Delta Industries, Inc.

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Delta Pine Plywood Company, a Division of Delta Industries, Inc. and International Woodworkers of America, AFL-CIO-CLC. Case 15-CA-4229 June 15, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On February 14, 1972, Trial Examiner David S. Davidson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm. the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Trial Examiner : Pursuant to a charge filed on August 17, 1971, by International Wood- workers of America, AFL-CIO-CLC, hereinafter referred to as the Union, a complaint was issued on October 27, 1971. The complaint alleges that Respondent ' in March and April 1971 , through the acts of its supervisors and agents, created an impression of surveillance of its employees' union activities and impliedly threatened reprisals, thereby violating Section 8(a)(1) of the Act. The complaint also alleges that on or about July 20, 1971, Respondent discharged and/or refused to reinstate James I At the hearing the name of Respondent was amended to appear as shown in the caption to reflect Respondent's correct corporate identity 2 Following the close of the hearing, Respondent filed a Motion To Utley because of his union activities, thereby violating Section 8(a)(3) and (1) of the Act. In its answer Respon- dent denies the commission of any unfair labor practices. A hearing was held before me in Hattiesburg, Mississip- pi, on November 30 and December 1, 1971. At the conclusion of the hearing, oral argument was waived, and the parties were given leave to file briefs, which have been received from the General Counsel and Respondent. Upon the entire record2 in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Mississippi corporation, is engaged in the manufacture and sale of wood and related products at its plant in Beaumont, Mississippi. During the 12-month period preceding issuance of the complaint, Respondent received at its Beaumont plant from points outside the State of Mississippi goods and materials valued in excess of $50,000 and shipped finished products valued in excess of $50,000 from its plant to points outside the State of Mississippi. I find that Respondent is engaged in com- merce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Respondent's Beaumont plant commenced operation in 1966. Between then and the beginning of 1971 , there were two attempts to organize the plant, and two representation elections were held. During early 1971 the Union started a new organizing campaign among Respondent 's employees at the plant. A number of employees signed authorization cards and attended union meetings . In due course, a representation petition was filed and an election was held on April 23, 1971,3 which resulted in a tie vote. Among those who supported the Union during the preelection campaign was James Utley, who talked to other employees in support of the Union , solicited a number of them to sign cards, attended two union meetings , and along with one other employee, served as an observer for the Union at the election . The principal issue in this case concerns the termination of Utley and Respondent's refusal to reinstate him following an extended absence due to illness after the election. Correct Record. The motion has been received in evidence as Tx Exh I and is granted. 3 Unless otherwise indicated herein all dates set forth occurred in 1971 197 NLRB No. 97 DELTA PINE PLYWOOD COMPANY B. The Alleged Violations of Section 8(a)(1) of the Act The only alleged violations of Section 8(a)(1) are based on the testimony of John Walker concerning conversations with Green End Foreman David Boss and General Manager Neal McCloud. Boss and McCloud both testified to different versions of these conversations. Walker was active in soliciting employees on behalf of the Union, signed an authorization card, and attended union meetings. Following the events at issue herein Walker was discharged on August 11. Although an amended charge filed in this case alleged that Walker's discharge was also discriminatory, that portion of the charge was later withdrawn, and the complaint contains no allegation based on Walker's discharge. According to Walker, during the noon hour one day in March he went to the lathe deck. Boss approached him and said he had heard that Walker was riding up and down the road with a union man, that he was getting paid for it, and that Boss had spoken to Walker's brother-in-law about it. According to Walker, Boss also said that Respondent was paying top wages and benefits and that he did not see why the employees would want a union. Walker testified he told Boss that he was not riding around with a union man or being paid by the Union. Boss testified that earlier that morning Walker called him over to Walker's work station and told him that Walker wanted to speak to him about some rumors that were going around and were untrue. According to Boss, he said that he did not have time to talk then and suggested they get together at noon . Boss testified that at noon Walker came to the vicinity of the vat where Boss was working and asked if Boss had time to talk. According to Boss, he replied affirmatively and asked Walker what he wanted to talk about. Boss testified that Walker said someone was accusing him of riding with union officials, getting