The opinion
TREANOR, Circuit Judge
(concurring in part and dissenting in part).
I agree with the majority’s holding respecting the Board’s finding of discrimination against Joseph E. Novak and John Kalamarie, and with the conclusion that there was substantial evidence to support the Board’s finding that petitioner engaged in industrial espionage in violation of Section 8 (1) of the National Labor Relations Act.
But I am of the opinion, also, that there was substantial evidence to support the Board’s finding that the petitioner, Link-Belt Company, Interfered with and supported the Independent in violation of Section 8 (1) (2) of the National Labor Relations Act, and to support the findings relating to employees Salmons, Peter and Frank Soliuko, and Karbol and Cumorich.
Since the circumstances attending the discharge of Salmons and Novak bear on the attitude of petitioner toward union activities I shall refer to both, although the majority upholds the finding of the Board respecting Novak’s discharge. Salmons had been active in the old employees’ representative plan, but in September, 1936, was endeavoring to secure members for the Union. His activities became known to the plant manager and on September 21 Salmons and Novak were separately discharged. Salmons testified that the manager accused him of “spreading Union propaganda” ; and that in response to Salmons’ remark that there was “talk of it” the manager replied that he did not want to argue with Salmons and told him that he would give him “half an hour to get out of the plant.” Novak testified that the manager stated that he understood that Novak was “an organizer and instigator for a Union.” Novak denied to the manager that he was an organizer or an instigator and was told by the manager that he would give him “half an hour to get out.” According to Novak’s testimony the manager also stated that he didn’t want Novak around if he was “organizing or instigating a Union.”
The trial examiner found that the discharge of Salmons was not discriminatory, and if the question before this court were whether, as between the trial examiner and the Labor Relations Board, there was sufficient evidence to sustain the trial examiner’s finding, I should have no difficulty in saying that there was. But under the National Labor Relations Act we do not review the findings of the examiner but the findings of the Board. In view of the conflicting evidence and the necessity of appraising credibility and probative force of testimony it is obvious that the Board reasonably could have found that the discharge was not discriminatory, if it had resolved certain of the conflicts in favor of petitioner and had given less credence than it obviously did to the testimony of some of the witnesses. I do not think it follows, as stated in the majority opinion, that “to find that Salmons’ discharge was discriminatory, the Board must have refused to consider the testimony of Edward L. Berry, William A. Conroy, and Joseph Fross that Salmons was discharged for his activity on behalf of the Amalgamated on company time, as well as the admission of Salmons that he had, prior to his discharge, been engaged in union activities on company time.” The admission of Salmons that he had been engaged in union activities on company time must be considered in connection with evidence which clearly established that supporters both of the Union and of the Independent engaged in activities on company time. There is evidence that the supporters of the Independent were much more active on company time than Salmons and other supporters of the Union; and there was testimony from which the Board reasonably could have inferred that such activities were known to petitioner. The testimony of Novak and Salmons in respect to their conversations with the manager of respondent at the time of their discharges clearly is susceptible of the inference that they were being discharged because of their activities on behalf of the Union. Consequently, instead oí our concluding that the Board refused to consider *514 the testimony of the named persons, we must assume that the Board gave more credence to the testimony of Salmons and Novak, doubtless considering in connection therewith circumstances that indicated definite and strong opposition of the management to the Union. Since we are bound to resolve all conflicts in testimony in favor of the finding of the Board and to accept as true all testimony tending to support it and to disregard all adverse testimony, I find myself unable to say that the finding of the Board in respect to the discharges of Salmons and Novak was not supported by substantial evidence.
In respect to the finding that respondent had discriminated in the employment of Peter Solinko and the hiring of Frank Solinko the record reveals clear-cut conflicts of testimony. Resolving the conflicts in favor of the finding of the Board I think there is substantial evidence to support the finding. The Board did not order any affirmative relief in respect to the discrimination in favor of the Solinkos but considered this as constituting encouragement of membership in ■ the Independent and discouraging membership in the Union, and therefore treated the finding as supporting the cease and desist order.
The testimony respecting the discharges of Karbol and Cumorich presents sharp conflicts of evidence; and the determination of the cause of discharge requires evaluation of certain evidence bearing on the efficiency of these men. There is testimony in the record that the day foreman, McKinney, solicited the employees of the night shift for membership in the Independent, Karbol and Cumorich being members of the night shift. They refused to join and later became members of the Union in the latter part of April, 1937. On May 19, 1937, both men were discharged by the night boss, Belov, upon orders from foreman McKinney. Both Karbol and Cumorich testified that Belov, at the time of their discharge, stated that they were good workmen and that he did not know the reáson for their discharge. The discharged men also testified that no one ever had warned them in respect to their work or criticized their work prior to their discharge. McKinney testified that he had repeatedly warned both men that their work was unsatisfactory and also testified that he had instructed one Peters to check the labor cards of Karbol and Cumorich and that these studies confirmed his judgment as to their inefficiency. -Peters testified that he thought he made the check sometime in May, 1937. The Board points out certain qualifying defects in the studies which lessen their value.
