The opinion
GARRECHT, Circuit Judge
(dissenting).
In view of the opinion of the Supreme Court in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 , 57 S.Ct. 615 , 81 L.Ed. 893 , 108 A.L.R. 1352 , I feel that this court should grant the petition of the Board in this case and I dissent from any other holding.
To what was said by me in the first hearing, see 87 F.(2d) 611, 632-641 , the following pertinent considerations may be added.
The order of the Board requiring reinstatement of the five striking employees of the respondent and payment to them of wages for the period subsequent to the failure to reinstate them was fully justified under the act.
If the employees ceased work on October 4, 1935 “as a consequence of, or in connection with, any current labor dispute,” they retained their status as employees of respondent during the strike. Section 2(3) of the act ( 29 U.S.C.A. § 152 (3) is as follows: “The term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act [chapter] explicitly states otherwise, and shall include any individual whose work has ceased as a conséquence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse.”
The evidence and findings are clear to the effect that a labor dispute culminating m a strike occurred as a climax to protracted and unsatisfactory negotiations.
Following are excerpts from the findings of fact made by the Board:
“In September 1934 the San Francisco Local sent one of its members, Loudermilk, to New York for‘about a month to aid in the ARTA organization of the Mackay operators in that city in an attempt to prevent undermining of the San Francisco wage scale by payment of a lower scale in New York. In February 1935 an administrative Committee of the Local was appointed for the purpose of contacting all of the operators in the Mackay system, ARTA members and non-members, to ascertain their views on wages and working, conditions. A lengthy questionnaire which covered these matters in detail was sent to the Mackay operators. After the receipt and compilation of this material, members of the Local prepared a general agreement concerning wages and working conditions for the. entire Mackay point to point system. This agreement was sent to all of the ARTA locals and ratified by them. It was then presented by the national officers of ARTA to the Mackay officials in New York in June 1935. They requested and were given more time in which to consider the agreement in view of contemplated bankruptcy proceedings that might affect the Mackay companies. The agreement was again presented in September 1935. The national officers of ART-A had requested that the Local send O. M. Salisbury to New York to assist them in the negotiations since they were not too familiar with point to point conditions. Salisbury, who was chairman of the point to point division of the Local and an operator employed in the HB office, went East for this purpose. He was given a leave of absence, the reason for the trip being clearly understood by the respondent. At the same time, at a meeting of the Local held prior to September 1935, the members voted in favor of a *766 strike if such action became necessary to .support their demands.
“The marine operators had also presented the Mackay companies with a system agreement. On September 13, Salisbury wired Bash, who was chairman in his place, that while the Radio Corporation of America had signed such a marine agreement, Mackay had refused and was recommending non-ARTA marine operators to the steamship companies. He suggested a special meeting to consider joint action on the two agreements. Rathborne, Secretary of the Local, Bash and Russ, who was marine superintendent of the respondent, conferred that morning on the question of recommending non-ARTA operators but reached no agreement. Stone, the new vice-president in charge of operations for the respondent happened to be in San Francisco that day. In the afternoon a number of marine operators and ARTA members of the point to point Mackay group of the Local conferred with Stone. The marine agreement was discussed to some extent, Stone pointing out defects in the agreement RCA had signed. The point to point ARTA operators stated that they were considering joint action on the two agreements. Stone replied that he was taken by surprise and requested time to return to New York to study the point to point agreement. The request was granted. That evening a joint meeting of the marine and point to point members was held and a resolution adopted to the effect that the two divisions should unite for joint action on the two agreements, so that one could not be adopted to the exclusion of the other, and that the Mackay officials should have until September 23 to execute the agreements unless the ARTA officers negotiating such agreements believed negotiations were proceeding in a satisfactory manner. The vote was overwhelmingly in favor of the resolution, only three or four voting against it. In view of the strike vote taken at the meeting prior to September 1, the action taken at the September 13 meeting was really the fixing of a deadline at which the ARTA officers could call a strike if they deemed one necessary. At this time nearly all of the HB operators were members of the Local. As the ARTA admitted supervisory officials to membership, some of the supervisors in that office were also members.
“B. The October 7-8 Strike.
"On October 4 the ARTA negotiators in New York decided that a strike was advisable in view of the unsatisfactory state of the negotiations. Salisbury telephoned the Local and a meeting of the point to point group was held that evening. The strike had been set for 12 o’clock midnight, San Francisco time, and was to be nation-wide over the Mackay system. A strike committee lor San Francisco was appointed at the meeting. At midnight all of the HB office force then on duty went on strike, with the exception of the official in charge.”
These findings being supported by evidence are conclusive. The act (section 10 (e), 29 U.S.C.A. § 160 (e) provides: “The findings of the Board as to the facts, if supported by evidence, shall be conclusive.” See National Labor Relations Board v. National New York Packing & Shipping Co. (C.C.A.) 86 F.(2d) 98 .
