280 N.L.R.B. 40 (N.L.R.B. 1986)

Boaz Carpet Yarns, Inc.

National Labor Relations Board - Board DecisionsMay 30, 1986

280 N.L.R.B. 40 (N.L.R.B. 1986)

40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boaz Carpet Yarns , Inc. and Amalgamated Clothing and Textile Workers Union. Cases 10-CA- 20821 and 10-CA-20369 30 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 19 October 1984 all parties in this case, the General Counsel, the Respondent Boaz, Carpet Yarns, Inc., and the Charging Party Amalgamated Clothing & Textile Workers Union, AFL-CIO, CLC (the Union), filed a stipulation with the Board, stating that they waive hearing before an administrative law judge and issuance of a judge's decision and desire to submit the case directly to the Board for findings of fact, conclusions of law, and an order based on the stipulated record. On 10 January 1985 the Board approved the stip- ulation and transferred the proceeding to the Board. Thereafter, the parties timely filed briefs with the Board, and the Respondent filed a reply brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the record in light of the briefs and finds: 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert jurisdiction. In its answer to the second amended consolidated complaint, the Re- spondent admits that it is an Alabama corporation, with an office and place of business in Boaz, Ala- bama , where it is engaged in the manufacture of carpet yam, and further admits that during the past calendar year, a , representative period, in the course and conduct of its business it sold and shipped from its Boaz facility finished products valued in excess of $50,000 directly to customers located outside the State of Alabama. 2. The parties admit and the record reflects that the Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The parties admit and the record reveals that the following employees constitute a unit appropri- ate for collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Respondent at its Boaz, Ala- bama facility, excluding office clerical employ- ees, professional employees, guards and super- visors as defined in the Act. Background On 9 March 1983 the Respondent purchased its present facility from Standard-Coosa-Thatcher Carpet Yarn Division, Inc. at a time the latter was under an obligation to bargain with the Union pur- suant to a Gissell bargaining order issued by the Board on 21 July 1981 and enforced by the Fourth Circuit Court of Appeals.2 The Respondent there- after assumed the obligation to bargain with the Union. Negotiations between the two commenced 2 June 1983. Before negotiations broke off about 15 June 1984,3 the parties met and conferred 13 times. On 4 June the Respondent's employees presented it with a petition stating that they no longer wished to be represented by the Union.4 Thereafter, the Respondent filed a petition for an election with the Board, and on 19 June the Union filed charges under Section 8(a)(5) and (1) of the Act alleging that the Respondent refused to bargain in good faith. On 23 July the Regional Director for Region 10 dismissed the Respondent's election petition sub- ject to reinstatement following disposition of the unfair labor practice charges filed by the Union. The Respondent's request for review of the Re- gional Director's decision was subsequently denied by the Board on 28 August. Following the dismissal of the election petition by the Regional Director, the Respondent on 23 July posted a notice to employees (quoted below), which advised that the Respondent could make changes in working conditions if the employees could vote in an election to decertify the Union. On 25 July the Respondent posted a second notice to employees advising that a secret-ballot election would be held among unit employees the following day to determine "whether [the Union] truly repre- sents a majority of employees and whether or not [the employees] want the Union as [their] repre- sentative for collective bargaining." A substantial majority of employees voted against continued rep- resentation by the Union. On 27 July the Respond- ent notified the Union that it was withdrawing rec- ognition. On 10 August it granted employees a 6- percent wage increase retroactive to 1 August. The General Counsel and the Union contend that in addition to failing and refusing to bargain in good faith, as evidenced by its course of conduct and proposals during negotiations, the Respondent violated Section 8(a)(5) and (1) of the Act when it ' NLRB P Gissel Packing Co, 395 U S 575 (1969) z See Standard- Coosa-Thatcher, Inc, 257 NLRB 304 (1981), enfd 691 F.2d 1133 (4th Or 1982), cert denied 46C, U S. 1083 (1983) 3 Unless otherwise indicated all dates are 1984 4 Although the Respondent states on brief that 101 employees signed the petition , the record reveals only 97 signatures on the petition Ap- proximately 130-140 employees are in the unit 280 NLRB No. 4 BOAZ CARPET YARNS withdrew recognition from the Union and unilater- ally granted employees the wage increase. The General Counsel contends as well that the Re- spondent violated Section 8(a)(1) by promising em- ployees benefits if they voted to get rid of the Union and by unlawfully conducting a poll of em- ployees on 26 July. The Respondent contends that it engaged in lawful, hard bargaining with the Union; its notice to employees was nothing more than an accurate statement of applicable law; and its conduct of the election or poll was lawful inas- much as it was based on objective, good-faith doubt of majority status, i.e., the employees' 4 June petition. It further contends that its withdrawal of recognition was lawful in view of the 4 June peti- tion and the results of the election and, consequent- ly, that it had no obligation to bargain over the granting of the wage increase in August. For the reasons set forth below, we agree with the Re- spondent that it did not violate the Act. The Bad-Faith Bargaining Allegations The minutes of the bargaining sessions reveal that at the parties' first negotiation session union negotiator Mark Pitt presented the Respondent with proposals concerning the purpose of the agreement, nondiscrimination, strikes and lockouts, arbitration, dues checkoff, and duration of the agreement. Pitt told the Respondent's attorney and chief negotiator, John Raudabaugh, that the Union was eager to reach a contract and considered dues checkoff, grievance and full arbitration, and a se- niority system to be essential to formulating a con- tract. The parties agreed that the Union would submit a complete contract minus its proposed wage package at the next negotiation session. At the second session on 22 July 1983 the Union presented its proposed contract consisting of 21 ar- ticles. The Respondent indicated that it had minor problems with the Union's agreement and recogni- tion provisions, and major problems with the pro- posed discrimination provision's inclusion of lan- guage regarding employees engaging in union ac- tivities, the time limits in the proposed discipline and discharge provision, the requirement that a steward be present in all instances of discipline and discharge, and the Union's seniority proposal. Rau- dabaugh stated that the Respondent would present counterproposals in these areas as well as to the Union's proposals on: grievance adjustment; leaves of absence; plant rules; bulletin boards; hours, over- time, and premium pay; funeral leave; jury duty; safety and health; maintenance of conditions; and workloads. Raudabaugh indicated that the Re- spondent would agree to the Union's separability and duration language, but said it rejected and 41 would offer no counterproposals on arbitration and union security. He said arbitration was unneces- sary, costly, and provided no finality because many courts and administrative agencies do not defer to arbitrators' awards, and advised the Union that in light of the Respondent's position on arbitration it was expected that the Union would withdraw or alter its no-strike/no-lockout proposal. Regarding union security, Raudabaugh said that accounting costs and the failure to make checkoff authoriza- tions revocable at will made the proposal unaccept- able. At the parties' third session held on 23 August 1983, Raudabaugh presented the Respondent's con- tract package, which consisted of 29 proposed arti- cles. The parties reached a tentative agreement on the Respondent's provisions entitled "agreement, purpose, and recognition," and discussed provisions dealing with nondiscrimination, absenteeism and tardiness, discipline and discharge, employee status, hours, reporting and call-in pay, job bidding, tem- porary and indefinite layoffs, recalls, holidays, va- cations, leaves of absence , funeral leave, insurance, jury duty pay, credit union, suggestion program, job safety and health, notice posting, separability, and duration. Jim Walraven, who assumed the po- sition as chief negotiator for the Union, expressed his opinion that the Respondent' s management- rights clause was too broad.5 Walraven further stated that he opposed the Respondent's strikes and lockouts clause because it provided that the Union would be financially liable for all unauthorized strikes by employees irrespective of whether the Union instructed employees to return to work. Walraven said that the plant rules article proposed by the Respondent was unacceptable because it gave the Respondent authority to discharge em- ployees immediately for 18 (group A) offenses, some of which Walraven believed should be con- 5 The Respondent 's proposed management -rights clause provided that the Respondent retain the right to. (1) control size, qualifications, classifi- cations, performance standards, and composition of the work force, (2) supervise, direct, and control of the work force , (3) hire, select , assign, train, transfer employees to another classification , temporarily transfer employees to supervisor or instructor positions , promote , demote, sus- pend, layoff, recall , call in , terminate , discipline, and reclassify employ- ees, (4) establish, maintain, cancel , or change plant health and safety rules with or without notice; (5) change the workweek , hours, schedules, shifts, overtime, payroll recordkeeping rules and procedures, and pay- days, (6) determine and change employee status, (7) determine noncontin- uous and continuous operations, revise hours, overtime and premium pay, (8) determine classifications , (9) determine shutdowns , vacations, leaves and suggestions, (10) appoint and remove employees from suggestion and safety committees ; (11) approve or reject notices for posting, (12) resolve and investigate grievances, (13) determine products , workloads, speeds, etc; (14) temporarily or permanently suspend, curtail, or terminate oper- ations and hours, ( 15) sell, lease, or relocate operations , ( 16) subcontract, (17) transfer work to existing or after -acquired divisions, affiliates, or as- sociates; ( 18) control efficiency , and (19) control and determine the dispo- sition of company property 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sidered lesser infractions and because it did not provide for notice to the Union in the event the Respondent decided to alter the rules. The Re- spondent's grievance proposal was objectionable to the Union because it omitted participation of the Union at any of the four steps, and final disposition rested with the plant manager rather than a neutral third party. The Union deemed the Respondent's seniority article unsatisfactory because it stated that selection of employees for promotion, transfer, layoff, and recall would be made on the basis of "eligibility criteria"e and that seniority would be considered only where two employees were found to be equally "eligible." For the fourth bargaining session on 7 September 1983 the Respondent submitted seven revised pro- posals covering strikes and lockouts, plant rules, absenteeism and tardiness , grievance procedure, se- niority, hours (overtime, premium pay, and pay- days), and job safety and health. At this meeting the Union reiterated its position that arbitration was an essential ingredient in the contract . The Re- spondent indicated that voluntary arbitration was a possibility, but flatly rejected compulsory arbitra- tion of any sort. Raudabaugh told Walraven that the Respondent had problems with the Union's dues-checkoff proposal because of accounting costs, the possibility of litigation arising from in- demnification provisions, and the fact that employ- ees could not revoke their authorizations for I year. The Union expressed tentative agreement on funeral leave and jury duty pay. At the fifth bargaining session on 20 September 1983, the parties signed their agreement on the agreement, purpose, recognition, separability, and duration provisions of the contract. Arbitration was again debated in the context of discussions con- cerning plant rules (Walraven proposed arbitration in connection with group A offenses), discipline and discharge and management rights. The Re- spondent reiterated it would consider voluntary but not compulsory arbitration. In their sixth session on 11 October 1983, the Re- spondent and the Union reached tentative agree- ment on the latter's proposals concerning nondis- crimination and nonemployee (Union) plant access, and without reaching agreement on the proposals in their entirety the Respondent conceded that it would provide 7 days' notice of any change in plant rules and that it would give employees the option of having a union steward present at step I of the grievance procedure. At the seventh session on 1 November 1983 Rau- dabaugh said the Union would not be held to its a Eligibility criteria included , inter aba, experience, skills, and attitude. no-strike/no lockout proposal since the Respondent would not agree to arbitration. Further, although the Union amended its checkoff proposal to include a second escape period in June of each year, Rau- dabaugh said dues deduction was the employees' responsibility and that revocability should never- theless be at will. Numerous proposals including vacations and the Christmas schedule were dis- cussed,' but no agreement was reached on them. On 10 November 1983 the Union and the Re- spondent held their eighth bargaining session. Wages were discussed for the first time and the Re- spondent proposed a 5-percent increase in wages. The parties discussed leaves of absence, workloads, checkoffs, no-strike, and plant rules-particularly the Respondent's inclusion of an employee's refusal to submit to a polygraph test in the group A, im- mediately dischargeable offense, category. The Re- spondent rejected the Union's grievance and arbi- tration procedure proposal, stating it rejected com- pulsory third-party resolution and the Union restat- ed that finality in the plant manager was unaccept- able. The parties did, however , sign off on nondis- crimination and notice posting provisions. The ninth session was conducted on 30 Novem- ber 1983. The Union returned to the table with a revised checkoff proposal that included a third escape period for revocation, and the Respondent amended its absence for union business provision to allow the local president 5 days' leave without pay for union affairs in any calender year, as the Union had requested. Raudabaugh told the Union that the 5-percent wage increase would be implemented when the contract took effect.8 The Union amend- ed its grievance proposal to require arbitration of discharges and limited to four the number of non- discharge cases the parties could arbitrate in a cal- endar year. Walraven expressed his willingness to agree to a broad management-rights clause in ex- change for concessions on certain other provisions such as grievances and checkoff. Raudabaugh read excerpts from a BNA newsletter on the Board's rate of deferral in arbitration cases and reiterated the Respondent's refusal to include arbitration. In their 10th and 11th sessions held on 4 January and 6 March 1984 the parties discussed continuing operations at length and discussed, but came to no final agreement on, leaves of absence and absences for union affairs, bulletin boards, reporting and Raudabaugh said the Respondent would likely continue its predeces- sor's practice of completely shutting down at Chnstmastune. 8 Throughout negotiations the Respondent adhered to the position that no contract term would take effect until there was a full collective-bar- gaining agreement . It did, however, agree to remove notices posted at the plant regarding holidays and transfers since no agreement had been reached in these areas BOAZ CARPET YARNS call-in pay, absenteeism and tardiness, sick leave, safety and health, employee status, seniority, and vacations. Arbitration was raised and rejected once more. At their 12th bargaining session on 3 April the parties discussed holidays, vacations, and discipline and discharge terms . They also identified as areas of major contention management rights, strikes, grievance and arbitration, job bidding, checkoff and continuing operations. The 13th and final bargaining session occurred on 22 and 23 May. In pertinent part the Union and the Respondent signed their agreement on funeral leave, jury duty, suggestion program, notice post- ing, separability, and union plant access terms. Ten- tative agreement was reached regarding recalls, va- cations and temporary and indefinite layoffs, and there was some assent on the language of the plant rules, absences and tardiness and seniority provi- sions . The Union submitted a counterproposal on management rights. The Respondent rejected the Union's no-strike proposal insofar as it related to arbitration and opposed the inclusion of any "just cause" language in the discipline and discharge provision insofar as it suggested arbitration. The Respondent also rejected dues checkoff and indi- cated it had significant differences with the Union regarding workloads and maintenance of condi- tions . Although the parties tentatively agreed to meet again on 19 June, they did not do so due to the presentation of the employees' 4 June petition and other intervening events discussed in detail below. The General Counsel and the Union contend that since 4 January the Respondent failed and re- fused to bargain in good faith. They cite the Re- spondent's refusal throughout negotiations to come to an agreement on arbitration, dues-checkoff and seniority provisions and its insistence on a broad management-rights clause despite the Union's con- cessions in these and other areas. Section 8(d) of the Act requires that employers and their employees' representatives meet at rea- sonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment. The obligation does not require the parties to agree on proposals, for the Act does not compel an employer or employee representative to make a concession on a specific issue or adopt a particular position.9 To determine whether a party has met its statutory obligation to make a reasona- ble, good-faith effort to resolve its differences with its bargaining counterpart and incorporate agreed- 11 Atlanta Hilton & Tower, 271 NLRB 1600 (1984). 43 upon terms in a contract, the Board will examine the party's overall conduct. Our examination of the record convinces us that the Respondent bargained with the Union in good faith. We note that the parties met, conferred, and exchanged requested information on 13 separate occasions in a 12-month period. Although each party took vigorous stands on proposals deemed dear to it, neither party refused to discuss proffered proposals and counterproposals.' ° Thus, the Re- spondent stated that it rejected compulsory arbitra- tion as expensive, litigious, and not in reality final, but indicated on numerous occasions that it was willing to consider voluntary arbitration of dis- putes. In this connection the Respondent indicated that it would not seek to impose a no-strike obliga- tion on the Union. Regarding dues checkoff, the Respondent indicated that it would permit access to the plant for the collection of union dues and that at any rate it opposed any provision that did not allow for an employee's revocation of the checkoff authorization at any time the employee desired. The Respondent pointed out that the Union had negotiated a similar term in its contract covering the predecessor's Guntersville plant. The parties' divergent proposals on the seniority provi- sion of the contract provide no indication that the Respondent entered into negotiations and bar- gained with no intent of reaching a contract. The Union proposed that plant seniority govern deci- sions relating to layoffs, recalls, promotions, trans- fers, and job bidding, but it acknowledged that skill and experience-two of the eligibility criteria sought by the Respondent-were pertinent consid- erations. The reasons articulated by the Respond- ent for its insistence on its views toward arbitra- tion, checkoff, and seniority cannot be said to be insincere or disingenuous. Relying on NLRB v. A-1 King Size Sandwiches," the Union and the General Counsel assert that the Respondent's adherence to a broad management- rights clause is evidence of its bad faith in view of its stances on the provisions discussed above. We note, however, that the Respondent explained that its management-rights proposal was broadly draft- ed to avoid any appearance of a waiver of rights. Additionally, we note that despite the breadth of the Respondent's proposal, the Union presented no counterproposal until the 13th bargaining session. Further, we find it significant that the proposed contract in A-1 King Size Sandwiches, supra, con- tained a broad management rights clause, a sweep- 10 Chairman Dotson fords it unnecessary and improper to analyze the substance of the parties' bargaining proposals in determining whether a party has engaged in bad -faith bargaining 11 732 F 2d 872 (11th Or 1984), enfg 265 NLRB 850 (1982) 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing no-strike clause, and a zipper clause . As alluded to earlier, the Respondent indicated that it would not demand a no-strike provision in view of its re- jection of compulsory arbitration . The Respondent also did not tender a proposed zipper clause in this case. In analyzing the entirety of the Respondent's conduct , we find it noteworthy that its approach to bargaining was cooperative in that it provided in- formation requested and counterproposals in a timely manner . Significantly it is not alleged, nor is it apparent from the record , that the Respondent imposed any substantial , unilateral changes in working conditions during the course of negotia- tions.' 2 Therefore , it appears that the Respondent's conduct both away from and at the bargaining table does not evidence a bad-faith approach to bargaining . " Accordingly , we find no merit to the allegation that the Respondent violated the Act by failing and refusing to bargain in good faith. The Alleged Promise of Benefits , the Poll, and the Withdrawal of Recognition Following the employees' presentment of the pe- tition signed by a majority of employees indicating they no longer wished to be represented by the Union and the subsequent dismissal of the Re- spondent 's petition for an election , the Respond- ent's plant manager Wayne Crews on 23 July 1984 posted a notice to employees which advised them, in pertinent part, as follows: THE OVERWHELMING MAJORITY OF YOU, 77%, SIGNED A PETITION RE- JECTING THE UNION AND THE COM- PANY TRIED TO GET YOU AN ELEC- TION TO OFFICIALLY PROVE YOUR LACK OF INTEREST IN THE UNION. THE LAW IS CLEAR. THE COMPANY CANNOT MAKE ANY CHANGES IN TERMS OR CONDITIONS OF EMPLOY- MENT UNLESS THE UNION AND THE COMPANY AGREE OR NEGOTIATIONS REACH IMPASSE. THE COMPANY COULD MAKE CHANGES IF THE EM- PLOYEES COULD VOTE IN AN ELEC- TION TO DECERTIFY OR GET RID OF THE UNION. UNFORTUNATELY, THE UNION HAS BLOCKED THAT OPPOR- TUNITY. HOWEVER, THERE MAY BE la The Respondent removed a posted notice to employees concerning new transfer rules on request of the Union and added one holiday day at Thanksgivingtime without conferring with the Union. 13 See NLRB v. American National Inc Co., 343 U.S. 395 (1952); Atlan- ta Hilton & Tower, supra; and Chevron Chemical Co., 261 NLRB 44 (1982). ANOTHER ALTERNATIVE. THE COM- PANY CAN MAKE CHANGES IF IT HAS A GOOD FAITH DOUBT OR PROOF OF THE UNION'S LOSS OF MAJORITY SUP- PORT AMONG THE EMPLOYEES. I HAVE ASKED OUR LAWYERS TO RE- SEARCH THE POSSIBILITIES OF DOING SOMETHING ABOUT OUR SITU- ATION. AS SOON AS THEY REPORT BACK TO ME, I SHALL LET YOU KNOW. This notice was followed by another dated 25 July that announced that the Respondent would conduct a secret-ballot election on 26 July and set forth polling procedures.14 No notice of the poll was given to the Union. The election/poll was conducted as scheduled. Of approximately 133 em- ployees eligible to vote, 30 cast ballots for the Union and 97 voted against continued representa- tion. There were two blank ballots. On the basis of the election results, the Respondent notified the Union by letter dated 27 July that it had a good- faith doubt of the Union's continuing majority status and that it thereby withdrew recognition from the Union. The General Counsel contends that the Respond- ent unlawfully promised the employees benefits if they would vote to oust the Union and polled them in violation of Section 8(a)(1) of the Act because it did not notify the Union.15 The General Counsel contends further that the Respondent's withdrawal of recognition from the Union violates Section 8(a)(5) and (1) because the illegality of the poll erases any underlying good-faith, objective basis for withdrawing recognition. Regarding the alleged promise of benefits to em- ployees, we note that the 23 July notice to employ- ees also acknowledged that a convincing majority of employees signed a petition stating they did not wish to be represented by the Union, and states that the Respondent's attempt to arrange a Board election for the employees was stymied by the Union's charges of bad-faith bargaining. The notice expresses the Respondent's desire to help the em- ployees achieve their goal and sets forth existing law regarding unilateral changes in terms and con- ditions in employment . The notice makes no men- tion of benefits or gains the employees could real- 14 The notice of the poll instructed that electioneering near the voting place would not be permitted and that only one person at a time would be permitted to vote. It further advised that Reverend William Chumly would act as observer , check names against an eligibility list, and count the ballots . Employees were given assurances against reprisals and invited to watch the counting of the ballots. 15 Mingtree Restaurant v. NLRB, 736 F.2d 1295 (9th Cit. 1984), and NLRB v. A. W. Thompson, Inc., 651 F.2d 1141 (5th Cir. 1981). BOAZ CARPET YARNS ize if they voted to decertify the Union. It is not alleged that the Respondent told employees on some other occasion that it would increase wages or somehow "sweeten the pie" if the employees were unrepresented. All that can be said of the notice is that it is a self-serving response to the em- ployees' petition and that it provides a fairly accu- rate summary of events and existing Board law. It does not, in our view, promise benefits, impliedly or otherwise, if the employees reject continued representation and therefore is not a violation of the Act. Similarly, we find that the poll itself and the at- tendant withdrawal of recognition were lawful. The poll was conducted as a result of the presenta- tion of a petition disavowing the Union signed by an overwhelming majority of employees. Thus, the Respondent possessed an independent, objective basis for polling its employees. Moreover, the record establishes that the Respondent verified the Union's continuing majority status without infring- ing upon the employees' Section 7 rights. The poll was conducted to ascertain the truth of the em- ployees' own claim of loss of majority status, i.e., their 4 June petition, and this purpose was commu- nicated to them in the 25 July announcement. That announcement assured employees there would be no reprisal regardless of the outcome of the poll, and it was conducted by secret ballot. Finally, as we have determined that the Respondent did not fail or refuse to bargain in good faith and that it did not promise employees benefits if they voted against representation, we find that the Respondent was not engaged in the commission of unfair labor practices or that it otherwise created a coercive at- mosphere. Additionally, under the circumstances, we find that the failure to notify the Union that the poll would be conducted had a de minimis impact, if at all, on the conduct of the poll. The poll was fairly conducted, and the employees' dissatisfaction with representation is not attributable to any un- lawful conduct of the Respondent. The processing of the Respondent's petition placed the Union on notice generally of the employees' dissatisfaction at least a month before the poll took place. For the foregoing reasons, we conclude that the poll con- ducted by the Respondent did not violate the Act. Having found that the poll was lawful, and inas- much as there was independent, objective evidence of loss of majority status, i.e., the employees' peti- tion itself, we further find that the Respondent did not violate Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union. 45 The Wage Increase As stated earlier, the Respondent implemented a wage increase in August following its withdrawal of recognition from the Union. The General Coun- sel contends that the Respondent's granting a 6- percent increase in wages when such a figure was never on the bargaining table constitutes a unilater- al change in terms and conditions of employment violative of Section 8(a)(5) and (1). It is further as- serted that the increase amounts to a reward for getting rid of the Union inasmuch as the Respond- ent had proposed only a 5-percent increase during negotiations. It is well settled that an employer may not uni- laterally implement changes in terms and employ- ment conditions when it is under an obligation to bargain about such changes. The Respondent, we have found, lawfully withdrew its recognition of the Uhion. Therefore, it was not obliged to bargain about the wage increase and lawfully could unilat- erally increase wages. Accordingly, we find that the Respondent did not violate the Act by giving employees a 6-percent wage increase. As we find that the Respondent did not engage in any conduct which violates the Act, we shall dismiss the con- solidated complaint. ORDER It is ordered that the consolidated complaint in Cases 10-CA-20281 and 10-CA-20369 is dismissed in its entirety. MEMBER JOHANSEN, concurring and dissenting in part. I agree with my colleagues that the Respondent did not engage in surface bargaining in violation of Section 8(a)(5). I also agree that it did not violate the Act by withdrawing recognition from the Union, but do so only because I find that the 4 June petition, in which 101 out of approximately 130-140 unit employees stated that they no longer wished to be represented by the Union, provided the Respondent with sufficient objective good-faith doubt of the Union's majority status to justify with- drawal of recognition. Contrary to my colleagues, however, I would find that the 25 July notice, an- nouncing the upcoming poll, was unlawful in that it implicitly promised employees increased wages and/or benefits for rejection of the Union. The 25 July notice makes it clear that the Em- ployer wishes to make changes in employment terms and conditions but that the Union "has blocked that opportunity." It then adds that changes could be made if the employees expressed a desire to reject the Union. The plain implication is that a rejection of the Union will result in the 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD improvement of employees' terms and conditions of employment. Indeed, the notice is akin to an em- ployer's statement during the pendency of an elec- tion petition that it would like to give a wage in- crease but is precluded from doing so because of the union 's petition . Such statements, of course, are unlawful, Centre Engineering, Inc., 253 NLRB 419, 421 (1980).1 As noted, I would, in agreement with the majori- ty, find lawful the withdrawal of recognition. I 1 Because the notice announcing the poll , in my view, is tainted, I find it unnecessary to pass on the lawfulness of the poll itself or the sufficien- cy of the notice of the poll. would do so based on the fact that even before the poll, the Employer possessed, by virtue of the peti- tion, sufficient good-faith doubt of the Union's con- tinued majority status to justify withdrawal of rec- ognition . That good-faith doubt arose in a context free of unfair labor practices , and there is no con- tention that the Employer aided or assisted in the petition. The fact that the Employer (incorrectly) deemed it necessary to acquire additional proof, and in acquiring that proof made an unlawful promise, does not detract from the original legiti- macy and sufficiency of its good-faith doubt.