(dissenting).
In my opinion there is support in the record for the Board’s finding that the employer coerced and restrained the employees in violation of § 8(a) (1) of the National Labors Relations Act, 29 U.S.*710C.A. § 158(a) (1), by granting a unilateral wage increase higher than that offered to the union. I think there is also sufficient evidence in the record to support the Board’s conclusion that the employer refused to bargain with respect to a mandatory subject of bargaining in violation of § 8(a) (5) by unilaterally changing sick leave policy during the negotiations. I would not remand the case to the Board to make a finding with regard to the employer’s good faith since no allegation of bad faith bargaining was made in the complaint and there is insufficient evidence in the record as a whole to support a finding that the employer bargained in bad faith. I would modify the order of the Board so as to prohibit only the general wage increase and the change in sick leave policy, and I would grant enforcement of the order as modified.
As I read Judge Waterman’s opinion, the majority’s view is that the acts committed here by the employer could amount to unfair labor practices only if the Board found that the employer was bargaining in bad faith and had no intention of reaching an agreement with the union. I think that neither reason nor precedent supports these conclusions.
I.
My brethren dispose of the charges made against the employer for violation of § 8(a) (1) of the Act by deciding that they were “derivative” and dependent on the finding that § 8(a) (5) had been violated. I disagree. The language of both the complaint filed with the Board and the Intermediate Report of the Trial Examiner reveal that separate § 8(a) (1) violations were alleged and found.1
I would enforce the order of the Board insofar as it held the unilateral grant of a wage increase which was higher than that offered to the union to be restraint or coercion under § 8(a) (1). Had the wage increase been equal to or less than the proposal made to the union, it would not have violated § 8(a) (1). N. L. R. B. v. Bradley Washfountain Co., 7 Cir., 1951, 192 F.2d 144; see N. L. R. B. v. Crompton-Highland Mills, 1949, 337 U.S. 217, 224-25, 69 S.Ct. 960, 93 L.Ed. 1320. But the employer’s more generous offer to the employees individually than the one made to their union representatives could only have induced them to abandon the union, which they soon did by decertification proceedings. See Medo Photo Supply Corp. v. N. L. R. B., 1944, 321 U.S. 678, 684, 64 S.Ct. 830, 88 L.Ed. 1007. The effect of a substantial unilateral wage increase greater than that offered to the union is to disparage the union and thereby coerce the employees to bargain individually; “such action in itself constitutes an unfair labor practice.” N. L. *711R. B. v. National Shoes, Inc., 2 Cir., 1953, 208 F.2d 688, 692.
Whether § 8(a) (1) has been violated depends not on the employer’s intent but on whether the act in question would tend to discourage union membership. N. L. R. B. v. Gaynor News Co., 2 Cir., 1953, 197 F.2d 719, affirmed Radio Officers Union of Commercial Telegraphers Union A. F. L. v. N. L. R. B., 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455; see Time-O-Matic, Inc. v. N. L. R. B., 7 Cir., 1959, 264 F.2d 96, 99. The substantial unilateral wage increase not only tended to have such an effect but was probably instrumental in the employees’ ultimate decision to decertify. I would hold it to be a violation of § 8(a) (1).
II.
With respect to the obligations imposed by § 8(a) (5), my brethren would hold that so long as an employer intends in good faith to reach an agreement no violation can be found. I agree that the decisions of the Supreme Court reveal that no per se test of good faith should be applied and that an employer’s intention should be judged in the light of all the circumstances. However, I believe that more is demanded of an employer by § 8(a) (5) than merely a sincere desire to reach an agreement, and I would therefore hold that certain unilateral acts during the course of collective bargaining violate § 8(a) (5) apart from any finding with respect to good faith. Thus, I would enforce the Board’s order insofar as it held that the change in sick leave policy was an unfair labor practice under § 8(a) (5).
