Belding Hausman Fabrics, Inc.

BELDING HAUSMAN FABRICS 239 Weldon Mills, a Division of Belding Hausman Fab- rics, Inc. and Mid-Atlantic Regional Joint Board Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC. Case 5-CA- 19907 July 30, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT On September 18, 1989, Administrative Law Judge Joel A Harmatz issued the attached deci- sion The Respondent filed exceptions and a sup- porting brief The General Counsel filed cross-ex- ceptions, a supporting brief, and a brief in response to the Respondent's exceptions The Respondent filed an answering bnef to the General Counsel's cross-exceptions ' 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 briefs and has decided to affirm the judge's rulings, findmgs, 2 and conclusions and to adopt the recommended Order, as modified ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and orders that the Respondent, Weldon Mills, a division of Belding Hausman Fab- rics, Inc, Empona, Virginia, its officers, agents, successors, and assigns, shall take the action set forth m the Order, as modified 1 Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs accordingly "(c) Remove from its files any reference to the unlawful failure to rehire and notify tlie employee in wntmg that this has been done and that the fail- 1 The Respondent argues that the Board should reject the General Counsel's cross-exceptions as untimely It notes that the last date excep- tions to the judge's decision could be timely filed was October 16, 1989, making October 30 the last date that cross-exceptions could be timely filed The General Counsel did not attempt to file cross-exceptions until after the close of business on October 30 We find merit to the Respond- ent's argument and strike the General Counsel's cross-exceptions See Secs 102 46(e) and 102 114(b) of the Board's Rules and Regulations We also reject the General Counsel's alternative motion for an extension of time to file its cross-exceptions, which was also untimely filed after the close of business on October 30 See Sec 102 46(t)(2) Member Devaney, even if he were to consider the General Counsel's cross-exceptions timely filed, would find no merit in them 2 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 convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings ure to rehire will not be used against him in any way" 2 Substitute the attached notice for that of the administrative law judge APPENDIX 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 Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities _ WE WILL NOT tell employees that, by engaging in union activity, they have stabbed a management representative in the back, and for that reason are guilty of disloyalty WE WILL NOT refuse to rehire or otherwise dis- cnmmate against employees because they support the Mid-Atlantic Regional Joint Board, Amalga- mated Clothing and Textile Workers Union, AFL- CIO-CLC or any other labor organization WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Clifton Mornss immediate and full reemployment to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to any seniority or rights and pnvileges to which he is entitled, and WE WILL make him whole for any loss of earnings and other benefits resulting from our refusal to rehire him, less any net intenm earnings, plus interest WE WILL notify him that we have removed from our files any reference to our failure to rehire and that the failure to rehire will not be used against him in any way WELDON MILLS, A DIVISION OF BELDING HAUSMAN FABRICS, INC Angela S Anderson, Esg and Mark F Wilson, Erg, for the General Counsel 299 NLRB No 26 240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD D Eugene Webb Jr. Esq (Mays el Valentine), of Rich- mond, Virginia, for the Respondent Harold L Bock, of Gaithersburg, Maryland, for the Charging Party DECISION STATEMENT OF THE CASE JOEL A HARMATZ, Administrative Law Judge This proceeding was heard by me in Emporia, Virginia, on June 20, 1989, on an original unfair labor practice charge filed on August 5, 1988, and a complaint Issued on No- vember 8, 1988, alleging that the Respondent independ- ently violated Section 8(a)(1) of the Act by certain coer- cive conduct, including the interrogation of employees concerning union activity The complaint, as amended, further alleged that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging, or refusing to reinstate, employee Clifton R Morriss for reasons pro- scribed by the Act In its duly filed answer, the Re- spondent denied that any unfair labor practices were committed Following close of the hearing, briefs were filed on behalf of the General Counsel and the Respond- ent On the entire record in this proceeding,' including my opportunity to observe the witnesses while testifying and their demeanor, and after consideration of the posthear- mg briefs, I make the following FINDINGS OF FACT I JURISDICTION The