National Labor Relations Board v. Carlisle Lumber Co. , 94 F.2d 138 ( 1937 )

HANEY, Circuit Judge.

The National Labor Relations Board has petitioned this court for the enforcement of an order made by it in a proceeding instituted against respondent.

On January 16, 1936, Local No. 2511 of the Lumber & Sawmill Workers Union, hereinafter called the union, filed a charge with a Regional Director appointed by the National Labor Relations Board, hereinafter referred to.as the Board, pursuant to 29 U.S.C.A. § 160(b). On the same date, the Regional Director issued a complaint on behalf of the Board, as provided in 29 U.S.C. A. § 160(b), and gave notice of hearing.

The complaint charged that respondent had engaged, and was engaging in an unfair labor practice, as provided in 29 U.S. C.A. §§ 157/158(1-3) and (5>. These provisions are as follows:

“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.” 29 U.S.C. A. § 157.

“It shall be an unfair labor practice for an employer— .

“(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.

“(2) To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. * * *

“(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. * * *

“(5) To refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a)¹ of this title.”

On January 23, 1936, respondent filed a bill of complaint in a United States District Court in which it sought to enjoin the Board from proceeding with the hearing on the complaint. That court entered an order dismissing the bill of complaint on March 24, 1936. Respondent thereupon appealed to this court and applied for an injunction pending such appeal. On March 31, 1936, this court denied the application (Carlisle Lumber Co. v. Hope; 9 Cir., 83 F.2d 92), saying:² “We are not persuaded that irreparable injury would result to the appellant from the hearing before the Board where the order of the Board is without force until a hearing before a court and an order of the court based thereon.”

Upon the announcement of that decision, respondent apparently abandoned its appeal.

On April 7, 1936, there was filed in the proceeding before the Board a motion for leave to intervene, and a petition in intervention by Associated Employees of Onalaska, Inc., hereinafter referred to as the company union. The petition prayed, among other things, that the company union be designated as the sole and exclusive collective bargaining unit for all employees of respondent.

The following day, on April 8, 1936, respondent filed its answer with the Board in which it denied that it had engaged in the unfair labor practices alleged, and admitted that since July 5, 1935, it had refused to bargain collectively with the union.

On April 7, 1936, hearings began. Before any testimony was taken, respondent moved to dismiss the complaint on the following grounds: (1) That neither respondent nor its employees were engaged in interstate commerce; that neither the logging nor the manufacturing operations of the respondent, nor the alleged unfair labor practices directly affected interstate commerce; that therefore the National Labor Relations Act, hereinafter called the act, did not apply to respondent; and (2) that the act violated article 1, § 8, article 3, §§ 1 and 2, of the Constitution, and the Fifth, Ninth, and Tenth Amendments thereto. The motion was denied. A like motion on the same grounds was made when the Board rested its case, and, when ruling thereon was reserved, such motion was renewed at the close of all the evidence. The motion was thereafter overruled. On September 26, 1936, the Board made its decision.

The Board found that respondent is a Washington corporation engaged in the general logging, sawmill and mill business, in the cutting of timber into logs, in the sawing and milling of logs into shingles and lumber, and in the sale and distribution of such products. All respondent’s logging and milling operations are carried on within the state of Washington. The daily capacity of respondent’s sawmill is over 250,-000 feet; the mill being one of the largest in the Pacific Northwest. The daily capacity of respondent’s shingle mill is about 200,000.

Although respondent keeps a large inventory of lumber on hand, 80 per cent, of its daily production is milled and shipped in response to orders on hand. During the year 1934, respondent produced 38,-559,061 feet of lumber; the total sales of lumber and shingles for that year being approximately $700,000. During the year 1935, respondent produced 34,483,381 feet of lumber; its total sales of lumber and shingles being approximately $515,000. o

Ninety per cent, of the lumber manufactured by respondent is shipped by it to points outside the state of Washington. Between the months of August, 1935, and February, 1936, a total of 861 carloads of lumber were shipped from respondent’s plant. Of that number, 776 carloads were shipped to points within the United States and outside the state of Washington; 8 carloads were shipped to docks in the state of Washington for shipment to foreign countries; and 77 carloads were shipped to points within the state of Washington.

In all its operations the respondent employs, on the average, about 400 men, including its clerical and office staff of about 45.

About June, 1933, respondent’s manager introduced among its employees a labor organization which we will call the 4 L’s. At one time 251 of respondent’s employees were members of the 4 L’s. About February, 1934, a group of respondent’s employees organized the union, which was affiliated with the American Federation of Labor. By December, 1934, more than 50 per cent, of respondent’s employees were members of the union. The officers of the union then requested respondent to meet with such officers as the representatives of the majority of its employees. Respondent refused, and an election was held by the National Labor Relations Board, under the National Industrial Recovery Act, 48 Stat. 195, at the request of the officers. A majority of respondent’s employees voted. Of the 206 ballots, 191 were cast, for the union as representatives of the employees, 12 for the 4 L’s, and 3 were declared void.

Between the time of the election and May 1, 1935, several attempts were made by officers of the union to bargain with respondent. Some meetings were held, and the demands of the union were presented to an officer of respondent, who either refused the demands, or stated that nothing could be done in the absence of respondent’s president and general manager.

On May 1, 1935, a meeting was held in regard to an agreement proposed by a convention of members in the American Federation of Labor. The convention had agreed that in the event the employers refused to sign the agreement a strike was to be called. At the conclusion of that meeting the union’s demands were refused.

The Board found that the union was sincere in the foregoing efforts to bargain. With respect to respondent it said: “ * * The respondent, however, did not prefer to settle its differences with the union, nor did it have at any time a sincere intention of settling its differences or of perfecting an agreement with the union. Even though the respondent through its officers met with the union at various times, the meetings were not attended by such officers with a sincerity of purpose, but rather with a desire to conceal the respondent’s actual refusal to bargain. * * * ”

From the time of the election, the union’s membership increased, so that by May 1, 1935, the membership in the union was 263. The Board found: “That these 263 members of the union had designated the union as their representative for the purposes of collective bargaining in that unit is not questioned.”

On May 3, 1935, the number of respondent’s employees was 344, which did not include any of respondent’s “shingle mill employees nor any other of its employees who had been temporarily laid off during the latter part of April, 1935.” The number of workmen referred to in the quoted language is not disclosed. Of the, 344 employees, 263 went on strike on May 3, 1935. On the following day the secretary of the union wrote respondent that: “At any time you may wish to confer you will please notify the union hall as the men on picket duty are not alowed [allowed] to conver [confer] with anyone connected with the” respondent. Respondent notified the union that its operations had closed down indefinitely, and therefore there was nothing about which to negotiate with the union.

On May 6, 1935, respondent posted a notice as follows:

“Last Friday morning at 10:00 A. M. a small minority of our employees walked off the job, quit their jobs, intimidating the other employees and shut down our operations.

“We were never served with a strike notice; but the demands of the minority, by press reports, to obtain wages and conditions which are impossible for us to meet, after many years of heavy losses, make it necessary to close down all departments indefinitely effective today.

“Those not employed desiring to remain in our houses may do so by paying the regular rent monthly in advance. Notify the timekeeper of your desire and consider this notice legal notice to vacate the house you are occupying.”

On June 25, 1935, respondent posted the following notice:

“We have closed our payrolls which automatically discharges all of our former employees, excepting those now employed.

“Statements and checks for balances due will be mailed shortly after closing of books, June 30th.”

On July 5, 1935, the act became effective. The following day the secretary of the union wrote respondent:

“Due to the fact that the Wagner Bill has been passed by the House of Congress, and signed by the President, we feel that a settlement of differences can be brought about by arbitration.

“The [union] is ready and willing to meet with you for the purpose of arbitration, at any time it is convenient for you.”

On July 8, 1935, respondent replied: “As previously advised by .public notice, our properties have been closed indefinitely, all our former employees discharged, hence we have no differences to arbitrate.”

On July 29, 1935 respondent posted a notice, stating that it'had been approached by a committee representing a large number of its former employees, urging the company to resume operations, and that application cards had been signed by more than 260 men; that: “The opportunity is hereby given for all former employees to sign application cards on the same basis and conditions by July 31st, after which date unfilled jobs will be assigned to other applicants.” By the terms of the application card, the employee agreed: “To re-, nounce any and all affiliation with any labor organization.” No one was employed prior to August 5, 1935, unless he signed an application card containing the quoted provision. On August 5, 1935, respondent resumed operations with 109 old employees, of whom 22 were former members of the union, and 65 new employees. The record does not disclose that respondent has since resumed operations with a full force of men.

