NATIONAL LABOR RELATIONS BOARD

VII. PRINCIPLES ESTABLISHED 81
4. PROOF OF DISCRIMINATION BECAUSE OF UNION ACTIVITY —WEIGHING THE
EviDENCE
The foregoing cases represent the Board's construction of the scope
of section 8 (3). Briefly, it forbids the employer to affect or change
an employment relationship because of the employee's union membership
or activity. If the employer goes to hearing, he rarely admits
that he discriminated for antiunion reasons. Occasionally, clear evidence
of such discrimination goes uncontradicted." Generally, however,
the Board must weigh confficting evidence and the entire proof.
By statutory provision, the rules prevailing in courts of law or equity
are not controlling.' However, in considering the evidence, the Board
will dismiss the allegation of an unfair labor practice if not convinced
by the entire proof that an unfair labor practice has been committed.
The Board, in according weight to evidence, gives such weight as
a reasonable person does in the conduct of his more important affairs.
The Board's method of weighing the evidence to determine whether
the employer discriminated because of union affiliation or activity can
best be understood through the examination of the detailed findings
of fact made by the Board accompanying each of its orders. Each case
stands on its own because of the variety of fact situations. Nevertheless,
continually changing surfaces do not conceal many similar undercurrents.
The Board has articulated a number of these recurrent patterns;
it also has crystallized several general, necessarily flexible,
criteria for determining the credibility of witnesses, for resolving conflicts
in the testimony, and otherwise for making the proper findings
of fact. For illustrative purposes some of these types and criteria
are here noted.
Any antiunion activity by the employer tends to show that the
employer discriminated against particular employees on that ground.
Therefore, as stated in Matter of Penazsyhmnia Greyhound Line8,88
the Board considers "the entire background of the discharges, the
inferences to be drawn from testimony and conduct, and the soundness
of the contentions when tested against such background and
inferences." 69 The background is not confined to employer activity
In Matter of Whiterock Quarries, Inc., and Limestone Workers' Union, No. 19450, 5
N. L. R. B. 601, the respondent filed an answer in which he failed to deny the allegations
of the complaint that the discharge was because of union activity ; this failure to deny
was held to constitute an admission. Failure to file an answer was not held to constitute
an admission of the allegations in the complaint: Matter of The Triplett Electrical Company,
etc., and United Electrical and Radio Workers of America, Local No. 714, 5 N. L.
R. B. 835.
'34 Ma tter of Tiny Town Togs, Inc., and International Ladies' Garment Workers Union,
7 N. L. R. B. 54; Matter of Clover Fork Coal Company and District 19, United Mine
Workers of America, 4 N. L. R. B. 202, enforced in Clover Fork Coal Company v. National
Labor Relations Board, 97 F. (2d) 331 (C. C. A. 6th, 1938) ; Matter of Fruehauf Trailer
Company and United Automobile Workers Federal Labor Union, etc., 1 N. L. R. B. 68,
enforced in National Labor Relations Board v. Fruehauf Trailer Company, 301 U. S. 49
(1937).
°, Sec. 10b.
Matter of Pennsylvania Greyhound Lines, Inc., etc., and Local Division No. 1063 of
Amalgamated Association of Street, Electric Railway, and Motor Coach Employees of
America, 1 N. L. R. B. 1, enforced in National Labor Relations Board v. Pennsylvania
Greyhound Lines, 303 U. S. 261 (1938).
In National Labor Relations Board v. The Kentucky Fire Brick Company, 99 F. (2d)
89 (C. C. A. 6th. 1938), enforcing Matter of Kentucky Fire Brick Company and United
Brick and Clay Workers of America, Local Union No. 510, 3 N. L. R. B. 455, the Circuit Court
of Appeals stated : "We think that the attitude of respondent toward its Union employees
both before, during, and after the strike of June 18, 1935, carries a substantial inference
that these 30 men were refused reinstatement because of their union activities. This inference
is sufficient to support the order unless it is destroyed and refuted by other
evidence now to be considered." The Circuit Court held the other evidence insufficient
to destroy the inference. Rehearing denied October 12, 1938.