paid by the Union, and sigmng cards. Boss testified further that he told Walker he had heard the rumors also. According to Boss, Walker then proceeded to deny the truth of the rumors and to explain that he could prove they were untrue. Boss testified he then told Walker that if he were Walker he would get out of it, get away from it, and have nothing to say about it either way. According to Boss, he then suggested that Walker go back to work, and Walker left. Boss denied those aspects of Walker's testimony which were inconsistent with his. As between Walker and Boss, I credit Boss. Walker's explanation of how he happened to be on the lathe deck at noon when he talked to Boss is not persuasive. According to him, he did not go there by prearrangement with Boss but went so that he could go outside the plant and get some sun. Yet there were other exits from the plant which Walker could have used with far greater convenience if that was his purpose, and the fact that Walker, a heavy-set man, chose to go to an area which required him to climb over machinery lends support to Boss' testimony that Walker went looking for Boss as a result of their earlier conversation. Having credited Boss, I find nothing in his statements to support the allegation of the complaint that Boss created the impression of surveillance. It was Walker who first 613 raised the matter of the rumors and said they were being circulated. Boss' concession that he had heard them conveyed no more than what Walker already knew-that there were rumors about the plant concerning Walker -and did not carry with it any inference that Boss or management in general had engaged in surveillance in order to learn of the union activities which would not otherwise have been known to them. Accordingly, I recommend dismissal of this allegation of the complaint. The second incident, according to Walker, occurred on April 23, the day of the election. He testified that about an hour before the election Neal McCloud, general manager of the plant, approached him at his work station and said that he knew Walker had signed a card and that if he wanted to redeem himself with the Company he should vote right. Walker testified that he asked McCloud if his job was secure after the election and that McCloud replied that he was not at liberty to say because the NLRB would not allow him to. McCloud testified that he was not in the production area of the plant on the day of the election until after the voting was over and that he did not talk to Walker on that day. He testified that on another occasion, the time of which he could not remember, Walker asked him what would happen to his job if the Umon won the election. According to McCloud, he replied that the outcome of the election would have no bearing on Walker's job with the Company. McCloud, who spoke to a number of employees about the Union and urged them to vote against the Union, did not impress me as unsophisticated or uninformed with respect to what he could or could not say to employees, and there is no evidence of any other unlawful statements by McCloud. His version of his response to Walker's question about his job security under the circumstances is more plausible than that of Walker. In addition, while Walker may have been unsettled to some extent by the line of attack on his credibility during cross-examination, his testimony on cross-examination was accompanied by a number of pauses and hesitations before answering questions which seemingly should have given him no difficulty. Bearing in mind that several months passed after the election until the charge was filed and Walker's statement was initially taken, I have concluded that McCloud's testimony was more accurate than Walker's and credit McCloud. Accordingly, I shall recommend that this allegation of the complaint be dismissed. C. The Discharge and Refusal To Reinstate James Utley 1. Utley's employment and union activity James Utley worked for Respondent for approximately 3 years. His work record was good. With the exception of one prolonged absence of approximately 8 weeks in August and September 1969, when he was in an automobile accident, and his second prolonged absence just before his termination, Utley's attendance record was also good. As set forth above, Utley was a supporter of the Umon during the preelection campaign and served as one of the two union observers at the election. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Utley's illness and absence from work Shortly after the election, Utley became ill and last worked on April 30. On the following day Utley visited his doctor who put him in the hospital for observation and told him that he might possibly need a gall bladder operation. Utley had the operation on May 14 and remained in the hospital until May 23, when he went home to convalesce? At the time of his release from the hospital, Utley's doctor told him that he would be able to return to work in about a month. However, around June 1 Utley developed back trouble. On the advice of his doctor, he visited a specialist in Mobile, Alabama, who hospitalized Utley again, this time for a slipped disc. Utley entered the hospital in Mobile on June 12 and was released on June 20. He again convalesced at home, visiting his doctor weekly. On July 12, he asked his doctor if he could return to work. The doctor advised him to wait another week and then gave him a note stating that he would be able to return to work on July 19. 