(dissenting).
In my opinion, the factual and legal conclusions of the Trial Examiner were clearly supported by substantial evidence. During the hearings which continued for some days, he had an opportunity unavailable to the Board or to this Court *270properly to appraise the demeanor and credibility of the witnesses. The inferences which he drew should be entitled to more weight than inferences made by others not present. The National Labor Relations Act was designed to promote good will and harmony between employer, employee and union. Here Company and Union had shown themselves capable of successful and peaceful labor negotiations for some twelve years. This is not the kind of background against which to make a finding of bad faith based largely on inference just because the negotiations in 1958-59 turned out to be more protracted than prior negotiations.
I. GOOD FAITH BARGAINING.
The statutory requirement that both parties to a collective bargaining contract meet and “bargain in good faith” has given the Board and the courts considerable difficulty. The appropriate standard, “a desire not to reach an agreement with the union”, is necessarily highly subjective. N. L. R. B. v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (1st Civ., 1953), cert. denied 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391 (1953). The statute was not intended to require agreement by the parties or to permit the Board or the courts to impose on the parties their concept of an appropriate agreement under the circumstances. N. L. R. B. v. American National Insurance Co., 343 U.S. 395, 402, 72 S.Ct. 824, 96 L.Ed. 1027 (1952). What is required is that the parties meet to disclose their proposals, that such proposals be the subject of discussion so that each party be aware of the other’s views and so that compromise between them be made more likely, and that neither party place insurmountable obstacles in the path of agreeable reconciliation of opposing demands. The record clearly supports the conclusion that at all times the Company was prepared to come to an agreement with this Union albeit on terms that the Union may have found unsatisfactory. In this regard the Trial Examiner found:
“In my opinion the record supports a finding herein that both parties in their negotiations prior to the strike on May 9, 1959, met at reasonable times and conferred in good faith with respect to terms and conditions of employment with the expectation of reaching agreement and executing a written contract incorporating any agreement reached.”
The Board justified its conclusion that the Company refused to bargain in good faith by inferring a Company state of mind from several occurrences, namely that: (1) the Company engaged in dilatory tactics by its delayed and in some instances complete failure to supply requested information concerning wage rates, job descriptions, seniority rosters and insurance benefits; (2) the submission of a “predictably unacceptable” counterproposal and an uncompromising attitude during the course of negotiations; (3) the limited authority of the Company’s negotiators at the bargaining table; (4) unilateral changes in the wages and work loads of the forklift driver and the loomfixers; (5) notices during the course of negotiations by the Company informing the employees of proposed wage increases not accepted by the Union; (6) certain remarks of General Manager Clark; (7) the Company’s proposal after the strike had been initiated that the Union waive any right to reinstatement of the strikers. The majority has rejected certain of these subsidiary findings as either unsupported by substantial evidence or of such minimal effect that they cannot be deemed of any significance in determining the Company’s attitude toward negotiations.
(a) Dilatory tactics. The Board found that the Company displayed a reluctance to provide information requested by the Union on September 23, 1958. The majority properly rejects this finding as unsupported in the record with respect to the requests for seniority rosters or insurance benefits. However, the majority does find substantial support for a finding of dilatory tactics by virtue of the delay in providing wage data and *271the failure to make a complete job classification analysis as requested.
A letter from the Union on September 23, 1958 requested, inter alia, “wage rate information”. On November 11, 1958, the Company agreed to supply this and it was given to the Union on January 19, 1959. The Union found this information to be incomplete with respect to incentive rates, requesting on February 11, 1958 that instead of the wage scale for incentive workers according to percentage efficiency already provided, that the Union be supplied with the average earnings of incentive workers for the last two Social Security quarters of the preceding year. The Company again agreed to supply this data on February 20, 1958 and following correspondence clarifying the request, it was submitted to the Union on March 6, 1959. The majority characterizes the delay in providing this information as excessive. I cannot agree. Although the wage information delivered to the Union on January 19, 1959 might have been forthcoming at an earlier date, it is significant that the letter supplying that information included a partial job classification analysis that had taken some time to prepare. In addition, the period of time after January 19, 1959 was the result of the Union’s request for wage information in a form not before demanded, and this additional request was complied with almost immediately.
With respect to the job classification data, admittedly a complete listing was never furnished to the Union. It is uncertain whether this by itself would constitute an unfair labor practice in the case where such job descriptions had never before been compiled, compare N. L. R. B. v. United Brass Works, Inc., 287 F.2d 689, 697 (4th Cir., 1961) and Exchange Parts Co. v. International Bh. of Boilermakers (Exchange Parts Co.), 139 NLRB No. 46 (Oct. 31, 1962), with United Steelworkers Union (Hanson Mfg.), 137 NLRB No. 38 (May 24,1962).
(b) The submission of a “predictably unacceptable” counterproposal and an uncompromising attitude during the course of negotiations. The majority opinion rejects this characterization of the Company’s counterproposal and instead finds that “if either contract can be said to have been ‘predictably unacceptable’ it might well be the Union’s”. Nevertheless, it then proceeds to analyze the negotiations, finding an “uncompromising attitude” on the part of the Company. Implicit in the finding of the Board and the majority is a determination on their parts that the Company was acting improperly in adhering to its original proposal. The course of negotiations demonstrates a greater willingness on the part of the Union than the Company to recede from its original position. This, however, would naturally follow from the fact that it was the Union’s original proposal that was such a radical departure from the prior collective bargaining contract. Furthermore, it is not the function of the National Labor Relations Board or the federal courts to determine the proper resolution of differences arising during the course of negotiations. The Prince standard of “a desire not to reach agreement with the union” does not require a Company to enter into negotiations with a completely open mind concerning the subjects to be discussed. By necessity, a Company may begin negotiations with certain firmly felt convictions on the matters subject to negotiation, and as to matters properly the subject of bargaining “neither party is legally obligated to yield.” (N. L. R. B. v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 722, 2 L.Ed.2d 823 (1958) ). The Supreme Court has said:
“Thus it is now apparent from the statute itself that the Act does not encourage a party to engage in fruitless marathon discussions at the expense of frank statement and support of his position.”
N. L. R. B. v. American National Insurance Co., supra, 343 U.S. at 404, 72 S.Ct. at 829. The Trial Examiner’s finding that the parties met at reasonable times *272with the expectation of reaching agreement is fully supported in the record, and there is no substantial evidence in the record to support a contrary finding.
(c) The limited authority of the Company’s negotiators. Although the lack of authority given negotiators is not a per se violation of Section 8(a) (5), it is a factor to be considered in the light of all the other circumstances. The negotiators here were limited in their power to come to an agreement with respect to wages and the check-off proposals. However, they were authorized to negotiate certain other provisions in dispute and did compromise some of these issues at a bargaining conference on June 1, 1959. This is not the kind of case in which the negotiators were without any authority to vary the Company’s proposals, and those with sufficient authority were out of reach. On the contrary, the Company’s negotiators were in constant touch with the Company’s president, Horblit, apparently calling him after every bargaining session. See McLean-Arkansas Lumber Co., 109 N.L.R.B. 1022, 1038 (1954). In addition, at the suggestion of Constangy, one of the Company’s negotiators, Bothelo, the Union’s representative, traveled from Georgia to Boston to meet with Mr. Horblit. As the Court of Appeals for the Ninth Circuit has said in holding that lack of authority is not a per se violation of 8(a) (5):
“Union representatives were at liberty to discuss with Bahrs any and all proposals and counterproposals and thus secure clarification of the issues, an important element in reaching agreement. Bahrs could, and did, make recommendations to the Company, and thereby conveyed to it an áppraisal of the situation and the Union’s demands.”
Lloyd A. Fry Roofing Co. v. N. L. R. B., 216 F.2d 273, 276 (9th Cir., 1954), modified 220 F.2d 432 (9th Cir., 1955).
(d) ; Unilateral acts in changing wages and work loads of the fork lift driver and loomfixers. The majority characterizes this element of the Board’s case as insubstantial and insignificant, and to be given no weight in the ultimate determination. At most it raises a question of interpretation of the then existing collective bargaining agreement.
(e) Unilateral wage increase. The majority places great reliance on the unilateral wage increase granted to the workers, effective on either May 7th or 11th, after the parties had reached an impasse in negotiations and after the Union had informed the Company that it intended to strike. Recently the Supreme Court in N. L. R. B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962) held that a unilateral wage increase granted to workers during the course of negotiations but before the existence of an impasse and without consultation with the Union constituted a violation of the Company’s duty to bargain in good faith, even in the absence of a Board finding of overall bad faith in the conduct of the negotiations. The Court there stated in a footnote:
“Of course, there is no resemblance between this situation and one wherein an employer, after notice and consultation, ‘unilaterally’ institutes a wage increase identical with one which the union has rejected as too low.” See National Labor Relation Board v. Bradley Washfountain Co., 7 Cir., 192 F.2d 144, 150-152; Labor Board v. Landis Tool Co., 3 Cir., 193 F.2d 279.
N. L. R. B. v. Katz, supra, at p. 745, n. 12, 82 S.Ct. at p. 1113. That is exactly the case here. The wage increase granted was the same 10% increase offered to the Union in the course of negotiations and the Union was notified of the Company’s intention to put it into effect immediately. The footnote and the cases-apparently cited with approval therein make clear that there is to be no inference from the Company’s unilateral wage increase here. As the Supreme Court on another occasion has stated:
“We do not here have a unilateral grant of an increase in pay made by an employer after the same proposal *273has been made by the employer in the course of collective bargaining but has been left unaccepted or even rejected in those negotiations. Such a grant might well carry no disparagement of the collective bargaining proceedings. Instead of being regarded as an unfair labor practice, it might be welcomed by the bargaining representative, without prejudice to the rest of the negotiations.” N. L. R. B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 224, 69 S.Ct. 960, 93 L.Ed. 1320 (1949).
