The opinion
WYZANSKI, Senior District Judge
(dissenting):
I regret that my view of the facts and the law differs in some respects from my brethren’s excellent opinion. As I see it, we have enough to decide unequivocally the question whether the NLRB properly concluded that The Emporium Capwell Co. did not violate Section 8(a)(1) of the National Labor Relations Act when it discharged employees James Joseph Hollins and Tom Hawkins.
This case is before the Court on the petition of the Western Addition Community Organization (hereinafter referred to as the “Petitioner”) to review an order of the National Labor Relations Board, issued July 22, 1971, pursu *933 ant to Section 10(c) of the National Labor Relations Act, as amended ( 61 Stat. 136 , 73 Stat. 519 , 29 U.S.C., Sec. 151 et seq.), dismissing a complaint issued against The Emporium Capwell Co. (hereinafter referred to as the “Company”). The Board’s Decision and Order is reported at 192 NLRB No. 19 . This Court has jurisdiction under Section 10(f) of the Act.
Tom Hawkins and James Joseph Hollins were employees of the Company from June 1966, and November 1967, respectively, until their discharge on November 11, 1968. The Company is engaged in the operation of a retail department store at 835 Market Street, San Francisco, California. At all material times the Company was a member of a multi-employer group, the Retailer’s Council, which served as its bargaining agent, and, as such, was signatory to a collective bargaining agreement with the Department Store Employees Union (hereinafter the “Union”) which was the exclusive representative of the Company’s employees employed in the stock and marking areas at the store. The applicable collective bargaining agreement provided, inter alia:
Section 21(E), “No person shall be discriminated against in regard to hire, tenure of employment or job status by reason of race, color, creed, national origin, age or sex.
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Section 5(B), “Any act of any employer, representative of the Union or any employee that is interfering with the faithful performance of this agreement . . . may be referred to the Adjustment Board for such action as the Adjustment Board deems proper and permissive within this agreement.”
The agreement also provided that if, after considering a submitted issue for one week, the Board was unable to reach a settlement, either party could insist upon binding arbitration. Also, the agreement contained no-strike and no-lockout clauses.
In a series of meetings in early April 1968, a group of Company employees, including Hawkins and Hollins, submitted to Union representatives a list of grievances in which the employees contended that the Company was discriminating against racial minorities. Claiming that racial bias had caused minority employees to be denied promotions, the employees specifically charged that employee Russel Young had been denied advancement solely because he is black. Following these meetings, Union Secretary-Treasurer Walter Johnson designated a union committee to investigate the allegations, and later that month prepared a detailed report outlining the employees’ contentions which stated, inter alia:
Probably, the most important matter raised was the possibility of racial discrimination. This is outlawed under the terms of the agreement and certainly again in this day and age should not be a problem. It was the general feeling of almost all present that discrimination is directed against the Negro employees and the more senior employees, senior, that is, in the point of age.
Shortly thereafter, Johnson presented his report to the Retailers Council, where it was agreed that the grievances should be taken directly to the Company. Accordingly, in mid-April, Johnson met with Company labor relations manager Paul Ehrenfried and it was agreed that the Company “would look into” the situation and “see what they could do.”
In May, a group of ten employees requested an additional meeting with Johnson. The problem of racial discrimination in general and the Russel Young case in particular were again discussed; however, since Young was about to begin his summer vacation, it was agreed that further investigation of the matter should await his return. On about September 3, Johnson again met with the employees, including Hawkins and Hollins, and with representatives of the Fair Employment Practices Committee *934 (“FEPC”) and the local Economic Opportunity Council (“EOC”), and announced that the Union had considered the problem and had concluded that the Company had been acting discriminatorily, and that, in accordance with .its contract with the Retailers Council, the Union would demand an Adjustment Board proceeding and would insist upon arbitration if necessary. While acknowledging that arbitration was a time-consuming procedure, Johnson pointed out that the arbitration award, once achieved, would produce a “long lasting effect” which would benefit not only the employees having immediate interest in the problem, but “other people involved in it” as well. As he explained at the hearing:
[W]e wanted to process these grievances and we felt that there were problems of discrimination and it was my own personal feeling that all the discriminatory acts should be processed and that we ought to follow through and take care of it.
