*2 SOBELOFF, Before BRYAN and J. Judges. BELL, SPENCER Judge: SOBELOFF, Circuit Relations Board Labor National adopted trial examiner its Norfolk, Architects, that Naval Virginia, unfair had committed 8(a) practices (1) of sections violation Labor Relations National Act, 158(a)(1), 29 U.S.C.A. §§ (1958). to cease ordered practices and and desist from unfair pay six machinists to reinstate with back discharged and machinists’ height organizing findings think trial examiner’s We .the fairly and are sub- recommendations stantially supported in the record as a order is en- the Board’s whole titled enforcement. approach
I a similar to Parker and Tate. Wade, sought Like to obtain from operates ship Naval Architects re- the machinists details of union meet- yard ninety percent pair in Norfolk and ing repeated admonition that Navy. of its work is done for Dur- company practice retaining ma- ing summer of 1963 the general yard to do chinists work in the employed people, including from 60 to 80 *3 periods slack between contracts complaining employees —machin- company would be terminated if the was Tate, Jones, Parker, Brown, ists Teller organized. also to Par- Oliver remarked Paquin. and no machinists’ work When helper ker that machinist’s available, company’s was consistent alleged here, discriminatees seem- assign practice towas the machinists to “tangled up Union,” toed with the general clean-up and work maintenance talking since Oliver seen him to one yard. Thus, around the six of these all organizers.2 union continuously machinists had been on the company payroll years up prior for two again, Thursday night, Once on June to their Friday, on June 14. company representative contacted Parker an effort to elicit information began On June union1 organizing about the union’s drive. Su- organizing drive with the distribution of perintendent telephoned Forbes gate. company’s handbills at the front particularly inquired and “who stir- was activity, Edgar When informed up people.”3 rin’ it with the colored Everhart, company’s president, or- any knowledge, Parker disclaimed pictures dered taken of handbillers Forbes insisted he must be aware since, testified, as he later he was “cu- going of what was on his close as- they rious to know what look like.” Su- replied sociation with men. Parker perintendent pictures, Forbes took the that he not “white rat” on presence company of several em- workers, persisted, his fellow but Forbes ployees. arguing reporting ac- union’s meeting, The first union held the next “ratting” would not tivities and that Friday, June was attended machin- Parker should be “once for Parker, Paquin, ists Tate and and ma- always company.” for the Forbes helper following chinist’s Jones. The took the stand but did not Parker’s refute Monday Supervisor approach- L. Wade C. testimony. ed Parker and Tate and them if asked any Negroes super- day, Friday, under Wade’s The next Su- meeting. vision had pervisor again attended the Wade warned machinist given told Tate, Tate that week, he had as he had done earlier orders to the men under him not in, to at- that if union did come machinists any meetings. that, tend solely He added would be retained to do machinists’ organizing successful, if the work, layoffs drive was and that some would re- doing the men would be limited to sult. The gaged at the time was en- jobs specific they for overhauling eight which had been for LCVPs hired and would lose Navy, the benefit of the and no likelihood immediate practice prevailing whereby layoffs theretofore appeared. for lack of work assigned fact, machinists were complainant to other duties five of when Saturday machinists’ work was unavailable. asked to work overtime on were supervisor, Oliver, get Another help later made some of the out. About boats 1. open United Industrial Workers of North were afraid attend meetings. America of the Seafarers’ International America, Gulf, Union of North Atlantic Although grown Parker and Forbes had District, Lakes and Inland AFL- Waters area, in the same had never n CIO. socially associated and Forbes had never arranged private meeting 2. Jones later before called Parker. Negro employees discovering on identity meetings and the at Foreman L. D. Wade 1:30 that afternoon organizing were active men who Satur- to work on asked Tate and Teller idle insist Paquin is day; likewise Jones coercive, every is conceivable by Supervisor Oliver to work asked that was Sunday, transferring hold no more than Saturday we also, present helper Brown, context. piping. Machinist’s . by Supervisor told McKee was The contention made Saturday. witnessed could which event However, orally, 4:30 that afternoon and that therefore same described suddenly men, Parker, unobjectionable. But photograph all five Contrary company’s question of the laid off. have before us we admissibility photograph; practice, it is none the men normal warning.4 given photographing had the Each itself that advance act furloughing slip tendency in “[b]e- handed in these circumstances *4 unusually of an workload” small timidate. “as be recalled and told that he Regarding supervisors’ the re soon as work is available.” warnings peated the machinists might in slack be forced out II periods in, com if the union came the employer, These activities the 8(c) pany Act, the which cites totality, in their were not innocuous. views, permits expression “any the ” them, clearly From * * * the examiner was argument opinion or about justified finding, the Board union, provided it “contains no threat sustaining finding, company that the reprisal promise of benefit.” force engaged 8(a)(1) had in section unfair 158(c) (1958). 