Full opinion text
KEETON, District Judge. In this appeal, Soule Glass and Glazing Company and three related Soule firms (“the company”) petition this court to review and set aside an order of the National Labor Relations Board (“the Board”) finding the Company guilty of a number of unfair labor practices. The Board cross-applies for enforcement of its order. The case presents, in the words of petitioners’ brief, “a virtual compendium” of the labor law issues implicated by an employer’s operation during a strike. I. A summary of the history of the company and the labor dispute at issue provides the necessary context for our review of the Board’s decision. Soule Glass and Glazing Co. is one of several corporations owned by the Soule family, all of which are engaged in various facets of the glass and related businesses in the state of Maine. The present corporate structure evolved, under the direction of Charles Soule, from the original Soule Glass and Paint Company (“SGP”). Following several acquisitions and a reorganization in 1975, the parent company was renamed Soule Glass Industries (“SGI”), and the business was organized into two operating divisions, King & Dexter (hardware, glass cutting and fabrication, and metal fabrication) and SOAGCO (auto glass), and a wholly-owned subsidiary, Soule Glass and Glazing (“SGG”). Charles Soule became president of SGI, Edward Churchill became president of SGG, and Andrew Soule, Charles Soule’s cousin, was named SGG’s treasurer. SGG took over the business of installing glass and framing on new construction projects (“contract work”) as well as the replacement of broken glass in existing buildings (“replacement work”). SGG operated from various facilities in Portland, Lewiston, Waterville, and Bangor. Petitioners’ relationship with Glaziers Local 1516, International Brotherhood of Painters and Allied Trades, AFL-CIO (“the union”) has been long, if not harmonious. SGP’s Portland employees have been represented by the Union since 1945. In 1969, following a strike, SGP entered into a three-year collective bargaining agreement for a unit of “all glaziers, apprentice glaziers, inside glass workers, metal fabricators, and truekdrivers, excluding all office clerical employees, salesmen, professional employees, guards and supervisors” at SGP’s various locations. Following another strike in 1973, petitioners and the Union negotiated three separate three-year contracts for three separate units: SGP (succeeded by SGG), King & Dexter, and SO-AGCO. Each of these contracts was to expire March 31, 1976. However, the employees of King & Dexter and SOAGCO voted to oust the Union, resulting in the decertification of the union in these units on March 24, 1976. On February 21, 1976, the union began bargaining with SGG for a contract to replace their 1973 agreement, covering bargaining unit employees engaged in outside glazing on new construction and replacement jobs. In all, 17 bargaining sessions were held. By the fifth session, on April 9, the parties had reached at least tentative agreement on all issues except wages and the duration of the contract, with the union demanding a $1.10 per hour raise in the minimum glaziers’ pay rate for a one-year contract, and the company offering a two-year contract with increases at six month intervals of 15 cents, 10 cents, 15 cents, and 10 cents per hour. The Union rejected this offer, and on the morning of April 12, 1976, the bargaining unit employees of SGG went on strike. That afternoon, Charles Soule approved a flat 25 cents-per-hour pay raise, retroactive to April 1, for all the (nonstriking, non-unit) employees of the King & Dexter and SOAGCO divisions of SGI. For about the first month of the strike, SGG operated on an ad hoc basis, with supervisors and borrowed SGI personnel working long hours to fulfill the company’s contractual glass installation obligations. Replacement work was initially neglected, and the company subcontracted certain work. Starting in mid-May, 1976, SGG began to hire permanent replacement employees to do outside glazing work formerly done by the striking bargaining unit employees. On May 6, 1976, at the first post-strike bargaining session, the company announced its intention to close SGG’s Lewiston and Waterville shops for economic reasons, and to have the employees on each of the affected crews report directly to jobs from their homes. Because of the closings, the Company proposed to divide the state into two wage zones instead of the three previously agreed to. The Union rejected the two-zone proposal. At the May 6 meeting and thereafter, there was considerable discussion as to the effects of the Lewiston and Waterville closings on the employees at those locations. At negotiating sessions on May 7, 1976, the union made a wage proposal for a three year contract with 26 cent increases every 6 months the first year, 29 cents every six months the second year, and one 54 cent increase in the third year. The company rejected this proposal, and offered a two year contract with six month increments of 20 cents, 15 cents, 21 cents, and 15 cents, which the union rejected. Thereafter, the company never increased this offer. Subsequently, at sessions on June 18, August 27, and October 18, the union reduced its wage demands to 90 cents for a one year contract, then to 80 cents for a one year contract, and finally 80 cents per year for a two year contract, respectively. The company rejected each of these offers, and no further progress was made toward resolving the wage issue. In addition to the wage increase and the Lewiston-Waterville closing, several incidents during the strike and concomitant negotiations gave rise to unfair labor practice charges against the company. Early in the strike, pursuant to a “marketing concept” he had evolved for the Soule Companies, Charles Soule formed Soule Glass Replacement Company (“SGR”), a wholly-owned subsidiary of SGI combining the former King & Dexter and SOAGCO divisions. “Replacement centers” were set up as early as April 1976, and the transfer of a majority of the replacement work formerly done by SGG employees took place in May and June. Whether this transfer of bargaining unit work was implemented as a permanent change (and if so, at what point it became so) or was instead a temporary response to the exigencies of the strike is disputed. The existence of SGR and the company’s “proposal” to transfer permanently the majority of SGG’s replacement work was first disclosed to the union in an “agenda” distributed by the company’s attorney at the August 6 bargaining session. The agenda proposed changes in a number of noneco-nomic areas on which agreement had previously been reached, including work jurisdiction, elimination of the apprenticeship plan, company discretion as to new employees’ wages (above contractual minimum), modification of the grievance and arbitration clauses, and addition of a no-retaliation clause. The union made no immediate response to the specifics of the agenda. On June 25, 1976, SGG president Edward Churchill and manager Edward Tribou were involved in two incidents involving confrontations with picketing strikers. Following lunch at a Bangor restaurant, Churchill and Tribou drove to SGG’s Bangor facility, where a striker’s vehicle was allegedly parked on company property. Following some discussion with strikers Carleton French and Harold Douglas, Tribou