The opinion
RIVES, Circuit Judge
(dissenting).
The only question of law raised by this petition was that the Board could not issue a valid complaint based on a charge by a union which came into compliance with Section 9(h), 29 U.S.C.A. § 159 (h), after the charge was filed, but before the complaint was issued. Petitioners’ brief making that primary contention was filed on the last day of January, and on the 2nd day of February that question was decided adversely to petitioners’ contention in National Labor Relations Board v. Dant, 344 U.S. 375 , 73 S.Ct. 375 . That decision left in this case only the fact issue of whether the Board’s findings are supported by substantial evidence on the record as a whole.
It certainly is true that “the precise way in which courts interfere with agency findings [or, it might be added, with any fact findings] cannot be imprisoned within any form of words”. Universal Camera Corp. v. National Labor Relations Board, 340 U. S. 474, 489 , 71 S.Ct. 456, 465 , 95 L.Ed. 456 . Nevertheless, formulas do, or should, make *489 a difference. In Marsh v. Illinois Central R. Co., 5 Cir., 175 F.2d 498, 500 , Judge Sib-ley explained the different standards to be applied with reference to the verdict of a jury on motion for new trial and on motion for directed verdict or for judgment notwithstanding the verdict. The decision of Pennsylvania Thresherman & Farmers’ Mutual Casualty Ins. Co. v. Crapet, 5 Cir., 199 F.2d 850 , turned on whether the test to be applied was that for reviewing findings of fact by the court or by the jury. The decisions of the Tax Court are now reviewed “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury”. 26 U.S.C.A. § 1141 . Final orders of the Labor Board, 29 U.S.C.A. § 160 (e) and (f), and of Administrative Agencies generally, 5 U.S.C.A. § 1009 (e) (5) and (6), are subject to the same scope of review. Universal Camera Corp. v. National Labor Relations Board, supra, 340 U.S. at page 487 , 71 S.Ct. at page 463 . That formula is: “findings with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive”. 29 U.S.C.A. § 160 (e). To me, that seems more restrictive than the “clearly erroneous” rule applicable to findings of fact by a court. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.; United States v. United States Gypsum Co., 333 U.S. 364, 394, 395 , 68 S.Ct. 525 , 92 L.Ed. 746 . 1
The record here presents a typical fact case involving four or five separate issues of fact. True, the court’s opinion states the correct formula, but my view of the evidence and of the limited scope of review does not permit me to concur. It seems to me the more reasonable view of the evidence is presented in the Board’s decision reported at 99 N.L.R.B. No. 100. There is no point in my belaboring the several issues of fact, and I touch on them only insofar as they might furnish precedents for the future.
I do not think that the Board laid down a rule that membership in a union guarantees the member against discharge in its carefully enunciated statement as follows:
“We are now of the opinion that the honest belief of an employer that striking employees have engaged in misconduct provides an adequate defense to- a charge of discrimination in refusing to reinstate such employees, unless it affirmatively appears that such misconduct did not in fact occur. We thus hold that once such an honest belief is established, the General Counsel must go forward with evidence to prove that the employees did not, in fact, engage in such misconduct. The employer then, of course, may rebut the General Counsel’s case with evidence that the unlawful conduct actually did occur. At all times, the burden of proving discrimination is that of the General Counsel. This modification of the Mid-Continent rule ( 54 N.L.R.B. 912 , 933-935) does no more than recognize the nature of the General Counsel’s obligation to establish all the essential elements of a charge that discrimination has occurred when a striking employee is refused his job. It merely places an employer’s honestly asserted belief in its true setting by crediting it with prima facie validity.”
It seems to me also that the Board could correctly hold that the letter (footnote 2, main opinion) “sought to compel divul-gence of the strikers’ back-to-work intentions” and threatened “termination of employment of the strikers upon their failure to act at the Respondent’s request.” See Collins Baking Co. v. N. L. R. B., 5 Cir., 193 F.2d 483, 486 .
I, therefore, respectfully dissent.
. That the “clearly erroneous” formula allows a broader scope of review than the “substantial evidence” formula clearly appears when we consider the change from the latter to the former in the case of Tax Court decisions. “Its purpose was merely to enlarge the scope of existing review so as to do away with the rule of Dobson v. Commissioner, 320 U.S. 489 , 64 S.Ct. 239 , 88 L.Ed. 248 .” George Kemp Real Estate Co. v. C. I. R., 2 Cir., 182 F.2d 847, 848 .