STEPHENS, Circuit Judge.
This case comes before the Court upon petition by the National Labor Relations Board for the enforcement of an order issued by it against respondent, and upon petition by a labor union, alleged to be adversely affected by said order, to set the same aside. The proceedings have been consolidated for hearing and determination.
The International Association of Machinists, affiliated with the American Federation of Labor, hereinafter called the A. F. of L., will be called the I. A- M.; Production Workers Local 1518 will be called the Union; and International Union, United Automobile Workers of America, Local No. 76, affiliated with the Committee [now Congress] for Industrial Organization, will be called the U. A. W. The employer will be called the respondent.
Respondent is engaged in the manufacture, sale and distribution of shims and oil [655]*655seals or retainers. It advertises on a nation-wide basis and sells shims in more than half of the States, and retainers in all. Much of the raw material entering into the products of respondent is procured from States other than California where respondent’s factory is located. All of respondent’s competitors are located outside of California.
The employees in the respondent’s tool and die department have always been members of certain I. A. M. locals which are not involved in this proceeding. There had never been any kind of agreement between the I. A. M. and the respondent, but it had made it a practice to hire its tool and die workers from the I. A. M. and pay them the prevailing union wages.
Some time in August, 1936, about 17 of respondent’s production employees attended a meeting of I. A. M. Local 284, and signed applications to join the same. These applications were rejected because Local 284 had been instructed by the I. A. M. that it could not admit to membership the production workers since they were not skilled machinists. A few days before February 21, 1937, the U. A. W. began organization. Prior to February 27, 1937, the U. A. W. and its supporters held two preliminary organizational meetings, distributed leaflets, and secured employee applications both at the plant and at the homes of the employees. Respondent knew of the U. A. W.’s efforts to organize its employees. A third U. A. W. meeting was set for February 28, 1937, but prior to that time on February 27, 1937 the respondent shut down its plant without warning to its employees. On the arrival of the employees at the plant for work on February 27, 1937, they found it closed and guarded by city police. All foremen were admitted save one, who was a member of the U. A. W.
On finding the plant closed, Frank Slaby, president of the U. A. W., gained admittance to the plant in order to see its manager, but was ejected by the police before meeting the manager.
On March 1,1937 the U. A. W. submitted to respondent a form of contract containing a provision that the U. A. W. be recognized as the sole bargaining agent of the employees, and requested respondent to bargain with it. Respondent’s manager was informed of the receipt of this contract by telephone on Monday morning, March 1, 1937, while at the office of his attorney. He did not at any time communicate with the U. A. W. or in any manner afford them an opportunity to substantiate their claims as sole bargaining agents of the employees. Instead, on the afternoon of March 1, 1937, he signed a contract with the I. A. M., whose officials had that day presented to respondent a letter which stated that a majority of the employees had been affiliated with the I. A. M., and requested a conference. The I. A. M. contract provided that the respondent was to re-open its plant, that the I. A. M. members were to return to work and that the pending negotiations were to continue, the results thereof to be retroactive to the time of resumption of full operations.
The U. A. W. had begun picketing on March 1, 1937. Respondent reopened its plant on March 8, 1937, and a large number of employees returned to work with a police escort. During the succeeding weeks, more employees returned, but the plant did not commence actual operations until March 15, 1937. Two weeks later the respondent began to hire new employees to take the place of those who had not returned.
On April 19, 1937, the respondent entered into a contract with the Union, providing for a closed shop, and wages, hours and other conditions of employment. The contract was for the period of a year, to be renewed from year to year unless terminated by either party by notice at least thirty days prior to the annual expiration date.
The U. A. W. filed its charge with the Board on March 4, 1937. On May 3, 1937, the Board issued its complaint alleging that respondent had engaged in and was engaging in unfair labor practices defined in § 8 (1), (3) and (5) of the act. For convenient reference we quote certain provisions of the act.
“Sec. 7 [29 U.S.C.A. § 157]. Employees shall have the right to self-organization, .to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.