seized a picket sign that was leaning against a truck windshield and threw it into the street. Churchill then attempted to persuade the two strikers to return to work, allegedly offering raises of first ten cents and then one dollar, and inviting both to discuss the matter later over drinks. After both pickets refused, Tribou directed insults at the two and he and Churchill departed. Churchill and Tribou then drove to SGG’s nearby Hampden facility, where Tribou again seized the strikers’ picket signs and threw them on the ground. Churchill allegedly grabbed picket Nick Botzko, a robust 60 year old man, around the neck and held Botzko’s head down as if preparing to punch him. Striker Michael Nadeau at that point jumped from a concealed position behind an air compressor and Churchill released Botzko. Tribou made various abusive and threatening remarks to Nadeau, and departed with Churchill. These incidents were reported to the union membership at a meeting held shortly thereafter. During the November 22, 1976 bargaining session, the union’s attorney (Cohen) requested that the company provide certain wage and hour information to permit the union to evaluate the company’s wage position. The company’s attorney (Levenson) told the union to put its request in writing. On November 23 Cohen wrote Levenson requesting wage and hour data for all nonstriking employees of SGI, SGR, and SGG. At the December 9 bargaining session, Le-venson gave the union a written reply, stating that the company was furnishing the wage rates (without names) and aggregate weekly overtime hours of all SGG employees, but declining to furnish any information regarding the nonunion SGI and SGR employees. December 9, 1976 was the final bargaining session. On March 8, 1977, attorney Cohen wrote to attorney Levenson on behalf of the strikers, unconditionally applying for the immediate reinstatement of 22 named individuals, and proposing to resume negotiations. Levenson responded on March 10 with a letter stating that the request “must be studied carefully before making a definitive reply,” that Andrew Soule would like to interview individually each of the strikers applying for reinstatement, and suggesting possible dates for a bargaining session. On March 11, Cohen wrote Levenson emphasizing that the request was for reinstatement of the named strikers “as a group” to their former or equivalent jobs and asserting that as unfair labor practice strikers they were entitled to reinstatement as of right and that conditioning reinstatement on individual interviews was unlawful. Cohen agreed to meet on March 28, 1977 for further negotiations. Levenson by letter of March 21 notified the union that striker David Bates, whose name was among the 22 reinstatement applicants, was being terminated for strike misconduct and would not be reinstated. On March 25,1977, Levenson again wrote Cohen, this time informing him that the scheduled meeting would be “without purpose,” in that, because of the company’s “doubts that Local 1516 continues to represent the bargaining unit at Soule Glass and Glazing Company,” the company was withdrawing its recognition of the union as bargaining representative. The company stated it would, “upon proper application,” reinstate strikers when openings occurred. On June 27, 1977, the Board’s Regional Director issued a consolidated complaint, consolidating five sets of unfair labor practice charges brought by the union against the company during the negotiations and strike. Specifically, the complaint, as later amended, charged the company with violating § 8(aXl) of the Act by increasing wages of nonstrikers, assaulting a picketing striker, and offering wage inducements to picketing strikers; violating § 8(a)(1) and (5) by unilaterally combining wage zones, refusing to supply relevant requested information, withdrawing recognition of the union, and unilaterally permanently reassigning bargaining unit work to nonunit employees; and violating section 8(a)(3) and (1) by refusing to reinstate the strikers. The complaint makes no mention of the Lewiston-Waterville shop closings, and does not charge bad faith bargaining as an independent violation. The case was heard before an Administrative Law Judge (“ALJ”) at a ten day hearing in November and December, 1977. On July 9, 1979, the AU issued his decision and remedial order finding the company guilty of a number of unfair labor practices. On December 5,1979, a three member panel of the Board summarily affirmed, in a brief order without opinion, and with one minor modification, the ALJ’s findings, conclusions, and order. II. Standard of Review Section 10(e) of the National Labor Relations Act (“the Act”), 29 U.S.C. § 160(e), provides that “The findings of the Board with respect to questions of fact if supported by substantial evidence on the record as a whole shall be conclusive.” As interpreted by the Supreme Court in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), “ ‘[substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. at 477, 71 S.Ct. at 459. In searching “the whole record” for substantial evidence, a reviewing court “must take into account whatever in the record fairly detracts” from the Board’s fact finding as well as evidence that supports it. Id. at 487-88, 71 S.Ct. at 464-465. The court may not substitute its judgment for that of the Board when the choice is “between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo,” and must defer to the Board’s inferences in the Board’s areas of specialized experience and expertise. Id. at 488, 71 S.Ct. at 465. However, it is appropriate to set aside the Board’s decision when the court “cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” Id. at 488, 71 S.Ct. at 465. As to mixed questions of law and fact, such as the inferences drawn by the board from the evidence (e. g., motive) or the application of a statutory standard to particular factfindings (e. g., bargaining in good faith), the court must sustain the board’s conclusions if reasonable. See, e. g., Famet, Inc. v. NLRB, 490 F.2d 293, 295 (9th Cir. 1973); NLRB v. Marcus Trucking Co., 286 F.2d 583, 592 (2d Cir. 1961). In light of these criteria we review the Board’s findings of fact and conclusions of law. III. Procedural Due Process Petitioners challenge several of the Board’s unfair labor practice findings against them as violative of due process, in that these violations were not charged in the General Counsel’s amended complaint. In particular petitioners attack on due process grounds the “course of conduct” violation, held to violate § 8(a)(5) and (1); the additional finding of a § 8(a)(5) violation with respect to the wage increase when only § 8(a)(1) was charged; and the § 8(aX5) and (1) violations found regarding “reneging” on the three wage zone agreement and the Lewiston-Waterville closing. Although we deal with each of these claims individually in later sections of this opinion, it is useful to set forth initially the analytic framework common to all such claims. Due process requires that persons charged with unlawful conduct be given prior notice of the charges and an opportunity to be heard in defense before the government can take enforcement action. For federal agency adjudications, the Administrative Procedure Act, 5 U.S.C. § 554(b)(3), provides that “[p]ersons entitled to notice of an agency hearing shall be timely informed of ... the matters