(dissenting).
A. The majority decides an important federal question in conflict with the decisions of the Supreme Court. It rejects pertinent testimony as not substantial, and substitutes its inferences for equally if not more rational inferences of the Board supporting its findings of “Interference, restraint and coercion”.
The decisions so in conflict are National Labor Relations Board v. Pennsylvania Greyhound Lines, 1937, 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 831, 115 A.L.R. 307, in which, in holding that continued recognition of a company union would be an obstacle to the exercise of the employees’ rights, the Court said, “The inferences to be drawn were for the Board and not the courts.” And National Labor Relations Board v. Link-Belt Co., 1940, 311 U.S. 584, 597, 61 S.Ct. 358, 365, 85 L.Ed. 368, where the Court reversed the Circuit Court’s refusal to enforce an order saying, “We are of the opinion that the Court of Appeals in reaching that conclusion substituted its judgment on disputed facts for the Board’s judgment — a power which has been denied it by the Congress.” See also National Labor Relations Board v. Waterman S. S. Co., 1939, 309 U.S. 206, 208, 209, 226, 60 S.Ct. 493, 84 L.Ed. 704.
If labor relation cases are so to be treated in this Circuit, there will have to be a revision of the technique of the lawyers’ presentation of cases of their employer clients.
B. The majority decides another important point of federal law in conflict with the decision of the Supreme Court in Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 217, 230, 59 S.Ct. 206, 83 L.Ed. 126, in holding that the Board cannot order an employer to desist from committing unfair labor acts on evidence of such acts in the past and not existing when the accusing union files its complaint with the Board.
A. The coercion of advertising manager Brandon, of the advertising salesmen under him during October 1937 in the Guild’s organizational drive in his department to unionize its employees.
Under the heading of “Interference, restraint and coercion” the Board, after discussing Brandon’s conduct and that of other supervisory agents of the employer, finds that “ * * * by the continuing expressions of criticism and disparagement of the Guild, the criticism of the use of outside negotiators, the attempt to secure contracts with employees’ committees in the various departments, the threat to cut wages in the event that the classified-advertising employees failed to sign a contract, and the threat to discharge employees if a contract with the Guild was consummated, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in section 7 of the Act.”
Only by weighing and deliberately rejecting the following evidence, pressed on the Court in briefs and argument, can it be said Brandon’s conduct affords no substantial support for the findings.
Concerning the period of Brandon’s coercion, it was emphasized at the hearing that it was when the Guild was conducting its drive in October 1937. Though the testimony at page 252 of the record is, “Yes, In my judgment it was in about October when the organizational drive in the commercial department had got under way and members were being signed up, Harry Brandon, the display advertising manager, mentioned to me that he understood he wasn’t going to be admitted to the Guild and wanted to know if I couldn’t do something about it.” and there is no evidence to the contrary (as pointed out in the briefs) thus fixing that as the month of the drive and though it was in that month that Brandon’s coercive acts occurred, the majority opinion ignores the record and states concerning the finding of coercion, “In con*969sidering this finding it should be remembered that the Guild was completely organized at that time.”
I dissent from the majority opinion’s weighing the evidence of the time of the coercion, rejecting it as not substantial and then finding to the contrary. The deliberation in such rejection is evident from that opinion’s statement that “There was no other evidence on this subject.”
I also dissent from the similar weighing as unsubstantial and hence rejecting the following evidence of interference, restraint and coercion in and before October 1937.
Brandon held frequent meetings of his department employees and spent much and sometimes all of the time in denouncing the Guild, using such language to the men solicited to be organized as, “ . . . that one of these days the white collar workers like us are going to get ourselves some guns and go out and shoot those union bastards(Emphasis supplied.)
The employment of these men depended on their bringing in advertising accounts. Robbing them of their production time by such violent attacks on the union they then contemplated joining, and later joined, is one of the most impressive methods of interference and coercion.
I dissent from the rejection of this evidence warranting the Board’s inference of a coercive interference with the union organization of the men.
Brandon, finding the organization of his men progressing, changed his tactics. He sought to join the “union bastards” and become a member of the Guild. I dissent from the holding of the majority that the Board could not infer that his change of attitude was for the purpose of disrupting the Guild and the majority’s holding that, “ * * * it is clear that there is no basis for the inference that Brandon’s purpose in applying for membership was not bona fide.” Here clearly is another violation of the principle of the Greyhound Lines case, supra, that “The inferences to be drawn were for the Board and not the courts.”
The majority opinion after omitting Brandon’s attack on the organizing union bastards recites a part of the testimony of Brandon’s coercive conduct after the union rejected his application to join it. It recites that though the advertising employees used Saturdays in their soliciting and did not work in the office on that day of the week, nevertheless after his rejection by the union they were compelled to report there and do nothing. What is omitted is the character of the order he gave them. It was, “Come Saturday mornings and sit at your' desk, keep working at your desk and smell your own feet stink.” I do not agree with the majority that this vulgar remark is “immaterial” and hence to be omitted from the opinion. Obviously the Board was entitled to infer that Sales Manager Brandon intended to punish and shame the men for their union activity and their refusal to allow him to join the union to disrupt it.
I dissent from the holding of the majority that “ * * * confessedly the action of Brandon was a purely personal one based upon a personal grievance which had nothing to do with the management of the respondent company.” The question arises — Who has so confessed? Brandon has made no such confession and it is significant that the employer did not call its manager to testify. The Board has made no such confession and of course no witness can make such a confession for the Board or as Brandon’s agent. Here the majority opinion seems to have made a finding of the purpose of Brandon’s acts based on a confession non-existent in the record, and to substitute its own inference for the entirely proper inference of the Board.
B. I dissent from the holding that the Board cannot make 'an order to cease and desist from an unfair labor act because the employer has ceased committing the offense. The majority holding is, “Here the alleged discrimination had ceased long before the complaint was brought to the Board and as shown by the testimony the union did not intend or desire that the matter should be given further consideration Consequently there was no occasion for an enforcement order based upon this incident.”
The. statement that the “discrimination” (the finding is “coercion”) had ceased before the Guild’s complaint was brought to the Board, has no support in the record. It nowhere appears when the Guild filed its charges with the Board. Obviously the Board’s complaint would issue after Brandon’s coercive acts. Equally obvious that the Guild cannot waive the Board’s right to find “an unfair labor practice”.
The quoted holding of the majority is contrary to the law as declared by the Supreme Court in Consolidated Edison Co. v. *970National Labor Relations Board, 305 U.S. 197, 217, 225, 59 S.Ct. 206, 83 L.Ed. 126. There the employer had voluntarily ceased the employment of union spies prior to November 1936, 305 U.S. at page 230, 59 S.Ct. 206, 83 L.Ed. 126. The Boárd’s order to cease and desist from such practices was made a year later, November 10, 1937. 305 U.S. at page 217, 59 S.Ct. 206, 83 L.Ed. 126. The Supreme Court disposed of the contention made by the majority here, 305 U.S. at page 230, 59 S.Ct. at page 217, 83 L.Ed. 126 stating: “With respect to industrial espionage, the companies say that the employment of ‘outside investigating agencies’ of any sort had been voluntarily discontinued prior to November, 1936, but the Board rightly urges that it was entitled to bar its resumption.” Holding similarly are N.L.R.B. v. Calumet Steel D., etc., 7 Cir., 121 F.2d 366, 371; Pueblo Gas & Fuel Co. v. N.L.R.B., 10 Cir., 118 F.2d 304, 307.
Because the case has been considered under principles so subversive of those established in these decisions of the Supreme Court, it is my opinion that it should be reheard and considered de novo.