1. An order of the National Labor Relations Board requiring an
employer to disestablish a labor organization of its employees, and
directing the employer to reinstate or to make whole certain
employees against whom the Board found the employer had
discriminated in regard to hire or tenure of employment because of
their union membership and activities held
findings supported by substantial evidence. Pp. 311 U. S.
2. In reaching the conclusion that there was no evidence in this
case from which it could be inferred that the employees did not,
with complete independence and freedom from domination,
interference, or support of the employer, form their own union, the
Circuit Court of Appeals substituted its judgment on disputed facts
for that of the Board -- a power denied it by Congress. P.
311 U. S.
3. It is for the Board, not the courts, to determine whether the
disestablishment of a labor organization is required,
notwithstanding its subsequent conduct, in order to dissipate
completely the effects of unfair labor practices which aided its
formation. P. 311 U. S.
4. The evidence in this case sustains the findings of the Board
that certain employees were discharged and discriminated against in
violation of § 8(1) and (3) of the Act. Pp. 311 U. S. 600
110 F.2d 506 reversed.
p. 629, to review a judgment refusing
to order enforcement of portions of an order of the National Labor
Page 311 U. S. 585
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The court below refused to enforce certain portions of an order
of the National Labor Relations Board, entered in proceedings
] under § 10 of the
Act, 49 Stat. 449, requiring an employer to cease and desist from
dominating or interfering with a labor organization and to withdraw
recognition from it as a collective bargaining representative of
employees and directing the employer to reinstate or to make whole
certain employees [Footnote 2
against whom the Board found the employer had discriminated because
of their union membership and activities. Enforcement of those
portions of the order was refused because, in the view of the court
below, they were not
Page 311 U. S. 586
"supported by evidence," as required by § 10(e) of the act. The
petition for writs of certiorari was granted because of the
importance in an orderly administration of the Act of the mandate
contained in § 10(e) that the findings of the Board as to the
facts, "if supported by evidence, shall be conclusive." See
Labor Board v. Waterman Steamship Corp., 309 U.
Disestablishment of Independent.
Independent Union of
Craftsmen was organized within a few days after the decision by
this Court, on April 12, 1937, of Labor Board v. Jones &
Laughlin Steel Corp., 301 U. S. 1
upheld the constitutionality of the Act. From 1933 down to that
date, the employer, Link-Belt Co., had maintained a company union,
apparently continuing to recognize it even after passage of the Act
in 1935 and even though, under the Act, it was concededly an
improper bargaining unit. In any event, that union remained in
existence until Independent's membership drive was successfully
concluded. The organization of Independent was conceived on April
12 and 13, 1937, by certain employees, who were disappointed at the
decision upholding the constitutionality of the Act. Linde, who was
a leader in organizing Independent, testified:
"A. The Wagner Act had been declared constitutional, and a group
of us were dismayed, I am frank to admit, or we thought there was
nothing for us to do."
"Q. Why were you dismayed?"
"A. I will tell you, we had banked our hopes that it would be
declared illegal, and immediately the labor unrest and trouble
would have stopped and our company would proceed and all the other
companies would proceed to enjoy the prosperity which we thought
was coming at that time."
The membership drive took place in the main on April 14, 15, and
16, resulting in a membership of 760 out of about 1,000 employees.
The constitution was drafted on April 17. On April 18, it
Page 311 U. S. 587
was decided to seek dissolution of the old company union and
recognition of Independent. Accordingly, on April 19, an agreement
was reached between the employee representatives and plant manager
Berry dissolving the old union, and he was asked to obtain
exclusive recognition for Independent. That request was granted by
the employer on April 21, and Independent held its first meeting on
An "inside" union, as well as an "outside" union, may be the
product of the right of the employees to self-organization and to
collective bargaining "through representatives of their own
choosing," guaranteed by § 7 of the Act. The question here is
whether the Board was justified in concluding that Independent was
not the result of the employees' free choice because the employer
had intruded to impair their freedom.
Respondents point to numerous earmarks of independence which
Independent evidences. They emphasize that, after it was
recognized, it held many bargaining conferences and, as a result,
obtained wage increases, changes in seniority policy, bonus
payments for night workers, a better vacation policy, better
lighting and air conditions, and improved safety measures -- in
fact all of its major objectives except a closed shop. They stress
the facts that it is not financed by the employer, that its
meetings are held off company property, that its leadership is
substantially different from the employee representation in the old
company union, and that its genesis was a suggestion made not by
the employer, but by a group of employees.