# * * * * *
[I]t was my feeling certain acts had to take place in order that everybody at the Emporium would have an opportunity not only to have a job, but to advance into new positions.
# * * * # *■
I specifically requested and pointed out that it is going to take a long time in some of these cases, but that they would not only be helping themselves, but other people involved in it, because we had very strong feelings on the question.
•X- * -X- * -X* *
I came to the conclusion after the meeting we had in April that there was a serious situation that developed and it had to be taken care of.
However, the program outlined by Johnson did not satisfy all of the employees ; thus, some of those present expressed “frustration” with the situation and proposed that the Union picket the Company’s store. Johnson rejected the idea and in an exchange with Hollins explained that the Union was bound to seek satisfaction of grievances according to the terms of its contract and thus could not engage in “dramatic” protests such as boycotts. Johnson further stated that while individual employees “could take whatever action they wanted so long as it was legal,” it was the Union’s advice that they follow an “orderly legal procedure.” The EOC and FEPC representatives supported Johnson’s position.
The next day, Johnson wrote Vincent Brown, general manager of the Retailer’s Council, requesting a meeting of the Adjustment Board to resolve the grievances discussed at the previous day’s meeting, asserting, inter alia:
We specifically charge the Emporium with violations of Section 5(B) and 21(E) of the Agreement between the San Francisco Retailers Council and [the Union], We have approximately 120 pages of testimony, recorded by a court reporter to substantiate our position.
We are ready to proceed to immediate arbitration if the Emporium is ready.
* * * * *
In response to this letter, a meeting of the Adjustment Board was convened on October 16. Accordingly, the Union in consultation with counsel prepared its position for presentation to the Board.
As the meeting began, Union Agent Williams attempted to present evidence of the Company’s practices by questioning employees regarding their individual grievances. However, he was interrupted by Hollins who, acting as spokesman for himself and employees Hawkins, Epps and Washington, read a prepared statement objecting to the prosecution of grievances on an individual rather than a group basis and stating that these four employees would not “speak as individuals,” but would act only “as a group.” Further, Hollins stated that the group “wanted to talk to the President of the Emporium and wouldn’t talk to anybody else,” since their “main purpose was to talk to the President to try *935 to reach an agreement with him to straighten out the problems and conditions of the Emporium.” Then, after refusing to give any testimony regarding individual employees’ complaints, Hollins, Hawkins, Epps, and Washington walked out of the meeting.
A second meeting of the Adjustment Board was held on October 18, but none of the group of four attended. The record is unclear as to what transpired at the meeting; however, Hawkins did acknowledge in his testimony at the hearing in this case that through the Union’s intervention, Russel Young was promoted to the position of First Assistant Manager, and Fata, another employee, was also promoted to a supervisory position.
Thereafter, in accordance with the group’s stated intentions, Hollins went to Company President Batchelder insisting that they “talk about a situation that [Hollins] felt should be discussed about things that were happening among minority employees at the store.” Batchelder would not speak with Hollins but suggested that Hollins discuss the situation with Henderson, the Company’s personnel director. Hollins refused.
On October 22, Hawkins and Hollins, together with several other employees, called a press conference at the Sun-Reporter Building in San Francisco which was attended by representatives of the press, radio and television. The employees stated that the Emporium was engaging in racist conduct by discriminating against racial minorities and that the employees were planning to picket the store. Hollins also read the contents of a handbill which the group intended to distribute to the public (see below) and stated that their objective was “to try to talk to the top management to get better conditions for the Emporium.”
Then, on the following Saturday, November 2, employees Hollins, Hawkins, Epps and Washington picketed the store from 9:30 a.m. to 6 p.m., distributing the following handbill to people entering or leaving the store:
BEWARE EMPORIUM SHOPPERS BOYCOTT IS ON!!!
