(dissenting).
I concur in the result reached in Judge Pope’s opinion insofar as it holds respondents in contempt for making the third of the four demands listed in that opinion. I think that particular demand was that Safeway bargain “for” supervisory employees (within the meaning of our decree) and was therefore viola-tive of our decree. I have become convinced, however, that in our former opinion, 203 F.2d 165, we were wrong in holding respondents in contempt for making the other three demands set out in Judge Pope’s opinion. In pointing up the differences between my present views and those of my associates I shall focus my attention on the last of respondents’ four demands — the demand that location managers be prohibited from doing clerks’ work. This demand has become the key item of dispute between respondents and Safeway.
The nub of our former opinion, still adhered to by my associates, was the following interpretation of our decree: “It will not do to say that the demands made were solely in the interests of the clerks in the appropriate bargaining unit. The effect of our decree was to prohibit all attempts of respondents to exact concessions from Safeway as to supervisory employees as the price of reaching an agreement as to the terms and conditions of employment of clerks.” 203 F.2d at page 169.
Thus we read the decree’s prohibition against demands that Safeway bargain “for” supervisory employees as forbidding demands that Safeway grant “concessions” as to such employees, and we *766examined respondents’ demands to determine whether they in any way affected supervisors. If this is the meaning of the decree, then there is no doubt that respondents’ “no-elerks’-work” demand, and their other demands as well, constitute contempt, as the majority now holds. The demands quite clearly require “concessions” from Safeway as to location managers and “affect” such employees in some manner.
I now think this interpretation of our decree is erroneous and cannot be justified. A brief reference to the facts which gave rise to the entry of our decree will serve to point up the error. Both the decree and the order of the Board which it enforces were issued with the consent of respondents. The order of the Board was a part of a settlement of a 1949 dispute between Safeway and respondents. The dispute, in brief, was this: Safeway for the first time demanded that its location managers be separated from its clerks for collective bargaining purposes; respondents, on the other hand, insisted that location managers be included in the clerks’ bargaining unit and covered by the clerks’ bargaining contract, as had been the practice in prior years. The settlement of the dispute was a victory for Safeway: it was stipulated that clerks, and clerks only, constituted the appropriate bargaining unit, and the Board’s order prohibited respondents from demanding, as a condition to bargaining for clerks, that Safeway bargain for managers. The settlement, and the Board’s order (now embodied in our consent decree) which was a part of that settlement, had but one purpose namely, to prevent respondents from bargaining jointly for both location managers and clerks, as had been the prior practice.
Thus our decree cannot, consistently with its purpose, be interpreted so as to prohibit respondents from making good faith demands in the interests of the clerks, even though, as commonly occurs in collective bargaining for rank and file employees, such demands might occasionally touch upon the terms and conditions of employment of supervisory employees in some particulars. The decree, properly interpreted, in no way restricts respondents in their bargaining for clerks. Respondents are not required to scrutinize each contemplated clerks’ contract demand to see if it in any way affects location managers, with punishment for contempt as a possible consequence if they do not. The decree’s prohibition against demands that Safeway bargain “for” location managers extends only to demands that Safeway bargain with respondents, as representatives of managers, in the interests of and for the benefit of managers. What is prohibited by our decree are attempts of respondents to use their status as representatives of the clerks to force Safeway to accept demands pressed by them for and on behalf of managers.
This interpretation of our decree requires a quite different approach to the question whether in making the no-clerks’-work demand respondents were guilty of contempt. The question is not, as the majority would have it, whether that demand affects the terms and conditions of employment of managers in some manner. Rather, the question is whether the demand constitutes bargaining for and on behalf of managers. I think it is quite clear that it does not. On the contrary, the demand on its face constitutes bargaining for clerks and against managers. Its objective is to take work from the managers and give it to the clerks. Such an objective is often sought in collective bargaining for rank and file employees. All the parties agree that it is very common for collective bargaining agreements covering rank and file employees to restrict the non-supervisory work of management personnel. Looking no further than the terms of such a demand, then, it would in no sense seem to be violative of our decree. Whether the demand was nonetheless bad because not made in good *767faith raises a wholly different question, which will be put off for the moment.
The majority seek to bolster their holding with the rule that our decree should be interpreted so as to effectuate the policy of the Act. Apparently this rule is extracted from our case of N. L. R. B. v. American Potash & Chemical Corp., 9 Cir., 113 F.2d 232, 234-235, 129 A.L.R. 874. A brief look at that case will reveal that it lays down no such broad rule as that here relied upon by the majority. What that case says, in effect, is that a decree should be interpreted harmoniously with the Act, a proposition with which I have no quarrel. That does not at all mean that this Court may range through the Act and its history, deduce the “policy” of the Act therefrom, and then read such policy into a decree so as to give it a very different and much broader meaning than it had when entered. It is probably true that the purpose of the Board in issuing the order enforced by us was to serve the Act’s purpose of assuring to employers the undivided loyalty of their supervisory personnel, but the order and our enforcement decree undertook to achieve that end in only one way, namely, by prohibiting respondents from attempting to bargain jointly for both location managers and clerks. The question whether respondents have done what the decree prohibits is the only proper subject of concern here. Moreover, I cannot see that the principle of “undivided loyalty” of supervisors is in any way served by holding respondents’ no-clerks’-work demand violative of our decree. Indeed, it would seem that to prohibit location managers from doing clerks’ work would tie them more closely to Safeway’s management by eliminating that community of interest between these managers and the clerks which flows from doing the same kind of work.
There is next the question whether respondents in fact made the no-clerks’work demand in good faith on behalf of the clerks, or whether they pressed it for the sole purpose of forcing Safeway to accept the alternative (which respondents have at all times kept open to Safeway) of bargaining with respondents for location managers. If the latter interpretation of respondents’ conduct is correct, then they have indeed refused to “bargain collectively” for clerks, under the applicable “good faith” test of bargaining,9 by demanding as a condition to such bargaining that Safeway bargain for location managers, in violation of our decree.
The question, then, is whether the making of the no-clerks’-work demand amounts to a refusal to bargain in good faith. Our authority under the Act to determine when a bargaining demand is proper, or what is a “proper” subject of bargaining, is very limited. We cannot compel respondents to “agree to a proposal or require the making of a concession”. § 8(d) of the Act. We are not allowed to “sit in judgment upon the substantive terms of collective bargaining agreements.” National Labor Relations Board v. American Nat. Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027. The Court of Appeals for the Fifth Circuit, in holding that an employer had not violated a decree requiring it to bargain in good faith, had this to say:
“The law requires good faith bargaining with the purpose of reaching an agreement. It does not require that any particular form of *768agreement be reached. The respond-. ents did not ask a .-single thing of the union that it could not, if it wanted to, have agreed to. * * * It is not for us to determine whether the proposals of the union or those of the respondents would have been best for' employer and employee. It is sufficient for us to determiné that respondents have' not, in contempt of this court’s order, failed and refused to bargain.” N. L. R. B. v. Whittier Mills Co., 5 Cir., 123 F.2d 725, 728.
• At the same time I recognize that an absence of good faith in bargaining may sometimes be shown by patently unreasonable demands as well as by other circumstances. See N. L. R. B. v. Dalton Telephone Co., 5 Cir., 187 F.2d 811; N. L. R. B. v. George P. Pilling & Son Co., 3 Cir., 119 F.2d 32, 38. If respondents’ rio-clerks’-work demand, viewed in its setting, was wholly unreasonable and unprecedented as a matter of collective bargaining practice generally, or if it was such that it could obviously never be accepted by Safeway, or if it clearly served no legitimate interest of the clerks, then I would agree with the majority that in pressing it respondents failed to bargain in good faith. But unless the demand can be said to have reached those extremes, it is not for this’ court to pass upon its merits or speculate about respondents’ motives in pressing it.
I do not think the no-clerks’-work demand, tested, by these standards, amounts to a refusal to bargain in good faith. In their opinion the majority completely overlook the change wrought in the bargaining relationships between respondents and Safeway by the Board’s issuance of its order against respondents and our entry of a decree enforcing that order. The system of store operation described in Judge Pope’s opinion existed at a time when all of Safeway’s managers and clerks were represented by the same union, were in the same bargaining unit, and were covered by the same bargaining agreement. In such circumstances there was no reason for respondents to concern themselves with the question whether location managers should or should not do clerks’ work. So long as respondents bargained jointly for both managers and clerks, they were in a position to protect and further the interest of ’both.
The situation was quite different when respondents first made their no-clerks’work demand of Safeway. At that time respondents were subject to our consent decree which required them to bargain separately for clerks without injecting demands on behalf of managers into such bargaining. While respondents represented a majority of Safeway’s location managers at that time, there was no assurance that they would continue to do so. There are no unfair labor practices against supervisors. See §§ 2 (3) and 14(a) of the Act; Texas Co. v. N. L. R. B., 9 Cir., 198 F.2d 540. Safeway was free to discourage the union membership of its managers by such means as were available to employers before the passage of the Wagner Act. Moreover, Safeway could not be compelled by law to bargain with its managers and there were strong indications that Safeway was not inclined to do so except on its own terms.
How did all this affect clerks? Managers had always done a considerable amount of clerks’ work. There was no assurance that they would not be given more of such work when not covered by a bargaining agreement. It is not unusual to work supervisors long hours at a flat salary, and such a practice might well have proved profitable to Safeway. Nor is it unheard-of for employers to attempt to create additional “supervisory” jobs so as to place more of their employees outside the protection of the Act. See West Texas Utilities Co., Inc., 94 N.L.R.B. 1638; Jackson Daily News, 90 N.L.R.B. 565. In view of Safeway’s very determined stand against bargaining for manágérs, there may have been a not unreasonable suspicion that Safeway was seeking more than the “undi*769vided loyalty” of its managers. I do not presume to say what Safeway’s intentions were; I am here concerned only with what respondents, as representatives of the clerks, might reasonably have anticipated. In sum, they might have apprehended that a substantial part of the work of clerks would be taken up by supervisory personnel not organized for collective bargaining purposes.
