The Linen Thread Co., Inc.

THE LINEN THREAD COMPA NY, INC. 607 The Linen Thread Company, Inc. and Textile Workers Union of America, AFL-CIO. Case No. 10-CA-41941. March 19, 1963 DECISION AND ORDER On December 26, 1962, Trial Examiner Wellington A. Gillis issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. There- after, the Charging Party filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of 3(b) of the Act, the Board has dele- gated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Charging Party's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed on March 12, 1962, by Textile Workers Union of America, AFL-CIO, hereinafter referred to as the Union, the General Counsel for the Na- tional Labor Relations Board issued a complaint on April 16, 1962, against The Linen Thread Company, Inc., hereinafter referred to as the Company or the Re- spondent, alleging that the Respondent, on and after September 12, 1961, failed and refused to reemploy former employees William Stamps and Johnny Johnson because of their union activities , in violation of Section 8(a)(3) and ( 1) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat 136), hereinafter referred to as the Act. The Respondent thereafter filed an answer to the complaint denying the commission of any unfair labor practices Thereafter, pursuant to notice, a hearing was held in Anniston, Alabama, before Trial Examiner Wellington A. Gillis, at which all parties were represented by counsel. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues , and to submit argument. Timely briefs were subsequently filed by counsel for the General Counsel, the Charg- ing Party, and the Respondent. Upon the entire record in this case, and from my observation of the witnesses, and their demeanor on the witness stand, and upon substantial, reliable evidence "con- sidered along with the consistency and inherent probability of testimony" (Universal Camera Corporation v. N L R B., 340 U.S 474, 496), I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Linen Thread Company, Inc., is a Delaware corporation, maintaining an office and place of business at Blue Mountain , Alabama, where it is engaged in the manu- facture and sale of fishing nets and related textile products. During the 12-month period immediately preceding the issuance of the complaint, the Respondent sold 141 NLRB No. 59. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and shipped textile products valued in excess of $50,000 from its Blue Mountain, Alabama, plant directly to customers located outside the State of Alabama. The parties agree, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The parties agree, and I find, that Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICES The Issue The issue presented by the pleadings in this case is whether the Respondent, on and after September 12, 1961, failed or refused to employ former employees William Stamps and Johnny Johnson because of their activities on behalf of the Union. Background Facts During a 4- or 5-week period in the fall of 1960, the Company found it economically necessary to lay off approximately 100 employees throughout its mill operations. Among those laid off for lack of work were two employees in the shipping department, William Stamps and Johnny H. Johnson, whose alleged efforts to achieve reemploy- ment with the Respondent have been unsuccessful and form the basis for the alleged unlawful conduct attributed to the Respondent in this proceeding. Stamps was first employed by the Respondent in September 1952 as a handler in the shipping department. Thereafter, with the exception of a 6-month period in 1953, an 8-month period in 1955, and a 6-week interval in 1956, Stamps was con- tinuously employed by the Respondent in one of several departments and in one of several job classifications, including baling, ring frame doffer, and handler, until he was laid off for lack of work on October 25, 1960. At the time of his layoff Stamps had been employed as a shipper or shipping clerk,' in the shipping department since July 1958. Johnson was first employed by the Respondent in April 1959 as a handler in the shipping department. Subsequently he was reclassified as a shipping clerk, in which classification he was employed at the time of his layoff on October 28, 1960. Although occasionally performing other job functions in his spare time, his 18-month employment with the Respondent was confined to that of handler and shipping clerk in the shipping department. At the time of their respective layoffs, both employees were told that their jobs were being eliminated, or more specifically in the case of Stamps, that his job was being combined with the stenciling classification? That both Stamps and Johnson were active adherents on behalf of the Union and its attempt to organize the Respondent's plant, before and after their layoffs, is undisputed, as is the fact that the Respondent and its officials, including Richard C. Moyer, personnel director, were aware and had knowledge of their union activi- ties. Thus, during the Union's organizing campaign prior to an election held on August 24, 1960, Stamps and Johnson wore union buttons and caps, distributed union literature to employees at the plant gates, and Johnson was an observer for the Union during the election, which was lost by the Union. The names of both employees were among some 88 names included in a full-page preelection advertisement appearing in The Anniston Star on August 14, 1960, condemning the newspaper for its antiunion 'Company records reflect the classification to be that of shipper, while, based upon record testimony, It appears that such classification Is commonly referred to as that of sbtpping clerk As it appears that they are one and the same, for the sake of con- sistency In this report, the latter will be used hereinafter. 