FOR YEARS AT THE EMPORIUM BLACK, BROWN, YELLOW, . AND RED PEOPLE, HAVE WORKED AT THE LOWEST JOBS, AT THE LOWEST LEVELS. TIME AND AGAIN WE HAVE SEEN INTELLIGENT HARD WORKING BROTHERS AND SISTERS DENIED PROMOTIONS AND BASIC RESPECT.
THE EMPORIUM IS A 20TH CENTURY COLONIAL PLANTATION THE BROTHERS AND SISTERS ARE BEING TREATED THE SAME WAY AS OUR BROTHERS ARE BEING TREATED IN THE SLAVE MINES OF SOUTH AFRICA.
WHENEVER THE RACIST PIG AT THE EMPORIUM INJURES OR HARMS A BLACK SISTER OR BROTHER, THEY INJURE AND INSULT ALL BLACK PEOPLE. THE EMPORIUM MUST PAY FOR THESE INSULTS. THEREFORE, WE ENCOURAGE ALL OF OUR PEOPLE TO TAKE THEIR MONEY OUT OF THIS RACIST STORE UNTIL BLACK PEOPLE HAVE FULL EMPLOYMENT AND ARE PROMOTED JUSTLY THROUGHOUT THE EMPORIUM.
WE WELCOME THE SUPPORT OF OUR BROTHERS AND SISTERS FROM THE CHURCHES, UNION, SORORITIES, FRATERNITIES, SOCIAL CLUBS, AFRO-AMERICAN INSTITUTE, BLACK PANTHER PARTY, W.A. C.O. AND THE POOR PEOPLE’S INSTITUTE.
While the picketing was in progress, Johnson told Hollins that he did not want to see him fired and that the only way to resolve the matter was through arbitration.' Hollins ignored Johnson’s suggestion and again stated that “the only one they wanted to talk to was Mr. Batchelder.”
On November 7, Hollins and Hawkins were called to the office of Paul Ehrenfried, manager of labor relations, and given a formal written warning which *936 stated as follows with respect to the press conference of October 22 and the handbill of November 2:
These statements are untrue and are intended to and will if continued injure the reputation of the Emporium. There are ample legal remedies to correct any discrimination you may claim to exist. Therefore, we view your activities as a deliberate and unjustified attempt to injure your employer.
This is to inform you that you may be discharged if you repeat any of the above acts or make any similar public statements.
Nevertheless, on the following Saturday, November 9, Hollins and Hawkins again picketed the Emporium and distributed leaflets substantially identical with those distributed the previous week.
Accordingly, on Monday, November 11, Hollins and Hawkins were called to Ehrenfried’s office and were discharged. Each was given a discharge slip which bore the notation:
You are being discharged today. Distribution of “Boycott Emporium” literature on Saturday, November 9, 1968, in front of the Emporium, 855 Market Street, S.F., pursuant to written warning dated 11/7/68 for similar action on 11/2/68.
The Union subsequently filed a protest with the Retailer’s Council on the discharge of Hawkins and Hollins.
November 19, 1968 Western Addition Community Organization, acting for Hawkins and Hollins, filed with the NLRB a charge that Emporium had violated NLR Act by discharging them for engaging in statutorily-protected concerted activities, and that those discharges constituted unfair labor practices within the meaning of Section 8(a) (1) of the Act. The NLRB issued a complaint. After hearing before an NLRB Trial Examiner, he recommended dismissal of the complaint. On review, the Board dismissed the complaint, solely on the ground that the activities of Hollins and Hawkins were not protected because they were in derogation of the right of exclusivity of representation conferred upon the union by Sections 8 and 9 of the Act. That dismissal is the subject of the petition filed in this court by Western Addition Community Organization.
