311 U.S.

584
61 S.Ct. 358
85 L.Ed. 368

NATIONAL LABOR RELATIONS BOARD

v.
LINK-BELT CO. NATIONAL LABOR RELATIONS BOARD
v. INDEPENDENT UNION OF CRAFTSMEN.
Nos. 235, 236.
Argued Dec. 18, 1940.
Decided Jan. 6, 1941.

Messrs. Robert H. Jackson, Atty. Gen., and Robert B. Watts, of

Washington, D.C., for petitioner.
Mr. Henry E. Seyfarth, of Chicago, Ill., for respondent Link-Belt Co.
Mr. Benjamin Wham, of Chicago, Ill., for respondent Independent Union
of Craftsmen.
Mr. Justice DOUGLAS delivered the opinion of the Court.

The court below refused to enforce certain portions of an order of the National
Labor Relations Board, entered in proceedings1 under 10 of the Act, 49 Stat.
449, 29 U.S.C.A. 160, requiring an employer to cease and desist from
dominating or interfering with a labor organization and to withdraw recognition
from it as a collective bargaining representative of employees; and directing the
employer to reinstate or to make whole certain employees2 against whom the
Board found the employer had discriminated because of their union
membership and activities. Enforcement of those portions of the order was
refused because, in the view of the court below, they were not 'SUPPORTED
BY EVIDENCE' AS REQUIRED BY 10(e) of the act. the petition for writs
of certiorari was granted because of the importance in an orderly administration
of the Act of the mandate contained in 10(e) that the findings of the Board as
to the facts 'if supported by evidence, shall be conclusive.' See National Labor
Relations Board v. Waterman Steamship Corp., 309 U.S. 206, 60 S.Ct. 493, 84
L.Ed. 704.

Disestablishment of Independent. Independent Union of Craftsmen was

organized within a few days after the decision by this Court, on April 12, 1937,
of National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1,
57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, which upheld the
constitutionality of the Act. From 1933 down to that date the employer, LinkBelt Co., had maintained a company union, apparently continuing to recognize
it even after passage of the Act in 1935 and even though under the Act it was
concededly an improper bargaining unit. In any event, that union remained in
existence until Independent's membership drive was successfully concluded.
The organization of Independent was conceived on April 12 and 13, 1937, by
certain employees, who were disappointed at the decision upholding the
constitutionality of the Act. Linde, who was a leader in organizing Independent,
testified: 'A. The Wagner Act had been declared constitutional, and a group of
us were dismayed, I am frank to admit, or we thought there was nothing for us
to do. Q. Why were you dismayed? A. I will tell you, we had banked our hopes
that it would be declared illegal, and immediately the labor unrest and trouble
would have stopped and our company would proceed and all the other
companies would proceed to enjoy the prosperity which we thought was
coming at that time.' The membership drive took place in the main on April 14,
15, and 16, resulting in a membership of 760 out of about 1,000 employees. The
constitution was drafted on April 17. On April 18, it was decided to seek
dissolution of the old company union and recognition of Independent.
Accordingly, on April 19 an agreement was reached between the employee
representatives and plant manager Berry dissolving the old union; and he was
asked to obtain exclusive recognition for Independent. That request was granted
by the employer on April 21; and Independent held its first meeting on April
22.

An 'inside' union, as well as an 'outside' union, may be the product of the right
of the employees to self-organization and to collective bargaining 'through
representatives of their own choosing', guaranteed by 7 of the Act. The
question here is whether the Board was justified in concluding that Independent
was not the result of the employees' free choice because the employer had
intruded to impair their freedom.

Respondents point to numerous earmarks of independence which Independent

evidences. They emphasize that after it was recognized it held many bargaining
conferences and as a result obtained wage increases, changes in seniority
policy, bonus payments for night workers, a better vacation policy, better
lighting and air conditions, and improved safety measuresin fact, all of its
major objectives except a closed shop. They stress the facts that it is not
financed by the employer, that its meetings are held off company property, that

its leadership is substantially different from the employee representation in the

old company union, and that its genesis was a suggestion made not by the
employer but by a group of employees.
5

In the latter connection they urge that the employees chose Independent
because that was the type of labor organization which they honestly preferred;
or as stated by one of the employees who led the membership drive, 'It was so
big a feature that they (the employees) were all anxious to get on the band
wagon and do something. That was the general attitude.' And they maintain
that there was in fact no connection between Independent and the old company
union; that the success of Independent's membership drive was not the result of
any compulsion or belief as respects the employer's attitude.

It would indeed be a rare case where the finders of fact could probe the precise
factors of motivation which underlay each employee's choice. Normally, the
conclusion that their choice was restrained by the employer's interference must
of necessity be based on the existence of conditions or circumstances which the
employer created or for which he was fairly responsible and as a result of which
it may reasonably be inferred that the employees did not have that complete and
unfettered freedom of choice which the Act contemplates.

Here no one fact is conclusive. But the whole congeries of facts before the
Board supports its findings.

The employer's attitude towards unions is relevant. As we have indicated, it

maintained a company union both before and after the Act. And the court
below sustained the Board's finding as to the employer's long-standing
industrial espionage, through the National Metal Trades Association, which
continued at least until an investigation was made late in 1936 by the LaFollette
Committee of the Senate. 3 Further, the employer evidenced hostility towards an
'outside' union. In 1936, plant manager Berry told the board of the company
union that 'in the event outside people came into our plant and told us how to
run the plant, then I had enough of industry.' At the hearing he testified that he
meant 'that the Link Belt Company was able and had for many years ran their
organization and we did not need outside people to tell us how to run the plant
economically and efficiently.' In September, 1936, Salmons, an employee of 14
years standing, who was an employee representative in the company union and
who became dissatisfied with it, initiated the formation of Amalgamated, an
'outside' organization.4 Amalgamated held its first organizing meeting on
September 20, 1936. Salmons was discharged the next day by plant manager
Berry for 'spreading union propaganda around here.' He was given half an hour
to leave. The employer does not deny this but adds that Salmons was discharged

because he engaged in union activities on company time. That he did solicit on

company time seems clear, though it could hardly have been extensive as his
foreman testified that he was not aware of it. Yet in his association with the
company union, he apparently was allowed a similar freedom. That fact, his
position of leadership in Amalgamated, the apparent absence of the customary
warning, his somewhat precipitate discharge, the failure of the employer to
discharge representatives of Independent who, as we shall see, solicited on
company time with the knowledge and approval of at least some of the
supervisors, made permissible the Board's conclusion that Salmons' activity on
behalf of the 'outside' union was the basic cause of his discharge.5 On
September 21, 1936, another employee, Novak, who had been employed by the
company for over 11 years, was also discharged without warning by Berry,
who believed, mistakenly it would seem, that Novak was a member of and
solicitor for Amalgamated. Berry gave him half an hour to get out, after
charging him with being 'an organizer and instigator for a union' a charge which
Novak denied.6 The Board found and the court below sustained the finding that
Novak was discharged in violation of the Act because of his alleged union
activities. We agree.
9

Amalgamated, as well as Independent, solicited on company time. But a review

of the record indicates that the instances of solicitation by Amalgamated on
company time were scattered over a period of months and were apparently
more sporadic than those of Independent. At least they do not appear to have
had the magnitude and intensity of the acts of solicitation on company time by
Independent. There is considerable testimony by members of the supervisory
staff that they were instructed not to take sides in the union competition and not
to allow solicitation on company time. Plant manager Berry testified on direct
examination that those instructions were given after April 12, 1937; and on
cross-examination he admitted that they were given only after April 19, 1937,
at which time Independent had acquired a membership of 760 men. It is argued
here that the employer warned solicitors for Independent and threatened them
with dismissal for engaging in union activities on the company's time. And
Froling, chairman of the company union and active solicitor for Independent,
testified that he was wary about soliciting in the plant on company time in front
of foremen, for although he did not remember any foreman warning him, he
nevertheless was afraid of being discharged because of what had happened to
Salmons on account of his activities. It is therefore contended that no
discrimination in favor of Independent can be inferred; that the quick success of
Independent in obtaining a majority was due not to the employer's support but
to the employees' enthusiasm for that union. The Board stresses the fact that
employee representatives in the company union were extremely active
solicitors for Independent. It points out that at least six of the employee