“Sec. 8 [29 U.S.C.A. § 158]. It shall be an unfair labor practice for an employer—
[656]*656“(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [157]. * * *
“3. By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act [chapter] * * * shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act [chapter] as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 9(a) [159 (a) of this title], in the appropriate collective bargaining unit covered by such agreement when made. * * *
“(5) To refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a) [159(a) of this title]..
“Sec. 9 [29 U.S.C.A. § 159] (a). Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. * * *
“(b) The Board shall decide in each case whether, in order to insure the employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act [chapter], the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.
After making certain findings, which will be referred to below, in part, the Board concluded that the allegations of th,e complaint were proven with respect to unfair labor practices. It mqde an order on February 18, 1938, requiring respondent (1) to cease and desist from (a) interfering with, restraining or coercing its employees in the exercise of the rights guaranteed in § 7 of the Act; (b) maintaining surveillance of the meetings and activities of the U. A. W; or any other labor organization of its employees; (c) discouraging membership in U. A. W. or encouraging membership in the Union or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure; (d) refusing to reinstate 56 listed employees or requiring as 4 condition to their reinstatement, membership in the Union; (e) giving effect to its contracts with the Union; (f) recognizing the Union as the exclusive representative of its employees; (g) refusing to bargain collectively with the U. A. W. as the exclusive representative of its production, maintenance, and shipping employees, exclusive of supervisory employees, foremen, regular clerical employees, and employees in the tool and die department, in respect of rates of pay, wages, hours and other conditions of employment. The order also required respondent (2) to take the following affirmative action: (a) offer the 56 employees reinstatement; (b) make such employees whole for loss of pay; (c) inform such employees that tjiey are free to join the U. A. W.; (d) upon request, bargain collectively with U. A. W. as the exclusive representative of its production, maintenance, and shipping employees; (e) post notices that it would cease and desist as aforesaid, and that its employees were free to join or assist any labor organization.
Leaving for subsequent discussion provision 1 (a) of the order, we first consider provision 1 (b) thereof in the light of respondent’s contentions.
Provision 1 (b) of the order commands respondent to cease and desist from “maintaining surveillance of the meetings and activities of International Union, United Automobile Workers of America, Local No. 76, or any other labor organization of its employees”. The Board has found that on the occasion of the first organization meeting of the U. A. W., D. O. Johnston, secretary-treasurer of the respondent and its plant manager, drove past the U. A. W. headquarters in his car and, returning, parked in front of it, pencil and paper in hand; that on request of the president of the Local to give up the paper, upon which it was assumed he had been taking down names, he refused to do so; that upon the request of the president of the Local he left; that L. A. Johns tor. who controls the policy and activity of respondent, testified that he had requested
[657]*657his brother not to make this visit since it might be “misconstrued” and that he later “criticized” him for so doing. Nothing further appears in the findings to form a basis for provision 1 (b) of the order. The Board did not find that the recited activity was a violation of any of the provisions of section 8 of the Act. Though surveillance may constitute an unfair labor practice (National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 270, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307; National Labor Relations Board v. Freuhauf Trailer Co., 301 U.S. 49, 57 S.Ct. 642, 630, 81 L.Ed. 918, 108 A.L.R. 1352; Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 230, 59 S.Ct. 206, 83 L.Ed. 126) it is not such unless it interferes with, restrains or coerces respondent’s employees in the exercise of the rights guaranteed in section 7 [section 8(1)], or dominates or interferes with a labor organization as prohibited by section 8(2). There being no finding to the effect that the activity of D. O. Johnston did any of these things and the Board’s findings not requiring such an inference, we cannot enforce provision 1 (b) of the order on the record before us. In such situation we are empowered to remand to the Board for the purpose of supplying the essential finding (Ford Motor Co. v. N. L. R. B, 305 U.S. 364, 373, 59 S.Ct. 301, 83 L.Ed. 221) but we are not required so to do. As said in the last cited case, 305 U.S. at page 373, 59 S.Ct. at page 307: “The jurisdiction to review the orders of the Labor Relations Board is vested in a court with equity powers, and while the court must act within the bounds of the statute and without intruding upon the administrative province, it may adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action. The purpose of the judicial review is consonant with that of the administrative proceeding itself, — to secure a just result with a minimum of technical requirements.” (Emphasis added.) And as said in Federal Trade Commission v. Curtis Co., 260 U. S. 568, 580, 43 S.Ct. 210, 213, 67 L.Ed. 408, where the Supreme Court was governed as to its judicial review by a statute similar to that controlling us: “If there be substantial evidence relating to such facts [facts not reported by the Commission] from which different conclusions reasonably may be drawn, the matter may be and ordinarily, we think, should be remanded to the commission — the primary fact-finding body- — with direction to make additional findings, but if from all the circumstances it clearly appears, that in the interest of justice the controversy should be decided without further delay, the court has full power under the statute so to do.” (Emphasis added.)
