(dissenting).
Due process, the Act, and the Board’s own rules of procedure all seem to me to require the conclusion that AFM here cannot be deprived of the opportunity of presenting whatever evidence it has that NABET is company dominated, and hence that its motion to remand for that purpose should be granted. A hearing in representation proceedings is mandatory under § 9(c), 29 U.S.C.A. § 159(c); cf. Inland Empire Dist. Council v. Graham, D.C.W.D.Wash., 53 F.Supp. 369, appeal dismissed 9 Cir., 142 F.2d 455; and the Board’s rules specifically so require, 29 U.S.C.A.Appendix, §§ 203.6, 203.7, with a full inquiry into the question of representation, and with the right to any party “to call, examine, and cross-examine witnesses,” as provided in ibid. § 202.25. The only reason for a hearing is to hear relevant evidence; and the proffered evidence is clearly relevant. N.L.R.B. v. Falk Corporation, 308 U.S. 453, 461, 462, 60 S.Ct. 307, 84 L.Ed. 396; Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251; Madden v. Brotherhood and Union of Transit Employees, 4 Cir., 147 F.2d 439, 441, 442. The petitions for representation were made by NABET and the employers, and AFM was a party. It is well settled that company domination is to be presumed where disconnection with a former company union is not shown, N.L.R.B. v. Standard Oil Co., 2 Cir., 138 F.2d 885; Westinghouse Electric & Manufacturing Co. v. N.L.R.B., 2 Cir., 112 F.2d 657, affirmed per curiam 312 U.S. 660, 61 S.Ct. 736, 85 L.Ed. 1108; and here AFM’s evidence points directly to such original domination. This is the first occasion AFM has had to contest the Board’s asserted “consistent practice,” since there is *901no direct review of representation proceedings. Pittsburgh Plate Glass Co. v. N.L.R.B., supra; American Federation of Labor v. N.L.R.B., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347. And refusal to receive relevant evidence is appropriate ground for the grant of a motion to adduce additional evidence. N.L.R.B. v. New York Merchandise Co., 2 Cir., 134 F.2d 949.
In short, AFM has not been accorded the full hearing to which it is entitled, and is now seeking, at its first opportunity, and in the only way open to it, to procure that full hearing. Indeed, its right would seem to me so clear that I am rather surprised at the Board’s vigorous objection and assertion of a contrary practice “to leave the aggrieved parties to their right to file charges under Section 10 of the Act” — a practice all the more doubtful, since it is not consistently followed, as the Board itself showed in its brief quoted in note 7 of the opinion. And in the Madden case, supra, 4 Cir., 147 F.2d 439, 441, involving the emploj'ees of the Baltimore Transit Company and the Baltimore Coach Company, the court, in reversing an injunction against the conduct of an election ordered by the Board after hearing and deciding the question of domination, D.C.Md., 58 F.Supp. 366, said quite properly: “It was clearly not the intention of Congress that the Board should place on the ballot in an election an employer dominated organization (N.L.R.B. v. Falk Corporation, 308 U.S. 453, 461, 462, 60 S.Ct. 307, 84 L.Ed. 396) ; and it is inconceivable that it should have been intended that the summary procedure provided by section 9(c) should be delayed while complaint proceedings under section 10 were being conducted.” Indeed, the Board makes its own answer to its practice when it says in its brief: “But, plainly, the Board’s refusal to issue a complaint upon that charge is not relevant to the issues in the instant proceedings nor does the evidence sought to be adduced have any bearing upon them. Moreover, both the Act and judicial authority make it clear that the Board may in its discretion refuse to issue a complaint and its action in that respect is not subject to judicial review.” The action of a prosecutor in refusing to prosecute can hardly be made the subject of direct review; and the only relevancy of reference to the section 10 procedure would seem to be a more complete demonstration that AFM is seeking here and now the only real relief open to it.