representatives under the company union were active solicitorsFroling

virtually admitting that he solicited the entire machine shop110 to 120 men
during working hours. Kowatch, an employee, signed up between 100 and 250
men, about one-fourth on company time and twice punched out his time with
the permission of the foreman to solicit in the foundry. The company counters
with the fact that there were many solicitors for Independent of whom those
representatives were a mere minorityless than a third. There is this to be said,
however, about those conflicting claims. Most of the company union
representatives were active and prominent in Independent's membership drive
and during that drive apparently enjoyed somewhat the same privilege of
moving freely about the plant which they had been allowed as company union
representativesa privilege withdrawn after Independent had been recognized.
The instances when supervisors remonstrated with solicitors for Independent
seem to be restricted to around six or seven im number, and some of those
related to activities after the April membership drive was completed. As
respects one of the latter instances, Linde, an employee soliciting for
Independent, stated that foremen warned the men: 'You are on union business.
My God, don't let me catch you or we will fire you, or words to that effect.' But,
as the Board concluded, it seems impossible to infer that, in view of the
extensive and intensive solicitation for Independent in the plant on company
time, the supervisory staff were not aware of the campaign and did not
acquiesce in it. Beyond that is the active support of Independent by some of the
supervisory staff. There is abundant testimony that Siskauskis, a foreman,
actively solicited for Independent. One employee, Lackhouse, who earlier had
joined Amalgamated but who was soliciting for Independent in April, 1937,
testified:
10

'He took the sheets in my handthe first sheet I had already filled, with the
heading on it, and I had nothing but blank sheets left, and he went around the
machines, the molders right off the side floor there, and he told them to sign up
the Inside union here, and he signed up I believe ten, and about five of them he
signed up in his own handwriting. The majority of them in the foundry don't
know how to write. Q. And did you see him sign up these other men? A. I seen
him sign up actually about seven or eight, I am sure, in his own handwriting.
He went as far as one crane man who was working right above him, and he was
going up to him and he was going to explain what it was all about, and he says,
'Oh, heck, he don't know how to write,' so he wrote down his name, too. I don't
remember his name, I know it was John, the crane man in his department. I just
don't know his last name. Q. And then did Mr. Shaskinskis (sic) give you back
the paper? A. Yes, he returned them back to me after he had the names on
them.'

11

This episode was confirmed at least in part by Johnson, an employee.

12

Another employee, Balcauski, testified as follows respecting Siskauskis'

solicitation: 'He walked to me and he said, 'Stanley, why don't you join in the
C.I.O.'I mean this here, the independent craftsmen's union. I said, 'I am
already with the C.I.O.' He says, 'The hell with the C.I.O.' He says, 'Join in with
the craftsmen's union.' He says, 'We are going to have our union.' Then I
repeated, I says, 'Do you know under the Wagner Law that is not allowed for
the foreman to go and organize the working men on the company time or on his
own time?' He told me this, he said, 'To hell with that.' So I says, 'If you want
to sign up independent, go ahead, I ain't going to waste my time.' And I walked
away.'

13

Balcauski further testified respecting Siskauskis' solicitation of employees: 'He

told them, 'If you don't sign up'I heard it with my own earshe said, 'you are
going to get out of here."

14

Still another employee, Thomas, testified: 'Q. Did anybody ask you to join the
Independent Union? A. Everybody, Splitz (Siskauskis) comes to me with piece
of paper, sign your name. I say I can't sign my name. He says, 'All right, I sign
it myself.' And he signed it himself, my name. Q. Did he say anything more to
you about it? A. That is all that day. The second day he come around again. He
say, 'Joe, sign name.' I say, 'I sign yesterday.' He say, 'All right, it is no good, I
threw it away.' Q. It is no good, he threw it away? A. Sure. I didn't sign no
place. 'Joe,' he say, 'Sign him up anyhow, or maybe lose job.' Q. Splitz says to
sign up or maybe you lose job? A. Yes. I says, 'I sign him up if you want to.'
He come in Thursday about this piece of paper again and he say, 'Joe, sign
name.' I say, 'What is the matter, I sign him up twice, I sign him up before
yesterday and I sign him again.' He say, 'Something wrong, no good.' I say, 'I
quit, I don't want sign at all.' Q. You didn't want to sign? A. No. Q. You didn't
sign either day? A. I don't sign. At noontime he come to me and he sayI was
by him over there and he say, 'Come on, Joe, come in office sometime, we want
to see you'. Q. Did you go in the office? A. Yes. * * * Q. Some may with a
mustache was sitting there? A. Yes, sir. He say, 'What you want?' I say, 'Splitz
sent me in office, you want something?' He said he didn't want nothing from
me. Splitz come in then and grabbed my hand, and he say, 'Give him piece of
paper.' He say, 'sign his name.' I can't sign name, I say I will not sign. I said two
times I sign, I don't like it. He say, 'Sign anyhow.' Q. Who said that? A. Splitz,
'Go ahead, sign again.' I say, 'I am going out, go to work.' Q. You did not sign?
A. No. A couple of times he come to me and say, 'Sign them up.' I don't sign no
place. A lot of people don't sign, I no sign.'

