(dissenting).
I agree in the main with the conclusion that the Board is entitled to enforcement of its order. I am obliged to dissent, however, from that portion of the opinion which approves the Board’s order requiring reinstatement of Floyd Gainer and Arthur Neuschaefer.
In its brief the Board states: “The question before the Board was whether the grounds advanced by respondent were genuine or mere pretext to conceal a discrimination motive.” That is clearly a misapprehension of the situation as I understand it. The burden was on the Board to prove the charge which it had made and the question before the Board and here is whether such charge is substantially supported. As to these two employees, the Board is forced to rely largely upon its inference arising from the fact that respondent had evidenced hostility toward the Union and partiality toward the Independent. The word “inference,” notwithstanding the recent rapid development of its stature, is not sufficiently elastic to include either a guess or suspicion.
Gainer was employed and commenced work as a moulder in respondent’s plant on September 12, 1940. Previously, he had filled out an application card in which he stated he was married and had several children ; that he was a moulder by occupation and was an industrial chemist, all of which, as he admitted at the hearing, was false. In his application he also stated that he had left his previous employment of his own accord, contrary to the fact that he had been discharged by his previous employer. Previously, at a hearing before the Wisconsin Employment Relations Board, he had given testimony concerning matters material to the instant proceeding, which was at variance with his testimony before the Board. Of this witness, the Examiner, in his intermediate report, stated: “ * * * The rec- ■ ord conclusively shows, however, that Gainer falsified his application for employment with the respondent; and at the hearing was an untruthful and unreliable witness giving testimony on material issues at variance with his testimony before the Wisconsin Employment Relations Board. In view of these factors, the undersigned will not recommend his reinstatement.”
Gainer was discharged on October 8, 1940, less than four weeks after his employment. It is true, in the meantime he had joined the Union. It is conclusively shown, however, as pointed out by the Examiner, that he obtained his employment by inexcusable misrepresentations. I think there is no question but that respondent had a right to discharge him at any time after learning of the fraudulent manner in which it had been induced to accept him as an employee. In addition, his work was not satisfactory, due perhaps to the fact that he was inexperienced as a moulder. If he had been experienced, as he represented, the situation in this respect might have been different. Notwithstanding that respondent had a valid reason for Gainer’s discharge, which was of Gainer’s own creation, the Board indulges in the unreasonable inference that respondent adopted an *584unlawful means for his dismissal. To me this inference does violence to common sense and should not be indulged in.
Neuschaefer was. another short-time employee. He signed an application card on August 20, 1940, and was discharged October 11, 1940, for failure to submit to a medical examination. In the meantime he had become President of the Union. He was put to .work on a moulding press which operated under high temperatures. On September 18, after working two and one-half hours, he became ill and was forced to leave the plant. According to his own testimony, he had burned himself several times during the few days he worked. Also, he had had one or two dizzy spells and was advised to see a doctor. He was told that respondent would pay for an examination. The circumstance is aptly described by Neuschaefer himself:
“Q. In fact, he (respondent’s official) told you you would be continued on the payroll until they had the doctor’s report, and could study it? A. That’s right.
“Q. And he also told you if this doctor said you were all right, that you might come back to work ? ’ A. That’s right.
“Q. In fact, it seems to me you said he told you you would be put back to work, if the doctor said so? A. Provided the doctor’s report was satisfactory.
“Q. Didn’t he tell you that if the doctor’s report was favorable, you would be> put right back to work in the plant? A. Yes, if the doctor’s report was favorable. That’s the very words he said.”
As pointed out, he was examined by respondent’s physician and by two physicians of his own choosing. In the meantime there had also come to respondent’s notice, the fact that Neuschaefer had, in 1936, suffered a severe skull fracture and brain concussion and had been advised by his physician to rest and avoid heat. On October 2, 1940, respondent advised Neu-schaefer in the presence of a Union representative that it desired an examination by a specialist, and that Neuschaefer would be carried on the payroll until such examination was made. It was then agreed that a Doctor McCormick, an eye, ear, nose and throat specialist, should make the examination. At the hearing the Union representative admitted that Neuschaefer was told by respondent that he would be put back to work if Doctor McCormick found him physically all right. After having agreed to submit to such examination, he refused to do so on the advice of Union officials. That there was a serious question regarding his physical condition can not be doubted. The Examiner appraised the situation thus: “ * * * and in view of the fact that the record does not clearly indicate Neuschaefer’s true condition, the undersigned will not recommend that the respondent reinstate Neuschaefer until he passes a physical examination conducted by an impartial and licensed doctor. * * *»
The Examiner also made what I think was a proper recommendation that the parties agree upon a doctor to make the examination, and that if they were unable to agree, a doctor be designated by the Regional Director of the Labor Board. He was kept on respondent’s payroll from September 28, the day he became ill, until October 11, when he refused to submit to an examination by Doctor McCormick.
In my opinion, respondent had ample •justification for its request in this respect —in fact, it would have been derelict in its duty had it done otherwise, both for the welfare of Neuschaefer and his fellow employees. The most logical inference to be drawn from all the circumstances, and the one which stands out above all others, is that Neuschaefer, aware of his unfit condition, was afraid it would be discovered by the doctor and, for that reason, refused to submit to the examination to which he had agreed. In addition, Neuschaefer admitted at the hearing that respondent’s president told him that he did not care what organization he belonged to, and that his Union membership had nothing to do with sending him to the doctor. Notwithstanding this situation, the Board finds that his leadership in the Union was the reason for his discharge and that his refusal to submit to an examination was merely a pretext. So respondent is ordered to reinstate him to his former employment regardless of the hazard incident thereto, and this without an inquiry as to his physical condition. In my opinion such an order is not justified by the record.