(concurring in part and dissenting in part).
I concur with the majority holding that there is substantial evidence to support the Board’s finding that respondent had discouraged activity on behalf of the Union and had interfered with the rights of self-organization on the part of its employees and by such conduct had engaged in unfair labor practices.
As to that part of the order of the Board which required respondent to offer reinstatement to three employees who had been discharged and make them whole for any loss of pay I am of the opinion that the Board’s order should be affirmed in respect to Raymond Hoffman.
It has been stated frequently, in accordance with the statutory requir'ement of the National Labor Relations Act, that any finding of the Board is binding on a reviewing court • if the finding is supported by substantial evidence. The requirement of “substantial evidence” is met if there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”1 The Supreme Court has stated that substantial evidence “must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.”2 The -foregoing statement is of special value since Circuit Courts of Appeals frequently have passed upon the action of trial courts in overrul*437ing motions to direct verdicts. It has long been the recognized rule that the reviewing court docs not review the evidence as an original fact finding tribunal; it does not attempt to settle conflicts in evidence or to determine questions of credibility. On a motion for a directed verdict the trial court must resolve all conflicts in the evidence against the movant,3 and the credibility of the witnesses and the weight of the evidence are for the jury.4 A motion for a directed verdict is equivalent to a demurrer to the evidence and is tested by the same rules.5 “On a demurrer to the evidence by the defendant the plaintiff’s evidence must be taken as true and the contradictory evidence of defendant must be disregarded.” 6 “A motion for a directed verdict * * * is in the nature of a demurrer to the evidence. In its determination the evidence upon the part of plaintiff must be accepted as true, and every proper inference or deduction therefrom taken most strongly in favor of the plaintiff.” 7
It follows from the foregoing that when this court passes upon the question of the sufficiency of the evidence to support a finding of the National Labor Relations Board we must resolve all conflict in the testimony in favor of the finding, accept as true all testimony favorable to the finding, disregard all testimony adverse to the finding, .and give effect to all reasonable inferences which tend to support the finding of the Board. Furthermore, ordinary rules of competency do not apply and any evidence heard by the Board, oral or written, must be considered if it can be said to have “rational probative force.” 8
When the testimony relating to the discharge of Hoffman is considered in the light of the foregoing well established rules I think there is substantial evidence to support the Board’s finding.
Hoffman had worked for respondent for almost five years and in April, 1937, he joined the United, became its financial secretary and was a member of the committee which conferred with respondent. He was discharged June 17, 1937, because he had smoked a cigarette during working hours on the evening of June 16, 1937; at least this was the only reason given Hoffman at the time of his discharge. There was conflict in the testimony respecting the smoking habits of the men in the plant. There was testimony that it was customary for employees, during working hours, to go to the boiler room, where Hoffman’s alleged smoking took place, despite the “no smoking” notices posted in the plant; and there was testimony that this practice was known to respondent’s foremen and that they had participated in the smoking. There was testimony by respondent that an employee had been dismissed three or four years previous to the dismissal of Hoffman for violation of the rule against no smoking; but no one was discharged in the intervening years despite the continued smoking of employees in the plant. An employee when called as a witness by respondent testified that Hoffman said that he believed that “someone caught him smoking;” hut this employee when testifying as a witness for the Board stated that he was in a position to see Hoffman at the time that Hoffman was supposed to have smoked and that he did not see him smoking. In his testimony as a witness of the Board and during cross examination by respondent the employee had not testified to anything which would suggest that he had any reason for believing that Hoffman was smoking. Hoffman testified that he did not smoke at any time during the evening on which he was charged with smoking, and when recalled as a witness after the employee had testified Hoffman denied that he had told the employee that he thought someone had caught him smoking. Hoffman testified that he had smoked many times on company time and premises and had done so with “foremen in the plant.”
At the hearing respondent gave as additional ground for discharge of Hoffman that Hoffman’s work had been unsatisfactory. Hoffman’s foreman and the general manager of the plant testified that Hoffman was inefficient and indolent and the general manager testified that various foremen had *438complained to him about the small amount of work done by Hoffman. But the only occasion upon which he had spoken to Hoffman about unsatisfactory work was “a couple of years ago.” Hoffman’s foreman testified that he never had admonished Hoffman concerning his work. The testimony indicates that on one occasion Hoffman was criticized for his work but it also appears from the testimony that his apparent shortcoming was satisfactorily explained, and that it was not due to any fault of Hoffman. The foreman who claimed to have seen Hoffman smoking reported to the superintendent of the .plant and on the following day the superintendent gave Hoffman a written notice of discharge without any investigation of the foreman’s charge and without talking to Hoffman.
The testimony certainly is not strikingly-convincing that there was any intention on the part of the management to discharge Hoffman on the ground of inefficiency; and the testimony does not carry strong conviction that Hoffman would have been discharged, under the circumstances, solely because he smoked on the evening in question. And in connection with this comment, the Board no doubt thought that some significance should be attached to .the fact that on the hearing respondent took the position that the inefficiency of Hoffman was a contributory cause of his dismissal. It is a reasonable inference from the testimony that the owners, officials, and foremen of the plant strongly desired that either a company union or an A. F. of L. local become the representative of the employees in preference to the United local. This was not significant in itself but there was some testimony whi'ch indicated dissatisfaction with the activities of Hoffman as a member of the United.
The possible causes of dismissal which the testimony indicates are (1) inefficiency, (2) smoking on duty, and (3) union activities. The reason given to Hoffman for his discharge was smoking on duty. Since the Board could have concluded that smoking, under the circumstances which attended Hoffman’s alleged smoking on the night of June 16, was treated lightly by the management of respondent and, for at least three years had not been considered a cause for discharge, it cannot be said that the Board was unreasonable in inferring that the alleged smoking was not the actual cause of Hoffman’s discharge in view of the fact that there was some testimony which indicated that the discharge was for inefficiency or for union activities. As between inefficiency and union activities, I am unable to say that there was not enough evidence of “rational probative force” (Edison Co. v. Labor Board, supra) to support the Board’s conclusion that Hoffman was discharged because of his union activities.
Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126.
National Labor Relations Board v. Columbian Co., 306 U.S. 292, 300, 59 S. Ct. 501, 505, 83 L.Ed. 660.
Chesapeake & Ohio Ry. v. Martin et al., 283 U.S. 209, 213, 51 S.Ct. 453, 75 L.Ed. 983.
Western & Atlantic R. v. Hughes, 278 U.S. 496, 498, 49 S.Ct. 231, 73 L.Ed. 473; Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720.
Schuchardt v. Allen, 68 U.S. 359, 369, 1 Wall. 359, 17 L.Ed. 642; Brownlee v. Mutual Benefit Health & Accident Ass’n, 9 Cir., 29 F.2d 71; Chesapeake & Ohio v. Martin, supra.
26 R.C.L. 1062.
Brownlee v. Mutual Benefit Health & Acc. Ass’n, supra [29 F.2d 76].
Edison Co. v. Labor Hoard, supra, 305 U.S. page 230, 59 S.Ct. page 217, 83 L.Ed. 126.