In his first opinion Judge Wilbur conceded this contention of the Board and pointed out that the position of Judge Mathews was untenable, in this language:
“The case might be disposed of on the theory advanced by the respondent that the individuals who were ordered restored to their positions by the Board had themselves, by their voluntary act, ceased to be employees; consequently, that the act does not apply because the act authorized the reinstatement of employees and does not regulate the re-employment or the employment of laborers. Thus interpreted, the act applies only to a situation where the employer has discharged an employee against the will of the employee and his reinstatement is directed in consequence. But to base our conclusion upon that theory in the case at bar would require us to ignore the declarations in the act itself that employees on a strike are to be considered still as employees within the meaning of the act which declares the term ‘employee’ as used in the act to include ‘any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment.’ Section 2, subdivision 3 of the act ( 29 U.S.C.A. § 152 (3). Consequently, the Board was acting well within the power Congress sought to vest in it, and our decision must be based upon the broad ground that the act, according to its plain terms, is unconstitutional as violative of the Fifth Amendment in so far as it attempts to force upon an employer engaged in interstate commerce a contract of employment with those so *767 engaged who have voluntarily terminated contract of employment.”
In his present opinion Judge WILBUR has receded from his former stand and now accepts the argument as set forth in respondent’s brief.
In his opinion on the petition for rehearing, Judge WILBUR asserts that under the Jones & Laughlin decision employers cannot be required to enter into a contract with their employees or any of them; that only when an employee has ceased work by reason of an unfair labor practice can reinstatement be required without forcing a new contract; that when, as in the instant case, work ceased before the unfair practice took place, to require reinstatement of the employee to the position he held directly before work ceased is to force the employer to make a new contract, hence beyond the legitimate scope of the act.
This view appears to me to be a strained construction designed to nullify the National Labor Relations Act in an important field of its operations. If section 10(c) of the act ( 29 U.S.C.A. § 160 (c) empowering the Board “to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act [chapter],” operates only in those cases where unfair labor practices occur without or before a strike, then, obviously, an employer at the conclusion of a strike may by an unfettered selection of men discriminate against those who are most active in union affairs.
The reasoning which dictates this stultifying conclusion leaves me cold. Because employment is a matter of contract, it is said, to compel the hiring of a man who has ceased work for reasons other than an unfair labor practice is to compel the making .of a new contract.
The argument overlooks the fact that the relationship of employer and employee, while initiated by contract, is a status the incidents of which may be altered by the Legislature under its police power. In the field of interstate commerce it is the Congress which exercises this police power.
Examples of relationships originating in contract whose incidents are subject to legislative alteration are numerous.
The status of seaman and vessel, resting in and originated by contract, may be modified by Congress to the extent (to cite one example among many) of prohibiting the payment of wages in advance. Patterson v. The Eudora, 190 U.S. 169, 175 , 23 S.Ct. 821 , 47 L.Ed. 1002 . The status initiated by the contract of employer and employee in an industry subject to state regulation may be altered by abolishing the employee’s right to sue for injuries and substituting therefor a system of workmen’s compensation. New York Central R. Co. v. White, 243 U.S. 188, 206 , 37 S.Ct. 247 , 61 L.Ed. 667 , L.R.A.1917D, 1, Ann.Cas.1917D, 629; Chicago, B. & Q. R. Co. v. McGuire, 219 U.S. 549, 571 , 31 S.Ct. 259 , 55 L.Ed. 328 . Likewise, in an interstate commerce industry, Congress may alter the status of the employment relationship by abrogating certain of the common-law defenses of an employer against suit for damages brought by an employee. Mondou v. New York, etc., R. Co., 223 U.S. 1 , 32 S.Ct. 169 , 56 L.Ed. 327 , 38 L.R.A.(N.S.) 44.
By the passage of the National Labor Relations Act in July 1935, several months before the activities pertinent to this decision occurred, Congress undertook to add certain incidents to the status originating in the contract of employment in industries subject to its control of which the Radio and Telegraph industry is an outstanding example. One of these added incidents is the continuance of the employer-employee status fluring the cessation of work caused by a labor dispute. Section 2(3) of the act, supra ( 29 U.S.C.A. § 152 (3). Another arises from section 10(c), as follows:
“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 any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such .unfair labor practice,.and to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act [chapter]. Such order may further require such person to make reports from time to time showing the extent to which it has complied with the order.”
When we consider the purpose of the act, this must be construed to mean that, if work ceases in consequence of a labor dispute and the employer, upon the resumption of work, selects the men to reman his plant with a view to discriminate against or hamper labor union activity, he may be required to reinstate those discriminated against to the positions held by them at the time work ceased.
*768 This is the construction of the act which most tends to effectuate its policies. The act, so construed, is clearly constitutional unless it can be said, beyond a reasonable doubt, that the addition of such an incident to the employment status cannot conceivably promote the welfare of interstate commerce. Ogden v. Saunders, 12 Wheat. 213, 269 , 6 L.Ed. 606 ; Sinking Fund Cases, 99 U.S. 700, 718 , 25 L.Ed. 496 ; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 , 31 S.Ct. 337 , 55 L.Ed. 369 , Ann.Cas.1912C, 160; Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 42 , 53 S.Ct. 431, 433 , 77 L.Ed. 1015 ; U. S. v. Butler, 297 U.S. 1, 67 , 56 S.Ct. 312, 319 , 80 L.Ed. 477 , 102 A.L.R. 914 .
The promotion of collective bargaining in industries subject to the power of Congress has been determined to be within the field of congressional action. Certainly it cannot be deemed a “fanciful conjecture” (Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194, 209 , 55 S.Ct. 187, 191 , 79 L.Ed. 281 ) that the prevention of discrimination by requiring the employer to reinstate an employee to the position held before a strike which gave the employer the opportunity to practice discrimination will operate to promote and strengthen collective bargaining.
Therefore I am of the opinion that the Board’s order was proper. It obviously follows that the order for payment of wages from the date of the unfair practice was also within the Board’s jurisdiction.