(dissenting).
In my view this record reveals a hotly contested, fairly conducted trial which contains no reversible error. In this respect I agree with Judge McCree that Section 502 does allow for concerted action by employees faced with “abnormally dangerous conditions for work,” and that, assuming the conditions called for by Section 502 were present, the union’s picketing at the reserved gate to advertise those conditions did not necessarily abrogate the Section 502 defense.
Further, I consider the question posed to the jury in the trial judge’s instruction not only to be a fair statement of the issues in the case, but one which is consistent with the United States Supreme Court’s interpretation of Section 502 entered in Gateway Coal Company v. United Mine Workers of America, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974), on January 8, 1974, six days after the judgment was entered in our instant case. The question is quoted in full below:
(1) Was one of the objects of the picketing by the Defendant Unions between the period of September 13 and September 24 and [sic] object prohibited by 8(B)4 of the National Labor Re*1085lations Act, or, on the other hand, was the sole object of the Defendant Labor Organizations’ activities in such picketing during such period one taken in good faith because of the existence of abnormally dangerous conditions at the place of employment?
There was, of course, a considerable amount of evidence to support the jury finding of good faith and the existence of abnormally dangerous conditions at the construction site involved.
Nor do I think that any of the District Judge’s evidentiary rulings constituted reversible error.
The record shows that prior to the filing of this litigation, Clark Engineering had filed an unfair labor practice complaint before the National Labor Relations Board, which complaint had been dismissed after investigation but without hearing on recommendation of the Regional Director. Plaintiffs tendered evidence of this dismissal at the trial of this case, and the District Judge admitted it, admonishing the jury as follows:
By the Court: Ladies and gentlemen of the jury; I want to make one thing perfectly clear to you, and that is that the mention of the fact that this matter has been considered by the National Labor Relations Board'is not conclusive against Mr. Clark; it doesn’t prevent Mr. Clark from bringing a suit if he thinks he has one.
A proceeding before the Labor Board heard no witnesses. A determination was simply made from a written record by the General Council [sic] that the Union had a right to do what it did, but it is not conclusive or binding on you and you can consider it for evidentiary purposes, or you can disregard it entirely, but you must keep in mind that that decision was arrived at by him without hearing any oral testimony, or without the parties having the right to cross examine the people who were making the affidavits.
Subsequent thereto, the District Judge gave similar admonitions in relation to the same topic on two other occasions.
It seems clear to me that this material was admitted as a matter of evidence only and not as an affirmative defense, whether that be res judicata or collateral estoppel, both of which defenses had previously been ruled out by another District Judge on pretrial motion.
I do not read any of the Fifth Circuit cases relied on by appellants as holding that an administrative ruling of the Board on an unfair labor practice charge cannot be admitted as evidence for the jury’s consideration for whatever it might be worth.
The only case cited by my brothers in support of reversal for a new trial on this ground is Aircraft & Engine Maintenance, etc., Local 290 v. I. E. Schilling Co., 340 F.2d 286 (5th Cir. 1965), cert. denied, 382 U.S. 972, 86 S.Ct. 528, 15 L.Ed.2d 464 (1966).
In that case, however, evidence of the Board’s dismissal of unfair labor practice charges had presumably been admitted at trial where a jury had nonetheless found damages in favor of the employer in a case somewhat similar to our own. On appeal the union contended that the NLRB dismissal of the unfair labor practice charges “is res judicata and/or collateral estoppel to this action under Section 303(a).” Id. at 289. The Fifth Circuit very properly held that such evidence, where there had been no hearing before the NLRB, was not legal basis for vacating the jury award on grounds of either res judicata or collateral estoppel. The Fifth Circuit did not rule on the issue as a matter of evidence.
Further, there are two other Fifth Circuit cases in which the Board’s finding (after hearing) of violations of Section 8(b)(4) was held to be res. judicata in subsequent Section 303 suits for damages against the labor union there involved. See Texaco, Inc. v. Operative Plasterers and Cement Masons International Union, 472 F.2d 594 (5th Cir.), cert. denied, 414 U.S. 1091, 94 S.Ct. 721, 38 L.Ed.2d 548 (1973); H. L. Robertson & Associates, Inc. v. Plumbers Local Union No. 519, 429 F.2d 520 (5th Cir. 1970). While as indicated above I recognize the *1086clear distinction between these cases and our instant case, I do think there is merit to appellee’s suggestion that if the Board’s adjudication, after hearing, of the existence of a secondary boycott can be considered res judicata, the Board’s dismissal of such a complaint after investigation might appropriately be considered evidence for whatever the jury found it to be worth. The federal rules generally favor admissibility of evidence. Fed.R.Civ.P. 43(a). See Rule 803(8) of the Federal Rules of Evidence, Pub. L.No. 93 — 595 (January 2, 1975).
Other of appellant’s objections appear to me to refer to matters which were within the discretion of the trial judge, or which might appropriately be considered harmless error on this record as a whole.
I believe the jury verdict in this case should be given effect and the judgment of the District Court should be affirmed.