The opinion
J. SPENCER BELL, Circuit Judge
(dissenting in part):
I concur in the majority’s denial of the Union’s request that this court declare the Company’s no-solicitation rule invalid. I also concur in the enforcement of that portion of the Board’s order requiring the Company to cease and desist from “attempting to persuade its employees, by threats of reprisal or promise of benefit, to cease wearing or turn in Union badges or emblems” or, “in any other manner, interfering with, restraining or coercing its employees in the exercise of rights guaranteed them in Section 7 of the National Labor Relations Act.”
I feel compelled to dissent from the remainder of the majority opinion, however, since I am persuaded that the trial examiner’s Recommended Order, as affirmed by the Board, 1 is amply supported by substantial evidence in the record viewed as a whole. The Supreme Court in Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488 , 71 S.Ct. 456, 465 , 95 L.Ed. 456 (1951), held that a Court of Appeals is “not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” Nonetheless, a Court of Appeals is admonished that it “may [not] displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Ibid. I think that the majority failed to heed this admonition in the instant case.
In this respect the case is a departure from a series of cases decided by this *592 court subsequent to Universal Camera; cases in which we enforced Board orders where the position taken by the Board had substantial support in the whole record, despite evidence to the contrary and despite our own notions as to how the case should have been decided in the first instance. See, e. g., N. L. R. B. v. Lester Bros., Inc., 301 F.2d 62 (4 Cir. 1962); N. L. R. B. v. Pugh & Barr, Inc., 231 F.2d 558 (4 Cir. 1956) ; N. L. R. B. v. School Timer Frocks, Inc., 224 F.2d 336 (4 Cir. 1955). Sound policy considerations buttress our disposition of these cases, quite apart from the deference due the trial examiner and Board in their special area of competence. At an unfair labor practice proceeding, the trial examiner hears the testimony, notices the demeanor of each witness, and is, therefore, the one person able to make determinations of credibility from insights gained through personal observations.
In the instant case the trial examiner was required to determine the Company’s real motive behind three discharges and also to determine whether certain activities of Company officials and supervisory personnel involved a threat of reprisal or force or promise of benefit and thereby exceeded the permissible bounds of freedom of expression. 2 These ultimate determinations required the trial examiner to first decide between conflicting versions of what occurred, and' even when there'was little dispute as to basic facts, to decide the most logical inferences to be drawn therefrom. The trial examiner did not resolve all questions of credibility against Company witnesses; nor did he draw all inferences adverse to the Company ; indeed he found that the Company had committed only a little more than half of the unfair labor practices' with which it had been charged. My reading of the record convinces me that it furnishes substantial support for those unfair labor practices which were actually found. In setting aside those findings of the trial examiner, and the Board’s affirmance, 3 I think the majority has attempted to retry this case de novo in contravention of the principles of review laid down in Universal Camera.
While I deem an extended discussion of all the alleged unfair labor practices unwarranted, I should like to pinpoint my disagreement with the majority as to one. The record reveals that after the Company became aware of the Union’s organizational drive, Sam Jordan, the Company’s personnel director, asked Ernest E. Ivester, a rank and file employee, if he would be willing to help organize a group “for those not interested in either * * * side.” The majority readily admits that the purpose of this organization was “to attempt to combat the organizational efforts of the Union.” In furtherance of this plan, Jordan interviewed during working time some 15-25 mill employees and inquired if they would be willing to meet together and discuss “the problem.” The trial examiner credited Ivester’s testimony that Jordan later turned the list over to him, explaining that “if I [Ivester] wanted to take it from there, and mail out some invitations, or get in touch with them in any way I saw fit, then he had this many names and addresses that I could get started on.” Ivester thereupon sent out invitations, and the “Citizens Club” came into existence with Ivester its Chairman. On these facts the trial examiner inferred that Jordan had been the moving spirit in the formation of the organization, and considered it “doubtful that any such movement could or would have been successfully launched without Jordan’s help.” The trial examiner found no further assistance to or participation in the Citizens Club by any Company official or supervisor.