The specific question for us is whether there was substantial evidence to support the finding of the Board that the men were discharged because of their union activities. Disregarding the evidence of inefficiency, it is clear that there was substantial evidence from which the Board could conclude that the men were discharged because of their union activities. The inconclusive character of the evidence of inefficiency left the Board some margin of discretion.
In National Labor Relations Board v. Waterman Steamship Corp., Feb. 12, 1940, 60 S.Ct. 493, 496 , 84 L.Ed. -, the Supreme Court pointed out that in- setting up the National Labor Relations Board Congress “left questions of law which arise before the Board — but not more — ultimately to the traditional review of the judiciary”; and that, in respect to administrative agencies, “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.” The Supreme Court also pointed out that “The Court of Appeals’ failure to enforce the Board’s order resulted from the substitution of its judgment on disputed facts for the Board’s judgment,” and added that “power to do that has been denied the courts by Congress.” It is equally true that a Court of Appeals cannot substitute its judgment as to weight and credibility of testimony for that'of the Board; and a Circuit Court of Appeals must give effect to all reasonable inferences in favor of the Board’s findings of fact and disregard all evidence contrary thereto. This is not a new or startling doctrine. Many persons are serving terms in prison, and many have suffered the death penalty as a result of jury verdicts which rested upon evidence which involved irreconcilable conflicts of testimony and very serious questions of credibility and weight of evidence. In many-such cases the issue of guilt or innocence has turned upon the jury’s appraisal of conflicting testimony, of circumstantial evidence, and of the weight and credibility of testimony. When an appeal is taken from the judgment of a trial court, a finding of fact, whether by the jury or the trial court, *515 cannot be disturbed by the reviewing court if there is substantial evidence to support it. No doubt our confidence in the training and experience of the trial judge eases any apprehension that we may feel by reason of our inability to appreciate clearly the considerations which have moved the jury or the trial judge in resolving conflicts of evidence against a losing party, or in attributing higher credibility and greater weight to the testimony of some witnesses than to others. And, no doubt, the rule of law which requires us to accept findings of triers of fact in judicial proceedings is justified, in part at least, by the assumption that the soundness of the findings is guaranteed by the competency of the trial judge. But, as pointed out in National Labor Relations Board v. Waterman, supra, it was the intention of Congress, by the creation of the National Labor Relations Board, “to apply an orderly, informed and specialized procedure to the complex, administrative problems arising in the solution of industrial disputes;” and in its opinion the court stated that “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.” Whether the assumed specialized and expert knowledge and experience of the personnel of an administrative agency afford sufficient guarantee of the dependability of the agency’s fact finding is a question of policy for Congress to settle, and this court can exercise only such jurisdiction in respect to the fact finding function as Congress chooses to confer upon it. If there is no substantial evidence, that is, no evidence of a “rational probative force,” to support a particular finding of fact, then such a finding is arbitrary and, as a matter of law, cannot be accepted as tile basis of any legal consequences. And under the decisions of the Supreme Court of the United States this is the only question related to fact finding over which a Circuit Court of Appeals has any jurisdiction under the National Labor Relations Act.
I am of the opinion that there was substantial evidence to support a finding by the Board that the petitioner-employer engaged in unfair labor practices iti violation of Section 8 (1) (2) by interfering with the formation of the Independent. But I find no substantial evidence to show that such Activities decisively influenced the formation of the Independent or continued to influence its administration after its organization. Consequently, I believe that the order requiring petitioner to withdraw all recognition from the Independent and to refuse to recognize it as the bargaining agent of the employees should not be enforced.
The Independent was organized in April, 1937, and the Board issued a complaint and notice of hearing on March 4, 1938. The hearing was held from March 4 to March 23, 1938, and on May 9, 1938, the trial examiner filed his intermediate report. On May 12, 1939, the Board rendered its decision, which was approximately two years after the organization of the Independent and alter the acts and occurrences upon which the proceedings were based. All the evidence respecting the administration of the affairs of the Independent during the two years prior to the hearing before the Board reasonably precludes any inference of fact that it was not a bona fide labor union in the strictest sense. It is true that it was not affiliated with a national labor organization but that is immaterial under the National Labor Relations Act.
