The opinion
*149 WILBUR, Circuit Judge
(dissenting).
The National Labor Relations Board has petitioned this court for an order to enforce its conclusions and order made in its decision of September 26, 1936. The Wagner Act became effective July 5, 1935, 29 U. S.C.A. § 151, et seq. The respondent, throughout the hearing before the Board, challenged the validity of the act as unconstitutional. After the briefs were filed, but before the oral argument, the Supreme Court passed upon National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 , 57 S.Ct. 615 , 81 L.Ed. 893 , 108 A.L.R. 1352 , and companion cases, National Labor Relations Board v. Fruehauf Trailer Co., 301 U.S. 49 , 57 S.Ct. 642 , 81 L.Ed. 918 , 108 A.L.R. 1352 ; National Labor Relations Board v. Friedman-Harry Marks Clothing Co., Inc., 301 U.S. 58 , 57 S.Ct. 645 , 81 L.Ed. 921 , 108 A.L.R. 1352 ; Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U.S. 142 , 57 S.Ct. 648 , 81 L.Ed. 965 , ana Associated Press v. National Labor Relations Board, 301 U.S. 103 , 57 S.Ct. 650 , 81 L.Ed. 953 , arising under the Wagner Act, and disposed of many of the arguments advanced by the respondent in support of its contention that the act was unconstitutional. In view of these decisions an additional brief was filed by each party to the proceedings, including the intervener Associated Employees of Onalaska, Inc., wherein the attack upon the act as unconstitutional is abandoned. However, the respondent still contends that the act is not applicable to the activities conducted by it because they do not constitute interstate or foreign commerce and do not directly affect the same.
It is not questioned that between 90 and 95 per cent, of the lumber products resulting from a lumbering, transportation, and milling industry conducted by the respondent enter into interstate and foreign commerce. While the situation is analogous to the Carter Coal Case, 298 U.S. 238 , 56 S.Ct. 855 , 80 L.Ed. 1160 , because in both cases it is a local product (lumber in the instant case and coal in the Carter Case) which is manufactured and shipped in interstate commerce, it is clear that although the activities, of the respondent do not of themselves constitute interstate commerce (Coe v. Errol, 116 U.S. 517 , 6 S.Ct. 475 , 29 L.Ed. 715 ; Arkadelphia M. Co. v. St. Louis S. W. Ry. Co., 249 U.S. 134 , 39 S.Ct. 237 , 63 L.Ed. 517 ), the activities and business in which the respondent is engaged directly affects interstate commerce within the meaning of the Labor Relations Act, as interpreted and applied by the above-mentioned recent decisions of the Supreme Court.
Most of the matters involved in this proceeding occurred before the passage of the National Labor Relations Act, 29 U.S. C.A. § 151, et seq. While the Board does not claim that the act is retroactive, its. findings cover with great detail the relations of the respondent and its employees previous to a strike which was called on May 3, 1935, and thereafter, both prior and subsequent to the effective date of the Wagner Act (July 5, 1935). These facts found by the Board may be briefly summarized as follows:
The company at all times had recognized as a collective bargaining unit an organization of employees known as the Four L’s, (Loyal Legion of Loggers and Lumbermen). Some of respondent’s employees had also joined the Lumber and Sawmill Workers Union, hereinafter referred to as the “union,” affiliated with the American Federation of Labor. The respondent consistently declined to bargain with the union, except as hereinafter stated, contending that a majority of its employees were members of the 4 L’s. The union contended that more than a majority of the employees had become members of the union and that it was entitled by reason thereof to bargain collectively with the employer. This right being consistently denied, the question was presented to the Old National Labor Relations Board set up by the President’s program under the National Industrial Recovery Act, and it was there decided, after a vote of respondent’s employees, that the union had a majority of membership and was entitled to bargain collectively with the respondent. It is not contended by the Board that this decision has any force or effect other than its evidentiary value as tending to show that the union was the body which represented the majority of respondent’s employees and with which, under the Wagner Act, when it became effective, the employer was required to bargain.
Although the Board found that the Car-lisle Lumber Company had consistently refused to recognize and bargain collectively with the union, it found that on January 23, *150 1935, W. A. Carlisle, the president, because of his absence, suggested that the union present its plan for a proposed working agreement to K. L. Carlisle, vice president and assistant manager; that in consequence, a meeting was arranged the latter part of January, 1935, with a committee representing the union and the vice- president and assistant manager of the respondent, when the latter stated to the committee that he had no authority to act upon anything that might come up; that 'the terms of the proposed working agreement were discussed in great detail by the parties; that-the proposed agreement provided for a minimum wage scale of 50 cents per hour for a 6-hour day, and a recognition by the respondent of the union as the exclusive collective bargaining agency for all respondent’s employees; that the assistant manager rejected the proposal stating that it was unfair to the respondent, and that respondent could not agree to sever its relations with the 4 L’s organization; that on April 8, 1935 the union requested a meeting with the officers of the respondent in order to discuss the discharge of Poore, an employee; that such a meeting was held but nothing was accomplished with respect to Poore’s reinstatement; that in March, 1935, a committee of the union met with Kenneth Carlisle to discuss certain grievances with the union; that in March, 1935, the union requested a meeting with respondent to discuss the terms of a new agreement proposed by a convention of the American Federation of Labor; that this meeting was not held until May 1, 1935, when the union representatives met the respondent; that after a lengthy discussion of the provisions of the proposed agreement with respect to the minimum wage, 6-hour day, and withdrawal of recognition of the 4 L’s as a bargaining agency, the assistant manager stated that there was nothing in the proposed agreement that pleased him; that the respondent would never sever its connection with the 4 L’s; that as far as respondent was concerned the 4 L’s would be the only organization dealt with.
We have thus a number of instances in which the respondent met with the committee of the union for the purpose of discussing the propositions advanced by the union. This is collective bargaining per se. The Board, however, found that these meetings were not “attended by such officers with a sincerity of purpose but rather with a desire to conceal the respondent’s actual refusal to bargain.” In view of the inportance of the finding of the Board in this regard I place the same in the footnote. 1
By this finding the Board has injected into the problem of collective bargaining an assumption which is not tenable. The law does not purport to require that the collective bargaining shall result in an agreement. National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U. S. 1 , 57 S.Ct. 615, 628 , par. 16, 81 L.Ed. 893 , 108 A.L.R. 1352 , supra. It does require and seeks to establish the right of the errrployees to bargain through their chosen representatives, and if an agreement is arrived at, to “make a collective contract.” When the employer has met these representatives and listened to their proposition, the employer is not required to make counter proposals. A refusal to make such propo *151 sals or to accept the proposed agreement is clearly the constitutional right of the employer and is fully recognized by the Supreme Court in the Jones & Laughlin Steel Corporation Case, supra, if made as a result of or after meeting the representatives of the employees. Although the Board has covered this question in detail in the findings, it is unnecessary to pursue this subject further for the reason that the Board concedes that the Wagner Act was not operative upon these failures to reach an agreement by collective bargaining.
The strike occurred May 3, 1935. Previously it had been the announced intention of the workers to strike on May 6th. To forestall this strike the Board finds that the respondent declared a lockout on May 5th, whereupon the union struck on May 3d. One of the purposes of the strike was to secure recognition of the union as the bargaining unit of all the respondent’s employees; the other was to secure the adoption of the agreement proposed as a result of the convention of the A. F. of L. After the strike the respondent consistently refused to recognize or deal with the union and on June 25, 1935, notified all its employees that their employment had terminated and that they would be paid off accordingly. They were paid and respondent contends that this terminated all semblance of employment. In pursuance of its announced intention respondent’s activities thereupon entirely ceased. This was the situation at the time the Wagner Labor Relations Act became effective (July 5, 1935). The only employees then engaged were a few caretakers to prevent fire, etc. These were all members of the 4 L’s and none of the union. On and after July 5, 1935, the union engaged in picketing the premises of the respondent, arid, by reason of the persistent refusal of the respondent to engage in collective bargaining with it, continued to do so.
The Board found that the refusal of the respondent to bargain with the representatives of the union on July 29, 1935,' after the Wagner Act went into effect, was an unfair labor practice within the meaning of the act. Respondent, on the other hand, contends that fhe members of the union were no longer employees and could not be made so by congressional definition after that relation had ceased in fact. At any rate, it is clear and is conceded that the conduct of the respondent after the Wagner Act became effective is the only basis for the claim and finding of unfair labor practices.
Were the Members of the Union Employees When the Wagner Act Became Effective?