15

Bozurich, an employee, testified as follows with respect to the attitude of

Siskauskis towards Amalgamated: '* * * then he went on with remarks that it
would be very bad if C.I.O. would come into the shop. And I said, 'What would
be bad about it?' I said, 'If the workers want it who an stop them?' 'Well,' he
said, 'if C.I.O. comes in the company will close the plant.' He said, 'You see
during the depression it was hard to be without a job.' I said, 'Company can't
lockclose the shop because of the union.' I says, 'That would be considered as
a lock-out.' And he said, 'Who can stop them?' 'Well,' I said, 'the government.'
He said, 'The company runs the plant and not the government.' I said, 'There is
such a thing as government Labor Board here who takes care of those
members,' and I believe I referred him towell, to be exact, I read in the paper
about a certain company somewhere in New York or New Jersey that due to
C.I.O. activities closed their plant and moved the machinery out, things like
that, to get away from the union. So I call his attention to that, to the best of my
recollection from the newspaper, that the Labor Board takes action; they got
company to put machinery back. At least that is the way I understood it so the
illustration to him is that we are not afraid of that kind. Then he twisted his lips
and said 'Oh,' he says, 'you better keep away from something like that,' he says,
'and if you want anything it is best to go to boss yourself."

16

There is also testimony that Siskauskis signed for illiterate employees, though,
with one possible exception, apparently not against their will. Siskauskis denied
that he made any such statements or that he ever solicited for Independent. The
Board refused to believe that all the opposing testimony was fabricated, and
found his denials unconvincing.

17

Lackhouse, an employee, testified that he obtained permission from Nyberg, his

foreman, to solicit for Independent, Nyberg saying, 'Well, if you have to, you
have to, Frank, so you might as well go ahead on it.' Lackhouse was delayed
about half an hour in getting started when Olson, an assistant superintendent,
took him aside in a separate room and, according to Lackhouse, 'compared the
differences between the outside union and the inside union; and he told me
about it up there, how much better off we would be if we organized amongst us
fellows, among our fellow workmen ourselves and kept the outside union out,
that you will never get anywhere with them, just striking all the time, and give
me the differences, and I listened to him about it.' Lackhouse testified that
thereupon he solicited in the plant during working hours: 'I was absent from my
job from one o'clock until quitting time walking through the whole foundry.'
On direct examination Olson denied this On cross-examination he admitted
talking briefly with Lackhouse about 'a rumor that the boys are trying to form
an independent union.' Nyberg was not called. The Board believed Lackhouse.

18

There was considerable testimony, not denied, that Belov, a night boss, also
solicited for Independent. According to one employee, Kalamarie, Belov did so
on written instructions left by foreman McKinney which Kalamarie read.
Kalamarie testified as follows respecting this conversation with Belov about
those instructions: 'Q. So when he (Belov) got this note to solicit for the
Independent Union he was a little bit puzzled by it and he asked your advice
about it? A. He did. Q. You advised him that inasmuch as his superior officer,
Mr. McKinney, had ordered him to do it, he had better go ahead and do it? A.
That is right, if he wanted to keep his job. I imagine he should.'