of fact and law asserted.” The NLRB’s own rule, 29 C.F.R. § 102.15, requires that “[t]he complaint shall contain ... a clear and concise description of the acts which are claimed to constitute unfair labor practices, including, where known, the approximate dates and places of such acts and the names of the respondent’s agents or other representatives by whom committed.” The General Counsel’s complaint, which may be liberally amended, is designed to notify the adverse party of claims to be adjudicated so he may prepare his case, and sets the standard of relevance at the hearing before the ALJ. Douds v. International Longshoremen’s Ass’n, 241 F.2d 278, 283 (2d Cir. 1957). Due process prohibits the enforcement of a finding by the Board of a violation “neither charged in the complaint nor litigated at the hearing.” NLRB v. H.E. Fletcher Co., 298 F.2d 594, 600 (1st Cir. 1962); Boyle’s Famous Corned Beef Co. v. NLRB, 400 F.2d 154, 162 (8th Cir. 1968). Stated in the strongest terms, “[failure to clearly define the issues and advise an employer charged with a violation ... of the specific complaint he must meet and provide a full hearing upon the issue presented is ... to deny procedural due process of law.” J.C. Penney Co. v. NLRB, 384 F.2d 479, 483 (10th Cir. 1967). The adversary process employed in NLRB adjudication is premised on having a neutral, impartial trier of fact, with the General Counsel serving as prosecutor. The ALJ may not, in effect, become a litigant by “prosecuting” uncharged violations. Although the ALJ may, in his discretion, “call attention to an uncharged violation or decide an uncharged violation which has been fully litigated by the parties, ... he should [not] undertake to decide an issue which he alone has injected into the hearing, especially where, as here, the parties were never advised to litigate the issue.” NLRB v. Tamper, Inc., 522 F.2d 781,789-90 (4th Cir. 1975) (emphasis in original) (denying enforcement because AU’s action “so inherently prejudicial”). However, courts have recognized “the Board’s power to decide an issue that has been fairly and fully tried by the parties, despite the fact that the issue was not specifically pleaded,” Drug Package, Inc. v. NLRB, 570 F.2d 1340, 1345 (8th Cir. 1978); and have gone so far as to state that the Board “has an obligation to decide material issues” which were fully litigated although not specifically pleaded. American Boiler Manufacturers Ass’n v. NLRB, 404 F.2d 547, 556 (8th Cir. 1968), cert. denied, 398 U.S. 960, 90 S.Ct. 2162, 26 L.Ed.2d 546 (1970). See NLRB v. Puerto Rico Rayon Mills Inc., 293 F.2d 941, 947 (1st Cir. 1961) (issue obvious, fully litigated, no prejudice shown). Inconsequential or technical variances between the phraseology or characterization of the violation charged and the violation found are not a valid defense where it is clear the respondent “understood the issue and was afforded full opportunity to justify [its actions],” NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 350, 58 S.Ct. 904, 913, 82 L.Ed. 1381 (1938); REA Trucking Co. v. NLRB, 439 F.2d 1065, 1066 (9th Cir. 1971). Thus, the test is one of fairness under the circumstances of each case— whether the employer knew what conduct was in issue and had a fair opportunity to present his defense. For example, if the identical employer conduct gave rise to two violations, the legal elements of which overlap substantially, and only one was charged, under some circumstances it may be fair to say that both were “fully litigated.” However, in Drug Package, 570 F.2d at 1345, the court held that an issue was “not fairly litigated” because [although the underlying facts were litigated, the Company at the time of the hearing, was aware only of the possibility that the Board would find an 8(a)(1) violation .... Had the Company been given notice of the possibility of an 8(a)(5) violation and the resulting additional penalties, it might have litigated the matter differently. In this regard, the Court of Appeals for the Tenth Circuit recently noted: Many labor dispute cases involve multiple charges based on a variety of occurrences. This case was complex and confusing— there were not only a number of charges but a change of ownership, .... Simply because violations could have been alleged in addition to those in the complaint does not obligate the employer to defend against all possibilities. NLRB v. Pepsi-Cola Bottling Go. of Topeka, 613 F.2d 267, 274 (10th Cir. 1980). This observation is particularly pertinent to the instant case, in which eight instances of employer conduct were charged as violating some or all of three provisions of the statute, and where the hearing consumed ten trial days. In light of these standards, we find it necessary to reverse several of the unfair labor practice charges found by the ALJ. See Parts V(B), VI(A), and IX(A), infra. IV. Single Employer The Board held that SGI and its subsidiaries, SGG and SGR, constituted a “single employer” for the purposes of the Act. There is apparently no dispute as to the criteria upon which the single employer issue is to be determined. “[T]he Board considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise. . .. The controlling criteria, ... are [1] interrelation of operations, [2] common management, [3] centralized control of labor relations and [4] common ownership.” Radio & Television Broadcast Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (per curiam). This court has noted that the Board’s “single employer” conclusion “is ‘essentially a factual one’ and not to be disturbed provided substantial evidence in the record supports the Board’s findings.” NLRB v. C.K. Smith & Co., 569 F.2d 162, 164 (1st Cir. 1977) (noting that “the sale of essentially similar products via similar distribution methods is also probative of integration ’), cert. denied, 436 U.S. 957, 98 S.Ct. 3070, 57 L.Ed.2d 1122 (1978). The “single employer” finding depends on “all the circumstances of the case,” and none of the above factors is controlling. NLRB v: Don Burgess Construction Corp., 596 F.2d 378, 384 (9th Cir.), cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979). Perhaps the most important of the above criteria, in the Board’s eyes, is the degree of centralized control over labor relations policies, although this alone is not determinative. Local 627, Operating Engineers v. NLRB, 518 F.2d 1040, 1046 (D.C. Cir.1975), aff’d in part and vacated in part, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976). In Local 627, the Court of Appeals reversed the Board’s finding of separate employers, relying on the facts that the two companies were wholly-owned operating subsidiaries of the same parent, in related businesses, with an “interchange of key personnel” and some “instances of interchange of employees,” and “a substantial qualitative degree of interrelation of operations and common management — one that we are satisfied would not be found in the arm’s length relationship existing among unintegrated companies.” Id. at 1047. The Supreme Court affirmed the single employer holding. 