(dissenting).
I respectfully dissent. I think the record as a whole supports the decision of the Board that the Company refused to bargain in good faith upon the issues of Union security and contract duration.
The examiner dictated his oral findings and conclusion into the record and the Board stated that this fact compelled the Board to write “a complete and detailed decision.” There is no conflict in the testimony which placed the examiner in a better position than that of the Board in deciding these issues.
The examiner in a brief sentence stated the successive Union proposals, from Union Shop to Modified Union Shop to maintenance of membership; in two brief sentences he stated the Company’s only counter-proposal and that the Company “opposed Union Shop” on the ground that it interfered with free choice of the employee regarding representation. He concluded that he found no evidence of bad faith. He made no reference to the Company’s opposition to maintenance of membership, and did not relate the Company’s position on contract duration to its opposition to Union security or to the record as a whole.
The Board found that the Company met the Union Shop and Modified Union Shop proposals on the basis that they did not give employees a free choice of membership or non-membership, and that an employee should not be required to join a union against his will to keep employment; and that when the final maintenance of membership proposal was made, the Company objected that this did not give members freedom to resign. It found that the Union offered to conduct an election among employees on Union security and to withdraw its proposal if a majority voted against it, provided that if a majority voted for it, the Company would agree to the proposal, and that this offer was rejected. It found, as the examiner did, that the only counter-proposal was the check-off, revocable by employees. It reviewed the Company’s testimony with respect to its insistence that Union security was inconsistent with the industry practice. Its conclusion pointed to weaknesses in the Company’s testimony on industry practice and to the shift in Company position from its early rejection of Union proposals because of requirement of joining, to its final rejection of maintenance of membership because it deprived employees of freedom to resign.
The Board should not be bound here by an earlier decision which justified “an adamant stand against union security where the employer was willing to discuss the issue. * * * ” The adamant stand the Board saw here was in the very unwillingness of the employer to discuss the issue.
At the same time that the Company was rejecting the proposals for any kind *879of Union security it was likewise insisting that any contract term should not extend beyond a year from the October 31, 1962, certification because of the narrow Union majority in the election and the fact that the employees had never lived under the Union and should be given an opportunity a year from the certification to express themselves. Even the examiner was troubled about the reasonableness of this position, under which if all matters in issue had been resolved late in August — when the Company was still persisting in that position — there would be but a two month contract.
The examiner’s oral decision stated that under prior Board cases an employer could insist on a “short-time” contract so as to test the Union majority status at the end of a certification year “provided” that there was no contention of bad faith in negotiations, and then concluded that “as I find no such context here,” there was no warrant for a finding of violation of Section 8(a)(5). The basis of this conclusion was the narrow margin of the Union victory in the election and the subsequent employees’ petition and the unsuccessful strike.
Since the Company’s position on duration of contract was the same from the very beginning, based on the slenderness of the majority of the Union, the Board could properly infer that the Company could not have had a good faith doubt at that time about the Union status. And what later happened with respect to the employees’ petition and the strike did not put the original reason for the Company position in any different light.
The decision in Philip Carey Mfg. Co., Miami Cabinet Div. v. N.L.R.B., 331 F. 2d 720, 724, 734 (6th Cir. 1964), relied on by the majority, is not controlling. There the certification year had ended and a strike had caused permanent replacement of enough Union members to justify the court’s holding that “Since the Company had well-founded doubts about the Union’s majority status, it could have refused to bargain at the expiration of one year after the Union’s certification.”
It is my view here that the' Board could reasonably infer that the Company, while frustrating the bargaining with respect to the Union security clause, “desired to prevent its employees” from living under the Union for a reasonable time; that despite the fact that during the negotiation 75 clauses on other matters were agreed upon, the Board could find that the Company from the very beginning “took the adamant positions it did to frustrate bargaining”; and that the Company was guilty of an unfair labor practice in refusing to bargain in good faith.
I would deny the petition to set aside the Board’s order.