concurring and dissenting.
I agree with the majority that substantial evidence supports the Board’s finding that the company committed an unfair labor practice by insisting upon the presence of a stenographer at the bargaining sessions.
My difference with the majority is with its appraisal of the company’s demands that the local be made a party to the contract and that all grievances be signed by individual employees. In my view, both of these proposals were nonmandatory subjects of bargaining, and the company’s adamant position on them contributed substantially to the failure to reach an agreement on mandatory subjects in violation of § 8(a)(5).
For 30 years preceding the bargaining session under discussion here, the company had entered into collective bargaining agreements with the International union and had recognized it as the exclusive bargaining agent for the employees. The International’s constitution provided that it was to be “the contracting party in all collective bargaining agreements.” Before the strike began, the union took the firm position that it would not accept an agreement violative of that basic policy and warned the company that insistence on that proposal would result in no contract. Considering this evidence, the Board found that the employees had assented to the union’s practice over the years and determined that the company was not justified in “insisting to the point of impasse” on the International relinquishing its status as the sole bargaining representative.
I am convinced that this proposal advanced a nonmandatory topic of bargaining. In NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958), the Court held that a recognition clause seeking a substitution of a local for the International union as the signatory to the agreement did not come within the definition of mandatory bargaining. The employer had insisted on such a clause, and both the Board and the courts found this maneuver to be an unfair labor practice. Concededly, the case at hand differs insofar as the employer seeks to add the local, rather than substitute for it. But even if that be an arguably less intrusive encroachment on employees’ § 9 rights, it nonetheless violates the spirit of Borg-Warner. As one commentator notes, Borg-Warner and similar decisions reflect a “specific public policy that issues relating principally to the representational status of the parties should be determined without disrupting negotiations — either decided voluntarily by the parties or through the machinery of the Board, but not by coercion at the hands of the stronger party.” R. Gorman, Basic Text on Labor Law 525 (1976). The Board’s finding that this contract proposal was on a nonmandatory subject of bargaining, therefore, is correct.
The company’s second proposal — that all grievances be signed by individual employees — also concerns a nonmandatory subject. In fact, it is virtually identical to the one we found to be nonmandatory in Industrial Union of Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied, 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964). That decision is binding on this panel, and, accordingly, the Board should be sustained on its position that the employer engaged in an unfair labor practice by refusing to remove this item from its non-negotiable demands.
*183The majority does not reach these issues, asserting that there is no evidence demonstrating a causal connection between the employer’s insistence on these contract pro-, posáis and the strike. In my view, however, the majority has unduly limited the thrust of precedent in this court.
The controlling case, once again, is Industrial Union of Marine & Shipbuilding Workers v. NLRB, supra. There, the employer disputed a Board finding of impasse on nonmandatory subjects by arguing that the proposals under scrutiny played a relatively minor part in the dispute. Buttressing this assertion, the employer pointed to a specific Board finding that an impasse was reached on all disputed matters, not merely the non-mandatory ones. Nevertheless, this court concluded that enough of a nexus between the nonmandatory contract proposals and the impasse had been shown:
“It was not necessary for the Board to find that the company's insistence on this proposal was the sole cause of the failure to reach agreement. If the proposal is not a mandatory bargaining subject, insistence upon it was a per se violation of the duty to bargain. . . . Any other rule would permit insistence upon a non-mandatory item so long as there were any dispute as to mandatory topics.”
Id. at 618 (citations omitted); accord, NLRB v. American Compress Warehouse, Division of Frost-Whited Co., 350 F.2d 365, 368-69 (5th Cir. 1965), cert. denied, 382 U.S. 982, 86 S.Ct. 558, 15 L.Ed.2d 472 (1966). Believing this case to be indistinguishable from Marine, I would affirm the Board’s decision that these unfair labor practices contributed in a substantial way to the strike. See also NLRB v. Juniata Packing Co., 464 F.2d 153 (3d Cir. 1972); NLRB v. Cast Optics Corp., 458 F.2d 398 (3d Cir.), cert. denied, 409 U.S. 850, 93 S.Ct. 58, 34 L.Ed.2d 92 (1972).
As a remedy for the violation, the Board directed reinstatements and back pay. The record shows that the company persisted in its position until February 1978, some six months after the strike began. It then withdrew its insistence on the two nonmandatory subjects, but the strike continued for another two months. The Board decided that the strike as a whole was noneconomic and directed reinstatement for that reason. Until the company changed its position in February, there is substantial evidence to support the Board’s conclusion that the strike was noneconomic. It is arguable, however, that after the company dropped its insistence upon nonmandatory subjects in February, the character of the strike changed. I offer no view at this time as to whether the company’s change in position limited the relief the Board could have imposed.
Because I believe there was substantial evidence that the employer forced an impasse on nonmandatory subjects of bargaining, I dissent from the majority opinion.