17 Opinion of the Court. terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." 61 Stat. 141. Petitioner in Radio Officers contends that it was fatal error for the Board to proceed against it, a union, without joining the employer, and that absent a finding of violation of § 8 (a) (3) by and a reinstatement order against such employer, the Board could not order the union to pay back-pay under § 8 (b) (2). We find no support for these arguments in the Act. No such limitation is contained in the language of § 8 (b)(2). That section makes it clear that there are circumstances under which charges against a union for violating the section must be brought without joining a charge against the employer under § 8 (a)(3), for attempts to cause employers to discriminate are proscribed. Thus a literal reading of the section requires only a showing that the union caused or attempted to cause the employer to engage in conduct which, if committed, would violate § 8 (a) (3).58 No charge was filed against the company by Fowler when he filed his charge against the union. The General Counsel is entrusted with "final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints," 59 but without a charge he has no authority to issue a complaint. Even when a charge is filed, many factors must influence exercise by the General Counsel of this discretion relative to prosecution of unfair labor practices. Abuse of discretion has not been shown, and, when a complaint is prosecuted, the Board is empowered by § 10 (a) "to prevent any person from engaging in any 60 58 See Labor Board v. Newspaper & Mail Deliverers' Union, 192 F. 2d 654. Cf. Katz v. Labor Board, 196 F. 2d 411. 59 29 U. S. C. (Supp. V) § 153 (d). 60 Id., § 160 (b). But see Labor Board v. Indiana & Michigan Electric Co., 318 U. S. 9, 17. Opinion of the Court. 347 U.S. unfair labor practice. . . ." It, therefore, had the power to find that the union had violated § 8 (b)(2). Nor does the absence of joinder of the employer preclude entry of a back-pay order against the union. The union cites in support of its position the language of 10 (c) 61 which empowers the Board to issue orders requiring "such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act: Provided, That where an order directs reinstatement of an employee, back pay may be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by him: 61 Stat. 147. In Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 189, we interpreted the phrase giving the Board power to order "reinstatement of employees with or without back pay" not to limit, but merely to illustrate, the general grant of power to award affirmative relief. Thus we held that the Board could order back pay without ordering reinstatement. The proviso in § 10 (c) was added by the 1947 amendments. The purpose of Congress in enacting this provision was not to limit the power of the Board to order back pay without ordering reinstatement but to give the Board power to remedy union unfair labor practices comparable to the power it possessed to remedy unfair labor practices by employers."2 Petitioner argues, however, that it will not "effectuate the policies of this Act" to require it to reimburse back pay if the employer is not made to share this burden, but, on the contrary, will frustrate the Act's purposes. We do not agree. It does not follow that because one form of remedy is not available or appropriate in a case, as here, that no remedy should be granted. It is 61 29 U. S. C. (Supp. V) § 160 (c). 62 See Labor Board v. J. I. Case Co., 198 F. 2d 919, 924; H. N. Newman, 85 N. L. R. B. 725, enforced, 187 F. 2d 488; Union Starch & Refining Co. v. Labor Board, 186 F. 2d 1008, 1014. 17 FRANKFURTER, J., concurring. clear that petitioner committed an unfair labor practice and the policy of the Act is to make whole employees thus discriminated against. We therefore hold that the Board properly exercised its power in ordering petitioner to pay such back pay to Fowler. From the foregoing it follows that: The Radio Officers' Union v. Labor Board is affirmed. Labor Board v. International Brotherhood of Teamsters is reversed. Gaynor News Co. v. Labor Board is affirmed. No. 5, affirmed. No. 6, reversed. No. 7, affirmed. MR. JUSTICE FRANKFURTER, concurring. In construing an ambiguous provision of a regulatory measure like the Taft-Hartley Act, a decision can seldom avoid leaving more or less discretion to the agency primarily charged with administering the statute. Since guidance in the exercise of this discretion by the Labor Board, and not merely guidance for litigants, thus becomes a function of the Court's opinion, it is doubly necessary to define the scope of our ruling as explicitly as possible. The lower courts have given conflicting interpretations to the phrase, "by discrimination . . . to encourage or discourage membership in any labor organization," contained in § 8 (a) (3). We should settle this conflict without giving rise to avoidable new controversies. The phrase in its relevant setting is susceptible of alternative constructions of decisively different scope: (a) On the basis of the employer's disparate treatment of his employees standing alone, or as supplemented by evidence of the particular circumstances under which the employer acted, it is open for 288037 O-54-9 FRANKFURTER, J., concurring. 347 U.S. the Board to conclude that the conduct of the employer tends to encourage or discourage union membership, thereby establishing a violation of the statute. (b) Even though the evidence of disparate treatment is sufficient to warrant the Board's conclusion set forth in (a), there must be a specific finding by the Board in all cases that the actual aim of the employer was to encourage or discourage union membership. I think (a) is the correct interpretation. In many cases a conclusion by the Board that the employer's acts are likely to help or hurt a union will be so compelling that a further and separate finding characterizing the employer's state of mind would be an unnecessary and fictive formality. In such a case the employer may fairly be judged by his acts and the inferences to be drawn from them. Of course, there will be cases in which the circumstances under which the employer acted serve to rebut any inference that might be drawn from his acts of alleged discrimination standing alone. For example, concededly a raise given only to union members is prima facie suspect; but the employer, by introducing other facts, may be able to show that the raise was so patently referable to other considerations, unrelated to his views on unions and within his allowable freedom of action, that the Board could not reasonably have concluded that his conduct would encourage or discourage union membership. In sum, any inference that may be drawn from the employer's alleged discriminatory acts is just one element of evidence which may or may not be sufficient, without more, to show a violation. But that should not obscure the fact that this inference may be bolstered or rebutted by other evidence which may be adduced, and which the Board must take into consideration. The Board's task is to weigh everything before it, including those inferences which, with its specialized experience, it believes can fairly be drawn. On the basis of this process, it must determine whether the alleged discriminatory acts of the employer were such that he should have reasonably anticipated that they would encourage or discourage union membership. Since the issue which the Board thus has to decide involves pre-eminently an exercise of judgment on matters peculiarly within its special competence, little room will be left for judicial review. See Universal Camera Corp. v. Labor Board, 340 U. S. 474, 488. What I have written and the Court's opinion, as I read it, are not in disagreement. In any event, I concur in its judgment. MR. JUSTICE BURTON and MR. JUSTICE MINTON, having joined in the opinion of the Court, also join this opinion. MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, dissenting. I. Un No. 7-The Gaynor Case.-Eighteen years ago the language considered here became a part of what is now known as § 8 (a)(3) of the Labor Act. The Court today gives that language an entirely new interpretation. I dissent. The Section makes it an unfair labor practice for an employer "by discrimination in regard to . . any term or condition of employment to encourage or discourage membership in any labor organization questionably payment of disparate wages to union and nonunion employees is "discrimination" as that term is used in § 8 (a) (3). But the Section does not forbid all "discrimination." It carefully limits the conditions under which "discrimination" is "unfair." The plain and long accepted meaning of § 8 (a) (3) is that it forbids an employer to discriminate only when he does so in order to |