EVANS, Circuit Judge.
Should the court give petitioner an enforcement order, Sec. 10(c) of the National Labor Relations Act, 29 U.S.C.A. § 160(c), against respondent, to carry out the Labor Board’s order?
Respondent, an Illinois corporation, is, and since 1892 has been, engaged in the tanning business. It has two plants and employs (did in spring of 1937) about 350 employees, 32 of whom are foremen and sub-foremen.
Its business is so interstate in character as to bring it within the provisions of the Act. Jurisdiction of its labor controversy by the Labor Board is not disputed.
The history of this labor controversy goes back to the fall of 1934 when an unaffiliated union attempted to organize respondent’s employees. Very shortly thereafter a so-called inside organization, known as the Workers’ Co-operative and Benefit Association, came into existence. It became the active and recognized bargaining agent or union for the employees. Respondent paid its representatives for their time in Association activities and otherwise gave support to it. It was clearly outside the pale of the National Labor Re[758]*758lations Act of 1935. The first organization disappeared permanently from the picture after the W. C. B. A. took the stage. In 1935 another organization (U. L. W., Local 79), affiliated with the A. F. of L., began a campaign to organize respondent’s employees. In this campaign, or shortly thereafter, respondent discharged three of its employees who were active unionists and we infer, for their union activities.
In December, 1935, this local union filed charges with the Board against respondent, based upon the discharge of said three employees and based further upon the existence of the W. C. B. A. which was still active in the plant and which U. L. W. Local 79 claimed was formed and dominated by the respondent. A hearing was had by a trial examiner whose report sustained the charges and recommended the disestablishment of W. C. B. A. and the reinstatement of the three employees with back pay. No action was taken upon this report for nine months, or until the U. S. Supreme Court upheld the Act in the Jones & Laughlin Steel Co. case, National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. Immediately thereafter, respondent posted notice in the plant stating that the W. C. B. A. would be dissolved . and that the employees were entirely free to join any union organization or independent labor group. It entered into negotiations with the three discharged employees relative to their reinstatement and back pay. These negotiations culminated in an agreement which provided for their return to their employment and cash compensation while they were idle.
Within a few weeks, and on May 10, 1937, a campaign to form what was known as I. T. U., an allegedly “new inside union,” was launched by five of respondent’s employees. At the same time, another union, a sort of a successor to Local No. 79 (called in the record, the Union), began a drive among the employees for members. Petitioner asserts, and the respondent denies, that the employer took immediate and effective measures to induce its employees to join the I. T. U. and not to join the Union, which turned out to be an affiliate of C. I. O.
That dispute furnished the battleground, and the activity of respondent, the casus belli of the controversy which waged the next few years, between the Union and the Board on one side and respondent and its employees on the other. A study of the charges and the denials, the confessions and avoidances of the employer, engages our attention. The wishes of the employees, save as they have struggled to express themselves, have been lost in the heat of battle, the immediate objective of which was the selection of the bargaining agent, which was to speak for the employees, who are, it seems, dehors the combat, for reasons not quite clear.
Petitioner relies principally upon four acts of the employer, which, it asserts, persuasively point to interference, restraint, and coercion of employees, as well as domination and support of I. T. U., in violation of section 8(1) and (2) of the Act, 29 U.S.C.A. § 158(1,2).
The first of the four acts complained of was the distribution of a pamphlet (or letter) to each of its employees.1 Petition[759]*759er argues this document was prejudicial and improper. Respondent denies that it was objectionable, and says it was written in a spirit of complete sympathy and full cooperation with the spirit of the Labor Act.
The second act of respondent of which complaint is made was the recognition of the I. T. U. and the ignoring of a letter from the Union. The Union in its letter asserted it represented the majority of the workers and demanded the right to bargain for them.
A third act of respondent which evidenced a biased hand, so it is argued, was the payment of forty cents a month as check-off to the I. T. U.
