BLACK, J., dissenting.

347 U.S.

"encourage or discourage" union membership. Labor Board v. Waterman S. S. Co., 309 U. S. 206, 219. Recently, however, the Labor Board has adopted the view that the Section outlaws discrimination merely having a "tendency to encourage . . ." or "the natural and probable effect" of which would be to encourage union membership. The Court apparently now accepts this interpretation, for here there is no finding that Gaynor acted in order to encourage union membership. Indeed, the Board concedes that Gaynor had no such purpose, and this concession is fully supported by the evidence. Gaynor had no desire to make retroactive payments to any employees. It yielded to the union not because it wanted to but because it was compelled to by a collective bargaining contract.

I think the Court's new interpretation of § 8 (a) (3) imputes guilt to an employer for conduct which Congress Idid not wish to outlaw. Behind the Labor Act was a long history of employer hostility to strong unions and affection for weak ones. Power over wages, hours and other working conditions permitted employers to help unions they liked and hurt unions they disliked. To enable workers to join or not join unions without fear of reprisal, Congress passed the Labor Act prohibiting such employer discrimination. But aside from this limitation. on the employer's powers, Congress did not mean to invade his normal right to fix different wages, hours and other working conditions for different employees according to his best business judgment.' Section 8 (a) (3) is aptly phrased to accomplish both these purposes.

The Board has been careful in § 8 (a)(3) cases to make findings that employer discrimination was motivated by hostility or favoritism toward union mem

1 Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 45-46 (1937); Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 182-183 (1941).

bership. Even now trial examiners and the Board continue to make findings as to the employer's purpose. The courts have regularly held that § 8 (a)(3) requires such findings, and have been called on to determine if

2 See, e. g., Fruehauf Trailer Co., 1 N. L. R. B. 68, 74-77 (1935), sustained, 301 U. S. 49, 55-57 (1937); Union Pacific Stages, Inc., 2 N. L. R. B. 471, 486 (1936), enforced as modified, 99 F. 2d 153, 168, 176–177 (C. A. 9th Cir. 1938); Kansas City Power & Light Co., 12 N. L. R. B. 1414, 1436-1453 (1939), enforced as modified, 111 F.2d 340, 349-351 (C. A. 8th Cir. 1940); Martel Mills Corp., 20 N. L. R. B. 712, 721, 724, 733 (1940), enforcement denied, 114 F. 2d 624, 630-633 (C. A. 4th Cir. 1940); Air Associates, Inc., 20 N. L. R. B. 356 (1940), enforced as modified, 121 F. 2d 586, 591592 (C. A. 2d Cir. 1941); Stonewall Cotton Mills, 36 N. L. R. B. 240 (1941), enforced as modified, 129 F. 2d 629, 632-633 (C. A. 5th Cir. 1942); Western Cartridge Co., 48 N. L. R. B. 434 (1943), enforced as modified, 139 F. 2d 855, 858-860 (C. A. 7th Cir. 1943); Robbins Tire and Rubber Co., 69 N. L. R. B. 440, 441 (1946), enforced, 161 F. 2d 798, 801 (C. A. 5th Cir. 1947); Wells, Inc., 68 N. L. R. B. 545, 546-547 (1946), enforced as modified, 162 F. 2d 457, 459-460 (C. A. 9th Cir. 1947); Victor Mfg. & Gasket Co., 79 N. L. R. B. 234, 235 (1948), enforced, 174 F. 2d 867, 868 (C. A. 7th Cir. 1949); B & Z Hosiery Products Co., 85 N. L. R. B. 633 (1949), enforced, Bochner v. Labor Board, 180 F. 2d 1021 (C. A. 3d Cir. 1950). To support its position here that an employer's purpose is irrelevant under § 8 (a) (3) the Board relies on its decisions in General Motors Corp., 59 N. L. R. B. 1143, 1145 (1944), enforced as modified, 150 F. 2d 201 (C. A. 3d Cir. 1945); Allis-Chalmers Mfg. Co., 70 N. L. R. B. 348, 349–350 (1946), enforced, 162 F. 2d 435 (C. A. 7th Cir. 1947); and Reliable Newspaper Delivery, Inc., 88 N. L. R. B. 659, 669-670 (1950), enforcement denied, 187 F. 2d 547 (C. A. 3d Cir. 1951). In the first two decisions specific findings of employer purpose were made, and in the latter the facts are substantially identical to the case here.

