(concurring in part and dissenting in part):
The majority opinion remands the case involving the Union’s petition for review *1254for further proceedings by the Board to consider the Union’s request of their so-called “make-whole claim.” With respect to this Union request, the majority opinion says, “We think this is sound,” but admits “There may be difficulties in one [only one?] of the proposals offered by the Union in this case: that the Company be ordered to pay [Union] dues, for the pay period ‘lost’ to the employees by virtue of the Company’s violation * * (1251). In evaluating what is involved in the remand ordered by the majority the entire Union request for so-called “remedial relief” must be considered.
The Trial Examiner refused to recommend the remedial relief requested by the Union and the Board affirmed his findings and recommendation by denying the Union’s request in its entirety. The Union request for additional relief as set forth in its brief to this court follows:
In support of its request for compensatory relief to maintain the status quo ante pending compliance by the Company of its duty to bargain collectively, the Union adduced competent and uncontested testimony (TDX 18; Tr. 494-497, 509-510) that a contract would have been consummated within seventy-five (75) to one hundred (100) days of the Union’s November 8 certification (Tr. 498-500). A complete contract proposal (GC Exhibits 13 and 14) was submitted and received by the Company which requested an immediate wage increase of fifteen (15) cents per hour followed by a further wage increase of twenty (20) cents per hour as of February 1, 1968, when the minimum lawful rate of one dollar and sixty cents ($1.60) per hour became compulsory under the Fair Labor Standards Act. These wage increases would merely establish a rate of fifteen (15) cents per hour above the minimum statutory rate, a level of compensation considerably below the prevailing area wages paid to comparable employees for similar work (C.P. Exhibits 1, 2, 3 and 4; Tr. 505-507).
In the foregoing premises the Union requested that minimal compensatory relief be computed and awarded by the Board, as follows:
1. that the Company pay at least fifteen (15) cents an hour to its employees as of such date a contract would have been executed.
2. that in addition to the rate established pursuant to ‘1’ above, the Company pay its employees cost-of-living increases of one (1) cent per hour for each 0.4 increase in the Consumer’s Price Index published by the United States Department of Labor (1957-1959 equal a base period of 100).
The Union also established that the prevailing contract practice in the area by employers comparable with the Company was to include a union security clause in such contracts that are negotiated (Tr. 498). In this premise, coupled with the nineteen (19) ‘yes’ votes that were recorded for the Union in the representation election, the Union requested the Board to direct the Company to pay the Union an amount equal to such dues and initiation fees that would have been realized beginning March 18, 1969, the date that a union security provision would have been in force and effect as part of a contract negotiated following the Union’s certification. In computing such amount, the Union requested that said amount be established on a minimum basis of nineteen (19) employees and with such additional employees as are evidenced by written bargaining authorizations secured since the certification of the Union.
The Union’s petition thus requests that an order issue requiring the Company to make payments to the Union and its employees based on the premise that a contract would have been consummated within 75 to 100 days of the Union’s November 8th certification providing for pay raises to all employees of 15<js per hour plus a certain cost of living increase and including an amount as dues *1255and initiation fees for 19 employees1 that voted for the Union on the assumption that the contract would have been executed with a “union security clause” (checkoff), such dues and fees to begin on March 18, 1969.
At the outset I note that the adequacy of the Board’s remedies in unfair labor practice cases is currently being debated. As the Trial Examiner in this case stated:
The Union’s request for this type of an expanded remedy represents the views of a growing body of respectable authority who take the position that the Board’s current policy and practice in remedying this type of unlawful refusal to bargain is neither adequate nor realistic. There is currently pending before the Board at the present time two cases in which such a request is being considered (Zinke’s Foods, Case 30-CA-372 and Ex-Cello-O-Corp., Case 25-CA-2377). In each of these cases the Board has received oral argument on the question of an adequate remedy, but has not, as yet, rendered its decision.
See also St. Antoine, A Touchstone for Labor Remedies, 14 Wayne L.Rev. 1039 (1968).
However, at least some of the questions that have been raised have recently been answered by the Supreme Court in H. K. Porter Co. v. N.L.R.B., 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970). In that case, the Supreme Court reversed and remanded to this court an order of the N.L.R.B. issued after an opinion by a panel of this court required an employer to
“[g]rant to the Union a contract clause providing for the checkoff of Union dues.” 172 N.L.R.B. No. 72, aff’d, H. K. Porter Co. v. N.L.R.B., 134 U.S.App.D.C. 227, 414 F.2d 1123 (1969).
The Court held that the Board was without power to “compel a company or a union to agree to any substantive contractual provision of a collective bargaining agreement.” H. K. Porter Co. v. N.L.R.B., supra, 397 U.S. at 102. In reaching this decision, Justice Black reviewed the relevant legislative and judicial history of labor relations in this country. His historical analysis makes it “ ‘clear that the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements.’ N.L.R.B. v. American Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027 (1952).” H. K. Porter Co. v. N.L.R.B. supra, 397 U.S. at 106. See also Cap Santa Vue, Inc. v. N.L.R.B. 137 U.S.App.D.C.-, 424 F.2d 883 (1970) where a similar conclusion based on this legislative and judicial history was reached.
