The opinion
SOBELOFF, Circuit Judge,
(dissenting) :
With deference, I think the majority opinion confuses the respective functions of the Board and the court. My colleagues of course recognize that the Board’s findings are not to be disturbed if there is substantial supporting evidence in the record as a whole. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951). Yet they declare that “the substantial evidence, we think, shows that Luther Harrison was discharged for the very reason given, at the time by the company * * (emphasis added.) The court treats the record as though a finding of substantial evidence supporting its conclusion ends the inquiry. It is not our province to determine whether the evidence satisfies us that Harrison was fired because he testified on behalf of the Union in a representation proceeding. Rather than substitute our judgment for the Board’s on the cause of Harrison’s discharge, we may examine the record only to see if there is substantial support *168 for the Board’s conclusion. That the evidence might also justify an inference different from that of the Board does not enlarge our prerogative. Once it is ascertained that the Board’s finding is premised upon substantial evidence, we must enforce its order. This is the true test. The rule governing judicial review of administrative agencies requires more tolerant treatment than the majority accords the Board’s factual findings. I submit that in this instance the court views its function too broadly and the Board’s role too narrowly.
Beyond peradventure, substantial support for the Board’s findings exists in this case, even assuming that the court’s finding is conceivably also supportable. Luther Harrison was fired on November 19, 1964, three days after he attended the union representation proceedings for the fourth and last time. On two previous occasions, October 15 and 28, he had testified in favor of the Union. Although the asserted cause of the discharge was his improper performance of supervisory duties, Harrison had never been accused of any misfeasance or warned of danger of dismissal. By its own admissions, the Company had never even proposed his discharge until after he had testified. Not only the sequence of events but also the Company’s transparently trumped up excuse for the firing supports the Board’s conclusion that the real reason for Harrison’s dismissal was to punish him for his testimony, thereby tending to coerce employees in violation of section 8(a) (1).
To substantiate its charge of improper supervising, the Company cites Harrison’s active solicitation on behalf of the Union and his insubordination on the morning of November 16 in punching his timecard, to resume his duties, despite an order to the contrary. The substantiated pro-Union activities complained of occurred prior to September 23, when Harrison entered the hospital for surgery, and were discovered by the employer before October 2, when he left the hospital. Despite this conceded knowledge, the Company never apprised Harrison of its displeasure and continued paying him sick leave throughout the month of October and the first two weeks of November, except for those days he attended the representation proceeding. Moreover, his pre-hospitalization union efforts occurred at a time when neither the Company nor Harrison himself considered him a supervisor. Not until after he testified in the representation proceedings did the company begin to regard him as a supervisory employee. Thus it is, paradoxically, that the Company now claims that it fired him because he was not a good supervisor at a time when it did not consider him a supervisor at all.' This version the Board was not obliged to credit.
The insubordination charge, based on Harrison’s reporting for work and “punching in,” is similarly pretextuous. In the first place, the plant manager, at one point in his testimony, admitted that he and the general manager had discussed Harrison’s discharge several days prior to the punching in. Furthermore, the question inevitably arises, why was Harrison told not to check in on this occasion? Why, now that he had a full medical discharge, did Harrison suddenly become persona non grata at the plant? This was the real issue before the Board. The Examiner found and the Board agreed that it was not Harrison’s long-since terminated solicitations but his active, on-going offending participation in the representation proceedings which caused the discharge. Again, I do not maintain that this is the inexorable conclusion, but it is certainly a reasonable one, completely justified by the record.
The Trial Examiner and the Board certainly did not exceed the permissible inferences from the proven facts, in finding that Harrison’s discharge was calculated to set a coercive example to other employees.
I would enforce the Board’s order.