3 E. g., in Marathon Electric Mfg. Corp., 106 N. L. R. B. No. 199 (September 29, 1953), the trial examiner found that numerous acts of an employer violated § 8 (a) (3) because the employer "discriminated... to discourage membership in UE. . . ." In sustaining the examiner as to some of the acts and overruling him as to others the Board's decision rested on such findings as: "the discharges were not only calculated to discourage concerted activities . . . but also to

347 U.S.

I think

BLACK, J., dissenting.

they were supported by substantial evidence. the Section should not at this late date be held to penalize an employer for using his judgment in fixing working conditions unless he discriminates among employees in order to strengthen or weaken a union for his own advantage. For this reason, I would not sustain the Board's holding that Gaynor violated § 8 (a)(3).

II.

Nos. 5 and 6-The Radio Officers and Teamsters Cases. In these cases the Board found that the Radio Officers and Teamsters unions had violated § 8 (b) (2) of the Taft-Hartley Act which makes it an "unfair labor practice" for a union "to cause or attempt to cause an employer to discriminate against an employee in violadeter. . . from joining, or giving support in the future to, UE or any other labor organization"; the record did not show "that the failure to recall them [certain employees] was because of their actual or supposed connection with UE"; and there was "no evidence in the record to rebut the Respondent's [employer's] contention that its only reason for not recalling these employees was the cancellation of the contract." See also New Mexico Transportation Co., 107 N. L. R. B. No. 8 (November 13, 1953); Terri Lee, Inc., 107 N. L. R. B. No. 141 (December 28, 1953).

4 See court decisions cited in note 2, supra. See also Labor Board v. Waterman S. S. Co., 309 U. S. 206, 218, 220-226 (1940), where this Court reviewed the record and held that a finding of discrimination by an employer "because of" union membership was sustained by substantial evidence. Republic Aviation Corp. v. Labor Board, 324 U. S. 793 (1945), indicated no intent to repudiate the interpretation of §8 (a)(3) accepted in the Waterman case, supra. The Board also relies on such cases as: Labor Board v. Hudson Motor Car Co., 128 F. 2d 528, 532-533 (C. A. 6th Cir. 1942), enforcing 34 N. L. R. B. 815, 826-827 (1941); Labor Board v. Gluek Brewing Co., 144 F.2d 847, 853 (C. A. 8th Cir. 1944), modifying and enforcing 47 N. L. R. B. 1079, 1095 (1943); and Labor Board v. Industrial Cotton Mills, 208 F. 2d 87 (C. A. 4th Cir. 1953), modifying and enforcing 102 N. L. R. B. 1265 (1953). However, none of these cases is in point here, since in each the Board made findings of the employer's purpose.

17

BLACK, J., dissenting.

tion" of § 8 (a) (3). The Board found on sufficient evidence that each of the two unions here "caused" an employer to treat an employee differently from the way it treated other employees, that is, the employer was caused "to discriminate" within the meaning of within § 8 (a) (3). The Board also found that this "discrimination" had a tendency to encourage union membership. But there was no finding that either employer's discrimination occurred in order to encourage union membership. For the reasons set out in my discussion of § 8 (a) (3) in the Gaynor case, I think these findings fall short of showing an employer "violation of § 8 (a)(3).” A union does not violate §8 (b) (2) by causing an employer to discriminate unless that employer discrimination is "in violation of § 8 (a) (3)." For this reason I would reverse No. 5 and affirm No. 6.

347 U.S.

Opinion of the Court.

WALDER v. UNITED STATES.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 121. Argued November 30, 1953-Decided February 1, 1954.

Because heroin had been obtained from petitioner through unlawful search and seizure, its use in evidence was suppressed on petitioner's motion; and an indictment against him for its possession was dismissed on the Government's motion. In his subsequent trial for other illicit transactions in narcotics, petitioner testified on direct examination that he had never purchased, sold or possessed any narcotics. In order to impeach this testimony, the Government introduced the testimony of an officer who had participated in the unlawful search and seizure of the heroin involved in the earlier proceeding and the chemist who had analyzed it. Held: Petitioner's assertion on direct examination that he had never possessed any narcotics opened the door, solely for the purpose of attacking petitioner's credibility, to evidence of the heroin unlawfully seized in connection with the earlier proceeding. Weeks v. United States, 232 U. S. 383, and Agnello v. United States, 269 U. S. 20, distinguished. Pp. 62-66.

201 F.2d 715, affirmed.

Paul A. Porter, acting under appointment by the Court, argued the cause and filed a brief for petitioner.

Robert S. Erdahl argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Olney and Edward S. Szukelewicz.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

In May 1950, petitioner was indicted in the United States District Court for the Western District of Missouri for purchasing and possessing one grain of heroin. Claiming that the heroin capsule had been obtained through an unlawful search and seizure, petitioner moved