The members of the union struck on May 3, 1935. Their condition as striking employees is one recognized by the law. Such employees are not performing the obligations of their employment and yet they are recognized as having a peculiar relationship to the employer during the strike. Their legal situation is not the same as though the employees had individually ceased to work. The decisions of the courts have frequently recognized this situation. Jeffery-DeWitt Insulator Co. v. National L. R. B., 4 Cir., June 16, 1937, 91 F.2d 134, 138 , and cases cited. Congress has incorporated in the Wagner Act this idea by its definition of “employee” contained in the act. The term “employee” includes 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.” Wagner Act, § 2 (3), 29 U.S.C.A. § 152 (3). The term “labor dispute” is also defined in the act, section 2(9), 29 U.S.C.A. § 152 (9), to include any controversy concerning terms “tenure,” or “conditions of employment,” or “bargaining unit.”
In the absence of any constitutional inhibition Congress can define the word “employee” for legislative purposes in any way that it sees fit. As stated by the Supreme Court in Carter v. Carter Coal Co., 298 U. S. 238, 289 , 56 S.Ct. 855, 863 , 80 L.Ed. 1160 : “While the lawmaker is entirely free to ignore the ordinary meanings of words and make definitions of his own, Karnuth v. United States, 279 U.S. 231, 242 , 49 S.Ct. 274 , 73 L.Ed. 677 ; Tyler v. United States, 281 U.S. 497, 502 , 50 S.Ct. 356 , 74 L.Ed. 991 , 69 A.L.R. 758 , that device may not be employed so as to change the nature of the acts or things to which the words are applied.”
See, also, cases involving such constitutional limitations; Employers’ Liability Corporation v. Industrial Accident Commission, 179 Cal. 432 , 177 P. 273 ; Perry v. Ind. Acc. Comm., 180 Cal. 497 , 181 P. 788 ; Flickenger v. Ind. Acc. Comm., 181 Cal. 425 , 184 P. 851 , 19 A.L.R. 1150 ; Worswick *152 St. Paving Co. v. Ind. Acc. Comm., 181 Cal. 550 , 185 P. 953 . Such a definition is merely a convenient device for simplifying the phraseology of the legislation.
It follows that if we assume that the Wagner Act was effective before the strike began, the striking employees in the case at bar wauld be deemed to be employees of the respondent; but the Wagner Act did not go into effect until after the°employer notified all striking employees that their employment had terminated. There is no doubt of the constitutional and common-law right of an employer to discharge his employee at any time. The fact that a strike is in progress would not under the common law prevent such a discharge. The employer’s only remedy was to secure other employees, unless he wished or was compelled to accept the terms of the strikers. The Board suggests in its argument that a discharge to be effective must be actual and sincere and not a mere subterfuge adopted for the purpose of intimidating the strikers. When the discharge occurred the law knew no such limitation. Under the terms of the Wagner Act, which formally recognizes the right of employees who have ceased work on account of current labor disputes to bargain collectively, it may be that the right to bargain collectively could not be terminated by a summary or fictitious discharge before collective bargaining had taken place.
' The parties have based their arguments with regard to the applicability of the Wagner Act to the conduct of the respondent and its employees after July 5, 1935, upon the question of the constitutional power of the Congress of the United States to compel collective bargaining with discharged employees. The respondent in effect assets that Congress has no constitutional power to make employees of those who are not such in fact; that Congress has no power to change the status of its already discharged employees. The Board asserts that Congress has such power and has exercised it in the Wagner Act. Assuming, as we must, under the recent decision of the Supreme Court, that Congress has power to promote collective bargaining, both to prevent strikes and to facilitate their settlement, Congress would undoubtedly have constitutional power to deal with all such strikes as were in progress at the time it acted by requiring the employer to bargain collectively with its former employees. It could by definition, as it has done, include within the group entitled to collectively bargain with an employer, those who are on a strike because of a dispute over the terms of their employment. From the standpoint of the constitutional power of Congress it would make no difference when the strike began.
Turning to the contention of the respondent that its relations with the strikers were terminated when it informed them that they were discharged, paid them off, and closed its plant; it is clear that such action on the part of the employer, where the employees have ceased to perform the duties of their employment, was at common law and at the time of the discharge by the respondent on June 25, 1935, an effective termination of the employment. The Board does not contend otherwise. In this connection it should be borne in mind that the employer, as well as the employee, has constitutional, and common law, rights. As the employees have a right to strike and thus force the employer to terms if they can, so the employer has the corresponding right to secure other employees to fill the places of the strikers and thus continue its operations.
Respondent, in the case at bar, before the enactment of the Wagner Act, chose another alternative and closed its plant, paying off its employees, so that in law and in fact at that time the qontractual relation between the striking employees and the employer ceased.