19

McKinney denied that he had left any such instructions, though it apparently
was his custom to leave written instructions for the night bosses on things he
wanted done. Belov was not called. Because of that and because of the
contradictory character of McKinney's testimony on certain matters, the Board
believed Kalamarie.

20

Tomas, an employee, testified that his boss, Big Louie, 'a kind of assistant
foreman,' solicited for Independent getting about ten signatures; that Big Louie
told him that 'they were trying to get the C.I.O. out of there.'

21

The court below was unable to find any evidence from which it could be
inferred that the employees did not, with complete independence and freedom
from domination, interference or support of the employer, form their own
union. But we are of the opinion that the Court of Appeals in reaching that
conclusion substituted its judgment on disputed facts for the Board's judgment
a power which has been denied it by the Congress. Sec. 10(e) provides that
the 'findings of the Board as to the facts, if supported by evidence, shall be
conclusive.' As we stated in National Labor Relations Board v. Waterman
Steamship Corp., supra, 309 U.S. at pages 208, 209, 60 S.Ct. at pages 495, 496,
84 L.Ed. 704: '* * * Congress has left questions of law which arise before the
Boardbut not more ultimately to the traditional review of the judiciary. 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. It is essential that
courts regard this division of responsibility which Congress as a matter of
policy has embodied in the very statute from which the Court of Appeals
derived its jurisdiction to act.' Congress entrusted the Board, not the courts,
with the power to draw inferences from the facts. National Labor Relations
Board v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 271, 58 S.Ct. 571,
576, 82 L.Ed. 831, 115 A.L.R. 307; National Labor Relations Board v. Falk
Corp., 308 U.S. 453, 461, 60 S.Ct. 307, 311, 84 L.Ed. 396. The Board, like
other expert agencies dealing with specialized fields (see Rochester Tel. Corp.

v. United States, 307 U.S. 125, 146, 59 S.Ct. 754, 764, 83 L.Ed. 1147; Swayne
& Hoyt, Ltd. v. United States, 300 U.S. 297, 304, 57 S.Ct. 478, 481, 81 L.Ed.
659) has the function of appraising conflicting and circumstantial evidence, and
the weight and credibility of testimony.
22

The Board had the right to believe that the maintenance of the company union
down to the date when Independent's membership drive was completed was not
a mere coincidence. The circumstantial evidence makes credible the finding
that complete freedom of choice on the part of the employees was effectively
forestalled by maintenance of the company union by the employer until its
abandonment would coincide with the recognition of Independent. The declared
hostility towards an 'outside' union, the long practice of industrial espionage,
the quick recognition of Independent, the support given Independent's
membership drive by some of the supervisory staff, the prominence of
company union representatives in that drive, the failure of the employer to wipe
the slate clean and announce that the employees had a free choice, the belated
instructions to the supervisory staff not to interfereall corroborate the
conclusion that the employer facilitated and aided the substitution of the union,
which it preferred, for its old company union. But respondents contend that
there is no evidence that the employees had a settled conviction that the
employer preferred a certain type of labor organization or that they were under
compulsion from the employer in choosing between Independent and
Amalgamated. There were, however, forces at work in the plant which make
tenable the conclusion of the Board that the employer had intruded so as
effectively to restrain the employees' choice. The employer's attitude towards
an 'outside' union coupled with the discharge of Salmons and Novak for
activities on behalf of Amalgamated would tend to have as potent an effect as
direct statements to the employees that they could not afford to risk selection of
Amalgamated. That the discrimination against Salmons had some effect is not
denied, for Froling, a witness for Independent, insisted that even he furtively
solicited for Independent because of the price paid by Salmons. When that
discrimination is contrasted to the apparent acquiescence by the management in
the open solicitation by Independent, we cannot say that the Board was
unjustified in the conclusion which it drew. As we stated in International
Association of Machinists v. National Labor Relations Board, 311 U.S. 72, 61
S.Ct. 83, 88, 85 L.Ed. 50, decided Nov. 12, 1940, 'Slight suggestions as to the
employer's choice between unions may have telling effect among men who
know the consequences of incurring that employer's strong displeasure.' Nor
does the Board lack the power to give weight to the activities of some of the
supervisory employees on behalf of Independent, even though they did not have
the power to hire or to fire. As we indicated in International Association of
Machinists v. National Labor Relations Board, supra, the strict rules of