Section 8(a) (5) provides that it is an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees.” The statute defines the duty of collective bargaining in § 8(d):
“For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession. * * * ”
One duty imposed upon the parties by § 8(d) is that of approaching the bargaining table with a sincere desire to reach an agreement. The ultimate issue for the Board and the courts with respect to this obligation is whether the respondents’ acts at the bargaining table were sham and whether it in fact wished to avoid an agreement. N. L. R. B. v. Reed & Prince Mfg. Co., 1 Cir., 1953, 205 F.2d 131, 134, certiorari denied 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391; see N. L. R. B. v. Insurance Agents Int’l Union, 1960, 361 U.S. 477, 504, 514, 80 S.Ct. 419, 4 L.Ed.2d 454 [Frankfurter, J., concurring], The Board here refused to adopt the Trial Examiner’s finding that the “Respondent was merely going through the motions of collective bargaining without a genuine intention of trying to negotiate an agreement with the Union,” and I believe it was correct in doing so. The evidence in the record shows that the parties had seven meetings between August 20, 1956 and December 5, 1956, at which they discussed many provisions to be incorporated into a collective-bargaining agreement, and the employer’s readiness to compromise on several issues belies any contention that it did not wish to conclude an agreement.
But § 8(d) requires more than just a willingness to enter into a contract. It directs not only that the parties confer in good faith, but that they do so “with respect to wages, hours, and other conditions of employment.” The Supreme Court has read this language to establish certain “subjects of mandatory bargaining” which cannot be unilaterally withdrawn from the list of those to be bargained about. N. L. R. B. v. Wooster *712Division of Borg-Warner Corp., 1958, 356 U.S. 342, 349, 78 S.Ct. 718, 2 L.Ed. 2d 823. Mere willingness to conclude an agreement with the union does not satisfy the employer’s obligation; he must also confer with the union with respect to each and every subject of mandatory bargaining. A refusal to bargain within the meaning of § 8(d) need not be a total refusal. If an employer refuses to consult the union as to any subject with respect to which bargaining is mandatory, he commits an unfair labor practice, no matter how sincere his intent. See, e. g., N. L. R. B. v. Niles-Bement-Pond Co., 2 Cir., 1952, 199 F.2d 713 [Christmas bonuses]; N. L. R. B. v. Proof Co., 7 Cir., 1957, 242 F.2d 560, certiorari denied 355 U.S. 831, 78 S.Ct. 45, 2 L.Ed.2d 43 [seniority provisions and bulletin board use]. The policy underlying such a rule is that to which Professor Cox ■ alluded in the passage immediately preceding the one set out in the majority opinion:
“As in the case of refusal to execute a contract with a union, a distinction should be drawn between inquiring into the employer’s state of mind in order to distinguish the sham from the real and condemning conduct which thwarts the policy of making terms of employment, depend upon mutual consent.” Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1424 (1958).
As I read § 8(d), together with the gloss of the Borg-Warner case, Congress has decided that with respect to subjects of mandatory bargaining the decision-making process requires consultation with the union. I do not believe it is necessary to read “confer” in § 8(d) as imposing upon the employer the duty of first obtaining the consent of the union; but it requires, at the very least, that he discuss any proposed significant change in conditions of employment with the employees’ bargaining representatives.
An employer who, during the course of negotiations, unilaterally, and without notifying the union, institutes a change in one of the conditions of employment as to which collective bargaining is mandatory is, in effect, bypassing the employee representatives and negotiating with individual employees directly. See May Department Stores Co. v. N. L. R. B., 1945, 326 U.S. 376, 384, 66 S.Ct. 203, 90 L.Ed. 145; Lloyd A. Fry Roofing Co. v. N. L. R. B., 9 Cir., 1954, 216 F.2d 273, 276. If an employer is permitted to take unilateral action without even consulting the union, he will be able to undermine negotiations with respect to any one of the mandatory subjects of bargaining as effectively as if he altogether refused to bargain over it. Indeed, the failure to notify the union if there has been an opportunity to do so must in all but the most extreme circumstances signify an intent to deny the employees any role in decision-making with respect to the particular condition of employment which is involved. Such conduct may be entirely consistent with a sincere subjective intent to reach an agreement with the union on all other issues, but irrespective of the employer’s state of mind it should constitute an unfair labor practice.