In my opinion the history of the Act thus makes it clear that the policy behind the Act is to rely on collective bargaining and to avoid compulsory arbitration. Heretofore it had been generally considered that this was the position of labor and management. At labor’s request, were we now to empower the Board to write labor contracts on wages and union security, the time may well come when labor would be dissatisfied with a governmental board exercising such power. The character of the Board is subject to constant change and considerable wisdom may have been exercised in restricting its power in the contractual area.
With these principles in mind, I turn to the instant case. The majority holds that “damages can be awarded on an assessment of the contract terms that would have been in effect if the law had been complied with even though the law-violating employer has not yet entered into the contract. * * * ” Fibreboard Paper Prods. Corp. v. N.L.R.B., 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), and N.L.R.B. v. Mooney Aircraft, Inc., 375 F.2d 402 (5th Cir.), cert. denied, 389 U.S. 859, 88 S.Ct. 104, 19 L.Ed.2d 125 (1967), are cited in support of this proposition. In the Fibreboard case, the *1256unfair labor practice was the failure of the employer to negotiate with his employees the subcontracting out of certain work which had previously been performed by them. The effect of this unfair labor practice was to permit the employer to subcontract out the work in question without giving his employees a chance to negotiate the point. The Board ordered the original contract reinstated and the Court affirmed. It could be argued that no other remedy would have been adequate in the circumstances of the ease. To reinstate the contract was simply to put the parties back in the last legal position they occupied. The Court did not hold that the contract must continue after the parties negotiated and thus it did not attempt to dictate a substantive term of the contract. This case does not provide authority for the step the majority takes in the instant case.
In the Mooney Aircraft case, the Fifth Circuit upheld a backpay order which included an amount the wrongfully-discharged employee would “in all probability” have received as a pay raise had he not been discharged. The decision must be read in light of the fact that the failure of the employer to grant the pay raise was in itself wrongful and discriminatory. The court was of the opinion that “[t]he relief granted was therefore necessary to extinguish the effects of the discrimination.” N.L.R.B. v. Mooney Aircraft, Inc., supra, 375 F.2d at 403. Thus the remedy both in the Fibreboard and Mooney Aircraft cases was based on pre-existing contract rights. They are scarcely authority for the proposition that the Board may in effect write a contract where one did not exist before, and then base its remedy on the contract it has written.
The majority cautions that the “make-whole” remedy “could be measured not by any sentiment as to what the parties should have agreed to, but only by a determination, on the basis of all the evidence available, of what it is likely the parties would have agreed to * * The Board, according to the majority opinion, is thus required to determine what the parties would have agreed to if they had bargained. However, if any prediction were to be made, the history of this case seems to make it clear that the most realistic prediction would be that the parties would not have agreed to anything. Any other conclusion is difficult to reach in light of the Company president’s “antiunion animus” and the “patently frivolous” objections to the election. In my opinion, the Board is thus necessarily relegated to a determination of what the parties should have agreed to had they bargained. In time, such power may well prove dangerous both to unions and to employers.
But this is not the greatest problem I have with the majority opinion. Even if the Board could somehow predict what the parties would have agreed to, the wrong is still that any such process would require the Board to determine a “substantive contractual provision.” That the Board acts in the past rather than the present does not, in my opinion, eliminate the prohibition in this respect of H. K. Porter Co. v. N.L.R.B., supra. In that case, Justice Black concluded:
It may well be true, as the Court of Appeals felt, that the present remedial powers of the Board are insufficiently broad to cope with important labor problems. But it is the job of Congress, not the Board or the courts, to decide when and if it is necessary to allow governmental review of proposals for collective bargaining agreements and compulsory submission to one side’s demands. The present Act does not envision such a process. H. K. Porter Co. v. N.L.R.B. supra, 397 U.S. at 109, 90 S.Ct. at 826.
The power the majority opinion seeks to have the Board apply has been expressly withheld by Congress. 1 Legislative History of the Labor Management Relations Act, 1947, pp. 310, 538. In the language of the House Conference Report No. 510 on H.R. 3070, 80th Congress,
“This mutual obligation (to engage in collective bargaining) was not to compel either party to agree to a proposal *1257or require the making of a concession.” p. 538.
The fundamental error of the majority-opinion is thus that it would authorize damages on the likelihood that certain results would be reached that the Act provides are not required to be reached. Here the cause of the alleged damage for which the Union requests reimbursement is actually the refusal of the Company to agree to a contract (not the failure to bargain collectively) but no damages can be assessed therefor because there is no legal duty upon either party to agree upon a contract. Thus, even assuming a failure to bargain, the damages here are not being assessed on that basis but upon a failure to agree, which is not a duty imposed on either party, and a failure to agree upon a specific result, which is entirely speculative.
I would accordingly affirm the Board’s order in No. 22911 and deny the Union’s petition in No. 22797.
. Plus any additional employees that might sign written bargaining authorizations.