Essentially the question here presented is whether after the employees in a collective bargaining unit have selected a representative in accordance with § 9 of the NLR Act those in a minority are free to bargain with their employer concerning class conditions of alleged racial discrimination within that unit. As the ensuing discussion indicates, attempts to avoid the direct thrust of that issue seem to be, in at least this case, exercises in futility or postponement. The essential question cannot be properly evaded or escaped by pretending that here we are dealing with individual grievances of single employees rather than working conditions of a group of employees, or that here we have a minority of employees who are not acting in derogation of the authority of their union representative. What this case requires this court to face is whether, in the light of the special aspects of the problem of potential racial discrimination, to which both the generalities of the United States Constitution and the specifies of such Civil Rights Acts as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., are addressed, there is created an exception to the usual rule of exclusivity of bargaining rights conferred by the NLR Act upon a union selected by a majority of employees in an appropriate unit. This initially presents a matter of statutory construction of the NLR Act, although, if that is not resolved favorably to the petitioner, there lurks in the background a possible question as to whether insofar as it purports to give the representative selected by a majority a power to stand athwart a minority’s claim to the right to seek racial non-discriminatory. conditions, the NLR Act violates the Fifth, Thirteenth, and Fifteenth Amendments to the United States Constitution, inasmuch as then the Act might be regarded as perpetuat *937 ing the consequences of slavery, buttressing racial discrimination, and denying due process of law.
In the case at bar the facts as viewed by the NLRB make it plain that Hollins and Hawkins sought to present to the management of Emporium not their personal grievances, such as their individual failure to be accorded their due under the collective bargaining agreement, or such as the adjustment of some wholly individual complaint. What those two men wanted was a change in management’s policies in promoting, hiring, and otherwise treating that class of workers within the unit who were not white in color. Cf. NLRB v. Tanner Motor Livery, Ltd., 9th Cir., 1969, 419 F. 216 , 218; Brown v. Sterling Aluminum Products Corp., 8th Cir., 1966, 365 F.2d 651, 657 . There could not be a plainer instance of an attempt to bargain respecting working conditions, as distinguished from an adjustment of grievances.
Nor can it validly be claimed that on this record Hollins and Hawkins were not acting in derogation of the union representative selected by a majority, but rather were acting to supplement, support, and make more explicit the application, of the bargaining contract theretofore negotiated by that union representative. To be sure, the contract, theretofore negotiated, provided that the employer should not discriminate racially. However, fairly construed, that glittering generality was, according to the contract, to be vindicated, if necessary, by a procedure of specific complaints made by the union representative and by him presented through the grievance and arbitral machinery. This the union clearly saw, and its officials were themselves quite unwilling to press for any broad assault on the employer to concede on some group basis that it should adopt a different policy of promoting or hiring colored persons. While there is a shade of ambiguity as to the union’s attitude toward having such an assault made by Hollins and Hawkins, the union neither welcomed nor encouraged the steps Hollins and Hawkins took to get the employer to change its policies. It may be that the record does not show that the union interposed a firm veto. Yet we are not so unsophisticated as not to appreciate why this evidence is not and probably never would be available. We recognize that the union could have reasons which it might not choose to proclaim from the housetops why it did not want anything approaching what it might regard as a policy of employment based on affirmative measures to achieve racial balance. Whether Hollins and Hawkins had as ultimate goals affirmative quotas for blacks, or some method of achieving in the Emporium store a racial balance corresponding to the racial balance provided by judicial decrees as a remedy in certain public employment and in certain school cases, it is no secret that what was here sought would -be in derogation of the union in at least two ways. In the most obvious way it would represent a political victory for Hollins and Hawkins which would certainly not add to, and almost surely would detract from, the political appeal of the present union officers at the next election of representatives by the employees in the relevant unit; and which, long before the election, would detract from the union’s glamor. More important, if Hollins and Hawkins succeed in their efforts to have the employer change its policies some whites now employed and others who might be employed will be potential losers. If a black man is promoted or hired, it is inevitable that a white will not be promoted or hired for the same job. Thus Hollins and Hawkins are acting in derogation of the union, its contract, and many of its members.
