Stop-N-Go Foods, Inc.

STOP-N-GO FOODS 777 Stop-N-Go Foods, Inc. and Charlotte Moneagle. Case 9-CA-21405-2 30 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 27 March 1985 Administrative Law Judge Nancy M. Sherman issued the attached decision, and on 5 April 1985 she issued the attached erra- tum. The Respondent filed exceptions and a sup- porting brief. On 13 August 1985 the Board issued an order approving the Respondent's requested withdrawal of its exceptions and remanding the case to the Regional Director for settlement pur- poses. On 6 January 1986, however, the Board issued an order vacating the earlier order and rein- stating the exceptions, as requested by the General Counsel. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and 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 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings 8 In adopting the judge's finding that Sheila Wetherholt's testimony re- garding her 8 September 1984 conversation with Michael Monnheimer about whether to hire Charging Party Moneagle should be credited, we do not rely on the judge' s finding at fn 25 of her decision that a discrep- ancy existed between Monnheimer's alleged two versions of this conver- sation We find that there was no discrepancy between these alleged two versions, as one of the alleged versions was not intended to be a complete account of the conversation Rather, we rely on the judge's demeanor findings as well as her reasons in the last sentence of fn 25 in finding that Wetherholt's testimony should be credited We do not rely on the judge's finding that Store Supervisor Christine Easton suggested to Store Manager Wanda Daugherty that Moneagle submit an application to the Respondent stating that she left her job at Southland Corporation because of illness in the family, as we find that there is insufficient evidence to support this conclusion We also do not rely on the judge's remark in par 6 of sec II,F,2 of her decision that she regards it as "most unlikely" that Monnheimer did not read the Board's decision in Southland Corp, 267 NLRB 303 (1983), before the hearing in this case , as he knew he would be an important wit- ness We regard this statement by the judge to be speculative We note the Respondent's contention that the judge mischaracterized the evidence when she stated in par 4 of sec II,H,2 of her decision that "Moneagle had in fact told Monnheimer that Southland had discharged her for suspected union activity, and that Southland had advanced as a pretext for her discharge certain cash-handling accusations which were false and had been so found by an NLRB Administrative Law Judge and by the Board itself " Although we note that Moneagle did not use these precise words, the import of the words she did use conveyed this mes- sage which the judge attributes to her. conclusions as modified2 and to adopt the recom- mended Order3 as modified. We note that the judge's recommended remedy and Order required the Respondent, inter alia, to remove from its files any reference to its refusal to hire Moneagle in September 1984-and to her dis- charge by, and case against, the Southland Corpo- ration in 1982, and then detailed various documents to be removed which mentioned Moneagle's situa- tion with the Southland Corporation. We shall modify the judge's recommended Order to require, in accord with our customary orders in cases of this type, that the Respondent remove from its files any reference to its unlawful refusal to hire Monea- gle in September 1984. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Stop-N-Go Foods, Inc., Englewood, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 2(b). "(b) Remove from its files any reference to the Respondent's unlawful refusal to hire Charlotte Moneagle, and notify, her in writing that this has been done and that evidence of this refusal to hire will not be used as a basis for future personnel action against her." 2. Substitute the attached notice for that of the administrative law judge. 3 As discussed in fn 10 of the judge's decision, we note that Moneagle failed to list her most recent employer on her September 1984 job appli- cation to the Respondent The Respondent's job application form stated "I understand that if any of the information I have given in this applica- tion or subsequent interviews is,false, I am subject to immediate dismissal if employed " The Respondent states that because Moneagle's application was not accurate, the Respondent was unable to obtain job reference in- formation from Moneagle 's most recent employer Thus, the Respondent contends that the judge's recommended Order requiring it to offer Mon- eagle employment is improper We find no ment in the Respondent 's contention This issue clearly was raised and litigated at the hearing Further, although the Respondent was afforded an opportunity to demonstrate that had it known of Monea- gle's omission on her application it would not have hired her, or that if hired she would not have been retained, it failed to do so. Chairman Dotson would permit the Respondent to raise those issues in compliance proceedings. 279 NLRB No. 102 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX FINDINGS OF FACT NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to hire, or otherwise dis- criminate against, employees because they have filed charges or given testimony under the Act. 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. WE WILL offer Charlotte Moneagle the job which we unlawfully refused to give her or, if such a job no longer exists, a substantially equivalent job, without prejudice to the seniority or any other rights and privileges which she would have en- joyed if she had been hired for that job in Septem- ber 1984; and make her whole, with interest, for any loss of earnings she may have suffered by reason of our unlawful refusal to hire her. WE WILL remove from our files any reference to our unlawful refusal to hire Charlotte Moneagle, and notify her in writing that this has been done and that evidence of this refusal to hire will not be used as a basis for future personnel actions against her. STOP-N-Go FOODS, INC. James R. Schwartz, Esq., for the General Counsel. Michael Burdge, Esq., of Dayton, Ohio, for the Respond- ent. Charlotte Moneagle, of Dayton, Ohio, pro se. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge. This case was heard before me in Dayton, Ohio, on January 31, 1985, pursuant to a charge filed on October 22, 1984, and a complaint issued on December 6, 1984. The com- plaint alleges that Respondent Stop-N-Go Foods, Inc., violated Section 8(a)(1) and (4) of the National Labor Relations Act, by failing and refusing to hire the Charg- ing Party, Charlotte Moneagle, because she had filed unfair labor practice charges with the Board and given testimony to the Board at an unfair labor practice hear- ing under the Act in Southland Corp., 267 NLRB 303 (1983) ("Southland" or "7-11"). On the entire record, including the demeanor of the witnesses, and after due consideration of the briefs filed by Respondent and counsel for the General Counsel, I make the following I JURISDICTION Respondent is a Delaware corporation with an office and place of business in Dayton, Ohio. At all times mate- rial, Respondent has been engaged in the retail sale and distribution of general merchandise. During the 12 months preceding the issuance of the complaint, a repre- sentative period, and in the course and conduct of such operations, Respondent's gross revenues exceeded $500,000, and Respodent purchased and received at its Dayton facility products, goods, and materials valued in excess of $50,000 directly from points outside Ohio. I find that, as Respondent admits , Respondent is engaged in commerce within the meaning of the Act and that ex- ercise of jurisdiction over its operations will effectuate the policies of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Charlotte Moneagle's Case Against Southland About late 1978, Charlotte Moneagle began to work for Southland in a Dayton, Ohio retail grocery store, where she continued active employment until April 1982. On May 5, 1982, she filed a charge against Southland. On the basis of this charge, a complaint was issued against Southland, alleging that it had violated Section 8(a)(1) of the Act by, inter alia, discharging her because of her protected concerted activities. On January 3, 1983, she testified at the hearing on this complaint before Ad- ministrative Law Judge Michael O. Miller. Judge Miller's decision issued on March 17, 1983. He found, inter alia, that Moneagle had been discharged on April 20, 1982, because she had engaged in protected concerted activity, namely, complaining to management about alleged denials of wage increases to herself and other employees; telling management that Southland's employees needed union representation; and evincing ap- proval of an anonymous "mystery writer letter" to Southland's employees, which urged them to band to- gether to do something about working conditions. Judge Miller rejected as pretextual Southland's contention that the reasons for her discharge were connected to an enve- lope, containing $510 in cash, which should have been but was not found in the store safe. In so concluding, he specifically found that she had put into a slot in the store safe the envelope containing the money. He further found that Moneagle did not have a key to the store safe, and that Supervisor Salvador Ruiz and the store manager had the only keys. In addition, he found that the con- tents of the safe had been removed by the store manager, and taken by her into the backroom for counting, before she reported that the $510 envelope was missing. Judge Miller's decision stated that Southland's district manager, who made the decision to terminate Moneagle, testified that Southland had no evidence that she had taken the money and had never accused her of doing so. In addi- tion, concerning her notice of discharge attributing it to not following proper money-drop procedures, Judge Miller stated that Supervisor Ruiz had testified that Moneagle had in fact followed such procedures. Con- STOP-N-GO FOODS 779 cerning Southland's contention that she had failed to follow proper cash procedures, Judge Miller stated that Supervisor Ruiz had testified that her cash-handling pro- cedures in connection with the transaction had been proper, except that she had contravened a practice pre- cluding one employee from using a cash register while another was in charge of it.' Judge Miller noted the dis- trict manager's prehearing statement to an NLRB inves- tigator that Moneagle was discharged for mishandling funds. However, Judge Miller found that concerning what her error had been, the district manager had taken shifting positions which were contrary to Supervisor Ruiz' testimony about proper procedures and to the evi- dence about actual practice. Further, regarding Ruiz' tes- timony that Moneagle's discharge was partly motivated by the fact that the money was never found, Judge Miller stated that the district manager (who decided on the discharge) had testified that Moneagle was not dis- charged because of any suspicion or belief that she had taken the money. On August 23, 1983, the Board affirmed Judge Miller's decision in all respects material to the instant case.2 Judge