respondeat superior are not applicable to such a situation. If the words or deeds
of the supervisory employees, taken in their setting, were reasonably likely to
have restrained the employees' choice and if the employer may fairly be said to
have been responsible for them, they are a proper basis for the conclusion that
the employer did interfere. If the employees 'would have just cause to believe
that solicitors professedly for a labor organization were acting for and on behalf
of the management, the Board would be justified in concluding that they did not
have the complete and unhampered freedom of choice which the Act
contemplates.' International Association of Machinists v. National Albor
Relations Board, supra. Here such inferences were wholly justified. The attitude
of the employer towards an 'outside' organization was clearly conveyed. When
that was followed by solicitation for Independent on the part of supervisors
who had general authority over the men, it would be unfair to conclude that the
employees did not feel an actual pressure from the management. That fact, the
failure of the employer to announce its impartiality, its delay in advising the
supervisors to remain neutral until Independent had acquired its majority, the
favors shown Independent, the discharge of Salmons and Novak, its past union
policy, all are part of the imponderables which the Board was entitled to
appraise. The fact that these various forces at work were subtle rather than
direct does not mean that they were nonetheless effective. Intimations of an
employer's preference, though subtle, may be as potent as outright threats of
discharge.
23

Respondents suggest that an order of disestablishment would make

Independent an innocent victim of the employer's inaction r of its unwelcome
action. It is urged that the subsequent conduct of Independent demonstrates its
independence and that an order directing the employer to cease and desist all
interference with the employees and with Independent is wholly adequate for
the evil at hand. The Board, however, was not forced to conclude that the
subsequent activities of Independent erased the effects of the employer's earlier
discrimination, any more than it was compelled to believe that the employer's
later show of impartiality obliterated the consequences of its prior interference
with the employees' freedom of choice. We cannot assume that the employees
will be free from improper restraints and will have the complete freedom of
choice which the Act contemplates where the effect of the unfair labor practice
is not completely dissipated. The Board not the courts determines under this
statutory scheme how the effect of unfair labor practices may be expunged.
National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., supra;
National Labor Relations Board v. Bradford Dyeing Ass'n, 310 U.S. 318, 60
S.Ct. 918, 84 L.Ed. 1226; International Association of Machinists v. National
Labor Relations Board, supra.

24

The order of disestablishment must be enforced.

25

Discharges of Employees. The court below rejected the finding of the Board
that Salmons had been discharged in violation of 8(1) and (3) of the Act. For
the reasons already stated, we think that the court erred and that the Board was
right.7

26

The Board found that in April, 1937, employment manager Staskey conditioned
the employment of Frank Solinko upon the acceptance of membership in the
Independent by his father, Pete Solinko; and that therefore the company had
violated 8(3) of the Act.8 The Board credited the testimony of Pete and Frank
Solinko against testimony of Staskey and an employee named Kowatch.
Kowatch was a solicitor for Independent whom Pete Solinko said Staskey had
told him to see. Pete, a member of Amalgamated, joined Independent. So did
Frank, who later, however, joined Amalgamated. The evidence is somewhat
confusing. But even according to Staskey, Pete Solinko did show him an
Independent card the day Frank was hired. The court below noted that even if
the testimony of Pete were true, the conversation occurred two months before
Frank was hired; and even if it took place on the day he was hired, then it was
after Independent had been recognized by the company as the bargaining agent
for the employees. We think, however, that the Board's finding was justified.
Whenever the conversation took place, the conditioning of Frank's employment
upon Pete's joining Independent was a violation of 8(3) of the Act in absence
of a valid closed-shop agreement, not present here. Viewed in that light, it also
corroborates the conclusion of the Board that the employer interfered with the
collective bargaining process by supporting Independent, though the episode
took place after Independent's membership drive was completed.