2 The facts disclosed that the Respondent , while laying off Stamps and Johnson because of lack of work in the shipping clerk category, retained one employee in that classification While technically there may exist a question as to whether, as contended by the Respond- ent, the jobs held by Stamps and Johnson were in fact abolished because the Respondent did not expect the work to increase thereafter to the extent of requiring additional ship- ping clerks, the issue Is moot in view of the fact that (a) as of the date of the hearing, no one had been hired or recalled as a shipping clerk, and (b) as hereinafter reflected, assuming an unemployment status most advantageous to both employees in connection with the Respondent's hiring policy, neither Stamps nor Johnson was prejudiced in his efforts to obtain employment between September 12, 1961, the start of the 10(b) period, and the latter part of October 1961 , when any job seniority either might have had would have terminated. THE LINEN THREAD CONIPANY, INC. 609 editorial policy, setting forth with specificity the need for a union at the Respondent's plant, and seeking public acceptance of the Union on behalf of employee union ad- herents. In addition, Stamps and Johnson, among others, had testified on behalf of the Union in an unfair labor practice hearing on July 26, 1960, involving alleged Section 8(a) (1) conduct on the part of the Respondent.3 Subsequent to their layoffs in October 1960, and up until another election in March 28, 1962, in which the Union was again unsuccessful, Stamps and Johnson, on a number of occasions dating from February 1961, assisted union officials in the distribution of union literature at the plant gates, which activity was observed by company officials entering and leaving the premises. On such occasions, Stamps and Johnson were the only laid-off employees engaged in the literature distribution. Apart from this, Stamps, for approximately 1 year prior to the March 1962 election, worked for or assisted the Union's regional director in organizing activity generally, for which he received compensation in the amount of $50 a week. According to the testimony of Stamps, on a number of occasions between February 1961 and March 1962, he attempted in one manner or another to obtain employ- ment with the Respondent, and similarly, based upon the testimony of Johnson, he, on four occasions between December 1960 and February 1962, made inquiries con- cerning employment at the mill. Before evaluating the record evidence pertaining to these alleged employment attempts, it would appear that, in the interest of afford- ing a clear understanding of that which is involved in this case, a recitation of the hiring policy adhered to by the Respondent during times material will serve to narrow the factual issue presented. For many years prior to the summer of 1961, foremen and supervisors were clothed with the responsibility and authority to do their own hiring, and, in this manner, the employment of personnel was accomplished. Thus, during this period, it had become standard practice for people seeking employment, including employees on layoff status, to make job inquiries of the mill foremen. However, in June 1961, when the Company established its personnel office, this policy was changed and since that time foremen have not had such authority, all hiring having been accomplished through the personnel office. Accordingly, since June 1961, applicants for employ- ment, whether former employees or not, must, in order to be considered for job openings, apply at the personnel office. Credible record evidence, including the credited testimony of Frances Cotton, formerly the switchboard operator and present- ly the personnel assistant, who, although having changed position titles, has, since its establishment, been in charge of handling job applications in the personnel office, the policy formulated and the procedure followed with respect to the Respondent's employment practices, is as follows: (a) A laid-off employee has seniority, as to the job held when laid off, for a period of 12 months, during which time he is entitled to be recalled in the event that the job opens up. Thereafter, although he may be recalled to the job if it should become available, he no longer has seniority on the job or is entitled by right to be recalled; 4 (b) for reasons relating to the seasonal nature of a part of the Respondent's operations, an employee who is laid off but whose job has not been abolished is not considered for permanent employment in another job during his layoff; (c) an employee whose job has been abolished, in order to