(dissenting):
The Board here postulates the novel and internally inconsistent proposition that a bargainer can be found to have refused to bargain in good faith even while at thé same timé 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. The Board accomplishes this sleight-of-hand result by isolating one part of the whole spectrum of bargain-able issues and saying, in effect, that on this particular issue, the employer must yield to the union unless he can give a satisfactory “business reason” for refusing. The Board does not undertake to spell out how an employer could satisfy this unique standard. My use of the adjectives “novel” and “inconsistent” derives from 29 U.S.C. § 158(d) (1964) which, while it commands that the parties bargain and “confer in good faith,” adds the significant qualification that “such obligation [to bargain] does not compel either party to agree to a proposal or require the making of a concession.”
Despite this latter provision, the Board of necessity has considered 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.1 But 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.2 Consequently, when the Board does inquire into the reasonableness of a position, its inquiry is not whether refusal of a certain demand is *854unreasonable but rather whether, in light of all the circumstances of the negotiation, there is evidence of a calculated effort to frustrate agreement generally; the issue is not whether the particular refusal is an unfair labor practice itself.3
The majority and the Board are unable to cite any case in which refusal to accept a single demand was held to be an unfair labor practice except where it was treated as evidence of general bad faith. The recent case of this Court relied on by the Board in its brief is such a case.4 See United Steelworkers of America, (H. K. Porter Co.) v. NLRB, 124 U.S.App.D.C. 143, 363 F.2d 272, cert. denied, 385 U.S. 851, 87 S.Ct. 90, 17 L.Ed.2d 80 (1966). In the H. K. Porter case, there was a past history of findings of bad faith bargaining, and the trial examiner found that the refusal to agree to a checkoff was “for the purpose of frustrating agreement with the Union,” i. e., frustrating any agreement. 124 U.S.App.D.C. at 144, 363 F.2d at 273 (emphasis added). This crucial finding in the H. K. Porter case is missing here; in fact, the contrary was the conclusion of the trial examiner — he found that the Company did intend to reach an agreement. The reliance in the H. K. Porter case on the lack of a valid reason for the refusal was directed toward the determination of whether the intransigence was designed to frustrate all negotiation. In the present case, the Board has converted some evidence of bad faith on a single issue into bad faith per se.
The trial examiner’s opinion and the majority’s both find comfort in the cases of NLRB v. Kentucky Utilities Co., 182 F.2d 810 (6th Cir. 1950), and Bausch & Lomb Optical Co., 108 N.L.R.B. 1555 (1954). But these cases do not deal with bad faith bargaining on one issue. They merely hold that an employer need not bargain with a union representative who seeks to destroy the employer or with a union which has become a business competitor of the employer. These situations were held to be defenses to charges of unfair labor practices against the employer who refused to bargain, rather than themselves supporting an unfair labor practice charge. Moreover, they dealt with general hostility, not with particular issues in what was otherwise good faith bargaining.
If I read the majority correctly, it decides that the conclusion of “bad faith” on one subject alone is sufficient to support an unfair labor practice. This holding, the majority claims, “follows” from NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). It is quite true that Katz found a failure to bargain in good faith even though there was no finding of over-all subjective bad faith. But that decision did not say that bad faith can now be found in the unreasonableness of one party’s bargaining positions. In Katz, the question of good or bad faith in bargaining was never reached; there was instead a finding of a refusal to “bargain.” Referring to the duty to bargain collectively as defined in § 8(d), the Katz opinion stated: “Clearly, the duty thus defined may be violated without a general failure of subjective good faith; for there is no occasion to consider the issue of good faith if a party has refused even to negotiate in fact — ‘to meet * * * and confer’ — about any of the mandatory subjects.” Id. at 743, 82 S.Ct. at 1111. In Katz, the employer made changes in wages, sick-leave benefits and merit increases while these matters were under discussion with the union; these were obviously unfair tactics. The Court said
*855Unilateral action by an employer without prior discussion with the union does amount to a refusal to negotiate about the affected conditions of employment under negotiation, and must of necessity obstruct bargaining, contrary to the congressional policy.
Id. at 747, 82 S.Ct. at 1114. This language makes it quite clear that Katz rests on a “refusal to negotiate” on the terms in question. This clear violation of the duty to bargain in good faith is a far cry from a violation based upon a subjective analysis of the motives behind a bargaining position on a single issue of a party who does in fact negotiate and make a contract. Consequently, it is simply not correct to say that it “follows” from Katz that a refusal to agree to one bargaining demand even if for an impermissible reason is by itself a failure to bargain in good faith.
It may be tempting to suggest that a corollary of the duty to bargain to reach an overall agreement is a duty to bargain with the object of reaching an agreement on each item proposed. But this has never been held to be the law by any court and it is inconsistent with the § 8(d) provision that neither party need yield on a point. Merely because the employer proposes a management prerogative clause does not mean that the union bargains in bad faith if it fails to seek agreement on some form of management prerogative clause.5 Would a union be guilty of bad faith bargaining if it adamantly refused to accede to a clause identifying precisely whom the union should include in its negotiating eom-mittee? Surely a union could refuse— adamantly and rigidly — to agree to any such clause, standing on the “principle” that selection of its negotiators is for the union exclusively. Why should the same reasoning not apply to the Company’s refusal?
