National Labor Relations Board v. General Electric Company, and International Union of Electrical, Radio, and MacHine Workers, Afl-Cio, Intervenor ( 1969 )

(concurring and dissenting).

I .agree with my brothers that by refusing to furnish cost information and by bargaining with locals during the strike, GE violated § 8(a) (5) of the National Labor Relations Act. I do not believe it also violated the Act by submitting a contributory personal accident insurance plan to the Union and declining to bargain about it until the time for reopening of negotiations. I think also, along lines similar to Member Jenkins’ concurring opinion, that other specific conduct of the Company, such as that in regard to the effective date of the pension plan, pp. 12-13, and the form of the strike settlement agreement, p. 17, could properly have been condemned and an appropriate order framed. However, the majority of the Board was at pains to emphasize that its finding of overall bad faith was not based upon identifiable acts or failures to act that GE could avoid in the future but rather

upon our review of (1) the Respondent’s entire course of conduct, (2) its failure to furnish relevant information, (3) its attempts to deal separately with locals and to bypass the national bargaining representative, (4) the manner of its presentation of the accident insurance proposal, (5) the disparagement of the Union as bargaining representative by the communication program, (6) its conduct of the negotiations themselves, and (7) its attitude or approach as revealed by all these factors.¹

Such attempts to restrict communications (item 5) and lay down standards with respect to bargaining techniques, attitudes and approaches (items (6) and (7)), bring the Board into collision with § 8(c) and (d) and the important policies they embody. It is easy to understand that anyone reviewing this enormous record would emerge with a good deal of sympathy for the situation of the Union and distaste for the tactics of the employer; no one likes to see a person who regards himself as in a strong position pushing it unduly, even though the fairness of GE’s offer is not challenged. But the Act does not empower the Board to translate such feelings into a finding of an unfair labor practice, and judicial sanction of such efforts to intrude into areas which Congress left to the parties may in the long run be quite as detrimental to unions as to employers. See N. L. R. B. v. Insurance Agents’ Int’l Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960).

I.

Before I elaborate my doubts with respect to the determination of overall bad faith, it will be desirable to outline the basis for my disagreement with the conclusion that GE’s proffer of a personal accident insurance plan on a contributory basis, before the beginning of the contractual period for bargaining, constituted an independent violation of § 8 (a) (5). While the Board’s order contains no specific reference to this, at least three members relied heavily upon it for their conclusion of overall lack of good faith (see item (4)), as does the lead opinion here. If this conclusion is wrong, as I think it to be, such an important element is removed from the “totality of the circumstances” on which the Board relied that, on this ground alone, we could not properly enforce the order as to overall bad faith.

Discussion of the issue must begin by clearly delineating what it is not. No one is suggesting, as the majority intimates, p. 747, that GE could unilaterally change the terms of an agreed insurance plan to the detriment of its workers. Still less is anyone suggesting, see p. 748, that GE could confer a benefit only on non-union members. It is not even claimed that the Company could make a benefit effective for employees represented by a union without advising the union and obtaining the latter’s consent. The narrow issue is whether an employer is prohibited from even putting such a proposal to a union at a time when bargaining is not required under the contract unless he is willing to bargain about it then and there.

Section 8(a) (5), as elaborated in § 8(d), requires the employer and the representatives 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 * * When an agreement has been i’eached, its provisions define what constitute “reasonable times” for bargaining. Here GE and the Union provided in the 1955 Pension and Insurance Agreement in the most explicit terms that “each of the parties voluntarily and unqualifiedly hereby waives any and all rights to require that the other party or parties hereto bargain collectively during the terms of this Agreement, with respect to any such subjects or matters whether or not such matters are covered by this Agreement.” See n. 4 to the majority opinion. Unless language in a labor agreement is to be denied its plain meaning, this protects GE’s conduct here. I wholly fail to perceive how the Company's further insistence on a specific renunciation by the Union of strikes, etc., to enforce modifications of insurance and pension benefits outside of a bargaining period in any way qualifies the language I have quoted.

N. L. R. B. v. Katz, 869 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962), the decision relied upon to support the conclusion that GE’s proffer of a contributory personal accident insurance plan violated § 8(a) (5), is more striking in its differences than in its resemblances. There, during a period of bargaining, the employer made three unilateral changes with respect to terms and conditions of employment; the Court’s decision, scarcely a surprising one, was that this constituted “a refusal to negotiate in fact.” 369 U.S. at 743, 82 S.Ct. at 1111. Here GE merely submitted a proposal and did this at a time when it had no duty to bargain at all.

