# National Labor Relations Board v. General Electric Company, and International Union of Electrical, Radio, and MacHine Workers, Afl-Cio, Intervenor > Court of Appeals for the Second Circuit · October 28, 1969 · 418 F.2d 736 URL: https://www.frixlaw.com/law-library/cases/9455063 ## Case - **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL ELECTRIC COMPANY, Respondent, and International Union of Electrical, Radio, and MacHine Workers, AFL-CIO, Intervenor - **Court:** Court of Appeals for the Second Circuit - **Decided:** October 28, 1969 - **Citations:** 418 F.2d 736; 72 L.R.R.M. (BNA) 2530; 1969 U.S. App. LEXIS 10268 - **Precedential status:** Published - **Opinion:** Concurrence by Waterman - **Judges:** Friendly, Waterman, Kaufman - **Cited by:** 80 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9455063 ## Opinion text WATERMAN, Circuit Judge (concurring). I fully concur with my brother Kaufman. Without differing from the majority opinion in any way and without reiterating its arguments, I would challenge my brother Friendly’s dissenting assertion that the standard set forth by Judge Kaufman for determining overall bad faith is vague or difficult to apply. A company may make a firm, fair offer to the union and may stand by that offer, but the company should not be permitted *764 to advertise to its employees that it believes in the firmness of its offers for the sake of firmness. We recognize that a company is entitled to insist on the terms of its original offer if it believes that the union can be made to accept that offer. That GE refused to yield to union demands without giving reasons based upon cost, maintained a “stiff and unbending” posture, used a unilateral letter of intent when final agreement was reached, failed to make significant concessions, and publicized its offer without waiting for union suggestions do not indicate anything except that GE made and stood by what it conceived to be a fair, firm offer. What makes these practices unfair is GE’s “widely publicized stance of unbending firmness,” that is, GE’s communications to its employees that firmness was one of the company’s independent policies. Two distinct evils derive from such publicity. First, publicity regarding firmness tends to make the company seal itself into its original position in such a way that, even if it wished to change that position at a later date, its pride and reputation for truthfulness are so at stake that it cannot do so. Second, publicity regarding firmness fixes in the minds of employees the idea that the company has set itself up as their representative and therefore that the union is superfluous. Doubtless these evils exist to some extent whenever a company makes, and stands by, a firm fair offer even when there is no company publicity of the kind here involved. However, it seems clear that publicity tends to amplify these undesirable tendencies to the point that, in a case such as this one, the amplification can well be construed to have been activated by a company motive not to bargain in good faith. On the other side of the ledger there is very little positive good which can derive from company publicity which indicates that a company believes in firmness for firmness’ sake. The free speech benefits of publicity in labor negotiations lie in the fact that, informed employees will better know whether to vote for or against a strike and how to evaluate the union’s performance on their behalf. These benefits can all be reaped by a company which advertises the terms of an offer and its belief that these terms are fair, without also stating that as a matter of policy it can never be persuaded to change the advertised terms. Such advertisement could only ténd to convince employees that because firmness is a company policy it is also a company policy to ignore the union. A company, of course, can advertise its belief that its offer is fair, and that, at the particular time, it sees no reason to change its offer even to forestall a strike. This kind of statement is different from advertising that it is company policy never to change any offer in response to union pressure. This view does not differ from that of the NLRB, nor does it indicate that the Board reached the right result for the wrong reasons. The trial examiner, whose opinion the Board adopted, specifically condemned GE’s declarations that “a union could obtain no added benefits that it would not otherwise grant.” 150 N.L.R.B. at 279. Because of this dominant wrong, we agree with the trial examiner that other aspects of the communications program also evidenced bad faith on the facts of this ease although not as a matter of law. 150 N.L.R.B. at 274. It does no violence to the doctrine of SEC v. Chenery Corp., 318 U.S. 80, 95 , 63 S.Ct. 454 , 87 L.Ed. 626 (1943) to point out which of those factors correctly relied upon by an agency in the case at hand will also be instrumental in determining decisions in the future. FRIENDLY, Circuit Judge --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9455063. Public record. Not legal advice.