(dissenting):
The National Labor Relations Act provides in § 10(f), 29 U.S.C. § 160(f), that “the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall * * * be conclusive.” The Board is “one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect”; a court may not “displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). A court is not to overrule the Board’s rejection of a claim unless “the evidence required the Board to uphold the claim.” Amalgamated Clothing Workers of America v. National Labor Relations Board, 118 U.S.App.D.C. 191, 334 F.2d 581 (1964) (Emphasis added.).
The Supreme Court has established the principle that “ ‘The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.’ Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 286-287 [54 S.Ct. 692, 693, 694, 78 L.Ed. 1260] * * *” Rochester Telephone Corp. v. United States, 307 U.S. 125, 146, 59 S.Ct. 754, 83 L.Ed. 1147 (1939). We have recognized that this principle applies when we review action of the National Labor Relations Board. In Internat’l Woodworkers of America, Local Unions 6-7 and 6-122 v. National Labor Relations Board, 105 U.S.App.D.C. 37, 39, 263 F.2d 483, 485 (1959), we said: “On the record as a whole, we are unable to say this finding has no rational basis and it must therefore be affirmed.”
In the present case, the Board found that the employer’s “purpose for conducting the poll was * * * to ascertain whether the Union represented a current majority”; that “there is not other evidence of animus”; and that the “polling of the employees under the circumstances of this case did not carry an implied threat of reprisals or in any other way interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act.” The Board accordingly found that the General Counsel “failed to establish a violation of Section 8(a) (5) and (1) * * No doubt the Board might reasonably have found what my colleagues think it ought to have found. But if, as I think, the Board made a rational choice between two conflicting views neither of which is demonstrably right or demonstrably wrong, we should affirm.
Regarding the § 8(a) (1) charge of an unfair labor practice, the coercion of employees, the court does not decide what I think is the question before us. Instead of deciding whether the Board’s finding is or is not supported by “substantial evidence on the record considered' as a whole”, or whether there is or is not “a rational basis for the conclusions approved by the Administrative body”, the court decides only that it disagrees with the Board: “We are by no means satisfied with the Board’s ad hoc acquiescence in, if not approval of, the manner in which the Employer polled his men.” (p. 854). The court considers as an original question, without regard to the Board’s conclusions, whether or not the taking of the poll was an unfair labor practice.
I think the court errs, also, in remanding the case to the Board “for further *858consideration * * * If there was no rational basis for the Board’s order, it should be set aside and the' case should be remanded to the Board with a direction to find that the manner in which the employer polled the men was coercive. If, as I think, there was a rational basis for the Board’s order, it should be affirmed. There is no occasion to ask the Board to give the case “further consideration”.