While I can understand that an employer’s refusal to bargain about a benefit he has voluntarily proffered during the term of an agreement may not be pleasing to a union, that does not violate the Act, at least when the contract expressly permits it. The majority attempts to escalate the problems by suggesting that the course here followed would create “divisive tendencies within the Union,” and even enable the “Company to pick the Union apart piece by piece.” P. 747. These comments, unsupported by the record, are singularly inappropriate as applied to the offer of a contributory personal accident insurance plan which employees with hazardous occupations were free to accept and those with routine duties to decline, which could hardly affect the Union’s position on the next negotiating round since it cost GE nothing other than the costs of administration, where the Company refused to make capital of the Union’s rejection, and when the Union considered the issue so unimportant that it did not even bring the matter up for negotiations during the formal bargaining sessions. One could also argue, in opposition to the majority’s position, that the Board’s determination offends the policy, although not indeed the letter, of the lengthy proviso to § 8(d), since requiring an employer to bargain in a situation such as that presented here, with the corollary that the union may support its bargaining demands with strike threats or strikes, see NLRB v. Lion Oil Co., 352 U.S. 282, 77 S.Ct. 330, 1 L.Ed.2d 331 (1957), undermines the broad purpose of enabling such modifications as are made during the term of an agreement to be made peaceably. However, it is enough for me that nothing in the Act or the court decisions under it can fairly be read to prohibit an employer, during the period of a contract when bargaining would not otherwise be required, from asking a union whether it will consent to his giving a benefit to the employees whom it represents. Cf. N. L. R. B. v. Honolulu Star-Bulletin, Inc., 372 F.2d 691 (9 Cir. 1967).

II.

The objective of § 8(a) (5), as stated by the Senate Committee on Education and Labor, S.Rep. No. 573, 74th Cong. 1st Sess. 12 (1935), was to impose a duty on employers “to recognize such representatives as they have been designated * * * and to negotiate with them in a bona fide effort to arrive at a collective bargaining agreement * * * ” In 1947 the fear was expressed in Congress that the N. L. R. B. “has gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counterproposals that he may or may not make.” H. R.Rep. No. 245, 80th Cong. 1st Sess. 19 (1947). As a result Congress enacted § 8(d), expressly providing that the obligation to bargain “does not compel either party to agree to a proposal or require the making of a concession.” See N. L. R. B. v. American Nat’l Ins. Co., 343 U.S. 395, 402-404, 72 S.Ct. 824, 96 L.Ed. 1027 (1952). At the same time, in the light of other actions of the Board, Congress added § 8(c), declaring in unequivocal terms that:

“The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic; or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.”

The great bulk of the Board’s salutary decisions under § 8(a) (5) have been in areas far removed from any possibility of conflict with § 8(c) or (d). Perhaps the most important single group consists of cases where the employer has refused to deal with a union at all or, as in GE’s dealing with locals, has negotiated over its head; in such instances, although the Board normally issues a broad order to bargain in good faith, no one supposes that the order dictates just how the bargaining shall be conducted. Beyond that the Board, with the approval of the Supreme Court, has usefully identified a considerable number of practices constituting per se violations. These include refusal to sign a written contract embodying an agreement, H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309 (1941), a practice now specifically prohibited by § 8(d); offering employees, during the course of negotiation, more than was offered through the union, N. L. R. B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320 (1949) ; making unilateral changes while bargaining is in process, N. L. R. B. v. Katz, supra, 369 U.S. 736, 82 S.Ct. 1107; refusing to furnish available information needed by the union to evaluate a bargaining position, N. L. R. B. v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956); and insisting as a condition of agreement upon a subject outside the area of mandatory collective bargaining, N. L. R. B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958).