Nor are the cases cited by the majority apposite. In N. L. R. B. v. Bonham Cotton Mills, Inc., 289 F.2d 903 (5th Cir., 1961), the wage increase was granted without prior notification of the Union. Majure v. N. L. R. B., 198 F.2d 735 (5th Cir., 1952) is even further off point. There the present rate of commissions, a subject to bargaining, was 18'%. The Company had proposed that the rate remain the same; the Union was requesting a 25% rate. During negotiations the Union had indicated its willingness to compromise at a 20% figure, but this was rejected by the Company. However, after the negotiations had broken down, the Company unilaterally instituted an increase to the 20% figure already rejected by the Company during the prior bargaining sessions.
(f) Remarks of General Manager Clark. The Board relied on remarks made by the General Manager on several occasions to striking employees outside the plant and to non-striking employees within the plant. On May 22, 1959, Clark drove to the plant in his automobile and stopped in front of the gate near his office to engage in conversation with several strikers. The Triál Examiner credited Clark’s version because it was more consistent with the past and subsequent negotiations between the parties. The Board rejected the Examiner’s finding in this regard,-' solely on the ground that if he were incorrect in his characterization of the bargaining, the underlying .basis for his-credibility finding, then his ultimate conclusion as to credibility must fall but the Examiner’s finding was also based in part on the past history, running back some twelve years, of successful and peaceful negotiations between the Company and the Union.
The Board also relied on statements made by Clark to non-striking employees in the plant which the Board concluded revealed that the Company was not meeting with the Union with an open mind and an intention to reach agreement. The only remarks that might be so construed were made on May 25, 1959 to a non-striking employee that “he would not sign a contract with the Union unless they came to his agreements.” This was an isolated remark, made after months of unsuccessful negotiations at a time when the positions of both the Company and the Union had become firmly established.
(g) The Company’s proposal made after the strike had been initiated that the Union waive any right to reinstatement of the strikers. The Board’s use of this demand is predicated on its view that the strike was an unfair labor practice strike and that the Company was in effect asking the Union to agree to the waiver of absolute rights to reinstatement on the part of the striking employees. However, if in fact this was an economic strike, then there was nothing improper about the Company’s proposal since most of the strikers had been replaced by other workers.
In my opinion, there is not sufficient evidence of bad faith in this case. As a minimum, however, this case calls for a remand to the Board for a redetermination of their finding in the light of the majority’s rejection of some of the grounds on which the Board’s conclusion was based, especially the majority’s heavy reliance on the unilateral wage increase, a ground I would hold to be clearly error as a matter of law. See Bon-R Reproductions, Inc., v. N. L. R. B., 309 F,2d 898 (2d Cir. 1962) (Friendly, concurring and dissenting).
*274II. REINSTATEMENT.
The Trial Examiner, after finding that the.' Company had bargained in good faith, held that the strike was an economic one and that therefore the strikers were not entitled to reinstatement to jobs that had been fillfd while they were on strike. The Board reversed this finding and held that the strike was at least in part a result of the Company’s refusal to bargain in good faith, and thus an unfair labor practice strike entitling the strikers to reinstatement and back pay. N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). The majority agrees with the Board, more fully buttressing the Board’s conclusion that the strike was motivated by the Company’s refusal to bargain in good faith. Since I am of the opinion that the Company in fact did bargain in good faith, I would hold the strike to be economic in nature and the strikers not entitled to reinstatement. N. L. R. B. v. W. L. Rives Co., 288 F.2d 511 (5th Cir., 1961); N. L. R. B. v. James Thompson & Co., 208 F.2d 743, 749 (2d Cir., 1953); N. L. R. B. v. Scott & Scott, 245 F.2d 926 (9th Cir., 1957); Winter Gardens Citrus Products Cooperative v. N. L. R. B., 238 F.2d 128 (5th Cir., 1956); N. L. R. B. v. Brashear Freight Line, Inc., 119 F.2d 379 (8th Cir., 1941).
III. COERCIVE STATEMENTS.
I concur with the majority’s determination that the remarks of General Manager Clark to employees Peacock and Clemons were not coercive. The majority, however, accepts the Board’s finding that the statements of Foreman McDowell were in violation of § 8(a) (1). The Board’s finding was predicated on its conclusion that “In view of the Respondent’s other violations, as set forth herein, these statements were neither isolated nor minor.” As I would agree with the Trial Examiner that there were no other violations, I would reinstate his finding that these statements were trivial and insignificant.
I would deny enforcement and set aside the Board’s order.