(concurring in part and dissenting in part).
I concur in so much of the opinion of the Court as holds that the Board had jurisdiction to enter the order here in controversy and that its cease and desist provisions and section 2 (b), (c) and (d) of its affirmative provisions should be enforced. I dissent from the holding that section 2 (a) should not be enforced.
The Court properly sustains the Board in the finding that petitioner has been guilty of dominating and interfering with the Employees’ Representative Committee in contravention of the Act and enforces the cease and desist provision of the order for that reason. Whether, upon this finding, petitioner should be required to withdraw recognition from the committee and disestablish it as a bargaining agency was an administrative matter committed by Congress to the sound discretion of the •Board; and the Court is not authorized to substitute its discretion with regard thereto for that of the Board. National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307; National Labor Relations Board v. Pacific Greyhound Lines, 303 U.S. 272, 275, 58 S.Ct. 577, 82 L.Ed. 838. Only where there is a departure from law, action without substantial evidence to justify it or action so arbitrary and unreasonable as to amount to an abuse of discretion, is the-Court justified in refusing enforcement of an order entered by the Board in exercise of the power entrusted to it by Congress. When the Court enforces the cease and desist provisions of the order, it recognizes that the finding of unfair labor practices was based upon substantial evidence and that some action by the Board was warranted by law. I do not think that, in the light of that finding, the portion of the order disestablishing the bargaining agency, can be condemned as an abuse of discretion.
The finding of the Board that there was domination of the committee by the company prior to the 1937 change in the plan, was not based upon technical or trivial matters, but upon a showing of domination of the clearest character. As originally adopted in 1927 the plan provided that petitioner should appoint a number of representatives equal to the number elected by the employees to sit on committees with the latter and negotiate with petitioner in behalf of the employees.' As no action could be taken by the committees exc'ept by vote of a majority, this gave the representatives of petitioner power to paralyze any movement even for the presentation of demands by the employees. It is suggested that the representatives appointed by petitioner were to bargain with the representatives of the employees, bjit this is negatived by the fact that provision was made for a company representative to perform this function, and that no action of the committees was to have any binding effect unless approved by the president of petitioner. No change in the plan could be made except by a two-thirds *849vote and with the approval of petitioner’s president. In addition to this, petitioner paid each of the representatives at one time $100 and at another $60 per year for service in that capacity,' it paid the secretary of the committee $5 per month for his service in that capacity, and it defrayed all expenses of the committee, such as printing of ballots, printing of plan of organization and the like.
In the light of this history of the plan, the Board, I think, was thoroughly justified in concluding that the 1937 change in the plan would not remove the dominating influence of the company obtained through the preceding ten year period. The committee was an established institution functioning in accordance with techniques developed through years of company domination. It was probably too much to hope that by a mere change in the plan it would change its character, rid itself of company influence and become a free bargaining agency such as the Act contemplates. Whether it could do so or not, was a matter for the Board to determine in the discharge of its administrative function; and the Board may well have concluded that only by disestablishing the committee as a bargaining agency and starting anew could free and untrammelled action on the part of the employees be secured. As said by the Supreme Court in the Pennsylvania Greyhound Lines case, supra: “Section 10(e), 29 U.S.C.A. § 160(e) declares that the Board’s findings of fact ‘if supported by evidence, shall be conclusive.’ Whether the continued recognition of the Employees Association by respondents would in itself be a continuing obstacle to the exercise of the employees’ right of self-organization and to ■ bargain collectively through representatives of their own choosing, is an inference of fact to be drawn by the Board from the evidence reviewed in its subsidiary findings. See Swayne & Hoyt v. United States, 300 U.S. 297, 57 S.Ct. 478, 81 L.Ed. 659.” [303 U.S. 261, 58 S.Ct. 576.]
