The opinion
EDWARDS, Circuit Judge
(dissenting).
Metropolitan’s petition in this action to set aside an order entered by the Board and the Board’s cross-petition for enforcement of the same order were argued jointly. The dispute herein hinges upon whether or not Metropolitan refused to rehire as a life underwriter a former employee named Nunnally because of anti-union bias prohibited by the National Labor Relations Act §§ 8(a) (1) and 8(a) (3), 61 Stat. 140 -141 (1947), 29 U.S.C. §§ 158 (a) (1) and 158(a) (3) (1964), or whether their refusal to rehire him was based upon his own personal problems and/or prior unsatisfactory work record. The issue was litigated with heat and at length, and the Board affirmed findings of the Trial Examiner which held the company in violation and required it to rehire Nunnally with back pay.
Metropolitan's position was that the record discloses that Nunnally, after a satisfactory work record with Metrópoli- *583 tan for some years, suffered a sharp decline in performance so that his “production” fell to 30 to 40 per cent behind the national average during the years of 1961 to 1963. During this period he was divorced from his wife and requested a transfer to the Huntsville, Alabama, office of Metropolitan, where he remained only briefly before resigning from the company.
The company argues that the unsatisfactory production record referred to above in 1961-1963, plus personal problems, plus the fact that the iiiost damaging evidence pertaining to the company’s attitude came from Nunnally himself (obviously an interested party!) requires this court to hold that there was not substantial evidence to uphold the findings of the Board. In general, my colleagues agree, finding “no substantial evidence to uphold the findings of the Board.” Respectfully, I dissent.
The Board and the examiner relied on Nunnally’s testimony that the office manager, Alex Speyer, to whom he applied for reinstatement, asked him whether he had signed a union card, and when he denied it said, “[T] hat’s good because if you signed a card you would never come back to work for Metropolitan.” The Board and examiner also point out that Pate, the general manager of the district, who made the final decision against rehiring Nunnally, had previously during Nunnally’s activity on behalf of the union prior to his resignation, expressed the view that the union representatives were “thugs” and “strong arm men” and “connected with the rackets of all types.”
The Board contends that Speyer’s language, if it represented company policy, did interfere with Nunnally’s rights under the Act; and that petitioner may be held responsible for Speyer’s statements since he was the manager of the Gratiot district of Metropolitan Life. N. L. R. B. v. Solo Cup, 237 F.2d 521 (C.A.8, 1956); N. L. R. B. v. Byrds Mfg. Corp., 324 F.2d 329 (C.A.8, 1963).
■In addition, the Board relies on the fact that four of the Metropolitan supervisors recommended rehiring Nunnally, but Pate, who knew of his union activities, turned the recommendations down.
This case is not without difficulty. But while I have no doubt that my colleagues are right in saying that Metropolitan had “sufficient reasons,” aside from any anti-union bias, not to rehire Nunnally, as I understand the appellate posture of this case, this is not our test. The record seems to me clearly to afford “substantial evidence” to support the findings of fact and inferences of the NLRB.
I would grant enforcement.