Of course, no one would presume to argue that a mere failure to agree to the dues checkoff would be an unfair labor practice. Instead, this case turns on the unique proposition that the negotiator’s motive for the failure to agree to a checkoff can support a finding of bad faith bargaining. This does not seem compatible with the Board’s finding that there was a good faith effort to reach an agreement generally. The trial examiner’s determination of bad faith was premised on his finding that the Company’s bargaining was “grounded in the Company’s belief that if it refused the checkoff the Union would suffer and would probably leave the scene.” The proposition of law that the Company is said to have violated was stated by the trial examiner as follows:
To bargain in good faith, the bargainer must advance his contentions and reject the other party’s contentions (when he does) for legitimate reasons of self-interest, and out of what appear to him to be sound considerations of business (or union) judgment.6
No authority is cited for the proposition that failure to give “business” reasons for rejection of a demand is itself an unfair labor practice. Would there not be “legitimate reason of self-interest” in withholding approval of dues checkoff *856until some year’s bargaining when the Company had little else to offer?
The majority rather startlingly dismisses the possibility that the refusal was a bargaining tactic7 because “in the case before us no such point was put forward to the Union in the bargaining sessions.” Presumably this means that the Company should have told the Union it was merely refusing to grant a checkoff as a bargaining tactic. It should be apparent what the next step from this position is. The employer refusing to agree to a term and stating that it is. doing so as a bargaining ploy will find the “cost” in terms of the counter-concessions that it demands weighed to determine whether it is a good faith bargaining position. Otherwise, it would be simple for an employer to set a prohibitive cost to a union as the concession for which it is withholding agreement on a union demand. Once the rule is propounded, it cannot be permitted to be circumvented so simply. Thus, once such rule is made, it is quite clear that the Board and the courts are immersed in the substantive terms of the collective bargaining contract. This is not their role and the Supreme Court has been quite clear on this point.8
Furthermore, to admit that bargaining tactics are legitimate reasons to refuse to yield on a point and then to say that this reason can only be relied upon when it is revealed to the other party is to ignore the realities of the bargaining table. As the findings of this case indicate, bargaining motives are seldom singular, rarely articulated fully and frankly and often not susceptible to a clear and logical exposition. Most positions are at least partly taken for “trading purposes.” The willingness to trade will quite naturally depend upon the importance of a particular issue to a bargainer. Particularly where there is some coolness in the bargaining,9 it is unrealistic to expect bargainers to announce their positions and then declare that they are not firm positions, but are taken only in order to be traded away. This is especially unrealistic where the party intends to reserve a particular concession for another contract negotiation when he has greater need to use this valuable concession. Collective bargaining, after all, is a recurring process and each contract negotiation is influenced by those that went before and indeed by those to come.
Although apparently no case has held explicitly that a bargainer may legally refuse a demand without giving some “business” reason, there is authority implying that he may lawfully do so. In NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958), the employer conditioned acceptance of a contract on a “ballot” clause calling for a pre-strike secret vote of the employees (union and non-union) and a “recognition” clause which named the Local a party to the contract but excluded the International, which also had been certified by the Board. An employer might be hard *857pressed to articulate a “business” reason for this, yet the case turned on whether these issues were mandatory subjects under § 8(d) so that insistence to the point of impasse would be permissible and the Supreme Court held that they were not. There was no indication that if these issues were mandatory the employer could not have bargained to impasse because of the absence of a permissible business reason.
It is clearly on the premise that the motive for a bargaining stance on each issue must be a sound business — or union —reason that the present decision rests.10 But the Supreme Court has said to the contrary. In NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 488, 80 S.Ct. 419, 426, 4 L.Ed.2d 454 (1960), the Court said that
It is apparent from the legislative history of the whole Act that the policy of Congress is to impose a mutual duty upon the parties to confer in good faith with a desire to reach agreement * * *. But apart from this essential standard of conduct, Congress intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences.
In explaining why economic weapons to support a bargaining position are perfectly permissible, despite the Act’s command to bargain in good faith, the Supreme Court has stated that:
It must be realized that collective bargaining, under a system where the Government does not attempt to control the results of negotiations, cannot be equated with an academic collective search for truth — or even with what might be thought to be the ideal of one. The parties — even granting the modification of views that may come from a realization of economic interdependence — still proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest. The system has not reached the ideal of the philosophic notion that perfect understanding among people would lead to perfect agreement among them on values. The presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized.
Id. at 488-489, 80 S.Ct. at 426.
This permissible use of economic weapons to support a bargaining position confirms the accepted reality that collective bargaining is more a practical— even brutal — economic confrontation than a statesmanlike minuet. Not only is the union permitted to strike to put economic pressure on the employer to accede to its demands, e. g., NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960), but also there is the recognition that the employer is entitled to use the lockout, although not as freely as a union may strike, as an economic weapon. See American Ship Building Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965); NLRB v. Brown Food Store, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965).
