(concurring in part and dissenting in part):
I concur with the majority in holding that the companies were guilty of unfair labor practices in interrogating employees in regard to their union activities and threatening closure of the mines if the employees brought in a union. In other respects I respectfully note my disagreement.
The majority opinion states that the trial examiner should have detailed the facts upon which he rejected the employers’ explanations of their action and in this regard “the report is too general, and sometimes objectionably sweeping.” In my view these are gross understatements with respect to the examiner’s performance and his failure to find facts to support his conclusory determinations. Despite the examiner’s failure to weigh the evidence, resolve conflicts therein and find facts the Board’s brief in this court seeks to cure these deficiencies by attempting to analyze the testimony and make the credibility resolutions judicially recognized as necessary to an acceptable administrative determination. The integrity of the administrative process requires that courts may not accept appellate counsel’s post hoc rationalizations for agency action. The so-called “findings” upon which the Board here relies to support certain portions of the administrative decision are to be found only in the brief and arguments of counsel for the Board.
The discharge of Hutchinson was found to have been discriminatorily motivated and his reinstatement was ordered. Testimony of witnesses was presented by the companies to show: that Hutchinson, an employee of Lark, was the operator of a “continuous miner machine”; that he *853had been warned about his negligence in breaking ropes and failing to shovel coal away from the “jacks”; that three ropes had been broken due to Hutchinson’s negligence during the shift preceding his discharge; that he had been cautioned about broken ropes immediately prior to these last breakage incidents; and that Hutchinson had been discharged because of his negligent acts.
The. examiner found merely that in January 1964 Nelson told Hutchinson that the mines were non-union, that in February 1964 Hutchinson signed a union card and that he was subsequently discharged. He adds a further finding that Foreman Boyd, who discharged Hutchinson, discussed the matter with Nelson “while interviewing other employees concerning their union activities,” a finding which adds nothing and is a non sequitur. He then concludes:
“It is contended by Respondents that Hutchinson was discharged for carelessness in permitting ropes to be broken in connection with operations of the continuous miner machine. Under all the circumstances of this case, I find such contention to be a mere pretext and that the true reason for the discharge of Ray Hutchinson was because of his support of organizational activities by the Union.”
This is the sole and complete extent of the examiner’s findings, adopted without comment by the Board, to support the conclusion that Hutchinson’s discharge was discriminatory.
There was no evidence that Foreman Boyd or any other management officials had knowledge of any union activities on the part of Hutchinson. General Counsel in his brief for the Board seeks to supply requisite knowledge by stating that Hutchinson told two other rank- and-file employees during a lunch period that he would like to sign a union card and that “Foreman Boyd was within hearing distance of the conversation,” but Hutchinson’s own testimony was to the effect that at the time of this conversation Boyd “was 50 feet” away. The Board’s brief states that Hutchinson was not negligent and that he had not been warned. But Hutchinson, himself, admitted that on the day before his discharge after one breakage incident Foreman Boyd admonished him — “Be more careful and watch those ropes and don’t let them slip out of the shiv.” With respect to Hutchinson’s discharge this is not the fact-finding required by the Act. Conflicting testimony was before the examiner and credibility issues were presented for resolution. The examiner made no specific finding that the breaking of so many ropes was commonplace, no specific finding that Hutchinson was or was not negligent in operations, no specific finding that he had or had not been cautioned, and no specific finding that the companies had knowledge that Hutchinson was lending support to union activities. These deficiencies cannot be cured and supplied by the Board’s brief filed with this court. If the Board brushes aside all explanations offered by an employer to justify the discharge of employees, it must find unlawful motivation through substantial direct or indirect evidence. See Riggs Distler & Co., Inc. v. N.L.R.B., 327 F.2d 575, 580 (4 Cir. 1963). We have repeatedly held since the decision in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), that in our review of Board decisions it is our duty to look to the record as a whole in determining whether there is substantial evidence to support agency findings.
Much of what has been said with respect to the discharge of Hutchinson applies with equal force to the layoff of other employees when operations in one section of the Dove mine were curtailed. The Board held that Bennett, Lester, Barton, Dixon and Osborne were discrim-inatorily laid off and ordered that they be made whole for any losses thereby sustained. But, again, the Board failed in its duty to establish its affirmative case.
These employees were laid off on February 10, 1964, and Dove offered a logical explanation for curtailment of the production in the “pig” section where the coal of inferior quality and below accep*854table standards was being produced. The company explained that the elimination of half of the total production of inferi- or coal which had been commingled with other production of higher quality would tend to cure the “dirty coal” situation concerning which numerous complaints had been received.
The majority opinion recognizes that there had been a real problem with respect to the production of “dirty coal” since October of 1963 and that several attempts to correct the situation, even to abandoning an entire section of the mine, had proved unsuccessful. The quality of the coal fluctuated and about the middle of January 1964 the quality again declined. Dove then determined to curtail production which was only another in a series of experiments to remedy the situation.
It was shown by the testimony of company witnesses that the decision was made to cut back to one-half of the labor force on each shift in the “pig” section. Foremen Sweet and Workman had discussed in advance the employees to be laid off in the event there should be a cutback and Workman had already notified Nelson as to those who should go. Bennett had repeatedly stated his intention to quit and for that reason he was one of those selected for layoff. Bennett reluctantly corroborated the testimony to the effect that he had been looking for other work. The other four were selected for layoff because they were less qualified than those retained.
Several employees working at Dove had earlier worked under Nelson at other mines and were known to have formerly been union members. Of those nine known former union adherents all but three were retained. One employee, Cameron, who had openly admitted in response to interrogation that he had signed a union card during the organizational drive with which we are here concerned, was retained. Unlike many cases involving alleged discriminatory action which have come to our attention, there was no evidence of any statement having been made by any company officer or supervisor that the employees laid off had been selected because of real or suspected union adherence. There was no evidence that anyone in a supervisory position knew the union sympathies of any, except one, of the employees chosen for layoff. The exception was Barton who testified that he told Foreman Workman that one employee who had not signed a union card had been refused permission by Barton to ride with him in a car pool. The apparent implication was that Barton and all others who continued in the car pool had signed cards. However it would appear to be of some significance that of the car pool of eight in Barton’s vehicle only two were laid off. The others were retained.
Although it is clearly apparent that the company officials knew of the union’s organizational drive and interrogated a goodly number of the employees as to their union views they had received nothing but denials of union leanings except in one or two instances. The company emphatically denied knowledge of the identity of those employees who had signed cards with the one or two exceptions noted and there was no direct evidence to show that they had such knowledge. That Nelson suspected Bennett as the “instigator” of the union campaign is evidenced by the fact that Nelson accused Bennett in conversation with him. However, when vacancies later occurred Bennett was offered recall from layoff as were the other alleged discriminatees. The company offered a detailed, consistent and plausible explanation in justification of its action in curtailing production and in laying off the five employees. The examiner made no attempt to analyze or resolve the factual issues presented. In one short paragraph he resorted to a broad sweeping dismissal of all of this testimony as “mere pretext.”
As a casual reading of his report discloses the examiner did not observe the injunction of either the statute or the courts to consider the record as a whole. The summary treatment even suggests an inclination toward predisposition and a conviction that the companies’ conduct *855“could only have been inspired by hostility to the union.” See Bilton Insulation, Inc. v. N. L. R. B., 303 F.2d 98, 102 (4 Cir. 1962). In these circumstances the examiner’s report and “findings,” if conclusions may be loosely so characterized, should not be accorded “the presumption of correctness usually attributed to the trier of fact.” See N. L. R. B. v. United Brass Works, Inc., 287 F.2d 689, 691 (4 Cir. 1961).
The efforts to dispose of labor disputes in the manner and by the courses herein employed should be discouraged and disapproved. To that end, enforcement should be denied or, at most, the case should be remanded for reconsideration with direction to proceed in accordance with the rules prescribed for proper administrative determination.