The opinion
MINTON, Circuit Judge
(dissenting).
It seems to me that the majority opinion takes inconsistent positions. First, it is found in the opinion that the picketing was peaceful. The evidence before the Board was conflicting on this point., but the Board found that the picketing was peaceful, and there is an abundance of evidence to support this finding. It must have been with this in mind that the majority opinion of this Court found that the picketing was peaceful. The opinion then says: “We are holding that the forceable denial of the employer’s right to go upon its property is the equivalent of a seizure of the employer’s property” within the meaning of the Fan-steel case. Assume that a forcible denial of entry to the properly by the strikers would bring the case within the Fansteel doctrine. There is no finding of any such force. The Board found: “it is true that Lye stood partially between Bancroft and the gate but it is found that Bancroft was *574 not thereby barred from entering and it is further found that the attitude of Lye, Emerson, and Thrasher was not hostile or threatening.”
This finding is completely at variance with the Court’s finding, and the Board’s finding has ample support by substantial evidence in the record. I set forth in the margin evidence from the record which clearly supports the Board’s view. 5
Bancroft gave a different version of the situation, which was in conflict with that of the strikers and the police. To support the Court’s statement that the evidence conclusively establishes that the four strikers did actually prevent the company’s manager from entering the property, the Court has to accept Bancroft’s version. This version the Board rejected. It accepted the version of the strikers and the police.
Notwithstanding the fact that the Board’s finding is supported by substantial evidence, the Court disagrees with the Board on a resolution of that conflict in the evidence. We have no part in that conflict. We look only to the evidence which supports the Board’s finding, just as we would a jury’s verdict. The Board accepted the version *575 of the gate incident given by the strikers, who were corroborated by the police. There was no violence or threat of violence in this view of the evidence. The police saw no occasion for their interference and refused to intrude at Bancroft’s request, and the latter turned on his heel and left hurriedly. My credulity as to the politeness and gentility of the picketing is stretched considerably, hut I am not the trier of the facts. I have seen many verdicts of juries that seemed to me off the beam, hut I have found no rule of law that permits an appellate tribunal to retry the facts. I submit that we are hound by the Board’s finding, which is supported by substantial evidence, whether we like it or not.
Edwin Lye:
“A. * -t * Mr. Bancroft got out of the car on one side. Ohesly Juday got out of the car on the other side. Dick walked up to the fence, and while he was walking up there I walked up; Don Long, the chief of police, walked up; . Luther Thrasher and Howard Emerson also walked’ up.
“I walked up to the fence and turned around, facing Mr. Bancroft. Mr. Bancroft was right directly in front of me. Howard Emerson and Luther Thrasher was directly behind him. Don Long, the chief of police, stood at my left side, and I said, ‘Please, Mr. Bancroft, don’t go in.’ With that, Mr. Bancroft turned to Don Long, the chief of police, and said, ‘Don, open this gate for me.’ And Don Long says, ‘Mr. Bancroft, I can’t open that gate for you.’
“With that, Mr. Bancroft turned around and went back to his car and got in it and drove away pretty fast * *
$ * * $ * * $ $
“Q. Did you or did you not have any orders to physically prevent any Company manager or Company official from entering the gate? A. 1 did have orders not to. * * *
“Q. Who told you that? A. Hester New, onr commander of the picket line.
“Q. Would you. have left Mr. Bancroft enter the gate if he so proceeded? A. Yes, sir. * * *
“Q. Would you say your conversation with Mr. Bancroft at this gate was friendly or hostile? A. It was friendly, yes sir.
“Q. Have you at any time ever physically kept any Company official out of the plant? A. No.
“Q. Have you ever threatened any Company official with bodily harm or any kind of threats if they should enter the plant? A. No.
“Q. To your knowledge, was there any violence of any sort on the picket lino during the strike? A. No, ■ sir. * * *
“Q. Have you at any time debarred the plant manager from access to the Company property? A. Only that I asked him not to go in the plant.
“Q. Have you at any time debarred the plant manager from access to the Company property under threat of violence? A. No.
“Q. Have you ever asked or ordered any individual to debar the plant manager from access to Company property? A. No.
“Q. Have you ever threatened to have the plant manager debarred from access to Company property? A. No. * * *
“Q. Did you ever see anyone debar plant manager from Company property? A. No.
“Q. Did you ever notify anyone connected with the Company that they would be forcibly prevented from entering the plant? A. No.”
The evidence of employees Emerson, and Batehfield and Chief of Police Don Long corroborate Lye in every particular.
Chief of Police Don. Long testified in part as follows:
“Q. From your observations * * * will you state whether Mr. Bancroft’s access to this gate was hindered by the physical location of Mr. Lye? A. Well, I—
“Q. Can you answer the question? A. I would say not. * * *
' “A. * * * I would say he (Bancroft) wasn’t being denied entrance. * ■ *
“A. I mean that he wasn’t — what I am trying to say is that I menu, ho wasn’t being denied entrance to the factory by threats. * * *
“Q. Did he say ‘Please, Mr. Bancroft, don’t go in’? A. He definitely did say, ‘Please don’t go in.’
“Q. You are positive? A. I am very positive.”