(dissenting).
I dissent because the record contains substantial evidence and rational grounds to support the Board’s conclusion that the refusal to comply with contract grievance procedures was a refusal to bargain in good faith and constitutes an unfair labor practice. See note 1 infra.
The grievance dispute which gave rise to this case concerned the seniority clause of the contract; the contract explicitly provided that seniority grievances were to be disposed of by the grievance machinery established in the contract. The majority opinion rests its reversal of the Labor Board action on the ground that the collective bargaining contract does not contain an affirmative “no strike” clause, but it overlooks what the contract does contain, namely a solemn agreement by both parties to submit all disputes to an agreed process of negotiation leading finally to a binding arbitration if the preliminary steps are not successful. The mutual promises to settle all grievances by this peaceful process are plain and unambiguous, and this indeed is not disputed. Specifically the contract made provision for settling all grievance disputes first by discussion between the *219aggrieved party and the mine management ; if that failed, the second step was negotiation between the union mine committee and the mine management; the third step provided for negotiation between representatives of the union district and the mine operators’ association; the fourth step was consideration by a four member board of union and management representatives; if all these preliminary steps were unsuccessful, the parties agreed to submit the dispute to an umpire, with a provision that “A decision reached at any stage of the proceeding shall be binding on both parties hereto and shall not be subject to reopening * * * except by mutual agreement.”
I cannot accept the view of the majority that these explicit detailed contractual provisions represent merely a loose “gentleman’s agreement” that the parties will try to resolve their problems without strikes or lockouts; to me they are the words of contracting parties who intend to set up binding provisions for what experience has taught is effective machinery for the day to day bargaining between management and employees. They are the words of enlightened union and management leaders who intend to abandon brutal and wasteful methods and substitute negotiation and arbitration as a means of settling disputes.
About December 10,1954, the company advised the union of its desire to hire outside operators for new loading machinery due to the fact that there were no employees trained or qualified as operators. On December 14, the mine committee met with the management to protest the decision. Additional meetings were held between the parties during the next month without resolving the problem. On January 20th, the representative of the coal operators’ association advised the union district office of the dispute and the latter promised to investigate it. The company then hired two operators, who had not previously been employees of the mine. The union went on strike January 27th, without ever attempting to employ the third and fourth and final steps of the contract grievance procedure. While the strike was in effect, there were various contacts and meetings between the management and a committee of the strikers as well as with the district representative of the union and the mine operators’ association. The management finally yielded to the union’s demand while the strike was in process and the men returned to work.
The position of the union is that it never agreed that it would refrain from striking during the process of bargaining or using the grievance machinery.
It seems clear to me that the presence or absence of a “no strike” clause is beside the point — the important factor is that the parties made an explicit agreement to settle disputes and grievances by a carefully worked out and prescribed process. A lockout, or a strike, without any real effort first to exhaust this contractual administrative machinery is clearly a violation of the contract. I think the majority does not dispute the fact that in this case one of the contracting parties was forced to “agree” to a solution under the coercive impact of two factors: (a) a refusal to carry out the contract provisions for peaceful settlement, and (b) a strike. Economic pressures such as strikes should, of course, not by any means be treated as an unfair labor practice per se, but when they are coupled with violations of explicit provisions to bargain and ultimately to arbitrate, it seems to me that it is within the power of the Board to hold that such conduct constitutes an unfair practice.1
*220It must follow from the majority holding that an employer who uses coercive tactics such as a lockout accompanied by refusal to use contract grievance procedures and arbitration cannot be held guilty of an unfair labor practice. This corollary, which I wish to emphasize, is a dangerous one for unions and working men for it clearly implies that an employer who does not want to fulfill his agreement to settle disputes in accordance with the contract can, with impunity, lock out his employees until they yield to his position in a dispute. I think it violates the whole purpose and intent of collective bargaining to say that these coercive economic methods may be used by an employer, and of necessity I think the Board must be allowed the power to say that such pressure tactics in violation of express contract provisions are unfair practice whether resorted to by an employer or a union.
. In the Haislip case 2 the Fourth Circuit held that a strike was a breach of contract where the contract provided that “all disputes * * * shall be * * settled and determined exclusively by the machinery provided in the * * ” contract. The same conclusion appears to have been reached in at least three other Circuits.3 Even the union appeared to consider the strike to be a violation of the contract.4 I should emphasize that it is not the strike, standing alone, which I would regard as supporting the Board’s finding of unfair labor practice and indeed we need not reach that question. Rather the failure of the union to carry out and follow the steps provided for in the contract for the resolution of grievance disputes, and indeed the repudiation of the contract, standing alone, seems sufficient to support the Board’s finding of an unfair practice.
Section 8(d) plainly does not limit collective bargaining operations to particular negotiations for renewal of contracts. It explicitly defines collective bargaining as “the performance of the mutual obligation of the employer and the representative of the employees to * * confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder * * * ”. (Emphasis added.)