Shortly after the resumption of activities the company union was formed. Respondent gave the company union free hall rent; collected dues and assessments from the members on behalf of the company union ; distributed notice of elections to members in pay envelopes; furnished publicity matter to be used by the company union; permitted the use of its mimeograph machine by the company union without charge; and permitted the use of its bulletin board by the association without charge.

The Board concluded that the refusal to bargain with the union was an unfair labor practice as provided in 29 U.S.C.A. § 158(5); that respondent’s offer of employment, conditioned upon an application containing the provision that employees must “renounce any and all affiliation with any labor organization,” was an unfair labor practice within 29 U.S.C.A. § 158(3) ; that respondent had dominated and interfered with the formation and administration of the company union, and had contributed support to it, which was an unfair labor practice as provided in 29 U.S.C.A. § 158(2); that all the foregoing acts were an unfair labor practice as provided in 29 U.S.C.A. § 158 (1); that the union “has at all times since July 5, 1935 been the exclusive representative of all the employees in such unit for the purposes of collective bargaining.”

The Board ordered respondent to cease and desist from the foregoing unfair labor practices, including a provision that it cease and desist from refusing to bargain collectively with the union. It ordered respondent to take affirmative action, including the following: (1) Offer reinstatement to its employees who were employed on May 3, 1935, whose positions are now held by persons employed for the first time on July 8, 1935, and place all other employees who were employed on May 3, 1935, on a list to be offered employment if and when their labor is needed before any new employees are hired, the employees to be reinstated and those to be listed, to be only those who have not, since Mlay 3, 1935, received regular and substantially equivalent "employment elsewhere; (2) “make whole its employees who were employed on May 3, 1935. who struck on that date or thereafter, and who were members of the union on July 29, 1935, the day of the respondent’s first act of ’ discrimination against all of the members of the union, for any losses of pay they have suffered by reason of such discrimination, by payment to each of them a sum equal to that which they each would normally have earned as wages during the period from July 29, 1935 to the date of respondent’s offer of reinstatement, less the amount earned by each of them during such period”; (3) bargain collectively with the union at its request; and (4) withdraw all recognition from the company union.

On October 19, 1936, the Board filed its petition for the enforcement of its order in this court. It was heard by three judges of this court on May 5, 1937. Thereafter, one of the judges, believing himself disqualified, withdrew from participation, and it was reargued on September 15, 1937.

Respondent questions the sufficiency of the finding that the union was selected as the representative of a majority of respondent’s employees. It contends that the election in December of 1934 cannot be relied upon because the total number of employees at that time was 416, and that inasmuch as the union was selected by only 191 employees, it was not designated by a majority of respondent’s employees. The officer in charge of that election selected as a unit, respondent’s sawmill, shingle mill, yard, pond, and logging operations. He excluded 17 foremen, 8 clerical employees, and 30 Japanese, a total of 56, leaving as a unit 360 employees. The Board decided in this case that the unit so selected was proper, under 29 U.S.C.A. § 159(b). Since it does not appear to be arbitrary, we must 'affirm that decision. Therefore, the union was designated as the agent of the employees by a majority of respondent’s employees in a unit appropriate for such purposes.

Respondent also contends that there is no evidence to sustain the finding that the union had been designated as the representative of the employees by a majority of the employees on July 5, 1935, and subsequently; that “the fact that a majority of the employees of respondent may have been members of the union on July 5 and subsequently does not of itself prove that representatives were designated or selected for the purposes of collective bargaining by the majority of the employees.” Here the evidence shows that the union was designated as the representative in December, 1934, and from that time to May 3, 1935, membership in the union increased. We believe the Board could properly infer that the union had been designated as the representative by a majority of the employees.

