Exhib- it 8(d), the starting wage rates of two are said to have been derived from "Survey."68 These rates are identical with the circled wages on General Counsel's Exhibit 8(d) for the same jobs. The third such job, with rates said to have been derived from "Applicant Files," shows rates that are different. A fourth position on General Counsel's Exhibit 6(d), "Coater Operator," shows starting wage rates that are identical, to the dollar and penny, with three circled wage rates for "Mach. Opr. (high skilled)" on General Counsel's Exhibit 8(d). As the statistical probability for the occurrence of three identical wage rates of three digits each at three other companies, by coincidence, is very remote, I conclude that the data for this job indicated on General Counsel's Exhibit 6(d) is derived from the data on General Counsel's Exhibit 8(d), 64 G C Exh 6(d) 65 Material Handler, Q C , Shipping-Receiving Clerk. 66 Material Handler, Q C and that the jobs are similar or identical. I make the same equation for the same reason with respect to "Maintenance II" on General Counsel's Exhibit 6(d), and "Maint. Mech I" on General Counsel's Exhibit 8(d). Fur- ther, I apply the same reasoning to "Slitter Operator" on General Counsel's Exhibit 6(d), and "Mach Opr. (semi skilled)" on General Counsel's Exhibit 8(d). Although the former exhibit shows three more wage rates than the latter, the first five rates for both jobs are identical.67 The job of "Core Cutter" on General Counsel's Exhibit 6(d) shows starting wage rates from four companies, while the job of "Mach. Off Bearer" on General Coun- sel's Exhibit 8(d) shows only two. However, those two are identical, to the dollar and penny, with the first two rates for "Core Cutter" on the other exhibit. I make the same inference. One job, "Packer," shows only one rate on General Counsel's Exhibit 6(d), and is not listed on General Counsel's Exhibit 8(d). At the bottom of General Counsel's Exhibit 6(d) ap- pears the legend: "Also: From numerous sources, includ- ing media reports, we have determined that most em- ployers increased starting rates 5-6% during 1983." A memo to Baucom from one J. S. Fagan, dated Oc- tober 11, gives the top rates for coater operator and slit- ter operator at "Shuford Mills," derived "through a third party contact." These rates are identical with those on General Counsel's Exhibit 6(d).68 Baucom also identified several employment applica- tions that, he said, the Company used when it was unable to get competitive wage information from "Shuford Mills." Of these, only one application purports to list the starting wage rate for a job with the same job title as one of Respondent's jobs ("Shipping and Receiving") during the relevant period of mid-1983. The starting wage rate is unclear on the exhibit, there is no showing that the employer was a competitor of Respondent's, and the ap- plicant (Robert Jackson Jr.) left that employer about 2 weeks after being hired because of "lack of work."69 c. Analysis of documentary evidence I consider General Counsel's Exhibit 8(d) to be the most reliable document. It is an enclosure with a letter that Baucom wrote to six other companies in North Carolina, and refers to a wage survey in which they jointly engaged. Accordingly, Baucom's report to these companies has a relatively high degree of reliability. In contrast, General Counsel's Exhibit 8(b) is an internal "recap" of the wage survey, with which "HH took liber- ties," while General Counsel's Exhibit 8(a) is simply a document prepared for litigation. The information on the applications for employment has no probative value. Baucom's cover letter to the six companies states that the Company's rates increased six percent, effective July 11. Because the survey covered both starting rates and top rates, the obvious meaning of this statement is that 67 Although the job classification "Mach Opr (low skilled)" on G C Exh 8(d) has the words "(Slitter Opr )" written next to it, I consider this to be of lesser probative value than the remarkable congruence of five wage rates 68 G C Exh 8(c) 69 G C Exh 8(e) TRITAC CORP. both were increased by the same percentage on July 11. This statement to other companies has the same reliabil- ity as the survey itself, and I find that Respondent did increase both the starting rates and top rates shown in its column (company number one) on General Counsel's Exhibit 8(d) by six percent on July 11. As noted, when Baucom wrote Huffman on November 9, he enclosed a document stating that "most employers increased starting rates 5-6% in 1983." At issue is wheth- er this document has any validity, and, if so, whether it asserts that the comparable companies increased starting rates before or after the wage survey earlier in the spring. The document is vague, but appears to indicate that such increases, if any, could not have come after the wage survey because of the substantial