Miller's recommended Order, adopted by the Board in all respects material here, required Southland, among other things, to offer Moneagle "reinstatement to her former position . . . without prejudice to her seniori- ty or other rights and privileges and to make her whole for any loss of pay or other earnings she may have suf- fered as a result of the discrimination against her." Also, Southland was required to "Expunge from its personnel files and other records all reference to [her] discharge." In December 1983 Moneagle, Southland, and the Board's compliance officer reached an agreement to settle the case. Under this agreement, Southland did not offer her reinstatement, but paid her somewhat more backpay than she would have been entitled to if she had refused a rein- statement offer on December 19, 1983. Southland other- wise undertook to comply with the Board's order, in- cluding (apparently) the expunction requirement. How- ever, at the time of the January 1985 hearing before me, Southland's computerized records continued to show that she had been separated in April 1982, and that her most recent pay rate had been her April 1982 pay rate rather than the higher pay rate she would have received if she had continued to work for Southland until Decem- ber 1983. From time to time between Moneagle's April 1982 dis- charge by Southland and the January 1985 hearing before me, Moneagle applied for work with various pro- spective employers. Between April 1982 and Judge Mil- ler's March 1983 decision, she stated on these applica- tions that Southland had temrinated her in April 1982. i Judge Miller referred to an allegation by Ruiz that Monegale had been involved in a $160 shortage about a month before her discharge However, there is no evidence that Respondent knew about this at any material time in any event, Judge Miller found that her receipt of a wage increase in the performance review following this incident tended to indicate that she was not considered culpable, and stated that she had testified that the seeming shortage was due to confusion caused by an- other clerk's misringing of a transaction 2 The Board did not rely on Judge Miller's finding that Moneagle en- gaged in protected concerted activity when she endorsed and posted the anonymous "mystery writer" letter After March 1983, she stated on her applications that her employment with Southland continued until December 1983.3 At least after December 1983, she stated to pro- spective employers that when she left Southland her hourly wages had been $5.10 per hour. This was the rate which she would have been paid by Southland if she had continued to actively work for it until December 1983, and which had been used for the latter part of her back- pay period in the NLRB compliance officer's computa- tion of the backpay which she received from Southland. At the time of her April 1982 discharge, her hourly wages had been $4.35 per hour. A consequence of her December 1983 settlement with Southland was that she was paid unemployment compensation on the assumption that she had continued to work for Southland until that date. B. Respondent's Hiring Procedures Respondent uses printed job application forms which are available at its various retail stores. An applicant can mail his filled-out form to "headquarters," but is general- ly advised to return it to the store. The store manager reivews the applications filed at his store, and personally interviews any applicant he is interested in During or after this interview, the store manager fills out a standard printed "interview form" (which is part of a printed "re- cuitment strategy worksheet" form) summarizing the ap- plicant's responses to certain questions. Also, the store manager is supposed to make a reference check and to fill out a "telephone interview form" summarizing the re- sponses made by a prior employer of the applicant. If the store manager concludes that the applicant would be a desirable employee, the store manager gives the store su- pervisor (the store manager's immediate superior) the ap- plicant's job application, and the "recruitment strategy worksheet" and "telephone interview form" filled out by the store manager; and asks the store supervisor to con- duct a second personal interview of the applicant. The store supervisor sometimes fills out a new "interview form," and sometimes merely uses the form already filled out by the store manager . Then, the store supervisor confers with the store manager about the applicant. The end of the "recruitment stategy worksheet" form contains the printed entry "Plan to hire (Circle)" fo- lowed by a printed "Yes" and a printed "No, because"; this last entry is followed by printed blanks. Then, the worksheet contains printed blanks calling for the store manager's signature and the date, and for the store super- visor's signature and the date. The record contains inter- view forms prepared on six successful applicants for clerks' jobs who were inteviewed by Store Manager Sheila Wetherholt and/or her immediate supervisor, Store Supervisor Michael C. Monnheimer. Most of these forms were signed by both of them regardless of who filled them out, and contain a circled "Yes." However, Pettit's sole interview form was prepared by Moneagle, and signed only by Wetherholt; Monnheimer alone signed the interview form which he prepared on Myers; 9 Before the December 1983 settlement , she stated that she was still on Southland's payroll 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and DeArmond's sole interview form was prepared and signed only by Wetherholt and contains no recommenda- tion.4 There is a conflict in the testimony, which is discussed infra (sec. II, H,2), to the limited extent it is material here, whether the final decision about hiring an applicant rests with the store manager or his immediate supervisor, the store supervisor. When the store manager of a par- ticular store receives an application from an acceptable applicant for whom there is no vacancy at that store, that store manager sometimes draws that applicant to the attention of his store supervisor, or of another store man- ager. C. Moneagle's Job Applications to Respondent Before 1984 Between Moneagle's April 1982 discharge by South- land and September 1983, she applied to Respondent for work on several occasions In September 1983 she was interivewed by Wanda Daugherty, the store manager of Respondent's Paterson store. Daugherty had worked with Moneagle at Southland, and knew "basically" what had happened there. Moneagle filled her in on all the de- tails, and what had happened up to that point. Daugh- erty advised Moneagle not to put down anything about filing a charge with the Board, "the company just does not want that kind of hassle."5 Daugherty said that she wanted Moneagle to work for her, but that she could not hire Moneagle without Store Supervisor Christine Eas- ton's approval. For reasons not clear in the record, Mon- eagle was also interviewed by Wetherholt, the store manager of Respondent's Brown Street store . 6 Moneagle told Wetherholt "everything that had happened" at Southland, including "going to court," the missing $500, the "mystery writer letter," and "the whole deal."7 4 She completed his worksheet on August 14, 1984 , but did not sign it until September 13, 1984 6 This finding is based on Moneagle's uncontradicted and credible tes- timony Respondent 's answer admits Daugherty's supervisory status At the time of the hearing, Daugherty was still a supervisor in Respondent's employ She was called by Respondent as a witness , but was not asked about this conversation 6 Wetherholt testified that her store needed help and Daugherty's did not Store Supervisor Easton , whose area encompassed both stores, testi- fied that Daugherty's store needed a clerk on the third shift, and that Moneagle would not work on that shift Moneagle , generally a more reli- able witness than Wetherholt or Easton, testified that Daugherty had only part-time or third -shift work available, Moneagle expressed to her a preference for full-time work on other shifts but said Moneagle would take whatever Daugherty had available , and Moneagle did not indicate to Easton that Moneagle did not want to work on the third shift r This finding is based on Moneagle's testimony , which is indirectly supported by the fact that the printed interview form includes questions about the reason for any prior discharge and whether the applicant had had problems with handling money Wetherholt testified that she had learned in 1983, from Moneagle's application , that she had been involved in a "labor practice" with Southland Wetherholt initially testified that she did not remember if Moneagle gave her any information regarding cash-handling problems (although "I assume" Moneagle was asked the questions on the form) Later, Wetherholt testified that until the January 1985 hearing before me, she had never heard that any money had been missing, that if she had known that $500 had been missing, "Certainly it would have made a difference to me" , and that all Moneagle had told her was "the drops were not written down properly " However, Wetherholt elsewhere testified that on September 8, 1984, Monnheimer told her that Moneagle had talked to him about the "cash drop" and about the arrest of her Southland manager for theft (see infra sec 11,E) Further, the Wetherholt said that she wanted Moneagle to work for her, but that she could not hire Moneagle without Eas- ton's approval. Notwithstanding Daugherty's contrary recommendation to Moneagle, her 1983 application stated that she had been discharged by Southland be- cause of unfair labor practices. About October 1983 Easton interviewed Moneagle, according to Easton for a job in Wetherholt's store (see supra, fn. 6). Moneagle said that she liked doing convenience store work. Fur- ther, she told Easton about Moneagle's unfair labor prac- tice case against Southland, and "exactly what hap- pened" there.8 Easton testified that she inferred from this interview that Moneagle had a "negative attitude" toward Southland, the NLRB, herself, her divorce, and other matters. Easton testified that she reported to Weth- erholt that Moneagle had an "overall negative attitude. Not just toward Southland, but [life] in general, things in general."9 Another applicant was hired for the job in Wetherholt's store. Daugherty told Charlotte Moneagle that concerning her unfair labor practice case against Southland, she "should have just forgotten about it. [She] shouldn't have put it down. [She] should have just put down something else. In other words, falsify [her] application . . . . If you want a job, Charlotte, do not put down anything that happened with the Labor Board. Don't put anything down that happened with [South- land]. Don't tell them that you filed a charge against the company because they don't want any of that hassle. If you want a job, just put down something else" (Supra, fn. 5). The complaint does not allege that Respondent's 1983 refusal to hire Moneagle was unlawful.1 ° D. Moneagle's 1984 Job Applications to Respondent In September 1984 Moneagle gave Daugherty another job application form. This time, Moneagle's application stated that she had left her job at Southland because of illness in the family. Daugherty told her that Daugherty thought "possibly" that the reason Moneagle had not been hired in 1983 was the explanation on her 1983 ap- plication for her separation from Southland. i t A day or credible evidence shows that on that date or shortly thereafter, Wether- holt read an interview form, prepared by Monnheimer on Moneagle, which contained several reference to the missing $500 (see infra, sec II,F,2). For these and demeanor reasons, I credit Moneagle 8 The quotation is from Moneagle's credible testimony , which at least implies that she told Easton in 1983 as much as she told Monnheimer in 1984 (see infra, sec 11,E) Easton testified that Moneagle did not mention a missing $500 money drop However, Easton also testified that during this interview, which took place before Moneagle's settlement with Southland, Moneagle said that she had quit her employment with South- land because of lack of promotions Such testimony by Easton cannot be reconciled with her testimony that Moneagle described her case against Southland during the interview and on her job application 8 Wetherholt was called by the General Counsel as a witness, but was not asked about this conversation 10 Wetherholt testified, in effect, that Respondent did not hire Monea- gle because she had obtained a job elsewhere However, Wetherholt gave no credible explanation about how Respondent allegedly learned this Moneagle performed telephone solicitation work for a solar heating firm between about November 1983 and early February 1984, when she was laid off for lack of work She credibly testified that her reason for omit- ting this job from her September 1984 application to Respondent was that she had forgotten about it i l This finding is based on Moneagle 's testimony Moneagle further testified that she inserted her "illness in the family" representation in this Continued STOP-N-GO FOODS two later, Daugherty telephoned Moneagle and asked if she wanted a job. Moneagle said yes. Daugherty said that she needed somebody desperately , and that she also knew of another manager (meaning Wetherholt) who needed an assistant manager and two or three people in her store . Daugherty said that if Moneagle wanted a job, she was to come to Daugherty's store on Friday, Sep- tember 7 , to be interviewed by the Store Supervisor Monnheimer. i 2 The evening of this telephone conversa- tion with Moneagle, Daugherty telephone, Wetherholt at her home and told her that Moneagle had applied for a job. Inferentially, Daugherty also told Wetherholt about Moneagle's scheduled interview with Monnheimer at Daugherty's store on September 7, and suggested that Wetherholt come to Daugherty's store that day. Wetherholt's store normally employed , in addition to Wetherholt, three full-time employees and two part-time employees. At the time that Wetherholt received this call from Daugherty , only two people besides Wetherholt worked at the store, and she desperately needed more help. As previously noted , Wetherholt had been favor- ably impressed with Moneagle when she applied to Re- spondent for a job in September 1983 Wetherholt re- membered from Moneagle's September 1983 job applica- tion that she had worked at Southland's Third Street store in Dayton Wetherholt had a reference check form at home and decided to make an immediate reference chct,K on Moneagle She telephoned Southland 's Third Street store , and was connected with the incumbent store manager, James Brewer. At the time that Southland discharged Moneagle, Brewer had been an auditor for an undisclosed number of Southland stores, inferentially including the Third Street store . He had talked to Moneagle on two or three occasions before her discharge , but had never been her supervisor and knew nothing about her desirability as an employee Further , Brewer's immediate predecessor as manager of the Third Street store had not been serving in that capacity when Southland discharged Moneagle. Brewer's sole knowledge regarding the circumstances of her discharge was acquired in connection with posting arrangements for the Board notice at Southland 's Third Street store, while he was manager of that store, about January and February 1984. More specifically : South- land's area personnel manager in Columbus, Ohio, Paula Miller, brought copies of this notice to the Dayton Third Street store about January 1984, and posted them at ap- propriate locations When Brewer asked why these no- tices had to be put up , and to be visible to the employees 1984 application form pursuant to Daugherty 's suggestion However, Moneagle also testified that she gave this completed application blank to Daugherty before Daugherty suggested an "illness " entry Notwithstand- ing this discrepancy , I credit the testimony of Moneagle summarized in the text , in view of Respondent's failure to ask Daugherty about the matter 12 As discussed infra, Moneagle inserted September 8, which was a Saturday , on the job application she gave to Respondent on the date of this interview Moneagle testified that she could not recall whether the interview took place on September 7 or 8 However, she , Monnhefiner, and Wetherholt (who conversed with Monnheimer immediately before and immediately after the interview ) all testified that the interview took place on a Friday Daugherty, who testified for Respondent, was not asked about this matter 781 for 60 days, Miller said that Moneagle had filed a suit, and that a settlement of that suit had included a notice- posting requirement. The notice specified in the Board's order had included, inter alia, a statement that Southland would not "discharge employees because they engage in protected activities"; a summary of employee conduct which is so protected; and a statement that Southland would offer reinstatement to Moneagle , would make her whole for loss of pay and would expunge from its files all reference to her discharge.' 3 During Miller's visit, she told Brewer not to give out any information whatsoever on Moneagle , and to refer all inquiries about Moneagle to Miller . Southland's gen- eral corporate policy is, on written request for a refer- ence check on a prior employee, to provide that employ- ee's name and social security number and to verify his dates of employment, position, and rate of pay. Wetherholt told Brewer that she was calling on Re- spondent's behalf, but did not identify herself by name. She asked whether Moneagle had been employed by Southland, and in what capacity. Brewer siad that she had been employed at the Third Street store as an assist- ant manager (not claimed to have been a supervisory job; see 267 NLRB at 304 fn. 1). Wetherholt asked Brewer for at least most, and probably for all, of the other infor- mation called for by the "Telephone Interview Form (Previous Employers)." In response to each such ques- tion, he referred her to Southland's zone office." While at home on the day of her conversation with Brewer, she inserted Moneagle's given name (Wetherholt did not know how to spell Moneagle's surname and, in the upper right-hand corner, Brewer's name and title. At the time that Daugherty telephoned Moneagle to come for a job interview with Monnheimer , Moneagle had in her possession a blank application form which Daugherty had given her Before coming to the store on September 7, she filled out this application blank. She stated thereon that she had worked for Southland be- tween October 30, 1978 , and December 26, 1983, and that her final salary had been $5.10 an hour (see supra, sec. II , A). In the blank calling for her reason for leaving Southland, she put down , "Company & myself came to [mutual] agreement concerning unfair labor practice." When Moneagle came into Daugherty 's store on Septem- ber 7, both Daugherty and Wetherholt were there.15 Moneagle told them that she wanted to substitute this later-prepared application for the one Moneagle had given to Daugherty . Moneagle said that the application in Daugherty's possession was untruthful in stating that Moneagle had left Southland because of illness in the family, and that she wanted to put in a truthful applica- tion because her 1983 application had told the truth 19 The record before me fails to show whether the notice actually posted was the same as the notice specified in the Board's order The notice was not posted until after Moneagle had waived reinstatement and had received her backpay 14 My findings as to the content of this conversation are based on Brewer's testimony My reasons for rejecting Wetherholt's version of the conversation are discussed infra (sec II, F,2) 15 This finding is based on Moneagle's testimony For demeanor rea- sons, I do not accept Wetherholt's testimony that she came in afterward Daugherty was not asked about this matter 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about why she had left Southland and the printed state- ment on the 1984 application said, "I understand that if any of the information I have given in this application or subsequent interviews is false, I am subject to immediate dismissal if employed." While Wetherholt was otherwise engaged, Daugherty strongly advised Moneagle to use the "illness-in-the family" application already in Daugh- erty's possession, and said that this had been suggested by Easton. i e Wetherholt and Moneagle went into the back room. Wetherholt, too, suggested that she submit the "illness-in-the family" application in Daugherty's pos- session. Wetherholt went on to say that the matter was up to Moneagle, and that she could submit the "unfair labor practice" application if she felt "best" with that. Wetherholt said, "Maybe you should just be very vague . . . don't volunteer any information about this labor board deal . . . If Mr. Monnheimer asks you about it .. tell him." 17 Moneagle said that she wanted to use the "unfair labor practice" application. Wetherholt or (more likely) Daugherty then threw the "illness-in-the family" application into the wastepaper basket Before Monnheimer began his interview of Moneagle on September 7, 1984, and probably earlier that same day, Wetherholt filled out an interview form for Monea- gle.18 By the time of the hearing on January 31, 1985, this document had unexplainedly disappeared E. Monnheimer's Interview with Moneagle When Monnheimer came into Daugherty's store, Wetherholt gave him this interview form, and Moneagle gave him the application blank which she had brought into the store that morning. Monnheimer, Moneagle, and Wetherholt went into the back room of the store. Weth- erholt said that she was excited with Moneagle's previ- ous experience and would like to set her up for training; such arrangements are not made until after the applicant is hired. Monnheimer said that he did not want Wether- holt to say anything like that in Moneagle's presence. At this point, Wetherholt left the room, and Monn- heimer began the job interview. He asked Moneagle if she had reliable transportation to work. She said that transportation was no problem, because she had her own car. He asked her if she would have any problems about is This finding is based on Moneagle's undenied testimony , received without objection or limitation In view of Respondent 's failure to ask Daugherty about these conversations with Moneagle and Easton, and for demeanor reasons, I accord full probative weight and credence to such testimony notwithstanding Easton's