In the latter connection, they urge that the employees chose
Independent because that was the type of labor organization which
they honestly preferred; or, as stated by one of the employees who
led the membership drive,
"It was so big a feature that they [the employees] were all
anxious to get on the band wagon and do something.
Page 311 U. S. 588
That was the general attitude."
And they maintain that there was in fact no connection between
Independent and the old company union; that the success of
Independent's membership drive was not the result of any compulsion
or belief as respects the employer's attitude.
It would indeed be a rare case where the finders of fact could
probe the precise factors of motivation which underlay each
employee's choice. Normally, the conclusion that their choice was
restrained by the employer's interference must of necessity be
based on the existence of conditions or circumstances which the
employer created or for which he was fairly responsible and as a
result of which it may reasonably be inferred that the employees
did not have that complete and unfettered freedom of choice which
the Act contemplates.
Here, no one fact is conclusive. But the whole congery of facts
before the Board supports its findings.
The employer's attitude towards unions is relevant. As we have
indicated, it maintained a company union both before and after the
Act. And the court below sustained the Board's finding as to the
employer's longstanding industrial espionage, through the National
Metal Trades Association, which continued at least until an
investigation was made late in 1936 by the LaFollette Committee of
the Senate. [Footnote 3
Further, the employer evidenced hostility towards an "outside"
union. In 1936, plant manager Berry told the board of the company
union that, "in the event outside people came into our plant and
told us how to run the plant, then I had enough of industry." At
the hearing, he testified that he meant
"that the Link Belt Company was able and had
Page 311 U. S. 589
for many years ran their organization, and we did not need
outside people to tell us how to run the plant economically and
In September, 1936, Salmons, an employee of 14 years standing,
who was an employee representative in the company union and who
became dissatisfied with it, initiated the formation of
Amalgamated, an "outside" organization. [Footnote 4
] Amalgamated held its first organizing
meeting on September 20, 1936. Salmons was discharged the next day
by plant manager Berry for "spreading union propaganda around
here." He was given half an hour to leave. The employer does not
deny this, but adds that Salmons was discharged because he engaged
in union activities on company time. That he did solicit on company
time seems clear, though it could hardly have been extensive, as
his foreman testified that he was not aware of it. Yet, in his
association with the company union, he apparently was allowed a
similar freedom. That fact, his position of leadership in
Amalgamated, the apparent absence of the customary warning, his
somewhat precipitate discharge, the failure of the employer to
discharge representatives of Independent who, as we shall see,
solicited on company time with the knowledge and approval of at
least some of the supervisors, made permissible the Board's
conclusion that Salmons' activity on behalf of the "outside" union
was the basic cause of his discharge. [Footnote 5
] On September 21, 1936, another employee,
Novak, who had been employed by the company for over 11 years, was
also discharged without warning by Berry, who believed, mistakenly
it would seem, that Novak was a member of and solicitor
Page 311 U. S. 590
for Amalgamated. Berry gave him half an hour to get out, after
charging him with being "an organizer and instigator for a union"
-- a charge which Novak denied. [Footnote 6
] The Board found, and the court below sustained
the finding, that Novak was discharged in violation of the Act
because of his alleged union activities. We agree.
Amalgamated, as well as Independent, solicited on company time.