be considered for any other job in the mill, must, like any other applicant, make application at the personnel office; (d) on some occasions, but only when she knows that there are no openings, Cotton does not accept applications, and apprises the applicant that there is nothing available.5 To be considered for employment, how- ever, an applicant who has never worked for the Company must make written appli- cation at the personnel office (applications received in the mail are not accepted), while a former employee, although also required to apply at the personnel office, only has his name and former department taken down, unless he requests a written application. In either case, the written application or the memorandums containing 'Judicial notice of that proceeding (Case No. 10-CA-4442, not published in NLRB volumes), discloses the case to have been closed on March 20, 1961, upon compliance by the Respondent with Trial Examiner Morton D. Freedman's recommended Section 8(a) (1) findings 'Notwithstanding the General Counsel's attempt to show that such a seniority policy does not exist , the testimony of several of his own witnesses supports the Respondent's assertion to the contrary. "On such occasions the exception to this is those instances where a prospective em- ployee has been referred to the personnel office by a relative employed in the mill or by a foreman who either is aware of the applicant's qualifications or has been approached by an employed relative, in which case the applicant admittedly is likely to receive some extra consideration 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the name of the former employee (which is also considered an application), is retained by the personnel office for a week or 10 days, to be considered in filling any job which might become available during that time for which the applicant is qualified. In the event that nothing opens up during that time, because of the large number of job applicants at the mill,6 the written application in the case of the new applicant, and the memorandums containing the name of the former employee, are then de- stroyed and not thereafter used in filling job openings; and (e) at such time as the personnel office receives notification that a particular job has become available in a given department, it is the practice of the Respondent in filling the opening, in the event that no employee on layoff status is entitled by seniority to the job, to consider qualified applicants from among its applications on hand, including any qualified applicants who at the moment happen to be present in the personnel office. An applicant who appears to qualify for any particular job opening is sent by the person- nel office to the foreman or superintendent in whose department the opening has occurred and, if it is determined by the latter that the person is qualified, the applicant is then processed by the personnel office. In order to support the General Counsel's position that on and after September 12, 1961, Stamps and Johnson were discriminatorily refused reemployment by the Re- spondent,7 it first must be shown that Stamps or Johnson made a proper application for employment at a time during which a job was available for which he was qualified. Reemployment Efforts of Stamps With respect to efforts by Stamps to obtain employment subsequent to Septem- ber 12, 1961,8 the record discloses the following: 9 a Since June 1961, on an average of between 25 and 50 applicants a week have sought employment at the personnel office. 9 This is the sole issue in this proceeding. The complaint contains no allegation and the General Counsel does not contend that the Respondent committed any Independent Section 18(a) (1) conduct within the Section 10(b) period, that the layoff of Stamps and Johnson in October 1960 was other than lawful unfair labor practice charges in this re- gard having been dismissed and an appeal denied on January 31, 1961 (Case No. 10-CA- 4580), or that, in failing to reemploy, either employee was entitled to recall under the Respondent's seniority policy 8As Section 10(b) of the Act provides in pertinent part that no complaint shall Issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge, evidence of specific incidents reflecting a discriminatory refusal to reemploy prior to September 12, 1961, would be relevant herein only for the purpose of supplying an otherwise missing discriminatory motivation on the part of the Respondent for a re- fusal to reemploy during the actionable 10(b) period commencing September 12 Although, for reasons hereinafter set forth, I deem it unnecessary for this purpose to specifically resolve disputed testimony relating to employment efforts by Stamps during the pre-10(b) period, I find, based in part upon the credited testimony of Moyer, that on the tthree or four occasions between February and August 1961 that Stamps allegedly made inquiries of Moyer concerning reemployment, no jobs for which Stamps was eligible or qualified were available. 