M. A. Harrison Mfg. Co., Inc.

M A HARRISON MFG. CO., INC. M. A. Harrison Manufacturing Company, Inc. and United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Case 8-CA-12562 December 10, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND) MEMHBRS JENKINS ANI) PF.N.I.I.O On January 9, 1980, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the Charging Party filed a brief in opposition to Respondent's ex- ceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order, as modified herein.2 We agree with the Administrative Law Judge's finding that the totality of Respondent's conduct warrants the finding that Respondent has engaged in bad-faith bargaining. The Administrative Law Judge found in five separate instances that Re- spondent engaged in conduct violative of Section 8(a)(5) of the Act. Respondent unilaterally granted individual merit increases, two general wage in- creases, an additional paid holiday at Thanksgiving, and polled employees individually concerning a I Respondent has excepted to certain credibility findings made by the Administrative I.aw Judge. It is the Board's established policy not to overrule an administratise law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are Incorreci Standard Dry Wall Products. Inc.. 91 NRB 544 (1950), cnfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing her find- ings Additionally, we are satisfied that Respondent's contentions that the Administrali e ILaw Judge was biased are wsithiout meril There is noth- ing in the record to suggest that her conduct at the hearing. her resolu- tions of credlhbility, or the inferences she drew were affected by any bias or prejudice In discussing Respondent's contention that there was an impasse in bar- gaining. the Administrative I.aw Judge inadvertently lists November 17, 1978, as the date the impasse allegedly occurred 'Ihe correct date is No- vember 15. 1978 2 In par 2(d) of the recommended (rder, the Administrative aw Judge ordered Respondent to reimburse the Union fr collective-bargain- ing expenses We find. however. that such a remedy is appropriate only when a reslndcril raises defenses so insubstantial a, to be patently frivo- lous See lide IP'roduct. 1,nc., 194 NIRI 1234 ( 1'72) While Respond- ent's defense, arec learly nlonimcrilrious, A e find that the extraordinary remedy awarded by the Admilnistratice Lass Judge is not arranted here hce Leavenworth me, a D ni iiotf lhormcn \,e-cpapcer. Inc, 234 Nl.RB 649 (197:81 cf J P Svcn & o. Inc. 239 NI.RII 738 (19781 Accordingly, e ha c modified tihie rci mmended Order and nllotc 253 NLRB No. 97 possible insurance program. Respondent asserts as a defense to the grant of the prestrike general wage increase and the additional holiday that the Union had advance notice of Respondent's actions, did not object to the change, and, therefore, waived any right to object. While we agree with the Ad- ministrative Law Judge's finding that the Union did not waive its right to object to these changes, we do so for a different reason. 3 The essential facts are as follows. On May 18, 1978, the Union was certified by the Board as the exclusive bargaining representative of Respondent's production and maintenance employees. During the first three bargaining sessions, Respondent present- ed its proposals on seniority and a list of job classi- fications, and the Union presented its standard form contract. Prior to the fourth bargaining session the Union heard that some employees had been given "merit" increases, and at the fourth bargaining ses- sion on Friday, October 13, 1978, the union repre- sentative asked Respondent if this was true. Re- spondent admitted the increases, without explana- tion, and then gave the Union what purported to be a complete contract proposal which included a 9-percent general wage increase. Harrison stated that he was proposing a 9-percent increase, alleged- ly to avoid a Presidential wage freeze, which was anticipated on October 17. He further stated that he would put the wage increase into effect on the next working day, October 16, unless the Union objected. The union representative testified that he did not agree to the increase, but that he did not say, "No, you cannot put this into effect." There was no further discussion relative to the merit in- creases or the general wage increase at this meet- ing. On Monday, October 16, Respondent an- nounced the general wage increase to the employ- ees. At the seventh bargaining session on November 15, 1978, Respondent proposed the day after Thanksgiving as an additional paid holiday, and said that it would appreciate an answer from the Union in order to give the employees an opportuni- ty to make holiday plans. The Union did not agree to the proposal, but did not tell Respondent not to give the holiday. This extra holiday was announced to the employees at the close of the meeting. During December 1978, a supervisor polled some employees concerning the possible institution of a sickness and accident insurance plan. rThe Administrative l.aw Judge did not consider aiver as a defense to the granting of the merit increase as Rcspondent did not urge this de- fense in its post-hearing brief Hiloweser. Respondent now argues that the Union has alved its right tio object to the meril increases n the ground that the Union did not ask that they be rescinded. nor ask to bargain oer any future merit increases As ill be explained more fulls infra. sie reject Ihis contention h75 I)tCISI()NS 1OF NA I'I()NAI. I.AIB()R REL.ATIONS B3)ARI) In May 1979, during the course of an unfair labor practice strike, Respondent granted an addi- tional general wage increase. It is well established that an employer violates Section 8(a)(5) of the Act when it unilaterally changes wages and other terms and conditions of employment during collective-bargaining negotia- tions unless a bargaining impasse is reached before the changes are made. 4 Respondent does not con- tend that an impasse had been reached in bargain- ing negotiations on October 16. It claims that uni- lateral action was justified because it had met with the Union in a bargaining session on October 13, and had presented the Union with the option of ob- jecting to the proposed changes.' Respondent fur- ther argues that, as the Union failed to prohibit Re- spondent from implementing the changes, the Ulnion has waived any right to object. We find that the defense of waiver is not availa- ble to Respondent under these circumstances. Re- spondent's conduct at the negotiating table is in- consistent with the principle of collective bargain- ing. For, while the Act does not require any party to agree to specific proposals, it does demand that the employer meet and confer with a willingness to helar the union's view, to consider that view, and to chanige its mind. Respondent's obligation was to sulbrit its proposals to the give and take of the bar- gainilg process in which the Union had the right to play an active role in determining whether such changes were desirable during negotiations or whether they should have been bargained for in ex- chalige for other benefits. In affirming the Administrative Law Judge's conclusions, we do not adopt her conclusion that ('itiznv National ank of Willnmar, 245 NLRB No. 47 (19)7), and Winn-Dixie Store.s, Inc., supra, may be distinguished on the basis of "beneficial" and "detrimlental" unilateral action. Nevertheless we do not think that a finding of waiver is warranted in this case. The Board noted in Citizens National Bank that the union had sufficient notice of an in- tended change in work schedules to place upon the union the burden of demanding bargaining if it wished to preserve its right to object to any change.i Here, however, with respect to a general wage increase, Respondent gave the parties no ade- I 1. R v Berne' Katz, tcr.. d/h/u Willhamlburg Steel Product Co., tht t S 736, 743 (1962); Wirn-Dixie Sores,. Inc., 243 NI.RI 972 (1979) R1p-,licl}it als contends hal the unilateral October age increase k as I dllictd 1. thle inllin ence f a wage reeze. We agree witll6 he Ad- lnlmlslllvrIi T I aiv Judge ilhat his del'ense is ithlul nleril. See Kor,, In- dIuwire Ir, Il N RIRit) S6 (1966), enfd t8) F 2d 117 (4th ir. 1967) (3 I - ( rlrtont,. 2) N RiB 451 (1974) 'e do Inol find tha Ia th an- IILIpiatcd w;lge frlee is Slchl spc ial rcunlslallcC as woiuld tslif uni- tlL'a.1 l ;it 11Il1 11111cr N , R J V li(rie(. Katz, eIc.. Upr 'St t11 1 r .S l/i ,ne ( orri totr l, 1710 Nl RI 7511, 752 (1968). quate opportunity to bargain, although the Union clearly stated its disagreement with Respondent's intention to implement immediately the proposed changes and thereby indicated its desire to bargain about the increase, an item critical to the entire collective-bargaining agreement. Further, during these initial negotiations there had been no previ- ous attempt to bargain between the parties on any economic issue, and hence no contention that im- passe had been reached, justifying unilateral action. In these circumstances, Respondent's conduct pre- cluded meaningful collective bargaining and through "Union disparagement" attempted to viti- ate the role of the bargaining representative. More- over, as found by the Administrative Law Judge, Respondent was generally engaged in a course of bad-faith bargaining which undercut the Union's strength and negotiating position. Accordingly, where, as here, Respondent grant- ed the merit increases, the October wage increases, and an extra paid holiday without giving the Union sufficient opportunity to bargain over these unilat- eral changes, we find that Respondent may not avail itself of the defense of waiver. Therefore, in agreement with the Administrative Law Judge, we conclude that Respondent has violated Section 8(a)(5) and (I1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, M. A. Harrison Manufacturing Company, Inc., Bir- mingham, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph 2(c):7 "(c) Upon application, offer immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges, to all those employees who went on strike on January 14, 1979, or thereafter, dismissing if necessary, any person hired by Re- spondent on or after that date, and make them whole for any loss of pay which they may suffered I Chairman anning anid Member Jenkins recogllize that under current IBo)ard law Respondent is allowed 5 days to reinstate strikers upon their unconditional offer to return Ito work See Drug Package Company, Inc.. 228 NI.KR 108 (177). Hoeoveer, i their view, set out in he partial dis- senl in Drug Package, an employer's backpay obligation to unfair labor practice strikers should begin fromn the date of each striker's uncondition- al offer to return to work. H1towever, until such time as their pinion be- ctries Ihe majority iev of I the IBoard. hey feel themselves institutionally hounid by current Boa;lrd law 67h M. A ARRISON MFG. ((). INC' by reason of Respondent's refusal, if any, to rein- state them in conformity with the Decision herein." 2. Delete paragraph 2(d) and reletter the follow- ing paragraphs accordingly. 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICIi To EMPI.OYIS POStI) BY ORD)ER OF1THI NATIONAI LABOR RI ATIONS BOARI) An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WII.l. NOT refuse to recognize and bar- gain collectively with United Automobile, Aerospace and Agricultural Implement Work- ers of America, AFL-CIO, as the exclusive bargaining representative of employees in the following appropriate unit: All production and maintenance workers at our plant in Birmingham, Ohio, excluding office clerical employees and guards and su- pervisors as defined in the Act. Wl Wit I. NOT unilaterally change the rates of pay, wages, holidays, or other terms and conditions of employment of any employees in the above-described appropriate bargaining unit or announce or grant wage increases or other benefits, or deal or communicate directly with employees concerning conditions of em- ployment in derogation of our bargaining obli- gations to the Union and the rights of employ- ees under the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL recognize and, upon request, bar- gain collectively with United Automobile, Aerospace and Agricultural Implement Work- ers of America, AFL-CIO, as the exclusive representative of all our production and main- tenance workers at our Birmingham, Ohio, plant, excluding office clerical employees. guards and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employmentt. holidays, ard other terms aid conditions of employment, and, if an under- standing is reached, embody such understand- ing in a signed agreement. WI. Wit., upon request by the above-named Union, revoke any unilateral change in rates of pay, wages, holidays, or other terms and con- ditions of employment which we have institut- ed in the above-named appropriate unit until such time as we negotiate with the Union in good faith until agreement or an impasse in nre- gotiations is reached. WI Wtl , upon application, offer immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all those employees who went out on strike on or after January 14, 1979, and wE Wiit.l make them whole for any loss of pay they may suffer as a result of our refusal, if any, to rein- state them within 5 days of such applications. M. A. HARRISON MANUFACTURING COMPANY, IN('. DEC ISI()ON JOSI 'iilNI 11. K I.IN, Administrative Law Judge: P'ur- suant to a charge filed on -cebruary 1, 1978, by Ulnited Automobile, Aerospace and Agricultural Implemlcrn Workers of America. AFI---CIO (the Union). a com- plaint was issued against M. A. Harrison Company. Inc. (Respondent), on March 9, 1979, ad amended on June 27, 1979, alleging that since on or about August 1. 1978, Respondent has refilsed to bargain with the Union anrld "has engaged in a course of conduct constituting bad faith bargaining and has negotiated with the Union with no intention of entering into any final or binding collec- tive bargaining agreement" by having made unilateral changes in wages and working conditions and bh bar- gaining "directly and individually with employees," in contravention of Section 8(a)(5) and ( ) of the Actl Upon due notice, a hearing was held before me in Lorain, Ohio, on July 19, 1979.2 All parties were repre- sented by counsel and were afforded full opportunity to present oral and written evidence and to examine and cross-examine witnesses. The parties waived oral argLu- Natio naril L.alh r Rclairlon At., ailtilttcdt. 2 t 1 L s(' I s It ,.q 2 he hearing .,s 'heduled o c c}rlnct'cc 11 Jt 18 ISh m.c'r. lilt (day VWl, t ic-tt] ctcIusltNltIN to I t' n l .111' tlltlttrt'% L t I clrIpt I., reCach a t'IlIcltrm t aigre.rl-lt ,77 DECISIONS OF NATI()NAIL LABO()R RLATI()NS B()KARD merit, and post-trial briefs were filed on behalf of the General Counsel, the Union, and Respondent. Upon the whole record," my careful observation of the witnesses, and my consideration of the able and help- ful briefs of all parties, I make the following: FINDIN(iS 01 FAC 1. P'RI.IMINARY FINI)IN(;S A, Respondent, an Ohio corporation with its principal location in Birmingham, Ohio, is engaged in the manu- facture of brass and bronze bearings and bushings. In the course and conduct of its business operations, Respond- ent ships goods valued in excess of $50,0(X) from its B3ir- mirngham location directly to points outside Ohio. Re- spondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Union is now, and has been at all times materi- al herein, a labor organization within the meaning of Section 2(5) of the Act. II. I I Al I (:It) UNFAIR I.ABOR PRACIICI(S A. Background and Chronology In the main, there is little disagreement as to the facts. On May 18, 1978. the Union was certified as the exclu- sive bargaining representative of Respondent's produc- tion and maintenance employees. By letter dated June 24, 1978, the Union requested certain information from Re- spondent and stated its desire to begin contract negotia- tions. In due course the requested information was sup- plied. During the remainder of 1978, there were seven negotiating sessions. At the first session, on August 7, the Union presented its standard form contract. Respondent presented a seniority list. The list did not include any job classifications. When the Union referred to that deficien- cy, Respondent said it would devise some classifications and present them later. At the second meeting, on August 28, Respondent pre- sented its job classifications and they were added to the seniority list previously provided. Respondent also sub- mitted its proposal for a contractual seniority clause. However, the Union said that the proposal was not com- plete and the Union could not take a position without seeing a total seniority package. On September 7, at the third bargaining session, Re- spondent presented additional job classifications and an- other proposal on seniority. The Union expressed doubt concerning the legality of the Company's proposal for departmental seniority. The Union wanted to provide for plantwide seniority, with some modification to meet practical problems inherent in layoffs. The Union pre- sented its own proposed seniority provisions. No agree- ment was reached. Between September 5 and October 2, Respondent granted individual "merit" increases, ranging from 10 cents to 40 cents per hour, to 22 unit employees. Some of the raises had been requested by the employees but it appears that the majority had not been. Included in the ' Certain errors In the transcript are hereby noted and corrected beneficiaries was Harry R. Lechner, president of the Union's Local and chairman of its bargaining committee. When each employee was informed of his raise, he was instructed not to tell anybody about it, but that request was apparently more honored in the breach than in the observance. Clarence Peters, International representative of the UAW and chief bargainer for the Union, first learned of the raises when informed by Lechner just before the fourth negotiating session, on October 13. James A. Harrison, Respondent's president, testified as follows concerning Respondent's "merit" increase prac- tice during the preceding 4 or 5 years: We had a very informal program where informal ,,age rates, different job categories which we re- viewed periodically and gave raises .... On the merits it was six months .. . I would review every employee every six months. Q. Every six months-and did it lead to a raise? A. Approximately 20 people at a time, yes. Normally it was March and September. Q .... So they were all done at the same time? A. In the course of the year everybody gets looked at. Q. How many employees did you have? A. In 1978 we had about 135. Q. Only about 20 got raises each time? A. Merit raises now. There is no doubt that before granting the 22 merit in- creases in September 1978 Respondent did not inform the Union of its intention nor of its past practice con- cerning "merit" increases. Peters testified that he was upset upon learning of the increases. He mentioned them at the bargaining session on October 13, but they were not discussed beyond Respondent's acknowledging that they had been granted. At that meeting, Respondent gave the Union what purported to be a complete contract proposal. In present- ing it, Eldred A. Gentry, Esq., Respondent's counsel and conegotiator with Harrison, mentioned that it included a general wage increase of 9 percent. Respondent briefly explained that it was generally anticipated that President Carter was soon to announce a guideline calling for a ceiling of 7 percent on wage increases. This was of par- ticular importance to Respondent because it had some substantial government contracts. Respondent stated that, unless the Union requested otherwise, the increase would be put into effect the next Monday, October 16 (which presumably was the very next working day). The union representatives said they did not agree to the proposed general increase, but did not request that Respondent not put it into effect. 4 Respondent's wage proposal also pro- ' Peters' testimony was: We had no further discussion relatise to that wage increase-just a fat statement that it was there and would be put into effect I told the company that I did not agree Mr. Gentry said they would put it ill effect if I did not tell them not to I told him I did not agree %ith his action, particularly like this, but that I was not going to sit there and say, no, you cannot put this into effect. h78 M. A HlARRISON MFG. CO., INC. vided automatic in-grade increases each 3 months during the ensuing 18-month period. After reading Respondent's contract proposal, the union representatives indicated that they could not accept it because it lacked many important provisions, in- cluding a vacation plan, hospitalization, pensions, union representation. and union-security and dues-checkoff pro- visions. Gentry indicated that existing benefits, such as vacations, hospitalization, arid pensions, "would still be in existence." Peters, however, maintained that such mat- ters should be provided by contract and not left to the benevolence or discretion of the Company True to its word, Respondent announced the wage in- creases at an employee meeting early on Monday, Octo- ber 16. Each employee was given a letter informing him of his new wage and reading: Dear Fellow Employee: Effective Monday, October 16, 1978, every em- ployee will receive a nine per cent (9%) in- crease. We made this offer to the Union Committee on Friday, October 13, 1978. We told them that the rumor is that President Carter will impose a seven per cent (7%) wage increase ceiling this week. We said that we wanted to give more than seven per cent (7%) and we wanted to give it before the government stopped us. The Union Committee did not accept the nine percent (9%) increase. We said we would put in the increase anyway, unless the Union Committee objected. (We could not have given the increase if the Union Committee had objected. Now that the Union is the collective bargaining representative, we are bound by all kinds of Labor Board rules). The Union Committee did not object, so we are giving you the increase and putting our wage offer into effect. Enclosed are copies of the wage offer we made to the Union Committee. We will be glad to answer any questions. Local Union President Lechner testified that, after the October 16 employee meeting, several employees were upset. and asked him if the Respondent had the legal right to grant the increases without bargaining. Lechner said that some employees stated "that they felt the com- pany was trying to bribe them out of the Union and back into the shop without a Union." A union meeting was held on October 22. According to Peters' uncontradicted testimony, "[t]he employees were very upset" by the "merit" increases, which were viewed as inequitably awarded, and by the ensuing gen- eral increase." In answer to employee questions, Peters said that, in his opinion, the wage increases constituted unfair labor practices and that the Union would file charges. Lechner testified that some employees were Complaints wcrc regi stcr d that the fcmale emphl)ees wcre being paid less than the men fr the same Work II appears that action on behalf of one female employee lunder the FI-qlal P'a. Act is nos. pending in a Federal district court critical of his having accepted a merit increase "because they felt the company might be trying to pay [him] off." These employees were apparently reassured. It was then1 decided to hold another meeting on the next Sunda) to take a strike vote. At that time, October 29, the employ- ees, by a vote of 67 to 12, voted strike authority. 6 The fifth bargaining session was on October 31. The Union accepted Respondent's proposals on some items. However, a major disagreement appeared in Respond- ent's refusal of the Union's request for a union shop and a dues-checkoff provision. The Union, which had op- posed the Company's proposals for a no-strike clause and compulsory arbitration provision, said it would seriously reconsider that matter if, in return, the Company would seriously reconsider its position as to union-security and checkoff provisions. At the sixth bargaining meeting, on November 13, Re- spondent provided requested information concerning Re- spondent's existing medical insurance. Again, however, Respondent refused to agree to any form of union-secu- rity or checkoff provisions. At the seventh negotiating session, on November IS, Respondent announced that, unless the Union otherwise requested, Respondent was going to give the employees the day after Thanksgiving Day as an additional paid holiday. The parties had not previously discussed holi- days and Respondent had made no proposal on them. Peters' testimony concerning the Thanksgiving proposal was: I told [Gentry] that I did not agree to it. I wasn't going to tell him not to put it in, but I felt his tac- tics constituted unfair labor practices and bordered on what I called boorism-give us a proposal and tell us that is it and no bargaining on it. At the November 15 meeting, checkoff and union-se- curity provisions were again discussed, and again Re- spondent remained adamantly opposed. At no time did Respondent's representatives state their reason for refus- al; instead, they said only that the Union had not con- vinced the Company of the need or feasibility of such provisions. However, in one of the November meetings, Respondent indicated that it might retreat somewhat from its rigid proposals regarding total no-strike and mandatory arbitration provisions.7 The extra holiday at Thanksgiving was announced to the employees shortly after the November 15 meeting, and was effectuated. The November 15 meeting ended on a note of futility. Peters testified: At the end of the session I told Mr. Harrison that I could not see the necessity for us to continue to sit here and meet and not be able to agree on any- thing. We had all these meetings and had agreed on only four or five minor items, that I would take the company's position to the membership. . Nonunion members were permitted Ii svote The Union objected to the expense of arbitrating all grievances Re ,pondent countered by emphasizing the great wealth of the UAW as a %% hole h74 )F.CISIONS OF NATIONAL LABOR RELATIONS BOARD We had already taken a strike vote and it could possibly lead to strike action.... I got no re- sponse. He just shrugged his shoulders. According to Harrison, Peters said that "without Union shop and checkoff and . . . strike over any grievance . . .there was no further use of continuing bargaining." In a letter dated December 7, Respondent informed the Union that unless the Union's representatives object, the employees would be given the day before Christmas as a paid holiday. The Union did not reply and the holi- day apparently was given.8 Sometime in December, Harrison spoke to Bobby Taylor, who had been employed for about 9 years and had been night-shift supervisor for about 10 months, con- cerning a possible sickness and accident insurance plan for the employees. Thereafter Taylor spoke to the night- shift employees in small groups. He testified that some employees favored the plan, while others either disap- proved of it or were noncommittal. He said "a couple of the girls made remarks, 'Why in the hell didn't you tell this to us before the strike vote?"' Taylor indicated that he had been instructed to ques- tion the employees. lie testified that he "had to go back out and give the people, call them in groups, and told them or asked them what they thought of it." Lechner in effect corroborated Taylor, testifying that Taylor "ad- vised me [Lechner] of the fact that he had been asked by the company to feel out the employees, more or less take a poll or feel out the employees as to how they felt about the company instituting an accident and health policy." Harrison denied that he had directed or request- ed Taylor to take such action. However, I credit Taylor (who was called as a witness by Respondent) and l.echner, and find that Taylor was acting pursuant to ilstructions by higher authority. Shortly after the negotiating session of November 15, 1978, the Union enlisted the services of the Federal Me- diation and Conciliation Service. The mediator called the first meeting for January 11, 1979. At that session, like elisuing sessions, the parties' representatives did not meet face to face;9 the mediator engaged in shuttle diplomacy between the parties. No progress having been made in the January 11 mediation, the Union held a meeting on January 14, and at midnight that night went on strike. Ihe strike was still in effect at the time of the present hearing, in July 1979. Some of the picket signs read: "On Strike Against Harrison Mfg. Co. In Protest of Unfair labor Practices-UAW Local No. 1066." The Union's charge was filed on January 30 and the complaint was issued on March 9. With the strike con- tinuing and the complaint pending, mediation sessions were held on March 26 and May 2. Again, the parties did not meet face to face but communicated through the mediator. Although some progress was made as to rela- tively minor questions, Respondent made no concessions to the Union's proposals as to union representation, union security, and checkoff, or to the new question of return of the strikers. " Itilike Ihe extra daV for hanksgiving, the Christmas tve holiday is iii alleged in the complain as violative of the Act ' I his scpration apparclltly was at Responldent's isislence. At the May 2 mediation session, Respondent an- nounced that it intended to grant general wage increases as of May 7, ranging from 90 cents to $2 per hour' 0 and an increase in the shift differential from 10 cents to 20 cents per hour. So far as appears, the Union sent no direct response to Respondent's new wage proposal. However, Harrison conceded knowing that the Union "did not agree to" the increases. When the mediator gave Respondent's wage increase proposal to the Union's representatives, they offered to submit a new proposal for an entire contract based on proposals and counterproposals previously made. The Union then submitted such a proposed total contract to the mediator, but Respondent made no reply." The wage increases were put into effect on May 7, as an- nounced. The Union Local met on May 8, when Peters attempt- ed to explain the Company's latest wage increase. Again, uncontradicted testimony establishes that the employees, still on strike, were upset and expressed the view that Respondent was engaged in bad-faith bargaining. In answer to the members' inquiries, Peters stated his opin- ion that Respondent was committing unfair labor prac- tices. A final negotiating session was held on May 17, under the aegis of the mediator. No progress was made. '2 On June 27 the complaint was amended by the addi- tion of an allegation that the May 7 unilateral increases were violative of Section 8(a)(5) and (1) of the Act. 13B. Discussion and ConScluvions As previously notcu, the complaint, as amended, al- leges that the unilateral grants of "merit" increases in September and October 1978; of general increases on Oc- tober 16, 1978, and May 7, 1979; and of an extra paid holiday on the day following Thanksgiving Day, consti- tuted unilateral acts violative of Section 8(a)(5) and (I) of the Act. It is also alleged that Supervisor Taylor violated the Act by discussing a possible sickness and accident in- surance plan directly with employees rather than with the Union. Additionally, and very significantly, the com- plaint alleges that "by the acts described above . . and by other acts, Respondent has engaged in a course of conduct constituting bad faith bargaining and has negoti- ated with the Union with no intention of entering into any final or binding collective bargaining agreement."':' This Decision will involve a treatment of the specific acts allegedly unlawfully committed by Respondenl, as well as an analysis of the general course-of-conduc or bad-faith-bargainling allegation made by the Union. "' larrison tsfit i d thit he was ''"positire" that the increases cxc, c Ctl 7 percent I 'Ihe tieludiatir told the ullioi rpresentatillVes tha Rpriiint's rp- rseilt;livC S 1(ll s i ti Cicdetd ntore li tie (o study the 111ii11's latsll pro- posed contr;act 12 II appeas thait Rspoilide l ithdrc, frol ils previous agr.crlill e1on the rlalwy rllnllor Imailer of the length f eriplo c'. prihailloiary period 1:l Repolldct's cOuISielS' as manifestly UII error h 'ln, al the hrillg, tie stated "that this complaiil does tot Ctoitli ar llcgitiol ll rclusal to hbargail ;i l a cou rse iof conduc t nmerel staltes ill fit e specific pins " N1 A HARRISON MF (i ().INC' I. Unilateral acts a. "Merit" increa.ts'. There is no dispute that Respondent failed to inforn the Union of the 22 individual wage increases granted in September and on October 2, 1978. Respondent's onl defense to this allegation is that the increase conformed with established past practice, and thus withholding the increases would have violated the Act. The record total- ly faits to support that contention. Harrison, Respond- ent's sole witness on this matter, said that so-called merit increases had previously been granted under a "very in- formal" program. He provided no hint of an explanation of the standards, if any, for determining who would re- ceive such increases or how much each increase would be. Generally. only 20 out of some 135 employees, or about 15 percent, were so favored. Some of the Septem- ber 1978 raises, presumably typical, were given in re- sponse to employee requests or complaints while others were unsolicited. The entire matter of "merit" increases was thus left entirely to the discretion- or even whim - of management, i.e., Harrison. The Supreme Court has definitively ruled that an em- ployer violates the Act by granting such increases with- out giving notice and an opportunity to bargain to the employees' bargaining representative. See .\'L.R.B. v. Benne Katz. etc.. d/hb/a Williamsburg Steel Product.s Co., 369 U.S. 736 (1962). After stating the basic general pro- hibition of unilateral wage increases, the Court proceed- ed to consider the effect of a prior practice, as follows (at 746-747): Whatever might be the case to so-called "merit raises" which are in fact simply automatic increases to which the employer has already committed him- self, the raises here in question were in no sense automatic, but were informed by a large measure of discretion. There simply is no way in such case for a union to know whether or not there has been a substantial departure from past practice, and there- fore the union may properly insist that the company negotiate as to the procedures and criteria for deter- mining such increases. Although Respondent appears to have abandoned any such argument in its brief, at the hearing Harrison made a point of saying that he considered the advice of his counsel, Gentry, who said "it was one of these situations where it is damned if you do and damned if you don't" and recommended that Harrison follow his normal pro- cedure. However, Peters' undenied and credited testimo- ny establishes that at the negotiating session on October 13 Gentry disclosed that he had not known of the indi- vidual raises. In any event, it is well established that it is generally no defense to an unfair labor practice allega- tion that the respondent has consulted counsel and acted pursuant to advice of counsel. See, e.g., Jervtedt Lumber Company, Inc., 209 NLRB 662 fn. 2 (1974): .L.R.B. v. Ilendel ManuJacturing Company. Inc., 483 F.2d 350, 353 (2d Cir. 1973). And Respondenlt is disingenuous in arguing that its lack of bad faith is established by the facts that Lechner the Local's president and chairman of its negotiating committee, received a raise, and that Harrison "down played" the matter by telling recipients of increases not to reveal them. Lechner's raise might reasonably be viewed, as it initially was by some employees, as an at- tempted "brihe," intended to "soften" his attitude in bar- gaining. And Harrison's request that the individual raises not be publicized can be seen as implied knowledge that they were unlawful and were riot in accordance with any established pattern known to the employees. On all the evidence, there can be no doubt that the September and October 2 individual "merit" increases, given without advance notice to the Union. \,'ere in vio- latioln of Section 8(a)(5) of the Act. h. he Octohber general wage increases Respondent did give some, though very brief, advance notice of the general wage increase of October 16. TIhe length of the notice was certainly insufficient to pcerllit bargaining, particularly in view of the fact that contract negotiations were in their initial stages and there had been no attempt by either side to reach that issue (or aix\ other economic issue). Respondent explains its haste to effectuate the -per- cent increase on October 16 by the existence of rumors in the press that on October 17 President Carter \would arinnounce a 7-percent freeze on wage increases. ut Re- spondent's desire to beat the Government to the punch cannot justify its taking unilateral action in iolation of the Act. Possible Waiver The more difficult question presented, although Re- spondent does ot raise it in these terms, is whether the Urion waived its right to demand bargaining. Although the Union did riot favor the proposed increase when the bargaining process was in its infancy, it did riot request that the increase be withheld or that the parties bargain about it. The Board has held that a union has the burden to make such request when notified of the employer's in- tention to make changes in wages or working conditions. See, e.g., Amrican Buslines, Inc., 164 NLRB 1055, 1055 56 (1967); Triplex Oil Refining Division of Pentalic Corpo- ration, 194 NLRB 5(X) (1971); Coppus Engineering Corpo- ration, 195 NLRB 595, 595-596 (1972); Kentron o'f Hawaii Ltd., Subsidiary of LTV Aerospace Corporation, 214 NLRB 834, 835 (1974); Medicenter, Mid-South Hospital, 221 NLRH 670, 680 (1975); Clarkwood Corporation, 233 NLRB 1172 (1977). This established principle was force- fully reiterated in a unanimous full-Board decision as re- cently as September 26, 1979. In Citizens National Baunk of' Wilnar, 245 NLRB 389 (1979), the employer iniformed the union of an intended change in the work schedule of some tellers. In holding that the respondent had not vio- lated the Act when it implemented the announced change, the Board noted that the union's representative "did not request that Respondent rescind the change, and did not request that Respondent bargain with the Charg- ing Party concerning this matter." The Board's decision continues: 681 DECISIONS OF NATIONAL. LAH(OR RELATIO)NS 1()ARD It is well established that it is incumbent upon a union which has notice of an employer's proposed change in terms and conditions of employment to timely request bargaining in order to preserve its right to bargain on that subject. The union cannot be content with merely protesting the action or filing an unfair labor practice charge over the matter. In the instant case, although the Union ob- jected at . . [a] negotiations session to Respond- ent's previously announced change in the employ- ees' work schedules and thereafter filed an unfair labor practice charge, it admittedly did not seek bargaining over the matter.... We therefore con- clude that having failed to exercise its right to demand bargaining over the issue, the Union may not now effectively claim that Respondent unlaw- fully refused to bargain. Although, as previously stated, Respondent does not mention the Board's "waiver" cases as such, it relies heavily on the Fifth Circuit decision in Winn-Dixie Stores, Inc. v. N.L.R.B., 567 F.2d 1343 (5th Cir. 1978). In that case, the employer and the union were engaged in hard bargaining on noneconomic provisions of a renewal contract. In the midst of those negotiations, the employer put a wage increase into effect. The Board affirmed the Administrative Law Judge's holding that the increase under those circumstances violated Section 8(a)(5) of the Act. Winn-Dixie Stores, Inc., 224 NLRB 1418 (1976). In reaching his conclusion, the Administrative Law Judge said, inter alia (p. 1440): Any witness to these negotiations would quickly realize that if there were any issue as to which the Company had a flexible position it was wages, Re- spondent had to remain competitive in the labor market and, from time to time, was impelled to in- crease wages. When the increase was put into effect, the one issue on which Respondent had demonstrated some flexi- bility no longer could have significant influence on the ultimate product of negotiations and . . . the Union could not take credit for achieving a signifi- cant benefit through the bargaining process. The Fifth Circuit reversed this portion of the Board's de- cision, stating that the company had "complied with its statutory duty to bargain" when "it gave the union notice of its desire to raise wages and met with the union in a bargaining session at which the union presented counter proposals" before implementing a wage increase. After the court's decision, the parties unsuccessfully attempted to bargain a settlement. Thereafter, in April 1974, the union requested collective bargaining. The company replied that it could meet early in June and proposed that in the meantime a wage increase "be put into effect immediately without prejudice to further bar- gaining on the subject." The union rejected the sugges- tion and asked for resumption of bargaining "not only for 'wage increases but increases in pensions, vacations, hospitalization and other fringe benefits as well as terms and conditions of employment."' Winn-Dixie Stores. Inc., 243 Nl.RB 972 (1979). The parties met on 3 days and again the union would not agree to effectuation of the wage increase, demanding that agreement be reached on several specified items before any wage increase was granted. At the third meeting, on July 2 the company announced that it would put the increase into effect on July 7 and suggested that the employer and the union post a joint notice that the "interim wage increase" would not preclude bargaining on all issue. The union rejected the suggestion and said it would file charges with the Board, which it then did. Winn-)ixie Stores. Inc., 243 NLRB 972 (1979). In finding that the company had violated Section 8(a)(5), a unanimous panel of the Board "respectfully disagreeld with the court's conclu- sion [in the previous Winn-Dixic case] limiting thie obliga- tion of an employer to bargain with the representative of its employees prior to implementing a unilateral change." 243 NLRB 972 (1979). The Board said that- ['I]hc requirement that the parties reach impasse before a unilateral change may be lawfully imple- mented, rather than merely discuss a proposed change, is in accord with the basic tenets estab- lished by the Court in N.L.R.B. v. Katz [vupra, 369 U.S. at 743] . . . and hy Congress in enacting Sec- tion 8(d) of the Act. There are factual differences bctween Citizens National Bank and Winn-Dixie. In Citizens .ational Bank the union did not request bargaining concerning the employ- er's proposed change i working conditions, whereas in Winl-Dl.rie the union did demand bargaining of the pro- posed change along with all other pro isions of the con- tract. O()n the hasis of this distinction, the instant case would appealr to fall into the Citizen .\ational Bank clas- sification and the union would be held to have waived its right to bargain concerning the ()ctber 16, 1978, gener- al wage increase. hlowever, a second basic difference be- tween the two recent Board cases tends to lead to a con- trary result. In C'itizen .National Bank the unilateral change was detrimental to the employees, whereas Winn- Dixie involved beneficial changes. The union might well waive its objection to sonic unilateral employer action for the sake of continued bargaining. hc employer's conduct detrimental to the employees might not hamper continued bargaining. Indeed, the union's failure to pursue its objection to the detrimental change might give the union some additional leverage in the contract nego- tiations. Employee support of the union would not be undermined if the total agreement eventually reached was satisfactory. In the first Winn-Dixie case (supra, 224 NLRB 1418), the basic rationale of the Board's decision was that the employer's unilateral grant of wage increases pulled the rug out from under the union; the union could not take any credit for the increases while, at the same time, its ability to bargain as to other items was substan- tially reduced by the restriction of its power to use the wage issue as a medium for trading. The latter situation is closely akin to that in the present case. The union was placed in the unenviable position of having to choose be- " Chairmanl Fanning and Members Jcnkin and P'crllo 682 MNI A. HARRIS()N MFG C () INC tween, on the one hand, denying the employees very substantial wage benefits (or at least postponing them) and, on the other hand. heing restricted in a major area of trading. In its brief, Respondent argues that "it would he in- congruous . to rule that Harrison should not have put the proposed wage increase into effect when the parties would then run the risk of deniving the employees the full amount of a general increase, which Harrison wanted to give and which UAW rejected presumabl be- cause it was too low." There is no basis for "presuming" that the Union considered the wage increase "too low." The wage issue had not as yet been treated in the negoti- ations. By granting the unilateral increase. Respondent prevented the Union's being able to moderate its eco- nomic demands ill exchange for other benefits it deemced more urgent. For example, the Union was pressing for union-shop and dues-checkoff provisions. Such provi- sions may he most important. particularly where. as here. a newly certified union and it first contract are at stake. Very favorable wages and working conditions in a first contract may e illusory if the Union is unable to main- tain its strength. It is riot, of course, the employer's place to conljecture that union-secutrity and checkoff provisions protect the union rather than the employees. The unIdis- puled fact in this case is that the employees chose to strike despite the Company's "generosity." I he Union was entitled to credit for any wages as part of an overall agreement. It is true tlhat in the "waiver" cases the Board general- ly has not articulated it distinction between "beneficial" and "detrimental" unilateral action. The cases cited by the Board iii (' izns I'ti,,ona/ Bank. supra at firs. 6 and 7, generally involved unilateral conduct detrimental to the employees' or the unionll' taken when no contract negotiations were in process. This is not a case in which the Union traded off one demanld ill returnl ft)r another. 'as in Beacon Piece Dwv'ing & i,-.mrhing Co., 121 N RBI 953 (1958). Rather, we are here presented with a situa- tion in which Respondelnt's insistence on the absence of check-off . reads into the unilateral age increase . . . a permissible implication of union disparagement." .L.R.B. . Iurman SausLge Company . Ic., 122 NLRI3 168 (958), enfd. 275 F.2d 229, 233 (5th Cir. 196h()). On the undisputed facts in this case, I conclude that the general wage increase of October 16 was iolative of' Section 8(a)(5) and (I) of the Act. I also conclude that the U'nion's failure to request that the increase be with- held and subjected to bargaining did not constitute t waiver of its right to object to a Board proceeding; as a practical maltter, Respondent's conduct placed the Union in an impossible position, in which eployee support would probably he seriously undermiried whichever course the Union followed. :' hl ( IlIepil/ ,/ ,1'ur ,,lrp,l. Oh. !234 NKB 5s (1978). (lirA i...d (d rporuioll. upfru. (Ioht'e-niion. ln,. 222 N Rt 181 (1976 .'edw en tir, .Wid-,Sotlh/ Irlopirtal upra "'.-ti rim,, Buipi Inc. 1t64 Nl.RI 1055 (1967, h.ere Ihe uililillcr; chanlrlges ".,tili gl.C proroliilollis lt rnllplieTes. hut lillll tC I 1h hi.rgllr Irig unril reprcsrtid by lt'i litlli 'lo horr R t'~1. pol r Jrgnllll'% i ilr'li nrl g til ildildual '"nltcril'" inre'il ,, the illioin ias trul1 il a 'dar ltld it' \ L i l ;111(1i dllrrine i sewl doll't p s oil c. he harnkigivng holida v What has been said above concerning the October general wage increase is equally applicable to the addi- tionral Thanksgiving holiday which Respondent an- Inounced on or about November 15, before contract ne- gotiations were cut off or temporarily suspended, as dis- cussed below. Accordingly I conclude that the unilateral anioulcement of an additional paid holiday and its sub- sequenit effectuation were violative of Section 8(a)(5) and (]) of thel Act. d. '1(re Ma1t 1979 wage icrarse( Basically, the increases i wage rates and shift differ- enltial announced on May 2 to be effective on May 7 " raise the sanme issues as does the ()ctober 1)78 general in- crease. Respondent parades its benceficece, arguing that "IUAW's responrse to Harrison's proposed wage increase was to propose a general wage increase [and] that no fur- ther wage increases be implemented until a complete agreement waIS reached arid satisfied." Although there is considerable room for doubt concerning Respondent's in- terpreatiaol of the Union's wage proposal, it is here as- sumed that, ilas Respondent maintains, tile Union's pro- posal called for lower wage rates than Respondent put into effect. "' Among the Union's goals was some level- ing outl of the age increases. as opposed to the in- creased disparity caause by Respoident's percenltage ap- proach t) illl.Cicies which Noutlld xtid,1 l he disparities. And. of course, tf'r the reasons pre\ iouslv considered, the Union did not sitill the wage issue cilulillated from the overall conltract negotiatliois Respondent's argument clearly points up the basic ice ill the unilateral bestowal of benefits, as discussed in N.L.R.B. v. Aorz. supra, 369' U.S. 736. The considerations set forth above also disp(ose of Re- spondcnt's further contention that the lrnion's possibly modest age demands establish tliat its "proposal ,'as a sham anid was intended to impede agreement and not to reach agreement." The Union manifestly was seeking a total agreement and was being handicapped in this pur- suit by Respondent's removing the wage issue s an iteni of negotiation. See Winn-Dixrie Store. Inc.. vupra, 224 NLRB at 1440. Respondent further argues that it "had every right. under ruling case law, to put its latest proposal to UAW in effect for those who remained at work, because at the In ir hrief R sponldcnt dlsingerl llliul % 'aii ":lirrisin 1'vi prio pos'ed I nllkc lhe. increases e.teciive ,i Ihc folli. lnig 1i1rlda)., NMa 7 1 t7 ) [[ti;tira'i supplie j Re.piondlits cgienroll.i as i, bh asil ce rather Ihanil a ir)ui t 'tie [lnioll's proposal Ill May 2. 197,. ias ill he frm if corilmerill (in, rii,ls on,, and addltlnlls I Resrpondent's mrnit recent conlra.c pro- posal hai prop,,a;ll cliontained he i. age schedules IIt g, intol elect as 1i Ma 7 1i Ullio iiidicilled its gremenlt Io the Compan 's propolal l r thit arcli o11n "'iagcS," c ith lirnlnalll.,nl i,' tlhe prinllr for unlhmilnc 11 disrt-li11111 II ilthe tCm pa;liy t i gr lil n idl tllhls l enilpls; ees rat's higher Ithall hosc sc Ilort i h e hedules I e tnriinil proposed a pruvislon fir il1 "ilnlral c agce iTcreias' if 9%" ligilred oi plTnl islerag" he t iOill further niled ils uhj.cclltils "0i the ililptile talilolln iif an addililolal wage Iul-rc;les w lll] un il a clplele agreemernt is rta ied irfl r;llfricd" ]' is possi le Ir re; ihe t[nllri t'i collnlmtills it sc-kinlg Illnual increasts of 1 i-'e ' lt c1 , ,li t s teCdll es st fIorth iI1 Respi-ridtlell ' proposal 681 I)FCISIONS OF NATIONAL LABOR RELA'IIO()NS BO)ARD time the proposal was made and put into effect, UAW was on strike against Harrison.- The only "ruling case law" cited by Respondent is Gulfj' States Vanufacturer., Inc., 579 F.2d 1298 (5th Cir. 1978). That case, hoNwever, does not hold that the existence of a strike warrants uni- lateral action by an employer. It holds only that "a valid bargaining impasse" will warrant an employer's institut- ing wage increases previously offered to and rejected by the Union. In reversing the Board's Gulf States decision (Gulf States Manufacturers, Inc., 230 NLRB 558 (1977)), the court merely disagreed with the oard's conclusion that no impasse had been reached. 2" It should also be noted that Gulf' States involved a strike which com- menced before the wage increase was granted and thus presumably was an economic strike, whereas the present case involves a strike initiated as a response to the Em- ployer's prior unlawful conduct. Finally, whatever the thrust of the Fifth Circuit's Gulf States decision, I am bound by the Board's view of the law. The Board has consistently held that the existence of a strike does not nullify or terminate an employer's statutory obligation to bargain with the employees' bargaining agent. Boeing Airplane Company, a Corporation, Successor to Boeing Air- craft Company, a Corporation, and its Agent William M. Allen, 80 NLRB 447 (1948), reversed on other grounds 174 F.2d 988 (D.C. Cir. 1949); Pecheur Lozenge Co., Inc., 98 NLRB 496 (1952), enfd. in pertinent part 209 F.2d 393 (2d Cir. 1953). e. Claimed impasse We are thus brought to Respondent's apparent conten- tion that a bargaining impasse was reached by November 17, 1978, when the Union broke off negotiations, with Peters' saying that, because of Respondent's intransigent position, there was no reason to engage in further bar- gaining. It does appear that a stalemate had been reached, at least as to the issues of union security and checkoff. It is established that an impasse may be reached on the basis of specific items even though many other provisions have not as yet been bargained. See, e.g., American F'ederation of Television and Radio Artists, AFL-CIO, Kansas City Local v. N.L.R.B., 395 F.2d 622, 628 (D.C. Cir. 1968). On all the evidence, I am inclined to conclude that an impasse was reached on November 17, 1978. The resumption of some bargaining in March 1979, under the aegis of a Federal mediator, did not serve to break the impasse, particularly since, except for a very short time on May 17, 1979, the parties did not meet face to face. Id. But it may be that the strike, which began on January 14, so changed the situation as to break the impasse. Cf. Boeing Airplane Co., supra, 80 NLRB at 454. In any event, Respondent cannot take advantage of the impasse because it was caused in large part by its own unlawful conduct in unilaterally granting wage increases and benefits. See The Little Rock Downtowner, Inc., 168 "I The court said (579 2d at 1326-27): "he wage increase was granted only after a valid bargaining impasse had been reached and the Union members were out n strike urthermore, the increase was exact- ly the same that had been offered to the Union and rejected by it Uder these circumstances the Corlpany had the right to increase te wages without being guilty of an unfair labor practice." NLRB 107, 108 (1967), enfd. 414 F.2d 1084 (th Cir. 1969). In that case the Board said (168 NL.KRB at 108): It is well settled that where further negotiations appear to be futile, a union is justified in not seeking to continue them. Respondent's unilateral changes of working conditions without consultation with the bargaining agent are violations which strike at the heart of the Union's ability to effectively represent the unit employees. There is no more effective way to erode the ability of the Union to bargain for the employees than for Respondent to make such changes without consultation with the Union. Re- spondent, after having committed violations which reasonably resulted in the Union's decision to regard further attempts to bargain as futile, may not seize upon its own wrongs to charge an abandon- ment by the Union of the unit employees or to infer a loss of employee support.... Accordingly, on all the evidence, I conclude that the wage increases granted in May 1979 violated Section 8(a)(5) and (1) of the Act. 2. Direct dealing with employees As set forth above, Supervisor Taylor informed the second-shift employees, in small groups, of a sickness and accident insurance proposal which Respondent was con- sidering. Although the standard form contract presented by the Union at the first negotiating session on August 7, 1978, contained a sickness and accident provision that issue was never discussed by the parties. At the outset, I reject Respondent's contention that Taylor, a low-echelon supervisor who had been a rank- and-file employee at the time of the election and until September 1977, was generally identified with unit em- ployees and could not have been taken as a spokesman of management. I have found that he was acting on direct instructions of management and so informed employee Lechner and presumably other employees. Even absent such specific instructions, his unquestioned supervisory status at the time would establish his agency. There could be no possible doubt of his agency status when, during worktime, he discussed a plan being considered by management but not otherwise disclosed to or dis- cussed with the Union. Nor is there any merit in Respondent's contention that Taylor's conduct was "de minimis."As said by the Board in Little Rock Downtowner, Inc., supra, 168 NLRB at 108: "There is no clearer or more effective way to erode the ability of the Union to bargain for the employees than for Respondent to make such changes [in wages and hours] without consultation with the Union." In the pres- ent case there is direct, affirmative evidence, which I have credited, that at least one employee affirmatively indicated her opinion that a company initiated sickness and accident insurance program would tend to eliminate the employees' need for union representation. The only serious question is whether the polling of employee sentiment, without any express promise or ef- fectuation of the benefit under consideration, amounted to unlawful bypassing of the Union. In Obie Pacific, In- 684 M. A. HARRISON MFG. CO., INC. corporated, 196 NLRB 458 (1972), the Board held that "an employer may [not] attempt to erode a union's bar- gaining position by engaging in a direct effort to deter- mine employee sentiment rather than to leave such ef- forts to the agent of the employees." The Board explicat- ed its holding as following (at 459): While, under appropriate circumstances, an employ- er may communicate to employees the reasons for his actions and even for his bargaining objective, he may not seek to determine for himself the degree of support, or lack thereof, which exists for the stated position of the employees' bargaining agent. Part of the task facing a negotiator for either a union or a company is effectively to coalesce an ad- mixture of views of various segments of his con- stituency, and to determine, in the light of that knowledge, which issues can be compromised and to what degree. A systematic effort by the other party to interfere with this process by either surrep- titious espionage or open interrogation constitutes clear undercutting of this vital and necessarily con- fidential function of the negotiator. Finally, it is to be noted that the violation is the same whether or not the parties were at a bargaining impasse in late November and December 1978, when Taylor's in- terrogations were made. Even in an impasse situation an employer is not permitted unilaterally to bestow benefits not previously offered to and rejected by the union. NAL.R.B. v. Katz. supra, 369 U.S. at 745; Eddic's Chop House, Inc, 165 NLRB 861, 863 (1967). Similarly, he may not take preliminary steps toward devising benefits which, if granted without the union's intervention, would undermine its status as the employees' exclusive repre- sentative. Accordingly. it is concluded that Respondent violated Section 8(a)(5) and (1) of the Act when Taylor surveyed employee sentiment concerning a sickness and accident insurance program under consideration by Respondent. 2 3. Respondent's course of conduct Respondent's entire course of conduct was manifestly designed to embarrass the Union and deprive it of the ability to represent the unit employees. It is perhaps not an overstatement to say, as some employees had suggest- ed, that Respondent was attempting to "bribe" ne em- ployees to abandon the Union. If Respondent "voluntar- ily" gave the employees as much as, or possibly more than, the Union could achieve in economic benefits, the employees might well be led to desert. In the present case, Respondent's effort apparently has not been re- warded-the employees are still on strike, presumably declining short-term benefits for the anticipated !ong- term protection provided by collective bargaining. While the Company was granting economic benefits before the bargaining reached economic matters, it as maintaining an adamant opposition opposed to the 21 It is lnlilll hiat R( Ipollcl , , rliltls n olllsidrtng ;plip ,oll l such a programilnl rather lI fl rncrcl holdiig lJ i t all Inlilginar. possihl. hbt'riefi t i,ircC ,itployc,cs to ahillandon h,, t inion Union's position on issues such as representation and union security and checkoff, which were ostensibly being negotiated. Admittedly, Respondent was not required to accede to the Union's demands for union-security and dues-checkoff provisions. H. K. Porter Co., Inc.. Disston Division-Danville Works v. '.L.R.B., 397 U.S. 99 (1970). But Respondent was not free to deprive the Union of mandatory subjects of bargaining as potential "trade- offs" for union security and dues checkoff. Cf., e.g., Schuck Component Systems, Inc., 230 NLRB 838, 846 (1977). Thus, even if it were to be held that the Union "waived" its right to object to some of Respondent's un- lawful unilateral actions, it would still be clear that Re- spondent's conduct in that regard constituted a refusal to bargain. It is immaterial that there is no direct evidence of subjective bad faith on Harrison's part. Here again the Supreme Court in Katz, upra, 369 U.S. at 742-43, defini- tively resolves the issue against Respondent. The Court there said: The second line of defense was that the Board could not hinge a conclusion that § 8(a)(5) had been violated on unilateral actions alone, without making a finding of the employer's subjective bad faith at the bargaining table; and that the unilateral actions were merely evidence relevant to the issue of sub- jective good faith. The duty "to bargain collectively" enjoined by § 8(a)(5) is defined by § 8(d) as the duty to "meet . . . and confer in good faith... " Clearly, the duty thus defined may be violated without a general fail- ure of subjective good faith. . . . A refusal to nego- tiate in fact as to any subject which is within § 8(d) and about which the union seeks to negotiate vio- Slaes § 8(a)(5) though the employer has every desire to reach agreement with the union upon an overall collective agreement and earnestly and in all good faith bargains to that end. We hold that an employ- er's unilateral change in conditions of employment under negotiation is similarly a violation of §8(a)(5), for it is a circumvention of the duty to negotiate %which frustrates the objectives of §8(a)(5) much as does a flat refusal. This quotation is not intended to indicate any finding or opinion that the present respondent did act with subjec- tive good faith and a genuine desire to reach agreement oi a contract. Respondent's whole course of conduct, consisting of unilateral action and direct dealing with employees, makes it unnecessary to pass on Respondent's subjective intention. See N7.L.R.B. v. Herman Sausage (Co., supra. Additionally it is unnecessary to determine whether, as alleged in the complaint, Respondcnt's course of conduct included "other acts" contributing to a course of unlaw- ful misconduct. 685 I)F CISIONS OF NAI'I()NAL. LABOR RELAIIONS BO()ARD Accordingly, on all the evidence, I conclude that, as alleged, since August i, 1978,22 Respondent "has en- gaged in a course of conduct constituting bad faith bar- gaining . . . with no intention of entering into any final or binding collective bargaining agreement." 4. The nature of the strike The complaint alleges that the strike, which com- menced on January 14, 1979, pursuant to an employee strike vote taken on October 29, 1978, was an unfair labor practice strike. Respondent maintains that it was an economic strike called to enforce the Union's demand for union-shop and checkoff provisions. There is considerable uncontradicted evidence that at a union meeting held on October 22, 1978, employees registered complaints concerning the individual wage in- creases granted in September and the beginning of Octo- ber, as well as the general 9-percent increase, together with rate classifications and in-grade promotions. unilat- erally effectuated by Respondent. Employees attending the union meeting asked Peters if the grant of those inl- creases constituted unfair labor practices, to which Peters answered in the affirmative. It was then that the employees voted to take a strike vote a week later. At the next meeting, on October 29, the employees voted overwhelmingly to strike. When the strike actually took place, picket signs referred to Respondent's "unfair labor practices." There is no evidence that the employees ex- pressed any complaints other than those concerning Re- spondent's bypassing the Union and its bad faith as re- flected in its unilateral actions.2:' Since it has been found that Respondent's previous conduct was violative of the Act, manifestly a strike called to protest such misconduct was an unfair labor practice strike from its inception. Subsequent action, such as the May 1979 increases, also prolonged the strike. Respondent maintains that the strike was called to enforce the Union's demand for union-shop and checkoff provisions. First, it should be noted that the strike vote was taken before those issues appear to have assumed great proportions in the bargain- ing. There is no evidence that those issues were dis- cussed at the October 22 and 29 meetings, when the strike authorization was voted. Although there is no evi- dence to this effect, it is possible, and perhaps likely, that Respondent's adamant refusal to agree to any type of union-shop and checkoff provisions, unaccompanied by any explanation or justification of its rigid position on these mandatory subjects of bargaining, contributed to the strike vote and subsequent implementation thereof. But, since Respondent's unlawful unilateral action and course of bad faith bargaining played a substantial, indeed the major part, in the strike decision, it is fiund that the strike was an unfair labor strike from its incep- tion. See, e.g., King Radio Corporation, Inc., 172 NLRB 1051, 1074 (1968), and authorities cited in fn. 61 (1968). Contrary to Respondent's contention, there is no sig- nificance in the fact that the Union withheld striking until January 14, 1979, some 2-1/2 months after the 2z Six monlhs beftore Ihe Union's charge '.ls tiled 2:' Although the gran of )cccrr 24 as i paid holiday as inat al- leged ai al unfair labor praleitc. II clei.rl aIlpc.rs t harc been ol aelld prlhbably onitrlhutcrid I the strike strike vote was taken. See King Radio Corp. upra, 172 NLRB at 1072, where Administrative Law Judge Ohl- baum, in language adopted by the Board, said that the union "officials are to be commended, not censured or its members penalized . . . because the Union was willing to continue to attempt to solve the existing problems through negotiation." Ill. TH I:tHlC-CT01; 1 TilE UNIAIR ABOR PRACTICES UPON COMM ERCI. 'The activitites of Respondent set forth in section II, above, occurring in connection with Respondent's oper- ations described in section I, A, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCIUSIONS 01: LAW 1. Respondent, M. A. Harrison Manufacturing Compa- ny, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, United Automobile, Aerospace and Ag- ricultural Implement Workers of America, AFL-CIO, is a laboi organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at Re- spondent's Birmingham, Ohio, plant, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appro- priate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The aforenamed Union, since May 18, 1978, and at all times material herein, has been and is now the exclu- sive representative of all employees in the aforesaid ap- propriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. Since August 1, 1978, Respondent has refused to bargain collectively with the above-named labor organi- zation as the exclusive bargaining representative of all its employees in an appropriate unit, and thus has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act, by: (a) Granting individual wage increases in September and on October 2, 1978, without giving the Union notice and an opportunity to bargain. (b) Unilaterally granting a general wage increase and establishing job classifications with a schedule of auto- matic periodic wage increases on October 16, 1978. (c) Unilaterally announcing and implementing, in No- vember 1978, the grant of the day following Thanksgiv- ing Day as a paid holiday. (d) Unilaterally announcing and granting additional general wage increases effective May 7, 1979. (e) Polling employees directly concerning the possible institution of a sick and accident insurance program, in November and/or December 1978, without consulting the aforenamed labor organization. (i) Engaging in a course of conduct constituting bad- faith bargaining with no intention of reaching agreement on a collective-bargaining contract. 686 M A IARRIS()N MF(;.C(). INC 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfer- ing with, restraining, and coercing, employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. TtI R MI)Y It will be recommended that the customary cease-and- desist and notice-posting requirements be ordered. In ac- cordance with established Board practice, a narrow cease-and-desist order will be recommended. Great West- ern Broadcasting Corporation, d/b/a KXTV, 139 NLRB 93, 96 (1962). Cf. W'inn-Dixie Stores, Inc., supra, 243 NLRB 972 (1979). Respondent will, of course, also be ordered to bargain with the Union in good faith. Additionally, since it has been found that the strike here involved is an unfair labor practice strike, appropri- ate provision will be recommended for reinstatement of each striker within 5 days after he makes an uncondition- al offer to return to work. Backpay, computed in accord- ance with F 4:' Woolworth Company, 90 NLRB 289 (1950), with interest computed in accordance with Flor- ida Steel Corporation, 231 NLRB 651 (1977)24 will be due for the period between 5 days after the employee re- quests reinstatement and the date on which he is reinstat- ed, provided that the backpay period shall commence at the time of the employee's unconditional offer to return to work "if Respondent has already rejected, or hereafter rejects, unduly delays, or ignores any conditional offer to return to work, or attaches unlawful conditions to its offer of reinstatement." Latrobe Steel Company, 244 NLRB 528, fn. 2 (1979); Drug Package Company. Inc., 228 NLRB 108 (1977); Newport News Shipbuilding and Drydock Company, 236 NLRB 1637, 1638 (1978). A more difficult question arises in consideration of the affirmative remedy to be recommended. It is the Board's general practice to provide that an employer is not re- quired to rescind or discontinue wage increases or other benefits which he has unlawfully effectuated. But, while permitting unlawful benefits to remain in effect obviously does not restore the status quo ante, restoration of the status quo is not necessarily a desirable or attainable goal in all cases. Other things being equal, it would serve no remedial or preventive purpose to deny employees bene- fits which they are enjoying. In most cases the Board properly exercises its breadth of discretion to require dis- continuance of adverse changes while permitting con- tinuance of beneficial change made unilaterally by the employer in violation of the Act. However, in some cases, like the present, continuation of benefits unlawful- ly conferred will permit the offending employers to con- tinue to reap an unwarranted boon from its own miscon- duct. The economic benefits unilaterally granted by Re- spondent may well be as much as, or even more than, the Union might have obtained, or even requested, in 24 See. generally, Iis Plunhbing & Heating Co., 138 NLRH 71h6 (19h2) open and fair bargaining. In the words of the Board in Beacon Piece Dveing & Fin ishing Co., supra, 121 N I.RB at 957: "The Union was . . . an unwilling victim of a com- plete removal of [the subject of wages] from the bargain- ing table by the Respondent." With wages and holidays for all practical purposes removed from the scope of bar- gaining the Union has lost considerable leverage in bar- gaining for provisions on union security, dues checkoff, and union representation. '25 Where art employer has unilaterally made "mixed changes, i.e., both beneficial and detrimental to the em- ployces, the Board has frequently given the union the right to choose whether rescission should be required. See K'i supra, 139 NLRB at 96, which states," We shall also, in accordance with our usual practice, order revocation by Respondent of the unilateral changes in wages and working conditions unlawfully instituted by it as. . . well as restoration of the conditions existing prior thereto. However, inasmuch as we are not in a position to predict with certainty whether the employees desire such revocation, we shall condition our restoration order upon the affirmative desire to the affected employees for such, as expressed through their collective-bargaining representative." More recently, in King Radio Corpora- tion, Inc., 172 NLRB 1051, 1080 (1968), the Board adopt- ed a provision in an order recommended by Administra- tive Law Judge Stanley N. Ohlbaum requiring that the respondent "abrogate, cancel, and disestablish, in all re- spects, the wage structure system which Respondent uni- laterally established," except that "all increased minimum wage rates . . . placed into effect . . . shall not be abro- gated, reduced, or otherwise changed without bargaining in good faith with the Union thereon."26 In Herman Sausage Co.. supra, the employer was found to have unilaterally granted wage increases and with- drawn benefits in violation of Section 8(a)(5) of the Act. As to the remedy, the Board said (122 NLRB at 172- 173): "It is the Board's customary policy to direct a re- spondent-employer to restore the status quo where he has taken unlawful unilateral action to the detriment of his employees. Such an order is warranted to prevent the wrongdoer from enjoying the fruits of his unfair labor practices and gaining an undue advantage at the bargain- ing table. This is the case here insofar as the Respondent had unilaterally changed certain terms and conditions of employment. However, it is not clear here whether the overall effect of the unilateral changes has been to the detriment of the employees. Respondent contends that it withdrew the fringe benefits in order to be able to give the wage increase which substantially compensated the employees for loss of these benefits. In such a "mixed" situation, we are not in a position to determine that the amount of the wage increase is less than the value of the eliminated benefits, nor to determine with accuracy whether or not there will be confusion and dissatisfaction 2' And in the absence of the present recommended Order, the Union would be at a disadvantage in bargaining for reinstatement of the strikers. 26 Board, however, deleted from Administrative l.aw Judge Ohl- haum's recommended order a provision which would have enabled the Board to estahlish the effective date of any contract reached by the par- ties if they were unable to agree on such dale 687 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the part of the employees, from the entry of a restora- tion order reinstating the fringe benefits but rescinding the wage increase. The Union, as the bargaining repre- sentative of the employees, is in a better position than the Board to make such a determination. Accordingly, we shall in this situation enter a restoration order . . such, as expressed through their collective-bargaining representative." See also, e.g., the recent decision in East Belden Corporation, 239 NLRB 776 (1978), where the employer was ordered, inter allia to- [U]pon request by the . . . Union, revoke the uni- lateral changes in the rates of pay, wages, and other terms and conditions of employment which . . . [were placed into effect by Respondent] in the ap- propriate bargaining unit, until such time as [Re- spondent] negotiate[s] with the Union in good faith to agreement or an impasse in negotiations is reached. The remedy just discussed is not satisfactory to either the Union or the General Counsel.2 7 As previously stated, the Union would neither approve nor disapprove those wage increases and benefits con- cerning which Respondent gave it notice. Nor did the Union demand that Respondent rescind the individual "merit" increases granted in September 1978. It is entire- ly understandable that the Union did not wish to be re- sponsible for the employees' loss of substantial benefits or, at the least, postponement of the benefits during ne- gotiations, which might be long extended and even ulti- mately unsuccessful. Nor does the Union want to be put in that same difficult situation by order of the Board.2 8 In short the Union, with the support of the General Counsel, wants the Board to order Respondent to re- scind the unlawful benefits. The problem, however, is that the Board is neither au- thorized nor qualified in effect to prescribe the best bar- gaining techniques and strategy for the Union. The record is insufficient to determine whether, as the Gener- al Counsel suggests, the unilaterally imposed wage rates, classifications, and progression contain "inequities in the application and distribution of the wage system." Weighing all the factors, both factual and legal, I feel constrained, although somewhat reluctantly, to hold that the Board cannot and should not require rescission of the unlawful wage increases and other benefits. In the last analysis that is a decision to be made by the Union in its judgment, presumably based on the long-term interests of the employees and appraisal of the employees' willing- ness to continue the strike. The Union also requests that Respondent be required to "reimburse the Union's bargaining expenses." On the facts in this case, the Union's request appears eminently reasonable and at least will provide partial recompense for the serious detriment imposed by Respondent. Ac- 21 In an off-the-record prehearing conference, which consumed the entire day before the hearing. settlement was stymied by Respondent's re- fusal to accede to the Union's demand (eventually concurred in by the General Counsel) that the unilaterally granted wage increases and holi- days be rescinded. a" With the strike apparently continuing, now for about a year, the Union's position would presumably be much weaker than it was earlier. cordingly, I shall recommend such remedy, the amount to be determined in a supplemental compliance proceed- ing if the parties are unable to agree amicably. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2" The Respondent, M. A. Harrison Manufacturing Com- pany, Inc., Birmingham, Ohio, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with the Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America, as the exclusive bargaining representative of its employees in the follow- ing appropriate unit. All production and maintenance workers at the Em- ployer's plant in Birmingham, Ohio, excluding office clerical employees, guards and supervisors as defined in the Act. (b) Announcing or granting unilateral wage increases or announcing, granting, or increasing other employee benefits to its employees represented by the aforenamed labor organization in the appropriate bargaining unit de- scribed above. (c) Dealing or communicating directly with any em- ployees in the aforenamed labor organization concerning any changes in terms or conditions of employment pro- posed or under consideration by Respondent. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Recognize and, upon request, bargain collectively with, the above-named Union as the exclusive repre- sentative of all its employees in the appropriate unit de- scribed above, with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon the request of the above-named Union, revoke the unilateral changes in the rates of pay, wages, and other terms and conditions of employment described in this Order which were placed into effect by Respond- ent in the appropriate unit, until such time as Respondent negotiates with the Union in good faith to agreement or impasse thereon. (c) Upon unconditional request by him or her, forth- with, reinstate each striking employee to his or her former job or, if such position no longer exists, to a sub- stantially equivalent job, discharging, if necessary, em- 29 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 688 M. A HARRISON MFG. CO., INC. ployees hired on or after January 14, 1979; reinstatement shall be without prejudice to the employees' seniority or other rights and privileges. (d) Reimburse the above-named Union for expenses in- curred by it in connection with its collective bargaining with Respondent to the date of this Order. (e) Post at its plant in Birmingham, Ohio, copies of the attached notice marked "Appendix." :0 Copies of said "' In the event hi, Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted fBy Order of the National .ahbor Relalions Il)ard" shall read "Posled I'ursu- anl to a Judgment of the United Sates Court of Appeals Enforcing ani Order of the National Labor Relations Board" Region 8, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 6X9