3. Utley's attempt to return to work and notification of termination On July 19, Utley went to Mobile to pick up some insurance papers and pay some bills and did not return in time to go to work. On the next day he reported to Plant Manager Muhlbeier's office around the time his shift started, 3:30 p.m., showed him his doctor's release, and told him he was ready to return to work . Muhlbeier told him that he had been terminated because of his lack of concern about notifying Respondent of his whereabouts and his intentions to return to work. Muhlbeier also told him that his job had been given to another employee. Utley said that employee Houston Everett was supposed to be keeping Respondent advised . Muhlbeier said that he had had no word at all since the early days of Utley's absence and that Everett had only spoken to him once about it. Utley raised a question as to whether his union activity had caused his termination . Muhlbeier replied that the Union had nothing to do with it and that he had probably carried him on the rolls as long as he did because Utley was an observer at the election and he felt he could have had a problem if he had terminated him earlier.5 4. Utley's efforts to inform Respondent 'of his, absence There is no dispute that before Utley's operation on May 14 Utley gave Respondent adequate notice that he was hospitalized and that he was going to have an operation. There is some conflict as to the number of times and the method used by Utley to contact Respondent, but it appears that at least once, and possibly twice, Utley telephoned Muhlbeier during this period, and sent word through Houston Everett to Muhlbeier and his foreman, 4 The hospital and Utley's home were in Lucedale, Mississippi, some distance from the plant 5 Both Utley and Muhlbeier testified as to this conversation, and their testimony is not n essential conflict. Utley testified that he could not remember whether Muhlbeier said that Utley had failed to keep him informed, but recalled telling Muhlbefer that Everett was supposed to keep Bill Moore, before the date of his operation. It is also undisputed that when Utley spoke to Muhlbeier, Muhlbei- er told him to hurry up, get well, come back to work, and to keep Muhlbeier informed of his condition. The evidence is in sharp conflict as to whether after May 14 Utley sent any word to Respondent as to his condition or plans to return to work. Utley conceded that after May 14 he did not personally contact Muhlbeier or any other representative of Respondent to inform them of his condition or his plans to return to work. However, he testified that he sent messages to Respondent through Everett, and Everett testified that he transmitted some messages to Respondent. Respondent's witnesses testified that between May 14 and July 20, they heard nothing from Everett about Utley. Utley testified that while he was in the Lucedale hospital Everett visited him regularly, and he asked Everett at least twice a week to tell Respondent of his condition and progress. He testified that after he left the hospital on May 23, Everett continued to visit him at home two or three times a week during his convalescence, except during the period from June 12 to 20 when he was in the hospital at Mobile. He testified that about once a week he asked Everett to inform Muhlbeier or one of the foremen as to his condition and expectations and that on Friday, July 16, he told Everett to inform Respondent that he would be able to return to work on the first of the following week. According to Utley, Everett at various times told him that Muhlbeier had asked when Utley would be able to return to work and that Everett had talked to Muhlbeier, Clarence Smith, who had replaced Moore as Utley's foreman, and Jerry Wells, another foreman. Although Everett's testimony was to some extent corroborative of Utley's, it failed to support Utley in several significant respects. Everett testified that between May 1 and the time that Moore left Respondent's employ, he spoke to Moore two or three times a week about Utley. However, as Moore left on May 17, it would appear that Everett spoke to him at most once after Utley's operation and not at all after Utley left the Lucedale hospital.6 Everett testified that he did not 'talk to Jerry Wells about Utley. Everett also testified that he spoke to Muhlbeier about Utley at most twice, once before May 14 and once in relation to an inquiry about Utley's insurance. However, although Everett initially placed his inquiry about Utley's insurance in June, it is clear, as set forth below, that Everett inquired about Utley's insurance in May while Utley was still in the Lucedale hospital, and probably before May 14. Everett's testimony accordingly would appear to support Muhlbeier's testimony that Everett did not speak to him about Utley after May 14. Thus, from Everett's testimo iy it would appear that any reports made by him to Respondent after Utley left the Lucedale hospital were made to Smith, who replaced Moore as foreman over both Utley and Everett in the latter part of May. Ai cording to Everett, after Smith became him informed I have credited Muhlbeier's testimony that he first mentioned Utley's failure to keep Respondent informed as