Under the recent decisions of the Supreme Court, there is no doubt of the constitutional power of Congress to require collective bargaining with its former employees although the discharge of the employees occurred before Congress acted, if the controversy between the employer and its former employees still directly affects interstate or foreign commerce. It is not the technical relation of employer and employee that gives rise to the constitutional power; it is the disastrous effect of labor disturbances upon interstate commerce which does so. As the Board carefully points out, this effect upon commerce continued in the case at bar long after the adoption of the Wagner Act. The question then is not one of constitutional power, but one of statutory interpretation. That is, of whether or not the Wagner Act, properly construed, applies to a situation where the relation of employer and em *153 ployee had terminated before the act was passed.
A majority of the Circuit Court of Appeals for the Fourth Circuit, in Jeffery-De Witt Insulator Co. v. National Labor Relations Board, supra, decided June 16, 1937, Judge Northcott dissenting, held that the National Labor Act was applicable to employees on a strike at the time of the passage of the Wagner Act. In that case there was no formal discharge of the striking employees. That court based its conclusion upon authorities supporting its statement that, “irrespective of the statute, therefore, the strike did not of itself result in a complete severance of the relationship which had been established between the company and its employees.”
In the case at bar we have in addition to the strike the formal discharge and pay off to which we have referred. The question is as to the retroactive effect of the statute. That is, were the striking union members employees within the meaning of the Wagner Act, 29 U.S.C.A. § 152 (3), which provides that the term “employees” shall include those “whose work has ceased as a consequence of, or in connection with, any current labor dispute”!1 If this statutory definition is given a prospective rather than a retrospective interpretation, it means, in effect, those “whose work shall hereafter cease, as a consequence of, or in connection with, any current labor dispute,” etc. If it is given a retrospective interpretation, it should read, “whose work has heretofore or may hereafter cease as a consequence of, or in connection with, any current labor dispute,” etc., or words to that effect. In deciding this question there is a basic and elementary rule of statutory construction to be applied; that is, that a statute shall not be given retroactive effect unless the intention of the Legislature so to do is clearly expressed or necessarily implied. This rule is applicable to all statutes dealing with substantive rights. The rule is not always expressed in the same language. Variously expressed it will be found in a host of decisions. I refer to a statement of the rule in some of the more recent decisions of the Supreme Court. In Fullerton-Krueger Lumber Co. v. Northern Pac. Ry., 266 U.S. 435 , 45 S.Ct. 143, 144 , 69 L.Ed. 367 , Justice McReynolds, speaking for the court, quoting from Harvey v. Tyler, 2 Wall. 328, 347 , 17 L.Ed. 871 , said: “It is a rule of construction, that all statutes are to be considered prospective, unless the language is expressly to the contrary, or there is a necessary implication to that effect.”
In Miller v. United States, 294 U.S. 435 , 55 S.Ct. 440, 442 , 79 L.Ed. 977 , it is said: “The law is well settled that generally a statute cannot be construed to operate retrospectively unless the legislative intention to that effect unequivocally appears. * * * The principle is strictly applicable to statutes which have the effect of creating an obligation.”
(In the case at bar the statute creates the obligation to bargain collectively with the employees and denies the unqualified inherent right of discharge theretofore recognized.)
In Brewster v. Gage, 280 U.S. 327 , 50 S.Ct. 115, 118 , 74 L.Ed. 457 , it is said: “Ordinarily, statutes establish rules for the future, and they will not be applied retrospectively unless that purpose plainly appears.”
The question is dealt with more at length by the Supreme Court in Shwab v. Doyle, Collector, 258 U.S. 529 , 42 S.Ct. 391, 392 , 66 L.Ed. 747 , 26 A.L.R. 1454 , in an opinion by Justice McKenna, where it is said:
“The initial admonition is that laws are not to be considered as applying to cases which arose before their passage unless that intention be clearly declared. 1 Kent, 455; Eidman v. Martinez, 184 U.S. 578 , 22 S.Ct. 515 , 46 L.Ed. 697 ; White v. United States, 191 U.S. 545 , 24 S.Ct. 171 , 48 L.Ed. 295 ; Gould v. Gould, 245 U.S. 151 , 38 S.Ct. 53 , 62 L.Ed. 211 ; Story, Const. § 1398. The comment of Story is:
“ ‘Retrospective laws are, indeed, generally unjust, and, as has been forcibly said, neither accord with sound legislation nor with the fundamental principles of the social compact.'
“There is absolute prohibition against them when their purpose is punitive; they then being denominated ex post facto laws. It is the sense of the situation that that which impels prohibition in such case exacts clearness of declaration when burdens are imposed upon completed and remote transactions, or consequences given to tíiem of which there could have been no foresight or contemplation when they were designed and consummated.”
*154 Continuing with reference to the act there under consideration (Act of September 8, 1916, 39 Stat. 756 ), it is said:
“There is certainly in it no declaration of retroactivity, ‘clear, strong, and imperative,’ which is the condition expressed in United States v. Heth, 3 Cranch 399, 413 ( 2 L.Ed. 479 ) ; also United States v. Burr, 159 U.S. 78, 82, 83 , 15 S.Ct. 1002 , 40 L. Ed. 82 .
“If the absence of such determining declaration leaves to the statute a double sense, it is the command of the cases that that which rejects retroactive operation must be selected.”
In United States v. St. Louis, S. F. & T. Ry., 270 U.S. 1 , 46 S.Ct. 182, 183 , 70 L.Ed. 435 , Judge Brandéis,'•speaking for the Supreme Court, said: “That a statute shall not be given retroactive effect, unless such construction is required by explicit language or by necessary implication, is a rule of general application.”
The rule with reference to prospective construction of a statute is also stated in the text-books. In 25 R.C.L, “Statutes,” § '35, p. 787, it is said: “There is always a presumption that statutes are intended to operate prospectively only, and words ought not to have a retrospective operation unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied. Every reasonable doubt is resolved against a retroactive operation of a statute. If all of the language of a statute can be satisfied by giving it prospective action only that construction will be given it. Especially will a statute be regarded as operating prospectively when it is in derogation of a common law right, or the effect of giving it retroactive operation will be to destroy a vested right or to render the statute unconstitutional.”
The rule is thus stated in 36 Cyc. p. 1205: “It is a rule of statutory construction that all statutes are to be construed as. having a prospective operation unless the purpose and intention of the legislature to give them a retrospective effect is expressly declared or necessarily implied from'the-language used. In” every case of doubt the doubt must be resolved against the retrospective effect.”
It follows from the cardinal and elementary rule of statutory interpretation announced in these decisions and stated in the text-books that when ’ Congress provided in the Wagner Act that when employees “have ceased work because of a current labor dispute” they shall still be deemed to be employees, it speaks to the future and deals with employees who thereafter shall have ceased work, and not with those employees who had theretofore ceased work.
In considering the question of whether or not this statute if applied to the former employees of the respondent who struck and were discharged on June 25th, it is the implied though not expressed contention of the Board that Congress dealt with a status created by a strike and not with the strike itself which antedated the legislation. Does the Wagner Act require the employer to bargain with employees who had ceased to be such when the act was passed? In Reynolds v. United States, 292 U.S. 443 , 54 S.Ct. 800 , 78 L.Ed. 1353 , it is pointed out that a “statute is not rendered retroactive merely because the facts or requisites upon which its subsequent action depends, or some of them, are drawn from a time antecedent to the enactment”; citing Cox v. Hart, 260 U.S. 427 , 43 S.Ct. 154 , 67 L.Ed. 332 . The same rule is' again stated in Lewis v. Fidelity & Deposit Co. of Maryland, 292 U.S. 559 , 54 S.Ct. 848, 853 , 78 L.Ed. 1425 , 92 A.L.R. 794 , where, in an opinion by Judge Brandéis, it is said: “A statute is not retroactive merely because it draws on antecedent facts for its operation” ; citing Cox v. Hart, 260 U.S. 427 , 43 S.Ct. 154 , 67 L.Ed. 332 , supra; Ewell v. Daggs, 108 U.S. 143 , 2 S.Ct. 408 , 27 L.Ed. 682 ; and other cases.
But this rule does not aid us in interpreting the act which must be treated as prospective and not retrospective. For legislative purposes it creates a status with certain rights appertaining thereto, notably, collective bargaining. To treat the legislation as dealing with a status already created is ipso facto to give the statute a retroactive effect, and this, as the authorities cited hold, may not be done except by express legislative declaration or by necessary implication. In the case at bar there is no direct expression of legislative intent to deal with past transactions, and the only implication which would justify such construction would arise from the fact that current labor disputes of whatever nature are liable to interfere with interstate commerce. But this implication is far from a *155 “necessary implication” sufficient to show that the statute was intended to have a retroactive effect, for the mischief aimed at is an ever present and continuing one.
The Wagner Act places such heavy obligations upon the employer that it should only be considered as retroactive if the act expressly requires it. For instance, in the case at bar if the order of the Board is enforced it will involve payment of nearly two years’ compensation to 221 employees who have not worked for, but against, the respondent during that period. The Board has not found the exact amount to be paid to each employee, but the aggregate must be in the neighborhood of $250,000. This penalty is based upon the refusal of the employer to meet the representatives of the union for collective bargaining, although the respondent then and now in apparent good faith contends that the members of the union were not its employees when the Wagner Act became effective. The Board recognized the futility of collective bargaining with the union where the respondent had reopened its plant with a force of employees composed in part of those who had belonged to the union and in part of newly-employed laborers. It is because collective bargaining would obviously result in the refusal of the employer to restore all its former employees that the Board made its order," not only requiring the respondent to offer employment to them, but also to pay to them the large amount hereinbefore referred to.
In dealing with a subject of such importance and involving the substantial rights of so many persons, the intention of Congress to deal with past transactions should be directly expressed, or the implication to make the law applicable thereto should be more clearly implied than is the case here, where the only implication in favor of a retroactive interpretation of the law lies in the declared purpose of Congress to promote industrial peace as it affects interstate commerce.
The striking employees of the respondent had ceased work and had been discharged before the Wagner Act was passed. The respondent had shut down its plant, the discharged employees do not come within the term “employee” as defined in the Wagner Act unless .given a retroactive effect, although if they had ceased work during a current labor dispute occurring after the act became effective the act would be applicable.
If this conclusion is correct, it follows that there was no unfair labor practice involved in the refusal to bargain with the representatives of the union, and the order of the Board based upon such refusal requiring restoration to employment and back pay to such persons cannot be enforced.
The requirement that the respondent renounce the provisions of its employment contract requiring a disaffirmance of union labor affiliations is not contested, and the order of the Board in that regard should be enforced at once.
The Wagner Labor Relations Act authorizes the Labor Board “to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this act [chapter],” section 10(c) 29 U.S.C.A. § 160 (c), and authorizes the Circuit Court of Appeals, upon application for enforcement order, “to make and enter upon the pleadings, testimony, and proceedings set forth in such transcript a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board.” Section 10(e) 29 U.S.C.A. § 160 (e). In my opinion in National L. R. B. v. Mackay, etc., Co., 9 Cir., 92 F.2d 761 , decided October 19, 1937, on rehearing, I expressed the view that the limit of the Labor Relations Board’s authority to reinstate a striking employee was to restore to that employee the right to collectively bargain, and that the authority given in the National Labor Relations Act to reinstate employees could not consistently be extended to require the employer to again employ those who voluntarily struck. It would follow that employees not being in a pay status at the time of the alleged violation of the Wagner Labor Relations Act are not entitled to back pay for the period during which they were unemployed because of their voluntary acts.
I therefore conclude: (1) That the Wagner Act does not apply to the employee of the company who had quit work by reason of a strike and had been discharged before the act was enacted; (2) the act does not authorize a requirement that a striking employee be re-employed or that he be given back pay.
“The aforementioned unsuccessful attempts to meet with and bargain collectively with the respondent were motivated by a sincere desire on the part of the union to arrive at an agreement with the respondent respecting the union’s demands.* The respondent, however, did not prefer to settle its differences with the union, nor did it have at any time a sincere intention of settling its differences or of perfecting an agreement with the union. Even though the respondent, through its officers, tnet with the union , at various times, the meetings were not attended by such officers with a sincerity of purpose, but rather with a desire to conceal the respondent’s actual refusal to bargain. The respondent has not made any efforts to justify the foregoing refusals to meet with the union to settle its differences and to arrive at an agreement.
“It claims only that the union did not represent a majority of its employees.
“The respondent cannot contend as it does that the union did not represent a majority of its employees and that therefore it was justified in not dealing with the union.” ■
* “In addition to demanding a six-hour day, a minimum wage of 50 cents per hour, and that it be recognized and dealt with as the exclusive collective bargaining agency of all of the respondent’s employees, the union was asking for reductions in rents on ‘company houses’, reduction in the rate charged for electricity, and use of the respondent’s bulletin boards, which had always been used by the 4 L’s.”