The danger of collision with § 8(c) or (d) arises only when the Board makes a finding of violation although the parties have sat down with each other and have not engaged in any proscribed tactic. Still I have no difficulty with the Board’s making a finding of bad faith based on an entire course of conduct so long as the standard of bad faith is, in Judge Magruder’s well-known phrase, a “desire not to reach an agreement with the Union.” N. L. R. B. v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (1 Cir.), cert. denied, 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391 (1953). In such instances, the difficulties inevitable in an examination of the “totality of the circumstances” and an order based upon them are outweighed by the definiteness of the standard, the consequent feasibility of compliance, and the necessity for such an order if the employer’s duty to recognize the union is to be carried out in substance as well as in form. See, e. g., N. L. R. B. v. Montgomery Ward & Co., 133 F.2d 676, 146 A.L.R. 1045 (9th Cir. 1943).^la However, as Professor Cox remarked in a notable article which has been cited with approval by the Supreme Court, N. L. R. B. v. Insurance Agents’ Union, supra, 361 U.S. at 489-490, 80 S.Ct. 419, and has not suffered from the lapse of a decade, it is “doubtful whether much is gained by retrospective review of the negotiations when the parties have actually bargained together.” The Duty to Bargain in Good Faith, 71 Harv.L. Rev. 1401, 1439 (1958). Here the General Counsel conceded that GE entertained no such prohibited desire and, despite the majority’s innuendoes concerning antiunion animus, the Trial Examiner rightly observed that no claim was “made in this case that the respondent was seeking to rid itself of the Union,” with which it had been dealing for many years and expected to deal for many more.

The only prior court decision that has approved a finding of overall bad faith when there was a desire to reach an agreement is United Steelworkers of America v. N. L. R. B., 390 F.2d 846 (D.C. Cir. 1967), cert. denied, Roanoke, Iron & Bridge Works v. N. L. R. B., 391 U.S. 904, 88 S.Ct. 1654, 20 L.Ed.2d 419 (1968), a decision rendered over the dissent of Chief Justice (then Judge) Burger. However one may regard that decision, the Board’s case was far stronger than here. The employer had refused to budge from an adamant position against a voluntary check-off although it had granted this to a more favored union three years before, had propagandized the employees that a previous similar refusal on its part had destroyed a union, and had advanced no business reasons whatever, “all in a context of vigorous anti-union animus.” 390 F.2d at 852. There was thus considerable basis for inferring that the employer was seeking eventually to rid itself of the union despite its desire to reach an agreement at the moment. Yet even in that context Judge Burger referred to the Board’s postulating “the novel and internally inconsistent proposition that a bargainer can be found to have refused to bargain in good faith even while at the same time it is found to have engaged in bargaining in a good faith effort to reach an agreement and has actually reached a final and binding contract,” 390 F.2d at 853.²

Although both the Board and the majority here have been quite explicit in describing what they are not deciding, they are far less informative with respect to what they are. The closest the lead opinion comes to this is its statement (p. 762) that its basis for upholding the order with respect to overall bad faith is “that an employer may not so combine ‘take-it-or-leave-it’ bargaining methods with a widely publicized stance of unbending firmness that he is himself unable to alter a position once taken.” My brother Waterman, though avowedly concurring fully, takes what seems to me a quite different view, namely, that GE’s “bargaining methods” were entirely lawful and only its allegedly publicization of a “stance of unbending firmness” was unfair.

While the lead opinion makes much use of the “take-it-or-leave-it” phrase, it never defines this. I should suppose it meant a resolve to adhere to a position without even listening to and considering the views of the other side. To go further and say that a party, whether employer or union, who, after listening to and considering such proposals, violates § 8(a) (5) if he rejects them because of confidence in his own bargaining power, would ignore the explicit command of § 8(d) — as Judge Waterman recognizes. Although the taking of such a hard position may be unattractive, the attitude is one which the law allows an employer or a union to take, despite the dictum in Justice Frankfurter’s concurring opinion in N. L. R. B. v. Truitt Mfg. Co., supra, 351 U.S. at 154, 76 S.Ct. 753.

It surely cannot be, for example, that a union intent on imposing area standards violates § 8(b) (3 if it refuses to heed the well-documented presentation of an employer who insists that acceptance of them will drive him out of business. Neither can it be that a union violates § 8(b) (3) if it insists on its demands because it knows the employer simply cannot stand a strike.³ It must be equally true that an employer is not to be condemned for “take-it-or-leave-it” bargaining when, after discussing the union’s proposals and supporting arguments, he formulates what he considers a sufficiently attractive offer and refuses to alter it unless convinced an alteration is “right.” Hence the Board correctly declined to affix the “take-it- or-leave-it” label which my brother Kaufman uses.

Once we rid ourselves of the prejudice inevitably engendered by this catchphrase, we reach the argument that a party violates § 8(a) (5) if he gets himself into a situation where he is “unable to alter a position once taken,” even though he would otherwise be willing to do so.

While this sounds fair enough, as does the Board’s somewhat similar remark about the continuing duty to give “unfettered consideration,” it would seemingly outlaw practices that no one has considered illegal up to this time. A union that has won a favorable contract from one employer and has broadcast that it will take no less from others seems to me to be quite as “unable to alter a position once taken” as GE was here, yet I should not have supposed this violated the Act. So also with an employer who has negotiated a contract with one union and has proclaimed that he will do no better for others. To say that taking such positions violates § 8(b) (3) or 8(a) (5) is steering a collision course with § 8(d).

Moreover, I find no substantial evidence that GE got itself into the predicament the majority depicts. The best evidence to the contrary consists of the changes the Company in fact made. In response to Union objections to the offer as initially presented informally, GE modified it to include a wage reopener on April 1, 1962, as an alternative to the automatic 4% increase it had proposed. On September 9, after it had publicized its offer and in response to feelers from some Union negotiators, it advanced the option of substituting an additional holiday and a fourth week of vacation for employees with 25 years of service in exchange for 1% of this 4%.⁴ Twelve days later it agreed to reduce the costs of the Union’s representatives’ pension plan from 6% of the first $4800 and 15% thereafter to 4% and -10% — which the Union’s chief negotiator called “an excellent proposition.” Even though, as the majority states, the reduction was responsive to new actuarial calculations, this shows that GE was not using a mere form of words when it said it would make a change if convinced one was “right.” Finally, GE yielded on a clause, Exclusion K, in its insurance plan⁵ which the chairman of the Union negotiating committee had characterized as having “caused more dissatisfaction among the people than anything else.” The Union's insurance specialist called this “a good improvement.”

The Union’s appraisals of the value of these concessions at the time is more impressive than the depreciation of them nine years after the event. Moreover, in appraising such concessions it is important to remember Judge Burger’s caution that, although it may sometimes be necessary to consider “the reasonableness of parties’ positions on particular issues to determine whether, under all the circumstances of the negotiation, a particular bargaining position was adopted for the purpose of frustrating negotiation generally and thus preventing an agreement,” “the courts have been vigilant lest the examination of parties’ positions to test good faith become a process of judging, directly or indirectly, the substantive terms of their proposals." United States Steelworkers of America v. N. L. R. B., swpra, 390 F.2d at 853 (dissenting opinion). By characterizing some of the changes as “of quite minor significance,” the lead opinion does precisely that.

I find nothing on the other side substantial enough to outweigh this evidence that GE remained able to adopt changes it thought to be “right.” Much is made of the September 28 exchange between Jandreau, Moore, and Hilbert over a Union proposal that the Income Extension Aid funds and part of the money for a wage increase provided in the Company offer be used instead for Supplementary Unemployment Benefits (SUB). The lead opinion, following the Trial Examiner, misinterprets Hilbert’s remarks. Hilbert’s objection to the Union proposal was that it came at so late a date that the Union could not seriously expect the Company to act upon it. He said that there were only three reasons why the Company might change its offer at such a time; if they had deliberately held something back for horse-trading; if they had made an error in deciding what was “right”; or if they were so afraid of a strike that they would give in even though they continued to believe that -their offer was “right.” If the first or last reasons had applied, he said, GE would indeed look foolish in the eyes of its employees and the public at large, but they did not apply.⁶

III.

An essential element to the Board’s conclusion of GE’s offending was the Company’s publicity campaign. “The disparagement of the Union as bargaining representative” is item (5) in the Board’s bill of particulars. The Board elaborated this by saying it is unlawful “for an employer to mount a campaign, as Respondent did, both before and during negotiations, for the purpose of disparaging and discrediting the statutory representative in the eyes of its employees, to exert pressure on the representative to submit to the will of the employer, and to create the impression that the employer rather than the union is the true protector of the employees’ interests.”

I find no warrant for such a holding in the language of the statute, its legislative history or decisions construing it. GE’s communications fit snugly under the phrase “views, argument, or opinion” in § 8(c). The very archetypes of what Congress had in mind were communications by an employer to his workers designed to influence their decisions contrary to union views, and communications by unions to workers designed to influence their decisions contrary to employer views. The statute draws no distinctions between communications by an employer in an effort to head off organization ⁷ and communications after organization intended to show that he is doing right by his employees and will do no more under the threat of a strike. Congress had enough faith in the common sense of the American working man to believe he did not need — or want — to be shielded by a government agency from hearing whatever arguments employers or unions desired to make to him. Freedom of choice by employees after hearing all relevant arguments is the cornerstone of the National Labor Relations Act.