testimony that she had no such con- versation with Daugherty, at least in 1984, and did not know about Mon- eagle's 1984 application There is no evidence that Daugherty dated this conversation as having occurred in 1984 or in connection with Monea- gle's September 1984 application As previously noted, Easton and Daugherty had interviewed Moneagle in connection with her September 1983 application it My findings about what Wetherholt told Moneagle are based on a composite of Moneagle's testimony and credible parts of Wetherholt's testimony To the extent that they are inconsistent, for demeanor reasons I credit Moneagle is Moneagle gave honest testimony that Wetherholt did not in fact interview her on that day Wetherholt testified that she did Particularly because Wetherholt had already acquired a good deal of information about Moneagle from her 1983 interview and from Daugherty, I am in- clined to think that what Wetherholt characterized as an interview was in fact a rather informal conversation However, the matter has no material- ity except, perhaps, to credibility issues babysitting for her children. She said that would be no problem because her mother usually took care of Monea- gle's children. He asked why she had quit Wisco Prod- ucts, the earliest employer (in point of time) listed on her application. She said that she had been laid off. He asked what had happened with Waffle Iron, the next employer (in point of time) listed on her application. She told him that she had left because of pregnancy. Monnheimer tes- tified that nothing that she said or he learned about either of those two jobs caused him not to hire her. Monnheimer then asked her what had happened with her job at Southland She said that Southland had thought that she had started a union and had fired her. She said that she had received in the mail a "mystery writer letter," copies of which had gone to all 35 of Southland's stores in the district, about working condi- tions; that she had written "right on" on the bottom of it; and that her supervisor had found the letter; Judge Miller's decision identifies this supervisor as Salvador Ruiz (267 NLRB at 304). She further said that a couple of days later, a $500 money drop came up missing out of the Southland store safe; that she did not have the keys; and that the only persons who had the keys were the su- pervisor (Ruiz) and the manager. Moneagle said that she "didn't really know anything about it .. . that [she] had put the money in the safe and they said that it was gone." She said that she was very upset about the ,hole thing because she had really like the job Monnheimer said, "Well, I hate to ask you this, but did you take the money?" She said, "No. I didn't have anything to do with it. I put it in the safe and it was gone." He asked what reason Southland had given for firing her. She said that Southland had "put down improper money proce- dure. . After . . . I went home and thought the whole thing over, there wasn't anything improper about the money drop procedure. It's jut that the money was gone, and I didn't take it, and [Southland] seemed con- cerned about . . . this letter that had been going around to all of the stores. I didn't have anything to do with it . . . that's when I decided to do something to try to pro- tect my job." Moneagle said that she had filed a charge with the NLRB against Southland alleging that she had been discharged because it thought she was trying to start a union. She told him that the administrative law judge and the Board had ruled in her favor, that they had found that she had nothing to do with the missing money, and that they had found that Southland had ter- minated her because of the "mystery writer letter" and because Southland thought she was trying to start a union. She told Monnheimer that the case could have gone to an appeals court and to the Supreme Court, but that she could not afford to await the conclusion of this procedure because she had her children to take care of, she had been unable to find a job, and her unemploymnet compensation had run out Accordingly, she said, she had settled her case at the second level by accepting 2 years' backpay and not accepting reinstatement. She fur- ther stated that this settlement had enabled her to resume receiving unemployment compensation. As previously noted, the application in Monnheimer's possession stated, under "Reason for Leaving" Southland, "Company and STOP-N-GO FOODS myself came to [mutual] agreement concerning unfair labor practice " Monnheimer then asked her what she most liked about her job at Southland. She told him that she enjoyed working with people and enjoyed that type of work. He told her that he would have to send for written refer- ences "because of everything that had happened"; that it might take a while; but that she would be advised whether she had the job or not. During this interview, Monnheimer took notes on a pad of paper which was bound at the top, rather than on the interview form in- cluded in Respondent's printed "recruitment strategy worksheet," which consists of a large sheet of paper folded crosswise to create four pages with the folded edge constituting the left-hand side of pages one and three and the right-hand side of pages two and four. After leaving the store, Moneagle recalled that she had in her purse some newspaper clippings that she wanted him to see. She went back into the store and told him that clippings in her purse stated that the individual (not Ruiz) who had been the Southland store manager when the money came up missing had later been arrested on a felony burglary charge and that all kinds of stolen items had been found in her apartment. i 9 Moneagle further stated that many people who had worked for Southland had told her that when this store manager's home had been entered with a search warrant, "cases and cases" of Southland products had been found in her home. He said, "Well, that's very interesting. .. . That certainly would point the finger at somebody else besides you . . . if there was any money missing in your store." As previ- ously noted, Moneagle had told him that the Southland store manager had had keys to the safe but Moneagle did not. Moneagle offered to give Monnheimer the clippings. He said that this would not be necessary, and that Re- spondent would be "in touch" as soon as he got her ref- erences back. My findings regarding the Monnheimer-Moneagle con- versation after she returned to the store are based on her uncontradicted testimony, partly corroborated by him. My findings regarding what was said about her South- land job during the earlier part of their conversation are based almost entirely on her testimony and on inferences from Monnheimer's entries after item five on his inter- view form (Seven eleven paid 2 years' backpay plus un- employment). Monnheimer's version of the conversation impresses me as being highly improbable. Moneagle ear- nestly wanted a job with Respondent. Her testimony and demeanor showed her to be an articulate and intelligent woman who well understood that in the course of find- ing that her discharge by Southland had been motivated by her protected activities, Judge Miller and the Board had found that she did not take the missing money, that she had put it into the safe, and that in handling the money, she had properly followed most of Southland's cash handling procedures and practices. However, when asked whether Moneagle had told Monnheimer that she had not been responsible for any missing money, he testi- fied, "She didn't really tell me that at all. She indicated 19 Judge Miller's decision indicates that this incident occurred before the end of 1982 267 NLRB at 303, 306 fn 15 783 that she felt that she wasn;t responsible." Furthermore, Monnheimer testified at one point that in response to a direct question, "Why were you discharged?" she "said she was discharged for a cash handling problem." Later, he testified that she told him about "the situation with the union organizing letter and everything else," he asked whether she had been discharged for these reasons, and she then said, "Well, actually I was discharged for missing money." Moreover, although he initially testified that Moneagle "did not indicate that she had contested the cash handling" accusation, he later reluctantly testi- fied that she had indicated that she had successfully con- tested Southland's discharge action and had got a rein- statement offer and some backpay out of the case (2 years' backpay, according to the interview form filled out by him, allegedly during the interview). Because Re- spondent has a natural concern with hiring honest em- ployees only (see infa. sec. II, H,1), and because Monn- heimer's conduct immediately after the interview shows that he was seriously considering Moneagle for a job, I also regard as improbable Monnheimer's testimony that he did not put to Moneagle the natural question of whether she had taken the money. Moreover, certain portions of Monnheimer's testimony about what was said during the interview are difficult to reconcile with cer- tain physical characteristics of the interview form which (he in effect testified) he filled out during (and not after) the interview. Thus, as previously noted, he testified at one point that Moneagle did not tell him that she was discharged for missing money until after she had told him about the union organizing letter. However, the entry on the form, "problems with union organizing letter," appears to have been inserted subsequent to the entries about the money drop.2 ° Moreover, Monnheimer testified that he asked Moneagle questions in the se- quence set forth on the printed parts of the form. Entries made by him about the money drop appear, with little space left over, in blanks three ("Explain, in the detail, the circumstances surrounding your leaving your past jobs") and four ("Have you ever been fired from a job? If so, explain"). However, after question five ("Have you had previous retail experience?") is the handwritten entry "yes, 7-eleven. Seven eleven paid 2 years back pay plus unemployment" (emphasis added); the underlined entry would likely result from the same discussion which led to the entries after questions three and four. For the foregoing reasons, and after considering the demeanor of the witnesses, I credit Moneagle's version of the inter- view, including her testimony that his contemporaneous notes were written on a pad of paper rather than directly on the form. I do not credit his testimony that his entries on the form were made during the interview; 2 i and 20 The handwritten material on the punted lines themselves states (em- phasis added , for reasons which will appear), "Supervisor Salvadore Ruiz [see supra, sec II ,A] King Kwik [a trade name used in some Southland stores] missing money drop made by her $500 00 terminated for improper cash handling Indicated there was an ongoing problem of 7-eleven with time card compliance " Directly above the underlined words, which begin in the middle of a printed line, is the entry, "problems with union organizing letter " 2 i I note that on occasion , only one interview form was filled out on an applicant hired for Wetherholt 's store (see supra, sec 11, B) 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about what was said, and the order in which it was said, I credit his testimony only to the extent that it is reflect- ed in my previous specific factual findings or is expressly corroborated by Moneagle. F. Events after the Monnheimer-Moneagle Interview 1. Time interval between the interview and Monnheimer's report to Wetherholt As previously indicated, Monnheimer, Moneagle, and Wetherholt all testified, in substance, that Monnheimer interviewed Moneagle on a Friday, which would have been September 7, 1984. Monnheimer testified, in sub- stance, that all the actions which he took in connection with Moneagle occurred on the day he interviewed her More specifically, he testified that on that day, and after the interview, he gave Wetherholt an adverse opinion about hiring Moneagle; both of them signed and dated an entry on the "recruitment strategy work sheet" prepared by him that Moneagle would not be hired; and he told Wetherholt to send Moneagle a rejection notice. I credit Wetherholt's testimony that all these events occurred no earlier than Saturday, September 8, 1984, the day after the interview. In so finding, I rely on demeanor reasons; on the fact that Monnheimer inserted a September 8 date after his signature on the "recruitment strategy work sheet"; and on his testimony that the date inserted by Wetherholt after her signature (which date is September 7) was in error. 