The opinion
EDWARDS, Circuit Judge
(dissenting).
Probably no one cares much about this appeal except a contentious truck driver and the foremen who have had the dubious pleasure of supervising him. But the nature of our judicial system requires us to labor just as hard to give him his rights under the law as if thousands of people or millions of dollars were involved.
One American right is the right to complain. Occasionally one meets that difficult individual — the perpetual complainer. Frequently he is a nuisance; *331 and occasionally by his complaints he moves us all a little closer to justice. So in the interest of all (and of each) we maintain the right to complain. Indeed, in this instance that right has been written into law. 29 U.S.C. § 158 (a) (4). The employee concerned exercised the right to complain not once, but three times. Meanwhile, he had a fairly minor accident. The company ceased to call him for truck driving work. The question posed is whether the discipline resulted from the complaints or the accident. In the first instance it would plainly be illegal. In the second, it would not.
A. J. Spain, Jr., the employee concerned in this appeal, contends that he was discharged from the petitioner’s motor line because he had filed a charge before the National Labor Relations Board. Petitioner, Tompkins Motor Lines, argues on the contrary that. Spain was “grounded” (not called for truck driver work) because his safety record had been something less than perfect. The National Labor Relations Board, after hearing by and recommendation of a trial examiner, found for the employee.
It should be noted at the outset that Tompkins Motor Lines has a long-standing record of labor contractual relationships which apparently were in no stage of crisis at the time of the events complained of by Spain. It also appears that petitioner had reason to be concerned about its general safety record be-. cause of an Interstate Commerce Commission directive requiring them to show some improvements. It also appears that Spain had two accidents while working for petitioner.
The first of these two accidents occurred in August of 1959. It was not a traffic accident, but involved minor damage to a tractor when Spain was seeking to hitch it to a trailer in petitioner’s yard.
The traffic accident, as a result of which Spain was “grounded,” involved $20 damage to petitioner’s truck and $174 to the other automobile. There were no injuries. Spain’s speed at time of accident was 5-10 m. p. h. A police report exonerated Spain. The other party’s suit for damages was dismissed at the end of plaintiff’s case.
Petitioner, however, contends that even if the other driver was responsible, Spain could have avoided the accident by anticipating her negligent conduct.
Petitioner also argues that it followed in Spain’s instance a company policy of discharge of drivers for any one accident. Testimony of a number of other drivers who had accidents and had not been discharged made it clear, however, that this policy related to “chargeable” accidents, i. e., where the driver was deemed at fault.
As we have seen, the fault involved in Spain’s accident of February 2 was based on a quite subjective evaluation.
However this evidence be read, there are two undisputed episodes in this record which lend weight to the Board’s position. After Spain had filed NLRB charges (claiming discrimination in call-in practice because of a union grievance filed by him), 1 two of petitioner’s supervisors made specific threats in relation to him based on the NLRB charges.
Spain relates the first one in this testimony:
“Q. (By Mr. Raney) What was said in this conversation between you and Mr. Horlacher?
“A. He took his hand and started pointing toward his shirt pocket and said, ‘I’ve got this grievance that you filed and if you win it, you will get less work than what you’ve been getting and if you lose it you will never work another day for Tompkins Motor Lines,’
“Q. Was there anything in his shirt pocket ?
*332 “A. Yes, sir, he had the grievance folded up in his pocket.”
The second episode follows:
“Q. (By Mr. Raney) Have you heard any comments by any Company officials or supervisors concerning this charge ?
“A. Yes, sir. After that I went out — Bill Lafayette called me to work one morning and I went to and Bill Lafayette came up to me and asked me when all this mess was going to stop. I asked him, ‘What mess,’ and he said, ‘All this mess of the Labor Board.’ I said, ‘Well, my lawyer is handling that.’ He said, ‘No, A. C. Sloan is behind all of it,’ and I said, ‘No, my lawyer is behind it,’ and he said, ‘Well, if you don’t stop all of this mess and get the Labor Board off of us I am not going to call you no more.’ ”
The Board found that the company violated Section 8(a) (1) and 8 (a) (4) of the Act by dint of these threats and the subsequent failure to call the employee for truck driver work, which failure they infer to have been due not to reasonable enforcement of safety regulations, but to retribution against the employee for filing the NLRB grievance.
The applicable language of § 8(a) (4) is, “[I]t shall be an unfair labor practice for an employer — to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this act.”
Our question on review is whether or not on the whole record there was substantial evidence to support the Board’s conclusion that Spain had been discriminated against because he filed charges under the National Labor Relations Act. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474 , 71 S.Ct. 456 (1951).
We do not review the facts in this record de novo. The National Labor Relations Board has been given the duty of finding facts. 29 U.S.C. § 160 (e). Drawing of legitimate inferences from such facts is also its exclusive province. N. L. R. B. v. Nevada Consolidated Copper Corp., 316 U.S. 105 , 62 S.Ct. 960 (1942).
In Universal Camera Justice Frankfurter defined this court’s function thus:
“To be sure, the requirement for canvassing ‘the whole record’ in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may 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. Congress has merely made it clear that a reviewing court 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.” Universal Camera Corp. v. N. L. R. B., supra, 340 U.S. at 488 , 71 S.Ct. at 465 .
There is evidence in this record to justify the court’s conclusion that the disciplinary measures taken against this employee were based on safety considerations. And I share the court’s concern for maintaining management’s right to demand high standards of employee safety in highway driving.
It is, however, impossible for me to read this record without finding substantial evidence also to support the NLRB’s conclusion that the real reason behind the disciplinary measures taken was this employee’s filing of the successive complaints.
*333 It would appear to me that the Board made a “choice between two fairly conflicting views.”
I would deny the petition to review and grant enforcement of the Board’s order.
. This first NLRB proceeding was “set- tied” by a payment of $325 to Spain and withdrawal of the complaint. It was understood at that conference, however, that Spain intended to (and was free to) file the present charge.