dissenting:
There is no question that substantial evidence supports the Board’s order here. The majority has simply elected to credit, rely on or emphasize other evidence or to draw different inferences from the evidence than the Board and has quite flagrantly substituted its judgment for that of the Board.1
*1216The majority notes that, “The Board’s case against the Company rests at bottom on the apparent notion that blatant misconduct once tolerated at all must be tolerated forever.” Ante, at 1214. This is not the point at all; the point is that plant manager Hiller hardly raised a hand against Davidson and Miller, leading Union “radicals,” until the leaders of the newly dominant “conservative” faction met with him for two hours to demand the ouster of their rivals and adversaries. Recently there had been much bad blood between shop steward Wiseman and the Davidson-Miller element, and Wiseman switched factions to the Cox-Pennell contingent. There is certainly abundant evidence, applying Mt. Healthy or any other relevant test, to support a conclusion that the principal and proximate (if not the only) cause of the discharges of Davidson and Miller was the urgings of shop steward Wiseman and grievance committee members Cox and Pennell, which met with the prompt and sympathetic acquiescence of plant manager Hiller.2 After all, Davidson and Miller were not fired, or seriously threatened with firing for misconduct with other employees, see note 1, supra, until immediately after Wiseman, Cox and Pennell — the Union powers — closeted themselves with Hiller for almost two hours.3
In fact, before May 1979, in the four and a half years of his being plant manager, Hiller had never discharged an employee or even issued a warning or formal reprimand because of misconduct in the shop. The Administrative Law Judge and the Board concluded that, “employee discipline, whether management-imposed or self-imposed, in the plant, at all material times, was anarchic. . . [but that] Hiller [knew] of these derelictions in his shop, but openly ignored the situation on the ground that either it would improved [sic] or abate.” App. at 15. Hiller even failed to take action when informed that Miller was not operating his machine at full speed and that Miller threatened to shut the Company down, App. at 16, actions that would have clearly justified discharging Miller.
Wiseman, Cox and Pennell, who demanded the discharges, were the only Union officials ordinarily on the premises. It is, therefore, disingenuous in the extreme to suggest that they were not agents of the Union, fully clothed with apparent authority. They were the Union for all practical purposes at Eldorado.4 This case is impor*1217tant because, as perceived by the Board and based on the evidence, the Company did the bidding of the Union in destroying what had become its dissident faction. The majority seems to be unconcerned about the import of this dangerous collusion, provided there is evidence that the faction destroyed is uncouth and obnoxious.
To me the misuse of Union and Company power5 to violate the rights of employees who at the time are in ill favor with the shop steward (whom they have tried unsuccessfully to replace) and the grievance committee (which has been turned over to their rivals) is of controlling significance in this case. Whether the employees fired were incidentally irritating and obnoxious should not be determinative. We should not allow concern for factory decorum to blind us to injustice in the abuse of power. Of course, under other circumstances, it might have been acceptable to fire Davidson and Miller for misconduct. But here no one appears to have thought of that course until the victims had a falling out with the shop steward and Davidson and Horton were replaced by their adversaries as committeemen. Company power should not be used as an instrument of Union politics.
There is also substantial evidence to support the Board’s finding that the Union failed to accept and process the Miller and Davidson grievances when Union representative Blackburn committed the matter to the tender loving care of Wiseman — a prime antagonist of the terminated duo.6
I therefore respectfully dissent.
. For example, the Administrative Law Judge and the Board found that, “[although the evidence shows that the Miller-Davidson faction (of which Wiseman was a member until after the strike ending April 2, 1979) appeared to be the more aggressively vulgar, there is no dispute on this record that each faction behaved badly to and irritated the other.” App. at 4.
The Administrative Law Judge and the Board also noted that,
[Hiller’s] one act of disciplining Davidson, on May 4, for insubordination, stemmed not from Davidson’s misconduct with co-employees (which was the gravamen of Wiseman’s and Pennell’s complaints), but rather from a direct confrontation with Hiller himself. Miller’s conduct with respect to Hiller, in any event, in no way precipitated Wiseman’s demand for Davidson’s and Miller’s discharges and I reject Hiller’s assertion at the hearing that it was an underlying cause for the two discharges.
App. at 18 (emphasis supplied).
. The Board concluded that
Hiller discharged Miller and Davidson only because of the urging of Respondent-Union, which urgings found an entirely sympathetic ear in Hiller because of Hiller’s desire, as a matter of Respondent-Employer’s interest, to rid itself [sic] of two employees who were continually showing dissatisfaction and causing him ‘aggravation’ because of his alleged contract violations in doing unit work.
App. at 16 (emphasis supplied). This analysis at the very least supports the view that, without the urgings directed at the Company by the Union leaders, there would have been no firings. The Company, therefore, has not carried its burden under Mt. Healthy.
“[T]he District Court should have gone on to determine whether the [employer] had shown by a preponderance of the evidence that it would have reached the same decision as to [the employee’s] reemployment even in the absence of the protected conduct.” Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977).
. The analysis of the testimony by the Administrative Law Judge (and the Board) is that
whereas Wiseman specifically denied that he asked for their discharges, 1 credit Cox that Wiseman threatened to quit because of the abuse from ‘those two,’ naming Davidson and [Miller] and I have credited Horton and Beam who testified, without contradiction, that later on the same date, May 11, after Miller and Davidson had been discharged, Wiseman told them T had to do it.’ This has no reference, in my estimation, other than to the fact that Wiseman had urged Hiller to discharge Miller and Davidson.
App. at 15.
. The Board stated that
The uncontradicted evidence shows that these three employees [Wiseman, Cox and Pennell] and their predecessors represent the unit (together with the Union business agent Richard Blackburn, where matters concern negotiation of terms of a collective-bargaining agreement) in collective bargaining and individual unit employees in their grievances with Respondent-Employer pursuant to the terms of the collective-bargaining agreements between Respondents.
App. at 3 n. 1. This state of facts established a prima facie agency of the three to act for the Union in matters of discharges and grievances.
. The majority’s defense of “Union representatives . . . [as] proper vehicles for communicating employee dissatisfaction to management, even concerning the disruptive actions of other employees,” at 1213, conveniently ignores the spectacle of the Company’s ultimate weapon of discharge in the service of Union power directed at a competing Union faction. Substantial evidence and inferences properly drawn from it support the Board’s view.
. The Board found that, although Miller said at a grievance meeting on May 15, 1979, that he did not want his job back, he also said he wanted his backpay. The majority is therefore incorrect in its assumption that Miller had abandoned his grievance. App. at 31-32 n. 4.