The opinion
CLARK, Circuit Judge
(concurring in the result).
With some doubt whether the master’s fee should exceed the usual government rate of $25 per day for independent trial examiners and like officials, I am willing to concur in the result. So far as respondent is concerned, a moderate penalty may well be adequate to convince him that he must obey court orders.
But I do think the decision should be put upon broader grounds, for it seems to me clear that respondent did not bargain with the union in good faith, but was intentionally hewing as close to the line of illegality as he could. From the beginning his conduct shows a pattern unfortunately far from unusual in these cases, amounting in substance to a repudiation of the policy of the National Labor Relations Act by fighting union representation by non-employees. But he did not wish to put the matter to test, for the occurrence of a strike followed by a Labor Board complaint led to his agreement to an enforcement order of this court. His consent does not detract from the force of the order. Pittsburgh Plate Glass Co. v. N. L. R. B., 61 S.Ct. 908, 915 , 85 L.Ed. -. *759 When, however, the strikers, accepting this peaceful settlement of the dispute, sought to resume work, he expressed surprise that they should do so, and delayed acting until he. had consulted his lawyer, if not longer. I would agree that these delays, if alone, could be overlooked; the significance of the matter was that he thus immediately disclosed his attitude to his employees and put all further negotiations in jeopardy. Thereafter, as the employees gave up one bargaining point after another, he retreated step by step to firmer ground, until at the end his victory was complete. All the workers’ demands embodied in the contract they offered had been rejected — closed or preferential shop, no work on “struck goods” from other factories with labor troubles, no subcontracting, a wage increase. But further, the strikers who were re-employed had suffered a wage cut, the strikebreakers were not discharged, but were continued at the wages for which they had been hired, and “loyal” or nonstriking employees (including relatives) received increases.
The master was able to excuse these various acts by considering them separately, and not as parts of one single picture. Thus he found the pay raises inconsequential and the reductions to the strikers necessary because of respondent’s losses. Passing the question whether losses can be inferred merely from proof of lessened gross sales alone, it would seem that a showing of good faith in negotiation here would require the strikers to feel the loss last, rather than first. The master took no exception to the suspicion with which respondent viewed all attempts at negotiation, even walking out of meetings because of the bandying of epithets in which he appears to have participated. On the other hand, the master did criticize the Regional Director of the Labor Board for her endeavors to promote settlement. His conclusion, it seems to me, is one which would make of the enforcement order of this court a really efficient weapon of strikebreaking; certainly it would hardly conduce to peaceful labor relations or promote the objectives of the act. The opinion herewith of course substantially rectifies that result. But I think it does make somewhat the same error as did the master of treating respondent’s various acts as more or less separate and distinct, rather than all of a piece. And I fear it may leave the result in some confusion, for if the parties do not now settle their differences there remain some possibilities of controversy as to just how far we think respondent can go in still opposing the union’s representatives.
Experience, I think, now shows that there is serious question as to the wisdom of committing the last and perhaps most delicate step of labor law enforcement— proceedings in contempt — to somewhat alien professional interests as in effect a court of first instance. I suggest that so to do is unfair to the dignity of this court in maintaining respect for its orders and to the public interest which we are to safeguard. If the Board acts in a public capacity to give effect to the declared policies of the act, Phelps Dodge Corp. v. N. L. R. B., 61 S.Ct. 845, 852 , 85 L.Ed. —, so obviously do we also. Further, we lose the very quality of expertness and exercise of wise discretion in difficult and troubled situations which is the essential basis for committal of such matters to agency control. International Association of Machinists v. N. L. R. B., 311 U.S. 72, 82 , 61 S.Ct. 83, 89 , 85 L.Ed. -. Moreover, the long wait while the new tribunal is familiarizing itself with the law and the facts — here delaying settlement of an active labor dispute for a year after seeming agreement, though the underlying facts were substantially undisputed — underlines perhaps the chief problem of administrative procedure, that of delay in effective action. I suggest that the taking of testimony for our consideration on these proceedings should be had promptly through the trained examining staff of the Board itself; we, of course, must pass upon the trend and effect of the testimony when taken. If this is not to be done, I see no other proper course than the taking of such testimony before the court itself or some of its members.