*1 objections waived to have deemed be comply.5 The failure to Steuart’s agreement introduced termination objec- without at the trial in evidence legal addition, was ar- effect its tion. gued orally parties both the court Joyce can- Hence written briefs. and in complain he was not prejudiced heard now by surprise.6

Affirmed. OF AMER

TEXTILE WORKERS UNION al., ICA, CIO, Agents, et Petitioners,

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 12248. Appeals Court United States District of Circuit. Columbia Washington, Feller, David E. D. Mr. Argued May 4, 1955. C., Goldberg, with whom Mr. Arthur J. brief, Washington, C., was on for D. Oct. Decided petitioners. Owsley Vose, Attorney, Mr. National Board, Labor Relations Supreme of the bar vice, Illinois, pro hac Court of Court, special leave of whom Mr. Mallet-Prevost, Marcel Asst. Gen. Coun- sel, National Labor brief, respondent. Mr. Robert Johnson, Washington, C., Atty,, al- G. D. respond- appearance so an entered ent. Powell, C., Washington,

Mr. Jerome D. appearance entered Per- behalf Corp., as Products amicus curiae. sonal EDGERTON, BAZELON, Before Judges. DANAHER, Circuit Moore, (2d denied, 5. 2 1695-96 Federal Practice L. 1948); City Bank, ed. Tillman v. National Ed. 521. 118 F.2d supra. City Bank, Tillman *2 extensions Judge. and unauthorized slowdowns EDGERTON, Circuit engaging by periods; in walkouts of rest peti- Union’s here on the This case is partial portions for of shifts or strikes review,- Board’s tion for inducing shifts; by employees or entire enforcement, order. a Board for perform work of other concerns not to amendments of the 1947 One refusing Company; to work for the 8(b) (3), § engag- overtime; special hours or (3), 141, 29 U.S.C.A. Stat. in conduct in similar or related bargain duty col- extends to unions derogation statutory duty to bar- bargain- 8(d) lectively. defines Section * * gain to decide wheth- We have ing collectively performance of “the er the order is valid. obligation- of the the mutual employees representative Courts have held that similar confer times to meet reasonable “unprotected”, union tactics are * * * obligation but such may lawfully employers dis sense that charge agree compel party either does not using But them. making require proposal know, court, until now no far as we * * U.S.C.A. concession 158(d). has been called to consider theory that such tactics are evi dence that a union is not good Shortly a collective before faith and therefore be forbid company between contract theory analysis. stand den. The will not 1952, they expired on Union began negotiations October slightest inconsistency There is not the contract. for a new genuine to come to an between desire agreement year no At the end of agreement pressure and use of economic not break reached. The Union did agreement get wants. the kind of one negotiations. The Board raised off might intimated, As the Board the Union having question met about the Union’s strike; have called a no inference of fail company par- and conferred with the ure faith could have argument persuasion ticipated in the withholding been drawn from a total bargaining process. The inherent in the during negotiations, services, in order to finding that the Union Board made no pressure tried to “frustrate yield As a to the Union’s demands. delivering collectively, by an ultimatum simple fact, equally it is clear matter on a ‘take it or leave it’ basis”. Cf. that no such inference can be drawn from Cong.Rec.4135. But the Trial Examiner withholding partial services at “de- Board found that purpose. is no time and for that legal There employer’shand in the cided ‘to force the ignoring basis fact. negotiations,’ then current a strike Though the National Labor Relations commonly ‘in the understood sense of negotiation encourages and seeks to word,’ har- a series strife, reduce industrial it does not for assing organized tactics: an refusal to industrial strife. Aside from some bid overtime, work an unauthorized exten- conduct, jurisdictional specified such as periods min- from 10 to 15 sion of rest secondary boycotts, strikes and we do not utes, direction of to re- find that limited the use of eco slowdowns, special hours, to work fuse support nomic lawful de inducing walkouts, and em- unannounced ployees mands. work of a subcontractor employer.” The Board found that for the International UAW Wiscon- Employment were “evidence that the sin tactics these bargain collectively failed to [Union] case, the like this involved “intermittent and faith”. The ordered (a) There, stoppages”. from: work Union to “Cease and desist unannounced “employer Refusing collectively here, was not informed * * * engaging Company, by any specific demands faith with the

