(dissenting).
The issue in this case was sharply drawn at the hearing before the Trial Examiner. The general counsel of the Board asserted that the Company’s refusal to re-employ the strikers involved here was discriminatory because it was based upon their active Union membership and “last ditch” participation in the strike. The Company’s position was that it refused re-employment, not for such discriminatory reasons, but solely because no jobs were open when appli*217cations of these strikers were filed or were current.
I. But as to the availability of such jobs, the Trial Examiner found:1
1. From the end of the strike on March 29, 1951 through April 1953, the following numbers of employees were hired in the departments in which our petitioners had been employed:
Selecting and Packing 210
Decorating 162
Automatic forming machines 28
Machine Shop & Mold Cleaning 4
Our petitioners had been employed in these departments as follows:2
Selecting and Packing 16
Decorating 4
Automatic forming machines 4
Machine Shop & Mold Cleaning 1
2. The exhibits do not disclose exactly “when job openings occurred which should have been offered to the former employees. It is clear, however, that in most cases there were vacancies within a short time of the applications, because Respondent continued its hiring of new employees following the end of the strike and had employed a total of 158 by the end of the year.”
II. As to the applications for such jobs, the Trial Examiner found:
1. Shortly before the strike began, “* * * Respondent issued a form letter to all employees, informing them that in event of a strike it proposed to operate the plant, that it intended to fill the jobs of employees who struck, and that after the strike it would take back any strikers who wished to return, if and when work was available for which they were qualified, provided they had not engaged in any improper or unlawful conduct in the meantime. Negotiations having proved unsuccessful, the Union called a strike on March 14, which was continued until March 29. There is no claim of any prior unfair labor practices, the General Counsel conceding that the strike was an economic one.”
2. At a conference on March 29, between Union and Company representatives, looking to the termination of the strike, Mr. Gamble, one of the Union representatives, “referred to his knowledge that the Company had hired ‘a lot of people’ during the strike and inquired the Company’s position as to taking back the other strikers ‘as soon as you can find places for them.’ Bartlett [the Company president] replied that most of the jobs had been filled, but that it was ‘naturally’ the Company’s position to take the strikers back as soon as it could, ‘because those are the people that know this job,’ and that there would be no discrimination against them because of their participation' in the strike. The conference ended with the announcement by Gamble that the strike was officially terminated and by [Company counsel] Mueller’s congratulations to Gamble upon the peaceful conduct of the strike.”
3. “The evidence does not show that express reference was made to the question whether individual applications were necessary. However, it was apparently understood that they were — presumably to indicate availability for employment —because Gamble, in announcing at the Union’s strike headquarters the results of the conference, advised the strikers ‘to immediately make *218applications for employment through Mr. Coley [the Company’s personnel director],’ and because he subsequently continued to advise other strikers to make their applications. * * * Actually, many of the strikers had begun to make application upon the removal of the picket line at 11 a. m. They, and those who joined them later, formed a line, were admitted singly to Coley’s office, and were there interviewed individually.”
4. “The evidence is not in conflict as to the tenor of the interviews. Upon the striker’s statement of his desire to return to work, Coley’s response was to the effect that all jobs had been filled, that there were no openings, and that he would call the applicant when a vacancy arose. Coley told none of the applicants that it was either proper or necessary for them to renew their application periodically. To the contrary, he told some of the applicants, who specifically inquired, that new applications were unnecessary, that he had their names and their telephone numbers on the list and would call them when anything became available.”
5. “On two occasions subsequent to the end of the strike, the Union called Respondent’s attention to its failure to reinstate many of the strikers and sought to negotiate with Respondent on the matter. Thus, on April 24, Gamble called Bartlett to request a meeting to negotiate a contract, and complained also that a number of strikers had not been put back to work. Referring to production troubles in the plant, Gamble suggested that the sensible thing to do was to work out an agreement under which all the strikers would be taken back. Bartlett called back shortly and stated in effect that the Company was happy with things as they were and would let them remain.
“Rufus K. Ritchie, another International Representative of the Union, called Bartlett on August 6, and pointed out that a number of the strikers had not been reemployed, especially union officers and committeemen. Bartlett replied that he did not know that such was the case. Ritchie requested a meeting ‘to see if something could be worked out.’ Bartlett stated he would be away for a few days but would call Ritchie on his return. Around August 13 or 14, Bartlett called, stated that he had talked with Mueller, that the Company’s position was that the Union no longer represented a majority of the employees, and he did not feel that anything could be gained by a meeting. Ritchie stated that the Company’s position would force the Union to file a charge, and Bartlett replied that the Company would stand on its decision.”
