(dissenting).
As stated in my dissent to another Board proceeding against the respondent, if the majority opinion’s holdings, hereafter discussed, are to prevail in this circuit, there will have to be employed a new technique by counsel defending their employer clients in National Labor Relations cases.
A. The majority decides an important question of federal law in conflict with a decision of the Second Circuit, National Labor Relations Board v. Yale & Towne Mfg. Co., 114 F.2d 376, 377, 379, a case cited to it but ignored in its opinion. That case holds that where the Board’s complaint, after specific acts are charged against the employer, also charges “and by these and other acts respondent did interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed by Section 7 of the Act,” and no bill of particulars is filed, the Board may hear and determine another unfair labor practice of a like character.
Ift the instant case, after reciting certain acts of restraint and coercion, the complaint charges, “and by these and other acts, Respondent did interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby did engage in and is engaging in unfair labor practices within the meaning of Section 8, subsection (1) of the Act.”
Section 8(1), 29 U.S.C.A. § 158(1), defines it to be “an unfair labor practice for an employer — (1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 ‡ »
The respondent here made no motion for a bill of particulars of these “other acts” of restraint or coercion. Nor did respondent move the Board for a rehearing on the ground of surprise.
I therefore dissent from the holding that it is a “factor” to be considered in reviewing the Board’s order to restore the bylines, that “the complaint did not charge discrimination or coercion by reason of depriving the editorial writers of the right to use bylines. Fourth, the findings of the examiner do not deal with the subject of bylines. Consequently, exceptions thereto did not raise the question. In the absence of such issue and apparently without notice to the employer the Board made its finding and order in regard to bylines.”
*975I also dissent from the failure of the majority opinion to consider the Second Circuit case so cited above.
B. The majority decides another important point of federal law in conflict with the decision of the Supreme Court in Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 217, 230, 59 S.Ct. 206, 83 L.Ed. 126, in holding it pertinent that the Board orders an employer to desist from committing unfair acts on evidence of such acts in the past and not existing when the accusing union files its complaint with the Board.
The majority opinion states that “In considering whether or not this court should order bylines restored several factors should be noted. • First, they had been restored long before the proceedings were instituted before the Board.”
It is not a factor to be noted in determining the justification for the Board’s order that the wrong done by the deprivation of the bylines had ceased before the proceedings were instituted before the Board. Consolidated Edison Co. v. National Labor Relations Board, supra, 305 U.S. at pages 217, 225, 59 S.Ct. 206, 83 L.Ed. 126. I dissent for the reasons discussed in my dissent to a similar decision of the majority in the proceeding against the petitioner, National Labor Relations Board v. Citizen-News Co., No. 9994, 9 Cir., 134 F.2d 962, filed April 8, 1943.
C. The majority decides an important federal question in conflict with the decisions of the Supreme Court. It rejects pertinent testimony as not substantial, and substitutes its inferences for equally if not more rational inferences of the Board supporting its findings of “Interference, restraint and coercion.”
The decisions so in conflict are National Labor Relations Board v. Pacific Greyhound Lines, 1937, 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 838, in which, in holding that continued recognition of a company union would be an obstacle to the exercise of the employees’ rights the Court said, “The inferences to be drawn were for the Board and not the courts,” and National Labor Relations Board v. Link-Belt Co., 1940, 311 U.S. 584, 597, 61 S.Ct. 358, 365, 85 L.Ed. 368, where the Court reversed the circuit court’s refusal to enforce an order, saying, “We are of the opinion that the Court of Appeals in reaching that conclusion substituted its judgment on disputed facts for the Board’s judgment — a power which has been denied it by the Congress.” See also National Labor Relations Board v. Waterman S. S. Co., 1939, 309 U.S. 206, 208, 209, 226, 60 S.Ct. 493, 84 L.Ed. 704.
In the profession of journalism, the editorial writer’s right to a byline is the right to have his name appear over or under the published matter he has written. It gives professional recognition of the writer’s value in the estimation of the public he addresses. It marks him as having emerged from the anonymity of a mere unknown hack. Nothing could be more coercive or discriminatory against a writer so having established his reputation with the public than to deprive him of the position he has earned in his profession.