identity of the wage information derived in the spring survey and the information transmitted to Huffman by Baucom on No- vember 9. The rates were substantially the same in both documents-if they had increased between the time of the survey and the time of the October bargaining, it is likely that such an increase would have been reflected in the new data submitted to the Union. The only finding I make on this issue is that the evidence is insufficient to show that the comparable companies increased wages after the spring survey, while it is sufficient to show that Respondent did so, on July 11. Therefore, in order to consider the October bargaining on wages, it is necessary to compare Respondent's wages shown on General Counsel's Exhibit 8(d), increased by six percent, with the wages of the comparable compa- nies. d. Comparative analysis of'starting rates General Counsel's Exhibit 8(d) shows that Respond- ent's starting rates were below the average rates in five of the compared positions at other companies following the July 11 increase, above them in two of the positions, and the same in one position .70 70 The five positions where starting rates were lower- (1) "Maint Mech I"-Respondent's pre-July 11 rate of $5 25, increased by six per- cent to $5.56, compared with an average of $5 70 at three other compa- nies; (2) "Material Handler"-Respondent's rate of $4.24, increased to $4 49, compared with an average of $4 65 at four other companies; (3) "Mach Opr (high skilled)"-Respondent's rate of $4 69, increased to $4 97, compared with an average of $5.54 at three other companies, (4) "Mach. Opt (semi skilled)"-Respondent's rate of $4.24, increased to $4.49, compared with an average of $5 18 at five other companies; and (5) "Mach Opr. (low skilled)"-Respondent's rate of $4 24, increased to $4 49, compared with the average of $4.69 at three other companies The two positions in which Respondent's starting rate averages were higher- (1) "Mach Off Bearer"-Respondent's rate of $4 24, increased to $4 49, compared with an average of $3.96 at two other companies, and (2) "Q C Inspector"-Respondent's rate of $4.56, increased to $4 83, compared with the average of $4.77 at three other companies The one position in which the rates were the same was "Shipping Loader," where Respondent's pre-July I I rate of $4 24, increased to $4.49, was the same as the average of three comparable companies for the same job A ninth position, "Shipping & Rec Clerk," was apparently considered by Respondent, according to the circles around rates at comparable com- panies in the exhibit, and Baucom's testimony However, there is no punted listing of Respondent's rate There are some rates of "5 26" and "4.74" handwritten under this job classification Although Baucom said that the first was an average of the circled rates, his explanation of the second-that it was the "applicant file average"-1s either meaningless or 541 Another useful comparison is the ranking of Respond- ent's starting wage for a particular job compared with the rates of other companies for the same job. Using this system, the company with the lowest starting rate for a particular job receives a ranking of one, the next lowest a ranking of two, etc. Of the six companies that were compared,71 three of them, including Respondent, had all eight jobs that were considered.72 Of these three, 1 e- spondent had the highest average starting rate ranking.73 Three other companies had average starting rate rank- ings higher than Respondent's, but none of them had all eight jobs that were considered.74 Respondent had the lowest starting wage in only two out of eight compared jobs. 7 s e. Conclusions on starting rates and employee turnover The evidence does not establish that the Company had the "lowest" starting rates among the compared compa- nies in October. It was higher in some, lower in others, and two other companies had lower average rankings of starting rates. Further, such information as the Company had was discovered in the spring of 1983. Presumably, the Company knew in July what it had to do to make its starting rates comparable. It then put into effect a six- percent increase in starting rates. There is no evidence that the Company discovered, in the summer of 1983, new information of so urgent a nature as to require it make, overnight, an unlawful, unilateral, further increase in starting rates. The only new event that happened was that the Company was then bargaining with the Union over wage rates. There is no credible evidence of a high rate of turnov- er in entry level jobs in October. Although there was a large turnover in June, this was the result of the dis- charges and quits following the Company's polygraph tests. There is no showing that such individuals were in entry level jobs, and it is obvious that they did not leave because of inadequate wages. There is no evidence of high turnover in entry level jobs thereafter, except the Company's bare assertion. f. Bargaining on top rates As indicated, during the ninth bargaining session on October 5, the Union presented a wage proposal that in- creased wages for each job. According to Huffman, this was the rate to which each employee would be entitled once he became "qualified." It was at the next session, as irrelevant Accordingly, I have not considered this job classification (G C. Exh. 8(d)). 