(dissenting).
The outstanding fact in this case, which is difficult to explain on any reasonable basis, is that an employer of labor, innocent of any wrongdoing, is being compelled to bargain with the union which has been formally repudiated by ninety-seven per cent, of the employees. The difficulty is heightened by the lack of any statute, administrative regulation or precedent to justify the Board’s action.
The union’s loss of the support of the workers is not disputed. It was chosen to represent them at an election which was held five years ago on November 27, 1946. From that day until April 10, 1950, it was continuously recognized by the company as the bargaining representative of the men and two one-year contracts were executed which spanned the period ending May 2, 1949, and thereafter the company continued to negotiate with the union whenever requested to do so. There is no evidence whatsoever in the record that the company failed to ¡bargain with the union at any time prior to April 10, 1950.
The refusal to bargain which then occurred was due entirely to the repudiation of the union by the men which is established by undisputed evidence in two respects. On March 9, 1950, sixty-four out of sixty-six employees petitioned the Regional Director and the Labor Board to. decertify the union; and on March 15, 1950, the Regional Director notified the company that the petition had been filed. This situation prevailed on April 10, 1950; and any doubt which the company might have entertained in respect to the matter was removed by the admission of the business representative of the union on April 10, 1950, that it no longer represented the men, coupled, nevertheless, with the demand that the company continue to recognize it.
The company’s innocence of any wrongdoing is equally well established by undisputed evidence. There is affirmative proof of continuous negotiation with the union whenever it was requested to do so, and there is no evidence whatsoever that the company was at any time guilty of unfair labor practice or was subjected to a disciplinary order of the Board. Similarly the record contains no suggestion that the union’s loss of the confidence of the men was caused by any improper conduct or interference on the part of the company or that the decertification petition of the men was suggested or stimulated in any way by company action.
Thus there is no actual basis for the argument that if the company’s contention in this case is sound it would “permit an employer to commit an unfair labor practice by refusing to bargain collectively with the . union, sign a settlement agreement undertaking to bargain with the union, then attempt to have a new union certified when dissatisfaction with the old union arose among the employees because of the unfair labor practice.” However reprehensible such conduct may be, it has nothing to do with the case at bar. The company did not commit any unfair labor practice which led to the agreement of settlement and the dissatisfaction of the men with the union did not spring from improper conduct on the part of their employer. No adjudication to this effect has been made by the Board.
The agreement of settlement came about as the result of a complaint made by the union on May 9, 1949, that on April 25, 1949, the company refused to bargain with the union and on May 4, 1949, discharged nineteen men because of their membership in, and activity on behalf of, the union. These charges were vigorously denied and there is no evidence in the record to support either of them. Although the complaint was in the hands of the Regional Director from May to December, 1949, and an investigation was made by his field examiner, no formal charges against the company were filed. It goes without saying that if any evidence of discrimination existed, the Board would have caused formal charges to *745be filed against the company and would have compelled it to reinstate the discharged men with back pay. Under the circumstances the agreement of settlement constituted no admission of guilt on the part of the company but merely evidenced the consent of the company to assume an obligation to do that which it had always done, namely, to abstain from interference with tile freedom of the men and to bargain with the union as their representative. The refusal of the Board to distinguish between the facts in this case and those where a company at fault has entered into an agreement of settlement amounts to an abuse of discretion reviewable by the courts. See Pittsburgh Plate Glass Co. v. N. L. R. B., 8 Cir., 113 F.2d 698, 701, affirmed 313 U.S. 146, 152, 61 S.Ct. 908, 85 L.Ed. 1251; N. L. R. B. v. Botany Worsted Mills, 3 Cir., 133 F.2d 876; N. L. R. B. v. Delaware-New Jersey Ferry Co., 3 Cir., 128 F.2d 130; American Federation of Labor v. N. L. R. B., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347; N. L. R. B. v. Fansteel Corp., 306 U.S. 240, 59 S. Ct. 490, 83 L.Ed. 627. The obligation to do justice in the individual case is not minimized by the volume of business which the Board is obliged to handle.
The Court of Appeals of the Sixth Circuit in N. L. R. B. v. Vulcan Forging Co., 188 F.2d 927, struck down an order of the Board which directed an employer to bargain with a union certified by the Board as the result of an election on March 13, 1947, at which the employees voted twelve to ten for the union. The Board’s order was reversed because shortly after the election the employees drew up a statement dated March 21, 1947, and signed by nineteen of the twenty employees in which they severed their relations with the union.
The basic argument of the Board in support of its order is that the settlement agreement represents a determination of guilt on the part of the employer and that because of such finding of guilt remedial action is required. This argument reads into a settlement agreement concepts at variance with the customary understanding of settlement agreements. From time immemorial it has been the, policy of the courts to favor settlements and consonant with this judicial policy it has been established that no admissions of guilt are to be imputed on account of a settlement. This is the customary and established understanding of settlements. Even offers of compromise are not admissible in evidence. The argument of the Board would reverse completely this established understanding of the effect of settlements. Such settled construction should not be lightly overturned. Without a clear expression from Congress that settlement agreements made under the National Labor Relations Act are to carry with them an admission of guilt, I am unwilling to read into settlements made under the National Labor Relations Act an admission of guilt contrary to the established and customary understanding. I do not believe that settlement agreements should be given such a radically different interpretation as to create a snare for employers in proceedings before administrative agencies.
I am convinced that any rule which would read into settlement agreements imputed admissions of guilt by one party to the settlement, if applied to settlements effected in connection with administrative agencies, would add tremendously to the work-load of the administrative agencies, would reduce markedly all settlements made in connection with proceedings before the agencies and would interfere with the orderly adjustment without hearing of numerous administrative disputes. If the settlements of a disputed or doubtful complaint under the National Labor Relations Act is to amount to an unqualified admission of guilt on the part of an employer, such employer could never safely settle any doubtful complaint, and, in order to protect himself, will be forced generally to litigate the complaint; the employer will prefer to have the merit of the charges decided in a hearing where he may cross-examine the union’s witnesses and make his normal defenses thereto. The rule urged by the Board would thus add to the burdens of administrative agencies. Due regard for the administrative processes argue persuasively against this contention of the Board.
Actually, the theory of the Board’s contention that an imputation of guilt is to be conclusively drawn from the settlement *746agreement lies in its contention that, since the Board will only approve a settlement agreement after it has determined that the complaint filed has merit, accordingly the courts must conclude that the settlement agreement arising out of such dispute carries a final determination that there was guilt. The difficulty with this argument, as applied to the facts of the specific case, is that the Board had this particular complaint before it for a long period of time; that it had made an extensive investigation thereof and that it had failed to issue a complaint. If such investigation had established that there was merit in the complaint it would seem that the Board should have issued a complaint before the settlement agreement was negotiated.
The Board’s whole case in this proceeding rests upon an attempt to give to a settlement agreement a construction at variance with established procedure and to give it the finality of a judgment made after hearing and evidence, and since there is nothing in the statute, nothing in the Board’s Rules and Regulations, or in the Board’s Statements of Procedure, or in any principle of law that I can find, to give the settlement agreement such construction, I cannot concur in the majority opinion.
It is, therefore, my opinion that the order of the National Labor Relations Board should be set aside, and the Board’s request for enforcement of said order denied.