(dissenting).
This case presents an important issue of law, namely, whether the Labor Management Relations Act shall be construed to deny protection to unionizing activities until the employer is notified or otherwise learns of them. But I fear it tends to be submerged by irrelevances, such as the discussion of the inapposite case of N. L. R. B. v. Dinion Coil Co., 2 Cir., 201 F.2d 484, where a Board order was sustained on the facts, however apologetically. And a criticism-of the Board’s decision as “ambigú*842ous” as bringing in a second ground of decision seems to me to add a confusion hardly justified by the Board’s own statement. For the topical first sentence of the Board’s crucial paragraph shows the unitary character of the Board’s argument, as the quotation in the footnote demonstrates ;1 in fact, the succinct and forceful statement is one which I should gladly adopt as showing the facts and the law of the case. Finally, there is a tendency to magnify the dissent, which I find quite ambiguous in its one sentence of explanation. For we cannot be sure whether the dissenting member was reaching an ad hoc conclusion on the particular facts or, as appears now to be assumed, was making an extensive and original ruling of law.
Here I would recall, though not overstress, the difference between the Board’s function and our own. As the. expert agency hearing and finding the facts, the Board has opportunity to achieve a beneficent resolution of troubled labor relations in a way not open to a court which can reverse only for errors of law. So here the Board or any of its members could take an attitude toward the assertive Jenifer not open to us as a matter of review.2 But I do not stress this, because actually the Board (with the possible exception of the dissenting member) did not take this position. Both her corroborated testimony as to the recess discussion in question and the employer’s testimony that he was ignorant of any unionization plans were accepted; this evidence is taken as the given datum for the opinion here that “concerted activity” is not protected when the employer is ignorant of it. So the issue became a legal one which the Board resolved correctly in my judgment. And if the dissenting member also accepted those facts, I should then feel that he erred for the same reasons which I shall now adduce against my colleagues’ decision herein.
That this is an extensive and unusual ruling, one which does, as the Board says, “permit an employer to frustrate concerted activity at its inchoate stage and make a mockery of the guarantees of Section 7 of the Act,” seems to me clear. “Employees shall have the right to self-organization, to form, join, or assist labor organizations, * * * ” and interference therewith or discouragement of union membership is an unfair labor practice on the part of an employer. §§ 7, 8(a) (1) and (3), 29 U.S.C. §§ 157, 158(a) (1) and (3). Nothing appears in the statute to make this right contingent upon notice to, or knowledge by, the employer of embryo attempts at organization. Elsewhere we have declined to read new terms into a statute so evenly balanced legislatively as was the Taft-Hartley Act. Rabouin v. N. L. R. B., 2 Cir., 195 F.2d 906, 912. I wonder why we do it here. Apparently it is only because the Trial Examiner found Jenifer unattractive, and the company president attractive. But that, I submit, discloses the hampering effect of the decision more starkly. All that an employer need to do to retain a free hand against developing unrest in his plant is to remain a gentleman and receive no reports of definite unionizing trends. And so goes one of the prime guarantees of the Act.
*843Thus, as the opinion rather naively observes, this decision “will poke a large hole in the Act.” Of course it does more than that. It will have a paralyzing trend on attempts at unionization. These can no longer grow and be nurtured from tender shoots to bloom; they must spring up full blown or hardly at all. In all the long disputes over both the Wagner and the Taft-Hartley Acts, I had supposed that both assumed to nurture and protect unionization.
I think we have uncovered no proper ground upon which to deny enforcement of the Board order.
. Restoring the unifying first sentence to its proper place, the paragraph reads: “We t'hink it clear, as found by the Trial Examiner, that the group discussion between Jenifer 'and the other four employees,' involving protests against working conditions and the need for unionization, constituted concerted activity for mutual aid and protection within the meaning of Section 7 of the Act. Jenifer’s statement to the group was itself a complaint against existing conditions of employment, calculated' to induce group action by the employees to correct a grievance. Such activity by Jenifer was an ‘indispensable preliminary step to employee self-organization’ and therefore enjoyed the protection accorded concerted activity under the Act. Any other view concerning Jenifer’s discharge would permit an employer to frustrate concerted activity at its inchoate stage and make a mockery of the guarantees of Section 7 of the Act.” [Footnote citations omitted.]
. So the weight rested upon Myers Products Corp., 84 N.L.R.B. 32, appears to be a consequence of overlooking the difference between the Board’s function and ours. That was no formal ruling of law; it was but an ad hoe decision on the .facts which the Board should make.