I concur in that portion of the majority opinion annulling the Agricultural Labor Relations Board’s (ALRB or Board) finding on successorship. I must respectfully dissent from the majority conclusion that petitioner bargained in bad faith with real party in interest (UFW or Union) on issues of union security (dues checkoff) and unilateral wage increase. My dissent is predicated upon my perception of the evidence and decided appellate authority.
The administrative law officer (ALO) found that William Dal Porto & Sons, Inc. (Dal Porto) “consistently remained opposed to the [UFW’s] proposals on union security . . . because of what it regarded would be an added unacceptable bookkeeping expense. Yet [Dal Porto] never made clear why this [additional] expense was intolerable to it except for vague references to higher costs and Mrs. Dal Porto’s unwillingness to do more work. [Fn. omitted.] In fact, Nomellini never even attempted to ascertain what additional costs would be involved in the performance of those alleged greater duties, never contacted an outside bookkeeping firm for its estimate, and *563never presented time estimates the added accounting computations would supposedly take.” The ALO further stated that in view of the deductions already being made, “the added workload would have been minimal at best.” I find those findings and conclusions to be without support in the evidence.
It is uncontroverted that Dal Porto opposed dues checkoff because it did not want to absorb additional bookkeeping costs. Although the ALO deprecates the amount of bookkeeping that would have been required as “a small effort of a routine nature,” it is illuminating that at no time did the UFW offer to assume any portion of the additional costs. If, as the ALO opined, the dues checkoff provision was in fact “of vital interest to the UFW,” no doubt we might have expected to see some concession from it on the question of who should assume these costs. What this demonstrates is that for the UFW, the issue of dues collection involved a financial element of significant proportion; consequently, I believe the ALO has exaggerated the extent to which the Union “moved ... to accommodate [Dal Porto’s] problems” when it agreed to collect the dues as long as Dal Porto would bear the cost.
In addition, I would conclude Dal Porto put forth legitimate noneconomic reasons for not wanting to take on the obligation of dues checkoff. Specifically, Nomellini expressed petitioner’s concern with the additional strain that might be placed on the family bookkeeper and with the fact that an outside bookkeeper might have to be hired (a perhaps undesirable contingency for a business that heretofore had been wholly managed by family members), its opposition to assuming Union obligations, and its desire to avoid the burden of dealing with complaints from workers regarding their reduced paychecks.
While I recognize these concerns would have been removed had petitioner accepted the UFW’s April 20 proposal (i.e., that the Union would assume the obligation of collecting the dues, albeit at petitioner’s expense), it does not follow that the reasons were “pretextual,” since they were put forth by Nomellini prior to April 201 in response to the dues checkoff proposal. Furthermore, I would reject the argument the reasons were pretextual merely because “the Company was already deducting numerous items from the workers’ paychecks.” Since the UFW at no time offered to assume the additional costs, I cannot infer those costs were so miniscule as to be pat*564ently unobjectionable.2 Moreover, it cannot be said that one party bargained in bad faith for refusing to assume those costs whereas the other party-adopting an identical bargaining posture—did not.
The UFW asks how “expense” could be a “true reason when no one from the company ever knew how much, if any, added expense there might be?” It relies on Montebello Rose Co. (1979) 5 A.L.R.B. No. 64, in which the Board stated, in response to an employer’s opposition to dues checkoff because of the additional cost factor, “Respondents never explored possible compromises with the UFW to cut down the total amount of paperwork, e.g., by eliminating other paperwork requirements of the contract proposal, or by introducing other cost-cutting measures which could have made the acceptance of a dues checkoff provision more attractive. Thus, Respondents insisted that they would not accept a dues checkoff provision because of the added clerical burden without having made any effort to determine what the burden would be. Respondents’ arbitrary and unyielding rejection of the UFW’s dues checkoff proposal is thus revealed not as an honestly-held concern, but as a method by which to frustrate negotiations and avoid signing a contract. ” (Id., at pp. 23-24; see also Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1 [173 Cal.Rptr. 856].)
