The opinion
SWAN, Circuit Judge
(dissenting).
This court has gone further than several of the circuit courts of appeal in saying that a decision by the Board as to domination is practically non-reviewable. National Labor Relations Board v. Standard Oil Co., 2 Cir., 138 F.2d 885, 888 . But even there we recognized that “Theoretically there may be situations in which the cleavage between the old union and the new is such that a court could say that there was no ‘substantial’ evidence to support an order of ‘disestablishment.’ ” I think we should hold that this is such a case; for I see no justification in the facts found by the Board for inferring that, the company interfered with or dominated I. E. A. Acting independently and without any suggestion from their employer, the employees decided that it was necessary to abandon E. R. O. and “form a brand new organization”; they engaged an attorney to draft a constitution and by-laws for I. E. A.; these were adopted at a meeting on October 4th, which was after the company had posted the notice of September 21st disestablishing E. R. O. and notifying its employees that they were free to join C. I. O. or any oth *458 er labor organization; and recognition was not granted I. E. A. until after its officers had threatened to strike if it were not recognized, and after the company had determined by checking the membership cards that it represented a majority "of the employees. Naturally, it was true that some of the leaders in E. R. O. took a leading part in organizing I. E. A, If this is enough to taint the latter, I do not see how an independent union can ever be organized, for the leaders among the employees will necessarily be the initiators of the new organization. Only in point of time was I. E. A. the “successor” to E. R. O.; for, as already noted; before its organization was completed the company had given formal notice disestablishing E. R. O.
The provision in the order of March 6th forbidding recognition of any union until it shall be certified by the Board will necessarily result either in compelling the employees to join a union affiliated with C. I. O. or A. F. of L., or in leaving them without a collective bargaining representative for an indefinite period of time, because, in view of the Board’s finding as to domination, no request by I. E. A. for an election would be granted, nor would the name 'of I. E. A. be allowed to appear on the ballot if an election were held at the request of any other union. Nor can I conceive of any way in which the employees could in the near future reorganize I. E. A. or form a new unaffiliated union that the Board would hold to be untainted by domination. In short, the “remedy” applied destroys the very right which it purports to preserve, namely, the right “to bargain collectively through representatives of their own choosing.”