4H Hearing designed the Board Examiner and to enforce these were tactics “upon the entire without dissent make found it could nor what concessions pursuant to § record Union’s avoid them.” The *3 (e) by a of the Act” as National Labor Relations leaders the union “described bringing up- the technique that union had refused to new good compa- pages collectively employer.” in faith with the U.S. sustaining only ny. not The Board based order page 69 S.Ct. against upon legislation in the described conduct and tactics directed State majority opinion “unprotected,” “Con- the as tactics, Supreme said: Court 8(b) gress Rela- of a series of violations § in made involving (1) (A) delegation power personal of of vi- express threats tions Act interfering olence, impeding par- and with permit forbid to the Board to or employees subpoenaed conduct, an ex- from which who been ticular union ingress testify blocking implied. physical power and of could be clusion of state ** * plant. specifically described The Board here is conduct [T]he pre- pro- empowered by by 10(a) and no of not this Act § is forbidden any engaging any ceeding person the Fed- vent from in un- is authorized which any may 10(e) provides practice, in man- labor with it fair eral Board deal findings “The with S.Ct. that of the Board re- ner.” 336 U.S. at questions spect supported of if fact substantial evidence on record con- part of the We have discussed sidered a whole shall be conclusive.” as is in issue. Other Board’s order that challenge The union does not the find- parts, in the Union not issue because ings Board, of the it does not disclaim its them, does direct not contest campaign “harassing tactics.” On the “threatening” from to cease and desist contrary, has insisted that its tactics working employees “reprisals” comprise merely proper use of its full testimony giving and for overtime strength, particularly since Board; proceeding before specific none of limitations set forth blocking pre- plant so entrances transgressed. are amounts It egress ingress employees; vent saying long pur- so union’s that any in other manner restrain- pose destroy is not to coercing employees in exer- adopt prac- union is free to rights cise of their under the Act. This tactics it tice select which have part of the order is not based the col- specifically not Con- interdicted requirements of the lective gress assigned juris- to the Board’s (1) (A), Act but on which makes diction. employees by restraint coercion Putting aside the fact that the tactics practice. a union an unfair The one of the elements in the total- find, suggest, Board did not does ity record, majority say that general that misconduct in abuse may not, law, the Board as a matter particular is evidence of a conclude that the tactics are “evidence” refusal faith with an the union is not employer. up- It seems rest its conclusion So much of the Board’s order as rests on International UAW v. Wiscon- upon supposed refusal Board, Employment sin aside. much will set So as rests 516, 527, restraint and coercion 651. The Court there held that federal will be enforced. legislation denying afforded no basis “for part. part, set aside Enforced power, governing to Wisconsin regulate affairs, her internal course Judge DANAHER, (dissent- conduct neither made a under Circuit ing). law nor a violation of it and federal Inc., 1953, in this coercive effect obvious U.S. 73 S.Ct. 832; have before L.Ed. device.” The Home Ins. Court did Beneficial Life question conduct Co. it the v. National whether Labor Relations might

that case .evidence constitute bargaining. denied, 1947, The lack of faith in the 92 Board here L.Ed. 344. has not asserted of federal “tactics” constitute a violation Supreme repeatedly Court has taken It law. has said that such conduct prime stated purposes that one of the “on factors into account with all other of the National Labor finding justified the entire record” amended, is the achievement of indus *4 good failure to faith. peace. lately trial As as last December Surely competence Court, holding guilty employer it is within the practice, of an unfair said, to in- “If an one of the functions of the employer has quire doubts about to problems his into and aris- to decide bargaining, responsi continue it is ing his 8(d) from The Labor Act. bility relief, to the Board for Management im- Relations Act of continuing while to faith posed identically the unions given until the Board some least duties faith same to indication that his claim has merit.” previously which National La- under the Brooks Board, National v. Labor Relations applied bor Relations 96, 103, unnecessary employers. It is deemed employer expressly Here the 181. repeated cite the be found in instances to “[Congress] turned Board. went reported cases where an primary interpretation on to confide was found failed to Board to have application specific of its rules to a bargain in 29 U.S.C.A. See specially pre constituted tribunal and my judgment the un- 158 note 265. particular procedure scribed a inves designed unilaterally actions were ion’s tigation, complaint notice, hear change working conditions ing decision, including judicial re bargaining process, in fact I can attrib- pending lief a final order. administrative other ute no effect to the series sudden Congress evidently considered that cen of entire unannounced