425 U.S. at 802-03, 96 S.Ct. at 1843-1844. See Royal Typewriter Co. v. NLRB, 533 F.2d 1030, 1043 (8th Cir. 1976) (“A more critical test is whether the controlling company possessed the present and apparent means to exercise its clout in matters of labor negotiations by its divisions or subsidiaries .... ”); Sakrete of Northern California, Inc. v. NLRB, 332 F.2d 902, 907 (9th Cir. 1964) (“If there is overall control of critical matters at the policy level, the fact that there are variances in local management decisions will not defeat application of the ‘single employer’ principle”), cert. denied, 379 U.S. 961, 85 S.Ct. 649, 13 L.Ed.2d 556 (1965). The ALJ found, in support of his conclusion that the Soule companies were a single employer, (1) that the 1976 corporate structure had evolved from a common ancestor, Soule Glass and Paint; (2) that the corporations had an “interlocking relationship,” by virtue of “the interrelation of operations and common flow of management personnel from one corporation to another”; (3) that “the ownership and financial control of the various Soule enterprises rests solidly in the hands of the Soule family, and that the majority stockholder of the SGI [which owns all of the stock of SGG and SGR] is Charles Soule”; (4) that “on limited occasions there was employee interchange” and “interchange of equipment, particularly trucks”; (5) that in certain instances SGG shared premises with another Soule enterprise; and finally (6) as to “the critical factor of centralized control of labor relations,” that “Charles Soule is the person who has and exercises the power to make the major decisions, including labor relations decisions, for the entire Soule complex, including SGG.” Each of these findings is supported by substantial evidence in the record. In each instance the AU based his finding on specific testimony, which he reasonably credited. Since the Board’s findings satisfy each of the criteria set forth in Broadcast Union, supra, we affirm the ALJ’s holding that SGG, SGR, and SGI may be considered a single employer. The AU did not make clear his view of the significance of this holding to the other issues in the case. We note, however, that the single employer finding enhances the relevance, to the labor dispute between SGG and the union, of certain corporate actions whose primary impact occurred beyond the corporate boundaries of SGG (e. g., the wage increase and the creation of SGR), and may provide the basis for corporationwide relief. V. The Wage Increase The AU found, on the basis of Charles Soule’s testimony and the timing and amount of the wage increase, that the granting of 25 cent-per-hour pay increases to non-striking SGI employees on the first day of the strike violated § 8(a)(1) and (5) of the Act. Charles Soule stated that April 12 arrived, and I became very aware of the fact that because . .. certain picket lines were in front of our locations, that maybe it was time to act upon granting a wage increase. So I gathered the information and consulted with my payroll clerk . . . [and] decided that a flat ten dollar, or 25 cent raise per hour was appropriate at that particular time. Charles Soule also testified that annual pay increases for these employees historically had been granted around April 1, that an across-the-board 25 cent-per-hour raise was on the average just under a five percent increase, consistent with the company’s wage policy, and that he was aware of the general status of the negotiations between the SGG and the union on the wage issue. From these facts the ALJ concluded: Under these circumstances there can be little doubt that Respondent’s intention was to emphasize to the strikers at the outset of the strike that it did not pay to support their Union. Alba-Waldensian, Inc., 167 NLRB 695, 696; Chanticleer, Inc., 161 NLRB 241, 252. I find that the Respondent violated Section 8(a)(1) and (5) of the Act on April 12 by granting this unilateral wage increase for nonstriking employees, greater than what was offered to employees in the bargaining unit. A. The § 8(a)(1) Violation Under § 8(a) of the Act, 29 U.S.C. § 158(a), it is an unfair labor practice for an employer “(1) to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section 157 of this title [basically to organize, join unions, bargain collectively, and strike],” and “(5) to refuse to bargain collectively with the representatives of his employees .... ” The elements of a section 8(a)(1) violation are to be determined by reference to an objective test. It is not necessary to show that particular employees actually felt coerced, etc., or that the employer intended to produce the impermissible effect. E. g., Russell Stover Candies, Inc. v. NLRB, 551 F.2d 204, 207-08 (8th Cir. 1977) (reasonable tendency, not actual effect); Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 729 (5th Cir. 1970) (employer motive not an element); cf., Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1114-15 (7th Cir. 1973). Rather, “it is sufficient if the General Counsel can show that the employer’s actions would tend to coerce a reasonable employee.” R. Gorman, Labor Law 132 (1976). In addition, § 8(a)(1) requires a weighing of employer and employee interests. Employer conduct that otherwise tends to interfere, restrain or coerce employees “may be held lawful if it advances a substantial and legitimate company interest in plant safety, efficiency or discipline,” or is “in accordance with plant custom or business necessity.” Id. at 133. “[I]t is only when the interference with § 7 rights outweighs the business justification for the employer’s action that § 8(a)(1) is violated.” Textile Workers Union v. Darlington Manufacturing Co., 380 U.S. 263, 269, 85 S.Ct. 994, 999, 13 L.Ed.2d 827 (1965). It is settled that the grant or withholding of wage increases and other benefits, either discriminatorily or across-the-board to all employees, may violate § 8(a)(1). E. g., NLRB v. Exchange Parts Co., 375 U.S. 405, 409-10, 84 S.Ct. 457, 459-460, 11 L.Ed.2d 435 (1964) (grant of additional benefits to all employees before representation election for purpose of discouraging unionization); NLRB v. Erie Resistor Corp., 373 U.S. 221, 233-36, 83 S.Ct. 1139, 1148-1150, 10 L.Ed.2d 308 (1963) (post-strike award of super-seniority to striker replacements and nonstrikers); NLRB v. Rubatex Corp., 601 F.2d 147, 149-50 (4th Cir.) (post-strike bonus to union and nonunion nonstrikers), cert. denied, 444 U.S. 928, 100 S.Ct. 269, 62 L.Ed.2d 185 (1979); Aero-Motive Manufacturing Co., 195 NLRB 790 (1972), enf’d, 475 F.2d 27 (6th Cir. 1973) (post-strike bonus to non-striking union employees). The timing of such wage increases is a relevant factor in determining whether an employer’s action violates § 8(a)(1). See Russell-Newman Manufacturing Co. v. NLRB, 407 F.2d 247, 251-52 (5th Cir. 1969) (wage increase at nonunion plant just after union won election at company’s other plant violated § 8(a)(1)); NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 268 (2d Cir.), cert. denied, 375 U.S. 834, 84 S.Ct. 47, 11 L.Ed.2d 64 (1963) (unilateral wage increase to all (unionized) employees, announced contemporaneously with strike decision, violated § 8(a)(1) and (5)); NLRB v. Otis Hospital, 545 F.2d 252, 256 (1st Cir. 1976) (withholding promised wage increase from all employees during union organizing campaign violated § 8(a)(1)). The relevant inquiry is whether the wage increase impermissibly discriminated against the union by “demonstrat[ing] for the future the special rewards which lie in store for employees who choose to refrain from protected strike activity,” Aero-Motive, supra, 195 NLRB at 792, and “[bringing] home in concrete fashion to those