the reason for the termination 6 Moore, who appeared as a witness for the General Counsel, testified Everett spoke to him only twice with both occasions before Utley's operation on May 14. DELTA PINE PLYWOOD COMPANY foreman he spoke to Smith about Utley two or three times a week. However, he also testified that he last spoke to Smith on July 2 when he told Smith that Utley hoped to return from his surgery on July 6 but that something was wrong with his back, that he would be out longer, and,that he did not know how long Utley would be out. Everett's testimony does not show that he transmitted Utley's July 16 message to Respondent, assuming that it was given to Everett to transmit.? In addition, Everett's testimony as to his visits with Utley casts doubt on Utley's estimate of the frequency with which Everett visited Utley and upon Everett's estimate of the number of times that he reported to Smith. Although Utley testified that Everett visited him at home two or three times a week during his convalescence, Everett ultimately testified that he visited Utley only once between the time that Utley left the Lucedale hospital on May 23 and the time that Utley entered the hospital in Mobile on June 12. He also testified that he did not learn of Utley's back problem until after Utley was hospitalized in Mobile. As Utley testified that his back began to bother him around June 1, it would seem likely that Everett's visit to Utley occurred closer to May 23 than to June 12. Thus, from Everett's testimony it would appear that Utley sent word to Respondent through Everett at most once between May 23 and June 12, and that Utley did not notify Respondent of his back problem before he entered the Mobile hospital. The conclusion is readily drawn that Everett did not report Utley's imminent return to anyone on July 16, and that he did not report on Utley as frequently as he estimated. The question remains whether Everett spoke to Smith about Utley at all, and particularly on July 2, as Everett testified. Smith denied that Everett ever talked to him about Utley, although he conceded that he noted Utley's absences as excused in his attendance records up until July 16 when he was told that Utley was terminated. He explained that he continued to record Utley's absences in the same way that Moore, his predecessor, had recorded them, and he testified that he had heard in the plant that Utley was sick. Both Everett and Smith impressed me as attempting honestly to state their recollections of the events. Smith conceded that he heard Utley was sick, and it may well be that he heard it from Everett. But it is quite clear from Everett's testimony that much of his initial recollection as to the time of events and the frequency of his reports was impaired, and the same is true as to Utley's recollection of Everett's visits and his requests to Everett. In addition, although Utley testified that he initially anticipated that he might return to work about a month after he left the Lucedale hospital, he did not testify that he ever expected Everett was not questioned as to whether Utley asked him to report again after July 2 8 Utley placed the receipt of this note around June 10. However, his testimony as to dates on which he inquired about insurance and received communications from Respondent was clearly confused. While Everett initially placed his conversations with Muhlbeier on a Monday in June, he also testified that he first inquired about the insurance in May, brought Utley a note from Thornton about a week after Utley entered the Lucedale hospital and later in June brought Utley a second note when Utley sent a check for insurance to Respondent which was made out to the wrong payee 615 to return to work on July 6 or that he asked Everett to so inform Respondent. Thus, while it may be that Everett spoke to Smith about Utley in May, I cannot conclude that he spoke to Smith about Utley with any frequency or that he spoke to Smith on July 2 as he testified. In short, I concluded that if Everett spoke to Smith at all, it was soon after Smith became foreman and not thereafter. 5. Utley's efforts to pay for his insurance Respondent provided medical insurance for its employ- ees and permitted employees to pay for additional coverage for their families. Premium payments for family coverage were usually deducted from employee pay. When an employee was absent, his coverage was usually maintained as long as Respondent had reason to believe that he would return to work. During such absences, employees sometimes made insurance payments to Re- s1pondent,, and' sometimes Respondent• advanced the pay- ments and deducted the amount advanced from paychecks after employees returned to work. In mid-May, Utley asked Everett to inquire about his insurance. Everett spoke first to Muhlbeier telling him that Utley was then unable to return to work and wanted him to check on his insurance so that he would not owe too much when he returned to work. Everett was referred to Thornton, Respondent's office manager'and head account- ant. Thornton wrote a note which he gave Everett to take to Utley.8 The note sent Utley by Thornton stated: We will send you a statement on your insurance premiums due about the 15th of June. If it appears that you will be able to return to work soon thereafter we will continue to carry you and take another look at it on July 15th if you aren't back by then. Hope you recover soon. On June 17, Thornton mailed Utley a bill, and, on June 21, Utley asked Everett to take a check to Thornton for the amount due. Everett did so. As the check was made out to the wrong payee, Thornton or an assistant asked Everett to take it back to Utley with another note,9 and Utley gave Everett another check to take to Thornton the next day. Payment was made on June 22. There is no evidence that Everett discussed Utley's condition or plans with Thornton at that time. June 22 was the last time that Everett communicated with Thornton on Utley's behalf. 6. Respondent's explanation of the decision to discharge Utley Respondent had no written or rigid policy with respect to when employees were expected to report absences or how Everett's testimony ultimately was consistent with that of Thornton as to the sequence and timing of these events, and it is clear that Everett's conversation with Muhlbeier occurred when Everett initially inquired about Utley's insurance in May Muhlbeier testified that he did not recall that Everett asked him about the insurance but that Everett could have done so I have credited Everett in this respect 9 The second note was clearly not the note set forth above which I have found was sent to Utley in mid-May It undoubtedly pertained to the identity of the payee to whom the check should be made out '616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD long they could remain away from work before being terminated. However, Utley testified that he understood that he was supposed to notify his foreman if absent for more than 3 days and to inform Respondent every so often as to how he was coming along if out for longer periods of time. Utley testified that in 1969, when he and Everett were absent for a number of weeks because of an automobile accident, he notified Respondent several times of their progress. Muhlbeier testified that he periodically reviewed the absentee list and did so on Friday, July 16. According to Muhlbeier, after noting how long Utley had been absent, he checked with Supervisors Wells and Smith and learned that they had heard nothing from Utley. Muhlbeier testified that he then checked with the office and learned that Utley's insurance had been terminated as of July 14. He testified further that he then concluded that Utley had quit, filled out a personnel memorandum noting Utley's termination, and instructed Smith to make out a memoran- dum to show the promotion of Miller, another employee, to replace Utley permanently on his job effective Tuesday, July 20, the first day of Respondent's next week for payroll purposes.10 Muhlbeier explained that he waited longer than usual before terminating Utley and that once an employee was permanently promoted, Respondent never took his promotion away from him, so Utley's former job was effectively filled on the day he reported back to work. Muhlbeier also testified that it was against Respondent's policy to immediately rehire an employee who had been terminated, and that it was against policy to demote an employee to a lower paying job, which was all that was available on the day that Utley reported for work. Muhlbeier's testimony was supported in outline although not in all details by Thornton and Smith. Thornton testified that on July 14 or 15 when Respondent's July insurance payment became due he spoke to Muhlbeier about the continuation of Utley on the rolls. As a result of his conversation with Muhlbeier, according to Thornton, he dropped Utley from the rolls and crossed Utley's name off the list of insured employees. That list and Respon- dent's payment were sent to the insurance company on July 20, the day that Utley sought to return to work. On the same day, after Utley was told of his termination, he spoke to Thornton, who handed him a letter he was preparing to mail which contained a bill for premiums due through July 14, and stated: "Any future notices of premiums will be sent to you by the insurance company." ii Smith testified that on a Friday in mid-July, Muhlbeier spoke to him about Utley and said he was terminating Utley. According to Smith, he asked why, and Muhlbeier replied that he had not received any word from Utley. Smith testified that Muhlbeier asked if he had heard from Utley and Smith said he had not. Although Smith initially testified that during this conversation Muhlbeier told him to make out the papers for Miller's promotion and to notify Miller of it, he later testified that Muhlbeier did not 10 Miller had been temporarily assigned to replace Utley earlier during Utley's absence 11 Thornton so testified Utley testified that he could not remember speaking to Thornton on that day 12 The General Counsel contends that Respondent's termination of Utley in 1971 differed from its treatment of him in 1969 when he was also tell him to take any action with respect to filling the vacancy until a few days later, after Smith saw Utley in Muhlbeier's office. 7. Concluding findings The General Counsel contends that Utley's termination and Respondent's refusal to reinstate him were due to his union activities. Respondent contends that it merely considered Utley as having quit his job and had refused to reinstate him in accord with its normal policy. The evidence as to the efforts of Utley and Everett to notify Respondent of Utley's condition and plans tends to give more support to Respondent's contentions than to the General Counsel's. As found above, Everett did not support Utley's testimony that on July 16 he sent word of his intent to return the following week. I have not credited Everett's testimony that he gave Smith a report of Utley's condition as late as July 2, and it appears at most that Everett mentioned Utley's condition to Smith around the time Smith became foreman in May. While Utley sent an insurance check to Thornton on June 22, there is no evidence that Everett made any report at that time as to Utley's plans with respect to returning to work. Thus it appears that Utley did not inform Respondent directly or indirectly of his condition or his intent to return for more than 6 weeks before he was terminated, and that after Utley remitted his insurance payments, almost 4 weeks had passed without further word from him. While Respondent might have taken some initiative to contact Utley before terminating him, there is no evidence that it took initiative in contacting absent employees other than those who were absent because of a job-related injury. Utley, on the other hand, understood it was his responsibility to contact Respondent. Utley did not fulfill that responsibility.12 It is true that there are some discrepancies between the testimony of Muhlbeier on the one hand and Thornton and Smith on the other as to the internal discussions on July 16 surrounding Utley's termination. Muhlbeier testi- fied that he learned from Thornton that Utley's insurance had been dropped. Thornton, however, testified that he checked with Muhlbeier before dropping Utley from the rolls, indicating as one would normally expect that the decision to terminate Utley from the insurance rolls followed the decision to terminate his employment and not vice versa. Muhlbeier also testified that he checked with Smith and Wells to see if they had heard from Utley before deciding to terminate him, while Smith testified that Muhlbeier told him he was terminating Utley and then asked if Smith had heard from Utley. But these discrepan- cies are relatively minor, and I do not find them a basis for inferring that Muhlbeier did not decide to terminate Utley on July 16, essentially as testified by him. There is greater difficulty in disposing of the contention with respect to Respondent's refusal to reinstate Utley when he reappeared for work on July 20. At that time absent for an extended period. However, Utley conceded that on that occasion he kept Respondent informed of his condition The difference in his treatment on the two occasions thus appears explainable exactly in the fashion advanced by Respondent and not, as the General Counsel contends, only on the basis of Utley's union activities DELTA PINE PLYWOOD COMPANY Muhlbeier told Utley he had been terminated for failure to report and also told him his job had been given to another employee. Yet Smith, after initially supporting Muhlbeier, testified that Muhlbeier did not tell him to promote Miller until after Utley visited Muhlbeier's office. If the latter testimony is to be believed, it would appear that Muhlbeier falsely told Utley he had been replaced when he sought to returnto work. Smith's change in his testimony appeared to come as a supnse to Respondent's counsel, who himself elicited the changed testimony on redirect examination. Smith thereafter adhered to that version despite a sugges- tion that he had testified otherwise on direct examination and despite further detailed examination as to it. I am constrained to credit Smith's second version of the instructions to promote Miller. The fact that Muhlbeier told Utley that his job had been filled raises some suspicion as to the reason why Utley was denied reinstatement when he appeared at the plant. However, it is not uncommon to deny immediate reinstate- ment as a matter of policy when termination appears to have been justified, and it is possible that Muhlbeier found it easier to suggest to Utley that reinstatement was denied because he had been replaced than that it was denied simply as a matter of policy.13 To be sure, if that were the case, Muhlbeier was not frank in his testimony. While that factor is entitled to weight, it must be weighed against the scant evidence of animus, the fact that Utley's termination 13 The testimony does not indicate that Muhlbeier told Utley in so many words that he could not reinstate him because he had been replaced. 14 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, 617 in the first instance appears to have been lawful, and the fact that Respondent did not act with undue haste in terminating Utley. While there is some basis for suspicion and one may debate whether Respondent might have acted more humanely in the circumstances, I conclude from the evidence as a whole that Utley was not denied reinstate- ment because of his union activities. Accordingly, I shall recommend that the complaint be dismissed. Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meamng of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in any of the unfair labor practices alleged in the complaint. Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: 14 ORDER The complaint is dismissed in its entirety. conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes.