Before MEDINA and MOORE, Circuit Judges, and GALSTON, District Judge.
MOORE, C.J.: This is a petition by the National Labor Relations Board (referred to as "Board") for enforcement of its order against respondent Ford Radio & Mica Corporation (referred to as "Ford") to cease and desist from certain practices alleged to be violative of Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act and to reinstate with back pay (now for a period of over four years) thirty-four former employees whom it discharged in early 1954.
In late January 1954, Local 365 of the UAW renewed a prior unsuccessful attempt to organize the employees of Ford, a manufacturer of mica specialties in Brooklyn, N.Y. At that time the morale of the employees was somewhat low. In late 1953 technological changes had been made resulting in a drastic cut of personnel. At the same time strenuous efforts were made to curb visting among employees and to cut down the waste of scrap. Outside firms were doing some work formerly done at the plant and a general decline in the mica specialties industry resulted in lay-offs of substantial numbers of employees. Because of a pay scale differential between men and women employees, the women were resentful, claiming that they were receiving discriminatory treatment, and the men were fearful that the plant was being converted into an "all girl shop." To make matters worse, when business picked up in January 1954 employees were not recalled on a strictly seniority basis. Accordingly it is not surprising that the Union made substantial progress in its organizational drive and succeeded in scheduling a representation election for March 3, 1954.
The trial examiner found that Ford in conducting its campaign in February against the Union interfered with the rights of the employees to organize and bargain collectively in violation of Section 8(a)(1) of the Act.*fn1 The findings on activities conducted prior to the election upon which the violation was based, such as, threats that the plant would be closed if the Union won, discriminatory promulgation and enforcement of a no-solicitation rule, and the making of various comments adverse to the Union are supported by substantial evidence. However, the findings as to statements and activities of the Ford management after the election on March 3 cannot be considered evidence of a violation.
By a narrow margin the Union lost the representation election, this result being known on March 11, 1954. On Friday, March 12, the Union's time for filing objections to the election expired without its taking action. Ford realized that the Board would shortly issue its certification (such certification, in fact, was forthcoming on the following Monday, March 15) and then decided to take a step which it had contemplated in February but which on the advice of counsel it had postponed until after the election, namely, to discharge "Big Joe" Zukowsky, foreman of the power press department. From the start of the drive, Zukowsky had been a zealous booster for Union representation. Despite orders from the management not to attend Union meetings and even suggestions from the Union organizer that he stay away, Zukowsky attended every Union meeting and at one introduced a speaker. There was also credible evidence that the vice-president of Ford requested Zukowsky to become a labor spy and received a curt refusal. The trial examiner, however, in a carefully reasoned analysis of the evidence concluded that the reason for discharging Zukowsky was not for his refusal to engage in this unfair labor practice but for his insistence upon actively participating in the Union drive.
On March 12, four female power press operators received smaller pay checks than they had anticipated and apparently believed that their expectations had been dashed because of their Union sympathies. At least two who complained were shown job tickets indicating shortages in their output. The trial examiner found: (1) that the pay cuts were not discriminatory because there was no evidence that the management knew that they were Union adherents; and (2) that the pay cuts were made in accordance with a long-standing policy as to underproduction.
On the morning of Monday, March 15, about a half-hour before starting time, Zukowsky and a group of 25 to 30 women, a vast majority of whom were in his power press department, congregated across the street from the plant and began urging other workers not to enter the plant. Twenty-three of the women did not enter the plant. Attempts by the management to ascertain the nature of their grievance, if any, proved fruitless. That afternoon Ford sent telegrams to all employees participating in the walkout to report for work the next morning or be discharged.Only one returned to work and she rejoined the group on March 18. On March 16, eleven more joined the walkout and were informed by telegrams sent by Ford to report for work the next day. None of these heeded the order. The findings by the trial examiner that the twenty-two employees who stayed out on March 15 and did not report back to work on March 16 were discharged as of that day and that the eleven who joined the walkout on March 16 were discharged on March 17 are supported by clear and convincing proof.
The Board's conclusion, however, that the discharges violated the Act can be sustained only by ignoring both the plain language of the statute and the requirements, uniformly applied in prior decisions, necessary to prove a violation. Assuming arguendo that the trial examiner was correct in holding the walkout to be a protected activity,*fn2 such a finding does not ipso facto give rise to a violation. Regardless of whatever concerted activities the employees were engaging in, if they were discharged for any other reason, the employer does not violate the Act. Thus the motivation of the employer in ordering the discharge is the crucial element in establishing a violation.*fn3 The burden is upon the General Counsel for the Board to show that the employer knew the employees were engaging in protected concerted activities and that they were discharged for engaging in such activities. NL.R.B. v. Kaiser Aluminum & Chemical Cprp., 9 Cir., 1954, 217 F.2d 366. In addition the General Counsel must show in the case of a Section 8(a)(3) violation as opposed to only a Section 8(a)(1) violation that the discharges tended to discourage or encourage membership in a labor organization. N.L.R.B. v. J. I. Case, 8 Cir., 1952, 198 F.2d 919.
