The opinion
WEICK, Circuit Judge
(concurring in part and dissenting in part).
In my opinion there is substantial evidence of violations of § 8(a) (5) and (1) of the Act by refusal to bargain in good faith.
Strutz’s insistence on a certain method of ratification of the agreement by the union members is a clear violation of the Act. It is equally clear that the company could not refuse to bargain on the ground of any doubt as to the majority status of the union within one year of certification. In my judgment, the refusal of Strutz to submit a contract proposal to the president of the company supported a charge of bad faith bargaining.
The law, however, is clear that the Board has no authority to order an employer to execute a contract which contains terms to which he has not assented. Section 8(d) of the Act specifically so provides. H. K. Porter Co., Inc. v. NLRB, 397 U.S. 99 , 90 S.Ct. 821 , 25 L.Ed.2d 146 (1970).
I depart from the majority opinion in its holding that substantial evidence on the record as a whole supports the Board’s finding that agreement was reached on the vacation term and, therefore, the Board is entitled to enforcement of its full order, including that part which requires the company to execute the contract.
The trial examiner found:
“Based on uncontradicted testimony I find that the parties agreed that any contract reached by the negotiators, Donald F. Strutz and Eugene Cawvey for Respondent and Lloyd C. McKim for Local 580, would be subject to ratification by Charles Seyfert, Respondent’s president, and by vote of the employees in the bargaining unit.” (Footnote omitted) (App. at 48)
*95 This finding was adopted by the Board (App. at 46), and the majority has noted both the validity of such an agreement and the binding nature thereof. See footnote 2, supra. Starting from this premise of the scope of the agents’ authority to bargain for the company in this case, I am unable to find a scintilla of evidence to support the finding that the company president ratified the agreement which included the vacation proposal.
Granting that the trial examiner found that Strutz represented to the union negotiators that it would not be necessary to get the president’s approval of the proposed change, it does not follow that an agreement was reached. Strutz’s agency was limited, and he had no authority to bind his principal to a contract. He could not enlarge on the scope of his agency by his own declarations and acts, and the union, which had actual knowledge of the limitations on Strutz’s authority, could hardly rely on any such declarations. Agency cannot be established by the acts and declarations of the alleged agent. Atchison, Topeka & Santa Fe Ry. Co. v. Bouziden, 307 F.2d 230 (10th Cir. 1962). Particularly is this true where the authority of the agent has been clearly delineated by agreement of the parties.
Assuming that the vacation proposal is company policy for inside employees, there having been presented no other evidence to show ratification by the president, the policy with respect to inside employees is not sufficiently probative to be “substantial” evidence where the inside employees are members of a different bargaining unit.
There is not an iota of evidence that the company president ever saw the proposal, let alone ratified it. While this may be an element of bad faith bargaining, it nevertheless will not support the conclusion that there has been agreement. See San Antonio Machine & Supply Corp. v. NLRB, 363 F.2d 633, 636 (5th Cir. 1966).
In our opinion, H. K. Porter, supra, is controlling. In H. K. Porter the Supreme Court held that the Circuit Court could not grant enforcement of a Board order requiring the company to execute a contract which contained a provision to which it had not agreed apparently for the sole purpose of frustrating the union. The Court reasoned that the provision involved a mandatory subject of bargaining, and, regardless of the company’s conduct, it could not be required to agree to the provision.
It appears that in the present case the Board has attempted to circumvent the restrictions of section 8(d). There is not a shred of evidence that the company president agreed to the proposal. By characterizing a vacation change as minor, the Board attempted to expand the authority of the company’s bargaining agent to include approval of this change. This is not a case of a minor change in an agreement. It involved a mandatory subject of bargaining. Under H. K. Porter, it is clear that the Board could not compel the company president to agree to the vacation change in spite of the fact that there was no company policy against it, and the fact that it would cause the company no great inconvenience.
Since it cannot compel the principal directly, it cannot do so indirectly by gratuitously expanding the agent’s authority contrary to the agreement of the parties.
The remarks of the Court in H. K. Porter are particularly apt:
“It may well be true, as the Court of Appeals felt, that the present remedial powers of the Board are insufficiently broad to cope with important labor problems. But it is the job of Congress, not the Board or the courts, to decide when and if it is necessary to allow governmental review of proposals for collective-bargaining agreements and compulsory submission to one side’s demands. The present Act does not envision such a process.” 397 U.S. at 109 , 90 S.Ct. at 826 .
*96 The burden of proof was upon General Counsel for the Board to establish by a preponderance of the evidence that the president ratified the proposed agreement negotiated by the company’s negotiator. He offered no proof tending to show such approval.
The fact that the president of the company was not called as a witness to testify did not operate to overcome the deficiency in the Board’s evidence. In my judgment, there was no duty on the part of a litigant to offer proof where his adversary has failed to make out a case.
The appropriate remedy in this case is only to order the company to bargain in good faith with the union.