(dissenting).
I.
My basic disagreement with the majority arises from its holding that the activity of the 8 men was “protected.” I have much difficulty in seeing how such activity on the part of 8 men can be said to represent the policies of a union of approximately 50 men when in a meeting *983the very night before, the legal representative of the union had discouraged talk of a strike, and advised the members that everything possible should be done before resorting to a walkout. Although no vote was taken in the meeting on whether to strike, the testimony indicates that it was generally understood that there would be no strike. Indeed, when the 8 walked out, their purpose was simply to meet and confer. Apparently, the decision to strike was made at the bowling alley. This decision was unauthorised and was in direct conflict with the conclusion reached by the Union in the meeting held the night before. When Lee, the union representative with whom the Company was bound to deal, heard of the strike, he immediately instructed the men to return to work. They refused. The majority states that if the action of the individual is in opposition to the prior action of the Union, it is then divisive, dissident action and hence not protected. Not only was the action taken by the 8 here in direct opposition to the action taken by the Union the very night before, it continued to be in direct opposition to the position taken by the Union when the representative instructed them to return to work immediately, and they refused. The majority concludes that the activity is protected so long as it seeks to generate support for demands already made by the Union, unless such action involves a disagreement with a policy or decision previously adopted by the Union. Yet, somehow the majority does not see the walkout here as a disagreement with the Union’s activities of the night before simply because “ * * * there was no formal vote not to strike.”
The majority concedes that the general consensus of the opinion of the union members at the meeting was “that the Union would not strike at the present time * * but goes on to hold that the walkout was nevertheless protected activity because the Company did not know that the Union had failed to decide to strike. This line of reasoning leads to an absurd result. In such circumstances an employer would be bound to negotiate with any individual or group, however small, unless the employer had full knowledge of decisions made at union meetings, and indulged the presumption that new representatives had been chosen to take the places of representatives with whom such employer had previously negotiated. The employer is bound by § 9 (a) of the Act to negotiate with the legally constituted representative of the Union and no one else. The Supreme Court stated in Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 64 S.Ct. 830, 832, 88 L.Ed. 1007, 1011:
“For in either case, as will presently appear, we think that the negotiations by petitioner for wage increases with anyone other than the union, the designated representative of the employees, was an unfair labor practice. * * * The National Labor Eelations Act makes it the duty of the employer to bargain collectively with the chosen representatives of his employees. The obligation being exclusive, see § 9(a) of the Act, 29 U.S.C.A. § 159(a) [9 F.C.A. Tit. 29, § 159(a)], it exacts ‘the negative duty to treat with no other’.”
There are numerous cases from other Circuits directly in point and which should be controlling in this case. A short discussion of two of them will suffice to show the fallacy of the majority opinion. In N. L. R. B. v. Draper Corp., 4 Cir. 1944, 145 F.2d 199, 156 A.L.R. 989, 25 per cent of the total working force of the employer in question walked out because “they considered that the company was ‘stalling’ and that they wanted ‘action’ and would get it.” The strikers were fired and a complaint was filed with the Labor Board. The Board held the action to be protected. The Fourth Circuit reversed stating:
“ * * * q'kg purpose of the act was not to guarantee to employees the right to do as they please but to guarantee to them the right of collective bargaining for the purpose of preserving industrial peace. The *984policy of the act is thus set forth, 29 U.S.C.A. § 151: ‘The denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce. * * * It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.’
“It is perfectly clear not only that the ‘wild cat’ strike is a particularly harmful and demoralizing form of industrial strife and unrest, the necessary effect of which is to burden and obstruct commerce, but also that it is necessarily destructive of that collective bargaining which it is the purpose of the act to promote. Even though the majority of the employees in an industry may have selected their bargaining agent and the agent may have been recognized by the employer, there can be no effective bargaining if small groups of employees are at liberty to ignore the bargaining agency thus set up, take particular matters into their own hands and deal independently with the employer. The whole purpose of the act is to give to the employees as a whole, through action of a majority, the right to bargain with the employer with respect to such matters as wages, hours and conditions of work. Section 9 of the act, 29 U.S.C.A. § 159, provides: ‘Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive-representatives of all the employees■ in such unit for the purposes of collective bargaining in respect to rates■ of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer.’"
(Italics supplied)
“A union selected as bargaining agent is thus made the exclusive representative of all the employees, for the purpose of collective bargaining. As said in Virginian R. Co. v. System Federation, 300 U.S. 515, 548, 57 S.Ct. 592, 600, 81 L.Ed. 789, the law ‘imposes the affirmative duty to treat only with the true representative, and hence the negative-duty to treat with no other.’ See-also McQuay-Norris Mfg. Co. v. N.L.R.B., 7 Cir., 116 F.2d 748; Texarkana Bus Co. v. N.L.R.B., 8 Cir., 119 F.2d 480, 484; North Electric-Mfg. Co. v. N.L.R.B., 6 Cir., 123 F.2d 887, 890. The employees must act through the voice of the majority or the bargaining agent chosen by the majority. Minority groups must acquiesce in the action of the majority and the bargaining agent they have chosen; and, just as a minority has no right to enter into separate-bargaining arrangements with the-employer, so it has no right to take independent action to interfere with the course of bargaining which is. being carried on by the duly authorized bargaining agent chosen by the-majority. The proviso to section 9 above quoted, preserving to individuals or groups of employees the right to present grievances to the employer, negatives by necessary inference the right on their part to call strikes for the purpose of influencing the bargaining being carried om *985by the chosen representatives of all the employees.”