employees who were aware of it that it did not pay to become associated with the union,” Chanticleer, Inc., 161 NLRB 241, 252 (1966). On the other hand, an employer may lawfully treat differently union and nonunion employees or employees in different bargaining units, where a legitimate business justification is shown for such action, and absent evidence of bad faith or antiunion motive. In Chevron Oil Co. v. NLRB, 442 F.2d 1067 (5th Cir. 1971), during the course of negotiations with the union the company granted nonunion employees wage increases and improved benefits and denied the same to union employees. The court denied enforcement of the Board’s findings of § 8(a)(1) and (3) violations, stating, “. . . in a context of good-faith bargaining, and absent other proof of unlawful motive, an employer is privileged to withhold from organized employees wage increases granted to unorganized employees or condition their grant upon final contract settlement.” Id. at 1074. Similarly, in Omaha Typographical Union v. NLRB, 545 F.2d 1138 (8th Cir. 1976), the court upheld the Board’s dismissal of an 8(a)(1) charge regarding the employer’s grant of selective bonuses to those who had worked long hours during a strike by the union. The court reasoned that “[disparate treatment of workers of different units provides no inference of discrimination .... [T]he bonuses were paid for a legitimate business purpose [i. e., rewarding the extraordinary effort necessary to continue operations] which did not interfere with the exercise ... of the employees’ § 7 rights to engage in strikes.” Id. at 1144 (emphasis added). Although the issue is a close one, we hold that the Board’s conclusion that the wage increase violated § 8(a)(1) is supported by substantial evidence. The timing of the increase (granted on the first day of the strike), its amount (an immediate, retroactive 25 cents-per-hour as compared to the six-month increments of 15 cents, 10 cents, 15 cents and 10 cents offered the union), and the evidence of causation (Charles Soule’s testimony that the pickets prompted the wage increase) all support the conclusion that the employer’s action would tend to interfere with and undermine a reasonable employee’s exercise of the right to strike, and that this effect was at least clearly foreseeable, if not in fact intended. To be sure, there are a number of countervailing factors which might have produced a reasonable conclusion to the contrary. Among these are the fact that the increase was granted only to non-bargaining unit employees of a different corporation who had recently voted to decertify the union, the proffered business justification regarding the consistency of the timing of the increase with past practice, and the fact that the increase was not announced to the union (which could cut both ways). Also, we are troubled by the conclusory manner in which the ALJ asserts his certainty as to the employer’s antiunion intention, and his reliance on a patently distinguishable case. Notwithstanding these concerns, our review is a limited one, and we may not substitute our judgment for that of the Board. There is substantial evidence in the record supporting the ALJ’s findings, and, giving due deference to the Board’s experience and expertise in such matters, we conclude that the ALJ’s inferences as to causation, the probable effect of the wage increase upon the striking employees, and the employer’s motivation are reasonable. Therefore, we affirm the ALJ’s holding that the wage increase violated § 8(a)(1). B. The § 8(a)(5) Violation To the extent that the additional § 8(a)(5) finding has independent force, however, we reverse on due process grounds the ALJ’s holding that the wage increase also violated § 8(a)(5). No § 8(a)(5) violation was charged in the amended complaint with respect to the wage increase. The ALJ, acknowledging this fact, stated as justification that the facts upon which this additional finding of a Section 8(a)(5) violation is based are the same and were fully litigated. It is well established that an employer may violate Section 8(a)(5) of the Act during negotiations by the conduct of its supervisors and agents away from the bargaining table. Chatham Manufacturing Company, 172 NLRB 1948, 1978. Accepting the validity of the latter proposition, we are unable to sustain the § 8(a)(5) finding. Because no explanation is given of how or why the wage increase additionally violated § 8(a)(5), we are unable to determine that this issue was in fact “fully litigated,” notwithstanding the ALJ’s conclu-sory assertion that it was. There is nothing in the record suggesting that the employer had notice at the hearing that its good faith in dealing with the union on and before April 12, 1976 was at issue. To the contrary, there are affirmative indications that the company’s counsel believed and acted on the justifiable assumption that it was not. See part IX infra. Due process forbids the AU from gratuitously injecting new issues into the case and deciding them sua sponte. NLRB v. Tamper, Inc., supra, 522 F.2d at 789-90. Moreover, on substantive grounds, it is not immediately apparent, in light of Chevron, supra, how granting a wage increase to non-unit non-union employees — with respect to whom there was no duty to bargain with the union — can of itself constitute a refusal to bargain in good faith, absent some other evidence of bad faith not present here. C. Conversion of the Strike It is apparently undisputed, and the ALJ found, that “the strike was called because the wage issue was not settled and therefore was an economic strike at the outset.” However, the ALJ found that the strike was “converted” to an unfair labor practice strike on its first day, April 12, 1976, by the company’s unfair labor practice of granting the wage increase. The ALJ notes that the wage increase was promptly reported to the union pickets by the nonstrikers, and was shortly thereafter discussed at a union membership meeting. A strike begun in support of economic objectives becomes an unfair labor practice strike when the employer commits an intervening unfair labor practice which is found to make the strike last longer than it otherwise would have. E. g., NLRB v. Moore Business Forms, Inc., 574 F.2d 835, 840 (5th Cir. 1978); R. Gorman, supra, at 339. It must be found not only that the employer committed an unfair labor practice after the commencement of the strike, but that as a result the strike was “expanded to include a protest over [the] unfair labor practice[ ],” NLRB v. Top Manufacturing Co., 594 F.2d 223, 225 (9th Cir. 1979), and that settlement of the strike was thereby delayed and the strike prolonged. Moore Business Forms, supra, at 840. The central, and most problematic, element is causation — the effect of the employer’s unlawful conduct on the union and its strike. Was the unfair labor practice a proximate cause of the lengthening of the strike? The burden of proof is on the General Counsel to demonstrate prolongation, and the Board’s determination of conversion is reviewed under the usual substantial evidence standard. R. Gorman, supra, at 340. However, it need not be shown that the employer’s unfair practice was “the sole or even the major cause or aggravating factor of the strike,” but only that it was “a contributing factor.” Moore Business Forms, supra, at 840 (emphasis added). The new issue injected into the