It is undisputed that respondent published the editorials of certain of its writers under the authors’ names and that after a strike in which they joined they were deprived of that right.
The Boar.d held, under the title “Interference, restraint, and coercion,” that:
“Immediately after the editorial employees returned to work, however, they were deprived of their bylines because in the words of Swisher, the city editor, ‘the ill will created during the strike made it difficult for readers, particularly advertisers, to see the names of various former strikers without becoming alarmed at the name, recalling old feelings from the strike.’ We find that the strikers were deprived of their bylines because of their participation in the strike.
* * * * * *
“We find that by * * * its action in depriving the strikers of their bylines, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.”
This is followed by the Board’s conclusion of law: “3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act.”
The majority opinion ignores the finding of interference, restraint, and coercion, and proceeds to treat a mere description of these findings, contained in a later portion of the Board’s order under the head of “The remedy,” where the Board states: “We have *976found that the respondent discriminatorily deprived the strikers of their bylines after the strike. It is not clear from the. record whether or not the respondent has restored their bylines to the strikers. We shall order the respondent to restore their bylines to these employees in the event that it has not already done so. • * * * ”
The majority then discusses the deprivation of the bylines as “discrimination,” as if the Board had found the deprivation a discrimination in violation of Section 8(3), instead of restraint and coercion under Section 8(1) of the Act, stating, “At the time of the order with reference to the bylines all of the editorial employees were members of the Guild and had been for months prior thereto. There was, therefore, no discrimination against Guild members in the deprivation of bylines for all the members of the Guild were treated alike and there were no other employees in that department. * * * ”
Incidentally, I dissent from this holding1 that there can be no discrimination under Section 8(3) — that is, no “discrimination in regard to * * * any term or condition of employment” where five out of many employees are so disrated and none of the rest affected as to any term or condition of employment. Nor could I agree that even if the editorial writers were the only employees, they were not discriminated against by such a change in the conditions of their employment. I take it that the phrase in Section 8(3) concerns discrimination against and not discrimination among the employees.
Primarily, I dissent from the majority’s refusal to accept the Board’s finding that the deprivation of the bylines was a coercive act to restrain the editorial writers from joining in another strike. The evidence on which the majority relies is that one of respondent’s employees had stated to another employee that the “ill-will created during the strike made it difficult for readers, particularly advertisers, to see the name of various former strikers without becoming alarmed at the name, recalling old feelings from the strike.”
There is no evidence to support this hearsay. On the contrary, the record shows but one advertiser objection to but one writer. Yet, without any substantial evidence to support it, the majority overrules the finding of the Board “that the strikers were deprived of their bylines because of their participation in the strike,” and substitutes the court’s contrary finding that “There is no reason to doubt that the temporary deprivation of bylines was made in good faith to accomplish a business result entirely unobjectionable so far as the purpose of the Labor Act is concerned.”
The attempt to overrule Consolidated Edison Co. v. National Labor Relations Board, supra, and deny a Board order because the unfair labor practice had ceased has been commented upon above. This dissent is further addressed to the statement of the majority opinion, in connection with the claim that the bylines were restored, that “the issue of the bylines was dealt with by the contract dated July 31, 1940,” quoting from that contract the following paragraph r “5. The publisher agrees that no employee shall be required to have published under his own name any material containing an expression of opinion not in conformity with his own opinions, nor shall the by-line of any employee be used without his consent.”
Here is no agreement to use the writers' bylines, but merely that if the bylines are used they will be used in a certain way.
To summarize my dissent in this and in the companion case, No. 9994, it is that the majority opinions in the two cases show (1) great industry in picking from the record those facts which would lead to a refusal of the Board’s prayers for an enforcing decree; (2) the ignoring of testimony, pressed upon it in brief and argument, which would require such enforcement; (3) the substitution of the court’s inferences and findings for equally if not more rational inferences and findings of the Board, and (4) the attempt to establish in Labor Relations cases in this circuit principles in direct opposition to the decisions of the Supreme Court, cited to this court and discussed in the two dissenting opinions. Cf. also the dissenting opinion in National Labor Relations Board v. Germain Seed & Plant Co., 9 Cir., 134 F.2d 94, decided February 8, 1943.
It is really a mere dictum in view of the finding of coercion.