The petition of the National Labor Relations Board for enforcement in this case, is based upon its finding that respondent violated Section 8(a), (3), and (1) of the Taft-Hartley Act, 29 U.S.C.A. § 158(a) (3,1), by denying reinstatement of one Betty Lundy, who, with about 30 other employees, had engaged in a strike at the respondent’s bus station in the City of Dallas on December 24, 1949.
The local union to which Lundy and the others belonged, was an affiliate of the National CIO. The Board had certified it as the bargaining representative of the employees of respondent and the parties having failed to reach an agreement on certain demands, a strike was called on the date stated, which naturally was one of the busiest times for a bus terminal. Respondent promptly, on December 26th, notified all strikers by telegram that unless they returned to their jobs by the following evening, their places would be filled “with permanent replacements”. The notice was ignored and all places were filled, that of Betty Lundy for only one day, December 28th. On January 10, 1950, the union wrote respondent as follows:
“This letter will constitute an offer made through the Transport Workers Union of America for the return of all strikers at the Terminal to their jobs without condition.
“All striking employees, thirty in number, are now ready and willing to return to work and by this means make application for reinstatement. This is a continuing offer in the event it is not immediately accepted.”
The position formerly held by Betty Lundy had not again been filled when this letter was written; and on January 9th, the day before its writing, and again on February 6th following, the local union filed a charge with the Board, charging respondent with unfair labor practices by refusing to bargain with it. The first amendment charged that the employer had refused to re-employ the striking employees. Hearings were had and the examiner found against respondent. The latter challenged the right of the union to represent its employees because at the time of the representation proceedings in November, 1949, the officers of the parent organization, National CIO, with which it was affiliated, had not made the Non-Communist affidavits *822required by Section 9(h)' of the statute, 29 U.S.C.A. § 159(h).
The Board’s decision was not made until November 30, 1951, after the Supreme Court in N. L. R. B. v. Highland Park Manufacturing Company, 341 U.S. 322, 71 S.Ct. 758, 95 L.Ed. 969, had decided this question against local unions. It, the Board, therefore concluded that although the refusal to bargain was proven and the findings of fact by the examiner were correct, the respondent was justified in refusing to bargain with the union and the matter had to be treated as an economic strike, entitling the strikers to reinstatement “only if their jobs had not been filled”. It further found that all places had been so filled as of January 10th, the date of the letter by the union. Thereafter, upon further consideration of the proceedings before it, the Board discovered that Lun-dy’s place had again become vacant by January 10th, and accordingly issued another order finding that the failure. to reinstate her violated Section 8(a), (3), and (1) of the Act and directed that she be restored "without prejudice to her seniority or other rights and privileges”, and requiring respondent to post “appropriate notices”.
Counsel for the Board, in brief asserts there are only two issues, (1) whether respondent violated Section 8(a), (3), and (1) by refusing to reinstate Betty Lundy, and (2) whether the Board’s order is valid, which is substantially the same as number one. On the other hand the respondent raises some ten separate points, the details of which are not necessary to recite in view of the conclusion which we have reached with respect to the Board’s power in this proceeding. The first question is one of power to do anything more than dismiss the proceeding, in the light of the holding of the Supreme Court in N. L. R. B. v. Highland Park Manufacturing Company, supra, and N. L. R. B. v. Postex Cotton Mills, 181 F.2d 919 by this Court, holding that the “Board could not proceed against an employer at the instance of a union affiliated with CIO when the officers of CIO had not filed Non-Communist affidavits required by” the statute. There is no doubt that the present proceeding was instituted by the local union, as such, under the certificate of the Board, at a time when, in view of these decisions the union was barred from doing so. All hearings and evidence taken thereon were under and in connection with that charge. The necessary effect of the decisions cited, was that what had been done by the Board itself was without authority, and void by express terms of the statute. The offer to return was made by this same unqualified union as such, not by the individual employees. It is true that it has been held the employees, whether they have struck with or without the aid of a union, may return and the employer is bound to take them back, provided their places have not been filled, on pain of committing an unfair labor practice, and they may authorize anyone to represent them in making such application for reinstatement, still, in this case the only application for reinstatement being by the union on behalf of some 30 employees out of a total of 45, the same was without effect. There is no evidence to support the contention that any employee ever individually authorized the unipn to act in any capacity other than under the illegal certificate of the Board. As a matter of fact, the first complaint to the Board was by the Union, and filed on January 9, 1950, the day before its offer by letter “for return of all strikers * * * to their -jobs without condition” was made. It was undoubtedly based upon the employer’s notice to the strikers of December 26th preceding, that if they, did not return'by the evening of December 27, 1949, their places would be filled. Whether the union knew at that time those places had been filled or not does not appear.
There is certainly no evidence that Betty Lundy ever personally made application to be restored to her former position, or that she authorized the union to-do so outside of its action under the certificate from the Board. No other complaint was ever made to the Board -and *823its subsequent reversal of the order dismissing the complaint on the strength of the decision by the Supreme Court in N. L. R. B. v. Highland Park Manufacturing Company, was based entirely upon its discovery that the individual selected to fill Lundy’s place had worked only one day and it had not been refilled when the letter of January 10th was written by the union.
Our conclusion is that the Board should not have entertained the charge filed by the union, and, in so far as Betty Lundy was concerned, it never had any complaint before it at all. In other words, the order of dismissal should have been allowed to stand.
Enforcement is therefore Denied.