(dissenting).
The trial examiner’s ultimate finding, adopted by the Board, of the employer’s discrimination in the layoff of six employees is squarely opposed to his subsidiary findings. Despite the Company’s effort to retain its employees by assigning them to work “outside of their trade,” “work had become slack” by early May and, because of the “lean” work load, these men were temporarily laid off on June 14, 1963. The truth of this explanation for reducing the work force was explicitly found by the examiner, thus:
“Respondent’s evidence established that its failure to bid successfully had resulted in the small workload which it assigned in the layoff notices and that, accordingly, there existed a sound economic basis for a temporary reduction in force. It showed further that the work force had varied in the past according to the workload, though it had made no layoff for some 2 years and had retained its staff during that period through the expedient of assigning temporarily unneeded employees to doing maintenance, laboring, or other ‘make work,’ outside of their job classifications. Despite the latter facts, Respondent was free, of course, absent discriminatory motivation, to discontinue at any time the carrying of surplus employees.” [Accent added.]
But thereafter the examiner prefers to impute an ulterior motive to the releases, rather than to accord a presumption or draw an inference of fair play by the employer. This approach is persisted in notwithstanding the emphatic contrary mandate of this court to the Board in N.L.R.B. v. United Brass Works, Inc., 287 F.2d 689, 693 (4 Cir. 1961), Judge Boreman there saying for us:
“That York [the employee] was a union member and an active movant in the organizational drive will not shield him from release for good cause. * * * If discrimination may be inferred from mere participation in union organization and activity followed by a discharge, that inference disappears when a reasonable explanation is presented to show that it was not a discharge for union membership.” [Emphasis added.]
If the examiner is to prevail in his resistance to our holding, there should at least be substantial evidence to impugn the employer’s motive, and there be “established,” contrary to his first conclusion, that the discharge was because of union activity. The evidence relied on by the examiner to support his finding that sections 8(a)(1) and (3) had been violated can hardly be said to be of such substance.
To account for his final decision the examiner relied upon “the immediate background of * * * [the employer’s] coercive conduct.” Presumably, this includes a picture taken of the distribution of pro-union leaflets and the remarks enumerated in the majority opinion of certain supervisors to the employees.
With the exception of Wade’s inquiry about the Negroes under his supervision, the other statements by management personnel consisted of conversations in the intimacy of friends and wholly without any semblance of “coercion.” The photograph was genuine and truthful. It was taken to be sent to the employer’s president, then in California, to apprise him of the union’s campaign. It was no more than a recording of an event which was *794likewise photographed in the eye and mind of all observers. How the reproduction of it on a film constitutes such a horrible, I cannot understand.
The “warnings” which the opinion of the court ascribes to Oliver consisted of his conversations with Parker and Tate. The three were all former Navy enlisted men and frequently discussed this mutual interest. On one or two occasions Oliver observed that the entry of a union would mean that the machinists would lose the benefit of being assigned to other jobs when machinists’ work was unavailable. Equally innocuous, it seems to me, was Oliver’s question of what had happened at the union meetings.
Superintendent Forbes is said to have engaged in an unfair labor practice in telephoning Parker to ask “who was stirrin’ it up with the colored people”. Parker declined to answer, as he had a right to do, but this did not prove the question coercive. But “background” is here relevant also. It was not a cold, official inquiry by a supervisor to a subordinate. Forbes and Parker, though not social companions, had common native heaths and mutual friends. At one time Parker had asked Forbes’ advice about getting another job. It was Forbes who had originally employed him and later reemployed him. Forbes also had employed Parker’s friend Tate on the recommendation of Parker. Surely there was no austerity or “pull of rank” to raise Forbes’ inquiry to the level of coercion.
These facts are weak reeds indeed for the examiner’s verdict of section 8(a) (1) and (3) violations. More incomprehensible is his use of them to dissolve his own previous finding that the employer’s explanation was truthful and “established”. That even more pointed interrogation is unexceptionable and clearly permitted by section 8(c), we held in N.L.R.B. v. Covington Motor Co., 344 F.2d 136, 137 (4 Cir. 1965). The implication of the majority is that any specific inquiry whatsoever by an employer to an employee concerning the union’s organizational activities is impermissibly coercive and forbidden. This view I cannot accept in the face of section 8(c).
Only bare recognition, moreover, is given by the examiner of the undisputed fact that the men were laid off “strictly in order of seniority” and that eight others were also released at the same time. Nor is it mentioned that all of the employees now in suit were only “furloughed” and were told at the time that they would be recalled “as soon as work is available”. Nor that faithful to this representation, letters were sent by the employer on July 11, to the five machinists here to return to work. The sixth “discriminatee”, Jones, a machinist’s helper, was not recalled because helpers were not needed and none have been hired since June 14. Particularly worthy of mention, but left unmentioned, is the fact that the Company’s work force has been steadily reduced since June 14. The testimony indicated that after these layoffs the drop continued — from “approximately 80” in June 1963 to “a little under 60” in January 1964. This circumstance — a twenty-five percent reduction in work force over a six-month period— certainly confirms the Company’s justification of the dismissals as a part of a general pattern, not a device designed to punish the six employees.
The employment and retention of 10 college boys for the summer is noted by the majority as indicating there was no economic reason for the layoffs. The examiner did not rely on this circumstance, and rightly so, because the boys were not machinists or machinist’s helpers but only “general helpers and laborers”. Furthermore, they were paid $1.25 as compared to a machinist’s pay of $2 to $2.40 per hour.
In sum, I think the substantial evidence in this case warrants no finding by the examiner and the Board except that Wade’s conduct was a section 8(a) (1) violation.