The opinion
SOPER, Circuit Judge
(dissenting).
It is established by the foregoing opinion of the court that the labor relations between the Appalachian Electric Power Company and its employees were entirely free from fault, on the part of either management or men until the company refused to bargain with agents of the union; and that when the union offered to bargain, it did not actually represent the company’s employees. Moreover, it is found by the court that the Labor Board made two mistakes in handling the proceedings: (1) a mistake of judgment in splitting off Lynch- *223 burg from the company’s Roanoke-Lynch-burg division and establishing the Lynch-burg employees as a separate bargaining unit; and (2) a mistake of fact in holding that the subsequent repudiation of the union by the Lynchburg employees was induced by the company, although there was no substantial evidence to support the finding. The surprising conclusion has nevertheless been, reached that the company was wrong in refusing to bargain, and it is now ordered, notwithstanding the mandatory terms of the statute, to bargain with agents whose authority to represent the employees has been revoked.
The determination of a bargaining unit of employees and the certification of bargaining representatives selected by the employees are matters committed by § 9 of the statute to the Labor Board, and the decision of the Board is not subject to judicial review under § 10 of the statute. However, when the employer is charged with unfair labor practice in failing to bargain with the certified representatives of a bargaining unit, the validity of the certification is subj ect to review by the courts; and if it is found that the Board has acted arbitrarily or capriciously, or has abused its discretion, its action is not binding on the court. Pittsburgh Plate Glass Co. v. National Labor Relations Board, 8 Cir., 113 F.2d 698, 701 , affirmed 313 U.S. 146, 152 , 61 S.Ct. 908 , 85 L.Ed. 1251 ; National Labor Relations Board v. Botany Worsted Mills, 3 Cir., 133 F.2d 876 ; National Labor Relations Board v. Delaware-New Jersey Ferry Co., 3 Cir., 128 F.2d 130 ; American Federation of Labor v. National Labor Relations Board, 308 U.S. 401 , 60 S.Ct. 300 , 84 L.Ed. 347 .
The Board’s reason for establishing Lynchburg as a separate unit, as the opinion of the court points out, was the fact that a vote of all of the employees of the Roanoke-Lynchburg division would probably have been adverse to the union, and on this account Lynchburg was given a separate status. Even here the vote was close — 41 to 40 for the union. The identity of interests of the employees at the two plants was complete, and the mistake in separating them became apparent as soon as wages at Roanoke were raised and the Lynchburg employees promptly repudiated the union, whose status, as their representative, impeded a simultaneous raise at Lynchburg. This history of the Board’s action may properly be considered in determining the propriety of the order of the Board now under review.
The second mistake of the Board was in deciding that the action of the Lynch-burg employees in withdrawing support from the union was due to the interference and coercion of the company. The court has found that there was no substantial evidence to support this finding and that the company was entirely blameless. Nevertheless, the court concludes that in future bargaining the employees must submit to representation by an agent that they desire to repudiate. No precedent in support of this conclusion can be found amongst the numerous cases considered by the courts. * There are many decisions which hold that if an employer influences his employees by unfair labor practices to withdraw support from their chosen representative, he must continue to bargain with them through their representative until, in the determination of the Board, the effect *224 of his illegal acts has been dissipated. ** Obviously these cases have no relevance when the employer is exonerated from all fault.
Even in cases in which the union’s loss of a majority is traceable to wrongful conduct on the part of the employer or the employees, it has been decided that the Board’s order to recognize the union cannot be enforced when it fails to face the realities of the situation. Such an order was reversed in National Labor Relations Board v. Fansteel Corp., 306 U.S. 240 , 59 S.Ct. 490 , 83 L.Ed. 627 , 123 A.L.R. 599 , where the employer indulged in certain anti-union statements and actions and subsequently the union lost its majority through the justifiable discharge of employees who had participated in a sit-down strike; and such an order failed of enforcement in National Labor Relations Board v. Hollywood-Maxwell Co., 9 Cir., 126 F.2d 815 , where the men revoked their choice of the union when it was discovered that the union leader had been bribed by the president of the company. If in such cases the Board’s certificate may be set aside by the courts, on what ground can we refuse to uphold the employees’ right to choose their bargaining agent when no fault can be attributed either to them or to their employer?
Only one answer to this question has been or can be made; and that upon reflection is seen to be totally inadequate in the present situation. It is said that the Board’s certificate must be given vitality for at least a reasonable time and may not be set aside at every transient whim or change of mind on the part of the employees, for otherwise orderly administration of the statute would be impossible. This is of course true; but it is still necessary in every set of circumstances to decide what is a reasonable time. The Board reached its conclusion, that a reasonable time had not elapsed, by finding that the employer had been guilty of wrongful conduct whose evil influence still persisted; but this finding has now gone out of the case through the opinion of the court, and nothing is left to support the Board’s order but an empty and lifeless phrase. To give it effect in this case* will uphold the Board’s power, but it will deny rights to working men which the Board was created to protect.
The only ease upon which the court relies is National Labor Relations Board v. Botany Worsted Mills, 3 Cir., 133 F.2d 876 ; but in case that the employer was found to have acted improperly in suppressing the information which it had received that the employees had withdrawn their support from the union. In this connection the court said (133 F.2d at pages 881, 882); “The Board has within its authority power to ascertain the will of the majority of a given group of employees by election or other means. The election method is chosen, we take it, because secret ballot is regarded as the most effective way of getting an untrammeled expression of the desire of the electorate. Surely it is not to. be defeated of all its effectiveness by a communication, undisclosed to the Board, repudiating, immediately after the election was held, the ballot count. The employees in this case, if they wished to change their minds concerning a bargaining agent, could have asked the Board for another election. If the Board had arbitrarily refused it within a reasonable time then we might have a case where a question could be raised whether it had done its duty under the statute. But those are not the facts of this case. We conclude that there is no merit in Botany’s contention that the Board erred in its order that the employer must bargain with the certified bargaining agent.”
National Labor Relations Board v. P. Lorillard Co., 314 U.S. 512 , 62 S.Ct. 397 , 86 L.Ed. 380 ; International Ass’n of Machinists v. National Labor Relations Board, 311 U.S. 72 , 61 S.Ct. 83 , 85 L.Ed. 50 ; National Labor Relations Board v. Bradford Dyeing Ass’n, 310 U.S. 318 , 60 S.Ct. 918 , 84 L.Ed. 1226 ; National Labor Relations Board v. Franks Bros. Co., 1 Cir., 137 F.2d 989 ; National Labor Relations Board v. Medo Photo Corp., 2 Cir., 135 F.2d 279 ; National Labor Relations Board v. Burke Machine & Tool Co., 6 Cir., 133 F.2d 618 ; National Labor Relations Board v. Clinton E. Hobbs Co., 1 Cir., 132 F.2d 249 ; National Labor Relations Board v. Wm. Tehel Bottling Co., 8 Cir., 129 F.2d 250 ; National Labor Relations Board v. Moltrup Steel Products Corp., 3 Cir., 121 F.2d 612 ; Oughton v. National Labor Relations Board, 3 Cir., 118 F.2d 486 ; National Labor Relations Board v. Chicago Apparatus Co., 7 Cir., 116 F.2d 753 ; Valley Mould & Iron Corp. v. National Labor Relations Board, 7 Cir., 116 F.2d 760 ; Bussmann Mfg. Co. v. National Labor Relations Board, 8 Cir., 111 F.2d 783 ; National Labor Relations Board v. Highland Park Mfg. Co., 4 Cir., 110 F.2d 632 .