(dissenting in part).
In this case, respondent’s refusal to bargain collectively was not due to doubt as to either the bargaining unit or agency. On the contrary, there was evidence to *558show that respondent had stated that it would deal with no labor union. Hence, I agree with the majority that respondent’s contention that it was not obligated to bargain collectively until the unit and agency had been determined by the Board is entirely without merit. National Labor Relations Board v. Remington Rand, Inc., 2 Cir., 94 F.2d 862; National Labor Relations Board v. Biles Coleman Lumber Co., 9 Cir., 98 F.2d 18.
I also ‘agree that an employer does not act at his peril in refusing to bargain with an agency of an employee unit if he has a reasonable and honest doubt either that the unit is appropriate or that the agency is a majority representative. See N.L.R.B. v. Remington Rand, Inc., supra; Black Diamond S. S. Corp. v. National Labor Relations Board, 2 Cir., 94 F.2d 875; National Labor Relations Board v. Union Pacific Stages, Inc., 9 Cir., 99 F.2d 153.
The Board charged that respondent violated Section 8(1) and (5), 29 U.S.C.A. § 158(1 and 5) by refusing to bargain collectively, and Section 8(1) and (3) by demoting .Cline because of union activities.
As to the latter respondent filed answer and was heard; and both the trial examiner and the Board thought the evidence insufficient to support the charge that respondent had been guilty of any unfair labor practice in its dealings with Qine.
The Board’s finding and conclusion of law that respondent violated Section 8(5) by refusing to bargain collectively are unexceptionable ; that unfair labor practice was charged in the complaint, respondent answered, had a chance to be heard, and there was ample evidence to support the Board’s finding and conclusion of law. I agree with the majority that the Board’s order should be enforced insofar as it is based on a violation of Section 8(5). N. L.R.B. v. Remington Rand, Inc., supra; N.L.R.B. v. Biles Coleman Lumber Co., supra.
In view of the fact that respondent was exonerated of any unfair labor practice in its dealings with Cline, its refusal to bargain collectively was the only remaining act the Board had charged as a violation of Section 8(1).
Nevertheless, the Board’s fifth conclusion of law is as follows: “The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(1) of the Act.”
This conclusion of law was based on a finding that respondent had “interfered with, restrained and coerced its employees in the exercise of their right to self-organization guaranteed in Section 7 of the Act,” by its consistent efforts to discourage membership in the Union, and by shutting down for inventory on July 27, neither of which was charged in the complaint. If the Board intended to consider respondent’s effort to discourage membership in the union as an unfair labor practice, in addition to the refusal to bargain collectively, which was separately and specifically charged and found to be a violation of Section 8(5), I am of the opinion that the Board should have given such notice thereof as is contemplated by the Act. And I think it is entirely clear that it was improper for the Board to find, when it had not so charged, that respondent’s shut-down for inventory was an unfair labor practice. See National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381; Globe Cotton Mills v. National Labor Relations Board, 5 Cir., 103 F.2d 91. Respondent could not have known, prior to the Board’s findings as to these matters, that they were being considered as violations of Section 8(1). Cf. N.L.R.B. v. Mackay Radio & Telegraph Co., supra.
While I agree with the majority that the niceties and precision of pleading required in criminal proceedings and civil suits are not required in procedure under the Act, I believe it clear, from the broad power conferred upon the Board to amend its complaints, that the Congress did not intend to empower it to find an employer guilty of any unfair labor practice without giving him reasonable notice and a fair opportunity to defend himself.
I cannot believe that the most ardent sympathizer with labor’s cause, if thoughtful, would approve a departure from the Act so unessential to the protection of labor and so dangerous in its implications as is the approval of an order of the Board based upon a finding of an unfair labor practice that was never charged and as to which the employer could not have had the opportunity provided for in Section 10 (b) to file answer and “appear in person or otherwise and give testimony at the time and place fixed in the complaint.”
*559Moreover, I am not convinced that a mere refusal to bargain collectively, which is a violation of Section 8(5), is necessarily a violation of Section 8(1). See N.L. R.B. v. Remington Rand, Inc., supra. Cf N.L.R.B. v. Biles Coleman Lumber Co., supra. But, if I am mistaken as to this, it is my opinion that the Board was justified in holding that respondent violated Section 8(1) only in the manner charged, whether formally or otherwise. The Board issued a sweeping cease and desist order in the combined language of Sections 8(1) and 7 of the Act and then ordered respondent to post notices in its plant, and maintain them for thirty days, that it will cease and desist in the manner specified in the Board’s order, which was as follows:
“1. Cease and desist from:
“(a) Refusing to bargain collectively with Federal Union Local 18787, as the exclusive representative of all its production and maintenance employees, except clerical and supervisory employees;
“(b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act.”
The Supreme Court of the United States has recently held that the Board may re7 quire an employer to post notices that he will cease and desist from unfair labor practices with which the employer has been charged and found guilty, when. the employees need assurance from their employer that they may exercise their legal rights without incurring his disfavor. National Labor Relations Board v. Falk Corp., 60
S.Ct. 307, 84 L.Ed.-, decided January 2, 1940. I am unable to see how the posting of notices, in the form ordered by the Board in this case, is essential to the employees’ knowledge that the full and free exercise of their rights will bring them into no disfavor. Nor am I convinced that the Supreme Court intended to establish a rule of law applicable without regard to the facts o.f each case.
I share the doubt that has been expressed as to the power of the Board to compel every employer found guilty of. an unfair labor practice to post a notice which contains an admission' that he has violated the law. See National Labor Relations Board v. A. S. Abell Co., 4 Cir., 97 F.2d 951; National Labor Relations Board v. Louisville Refining Co., 6 Cir., 102 F.2d 678; Mooresville Cotton Mills v. National Labor Relations Board, 4 Cir., 97 F.2d 959; National Labor Relations Board v. Eagle Mfg. Co., 4 Cir., 99 F.2d 930; Virginia Ferry Corp. v. National Labor Relations Board, 4 Cir., 101 F.2d 103; National Labor Relations Board v. Nebel Knitting Co., Inc., 4 Cir., 103 F.2d594; Burlington Dyeing & F. Co. v. National Labor Relations Board, 4 Cir., 104 F.2d 736. But see Clover Fork Coal Co. v. National Labor Relations Board, 6 Cir., 97 F.2d 331; National Labor Relations Board v. Union Pacific Stages, Inc., 4 Cir., 99 F.2d 153. But, whether this is so or not, I cannot assent to a holding that an employer can be required to post a notice in which he admits violation of every inhibition of Section 8(1) when it has never been charged that he violated more than one of them.
Hence, I must dissent from so much of the majority holding as approves the Board’s order based on its- finding of fact and conclusion of law that Section 8(1) was violáted.