(dissenting):
I dissent on the ground (1) that the rule promulgated by the union constituted no violation of the collective agreement, (2) that, assuming arguendo that the rule did violate the collective agreement, the remedy, a finding that the action of the union constituted an unfair labor practice, is an inappropriate remedy for such a violation, (3) that, if the majority were right in holding that the union’s rule violates a provision of the collective agreement (or, indeed, even if the majority is wrong, since the subject was admittedly discussed during negotiations, see National Labor Relations Board v. Jacobs Manufacturing Company, 196 F.2d 680 (2d Cir. 1952)), the Board’s order to the union to bargain, involving as it does a corresponding duty on the part of the employer, would be in violation of the terms of Section 8(d). It also seems to me that the majority has incorrectly applied the rule set forth in Local Lodge No. 1424, International Association of Machinists v. NLRB [Bryan Mfg. Co.], 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960) and that the complaint was barred by the six-month statute of limitations of § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) (1970).
What the majority actually holds, in effect, is that the union’s conduct in promulgating and seeking to enforce its work limitation rule violated the provisions of the collective agreement, specifically the provision stipulating a five day, seven-hour per day work week. However the ordinary and usual wages and hours provisions contained in a collective agreement cannot be magically transformed into provisions specifying the rate of speed at which employees are to work or the amount they are to produce. There was no provision whatever in the *789agreement requiring the union members to paint 11.5, or for that matter any particular number, of rooms per week. Under Scofield v. NLRB, 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969), the union could properly adopt and enforce on its members a rule such as the one here involved. Since the employer had no right under the collective agreement to demand that employees paint any specific number of rooms per day, the union retained the power to act unilaterally with respect to that issue. The employers’ recourse was either to discharge those painters who did not paint the number of rooms per day the employer considered satisfactory, or to secure from the union an agreement not to promulgate a work limitation rule.
But, assuming arguendo, that the union did violate the collective agreement by the promulgation and enforcement of its rule, the Board’s finding that this violation constituted an unfair labor practice is wholly unjustified. It is not a part of the Board’s function to police the enforcement of collective agreements. See NLRB v. C & C Plywood Co., 385 U.S. 421, 427-428, 87 S.Ct. 559, 17 L.Ed. 2d 486 (1967); Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 510-511, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). If the union violated the agreement, it would subject itself to an action for breach of contract under Section 301 of the Act, 29 U.S.C. § 185. The Board cannot take over enforcement of collective agreements by the device of holding that any violation constitutes a unilateral change in the agreement and therefore the unfair labor practice of refusal to bargain.
Moreover if the union’s adoption of the work-limitation rule amounted to a change in the terms and conditions of employment, the Board is prevented by Section 8(d), 29 U.S.C. § 158(d) (1970) from ordering the parties to bargain about it. Section 8(d) provides that the duty to bargain collectively “shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract.” The Board’s order requiring the union and, therefore, the employer, to bargain is inconsistent with the determination that the promulgation of the rule changed a term or condition of employment contained in the collective bargaining agreement. The Board, in effect, holds that the union has refused to bargain concerning a term over which the union and the employer have already bargained and which they have included in the contract, and about which, under § 8(d), they not only have no duty to bargain further but they have no right to bargain. This inconsistency is itself sufficient ground for denying the Board’s cross-petition for enforcement.
In addition I would hold the complaint barred by the six-month statute of limitations provision of Section 10(b).
The union promulgated the work limitation rule on March 5, 1968. Charges that the rule violated § 8(b) (3) were not filed until December 27, 1968, almost eight months after promulgation. The only conduct alleged to violate § 8 (b) (3) that occurred during the six-month period preceding the filing of charges was the alleged union effort to enforce the previously adopted rule. Bryan established that charges can be filed and a complaint issued against such enforcement efforts as those involved in the instant case only if charges could still be filed against the act of adopting the rule being enforced. The Court in Bryan rejected the Board’s argument that the enforcement of a union security clause within the statutory period could be the basis of a timely complaint, even though the original execution of the agreement containing the clause occurred more than six months prior to the filing of charges. 362 U.S. at 415, 80 S. Ct. 822. The Court pointed out that “the Board’s position would mean that the statute of limitations would never run in a case of this kind.” Id. at 416, 80 S. Ct. at 826. In the instant case, the work limitation rule was “perfectly lawful on *790the face of things,” and was held to be unlawful only on the ground that it was said to conflict with a provision of the original and of the second agreement. To paraphrase the Supreme Court’s language in Bryan, if an unfair labor practice can be established only by reference to the promulgation of the rule, a time-barred event, the policies underlying § 10(b) would be vitiated by allowing a complaint to be issued against the union’s attempt to enforce that rule. Id. at 419, 80 S.Ct. 822. The union’s effort to enforce the work limitation rule is “a suable unfair labor practice only for six months following the” promulgation of the rule. Id. at 423, 80 S.Ct. at 830.
The majority reasons that, “regardless of whether the announcement of the 10-room rule in March of 1968 constituted an unfair labor practice under the old collective bargaining agreement, a distinct violation occurred in September of 1968 if the 10-room rule conflicts with the terms of the new collective bargaining agreement.” However where the enforcement of a rule is involved Bryan rejected the “continuing violation” theory. The majority’s reliance on the “distinct act” cases is misplaced. In those cases the acts constituting unfair labor practices were qualitatively different, NLRB v. Local 210, International Brotherhood of Teamsters, 330 F.2d 46 (2d Cir. 1964), or were repeated instances of specific acts which in and of themselves constituted unfair labor practices, compare NLRB v. Electric Furnace Co., 327 F.2d 373, 376 (6th Cir. 1964), and American Federation of Grain Millers v. NLRB, 197 F.2d 451 (5th Cir. 1952) with Cone Mills Corp. v. NLRB, 413 F.2d 445, 448 (4th Cir. 1969); Melville Confections, Inc. v. NLRB, 327 F.2d 689 (7th Cir.), cert, denied, 377 U.S. 933, 84 S.Ct. 1337, 12 L.Ed.2d 297 (1964); NLRB v. White Const. & Eng’r Co., 204 F.2d 950 (5th Cir. 1953); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO v. NLRB, 124 U.S.App.D.C. 215, 363 F.2d 702, cert, denied, 385 U.S. 973, 87 S.Ct. 510, 17 L.Ed.2d 436 (1966). In Bryan the Court explicitly rejected the contention that the execution of a new agreement and the attempt to enforce a previously promulgated rule constituted a new unfair labor practice for purposes of § 10(b).
“It is apparently not disputed that the Board’s position would withdraw virtually all limitations protection from collective bargaining agreements attacked on the ground asserted here. For, once the principle on which the decision below rests is accepted, so long as the contract — or any renewal thereof — is still in effect, the six-month period does not even begin to run.”
362 U.S. at 425, 80 S.Ct. at 831 (emphasis added). See NLRB v. Lundy Mfg. Corp., 286 F.2d 424 (2d Cir. 1960).
For these reasons it appears that neither the promulgation nor the enforcement of the union’s work limitation rule violated § 8(b) (3). I would grant the application to set aside the order of the Board and deny the cross-petition for enforcement.