22 I further rely on the credible evi- dence (infra, fn. 23 and attached text) that it was after his interview with Moneagle that he asked Wetherholt to obtain written references from Southland about Monea- gle, a request he would not likely have made if he had already decided that she should not be hired. My addi- tional findings regarding the events after the interview are set forth below. 2. Events before Moneagle received her rejection notice After Moneagle had left the store, Monnheimer asked Wetherholt to show him the "telephone interview form" she had made on Moneagle. Wetherholt said that she had not been able to fill it out, because Southland would re- spond to a written request only. He told her to send such a request 23 Monnheimer remarked that Moneagle had 22 Concerning his testimony that a day's interval between the inter- view and the signatures would not be consistent with company policy, see supra, fn 4 23 My findings in this paragraph up to this point are based on a com- posite of credible parts of Wetherholt's and Monnheimer's testimony I do not credit Wetherholt's testimony, denied by Monnheimer, that she said Southland had given Moneagle a "positive" reference, in view of Brewer's credible denial that he had so advised Wetherholt I do not credit Monnheimer's testimony at one point, uncorroborated by Wether- holt, that she said all Southland would send would be a neutral reference Company witness Brewer did not testify that he so advised Wetherholt and (Monnheimer's testimony aside) there is no evidence that Wetherholt was so advised from any other source Furthermore , Monnheimer's earli- er versions of this conversation with Wetherholt said nothing about neu- tral references only I do not credit Monnheimer's testimony , contrary to Wetherholt, that the conversation about references occurred before, and not after, the Moneagle interview It is uncontradicted that during that interview he said that he would have to send for written references "be- cause of everything that had happened ", and that later that day he told explained the labor problem to him, that it was a good thing that on her application she had been honest about the labor case, but that on the other hand, had she not done so Respondent could have later fired her. He asked Wetherholt her opinion of Moneagle. Wetherholt, whose preinterview enthusiastic comments had been cut off by Monnheimer, said that she just thought Moneagle was somebody who needed a job. Later that day, Wetherholt wrote Southland a letter that Respondent was considering hiring Moneagle, gave the dates when she claimed to have worked for South- land (see supra, sec. II, A), and asked Southland for a reference. Southland never answered this letter.24 On the following day, September 8, Monnheimer came to Wetherholt's store, and told her that he had thought Moneagle's application over. He said that Moneagle had an "area of expertise," that she was looking for "another setup," and that "we didn't need those kinds of prob- lems." He said that Moneagle had stayed around to talk to him about the cash drop; that she had showed him some newspaper clippings that showed her manager, at the time, had been arrested for theft; that she had wanted to explain further; and that Monnheimer "felt that was suspect." Monnheimer instructed Wetherholt to send Moneagle what is referred to in the record as a "Thanks, but no thanks" card-that is, a preprinted card, with spaces for the applicant's name and th," sender's signa- ture, which states, in substance, "Thanks for your inter- est, but we have no openings at this time." Wetherholt mailed such a card to Moneagle on September 8 or (per- haps) a day or two later.25 Moneagle that Respondent would get in touch with her as soon as he got her references back He would probably not have made these remarks if (as he testified) he already knew that Southland would give only a neu- tral reference, even in writing, and it is somewhat unlikely that he would have said that Respondent would have to send for written references if (as he testified) he had already told Wetherholt to send for them More- over, he testified that Wetherholt said she would write Southland at the address set forth in the upper right-hand corner of the reference check form, whereas no such address appears on this form 24 My finding that she wrote the letter is based on her testimony In sending the letter, she followed her usual practice of sending out a hand- written letter and failing to retain a copy Paula Miller, who is South- land's area personnel manager in Ohio and whose office is in Columbus, credibly testified that she had never received any oral or written request for references on Moneagle from someone indentifying "themselves" as being from Respondent However, there is no evidence that Brewer men- tioned Miller's name, that Wetherholt had ever heard of her, that Weth- erholt's letter was addressed to Miller, or that Miller would necessarily know about all such inquiries sent to her office Moreover, Moneagle cre- dibly testified that Southland never answered her letter to Miller in Co- lumbus requesting a neutral reference letter, or Moneagle 's later letter to David Keller (Miller's supervisor) in Chicago, requesting a neutral refer- ence letter which stated that Moneagle had worked for Southland until December 1983 rather than April 1982 and that her final pay rate was $5 10 rather than $4 35 (see supra, sec II,A) 25 My findings about Monnheimer 's remarks are based on Wetherholt's testimony Monnheimer initially testified that he said Moneagle had indi- cated during the interview that she had had a "problem with cash han- dling" and Respondent could not get from Southland "substantial verifi- cation of what actually happened ", and that Wetherholt agreed He did not at this point testify that Wetherholt said anything about an unfair labor practice or expressed any ignorance of any "cash handling" inci- dent, or that he specifically referred to a cash shortage Later, he testified that he told Wetherholt that Moneagle had told him about a "large cash shortage", that Wetherholt said, "what about the unfair labor practices", Continued STOP-N-GO FOODS Monnheimer filled out on Moneagle the interview form (whose contents are discussed infra) included in Re- spondent's "recruitment strategy worksheet." In the blank at the end, he circled the words "No, because," and added the words "of answers listed on this form." He signed this document and dated it September 8, 1984. Then, he went over it with Wetherholt.28 As discussed infra, Respondent's counsel contends that Respondent was legally free to refuse to hire Moneagle because of her unfair labor practice charge against Southland. Moreover, there is no evidence that Respondent's manu- als include any cautions about rejection of applicants for this reason However, Wetherholt had received a manual from Respondent advising her that it is unlawful to dis- charge or threaten to discharge an "hourly or otherwise protected employee" for filing unfair labor practice charges Wetherholt asked Monnheimer whether his interview form would cause her a problem. He said no, that "this was interoffice paperwork and that no one would see it." She signed it, and dated her signature Sep- tember 7.27 Under ordinary procedures, at this point Wetherholt would have taken possession of, and sent to Monnheimer the following Thursday via the interoffice mail, Monea- gle's application blank, the "recruitment strategy work sheet" prepared a'nd signed by Wetherholt, the "recruit- ment strategy wc'tk sheet" prepared by Monnheimer and signed by him and Wetherholt, and the "telephone inter- view form." However, Wetherholt "kept asking [Monn- heimer] whether there would be a problem" about Mon- eagle's application and asked him to take Moneagle's records with him. He took all the foregoing records except the "telephone interview form."28 He did not ask Wetherholt to give him this form, which at this time contained no entries indicating whether Moneagle was a desirable employee; and Wetherholt did not give it to him. Monnheimer corroborated Wetherholt's testimony that she had prepared a "recruitment strategy work sheet" on Moneagle, and did not deny Wetherholt's testi- mony that she gave it to him. However, by the time of the hearing, it was unexplainedly missing from Respond- ent's records. On the other hand, at the time of the Janu- ary 1985 hearing, Respondent's files included the "tele- phone interview form" which Wetherholt had started to fill out on the day she telephoned Southland's store man- and that he said , "I'm not interested in that I'm interested in the cash handling situation " He went on to testify that he said , "based upon the information, or lack of, that we have," Moneagle should not be haed, to which he testified Wetherholt replied, "I didn't learn that in my inter- view I'm glad you did this for me I agree with you " In view of the discrepancies between his two versions of the conversation, and for de- meanor reasons, I credit Wetherholt I note the credible testimony that Wetherholt had known for many months about the cash -drop incident at Southland, and that Monnheimer did not then know that it would give only a neutral report on Moneagle 26 This finding is based on his testimony For demeanor reasons, I do not credit her testimony otherwise 29 Monnheimer testified that when dating the document, Wetherholt made a mistake, and that she signed it on the same day he did Wether- holt testified that she signed it "later in the week" of the Friday, Septem- ber 7 interview She was not asked why she dated it September 7 28 My finding about the "telephone interview form" is based on Weth- erholt's testimony on cross-examination Her direct testimony states, and Monnheimer's testimony suggests, that he took this form also 785 ager, Brewer, and on which she had later made a few entries on September 7 or 8. When removed from Re- spondent's files and received into evidence, this