None of these factors were shown by the General Counsel. From this record it cannot be inferred that Ford knew the employees who had walked out were engaged in protected activity and was motivated in discharging them for engaging in any such activity. After the trial examiner devoted eleven pages of his decision to a detailed summary of the evidence relevant to the issues of whether the means and purpose of the strike were legal and whether the employees were discharged, he observed that "It is well established that violations of the Act may be found in conduct based upon a respondent's belief, true or false, as to the union activities of his employees." Such a rule, however, does not enable the Board to engage in speculation, unsupported by the record, as to the state of mind of the employer.
The trial examiner concluded "that the Respondent discharged the employees listed in Appendix A on March 16 because they had, or Respondent believed they had, engaged in an economic strike on March 15; that the Respondent discharged the employees listed in Appendix B because they had, or the Respondent believed they had, joined that strike on March 16." Unlike the findings on the legality of the walkout and discharges, on this primary and crucial issue no evidence whatsoever is expressly relied upon to sustain this conclusion and the record discloses no proof adequate to support such a conclusion. This unsupported statement is all the more striking coming, as it does, after the thorough searching for the motivations of Ford in granting wage increases in February, in discharging Zukowsky, and in promulgating the no-solicitation rule. While it is unnecessary for the General Counsel to produce direct proof of the employer's actual state of mine (Radio Officers' Union v. N.L.R.B., 347 U.S. 17 (1954)), facts must be such as to uphold an inference of the employer's discriminatory motivation. Here the trial examiner's own difficulty in ascertaining the legality of the purpose of the walkout undermines the conclusion that Ford was probably motivated by discrimination in discharging the employees.
The trial examiner, after conducting over two months of hearings, during which he heard some ninety witnesses whose testimony built up a record of over 5,300 pages, acknowledged that "The true purpose of the strikers is not easy to determine. * * * No formal communication immediately before or after the strike began between the Union or the employees on one hand and the Respondent on the other reveals the nature of the concessions sought." In fact, the only communication between the Union and Ford regarding the aims of the employees who had walked out occurred on March 18, after the discharges had been effected. This was an informal discussion between the plant superintendent and the Union organizer who even at that time stated that the only purpose of the picketing was to see that "these people get their jobs back." Furthermore, the record also shows beyond dispute that the dissident employees prior to discharge made no attempt whatsoever to present their grievances to the management of Ford and that the attempts by Ford to ascertain the purpose of the walkout were unsuccessful.
On the morning of March 15, when Marino, the plant superintendent, arrived at work, he went over to the group and asked what was the trouble but received no information. Later on in the morning Marino again crossed the street in an attempt to learn the reason for the walkout. He conferred with Zukowsky who told him that he had advised the women not to stay out because of his discharge and that the women would like to return but believed that they had been discharged. Thereupon Marino announced to the group that no one was fired and that "the door is open, come on in." No one accepted the invitation, the bona fides of which cannot be doubted in view of the fact that Doris Noonan returned to work the next day and was not discharged for her participation in the March 15 walkout. Shortly after Marino's meeting with Zukowsky, the dissident employees dispersed thereby eliminating any chance for the management to ascertain their grievance.
Moreover, a short time prior to Marino's discussion with Zukowsky, a New York City police patrolman, upon instructions from Marino, approached the crowd and asked the group what was going on. According to the testimony of this disinterested witness, Zukowsky volunteered the information that the women were staying out because of his discharge. The trial examiner refused to consider this testimony because "Zukowsky was not the strikers' authorized spokesman" and in any event Zukowsky's "supposition" as to the reason for the strike was entitled to no weight for the reason that "a witness' testimony regarding the mental processes of other persons is incompetent." Considering the fact that Zukowsky was an active member of the group and seemingly their spokesman and that the group was then and there engaged in some sort of joint activity, it is difficult to see how this evidence could be properly rejected, particularly since the statement of purpose was made in the presence of the entire group. The patrolman's testimony could not even be excluded on the ground of hearsay since Zukowsky's explanation was a spontaneous declaration accompanying the activity. Zukowsky testified that he told the patrolman that the walkout was prompted by labor conditions in the plant, but the trial examiner found it unnecessary to resolve this conflict in testimony.
Even if Zukowsky's version is accepted and it is assumed that it was not proper evidence to show the purpose of the walkout, it was still error not to consider the testimony of Taylor, the patrolman, in determining the motivation of Ford in making the discharges. Regardless of whose version was correct*fn4 Taylor communicated the results of his inquiry to Marino. The contents of this communication were not brought out. However, since proof of motivation of the employer was part of the General Counsel's case, his refusal to elicit this readily available and crucial testimony of a disinterested ...