(concurring) .
Were the only question in this case whether the record as a whole supports the Board’s finding that, as charged by the Union and alleged in Par. 8 of the complaint respondent refused to bargain in good faith with the Union, in violation of Sec. 8(a) (5) (1) of the Act, I would content myself with concurring in the view of the majority that, under settled law, N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027, it does not.
In view, however, of the issue discussed in the opinion of the Board and that of its dissenting member and in the majority opinion and that of the dissenting judge of this court, whether the Board’s opinion, that the charge was proved, was incorrectly based on matter not properly before the Board because it was not embraced in the charge, and because I agree with the dissenting member, I have concluded to point out briefly why I think that the Board majority was wrong, the dissenting member right.
First, it is to be noted that in the charge against employer filed by the Union on May 20, 1954, Rec. p. 19, 20 and 21, only two violations were charged. One of these was that on or about November 20, 1953, respondent refused to bargain collectively with the Union. The other was that on or about April 23 and April 24, 1954, the dates named in the charge, certain employees were discrim-inatorily discharged.
Second, it will be noted that, while paragraph 8 of the complaint, record p. 88, alleges, as was charged in violation No. 1 of the charge, that on or about November 20, 1953, respondent refused to bargain, violation No. 2 of the charge, the discriminatory discharges of employees complained of, was not alleged.
Third, and this is the crux of the matter, paragraph 9 of the complaint, alleging:
“On or about Oct. 7, 1954, [a date five months after the filing of the charge], respondent, without notice to the Union, put into effect a general wage increase for all employees in the unit described above in par. 5.”
undertakes in effect without any charge supporting it to complain of a violation having no connection with or relation to the two violations charged to have occurred before the charge was filed. The result is that the examiner, the majority of the Board and the dissenting judge in this court have been led to find a violation of the matter charged in paragraph 9 of the complaint, on the specious claim that the matter so alleged was supported by the charge. In saying this, I agree with the dissenting member of the Board that but for this allegation, unsupported by any charge and for the proof that came in under it, there was, there could be, no reasonable basis for the finding of the Board. Without aid from this source, in short, the Board’s finding, that the respondent did not bargain in good faith, runs directly counter to the teach*859ings of the statute, the American National Insurance Company case, supra, and all the cases following in its train, including White v. N.L.R.B., 5 Cir., 255 F.2d 564, April 23, 1958. In short, what has happened here is that by the device of injecting into the case entirely new matter completely unrelated to the charge, the regional director, in violation of the provisions of the Act, that no complaint can be filed except one based upon a charge, has filed a complaint, and the Board has heard and condemned the respondent in respect of matters which, because of the lack of a charge, were not before it. In my opinion, none of the cases cited and discussed support the Board’s finding, and I concur in denying enforcement.