9 As will be readily apparent to any who review the transcript and record of this pro- ceeding, the task of making factual determinations, particularly with respect to the time element, concerning Stamps and alleged matters of which he, perhaps more than anyone else, should be In a position to recall with some degree of certainty, is, to say the least, a most difficult undertaking During my experience as an examiner, I do not recall hav- ing come across an instance where a key witness appeared as continually confused as did Stamps In testifying in this proceeding, or where the testimony of a witness contradicted earlier testimony as well as statements contained in any one of several pretrial affidavits, to the extent that the record here discloses with respect to Stamps. While I recognize that a considerable amount of the testimony pertained to alleged happenings dating back over a period of time it is also a fact that the several affidavits sworn to by Stamps were made at different intervals during the period, which affidavits, at least in part, were pre- pared, according to Stamps, with the aid of memorandums which had been recorded by Stamps at the time that the events occurred. The record, which includes four affidavits, three of which were executed by Stamps in connection with his earlier unfair labor prac- tice charges, and dated January 4 and August 4 and 5, 1961, and March 20, 1962, is replete with inconsistent statements. It is something less than conceivable that under the circumstances an employee, aggrieved by the unfair treatment allegedly accorded him by an employer over a period of time to the extent that such appears in the case of Stamps, would not have been able to recall with more exactness the events crucial to his THE LINEN THREAD COMPANY, INC. 611 (a) Stamps testified that in September 1961 he asked Moyer for a handling job in the shipping department which he had heard was going to open up, and was told by Moyer that the job had already been given to Thomas Swancey, but that he could keep checking back, that something might open up on his old job. Although Moyer did not recall this conversation, Moyer testified that Swancey was called back on a temporary basis to fill in for an injured employee. (b) According to Stamps, the next time he inquired about a job was in October 1961, when he called Moyer on the telephone and asked him for employment, and was told by Moyer that he did not have anything, but that he could keep checking back. (c) In November 1961, according to Stamps, after having heard that Willis Cobb had been fired from a baling job in the netting department, Stamps went to see Moyer and asked him for the job, and was told by Moyer that he could not use him on that job. Moyer credibly denied that Stamps ever talked to him about this job.i0 (d) Stamps testified that in January 1962, after having been told by Jimmy Nunnally, a handler in the thread packing department, that he was going to quit the next day, Stamps went to see Moyer about the job. When apprised by Cotton that Moyer was out of town on vacation, Stamps asked Cotton about the job, and was told that she had been instructed that no one was to be hired on that job. Stamps testified that he subsequently learned that Max Studdard was hired on that job a week later, and when Stamps shortly thereafter inquired of Moyer as to why Studdard had been hired for the job after he (Stamps) had asked for it, Moyer "didn't say anything." As to this incident, Cotton testified that Stamps came into the office and inquired as to whether a job were open, without mentioning Nunnally, and that, as she had not yet been advised of Nunnally's having quit, she told Stamps that she did not know of any openings. Moyer denied that Stamps ever inquired about the Nunnally job, which denial I credit, and, when questioned on the Nunnally-Studdard job opening, testified that when Nunnally, a former employee who, because Studdard could not be located, had been hired in the thread packing department, quit without notice after having worked I week in January 1962, the job was given to Studdard because he had seniority on the job. Cotton, whose testimony as to this incident I credit, corroborated Moyer's statement that Nunnally had quit without notice and that Studdard had seniority on that job. (e) Again in January 1962, Stamps went into the shipping department at the mill, called Shipping Department Foreman Thomas Harbin aside, and told him that he would like to be able to go back to work in the shipping department. After a short conversation, Harbin told Stamps that he did not have anything, and referred him to the personnel office.ii case, or certainly with respect to statements relating to these events contained in pretrial affidavits, had they in fact all taken place Without attempting to cite specific instances of Stamps' frailties on the witness stand upon which in part I base my refusal to credit his testimony, it would seem to me very unusual, to say the least, that Stamps, who testified that be did not, in November 1960, tell a representative of the Board investigating his charges of unlawful discharge, any- thing about a specific matter concerning Moyer's allegedly having questioned him about union activities at the time he was discharged, did not incorporate such matter in his January 4, 1961, affidavit submitted in support of his appeal of his case, yet decided to include a factual account of it in his affidavit of August 4, 1961, and again, in support of his position in the instant proceeding, in his affidavit of March 20, 1962 In any event, because of the evasive and hesitant manner in which Stamps frequently responded to questions on cross as well as direct examination, coupled with the numerous instances of inconsistency in his testimony, and based upon my observation of his de- meanor generally while on the witness stand, I have no alternative but to discredit his testimony to the extent that it conflicts with, or is uncorroborated by, the testimony of Cotton, Moyer, and Harbin, or other credited testimony. 10 Stamps, whose testimony vacillated as to when this conversation took place, first testified that this happened in November 1961, then later in the hearing he testified that this occurred in February 1962, and that he also called Robert Young, netting department foreman, and asked for the Cobb job. Still later, after having again testified that this occurred in February, when questioned on cross-examination, Stamps testified that this happened in November, and then decided it was February, which final recollection con- flicts with his statement in one of his pretrial affidavits. This is one of many instances where Stamps, in testifying, admitted or indicated that he was confused li During the conversation, which Stamps testified occurred in February 1962, but which the credited testimony of Harbin and Marvin Craighead, an employee who heard at least 708-006-64-vol. 141-40 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) About the first of March 1962, having been led to believe by other employees that Moyer had rectified a situation when called to his attention involving an em- ployee who had been laid off out of seniority and corrected another which allegedly was about to occur, Stamps approached Moyer and, after relating that which was allegedly told him, asked Moyer, in effect, to recheck his seniority. Moyer agreed to check the records, and requested that Stamps get in touch with him in about 7 to 9 days. Pursuant to Moyer's suggestion, Stamps called Moyer a week later, and, in reply to Stamps' question as to whether he had checked to see if there were other employees in the shipping department with less than his seniority, Moyer informed Stamps that he had been laid off fairly. (g) According to Stamps, the last personal contact he had with Moyer occurred about the middle of March 1962, when he again asked Moyer for a job, and, after relating an incident concerning his unsuccessful efforts to obtain employment else- where, asked Moyer if he thought that the reason for not being offered the outside job was because they had found out he was for the Union. Moyer allegedly replied that he never told anyone that Stamps was for the Union, and then added, "There is one thing for sure, Stamps, we don't like the Union in our plant." Moyer recalled this incident, but denied that he ever made any such statement concerning the Union. For reasons set forth elsewhere in this report, concerning Stamps' credibility, I credit Moyer's denial. In addition to the above specific instances of Stamps' efforts to obtain employment, Stamps testified that from February 1961 until the following December he applied for a job every 2 weeks, and from December 1961 until the middle of March 1962 he made application weekly at the Company. According to Stamps, each time he talked with Cotton, and on each occasion he asked Cotton for permission to see Moyer and did not ask her for a job, but that, except when he saw Moyer sitting at his desk, Cotton would ask him his name and whether he was looking for employment, and, upon receiving Stamps' affirmative answer, Cotton would tell him that there was no work available. Cotton, on the other hand, testified that, from December 1961, when Stamps for the first time talked to her about a job, until the middle of February 1962, Stamps talked to her four or five times, each time asking her if the Company had any work available, to which she replied that there was nothing open. Cotton further testified that at no time that Stamps applied for a job was there a job open. Because I was generally impressed with her demeanor on the witness stand and the straightforward manner in which she unhesitantly responded to questioning, I credit Cotton's testimony in this regard, and, consistent with my earlier credibility findings, do not credit the testimony of Stamps to the extent that it con- flicts with that of Cotton. Reemployment Efforts of Johnson Concerning the three attempts of Johnson to obtain reemployment with the Com- pany since September 12, 1961,12 the record discloses that, although Johnson, by his own admission, at no time applied at the Company's personnel office, once in November 1961, and again in January 1962, he talked with Harbin in the shipping department at the plant and asked him for a job. On each occasion Harbin told him that he did not have anything available. Then, sometime during the early part of February, according to Johnson, because allegedly he had been lead to believe that a handling job would be opening up soon, Johnson again approached Harbin in the shipping department. Without mentioning to Harbin anything about a handling