(dissenting).
Section 9(c) (3) of the National Labor Relations Act, as amended,1 provides in part: “Employees on strike who are not entitled to reinstatement shall not be eligible to vote.” The Board construed this language to mean that strikers who had engaged in unlawful strike misconduct, characterized as debarring activities, were nonetheless eligible to vote if,. prior to the election, they had not been discharged or replaced. A number of such strikers, sufficient to affect the result of the election, were permitted to vote despite the employer’s objections. The Board rejected the employer’s ' contentions as a matter of law and, without a hearing, ordered the employer to bargain collectively with the union. The Board’s conclusion rests solely on its interpretation of one paragraph of the statute and not on matters within its own special competence2 Thus) it is for the court “to determine what the governing principle is.” F. C. C. v. RCA Communications, Inc., 1953, 346 U.S. 86, 91, 73 S.Ct. 998, 97 L.Ed; 1470. I would remand the case to the Board for a hearing on the merits of the employer’s objections.3 *537From the employer’s charges, which for present purposes must be accepted, the issue may be highlighted.
About March 4, 1952, certain employees began a strike which was not the result of an unfair labor practice. On March 12, 1952, a union requested and was refused recognition by the employer. Over the next several months, it may be gathered from the charges, tempers rose, strife developed, and the employees whose voting rights are here challenged were charged with debarment, violence, mass picketing, and generally lawless conduct on the picket line. While the strike was still in progress, on June 25, 1952 a representation election was held among all the company’s employees. The Board determined that a majority of valid ballots had been cast for the union although the vote might have been otherwise if the Board had recognized the claimed ineligibility of the “misconduct” strikers.
Various contentions of the employer and of the Board have been summarized in the majority opinion, but the employer really claims that under Section 9(c) (3), no affirmative action by the employer is necessary to disqualify a striker whose own misconduct has worked a forfeiture of his status as a voter. Cited are numerous cases which hold “that strikers who have engaged in unprotected conduct and have been discharged or denied reinstatement by the employer are not entitled to an order of reinstatement.”
The Board, on the other hand, argues that the employer is required to exercise whatever discharge rights he may have under the circumstances, and, in reliance upon Section 2(3) of the Act4 the Board contends that a striker who engaged in unlawful conduct remains an employee until the employer “ ‘affirmatively exercises his option to terminate the relationship, either by discharging the strikers or refusing reinstatement.’ ”5 , The Board grants that if the “misconduct” striker had been discharged or replaced before the election, he would not have been affected by the election and, hence, would not have been entitled to vote.
Both parties fall short of the real point at issue, in my appraisal. Both completely subordinate the public interest in the peaceful and orderly settlement of organizational questions. Both approach the problem as though nothing were involved but the private relationship between the company and its employees. We should look to the objectives of the Act for our answer.
The Act’s purpose and policy are set forth in Section 1 6 as follows: “to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labor organizations * * * to define and proscribe practices on the part of labor and management which * * * are inimical to the general welfare, and to protect the rights of the public in connection with labor disputes affecting commerce.” Accordingly, Section 7 declares the rights of employees as Section 8 prohibits interference with those rights by employers or labor unions alike. The right to organize or refrain from organizing is implemented by Section 9 of the Act. Therein is provided the election machinery for determining questions of union representation. That means, at least, a free election, a voluntary choice, by employees lawfully eligible to vote.
Granted, “the Board enjoys wide discretion in determining the procedure *538necessary to insure the fair and free choice of bargaining representatives by employees,” Southern S. S. Co. v. National Labor Relations Board, 1942, 316 U.S. 31, 37, 62 S.Ct. 886, 86 L.Ed. 1246. But if it “is wholly reasonable to remove any possibility of intimidation by conducting the election in the absence of the employer’s representatives,” Id. 316 U.S. at page 37, 62 S.Ct. 889, what are we to say as to actual intimidation, if proved by groups of “misconduct” strikers bent upon coercion? Can one doubt, as here charged, from the timing of the strike and the union’s demand for recognition that the purpose of the contemporaneous and continued violence and concerted strike misconduct was to coerce the employer and the non-striking employees into acceptance of the union as bargaining agent? Can it reasonably be aigued that a bargaining representative iias been freely chosen if misconduct strikers by violence, as here charged, can be permitted to cow their co-workers and at the same time be permitted by their own vote to determine the results of the election? If we are to say that unlawful conduct has no effect on the status of the strikers to select the bargaining agent for all, we put a premium on violent coercive action and reward the industrial strife the Act vras designed to prevent. Cf. N. L. R. B. v. Indiana Desk Co., 7 Cir., 1945, 149 F.2d 987, 995.
