Before LUMBARD, Chief Judge, WATERMAN and MOORE, Circuit Judges.
WATERMAN, C. J.: The Natsection 10(e) of the National Labor Relations Act (NLRA) for enforcement of an order of January 22, 1960 it issued against the respondent, Benne Katz, Alfred Finkel and Murray Katz, d/b/a Williamsburg Steel Products Company (Employer).
The General Counsel's Complaint and Notice of Hearing was issued to Employer on September 8, 1958 based upon charges of unfair labor practices made by Architectural & Engineering Guild, Local 66, American Federation of Technical Engineers AFL-CIO (Union). The Complaint alleged that "Employer did refuse and continues to refuse to bargain collectively with Local 66 as the exclusive bargaining representatives of all the technical engineering employees of Employer's Engineering Department in New York in that:
"(a) In or about March 1957, and at various times thereafter to date, Respondent Employer unilaterally changed the terms and conditions of employment relating to sick leave of employees in the unit described above.
"(b) In or about April 1957, and at various times thereafter to date, Respondent Employer unilaterally changed existing wage rates and other terms and conditions of employment of employees in the unit described above.
"(c) Since in or about March 1957, and at various times thereafter to date, Respondent Employer bargained directly and individually with employees in the unit described above * * *, concerning rates of pay, wages, hours of employment, or other terms and conditions of employment.
"(d) In or about June and July 1957, Respondent Employer, through its agents, supervisors or representatives, including Herbert Jacobson and others unknown, aided and assisted employees in the unit described above * * * to repudiate Local 66 as their bargaining representative.
"(e) In or about June, July and August 1957, and at various unknown times thereafter to date, Respondent Employer, in derogation of Local 66's representative status, through Respondent Employer's agents, supervisors or representatives including Jacobson, Wisniewski and others unknown, publicized, sponsored, approved, permitted, attended and participated in meetings on its premises of employees in the unit described above."
These allegations were claimed to constitute separate unfair labor practices within the meaning of Sections 8(a)(1) and 8(a)(5) of the NLRA, 29 U.S.C. §§ 158(a)(1), 158 (a)(5).
After Employer's answer was filed a long contested hearing ensured before a Trial Examiner in which, as appears to be normally the case, two completely divergent versions of the history of the collective bargaining of the parties were presented. The Trial Examiner chose to accept the version presented by the Board's counsel, and his findings were unfavorable in every respect to Employer. He found that subsequent to the certification of Union on July 5, 1956 and during the negotiating of an initial collective bargaining agreement the following acts of Employer occurred:
(a) In October 1956 and January 1957 Employer unilaterally granted merit increases to its employees without notice to or negotiation with Union.
(b) On or about March 11, 1957 Employer unilaterally made a substantial change in its sick leave policy without notice to Union.
(c) In April 1957 Employer announced a new system of wage increases: "These increases were announced without notice to, or consultation with, the Union and were substantially better than what Respondent had previously offered the Union."
The Trial Examiner next considered and rejected the reasons advanced by Employer explaining the action taken. He concluded:
"Rather than demonstrating bad faith bargaining by the Union, the entire record compels the conclusion that it was Respondent's conduct which brought the negotiations to naught. Thus, Respondent's unilateral action heretofore found, 'while negotiations were still continuing, and in complete disregard of the Union's status, provides the final insight into Respondent's conduct of the negotiations with the Union. It clearly shows that * * * Respondent was merely going through the motions of collective bargaining without a genuine intention of trying to negotiate an agreement with the Union as required by the provisions of the Act .'
"On the entire record I find and conclude that by taking the unilateral action above found before any claimed impasse was reached, and while negotiations were pending, Respondent did so in clear disregard of its obligation to bargain with the Union as the exclusive bargaining representative of its employees, and thereby undermined the authority which the Act bestowed upon the Union. By that conduct, Respondent violated Section 8(a)(1) and (5) of the Act. Medo Photo Supply Corporation v. N.L.R.B ., 321 U.S. 678, 683-684; May Department Stores Co. v. N.L.R.B. v. Crompton-Highland Mills, Inc ., 337 U.S. 217.
In a short decision the Board accepted the Examiner's factual findings (a), (b) and (c) above set forth in the second preceding paragraph. It rejected the Examiner's finding that Employer had failed to bargain in good faith,*fn1 but interpreted the unilateral acts as having been in themselves unfair labor practices within the purview of §§ 8(a)(1) and 8(a)(5).
An order was issued directing Employer to cease and desist from:
(a) "Unilaterally changing wages, rates of pay, or sick leave, or granting merit increases, or in any similar or related manner refusing to bargain collectively with Union * * *"
(b) "Refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other conditions of ...