I view Montebello Rose as distinguishable; here Dal Porto put forth legitimate noneconomic reasons for opposing dues checkoff, and because it had offered to assume the burden of collecting dues as long as the Union paid the bookkeeping costs, whatever they were. Consequently, it was then the Union which could either agree or not agree to pay those costs, and it can likewise be said that they rejected the proposal “without having made any effort to determine what the burden would be.”
I also consider the facts of this case to be distinguishable from those presented in United Steelworkers of America, AFL-CIO v. N.L.R.B. (D.C.Cir. 1966) 363 F.2d 272 (cert, den., 385 U.S. 851 [17 L.Ed.2d 80, 87 S.Ct. 90]), relied on by the Board for the proposition that a continuous rejection of a dues checkoff proposal constitutes bad faith. In that case, the court found (at p. 274) that “the collection of dues would have presented the union with a substantial problem of communication and transportation” because the employer’s 300 workers lived within a radius of 35 to 40 miles of the company and the union office was “a distance of about 85 miles.” In *565addition, the company had no general policy against checkoff, the refusal to checkoff dues was not based on inconvenience, and a company representative had stated it was denying checkoff because it was “ ‘not going to aid and comfort the union.’ ” Finally, unlike the UFW here, the union in United Steelworkers offered to collect the dues at its own expense. (Id., at pp. 274-275.)
It appears to me that the Board, in finding bad faith in Dal Porto’s negotiating position, is doing exactly what it is constrained not to do. The Supreme Court has stated that ‘“[T]he Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements.’ ” (Porter Co. v. NLRB (1970) 397 U.S. 99, 106 [25 L.Ed.2d 146, 152, 90 S.Ct. 821]; Labor Board v. American Ins. Co. (1952) 343 U.S. 395, 404 [96 L.Ed. 1027, 1037, 72 S.Ct. 824].) The court has also stated that section 8 of the National Labor Relations Act (NLRA) (which is substantively identical to section 1155.2 of the Agricultural Labor Relations Act (ALRA or Act)) was meant to prevent the Board from controlling the settling of the terms of collective bargaining agreements. (Labor Board v. Insurance Agents (1960) 361 U.S. 477, 487 [4 L.Ed.2d 454, 463, 80 S.Ct. 419].) I would conclude the Board has improperly injected itself into the bargaining process and that there is simply not enough evidence in the record to support a finding Dal Porto bargained in bad faith on the issue of union security and dues checkoff.
The finding of the ALO patently ignores the record and fails to acknowledge that at the May 4th and 13th negotiating sessions, Dal Porto again advised the Union of its desire to raise the weeders’ wage 15 cents per hour. At the latter session Dal Porto again advised the union negotiator Rodriguez that the employer wished to raise the wage with the concurrence of the Union and to do so before the end of May. Rodriguez failed to respond at that time.
Thereafter, on June 15, the following colloquy took place:
“Mr. Rodriguez: The other question is in terms of—previously you had mentioned at one of the meetings a raise for the workers, but you’ve never discussed that since then.
“Mr. Nomellini: Well, we’re waiting for your response.
“Mr. Rodriguez: Uh-huh.
“Mr. Nomellini: We were talking about a raise for the workers. You know, we had contemplated a raise and then we’ve got the gasoline thing
*566which we wanted to discontinue, and we brought that subject up to you and we haven’t gotten any—
“Mr. Rodriguez: You didn’t ask for our response on that.
“Mr. Nomellini: Well, I think—I thought we did. But, anyway, we’d like to know because the annual time when an annual raise would have been given is—
“Mr. Rodriguez: At the end of May.
“Mr. Nomellini: Yeah.
“Mr. Rodriguez: Well, can we go ahead and agree to that, that that raise should go into effect?
“Mr. Nomellini: Well, that’s just about—you would be agreeable then to a raise in the wages? You have no objections?
“Mr. Rodriguez: We’d like to know in terms of what it is that you’re talking about.
“Mr. Nomellini: Okay. And what about with regard to this gasoline thing?
“Mr. Rodriguez: Well, I think that should—that goes with negotiations.”
In Chatham Manufacturing Company (1968) 172 N.L.R.B. 1948, the board in reversing a trial examiner’s finding of unfair practices by a unilateral wage increase, after the employee gave the union but five days’ notice of intent to increase wages, said, “While we agree with the Trial Examiner as to his other findings of unlawful unilateral action, we believe that the notice to the Union of the proposed change . . . was sufficient to permit timely and effective bargaining. ” (Italics ours; p. 1949.)
