The opinion
CLARK, Associate Justice
(dissenting).
I cannot agree with the court that the Union involved in this case comes under the protection of the National Labor Relations Act. It is my opinion that Section 8(2) of the Act, as interpreted by the Supreme Court in N. L. R. B. v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241 , 60 S.Ct. 203, 208 , 84 L.Ed. 219 , precludes such recognition. The original Association, predecessor to the Guild, was established by certain of petitioner’s top business executives and, since company dominated, was invalid under Section 8(2). In the Newport News case the Supreme Court upheld the Labor Board’s order disestablishing as a representative of the employees a labor organization which, it was undisputed, all parties were satisfied with, and under which all labor disputes had been repeatedly settled, but which was company dominated. The Supreme Court pointed out that the circuit court and the employer were of the opinion that since the employees were satisfied with the organization, that since no serious labor disputes had occurred during its existence, and that since the employees at an election had signified their desire for its continuance, it would be a proper medium which the employer might continue to recognize for the adjustments of labor disputes. Then the Supreme Court went on to say: “The difficulty with the position is that the provisions of the statute preclude such a disposition of the case. The law provides that an employe organization shall be free from interference or dominance by the employer. * * * In applying the statutory test of independence it is immaterial * * * that any company interference in the administration of the plan had been incidental rather than fundamental and with good motives. It was for Congress to determine whether, as a matter of policy, such a plan should be permitted to continue in force. We think the statute plainly evinces a contrary purpose, * * As I see it, it is not the good or bad motive behind the interference or domination that is important and controlling, but whether the association or organization is company dominated. If so* dominated, it is illegal per se. The independent Association was illegal at the outset, and its assimilation by the Guild did not affect this illegality. The Board, in the early stages of its administration of the Act, assumed the power to order the disestablishment of such organizations and its action in this respect was upheld by the Supreme Court. N. L. R. B. v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261 , 58 S.Ct. 571 , 82 L.Ed. 831 , 115 A.L.R. 307 . And a duty to so disestablish has been placed on the employer in such a situation. American Smelting & Refining Co. v. N. L. R. B., 8 Cir., 126 F.2d 680 . See also 144 A.L.R. 463 . In view of this, the Board’s finding that petitioner’s action discouraging membership in such illegal organization constitutes an unfair, labor practice appears to me unsound.
And I think the illegality in the instant case goes far beyond that in the Newport News case. In the case at bar we have the formation of an organization by two executives for purposes detrimental to their employer. The inference is clear that these disloyal executives who had been stealing from their employer, and who have, since the instant proceedings were instigated, pleaded guilty to an indictment charging them with conspiring to engage in a business competing and conflicting with the interests of petitioner in violation of their duty to petitioner, were aware that they *31 were about to be caught up with and set out to organize a Union to the detriment of the company, using their company prestige as a springboard. An organization so formed has all the objections of a company dominated union, and in addition carries with it the taint of this unconscionable breach of trust by two supposedly loyal executives. A Union so tainted should not be allowed to seek protection under the Labor Act.
Since as above indicated I am of the opinion that the legality of the Association and Guild is a vital issue in the case, it follows that in my view the testimony of Dr. Myers was material to petitioner’s case, and that the Board erred in upholding the trial examiner’s refusal to issue a subpoena directing Dr. Myers to appear and testify.
The order of the Board should be set aside.