71 Company number four was excluded from consideration as not com- parable. 72 Company number one (Respondent), and companies numbered two and three 73 Respondent (Company number one) had an average starting rate ranking of 2 37 Companies two and three were tied for the lowest, with 19 74 The company with the next highest starting rate ranking, after Re- spondent, was company number six, with an average ranking of three considering only three jobs Company number seven, comparing six jobs, had an average ranking of 3 2, while company number five, with only two comparable jobs, had an average ranking of 4 5 7 5 "Mach. Opr.-high-skilled," and "Mach Opr -semi-skilled " 542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD indicated, that the Company made its incomplete sugges- tion about an increase in starting rates. At the same time that it did so, on October 11, the Company proposed a decrease in top rates. This was fol- lowed by two additional offers, each proposing lesser de- creases in top rates. According to Huffman, the "deepest cut" was 38 cents per hour. The company representa- tives said that the Company's proposals provided, succes- sively, for reductions of 8 percent, 7 percent, and 6 per- cent in top rates. As indicated, Respondent's rationale for the proposed reductions was its "balanced" approach to wage negotia- tions-increases in starting rates were to be paid for by reductions in top rates. Baucom contended that the effect of both would be an overall increase of 3.2 percent of the Company's payroll. Although the Company professed concern about its competitive position with respect to starting rates, no such concern was expressed with respect to top rates. The data from Respondent's survey shows that, follow- ing its July 11 increase of six percent, its top rates were below the averages of other companies in five of the eight jobs compared, and above them in the three other jobs .7 6 As in the case of starting rates, it is useful to compare rankings among top rates. However, whereas Respond- ent complained that its starting rates were too low, in the case of top rates it argued that they were too high. To compare rankings, therefore, I shall consider the highest top rate for each job as ranking number one, the next highest as ranking number two, etc. Here again, only three companies had wage rates in all eight compared jobs.77 Of these, one company had a lower average top rate ranking than Respondent.78 Respondent and one 78 The five jobs where Respondent's top rates were below the aver- ages of the compared companies- (1) "Maint Mech I"-Respondent's pre- July I I top rate of $5 95, increased by six percent to $6 31 , compared with an average of $6 57 at three other companies , (2) "Shipping Loader"-Respondent's top rate of $4 66, increased to $4 94, compared with an average of $5 27 at three other companies, (3) "Material Han- dler"-Respondent's rate of $4 66, increased to $4 94, compared with an average of $5 31 at four other companies, (4) "Mach Opr (semi skilled)"-Respondent's rate of $4.96, increased to $5 26, compared with an average of $6 09 in five other companies; and (5 ) "Mach Opr (low skilled)"-Respondent's rate of $4 66, increased to $4.94, compared with an average of $5 37 at three other companies The three jobs in which Respondent's top rates were above the aver- ages for jobs at the compared companies (1) "Mach Off Bearer"-Re- spondent's top rate of $4 66, increased to $4.94, compared with the aver- age of $4 63 at two other companies, (2) "Q C Inspector"-Respondent's rate of $5 49, increased to $5 82, compared with the average of $5 63 at three other companies, and (3) "Mach Opr (high skilled)"-Respond- ent's rate of $6 20, increased to $6 57, compared with an average of $6 34 at three other companies The rates used in arriving at these conclusions are the top rates imme- diately below the starting rates for those jobs considered relevant by Re- spondent The relevant starting rates are those that are circled on the ex- hibit, with certain exclusions including company number four Although the top rates ("Max ") are not also circled, it is obvious that they refer to the same job and are also relevant in light of Respondent 's position during the October bargaining (G C Exh 8(d)) 77 Companies numbered one (Respondent), two, and three 78 Company number two had an average top-rate ranking of 3.13, i e down from a theoretical top-rate average