And what was said by the Supreme Court in the very recent case of Consolidated Edison Co. v. National Labor Relations Board, 59 S.Ct. 206, 220, 83 L.Ed. -, is apposite, viz.: “The power to command affirmative action is remedial, not punitive, and is to be exercised in aid of the Board’s authority to restrain violations and as a means of removing or avoiding the consequences of violation where those consequences are of a kind t© thwart the purposes of the Act. The continued existence of a company union established by unfair labor practices or of a union dominated by the employer is a consequence of violation of the Act whose continuance thwarts the purposes of the Act and renders ineffective any order restraining the unfair practices.” (Italics supplied.)
Where there is evidence in the record to sustain the findings and order of the Board, I do not think that it is within our power to consider whether other findings are not also supported by the record, which, if made, might justify different action. The making of findings and determination of administrative action thereon, as heretofore stated, is a matter for the Board and not for us. Our right to make findings from the record in cases coming to us from the Labor Board is no broader than in cases coming from the Board of Tax Appeals; and with respect to our power in the latter class of cases the Supreme Court, in the case of General Utilities & Operating Co. v. Helvering, 296 U.S. 200, 206, 56 S.Ct. 185, 187, 80 L.Ed. 154, said: “Recently (April, 1935) this court pointed out: ‘The Court of Appeals is without power, on review of proceedings of the Board of Tax Appeals, to make any findings of fact. * * * The function of the court is to decide whether the correct rule of law was applied to the facts found; and whether there was substantial evidence before the Board to support the findings made. * * * If the Board has failed to make an essential finding and the record on review is insufficient to provide the basis for a final determination, the proper procedure is to remand the case for further proceedings before the Board. * * * And the same procedure is appropriate even when the findings omitted by the Board might be supplied from examination of the record.’ Helvering v. Rankin, 295 U.S. 123, 131, 132, 55 S.Ct. 732, 736, 79 L.Ed. 1343.”
The case at bar furnishes good illustration of the wisdom of this rule. The Board found that “the provisions of the plan as revised, no less than the manner of its revision, indicate that it is still the creature” of the employer, resting this conclusion upon the facts as found by it in detail and set forth in the majority *850opinion. In considering other facts not mentioned by the Board, because doubtless deemed immaterial to the issue, the Court is without the benefit of the finding which the Board might have made with respect to these facts had it considered them in connection with other facts appearing in the record and bearing upon the same matters. Thus, along with the fact that under the plan the employees vote for representatives without interference on the part of the company, the Board would doubtless have considered the fact that under the agreement for collective bargaining which the plan embodies the employees are limited in their choice of representatives to employees of the company, to the exclusion of an outside union as a bargaining agent. Along with the fact that the company is willing to negotiate with the committee, the Board would doubtless have considered the fact that the plan makes no provision for the meetings of employees or for instructing representatives as to their wishes, matters deemed material and expressly mentioned in the opinion in the Pennsylvania Greyhound Lines case (303 U.S. at page 270, 58 S.Ct. 571).
The first of these matters is, to my mind, very material if we are to go behind the findings of the Board and consider the record. Section 7 of the National Labor Relations. Act provides that “employees shall have the right .* * * to bargain collectively through representatives of their own choosing”. 29 U.S.C.A. § 157. Any plan or agreement which limits their choice of suclj representatives is contrary to the reason and spirit of the Act as well as violative of this section; and an agreement for collective bargaining which provides that the bargaining representatives shall be employees of the employer excludes the possibility of selecting an outside union as bargaining agent, and thus limits the employees in the freedom of choice which it was the purpose of the Act to guarantee. This does not mean, of course, that the employees may not select their fellow employees as representatives, nor does it mean that they may not select a committee or inside union of their fellow employees as a bargaining agency. What it does mean is that, in selecting their representatives, they must be free to-select whom they will, and not be bound by any plan or agreement with their employer to limit their selection in such way as to exclude an outside union.
For the reasons stated, I am of the opinion that the order of the Board should be enforced as entered.