(dissenting in part and concurring in part).
I dissent from Judge Bastian’s opinion and proposed judgment in No. 13394, relating to the Teamsters. In a nutshell my view is that the hot cargo clause cannot be enforced by a strike, because such a strike or refusal to work is flatly forbidden by Section 8(b) (4) (A) of the Act.
A strike is a concerted refusal by employees to do work the employer wants done. This is the purport of the opinions on. the point.1 A refusal to work is likewise a declination directed at the employer. So, if an employer and his employees agree that certain work shall not be done, and it is therefore not done, there is no “strike” or “refusal to work”. Section 8(b) (4) (A) forbids only “a strike or a concerted refusal in the course of their employment”.
It follows from the foregoing that, if an employer and his employees agree by contract that the employees need not handle certain goods, and both abide by their agreement, there is no “strike” or “refusal to work”. But, if an employer, having entered into such a contract, thereafter refuses to abide by his agreement and directs his employees to handle the goods, and his employees refuse to do so, there is a strike or refusal to work. Such a strike or refusal to work, where an object is to force the employer to cease transporting the products of another producer, is forbidden by the statute.
It may be that the right vouchsafed the employer by Section 8(b) (4) (A) cannot be nullified by contract. Section 7 rights cannot be contracted away.2 And it can be argued that when Congress meant Section 8 rights to be subject to contract it said so, as it did in Section 8 (a) (3). But I need not reach that question, and, since the answer, one way or the other, involves such sweeping considerations, I do not undertake it. On the other hand it may be that the hot cargo clause is a valid contract agreement between the carriers and their employees and may validly be carried out by both parties. But even so, when a carrier refuses to comply with the contract, even though he is thereby violating the agreement, the Teamsters, his employees, may not strike or refuse to work in order to prevent the handling of the struck goods. I think the employees may not violate the statute in order to enforce their agreement with the carrier.3
The sum of it is that Section 8 situations can legally be avoided, by contract or otherwise. Employers and employees need not so conduct themselves as to give rise to Section 8 prohibitions. But the terms of the statute cannot be nullified, by contract or otherwise. And so employers and employees cannot agree that even if a situation covered by the statute does occur the statute shall not apply.
*77I do not agree with the argument that the hot cargo clause has the effect of removing struck goods from “the course of their [the Teamsters’] employment”. If such a construction could be placed upon the phrase in Section 8(b) (4) (A), careful contract draftsmanship could legalize without qualification any otherwise prohibited activity, e.g., the jurisdictional strike, the sympathy strike, and the wildcat strike, by artificially exempting the work involved from the course of the employment governed by the contract. I think the statute cannot thus be nullified.4
One of the carriers involved here adhered to its agreement and would not request its employees to handle the goods. Its employees did not strike. So in that particular case I would not affirm the cease and desist order. As to all the other carriers I would affirm as to the Teamsters.5
I concur in Judge Bastian's proposed judgment in No. 13406, relating to the Machinists. I also agree with his opinion in that regard, except that I add, since as I have pointed out I think the hot cargo clause could not be enforced by a strike, that it could not have been so enforced by the Machinists even if they had been parties to the contract.
. See Restatement, Torts § 797 (1939), and the many cases collected under “Strike” in Words and Phrases, especially in the pocket supplement.
. National Licorice Co. v. National Labor Board, 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799 (1940). See also Bethlehem Steel Company, 89 N.L.R.B. 341 (1950).
. Strong evidence of the public interest in the problem is afforded by the fact that the motor carrier which honors a hot cargo clause thereby violates duties owed the public, breaches other contracts, and may well be in violation of another public law, Part II of the Interstate Commerce Act, 49 Stat. 543 (1935), as amended, 49 U.S.C.A. § 301 et seq. See the Examiner’s Decision in Galveston Truck Line Corp. v. ADA Motor Lines, I.C.C. No. MC-C-1922 (April, 1957), which involves actions of our appellant Teamsters, Local No. 886, and cooperating motor carriers.
. The Board’s rejection of this argument on another ground, Sand Door & Plywood Co., 313 N.L.R.B. 1210, 3217 (1955), was cited with approval by the Sixth Circuit in National Labor Relations Board v. Local 11, United Brotherhood of Carpenters, 1957, 242 F.2d 932.
. In National Labor Relations Board v. Local 1976, United Brotherhood of Carpenters, 241 F.2d 147 (1957), the Ninth Circuit reached the result suggested in this dissent. See also National Labor Relations Board v. Local 11, United Brotherhood of Carpenters, 6 Cir., 1957, 242 F.2d 932.