The opinion
SOPER, Circuit Judge
(dissenting).
The petition of the Great Southern Trucking Company, filed with the Labor Board on March 3, 1943, contained a request not unreasonable on its face, that the Board redetermine the wishes of the company’s employees with respect to their bargaining representative. The company had complied with the mandate of this court of May 14, 1942 (Great Southern Trucking Co. v. National Labor Relations Board, 4 Cir., 127 F.2d 180 ), in all respects but one. It had posted the required notice; it had offered to each of 40 union employees, whose rights were determined by the prior decision, reinstatement and had paid them back wages in the sum of $15,641.03; but only 7 of them accepted the offer of reinstatement and these 7, for good and lawful reasons, have since left, so that none of the 40 was in the company’s employ when the petition for redetermination was filed.
The 40 men constituted a majority of the bargaining unit at the plant and hence it seemed to the body of employees who remained that the union was no longer entitled to speak for them. Consequently 53 of them filed a petition with the Board on January 22, 1943 in which they stated that they did not wish the union to represent them and asked the Board to give them an opportunity to indicate their preference in an election.
This circumstance caused the company to doubt whether it should bargain with the union, for such action would seem to deny to the men the right accorded to them by the statute to choose their bargaining agent. Accordingly, on February 9, 1943, when for the first time nine months after the issuance of the mandate of this court the union offered to bargain, the company declined. It was the company’s right, since it was in doubt, to ask the Labor Board for guidance because § 9 of the statute confides to that body the power and duty in case of controversy to certify the selected bargaining agent of employees. The Board, however, refused its assistance. It summarily dismissed the petition by an order of March 20, 1943, without holding a hearing or making findings of fact or filing an opinion. On April 19, 1943, the attorney of the company, by letter addressed to the clerk of this court, sought information as to the propriety of applying to the court for a declaratory judgment defining its rights and duties in the premises, but the answer of the clerk gave no encouragement to this suggestion. Finally, the petition of the Board in the contempt proceeding was filed on September 27, 1943.
These statements of fact are necessarily taken from the pleadings in the case, for the court took no testimony; but the allegations are not in dispute and they do not *988 seem to justify the stigma of intentional wrongdoing or defiance of the court, but rather a bona fide search on the part of the company for guidance in a difficult situation. It is significant that the Board itself asks no punitive action at this time but merely requires an order again directing the company to obey the court’s mandate.
The adjudication of contempt that has been announced is predicated upon the statement that the Board denied the company’s request for redetermination on the ground that the company had at no time since the entry of our decree bargained with the union and that the effects of the company’s unfair labor practices had therefore never been dissipated. There is no justification in the record for this statement. The Board gave no reasons and stated no grounds for the dismissal of the company’s petition; nor is the loss of union support a necessary consequence in every case of failure on the part of the employer to bargain with a union. So far as we know, the decision of the Board may have been issued in accordance with its general attitude that its certification of a bargaining representative must be respected until the Board withdraws it. Such a certification is not reviewable by the court unless the court is asked to enforce an order of the Board based thereon, whereupon it becomes proper to inquire whether the Board’s action has been arbitrary or capricious. Pittsburg Plate Glass Co. v. National Labor Relations Board, 8 Cir., 113 F.2d 698 , affirmed 313 U.S. 146, 152 , 61 S.Ct. 908 , 85 L.Ed. 1251 ; American Federation of Labor v. National Labor Relations Board, 308 U.S. 401 , 60 S.Ct. 300 , 84 L.Ed. 347 ; National Labor Relations Board v. Botany Worsted Mills, 3 Cir., 133 F.2d 876 .
This rule should be applied not only in enforcement cases but also in contempt proceedings when a petition for redetermination, based upon an alleged change of conditions subsequent to the court’s mandate, is filed with the Board. The court has no power to ascertain bargaining agents for the workers, but the Board has the power and should not arbitrarily refuse-to exercise it when a proper' showing is made. In the present instance, a prima facie case is alleged. It is conceivable, of course, that the union’s lack of majority is due to the previous wrongdoing of the company; but, on the other hand, it is not improbable that the union’s lack is due to-the voluntary absence of active union members, and that the present employees, although fully conscious through the prior proceedings in this case that their right to join the union will be protected by the Board and by this court, sincerely and spontaneously prefer to have no union at all. To resolve this question the Board should be required to make findings of fact which will serve as a guide to the court and enable it to act with certainty rather than upon conjecture in reaching" its conclusions upon the petition for contempt.
The proper action for the court to take under the circumstances is to remand the case to the Board to find the facts. Such was the procedure taken by the court in. an analogous situation in National Labor Relations Board v. Karp Metal Products Co., 2 Cir., 134 F.2d 954 , where an order of the Board of July 8, 1942, was based on-a finding that on June 3, 1941, the union: represented a majority of employees and a petition for redetermination was filed ten months later, alleging that the union had lost its majority. The Board refused to consider the petition and the court issued an order enforcing all of the provisions of the Board’s order except that-directing the company to bargain with the union, and as to this remanded the case to the Board to ascertain whether the-union represented a majority at the time of the Board’s hearing. The court saidr “It is not our province to decide how far the respondent’s earlier unfair trade practices continue to vitiate any choice of a representative by its employees; that is for the Board. Nevertheless, the respondent is entitled to the Board’s judgment on that issue and on this record it has been refused any hearing whatever.”