In this context I cannot see that it was unreasonable for respondents to seek to restrict the “clerks’ work” of managers. As I have stated above, restrictions on the non-supervisory work of management personnel are commonly found in collective bargaining agreements covering rank and file employees in like circumstances all over the country. The Board and Safeway concede this. And the fact that such restriction is a common and traditional subject of collective bargaining is in itself a persuasive, if not conclusive argument that respondents’ demand for such restriction is within the sphere of collective bargaining which the Act meant to leave free from intrusion by either the Board or the courts. National Labor Relations Board v. American Nat. Ins. Co., supra. 343 U.S. at pages 405-408, 72 S.Ct. at pages 830-832. In the case just cited the Supreme Court said that “the term ‘bargain collectively’ as used in the Act ‘has been considered to absorb and give statutory approval to the philosophy of bargaining as worked out in the labor movement in the United States.’ ” 343 U.S. at page 408, 72 S.Ct. at page 831.
If by making the no-clerks’-work demand respondents were guilty of a refusal to bargain in good faith it must be because, in the particular circumstances of this case, the demand seeks to impose such an extreme burden on Safeway that respondents must know that Safeway not only will not, but cannot possibly accept it. The majority seem to take the view that the demand is of that character.
I am not convinced that what respondents seek would impose an impossible burden on Safeway. The majority say that to prohibit managers from doing clerks’ work is “no way to run a grocery store”, and that it would place Safeway at a severe competitive disadvantage. The argument seems to proceed on the premise that the only profitable way to run a grocery store is the way grocery stores have been run in the past, a proposition that is by no means a matter of “common knowledge.”
I cannot agree with the view that the no-clerks’-work demand is “beyond all reason.” This demand should be considered in light of a “bulletin” dated March 17, 1948, and issued to location managers by Safeway’s President, Lingan Warren. In that bulletin Mr. Warren stated: “A manager is not really managing unless he spends most of his time in planning the work, training and directing others in its accomplishment, and reviewing over-all operations to see that the desired results are obtained in the desired manner.” He then lists a number of such supervisory functions and concludes : “It should not be too difficult to convince a location manager that he can’t do a food clerk’s work and these things too.”
Having in mind this interesting pronouncement of Safeway’s highest officer, I cannot subscribe to the view that the no-clerks’-work demand is “impossible.” To take clerk’s work away from the managers might cause difficulty, and perhaps considerable difficulty to Safeway, but the same is also true of many union demands on employers which are not, for that reason, held to amount to a refusal to bargain in good faith. Though protesting vigorously against the demand, even Safeway does not assert that acceptance of it would create a situation that could not be met.
Finally, the majority do not know and I do not know precisely how far respondents’ no-clerks’-work demand seeks to restrict location managers in doing clerks’ work. We do not know, for example, whether respondents would allow managers to do clerks’ work when emergencies demanded it or to the extent *770necessary to demonstrate proper work methods to untrained clerks. Provisions for such eventualities are commonly found in bargaining contract clauses restricting the non-supervisory work of management personnel. The term “clerks’ work” as used in respondents’ demand has never been defined. An agreement between respondents and Safeway, dated July 24, 1950, which is apparently still in effect, provides that if the no-clerks’-work demand is held valid by this Court, then the clerks’ contract shall contain such a clause, and the parties “shall agree upon and include in said contract a definition of the term ‘clerks’ work’ as used [t] herein.” Precisely what work is or is not to be permitted location managers is apparently, a question which has been reserved for the bargaining table, and properly so.
I think that by holding respondents’ no-clerks’-work demand violative of our decree and ordering it withdrawn this Court invades the sphere reserved to the bargaining process. It may be, as Safeway seems to indicate, that to permit respondents to press this demand will force Safeway to return to bargaining jointly for managers and clerks, the practice which obtained before this long litigation was begun. It may be (although we cannot know) that Safeway will choose this as an alternative to accepting the no-clerks’-work demand. But that possibility should not affect our decision in the present posture of this case. It is not the province of this Court, as I see it, to insure that Safeway will have achieved its goal, but only to interpret and enforce our decree. That decree did not guarantee Safeway a clerks’ contract negotiated on its own terms.
I see no point in prolonging this already lengthy opinion with a discussion of respondents’ first and second demands. Suffice it to say that I think those demands, too, were legitimate bargaining demands on behalf of the clerks and were therefore not violative of our decree.
. Section 8(d) of the Act reads as follows:
“(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: • *