At the time of the organization of the Independent there were between 950 and 1,000 who were eligible for membership and approximately 760 had signed applications for membership in the Independent. The Independent was incorporated in 1937 under the laws of the State of Illinois, keeps minute hooks and account books, and the hooks and records, including its minutes and the records of income and disbursements were introduced in evidence and were regular in every respect. It maintains a checking account, collects dues, and over 83,000 had been collected by the Independent from its members in the form of fees and dues at the time of the hearing. It is unquestioned that all of the cost of administration of the Independent has been paid out of its own funds. It has rented and paid for the use of a hall and all meetings arc held off company property. In the initial stages of organization it employed its attorney and has paid for his services out of its funds. It has carried on extensive collective bargaining with the company and I am unable to find anything in the form or in the character of the bargaining transactions which can be said reasonably to justify an inference that in its bargaining activities the Independent is in any sense controlled in its freedom of action by the company.
*516 The Board states as one of its. findings the following: “We find that the respondent has dominated and interfered with the formation and administration of' the Independent, and has contributed support to it; that it thereby has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.” And under the heading “The Remedy” is the following recital: We have found that the respondent has dominated and interfered with the formation and administration of the Independent and has contributed support to it. The respondent’s acts render the Independent incapable of serving the respondent’s employees as a genuine bargaining representative and render its continued recognition by the respondent an obstacle to collective bargaining through freely chosen representatives. We shall, accordingly, order the respondent to withdraw all recognition from the Independent, and to disestablish it as a representative of the employees of the 39th Street plant for the purposes of collective bargaining.”
It appears from the foregoing recitals from the decision of the Labor Board that the Board did not make an explicit finding that the petitioner was continuing to dominate and interfere With the administration of the Independent at the time of the hearing. In National Labor Relations Board v. Newport News, December 4, 1939, 60 S.Ct. 203, 205 , 84 L.Ed. -, the opinion of the Supreme Court discloses that the order of disestablishment was based upon the finding that the employer “was still dominating, and interfering with the Committee, contrary to Sec. 8 (1) of the Act [29 U.SiC.A. § 158].” The Supreme Court stated that on the record it could not say that it was error for the Board to hold "that, where an organization has existed for ten years and has functioned in the way that the Committee has functioned, with a joint control vested in management and men, the effects of the long practice cannot be eliminated and the employes rendered entirely free to act upon their own initiative without the complete disestablishment of the plan.” But in the instant case there is no such factual situation. _ The evidence of domination or interference at the inception of the organization of the Independent indicates, at the most, a relatively unimportant influence in view of the obvious enthusiasm of an overwhelming majority, of the. employees for the organization of the Independent. Furthermore,' in contrast to the situation in the Newport News case and in National Labor Board v. Greyhound Lines, 303 U.S. 261 , 58 S.Ct. 571, 576 , 82 L.Ed. 831 , 115 A.L.R. 307 , there is no substantial evidence to support hn inference of continued interference for any appreciable time subsequent to the organization of the Independent. In the Greyhound Lines case the Supreme Court stated that "we may assume that there are situations in which the Board would not be warranted in concluding that there was any occasion for withdrawal of employer recognition of an existing union before an election by employees under section 9 (c), 29 U.S.C.A. § 159 (c), even though it had ordered the employer to cease unfair labor practices.” But the court added that in the case before it the employers, by unfair labor practices, had “succeeded in establishing a company union so organized that it [was] incapable of functioning as a bargaining representative of employees.”
Under the decisions the National Labor Relations Board may predicate a cease and desist order upon a finding that an employer has committed unfair labor practices, despite a showing that the objectionable practices have ceased prior to the hearing. But an order to withdraw recognition of an existing bargaining agency and to disestablish it as the representative of employees as their bargaining agent affords affirmative relief from an existing condition or situation. Such an order effectuates the policy of the act by ending what purports to be a collective bargaining arrangement but which, in fact, “is incapable of functioning as a bargaining representative of employees,” (Greyhound Lines case, supra) or, at least, is an obstacle to collective bargaining through freely chosen representatives. And it follows from the nature and function of an order of disestablishment of a bargaining agent that the policy of the act will not be effectuated by such an order if the agency disestablished thereby is actually the free choice of a majority of the members of the bargaining unit and is genuinely free to represent the interests of the employees in their relation to the employer. Under such circumstances, an order of disestablishment would frustrate, not effectuate, the policy of the act.
Since I believe there was no substantial evidence to support the Board’s conclu-, sion that petitioner’s acts either rendered *517 the Independent incapable of serving petitioner’s employees as a genuine bargaining representative, or rendered its continued recognition by petitioner an obstacle to collective bargaining through freely chosen representatives, I conclude that the disestablishment portion of the Board’s order was invalid.