Illinois Bell Telephone Co.

148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Illinois Bell Telephone Company and Communica- tions Workers of America, AFL-CIO, Local No. 5000. Case 14-CA-11330 12 April 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 9 December 1983 Administrative Law Judge Walter H. Maloney Jr. -issued the attached supple- mental decision. The Respondent filed exceptions and a supporting brief and the Charging Party filed a brief in opposition to the Respondent's exceptions and a brief in support of the judge's decision. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision and Order. This case is here following a remand by the United States Court of Appeals for the Seventh Circuit.2 In an earlier decision, the Board found that the Respondent violated Section 8(a)(1) by re- fusing to permit employees Cary Hatfield and Re- becca Wimberly to have representatives of their choice at disciplinary interviews in accordance with NLRB v. J. Weingarten.3 The Board, howev- er, dismissed the allegation that the Respondent had further violated Section 8(a)(1) by discharging Hatfield because she had requested representation at the interview. It found, instead, that Hatfield's discharge was motivated by the Respondent's belief that Hatfield had improperly adjusted telephone calls. Nevertheless, the Board ordered as a remedy for the violation found that the Respondent rein- state and make Hatfield whole for any loss of wages or benefits she had sustained.4 Thereafter, the court enforced the Board's Order in all respects except as to those portions providing for reinstate- ment, backpay, and expunction of the discharge from Hatfield's personnel record. The court noted that this remedy would have been appropriate had Hatfield been discharged for requesting union as- sistance at the interview. However, the court found that this was not the case because Hatfield had i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 674 F 2d 618 (1982) 3 420 U S 251 (1975) 4 The decision is found at 251 NLRB 932 (1980). The judge's citation of the Board's decision in fn. I of his decision is incorrect been discharged for cause. In these circumstances, the court concluded that the Respondent was enti- tled to show whether it had evidence of Hatfield's misconduct, independent of that obtained during the illegal interview, sufficient to support its dis- charge of Hatfield for cause. The court thus re- manded this case for further proceedings as neces- sary to ascertain the appropriateness of the remedy given with respect to employee Hatfield.5 Following the remand, a hearing was held and the judge issued his supplemental decision. The judge stated that Hatfield's discharge was not due to her having requested union representation at the disciplinary interview but due to her having con- fessed during that interview to making personal telephone calls without paying for them and to im- properly adjusting the timing of certain collect calls. The judge then concluded that at the second hearing the Respondent failed to produce any pro- bative, credible, independent evidence of Hatfield's misconduct outside that obtained at the disciplinary interview. Accordingly, the judge found that Hat- field would not have been fired but for her partici- pation in the disciplinary interview in which she had been deprived of her right to a representative. Applying the standard set out in Kraft Foods6 and that of the court's remand as the "perceived" law of this case, the judge then recommended that the Board's Order in the initial proceeding, which pro- vided for reinstatement and backpay for Hatfield, should be reaffirmed. We disagree with the judge's recommendation, and we shall delete from our original order the provision that the Respondent reinstate and make whole employee Hatfield. In Taracorp Industries,7 we overruled, inter alia, Kraft Foods and our earlier decision in the instant case to the extent that it provides a make-whole remedy for an employee who has been discharged for cause. We thus determined in Taracorp that we would not grant a make-whole remedy for the Weingarten violation here, or for cases like this one. Clearly, Hatfield's discharge resulted from her al- leged misconduct and not from the Respondent's denial of her request for a representative. Accord- ingly, there is an insufficient nexus between the violation committed and the reason for the dis- charge to warrant a make-whole remedy. Thus, consistent with our disposition of this case in Tara- corp, we shall not require the Respondent to rein- 5 Chairman Dotson and Member Hunter did not participate in the ear- lier Board decision They note that the sole issue now under consider- ation, following the remand, is the suitability of the remedy earlier given and not the ment of the underlying unfair labor practice 6 251 NLRB 598 (1980) ' 273 NLRB 221 (1984) 275 NLRB No. 27 ILLINOIS BELL TELEPHONE CO. 149 state and make whole employee Hatfield. Since the Respondent was found to have violated Section 8(a)(1) by refusing to permit employees Hatfield and Wimberly to have representatives of their choice at their disciplinary interviews, we shall order only that the Respondent cease and desist from such conduct and post an appropriate notice. We do not consider this action to be inconsistent with the court's remand of this case. We note that the court implicitly stated that it would enforce the provisions of the initial order providing for Hat- field's reinstatement with backpay should the Re- spondent be unable to establish that it had sufficient independent evidence of Hatfield's misconduct. As noted, the Respondent thereafter produced no credible independent evidence of Hatfield's miscon- duct. This, however, does not mean that we are re- quired, by virtue of the court's remand, to adhere to the terms of the initial order insofar as it pro- vides that Hatfield be reinstated and made whole. We note that the court's remand of this issue was premised on our seeking enforcement of the origi- nal order. We no longer seek enforcement with re- spect to the provisions in question because we have now determined that such a remedy is inappropri- ate.8 Thus, we now revoke certain provisions of the Board's original order which the Board previ- ously sought to have enforced. In these circum- stances, we find our actions here do not conflict with the court's remand. Consistent with the above analysis we shall modify the original order accord- ingly. ORDER The National Labor Relations Board orders that the Respondent, Illinois Bell Telephone Company, Centralia, Illinois, its officers , agents, successors, and assigns, shall 1. Cease and desist from (a) Requiring that employees participate in inter- views or meetings where the employees have rea- sonable grounds to believe that the matter to be discussed may result in their being disciplined and where representation at those interviews or meet- ings has been refused. 8 Contrast the instant case with Baker Protective Services, 269 NLRB 236 (1984), where, following remand from the Third Circuit, the Board revoked its earlier bargaining order which had been denied enforcement by the court In so doing, the Board declined to apply the rationale of Midland Life Insurance Co, 263 NLRB 127 (1982), for, had it done so, the Board would have been in the position of adhering to its earlier bar- gaining order contrary to the court's decision refusing to enforce that order While here-unlike Baker-we are applying the new precedent retroactively, the basic principle of these cases is the same Both here and in Baker, we are acting in a manner consistent with the decision of the circuit court Thus, we are denying a remedy which the court also has refused to enforce And, contrary to our dissenting colleague's conten- tion, our disposition of the instant case in no way conflicts with that of the court (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the purposes and policies of the Act. (a) Post at its Centralia, Illinois exchange copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Re- gional Director for Region 14, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER DENNIS, dissenting. Contrary to my colleagues, I would adopt the judge's supplemental decision and reaffirm the Board's original Order reported at 251 NLRB 932 (1980), enfd. in part and remanded 674 F.2d 618 (7th Cir. 1982). I fully recognize that the Board's original Order is inconsistent with Taracorp Indus- tries, 273 NLRB 221 (1984), a decision in which I joined, holding that make-whole remedies are inap- propriate for typical Weingarten' violations. Never- theless, I do not believe we can ignore the terms of the court's remand, which is the law of the case. In its opinion and its judgment , the court re- manded this case to the Board with the specific in- struction to conduct "such further proceedings as may be required to determine whether independent evidence sufficiently supported the Company's dis- charge of Hatfield for cause." Pursuant to that di- rection, we remanded the proceeding to the judge for the purpose of taking additional evidence and issuing a supplemental decision consistent with the court's direction. The judge followed those instruc- tions and concluded, largely on the basis of credi- bility resolutions, that independent evidence did not sufficiently support the Respondent's discharge of Hatfield for cause. In my view, the Board cannot, at this juncture and in this particular case, suddenly change the applicable law of the case by 8 Since these portions of the Order have been enforced by a judgment of the United States Court of Appeals , the notice shall be captioned to reflect this i NLRB v J Weingarten, 420 U S 251 (1975) 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD imposing a new remedial standard.2 The only ap- propriate standard in this case is that which the court mandates. See Baker Protective Services, 269 NLRB 236 (1984). Applying that standard, a make- whole remedy is appropriate.2 Accordingly, I re- spectfully dissent. 2 My colleagues correctly state that the court denied enforcement of the Board's original Order in this case It simply does not follow, howev- er, that their decision "in no way conflicts" with the court's decision The conflict that exists is between the court's direction that the Board apply a specific remedial test and my colleagues' insistence on applying an entirely different remedial standard a Even if I were convinced that the judge erred in evaluating the evi- dence, I could not join my colleagues' decision Regardless of whether we agree with the judge's conclusions, we are required to apply the re- medial test that the court directed I did not participate in the Board's original decision in this case Ac- cordingly, I do not necessarily endorse the view that the Respondent vio- lated Hatfield's Weingarten rights As with the remedy issue, however, I accept and apply the law of the case APPENDIX NOTICE TO EMPLOYEES POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT require any employee to partici- pate in an interview or meeting where the employ- ee has reasonable grounds to believe that the matter to be discussed may result in his or her being disciplined and where we have refused to permit him or her to be represented at the meeting by a representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. ILLINOIS BELL TELEPHONE COMPANY SUPPLEMENTAL DECISION WALTER H . MALONEY JR., Administrative Law Judge. There has been no rush to judgment in this case. On March 9, 1978, Illinois Bell discharged Cary Ann Hat- field under circumstances which all agree' violated Sec- tion 8(a)(1) of the Act and the Supreme Court doctrine in the Weingarten2 case Now, some 5-1/2 years later, the issue still remains as to whether Miss Hatfield should be awarded the normal remedy in an 8(a)( 1) discharge ' The Board's original decision is found at 251 NLRB 935 The deci- sion of the United States Court of Appeals for the Seventh Circuit is re- ported at 674 F 2d 618 (1982) 2 NLRB v J Weingarten, 420 U S 251 (1975), which held that, on re- quest, an employee is entitled under the Act to union representation during a disciplinary interview and that it is a violation of Sec 8(a)(1) for an employer to refuse an employee such representation case, namely, reinstatement to her former position and backpay. The chronology in this case reads like a page out of Dickens' Bleak House. The original hearing took place on June 23, 1978, and an administrative law judge's deci- sion was issued on September 14, 1978, some 6 months after the event at issue. The Board's initial decision did not come down until nearly 2 years later, on August 27, 1980. On March 27, 1982, the court of appeals affirmed the Board in part and remanded the case for further de- liberations as to remedy. It was not until 16 months later-July 28, 1983-that the case was remanded by the Board to the Regional Director for further proceedings. A hearing was then held on the remand on October 3, 1983, and briefs were submitted to me on or before No- vember 14, 1983. Nothing was presented at the hearing which was not presented, or could not have been pre- sented, in 1978. As a result, the remedy I recommend now is not materially different than the one I recom- mended on September 14, 1978.3 The legal setting for this supplemental decision is de- rived from several sources. In Kraft Foods, 251 NLRB 598 (1980), issued the same day as the Board's original decision in this case, the Board laid out certain criteria for determining the appropriateness of a remedy for a Weingarten violation. The Board ruled that a prima facie case of Weingarten violation is made out when the Gen- eral Counsel establishes that an employer has conducted an illegal interview and that an employee was disciplined for conduct which was the subject of that interview. In this case, the General Counsel produced such evidence in the first hearing, and the Board and the court of ap- peals both agreed that he established a violation. They also agreed that Hatfield was discharged not because she exercised a Section 7 right in demanding union represen- tation at a disciplinary interview but because the Re- spondent had in hand a confession, obtained in the course of an unlawful interview, in which Hatfield ad- mitted that she made five free long-distance calls from her operator's station to a friend, Daphne Sprehe, in Pomona, California, and had fixed tickets, i e., had ad- justed about six collect calls from prisoners at the Van- dalia Rehabilitation Center by changing the timing on the call tickets which resulted in smaller charges than the length of the calls actually warranted. In Kraft, the Board went on to say that a wrongdoer could avoid the conventional reinstatement-backpay remedy which normally arises in an 8(a)(1) discharge case by showing that the discipline which was meted out was not based on information obtained at the illegal interview but was premised exclusively on data obtained independent of the interview. The implication, if not the direct teaching, of this doctrine is that if lawfully ob- tained evidence of employee wrongdoing and unlawfully obtained admissions are commingled by an employer in arriving at a decision to discharge, the fruit of the poi- sonous tree taints the lawful evidence and renders the employer liable for a full remedy. In short, a respond- 8 Certain errors in the transcript were noted and corrected ILLINOIS BELL TELEPHONE CO ent's motive must be pure and its,supporting evidence must be equally unsullied. While agreeing with the Board's major premise, two court of appeals have disagreed with the Board's subor- dinate premise and have reversed reinstatement-backpay remedies because, in their judgment, there was sufficient independent evidence of employee wrongdoing to war- rant a discharge, quite apart from the information gar- nered from an illegally conducted interview, even if the employer failed to separate the wheat from the chaff and rely exclusively on the wheat. They regarded the illegal interviews in these cases merely as incidental elements in a well-founded discharge procedure. In General Motors Corp. v. NLRB, 674 F.2d 576 (6th Cir. 1982), the Sixth Circuit had before it a case in which a company security officer saw an employee at a local bowling-alley during working hours and reported him. Later, following an il- legally conducted interview, the employee in question was discharged for being absent from the plant without permission during working hours., The court felt that the evidence supplied by the security guard was a.suffrcient basis for the discharge, and the fact that the employee - later confessed to a breach of the employer's - work rules during a faulty interview was merely surplusage. Similar- ly, in NLRB v. Consolidated Foods'Co., 694 F.2d 1070 (6th Cir 1982), the same court refused to enforce a rein- statement-backpay remedy which had been awarded by the Board to an employee who was discovered spending too much time in the, plant restroom while the product he was supposed to be watching rolled off the assembly line and apparently was spoiled. The court in that case felt that the independent evidence of misconduct which led to the illegally conducted interview was not dimin- ished by an explanation later given by the employee in the course of the illegal interview as to why he was absent from his duty station. In NLRB v. Potter Electrical Signal Co.; 600 F.2d 120 (8th Cir 1979), the court was confronted by a situation in which two employees engaged in 'a fist fight at the plant and were later discharged following unlawfully conducted discussions. The court ` there felt that there was clear independent evidence of the, fight, which took place in plain view of employee's and a supervisor, and regarded later misconduct on the part of the employer insufficient to nullify the just cause for discharge which existed at the time the supervisor broke up the fight. A somewhat strained application of the independent evi- dence-rule was made by the Eighth Circuit'in Montgom- ery Ward & Co. v. NLRB; 664 F.2d 1095 (8th Cir. 1981). Its application was not well 'articulated in a broad brush opinion'which did not delve into ,the facts. The court re- fused to enforce a reinstatement-backpay remedy'respect- ing two employees, Poupard and Lafferty, who were dis-. charged for theft following. admissions' made. during ille- gally•conducted interviews. The court opinion implies, but does' not state,' that there was independent evidence of wrongdoing bringing the case within the -Potter Elec- tric rule: Looking into. the. decision of the Board and. the administrative law • fudge,' it, appears that no such - evi-. dence, apart from unlawfully obtained statements, was available to the employer at the time of the discharge. At,, the trial, Poupard admitted stealing,, and it was this ad- 151 mission made in open court which prompted the adminis- trative law judge (but not the Board) to refuse him a full remedy.- With regard to Lafferty, the Board decision re- veals that he took the stand and repudiated his unlawfuly obtained confession and the administratiave law'judge credited the denial made under oath. On this basis, both the judge and the Board ordered a full remedy, but the Eighth Circuit found. independent evidence of wrongdo- ing and reversed, despite this state of the record. In reviewing the case at hand, the Seventh Circuit stated (674 F.2d at 623 fn. 2): In this case, the Company had a legitimate con- cern in the integrity of its toll system, and was enti- tled to fully investigate the security of- its billing procedures at the Centralia Exchange. A review of the evidence suggests that Hatfield's discharge was not based solely upon her written statement which was obtained during the unlawful interview, for it does not appear that the Company had independent evidence obtained -from prison officials at the Van- dalia Rehabilitation Center. In order to balance the need of the Company to maintain an honest and efficient workforce, with the duty to enforce the policies of the Act, we believe that Illinois Bell is ' entitled to show that its dis- charge of Hatfield was not solely dependent upon evidence obtained from her during the unlawful interview, but that that discharge is and was sup- ported by other independent, evidence which was available to the Company at the time of discharge. Upon this record, we cannot say that there is sub- stantial evidence to support a finding that Hatfield's discharge stemmed . solely from the Company's unfair labor practice of forcing her to participate in an interview without representation.- . - For these reasons, we enforce the Board's.Order • in all respects except as to reinstatement, backpay, and expungement of, Hatfield's discharge record. Enforcement of those portions of the Order relating to Hatfield is denied, and the -case, is remanded to the • Board for such further proceedings as may be required to determine whether independent evi- dence • sufficiently supported. the Company's dis- charge of Hatfield for cause. In stating the purpose of the remand and directing its remarks to independent evidence obtained from prison officials at the Vandalia Rehabilitation Center; the court of appeals apparently adopted the independent evidence test as applied by the Sixth and.Eighth Circuits in Gener- al Motors Consolidated Foods, and Potter Electrical, not the Board rule in Kraft Foods nor the implications of the Eighth Circuit holding' in 'Montgomery Ward. ,It varies 'slightly from the earlier holding of the Board 'in this case, which stated that it was awarding a full remedy-be- cause the Respondent had failed to meet its burden of showing that the decision to discharge was not based on information obtained at the unlawful interview. As the perceived law of this case, the above-quoted standard is the one which will be ,applied herein ' 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The terms of this remand place the Board and its ad- ministrative law judge in the unaccustomed position of determining whether there was just cause for the dis- charge and whether there was lawful and probative evi- dence to support a finding of just cause. This is normally the role of the arbitrator in applying the grievance provi- sions of a contract. The Board does not usually sit in judgment on the expediency, wisdom, or necessity of employee terminations. It is axiomatic in Board proceed- ings that an employer may discharge an employee for good cause, bad cause, or no cause at all as long as the cause is not union activities. As the Board has often pointed out, it is motivation, not justification, which de- termines the legality of a discharge (and hence a dis- charge remedy) under the Act.4 Perhaps a distinction can be drawn herein on the basis that the question framed for this supplemental proceeding is not the legali- ty of the discharge itself but merely the matter of the ap- propriate remedy for an admittedly illegal act. This remand also contains another unusual feature. The Court stated that Illinois Bell was entitled to show that the discharge of Hatfield was not solely dependent upon evidence obtained during the unlawful interview. Given that premise, a further and unanswered question arises as to why Illinois Bell was not required to make that showing on June 23, 1978, when this case was first heard. An inquiry was put to Respondent' s counsel at the second hearing as to why he did not present the evi- dence adduced on October 3, 1983, at an earlier time. His reply was simply that the focus of the case at that point was on the issue of whether Hatfield was entitled to union representation at a disciplinary interview and whether an employee who was not a union official could properly be substituted. In his view, the second hearing presented other issues. However, appropriateness of a remedy is always an issue in a discharge case and supple- mental proceedings are normally reserved exclusively to determine the quantum of backpay due.5 However, de- spite the generosity of the court of appeals in allowing an unusual if not unprecedented "second bite at the apple," Respondent offered little more of probative value in this unique proceeding than it offered during its "first bite." The burden was clearly on it to produce the neces- sary evidence. With respect to the tickets which were allegedly fixed so that prisoners at the Vandalia Rehabilitation Center would pay less for collect calls than the time of the calls required, Respondent produced no such tickets. With re- spect to calls allegedly made for free by Hatfield to her friend in Pomona, California, no tickets reflecting these calls exist. However, Respondent offered no other evi- dence of her practice, such as the testimony of the al- leged recipient of the calls, to establish either that calls were made by Hatfield or that they were made free of charge. Respondent concentrated its effort exclusively on admissions of guilt assertedly made by Hatfield in a series of letters written by her to inmates at the Vandalia 4 See, for example, Boyer Ford Trucks, 254 NLRB 1389, 1396 (1981) 5 There is no contention here that the evidence adduced on October 3, 1983, was newly discovered, so the second hearing was necessarily con- ducted outside the normal parameters of the Board's Rules and Regula- tions, especially Sec 10248(d)(1) Rehabilitation Center. However, the letters were not produced, either at the first or second hearings and, more importantly, the failure of Respondent to produce them on either occasion was never explained. In a ques- tion directed to him by me, Respondent's counsel stated that he did not even issue a subpoena to the warden of the institution requiring him to be present at the hearing and bring with him the letters which he assertedly inter- cepted from Hatfield. There is no suggestion, either in this record or in the record of the previous case, that the letters no longer exist or could not have been produced by this most routine procedure.6 Instead, Respondent insisted on relying on the testimo- ny of Security Manager James Lawshe, whose testimony in this proceeding was no more reliable or credible than it was in the first hearing. Lawshe testified that, on the day following a discussion by phone with Wilma Buoy, the former manager of operator services at Respondent's Centralia, Illinois exchange, he went to the Vandalia Re- habilitation Center and met with Captain Craig, an offi- cial of the prison. Captain Craig reportedly furnished him with several letters written to prisoners by Hatfield and Cathy Belt, another telephone operator, which had been taken from the cells of these prisoners during a search. Over the vigorous objection of the General Counsel and the Charging Party, Lawshe began to testi- fy as to the contents of these letters. In order to present a complete record and obviate the necessity for yet an- other hearing, I permitted Lawshe to continue his testi- mony as to the contents of Hatfield's letters, while ac- cording to the General Counsel the motion to strike.' The General Counsel made such a motion at the hearing and I now grant it, striking from the record of this case the entire testimony of Lawshe concerning the contents of letters assertedly sent by Hatfield to various prisoners of the Vandalia Rehabilitation Center in 1978 Section 10(b) of the Act imposes on the Board the same rules of evidence which are applicable to U.S. dis- trict courts "so far as practicable." There is nothing im- practicable about applying to this proceeding Sections 1002 and 1004 of the Federal Rules of Evidence, which provide, in pertinent part: To prove the content of a writing, record, or photograph, the original writing, recording, or pho- tograph is required, except as otherwise provided in these rules or by Act of Congress. The original is not required, and other evidence of the contents of a writing, recording, or photo- graph is admissible if- (1) . . . All originals are lost or have been de- stroyed unless the proponent lost or destroyed them in bad faith; 6 Lawshe testified at the second hearing that, a week before the hear- ing, he asked the warden to give him the disputed letters and the warden refused 7 Another method utilized on such occasions by administrative law judges is to sustain an objection based either on hearsay or the best evi- dence rule and then permit the offering party to proceed with an offer of proof in the form of questions and answers The net result is the same as the procedure utilized in this instance ILLINOIS BELL TELEPHONE CO. 153 (2) . . . No original can be obtained by any judi- cial process or procedure. Respondent failed to serve a subpoena duces tecum on the custodian of these documents, namely, the warden of the Rehabilitation Center, and gave no excuse for failing to do so. The fact that the warden would not voluntarily turn the letters over to Lawshe is no excuse for not pre- senting them. There is no claim that the letters were not in existence, either at the original hearing or at the second hearing, and a clear inference may be drawn from Lawshe's testimony that they are still in existence and in the possession of Illinois correctional officials. The fact that Respondent would prefer to rely on the conclusionary and questionable testimony of a witness who saw the letters rather than produce the letters them- selves, especially when afforded a very special opportu- nity to do so, indicates that the letters themselves do not say what Lawshe testified that they say. Hatfield's flat contradiction of Lawshe's account supports that infer- ence.8 Accordingly, since the record is bereft of any 8 One letter mentioned by Lawshe assertedly contained a statement by Hatfield that Robert Allen, a prison correspondent, should contact her at a specific hour in her work schedule and included Hatfield's work sched- ule. Lawshe went on to testify that Hatfield also said that she made calls to Pomona from her switchboard but, on being pressed , he admitted that she did not say that she had made those calls free of charge or without billmg the customer Lawshe's basic testimony was that, in reading over the letters it became obvious to him that falsification existed and that free calls were being made However, Lawshe admitted that Hatfield never told any of her correspondents that she would put their calls through free of charge One admission attributed by Lawshe to Hatfield was a state- ment in a letter to Allen that he tell his friend that he would be billed a little bit more because she could not fix the ticket . Hatfield denies that she ever wrote such a statement and, as noted previously, her letters were never produced to verify whose account was accurate probative, credible independent evidence that Hatfield adjusted toll calls or made free long distance calls and since the burden was on Respondent to produce that evi- dence, the remedy recommended by me and ordered by the Board on August 27, 1980, should be be reaffirmed.9 In making this recommendation, I also reaffirm the find- ings and conclusions previously entered in this case, except insofar as they are inconsistent with those made by the Board or the court of appeals. 10 9 The Charging Party and the General Counsel make a supplementary or alternative argument which is amply supported by the record They contend that the disciplinary interview in which Hatfield was deprived of her Weingarten rights was an integral part of the investigative process which led to her discharge and, but for that interview, she would not have been fired It is clear from Lawshe's testimony that both he and those within the managerial hierarchy to whom he reported regarded the information gleaned from letters supplied by prison officials to be merely investigative leads, not conclusive evidence of wrongdoing, and that before they were in a position to take action, those leads had to be pur- sued and either confirmed or discounted Indeed, without an interview with Hatfield, Lawshe was in no position even to establish that the letters in question were in fact written by her, irrespective of what they might have said The information contained in the letters, as recited by Lawshe's stricken testimony was suggestive, at best, of wrongdoing and the determination that they were evidence of wrongdoing is nothing more than Lawshe's conclusion This fact may explain why Respondent was not at all anxious to produce the letters and preferred to rely instead on Lawshe's conclusions rather than primary evidence Since in point of fact as well as by Respondent's admissions, the independent evidence contained in the letters was insufficient to support a discharge, it was necessarily insufficient to deny to the discrimmatee the normal remedy for an 8(a)(1) violation 10 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses