(dissenting in part):
The decision today really comes to this: a unilateral, i. e. a voluntary, increase of wages and other benefits cannot be granted, even after consultation with the union, until the union assents; until then the award constitutes a refusal to bargain.
My point is that after notice, consultation or negotiation the increase does not have to await agreement by the *126union. The Court’s opinion itself, I think, proves these prerequisites were observed.
If, nevertheless, bargaining must follow, as the Court holds, the immediate query is: bargaining on what? With an increase assured, obviously the only issue remaining is the defeat or shrinkage of the raise. Had the parties engaged in this fantastic, negative pursuit, it would have been a hypocritical farce.
Imagine bargaining to an impasse on the union’s disapproval of the increase. Picture the union thumping the table against the benefits, and the utter sham of the union’s contention is exposed. How long it may thus postpone the employee benefits is not disclosed.
The union also argues, as paraphrased by the Court, that the merit system offered by the company “left the question of wages solely to the discretion of the company for a period of about four years and neither the union nor the employees would have recourse to what the company did in the matter of wages”. Unless the union agreed to it, how wages could be fixed exclusively and incontestably by the company is inexplicable. Concededly, the merit system always remained open to bargaining.
Truth is, as the Board’s examiner stated — and all of these aerial arguments of the union confirm — the union is only seeking to maintain its prestige. This is made quite evident by the following incidents. First, there is this colloquy in the hearing before the examiner:
“Trial Examiner: You told him you didn’t want him to increase the employee’s wages ?
“The Witness: [Williams]: Yes sir, a general increase.”
Dominance of union self-interest is also manifested in the Board’s explanation in its brief that “Williams also objected to the proposed periodic increases because the plan precluded the Union from playing a part in those determinations.”
Any thought that the company was attempting to undermine union stature is at once dispelled on recalling that the offer was not released to the employees but was first submitted to the union. Further, the company offered to let it be treated as procured by the union.
I. The enlargement of wages and benefits (designated infra simply as benefits) after consultation with the union is an employer’s untrammeled right. It is something, it has been authentically declared, to be encouraged. In the same ex cathedra declaration it is held to be innocent of the imputation of union disparagement. Subordination of the worker’s interest to the glorification of the union by allowing it to veto or delay the benefits is untenable. Thus the majority opinion collides, head and head, both with the welfare of the worker and, as will appear, the highest authority.
In NLRB v. Crompton-Highland Mills, 337 U.S. 217, 224, 69 S.Ct. 960, 963, 93 L.Ed. 1320 (1949), the Court said:
“We do not here have 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 but has been left unaccepted or even rejected in those negotiations. Such a grant 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 the negotiations.” (Accent added.)
In NLRB v. Katz, 369 U.S. 736, 745, 82 S.Ct. 1107, 1113, 8 L.Ed.2d 230 (1962) while disapproving a bestowal of wage and other benefits without notice or consultation with the union, the Court distinguished as valid a grant made via the union, explaining:
“Of course, there is no resemblance between this situation and one wherein an employer, after notice and consultation, ‘unilaterally’ institutes a wage increase identical with one which the *127union has rejected as too low.” (Accent added.)1
II. If Korn Industries did in fact notify, consult or negotiate with the union upon the company’s proposal to confer the employee-benefits, of course the refusal to bargain conviction cannot stand.
Completely reversing its examiner the Board, and now the Court, put decision on the finding that the company “unilaterally instituted” the benefits. But, as the authorities just quoted declare, there is nothing wrong with a unilateral award if it is preceded by notice, consultation or negotiation. In any event, suicidal of the decisional premise here is the majority’s own refutation of it. Despite sincere deprecation, the opinion conclusively demonstrates that there was notice, consultation, and negotiation prior to the company’s effectuation of its plan.
The following facts, undenied, are merely introductory to the Court’s findings. The last annual contract existing between the union and the company since 1963 expired in February 1965. Before then, the union gave notice it desired to modify the contract. One June 2, 1965, after the union’s election that day as bargaining agent, its representative advised the employer’s attorney that “the check off would be an important issue in the negotiations”.
The following is a summarization of the majority’s findings and, in my judgment, conclusively establishes that the benefit increase was the subject of notice, consultation and negotiation between Korn and the union.
(1) A bargaining session was set for June 30th. Four days ahead, on June 26th, the company’s attorney notified the union that the company had prepared a contract proposal for presentation at the meeting. On June 28th the proposal, assertedly prepared mainly to satisfy the wages and hours requirements of the Civil Rights Act, 42 U.S.C. 2000e-1 et seq., was handed the union alone, without word to the employees. It was a detailed classification of the employees into job descriptions and categories, a minimum and maximum wage schedule for each class, with a present grant of increases and provision for future raises according to later evaluation of the employees.