The Board’s fear of great delay in representation proceedings is answered by the statutory requirement of a hearing which must be had, whatever the delay. And if it must be had anyhow, it will certainly take little additional time to determine whether or not a party can establish a prima facie case in support of its claims, and thus only force an extended hearing. Our holding here upholding such a practice as discretionary with the Board, notwithstanding the statute and the Board’s own published rules, seems to me seriously disturbing. I read the Pittsburgh Plate Glass case, supra, cited in support of this conclusion, as pointing rather to the contrary, even without reference to the vigorous opinion of the present Chief Justice for the dissenting Justices to the very point that relevant evidence was erroneously refused. For that case has no suggestion that relevant evidence may be refused in a section 9 hearing because charges may be filed under section 10; it holds only that the evidence there sought to be adduced, in view of the facts already known to the Board, would not have required a change in the result. -The issue there was one of the effectiveness of a bargaining agent representing a plurality of the employer’s plants as against the independence of separate units (an issue upon which the Board’s views seem to have been changing towards the latter view, 51 Yale L.J. 155— 162); and the majority held that the Board, having a full picture before it, could favor the broader bargaining unit because of its advantages, even if steps must be taken to stop the company domination. It, together with the decision below, 8 Cir., 113 F.2d 698, has been taken by the court rendering the original decision as reinforcing the requirement that the Board must consider relevant evidence. Donnelly Garment Co. v. N.L.R.B., 8 Cir., 123 F.2d 215, 222, 223. Of course, had the Board here determined that NABET, even if company dominated, must nevertheless be the employees’ representative, we would have been faced with a different problem of review.
In denying AFM’s motion, the opinion relies on two further grounds, which are not pressed by the Board and are essentially inconsistent with the Board’s position. The first is that counsel acquiesced *902in the Board’s practice so far as present proceedings are concerned, intending only to attack it elsewhere. And the second is that AFM was guilty of inexcusable delay in filing charges under section 10. As to the second, it must fall if we accept the Board’s view (as I think we must) of the complete irrelevancy of the section 10 issue here and the absence of any right of review of the Board’s decision not to issue a complaint. But it is to be noted that AFM did file such charges, without result, in 1942, and that it again filed the same charges just before the hearing in January, 1945, on the real proceedings to enforce the results of the election, i. e., contemporaneously with the taking of steps by the Board for putting its decision into effect. This does not seem like inexcusable delay; it does prompt the question as to how many footless collateral proceedings are necessary that AFM preserve its right to a full hearing in the proceeding to which it is a direct party.
The first ground seems also answered by the quotation from the record in the opinion, viewed in the light of the background of the Board’s practice and its own simple stark submission here, “that the Board committed no error in refusing to permit in the representation proceedings an inquiry into the legality of NABET.” (Italics supplied.) Clearly counsel was bowing to the clear ruling of the Board, so that the hearing might proceed, but expressly reserving the right to establish “in any other proceeding that it is dominated.” Not only is this quite completely another proceeding, but, as we have seen, it is the only one where the issue can really be raised judicially or reviewed judicially. In view of the background, the intent otf counsel seems so clear that the result is thus made to turn upon his mischoice of appropriate words in the midst of trial, though no one was or could be misled thereby; and, quite obviously, no different result would have followed had he argued all day and with the most careful choice of precise English. This seems to me a result harsher than that now reached in federal courts of law where the exception has been abolished. Federal Rules of Civil Procedure, rule 46, 28 U.S.C.A. following section 723c. I suggest that these parties, like litigants in court, should not suffer important and damaging loss of rights because of hasty, though not misleading, mistakes of counsel during trial, and that tranquility in labor relations will not be promoted by holding otherwise.
Not only has AFM not delayed these proceedings in the slightest, so far as the record shows, but they have attained an almost unknown speed for labor cases, since even the representation hearing occurred only last fall. While we certainly ought not to decry expedition when it does occur, yet it is proper to suggest that this is not the case where speed is likely to safeguard rights which the Act aims to protect. On the contrary, the few weeks needed at most to determine if AFM has a case will cause harm to no one, but will impress all the litigants as a real endeavor to secure a completely fair and final settlement of litigation which otherwise bids fair to leave substantial union interests dissatisfied not merely with the outcome, but with the means by which it has been achieved.