docu- ment had been completely filled out by Wetherholt; in- cluded in the upper right-hand corner a notation by Wetherholt "I have sent inquiry to Columbus for [verifi- cation] of below"; and, under the blank calling for Mon- eagle's dates of employment with Southland, contained highly complimentary entries about the quality of her work there; the entry after "Why did she leave?" is "labor practice." Brewer's credited testimony about his conversation with her makes it clear that Wetherholt's complimentary entries were made up out of whole cloth.29 Monnheimer credibly testified that he did not see any of these entries until Respondent pulled Monea- gle's file from its records during the investigation of this case. From his testimony in this respect and the fact that the completely filled out form was included in Respond- ent's business records, I infer that Wetherholt completed it, and forwarded it in Respondent's interoffice mail along with legitimate records (perhaps with a second 1984 application which Moneagle filed about mid-Sep- tember; see infra, sec. II, F,3), between the date that Monnheimer took possession of the Moneagle records in connection with her September 7 application and Weth- erholt's resignation on October 6, 1984. I note that by the time she resigned, she entertained feelings of hostility toward Monnheimer (see infra, sec. II,G) Monnheimer testified at the hearing before me that he was not presently aware of the Board's decision regard- ing Southland and Moneagle and had never read it. On the basis of this testimony, I find that before interviewing Moneagle, he had not read the decision and (unless it was referred to in the lost interview form filled out by Wetherholt) had never heard of the decision.30 Howev- er, his own testimony shows that during the interview he heard about the Board's decision. Moreover, because he must have known well before the hearing that he would be an important witness in a case in which he was al- leged to have unlawfully refused to hire Moneagle be- cause of her charge and testimony in the Southland case, I regard it as most unlikely that he did not have enough curiosity to read it between her September 1984 inter- view and the January 1985 hearing. On Monday, September 10, Moneagle telephoned Wetherholt at her store and asked if she had heard any- thing positive. Wetherholt said that she had talked to Southland Store Manager Brewer and had received a good response from him, but would have to wait until she received something in writing. She advised Monea- gle to contact Monnheimer. Thereafter, but before Sep- 29 This is further shown by the statement on the form that Moneagle had worked for Southland until December 1983 Although Wetherholt testified that she was so advised by Brewer, Southland's records showed that Moneagle had been terminated in April 1982 (see supra , sec II,A) Furthermore, Wetherholt entered "yes" after "could she have stayed" and testified that Brewer so advised Wetherholt 90 Wetherholt knew about the Southland case when she filled out the form, which called for the reasons for separation from past jobs. Howev- er, she had urged Moneagle not to volunteer to Monnheimer any mfor- mation about the case 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tember 14, Moneagle received Wetherholt's "thanks, but no thanks" card. 3. Events after Moneagle received Respondent's rejection slip After receiving the "thanks, but no thanks" card, Moneagle again telephoned Wetherholt at her store. Wetherholt said that the best thing Moneagle could do was to call Monnheimer. Wetherholt further said that she had no references back in writing. Moneagle gave her an address to write for references, and said that she might have to talk to Dennis Keller, Southland's person- nel manager, in Chicago. Moneagle telephoned Monn- heimer's office, but was advised that he was out of town and would not be back for about 2 weeks After reading the printed assertion on the "thanks, but no thanks" card that Respondent had no job vacancies, Moneagle saw a "help wanted" sign in one of Respond- ent's Dayton stores (not Wetherholt's or Daugherty's). The cashier at that store told Moneagle that the cashier thought that store needed people. Thereupon, and within a week after receiving the "thanks, but no thanks" card, Moneagle filled out another application, which she brought with her when she went to Wetherholt's store to check on the status of Moneagle's September 7 applica- tion. Wetherholt told Moneagle that no written refer- ences from Southland had been received, and that Monn- heimer was the one to see about her application. Wether- holt further told Moneagle that she might as well leave her new application blank with Wetherholt instead of taking it back to the store with the "help wanted" sign, because all applications were handled by the same office. Moneagle left this application with Wetherholt, who sent it to the Monnheimer's office on the following Thursday (that is, September 20 or 27). Between a date no earlier than September 9, 1984, and October 6, 1984 (when Wetherholt quit), Respondent hired six employees, some for full-time and others for part-time work. All were still working for Respondent when Wetherholt quit. On October 6 Wetherholt resigned, because of differ- ences with Monnheimer and a belief that she had had to work excessively long hours (see infra, sec. II,G). A few days later, Moneagle went to the store which Wether- holt had managed, and asked about the status of Monea- gle's application. The woman working there said that she herself knew nothing about the matter, and that Wether- holt had quit, but offered to call Wetherholt on the store phone. When thus connected with Moneagle, Wetherholt told her that Wetherholt did not think Respondent was going to hire Moneagle. Moneagle credibly testified that Wetherholt said that Monnheimer was not going to hire her "because of what happened with you at [Southland]; you filing a charge with the NLRB and all of that stuff that went on"; Moneagle's testimony in this respect was not received to establish the truth of Wetherholt's repre- sentation.3 i Moneagle signed her charge herein on Octo- ber 18, 1984. Si For demeanor reasons, I regard Moneagle 's version of this conver- sation as more reliable than Wetherholt' s Wetherholt testified to telling Moneagle that Monnheimer had said he was not going to hire Moneagle G. Credibility of Wetherholt, Monnheimer, and Brewer As previously noted, where the testimony of the Gen- eral Counsel's witness Wetherholt conflicted with the testimony of Respondent's witness Brewer, I have cred- ited Brewer. When her testimony conflicted with the tes- timony of Respondent's witness Monnheimer, I have sometimes credited her and have sometimes credited him. In making such credibility determinations, I have taken into account the fact that Monnheimer was an in- terested witness in the sense that at the time of the hear- ing he was still a supervisor in Respondent's employ, stood to gain by its prosperity (see infra, sec. II,H,1), and likely wanted to avoid provoking his superiors by admit- ting to action which would subject Respondent to liabil- ity in the instant proceeding. However, I have also taken into account the fact that, as previously indicated, Weth- erholt entertained animus toward Monnheimer, who had been her immediate superior. Wetherholt admitted that by the time she resigned from Respondent's employ, about a month after Respondent's refusal to hire Monea- gle and about 2 weeks before she filed her charge, Weth- erholt disliked Monnheimer "immensely." A letter which she wrote to Division Manager Bohnert (Monnheimer's superior) immediately after her resignation stated that she was quitting largely because Monnheimer had alleg- edly intimidated her from using Respondent's open-door communications policy. Further, I do not accept as sin- cere her disingenous testimony that she did not see how Monnheimer would "suffer" should Respondent lose the instant case.32 Because the extent of Wetherholt's animus may be re- garded as material by reviewing authority, I make the following additional findings: Notwithstanding Wether- holt's tacit denial, and for demeanor reasons, I credit Easton's testimony that during a July 1984 training semi- nar attended by both women, Wetherholt remarked that she could not work as a store manager for Monnheimer and had a "total dislike" for him. Notwithstanding Weth- erholt's partial denial, I credit Easton's and Daugherty's testimony that during a store managers' meeting later that month, when it was announced that Monnheimer was replacing Easton as Wetherholt's immediate supen- or, Wetherholt again expressed strong dislike of Monn- heimer, and advised the other store managers to confine their tasks to those specified in Respondent's policies and procedures book, and to stop the store managers' prior practice of assisting the store supervisor by performing tasks which the book attached to that job title. In addi- tion, I credit Training Manager Durr's testimony that less than a month after Monnheimer became Wether- holt's supervisor, she said that she wanted to transfer to because "she had an area of expertise, and she was looping for a set up " I need not and do not consider whether, regarding the truth of Wether- holt's assertions, Moneagle's version of the conversation is rendered pro- bative by Wetherholt's testimony that dunng this conversation, she told Moneagle the truth (cf supra, sec II,F,2) 92 However, I attach no significance to her failure to refer, in her letter to Bohnert, to Monnheimer's refusal to hire Moneagle Wether- holt's conduct shows that she believed to be consistent with Respondent's policy a refusal to hire applicants because they had filed NLRB charges (see supra, sec II,C,D, and H,2) STOP-N-GO FOODS another store, which was under Store Supervisor Easton. Further, for demeanor reasons and notwithstanding Wetherholt's denial, I credit Daugherty's testimony that before Wetherholt quit, and until at least early December 1984, she frequently said that she "hated" Monnheimer. Moreover, for demeanor reasons, I do not credit Wether- holt's testimony that she refused Training Manager Durr's request for a letter to back up a letter from Durr washing Monnheimer out of the training program as su- pervisor; and I accept Durr's denial. I note, furthermore, that 11 days after Wetherholt quit, she signed a charge alleging that Respondent had violated Section 8(a)(1) of the Act by harassing employees through Monnheimer, and by forcing Wetherholt to quit through harassment; this charge was dismissed, apparently because she was a supervisor However, for demeanor reasons, I do not credit Daugherty's testimony, credibly denied by Wetherholt, that about early November 1984 (about 3 months before the hearing) Wetherholt said, "You know me and my little warped mind He can't do this to me, and I will take him down, no matter what I have do, or who I have to hurt"; and that Wetherholt "constantly" said she had a "little warped mind." I note, moreover, that when the General Counsel asked her whether Monnheimer had told her, on the day after he interviewed Moneagle, that she had "an area of expertise in labor problems," Weth- erholt did not accept this invitation to attribute highly damaging remarks