The opinion
WASHINGTON, Circuit Judge
(dissenting) .
I am constrained to disagree with the court’s action in modifying the Board’s order.
1. Section 10(c) of the Labor Management Relations Act of 1947, 29 U.S. C. § 160(c) (1952), authorizes the Board, when it finds that an unfair labor practice has been committed, to “cause to be served on such person [committing the unfair labor practice] an order requiring such person to cease and desist, from such unfair labor practice, and to take such affirmative action * * ■* as will effectuate the policies of this sub-. chapter”. 1 These policies include, among others, the elimination of unfair labor practices by employers, and unions, and the protection of the employees’ right to designate a bargaining representative of their own choosing, as expressed in Section 9(a) of the Act.
It seems quite clear that a provision prohibiting an employer from recognizing a union unfairly controlled or supported by the. employer until that union has been certified as the bargaining agent of the employees would in many cases be an important factor in purging unfair labor practices. In remedying such practices the Board has long inserted a provision of that sort in its orders. Even stronger action has sometimes been taken by the Board, and the Supreme Court has supported it. For example, employer-dominated unions have on occasion been ordered completely disestablished, with Supreme Court approval: National Labor Relations Board v. Falk Corp., 1940, 308 U.S. 453 , 60 S.Ct. 307 , 84 L.Ed. 396 ; H. J. Heinz Co. v. National Labor Relations Board, 1941, 311 U.S. 514 , 61 S.Ct. 320 , 85 L.Ed. 309 ; National Labor Relations Board v. Link-Belt Co., 1941, 311 U.S. 584 , 61 S.Ct. 358 , 85 L.Ed. 368 . And in a case where the employer had assisted union A, the Board ordered him to deal exclusively with union B (a rival), even though before the order was issued the Board had been advised that a majority of the employees wished to be represented by the assisted union. The order was upheld. International Association of Machinists v. National Labor Relations Board, 1940, 311 U.S. 72 , 61 S.Ct. 83 , 85 L.Ed. 50 . In view of these precedents, the Board may surely take a less stringent course, and in an appropriate case order nonrecognition by the employer of the assisted union as long as it remains uncertified. As to unions complying with the filing provisions of the Act, that conclusion would seem beyond question. As Chief Judge Parker said in District 50, United Mine Workers v. National Labor Relations Board, 4 Cir., 1956, 234 F.2d 565 , 571:
*591 “ * * * the form of order here entered [similar to that in the instant ease] would be appropriaté if applied to a union which had complied with the filing provisions of the Labor Management Relations Act * * *»
The question here, of course, is whether the fact that a union has not complied with the filing provisions of the Act, and refuses to comply, entitles it to special treatment by the Board. The Ninth Circuit has answered this question in the negative. 2 Yet the decision of the majority here, and of the Fourth Circuit in the District 50 case, is to the contrary. The holding is — in substance and effect — that the Board cannot as a matter of law apply to a union which has not complied with the filing provisions of the law, the very condition which it could rightfuly apply to a complying union. I find no basis in principle for giving a non-complying union an advantage which complying unions do not have. In practice to do so may encourage unions not to comply with the Act.
Mine Workers v. Arkansas Oak Flooring Co., 1956, 351 U.S. 62 , 76 S.Ct. 559 , relied on by the majority, simply holds that noncomplianee by a union with Section 9(f), (g), and (h) of the Act does not open the door to the state courts to take action against the union that they would not otherwise be able to take. As I read that decision, it was intended to preserve and protect the authority of .the National Labor Relations Board, not to undermine and weaken it. It can hardly be interpreted as holding that noncompliance by a union prevents the National Labor Relations Board from taking action which it is authorized to take against a complying union, and which the Act itself permits. It is true that the Supreme Court’s opinion declares that “no consequences other than those so listed [in the Act] shall result from noncompliance.” 351 U.S. at page 73 , 76 S.Ct. at page 566 . But the context' of this’ statement-indicates that the Court was referring to consequences apart from those sanctioned by the Act itself! “Elimination of the Board [as a forum of resort by any union not complying with the filing provisions of the Act] does not, however, eliminate the applicability of the National Labor Relations Act, as amended * * * ”, Id. 351 U.S. at page 74 , 76 S.Ct. at page 566 .
