MERRILL, Circuit Judge.
This case presents the question
At issue is the motive of petitioner in discharging one Donald Crowe. The trial examiner concluded that the discharge was for legitimate business reasons and unconnected with union activity. The Board disagreed finding that it was because of "union or concerted activities" in which Crowe had engaged, and concluding that petitioner had thereby engaged in unfair labor practices within the meaning of section 8(a) (3) and (1) of the National Labor Relations Act (Taft-Hartley Act) 61 Stat. 140, as amended 73 Stat. 525 (1959), 29 U.S.C. § 158(a) (3), (1) (1964). An order to cease and desist and for reinstatement was entered from which petitioner here seeks relief by review.
Petitioner was engaged as an electrical subcontractor on a construction job at Vandenberg Air Force Base in California. Work was being carried on at several sites which were separated from each other by a matter of some miles. Communication between sites was by radio-telephone, petitioner having installed radio-phones in most of its vehicles. Jurisdictional
On the day in question, April 27, 1964, Crowe, an employee of petitioner, was working at "C site." He noticed some ironworkers engaged in work which properly fell within the province of electrical workers. He looked around for his foreman and failing to see him took matters into his own hands. He first persuaded the ironworkers to cease work until the jurisdictional question of who should do the work could be settled. He then proceeded to place a call from a nearby radio truck to Frank Lowater, petitioner's maintenance foreman. As the trial examiner stated in his findings:
The trial examiner found that Crowe had ordered Lowater to come to C site to perform the work in question and had been discharged for doing so; that the giving of such direction to the maintenance foreman by a journeyman employee, or by anyone not himself a foreman, was in violation of petitioner's collective bargaining agreement and also of union rules; that it constituted justification for discharge since a chaotic condition would result if every employee took upon himself a foreman's responsibilities.
The Board disagreed and found that Crowe had not given Lowater orders, but rather had only sought to have a message conveyed to his union job steward, Savage. The Board further found that "the sole reason for his discharge was his conduct in trying to communicate during working hours with his steward who was at a different work site." It concluded that under the circumstances Crowe "was engaging in a union or protected concerted activity."
The Board asserts that its own findings in regard to the contents of the radio conversation between Crowe and Lowater are supported by substantial evidence on the record as a whole and that therefore this court should affirm the Board decision.
We disagree. In our judgment the Board's finding that Crowe in his radio conversation did not give orders to Lowater, a foreman, is not supported by substantial evidence.
The chief support for the Board finding is the testimony of the complainant Crowe who stated that he twice attempted to reach Savage before calling Lowater, and that in calling Lowater he did so only to ask him to deliver a message to Savage and did not ask Lowater himself to come to C site. The Board also contends that the testimony of Lowater supports its findings. The Board refers to the direct examination of Lowater in the following terms:
The Board also states:
Later he makes reference to the "irresponsible nature of Crowe's testimony."
Second, the examiner attached little weight to Lowater's testimony. In his findings he quoted much more of Lowater's testimony than that referred to by the Board. On direct examination Lowater testified that in response to Crowe's call "I acknowledged his call and said I would be right over." Following the "It is possible" answer to which the Board referred, the following question and answer were given:
In our judgment Lowater's testimony when considered as a whole supports the findings of the trial examiner rather than those of the Board. The findings of the examiner are further supported by the testimony of Norman Coghlin, petitioner's vice president and field superintendent at the job, who had overheard Crowe's phone call to Lowater.
Considering the record as a whole the only evidence which we believe supports the Board's findings is the testimony of the complainant, Crowe. While the Board is not bound by the credibility determinations of the trial examiner, nevertheless the probative weight which may be properly given to testimony is severely reduced when an impartial experienced examiner who has observed the witnesses and lived with the case has drawn different conclusions.
Having concluded that the Board's preliminary finding that Crowe gave no orders is not supported by substantial evidence, we must conclude that the Board's ultimate determination that Crowe was engaging in protected union activity similarly lacks support.
It is so ordered.
To the same effect are Boeing Airplane Co. v. NLRB, 217 F.2d 369, 375-376 (9th Cir. 1954); NLRB v. Pyne Molding Corp., 226 F.2d 818, 819 (2nd Cir. 1954); NLRB v. Sheboygan Chair Co., 125 F.2d 436, 439 (7th Cir. 1942).