(dissenting).
I dissent. If this court were the original trier of fact, I might reach the same conclusion as my brethren. But we are not the original triers of fact, nor are we re-triers of fact. Universal Camera does not make us re-triers of fact. In Radio Officers’ Union of Commercial Telegraphers Union, A. F. L. v. N. L. R. B., 1954, 347 U.S. 17, 50, 74 S.Ct. 323, 340-341, 98 L.Ed. 455, the Supreme Court said “that insofar as the power to draw reasonable inferences is concerned, TaftHartley did not alter prior law.” It is the Board that draws inferences. It is also the rule that conflicts in the evidence are to be resolved by the Board, not by us.
In this case, as my brethren correctly state, the question is whether “the real motivating purpose is to do that which Sec. 8(a) (3) of the Act forbids.” In other words, did the employer have an unlawful motive ? It need hardly be said that in a contested matter we will almost never find any direct evidence coming from the party involved in support of a finding of such a motive. It must be inferred, and the inference can be drawn only after conflicting evidence is resolved. This is peculiarly a question for the trier of fact. This is such a case.
My brother Jertberg’s opinion shows where the principal conflicts lie. Harrigan stated that Dean told him that his work was satisfactory and that the order for his termination came from the shop. Dean said, in substance, that Harrigan’s work was not satisfactory and that Dean got no such order. Harrigan said that he complained to both Dean and Kellogg about their use of their cars on the job, and that he told Kellogg, in Dean’s presence, that he was going to file charges with the union. Kellogg denies this, but Dean, in part, corroborates Harrigan. It was Kellogg who most strongly supported the claim that Harrigan’s performance was unsatisfactory. Dean’s similar testimony is partly hearsay. Harrigan said that Mrs. Ray called him a trouble-maker and said that she didn’t want him on the job, and that he was doing nothing but preferring charges against people.. Mrs. Ray denied this. North corroborates Harrigan, saying that Dean told North that Harrigan’s work was satisfactory, and that Mrs. Ray told North that Harrigan was a troublemaker. Mrs. Ray at least implied that Harrigan was drunk when he called upon her. This is contradicted by Aldrich. On the question of Harrigan’s ability to perform satisfactorily, it appears that he had 41 year’s experience, and had on three other occasions been employed by this employer.
To decide the question presented, the trial examiner had to decide whom he would believe, and then to infer the ultimate fact — did the employer have the unlawful intent? I suggest that in such a case the examiner, as the trier of fact, had an incalculable advantage over us. He saw and heard the witnesses. He had a far better basis for determining these, issues than we do. We ought to adhere to the usual rules as to the resolution of conflicts in testimony and the drawing of inferences that must rest in large part upon the fact finder’s judgment as to the motives of persons whom he has seen and heard and we have not.
The trial examiner’s findings cover eight pages of legal cap, single spaced. In them he carefully examines the testimony, specifically resolves the conflicts, and states his reasons. He did not resolve every conflict against the employer. Thus he found that Dean and Kellogg decided that Harrigan should be terminated. He also found that Dean told Harrigan that he had “orders from the shop.” It would unduly extend this opinion to describe in detail the manner in which the trial examiner resolved the conflicts and drew the ultimate conclusions that “the knowledge of Dean and Kellogg with respect to Harrigan’s proposed course of conduct [i. e. preferring charges against them with the Union] provided the principal, if not the sole *924motivation for their decision” to terminate Harrigan. I am of the opinion that his decision, adopted by the Board, is “supported by substantial evidence on the record considered as a whole,” and is therefore “conclusive” (29 U.S.C. § 160 (e)).
It has been said, and I think correctly, that the Taft-Hartley Act, as construed in Universal Camera, did not make the Board’s findings as vulnerable before us as those of a trial judge (N. L. R. B. v. Smith Victory Corp., 2 Cir., 1951, 190 F.2d 56). But even if it did (cf. N. L. R. B. v. Grand Central Aircraft Co., 9 Cir., 1954, 216 F.2d 572, 573), I do not think that this is a proper case for us to reverse, because the decision rests primarily upon an appraisal of the veracity and the motives of those who appeared before the trial examiner.
The Supreme Court has, since Universal Camera, applied to Board cases the usual rule that the findings of the trial examiner, on matters involving credibility, are generally to be upheld. N. L. R. B. v. Walton Mfg. Co., 1962, 369 U.S. 404, 408, 82 S.Ct. 853, 7 L.Ed.2d 829. We have applied the same rule. (N. L. R. B. v. International Longshoremen’s Union, 9 Cir., 1960, 283 F.2d 558). We have applied the rule, recognized as proper in Universal Camera (see 340 U.S. 488, 71 S.Ct. 464-465, 95 L.Ed. 456), that so long as there is substantial evidence in the record “we may not disturb the finding [of the board] * * * notwithstanding we probably would have reached a different conclusion had we been the triers of the facts.” (N. L. R. B. v. Sun Co., 9 Cir., 1954, 215 F.2d 379, 381; see also N. L. R. B. v. Mrak Coal Co., 9 Cir., 1963, 322 F.2d 311; N. L. R. B. v. United Ass’n of Plumbing Indus., 9 Cir., 1962, 300 F.2d 649; N. L. R. B. v. International Longshoremen’s Union, supra; N. L. R. B. v. Sebastopol Apple Growers Union, 9 Cir., 1959, 269 F.2d 705, 710). The good relations of the employer and the union is material evidence, but not controlling. (See N. L. R. B. v. Mrak Coal Co., supra; N. L. R. B. v. Whitin Mach. Works, 1 Cir., 1953, 204 F.2d 883).
I think that my brethren push Universal Camera too far. I would enforce the order. However, because my brethren do not pass upon the question, I likewise refrain from expressing any view as to-the Board’s authority to require payment of interest upon a back pay award.