The company union questions the finding that respondent was guilty of an unfair labor practice as provided in 29 U. S.C.A. § 158(2), which provides that it is an unfair labor practice for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or any other support to it.” It is sufficient to say that the acts of respondent, in giving the free services enumerated, came within the statute. Inasmuch as all the Board’s findings are sustained by substantial evidence, we must sustain them. National Labor Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 29, 57 S.Ct. 615, 620, 81 L.Ed. 893, 108 A.L.R. 1352; National Labor Board v. Fruehauf Co., 301 U.S. 49, 57, 57 S.Ct. 642, 644, 81 L.Ed. 918, 108 A.L.R. 1352; National Labor Board v. Clothing Co., 301 U.S. 58, 75, 57 S.Ct. 645, 647, 81 L.Ed. 921, 108 A.L.R. 1352.

The company union asks this court to order the Board to take further evidence so that it may be permitted to introduce into evidence a contract it made with respondent covering wages, hours of employment, and living conditions of respondent’s employees, and “to introduce in evidence such other facts as are relevant and pertinent to the inquiry.” The contract mentioned was made subsequent to April 7, 1936. 29 U.S.C.A. § 160(e) provides, after petition for enforcement of an order has been made, that: “If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board, * * * the court may order such additional evidence to be taken before the Board.”

In the absence of a showing that “such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing,” the request must be denied.

Respondent contends that the act is not applicable to it, because there is “no antecedent import of raw materials entering into” its manufacturing operations.

In National Labor Board v. Jones & Laughlin Steel Corporation, supra, 301 U. S. 1, 31, 57 S.Ct. 615, 621, 81 L.Ed. 893, 108 A.L.R. 1352, it is said that the terms of the act purport “to reach only what may •be deemed to burden or obstruct that commerce. * * * It is a familiar principle that acts which directly burden or obstruct interstate or foreign commerce, or its free flow, are within the reach of the congressional power. * * * It is the effect upon commerce, not the source of the injury, which is the criterion.” Considering the effect of the industrial strife, it is plain to be seen that the stoppage of respondent’s operations caused by the unfair labor practices prevents 90 per cent, of respondent’s product from entering interstate commerce, which is nothing more nor less than obstructing the whole interstate and foreign commerce to that extent. The effect is, therefore, direct and immediate, is within the control of Congress, and therefore respondent is subject to the act.

Independently of the foregoing, respondent’s contention was decided adversely by this court in Edwards v. United States, 9 Cir., 91 F.2d 767, 780, and in National Labor Board v. Santa Cruz Fruit Packing Co., 9 Cir., 91 F.2d 790, 792, certiorari granted December 6, 1937, 58 S.Ct. 282, 82 L.Ed., in each of which it was held that Carter v. Carter Coal Co., 298 U. S. 238, 56 S.Ct. 855, 80 L.Ed. 1160, relied on by respondent as supporting its contention, was overruled by National Labor Board v. Jones & Laughlin Corporation, supra.

Respondent contends that the strike of May 3, 1935, terminated the relation of employer and employee. We believe that in the absence of statute the relationship of employer and employee is not completely terminated by a strike, but that a new status arises. The courts have coined a word to describe the situation and have called an employee on strike a “striking employee.” Jeffery-De Witt Insulator Co. v. National L. R. Board, 4 Cir., 91 F.2d 134, 137, and cases cited. Of course, under the act a “striking employee” is considered an employee. 29 U.S.C.A. § 152 (3). This court has not held to the contrary in National Labor Relations Board v. Mackay Radio & Tel. Co., 9 Cir., 87 F.2d 611, 631, 632, opinion on rehearing dated October 19, 1937, 9 Cir., 92 F.2d 761„ The concurring result announced by two of the three sitting judges therein was reached by entirely different reasoning and laid down no rule of law which is controlling here.

Respondent also contends that it had discharged all employees on June 25, 1935, prior to the effective date of the act, and that it had the unquestioned common-law right so to do) and therefore it had no employees when the act became effective. If this contention is sound, there would, of course, be no unfair labor practices.

The act defines “employee” to “include * * * any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment.” 29 U.S.C.A. § 152(3). The act also defines “labor dispute” to include “any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.” 29 U.S.C.A. § 152(9).

It is clear here, that at the time of the unfair labor practices, there was a current labor dispute, in that there was a controversy existing as defined above. It is like-' wise clear that the individuals, that is, the union employees, ceased their work in order to sustain their position in the controversy. Under the act, therefore, the union members were “employees.”

Respondent argues that we thus construe the statute retroactively. In Shwab v. Doyle, 258 U.S. 529, 534, 42 S.Ct. 391, 392, 66 L.Ed. 747, 26 A.L.R. 1454, it is said: “The initial admonition is that laws are not to be considered as applying to cases which arose before their passage unless that intention be clearly declared.”

See, also, White v. United States, 191 U.S. 545, 552, 24 S.Ct. 171, 48 L.Ed. 295; United States v. Magnolia Co., 276 U.S. 160, 162, 48 S.Ct. 236, 237, 72 L.Ed. 509; Brewster v. Gage, 280 U.S. 327, 337, 50 S.Ct. 115, 117, 74 L.Ed. 457.

■ It would be a sufficient answer to say, we believe, that the intention seems to be plainly expressed. However, a better answer is that we are not applying the statute retroactively. For instance, it is alleged that on July 8, 1935, respondent committed an unfair labor practice by refusing to bargain collectively with the representative of its employees. It is admitted that respondent refused to bargain collectively with the union, which we have held is the representative designated by a majority of the employees, on July 8, 1937. On that date, respondent had employees, for the union men had ceased work as a consequence of a current labor dispute. In other words, we consider only the facts existing at the time of the labor dispute. Cf. Jeffery-De Witt Insulator Co. v. National L. R. Board, supra, 4 Cir., 91 F.2d 134, 139.

There is no limitation in the statute that individuals whose work has ceased as a consequence of a current labor dispute are employees' only if they were not discharged prior to the effective date of the act. The reading into the statute of such a limitation would constitute an abuse of power.

In connection with the foregoing, we should discuss the power of Congress to legislate that an employee who has been discharged must be considered as an employee in determining whether an employer has been guilty of unfair labor practices. Respondent asserts that prior to the effective date of the act “an employer had the unquestioned common law right to discharge its employees, either singly or collectively, at will.”

In considering this question we must apply the rules stated in National Labor Board v. Jones & Laughlin Steel Corporation, supra, 301 U.S. 1, 30, 57 S.Ct. 615, 621, 81 L.Ed. 893, 108 A.L.R. 1352, as follows: “The cardinal principle of statutory construction is to save and not to destroy. We have repeátedly held that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.”

I{ was also said in that case, supra, 301 U.S. 1, 36, 57 S.Ct. 615, 624, 81 L.Ed. 893, 108 A.L.R. 1352: “The fundamental principle is that the power to regulate commerce is the power to enact ‘all appropriate legislation’ for its ‘protection or advancement;’ * * * to adopt measures ‘to promote its growth and insure its safety;’ * * * ‘to foster, protect, control, and restrain.’ * * * That power is plenary and may be exerted to protect interstate commerce ‘no matter what the source of the dangers which threaten it.’ ”

Thus the right of discharge claimed by respondent is not absolute. It is subject to the limitations that the Congress may prescribe, if it regulates, burdens, or obstructs interstate commerce. Therefore, Congress has not destroyed any vested right of respondent, but has merely exercised its right to legislate in respect to a right, over which, because of prior nonaction by Congress, respondent believed it had complete control. Congress took nothing from respondent, for respondent has now as much right as it ever had; that is, the right of discharge, so long as it did not regulate, control, interfere with, burden, or obstruct interstate commerce.

In Re Debs, 158 U.S. 564, 581, 15 S.Ct. 900, 905, 39 L.Ed. 1092 it was said: “It is curious to note the fact that, in a large proportion of the cases in respect to interstate commerce brought to this court, the question presented was of the validity of state legislation in its bearings upon interstate commerce, and the uniform course of decision has been to declare that it is not within the competency of a state to legislate in such a manner as to obstruct interstate commerce. If a state, with its recognized powers of sovereignty, is impotent to obstruct interstate commerce, can it be that any mere voluntary association of individuals within the limits of that state has a power which the state itself does not possess ?”

In Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 230, 20 S.Ct. 96, 103, 44 L.Ed. 136, the court quoted the above language from In re Debs, supra, and then-said: “What sound reason can be given why Congress should have the power to interfere in the case of the state, and yet have none in the case of the individual? Commerce is the important subject of consideration, and anything which directly obstructs and thus regulates that commerce which is carried on among the states, whether it is state legislation or private contracts between ■ individuals or corporations, should be subject to the power of Congress in the regulation of that commerce.”

Finally, although the precise point in question was not considered in National Labor Board v. Jones & Laughlin Steel Corporation, supra; National Labor Board v. Fruehauf Co., supra; National Labor Board v. Clothing Co., supra; and Associated Press v. Labor Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953, because the alleged rights were different from the one here involved, yet, by reason of analogy, all those cases definitely, we believe, settle the question herein determined.

Respondent contends that the proceeding before us is an equitable proceeding; that'the union’s picketing resulted in violence, as the Board found, which was a violation of the laws of Washington, and therefore enforcement should be denied for the reason that the union has not come into the court with clean hands. It is not the union, but the Board, which is asking enforcement.

Respondent also contends that the order of the Board requiring payment'for time lost is capricious and arbitrary. The act authorizes the Board to make such an order, 29 U.S.C.A. § 160(c), and the provision in the act is constitutional. National Labor Board v. Jones & Laughlin Steel Corporation, supra, 301 U.S. 1, 47 et seq., 57 S.Ct. 615, 81 L.Ed. 893, 108 A. L.R. 1352.

Finally, respondent objects to the part of the order of the Board requiring the payment of back pay.

Under the act the Board is empowered to order “reinstatement of employees with or without back pay.” 29 U.S.C.A. § 160 (c). This necessarily implies that the Board shall have power to determine the amount of back pay, if any there should be, awarded to the employees involved. Nothing in the act empowers this court to make such findings, and the record does not disclose facts upon which the court coiild act if it had the power to do so.

Ordinarily we would not consider these questions because they were not raised before the Board. 29 U.S.GA. § 160(e).

A situation much like that presented in the instant case confronted this court in National Labor Board v. Pacific Greyhound Lines, 9 Cir., 91 F.2d 458, 460, where the Board ordered back pay, but did not specify the amount thereof, this court said: “No objection is raised to the form of the order on this account but before the enforcement order is issued by this court this amount should be supplied and included in the order. * * * If the parties cannot agree within ten days upon the amount to be included in the enforcement order, or to be paid, appropriate steps will be taken for its determination before the order is made.”

There are factual differences between National Labor Board v. Pacific Greyhound Lines, supra, and the instant case. There the employees were few, the wage problem was simple, and there was nothing to indicate an inability to promptly agree upon such details. Here the employees are many; the wage problem is so full of difficulties that it seems probable that it will have to be solved by an authoritative tribunal. This is not said for the purpose of precluding agreement between the parties. On the other hand, we earnestly encourage it. It may be that we have the implied power, it certainly is not express in the act, to order the Board to proceed with this issue of the case, but we prefer to follow the course specifically provided for in the act. We refer to the following, which we quote from section 160(e) of the act: “If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board, its member, agent, or agency, the court may order such additional evidence to be taken before the Board, its member, agent, or agency, and to be made a part of the transcript. The Board may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which, if supported by evidence, shall be conclusive, and shall file its recommendations, if any, for the modification or setting aside of its original order.”

Enforcement of the order herein in all of its provisions except those requiring back pay is hereby granted, effective immediately;

With respect to that portion of the order directing back pay to be made by the company to the employees, we withhold our ruling for a period of twenty days.

If within such time either party shall apply to us pursuant to the terms of 160(c), supra, for leave to adduce additional evidence before the Board for the purpose of determining the wage issue and identifying the persons to whom such wages, if any, are due, together with the amounts due to such several persons, we will determine therefrom whether such additional evidence is material, and whether there were reasonable grounds for failure to adduce it at the hearings heretofore had by the Board. Should such application be granted, a reasonable time will be allowed within which the Board may, upon hearings before it or a member, agent, or agency, designated by the Board, determine the names of the persons, if any, to whom wages are due, together with the amounts, if any, due to each, including time within which the Board may certify such evidence together with its findings and order thereon to us.

1 Section 159 (a), 29 U.S.O.A. provides: “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.”

2 On September 21, 1936, this court dismissed the appeal because respondent failed to comply with our rules regarding printing of record and filing briefs on appeals, 9 Cir., 85 F.2d 1010.