c38:No. 4066

NORTHCOTT, Circuit Judge
(dissenting).
I do not agree with the majority of the court in the conclusions stated in the opinion. Disputes had arisen between the company and the union in October, 1933, and March, 1934. These disputes were settled. Again on June 15, 1935, the union declared a strike and on June 20, 1935, the employees were notified positively that their demands would not be met and the company began operation of the plant with employees other than the strikers. While the business was carried on with a greatly depleted force the plant was running, and gradually getting back to a normal condition.
The law under which the National Labor Relations Board acted was passed by the Congress of the United States to become effective July 5, 1935. At the time the law went into effect there was no current labor dispute at the plant of the company and nothing that the law could affect with respect to the already settled dispute between the company and its former employees. This dispute had been finally and definitely settled on June 20.
The employees had made certain demands and gone on a strike. These demands were rejected by the company on June 20 and the plant reopened without the striking employees. When the law became effective there was no dispute that would justify any action on the part of the Labor Board. The finding of the Board to the effect that there was such a dispute has no support in the evidence as shown in the record in the case and we are not bound by such a finding unless there is substantial evidence to support it.
It cannot be the law that strikes will be regarded as settled only when the strikers admit that they are settled or that no action by an employer will terminate a strike no matter how definite or positive such action may have been. Such a holding is unfair to the employer and cannot, in my opinion, be justified. Certainly Congress can never have intended, in the passage of the act, that consideration be given to one party only to a controversy. Both sides should- receive fair consideration.
There was no current labor dispute when- the act became effective and there was nothing to which the jurisdiction of the Board could possibly attach. The order of the Board was without authority and based upon no substantial evidence.

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