(concurring in part and dissenting in part).
Giving due weight to the protection of free speech under section 8(e) of the Act, the Board absolved the company of .a charge under section 8(a) (1) based on the president’s speeches to employees. At the same time the Board found a violation of section 8(a) (1) in certain other statements of its supervisor, personnel manager and two foremen, made and persistently repeated in the course of negotiations after the election and before the strike. The Board restrained the employer from interfering with and •coercing its employees, and the court properly grants enforcement of the Board’s order; and in this part of the •court’s opinion I concur.
The Board also found that the repeated declarations (that the employer would under no circumstances sign any contract with the union) reflected management’s true state of mind not to bargain in good faith as required by section 8(a) (5). Predicated upon these further findings, the Board held that the strike which •commenced on May 2, 1962, was an unfair labor practice strike and that the strikers were entitled to reinstatement. 'There is no reason to reject these further findings since they are substantially supported in the record. Admittedly, a remark made in anger by an employer, at .an early stage, that he will never sign a •contract would not be conclusive proof that he did not later reconsider and bargain sincerely as the law commands, but when such declarations have been made repeatedly by responsible company spokesmen it becomes a question of fact whether the original state of mind continued or was abandoned. Mere attendance at protracted meetings, made sterile by a party’s fixed determination not to reach any agreement, is not a discharge •of the obligations imposed by section 8 (a) (5). NLRB v. American National Ins. Co., 343 U.S. 395, 402, 72 S.Ct. 824, 96 L.Ed. 1027 (1952). “Surface bargaining” is not enough. NLRB v. Whittier Mills Co., 111 F.2d 474, 478-79 (5th Cir. 1940).
I am not unmindful of the union’s extreme reaction to the employer’s recalcitrance, and I do not condone the union’s conduct which Judge Bryan has described in moderate terms. However, as the Board found, this was not the cause of the breakdown in the negotiations. Moreover, no charge of unfair labor practices was lodged against the union, and it is highly doubtful if the facts would support such a charge if made, Cf. NLRB v. Insurance Agents, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960).
I would therefore enforce the Board’s order in its entirety, requiring reinstatement of the employees and ordering the parties to resume bargaining in a good faith endeavor to achieve accord.