Of course, the claim here is that the refusal was designed to “harm” the union.11 An employer with all his employees on strike is “harmed” much more severely than a union without a dues checkoff. The “harm” element clearly cannot stand alone, unless it is clear that *858the refusal is somehow different from permissible economic pressure placed on the union in the course of bargaining. Certainly, an employer cannot deliberately inflict economic pressure to weaken a union during bargaining. My point is simply that because the absence of a checkoff will cause extra expense and work for the Union and because the Company is aware of this fact does not distinguish this case from the normal economic pressures of the collective bargaining situation.
The majority opinion encourages a new bargaining device that can only serve to infringe on the whole collective bargaining process. The parties may now reach an over-all contract incorporating those provisions they agree on and excluding those they do not, after the usual “horse trading” processes of bargaining, then one party can come to the Board and claim that the refusal to agree to some provision which was not included was an unfair labor practice because the recalcitrant party lacked a sufficient business or union reason. In the present case, the Union accepted the terms of the contract that emerged from the bargaining and signed a formal contract. In the give and take of collective bargaining, the inclusion of a checkoff provision may well have meant a different treatment of some other clauses — wages for example. The Board and unions generally may well come to regret the day when component parts of bargained issues are considered in isolation.
I suggest that today’s holding contains the seeds of danger for unions in their collective bargaining rights. The standards for bargaining in good faith are of necessity a two-way street; what the majority decides today applies to unions as well as to employers. Freedom of contract is highly important and to no one more than to the worker whose economic position is inherently weaker than that of the employer. A holding that the duty to bargain means one bargainer is com/petted to agree, apart from being a contradiction in terms, is pregnant with the risk of a finding one day that a union must yield to some particular employer proposal unless it can articulate a solid union reason for not doing so. I would reject the notion that a union, in this context, must explain its motives to anyone.
. E. g., NLRB v. Herman Sausage Co., 275 F.2d 229 (5th Cir. 1960); Majure v. NLRB, 198 F.2d 735 (5th Cir. 1952).
. E. g., NLRB v. American Nat’l Ins. Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952); NLRB v. Almeida Bus Lines, Inc., 333 F.2d 729 (1st Cir. 1964); NLRB v. Lewin-Mathes Co., 285 F.2d 329 (7th Cir. 1960); White v. NLRB, 255 F.2d 564 (5th Cir. 1958).
. While the Board cannot force an employer to make a “concession” on any specific isstie or to adopt any particular position, the employer is obliged to make some reasonable effort in some direction to compose his differences with the union. * * *
NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134-135 (1st Cir.), cert. denied, 346 U.S. 887, 74 S.Ct. 139, 98 L. Ed. 391 (1953) (first emphasis added, other in original).
. NLRB v. J. A. Terteling & Sons, Inc., 357 E.2d 661 (9th Cir. 1966), cited by the majority, is another case of general bad faith, where the employer was found to have negotiated “with no intention ever to reach an agreement.” Ibid.
. In NLRB v. American Nat’l Ins. Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952), the union flatly refused to agree to such a clause and there was no suggestion that it was improper to do so.
. It is perfectly clear from the following quote from the trial examiner’s opinion that this rule requires an examination of the motives of the bargainers:
Where an employer takes a position in bargaining, not to advance his own economic interest, or to safeguard the rights or interests of his employees, but for the purpose of damaging or destroying the union with which he is bargaining, then he is not bargaining in good faith. This is not to say that the employer must grant a union’s demands which do not appear harmful to the employer, but only to say that the employer’s motives and objectives must be legitimate, and the “principle” on which he stands must be permissible under the statute (e. g., an unwillingness to prefer the union over other creditors of his employees) not, as here, the impermissible object of harm to the other party, (emphasis added.)
. The majority appears to concede that holding back on an issue for “trading purposes” is a legitimate business reason. See p. 852 supra.
. [T]he Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements.
NLRB v. American Nat’l Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027 (1952).
. Referring to the attitudes of those in the bargaining situation, in another case where the employer refused to grant the union a checkoff, the First Circuit observed :
[W]e recognize the existence of a cool atmosphere between respondent and its opposite number across the bargaining table. The company did not want this union and over a period of years had been successful in keeping it out. It could not be expected that after the Union had finally won the battle it would be welcomed in with open arms. On its part, the Union, quite naturally, was determined to bring respondent into line with the other bus companies with which it had collective bargaining agreements.
NLRB v. Almeida Bus Lines, Inc., 333 F.2d 729, 731-732 (1st Cir. 1964).
. The majority finds “bad faith” in that “the Company’s bargaining stance was adopted in order that the Union’s status as bargaining representative, which it had unsuccessfully resisted in the election campaign, might be weakened and destroyed.” Supra p. 849.
. The majority opinion (see note 8 and related text) seems to rest its case in part on holdings in situations where an employer used dilatory tactics in bargaining in order to weaken the union. No such factors are present here. The parties bargained, they agreed, they made a contract; the union then resuscitated one of its demands, in isolation, by way of an unfair practice claim.