The opinion
TAMM, Circuit Judge
(concurring in part and dissenting in part):
I concur in that section of the Court’s opinion which affirms the Board’s finding that the lockout initiated by the employer under the circumstances of this case was not an unfair labor practice.
I dissent from that portion of the Court’s conclusion expressed in subsection II which holds that the withdrawal of certain employee benefits which had been contained in the expired contract was a violation of sections 8(a) (1) and (a) (3) of the Act. It follows, of course, that I dissent from the majority’s further ruling that the Board was justified in holding that the employer’s conduct in withdrawing those employees’ benefits constituted a violation of section 8(a) (5) of the Act. It seems to me that this action on the part of the Company was a permitted use of its economic strength — its “economic weapons” as an element of economic pressure to strengthen its bargaining rights. As the majority opinion indicates, the record in this case reflects a complete absence of any anti-union motivation on the part of the Company and I fail to see how the use of economic pressure could possibly “undermine the Union’s protected control of its right to strike.” The Union was free to strike at any time that it saw fit after the impasse in bargaining had been reached. I cannot conclude that the Company action in any way interfered “with the exercise of the right to strike” nor “the right to refrain from its exercise.” I believe that the Company properly exercised legitimate means after the impasse in bargaining had been reached to so effect the timing of the strike, which was inevitable, as to place it in a period of minimum production demands upon the Company.
The utilization of legal economic pressures must, as a matter of fairness, be as available to management as it is to unions.