But a review of the record indicates that the instances of
solicitation by Amalgamated on company time were scattered over a
period of months, and were apparently more sporadic than those of
Independent. At least they do not appear to have had the magnitude
and intensity of the acts of solicitation on company time by
Independent. There is considerable testimony by members of the
supervisory staff that they were instructed not to take sides in
the union competition and not to allow solicitation on company
time. Plant manager Berry testified on direct examination that
those instructions were given after April 12, 1937, and, on
cross-examination, he admitted that they were given only after
April 19, 1937, at which time Independent had acquired a membership
of 760 men. It is argued here that the employer warned solicitors
for Independent and threatened them with dismissal for engaging in
union activities on the company's time. And Froling, chairman of
the company union and active solicitor for Independent,
Page 311 U. S. 591
testified that he was wary about soliciting in the plant on
company time in front of foremen, for, although he did not remember
any foreman warning him, he nevertheless was afraid of being
discharged because of what had happened to Salmons on account of
his activities. It is therefore contended that no discrimination in
favor of Independent can be inferred; that the quick success of
Independent in obtaining a majority was due not to the employer's
support, but to the employees' enthusiasm for that union. The Board
stresses the fact that employee representatives in the company
union were extremely active solicitors for Independent. It points
out that at least six of the employee representatives under the
company union were active solicitors -- Froling virtually admitting
that he solicited the entire machine shop -- 110 to 120 men --
during working hours. Kowatch, an employee, signed up between 100
and 250 men, about one-fourth on company time and twice punched out
his time with the permission of the foreman to solicit in the
foundry. The company counters with the fact that there were many
solicitors for Independent of whom those representatives were a
mere minority -- less than a third. There is this to be said,
however, about those conflicting claims. Most of the company union
representatives were active and prominent in Independent's
membership drive, and during that drive apparently enjoyed somewhat
the same privilege of moving freely about the plant which they had
been allowed as company union representatives -- a privilege
withdrawn after Independent had been recognized. The instances when
supervisors remonstrated with solicitors for Independent seem to be
restricted to around six or seven in number, and some of those
related to activities after the April membership drive was
completed. As respects one of the latter instances, Linde, an
employee soliciting for Independent, stated that foremen warned the
men: "You are on union
Page 311 U. S. 592
business. My God, don't let me catch you or we will fire you, or
words to that effect." But, as the Board concluded, it seems
impossible to infer that, in view of the extensive and intensive
solicitation for Independent in the plant on company time, the
supervisory staff were not aware of the campaign, and did not
acquiesce in it. Beyond that is the active support of Independent
by some of the supervisory staff. There is abundant testimony that
Siskauskis, a foreman, actively solicited for Independent. One
employee, Lackhouse, who earlier had joined Amalgamated but who was
soliciting for Independent in April, 1937, testified:
"He took the sheets in my hand -- the first sheet I had already
filled, with the heading on it, and I had nothing but blank sheets
left, and he went around the machines, the molders right off the
side floor there, and he told them to sign up the Inside union
here, and he signed up I believe ten, and about five of them he
signed up in his own handwriting. The majority of them in the
foundry don't know how to write."
"Q. And did you see him sign up these other men?"
"A. I seen him sign up actually about seven or eight, I am sure,
in his own handwriting. He went as far as one crane man who was
working right above him, and he was going up to him and he was
going to explain what it was all about, and he says, 'Oh, heck, he
don't know how to write,' so he wrote down his name, too. I don't
remember his name, I know it was John, the crane man in his
department. I just don't know his last name."
"Q. And then did Mr. Shaskinskis [sic
] give you back
"A. Yes, he returned them back to me after he had the names on
This episode was confirmed at least in part by Johnson, an
Another employee, Balcauski, testified as follows respecting
Page 311 U. S. 593
"He walked to me and he said, 'Stanley, why don't you join in
the CIO?' -- I mean this here, the independent craftsmen's union. I
said, 'I am already with the CIO.' He says, 'The hell with the
CIO.' He says, 'Join in with the craftsmen's union.' He says, 'We
are going to have our union.' Then I repeated, I says, 'Do you know
under the Wagner Law that is not allowed for the foreman to go and
organize the working men on the company time or on his own time?'
He told me this, he said, 'To hell with that.' So I says, 'If you
want to sign up independent, go ahead, I ain't going to waste my
time.' And I walked away."
Balcauski further testified respecting Siskauskis' solicitation
of employees: "He told them,
f you don't sign up' -- I heard it with my own ears -- he said,
you are going to get out of here.'"
Still another employee, Thomas, testified:
"Q. Did anybody ask you to join the Independent Union?"
"A. Everybody, Splitz (Siskauskis) comes to me with piece of
paper, sign your name. I say I can't sign my name. He says, 'All
right, I sign it myself.' And he signed it himself, my name."
"Q. Did he say anything more to you about it?"
"A. That is all that day. The second day, he come around again.
He say, 'Joe, sign name.' I say, 'I sign yesterday.' He say, 'All
right, it is no good, I threw it away.'"
"Q. It is no good, he threw it away?"
"A. Sure. I didn't sign no place. 'Joe,' he say, 'Sign him up
anyhow, or maybe lose job.'"
"Q. Splitz says to sign up or maybe you lose job?"
"A. Yes. I says, 'I sign him up if you want to.' He come in
Thursday about this piece of paper again and he say, 'Joe, sign
name.' I say, 'What is the matter, I sign him up twice, I sign him
up before yesterday and I sign him again.' He say, 'Something
wrong, no good.' I say, 'I quit, I don't want sign at all.'"
"Q. You didn't want to sign? "
Page 311 U. S. 594
"Q. You didn't sign either day?"
"A. I don't sign. At noontime, he come to me and he say -- I was
by him over there, and he say, 'Come on, Joe, come in office
sometime, we want to see you.'"
"Q. Did you go in the office?"
"A. Yes. . . ."
"Q. Some may with a mustache was sitting there?"
"A. Yes, sir. He say, 'What you want?' I say, 'Splitz sent me in
office, you want something?' He said he didn't want nothing from
me. Splitz come in then and grabbed my hand, and he say, 'Give him
piece of paper.' He say, 'sign his name.' I can't sign name, I say
I will not sign. I said two times I sign, I don't like it. He say,
"Q. Who said that?"
"A. Splitz, 'Go ahead, sign again.' I say, 'I am going out, go
"Q. You did not sign?"
"A. No. A couple of times he come to me and say, 'Sign them up.'
I don't sign no place. A lot of people don't sign, I no sign."
Bozurich, an employee, testified as follows with respect to the
attitude of Siskauskis towards Amalgamated:
". . . then he went on with remarks that it would be very bad if
CIO would come into the shop. And I said, 'What would be bad about
it?' I said, 'If the workers want it who can stop them?' 'Well,' he
said, 'if CIO comes in, the company will close the plant.' He said,
'You see, during the depression, it was hard to be without a job.'
I said, 'Company can't lock -- close the shop because of the
union.' I says, 'That would be considered as a lock-out.' And he
said, 'Who can stop them?' 'Well,' I said, 'the government.' He
said, 'The company runs the plant, and not the government.' I said,
'There is such a thing as government Labor Board here who takes
care of those members,' and I believe I referred him to -- well, to
be exact, I read in the paper about a certain company somewhere in
New York or New Jersey that, due to CIO activities, closed their
Page 311 U. S. 595
moved the machinery out, things like that, to get away from the
union. So I call his attention to that, to the best of my
recollection from the newspaper, that the Labor Board takes action;
they got company to put machinery back. At least that is the way I
understood it, so the illustration to him is that we are not afraid
of that kind. Then he twisted his lips and said 'Oh,' he says, 'you
better keep away from something like that,' he says, 'and if you
want anything, it is best to go to boss yourself.'"
There is also testimony that Siskauskis signed for illiterate
employees, though, with one possible exception, apparently not
against their will. Siskauskis denied that he made any such
statements or that he ever solicited for Independent. The Board
refused to believe that all the opposing testimony was fabricated,
and found his denials unconvincing.
Lackhouse, an employee, testified that he obtained permission
from Nyberg, his foreman, to solicit for Independent, Nyberg
saying, "Well, if you have to, you have to, Frank, so you might as
well go ahead on it." Lackhouse was delayed about half an hour in
getting started when Olson, an assistant superintendent, took him
aside in a separate room and, according to Lackhouse,
"compared the differences between the outside union and the
inside union, and he told me about it up there, how much better off
we would be if we organized amongst us fellows, among our fellow
workmen ourselves and kept the outside union out, that you will
never get anywhere with them, just striking all the time, and give
me the differences, and I listened to him about it."
Lackhouse testified that thereupon he solicited in the plant
during working hours: "I was absent from my job from one o'clock
until quitting time walking through the whole foundry." On direct
examination, Olson denied this
Page 311 U. S. 596
conversation. On cross-examination, he admitted talking briefly
with Lackhouse about "a rumor that the boys are trying to form an
independent union." Nyberg was not called. The Board believed
There was considerable testimony, not denied, that Belov, a
night boss, also solicited for Independent. According to one
employee, Kalamarie, Belov did so on written instructions left by
foreman McKinney which Kalamarie read. Kalamarie testified as
follows respecting this conversation with Belov about those
"Q. So when he [Belov] got this note to solicit for the
Independent Union, he was a little bit puzzled by it, and he asked
your advice about it?"
"A. He did."
"Q. You advised him that, inasmuch as his superior officer, Mr.
McKinney, had ordered him to do it, he had better go ahead and do
"A. That is right, if he wanted to keep his job. I imagine he
McKinney denied that he had left any such instructions, though
it apparently was his custom to leave written instructions for the
night bosses on things he wanted done. Belov was not called.
Because of that and because of the contradictory character of
McKinney's testimony on certain matters, the Board believed
Tomas, an employee, testified that his boss, Big Louie, "a kind
of assistant foreman," solicited for Independent getting about ten
signatures; that Big Louie told him that "they were trying to get
the CIO out of there."
The court below was unable to find any evidence from which it
could be inferred that the employees did not, with complete
independence and freedom from domination, interference or support
of the employer, form their own union. But we are of the opinion
Page 311 U. S. 597
the Court of Appeals, in reaching that conclusion, substituted
its judgment on disputed facts for the Board's judgment -- a power
which has been denied it by the Congress. Sec. 10(e) provides that
the "findings of the Board as to the facts, if supported by
evidence, shall be conclusive." As we stated in Labor Board v.
Waterman Steamship Corp., supra,
at pp. 309 U. S.
". . . Congress has left questions of law which arise before the
Board -- but not more -- ultimately to the traditional review of
the judiciary. Not by accident, but in line with a general policy,
Congress has deemed it wise to entrust the finding of facts to
these specialized agencies. It is essential that courts regard this
division of responsibility which Congress as a matter of policy has
embodied in the very statute from which the Court of Appeals
derived its jurisdiction to act."
Congress entrusted the Board, not the courts, with the power to
draw inferences from the facts. Labor Board v. Pennsylvania
Greyhound Lines, Inc., 303 U. S. 261
303 U. S. 271
Labor Board v. Falk Corp., 308 U.
, 308 U. S. 461
The Board, like other expert agencies dealing with specialized
fields (see Rochester Tel. Corp. v. United States,
307 U. S. 125
307 U. S. 146
Swayne & Hoyt, Ltd. v. United States, 300 U.
, 300 U. S. 304
has the function of appraising conflicting and circumstantial
evidence, and the weight and credibility of testimony.
The Board had the right to believe that the maintenance of the
company union down to the date when Independent's membership drive
was completed was not a mere coincidence. The circumstantial
evidence makes credible the finding that complete freedom of choice
on the part of the employees was effectively forestalled by
maintenance of the company union by the employer until its
abandonment would coincide with the recognition of Independent. The
declared hostility towards an
Page 311 U. S. 598
"outside" union, the long practice of industrial espionage, the
quick recognition of Independent, the support given Independent's
membership drive by some of the supervisory staff, the prominence
of company union representatives in that drive, the failure of the
employer to wipe the slate clean and announce that the employees
had a free choice, the belated instructions to the supervisory
staff not to interfere -- all corroborate the conclusion that the
employer facilitated and aided the substitution of the union, which
it preferred, for its old company union. But respondents contend
that there is no evidence that the employees had a settled
conviction that the employer preferred a certain type of labor
organization or that they were under compulsion from the employer
in choosing between Independent and Amalgamated. There were,
however, forces at work in the plant which make tenable the
conclusion of the Board that the employer had intruded so as
effectively to restrain the employees' choice. The employer's
attitude towards an "outside" union, coupled with the discharge of
Salmons and Novak for activities on behalf of Amalgamated, would
tend to have as potent an effect as direct statements to the
employees that they could not afford to risk selection of
Amalgamated. That the discrimination against Salmons had some
effect is not denied, for Froling, a witness for Independent,
insisted that even he furtively solicited for Independent because
of the price paid by Salmons. When that discrimination is
contrasted to the apparent acquiescence by the management in the
open solicitation by Independent, we cannot say that the Board was
unjustified in the conclusion which it drew. As we stated in
International Association of Machinists v. Labor Board,
311 U. S. 72
"Slight suggestions as to the employer's choice between unions
may have telling effect among men who
Page 311 U. S. 599
know the consequences of incurring that employer's strong
Nor does the Board lack the power to give weight to the
activities of some of the supervisory employees on behalf of
Independent, even though they did not have the power to hire or to
fire. As we indicated in International Association of
Machinists v. Labor Board, supra,
the strict rules of
are not applicable to such a
situation. If the words or deeds of the supervisory employees,
taken in their setting, were reasonably likely to have restrained
the employees' choice, and if the employer may fairly be said to
have been responsible for them, they are a proper basis for the
conclusion that the employer did interfere. If the employees
"would have just cause to believe that solicitors professedly
for a labor organization were acting for and on behalf of the
management, the Board would be justified in concluding that they
did not have the complete and unhampered freedom of choice which
the Act contemplates."
International Association of Machinists v. Labor Board,
Here, such inferences were wholly justified. The
attitude of the employer towards an "outside" organization was
clearly conveyed. When that was followed by solicitation for
Independent on the part of supervisors who had general authority
over the men, it would be unfair to conclude that the employees did
not feel an actual pressure from the management. That fact, the
failure of the employer to announce its impartiality, its delay in
advising the supervisors to remain neutral until Independent had
acquired its majority, the favors shown Independent, the discharge
of Salmons and Novak, its past union policy, all are part of the
imponderables which the Board was entitled to appraise. The fact
that these various forces at work were subtle, rather than direct,
does not mean that they were nonetheless
Page 311 U. S. 600
effective. Intimations of an employer's preference, though
subtle, may be as potent as outright threats of discharge.
Respondents suggest that an order of disestablishment would make
Independent an innocent victim of the employer's inaction or of its
unwelcome action. It is urged that the subsequent conduct of
Independent demonstrates its independence, and that an order
directing the employer to cease and desist all interference with
the employees and with Independent is wholly adequate for the evil
at hand. The Board, however, was not forced to conclude that the
subsequent activities of Independent erased the effects of the
employer's earlier discrimination, any more than it was compelled
to believe that the employer's later show of impartiality
obliterated the consequences of its prior interference with the
employees' freedom of choice. We cannot assume that the employees
will be free from improper restraints and will have the complete
freedom of choice which the Act contemplates where the effect of
the unfair labor practice is not completely dissipated. The Board,
not the courts, determines, under this statutory scheme, how the
effect of unfair labor practices may be expunged. Labor Board
v. Pennsylvania Greyhound Lines, Inc., supra; Labor Board v.
Bradford Dyeing Assn., 310 U. S. 318
International Association of Machinists v. Labor Board,
The order of disestablishment must be enforced.
Discharges of Employees.
The court below rejected the
finding of the Board that Salmons had been discharged in violation
of § 8(1) and (3) of the Act. For the reasons already stated, we
think that the court erred, and that the Board was right. [Footnote 7
Page 311 U. S. 601
The Board found that, in April, 1937, employment manager Staskey
conditioned the employment of Frank Solinko upon the acceptance of
membership in the Independent by his father, Pete Solinko, and that
therefore the company had violated § 8(3) of the Act. [Footnote 8
] The Board credited the
testimony of Pete and Frank Solinko against testimony of Staskey
and an employee named Kowatch. Kowatch was a solicitor for
Independent whom Pete Solinko said Staskey had told him to see.
Pete, a member of Amalgamated, joined Independent. So did Frank,
who later, however, joined Amalgamated. The evidence is somewhat
confusing. But, even according to Staskey, Pete Solinko did show
him an Independent card the day Frank was hired. The court below
noted that, even if the testimony of Pete were true, the
conversation occurred two months before Frank was hired, and even
if it took place on the day he was hired, then it was after
Independent had been recognized by the company as the bargaining
agent for the employees. We think, however, that the Board's
finding was justified. Whenever the conversation took place, the
conditioning of Frank's employment upon Pete's joining Independent
was a violation of § 8(3) of the Act in absence of a valid closed
shop agreement, not present here. Viewed in that light, it also
corroborates the conclusion of the Board that the employer
interfered with the collective bargaining process by supporting
Independent, though the episode took place after Independent's
membership drive was completed.
Karbol and Cumorich were discharged May 19, 1937. In April,
1937, Belov, according to their testimony, had asked them to join
Independent. They refused. In the latter part of April, 1937, they
Page 311 U. S. 602
The company's claim is that they were discharged for
unsatisfactory work after time studies had shown their inefficiency
and after the day foreman, McKinney, had warned them that their
work was not satisfactory. On the other hand, they denied that
anyone had given them any such warning or had criticized their
work; they testified that, at the time of their discharge, Belov
stated that they were good workmen and that he did not know why
they were discharged. The Board reviewed the time studies and found
they did not reveal with any degree of precision the relative
efficiency of the men. It concluded that they were discharged
because they joined Amalgamated. The evidence as to inefficiency is
quite inconclusive. The Board was justified in relying on
circumstantial evidence of discrimination, and was not required to
deny relief because there was no direct evidence that the employer
knew these men had joined Amalgamated and was displeased or wanted
to make an example of them.
The court below also refused to enforce the Board's order
reinstating and making whole Kalamarie, who was discharged
according to the Board because of his union activities. He, like
Karbol and Cumorich, did not accede to the solicitation of Belov on
behalf of Independent. He had joined Amalgamated in March, 1937,
was an active solicitor for it, and served on its grievance
committee. As a member of that committee, he called on plant
manager Berry to protest the layoff of a union man. Shortly
thereafter, Belov, Kalamarie's night boss, received instructions
from the day foreman to lay Kalamarie off for a week if his work
did not improve. November 30, 1937, he was permanently laid off for
an alleged lack of work as a welder and in connection with a
general reduction of employees. Until his promotion as a welder a
few months earlier, Kalamarie for some time had been an acetylene
burner. He testified that, when
Page 311 U. S. 603
he took the job as welder, he was promised that he could go back
to burning without loss of his seniority rights if welding ran out.
This was denied by the foreman. When he was laid off, men junior to
him as burners were retained. He protested. The company insists
that the refusal to restore Kalamarie to his old position as burner
was consistent with its occupational seniority policy. On this
there is some contradiction in the record. There is testimony that,
under company practice, an employee retained (or at least might be
given) his original seniority if he was promoted to another
position in the same department. The reasons stated for not
restoring Kalamarie to his old seniority position were that he did
not ask to be put back and that the company would have had to lay
off a burner senior to him. These statements were contrary to the
facts as found by the Board. On this state of the record, we think
that the Board was justified in concluding that Kalamarie was in
fact discharged because of his activities for Amalgamated.
The judgment is reversed, and the cause is remanded to the
Circuit Court of Appeals with directions to enforce the Board's
order in full.
MR. JUSTICE McREYNOLDS took no part in the consideration or
disposition of this case.
* Together with No. 236, Labor Board v. Independent Union of
also on writ of certiorari, post,
to the Circuit Court of Appeals for the Seventh Circuit.
These proceedings were instituted on charges filed in 1937 and
1938 by Lodge 1604 of Amalgamated Association of Iron, Steel and
Tin Workers of North America, affiliated with the Steel Workers
Organizing Committee, and through it with the Committee for
Industrial Organization. The complaint, as amended, charged that
the employer, respondent in No. 235, had engaged in unfair labor
practices within the meaning of § 8(1), (2), and (3), of the Act,
29 U.S.C. § 158(1), (2), and (3). Independent Union of Craftsmen,
respondent in No. 236, was allowed to intervene, was represented by
counsel, and participated throughout the proceedings.
The Board did not sustain the charges that certain other
employees had been discharged because of their union
Subcommittee of the Committee on Education and Labor, United
States Senate, of which Senator Robert M. La Follette, Jr., was
Chairman. This Subcommittee acted pursuant to S.Res. 266, 74th
Cong., 2d Sess., and held extensive hearings beginning in 1936.
See note 1
Amalgamated apparently had about 400 members before
independent started its membership drive in April, 1937.
Salmons was rehired on December 21, 1936, after mediation by the
Board on the understanding that he would not engage in union
activities on company time.
Novak was reinstated in January, 1937, with the understanding
that he would not engage in union activities on company time.
According to him, the condition extended to union activities at all
times. According to the company, it covered only union activities
on company time. The Board did not resolve the conflict, but noted
that Novak, as a result of his understanding, did not join
Amalgamated until after the Act had been upheld in April, 1937.
Novak delayed accepting the proposal of reinstatement because of
the possible implication that thereby he would tacitly admit that
he had earlier engaged in union activities.
The Board ordered no affirmative relief with respect to Salmons,
as he had been reinstated under an agreement with the company that
he would not receive back pay.
No affirmative relief was ordered as respects Pete Solinko, who
was laid off in January, 1938.