As for the legislative history of § 8(c), the full text of Senator Taft’s remarks in this context was:

The purpose of this language is to make it clear that the Board is not to use any utterances containing [no] threats or promises of benefits as either an unfair practice standing alone or as making some act which would otherwise not be an unfair labor practice, an unfair labor practice. It should be noted that this subsection is limited to “views, argument, or opinions” and does not cover instructions, directions, or other statements which might be deemed admissions under ordinary rules of evidence. In other words, this section does not make incompetent, evidence which would ordinarily be deemed relevant and admissible in courts of law. 2 Legislative History of the LMRA, 1947, at 1541 (1948).

It is plain that GE’s communications came under the protection of the statute, and not the exception which Senator Taft described. The word “relevant” in Senator Taft’s speech cannot be blown up to such a degree as to render the amendment largely nugatory. The case is in sharp contrast with NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 268 (2 Cir.), cert. denied, 375 U.S. 834, 84 S.Ct. 47, 11 L.Ed.2d 64 (1963), cited by the Board and the majority, where the company’s general manager said that he would “die and go to hell before he would sign a contract” and told his employees to “get those union agitating sons of bitches out of Fitzgerald.” NLRB v. Herman Sausage Co., 275 F.2d 229 (5th Cir. 1960), the only other case cited by the Board in support of this part of its opinion, is equally inapposite.

The Trial Examiner’s criticisms of GE’s communications as being one-sided and “massive,” and as portraying the union negotiators in an unfavorable light, which were endorsed by the Board and are reflected in the lead opinion, see fn. 14, ignore the whole thrust of § 8(c). Although Mr. Justice Black was in dissent in Linn v. United Plant Guard Workers, 383 U.S. 53, 67-68, 86 S.Ct. 657, 665, 15 L.Ed.2d 582 (1966), there was no disagreement with his statement:

When Congress passed the National Labor Relations Act, it must have known, as almost all people do, that in labor disputes both sides are masters ' of the arts of vilification, invective and exaggeration.

It is for unions and employers, not for a government agency, to determine how “massive” their communications shall be.

The Examiner coined a phrase, echoed both by the Board and in the lead opinion, see p. 759, namely, that GE’s communications program was an attempt “to deal with the Union through the employees rather than with the employees through the Union.” Somewhat parallel to this is the opinion’s statement that the Company “deliberately bargain [ed] and communicate [d] as though the Union did not exist, in clear derogation of the Union’s status as exclusive representative of its members under section 9(a),” p. 763. Picturesque characterizations of this sort, at such sharp variance with the record, scarcely aid the quest for a right result. Members of Congress would probably be surprised to learn that being “exclusive representatives” means that interested parties may not go to constituents in an endeavor to influence the representatives to depart from positions they have taken. There can be nothing wrong in an employer’s urging employees to communicate with their representatives simply because the communication is one the representatives do not want to hear. I thus find it impossible to accept the proposition that, by exercising its § 8(c) right to persuade the employees and by encouraging them to exercise their right to persuade their representatives, GE was somehow “ignoring the legitimacy and relevance of the Union’s position as statutory representative of its members” (p. 757).

Apparently accepting this, Judge Waterman would narrow GE’s offending, not only with respect to the publicity program but on the whole issue of overall bad faith, to its communicating “that firmness was one of the company’s independent policies.” The first thing to be said about this is that even if my brother were right, we would not be justified in enforcing the Board’s order on that basis. “An administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.” S. E. C. v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943), and the Board’s opinion leaned so heavily on the Company’s disparagement of the Union that we cannot disregard this on the basis that it would have ruled the same way even had it known it was wrong in its reliance. Moreover, GE certainly could not be sure it would be in compliance if it desisted merely from the one tactic that Judge Waterman condemns. My second difficulty is that his position would seemingly outlaw conduct such as in the eases I have put — where a union “finally” tells workers that it will not take less from one employer than .it has won from another or an employer “finally” proclaims he will give no more to one union than he has to another. The third is that if his or the lead opinion implies that GE's publicity got it into a position where it could not yield even if it was convinced that it should, the necessary factual support does not exist. There is no need to repeat what has been said in the previous section of this opinion on that score. I add only, in response to Judge Waterman’s proposed rationale, that, as I read the Trial Examiner’s report, he made no finding that the publicity had produced any such result. His condemnation of the Company’s “finality” campaign referred solely to communications following the resumption of negotiations after the strike vote, and the sense in which he understood the term “finality” is clarified by his statement that “The repeated mentions of the finality of the offer * * * were coupled throughout * * * [this period] with declarations pointing up the inevitable futility of a strike, regardless of its duration, in the light of the Company’s policy not to give more simply to avert a strike.” (Emphasis added.)

