(concurring and dissenting).
I concur in the Court’s disposition save for its setting aside so much of the order as finds Scrima’s discharge to have been an unfair labor practice. In view of my agreement with my brothers’ conclusions *908as to Serima’s conduct, I should be happier if I could conscientiously join in this portion of the decision, too. However, I am forced to conclude that in this respect the majority has gone beyond the power conferred on us by Congress, and that the proper course is to remand this issue to the Board for further consideration in the light of our conclusion that some of the bases on which it rested its decision are untenable.
The issue here was not whether Bon-R had legitimate grounds for discharging Scrima or even whether his discharge reflected such grounds. Discharge of an employee has been held to be an unfair labor practice if it is motivated only in part by the employee’s union activities. N. L. R. B. v. Jamestown Sterling Corp., 211 F.2d 725, 726 (2 Cir., 1954); Sunshine Biscuits, Inc. v. N. L. R. B., 274 F.2d 738 (7 Cir., 1960). Whether such motivation existed here was a “question of fact” as to which 29 U.S.C. § 160(e) and (f) direct that “The findings of the Board with respect to questions of fact If supported by substantial evidence on the record considered as a whole shall be conclusive.” N. L. R. B. v. Nevada Consolidated Copper Corp., 316 U.S. 105, 62 S.Ct. 960, 86 L.Ed. 1305 (1942). Evidence to support a finding of fact by an administrative agency is substantial if the evidence is “enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” N. L. R. B. v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939). A verdict may be directed only “When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict.” Brady v. Southern Ry. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943); 5 Moore, Federal Practice (2d ed. 1951), 2314; 9 Wigmore, Evidence (3d ed.), 299.
To me it is plain that Spielman’s doings on August 23 afforded ample basis for a reasonable conclusion that Spielman discharged Scrima at least in part because of union activity. My brothers quote Spielman’s statement of the August 23 incident; the employees’ versions were rather more colorful. Scrima testified that, just after his admission of union activity, Spielman said “Right here, as of now, you’re fired. Get your clothes and get out.” Holmes stated that Spielman told Scrima to take his men down to the union organizer’s shop, that nobody could tell Spielman how to run his shop, “and furthermore, you’re fired. He said, ‘You can pack your gear and get out of here right now’.” Ford’s testimony was that, as soon as Scrima confessed to union activity, Spielman said, “You’re fired here and now. You can get your things and leave.” Tyson’s version of Spielman’s remark was, “Well, if you are working in a union shop, it won’t be in this shop, it will have to be in some other shop. If I want a Union here, I will get it. If I don’t, it won’t come in. As of right now, you’re fired.” Reid’s account was “if you want the Union in here, you can work in a Union shop. You can leave now.” It was stipulated that the testimony of three other witnesses “would follow the pattern already established.” In the light of all this, I am at a loss to understand what my brothers find ambiguous in Spielman’s remarks to Scrima; indeed, if the curtain had dropped at this point and stayed down, the evidence that Scrima’s discharge was motivated at least in part by his union activity would have been not only substantial but overwhelming.
True, the curtain rose again, and the Board could properly have disregarded the first act and taken Spielman’s statement in the second as reflecting his true intent. But it was not obliged to do so. There is no principle of law or logic that a statement made in anger or emotion inevitably affords a less valid indication of intent than one made after reflection has set in. Indeed, the contrary is true. The exception to the hearsay rule for “spontaneous exclamations” is based upon the very consideration “that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere ex*909pression of one’s actual impressions and belief.” 6 Wigmore, Evidence (3d ed. 1940), 139. It is for this reason that a hearsay declaration which is “spontaneous, excited, or impulsive”, such as Spiel-man’s initial utterance, is admitted under this exception, whereas one which is “the product of reflection and deliberation”, such as that made on his return, is not. McCormick, Evidence (1954), 580. Nothing in the testimony of the other employees shows that they regarded Spiel-man’s first utterance as an aberration and his second as the true revelation of his mind. The absence of threats to them is inconclusive, both because Scrima had been the instigator and because, as the Board could permissibly infer, further threats may not have been deemed required.
