# Radio Officers' Union of Commercial Telegraphers Union, AFL v. National Labor Relations Board/Concurrence Frankfurter

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Frankfurter
* Dissenting Opinion Black
United States Supreme Court
347 U.S. 17
Radio Officers' Union of Commercial Telegraphers Union, AFL v. National Labor Relations Board
Argued: Nov. 9, 10, 1953. --- Decided: Feb 1, 1954
Mr. Justice FRANKFURTER, concurring.
In construing an ambiguous provision of a regulatory measure like the Taft-Hartley Act, a decision can seldom avoid leaving more or less discretion to the agency primarily charged with administering the statute. Since guidance in the exercise of this discretion by the Labor Board, and not merely guidance for litigants, thus becomes a function of the Court's opinion, it is doubly necessary to define the scope of our ruling as explicitly as possible.
The lower courts have given conflicting interpretations to the phrase, 'by discrimination * * * to encourage or discourage membership in any labor organization', contained in § 8(a)(3). We should settle this conflict without giving rise to avoidable new controversies.
The phrase in its relevant setting is susceptible of alternative constructions of decisively different scope:
(a) On the basis of the employer's disparate treatment of his employees standing alone, or as supplemented by evidence of the particular circumstances under which the employer acted, it is open for the Board to conclude that the conduct of the employer tends to encourage or discourage union membership, thereby establishing a violation of the statute.
(b) Even though the evidence of disparate treatment is sufficient to warrant the Board's conclusion set forth in (a), there must be a specific finding by the Board in all cases that the actual aim of the employer was to encourage or discourage union membership.
I think (a) is the correct interpretation. In many cases a conclusion by the Board that the employer's acts are likely to help or hurt a union will be so compelling that a further and separate finding characterizing the employer's state of mind would be an unnecessary and fictive formality. In such a case the employer may fairly be judged by his acts and the inferences to be drawn from them.
Of course, there will be cases in which the circumstances under which the employer acted serve to rebut any inference that might be drawn from his acts of alleged discrimination standing alone. For example, concededly a raise given only to union members is prima facie suspect; but the employer, by introducing other facts, may be able to show that the raise was so patently referable to other considerations, unrelated to his views on unions and within his allowable freedom of action, that the Board could not reasonably have concluded that his conduct would encourage or discourage union membership.
In sum, any inference that may be drawn from the employer's alleged discriminatory acts is just one element of evidence which may or may not be sufficient, without more, to show a violation. But that should not obscure the fact that this inference may be bolstered or rebutted by other evidence which may be adduced, and which the Board must take into consideration. The Board's task is to weigh everything before it, including those inferences which, with its specialized experience, it believes can fairly be drawn. On the basis of this process, it must determine whether the alleged discriminatory acts of the employer were such that he should have reasonably anticipated that they would encourage or discourage union membership.
Since the issue which the Board thus has to decide involves pre-eminently an exercise of judgment on matters peculiarly within its special competence, little room will be left for judicial review. See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 74 S.Ct. 456, 464, 95 L.Ed. 456.
What I have written and the Court's opinion, as I read it, are not in disagreement. In any event, I concur in its judgment.
Mr. Justice BURTON and Mr. Justice MINTON, having joined in the opinion of the Court, also join this opinion.
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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