Dissenting Opinion by
Mr. Justice Cohen :Both the Referee and the Board found as facts that spokesmen for Philco Corporation on many occasions insisted that its proposals had to be adopted on the new collective bargaining agreement or the plant would be required to close. They also found that no statement was made by any spokesman for Philco at any time that continued work was available under the same terms and conditions which existed under the expiring collective bargaining agreement. Thus, we have a situation that from November, 1963 up until March 23, 1964, the Union and Philco were negotiating to replace the expiring collective bargaining agreement. Then on March 23, 1964, Philco submitted to the Union a demand for changes to be made part of the new agreement. These changes would have substantially reduced the benefits received by the employees in prior contract agreements. Philco at that time indicated that these proposals must be accepted or the plant would be closed.
Such a technique, namely, “the take it or leave it” approach is held to be bad faith collective bargaining. Philco did not retreat from its bad faith technique from March 23, 1964 until April 26, 1964, and at no time did Philco indicate to the Union that work was available under the same terms and conditions as contained in the expiring agreement. I cannot see how, under those circumstances, it then becomes necessary for the claimants to perform a futile act in view of the adamant bad faith position assumed by Philco in order to make what was an apparent lock-out even more apparent.
This case is succinctly summarized in the decision of the Board as follows: “The record reveals that the collective bargaining agreement entered into by the *112Union and Philco corporation on April 30, 1962 was due to expire on April 26, 1964. That from November, 1963, until the contract expired, at 12:01 a.m., April 26, 1964 fifteen to twenty meetings were held in attempts to reach satisfactory terms for a new agreement. The record further reveals that the Union prior to March 23, 1964 submitted its proposal for a new agreement to the Corporation and on March 23, 1964, the Corporation submitted to the Union its proposals which it demanded had to be made a part of the new agreement. The proposals by the Corporation would have substantially changed and done away with terms and conditions won by the employees in prior contract agreements. The Corporation, from March 23, 1964 up to April 26, 1964, refused to change its position that the Union must accept its proposals or else the plant would be closed. The Law contemplates that collective bargaining must be conducted in good faith using sincere purpose to find a basis for agreement. The Corporation’s adamant attitude and its ultimatum that its proposals must be accepted or the plant would be closed gave the Union no choice but to remain away and not to report for work. It is not necessary for claimants here to perform a futile act and report to work when they knew that work would not be available to them under the same terms and conditions that existed prior thereto. The Board, therefore, concludes that the reason for the work stoppage must be assessed against the employer and that it was due to a lockout and, accordingly claimant cannot be disqualified from receiving benefits under the provision of Section 402(d) of the Law.”
All the findings of fact and conclusions of the Board are amply supported by evidence and the decision of the Board under applicable law should not be disturbed.
I dissent.
Mr. Justice Eagen joins in this dissenting opinion.