(dissenting).
The decision here involves the application of the legislation that has been enacted by Congress to meet the great problem of labor disputes, and as I am not in agreement, the importance of the matter necessitates a brief statement.
Labor disputes within judicial knowledge have been a kind of warfare, costly in suffering and economic loss, and for a long time they were not justiciable. But the labor acts have now formulated into positive law definitions of certain rights of labor and certain few restrictions on the power of management over labor in industry that are deemed to have the weight of public opinion behind them and are declared by Congress to be conducive to industrial peace. By the provisions which are most relevant in this appeal, Congress has established that one of the most crucial of labor disputes, and the one that has long bred disorder, namely, the question of the affiliation of a plant’s workers with the labor union of the trade at which they work, shall be determined by resort to the democratic process of elections.
There has never been, and is, no unanimously agreed on yardstick to settle whether unionism has caused or hindered the gains that have admittedly accrued to labor. The gains go to the workers in a shop equally, whether they affiliate with labor unions or oppose them, as there is no such thing in industry as a higher wage to a union worker as such. -Though this advantage to a worker of a position where he may get the gains of union without the pains, is obvious to the dullest, and millions refuse to join the unions, the fact remains that other millions have joined up. In newer fields they are induced to do so by ways and means, fair and foul, that are now thor*878oughly well known. Since elections have been provided for, the term “electioneering” covers them all. The Labor Relations Board has been established with a main central purpose of determining the will of the workers in respect to such joining or not joining by the democratic process of free election by secret ballot. The Acts extend the democratic process and its incidents beyond the political into the economic field. In the old field, the democratic way is, and always has been, the hard way. In the new field, the character of the feelings aroused is the same and resistance is, as expected, no less formidable. But the democratic way prevails in the political field and Congress has enacted that it shall have its place also in the field of labor relations.
Despite the enormous volume of the record in this appeal, accumulating ten years’ administrative and court proceedings between the same parties, the one single matter of substance involved in it is whether or not an election by secret ballot with concomitant electioneering shall be allowed for the workers in the Donnelly Garment Company’s factory at Kansas City on the selection of a bargaining agency. The old established union of the garment workers, claiming that in the course of its existence it has lifted the condition of the workers in the industry from degradation to decency, and promising to continue the advance, has wanted to obtain affiliation of the workers in the Donnelly plant and has raised a labor dispute, and the Board has tried through the years to remove the obstacles to apply the democratic process of election to determine the dispute.
The Donnelly company has resisted, not because it has ever feared the result of an election, but it has feared the electioneering that goes with the democratic process of a free election. It has accordingly engaged, during the years, in measures to anticipate, suppress and prevent the electioneering which is included in the American concept of an election. It has succeeded through an injunction erroneously issued by a district judge (belatedly reversed), by discharge and dropping out of employees favoring union affiliation, -by a slight wage increase, by company dominated union and closed shop contract made with it, and protracted court proceedings which include several decisions. The conclusions of the majority opinion in this proceeding refusing to enforce the Board’s order to disestablish the plant union, in effect validates the contract that has been made by which any affiliation with the old union is forbidden to any of the workers in the plant during its continuance, collective bargaining is completely forestalled and avoided, and any •practical opportunity or occasion for the application of the democratic process of an election at the plant has been anticipated and removed. The company has been, and is, proceeding in its competition within the unionized industry freed under judicial rulings from any impact upon its workers of the electioneering and secret ballot of the democratic process of election provided by Congress. It has so proceeded in a peace which is grateful but which is not, in my opinion, anchored in sound application of the Labor Acts.
On the first appeal of this particular proceeding (which is an inquiry upon a charge against the company of unfair labor practices) the company complained that the Board had refused to let it bring in and inquire of each and all of its twelve hundred workers individually touching his or her mental attitude for or against the established garment workers union and a plant union, and his or her reasons. It was the Board’s position that it had no right or power to determine the will of the workers in a plant in such a manner or in any other way than through the election upon secret ballot prescribed for such determination by it in the statute of the Board’s creation. This court held that the Board had denied due process in refusing to permit the inquisition of the individual employees.
If decision on that appeal had been conclusive of the controversies to be decided here, I would be bound to follow it under our discipline in the court, but it has not been. I did not sit with the division of this court which rendered decision, and consider it my duty to take this first opportunity to state my view that the Board was neither required to permit the inquisition of the workwomen, nor was it bound to give any special or particular weight to the answers they made to the interrogatories propounded to them on the subject in the presence of the company’s representatives. I do not agree with the implication of the decision that the Board should have found the facts according to what the twelve employees answered, or the stipulation that the others would answer similarly if interrogated under the same surroundings.
*879In the thought of this country, voting a political preference includes casting the ballot in secret, and when the process is extended to the economic field the same element of secrecy necessarily goes with it. A procedure by which the will of any mass of people is determined by having either the political or the industrial bosses who are in control call in the individuals for questioning as to their will and having the answers so elicited recorded as determinative of that will, is futile and contrary to any American concept of a free election process.
It happens in this case that both the outstanding owner of the company herein and the great and famous spokesman for it,1 had and deserved the highest honor, trust, respect and affection, and there may have been no single one of the workers in the plant without some obligation for some kindness personally bestowed. But the fact, indisputable as it is, does not detract from, it illuminates the principle involved in this case.
