(concurring).
The first controversy in this case is whether the Union did “induce or encourage” employees of Royal’s customers to strike against their own employers; if it did, its “object” certainly was to compel the customers to-“cease doing business with” Royal. The Board did not find that one of the purposes of the picketing was to induce the customers’ employees to strike, but it did find that such a strike would have been a “natural and probable consequence of the picketing.” This, it also found, was enough to support a finding of the “unfair labor practice” charged, because “intent not to violate is of no avail when the natural and probable consequence of the act in question is to produce a prohibited result by an illegal means. Radio Officers Union of Commercial Telegraphers Union A. F. L. v. N. L. R. B., 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455.” (It did not distinguish between “intent” and “motive.”) In spite of much misgiving I am disposed to think that this was a misreading of the Supreme Court’s decision on which the Board relied. As I understand it, the Court in that case did not say that the employer’s motive was not crucial in deciding whether he had “discouraged” joining the union; but it did say that a special finding as to his motive was not essential. So it seems to me that the upshot of the decision is that, if the evidence is strong enough, the court may conclude that, although the Board did not so find, no other finding was possible, and the case may be disposed of as though the finding had been made. I cannot otherwise account for the fact that motive was held to be critical, and yet that a finding of motive was unnecessary. Translated to the present occasion, it seems to me that we must dispose of this appeal by deciding whether the evidence was so imperative that the Board would have been obliged to find that the motive existed. That amounts to saying that we should assume that the motive did not exist unless we should have reversed any finding except that it did. That the Union may in fact have desired to cause the customers’ employees to strike I can well believe; but, since the Board did not so find, the case against it lacks an essential element, unless the evidence is so persuasive that we should have reversed a finding that it was not one of the motives of the picketing to provoke the customers’ employees to strike. Considering the extreme deference that we still owe to findings of the Board that concern labor relations,1 I am not prepared to go so far as that. It would presuppose much more acquaintance than I have with what actuates those engaged in labor disputes to overrule a finding of the Board that it had not been one of the motives of the picketing to cause the customers’ employees to strike.
*562There is stronger support for holding the picketing of the “independents” an “unfair labor practice.” Indeed, after making every allowance for the specialized experience of the Board, I am not prepared to say that I should have felt justified in affirming a finding that the picketing was not in part, indeed in chief part, actuated by a desire to induce their employees to strike. However, I do not think that we need decide that question because it seems to me that both “independents” had so far associated themselves with Royal in the controversy with its employees as to forfeit their privilege as neutrals. After the picketing began both necessarily knew of the strike against Royal; indeed, the Union’s representative spoke to each of them. I altogether agree that they were nevertheless entitled to do work for Royal’s customers. One does not make oneself a party to the dispute with a primary employer by taking over the business that the strike has prevented him from doing. On the other hand if., a secondary employer, knowing of the strike, not only accepts the customer of the primary employer but takes his pay, not from the customer but from the primary employer, I do not see any relevant difference in doing so from accepting a subcontract from the primary employer, which would certainly forfeit the exemption. As I understand § 8(b) (4) (A), it is meant to protect from industrial pressure employers, who have not made common cause with the primary employer. The theory is that they should be free to carry on their businesses without being subject to sanctions that are reasonable between parties to the dispute. When, however, a secondary employer accepts business for which the primary employer pays him, although it is not an inevitable inference that, but for the strike, the primary employer would have done the business himself, I see no reason why he should not be compelled to prove that the primary employer would not have done it, if he could have. Therefore I think that, even though the Union meant to induce a strike of the “independents’ ” employees, it was within its rights.
I am willing not to dispose of this ■ proceeding finally, but to grant another hearing, but on this record I think the order should be- reversed both as to the customers and as to the “independents/’
. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456; Radio Officers Union v. N. L. R. B., supra, 347 U.S. 17, 50, 57, 74 S.Ct. 323.