Yet this case is not to be disposed of merely by uncovering its bare bones and ripping off the veils in which it has been wrapped, that is, the pretense that this is not an effort to change working conditions in the unit, and the further pretense that this effort is not in derogation of the representative selected by *938 a majority in accordance with Section 9 of the NLR Act. We must recognize that this is not, except most superficially, analogous to a case wherein a minority within an appropriate unit seeks, without the consent of the representative selected by a majority, to get different wages, (See Archibald Cox, The Right To Engage In Concerted Activities, (1951) 26 Indiana Law Journal 320), or seeks to reach agreement more quickly than the representative has done, (Cf. NLRB v. Draper Corp., 4th Cir., 1944, 145 F.2d 199 , 156 A.L.R. 989 ; NLRB v. Sunset Minerals, Inc., 9th Cir., 1954, 211 F.2d 224 ,) or seeks the same results with the acquiescence, expressed or implied, of the representative selected by the majority, (Cf. NLRB v. R. C. Can Co., 5th Cir., 1964, 328 F.2d 974 -978-979), or, let us say, purely hypothetically, seeks to get better working conditions for members of a fraternal organization, or quicker promotion for workers who have been graduated from institutions of advanced education, or even claims that skilled workers in the unit ought to be differently treated from unskilled workers. See William B. Gould, The Status of Unauthorized And ‘Wildcat’ Strikes Under The National Labor Relations Act (1967) 52 Cornell L.Q. 672, 686.
What this case involves is á racial issue. Racial issues in our society are, because of the United States Constitution, because of the history, traditions and aspirations of our people, and because of the legislation of Congress, most particularly Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., in quite a different category from other issues presented by a minority in a unit which has selected a representative in accordance with § 9 of the Act.
A first, and by no means trivial, reason why the employer, the union, the NLR Board, and we are required to treat differently a complaint as to a working condition with racial character is that, as shown by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and by cases such as Griggs v. Duke Power Co., 1971, 401 U.S. 424 , 91 S.Ct. 849 , 28 L.Ed.2d 158 , it is part of our national policy, declared in Acts of Congress, not merely that an employer shall avoid the prejudice inherent in discriminating negatively by refusing to hire or promote black persons, but that an employer shall take affirmative steps to assure that black persons have equality of opportunity for employment and promotions. See Castro v. Beecher, D.Mass.1971, 334 F.Supp. 930 , aff’d. with modifications by 1st Cir., 1972, 459 F.2d 725 , and particularly the opinions of the District Court on remand, April 15, 1973. The NLR Act contemplates that the NLRB and all others concerned with the Act shall enforce that policy together with the policy of non-discrimination against employees on account of their legitimate union activities. This is the fair implication of Southern Steamship Co. v. NLRB, 1942, 316 U.S. 31 , 62 S.Ct. 886 , 86 L.Ed. 1246 .
There is a second and more subtle reason why a racial complaint must be looked upon differently from the run-of-the-mill complaints made by minorities as to everything from wages to drinking fountains. When the minority consists of non-whites who seek for themselves what they regard as equality of opportunity, it is to be expected that their position is, if not hostile to, or at least uncongenial to, certainly not fully shared by, a majority of whites in the same unit. Even if we assume that the whites are tolerant, nay generous, their short-term interest is in conflict with the short-term interest of the nonwhites. Nothing — except perhaps a philosophy founded upon long-term interests — can eliminate that basic conflict. Hence it is essentially a denial of justice to allow the white majority to have the power to preclude the non-whites from dealing directly with the employer on racial issues, whether or not this is in dis *939 paragement of the rights of the union representative. See John Rawls, A Theory of Justice, Harvard University Press (1971) pp. 228-234; Sir Isaiah Berlin, Two Concepts of Liberty, Oxford University Clarendon Press (1958), pp. 9-14, 48-57.
This inevitable conflict makes it necessary either to construe legislation so as to avoid an obvious injustice, or, in the last resort, if such construction is not permissible, to face up to the ultimate Constitutional question in the spirit so perceptively adumbrated in the now classic fourth footnote in United States v. Carolene Products Co., 1938, 304 U.S. 144, 152-153 , 58 S.Ct. 778 , 82 L.Ed. 1234 .
