dissenting..
The Labor, Board was given jurisdiction by Congress to hear and weigh evidence and to determine the infer-. enees from it; to make findings of fact; and to issue-orders necessary to effectuate the purposes .of the National Labor Relations Act. In apt language, Congress *301limited the power of courts to review the Board’s findings by providing in the Act that “The findings of the Board as to the facts, if supported by evidence, shall be conclusive.”
I believe that “The inferences to be drawn were for the Board and not the courts,” 1 and that the inferences drawn by the Board were supported by the evidence. Courts should not — as here — substitute their appraisal of the evidence for that of the Board.
The Labor Board, the Federal Trade Commission, the Interstate Commerce Commission, the Securities and Exchange Commission and many other administrative agencies were all created to deal with problems of regulation of ever increasing complexity in the economic fields of trade, finance and industrial conflicts. Congress thus sought to utilize procedures more expeditious and administered by more specialized and experienced experts than courts had been able to afford. The decision here tends to nullify this Congressional effort.
The Labor Board concluded that “On or about July 23, 1935, the company refused to bargain collectively with the union as the representative of its employees, or at all, . . .” This conclusion is here set aside only because the Court believes the evidence before the Board did not support its particular underlying finding that “It seems clear that . . . [the] president of the respondent, knew that the union was seeking through the [federal] conciliators to bargain with the respondent with respect to the settlement of the strike.”
Undisputed evidence disclosed that on July 23, 1935, the conciliators — at the express instance of the Union— conferred for three or four hours with the president of. respondent; that the only purpose of the conciliators *302was to arrange a meeting between the company and the Union in order to bring about collective bargaining; that the president agreed with the conciliators to meet the Union and the conciliators at a dale to be set; but that several days thereafter (when the company had obtained other employees and was operating under the protection of the militia) the president — again acting for the company — called the conciliators and flatly refused to meet further with them or the Union. The Court finds only a single link missing in the chain of evidence showing that the company refused to bargain with the Union, i. e., that there was no evidence to justify the Board’s finding that the president of the company was aware the conciliators had approached the company at the request of the Union. But the “courts cannot pick and choose bits of evidence to make findings of fact contrary to the findings of” an administrative body.2 And the story in this record discloses a broad basis for the inference that the company did know it was actually refusing the Union’s request.
For thirty-three years prior to July, 1934, the company ran a non-Union plant. About that date, a majority of the employees were organized by an affiliate of the American Federation of Labor, The company first refused to sign an agreement with the Union but did so, July 14, 1934, upon the intervention of the Regional Labor Board • functioning under the National Industrial Recovery Act. This agreement was to continue a year, was subject to modification by mutual consent, and provided for arbitration of disputes arising under it. Thereafter, pursuant to the agreement, meetings were held between the Union and respondent' and the Union submitted repeated re*303quests and grievances, relating to the “check-off” system, wage increases, the possibility of a closed shop, etc. These were refused and counter grievances of the company were submitted and discussed. In meetings and by mail, the Union continued to submit grievances — that back-pay accrued during shut-downs was owing, that the compahy was dealing- with individual employees and, in March, 1935, that the company by refusing to arbitrate had broken its agreement. March 22, the Union called a strike, the testimony showing that it was called “on account of the company’s refusal to honor and abide by the agreement signed before the Labor Board July 14, 1934 ... [as to] minimum days, wages, and any em-plbyee being called out and not used” and because the company had “refused arbitration on this agreement.” Thereafter, the company closed its plant, consistently urged individual members of the Union to return to work and desert the Union’s efforts — by strike — to obtain collective bargaining, and publicly announced that it would not meet with the members of the Union and that it was willing to take its individual employees back, but “without Union recognition or agreement.” June 11, the company did meet with the Union’s representatives but insured the impossibility of - any successful collective bargaining by reiterating at the outset that the company would not recognize the Union. July 23, the Union asked the conciliators to see the president of the company. ’
To conclude that the company — through its president— was unaware the conciliators were acting at the instance of the Union, and, therefore, is not to be held responsible for its flat refusal to meet with its employees, is both to ignore the record and to shut our eyes to the realities of the conditions of modem industry and industrial strife. The atmosphere of a strike between an employer and employees with whom the employer is familiar does not *304evoke, and should not require, punctilious observance of legalistic formalities and social exactness in discussions relative to the settlement of the strike. It is difficult to imagine'that — during several hours of conversation between the conciliators and the company’s president concerning a future meeting of Union and company — the conciliators refrained from reference to the Union’s request that the conciliators arrange such a future meeting. In a realistic view, the company’s statement of July 23 to the conciliators, that it would meet with them and the Union, clearly indicated the company’s acceptance of the fact that the conciliators were appearing for the.Union. The company’s declaration to the conciliators, several days later, that it would not meet with the Union or the conciliators, equally represents the company^ recognition and acceptance of the fact that the conciliators were a means of dealing with the Union.