The Sixth Circuit in Plasti-Line, Inc. v. N.L.R.B., 6 Cir. 1960, 278 F.2d 482, a case very similar to the present case, followed Draper and held:
“ * * * Thus, the Union had taken its position on these matters and the striking group responded to this position with the strike in direct defiance of the purpose of the Act under which they now seek redress. Their action eliminated all •doubt but that the strikers were dissatisfied with the settlements reached by their representative and with the orderly disposition of the grievances by it.
“True, certain seniority rights of the striking group were affected, but ■petitioners were not empowered to ■change or alter the situation by dealing with this minority group concerning these matters. To have done so would have resulted in a violation •of the petitioners’ obligations to the •certified bargaining representative under the contract and also a violation of Section 8(a) (5) of the Act. Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678, 64 S.Ct. 830, 88 L.Ed. 1007.”
* -X- * * * -X-
’“The Act is based upon the principle •of promoting industrial peace through collective bargaining and an •orderly settlement of disputes. The law imposes on the employer the positive duty to bargain with the representative of the majority of his ■employees and not to bargain with -any other. Therefore, a minority group must acquiesce in the deci.sions and actions of such representative.”
******
'“Here the strike was called and carried on by an irresponsible minority, •contrary to the act, the contract between the parties, and in defiance of its bargaining representative.”
See also Harnischfeger Corp. v. N.L.R.B., 7 Cir. 1953, 207 F.2d 575.
At least two of the Circuits have held that walkouts are not protected unless participated in by at least over 50 per cent of the unit. In N.L.R.B. v. Sunbeam Lighting Co., 7 Cir. 1963, 318 F.2d 661, Judge Castle, citing Draper as authority, held that the walkout was not protected because the record failed to sustain the Board’s finding that a majority of the workers had participated. Judge Kiley in a concurring opinion, held that the General Counsel had the burden of proving that over 50 per cent of the workers had participated, and that such burden was not met. Judge Swygert dissented on the ground that, in his opinion, the record sustained the Board’s finding that “[A] majority of the plant’s employees went on strike * * (emphasis added).
In a very recent case, Western Contracting Corp. v. N.L.R.B., 10 Cir. 1963, 322 F.2d 893, the 10th Circuit followed the teaching of Sunbeam and agreed with the Board that the walkout was protected because:
“But, in addition, the conduct of the employees here must be regarded as majority action for the following reasons: Although this conduct had its origin with the protest of the nine (of a total of eleven) day-shift drivers who constituted, it is true, a minority of the total employees, this group was joined soon after the first incident by the night-shift drivers. Finally, a majority of all of the truck drivers voted to not return to work until the heaters were installed.”
******
“The case before us is substantially different from those which were before the respective courts in Draper, Hamischfeger and Sunbeam. Here, the strike was not by a minority of the employees.”
It is also interesting to note that the dissent in Western requires majority participation before the action is protected. The dissent stated:
“The premise of the main opinion is that a majority of the employees *986engaged in concerted activity which was not in derogation of the position taken by their bargaining agent. Could I find support in the record for such premise I would be in complete accord.”
It is not contended that in every case a strike must be supported by a majority of the workers in order to constitute protected activity.1 *I do conclude under the peculiar facts of this case, i. e., the tacit rejection of a strike by the union the night before the walkout, and the agent’s admonitions to the minority group to return to work immediately, all of which was ignored and disregarded by the minority, cannot be said to be protected. Indeed, it falls far short of the test laid down by the majority:
“ * * * it is protected so long, of course, as the means do not involve a disagreement with, repudiation or criticism of, a policy or decision previously taken by the union * * * ”
II.