walkouts tralized specially administration of de shifts, deliberate slowdowns and refusals signed procedures necessary was to- ob special to work overtime and hours. Cer- application tain uniform of its substan tainly, majority notes, as the the union tive rules and to avoid these diversities strike, have could called a and thereafter likely and conflicts to result a vari from negotiated it could have with further the. ety procedures of local and attitudes employer. It have continued could toward labor controversies.” v. Garner negotiations pro- at work members while Teamsters, Helpers Chauffeurs and Local ceeded. It did was not neither. This “a Union, 1953, n situation in which ceased work 161, 165, 98 L.Ed. 228. “On the basis against protest imposed conditions allegations, petitioners could the ployees but one in which the em- presented grievance have the Na sought and intended continue tional Labor Relations The re Board. work their own notion of terms spondents subject being were sum right prevail. they which should If had a body moned justify before that employment, to fix hours of their grievance conduct. We think the follow would that a similar existed litigation subject in the tribunals condi-, they prescribe could all Id., of the State.” U.S. at regulations affecting tions their em- 74 S.Ct. at ployment.” Conn, C. G. Ltd. v. National opinion In our noted: Cir., Labor Respondents engaged “The Rockaway Supply Co., unprotected Board v. News these concerted activi- processes peace, of collec- purported dustrial time when ties at a imported were conferring tive with to be “The federal law enforced. negotiations. These and are to be employer in increased, de- than Act has rather unprotected interfered tactics legal responsibilities creased, of la- strong production and organizations. Certainly bor employer who was pressure on the organiza- making any expressly relieve labor did not thereby disabled liability conduct. for unlawful plans tions production de- dependable sought empower primarily federal Moreover, It livery commitments.9 through body, regulatory administrative not informed prac- procedure, to forestall unfair labor specific tactics which these demands by anyone affect- designed tices in circumstances what nor to enforce were Con- avoid interstate commerce.” United make to it could concessions Workers, United struction Affiliated with it clear that them.10 We think harassing Mine Workers America Laburnum Corp., 1954, Const. of the union’s an abuse *5 833, 839, 98 L.Ed. 1025. Thus powers- the S.Ct. —-‘irreconcilable union, imposed upon requirement dis- the of reasoned Act’s background upon previously the of bal- in a cussion bargaining to faith. relations anced unanimously here concluded that the un- must faith process impaired ion had failed to rest’11—which chang- “Respondent’s unilateral action that Con- collective ing working during bargain- encourage gress conditions to intended not ing, departure now admitted be a protect. bargaining, subject is the “Although employer could le- an enforcement order issued the court gally self-help have resorted to challenged in below and not this Court.” discharging employees for such con- (Emphasis supplied.) National Labor retaliating by shutdown, duct Relations Board v. American Nat. Ins. did not do so. Nor did it refuse it Co., 1952, 395, 824, 409, 343 U.S. bargain. sought Instead, it a 832, applies 76 L.Ed. 1027. What remedy by filing much less drastic employer applies union, my to the un- charge, requesting present derstanding. investigate adjudge Board to Respondents’ conduct under the fed- majority It seems to me that the errs eral act.” dealing though, with this case once again, judges the same were confronted majority correct, Yet if the the em- be presented with a situation as was remedy discharge ployer’s will 1229, in Local Union No. International who use Workers, of Elec. Brotherhood v. N. L. R. Surely, retaliate a shut-down. B., U.S.App.D.C. 1952, 333, 91 202 F.2d in the interest of elimination indus- 186, reversed, 1953, 464, 346 trial strife and the achievement of in- U.S. 74 S. type disruption Omitted] “9. [ This is not con strike; there, [sic] commitant after “11. The Board so characterized a slow surprise an unannounced the initial negotiations down Phelps the course of walkout, company knows wliat it Dodge Copper Corpo Products accordingly. plans has to See do and [Again, ration, N.L.R.B. 101 360 368.” UAW, AFL, International Local pointed. Board’s footnote is Collat 245, B., 232 v. E. R. W. erally it be noted that to the extent [page] 516, 651].” 93 L.Ed. [69 S.Ct. proscribed by Act, may be strike opinion im footnote to the Board’s [This by definition, includes, language also Supreme pels Court’s recourse to the “any con slow-down or other concerted larger understanding opinion for a interruption operations by em certed reference.] ployees.” 142.] 