In this case the National Labor Relations Board charged the employer with having violated the duty to bargain by taking three steps unilaterally without notifying the union: granting merit increases, changing sick leave policy, and granting wage increases larger than those offered to the union. In my opinion, the record supports the charge only with respect to the change in sick leave regulations.
In a notice posted at its plant on March 11, 1957, the employer announced that the sick leave rules were being changed so as to allow only five sick days per year in place of ten. Accumulation of unused days was doubled, so that an employee who used no days was no worse off than he had been under the old plan. However, the change, which was made without notice to the union, certainly affected those who were sick during the year. At that time, negotiations had been sus*713pended for several months, but the sick leave plan was still one of the subjects left open for discussion. By changing the rules without giving the union notice of any intention to do so, the employer disregarded the federal policy calling for joint deliberation between the employer and the union before a change is made. I would hold the unilateral step to be a per se refusal to bargain with respect to a subject of mandatory bargaining and a violation of § 8(a) (5).
The merit increases, however, were part of the existing wage pattern and were not granted in such a way as to discriminate against union members. Although a change in merit review procedure could not be undertaken unilaterally, N. L. R. B. v. Century Cement Mfg. Co., 2 Cir., 1953, 208 F.2d 84; N. L. R. B. v. Berkley Machine Works & Foundry Co., 4 Cir., 1951, 189 F.2d 904, individual merit reviews are permissible, White v. N. L. R. B., 5 Cir., 1958, 255 F.2d 564, 574; N. L. R. B. v. Superior Fireproof Door & Sash Co., 2 Cir., 1961, 289 F.2d 713.
Nor can it be said that the unilateral general wage increase was a refusal to bargain, although it amounted to restraint or coercion because it was higher than that offered to the union. See supra. By the time it was granted, the negotiations had reached an impasse. Having engaged in fruitless discussions for many months and learning that the union was ready to make few, if any, concessions, the employer was justified, insofar as his duty to bargain was concerned, in presuming that a general wage increase could be instituted unilaterally only. N. L. R. B. v. Andrew Jergens Co., 9 Cir., 1949, 175 F.2d 130; see N. L. R. B. v. Sands Mfg. Co., 1939, 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682.
I would, therefore, modify the order of the Board so as to find a § 8(a) (1) violation in that the employer offered a greater wage increase to the individual employees than it did to the union and a § 8(a) (5) violation (and, derivatively, another § 8(a) (1) violation) in that the employer refused to bargain collectively about a change in sick leave policy. I would enforce the order as modified.
. After listing the various unilateral acts which the majority opinion quotes supra at page 701, the complaint read as follows:
“11. By the acts described above in paragraph 10, and hy each of said acts, Respondent Employer did engage in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
“12. By the acts described above in paragraph 10, and T>y each of said acts, Respondent Employer did engage in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act.” [Emphasis supplied.]
The Intermediate Report of the Trial Examiner listed the following among the Conclusions of Law:
“4. By failing to perform its obligation to bargain in good faith with the Union in October 1956, and thereafter, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act.
“5. By unilaterally granting merit increases in October 1956, and in January 1957, by unilaterally changing its sick leave policy on or about March 11, 1957, and by unilaterally granting wage increases in April 1957, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a) (1) of the Act.”
These rulings, affirmed by the Board, clearly distinguish between the § 8(a) (1) and the § 8(a) (5) violations. Conclusion of Law 5 found expressly that the unilateral acts, apart from the Examiner’s finding of bad faith, interfered with, restrained, and coerced employees in violation of § 8(a) (1).