The fourth charge was respondent’s failure to reinstate the aforementioned three Union employees until after the drives by the Union and I. T. U. were completed. Prejudice, it seems, here lay in the fact that the advertisement value of said employees’ return to work was withheld the Union and since anything hurtful to one union must be helpful to its competitor, the act established favoritism of said I. T. U.
A study of the evidence convinces us that the question is typical of many of these cases and may be stated thus — Is there sub[760]*760stantial evidence which supports the finding of the examiner?
The decisions which bind us leave no doubt about our duty to ignore flagrant abuses of judgment or of discretion, by the trier of facts, and to search the record for the sole purpose of. ascertaining whether there exists some evidence which supports the Board’s finding.
With this understanding, we approach our task.
The issue of unfair practices narrows itself to a question of favoring the I. T. U. by the employer.
Petitioner’s attack is centered chiefly upon the above communication which the employer addressed to its employees on May 13, 1937.
Obviously, this, letter must be read in its entirety. We can not, in fairness, pick out a sentence from its context and give it a true and correct meaning.
The only two paragraphs of which complaint is made, are headed “Harmony and Confidence” and “Agitators;” Construed in its entirety we can find nothing in the letter which we can call g threat or an attempted coercion of the employees. • If we ignore the rest of the letter and direct our attention to these two paragraphs, it would still require imagination to read into these three sentences, any veiled intimidation, any threat to the employees.
(2) Respondent received from the I. T. U., notice that it represented a majority of the employees, on June 5, 1937. I. T. U. advised the employer that its membérship included 277 out of the 350 employees of the company. It supported this claim by submitting photostatic copies of signed membership cards of 275 émployees,
The Board found,, however, that the recognition of I. T. U. was evidence of partiality because later, on June 25, the representative of C. I. O. notified the .employer that it claimed to represent the majority of the employees. We quote this letter:
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EVANS, Circuit Judge.
Should the court give petitioner an enforcement order, Sec. 10(c) of the National Labor Relations Act, 29 U.S.C.A. § 160(c), against respondent, to carry out the Labor Board’s order?
Respondent, an Illinois corporation, is, and since 1892 has been, engaged in the tanning business. It has two plants and employs (did in spring of 1937) about 350 employees, 32 of whom are foremen and sub-foremen.
Its business is so interstate in character as to bring it within the provisions of the Act. Jurisdiction of its labor controversy by the Labor Board is not disputed.
The history of this labor controversy goes back to the fall of 1934 when an unaffiliated union attempted to organize respondent’s employees. Very shortly thereafter a so-called inside organization, known as the Workers’ Co-operative and Benefit Association, came into existence. It became the active and recognized bargaining agent or union for the employees. Respondent paid its representatives for their time in Association activities and otherwise gave support to it. It was clearly outside the pale of the National Labor Re[758]*758lations Act of 1935. The first organization disappeared permanently from the picture after the W. C. B. A. took the stage. In 1935 another organization (U. L. W., Local 79), affiliated with the A. F. of L., began a campaign to organize respondent’s employees. In this campaign, or shortly thereafter, respondent discharged three of its employees who were active unionists and we infer, for their union activities.
In December, 1935, this local union filed charges with the Board against respondent, based upon the discharge of said three employees and based further upon the existence of the W. C. B. A. which was still active in the plant and which U. L. W. Local 79 claimed was formed and dominated by the respondent. A hearing was had by a trial examiner whose report sustained the charges and recommended the disestablishment of W. C. B. A. and the reinstatement of the three employees with back pay. No action was taken upon this report for nine months, or until the U. S. Supreme Court upheld the Act in the Jones & Laughlin Steel Co. case, National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. Immediately thereafter, respondent posted notice in the plant stating that the W. C. B. A. would be dissolved . and that the employees were entirely free to join any union organization or independent labor group. It entered into negotiations with the three discharged employees relative to their reinstatement and back pay. These negotiations culminated in an agreement which provided for their return to their employment and cash compensation while they were idle.
Within a few weeks, and on May 10, 1937, a campaign to form what was known as I. T. U., an allegedly “new inside union,” was launched by five of respondent’s employees. At the same time, another union, a sort of a successor to Local No. 79 (called in the record, the Union), began a drive among the employees for members. Petitioner asserts, and the respondent denies, that the employer took immediate and effective measures to induce its employees to join the I. T. U. and not to join the Union, which turned out to be an affiliate of C. I. O.
That dispute furnished the battleground, and the activity of respondent, the casus belli of the controversy which waged the next few years, between the Union and the Board on one side and respondent and its employees on the other. A study of the charges and the denials, the confessions and avoidances of the employer, engages our attention. The wishes of the employees, save as they have struggled to express themselves, have been lost in the heat of battle, the immediate objective of which was the selection of the bargaining agent, which was to speak for the employees, who are, it seems, dehors the combat, for reasons not quite clear.
Petitioner relies principally upon four acts of the employer, which, it asserts, persuasively point to interference, restraint, and coercion of employees, as well as domination and support of I. T. U., in violation of section 8(1) and (2) of the Act, 29 U.S.C.A. § 158(1,2).
The first of the four acts complained of was the distribution of a pamphlet (or letter) to each of its employees.1 Petition[759]*759er argues this document was prejudicial and improper. Respondent denies that it was objectionable, and says it was written in a spirit of complete sympathy and full cooperation with the spirit of the Labor Act.
The second act of respondent of which complaint is made was the recognition of the I. T. U. and the ignoring of a letter from the Union. The Union in its letter asserted it represented the majority of the workers and demanded the right to bargain for them.
A third act of respondent which evidenced a biased hand, so it is argued, was the payment of forty cents a month as check-off to the I. T. U.
The fourth charge was respondent’s failure to reinstate the aforementioned three Union employees until after the drives by the Union and I. T. U. were completed. Prejudice, it seems, here lay in the fact that the advertisement value of said employees’ return to work was withheld the Union and since anything hurtful to one union must be helpful to its competitor, the act established favoritism of said I. T. U.
A study of the evidence convinces us that the question is typical of many of these cases and may be stated thus — Is there sub[760]*760stantial evidence which supports the finding of the examiner?
The decisions which bind us leave no doubt about our duty to ignore flagrant abuses of judgment or of discretion, by the trier of facts, and to search the record for the sole purpose of. ascertaining whether there exists some evidence which supports the Board’s finding.
With this understanding, we approach our task.
The issue of unfair practices narrows itself to a question of favoring the I. T. U. by the employer.
Petitioner’s attack is centered chiefly upon the above communication which the employer addressed to its employees on May 13, 1937.
Obviously, this, letter must be read in its entirety. We can not, in fairness, pick out a sentence from its context and give it a true and correct meaning.
The only two paragraphs of which complaint is made, are headed “Harmony and Confidence” and “Agitators;” Construed in its entirety we can find nothing in the letter which we can call g threat or an attempted coercion of the employees. • If we ignore the rest of the letter and direct our attention to these two paragraphs, it would still require imagination to read into these three sentences, any veiled intimidation, any threat to the employees.
(2) Respondent received from the I. T. U., notice that it represented a majority of the employees, on June 5, 1937. I. T. U. advised the employer that its membérship included 277 out of the 350 employees of the company. It supported this claim by submitting photostatic copies of signed membership cards of 275 émployees,
The Board found,, however, that the recognition of I. T. U. was evidence of partiality because later, on June 25, the representative of C. I. O. notified the .employer that it claimed to represent the majority of the employees. We quote this letter:
“June 25, 1937
“Mr. Leo Elkan, Vice-President Gutmann & Company Inc.
1511 Webster Ave.
Chicago, Illinois.
“Dear Sir:
“On this 25th day of June 1937, the undersigned come as a committee before Gutmann & Company Inc. and do claim that we have a great majority of the production and maintenance employes signed up as members of United Tannery Workers Union of America, affiliated with the Committee for Industrial Organization.
“In behalf and for the United Tannery Workers Union we demand sole collective •bargaining rights for all of the production and maintenance employes of Gutmann & Company Inc. for the purpose of bargaining collectively for all of the production and maintenance employes regarding wages, working hours and other conditions' of employment.
“We demand a written answer from Gutmann & Company Inc. on or before July 8th 1937 stating as to whether the company will obey the Laws of the United States of America as enacted by Congress and upheld by the Supreme Court as the National Labor Relations Act, Sec. 9(a) and (b), said answer to be addressed to: United Tannery Workers Union, Room 106 1550 W. Van Burén Street, Chicago, Illinois.
“In behalf of the Tannery Workers Organizing Committee:
“s/ John Tollick,
John Tollick,
President
s/ Rudolph J. Burkey,
Rudolph J. Burkey,
Secretary.”
The numben of its members was not given; nor was there any offer of proof to show that the Union did represent the majority of the employees.
It is, we think, quite clear from the record that it did not represent a majority of the employees. Passing to one side the of- ■ fensive intimations of the third paragraph of this letter and directing our attention to ' the record which supports or disproves the claims of the two competing’ unions, we must find for the I. T. U. The proof that 275 members out of 350 belonged to that organization necessitates this finding. It in no way conflicts with any finding by the examiner or the Board.,
Respondent was confronted with the duty of recognizing a union which rep- ■ resented a majority of its employees. There could not have been two unions, each of which represented the majority of the employees. The claim of one must necessarily have been false — a bluff. There is no evidence to support the Union’s claim of a majority. There was substantial proof, to-wit, photostatic copies, cards signed by 275 of the company’s members, that I. T. U. represented a majority.
[761]*761(3) The charge that the payment of 40 cents a month, “check-off” to the I. T. U., after its recognition, was a preference, must likewise be rejected. The payment of the check-off is not the real subject of complaint. The controversy is over which union was entitled to the payment of the so-called check-off.
We hold it was to the union which represented a majority of the employees. The Union’s position seems to be, if it represented the majority, the check-off should be paid to it: if some other union represents a majority, a check-off payment to it is unfair and is evidence of partiality.
The failure of the employer to put two employees back to work earlier is the last act of which complaint is made. The Board found that respondent’s postponement of reinstatement of employees, Bur-key and Tollick, from May 31, 1937 to July, 1937 was motivated by a purpose to deprive the C. I. O. of the aid of these organizers until the I. T. U. should have succeeded in winning a majority of its employees and thus hinder the C. I. O. campaign among the employees.
It appears from the record that these employees had been discharged; that the Board ordered their reinstatement; that after the Supreme Court decision upholding the National Labor Relations Act, they were reinstated and they were paid wages for the period between their discharge and the time they returned to work. They were not, however, returned to work until July 17, 1937. The record shows that these men were not prevented from taking as active part in the organization of the union as if they were at work. They were notified of a mass meeting and Burkey was active in breaking up one of the employees’ meetings. At a later time, although not working, he was active at an employees’ meeting. His principal work was to secure or endeavor to secure resignations of employees from the I. T. U.
The company’s explanation of why they did not set Burkey to work was that someone else was working at the time in his place. This testimony is uncontradicted, save by the report of the examiner. On what he based his finding is not pointed out.
The I. T. U. had over 275 members on June 5. The Union was endeavoring from then on, to get cancellations of said members and one of the two discharged employees was engaged at this task. Just how he could have been more effectual if he had been set to work, we can not see, unless it be on the theory that he would be more effective while allegedly working for the respondent although in fact he was working for the Union. It would seem to us that he was freer to legitimately work for the Union while not working for the respondent than he would have been were he working for and paid by the company, although in reality working for the Union on company pay.
It follows from what has been said that the finding of the Board is unsupported by substantial evidence.
The petition for enforcement must be, and is, hereby
Denied.
(Italics used to indicate portions of exhibit printed in bold-face type.)