2. The principle is now well established that the Board, and not the courts, is primarily charged with the responsibility of determining what provisions are best included in Board orders to carry out the policies of the Act. “The particular means by which the effects of unfair labor practices are to be expunged are matters ‘for the Board not the courts to determine.’ * * * We give considerable weight to that administrative determination. It should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Virginia Electric & Power Co. v. National Labor Relations Board, 1943, 319 U.S. 533, 539-540 , 63 S.Ct. 1214, 1218 , 87 L.Ed. 1568 , citing International Association of Machinists, v. National Labor Relations Board, 1940, 311 U.S. 72 at page 82, 61 S.Ct. 83 , 85 L.Ed. 50 ; National Labor Relations Board v. Link-Belt Co., 1941, 311 U.S. 584 at page 600, 61 S.Ct. 358 , 85 L.Ed. 368 , The majority has not suggested that the Board’s order does not effectuate the policies of the Act or that it was not intended to do so. Nor, as I view the case,' could such a conclusion fairly be reached.
Concededly, if District 50 or its parent organization persists in refusing to file the required statements and affidavits, the Board’s order will effectually preclude the employer from recognizing and con *592 tracting with District 50. as the employees’ bargaining agent, even though the employees continue to favor it. But this restraint on the employees’ freedom of choice is in part due to the attitude of the union, which has chosen not to comply with Section 9. Furthermore, if the Board properly concludes that the certification of the union in the normal way is. necessary, to dissipate the effect of the unfair labor practices, the order would tend to assure — rather than deny —the freedom of choice guaranteed by the Act by removing improper restraints on the employees. See International Association of Machinists v. National Labor Relations Board, 311 U.S. at page 82, 61 S.Ct. 83 ; H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. at page 522, 61 S.Ct. 320 .
The Board stated here that the disputed provision of its order was included “To remedy the effect of the illegal assistance to the UMW,” and further that:
“By its Order, the Board is merely directing that the UMW, like any other assisted union, demonstrate that its right to be the exclusive representative of the employees involved has been established in an atmosphere free of restraint and coercion.”
And with regard to its previous practice the Board stated:
“However, in the case of an assisted but undominated labor organization, the Board has required the offending employer to withdraw and withhold recognition from the assisted union until it was certified, thus enabling the Board to assure-the affected employees that their statutory right to freely choose a bargaining representative shall be preserved by conducting an election under conditions which will render such a choice possible.”
It is true that the Board did not expressly consider any alternative remedies — such as conducting an investigation at a later time to determine whether the effects of the unfair labor practices had by then been dissipated. But District 50 suggested no such alternative; it simply argued to the Board that the ■ order was beyond the Board's power. When this argument was rejected, it appealed to this court on the same ground. As I have indicated, I think that ground is clearly untenable: in a proper case, the Board has power to enter an order of the present sort. And I think that this is such a case, and that the Board’s findings were adequate to support its action — especially since it was never asked to consider any other type of action. But if this be doubted, the proper course for this court is to remand the case to the Board for further consideration. cf. Jacob Siegel Co. v. Federal Trade Commission, 1946, 327 U.S. 608 , 66 S.Ct. 758 , 90 L.Ed. 888 . Certainly it is not within our province for us to rewrite the Board’s order to choose a different remedy than it has chosen, and to direct that our new order be enforced. See National Labor Relations Board v. Falk Corp., 1940, 308 U.S. 453 , 60 S.Ct. 307 , 84 L.Ed. 396 ; Federal Power Commission v. Idaho Power Co., 1952, 344 U.S. 17, 20 , 73 S.Ct. 85 , 97 L.Ed. 15 .
. See National Labor Relations Board v. Wemyss, 9 Cir., 1954, 212 F.2d 465 , where the assisted union had not complied with Section 9(f), (g), or (h), [see p. 470], and where the court held that the assistance given warranted issuance of “an order that the employer withdraw recognition from the favored organization unless and until it is certified by the Board after a fair election.” at page 472.