In the present case we believe that equitable principles require us without further delay to refuse to enforce provision 1 (b) of the order. In view of the fact (as will appear later) that the Board has elsewhere [provision 1 (a)] validly ordered in general terms the cessation of any activity interfering with the exercise by the employees of the rights guaranteed them by section 7, no great significance attaches to our refusal to command enforcement of provision 1 (b).
Provision 1 (c) of the order requires respondent to cease and desist from encouraging and discouraging membership in any labor organization of its employees “by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment”. This order is based on the finding that: “The respondent, by shutting down its plant on February 27, 1937, and locking out its employees, discriminated against its employees with respect to hire and tenure of employment for the purpose of discouraging membership in the U. A. W., and that by such act, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.” We think this finding is supported by the evidence.
Respondent contends that its “motive or motives in closing its plant are determinative of whether the shut-down was or was not a lock-out” and argues that the plant was shut down not to discourage membership in the U. A. W. but “first, because the plant was in a turmoil and employees were sacrificing the efficient operation of the plant while they argued over union matters, and Manager Johnston decided that the plant should be temporarily closed until the situation was clarified; and, second, because Manager Johnston had a genuine fear of a sit-down strike”. The Board was not required to accept either of these explanations. While, as found by the Board, organization [658]*658was discussed extensively by the employees at the plant and' in part during working hours, no attempt was ever made to curb such conversation,' and no notice was ever given to the employees that efficiency had dropped and must be restored. It would seem strongly probable that if the “turmoil” had seriously hampered efficiency, steps would have been taken to quiet it prior to the taking of such an extreme measure as shutting down the plant. Moreover, the evidence does not bear out respondent’s contention that plant efficiency dropped sharply in the period just prior to the shut-down. In all four of the departments covered by the evidence a chart submitted by respondent shows an increase in production for the two-week period ending February 28, over that for the preceding two-week period. Respondent urges, however, that in the retainer packing and retainer assembling departments (the two departments claimed to have been “hardest hit”) the index for the average amount of work done per hour dropped from 62 to 52, and from 61 to 45 respectively from February 24 to 26. But this statistical conclusion is seen to be misleading when it is noted that in the retainer packing department for the five days preceding February 24, 1937, the average was 56, and the average for the period from February 24, 1937, to February 26, 1937, was 57. In the retainer assembling department, the average for the five day period was 53, as was the average of the period from February 24, 1937 to February 26, 1937.
With respect to the fear of a “sit-down” strike, L. A. Johnston testified that a former employee told him prior to the “shutdown” that a strike of the “sit-down” variety was imminent. This former employee (who had been convicted of commission of a felony) denied this story. Johnston stated that he believed the employee because he knew that “sit-down” strikes were prevalent at the time and because he noticed the unrest in the plant, and because he was told by his attorney that the U. A. W. was led by radicals. The Board declined to believe that Johnston put credence in the ex-employee’s statement because at the time it was supposed to have been made “organization of the U. A. W. had just begun” and because. respondent’s own witnesses “testified that no one had any intimation of an inipending strike before Johnston told them of it on February 26”. Of course we cannot question the Board’s inferences from this state of the evidence.