The Board found and the majority sustained a violation of § 8(a) (3) of the Act.2 I have searched the record thoroughly and diligently, but have not found any evidence 3 tending to show either a purpose on the part of the employer to discourage union membership, or any conduct of the employer calculated to have the effect of discouraging union membership. So far as the record shows, all of the non-strikers were members of the same union, yet none of them was discharged. All of the strikers were put back to work as soon as production requirements would permit without the imposition of any conditions relative to union membership. The company had met and negotiated with the Union regularly for some months prior to the strike —the last meeting being only 21 days before the strike. Even if the employer’s action could be justifiably construed to be retribution for or interference with the activity of the minority group of strikers, there has been no showing whatever that such conduct was for the purpose of, or had the effect of discouraging union membership. Perhaps the error of the Board is demonstrated by its finding:
“By discriminating in regard to the tenure of employment of * * * thereby discouraging memberships in and activities on behalf of a labor organization * * * ” (emphasis added)
Such an extension of § 8(a) (3) must be made by the Congress, not the Board. Judicial approval of such an extension does not justify or strengthen it. In Draper, supra, the 4th Circuit stated:
“It is perfectly clear that, in the discharge and refusal to reemploy, there was no intent to discourage membership in any labor organiza*987tion, within the meaning of section •8(3) of the act. The great majority •of the employees, who were members of the union, continued to work; the ■company continued to recognize the union as the bargaining representative of its employees; the discharge and refusal to employ did not affect and could not have affected the status of the union as bargaining representative; and there is not a scintilla of evidence to support the conclusion that the discharge of the ‘wild cat strikers or the refusal to reemploy them encouraged or discouraged membership in any labor organization or was intended to have any such effect. Western Cartridge Co. v. N.L.R.B., 7 Cir., 139 F.2d 855.”
In Plasti-Line, Inc. v. N.L.R.B., 6 Cir. 1960, 278 F.2d 482, the Sixth Circuit stated.
“With regard to the second holding of the Board, that of violation by petitioners of Section 8(a) (3) of the Act, there is not a scintilla of proof in the record in support thereof. This Court, in N.L.R.B. v. Adkins Transfer Co., 6 Cir., 1955, 226 F.2d 324, 327, set forth the criteria necessary to establish a violation of this section as follows:
“ ‘In order to establish an 8(a) (3) violation, there must be evidence that the employer’s act encouraged or discouraged union membership. The section requires that the discrimination in regard to tenure of employment have both the purpose and effect of discouraging union membership, and to make out a case, it must appear that the employer has, by discrimination, encouraged or discouraged membership in a labor organization.’
“As noted, the case at bar is barren of any such evidence. To the contrary, the undisputed facts reflect that the opposite is true. There was an election, a certification by the Board and a contract which, at the time this controversy arose, was being recognized. No one of the group of strikers testified that his union membership had anything to do with his being discharged. The Court is unable, in the light of this record, to sustain the Board’s action on this phase of the case. Certainly, there is no evidence of any kind to support an inference of a Section 8(a) (3) violation. The petitioners’ discharge and refusal to reinstate the strikers, in the circumstances of this case, could not, under any stretch of the imagination, be considered an unfair labor practice under the latter section of the Act. N.L.R.B. v. Draper Corp., supra.”
The record in this case firmly convinces me that the actions of this minority group of strikers, perhaps taken with the same ultimate motive that the Union had, was by no means consistent with the policies and methods of the Union. The majority apparently hold that so long as the ultimate objective is the same, any minority activity is protected. Such a construction of the Act will surely result in unauthorized action by dissident individuals or groups when, in their opinion, the union is moving too slow. In our view, the Congress did not intend to approve such conduct,4 but sought to condemn such a course of action in the hope of promoting “industrial peace.”
I must, therefore, dissent.
Rehearing denied; GEWIN, Circuit Judge, dissenting.
. In N. L. R. B. v. Draper Corp., supra, the court said:
“ * * * We do not mean to say, of course, that a strike can be called only by a bargaining union, or that less than a majority of employees will not be protected when they go on strike in protection of their rights. See Firth Carpet Co. v. N. L. R. B., 2 Cir., 129 F.2d 633. What we do mean to say is that minorities who engage in ‘wild cat’ strikes, in violation of rights established by the collective bargaining statute, can find nothing in that statute which protects them from discharge. In the absence of the statute, there was nothing in the law which forbade the discharge of strikers. There is nothing in the statute, properly construed, which protects from discharge those who strike in defiance of its provisions. No surer way could be found to bring collective bargaining into general disrepute than to hold that ‘wild cat’ strikes are protected by the collective bargaining statute.”
. The pertinent portion of the Section is as follows:
“It shall be an unfair labor practice for an employer — * * * by discrimination * * * to encourage or discourage membership in any labor organization.”
. As was said in Sunbeam supra :
“ * * * The Board’s findings are entitled to respect but they are to be measured by whether or not they are supported by substantial evidence on the record considered as a whole. Universal Camera Corporation v. N. L. R. B., 340 U. S. 474, 71 S.Ct. 456, 95 L.Ed. 456.”
. See Footnote 2, Medo Photo Supply Corp., supra:
“That the Act ‘carries the clear implication that employers shall not interfere’ with the right of collective bargaining ‘by bargaining with individuals or minority groups in their own behalf, after representatives have been picked by the majority to represent all,’ was recognized by tlie reports of the Congressional committees recommending the adoption of the bill which became the National Labor Relations Act. Sen.Rep. No. 573, 74th Cong., 1st Sess., p. 13; H.Rep. No. 1147, 74th Cong., 1st Sess., p. 20.”