Radcliffe

211 F.2d 309 NATIONAL LABOR RELATIONS BOARD v. RADCLIFFE et al. No. 13726. United States Court of Appeals Ninth Circuit. March 3, 1954. As Modified on Denial of Rehearing April 27, 1954. George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Arnold Ordman, H. T. Herrick, Atty., NLRB, Washington, D.C., for petitioner. Eli A. Weston, J. L. Eberle, Boise, Idaho, for respondents. 1 Before DENMAN, Chief Judge, POPE, Circuit Judge, and DRIVER, District judge. 2 DRIVER, District Judge. 3 The National Labor Relations Board petitions for enforcement of its order, based upon findings that respondents C. W. Radcliffe and W. W. Mancke, co-partners doing business as Homedale Tractor & Equipment Company, engaged in unfair labor practices. Specifically, the Board's findings are that respondents interfered with union organizational activities of its employees by the strategically timed announcement of a profit-sharing plan, interrogated an employee regarding his and other employees' union sympathies, and threatened to close their establishment, if it were unionized, all in violation of Section 8(a)(1) of the National Labor Relations Act,…

The National Labor Relations Board petitions for enforcement of its order, based upon findings that respondents C. W. Radcliffe and W. W. Mancke, co-partners doing business as Homedale Tractor & Equipment Company, engaged in unfair labor practices. Specifically, the Board’s findings are that respondents interfered with union organizational activities of its employees by the strategically timed announcement of a profit-sharing plan, interrogated an employee regarding his and other employees’ union sympathies, and threatened to close their establishment, if it were unionized, all in violation of Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C.A. § 158 (a) (1); and discriminatorily discharged, for their union activities, five employees, in violation of Section 8(a) (1) and (3) of the Act, 29 U.S.C.A. § 158 (a) (1) and (3). The Board’s order directs respondents to cease and desist from engaging in such unfair practices, to offer re-employment to the three employees, not previously reinstated, and to make whole all five discharged employees for any loss of pay they may have suffered.

No jurisdictional issue is raised, as respondents concede and the record shows that…

(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…