bargaining process by the employer’s violation “need not be the sole cause for failure to agree.” Rogers Manufacturing Co. v. NLRB, 486 F.2d 644, 649 (6th Cir. 1973), cert. denied, 416 U.S. 937, 94 S.Ct. 1937, 40 L.Ed.2d 288 (1974). Both objective and subjective factors may be probative of conversion. Applying objective criteria, the Board and reviewing court may properly consider the probable impact of the type of unfair labor practice in question on reasonable strikers in the relevant context. Applying subjective criteria, the Board and court may give substantial weight to the strikers’ own characterization of their motive for continuing to strike after the unfair labor practice. Did they continue to view the strike as economic or did their focus shift to protesting the employer’s unlawful conduct? See NLRB v. Broadmoor Lumber Co., 578 F.2d 238, 242 (9th Cir. 1978); NLRB v. Colonial Haven Nursing Home, Inc., 542 F.2d 691, 703 (7th Cir. 1976). However, in examining the union’s characterization of the purpose of the strike, the Board and court must be wary of self-serving rhetoric of sophisticated union officials and members inconsistent with the true factual context. See Colonial Haven, supra, at 705; Winter Garden Citrus Products Corp. v. NLRB, 238 F.2d 128, 130 (5th Cir. 1956). On the record before us, we are unable to sustain the Board’s finding that the strike was converted by the April 12, 1976 wage increase. Although we have held that the wage increase was an unfair labor practice, our review does not disclose substantial evidence that this violation prolonged the strike. The ALJ’s finding of conversion is both ambiguous and conclusory, see note 12 supra, and contains no finding as to causation or any discussion at all of evidence as to the effect of learning of the wage increase upon the strikers. The only direct evidence bearing on the issue is the uncorroborated testimony of union business agent Walter Dolbow, whom the AU credited generally, that the wage increase was discussed “at length” at the union membership meeting held about a week after April 12 and that the membership “agreed that they would not go back at the wage package that the company had presented. They felt that if they could give the non-striking employees this kind of an increase, we should have been at least offered the same thing” (emphasis added). Dolbow also testified that the membership was “all steamed up” at the meeting over the fact that management and SGI employees “were doing our work.” Thus, it appears that the wage increase was only one of the things about which the members were upset in the first week of the strike. Fully crediting Dolbow’s testimony and taking it at face value establishes that (1) the union would not accept the company’s wage proposal (the unacceptability of which was the undisputed cause of the strike) and would remain on strike until the company increased its offer by some unspecified amount, and (2) that the 25 cent increase to the nonstrikers effectively set a “floor” below which the union, it can be inferred, would not settle. Cf. NLRB v. Brazos Electric Power Coop., 615 F.2d 1100, 1101 (5th Cir. 1980). The first proposition merely reaffirms the economic nature of the strike. The most that could be inferred from the second, standing alone, is that the wage increase may have “aggravated [the company’s] differences with the Union” on the crucial wage issue, Kohler Co., 128 NLRB 1062, 1083-84 (1960), and thereby caused the union to hold out for a higher offer or to persist with higher demands than it otherwise would have. In context and without some further corroboration in the record, however, the latter inference is an unduly tenuous and speculative basis on which to hinge the Board’s determination of the fundamental nature of the strike and the harsh remedial consequences that flow from such a determination. Given the scant and equivocal evidence of the union’s contemporaneous reaction to the wage increase, it is appropriate to look to subsequent events and the overall context of the strike for indications as to whether the wage increase in fact prolonged the strike. The record of the bargaining sessions after April 12 belies the claim that the 25 cent-per-hour wage increase prolonged the strike. The union’s final pre-strike wage demand was an immediate $1.10-per-hour increase for a one year contract, a demand company attorney Levenson testified the union was “very serious about,” because the SGG glaziers “felt themselves low men on the totem pole, in comparison with the whole country’s glaziers.” Thus, it appears that the union’s relatively high wage demand, as compared to previous increases, was not mere window dressing, but was a sincere position based on the strikers’ perception that they were substantially underpaid. That the union’s predominant, if not sole, concern after April 12 remained improving substantially its members’ wages, rather than protesting or redressing the company’s favorable treatment of the nonstrikers, is indicated by Walter Dolbow’s testimony regarding the first post-strike bargaining session on May 6, 1976. Dolbow stated that “[w]e were determined to increase our wages .... We wanted a decent increase”; and that “Jim [Holcroft, the Union’s chief negotiator] stated that the main problem was money and our members were adamant to the point that we were not going to stay at the low point that we had been put by the company.” Other union negotiators subsequently reiterated that wages were the critical issue, and for some time refused to discuss other issues. However, there is no indication in the record that the wage increase to nonstrikers was a major source of dispute or topic of discussion at any bargaining session, that it was used as a point of reference by the Union’s negotiators for their demands, or that the wage increase was ever even discussed at the bargaining table. Indeed, it was not until July 27, 1976 that the union filed an unfair labor practice charge which included the wage increase. Moreover, Dolbow testified that in February, 1977 (after 10 months of striking and 4 sets of unfair labor practice charges) he appeared on television news and told the reporter “something to the effect that the men on that job (being picketed) were working for substandard wages and that we were on strike for more money.” Although the union eventually modified and reduced its wage demands, with the exception of its short-lived proposal on May 7 (for a three year contract with annual increments of 26$ and 26$, 29$ and 29$, and 54$), the union persisted in demanding a wage increase of the order of magnitude originally demanded and a one-year contract. After reducing its wage demands to 90 cents/one-year June 18 and to 80 cents/one-year on August 27, the union’s final proposal, made on October 18, was 80 cents-per-year over a two-year contract. The company consistently insisted on a two-year contract, and increased its 15$/10$/15$/10$ prestrike offer only once, on May 7, to 20$/15$/21$/15$. Thus, it is fair to say that the parties never got close to agreement on the wage issue, and that the two sides’ proposals were not even in the same ballpark. The union’s final annual raise demand was 2.3 times the company’s final annual offer, and that is only when the six month increments are aggregated. There is no indication whatsoever that the union would have settled for