29 U.S.C.A. But we § practices during period the immedi think the examiner was warranted ately preceding the of the ma than a conclusion that more supervisors’ chinists. The efforts expression opinion mere or colorless company have the inform the prophecy. En N.L.R.B. v. See Stanton employees’ fellow about in the activities terprises, 261, (4th F.2d Inc., 351 264 organizing campaign, photo and the 1965). an the context Cir. Within graphing handbilling pres organizing campaign these could remarks company plain employees, ence were regarded designed improperly as well be Act, violations of whether or discourage participa the machinists’ See, were actual fact. See, by threatening loss of work. g., Corp., e. N.L.R.B. Preston v. Feed 309 g., Bros., Inc., e. 301 N.L.R.B. v. Lester 346, (4th 1962); F.2d 351 Cir. N.L.R.B. 1962); 62, (4th N.L.R.B. F.2d 67 Cir. May Department Co., F. v. 154 Stores Corp., F.2d Bus 159 v. Norfolk Southern 533, (8th Cir.), denied, 535 2d n. 2 cert. (4th 518 Cir. U.S. 627 S.Ct. 91 L.Ed. Ill (1946). inquiry in N.L.R.B. v. Cov ington allegations (4th Replying Motor 344 F.2d Cir. dis- criminatory Everhart, concerning signatures discharges, Mr. membership company’s president, which itself he cards testified that ready entirely disclose, lay personally decision off of an made the including complain- persistent employees, different order from the in terrogation employees early ants, shown here after afternoon conference lay- happened Superintendent elicit information as what Forbes.5 with activity, 4. President testified that the union Everhart the root of ered give company’s ad- custom to machinists; he who had taken it was vance notice. handbilling pictures initial Eorbes, and solicited machinist previously noted, had among ferreting activity employees. active out those he consid- offs, asserted, hearing, proof Everhart Board dictated there is from which company’s may fairly find, lack of work the examiner as he did past months, pointed here, layoffs out several he that the were motivated complaining purpose four of the six ma- with union or interfere July ganizational chinists were recalled on 16 after activities. N.L.R.B. v. See company Navy Georgia Rug Mill., received new con- 91-92 308 F.2d (5th 1962); Wells, tract.6 The failure to recall Brown and Cir. N.L.R.B. v. insisted, 1947).7 (9th Everhart was because no machinists’ were needed. While combatting Here, in the union’s at- retained men with several organize tempt yard, Naval Archi- seniority discharged, less Ev- those thought machinists, tects focused on the explanation erhart’s was that figures key union’s ef- to be the fort, pipefitter, these was a a classification hope pressure upon supply, in short had and that the other discourage employees other them would specifically been hired to train for a joining Machinist’s the movement. supervisor’s position. Similarly, Ever- organized private helper Jones justified company’s hart retention meeting Negro employees and was college of ten summer students on wages. “mixed known ground paid lower union; Supervisor Forbes’ with” the Finally, he testified work re- enlist machinist unsuccessful effort maining yard done in the consisted night company informer as a general cleaning finishing only, layoffs perhaps *5 most before the striking, the having the machinists’ work example been com- only, of not the but pleted. company’s preoccupation the with the campaign. Final- in machinists’ ly, the role The trial examiner’s justification company’s economic the fully evidences that he considered this why precipitously explain laid it fails to testimony tending to show economic Friday after- off six machinists late the grounds justifying layoffs, found asked of them had been noon after five timing circumstances, from the and other Saturday. en- This to work overtime requests such as sudden reversal of the for forms a sufficient basis context tire Saturday, to machinists to work on violative of discrimination the primary purpose the and effect of the Act. of the discharges discourage employee was to participation Quite in union activities. IY correctly discourage if he declared that membership Finally, ment union com a sub the stantial, motivating lay plains for the of its reason examiner’s denial mo the offs, ground specifying particulars the existence an alternate tion for a bill justification persons, places no and circumstances un be defense the derlying charge charges. employee a un discrimination Board’s 8(a)(3). charge charges 14— der is suf that on or about June ficiently if, day layoffs company officials established in addition of the — ground against an economic in Labor the six named em~ shown discriminated evidence, other than 6. The reduction in from the work force there was where membership by jus- cited of union the mere fact self-serving the dis- tification for 1963, on June statement dismissals the charged employee, compa- place prior tpke did not to the to refute the Here, layoff. layoffs complained of, justification ny’s over but occurred period January, contrary, could rea- a the examiner six-month from June to following layoffs. sonably the entire course infer design employer’s a conduct entirely membership played discourage 7. The case before us union different layoffs. part Works, from N. L. R. B. v. Brass a substantial United Inc., (4th F.2d Cir. prefers by interrogations, ployees examiner surveillance But thereafter re- reprisals. impute ulterior motive an and the threat of economic presump- only leases, a requires plain accord rather The Act statement play legalistic charges, inference fair of the not recita- or draw tion per- approach is every particular proved, employer. This fact be notwithstanding emphatic Munising Piqua N.L.R.B. v. Wood see sisted (6th contrary court mandate Products Brass v. United no reason doubt N.L.R.B. Cir. There is Board sufficiently 689, 693 Works, F.2d that Naval Architects was saying charges against for 1961), Judge Boreman there informed hearing. at the the issues to resolved us: necessary. No more was employee] was York [the “That active movant and an union member will The order organizational drive will Enforced. good for from release shield * * * discrimination If cause. Judge BRYAN, ALBERT V. partici- may from mere be inferred (dissenting). organization pation finding, The trial examiner’s ultimate discharge, activity followed adopted by Board, employer’s reason- disappears when inference layoff discrimination em- of six presented to show explanation is able ployees squarely opposed to his sub- was not that it sidiary findings. Despite Company’s [Emphasis added.] membership.” assign- employees by effort to retain its prevail is to If the examiner ing them to work “outside their holding, there should our resistance early trade,” “work slack” become im- evidence substantial least be May and, because of the work “lean” motive, and there pugn the load, temporarily these men were laid contrary first “established,” to his off 1963. The truth of this discharge was be- conclusion, explanation reducing force activity. The evidence of union *6 examiner, explicitly by was found support his by to examiner relied thus: 8(a)(1) that sections “Respondent’s evidence establish- hardly said can had been violated ed that to bid failure success- of such substance. fully had resulted in the small work- account for his final decision To assigned layoff load which it in the upon “the immediate relied examiner that, accordingly, notices and there ** * background employer’s] of [the a existed sound economic basis for Presumably, in- coercive conduct.” temporary a reduction in It force. picture a taken of the distribution cludes further showed the work force pro-union the remarks of leaflets and past according had varied opinion majority of in the enumerated workload, though it had made supervisors employees. certain layoff years and had re- tained its staff exception inquiry that period With the of Wade’s through expedient assigning Negroes supervision, of under about temporarily employees management per- unneeded other statements doing maintenance, laboring, or oth- of sonnel consisted conversations work,’ job intimacy wholly er ‘make outside their friends and without Despite photo- classifications. any latter of “coercion.” The semblance facts, Respondent free, genuine graph was and truthful. It was course, discriminatory presi- absent moti- sent to the taken vation, dent, apprise California, discontinue time then in carrying surplus employees.” It was no more of the union’s recording [Accent added.] of an which was than a event photographed eye employee concerning likewise the union’s or- repro- ganizational mind of all observers. impermissibly How activities is duction on a of it film constitutes such forbidden. This I view horrible, accept I cannot 8(c). understand. cannot in the face of section “warnings” opinion Only recognition, The which the moreover, bare given by the court ascribes to Oliver undisputed consisted the examiner of the his conversations with “strictly Parker and Tate. fact men were laid off Navy seniority” eight The three were all former enlisted order and that oth- frequently men and discussed this mutual ers were also released at the time. same On interest. two occasions Nor is it mentioned that all of the em- entry ployees observed that only “furlough- now in suit were mean that would lose ed” and were told at the time being assigned jobs benefit of to other would be recalled “as soon as work is machinists’ when work was unavailable. available”. Nor faithful to this Equally innocuous, me, it seems to representation, letters sent question employer July Oliver’s what had happened to the five machin- meetings. at the union ists here return to work. The sixth “discriminatee”, a machinist’s Superintendent is said to Forbes have helper, was not recalled because engaged practice in an unfair were not needed none been telephoning to ask “who was Particularly worthy hired since June 14. people”. stirrin’ with the colored mention, unmentioned, but left is the answer, declined as he had Company’s fact work force has right do, prove this did not steadily reduced since “background” question coercive. But testimony lay- indicated that after cold, here these relevant also. It was not a of- inquiry by supervisor drop “approxi- ficial offs the to a sub- continued —from Parker, though ordinate. mately Forbes 80” June 1963 to “a un- little companions, not social had common na- January der 60” in 1964. This circum- tive heaths and mutual friends. At one twenty-five percent stance —a reduction time Parker had asked Forbes’ advice period— force over six-month getting job. about another Forbes certainly Company’s justi- confirms the originally employed who him and fication of part the dismissals as a reemployed later him. also had Forbes general pattern, designed not a device employed Parker’s friend Tate on the punish employees. Surely recommendation of Parker. there austerity “pull employment was no of rank” and retention college boys raise Forbes’ level the summer is noted *7 majority indicating coercion. as there was no layoffs. economic reason for These facts are weak reeds indeed for rely examiner did not on this circum- 8(a) (1) the examiner’s verdict section stance, rightly so, boys because the incomprehen violations. More help- machinists or machinist’s is his use of them to sible dissolve only “general helpers ers but and la- previous finding own Furthermore, borers”. paid explanation was truthful and “establish compared pay to a $1.25 machinist’s interroga pointed ed”. That even more per to$2 hour. $2.40 unexceptionable clearly per tion is 8(c), sum, mitted we held in I think N.L. the substantial evi- Covington R.B. v. dence this case Motor warrants implica except the examiner and the Board majority any specific 8(a) is that that Wade’s conduct was a section employer whatsoever violation.