Respondent, a Delaware corporation, is engaged in the manufacture of cloth from its facility in Empona, Virginia During the 12 months prior to issuance of the complaint, a representative period, the Respondent in the course of the operations sold and shipped goods and ma- terials valued in excess of $50,000 directly to points lo- cated outside the Commonwealth of Virginia The complaint alleges, the answer admits, and I find that the Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act II LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that the Mid-Atlantic Regional Joint Board, Amalgamat- ed Clothing and Textile Workers Union, AFL-CIO (the Union) is a labor organization within the meaning of Sec- tion 2(5) of the Act HI THE ALLEGED UNFAIR LABOR PRACTICES This proceeding tests the legitimacy of the Respond- ent's reaction to an initial organization campaign The issues presented concern allegations of coercive conduct, culminating in termination—either through quit, as claimed by the Respondent, or discharge, as the com- plaint alleges—of Cliff Momss, a leading union protago- nist Certain errors in the transcript are noted and corrected The facts show that there is no history of representa- tion at the Respondent's plant in Emporia, Virginia In late June 1988, 2 the Union began organizing Initially, professional and volunteer organizers, over a 3-day period, talked to employees, soliciting signatures to au- thorization cards On Sunday, June 26, the final day of this initial leg of the campaign, a meeting was held to de- velop an employee organizing committee It was attend- ed only by those employees who were deemed to possess leadership potential Cliff Morriss was among those present Having previously signed a card, Morriss, at that meeting, turned in another executed by his brother, and agreed to accompany organizers as they drove through the area visiting the homes of various employ- ees Later, he also distributed union literature to cowork- ers inside the plant, and solicited signatures to additional authorization cards A petition was filed by the Union in Case 5-RC-13806 on June 29, in quest of an election at the Emporia plant in a unit of production and maintenance employees On July 1, the Respondent posted the following notice TO ALL EMPLOYEES Much to our surprise—and frankly, disappoint- ment—we Just this morning received a petition from the National Labor Relations Board requesting an election here to determine whether or not our production and maintenance employees want to be in a union and want to be represented by a union in their dealings with the Company We don't believe our employees need or want any outsider to represent them in their dealings with us Think of what we have accomplished m the past and about what we all hope to accomplish in the future Right now this is all we know, but we will keep you informed BERNARD HERRMANN[S] Organization was suspended from July 2 through 9, due to the annual plant shutdown On July 15, the em- ployment of Momss ended According to the complaint, he was discharged According to the Respondent, he quit In the alternative, the General Counsel, consistent with an amendment to the complaint made at the hear- ing, contends that even had he quit the Respondent vio- lated Section 8(a)(3) and (1) by refusing to rehire Mor- riss At times material, Momss was a technician on the third shift (12 midnight to 8 a m) His immediate super- visor was Floor Foreman "Ed" Driver, who, in turn, re- ported to Clayton Walker, the third shift overseer The complaint attributes several independent 8(a)(1) violations to Walker, including coercive interrogation, a statement that union support was synonymous with dis- loyalty, and a threat that promotion would be denied to an employee should the Union be designated These alle- gations are based on a single encounter between Walker and Morriss Thus, in one of their frequent conversations 2 Unless otherwise indicated, all dates refer to 1988 BELDING HAUSMAN FABRICS 241 in Walker's office, the latter—obviously aware of Mor- riss' union sentiment—addressed Morriss' relationship with Charles Curry, a weaving manager, higher ranked than Walker Curry apparently had taken a special inter- est in Morriss, leading Walker to importune the latter as "sticking a knife in Curry's back," meaning that "we [the Company] did not need or want a Union" When Morriss asked Walker what he was talking about, Walker responded "I heard you're 100% Union" Mor- nss confirmed that this was so, advising Walker that he had a right to sign a card, whereupon Walker stated that Morriss' support was needed in the effort against the Union, urging also that he "help nail down" votes by his brother and fiance against the Union Morriss declined, whereupon the discussion led to differing views as to how well the Company took care of its people In the course thereof, Walker mentioned Mornss' brother, who had only been employed