ranking of one other company were tied for next to the lowest.79 Three other companies, with less than eight jobs to compare, had higher rankings, and one had the highest ranking in each of three compared jobs.80 Respondent had the highest top rate in only one out of eight compared jobs."' In light of the fact that Respondent's top rates were as low as they were, one wonders how the Company in- tended to retain its top-rated personnel after a wage re- duction. Although the Company claimed that costs were rising, prices of finished products were declining, and that com- petition was intense (with one competitor in bankruptcy), these assertions were undocumented. Moreover, the Company did not even assert that the adverse informa- tion on top rates was newly discovered between the time of the July 11 increase in top rates, and the proposal 3 months later during bargaining to reduce them. The Company has thus advanced no business reason for the asserted necessity to reduce top rates in October after in- creasing them in July, other than "balancing" the in- crease in starting rates. However, as shown above, Re- spondent has not established any business necessity for increasing starting rates. g. Further wage and other benefit increases, and conclusions In addition, as shown above, the Company, after its unlawful withdrawal of recognition, engaged in further unlawful, unilateral action that raised employee compen- sation in four different areas.82 These were announced in May 1984, to be effective in June. Also, the Company announced a safety awards program in April 1984, which may have involved monetary rewards. In sum, the Com- pany raised starting wages in July 1983, raised them again unilaterally in October during bargaining, and raised them a third time in June 1984. It raised top rates in July 1983, proposed that they be lowered in October, and, instead, raised them in June 1984. Although Re- spondent professed that it was in dire economic straights in the fall of 1983, during bargaining, by the spring of 1984 it increased employee benefits monetarily in four, possibly five, areas. There is no evidence in the record of any improvement in the Company's financial condition or prospects between October 1983 and June 1984. Nor does the record indicate any rational business reason for these changes and apparent inconsistencies. The document that the Company submitted to the Union on November 9 to support a decrease in top rates was a rehash of its study in the spring of the year, on the basis of which it increased top rates. The Board, in similar cir- cumstances, has concluded with judicial approval that the employer's wage proposals were sham in nature and 79 Respondent and company number three, with average rankings of 3 80 Company number five, with two compared jobs, had an average ranking of 2 Company number seven was higher with an average of 1 8 comparing five jobs, and company number six had the highest of all with an average of one in three compared jobs 81 "Mach Off Bearer" 82 Wages, shift differential pay, starting wage rates, and merit wage increases. TRITAC CORP. 543 evidence of bad-faith bargaining. Billion Oldsmobile- Toyota, 260 NLRB 745 (1982), enfd. 700 F. 2d 454 (8th Cir. 1983). With respect to the June 1984 increases, the language of an administrative law judge adopted by the Board in a recent case is applicable . "Respondent's bar- gaining position concerning wages . . . was clearly a sham when viewed in light of Respondent 's later action of granting a wage increase . . ." S-B Mfg. Co., supra at 270 NLRB 485 ( 1984). For these reasons, I conclude that Respondent's bar- gaining concerning wages constitutes evidence of overall bad faith, and an intention not to reach agreement.83 3. Other aspects of the bargaining a. Summary of evidence During the third bargaining session on June 2, the Company proposed a management rights clause . 84 Huff- man said that it had everything in it but the kitchen sink, and that management rights clauses and checkoff usually go hand in hand. The Union presented a checkoff provi- sion whereby the Company would be required to remit the dues to the Union's International,85 but subsequently modified this proposal so as to ornit the latter require- ment. There was no agreement on management rights or checkoff during the first 11 bargaining sessions. The Union proposed a grievance procedure leading to arbitration.86 During one of the earlier sessions, howev- er, Company Negotiator Dowd said that the Company was not going to agree on an arbitration clause. Nor did it intend to seek a no-strike or no-lockout clause. If the as During the hearing , I granted Respondent 's motion to quash the General Counsel's subpoena duces tecum with respect to the amount and basis for the June 1984 increases . The General Counsel filed a request for permission to make an appeal from this ruling, and Respondent riled