(dissenting):
In my opinion the decision and order of the National Labor Relations Board should be affirmed. When this case was here the first time, the court remanded the case to the Board because of what it considered was the Board’s failure to apply the “clear and unmistakable” waiver standard to determine whether a union had forfeited its rights under section 8(a)(5) of the National Labor Relations Act. The point proved baseless. However, undaunted by its previous failure, the court now orders a second remand to determine “whether Corcoran engaged in conduct that deprived CAS of work which, in light of past practice, it would otherwise have been expected to perform.” Maj. op. at 834. The basic claim is that “Corcoran unilaterally transferred work from CAS to A — 1 without fulfilling his statutory duty to bargain.” Id. at 832. Otherwise stated, this will be a remand to determine if Corcoran transferred work away from CAS, i.e., “shift[ed] work away from a bargaining unit simply because it is to his economic advantage” to do so. Id. at 834.
In response to this point, however, the Board in its decision has already found as a fact that CAS and A-l did not engage “in deception or that they transferred work away from their union-represented employees to their nonunion employees.” A-482 (emphasis added). Again at A-481 the Board finds, “there is no evidence that jobs bid for and performed by CAS were transferred to A-l,” or that A-l was doing any *237work that required union labor. Thus, the Board has already found the facts to be determined on remand. The panel’s remand thus recognizes that the Board’s decision was proper on the facts before it, but orders it to see if it can dig up more facts (not present in the existing record) that might cause it to alter its decision. Such post hoc fact finding is not proper. The case should be decided here on the record made in the Board proceedings.
The real dispute between the parties, as the court points out, Maj. op. at 830, was over “the scope of the bargaining unit” covered by the collective bargaining agreement which had been entered into by the parties. A-485. In this regard, the Board states in its opinion on remand that
The crucial distinction [between this case and one calling for application of the “clear and unmistakable waiver” standard], however, is that, in the circumstances of this case, the Union did not have a statutory right to represent the employees of A-l and thus had no right which could have been waived, clearly and unmistakably, or otherwise.
Id. (emphasis added). The Board rightly holds that nothing in the Act grants the union a right to alter or to enlarge the CAS bargaining unit which was agreed to at the time of the original contract in 1973. In 1975 the parties negotiated and executed a new collective bargaining agreement, and it is unquestioned that the union at that time had full knowledge of the fact that CAS was organized to perform union contracts and that A — 1 was organized to perform nonunion work and was performing such work — at times with union labor. The collective bargaining agreement thus constituted an agreement by the parties on the scope of the unit covered by the contract and the Board properly refused to allow the union to avoid the terms of that agreement, voluntarily entered into with full knowledge on the part of the union, by asserting an unfair labor practice because of respondent’s refusal to enlarge the unit to include A-l’s employees.
It is contended that the union did not know the type of double-breasted operation it was getting. This is belied by the record. In January 1975 — before the 1975 agreement was executed — -when Corcoran told the Union representative that he was forced to lay off CAS employees, he also informed the union’s representative that he could hire them to work on A — 1 jobs. The union representative assented “grudgingly.” Thereafter Corcoran in fact employed several CAS employees to work for A — 1, paying them union wages but not union benefits. Five months later in May 1975 Corcoran voluntarily entered into the second collective bargaining agreement with the union covering the CAS employees. At thaU time the union did not request that the contract cover A — 1 or its employees. In fact, during the negotiations there was no discussion concerning extending the coverage to include A — 1—though the circumstances of A — l’s operations were well known to the union. Then, six months later, in November 1975 the union demanded that the employees of both companies “be treated as a single bargaining unit and that the 1975 contract be applied to A-l.” A— 477. This demand smacks of sharp practice.
The finding that there was no deception, which the panel views as irrelevant to the question this case presents, was not something that was interjected by the Board. Rather, it was offered in response to the General Counsel’s contention that the case was controlled by Don Burgess Construction Corporation d/b/a Burgess Construction and Donald Burgess and Verlon Hendrix d/b/a V & B Builders, 227 NLRB 765 (1977), enforced, 596 F.2d 378 (9th Cir. 1979). Burgess Construction involved situations in which employers through deception and misrepresentation had used related companies to evade their obligations under a collective bargaining agreement. So the opinion of the Board with regard to deception merely disposes of the argument of the General Counsel and turns it to its advantage.
The issue of fact the panel would now remand to the Board for determination has already been resolved by the Board: no *238CAS work was transferred from it to A — 1. I would accordingly conclude that Corcoran did not engage in an unfair labor practice either by withdrawing work from CAS or by refusing to enlarge this voluntarily agreed-upon bargaining unit to include employees who were known to exist and who were not intended by the parties to the bargaining agreement to be included therein. The fact that this was a pre-hire agreement in the first place is a strong additional reason for not expanding the contract to cover workmen that clearly were not included. The union should not be allowed to avoid the terms and limitations of that agreement and deny the nonunion employees their right to vote on whether they wish to be covered by the collective bargaining agreement. In my view the decision of the National Labor Relations Board should be affirmed.