The opinion
EDWARDS, Circuit Judge
(dissenting)-
Petitioner seeks to set aside and the Board seeks enforcement of an order of the National Labor Relations Board.
Petitioner operated a shirt factory in Woodbury, Tennessee, employing approximately 1,000 people. The Teamsters started an organizing campaign in October 1965.
Word of this came promptly to the attention of Colonial Corporation and its reaction was immediate and vigorous, as indicated in the following findings of the Trial Examiner and the Board:
“Friedman who was then Colonial’s vice president, was promptly apprised of this campaign by an anonymous telephone call. The next day he addressed the assembled employees, referring to this call, and made some remarks adverse to the Union. Subsequently, during the week ending November 12, Colonial terminated about 15 office employees, comprising 15 percent of the office force at Wood-bury. On November 15, in speeches to the employees Friedman was again critical of the Union, and warned that there would be further terminations, which would affect the production employees, and, in fact, during that week 111 production employees were terminated. Thereafter, from November 22, to December 6, there was a virtual suspension of all operations. On December 6, operations were resumed and are still continuing. The terminated employees have not been replaced.”
While the above events were transpiring a meeting of local businessmen of Woodbury was held at the local bank. Friedman, on behalf of Colonial, addressed the meeting, stated the company’s position against unionization, and answered questions about three other Colonial plants. After Friedman left the meeting, the Citizens’ Committee decided to issue a leaflet. The leaflet was distributed during the time following November 22, when Colonial had laid off practically all of the employees for a period of approximately two weeks. It said in part:
“The teamsters have bragged they would force the factory to stay open. Don’t be fooled, we know this is a calculated lie. It is common knowledge since the beginning of Colonial that this is a nonunion company and they would not attempt to operate under a union. This policy has been tested at Spring City, Altamont and Erin. At Spring City and Altamont the plants were closed and remained closed for several months and were reopened only after demonstrations in force of the earnest desire on the part of the *311 community to go back to work on the basis of Colonial policy. At Erin, where in excess of 360 were working, an election was held and after seventeen months no contract has been signed — employment is now 54. In view of these demonstrated facts, we believe that Colonial will continue its stated policy and the Woodbury plant will stay closed unless the employees reject the imported agitators. Common sense tells that now is the time to pull' together as a community to keep the shirt factory open.”
This leaflet was widely distributed. Four employees testified that they had received it through the mail.
On December 2, Colonial authorized a statement in the local newspaper wherein Mr. Friedman said essentially that Colonial disclaimed any responsibility for the views expressed by the Committee in the leaflet concerning the union’s organizational drive at Woodbury, but that every citizen had a right freely to express his views. Friedman did not, however, deny the statements made in the leaflet as recorded above concerning the company’s antiunion policy and its implementation of that policy at the three plants concerned.
From these facts the Trial Examiner and the Board concluded that respondent had violated section 8(a) (1) by referring to the leaflet, failing to deny its statements, and thus tacitly adopting them.
The Board also found that the November 22 layoff and the indefinite layoffs of approximately 147 employees at the Woodbury plant represented discriminatory layoffs in violation of section 8(a) (3).
Friedman testified before the Trial Examiner that all of the layoffs were occasioned by economic problems, including the advent of a process known as “Perma-press” in the clothing industry. The Trial Examiner and the Board found serious doubt about the credibility of Friedman’s testimony on this score and concluded:
“Accordingly, I conclude that such layoffs were an integral part of Colonial’s antiunion strategy, which was to discharge the less efficient, marginal employees as soon as this could be done without disrupting current operations, and to give the rest of the work force a 2-week layoff, so as to bring home to all the employees Colonial’s displeasure over the Union campaign and the risks the employees would be incurring by espousing the Union. It follows that by the foregoing terminations and layoffs Colonial and Friedman violated Section 8(a) (3) and (1) of the Act.”
The Trial Examiner, however, did not order reinstatement of all of the employees, holding that they should be reemployed from a preferential list “as openings occur,” thereby apparently recognizing that there had been reduced production schedules at the Woodbury plant. The Board, however, took the point of view that backpay should be determined in the compliance stage of the proceeding as follows:
“Having proven that the Respondents discharged employees for discriminatory reasons, General Counsel did not also have to prove that the employees would have been employed at present, if no discrimination had been practiced. The burden of proof on such issue rests with the Respondents and determination of which employees, if any, would be employed at present if no discrimination had been practiced can be made at the compliance stage of the proceeding.”
The record in this case taken as a whole (including the proximity of the layoffs to the organizing campaign) contains more than substantial evidence to support the findings of section 8(a) (1) and (3) violations. N.L.R.B. v. Iron City Sash and Door Co., 352 F.2d 437, 438 (6th Cir. 1965); N.L.R.B. v. Tennessee Packers, Inc., 390 F.2d 782 (6th Cir. 1968).
The remedy ordered by the Board is entirely appropriate to the circum *312 stances of this case. See N.L.R.B. v. Cambria Clay Products Co., 215 F.2d 48, 56 (6th Cir. 1954), and cases cited therein.
I would grant enforcement of the Board’s order.