Since a policy not to give in just because of a strike is not a violation of § 8 (a) (5), I cannot understand why communication of that policy to employees should be. The fact that strikes to coerce acceptance of union demands are “part and parcel of the process of collective bargaining,” NLRB v. Insurance Agents’ Union, supra, 361 U.S. at 495, 80 S.Ct. at 430, does not forbid the employer’s doing his best to avoid being coerced by them. This, of course, does not change his duty to continue negotiations and to negotiate in good faith. But so far as economic warfare and vulnerability to it are concerned, the Act allows the parties a maximum of self-protection. No one denies that § 8(c) protects employer communications attempting to persuade employees that they should not strike because the offer fully meets their needs, because union leaders are seeking a strike for personal reasons, or because a strike will cost too much in lost pay. To prohibit an employer from adding that the mere fact of a strike would gain nothing in the way of further concessions would remove his most important and most relevant argument. Yet this is all that GE’s much discussed finality campaign amounted to and, with one insignificant exception, the campaign made the point in the narrowest way it could. GE did not say “If you strike we will automatically lock ourselves into our offer,” but only that GE was not deliberately holding anything back and had to be convinced that its original offer was no longer “right” before it would make a change.⁸

It is doubtless true in labor as in other negotiations that the louder people shout, the harder it becomes for them to change their positions without unacceptable loss of face. In that sense any positive public declaration, whether by an employer or by a union, may run counter to the objective of securing industrial peace by promoting agreement. But the Board has been expressly prohibited from promoting peace by restricting speech. Conformably with the dictates of the First Amendment, Congress, when it enacted § 8(c), determined the dangers that free expression might entail for successful bargaining were a lesser risk than to have the Board police employer or union speech.

IV.

Even if one were to take the benevolent view toward the portion of the Board’s opinion and order relating to overall bad faith that is done by the majority, it is beyond debate that if this decision should stand, it would open up wholly new problem areas in the application of §§ 8(a) (5) and ¿(b) (3). I cannot perceive any sufficient reason for doing this when, as I see it, the order cannot be enforced in any practical sense and deals with events of half a generation ago.

The only standard of conduct set for GE by the Board’s opinion is that a mix of the “fair, firm offer” technique pursued to an unknown point X, plus a communications program pursued to an equally unknown point Y, plus a number of additional items, Zi, Z2, and Z3, is proscribed. This already sufficient confusion is now compounded by the difference in my brothers’ efforts at elucidation.

In view of the general obscurity of what GE is and is not permitted to do, the Company could take little comfort from the majority’s assurance that it will be given a full opportunity to show it has made a good faith effort at compliance before it is held in contempt. In fact, however, no contempt proceeding could be successfully maintained. For the Supreme Court has very recently declared, in the closely related context of an equitable decree with respect to work stoppages, that “The most fundamental postulates of our legal order forbid the imposition of a penalty for disobeying a command that defies comprehension.” International Longshoremen’s Ass’n Local 1291 v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967).⁹

The venerable age this ease has attained is a further reason for declining to churn up waters that already are troubled enough. We are dealing with an alleged unfair labor practice of nine years ago. Four years were taken by the Board to render a decision — itself some indication that Congress never intended to impose any such “herculean task.” Passing over the two years spent in quarrels in the courts over venue and the Union’s right to intervene, three more elapsed before the case was argued to us. Since then there have been two further negotiations, in 1963 and 1966. Another, in which the IUE’s bargaining position has been significantly bolstered by a decision of this court in which I joined, General Electric Co. v. NLRB, 412 F.2d 512 (1969), is now in progress. Although the unions have called a strike and filed unfair labor practice charges, in part because of GE’s adhering to a “fair, firm offer” of a first year increase less than the unions sought and with annual wage reopeners instead of automatic increases, many of the principals in the 1960 negotiations are no longer on the scene and it is scarcely possible that the Company’s actions are so nearly parallel to those of 1960 that an order in this case, even had it been made earlier, would have supported a contempt proceeding.

