(concurring).
To my mind it is clear that there was basis in the record for a finding that employee Snyder was discharged for his union activity. This happened, as Judge Driver’s opinion shows, on the evening of June 27, after the employer Radcliffe’s talk with Stimmel, which was after the employers received the union’s letter informing them of their claim of representation.
But I have had great difficulty in finding any evidence whatever that on June 22 when Maybon and Watkins were discharged, the. employers knew that concerted activity to organize a union was. afoot. The Examiner drew an inference to this effect from the fact that this was a small community, evidently on the assumption that in a town of that size everyone knows everyone else’s business, an interesting but wholly novel and insupportable rule of evidence.13 The fact that the Board, as it had the right to do, refused to credit the testimony of the employers that they did not know of the union activity, is no proof that they did. Belief that a witness is lying is not a substitute for evidence that the opposite of his testimony was the fact. A witness who testified that a horse was white, in a manner and with such demeanor as to convince the tribunal that he is testifying falsely, does not thereby furnish proof of an allegation that the horse was black. A district court, furnished with nothing better than that, would have to direct a verdict against its proponent. Cf. Dyer v. MacDougall, 2 Cir., 201 F.2d 265, 269.
To my mind the events of June 20, taken together, disprove the Board’s charges. I cannot think the Board could seriously believe that in order to influence the men respecting their concerted activities the employers, on that very evening, both wooed the men with bonuses and abused and insulted them with accusations “in a loud and angry tone of voice”. And consider also the fact that -when Maybon and Watkins, on June 22, were discharged for having taken their tools and left without notice the day before, Snyder, who had done the same thing, was kept on when he told a tale about having gone home. Surely this would indicate that it was not then known that Snyder had been organizing a union.
Hence, on that much of the record, I would think the order for reinstatement of Maybon and Watkins could not be sustained. However, there is one further aspect of the testimony which leads me, although with considerable hesitation to conclude that there was one bit of evi-*317denee of knowledge on the part of the employers at those earlier dates. I think the Board could believe that Radcliffe, in his conversation with Stimmel, was trying to create the impression that the employers had known all along, and at the time of the meetings, what was going on. This was evidently his purpose in showing off what he knew about Jack Thomas leaving the meeting, and in saying it wasn’t necessary to have spies. True, a literal reading of the testimony does not show that Radcliffe said, in substance, “I knew of your meetings when they were held”, but the effort to convey such an impression could be inferred. And if he was trying thus to convey that impression, I think that it amounted to an admission to the same effect. An admission of such prior knowledge would of course be sufficient to support the finding.
. Under Title 29, § 160(b), the Board’s proceedings must measure up to “the rules of evidence applicable in the district courts”.