c32:No. 18678

CARSWELL, District Judge
(dissenting).
Because I cannot agree that the action of the Union here was only apparently beyond the scope of bargaining units as set forth in 29 U.S.C.A. § 159(a), respectfully I must dissent.
The course of negotiations between the parties, concisely set forth in the Court’s opinion, mean to me an unequivocal attempt by one bargaining unit to compel a contract expiration date for other and distinct bargaining units on other contracts as a condition of contract between this unit and this employer.
This, basically, is the position petitioner-employer has maintained throughout negotiation, hearing before the Board, and on this appeal. Its quest for answer has been once again without avail. I agree with the Court that the Board based its decision against petitioner-employer on the erroneous assumption that the issue befox*e it could be met by simply reaffirming the unquestioned but irrelevant proposition that contract duration is a bargainable issue. Indeed, as the Court says, there can be no serious legal debate that each unit may insist upon a specific expiration date for its own contract, whether or not it be the same date insisted upon by another unit. But the emphasis supplied to this statement points up our basic disagreement. This does not mean to me that a distinct entity, here a bargaining unit deriving legal being from the enactment of the Taft-Hartley Act and having in 29 U.S. C.A. § 159(a) a plain limitation of scope, may inject as a condition precedent in the process of negotiation matters with reference to other units and involving other contracts.
As stated by the Supreme Court in National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823:
“The company’s good faith, has met the requirements of the statute as to the subjects of mandatory bargaining. But that good faith does not license the employer to refuse to enter into agreements on the ground that they do not include some proposal which is not a mandatoxy subject of bargaining. We agree with the Board that such conduct is, in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining. This does not mean that bargaining is to be confined to the statutory subjects. Each of the two controversial clauses is lawful in itself. Each would be enforceable if agreed to by the unions. But it does not follow that, because the company-may propose these causes, it can lawfully insist upon them as a condition to any agreement.”
Among the salutary purposes sought by the enactment of the Taft-Hartley amendments was a refinement of stated rules to delineate the employee-employer relationships not the least of which was to make the compulsory negotiation process itself subject to some standard of relevancy to the vital issues between conferees. In the first decision by the Supreme Court under the progenitor Wagner Act it was stated:
“The theory of the act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the act in itself does not attempt to compel.” National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 81 L.Ed. 893.
“Wages, hours, and other forms and conditions of employment” are made mandatory subjects of negotiation. 29 U.S.C.A. § 158(d). The area of permissive negotiation is much more broad and by consent of the parties may be expanded to include many things including common expiration dates on other contracts with other units as sought by the Union here. But such is not this case.
It is not a specific date, as such, which is the subject of controversy here, but a demand by separate bargaining units, having no authority to bargain for each other, as condition precedent to an agreement for all. The Court here finds that the common expiration date “vitally affects the ability of each union separately to bargain,” stating that the separate unions face a “very real, hard problem” in this regard. Its preoccupation and concern with the respective difficulties of the parties at bargaining have fashioned, it seems to me, a new miscroscope of legal detection to see that which is and that which is not apparently visible in the Congressional language of 29 U.S.C.A. § 159(a). As I see it, this so extends and confuses the separability of unit duties and responsibilities as to enshroud the process with additional problems, which new problems themselves might just as logically be made the justification for even more expansion. Does not this mean, for example, that like demand can be made for industry-wide wages and hours by units of heretofore limited scope or that employer demand as condition to agreement same wages as paid to other units?
Industry-wide or plant-wide bargaining may well be desirable for one or the other party, or for both, but this determination can be made by the Board upon application under 29 U.S.C.A. § 159(b) for expansion of the certified bargaining unit, reference to which is made in the Court’s opinion. The problems of negotiation asserted by the bargaining unit here are made by the Court the justification for an expansion of unit authority. These contentions are more properly for consideration of the Board under Section 159(b), supra, for plant-wide certification to remove the unit, or all of them, from an inequitable situation, if, indeed, the facts there developed require this result. Under the holding here the Court, in effect, is approving joint negotiation without consent of the parties and without plenary proceedings before the Board for determination of the need or desirability of such joint negotiation.
Moreover, the Union’s claim that its demand for common expiration date was precipitated and made necessary by the action of the company in shifting its operations between (its three) plants should and could more properly have been the subject of a complaint for unfair labor practice under 29 U.S.C.A. § 158 (b) (3). See also National Labor Relations Board v. Hopwood Retinning Co., Inc. et al., 98 F.2d 97 (2nd Cir. 1938); United Steelworkers of America (AFL-CIO), Local Union No. 4264 v. New Park Mining Company, 273 F.2d 352 (10th Cir. 1959); National Labor Relations Board v. Alamo White Truck Service, Inc., 273 F.2d 238 (5th Cir. 1959).
Thus the Union was not without clear and appropriate recourse to seek directly joint bargaining by broadened certification or by bringing the petitioner-employer before the Board for a full hearing on the merits of its complaint that its shifting work must cease and desist as an unfair labor practice under Section 8(b) (3). Instead, the .motivation of the Union in this case has been made the basis of the Court’s opinion denying petitioner-employer hearing on either proposition and this despite the fact that petitioner-employer’s query as to whether or not each unit must bargain for itself has not been directly answered by the trial examiner, the Board or the Court.
With great deference for the views of the majority, for the foregoing reasons I would answer petitioner-employer here by holding the action of the bargaining unit a refusal to bargain in good faith. I must, therefore, respectfully dissent.

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