*593 Based on the foregoing, the trial examiner, affirmed by the Board, found that the Company had interfered with, restrained, and coerced its employees by “Jordan’s suggestion to Ivester in September that Ivester help organize an anti-union movement and his furnishing Ivester with a list of employees expected to support such a movement.” The Company was, therefore, ordered “to cease and desist from suggesting that its employees organize to combat any labor organization or assisting employees to start such a movement.”
The majority absolves the Company of responsibility for Jordan’s conduct by pointing out that there was no evidence that Jordan was acting as an instrument or agent of management. In order to hold the Company responsible for an unfair labor practice the majority apparently would have required either prior authorization or knowledge or subsequent ratification of Jordan’s scheme by Andrew B. Calhoun and J. R. Swetenburg, the two principal resident officers of the Company. I think such requirements contrary to both the specific language of the National Labor Relations Act and to the decided cases.
Section 2(2) of the Act 4 provides that “The term ‘employer’ includes any person acting as an agent of an employer, directly or indirectly * * Section 2(13) 5 further provides that “In determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.” (Emphasis added.) Section 2(2), according to the House Committee, was intended to make “employers responsible for what people say and do only when it is within the actual or apparent scope of their authority” and thus “to make the ordinary rules of the law of agency equally applicable to employers and to unions.” H.R.Rep.No.245, 80th Cong. 1st Sess., p. 11. Section 13 according to the later Conference Report, meant that “both employers and labor organizations will be responsible for the acts of their agents in accordance with the ordinary common law rules of agency (and only ordinary evidence will be required to establish the agent’s authority).” H.R. Conf.Rep.No.510, 80th Cong. 1st Sess., p. 36, U. S. Code Cong. Service 1947, p. 1142.
These sections changed the import of old Section 2(2) of the Wagner Act which had defined employer to include “any person acting in the interest of an employer, directly or indirectly.” It seems clear that the amendment of Section 2(2) and the addition of Section 2(13) were aimed at exonerating management of responsibility for acts undertaken by those beyond its control and direction. But management must be held responsible for the acts of those over whom it has the right of control and direction, and it is immaterial whether such acts are committed with the knowledge and acquiescence of
superiors, N. L. R. B. v. Texas Independent Oil Co., 232 F.2d 447 (9 Cir. 1956), or without their knowledge, under the cloak of apparent authority, N. L. R. B. v. Houston Chronicle Publishing Co., 300 F.2d 273 (5 Cir. 1962); Local 636 of United Ass’n. of Journeymen and Apprentices of Plumbing and Pipe Fitting Industries of United States v. N. L. R. B., 109 U.S.App.D.C. 315 , 287 F.2d 354 (D.C. Cir. 1961); Time-O-Matic, Inc. v. N. L. R. B., 264 F.2d 96 (7 Cir. 1959); American Rubber Products Corp. v. N. L. R. B., 214 F.2d 47 (7 Cir. 1954).
At a minimum, Jordan, acting in a supervisory capacity, as personnel director of the Company, had apparent authority to act in behalf of management in the formation of the Citizens Club. Certainly to rank and file employees at the plant, it must have appeared that Jordan was acting to carry out management policies. N. L. R. B. v. Texas Independent Oil Co., supra, N. L. R. B. v. Geigy Co., 211 F.2d *594 553 , (9 Cir.), cert. denied, 348 U.S. 821 , 75 S.Ct. 33 , 99 L.Ed. 647 (1954). In these circumstances, I think the trial examiner and Board were compelled to find that the Company was responsible for the actions of Jordan. Any other finding would have been contrary to the letter .and spirit of the National Labor Relations Act. The action of the majority goes far in insulating the top echelons of management from responsibilities which are, in all fairness, undeniably theirs.
. The Board declined to adopt the finding of the trial examiner that the Company had violated the Act by disparate application and enforcement of its no-solicitation rule. In all other respects the Board adopted as its order the trial examiner’s Recommended Order.
. “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.” 29 U.S.C.A. § 158 (c).
. See n. 1, supra.
. 49 Stat. 450 (1935), 61 Stat. 137 (1947), 29 U.S.C.A. § 152 (2).
. 49 Stat. 450 (1935), 61 Stat. 137 (1947), 29 U.S.C.A. § 152 (13).