Fortunately, here there is no insuperable difficulty in construing the NLR Act to permit a minority, (despite the previous selection by a majority of a representative of the unit in which the minority is employed, and despite a collective bargain executed by that representative and the employer) to bargain directly with the employer in regard to racial issues which affect that minority in a way different from the way they affect the majority. A meticulous reading of the history of the NLR Act makes this point evident. When, as Solicitor General, the Honorable Stanley Reed argued before the Supreme Court that the NLR Act was constitutional, he sought to explain the object of giving exclusivity to the representative. See 75th Cong., 1st Sess., Senate Document No. 52, Arguments In The Cases Arising Under The Railway Labor Act And The National Labor Relations Act Before The Supreme Court of The United States, February 8-11, 1937, pp. 37-38. He had made the same point, somewhat more precisely, earlier in the week in footnote 35a in the brief he had filed in Virginian Railway Co. v. System Federation No. 40, 1937, 300 U.S. 515, 536-537 , 57 S.Ct. 592 , 81 L.Ed. 789 , a companion case involving the cognate Railway Labor Act. What Mr. Reed’s brief said, Mr. Justice Stone’s opinion in Virginian Railway case, just cited, incorporated with great specificity into the Railway Labor Act. See 300 U.S. 548 , footnote 6, 57 S.Ct. 592 , and Mr. Chief Justice Hughes’ opinion in National Labor Relations Board v. Jones & Laughlin Co., 1937, 301 U.S. 1, 44 , 57 S.Ct. 615 , 81 L.Ed. 893 , incorporated with somewhat more generality into the National Labor Relations Act.
What is undeniable (as the discerning opinion of Circuit Judge John R. Brown in NLRB v. R. C. Can Co., 1964, 5 Cir., 328 F.2d 974, 979 , joined in by Circuit Judge Elmer Tuttle, emphasizes, and as Vaca v. Sipes, 1967, 386 U.S. 171 , 87 S.Ct. 903 , 17 L.Ed. 842 and Note Individual Control Over Personal Grievances under Vaca v. Sipes, 77 Yale L.J. 559 (1968) seem to recognize) is that the draftsmen of the NLR Act, those who championed it in argument before the Supreme Court, and that court itself had their focus on the chaos that would occur, the breakdown of the union’s authority, the unfortunate predicament of an harassed employer, and the likely breach of industrial peace which would occur if every dissident group of workers in an appropriate unit was free to negotiate all the terms of its own working conditions with the employer. However, no one associated with the original Wagner Act cases or the legislative debates preceding the adoption of the NLR Act had his attention called to a racial or kindred term of employment where it was inevitable that the interests of the representative and of the majority would be adverse to a statutorily — , not to say, constitutionally — , protected claim of a minority or dissident group or individual. See Donnelly v. United Fruit Co., 1963, 40 N.J. 61 , 190 A.2d 825 ; Hain, Black Workers Versus White Unions etc., 16 Wayne L.Rev. 37 (1969).
Verbally, and, from one set of premises, one may say “logically” as well, the reasoning which precludes a minority from bargaining about wages or normal *940 working conditions also precludes the minority from bargaining about racial discrimination. But that argument proceeds from an implied premise that Congress when it used the all-inclusive language of exclusivity set forth in Sections 8 and 9 of the NLR Act really meant to be all-inclusive. The plain fact of the matter is that there is not a shred of evidence to show that the draftsmen of the Act, its sponsors, the legislators who enacted it, the President who signed it, the lawyers who argued for it, or the Justices who sustained it ever contemplated the issue presented in the ease at bar: i. e., whether the NLR Act gives to a white majority the power to foreclose a non-white minority from presenting to their employer those special issues which arise with respect to the employment of non-whites. It cannot fairly be supposed that by implication, or by the use of general language of an admittedly comprehensive nature, Congress intended to deny the nonwhites what thoughtful persons must concede is elementary justice.
