(concurring in the result):
My reading of the record convinces me that the Union was given a full and complete opportunity to present its defense of substantial compliance and that the defense was considered by the district judge. Having considered the evidence the district judge simply did not believe that the Union had in good faith done everything it should have done to bring the strike to an end. In my opinion the record supports the court’s conclusion; certainly that conclusion was not clearly erroneous.
At the hearing on the motion to show cause on May 3, 1974 the court heard the testimony of Mr. Davis, President of the Union, Mr. Richmond, Secretary-Treasurer and Assistant Business Agent, and Mr. Sternstein, the Union Attorney. Thereafter the Union filed a long affidavit'from Mr. Richmond setting out the activities of the Union with respect to the strike. Before entering his final order the court noted that he had read this affidavit. [J.A. 289] The court found Mr. Richmond not guilty of contempt, obviously on the ground that Mr. Richmond had in good faith behaved properly. I do not understand therefore how it can be said that the court did not consider the Union’s defense.
It is apparent to me that the court believed the Union’s alleged efforts to terminate the strike were half-hearted and not in *291good faith. Thus the court did not believe that at the mass meeting of Union members on the night of May 3 Mr. Davis “urged them to return to work”. On the contrary, the court pointed out [J.A. 186] that in his prepared statement to the members Mr. Davis said:
When this membership voted to go out on strike as of midnight, May 2nd, I told you then and I still believe that the strike was a lawful response to the company’s unlawful failure to bargain in good faith and in compliance with the law and our 13-C agreement.
sjs >‡$ sit * * *
While I hate like hell to have to say this, unless and until that injunction is set aside, it does not make any sense for us to undertake the personal liability.
The court asked Mr. Davis, “In your opinion, is that encouraging the men back to work?” Although Mr. Davis responded “Yes” I think the court was entitled to find that the clear implication of the Davis remarks was that he did not really want the men to return to work. The record also shows that the Executive Board of the Union, which in a secret session on May 1 had voted to call a strike, did nothing to rescind that vote after the restraining order was issued and before a hearing on the contempt motion. [J.A. 178, 180] As for the charge that the Transit Authority interfered with the restoration of service, the record shows that the Authority quite properly insisted that the buses be driven by their regular drivers. The Authority could have reasonably believed that assigning drivers to routes or areas of the city with which they were not familiar would disrupt service.
The district judge had before him the uncontradicted affidavit of the Authority’s Director of Transportation concerning the operations of the company during the strike. The Director stated:
During normal operations of the bus system the Washington Metropolitan Area Transit Authority provides 1553 buses during the normal weekday morning rush hours and 1548 buses during normal weekday evening rush hours. Normal operations on Saturdays consists [sic] of 384 buses and on Sundays 244 are in operation.
On May 2, 1974 (Thursday) only 12 buses were dispatched, and on Friday, May 3 only four buses were dispatched. On Saturday, May 4, 59 buses were dispatched, and on Sunday, May 5,123 buses were dispatched. On Monday, May 6, 30 buses were dispatched. On Tuesday, May 7, 1,277 buses were operational. On May 8 normal services [sic] was restored.
These figures do not suggest any potent efforts by the Union leadership, before May 7.
Taking the record as a whole I think the District Court was justified in finding that the Union determined to skirt the provisions of the restraining order by prolonging the strike as long as possible. In reaching this conclusion as to the Union’s good faith the court was entitled to consider the conduct and attitude of the Union officials both before and after the entry of the temporary restraining order.
Notwithstanding my view of the record I must acknowledge that the District Court did not “find the facts specially and state separately its conclusions of law thereon” pursuant to Rule 52(a), F.R.C.P. Accordingly I concur in the remand to give the District Court an opportunity to make such findings and conclusions. My concurrence of course is predicated upon the assumption that the majority is not directing the district judge to make any particular findings or reach any particular conclusions.