(2) At the June 30 bargaining session the employer and the union, as the majority faithfully notes, each offered terms for a new contract. The union protested the company’s contemplated promulgation on July 2 of the company’s wage-benefit plan. In this debate the union adverted to a prior contract when the company before negotiations put an increase of 10 cents per hour into effect and thereafter refused to make other concessions on wages. The union argued that this action hurt its standing with the employees. The same course was avoided instantly.
(3) Still another contention asserted by the union was that the Civil Rights Act did not compel a wage and hour adjustment by July 2. The company asserted the contrary.
(4) Then the company offered to let the union be credited with the good features of the company plan. The union rejected the tender.
(5) Additionally, in the same gathering the union urged an eight-point modification of the prior contract. Especially, it requested the inclusion of a grievance-arbitration clause. The company declined.
(6) Also, as the majority states, “[A]t this same bargaining session the union pressed its objection to the merit system” and gave its grounds.
(7) Likewise, a statement was made “at a bargaining session during the dis*128pute over merits and reasons for the unilateral wage plan” by the company attorney which was found by the Board to be an impeachment of the employer’s bona fides. “It was simply a part of the argument that centered on the improper wage plan”, the majority labels it. (All accents added.)
Leaving the majority opinion for a moment, the record reveals pointed testimonial corroboration of these employer-union exchanges. Williams, the union representative, testified that at the June 30 meeting the company’s attorney, “asked if he might present to us and explain in detail these plans. McGhee [company attorney] did explain the plan and asked for permission for him to put it into effect”. Williams continued, “I asked him not to put in any wage increases that were not required under the law”. (Accent added.)
Thus, even without the collateral record excerpts, the majority opinion explicitly and implicitly recognizes there was union-employer controversy as to the benefits and that these controversies were fully and vigorously aired “during the bargaining session”. This is an apt and accurate description by the Court of the occasion. The examiner epitomized it in these words: “* * * the parties bargained, made offers and counteroffers, and in every respect satisfied the established criteria of bargaining deportment”. Just how much more was necessary to constitute notice, consultation and negotiation is not readily conceivable.
If the contrary conclusion of the Board is a finding of fact, then clearly it is wanting in substantial evidential support and must be disregarded. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
III. The Board and the Court would erase the fact of notice, consultation and negotiation in June 1965 by asserting the company was not acting in good faith.
Foundations for this allegation are, first, that the company declined to furnish the union with information relating to the job descriptions and the new wage system. Infusion of this contention as tainting the company’s conferences on June 30th and the benefits’ augmentation on July 2, 1965, is somewhat unclear. The information episode did not arise until August 13 and could hardly have affected the events of almost six weeks previous.
But the whole completely collapses when the Court finds, and quite soundly, that since “the uncontradicted evidence shows that the company furnished all the information it had about its new plan * * * the Board’s finding on this issue [of failure to furnish] is not supported by substantial evidence.”
Next, there is reference to the statement by the company attorney, supra, which was said to be an unjustified stricture upon union persuasiveness. Thereafter, the opinion holds the remark was not a Section 7 Act violation, saying: “Nor should the Board, or the courts, inhibit discussion at the bargaining table by imposing a penalty upon isolated statements made in the heat of argument.” The Court thus recognizes it for what it was — a part of the bargaining on June 30 — and exonerates it as fair comment. How then could it be counted to show an absence of good faith ?
Also, bad faith is attributed to the company in that seven months after the award of the benefits of July 2nd, “the company attorney proposed a revision of still further wage increases”. Here again the proposal was not related to the company’s behavior on June 30. Furthermore, it was directed to the union, obviously denoting consultation and compliance with the union’s present thesis.
If reliance to establish bad faith is put, as the majority would, on the failure of the company’s plea that the benefits were needed to fulfill the exactions of the Civil Rights Act, it is a weak reed indeed. If the benefits were not exacted by the Civil Rights Act, at least company counsel thought they were and so contended in the hearing. I see no warrant for the accusation in the brief of the Board that counsel’s averment was a “falsehood”. The position may have been *129a mistaken one, but the loss of a defense is not proof of bad motive, personally or objectively. If it were, then every unsuccessful defendant could be so impugned. Fraud is readily charged; not proved, it hurts the accuser more than, the accused.
IV. Incomprehensibly, throughout this case the union is everywhere objecting to remunerative advances for employees. It confirms the examiner’s characterization of the union’s attitude —to aggrandize itself at the expense of the employees.
On the Board’s assertion of unilater-ality, its decision comes to this. If the company had merely withheld word of an increase until it was demanded by the union, there would have been no affront to the bargaining process. Spontaneity was the sin; the union’s preeminence was slighted.
I dissent from those portions of the majority opinion enforcing the Board’s order.
. The Court cited NLRB v. Bradley Washfountain Co., 192 F.2d 144, 148, 150-152 (7 Cir. 1951). There the Seventh Circuit Court of Appeals reversed the Board’s conclusion, contrary to that of its examiner, that the employer was at fault for upping wages during negotiations to the level offered the union but not acted upon by it.