to Monnheimer during the conversa- tion when he advised Wetherholt of his decision not to hire Moneagle. Instead, Wetherholt testified, "I'm sorry. He did not. What he said was she had an area of exper- tise. We were discussing her labor problems with the ap- plication" the previous day. Further, Wetherholt does not stand to gain or lose financially from the results of this litigation H. Analysis and Conclusions 1. Respondent's concern with preventing cash losses As previously noted, Respondent's business consists of the operation of retail convenience stores. Even in the absence of any specific testimony about the matter, I would assume that Respondent is exceedingly concerned about preventing cash losses, whether due to employee dishonesty, employee carelessness, or any other factor. Moreover, the record does contain affirmative, credible evidence of this concern. Thus, Respondent's training manual for all sales clerks includes, among grounds for immediate dismissal, "Bor- rowing, theft, or damage of property of the company or other employees," and "Carelessness resulting in the loss of company funds or assets." This manual further states that at least a written warning will be given for "Failure to follow proper cash handling procedures" and "Failure to control store shrink."33 Further, Respondent's policy 33 Store shrinkage is the difference between the amount of merchan- dise that should be in the store (as shown by purchases minus sales) and the amount which is actually there 787 manual contains similar language, and also states that the issuance of three written warnings within 12 months (in- cluding "any type warning i.e., conduct, cash shortage, inventory shortage, etc.") is grounds for dismissal. The form used by the store managers to appraise the perform- ance of individual sales clerks calls for a rating after the entry, "Follows Loss Prevention and Shrink Program guidelines. Follows company policy on cash handling, use of safes, proper cash level in register . [deters] shoplifting, robberies, etc." The form used by the store supervisors to appraise the performance of individual store managers calls for a rating after the entry, "Inven- tory shrink control, cash control . . . internal and exter- nal theft control." The forms which are filled out by store managers and store supervisors when interviewing applicants call for a response to the inquiry, "Did you have problems with handling money, giving change or balancing your cash drawer?"34 Store Manager Daugherty credibly testified that she had fired one employee for three incidents of improper cash handling, two of them involving less than $20, and one involving more than $50. Daugherty credibly testi- fied that she did not know for a fact that the employee had taken the money; "It was lost on her shift. It could have been a mistake in handling, but that's part of the job, to be careful enough to count the money." Store Manager Durr (who is also a training manager) credibly testified that she had discharged at least one employee for reasons which included improper cash handling. Fur- ther, because every store manager and every store super- visor receives a periodic bonus based on the profitability of the store under him or stores in his division respec- tively, these company personnel will receive lower bo- nuses if such stores suffer a loss of funds for any reason, including improper cash handling; or if the expense of training new employees exceeds the budget therefor. Store Manager Daugherty credibly testified that the han- dling of the money is "the bottom line to our jobs. That's the most important thing in that store." Monn- heimer credibly testified that $500 is a particularly large loss for a convenience store. Indeed, Respondent has issued a "shrink program" policy manual which specifies procedures to be followed for inventory shortages ex- ceeding $25 a week, with warnings (on printed, brightly colored forms headed in large letters "Warning Notice for Inventory Shortage") to be issued to each employee who worked during periods where the weekly inventory shortage exceeded $99; three such warnings will lead to discharge. A written warning is also issued for a cash shortage of $5 or more on a specific shift; Wetherholt's store, at least, employed only one person per shift. 2. Respondent's motive for refusing to hire Moneagle Although Respondent's posthearing brief contends otherwise, an employer violates Section 8(a)(1) and (4) of the Act by refusing to hire an applicant for employment because he had filed charges or given testimony under 94 However, laying Moneagle to one side, there is no evidence that any applicant ever admitted to having had cash-handling problems 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act.35 Both posthearing briefs are directed primarily toward the question of Respondent's motivation for re- fusing to hire Moneagle. The undisputed record evidence compels the conclusion that the critical motivation is that of Monnheimer; and both briefs are directed to that issue. 36 I conclude from the record evidence that Monn- heimer's decision not to hire Moneagle was motivated, at least in part, by her conduct in filing charges and giving testimony against Southland under the Act. When he interviewed her for a job, Respondent badly needed clerks for its convenience stores, including the store su- pervised by Wetherholt. Moneagle had had 4 years' ex- perience as a clerk in this kind of operation, and had been enthusiastically recommended by Wetherholt. How- ever, after interviewing Moneagle, Monnheimer stated on the interview form filled out by him that she would not be hired "because of answers listed on this form"; these answers included "problems with union organizing letter" and "Seven eleven paid 2 years back pay plus un- employment." Moreover, immediately after interviewing Moneagle, Monnheimer remarked to Wetherholt that Moneagle had explained the "labor problem" to him and that it was a good thing that on her application she had been honest about the labor case; and on the following day, he told Wetherholt that Moneagle had an "area of expertise," that she was looking for "another setup," that "we didn't need those kinds of problem"; and that Weth- erholt should send a card to Moneagle rejecting her ap- plication. I also attached some weight to the evidence that Store Manager Daugherty urged Moneagle to con- ceal the fact that she had filed a charge with the NLRB, "the company just does not want that kind of hassle"; that Daugherty expressed the opinion that Respondent's failure to hire Moneagle in 1983 was "possibly" due to the statement in her 1983 application that Southland had discharged her because of unfair labor practices; and that both Store Supervisor Easton and Store Manager Weth- erholt had urged Moneagle to state in her application that she had left Southland because of illness in the family rather than in connection with an unfair labor practice. It is true that the 1984 decision not to hire Moneagle was not made by Daugherty, Wetherholt, or Easton; that Easton had nothing to do with this 1984 de- cision; and that Daugherty and Wetherholt may have 36 John Hancock Life Insurance Y NLRB, 191 F 2d 483, 485-486 (D C Cir 1951), NLRB v. Lamar Creamery Co., 246 F 2d 8, 10 (5th Cir 1957), both cited with approval in Nash v Florida Industrial Commission, 389 US 235, 238 (1967) See also NLRB v Whitfield Pickle Co, 374 F 2d 576, 582-583 (5th Cir 1967), Howard P Foley Co, 229 NLRB 1167, 1168-1169 (1977), enfd 580 F 2d 1053 (9th Cir 1978) 3e Although the opening statement of Respondent's counsel averred, in substance, that it was Wetherholt who made the decision , counsel's posthearing brief (Br 10) heavily relies on Monnheimer's testimony about "my reason, for not hiring her I made my decision" (emphasis added) There is conflict in the evidence whether the final decision about hiring an applicant ordinarily rests with the store manager or his immedi- ate supervisor, the store supervisor As noted supra, sec II,B, applicants are not hired until after they are interviewed by a store supervisor, who interviews only applicants who have the store manager's preliminary ap- proval I am inclined to think that as a practical matter, an applicant will not be hired if the store supervisor does not want him At the very least, I infer that the store supervisor's opinion receives substantial weight in any hiring decision made by his subordinate, the store manager had limited knowledge of why Respondent had not hired Moneagle in 1983. However , Easton's, Daugherty's, and Wetherholt's unanimous conclusion that Respondent had a corporate policy against hinng applicants who had filed unfair labor practice charges against prior employ- ers indicates that Respondent's top management had at least conveyed that impression (whether or not intention- ally) to members of management who directly hired store personnel .37 It is true that at the time of Monn- heimer's September 1984 decision not to hire Moneagle, he had worked for Respondent for only 7 weeks. How- ever, the conclusion drawn by Easton, Daugherty, and Wetherholt about corporate policy as to NLRB charge- filers weighs heavily against any inference that Store Su- pervisor Monnheimer consciously followed a contrary policy, and suggests that he acted consistently with cor- porate policy as viewed by Store Supervisor Easton and two store managers under Monnheimer. In view of this evidence that Respondent's refusal to hire Moneagle was at least partly motivated by her having filed charges and given testimony against South- land, an unfair labor practice finding is called for unless Respondent can discharge the burden of showing that Respondent would have taken the same action without regard to this impermissible motivation, NLRB v. Trans- portation Management Corp., 103 S.Ct. 2469, 2474-2475 (1983). I conclude that Respondent has failed to dis- charge that burden. Respondent's posthearing brief contends that Monn- heimer's refusal to hire Moneagle was motivated by a desire not to hire applicants who had previously experi- enced cash-handling problems. As previously found, the evidence establishes Respondent's substantial concern with avoiding cash losses due to employee dishonesty or carelessness. Further, Monnheimer testified, while read- ing the interview form prepared by him, that he refused to hire Moneagle because she had told him that "there had been a missing money drop made by her in the amount of $500, and that she was terminated for improp- er cash handling." Also, that interview form, which stated that she would not be hired "because of answers listed on this form," contained the notations, "money drop made by her $500 terminated for improper cash handling . . . terminated for improper cash procedure resulting in $500 . . . shortage . . $500 cash shortage (missing drop)." However, as previously found, Monea- gle had in fact told Monnheimer that Southland had dis- charged her for suspected union activity, and that South- land had advanced as a pretext for her discharge certain cash-handling accusations which were false and had been so found by an administrative law judge and by the Board itself. Furthermore, as previously found, Monne- heimer's interview form was prepared after, and not during, the interview; and there is no credible evidence that he prepared it before his decision not to hire her. Moreover, Monnheimer testified that Moneagle would likely have been hired "If there was proof positive that 3' As previously noted, Respondent 's management manual cautions only against discharging or threatening to discharge employees for filing charges Moreover, Respondent contends that refusing to hire applicants for this reason does not violate the Act STOP-N-GO FOODS she was not involved, that someone else was." However, the credible evidence shows that during Moneagle's interview with Monnheimer, she not only denied taking the money and using improper cash procedures, but also told him that the administrative law judge and the Board had found that she had nothing to do with the missing money. In addition, she told Monnheimer that she had dropped the money in Southland's safe; that she had not had keys to the safe but the store manager did have the keys; that newspaper clippings which Moneagle offered to show him had stated that this store manager had later been arrested on a felony burglary charge and all kinds of stolen items had been found in her apartment; and that many people who had worked for Southland had told her that when this store manager's home had been en- tered with a search warrant, "cases and cases" of South- land products had been found in her home. It is difficult to conceive of any stronger "proof positive" which could have been presented, by anyone whose prior em- ployer had directed against him the same kind of accusa- tions which Southland had directed at Moneagle, that Moneagle was innocent of dishonesty and carelessness, and that the missing money had likely been taken by the store manager from the safe after Moneagle had properly deposited it there. Indeed, on hearing about the store manager's arrest on felony burglarly charges and the quantity of stolen items found in her apartment, Monn- heimer observed that this information "certainly would point the finger at somebody else besides [Moneagle] if there was any money missing " Further militating against Respondent's contention that Moneagle would have been rejected without regard to her having filed an NLRB charge against Southland is Monnheimer's effort, in his testimony, to minimize Mon- eagle's protestations and demonstration of innocence, carefulness, and NLRB exoneration; and to attribute to her, concerning her discharge by Southland, the same damaging explanations which it had unsuccesfully used to mask the real reasons therefor. These distortions sug- gest that Monnheimer was consciously seeking to under- state the extent to which he was motivated by Monea- gle's prior NLRB charge, and to exaggerate the extent (if any) to which he was motivated by Southland's un- truthful accusations. An additional indication that Re- spondent would have refused to hire her for the reasons which it advances to me as wholly permissible, is Monn- heimer's remark to Wetherholt, when telling her on Sep- tember 8 of his decision not to hire Moneagle, that he was suspicious of Moneagle's honesty for the very reason which on September 7 caused him to evince the opposite (and far more logical) conclusion-namely, Moneagle's action in referring him to newspaper clippings which showed that her Southland store manager had been ar- rested for theft. For the foregoing reasons, I find that Respondent vio- lated Section 8(a)(1) and (4) of the Act by refusing to hire Moneagle because she had filed charges and given testimony in an unfair labor practice proceeding against Southland. I need not and do not pass on the General Counsel's interesting contention that, on the particular facts of this case, Respondent is precluded as a matter of law from relying on the alleged conduct by Moneagle of 789 which Southland accused her in April 1982 because of the protected activity for which she was discharged.38 Cf. NLRB v. Scrivener, 405 U.S 1117, 124 (1972); NLRB v. Burnup & Sims, 397 U.S. 21 (1964); NLRB v. Waumbec Mills, 114 F.2d 226, 232-234 (1st Cir. 1940); General Services Inc, 229 NLRB 940 (1977), enf. denied 575 F.2d 298 (5th Cir. 1978). As previously noted, Southland's records after the De- cember 1983 settlement of Moneagle's claim continued to represent that her employment with Southland had ended in April 1982, and continued to show that her final pay rate had been her April 1982 pay rate rather than the amount that her backpay settlement assumed she would have been paid if she had continued to work for Southland until the end of 1983. Moreover, so far as the instant record shows, Southland's postsettlement records continued to show that her separation had been involun- tary. Moneagle's credible testimony shows that her ef- forts to obtain work after December 1983 were made more difficult by her need to explain why she no longer worked for Southland. Further, although the record fails to show whether prospective employers other than Re- spondent have troubled Moneagle by postsettlement in- quiries regarding her work record between her April 1982 discharge by Southland and the December 1983 set- tlement, it is entirely possible that during her working life another prospective employer will ask her to account for this period. Many or all these difficulties would have been or would be obviated if the December 1983 settle- ment of her case had caused Southland's records to show that she worked for it until December 1983, had a final pay rate of $5.10 (the rate reflected in her backpay settle- ment for the latter part of her backpay period), and had voluntarily resigned for an innocuous reason (e.g., illness in her family); and if she had been assured that South- land's records would so show.39 If the Regional Office has not already done so, it may wish to ascertain wheth- er Southland's present records on Moneagle conform to Southland's undertakings under the settlement. In any event, Moneagle's problems in the instant case may sug- gest to appropriate officers of the Agency that accepta- ble settlements or compliance arrangements should effec- tively free the employee claimants from the onus of false accusations which were used by the charged employer to justify their discharge and whose revelation might cause adverse action by the claimants' subsequent employers or prospective employers. 38 These particular facts would appear to be Judge Miller and the Board found, and during the hiring interview Respondent was advised that they had found, that she had nothing to do with the missing money, and that she had been discharged because of Southland's belief that she had engaged in protected activity Further, Respondent was accurately advised, during the hiring interview, that the case was no longer in litiga- tion and she had obtained a favorable settlement 38 However, Moneagle's 1984 efforts to obtain a job with Respondent were further complicated by the fact that her September 1983 applica- tion, filed before the December 1983 settlement, stated that she had left Southland because of an unfair labor practice I need not and do not con- sider whether Respondent could lawfully have discharged her or have refused to hire her for any discrepancies between this representation on her September 1983 application and a September 1984 application which accurately reflected Southland's records after the December 1983 settle- ment 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) of the Act. 2 Respondent has violated Section 8(a)(1) and (4) of the Act by discharging Charlotte Moneagle. 3. This unfair labor practice affects commerce within the meaning of the Act. THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that Respondent be required to cease and desist therefrom and from like or related conduct, and to take certain affirmative action to effectuate the policies of the Act Affirmatively, Respondent will be required to offer Charlotte Moneagle the job which Respondent unlawful- ly refused to offer her, or (if such a job no longer exists) a substantially equivalent job, without prejudice to the seniority or other rights and privileges she would have enjoyed if she had been hired for that job; and to make her whole for any loss of earnings she may have suffered by reason of Respondent's refusal to hire her, to be com- puted in manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1959), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977).40 Also, Respondent will be required to remove from its files any reference to its refusal to hire her in September 1984, and to her dis- charge by and case against Southland in 1982, and notify her in writing that this has been done and the evidence of Respondent's unlawful refusal to hire her, of her un- lawful discharge by Southland, and of her case against it will not be used as a basis for future personnel action against her. Such removal shall include, without limita- tion, Moneagle's 1983 application (if it still exists), which states that she left Southland because of an unfair labor practice; and the document copies of which were re- ceived in evidence as Respondent's Exhibit 3, pages 71- 79, and the General Counsel's Exhibits 2, 3, and 4- namely, the telephone interview form filled out on her by Wetherholt (which states that Moneagle left South- land because of "labor practice"), Moneagle's 1984 appli- cation for employment (which states that she left South- land because "company and myself came to [mutual] agreement concerning unfair labor practice"); and the re- cruitment strategy worksheet filled out on Moneagle by Monnheimer See Sterling Sugars, 261 NLRB 472 (1982). Also Respondent will be required to post appropriate no- tices. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed41 40 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 41 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 ORDER The Respondent, Stop-N-Go Foods, Inc., Englewood, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to hire, or otherwise discriminating against, employees because they have filed charges or given testimony under the National Labor Relations Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Offer Charlotte Moneagle the job which Respond- ent unlawfully refused to offer her or, if such a job no longer exists, a substantially equivalent job, without prej- udice to the seniority or other rights and privileges which she would have enjoyed if she had been hired for that job in September 1984; and make her whole for any loss of earnings she may have suffered by reason of Re- spondent's unlawful refusal to hire her, in conformity with the remedy section of this decision. (b) Remove from its files any reference to Respond- ent's unlawful refusal to hire her, and to her discharge by and her case against Southland Corporation, in con- formity with the remedy section of this decision, and notify her in writing that this has been done and that evi- dence of such refusal to hire, or of such discharge by and case against Southland, will not be used as a basis for future personnel action against her. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Dayton, Ohio, facility copies of the at- tached notice marked "Appendix."42 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. Board and all objections to them shall be deemed waived for all pur- poses 42 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "