It is well-established that where, as here, an employer and a representative union are negotiating toward a collective bargaining agreement pursuant to section 8(a)(5) of the NLRA, the employer may not "alter terms and conditions of employment without first giving notice to and conferring in good faith with the union." Firch Baking Co. v. NLRB, 479 F.2d 732, 735 (2d Cir. 1973). Such unilateral action "amount[s] to a refusal to negotiate about the affected conditions of employment under negotiation, and must of necessity obstruct bargaining, contrary to the congressional policy."
For as the Board points out, it is well settled that an employer may not unilaterally alter an existing term or condition of employment without first notifying and bargaining with the Union. See Firch Baking Co. v. NLRB, 479 F.2d 732, 735 (2d Cir.), cert. denied, 414 U.S. 1032, 94 S.Ct. 461, 38 L.Ed.2d 323 (1973). The Board's finding that the Company violated § 8(a)(3) by refusing to reimburse the expenses of the employee negotiators is also supported by substantial evidence.
As we recently observed, few principles of labor law are more firmly established than that an employer violates sections 8(a)(1) and (5) where, as here, it alters conditions of employment without notifying or consulting with the union that represents its employees. Firch Baking Co. v. NLRB, 479 F.2d 732, 735 (2d Cir.), cert. denied, 414 U.S. 1032, 94 S.Ct. 461, 38 L.Ed.2d 323 (1973). See NLRB v. Katz, 369 U.S. 36, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); The Developing Labor Law 322-324 (1971) (Supplements 1971 and 1972).
The NLRB also argues that where conditions of employment are defined by the terms of a collective bargaining agreement which has expired, an employer remains obligated under § 158(a)(5) to consult with and to negotiate with the union prior to instituting any changes from the terms of the employment established by the previous contract. Firch Baking Company v. NLRB, 479 F.2d 732 (2nd Cir. 1973), cert. denied, 414 U.S. 1032, 94 S.Ct. 461, 38 L.Ed.2d 323; NLRB v. Sky Wolf Sales, 470 F.2d 827 (9th Cir. 1972). Finally, the NLRB asserts that an employer violates § 158(a)(5) and (1) by refusing to bargain with the employees' lawful bargaining representative and attempting rather to bargain directly with members of the unit.
In Allied Chem. Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178, 92 S.Ct. 383, 397, 30 L.Ed.2d 341, 357 (1971), the United States Supreme Court spoke to the mandatory bargaining subjects referred to in Section 8(d) of the NLRA: In these situations, courts examine all of the circumstances without particular reference to any single act of the employer, i.e., does the pattern of conduct show that one party is in truth seeking to frustrate the agreement, attempting to disrupt negotiations, or trying to oust the other party of a "partnership" in determining wages and working conditions. Union Steelworkers of Am. v. N.L.R.B., 363 F.2d 272 (D.C. Cir. 1966), cert. denied, 385 U.S. 1036, 87 S.Ct. 778, 17 L.Ed.2d 683 (1967); Firch Baking Co. v. N.L.R.B., 479 F.2d 732 (2d Cir.), cert. denied, 414 U.S. 1032, 94 S.Ct. 461, 38 L.Ed.2d 323 (1973); General Elec. Co. v. N.L.R.B., 418 F.2d 736 (2d Cir. 1969), cert. denied, 397 U.S. 965, 90 S.Ct. 995, 25 L.Ed.2d 257 (1970); Arnold Graphics Indus., Inc. v. N.L.R.B., 505 F.2d 257 (6th Cir. 1974). "Section 8(d) of the Act, of course, does not immutably fix a list of subjects for mandatory bargaining. . . . But it does establish a limitation against which proposed topics must be measured.