anything like the one-shot 25 cent increase granted to the nonstrikers. Nor is there any evidence that but for the April 12 wage increase the union would have lowered its demands or that the strike otherwise would have been settled sooner. Rather, the record taken as a whole supports the conclusion that what caused and prolonged this protracted strike was the company’s lawful adherence to a relatively low wage offer and the union’s lawful adherence to a relatively high wage demand. As discussed below, § 8(d) of the Act, 29 U.S.C. § 158(d), explicitly states that the duty to bargain in good faith “does not compel either party to agree to a proposal or require the making of a concession.” “Adamant insistence on a bargaining position ... is not in itself a refusal to bargain in good faith.” Chevron Oil Co. v. NLRB, supra, 442 F.2d at 1072. For these reasons we hold that the wage increase did not convert the union’s economic strike to an unfair labor practice strike on April 12, 1976. Whether subsequent unlawful conduct by the company might have converted the strike at a later date will be considered below. VI. Unilateral Action: Reneging, Plant Closings, and Replacement Work Transfer The ALJ found that the company violated § 8(a)(5) and (1) of the Act by: reneging on its agreement with the Union concerning the three wage zone clause, [2] by unilaterally closing its Lewiston-Waterville operations without fully revealing and discussing all the effects of the closure on the employees, and [3] by unilaterally and permanently assigning bargaining unit work to [SGR] without advance notice and bargaining with the Union prior to the time this change was placed in effect. The ALJ found that each of these actions was “related” and was part of Charles Soule’s overall plan to restructure the Soule companies’ operations. We consider each of these findings sequentially. A. “Reneging” on Bargaining Commitments In appropriate circumstances, a party’s “reneging on commitments already made in ongoing negotiations” may be held to violate § 8(a)(5). R. Gorman, supra, at 408. As Professor Gorman explains, If, for example, a tentative agreement is reached on a number of bargaining items, a refusal to honor that agreement at a later date without good reason may be viewed as an indicator of bad faith. Thus, if the employer . . . repudiates understandings already arrived at, abruptly changes its positions without any announced reason, or interposes new demands not raised earlier, this conduct will destroy not only amicability at the bargaining table but also the premises on which bargaining had progressed, and will protract the negotiations and delay settlement. Id. (emphasis added). See, e. g., San Antonio Machine & Supply Corp. v. NLRB, 363 F.2d 633, 641 (5th Cir. 1966) (significant “reversal of position” on seniority clause “indicative of a lack of good faith”). However, “by showing that the earlier negotiations had not clearly resulted in agreement, or that an earlier understanding was intended to be conditioned on the resolution of other disputed issues, or that there were other good reasons to modify one’s bargaining position” a party may negate a finding of bad faith bargaining. R. Gorman, supra, at 409. See Food Service Co., 202 NLRB 790, 803 (1973). Cf. NLRB v. Randle-Eastern Ambulance Service, Inc., 584 F.2d 720, 726 (5th Cir. 1978) (context of shifting balance of bargaining strength justified company’s withdrawal of previously agreed-to proposals; Board’s § 8(a)(5) finding reversed); NLRB v. Tomco Communications, Inc., 567 F.2d 871, 883 (9th Cir. 1978) (distinguishing “offers” from concessions; “Absent abuse not present here, it is perfectly legitimate for a party to retract a proposal before the other side has accepted it.”). Both on due process grounds and because it is not supported by substantial evidence, we reverse the ALJ’s finding that the company’s alleged “reneging” violated § 8(a)(5). First of all, there was no such charge in the amended complaint. The reason for this omission becomes clear upon a careful examination of certain exhibits in the record. In a charge filed on June 8, 1976, the union alleged that the company had engaged in an unlawful “course of conduct, including but not limited to its announcement of a change of position with respect to items previously agreed on.” The Regional Director refused to issue a complaint on this charge. By letter of February 23,1977, in affirming the Regional Director’s refusal to issue a complaint on this charge, the Board’s General Counsel stated, “absent bad faith, which we do not find here, an Employer, following a strike, may lawfully repudiate previously-made bargaining concessions” (emphasis added). Secondly, there was testimony by negotiators for both the company and the union, not discredited, contradicted, or even mentioned by the ALJ, that the parties were negotiating subject to a mutual initial understanding that all agreements on none-conomic issues were tentative until a final agreement had been reached on all issues. Finally, a withdrawal of a previous agreement is indicative of bad faith bargaining only where such action is arbitrary and not supported by a reasonable justification. Here, the company’s change of position with respect to the number of wage zones was based on its plan, also announced at the May 6 negotiating session, to close SGG’s Lewiston and Waterville warehouses for economic reasons, leaving only two bases of operations (Portland and Bangor) for SGG. Thus, it cannot be said that the company modified its position “without good reason.” B. Unilateral Action Generally In general, an employer’s “unilateral action” with respect to mandatory subjects of collective bargaining under a collective bargaining agreement is considered an unlawful refusal to bargain. “[A]n employer’s unilateral change in conditions of employment under negotiation is ... a violation of § 8(a)(5), for it is a circumvention of the duty to negotiate which frustrates the objectives of § 8(a)(5) much as does a flat refusal.” NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962) (unilateral changes regarding automatic wage increases, sick leave benefits, and merit pay increases during contract negotiations). Perhaps the leading case on unilateral action is Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), which held that a company’s “contracting out” of all plant maintenance work previously done by bargaining unit employees, without bargaining, violated § 8(a)(5), where unit employees were replaced by those of an independent contractor doing the same work. The Court reasoned that since the Company’s decision “did not alter [its] basic operation, ... to require the employer to bargain about the matter would not significantly abridge his freedom to manage the business,” 379 U.S. at 213, 85 S.Ct. at 404; and that national labor policy required “that the union be afforded an opportunity to meet management’s legitimate complaints that its maintenance was unduly costly.” Id. at 214, 85 S.Ct. at 405. In NLRB v. W.R. Grace & Co., 571 F.2d 279, 282 (5th Cir. 1978), the court stated: It is well-settled that an employer violates its duty to bargain collectively when it institutes changes in employment conditions without first consulting the union .... [However,] [t]he employer’s power to alter working conditions in his plant is not contingent upon union agreement with his proposed change. The company has only to notify the union before effecting the change so as to give the union a meaningful chance to offer counter-proposals and counter-arguments. (emphasis added; citations omitted) In Grace, which involved the company’s decision to discontinue a product for economic reasons, with layoffs and elimination of a shift, the court held: “The failure to notify or refusal to bargain with the union over the effects of management decisions to limit production or otherwise alter operations violates Section 8(a)(5) and (1) of the Act.” Id. at 283. Good faith bargaining requires timely notice and a meaningful opportunity to bargain regarding the employer’s proposed changes in working conditions, since “ ‘[n]o genuine bargaining .. . can be conducted where [the] decision has already been made and implemented.’ ” International Ladies Garment Workers Union v. NLRB, 463 F.2d 907, 919 (D.C.Cir.1972). Thus, “[n]otice of a fait accompli,” regarding a matter as to which the employer is obligated to bargain to impasse, violates § 8(a)(5). Id.; see Metromedia, Inc., KMBC-TV v. NLRB, 586 F.2d 1182, 1189 (8th Cir. 1978). As is clear from the above discussion, in some contexts an employer’s “unilateral” action ordinarily will not violate § 8(a)(5). These situations include unilateral actions where: (1) they relate to matters outside the mandatory bargaining subjects, such as the wages of non-unit, non-union employees, Allied Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 171-78, 92 S.Ct. 383, 393-397, 30 L.Ed.2d 341 (1971) (collective bargaining obligation under § 8(d) extends only to “terms and conditions of employment” of employees in appropriate bargaining unit); (2) the employer has bargained in good faith to impasse on the issue, e. g., NLRB v. U.S. Sonics Corp., 312 F.2d 610, 615 (1st Cir. 1963); (3) the changes merely preserve the “dynamic status quo,” consistently with past policies and practices, see R. Gorman, supra, at 450-54; (4) the union has made a “clear and unmistakable waiver” of its right to bargain on the issue, e. g., Metromedia, supra, 586 F.2d at 1189; R. Gorman, supra, at 466-69; and (5) the actions concern certain major business decisions involving fundamental changes in the scope, nature, or mode of operation of the business, or the commitment of investment capital, see Machinists and Aerospace Workers v. Northeast Airlines, Inc., 473 F.2d 549,557 (1st Cir.), cert. denied, 409 U.S. 845, 93 S.Ct. 48, 34 L.Ed.2d 85 (1972) (no duty to bargain regarding merger); Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263, 268-69, 85 S.Ct. 994, 998-999, 13 L.Ed.2d 827 (1965) (closing entire business not unfair labor practice; “some employer decisions are so peculiarly matters of management prerogative that they would never constitute violations of § 8(a)(1)”). See generally R. Gorman, supra, at 443-45. The applicability of these exceptions is discussed below. C. The Warehouse Closing As quoted above, the ALJ found that the company violated § 8(a)(5) and (1) “by unilaterally closing its Lewiston-Waterville operations without fully revealing and discussing all the effects of this closure on the employees.” The ALJ found, in support of this conclusion, that by the May 6, 1976 bargaining session, “[t]he Respondent had already decided to close its Lewiston-Waterville facility and work the crews from their homes,” and that at the May 6 session the company “presented the Union with a fait accompli, Lewiston-Waterville was closing, and the crews were going to work out of their homes.” With regard to bargaining on the subject, the ALJ found that [although it then “discussed” with the Union some of the effects of the closing ... on the employees, there was no meaningful bargaining since Respondent had unilaterally decided upon the effects as well. Furthermore, Respondent did not discuss all of those effects, which included its planned (SGR) operations. Thus, the Respondent unilaterally changed important working conditions of its bargaining unit employees at Lewi-ston-Waterville without advance notice and bargaining about all of the important effects of this decision on its employees. A subcategory of the law of “unilateral actions” involves the special problem of plant closings. As summarized by Professor Gorman, [Rjegardless of whether the employer is obligated to bargain about such major decisions as going out of business, closing down one of several plants, or subcontracting work currently done by its employees, it must bargain about the effects or impact of those decisions, such as severance pay or transfer to other company jobs.or locations. R. Gorman, supra, at 499 (emphasis added). Thus, there is an important distinction between the duty to bargain about a particular business decision affecting unit employees and the duty to bargain about the decision’s effects on the unit employees; a distinction which at times is difficult to draw. In this case, however, it is only bargaining with respect to the decision’s effects, not the underlying decision, that is at issue. In a number of cases involving business changes such as the termination of a particular product line or the closing of one of several plants, courts have held that the employer is required to give the union notice and the opportunity to bargain with respect to the effects of the decision on unit employees before implementing the change. E. g., NLRB v. W.R. Grace & Co., supra, 571 F.2d 279 (product discontinuation, with layoffs and shift changes); International Union, UAW v. NLRB, 470 F.2d 422 (D.C. Cir.1972) (sale of factory-owned truck dealership with terminations of all employees; no violation where company official discussed and attempted to mitigate effects with union on and after date of transfer); Ladies Garment Workers v. NLRB, supra, 463 F.2d 907 (plant relocation; under circumstances notice and bargaining regarding both decision and effects required); NLRB v. Acme Industrial Products, Inc., 439 F.2d 40 (6th Cir. 1971) (relocation of part of manufacturing operations from old to new plant for economic reasons; no violations where “employer stands ready to negotiate with the Union in respect to any and all (effects) of its move”); Weltronic Co. v. NLRB, 419 F.2d 1120 (6th Cir. 1969) (transfer of electronic assembly work from union to nonunion plant, with no layoffs), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed.2d 270 (1970). Nevertheless, as this court observed in Northeast Airlines, supra “[t]o allow the Union to force a company to bargain about the effects of its management decisions to the extent of forcing it to forego the proposed change in operations would be in effect to take away from it the freedom to make the decision in the first place.” 473 F.2d at 558. A threshold issue is whether petitioners had sufficient notice that the plant closing was in issue, and whether this issue was “fully litigated” so as to comport with due process. As noted above, there is no mention of the Lewiston-Waterville plant closing as an § 8(a)(5) violation in the amended complaint. However, in this instance we hold that the plant closing issue was fully and fairly litigated. Several witnesses were questioned by both counsel as to the reasons for, and timing, announcement, implementation, permanency, and bargaining table discussion of the Lewiston-Waterville closing. There is no merit to the c