Not only did the Labor Board find the evidence sufficient to show that the. company refused to bargain with the Union on or about July 23, but the court below reached the same conclusion. The rule is well settled that findings of fact concurred in. by two lower courts will not “be disturbed unless plainly without support.”3 This rule equally applies when an administrative body and a lower court — as here — concur on findings of fact,4 and the rule is even more persuasive where, as in the Act creating the Labor Board, it is provided that “The findings of the Board as to the facts, if supported by evidence, shall be conclusive.” The majority opinion5 of the Court of Appeals in' this case said:
*305“This conclusion [refusal to enforce the Board’s action] does not mean that we approve or uphold the refusal of the respondent to meet the request of the conciliators and enter into negotiations looking toward'the settlement of disputes after the employees had quit their employment. Respondent’s employees were largely unionized. Under the Act, respondent, when requested to negotiate, was in duty bound to do so. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1. Instead it lent a friendly ear to unwise counsel wholly out of sympathy with the legislation designed to avoid and settle capital-labor disputes. It erred in its refusal to respect the law and . . . [ignored] the request of those charged with the burdensome task of working out a peaceful solution of what had become a bitter controversy. There is little or no explanation which we can find for their refusal, save an open, defiant, flouting of the law of the land.”
Respondent’s striking employees remained employees— while on strike — within the meaning of the National Labor Relations Act (§ 2 (3)) because their work had ceased “as a consequence of . . . [and] in connection with . . [a] current labor dispute. . . .” The statutory rights of these striking employees could not be destroyed, and respondent could not commit unfair labor practices and then escape liability by reopening the plant with a full complement of non-Union men.
Second. The court below was of opinion that the strike of March 22, 1935, violated the particular provision of the July 14, 1934, contract6 with the company that *306“There shall be no stoppage of work by either party to this contract, pending decision by the Committee of Arbitration.” Solely because it believed the Union had violated its contract, the court below declined to enforce the Board’s order, and held that the company could not be made responsible for'its own violation of the Act.
In this, I believe the court below was in error. A disagreement over the terms'of a contract governing employer-employee relations is a labor dispute within the terms of the Act; Such a disagreement can — as it did here — produce industrial strife which the Act was expressly designed to prevent. Had Congress provided that violation of a private contract would deprive employees and the public of the benefits of the law, a different question would be presented. But Congress did not so provide and, in addition, the Union did not violate its. contract. It contracted not to strike “pending decision by the Committee of Arbitration”' but there was no decision .“pending.”- There was no arbitration pending,because the company would not arbitrate. If the contract was broken, it was the company — not the Union — that broke it. •
I believe thé judgment of the court-below should be - reversed and that the Board’s order should be enforced.
Mr: Justice Reed joins in this dissent.Federal Trade Comm’n v. Standard Education Society, 302 U. S. 112, 117; Federal Trade Comm’n v. Algoma Co., 291 U. S. 67, 73; cf., Federal Trade Comm’n v. Keppel & Bro., 291 U. S. 304, 314.
General Pictures Co. v. Western Electric Co., 304 U. S. 175, 178; United States v. Chemical Foundation, 272 U. S. 1, 14; Virginian Ry. v. Federation, 300 U. S. 515, 542.
Illinois Central R. Co. v. Interstate Commerce Comm’n, 206 U. S. 441, 466.
Three judges sat in the court below. One wrote the opinion for the majority; the second, judge concurred in the conclusion of that opin*305ion; the third judge dissented but expressly found that there was evidence to support the findings that the company refused to bargain collectively with its employees.
“In any case in which a satisfactory settlement .of a dispute arising under this contract cannot be reached, such dispute shall be referred to a Committee of Arbitration composed of two persons *306selected by the Management, two persons selected by the Union, and fifth person to be selected by these four, who shall reach a decision which shall be final and binding upon both parties to this contract. There shall be no stoppage of work by either party to this' contract, pending decision by the Committee of Arbitration.”