The Board had before it three factors, each of which it carefully analyzed before *221coming to a conclusion. It considered the detailed facts of the strike; it considered in great detail the terms of the contract and extrinsic evidence which cast light on the intent of the parties; and finally it considered the governing statute. It concluded that the conduct of the union, in light of all the factors, constituted an unfair labor practice. It cannot be gainsaid that here was substantial evidence to support the findings of fact, and that the interpretations of the contract and the law were within rational bounds, even if we might have decided these questions another way, were it for us to decide them, which it is not.5
In N.L.R.B. v. Hearst Publications, Inc.,6 the Supreme Court considered the Board’s interpretation of the statutory term “employee,” as well as its findings of fact, saying:
“Rejecting the Board’s analysis, the court [of appeals] independently examined the question whether the newsboys are employees within the Act, decided that the statute imports common-law standards to determine that question, and held the newsboys are not employees.” 7
In reversing the Court of Appeals, 9 Cir., 136 F.2d 608, the Supreme Court said, “ *• * * the Board’s determination that specified persons are ‘employees’ under this Act is to be accepted if it has ‘warrant in the record’ and a reasonable basis in law.” 8 (Emphasis added.)
In N.L.R.B. v. Waterman S.S. Co.,9 the Supreme Court reversed the Fifth Circuit and affirmed the Board, saying:
“It is of paramount importance that courts not encroach upon this exclusivo power [to find facts] of the Board if effect is to be given the intention of Congress to apply an orderly, informed and specialized procedure to the complex, administrative problems arising in the solution of industrial disputes.” 10
The Board action in this case plainly has “warrant in the record”- — as to the facts — and also has a “reasonable basis in law,” for it is consistent with the basic congressional purposes on collective bargaining. With all deference to the wide experience of Judges Madden and Fahy in this area of the law, I suggest their conclusion is completely at odds with the purpose of Congress in these statutes, namely the peaceful resolution of disputes by use of processes of negotiation rather than by brute force.
. The Board expressly found: “The Respondents by engaging in such unprotected activity [striking] in aid of their bargaining position not only abused their bargaining powers and impaired the collective bargaining process, but also thwarted the peaceful procedures for the channelization of contract disputes that they had agreed to follow as a substitute for economic conflict. This, in our opinion constituted bad-faith bargaining contravening the Act’s requirements." (Emphasis added.)
. United Construction Workers v. Haislip Baking Co., 4 Cir., 1955, 223 F.2d 872, 876, Parker, C. J., certiorari denied 350 U.S. 847, 76 S.Ct. 87, 100 L.Ed. 754; see, also, Hazel-Atlas Glass Co. v. N. L. R. B., 4 Cir., 1942, 127 F.2d 109.
. International Brotherhood of Teamsters v. W. L. Mead Inc., 1 Cir., 1956, 230 F.2d 576, petition for certiorari dismissed by stipulation 352 U.S. 802, 803, 77 S.Ct. 21, 1 L.Ed.2d 37; N. L. R. B. v. Dorsey Trailers, Inc., 5 Cir., 1950, 179 F.2d 589; N. L. R. B. v. Sunset Minerals, 9 Cir., 1954, 211 F.2d 224; accord, W. L. Mead Inc., 113 N.L.R.B. 1040, 36 L.R.R.M. 1392; Cox, Some Aspects of the Labor Management Act of 1947, 61 Harv.L. Rev. 274, 308 (1948).
. The trial examiner stated: “There is extrinsic evidence in this record to confirm that [the union understood that such a strike was a breach of contract]. Thus William Blizzard, former president of the District, who was present at the contract negotiations and who signed the contract on behalf of District 17, when directly asked for his interpretation of the ‘integrity’ clause of the contract, testified:
“ ‘That means that we will take our grievances up in accordance with the contract. In the case of a stoppage we will go and .use our persuasion to get them back to work, to get the men to comply with that contract (emphasis supplied).
“Thus, too, in a letter in evidence written by George Titler, president of District 29, reference is made to a work stoppage at another mine, which, it is stated, was in ‘violation of the contract.’ Similarly, R. O. Lewis, present president of District 17, in a letter to members of another local dated September 2, 1955, officially requested the members of that local to terminate a work stoppage and to have their claims adjudicated in accordance with the contract machinery, stating, inter alia, that the work stoppage was ‘in direct opposition to the provisions of the Bituminous Coal Wage Agreement.’ ”
. Brotherhood of Railway & S. S. Clerks, etc. v. Railroad Retirement Board, 1956, 99 U.S.App.D.C. 217, 223, 239 F.2d 37, 13; N. L. R. B. v. Waterman S. S. Corp., 1910, 309 U.S. 206, 60 S.Ct. 493, 84 L. Ed. 704.
. 1944, 822 U.S. 111, 64 S.Ct. 851, 88 L. Ed. 1170.
. Id., 322 U.S. at pages 114-115, 64 S.Ct. 853.
. Id., 322 U.S. at page 131, 64 S.Ct. 861.
. 1910, 309 U.S. 206, 60 S.Ct. 493.
. Id., 309 U.S. at page 208, 60 S.Ct. at page 495.