(dissenting):
I respectfully dissent. I cannot in good conscience agree that the record is lacking in substantial evidence, requiring reversal of the Board as to the discharge of the three announcers.
First, I cannot agree with the majority that the trial examiner created an inference from the failure of the company to produce evidence.1 The trial examiner recited that the inference of the company’s knowledge is “more readily drawn in the absence of disclaimer (except by counsel) of knowledge by the company and of any denial by Mundy that he had transmitted the information.” The majority feels that this statement placed undue emphasis on the company’s failure to produce witnesses to deny knowledge of the employee’s union activities. I respectfully submit this misconstrues the examiner’s statement. The
*782examiner does not create an incriminating inference from the absence of proof. The examiner first recites Mundy’s conversations with the other announcers. Mundy had said that he felt it would be bad for the company if he joined the union ; that Mr. Grafman, his personal friend, would not like it; that it would be bad for his own job; that it was not the right thing to do; and that he would talk to Mr. Grafman, the president of the company, before he would sign the card. Later he asked the other announcers if they were actually going to sign union authorization cards. The trial examiner is saying that it is reasonable to infer from this evidence that Mundy did talk with Grafman about joining the union prior to the discharges. The examiner then adds that this inference is more easily drawn since Grafman or Mundy did not deny talking together. I fail to see that the trial examiner intended any other meaning. Absence of rebuttal evidence is a factor to be weighed by a trier of fact. It is also to be considered by this court in weighing the overall record as to whether substantial evidence exists to support the board’s findings. We are required to view “the body of evidence opposed to the Board’s view.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). Here there is none. I would agree, however, if the only evidence of the company’s knowledge was the inference from Mundy’s conversation, this by itself would be too tenuous to support the board’s findings. However, in my judgment, the company’s knowledge of union activities prior to the discharges is supported by a wealth of circumstantial and direct proof.
There is a profuseness of evidence which shows: (1) Sheldon, the company manager, was specifically told on July 20, 1967, by the union’s business manager that the union was going to organize the announcer-operators; this statement was made at a time union representation was in fact being favorably discussed by all of the announcers, with the exception of Mundy; (2) two of the secretaries for Sheldon had approached the announcers with questions concerning the announcers’ interest in joining the union; this was before the announcers had mentioned this interest to the girls; Flannery observing that Diane Bauman “apparently had gotten wind they were talking”; (3) Mundy was a personal friend of the president of the company and told the others he intended to talk to Grafman about joining the union; (4) Mundy was the only announcer not to sign a union card, and was the only announcer not to be discharged; (5) when Sheldon was told a majority of the announcers had signed authorization cards and the union would like to discuss a contract, Sheldon said he had already discharged “two of these men”; Sheldon was not told prior to this statement which men had actually signed the authorization cards and thus there is a fair inference, unrebutted, that Sheldon knew which ones would sign the cards before he had actual knowledge that the cards were signed; (6) Vierling’s discharge, of course, followed Sheldon’s actual knowledge of his being told of the signing of the cards; (7) Sheldon told the announcers that their discharge had nothing to do with work performance; (8) on August 7, all of the announcers had been assigned to a new schedule to start the following Monday and the only event intervening the posting of this new schedule and their discharge was their signing union authorization cards; (9) on July 24, Barr was even promoted by Sheldon to program director, a post he later declined; (10) Sheldon’s reason for the discharges was that it was for “disunity” or “dissension in the ranks”; the only “disunity” shown by the evidence was the announcers’ continued interest in union representation and the company’s animus towards it; (11) union animus is reflected in part by the wrongful “discharge” of Taylor for his union activities ; (12) and there exists, perhaps most damaging to the company, Sheldon’s statement in discussing the discharges with Taylor, that “[t]hey really shouldn’t go to a union” and “there are two things in this world you never do, one of them *783is to go to a union to ask for representation and the other one is file suit against someone”; Taylor responded, that “these men had asked for representation before you fired them”; Sheldon answered, “that makes no difference.”
There is no other reasonable hypothesis on this record to explain the announcers discharge other than their union activity. I fail to see on this record how the trial examiner or the board could reach any other conclusion.
We have found “substantial evidence” in many recent cases, enforcing the board’s finding of an 8(a) (1) or 8(a) (3) violation, where the evidence is far less compelling than here. Compare the facts in NLRB v. Kay Electronics, Inc., 410 F.2d 499 (8 Cir. 1969); First National Bank of Omaha v. NLRB, 413 F.2d 921 (8 Cir. 1969); NLRB v. Crystal Tire Co., 410 F.2d 916 (8 Cir. 1969); Mead & Mount Constr. Co. v. NLRB, 411 F.2d 1154 (8 Cir. 1969); Ames Ready-Mix Concrete, Inc. v. NLRB, 411 F.2d 1159 (8 Cir. 1969); NLRB v. Frazier, Inc., 411 F.2d 1161 (8 Cir. 1969); Reliance Ins. Co. v. NLRB, 415 F.2d 1 (8 Cir. Sept. 4, 1969).
I would grant enforcement of all of the board’s order save that of the interrogation issue.
. Nor can I agree that the trial examiner in any way based his finding of company knowledge upon his misunderstanding as to the date Sheldon was told of the union’s majority status. As the majority opinion recites in footnote 1, the trial examiner states “that on or about August 9 Davis told Sheldon that he had a majority and would like to discuss a contract. * * * ” It is then implied that the trial examiner found company knowledge of union activity prior to the discharges on the basis of the August 9 date. The majority points out that the trial examiner erred since this date was actually August 10.
Earlier in the opinion the trial examiner recited that Davis had said that the date of notification was either August 9 or 10. The record shows that Davis said he was not sure which date it was. In any event, the date was not critical to the examiner’s decision since all testimony shows that Sheldon, upon being told by Davis that the authorization cards had been signed, stated that two of the discharges were already effected. Furthermore, the examiner’s reference to the August 9 date in his written findings is made in a totally different context, to-wit, the propriety of requiring a bargaining order. It is unrelated to any discussion of company knowledge of union activity.