a similar request with respect to another ruling. All rulings were affirmed by the Board. In her postheanng brief, counsel for the General Counsel renews her exception to my ruling, on the ground that if the June 1984 wage increases were substantial, it would tend to show bad faith unless Respondent showed changed circumstances In light of my findings above, I consider this issue to be moot 84 The clause reads It is recognized and agreed that the management of the plant and the direction of the working force is vested in the Company Among the rights and responsibilities which shall continue to be vested in the Company, but not intended to be a wholly inclusive list of them shall be - The right to increase or decrease operation, to de- termine the kinds of products to be ma nufactured; to remove or in- stall machinery, to determine schedules of production, to discontin- ue, temporarily or permanently, in whole or in part, the conduct of its business or operation , to move the plant to another location or close or liquidate the plant, to increase or change production equip- ment, to introduce new or improved production methods and facili- ties; to regulate the quality and quantity of production , to establish and maintain production standards and schedules ; to relieve employ- ees from duty because of lack of work; to employ, lay off, re- employ, and transfer employees , to promote, demote, discipline or discharge employees, to determine the qualifications for and to make the selection of its managerial, supervisory, professional and adminis- trative personnel , to determine the qualifications for and to select and hire new employees , and to contract or subcontract any or all of the processes of manufacture, or plant facility maintenance. Except as limited in this agreement, the Company retains all manage- ment rights and is not subject to any duties not expressly assumed by it herein (G C. Exh 4) 85GC.Exh 3 '86 Ibid employees did not like something that the Company did, they could strike. At the 12th bargaining session, on October 19, union agent Huffman presented a new proposal on checkoff,84 and a proposal on management rights .88 Company nego- tiator Dowd rejected both of them. According to Huff- man's credible testimony, Dowd said that the Company could not "live with" the proposed management rights clause, and "wasn't interested in collecting the Union's money" for them. Huffman then informed Dowd that the language in both clauses was taken from the Compa- ny's agreement with the Union at its Paxinos plant in Pennsylvania. Dowd replied that he was not interested, or was not concerned, that he could not live with the language of the management rights clause at Tritac, and would not agree to checkoff of dues. Because of Dowd's failure to protest the accuracy of Huffman's assertion, and because of the latter's reliability as a witness (partial- ly corroborated by the writings underneath the clauses in the exhibits), I find that the clauses in fact were taken from the Company's agreement with the Union at Pax- inos. Subject to the proviso that the parties could withdraw agreement on an item prior to acceptance or ratification, the parties did agree on a number of items during the bargaining.89 Some items had not been agreed on, how- 87 The checkoff proposal reads An employee who desires his regular monthly dues of the union to be deducted from his pay by the Company and remitted to the proper union officer of the union shall submit a fully executed au- thorization card for this purpose to the company The company shall not be liable to the union or to any employee by reason of any errors or acts of commission or omission in the op- eration of such checkoff of union dues. The union further covenants and agrees to indemnify the company and hold it harmless from any claims of any nature whatsoever made by the union or by any employee of the company by reason of any matter or thing whatsoever arising out of such deduction of union dues and the remittance of the same to the union The following handwritten statement appears underneath the printed language in the exhibit. "Language from existing Cellu Production contract with UPIU at Paxinos, Pennsylvania which expires Aug 1 , 1984" [G C. Exh 3] 88 The management rights clause reads The union recognizes the right of the company management to maximum freedom to manage consistent with due regard for the wel- fare and interests of the employees It is agreed that all the functions, rights, powers and authority which the company has not specifically abridged , delegated or modi- fied by this agreement are recognized by the union as being retained by the company The following hand-printed legend appears after the typed clause. "Union Attachment No 2" [G.C Exh 3]. ea The signatures of the parties indicate agreement on the following items* Recognition (later withdrawn), access to premises, supervisors, jury duty, discharge and discipline of employees, bulletin board, safety and health, personal business , non-discrimination, grievance procedure, overtime, funeral leave, call in, reporting time, hours of work, seniority, and leave of absence The documents indicate partial but not final agreement on company work and safety rules Although there is a signed agreement to pay wages according to a "schedule attached hereto," no such schedule is attached , and the record shows that the parties did not agree on wages The discharge and discipline clause gives the Company the right to discharge and discipline em- ployees, with notice to the Union and the employee, and the right to file a grievance [G.C Exh. 4] There was also agreement on certain rights of employees transferred outside the bargaining unit, and on restrooms [G C Exh 3, p 10] 544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ever, including checkoff, arbitration, and management rights. Huffman testified that the absence of an agree- ment on arbitration left the Union with no recourse in the event of disagreement with the Company, except to strike. He offered to drop the arbitration demand during the October 19 meeting, in order to "get the negotiations going," but was unsuccessful. Respondent introduced evidence to the effect that the Union had elsewhere agreed to management rights clauses as broad or broader than the one proposed by the Company in these negotiations.9O However, each of these clauses had provisions limiting them , to one extent or another, by the terms of the agreement, and each agreement had an arbitration clause, as well as a check- off clause.91 As noted above, the last negotiating session, on De- cember 15, concerned the pension plan. Union agent Huffman credibly testified that, at the conclusion of that discussion, he told company negotiator Dowd that they still had items to discuss, such as checkoff and manage- ment rights. Dowd replied that the parties were there only to discuss the pension issue. When Huffman protest- ed that they were still in negotiations, and that these were open items that he wished to discuss, Dowd replied that the Company's position had been given on prior oc- casions, and that as far as he was concerned, "that was it." b. Legal analysis and conclusions It is clear that the Company rejected the Union's pro- posal for checkoff, and said only that it did not want to be collecting the Union's money. It had no objections in principle to deductions from employee wages, since it proposed insurance and pension plans. In such circum- stances, as the Court of Appeals for the Eleventh Circuit has stated, "[t]he Company's rejection of the Union's dues checkoff provision was not based on any legitimate business reason and does not satisfy the statutory obliga- tion to bargain in good faith." NLRB v. A-1 King Size Sandwiches, 732 F.2d 872, 877 (1984), enfg. 265 NLRB 850 (1982).92 This is particularly the case in light of the fact that the Company had agreed to the same clause with the Union at another plant. Carbonex Coal Co., 248 NLRB 779, 800 (1980), enfd. 679 F.2d 200 (10th Cir. 1982). The same reasoning applies to the Company's refusal to accept a management rights clause to which it had agreed at another location. Further, its rejection of arbi- tration at the same time that it was insisting on its own version of a management rights clause "indicates a desire to frustrate bargaining, undermine, and virtually destroy the employees' collective-bargaining representative." Gulf States Canners, 224 NLRB 1566, 1576 (1976). Al- though the discharge and discipline clause to which the Company agreed required it to give notice, and allowed the employee to file a grievance, there was no redress under the contract if the grievance was unjustifiably denied. As union agent Huffman observed, the Union 90 R Exhs. 7(a)-(cc), plus additional unmarked exhibits. 91 C P Exhs 1(a)-(ff) 92 Accord K & S Circuits, 255 NLRB 1270, 1298 (1981) could either accept the Company's resolution of differ- ences, or strike. With respect to the Union's agreement to similar management rights clauses elsewhere, in those cases it had the protection of arbitration. Finally, the Company's refusal at the last bargaining session on December 15 to consider any open issue except the pension plan-which it was compelled to con- sider because of the takeover by Sealed Air and the Tat- ter's position on the pension plan-is additional evidence that it was not really interested in reaching agreement. Huffman asked for discussion on the open issues, but the Company refused. These factors, considered together with the Compa- ny's other manifestations of bad faith set forth above, constitute overwhelming evidence of overall bad faith on the Company's part. The fact that the Company met with the Union at var- ious times and reached various agreements does not de- tract from