The duty “to bargain collectively” enjoined by Labor Code section 1153, subdivision (e), is defined by section 1155.2 as the duty to “meet . . . and confer in good faith with respect to wages, hours, and other terms and conditions of employment, ...” The ALRB has followed long-standing federal precedent and held that an employer’s implementation of a change in. its employees’ terms and conditions of employment, without giving the employees’ certified bargaining representative prior notice thereof or an *567opportunity to bargain about it, constitutes a per se violation of Labor Code section 1153, subdivisions (a) and (e), regardless of the employer’s good or bad faith. (Kaplan’s Fruit and Produce Company (1980) 6 A.L.R.B. No. 36; O. P. Murphy Produce Company, Inc. (1979) 5 A.L.R.B. No. 63, review den. Nov. 10, 1980, 1st Dist., Div. 4, hg. den. Dec. 10, 1980; N. A. Pricola Produce (1981) 7 A.L.R.B. No. 49.) By such unilateral action, an employer bypasses the employees’ certified bargaining representative and thereby undermines the Union’s status as the employees’ chosen representative.
In Labor Board v. Katz (1962) 369 U.S. 736 [8 L.Ed.2d 230, 82 S.Ct. 1107], the United States Supreme Court explained (at p. 743 [8 L.Ed.2d at p. 236]) that the duty to bargain may be violated “without a general failure of subjective good faith; for there is no occasion to consider the issue of good faith if a party has refused to even negotiate in fact— 'to meet. . . and confer’—about any of the mandatory subjects. . . . [A]n employer’s unilateral [action] ... is a circumvention of the duty to negotiate which frustrates the objectives of § 8(a)(5) much as does a flat refusal.” (Italics in original; fns. omitted.)
In my view, the circumstances confronted in Katz are not present in this instance. The record discloses that on April 20, the Union had been given clear notice of Dal Porto’s intent to institute a 15-cent-per-hour wage increase to be effective at the commencement of weeding and thinning season, sometime around the end of May. On May 4th and 13th, Dal Porto again advised the Union that a wage increase was contemplated for the weeders; the Union responded that it would consider it. The wage increase was instituted before the next negotiating session, scheduled for May 27.
A nearly identical factual situation was presented to the court in N.L.R.B. v. Tex-Tan, Inc. (5th Cir. 1963) 318 F.2d 472. There, prior to instituting unilateral wage changes, the company discussed both the nature and kind of changes contemplated with the union as well as the general proposed timing of its action. The court held that under these circumstances “the Employer was not required as a matter of law to await either the formal rejection or acceptance of the proposals by the Union.” (Id., at p. 480.) In this case, Dal Porto made it known that it sought to institute the change prior to commencement of the weeding and thinning season. When the issue was discussed on June 15, the union representative Rodriguez indicated he had been aware of the approximate date fixed for implementing the change. Although the discussion between the parties concerning the proposed wage increase during the April and May negotiating sessions had not been extensive, lack of consent or agreement was not due to a refusal of Dal Porto to *568negotiate. The critical fact is that the Union had specific notice of the time contemplated for the wage increase and had ample time thereafter to respond.