29 U.S.C.A. § 172, go Ct. ed quit 98 L.Ed. 195. We are not called on a strike and employment, they here decide whether the tactics could not continue protec positions, have been work cept withdrawn from the and remain at their ac- although wages paid them, tion of 7 of the the ma and at jority recognize part held same that “Courts have time select what of their al- ‘unprotect perform that similar lotted union tactics are cared to tasks ” ed,’ my Nor, volition, openly their own the Board found.1 or refuse judgment, majority secretly, employer’s damage, is correct for the to do say have other because a strike could work.’ National Labor Relations called, Montgomery Inc., Co., can Board v. no bad faith “inference Ward & withholding partial 486, be drawn from a [8 157 F.2d Hoo- 496].” B., Cir., services ver 1951, ... order to eco Co. v. N. L. R. 380, 475, employer.” page nomic A See U.S. at 74 S.Ct. 172. thing, lawful strike is one and a “sit down” strike is another. National La I believe that to be a correct statement bor Relations Board v. Fansteel Metal law, suspect and I the Su- lurgical Corp., 1939, 240, preme S. so, Court thinks too. In National Ct. 83 L.Ed. 627. And see National Labor Relations Board v. Local Union Labor Relations Board Local No. International Brotherhood of Workers, supra, said, No. International Electrical Brotherhood of the Court Workers, page 476, Electrical U.S. at 74 S.Ct. at “Nothing in footnote 178: could be further purpose require cases cited. of the Act than to *6 to finance such activities. strike, In a lawful the strikers under Nothing would contribute less to the still retain the status of “em- purpose promoting Act’s declared in- ployees” advantages and have all the peace stability.” dustrial (And see they organization and their are 12.) footnote entitled under the law. But “An em- ployee majority say can not work and strike at the that the conduct de- same time. He can not continue in scribed in its order his not be consid- employment openly secretly ered as re- “evidence” that the union failed bargain collectively fuse to do his work. He can faith, not collect al- in. wages employment, though and, slightest suggestion his there' is engage time, injure same justify activities that the facts failed to the find- destroy employer’s ings, light his ‘It nor could business. there be in the implied hiring was majority contract of concession made to us. The lay that these reprisals, would do the work aside the threats of assigned blocking ingress by plant to them in a careful and work- cars manner; they shop manlike that would com- chairman and various other ply with all reasonable orders and coercive conduct con- which “the union does charg- duct themselves so as not to work in- contest.” But the Board was jury employer’s business; ascertaining “good ed with the faithfully would serve faith” on and be re- the whole record. The vari- gardful types up of the interests of the ous of conduct disclosed made service, findings the term of their and that record. “Not are the discharge carefully respect of the Board duties to conclusive with * * * reasonably required. questions extent sup- of fact in this field when ported While these had the substantial undoubt- evidence on the expressed 1. The union its brief the Act.” the belief But see International Union of disposed Agricul that this case can “be Automobile Aircraft & without United reaching Implement the issue as to whether tural Workers of America v. unprotected,” O’Brien, 1950, 459, 454, activities are but contends 339 U.S. 70 S. protected by 781, the tactics “are § 7 of Ct. L.Ed. 978. statutory where, here, standard such whole, in- Board’s record as a ‘good meaning only in faith’ can Board’s have terpretation of the Act application particular facts of application situations init doubtful particular Re- weight. Labor of a case.” National views In the are entitled to Co., Ins. find lations Board v. American Nat. applied case we to this the Board as congressional supra, conformity 343 U.S. at 72 S.Ct. with the dual had full preserving la- “We think the Board objectives authority bring pressure organizations a fact wheth- to determine as bor acting petitioner faith or offending primary employers er bear on shielding mere amounted to a disputes whether its actions unoffend- bargaining,— pres- superficial pretense employers and others actually the intent to bar- whether it had their own.” in controversies sures earnestly, gain, sincerely and Board Den- —whether negotiations captious Council, Bldg. and ac- Trades & Const. ver purpose 943, 953, companied in- 675, 691, 692, an active 71 S.Ct. bargain- real to defeat or obstruct the Court tent 1284. Granted 95 L.Ed. Singer Mfg. ing. (A) [Citing dealing (4) Co. cases.]” with a there B., Cir., R. v. N. L. principle me control- seems to denied, 1941, ling confronted not even here. We are 1119, 85 L.Ed. rehear- evidence, for the union a conflict ing denied, 1941, had ordered the use conceded demands, nor is an enforce its deny respect petition the other co- I to set aside raised would issue grant Board’s order and would Our role in such situa- conduct. ercive “special applicability for enforcement. to cases tions