c284:No. 9792

STEPHENS, Chief Judge,
dissenting.
I think the order of the Board must be enforced. In my view, there is substantial evidence to support the finding of the Board that the respondents’ housekeeper—supervisor of maid service—threatened discharge of employees, to wit, maids, if they joined a union. It is true that in one part of the housekeeper’s testimony she said that she did not make such a threat. But immediately afterwards, when shown an affidavit the signature upon which she identified as her own, she testified that a statement therein that she had told a bellboy that if the maids joined a union she would “fire” them was true. The Board’s trial examiner found that this was not a mere isolated statement, but that it reflected the attitude of the management of the hotel— this because the hotel manager had stated to representatives of the union who called upon him to request that he bargain collectively with them: “Well, if they [the employees] belong to the Union, why are they working here?” The testimony as to this statement was uncontradicted. The Board adopted the trial examiner’s finding. The conflict within the testimony of the housekeeper was for the Board to resolve as a trial tribunal. National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368 (1941).
I think there is substantial evidence to support the finding of the Board that the respondents’ manager took a poll of the employees to determine whether or not they desired to be represented by the union. At several points in the course of the hearing before the trial examiner, the manager testified that he had taken a vote or questioned the employees as to whether they wanted the union or not. At one point he testified that: “After hearing from the union I questioned each employee as to whether they wanted the union or not, and I am of the impression that they do not want a union.” It is true that on direct examination by counsel for the respondents, the manager testified that in connection with the arrangements for a cross-check he was given the impression by representatives of the Board that he was himself entitled to take a vote of the employees. But on cross-examination by counsel for the Board, the manager, when asked whether a representative of the Board had said anything to him before he signed the crosscheck agreement about an election held by secret ballot as one of the means used by the Board to determine bargaining agents, said that he did not remember that the representative had made any such statement and that the representative gave him no other choice than the cross-check. Moreover, the cross-check agreement, signed by the manager, was introduced in evidence and it shows upon its face that the “cross-check of appropriate Union and Employer records shall be made under the direction and supervision of the Regional Director . . . .” Thus again there is a conflict in the evidence which it was for the Board to resolve as a trial tribunal.
I think there is substantial evidence to support the finding of the Board that the union had been chosen as collective bargaining agent by a majority of the respondents’ employees in the appropriate unit. Authorization cards authenticated by the uncontradicted testimony of a business agent of the union were received in evidence. They show that a majority of the respondents’ employees in the appropriate unit (including maids, bellboys and houseman) designated the union as their representative for collective bargaining. The correctness of the finding of the Board that the respondents refused to bargain collectively with the union is not in dispute.
It is not in dispute that threatening discharge of employees if they join a union, conducting a poll to determine whether or not employees desire to be represented by a union, and refusing to bargain with a duly selected collective bargaining representative are unfair labor practices on the part of an employer.
The foregoing reflects the view which I more briefly expressed in my separate opinion on the original decision of this case. I nevertheless then thought that in view of the two-year lapse of time between the selection of the union as the collective bargaining representative of the employees and the enforcement proceeding, and in view of the likelihood of change of employee personnel during that time, the court should decline to enforce the order of the Board until shown by the Board that the conditions found to have existed as the basis for its order continued to exist. But a petition for rehearing was granted after the original decision of the case, and after hearing the argument and considering the authorities presented at the rehearing, I have concluded that my view—expressed in my separate opinion on the original decision of the case—that the order of the Board should not be enforced on the present record, was incorrect. In Franks Bros. Co. v. National Labor Relations Board, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944), wherein it appeared that a union, subsequent to a wrongful refusal to bargain, had lost its majority among the employees, the Supreme Court held that the Board’s order to bargain must nevertheless be enforced. The Court said :
. . . One of the chief responsibilities of the Board is to direct, such action as will dissipate the unwholesome effects of violations of the Act. See 29 U.S.C. § 160(a) and (c). And, “It is for the Board, not the courts, to determine how the effect of prior unfair labor practices may be expunged.” International Association of Machinists [Tool and Die Makers Lodge No. 35] v. [National] Labor [Relations] Board, 311 U.S. 72, 82 [61 S.Ct. 83, 85 L.Ed. 50].
That determination the Board has made in this case and in similar cases by adopting a form of remedy which requires that an employer bargain exclusively with the particular union which represented a majority of the employees at the time of the wrongful refusal to bargain despite that union’s subsequent failure to retain its majority. The Board might well think that, were it not to adopt this type of remedy, but instead order elections upon every claim that a shift in union membership had occurred during proceedings occasioned by an employer’s wrongful x-efusal to bargain, recalcitrant employers might be able by continued opposition to union membership indefinitely to postpone per-fox-mance of their statutory obligation. . . .
Contrary to petitionex*’s [Franks Bros.] suggestion, this remedy, as embodied in a Board order, does not involve any injustice to employees who may wish to substitute for the particular union some other bargaining agent or arrangement. For a Board order which x-equires an employer to bargain with a designated union is not intended to fix a permanent bargaining relationship without regard to new situations that may develop. See Great Southern Trucking Co. v. [National] Labor [Relations] Board, 139 F.2d 984, 987. But, as the remedy here in question recognizes, a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance tot succeed. See [National] Labor [Relations] Board v. Appalachian [Electric] Power Co., 140 F.2d 217, 220-222; [National] Labor [Relations] Board v. Botany Worsted Mills, 133 F.2d 876, 881-882. After such a reasonable period the Boax'd may, in a proper proceeding and upon a proper showing, take steps in recognition of changed situations which might make appropriate changed bargaining relationships. Id.; see 29 U.S.C. § 159(e). [Italics supplied] [321 U.S. at pages 704-706, 64 S.Ct. at pages 818, 819]
Since in the instant case it is not in dispute that the respondents refused to bargain with the union, and not contended by the respondents that they have complied with the oi’der of the Board since its issuance, but contended only that the order was improper and invalid, the Franks Bros, case is, in my view, clearly controlling upon this court. Other decisions to similar effect are: National Labor Relations Board v. The Andrew Jergens Company, 175 F.2d 130 (C.C.A. 9th 1949); National Labor Relations Board v. Todd Co., 173 F.2d 705 (C.C.A.2d 1949); National Labor Relations Board v. Arnolt Motor Co., 173 F.2d 597 (C.C.A. 7th 1949); National Labor Relations Board v. Norfolk Shipbuilding & Drydock Corp., 172 F.2d 813 (C.C.A. 4th 1949).
It is to be noted, moreover, that in view of 29 U.S.C.A. § 160(f), the respondents could have sought prompt judicial review of the Board’s order had they seen fit to do so. See National Labor Relations Board v. Todd Co., supra. Therein the Court of Appeals for the Second Circuit said:
. . . The company contends that enforcement of the Board’s order should be denied because the Board waited from October 4, 1946 until January 23, 1948, to seek enforcement through a court order. We cannot agree. The company could have sought prompt judicial review of that order, under 29 U.S.C.A. § 160(b). Not having done so, and having failed to comply with that order, it is in no position to complain of any change of circumstances during the period of non-compliance. [] [173 F.2d at page 708]
It may well be that, as suggested by my brethren, this case could have been dealt with more effectively by the Board through conciliation than through an adversary proceeding, i. e., through a complaint charging unfair labor practices. But this, I think, is a matter of administrative policy and not one for judicial direction. Moreover, the fact that the industrial unit is small is, in my view, not a proper basis for refusing to enforce the order of the Board. Employees in a small industrial unit may be even more in need, in order that they may enjoy the rights of free choice of representatives for collective bargaining guaranteed by the National Labor Relations Act, of the protective action of the Board through an unfair labor practice proceeding than employees who, in a large unit, because of their strength of numbers and lesser proximity with supervisors, are less susceptible to interference with these rights. In any event, the rules for review and enforcement of the Board’s orders are the same whether the case be of “minor” or “major” character.
I think the case cannot properly be disposed of adversely to the Board upon the ground that commerce as defined in the Act is not affected as required by the Act for jurisdictional purposes. Under 29 U. S.C.A. § 152(6), commerce, so far as relevant to this case, means “trade . within the District of Columbia . . and under Section 152(7) the term “affecting commerce” is defined to mean those acts which burden the free flow of commerce, and those acts which tend to lead to labor disputes which burden the free flow of commerce. It was stipulated before the trial examiner that during the calendar year 1945 the respondents’ gross income exceeded $75,000, and that their purchases exceeded $25,000. The trial examiner so found and the Board adopted the finding. In view of this record I think it must be said that commerce within the District of Columbia is involved. And the finding of the trial examiner, adopted by the Board, that the activities of respondents “have a close, intimate, and substantial relation to trade, traffic and commerce within the District of Columbia, and tend to lead to labor disputes burdening and obstructing such commerce and the free flow of commerce,” has not been contested at any stage of the case.
It is true that the Board held in the White Sulphur Springs Company case, No. 9-RC-392 (1949), that a cessation of seemingly substantial expenditures and activities in interstate commerce would have such a remote and indirect effect upon such commerce that to assert jurisdiction would not effectuate the policies of the Act. But it does not follow that the Board would rule that the cessation of such expenditures and activities in local commerce would have such a remote and indirect effect upon that commerce that to assert jurisdiction would not effectuate the policies of the Act in a situation where the Board has authority to deal with acts in and affecting local commerce, as in the District of Columbia and the Territories. The statement of the Board in the White Sulphur Springs Company case that it has been its administrative policy adhered to since 1935 not to assert jurisdiction over the hotel industry overlooks the exercise of jurisdiction by the Board in the instant case. Moreover, I think the Board cannot properly, under the Act, have a general policy which would forbid the exercise of its jurisdiction in a particular case where, as in the instant case, commerce is involved and where, as found in the instant case, the activities of the employer have a substantial relation to commerce and tend to lead to labor disputes burdening and obstructing such commerce and the free flow thereof.
. A cross-check is a procedure carried out by the Board under an agreement between a union and an employer for the purpose of ascertaining whether or not signature cards, offered by the union as evidencing a majority vote of employees selecting it as a bargaining agent, are in truth cards executed by bona fide employees of the industrial unit in question.
. The reference to Section 160(b) of the statute is in error. The correct reference is Section 160(f)).

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