by the Respondent for a few months, stating, "for example, if the Union got in here, I couldn't promote your brother I'd have to promote someone else first "3 Concerning interrogation, the record fails to disclose that Walker made any remarks calculated to elicit infor- mation as to Morriss' union activity Hence, the evidence fails to substantiate that allegation 4 On the other hand, Walker's comments concerning Curry tended reasonably to suggest that, in light of Morriss' ingratitude, Curry or the Company might retaliate, thereby transcending privi- leged forms of antiunion discourse Accordingly, it is concluded that the Respondent violated Section 8(a)(1) by Walker's denigrating remark that Mornss had stabbed Curry in the back See, e g, Southern Illinois Petrol, 277 ' NLRB 160, 170 [James Leonard Sr] (1985) Finally, I shall dismiss the 8(a)(1) allegation based on Walker's 3 The above is based upon a composite of credible aspects of the con- flicting accounts of Walker and Momss While basically I regarded Walker as more reliable than Morriss, I reject his testimony that he did not "recollect" and "don't believe" that the word "union" was specifical- ly mentioned See G C Exh 6 It is unlikely that Walker would have made the reference to backstabbmg as an abstraction without mentioning that term as the prelude to a debate over unionization On the other hand, Morriss in critical areas of the case offered unbelievable testimony and I detected a proclivity on his part to offer whatever was necessary to further his Interest in the proceeding I considered unreliable the testimo- ny of both concerning the alleged remarks involving Mornss' brother First, Walker could not recall saying that the latter would not be promot- ed Moreover, while stating that he did not believe that seniority systems were discussed, he admits to saying that if "things changed" he might have to promote a man with 10 years' service even if he could not do the job Even worse was Mornss' testimony that Walker insinuated that be- cause of Morriss' union activity his brother would not be promoted My belief that the truth lies somewhere between is founded upon probable suggestions in the testimony of both that Walker made reference to the weight given length of service or semonty, as a factor under promotion formulations sponsored by many unions, and then went on to make the argument that even if, in the future, he wished to promote Mornss' re- cently hired brother the Union on that basis would interfere * The remark "I heard you're 100% Union," was made in re- sponse to Morriss' inquiry, and might have created the impression of sur- veillance It did not, however, call for a response and fails to demonstrate interrogation The complaint does not allege that the Respondent violat- ed Sec 8(a)(1) by creating the impression of surveillance and the Re- spondent did not brief that issue The General Counsel's failure to amend the complaint, though well aware that this was a tenable issue both before and dunng the heanng, is considered a prejudicial omission and an act of neglect which is not curable by speculative conclusions as to the degree to which the Issue was litigated views concerning Morriss' brother On the credited facts, that aspect of the conversation was limited to argumenta- tion that under seniority systems, often sponsored by labor organizations, length of service would influence promotions, and that, under such an arrangement his re- cently hired brother might be prejudiced This statement was neither farfetched, nor untruthful It was premised on an almost universal union philosophy, and as such in- volved a fertile area for argumentation, within the pro- tective guarantees of Section 8(c) of the Act 5 Walker's antiunion attitude again manifested itself later in July when, as Morriss was performing his duties, Walker ran into him stating, "This is not Georgia-Pacific We can't operate here with a Union we're textile" At the time, Morriss' father was employed by Georgia-Pacific where he had served as a union-shop steward for 8 to 10 years In this respect, Walker simply testified that he could "not recall" any further conversa- tion with Morriss concerning the Union, a qualified re- sponse which falls short of effective denial As indicated, only a few days later, on July 15, the employment of Morriss ended At the time, in his capac- ity as a technician, he was responsible for repair and maintenance of 48 machines in his area so as to assure their continuous, quality production The machines, themselves, are operated by employees classified as "weavers" The latter are dependent on and must call in the technician to keep the machines running when pro- duction is snagged by a problem whose solution is beyond their capability Thus, the technician must con- stantly be alert to calls from weavers, in connection with spontaneous breakdowns In addition supervision assigns the technician maintenance