The Board says, in effect, that the employer must act affirmatively in advance of the election and discharge or replace tho misconduct strikers. Yet if the employer were so to act and make even an innocent mistake in imputing unlawful conduct to the wrong striking employee, the Board would impose upon him the unfair labor practice sanctions of Sections 8(a) (1) and (3) of the Act. Industrial Cotton Mills v. N. L. R. B., 4 Cir., 1953, 208 F.2d 87, certiorari denied, 1954, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086. Moreover, in such situations as we see presented here, what would we say if the Board should interpret termination notices as a precipitous discharge of the striking employees and accordingly hold there had been an attempt to interfere with the strike — another unfair labor practice? Cf. Kansas Milling Co. v. N. L. R. B., 1949, 86 N.L.R.B. 925, enforcement denied, 10 Cir., 1950, 185 F.2d 413; N. L. R. B. v. United States Cold Storage Corp., 1951, 96 N.L.R.B. 1108, enforced, 5 Cir., 1953, 203 F.2d 924, certiorari denied, 1954, 346 U.S. 818, 74 S.Ct. 30, 98 L.Ed. 344. The Board upon a showing the force of which it here concedes, should not be permitted to shift to the employer, at the latter’s real and substantial risk, its own responsibility to foster the orderly disposition of labor disputes.
On principle, and in view of the decisions, the proper course to be evolved seems clear. In the leading case of National Labor Relations Board v. Fansteel Corp., 1939, 306 U.S. 240, 257-258, 59 S. Ct. 490, 497, 83 L.Ed. 627, the Supreme Court said:
“There is not a line in the statute to warrant the conclusion that it is any part of the policies of the Act to encourage employees to resort to force and violence in defiance of the law of the land. On, the contrary, the purpose of the Act is to promote peaceful settlements of disputes by providing legal remedies for the invasion of the employees’ rights.”
In Victor Products Corp. v. N. L. R. B., 1953, 93 U.S.App.D.C. 56, 58, 208 F.2d 834, 836, this court reemphasized the principle of the Fansteel case, saying: “The law which protects proper union activity, and therefore protects peaceful picketing, does not protect striking employees who forcibly debar other employees from entering the place of employment.” The doctrine seems to me unchallengeable in its emphasis on the peaceful and lawful settlements of labor disputes envisaged by Section 1 of the Act.
The recent decision of the Supreme Court in Brooks v. National Labor Relations Board, 1948, 348 U.S. 96, 75 S.Ct. *539176, 181, speaking through Mr. Justice Frankfurter, reinforces the principles which should control. There, the Supreme Court sustained the Board’s finding that the employer had committed an unfair labor practice, where one week after a Board election in which a bargaining representative was chosen, the employer attempted to support a majority of the employees who wrote a letter recanting the election decision. The Court criticized the employer for resorting to “self help” and suggested that his proper course was to take his problem to the Board. It is the Board’s function—not the employer’s—“to vindicate the rights of * * * employees to select their bargaining representative.” Otherwise there is negation of the principle that “The underlying purpose of this statute is industrial peace.” An attempt by the employer to arbitrate an organizational dispute “is not conducive to that end, it is inimical to it.” 7 So here, under the Act, it is the function of the Board and, if need be, the courts, not of private employers, to secure the Act’s public interest objectives. The Board’s contention that the employer should have taken “affirmative” action is not only inconsistent with its position in the Brooks case, it is equivalent to shirking its own responsibility.
It is, of course, correct to say that one of the announced purposes of Section 9(c) (3) was to deal with the Board’s previous practice of permitting both economic strikers and their permanent replacements to vote in representation elections despite the fact that the replacement had effected a constructive discharge of the striking employee. The language used by Congress does, indeed, meet that situation—but it is only one of the areas of impact. Also covered is the situation presented to us, particularly where in an entirely consistent fashion, Section 9(c) (3), without ambiguity, furthers achievement of the fundamental goal of resolving labor disputes in a peaceful and lawful manner. Legislators before now have announced only one objective when they had yet others in mind.8 “Legislative history” is no substitute for what the Act says— or what it permits—nor is it inevitably to be relied upon, Ex parte Collett, 1949, 337 U.S. 55, 61, 69 S.Ct. 944, 93 L.Ed. 1207, especially if it produces unreasonable or contradictory results. It is to be doubted in the absence of the “legislative history” relied upon, that the majority would urge that the literal language of Section 9(c) (3) should be read to create confusion where the provision is clear, especially when read *540against ;he objectives of the Act as a whole. See Packard Motor Co. v. National Labor Relations Board, 1947, 330 U.S. 485, 492, 67 S.Ct. 789, 91 L.Ed. 1040; Gemsco Inc., v. Walling, 1945, 324 U.S. 244, 260, 65 S.Ct. 605, 89 L.Ed. 921. I would expect that legislative history and rules of statutory construction “may not be used to create but only to remove doubt.” Russell Motor Car Co. v. United States, 1923, 261 U.S. 514, 519, 43 S.Ct. 428, 67 S.Ct. 778.
Accordingly we may assume that if Congress had intended only the limited result urged by the Board, it would have expressed itself more narrowly. Obviously the language of Section 9(c) (3) is much broader than would be necessary if its only purpose was to deny a ballot to replaced “economic” strikers. Hence, regardless of the fact that this specific problem may have given impetus to the enactmer.t of Section 9(c) (3), I think we are required to give the section its natural application. Cf. Feitler v. United States, 3 Cir., 1929, 34 F.2d 30, 33, affirmed Danovitz v. U. S., 1930, 281 U.S. 389, 50 S.Ct. 344, 74 L.Ed. 923; National Labor Relations Board v. Highland Park Co., 1951, 341 U.S. 322, 325, 71 S.Ct. 758, 95 L.Ed. 969.