27

Karbol and Cumorich were discharged May 19, 1937. In April, 1937, Belov,
according to their testimony, had asked them to join Independent. They refused.
In the latter part of April, 1937, they joined Amalgamated. The company's
claim is that they were discharged for unsatisfactory work after time studies
had shown their inefficiency and after the day foreman, McKinney, had warned
them that their work was not satisfactory. On the other hand, they denied that
anyone had given them any such warning or had criticized their work; they
testified that at the time of their discharge Belov stated that they were good
workmen and that he did not know why they were discharged. The Board
reviewed the time studies and found they did not reveal with any degree of
precision the relative efficiency of the men. It concluded that they were
discharged because they joined Amalgamated. The evidence as to inefficiency
is quite inconclusive. The Board was justified in relying on circumstantial

evidence of discrimination and was not required to deny relief because there
was no direct evidence that the employer knew these men had joined
Amalgamated and was displeased or wanted to make an example of them.
28

The court below also refused to enforce the Board's order reinstating and
making whole Kalamarie who was discharged according to the Board because
of his union activities. He, like Karbol and Cumorich, did not accede to the
solicitation of Belov on behalf of Independent. He had joined Amalgamated in
March, 1937, was an active solicitor for it, and served on its grievance
committee. As a member of that committee, he called on plant manager Berry to
protest the lay-off of a union man. Shortly thereafter, Belov, Kalamarie's night
boss, received instructions from the day foreman to lay Kalamarie off for a
week if his work did not improve. November 30, 1937, he was permanently
laid off for an alleged lack of work as a welder and in connection with a general
reduction of employees. Until his promotion as a welder a few months earlier
Kalamarie for some time had been an acetylene burner. He testified that when
he took the job as welder, he was promised that he could go back to burning
without loss of his seniority rights if welding ran out. This was denied by the
foreman. When he was laid off, men junior to him as burners were retained. He
protested. The company insists that the refusal to restore Kalamarie to his old
position as burner was consistent with its occupational seniority policy. On this
there is some contradiction in the record. There is testimony that under
company practice an employee retained (or at least might be given) his original
seniority if he was promoted to another position in the same department. The
reasons stated for not restoring Kalamarie to his old seniority position were that
he did not ask to be put back and that the company would have had to lay off a
burner senior to him. These statements were contrary to the facts as found by
the Board. On this state of the record we think that the Board was justified in
concluding that Kalamarie was in fact discharged because of his activities for
Amalgamated.

29

The judgment is reversed and the cause is remanded to the Circuit Court of
Appeals with directions to enforce the Board's order in full.

30

Reversed.

31

Mr. Justice McREYNOLDS took no part in the consideration or disposition of

this case.

These proceedings were instituted on charges filed in 1937 and 1938 by Lodge

1604 of Amalgamated Association of Iron, Steel and Tin Workers of North

America, affiliated with the Steel Workers Organizing Committee, and through
it with the Committee for Industrial Organization. The complaint, as amended,
charged that the employer, respondent in No. 235, had engaged in unfair labor
practices within the meaning of 8(1), (2), and (3), of the Act, 29 U.S.C.
158(1), (2), and (3), 29 U.S.C.A. 158(13). Independent Union of
Craftsmen, respondent in No. 236, was allowed to intervene, was represented
by counsel and participated throughout the proceedings.
2

The Board did not sustain the charges that certain other employees had been
discharged because of their union activities.

Subcommittee of the Committee on Education and Labor, United States Senate,

of which Senator Robert M. La Follette, Jr., was Chairman. This Subcommittee
acted pursuant to S. Res. 266, 74th Cong., 2d Sess., and held extensive hearings
beginning in 1936.

See note 1, supra. Amalgamated apparently had about 400 members before
independent started its membership drive in April, 1937.

Salmons was rehired on December 21, 1936, after mediation by the Board on
the understanding that he would not engage in union activities on company
time.

Novak was reinstated in January, 1937, with the understanding that he would
not engage in union activities on company time. According to him, the
condition extended to union activities at all times. According to the company, it
covered only union activities on company time. The Board did not resolve the
conflict but noted that Novak, as a result of his understanding, did not join
Amalgamated until after the Act had been upheld in April, 1937. Novak
delayed accepting the proposal of reinstatement because of the possible
implication that thereby he would tacitly admit that he had earlier engaged in
union activities.

The Board ordered no affirmative relief with respect to Salmons as he had been
reinstated under an agreement with the company that he would not receive back
pay.

No affirmative relief was ordered as respects Pete Solinko, who was laid off in
January, 1938.