I am well aware of the Supreme Court’s statement that “Congress has introduced no time limitation into the Act except that in § 10(b),” NLRB v. Katz, 3¿9 U.S. 736, 748, 82 S.Ct. 1107, 1114, n. 16 (1962). Still, as it seems to me, a court must have some discretion to decline to enforce a Labor Board order relating to practices nearly a decade in the past when, as here, the parties have engaged in bargaining, any harmful effect of the alleged unfair labor practice has been dissipated, the case was one of first impression, and there has thus been no “stubborn refusal to abide by the law.” Franks Bros. Co. v. NLRB, 321 U.S. 702, 705, 64 S.Ct. 817, 819, 88 L.Ed. 1020 (1944).

In conclusion, I respectfully suggest, as Judge Burger did in United Steelworkers of America v. N. L. R. B., supra, 390 F.2d at 858, “that today’s holding contains the seeds of danger for unions in their collective bargaining rights” as well as for employers in the exercise of theirs. It constitutes also a serious indentation of § 8(c) and (d), if not, indeed, of the First Amendment. For the reasons I have indicated, I believe the majority’s decision to be deeply mistaken — the familiar instance of a hard case producing bad law. In any event, I think that, because of the confusion as to what the Board’s order, means and the lapse of time, the case is exceedingly inappropriate for taking such a portentous step.

I would grant enforcement with respect to the failure to furnish information and the bargaining with locals, and would otherwise deny.

1 . Numbers have been inserted for convenient reference.

la . The lead opinion is in error in its speculation concerning what I “would have held” had I sat in Reed é Prince but an agreement had been reached on the employer’s terms. There is simply no analogy between Reed & Prince’s conduct, see 205 F.2d at 138-139, and GE’s response to the Union by an offer of a 3% increase for the first two years and a 4% increase for the third and numerous additional benefits, plus the further changes referred to below.

2 . I thus cannot understand how the majority can agree with Judge Burger’s dissent, n. 17, and still reach the result it does.

3 . Cutler v. N.L.R.B., 395 F.2d 287 (2 Cir. 1968), is another illustration of the permissibility of union obduracy, Although the employer’s failure to press his demands made it possible for this court to uphold the decision in favor of the union without reaching the issue of overall good faith, it would require some naiveté to suppose that any efforts by the employer in that case to get the musicians’ union to alter its wage scale would have borne the slightest fruit.

4 . The Union was offered the choice of exercising this option on a plant-by-plant basis so that plants where employees with longer service predominated could accept the vacation option and others could retain the added pay.

5 . This prevented recovery of benefits for an employee or his dependents if they were covered by other group insurance.

6 . More generally, Hilbert’s and Moore’s remarks must be set in context before they can be properly understood. SUB had first been proposed by the Union and rejected by the Company in the 1958 negotiations. It was again raised and again rejected in the early 1960 meetings on employment security. The Company’s opposition was based largely on principle rather than cost, so that Jandreau’s protests that he was trying to work within the cost framework of the Company were beside the point in its view. Considered in this context, and with the strike looming four days off, Hilbert’s objection that the Union proposal came too late does not seem ill taken. But even here, after Moore had made the statement quoted in the majority opinion and Jandreau had said “There is no sense in being here,” Moore replied “Unless there is anything you want us to hear. If you have something new or persuasive, persuade us.”

7 . See generally Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 66-92 (1964).

8 . I thus cannot accept Judge Waterman’s characterization that GE publicized “that as a matter of policy it can never be persuaded to change the advertised terms.”

9 . Acknowledging the impossibility of enforcing the order as written, and proposing that this court should supply a ration- , ale which the Board’s decision lacks, a sympathetic commentator has suggested that the only way to sustain the order would be to “hold single offer bargaining to be an unfair labor practice.” Cooper, Boulwarism and the Duty to Bargain in Good Faith, 20 Rutgers L. Rev. 653, 689-692 (1966). But we could not uphold it on that basis even if the evidence supported a finding of “single offer bargaining,” which it does not, see SEC v. Chenery Corp., supra, 318 U.S. 80, 63 S.Ct. 454. The lead opinion rightly does not do this, and the concurring opinion expressly disclaims any such view.