In this view, where do we find ourselves? The majority says that Section 9(c) (3), contrary to the employer’s contentions, is limited by legislative history. Tbe Board says, in effect, that Section 2(3) means “once an employee, always an employee.” Even as it concedes that a misconduct striker may be discharged, it argues for a result where he must be discharged if he is not to be permitted to participate in a representation election. It is my view that no such result is compelled, and quite the contrary, that an employee may remain an “employee” within Section 2(3) and still not be eligible as a voter. In short, the fundamental goal of orderly and peaceful resolution of labor organizational problems not only permits but impels a construction of the Act which draws a distinction between an employee, lawfully entitled to participate in all authorized proceedings, and an employee who, without having been discharged, may forfeit, by his own misconduct, a right to vote. Such a construction based upon the Act as a whole, need not rely merely upon Section 9(c) (3), yet is entirely consistent with my understanding of its import.
Restated, the sum of the Act, its objectives, its provisions and the cases construing them, so far as here pertinent, can be deduced thus: (1) Industrial strife can be avoided or substantially minimized if all concerned recognize that none has the right to engage in acts or practices which jeopardize the public interest; (2) Employees have the right to join a labor organization or not, and to decide freely to have a bargaining representative or not; (3) It shall be an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of their rights; (4) Employees who engage in a strike during a sixty-day “cooling-off” period are deprived of any right to participate in a representation proceeding; (5) Employees who engage in violent restraint or coercion may be discharged; (6) No Board order may issue to require the reinstatement of any employee who has been discharged for cause; (7) No such employee shall be entitled to reinstatement; (8) No employee who is not “entitled” to reinstatement shall be eligible to vote in a representation election; (9) A “valid” election when one is held may determine a bargaining representative for “all the employees” in an appropriate unit; (10) A “valid” election is one free from fraud, from restraint or from coercion of employees in the exercise of their rights.
Thus the legislative scheme may be shortly discerned. If it be followed, employees lawfully entitled to vote and who have a substantial interest in the choice of a bargaining representative will be protected as and if they choose to participate in its selection. Concerted activities carried on in a lawful and orderly manner will be encouraged. Unlawful activity, on the other hand, *541will result in a forfeiture of voting privileges by those whose own misconduct has rendered them ineligible. This result seems eminently just and entirely compatible with principles of law and equity in other fields.
It is to be feared that a contrary conclusion will leave defenseless the public and non-participating employees and make a shambles of the peaceful objectives the Act seeks to attain. Is it too much to say that Congress expected no such result?
. 61 Stat. 143 (1947), as amended, 29 U.S. C.A. § 159(c) (3).
. Cf. Brooks v. National Labor Relations Board, 1954, 348 U.S. 96, 75 S.Ct. 176.
. The Board concedes that the employer’s affidavits establish a showing of strike misconduct on the part of each of the challenged voters sufficient to warrant a hearing on the merits, if it be assumed that the Board .misconstrued the law.
. 61 Stat. 137 (1947), 29 U.S.O.A. § 152 (3).
. The Board seems to confuse a Section 2(3) qualification of “employee” with qualifications of a voter if we have in mind the prescription of the Act as a whole.
. 61 Stat. 136 (1947), 29 U.S.O.A. § 141 (b).
. An important passage from the Brooks ease which gives setting to the current problem follows:
“Petitioner contends that whenever an employer is presented with evidence that his employees have deserted their certified union, he may forthwith refuse to bargain. In effect, ho seeks to vindicate the rights of his employees to select their bargaining representative. If the employees are dissatified with their chosen union, they may submit their own grievance to the Board. If an employer has doubts about his duty to continue bargaining, it is his responsibility to petition the Board for relief, while continuing to bargain in good faith at least until the Board has given some indication that his claim has merit. Although the Board may, if the facts warrant revoke a certification or agree not to pursue a charge of an unfair labor practice, these are matters for the Board; they do not justify employer self-help or judicial intervention. The underlying purpose of this statute is industrial peace. To allow employers to rely on employees’ rights in refusing to bargain with the formally designated union is not conducive to that end, it is inimical to it. Congress has devised a formal mode for selection and rejection of bargaining agents and has fixed the spacing of elections, with a view of furthering industrial stability and with due regard to administrative prudence.
“We find wanting the arguments against these controlling considerations. * * * ”
. “Under such circumstances, our duty as a Court is to construe the word ‘possession’ as our judgment instructs us the lawmakers, within constitutional limits, would have done had they acted at the time of the legislation with the present situation in mind.” Vermilya-Brown Co. v. Connell, 1948, 335 U.S. 377, 388, 69 S.Ct. 140, 146, 93 L.Ed. 76.