(dissenting).
According to my view, substantial evidence on the record as a whole amply supports the Board’s finding that respondent refused to bargain in good faith with the Union in violation of Section 8(a)(5) and (1) of the Act. Keeping in mind the date on which the charge was filed, and with the strictest possible application of the Section 10(b) limitation, the following occurred between November 21, 1953 and May 20, 1954: (A) Respondent’s negotiators functioned under instructions from its president that they were not to yield in any respect on three important matters: (1) Seniority was not to be the sole factor governing promotions. (2) The contract must not contain an arbitration provision. (3) The contract must contain a no-strike clause with a monetary penalty for its breach. Restrictions (2) and (3 )are especially important when considered together. Respondent could not in good faith demand that the Union surrender its statutory right to strike and at the same time refuse to agree upon some other effective method of securing a review of grievances. “Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike.” Textile Workers Union of America v. Lincoln Mills of Alabama, 1957, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed.2d 972. By thus circumscribing the authority of its negotiators, the respondent effectively prevented any bona fide bargaining. (B) The Union repeatedly requested the respondent to furnish it with a list of employees together with classifications, wage rates, and employment dates, and the respondent supplied a partial list only, and continually failed to live up to its promise to supply other such relevant data. National Labor Relations Board v. Item Company, 5 Cir., 1955, 220 F.2d 956. ’ (C) On April 19, 1954, respondent put into effect wage adjustments at its feed mill admittedly without consulting the Union, and thereby clearly showed that it was merely going through the motions of collective bargaining. Armstrong Cork Co. v. National Labor Relations Board, 5 Cir., 1954, 211 F.2d 843, 847; National Labor Relations Board v. H. G. Hill Stores, 5 Cir., 1944, 140 F.2d 924, 926. The foregoing, along with a number of other practices noted in the Examiner’s Report and in the Board’s Decision, occurred within the most rigid concept of the six-month period prior to the filing of the charge. Without reference to subsequent events, I think that the foregoing furnishes substantial evidence to support the Board’s finding that respondent refused to bargain in good faith.
The charge is no part of the pleadings in the case. It precedes the filing of the complaint, and has for its purpose the setting in motion of a preliminary investigation to determine whether or not a complaint based upon such charge should issue. National Labor Relations Board v. Westex Boot & Shoe Co., 5 Cir., 1951, 190 F.2d 12. The charge need not, as the majority implies, be restricted to “actions which have already been taken.” To the contrary, the charge required by Section 10(b) of the Act is “* * * that any person has engaged in or is engaged in any such unfair labor practice, * * (Emphasis supplied.) Accordingly, on May 20, 1954, the Union charged that the respondent “has en*860gaged in and is engaging in unfair labor practices within the meaning of Section 8(a), subsections (1) and (3) and (5) of the National Labor Relations Act.” (Emphasis supplied.) “Is engaging in” carried the time element up to the filing of the complaint. The complaint alleged that respondent had unlawfully refused to bargain on or about November 21, 1953, “and at all times thereafter.” (Emphasis supplied.) It was entirely proper, I think, for the complaint to include such conduct occurring after the charge. National Labor Relations Board v. Harris, 5 Cir., 1953, 200 F.2d 656, 658; National Labor Relations Board v. Anchor Rome Mills, Inc., 5 Cir., 1956, 228 F.2d 775, 779; National Labor Relations Board v. Local 1423, United Brotherhood of Carpenters, etc., 5 Cir., 1956, 238 F. 2d 832, 836. With deference, the contrary construction of Section 10(b) by the majority seems to me excessively technical and restrictive, and, if sustained, I believe that it will seriously cripple the Board in any effective enforcement of the Act.
On October 7, 1954, the respondent granted a general wage increase to its employees which the majority concedes was “without specific notice” to the Union representatives, but states that it was “after discussion” with them, and was also after the respondent had “concluded that the Union no longer represented a majority of employees.” On both of those statements I disagree, and find the facts to be accurately stated in the parts of the Board’s brief quoted in the margin.1
I think that the Board had a right to consider the October 7, 1954, general wage increase and the November 19, 1954, express withdrawal of recognition from and refusal to continue to meet with the Union. When those acts are considered, it is not even debatable that the Board’s finding that respondent refused to bargain in good faith with the Union is supported by substantial evidence on the record as a whole. The proof, indeed, goes beyond any reasonable doubt. I therefore respectfully dissent.
. “In the latter part of September respondent’s president, without consulting the Union, decided to grant a general wage increase of seven cents per hour an informed the mill supervisors of his decision (R. 119-120; B.A. 66-68, 73). On October 4 or 5, Union negotiator Wellborn stated to Martin, respondent’s vice-president, T hear that you have given a seven cent raise to the employees.’ When Martin admitted this, Wellborn asked, ‘Aren’t you aware that you should have contacted or told me or discussed it with me about giving the employees a raise.’ Martin’s reply was that seven or eight years earlier, when he was employed elsewhere, he had given wage increases without contacting Well-born and the latter had made no objection. (R. 120; B.A. 58-60, 63-64). On October 6, respondent posted a notice officially announcing the wage increase, which was made retroactive to October 4. Admittedly, respondent gave the Union no prior notice of this action (R. 120, 165, 175; B.A. 63-64, 68-73, 292).
“The meeting scheduled for October • 10 was in fact held on October 15 (R. 161-162). * * *
“The next, and final, meeting was not held until November 19. On that date, respondent stated that it felt that the Union was not interested in a contract and that it had received ‘information from what the mill considers to be accurate reliable sources’ that the Union no longer represented a majority of the employees in the bargaining unit. Respondent accordingly for the first time advised the Union that ‘we just simply at this time do not recognize the Union as the bargaining agent for the employees at the plant’ and that it was ‘refusing to bargain any further’ (R. 121, 162; B.A. 20, 286, 289, 292). Prior to this meeting, the Union’s majority hadi not been questioned (B.A. 21). The Union asked the source of the information regarding its alleged loss of majority, and' respondent replied ‘Just by word of mouth’ (B.A. 21, 290).
“On the same day, respondent publicly announced its withdrawal of recognition in a notice posted on a plant bulletin board (R. 121, 166; B.A. 22-23, 108-109). In a letter transmitting a copy of this notice to the Union, respondent stated that ‘the information which the Company had, with reference to the desire of its employees [not to be represented by the Union], came through verbal statements of the employees’ (ibid.).”