TO LEAVE NON-WHITES AT THE MERCY OF WHITES IN THE PRESENTATION OF NON-WHITE CLAIMS WHICH ARE ADMITTEDLY ADVERSE TO THE WHITES WOULD BE A MOCKERY OF DEMOCRACY. SUPPRESSION, INTENTIONAL OR OTHERWISE, OF THE PRESENTATION OF NON-WHITE CLAIMS CANNOT BE TOLERATED IN OUR SOCIETY EVEN IF, WHICH IS PROBABLY AT LEAST THE SHORT-TERM CONSEQUENCE, THE RESULT IS THAT INDUSTRIAL PEACE IS TEMPORARILY ADVERSELY AFFECTED. IN PRESENTING NON-WHITE ISSUES NON-WHITES CANNOT, AGAINST THEIR WILL, BE RELEGATED TO WHITE SPOKESMEN, MIMICKING BLACK MEN. THE DAY OF THE MINSTREL SHOW IS OVER.
Inasmuch as the NLR Act lends itself to a construction which avoids the denial of elementary justice it is unnecessary for this court to consider whether if the statute did deny» the non-white minority the right to present issues which have a non-white hue, the NLR Act as applied to the minority would be repugnant to the Fifth, Thirteenth, or Fifteenth Amendments to the United States Constitution.
Some miscellaneous points should be answered before concluding.
There is, of course, no question that the issues tendered by Hawkins and Hollins related to “working conditions” as that term is used in Sections 7, 8, 9, and other parts of the NLR Act.
Therefore, unless the “exclusivity” doctrine stood in the way, Hawkins and Hollins had a statutorily-protected right to picket in order to present their claim with respect to alleged discrimination against non-whites. This was indeed specifically recognized by the Court of Appeals for the Ninth Circuit in the first stage of NLRB v. Tanner Motor Ltd., 9th Cir., 1965, 349 F.2d 1 , although, of course, in the second stage of the same case, NLRB v. Tanner Motor Ltd., 9th Cir., 1969, 419 F.2d 216 , the Ninth Circuit has reached a conclusion diametrically opposed to the one set forth in this opinion.
In this case there is not properly before us as a Court of Appeals any question as to whether the language, signs, and like utterances by Hawkins, Hollins, and their associates were such as to deprive them of a statutory privilege against discriminatory action by their employer. The NLRB itself, (though not its trial examiner), refrained from any comment on those utterances. The board, in short, did not refuse to issue a complaint against Emporium on any ground related to the utterances of Hawkins and Hollins. We are, therefore, not called upon to decide whether we think such utterances fall within the doctrines of NLRB v. Local Union No. *941 1229, 1953, 346 U.S. 464, 472 , 74 S.Ct. 172 , 98 L.Ed. 195 and Patterson Sargent Co., 1956, 115 NLRB 1627 , 38 LRRM 1134.
Certainly the Board was warranted in not placing petitioner beyond the pale of legal relief merely because the vulgar language and the want of “company loyalty” of Hawkins and Hollins, and their disregard of the truth were offensive. See Dobbs Houses v. NLRB, 5th Cir., 1963, 325 F.2d 531 , and Crown Central Petroleum Corp. v. NLRB, 5th Cir., 1970, 430 F.2d 724, 731 .
For judges to make a ruling upon the effect of language and conduct which in its opinion the NLRB did not characterize and rule be either permissible or impermissible would be to arrogate unto ourselves a preliminary fact-finding and law-determining function which Congress has entrusted to the Board and not to our non-expert hands. Nothing said herein, however, is to be construed as indicating approval of the vulgarities and exaggeration in the utterance of Hawkins, Hollins and their fellows. To be sure, those who use such Billingsgate are not on that account to be denied legal relief. Nonetheless, it is fitting for the court to remind those represented by petitioner that their interests, as well as the interests of the employer and, more important, of democratic society favor rational discussion, and not abusive intemperate name-calling. Those who seek an understanding tolerance would do well to practice it.
In my view, the NLRB’s order should be set aside, and the Board be directed to take further proceedings in conformity with this opinion. I see nothing to be gained by a broad as distinguished from a narrow, directory remand unequivocally commanding the NLRB to grant the relief sought by the complaint. I see no possible way of avoiding the head-on challenge to the exclusivity principle which is involved in the incontrovertible facts. Justice, delayed is justice denied.