The American concept of free election includes the element of electioneering, as vitally essential a part of it as is the secret ballot. Indeed, the first is much older in the tradition than the second. The history of electioneering in the sense of attempting to win elections in the political field probably records every form of brutality, violence and fraud that the occidental mind conceives of. Yet in that field the democratic process stands. The gist of the long years of wordy controversy in this case is that- the electioneering of the Ladies Garment Workers Union in a Donnelly plant election would be too terrible to be permitted. The supposed terror has been enlarged upon in every argument to the Board and to this court, as well as to the workers in the plant. The anticipated terror has been first erroneously enjoined and now forestalled and prevented by judicial decision.
There is no reason to believe that the Congress which enacted the labor laws thought that the democratic process which it introduced into the economic field would be immune from the impact of any of the clashing of interests and resultant passions, excitements and incidents attendant on its practice in the political field. The element of electioneering will continue to inhere as a vital and vitalizing element
But there is no power in the courts to prevent political elections because the electioneering will involve excitement and violent clashing. The labor acts have similarly forbidden the courts to try to use the judicial powers of prevention against the working out of the democratic process in. the economic field into which Congress has extended it.
Here the forbidden result has been attained and the judicial preventive keeps any electioneering from being done and any election from being held because the form into which the proceedings have been cast opened the door to it. The court would never have ordered an election which it identified as an election to be determined by letting the bosses interrogate the voters individually and recording the answers as votes. I am satisfied that the thing cannot and should not be done under any form.
My study of the record herein has satisfied me that the findings of the Board herein are sustained by substantial evidence. They are clear and unambiguous and set out the several steps by which the company anticipated and has prevented any kind of an attempt by the established garment workers labor union to obtain the affiliation of the workers in fhe company plant. It appears to me that the methods by which the company fostered and set up and now maintains its plant union, including all its workers, present and prospective, and binding them against other affiliation, as well as precluding any collective bargaining, are the same methods that have been consistently held by the courts to be contrary to the Act. When, as it is said, the established union arrogantly demanded of the company that it herd the women and girls who worked for it into the union, nobody doubted that the company could easily have done so. The form of the company’s charge that the union members conspired to force the company to herd its workers into the union directly implies that the company could have done so. Or it could proceed to herd the employees into a company union with no means or power of collective bargaining. Or it could have left them to get together away from their bosses to consider and to exercise a free choice. The company went as far from leaving them to a free choice as it did from herding them into the union affiliation demanded. Its agents held out *880to and regarded by the workwomen as their bosses, acting with and for the management, used company facilities and the power and authority of the employer to gather all of the personnel in a hall on the plant property, and then and there directed and consummated the organization of the plant union. The women and girl workers acquiesced, as the established discipline of the business and the accustomed submission to the authority of the supervisors over them rendered it practically certain that they would. There was no interval between the time they checked in for work at their machines (i.e.,' reported themselves for orders and direction) and the time when they signified their adherence to a plant union when it could fairly be said that they were released from the factory discipline or the authority of the company agents who maintained that discipline over them. The prima facie evidence was clearly sufficient to support the charge of domination, and without disproof could justify no other inference than that the company did by unfair labor practices set up and herd its workers into the pseudo plant union in order to forestall and prevent any electioneering for union affiliation.
Instead of attempting to disprove that showing, it appears to me that the company proffered testimony that tended merely to divert the inquiry away from it and it does not appear to me that the Board denied the company or the pseudo plant union due process of law by excluding such proffered testimony. The repeated offers to bring in all the working women and girls to testify individually merely illustrates what appears to me to have been the tendency of the company’s proffers to divert the trial from the charges. There happened to be only twelve hundred of the workers in the particular plant, but in shops that employ many thousands it is obvious that the lifetime of an Examiner would be too short. The offers to prove what the electioneering conduct of the established garment workers union had been before the company herded its workers together into the company union is of the same nature. That there was fear of the union seems to me as irrelevant to the charges against the company as is the history of the origin of such fear. As to that also, the history of the union is too long, and the lifetime of an Examiner would be too short. It seems to me that the inquiry demanded in the proposed fields of controversy would only protract and distract. It could not illuminate. Employers may not commit the unfair labor practices such as charged in this case to prevent union electioneering even by labor unions that have a bad record behind them. There was no showing here, as in the Indiana & Michigan Electric Co. case (318 U.S. 9, 63 S.Ct. 394, 87 L.Ed. 579), that the labor union was resorting to violence and acts of terrorism adapted and intended to affect the trial and inquiry of the Board then pending. Nor does the offer to prove that the supervising agents of the company, who effected the organization of its plant union, had the same rank in the Donnelly company as some of the members of the established union have in other companies, appear to me to be relevant. The question whether they acted for management and bound the company by their acts was controlling. There were also offers to prove that the labor union claimed and promised better wages and working conditions and that the representation was false in that the company under its system did and would do better by its workers than union shops. I think the issue so tendered is not justiciable, either by the Board or by the courts. The question of sanctioning or suppressing labor unions is political and is debated by millions. To the extent that it is settled by the Labor Acts, the courts are bound. It is not within the power of the courts, by taking one side or the other at the instance of a private litigant, to settle whether the patriarchal or the labor union system does better for working people in the garment making industry or in any or all of the industries. The process of election under secret ballot is alone appropriate to that quarrel.
Neither do I find evidence of bias or prejudice to disqualify the Examiner in this case. He seems to me to have ruled in accord with the dictates of his conscience and to have endeavored, against great resistance, to keep the trial within a rational relation to the charges to be tried. The multiplied offers to enter into unlimited remote controversial fields of inquiry suggested means to prolong the hearing to the point of frustration, but not, as it seems to me, to a fairer decision on the charges being tried.
In my opinion the order based upon the Board’s findings and conclusions (reported 50 N.L.R.B. 241) should be enforced as prayed.
The late Honorable James A. Reed of Missouri.