this conclusion. Agreements were reached on issues that were not as significant as those on which the parties disagreed . Such meetings, and agreements on rel- atively "unimportant subjects" do not vitiate a finding of bad-faith bargaining. K-Mart Corp., 242 NLRB 855, 876 (1979), enfd. 626 F.2d 704 (9th Cir. 1980). The complaint alleges that Respondent's bad faith began on June 23. This was the fourth bargaining ses- sion, at which the Union demanded, and the Company refused to supply, the polygraph information. These facts support the complaint allegation as to the beginning date of Respondent's bad faith, and I so find. In accordance with my findings above, I make the fol- lowing CONCLUSIONS OF LAW 1. Tritac Corporation, a subsidiary of Cellu Products Company, is an employer within the meaning of Section 2(2), engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. United Paperworkers International Union, AFL- CIO, CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent at its Conover, North Carolina fa- cility, excluding all office clerical employees, profession- al employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 4, 1983, and at all times thereafter, the Union has been and is now the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By engaging in the following acts and conduct, Re- spondent has violated Section 8(a)(5) and (1) of the Act: (a) Refusing since June 23, 1983, to bargain in good faith with the Union as the exclusive representative of the employees in the aforesaid unit. (b) Refusing, on June 23, 1983, to supply the Union with the results of polygraph tests administered to its employees, the written statements provided to it by its TRITAC CORP. 545 employees and to the polygraph examiner, and the rec- ommendations made to it by the polygraph examiner fol- lowing tests given to employees. (c) On October 12, 1983, refusing to supply the Union with information concerning the costs of employee insur- ance. (d) On March 21, 1984, withdrawing recognition of the Union as the exclusive bargaining representative of the employees in the aforesaid unit. (e) On October 12, 1983, and again on May 1, 1984, to be effective June 4, 1984, without notifying; or bargaining with the Union, unilaterally increasing the starting wage rates of its employees. (f) On April 4, 1984, without notifying or bargaining with the Union, unilaterally implementing a safety awards program for its employees. (g) On May 1, 1984, to be effective June 1, 1984, with- out notifying or bargaining with the Union, unilaterally announcing for its employees a wage increase, an in- crease in shift differential pay, and a quarterly evaluation program that provided for merit wage increases. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent has not violated the Act except as spec- ified herein. THE REMEDY dered to bargain on request with the Union concerning these subjects.95 Finally, it having also been found that Respondent re- fused to bargain in good faith with the Union, and un- lawfully withdrew recognition of it, it will be recom- mended that Respondent reaffirm its recognition of the Union as the exclusive bargaining representative of the employees in the unit stated above, and, on request, bar- gain in good faith with the Union concerning rates of pay, wages, hours of work, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a written, signed agree- ment. Inasmuch as Respondent engaged in bad-faith bargain- ing and otherwise failed in its obligation to bargain in good faith, I shall recommend that the initial period of certification be construed as beginning on the date Re- spondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. This remedy is required in order "[t]o ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law . . . ." Zayre Department Stores, 272 NLRB 84, slip op. at 5 (1984) (unpublished). 96 On these findings of fact and conclusions of law and on the entire record,97 I issue the following recommend- ed98 It having been found that Respondent has engaged in certain unfair labor practices, it is recommended that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. It having been found that Respondent unlawfully re- fused to supply the information concerning polygraph tests described in the Conclusions of Law section of this Decision, with respect to that information as to which Respondent asserts no confidentiality interest of its own, such as potential liability in the event of disclosure, it will be recommended that it be ordered to supply such information to the Union on receipt of written consent thereto by the employee concerned. In cases where Re- spondent asserts such a claim of confidentiality, it will be recommended that it be ordered to bargain in good faith with the Union in order to reach a mutually acceptable accommodation of Respondent's and the Union's inter- ests,93 on receipt of employee consent