6. “ * * * Written applications were taken from all new applicants, and when once an employee was hired, his application was kept on file permanently.
“If no jobs were open at the time applications were filed, Coley’s practice was to inform the applicants that he would call them if vacancies arose, and he would then file the applications with other current ones in his desk to be referred to as employees were needed to fill vacancies. However, Coley considered applications to be current only for a period of from two weeks to a month, and he periodically cleared out his current file by removing from it applications which were more than a month old and by placing them in an inactive transfer file. In turn, Coley cleared out the inactive files every six months by destroying old applications in order to conserve space. Coley also testified that in cases where an applicant reapplied, his application was replaced in the current file for a new period of currency.
“Coley’s explanation of his limitation on the currency of applica*219tions was that he had learned from experience that job seekers in Sa-pulpa were generally not available after a week or two, having either moved on or having accepted other employment, and that he had found it a waste of time to attempt to contact applicants even a week after their application. He admitted that although his practice was to inform applicants that he would call them if vacancies arose, what that amounted to, though not disclosed to the applicants, was that he would call them if vacancies arose within the next two weeks.
“Coley testified that he had adhered to the foregoing practice for some 8 or 10 years, and that he did not handle the strikers’ applications any differently than he did those of new applicants. Since the strikers were former employees, Coley had their original written applications on file and he required no new applications of them. What he did was simply to list them as available for work, but as in the case of new applicants, he considered their applications to be current for only about two weeks. Thus, Coley testified that he did not refer to the list when vacancies arose more than 30 days after the applications listed thereon; that although he kept the list in his transfer files, he did not, for example, refer to it when vacancies arose as late as October 26, 1951 * * [Emphasis supplied.]
III. As to additional matters evidencing discrimination, the Trial Examiner found:
1. “Practically all of the strikers included in the complaint had walked the picket line either the morning of, or the day before, the end of the strike. Of a total of 10 union officers and committeemen, Respondent employed only one officer, Mary Easley (financial secretary), and one committeeman, Andrew Meyers. The circumstances surrounding both are significant.
“Meyers had applied for and was granted reinstatement prior to the end of the strike. His case is to be contrasted with Lola Wilson, who also applied to Coley prior to the removal of the picket line on March 29, and who was told to come back to work. Learning that the picket line was shortly to be removed, Wilson waited until it was taken off, then lined up with the other strikers and was interviewed by Coley, who listed her name with the others and stated that he would call her in [sic] anything became available.
“Easley had moved from Sapulpa following the strike, but in September 1951, Coley made a special trip to her home, some 20 miles from Sa-pulpa, and offered her employment. Easley was unable to accept at that time, but was later hired in February 1952, after notifying Coley that she was available for employment. Easley also testified, without denial from Coley, that shortly before the hearing, Coley had discussed with her the impending hearing in this case, stating among other things that a lot depended on the testimony to be given, that he was glad to have her back in the Company’s employ, but that he would not ‘walk across the street for some of them,’ and that that was why he had come to look her up (for employment).”
2. The Company “ceased to reemploy strikers in any substantial number around April 19 [the strike ended March 29], which coincided roughly with [the Company’s] refusal to negotiate with the Union as the representative of the employees.”
The Board did not disturb the foregoing findings that (1) jobs were available; (2) the strikers in question had applied for such jobs; and (3) their “applications were understood to be continuing ones” and not “for only a short and indefinite period.” Thus the sole reason which the Company offered for not employing these strikers is plainly *220refuted by the record. Nevertheless the Board reversed the Trial Examiner’s determination “that by failing to employ the [strikers here, the Company] discriminated against them for the purpose of discouraging membership in the Union and thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.” The Board said, in effect, that a determination of discrimination was precluded by (1) the Company’s non-discriminatory treatment of the vast majority of the strikers; and (2) the Company’s background which was free of unfair labor practices.
In light of the record as a whole, including the Trial Examiner’s findings, it seems to me that the matters relied upon by the Board may fairly be said to be frivolous. It is at least clear that, under any reasonable view of the Supreme Court’s decisions in Federal Communications Commission v. Allentown Broadcasting Corp., 1955, 349 U.S. 358, 75 S.Ct. 855, 99 L.Ed. 1147; and Universal Camera Corp. v. National Labor Relations Board, 1951, 340 US. 474, 71 S.Ct. 456, 95 L.Ed. 456, such matters are plainly insufficient to support the Board’s action.
. The findings of fact referred to and quoted hereafter are contained in the Trial Examiner’s Intermediate Report and Recommended Order, Sept. 1953.
. The Trial Examiner’s finding on this point related to 30 individuals who filed the original complaint. The figures cited here apply that breakdown to the 25 who are appellants.