Bon-R argues that, however all this might be if the Board had heard the evidence or had sustained an examiner who did, here the Examiner’s contrary finding tips the scale. This finding was that, despite the words used in firing Scrima, Spielman was then exercising “his predetermined decision to discharge Scrima” for cause and “used language which did not convey his real purpose and motive.” The Examiner so found because “not only from the testimony in the record, but from his appearance on the stand, it is and was evident that Spielman, a high strung, temperamental person, misspoke himself when he discharged Scrima.” The Examiner thought also that when Spielman “rushed from the room, he was not in control of his emotions or his thinking processes” and that what Spiel-man said on his return reflected his true intent, since the Examiner was “convinced that Spielman had no union animus.” As against this the Board, accepting the Examiner’s finding that Spielman was a “high strung, temperamental person”, was “convinced, contrary to the Trial Examiner’s conclusion, that Spiel-man’s language at the time of the discharge did convey his real motive and purpose.”
Part III of Mr. Justice Frankfurter’s opinion in Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 492-497, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951), rejects both polar positions on the effect of an examiner’s finding contrary to that of the Board. An examiner’s report, being a part of “the record”, cannot be excluded from the data a reviewing court must consider in determining whether a finding with respect to a question of fact is “supported by substantial evidence on the record considered as a whole.” But the statute “is wholly inconsistent with the notion that it [the Board] has power to reverse an examiner’s findings only when they are ‘clearly erroneous’,” id. at 492, 71 S.Ct. at 467, a point reemphasized in F. C. C. v. Allentown Broadcasting Corp., 349 U.S. 358, 364-365, 75 S.Ct. 855, 99 L.Ed. 1147 (1955). The proper solution lies in between: “The findings of the examiner are to be considered” by a reviewing court “along with the consistency and inherent probability of testimony,” with the “significance of his report” depending “largely on the importance of credibility in the particular case”; “evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion.” 340 U.S. at 496, 71 S.Ct. at 469.
Here, insofar as the physical happenings at the August 23 meeting were disputed, we have sustained the version adverse to Bon-R, finding that Spielman repeated his assertion of the previous day that he would not have a union unless he wanted one, and that Scrima’s statement was in answer to a question and not volunteered as Spielman said. What remains in controversy is not what happened, but what conclusion concerning Spielman’s intent is to be drawn from what happened. Although “The state of a man’s mind is as much a fact as the state of his digestion,” Edgington v. Fitzmaurice (1885), 29 Ch.D. 459, 483, we have not yet developed mental X-rays permitting this “fact” to be determined by direct observation rather than by in*910ference. With the objective facts here not in dispute, the Examiner had only one datum for inference-drawing that the cold record would not contain, namely, his observation of Spielman, which led him to find that the latter was “a high strung, temperamental person.” Lack of “union animus” can hardly be discerned from the bearing of a witness months after the event, although in some instances the contrary might be. Without questioning this finding as to Spielman’s emotional make-up, the Board chose to conclude that what Spielman said in anger indicated his intent better than what he said on reflection. Even under the more limiting standards of the “not clearly erroneous” principle, F.R.Civ.Proc. 52 (a), we have reversed a trial judge’s finding where, after giving “every possible probative force” to oral testimony of intent, we were convinced that what the man indisputably said made “plain what he really believed.” E. F. Drew & Co. v. Reinhard, 170 F.2d 679, 683-684 (2 Cir., 1948). Still more directly applicable is F. C. C. v. Allentown Broadcasting Corp., supra, where the Supreme Court reversed a decision of the Court of Appeals for the District of Columbia reversing an agency’s reversal of an examiner’s finding that witnesses had been “evasive” — a matter as to which the examiner has peculiar opportunities for observation; the Court there disapproved, 349 U.S. at 364, 75 S.Ct. 855 the statement of Judge Learned Hand on remand in N. L. R. B. v. Universal Camera Corp., 190 F.2d 429; 430 (2 Cir., 1951), on which the Court of Appeals had relied, 94 U.S.App.D.C. 353, 222 F.2d 781, 786 (1954), that “we are not to be reluctant to insist that an examiner’s findings on veracity must not be overruled without a very substantial preponderance in the testimony as recorded.” See N. L. R. B. v. Ra-Rich Mfg. Corp., 276 F.2d 451, 454 (2 Cir., 1960).
We thus may not properly set aside the portion of the Board’s order relating to Scrima’s discharge. But we are equally not obliged to enforce it. The Board’s finding rested not merely on Spielman’s statements on August 23 but on the Board’s views, erroneous as we all hold, that there was no credible evidence that Scrima’s work was inferior or that Spiel-man believed him to be dischargeable for cause, and also that Spielman had done something seriously wrong in his interrogation of the employees on the previous day. Since we cannot tell whether the Board would make the same finding as to Spielman’s intent in discharging Scrima with these supports removed, we should remand this phase of the case for appropriate reconsideration. N. L. R. B. v. Lundy Mfg. Corp., 286 F.2d 424 (2 Cir., 1960).