to disclosure of such information. It also having been found that Respondent unlawfully refused to supply information to the Union concerning the costs of employee insurance, it will be recommended that it be ordered to supply said information to the Union.94 It further having been found that Respondent unilater- ally and unlawfully granted starting wage increases to its employees (on two occasions), increases in wages and shift differential pay, a quarterly evaluation program that provided for merit increases, and a safety awards pro- gram, it will be recommended that Respondent be or- 93 General Dynamics Corp., 268 NLRB 1432 (1984) 94 S-B Mfg. Co, 270 NLRB 485 , 486 (1984) ORDER The Tritac Corporation, a subsidiary of Cellu Products Company, Conover, North Carolina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with United Paper- workers International Union, AFL-CIO, CLC, as the ex- clusive bargaining representative of the employees in the following unit: All production and maintenance employees em- ployed by the Company at its Conover, North Carolina facility, excluding all office clerical em- ployees, professional employees, guards, and super- visors as defined in the Act. (b) Refusing to furnish the aforesaid Union with the results of polygraph tests administered to its employees, the written statements provided to it by its employees 95 In accordance with customary Board practice, the Order recom- mended herein is not to be construed as authorizing Respondent's rescis- sion of any increases in employee benefits heretofore granted. 99 Accord Western Mass. Bus Lines, 272 NLRB No. 73 (1984) (unpub- lished), Yankee Whaler Inn, 272 NLRB 313 (1984), Glomac Plastics v NLRB, 592 F.2d 94, 99-101 (2d Cir 1979), remanding 241 NLRB 348 (1979), 600 F 2d 3 (2d Cir 1979), enfg. 241 NLRB 348 (1979); NLRB V. Big Three Industries, 497 F 2d 43, 51-54 (5th Cir 1974), enfg. 201 NLRB 700 (1973), NLRB Y Carbonex Coal Co, 679 F 2d 200, 205 (10th Cir. 1982), enfg 248 NLRB 779 (1980). 97 Respondent's motion to strike portions of the complaint is denied 98 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and to the polygraph examiner, and the recommenda- tions made to it by the polygraph examiner, by failing to respond to the Union's request for such information with an offer to supply same upon receipt of the involved em- ployee's consent thereto in all cases where the Company does not assert any confidential interest of its own, and, where it does assert such interest, by failing to offer to bargain in good faith with the Union in an attempt to ac- commodate their mutual interests, on receipt of the em- ployee's consent to disclosure. (c) Refusing to furnish the aforesaid Union with the costs of insurance programs offered to the Union on behalf of employees. (d) Unlawfully withdrawing recognition of the Union as the exclusive collective-bargaining representative of its employees in the aforesaid unit. (e) Unilaterally, and without notice to or bargaining with the Union, increasing starting wage rates, wages, or shift differential pay, or implementing a safety awards program, or an employee evaluation program providing for merit wage increases. (f) In any other like or related manner, interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind, in writing, its communication to the afore- said Union withdrawing recognition of it as the collec- tive-bargaining representative of the employees in the aforesaid unit, and acknowledge its recognition of the Union for such purpose. (b) Provide the Union with the results of polygraph tests administered to it by its employees, the written statements provided to it by its employees and to the polygraph examiner, and the recommendations made to it by the polygraph examiner, on receipt of consent to such disclosure by the employee involved, in all cases where the Company does not assert any confidentiality interest of its own ; and, in cases where it does assert such interest, bargain in good faith with the Union in an attempt to accommodate their mutual interests, on re- ceipt of consent to such disclosure by the employee in- volved. (c) Provide the Union with the costs of employee in- surance requested by the Union. (d) On request, bargain in good faith with the afore- said Union with respect to starting rates of pay, wages, shift differential pay, employee evaluation programs, safety awards programs, hours of work, and other terms and conditions of employment of the employees in the aforesaid unit, and, if an understanding is reached, embody the understanding in a written, signed agree- ment. (e) Post at its plant at Conover, North Carolina, copies of the attached notice marked "Appendix."99 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that, to the extent the complaint alleges violations not specifically found herein, it is dismissed. 99 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "