The opinion
WILBUR K. MILLER, Chief Judge
(concurring in part and dissenting in part).
As to case No. 15,759, which is discussed and decided in Part I of the foregoing opinion, I concur in the court’s conclusion that the Board did not err in failing to direct the disestablishment of the Gulf Bottlers Employees Association, and that its order giving effect to its conclusion should be upheld. I dissent, however, from Parts II and III of the majority opinion which deal with case No. 15,988, as I think Fazzio and Walker were legally discharged for cause, and that the driver-salesmen were supervisors within the meaning of Section 2(11) of the Act. It follows, of course, that I dissent also from Part IV of the majority opinion which orders enforcement of the Board’s order against Gulf Bottlers, as sought by the Board in case No. 15,929.
In the course of Part II of their opinion dealing with the discharge question, the majority quote the following statement of the examiner as to why he concluded the dismissals were discriminatory:
“ * * * In reaching the conclusion that Fazzio and Walker were actually discharged because of their union sympathies or activities, I do not do so on the basis of my appraisal of the weight or quality of such cause but on the basis that an appraisal of it in the light of the entire record shows that it is insincerely raised and was utilized as a pure pretext to mask Respondent’s discriminatory purpose.”
This statement, approved by the Board, shows the examiner did not consider the “weight or quality” of the employer’s evidence that the men had been discharged for good cause, but ignored it because he thought the employer also had a discriminatory purpose on account of their union activity. To conclude as he did, I think the examiner would have had to find from the evidence as a whole that the cause for dismissal given by the misconduct of the two men played no part in their discharge, or that it was so weak and unconvincing that union activity was in truth the real motive. In the face of strong and convincing evidence of improper conduct that was legal warrant for discharge, it was impossible, I think, for the examiner to make either of these two findings. In fact, he made neither: he simply said the evidence of legal cause, no matter how great in “weight” nor how fine in “quality,” was not to be considered because the men had engaged in union activity of which the employer did not approve.
These two motives for a discharge are not necessarily inconsistent; they are not mutually exclusive. Surely it is not the law that an employer must retain an employee whose insubordinate conduct constitutes legal cause for dismissal, merely because the employee has engaged in union activity with which the employer was not in sympathy. I think the Board erred in approving the examiner’s finding of illegal discharges, when it was reached by unlawfully and totally ignoring the evidence presented by the employer.
I disagree with Part III of the majority opinion because I think the driver-salesmen were supervisors within the literal meaning of Section 2(11) of the Act. I do not believe any court has the right to rewrite the section in order to exclude from its scope a class which is clearly within its terms. There is no *306 requirement that the Act apply to all workers, regardless of their status.
As I have indicated, my dissent from Parts II and III of the opinion, which reject Gulf Bottlers’ attack on the order, sufficiently explains why I dissent from Part IV, which enforces the Board’s order against Gulf Bottlers.