I respectfully dissent. The nature of the 8(a) (1) violations, which we all agree are supported by substantial evidence on the record as a whole, seems to me to have a bearing upon the other claimed violations. They were accurately described in the Board’s brief, as quoted in the margin.1 From those violations, along with the other evidence, both positive and negative, the Trial Examiner arrived at a carefully reasoned finding, “that at the time Respondent was meeting with the Union it was also seeking to destroy it.” (See Footnote 2 to the majority opinion.) The Board adopted that finding.
The Union won a Board-conducted representation election 50 votes to 10. On October 8, 1954, the Union was certified as the bargaining representative of the employees. Within a month, without any attempt at bargaining, or even notice to the Union, the Company raised the wages of five employees. I do not agree that only “general increases” were criticized in N.L.R.B. v. Crompton-Highland Mills, 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320; May Department Stores Co. v. N.L.R.B., 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145; Armstrong Cork Co. v. N.L.R.B., 5 Cir., 211 F.2d 843. Granting merit increases to five out of sixty employees, without consulting the Union, constituted, I think, unilateral action which naturally tended to undermine the authority of the certified bargaining representative for each and all of the employees, and violated Sections 8(a) (5) and (1) of the Act.
Section 10(f) of the Act, 29 U.S.C.A. § 160(f), provides in part that: “ * * * the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall in like manner be conclusive.” As said in Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456:
“To be sure, the requirement for canvassing ‘the whole record’ in order to ascertain substantiality does *571not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.”
Speaking on the issue of a failure to bargain in good faith in the more recent case of N.L.R.B. v. Truitt Mfg. Co., 1956, 351 U.S. 149, 152, 153, 154, 76 S. Ct. 753, 755, 100 L.Ed. 1027, the Court said:
“ * * * While Congress did not compel agreement between employers and bargaining representatives, it did require collective bargaining in the hope that agreements would result. * *
“The Board concluded that under the facts and circumstances of this case the respondent was guilty of an unfair labor practice in failing to bargain in good faith. We see no reason to disturb the findings of the Board. We do not hold, however, that in every case in which economic inability is raised as an argument against increased wages it automatically follows that the employees are entitled to substantiating evidence. Each case must turn upon its particular facts. The inquiry must always be whether or not under the circumstances of the particular case the statutory obligation to bargain in good faith has been met. Since we conclude that there is support in the record for the conclusion of the Board here that respondent did not bargain in good faith, it was error for the Court of Appeals to set aside the Board’s order and deny enforcement.”
The dissenting Justices, speaking through Mr. Justice Frankfurter, did not disagree on this principle:
“These sections obligate the parties to make an honest effort to come to terms; they are required to try to reach an agreement in good faith. ‘Good faith’ means more than merely going through the motions of negotiating; it is inconsistent with a predetermined resolve not to budge from an initial position. But it is not necessarily incompatible with stubbornness or even with what to an outsider may seem unreasonableness. A determination of good faith or of want of good faith normally can rest only on an inference based upon more or less persuasive manifestations of another’s state of mind. The previous relations of the parties, antecedent events explaining behavior at the bargaining table, and the course of negotiations constitute the raw facts for reaching such a determination. The appropriate inferences to be drawn from what is often confused and tangled testimony about all this makes a finding of absence of good faith one for the judgment of the Labor Board, unless the record as a whole leaves such judgment without reasonable foundation. See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 [71 S.Ct. 456, 95 L.Ed. 456].”
Dissenting opinion, 351 U.S. at pages 154-155, 76 S.Ct. at page 757.
Certainly, against the background evidenced by the other violations, the record as a whole discloses a rational basis, a reasonable foundation for the Board’s conclusion that the Company failed to bargain in good faith. This Court should not substitute its judgment for that of the Board.
*572Collective bargaining is at the very heart and core of the Labor Management Relations Act. If, in any particular case, effective collective bargaining is not had and cannot be required, then in that case the Act is nothing. It follows that there must be some protection against “merely going through the motions of negotiating,” 2 “a predetermined resolve not to budge from an initial position,” 3 “surface bargaining” accompanied by “a purpose to defeat it and wilful obstruction of it,” 4 “shadow boxing to a draw,”5 “giving the Union a runaround while purporting to be meeting with the Union for the purpose of collective bargaining.” 6
Nowhere has the rule been better stated than by Judge Russell for this Circuit in Majure v. National Labor Relations Board, 5 Cir., 1952, 198 F.2d 735, 739:
“ * * * It is true, of course, that the employer was not required to accept the union’s proposal, nor to make any concession, or counter-proposal. However, the employer was required to bargain in good faith. This Court held in American National Insurance Co. v. N.L.R.B., 5 Cir., 187 F.2d 307, affirmed by the Supreme Court in N.L.R.B. v. American National Insurance Co., 343 U. S. 395, 72 S.Ct. 824. [96 L.Ed. 1027], that the obligation of the employer to bargain in good 'faith does not require the yielding of positions fairly maintained, nor permit the Board, under the guise of a finding of bad faith, to require the employer to contract in a way which the Board might deem proper. Nevertheless, the requirement of good faith in such bargaining is imposed by the statute. The dividing line between the right to the exercise of good faith and independent judgment and to maintain the resultant position with firmness, with no obligation of retreat, and nevertheless obey the statutory command to bargain in good faith must, in the nature of such right, and yet obligation, be frequently difficult of ascertainment and establishment. It has not been easy in the present case. In such cases there is danger that the negotiating parties may have their freedom of contract as to substance restricted or destroyed by a construction of their conduct as an evidence of bad faith. However, judicial ingenuity has devised but one standard, or test, which, recognizing the problem, yet seeks to insure reconciliation of privilege and obligation. This rule requires fair appraisal of the circumstances and the particular facts of the particular case. N.L.R.B. v. American National Insurance Company, supra.