job, Johnson asked for employment, to which, according to Johnson's testimony, Harbin replied that "Mr. Moyer wasn't going to let him put me back to work." According to Johnson, Harbin did not explain the rea- son for Moyer's alleged mandate, nor does it appear that one was requested by John- a part of this conversation, placed In January, Harbin asked Stamps if he had not found "one of those steel-paying jobs yet," which reference could have been either to a higher paying job, as contended by Harbin, or to the commonly known fact that most steel plants are union organized , and told Stamps that he had nothing to say to him , indicat- ing, in obvious reference to an earlier unfair labor practice proceeding, that be did not intend or want to go back to court . According to Stamps , but not recited in either Harbin's or Craighead's version, when asked by Stamps for an explanation of "steel-paying jobs," Harbin said, "You know, they're organized." 1 The only other time since Johnson's layoff in October 1960 that Johnson inquired about employment occurred in December 1960 during the pre-10 ( b) period when he asked Harbin for a job and was told that he would be kept in mind if something became available. THE LINEN THREAD COMPANY, INC. 613 son. Harbin denied the "Moyer" statement attributed to him by Johnson, and testi- fied that on this occasion, which occurred along about the first week in January rather than in February 1962, when Johnson inquired as to whether there were any openings, Harbin told him that his department was filled up, that he could use some extra help, "but they won't let me put on any extra help." Although, in the absence of a showing that a job was available at the time for which Johnson was qualified, a resolution of the credibility issue on this point does not appear necessary, I find Harbin's version to more accurately reflect the true fact situation and credit his testimony on this point, in part, because, up to this time no mention had ever been made of Johnson's union activities, he had never once talked with Moyer during the 16-month period since his layoff, and, were Johnson's version correct, it would appear natural, contrary to the alleged fact, for Johnson to have inquired of Harbin the reason for Moyer's prejudicial instructions to him. Conclusions As set forth earlier, the General Counsel contends, and the Respondent denies, that since September 12, 1961, Stamps and Johnson have been refused reemploy- ment because of their union activities. Nothwithstanding Moyer's self-serving testi- monial statement to the effect that the Respondent is not opposed to umons, there is little question in my mind but that the Respondent, based in part upon its past vigorous opposition to the Union, as reflected in the record of the earlier unfair labor practice proceeding in Case No. 10-CA-4442, does not look with favor upon the Union's efforts to organize its plant. An inference might properly be drawn from this that the Respondent, in the course of hiring new employees from time to time, would not knowingly swell its employee ranks with union adherents. That both Stamps and Johnson were known by the Respondent to have been other than casually interested in the Union's efforts to organize its mill operations is undisputed. However, and with full recognition of this fact, unless it can be shown by reliable record evidence that the Respondent either did not in practice adhere to its hiring policy, and particularly the requirement that applicants must, to be considered eligible for employment, apply at the personnel office (as distinguished from foremen), or, in failing to reemploy either Stamps or Johnson, did not render him the same em- ployment considerations accorded any other applicant for employment, by refusing to consider him for employment at a time when there was a job available for which he had properly applied and was qualified or eligible under its hiring policy, the Respondent cannot be found to have discriminatorily refused or failed to reemploy either within the meaning of the Act. Based upon the record as a whole, I am persuaded that neither was the case. Thus, as to the former proposition, although the record reveals that on occasion foremen may have recommended that a particular person be hired or given consideration, or may have requested that a former employee or a relative of a mill employee be offered an available job, the evidence discloses that in such cases the employee is still required to apply at the personnel office 13 This practice, rather than constituting a deviation from, or nonadherence to, the Respondent's hiring policy, appears to have been generally accepted as a part thereof. Nor does the second proposition, concerning the Respondent's having failed to accord Stamps or Johnson equal employment considerations, appear to warrant merit. In this regard, assuming that the status of Stamps and Johnson at the time of their termination was that of a laid-off employee, rather than that of one whose job had been abolished, under the Respondent's hiring policy governing laid-off employees, although both would have been entitled to be recalled on the shipping clerk job, had it, contrary to the fact, become available during the 12-month period following their October 1960 layoffs, neither would have been eligible to be considered for any other job until after October 25 and 28, 1961, respectively. The record discloses that, from the time of their layoffs up until the date of the hearing, no opening occurred and no employee was recalled or hired in the shipping clerk classification. Therefore, it cannot be said that at any time either, before or after his seniority would have terminated under a layoff status, either employee was refused employment in the job classification last held by him. On the other hand, assuming that the shipping clerk jobs held by Stamps and Johnson at the time of their layoff were abolished, under the Respondent's hiring policy, each would have been 1a That the Respondent does adhere to its policy of considering only applicants who apply through the personnel office is in part substantiated by several of the General Counsel's own witnesses whose testimony on this point is corroborative of that testified to by Respondent's witnesses. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eligible for reemployment on the same basis as any other applicant in any lob. opening for which he was qualified. In either case, the question centers on whether the Respondent had, at any time after September 12, 1961, a job available for which either Stamps or Johnson was qualified at a time when either had properly applied at the Respondent's personnel office. As to Johnson, it must be conceded by all that he at no time applied at the personnel office for a job, but rather confined his employment efforts to inquiring of Harbin as to a job opening on three occasions. While Stamps, on the other hand, did inquire at the personnel office concerning job openings from time to time, the credible evidence fails to show that at any such time there was a job available for which he was qualified or eligible. In fact, the credible evidence discloses that since September 1960 slightly over 200 employees have been laid off for lack of work, and that, during this time, apart from a large number of recalls, there were but four or five new employees hired by the Respondent on a permanent basis. The record shows that in February 1962 the Respondent for the first time set up on a temporary basis a hackling department within its established braiding depart- ment, and that, at that time, from among some 50 applicants per day who flooded the personnel office over a 3-week period, the Respondent hired on a temporary basis 15 employees, who have since been laid off, most of whom appear to have been boys of high school age and stamina. Notwithstanding Stamps' testimony to the effect that he applied weekly throughout February and until the middle of March 1962, he made no mention of these hackling job openings, of which he certainly would have been aware had he in fact been anywhere near the personnel office during this time. I credit Cotton's testimony to the effect that at no time during which employees were being hired for this temporary work did Stamps or Johnson make an application for employment. As to the shipping department, the only department in which Johnson had ever worked and the one in which Stamps had been employed for the greater period of time, the record shows, based in part upon the credited testimony of Harbin, that, since Stamps and Johnson were terminated in October 1960, no temporary employees and only one permanent employee have been hired, namely, one Dony Phyllips, who previously had been employed by the Respondent, first as a handler, and later as a twine stenciller, until he quit in May 1960. Phyllips, having made several unsuccess- ful attempts at reemployment since his voluntary termination in 1960, was rehired through the personnel office as a handler in February 1962 when an opening occurred, after having been referred to that office by Harbin, of whom Phyllips had inquired as to a job opening. Apart from this, the only personnel action to have occurred in the shipping department during this period involves a borrowing of three em- ployees from other departments on a temporary basis, and a temporary recall of one employee for approximately 3 months to replace one who had become injured. For the above reasons, and based upon the record as a whole, I am convinced. and so find, that the General Counsel has not assumed the burden of establishing by a preponderance of the credible evidence that the Respondent, since September 12. 1961, has refused to reemploy Stamps and/or Johnson because of their union activi- ties. Accordingly, I find and conclude that the Respondent has not engaged in conduct violative of Section 8(a) (3) and (1) of the Act as alleged in the complaint Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Linen Thread Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in any unfair labor practices as alleged in the complaint 14 RECOMMENDED ORDER It is hereby recommended that the complaint be dismissed in its entirety. "At the close of the Respondent's case I reserved ruling upon its motion to dismiss the complaint. Consistent with my finding and conclusion , herein , that no unfair labor prac- tices were committed by the Respondent, such motion is hereby granted.