Respondent’s offered explanations for the shut-down thus disposed of, we think the Board was justified in view Of the background evidence which showed the employer’s hostility to the U. A. W. and of the evidence showing favoritism to the Union as against the U. A. W. subsequent to the “shut-down”, in drawing the inference that the “shut-down” was for the purpose of interfering with the exercise by the employees of their right to self-organization and that such act had such an effect. And since the “shut-down” was a “mass discharge” as found by the Board and as shown by the fact that respondent sent employment severance statements and checks with a special endorsement indicating a discharge to the employees who had worn U. A. W. buttons, the Board had evidence upon which it could make a specific order, as it did do, requiring desistance from “discharges” for such purpose.
The portion of provision 1 (c) of the order which requires respondent to cease discouraging membership in any labor organization by “refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment” also finds support in the findings. The Board found that upon the reopening of the plant on March 8, 1937, certain of the employees were requested by respondent to return to work; that it was “made clear to the employees that a return to work meant a transfer of allegiance from one union to the other”; “that all of the employees understood quite clearly that returning to work meant'joining the I. A. M”; that “willingness to reinstate employees only on the conditions above described, conditions which the respondent had no right to attach, is equivalent to absolute refusal to reinstate”. These findings are supported by evidence. The Board has not found in terms that the refusal to reinstate discouraged or encouraged membership in a labor organization of respondent’s employees. It is suggested that' that fact is •essential because there may lawfully be a refusal to reinstate. While there may lawfully be a refusal to reinstate employees as for lack of skill or ability, any discrimination in reinstating employees because [659]*659of union activity is prohibited by § 8. National Labor Board v. Mackay Co., 304 U. S. 333, 345-347, 58 S.Ct. 904, 82 L.Ed. 1381. The inescapable inference from the findings made by the Board is that the refusals to reinstate in this instance were discriminatory. Neither the findings nor evidence will support any other inference. Consequently, there is no occasion to perform the useless act of sending the case back to the Board to make such a specific finding. This provision of the order should be enforced. Ford Motor Co. v. N. L. R. B., supra, 305 U.S. at page 373, 59 S.Ct. at page 301; Federal Trade Comm, v. Curtis Co., supra, 260 U.S. at page 580, 43 S.Ct. at page 212, 67 L.Ed. 408.
Provision 1 (d) of the order requiring respondent to cease and desist “refusing to reinstate any of the employees listed in Appendix A”, though cast in negative form, we consider to be in effect an affirmative order to reinstate employees. As such it is duplicated by provision 2 (a) of the order which in affirmative language directs respondent to offer unconditional employment to the same employees. Consequently, our discussion in connection with provision 2 (a) of the order presently to follow is equally applicable to this provision.
Provisions 1 (e), 1 (f) and 1 (g) of the order will be considered together. Provision 1 (e) orders respondent to cease “giving effect to its contracts with International Association of Machinists or Production Workers Local 1518”. Provision 1 (f) of the order requires respondent to cease “recognizing Production Workers Local 1518 as the exclusive representative of its employees”. Provision 1 (g) of the order requires respondent to cease “refusing to bargain collectively with [U. A. W.] as the exclusive representative of” a defined unit of its employees.
The Board found “that the production, maintenance and shipping employees of the respondent, exclusive of supervisory employees, foremen, regular clerical employees, and employees in the tool and die department constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act”. No contention is made that this finding is unsupported by the evidence. The Board further found “that on February 27 and on March 1, 1937, the U. A. W. had been freely designated as the bargaining agent of a majority of the employees in a unit appropriate for the purposes of collective bargaining”. Also the Board made a “Conclusion of Law”, which we think is in effect a finding of ultimate fact, that, “[U, A. W.] was on February 27 [1937], and at all times thereafter has been, the exclusive representative [of all the employees in the defined appropriate bargaining unit] for the purpose of collective bargaining within the meaning of section 9 (a) of the Act”.
The Board has also found that on March 1, 1937, respondent entered into a contract with the I. A. M. which was treated by the parties, and was in effect a closed-shop contract. The Board found that this contract was but preliminary to a final closed-shop contract between the same parties which was signed on April 19, 1937. It is also found that the U. A. W. made a request to bargain with respondent by submitting a proposed contract which was received by respondent on the morning of March 1, 1937. This contract made no restrictions on the number of employees which it was to cover, and in fact included a provision expressly covering tool and die workers. The Board found that at this time the U. A. W. represented not only a majority of the workers in the appropriate unit, but a majority of the workers in the plant.
As to the entry into the contracts of March 1 and April 19, 1937, ‘ the Board found that: “The respondent thus signed a contract with a union which did not represent, and whicji it could not have thought represented, more than a handful of its employees, if any, and at the same time turned its back on a union which represented a majority of its employees in a unit appropriate for the purposes of collective bargaining, as well as a majority of the employees in any unit which the respondent could have considered appropriate. We do not find that the respondent, in the absence of more proof of the U. A. W. majority than was here given, could not have asked for that proof before entering into negotiations. But we do find that by hastily entering into a contract with the I. A. M. which it at all times treated as a closed-shop contract, it announced its firm intention to have nothing to do with the U. A. W. and preclud[660]*660ed all further attempts on the part of that union to secure the recognition to which it was entitled. Such conduct constituted a refusal to bargain with the duly designated representative of its employees in an appropriate unit, and was an unfair labor practice within the meaning of the Act.”
It is evident that if the finding that U. A. W. at all times was the representative of the appropriate bargaining unit is supported by the evidence, the provisions of the order [1 (e) and 1 (f)] are justified, since in such case the closed-shop contracts with I. A. M. and the Union could not have been entered into with an authorized representative as defined by section 9 (a) of the Act and- consequently their making was an unfair labor practice as being a discrimination in condition of employment discouraging membership in a labor union which is prohibited by section 8 (3) of the Act. We think the evidence supports the finding.
The .appropriate unit consisted of 96 employees, 49 of which would constitute a majority. The respondent concedes that 47 of them had freely designated U. A. W. as the bargaining agent by March 1, when the agreement between respondent and the I. A. M. was executed. The Board found that 65 of these employees had, at such time, designated U. A. W. As to 9 of the 18 employees as to whom question is raised, respondent contends that there is no evidence that they designated the U. A. W. as their bargaining agent. The contention rests on the argument that signatures on cards which were applications for membership in the U. A. W. were not properly identified. Without detailing the testimony, it is sufficient to say that the Board could properly infer from a union official’s testimony that such persons had designated the U. A. W. as their bargaining agent. Thus without regard to the remaining 9 employees, as to whose representation there is dispute on other grounds, it appears that on March 1, 1937, the U. A. W. was the authorized representative of at least 56 employees in the appropriate unit. The Board found that one of these employees [Fred Turner] subsequently gained substantially equivalent employment. As to the remainder there is no contention made either that they lost the right to claim inclusion in the appropriate unit or that they rescinded their designation of the U. A. W. as their bargaining agent. Consequently, the familiar rule that a state of affairs once shown to exist is presumed to continue to exist until the contrary is shown is applicable. Thus the finding of the Board that the U. A. W. was at all times the exclusive bargaining representative of the appropriate unit is supported by the evidence. Accordingly provisions 1 (e) and 1 (f) of the order must be enforced.
Likewise provision 1 (g) of the order, requiring respondent to cease and desist from refusing to bargain collectively with U. A. W. as the exclusive representative of the appropriate unit of its employees is proper. It is argued that this provision is unwarranted because since the U. A. W. sought on February 27, 1937 to bargain for all of the employees instead of the appropriate unit there has never been a commission of the unfair labor practice prohibited by section 8(5) of the Act. With this contention we cannot agree. In the circumstances the entry into the closed-shop contract with the I. A. M. by the respondent warranted the Board in finding that the respondent thereby “precluded all further attempts on the part of [the U. A. W.] to secure the recognition to which it was entitled” and that “such conduct constituted a refusal to bargain with the duly designated representative of its employees in an appropriate unit”.
In a recent case this Court was presented with and disposed of an argument identical with that here made. We there said: “Respondent made no objection to the contract on the basis of the propriety of the unit for which it was being presented. The Board was entitled to draw the inference that respondent’s refusal to negotiate with the Union was motivated,' not by doubt as to the appropriate unit, but by a rejection of the collective bargaining principle. National Labor Relations Board v. Remington Rand, 2 Cir., 94 F.2d 862, 868.” National Labor Relations Board v. Biles Coleman L. Co., 9 Cir., 98 F.2d 18, 22.
Provision 1 (a) of the order commands respondent to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in § 7, which activity is made an unfair labor practice by § 8 (1).
In our opinion this order as framed is a proper one. When the Board has made a finding, supported by substantial evidence, that an act has been done which [661]*661is prohibited as an unfair labor practice, the fair intent of the statute is that the Board is warranted in ordering desistance from such an unfair labor practice generally and is not required to limit its order so as to compel cessation only of the particular and limited activity found to have taken place.
Section 10 (a) of the Act, 29 U.S.C. A. § 160 (a), empowers the Board “to prevent any person from engaging in any unfair labor practice (listed in section 8 [158]) affecting commerce”. Subsection (b) of section 10 provides for the filing of a complaint “Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice”. Subsection (c) provides that if the Board be of the opinion that any person is engaging in “stick unfair labor practice” it shall make its order requiring such person to cease and desist from “suck unfair labor practice”. (Emphasis supplied.) It thus appears that the Board is specifically authorized to order parties to cease and desist from the unfair labor practices “(listed in section 8)”. Had Congress intended that the Board should be limited to requiring desistance from the particular mode found by the Board to have been followed in the past by the employer to accomplish a particular unfair labor practice no doubt it would have been provided that the Board should order desistance from the act by which the unfair labor practice was perpetrated. It is probable that Congress refrained from such limitation of the Board’s authority as is here suggested in consideration of the evident fact that the methods by which a given unfair labor practice may be committed are so varied and numerous that the protection granted to employees by the Act would be largely ineffectual if each variation on the same theme necessitated a separate hearing and a specific prohibitory order.
That the Act is designedly framed to grant the Board power to restrain commission of the enumerated unfair labor practices rather than the method by which in the particular case they may be carried on is shown, we believe, by a comparison of section 10 of the Act with the statutory provisions in relation to the orders of the Federal Trade Commission (§ 5, 38 Stat. 719, as amended, 15 U.S.C.A. § 45). In most respects section 10 closely follows section 5 of the Federal Trade Commission Act (see, Ford Motor Co. v. Labor Board, 305 U.S. 364, 373, 59 S.Ct. 301, 83 L.Ed. 221) but whereas the Labor Act empowers the Board to enjoin enumerated and defined “unfair labor practices” the Trade Act only empowers the Commission to require desistance from the use of the “method of competition” which has been charged and which in the opinion of the Commission is “unfair”. Had Congress not intended to allow for the issuance of the broader order by the Board, it seems reasonable to suppose that it would have followed the Trade Act in this respect, as it did in other closely related provisions.
We think it significant that without discussion the Supreme Court has at least twice given its specific approval to similarly worded orders. National Labor Relations Board v. Fansteel Metallurgical Corp., February 27, 1939, 59 S.Ct. 490, 83 L.Ed. 627; Consolidated Edison Co. v. Labor Board, 305 U.S. 197, note 8, at page 231, 59 S.Ct. 206, 83 L.Ed. 126.
Since, as we have seen above, the Board made findings, supported by evidence, that respondent had committed acts falling under the prohibition of section 8 (1) of the Act, the Board was warranted in ordering it to cease and desist from in any manner engaging in the unfair labor practice defined by that subsection in addition to specifically ordering desistance from the acts by which the practice was accomplished.
Provision 2 of the order requires respondent to take certain affirmative action to effectuate the purposes of the Act. Provisions 2 (a) and 2 (b) order the reinstatement of the employees found to have been discriminatorily discharged, with back pay from February 27, 1937 to the date of offer of reinstatement less any amounts earned during that period. Respondent argues against the enforcement of this order that it is invalid because there is no “express finding that each and all of the employees ordered reinstated with back pay ‘had not found regular and substantially equivalent employment’ ”. It is claimed that the lack of such finding invalidates the order because section 10 (c) authorizes the reinstatement only of “employees” who are elsewhere defined as those “who has not obtained any other regular and substantially equivalent employment”. [§ 2 (3), 29 U.S.C.A. § 152 (3)]-
[662]*662We agree that only those who are “employees" within the Act definition at the time of the making of the Board’s order may be ordered reinstated. National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 1938, 99 F.2d 533, 537. But that is not to say that an order to reinstate “employees" unaccompanied by specific finding that they have not gained substantially equivalent employment is for that reason invalid. National Labor Relations Board v. Carlisle Lumber Co., supra, 99 F.2d at page 542. Such finding though helpful to the Court is not essential' to the validity of the order.
In the present case the Board has ordered reinstated 56' named individuals who are designated as “employees”. Since the Board can only order individuals defined by the Act as “employees” to be reinstated, an order directing reinstatement of “employees” must be understood, in the absence of a contrary finding, as applicable only to those who are such within the Act’s definition. Moreover, the Board after listing the “employees” went on to find that: “Two of the employees above named, Joseph Paul Kreig and Fred G. Turner, have obtained regular and substantially equivalent employment elsewhere since the date of the lock-out. As to four other employees, some question was raised as to whether they had procured such employment. [The Board found that the latter individuals had not obtained such employment.]” This finding is tantamount to a finding that the other individuals listed had not at the date of the order obtained other substantially equivalent employment. Particularly is this so in view of the fact that of the 50 persons ordered reinstated as to whom the Board made no express finding, the evidence shows that they had earned nothing or insignificant amounts subsequent to their discharge. Though these individuals were listed in the Intermediate Report and reinstatement was recommended as to them [as well as to the four employees as to whorn the Board has specifically found no substantially equivalent employment was obtained] respondent in its exceptions to the Intermediate Report did not raise the point it now presses upon us. The Act provides that: “No objection that has not been urged before the Board, its member, agent or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be exr cused because of extraordinary circumstances.” Section 10 (e).
We grant enforcement of the reinstatement and back pay orders as to 54 of the listed employees. These provisions of the order will not be enforced, however, as to Joseph Paul Kreig and Fred G. Turner, who have been found to have obtained substantially equivalent employment prior to the making of the order of the Board. We do not believe that we may, as urged by the Board, enforce only the back pay provision of the order as to these individuals, since the provisions as to reinstatement and back pay are, as framed, inseparable. National Labor Relations Board v. Carlisle Lumber Co., supra, 99 F.2d at page 543.
Respondent has raised a special question as to the reinstatement of Lucille Bronson, it being claimed that at the time of the making of the order she had returned to work for respondent. The evidence, however, discloses that after the ■“mass discharge” she did return to work but that she left after one day, upon learning that she would be required to abandon her U. A. W. membership because of the I. A, M. closed-shop. Thus the order is applicable to her as to the other discharged employees.
Provisions 2 (c), 2 (d), 2 (e) and 2 (f) of the order raise no special problem. Provision 2 (d) requiring respondent to bargain collectively with U. A. W. as exclusive representative of the appropriate unit is warranted as a direction of affirmative action to effectuate the purposes of the Act, since as seen above under the discussion of provision 1 (g) of the order, U. A. W. has been designated by the majority of the employees in the unit as their exclusive representative for the purpose of collective bargaining. Provisions 2 (c) and 2 (e) of the order are but ancillary to other provisions and are clearly within the discretion of the Board. Provision 2 (f) requiring respondent' to report the extent to which it has complied with the order is expressly - authorized by the Act, Section 10 (c).
Enforcement of the Board’s order is granted in whole except as to provision 1 (b) thereof which provision is set aside, and except as to provisions 1 (d), 2 (a), 2 (b) and 2 (c), which are enforced as modified by making them inapplicable to Joseph Paul Kreig and Fred G. Turner.