“Applying the rule here, we think the circumstances of this case support the Board’s finding that the employer, while freely conferring, did not approach the bargaining table with an open mind and purpose to reach an agreement consistent with the respective rights of the parties.”
Chief Judge Magruder, speaking for the First Circuit in N.L.R.B. v. Reed & Prince Mfg. Co., 1953, 205 F.2d 131, 134, 135, made an admirable expression of the same principle:
“It is true, as stated in N.L.R.B. v. American National Ins. Co., 1952, 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027, that the Board may not ‘sit in judgment upon the sub*573stantive terms of collective bargaining agreements.’ But at the same time it seems clear that if the Board is not to be blinded by empty talk and by the mere surface motions of collective bargaining, it must take some cognizance of the reasonableness of the positions taken by an employer in the course of bargaining negotiations. See Wilson & Co., Inc., v. N.L.R.B., 8 Cir., 1940, 115 F.2d 759, 763. See also Smith, The Evolution of the ‘Duty to Bargain’ Concept in American Law, 39 Mich. L.Rev. 1065, 1108 (1941). Thus if an employer can find nothing whatever to agree to in an ordinary current-day contract submitted to him, or in some of the union’s related minor requests, and if the employer makes not a single serious proposal meeting the union at least part way, then certainly the Board must be able to conclude that this is at least some evidence of bad faith, that is, of a desire not to reach an agreement with the union. In other words, while the Board cannot force an employer to make a ‘concession’ on any specific issue or to adopt any particular position, the employer is obliged to make some reasonable effort in some direction to compose his differences with the union, if § 8(a) (5) is to be read as imposing any substantial obligation at all.”
Chief Judge Chase, speaking for the Second Circuit in N.L.R.B. v. Century Cement Mfg. Co., 1953, 208 F.2d 84, 86, said:
“ * * * The respondent made no proposals of its own as a basis for negotiation on such subjects. They were all, however, proper subjects for collective bargaining and while the respondent was, indeed, free to reject the union’s demands in the exercise of its business judgment the failure to do little more than reject them was indicative of a failure to comply with its statutory requirement to bargain in good faith.”
Under all of the authorities, in determining^whether either an employer or a labor organization has failed to bargain in good faith, the Board must necessarily consider its conduct at the bargaining table, and whether its has acted reasonably or arbitrarily.
In the present case, the Company insisted on a no-strike clause with provisions for Union liability in the case of breach. It further insisted that matters going to arbitration must be decided in the Company’s favor if there is any evidence that the Company’s position was not arbitrary or capricious. It declined to accede to any proposal for the selection of a neutral arbitrator in the event the arbitrators chosen by the Union and the Company could not agree. While thus insisting that the Union waive its statutory right to strike, the Company declined to give any substitute, such as effective arbitration. In the recent case of Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed.2d 972, the Supreme Court said: “Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike.”
Even without a contract, the Company could not lawfully change its wage rates, grant merit increases, or alter shop rules relating to working conditions without first bargaining with the Union. Nevertheless, the Company insisted that the Union surrender its right to bargain about those matters and leave the Company free to act as it saw fit. There are many other instances of arbitrary and unreasonable action set forth in the fair and careful intermediate report of the Trial Examiner and the decision of the Board, which leave me convinced that the Board had a rational basis for its conclusion that the Company failed to bargain in good faith. The other violations on the part of the Company make that conclusion all the more reasonable. In my opinion, that is a conclusion peculiarly within the province of the Board and which the Board is more competent *574to arrive at than is this Court. I, therefore, respectfully dissent.
. “A. Interference, restraint, and coercion
“As developed more fully, infra, the Union called a strike in May 1955 over ■what it regarded as the Company’s failure to bargain in good faith. Shortly before the strike Foreman Evetts asked Employee Lopez ‘to help [Evetts] destroy the Union,’ adding, ‘If we destroy it, I will give you a raise’ (R. 203; B.A. 30). In response to Lopez’ questions, Evetts went on to say: ‘I am authorized by Mr. Johnny White [petitioner’s managing partner] to do this. You and I can destroy this if you will only help me * * * I will go bring a paper and get signatures and we will destroy it’ (R. 203; B.A. 30). In similar vein, Evetts told Employee Vara after the strike started that if Vara signed a certain paper, Evetts ‘would raise [Vara’s] salary’ and if they ‘could find a few more that would sign, he could destroy the Union’ (R. 202-203; B.A. 27). Also after the strike started, Evetts went to the homes of Employees Lopez and Hernandez and offered each a raise in pay if he would abandon the strike and return to work (R. 202, 203-204; B.A. 20, 31). The day the strike began, Superintendent Tracey asked Employee Norred if he was going on strike, and on receiving an affirmative answer warned Norred, who lived in a Company-owned house, that he ‘better start looking’ for another house (R. 201-202; B.A. 13-14).
“The Board found that by the above-described conduct the Company, acting through Foreman Evetts and Superintendent Tracey, interfered with, restrained, and coerced employees in the exercise of their right under Section 7 to engage in union and concerted activities, thereby violating Section 8(a) (1) of the Act (R. 206-207).”
. Dissenting opinion in N.L.R.B. v. Truitt Mfg. Co., 1956, 351 U.S. 149, 154, 76 S.Ct. 753, 100 L.Ed. 1027.
. Ibid.
. N.L.R.B. v. Whittier Mills Co., 5 Cir., 1940, 111 F.2d 474, 478, per Judge Sibley.
. Stonewall Cotton Mills v. N.L.R.B., 5 Cir., 1942, 129 F.2d 629, 631, per Judge Hutcheson.
. N.L.R.B. v. Athens Mfg. Co., 5 Cir., 1947, 161 F.2d 8.