It is improper to mechanically assume a violation of the statutory duty to “meet . . . and confer in good faith” when changes have been instituted after notice to the Union without first securing agreement or rejection by the Union. (N.L.R.B. v. Tex-Tan, Inc., supra, 318 F.2d at p. 481.) “[A]n employer does not violate the Act by unilaterally changing the terms and conditions of employment when it has first granted the union the opportunity to bargain about the mandatory subject in question. [Citations.]” (Struthers Wells Corp. v. N.L.R.B. (3d Cir. 1983) 721 F.2d 465, 472; see also N.L.R.B. v. Henry Vogt Mach. Co. (6th Cir. 1983) 718 F.2d 802, 806; Chatham Manufacturing Company, supra, 172 N.L.R.B. 1948.) While the Supreme Court in N.L.R.B. v. Katz, supra, 369 U.S. at page 747 [8 L.Ed.2d at page 238], does state that “Unilateral action by an employer without prior discussion . . . does amount to a refusal to negotiate . . . and must of necessity obstruct bargaining” (italics added), that case involved an employer who had instituted changes in wage proposals without notifying the union or allowing an opportunity for discussion. (See also Continental Insurance Company v. N.L.R.B. (2d Cir. 1974) 495 F.2d 44, 50, holding that unilateral action taken by the employer “without any [notice or] opportunity ... to bargain over the matter” constitutes bad faith.) In Labor Board v. Crompton Mills (1949) 337 U.S. 217, 224-225 [93 L.Ed. 1320, 1326-1327, 69 S.Ct. 960], the United States Supreme Court early recognized that “a unilateral grant of an increase in pay made by an employer after the same proposal has been made by the employer in the course of collective bargaining . . . left unaccepted or even rejected in those negotiations . . . might well carry no disparagement of the collective bargaining proceedings. Instead of being regarded as an unfair labor practice, it might be welcomed by the bargaining representative, without prejudice to the rest of negotiations. ...”
Although the UFW suggests that Nomellini was “misleading” Rodriguez on June 15 when they discussed the wage increase because he did not “so much as hint that the increase was already in place,” the action found by the Board to be in violation of the Act occurred prior to the June 15 meeting. Our task as a reviewing court is to determine the legality of the unilateral change at the time it was instituted. What was discussed afterwards is patently irrelevant except insofar as it may illumine the parties’ prior behavior. The record indicates that negotiator Rodriguez on June 15 stated, “Well, can we go ahead and agree to that, that that raise should go into effect?”, *569thereby indicating that the UFW was not unamenable to the immediate implementation of Dal Porto’s proposed increase in wages.
I would conclude that by remaining silent in the face of petitioner’s stated intent to impose a wage increase before the end of May, the UFW waived its right to complain.3 I would therefore annul the Board’s finding that the unilateral increase violated Labor Code section 1153, subdivisions (a) and (e).
My review of the whole record compels my conclusion that, on the primary issue of bargaining intent, the negotiating positions reflect simply a case of hard bargaining between two parties of disparate economic power. Dal Porto attempted to retain and the Union to gain as many rights as possible, desires “not inconsistent with its statutory duty to bargain in good faith. [Citation.]” (N.L.R.B. v. Tomco Communications, Inc. (9th Cir. 1978) 567 F.2d 871, 884.)
I would annul the decision of the Board finding petitioner committed unfair labor practices by bargaining in bad faith on the issues of Union security (dues checkoff) and successorship, and by unilaterally increasing wages, and that portion of the Board’s order requiring Dal Porto to provide “make-whole” relief. (See Lab. Code, § 1160.3; J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 31 [160 Cal.Rptr. 710, 603 P.2d 1306].)
A petition for a rehearing was denied January 14, 1985. Evans, Acting P. J., was of the opinion that the petition should be granted. Petitioner’s application for a hearing by the Supreme Court was denied February 27, 1985. Bird, C. J., did not participate therein.
It was at the July 28 meeting that Nomellini stated that Dal Porto did not want to deal with worker complaints, but this was in response to the Union’s resubmitted proposal that Dal Porto collect the dues.
In condemning Dal Porto for failure to make concessions on this “routine” matter, the ALO notes that “We are, after all, merely discussing a checkoff system basically affecting 11 or 12 steady workers with a thinning crew in May for around 8 weeks . . . .” Yet the argument cuts both ways. The ALO’s belief that the Union would have to send “numerous representatives to the fields” in order to collect dues from only 12 workers strains credulity.
Caravelle Boat Co. (1977) 227 N.L.R.B. 1355, and Timken Roller Bearing Company v. N.L.R.B. (6th Cir. 1963) 325 F.2d 746 [2 A.L.R.3d 868], cited by the UFW for the proposition that silence does not constitute waiver of the right to complain about changes, are factually inapposite.
In Caravelle the parties involved had stipulated that “ ‘[N]o proposals of any type were made by [the company] to the Union during the negotiating sessions between such parties concerning the unilateral changes in wages and working conditions . . . . ’ ” {Id., at p. 1358; italics added.)