The opinion
McALLISTER, Senior Circuit Judge
(dissenting).
This entire case rests upon the validity of the authorization cards signed by Anderson and Salisbury. If these cards were invalid, the union would not have had a majority of the employees.
The trial examiner found that the officials of the union represented to Anderson and Salisbury that all of the employees of the mechanics’ union, except themselves, had signed cards authorizing the union to act as bargaining agent. The fact was that a majority had not signed the cards and, without the signed authorizations of Anderson and Salisbury, the union would not have had a majority of employees authorizing it to act as their bargaining agent. As a matter of fact, no one had signed the cards before Anderson and Salisbury were induced by fraudulent misrepresentations to sign.
The trial examiner found that the authorization cards signed by Anderson and Salisbury were void ab initio, due to the reliance of such employees on the substantial and critical misrepresentations made by the union. However, the Board, upon review, reversed this particular holding, stating that such misrepresentations were mere puffing.
In the prevailing opinion of this court, it is held that the statements made by the union were not puffing, but were false and meant to mislead Anderson and Salisbury into, believing that a majority of the employees had already signed with the union. It is also held in the prevailing opinion that, while the representations were false and meant to mislead the two employees, their freedom of choice was not impaired.
But when we find false and fraudulent representations were made with the definite purpose of misleading the two men, who signed the authorization cards because of such fraudulent representations, how do we know that they would have signed in any event, as found by the Board, whose decision, on this point, the majority opinion affirms?
The trial examiner found that Anderson and Salisbury signed the authorization cards upon the misrepresentations of 'the union officials, and that the efficient cause of the signing of the cards “was the flat misrepresentation that the union already had majority status.” I feel that the hearing examiner’s findings should be sustained as against the conclusions of the Board. It would appear to me to be unjustifiable to set aside these findings of the hearing examiner, who heard the witnesses, on the ground that the “freedom of choice” of Anderson and Salisbury was not impaired, although this was not the excuse given by the Board that caused it to disregard the findings of the trial examiner.
After Anderson’s testimony quoted in the accompanying opinion, when Anderson learned that he was not one of the last to join the union as the union represented and, therefore, wanted to cancel his authorization card, he further frankly testified that he said to another employee, “there was going to be a union some day * * * I will join the union. * * * It’s going to be union all over the country. I know it’s going to be that way some day.” But, as soon as he heard of the false representations, he wrote the union stating that “at this time” he didn’t want to join and would like to have his application card back.
Salisbury 'testified that when he learned the union had falsely told him that everybody else in the group had signed and that he and Anderson were the last two, whereas no one had signed before him and Anderson, it made him mad and he felt he had been used to secure authorization cards from the rest of the mechanics; and he forthwith wrote to the union asking them to return his authorization card.
*125 It is true that Anderson and Salisbury were former union members; but I do not feel that it can be said that, as former union members, they were fully cognizant that false and fraudulent representations were methods used by the union in organizing, and we should not be asked to consider that such methods customarily, or frequently, constitute the modus operandi of a union in organizing. Without the authorization cards of Anderson and Salisbury, the union would not have been the representative of the employees in question at the time the alleged unfair labor methods were indulged in, and there would have been no case against petitioners.
In accordance with the foregoing, it ,is my view that the petition to set aside the order of the Board should be granted and the cross-petition for enforcement should be. denied.