The opinion
HEALY, Circuit Judge
(concurring in part and dissenting in part).
I think the evidence is insufficient to support the order directing withdrawal of recognition, and am satisfied that the disestablishment of the Association would have no tendency to effectuate the policy of the act. Accordingly I agree that the Board’s order in these respects should be set aside.
■It is clear that the Association grew out of a spontaneous movement for collective bargaining, participated in by a majority of respondent’s employees, and culminating in the petition for recognition and the designation of the committee. At the time the petition was favorably acted upon by the management at their meeting with the *211 committee on June 6, the Association had, for all practical purposes, acquired the status of a labor organization as defined in the act. 1
There was no employer domination of its formation. Cf. National Labor Relations Board v. Newport News Shipbuilding & Drydock Co., 60 S.Ct. 203 , 84 L.Ed.-, December 4, 1939. What occurred afterward is another matter; but I think the subsequent interference with the employee union was neither vital enough nor sufficiently long-continued to warrant a measure so extreme as disestablishment. 2 I think, however, that the later interference justified the cease and desist order issued by the Board.
On June 14, eight days after the first meeting between the management and the committee, respondent posted the notice quoted in the main opinion, stating that the committee had submitted a proposition— acceded to by respondent — for a 40-hour week and time and a half for overtime. Both the trial examiner and the Board found that the statement was a fabrication. The majority opinion rejects the finding, and appears to hold further that even if the posted statement was deliberately false it did not constitute an unfair labor practice.
The respondent itself does not seriously question the finding. It contends only that the unfair practice was not of such character as to justify disestablishment of the Association. 3 Moreover, respondent does not claim surprise and made no request for leave to adduce further evidence on the point; nor has it intimated that proof was available of an actual proposal by the committee — proof which the Board’s malevolence left undisclosed. In these circumstances, the majority’s labored refinements of the testimony seem less calculated to uncover the truth than to establish a thesis.
I regard as irrelevant the discussion concerning the quantum of proof required to establish fraud. A proceeding under the National Labor Relations law is not a fraud action, and the mere application of epithets to conduct charged against an employer does not serve to make it such. The proceeding is purely statutory and the act lays down its own rules. It provides that “if upon all the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in” an unfair labor practice, it shall state its findings and shall issue an order requiring such person to cease and desist from the practice. 29 U.S.C.A. § 160 (c). The Board’s findings, if supported by substantial evidence, are conclusive.
The declared purpose of the legislation is to protect workers from unfair practices on the part of their employers; and I can conceive of no more effective method of nullifying this purpose than the erection of artificial standards of proof such as those set up in the main opinion. I venture to suggest that judicial interpolations of this sort tend in no way to safeguard the civil liberties of the laboring population.
The Board’s complaint charged respondent with domination and interference with the administration of the Association, and in general terms with lending it improper support. It is quite probable that the Board did not know, in advance of the trial, the precise form the proof might take. Where surprise is claimed because of lack of precision in the allegations it is doubtless the practice of the trial examiner and of the Board to reopen the inquiry for the taking of further evidence. This court, too, has been liberal, and should continue to be liberal, in sending cases back to the Board where any party affected by the order, whether it .be the employer or a labor organization, claims prejudice because of lack of specific pleading or otherwise. But *212 all that aside, no prejudice in respect of this matter arose either out of the form of the charges or of the manner of conducting the inquiry.
Turning to the Board’s finding, there is no hint in the testimony that the committee had made a proposition of the sort mentioned in the notice, or that they had made any other proposal except to request recognition. The three members of the committee, together with Johnson, respondent’s president, testified that the committee’s only demand was for recognition. The ensuing activities of the committee were related in detail and there is no discernible gap in the evidence bearing on the point. Indeed, the record as a whole produces conviction amounting to a certainty that there was no further bargaining prior to the date of the posting of the notice. 4
Plant Superintendent Harder testified that the notice was posted after the committee’s first meeting with the management, and that it was a direct result of that meeting. Had the action of the management been an outgrowth, in whole or in part, of any other conference, or of any demand from the committee or any of its members, it is only rational to believe that Harder would have said so. There were earlier stirrings of discontent among the employees which readily account for the concession, 5 but to attribute it to the demands of the newly formed committee is a totally different matter. It is clear that, in crediting to the efforts of the committee the shorter work week and extra pay for overtime, the management stepped beyond the bounds of propriety and truth.
The misleading nature of the notice, together with its laudatory language, evidence an attitude deliberately calculated to persuade the employees to shun other unions and to adhere to the Association. To those employees who had not joined the Association, and to those of its membership who might have been inclined to affiliate with the competing union, the implication was plain enough that their best interests in the future lay in the direction of the company union. Men whose subsistence depends on the continued holding of their jobs take notice of suggestions far less peremptory.
Under the law it was the duty of respondent to be neutral and to refrain from conduct or expressions tending in any way to influence its employees in the choice of a bargaining representative. I dissent from the court’s putting its seal of approval on these dissembling practices.
Being of the opinion that the unfair practice does not justify disestablishment, I believe it unnecessary to consider the effect of the failure formally to make the Association a party. The cease and desist order is calculated to protect the employees, not to overthrow their Association; hence the presence of the latter is in no view a prerequisite to its enforcement.
§ 2 (5), 29 U.S.C.A. § 152 (5): “The term ‘labor organization’ means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”
This appears to have been the view of the trial examiner, who recommended a cease and desist order but no order of disestablishment.
Respondent’s brief (pp. 10, 11) states: “ * * * it is perhaps arguable that it [the notice] constituted an indirect interference by management with the administration of the Association, continuance of which interference may be prevented by proper order to cease and desist. But it cannot constitute justification for an order of the Board dissolving the properly constituted bargaining representative of the employees.”
See particularly Bueter’s testimony as quoted in the main opinion. Bueter was the chief actor in the employee group. He was interrogated and testified concerning the activities of the committee subsequent to the meeting. These he said had to do with plans for completing the organization, the first meeting of which was held on June 25. He states specifically that the matter of working conditions was not taken up with the management until the latter part of September. His testimony is corroborated by Mendenhall, respondent’s manager, who testified that no further meeting was held with any committee of the Association until September 13, 1937.
This is the only basis on which respondent attempts to explain the misleading statement.