tasks to be performed during the shift, which are designed to correct flaws detected from production reports 6 Morriss testified that on July 15 he elected to take his break when he anticipated that his machines were in "decent order" Because it was hot he elected to go out- side to the parking lot Driver approached him asking what he was doing there 7 Morriss said that he was on 5 See Marion Rohr Corp, 261 NLRB 971 fn 4 (1982), Maestro Cafe As- sociates, 270 NLRB 106, 108 (1984) Cf Brunswick Corp, 282 NLRB 794 (1987), where the plant removal remark reasonably would be understood "as a threat of unilateral action to be undertaken in retaliation for union- ization " Moreover, although the result in Yolo Transport, 286 NLRB 1087, 1090, tends to support the General Counsel, the facts, as reported therein, are not readily susceptible to evaluation and certainly do not warrant an interpretation that employers no longer might truthfully argue that union policies will work to the disadvantage of some, if not all em- ployees 6 When a sudden, unforeseeable problem develops, the weaver will flag the technician, after completing a green ticket, by turning on a red light, which is observable throughout the production area The daily mainte- nance assignments handed down by supervision are called "second tick- ets" Morriss' alleged failure to complete a second ticket operation con- tnbuted to the July 15 parking lot confrontation, which ended in his ter- mination 7 A conflict exists as to whether the Employer maintained an unwritten rule forbidding employees to leave the plant proper after punching in Momss denied that he was aware of such a rule He admitted, however, that he had never observed coworkers taking breaks in the parking lot Moreover, while it is possible that he may have been in the parking lot in the past with Dnver and Walker, this did not mean that he was licensed to take breaks in that area without permission Obviously, It would be Continued 242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD his break, getting fresh air According to Morriss, as he and Driver headed back toward the plant, Walker came out, also inquiring as to what Morriss was doing outside Morriss again explained that he was getting fresh air on his break At this Juncture, Mornss states that Walker became abusive, calling him a "lazy, no account, drag ass, hustle," while accusing Morriss of not doing his job Morriss claims to have remained silent as Walker called him "every name in the book," capping his comments with the following "Now, you get your shit and get out of here You're fired" Driver and Walker insist that Morriss quit Thus, ac- cording to Driver, that morning, while reviewing the "second tickets," he discovered that Morriss neglected to perform a tuneup within the designated timeframe 8 He therefore sought out Morriss, telling him to get on the second tickets, while accusing him of "dragging his feet" According to Driver, the job did not get done He checked the job on several occasions, but either he could not find Morriss or the latter was otherwise disposed, in- cluding a 10-minute stay in the bathroom Finally, Driver observed Morriss in the parking lot, sitting in his truck This time, Driver went to get Walker because he wanted Walker personally to observe what Morriss was doing 9 He next returned to the parking lot, finding Mor- nss standing over his truck, but in a hunched position Morriss explained that he was just getting a breath of fresh air 1° Driver told him to come in as Walker wanted to see him Walker then asked Morriss what he was doing in the lot, adding "don't you know you got a job to run" He told Morriss that the second ticket job had not been done, reminding him that he was required to satisfy Driver Morriss indicated that he was doing his job, but Walker countered with the fact that the submit- ted reports were to the contrary, again noting that Mor- riss was to satisfy Driver At this juncture, Morriss stated that "he'd get his tools and quit if that's the way difficult to locate Momss, who was not obligated to take his break at any particular time, were he free, in the middle of the night, to wander off to the parking lot without permission Certamly Morriss must have known that this was not compatible with good work practices and the responsi- bilities of his position 8 walker testified that earlier that morning, he had received complaints from weavers that Morriss was off the job for extended periods Walker added that he then went to look for Morriss, who was not in his work area, and that when he finally located him, Morriss was told to work at his work bench rather than the supply room Walker avers that following this incident, a woman identified as Robber, apparently a weaver, report- ed that Morriss was gone again Soon thereafter, Driver reported to Walker that Moms was in his truck Robber did not testify However, another weaver, Kimberly Foster, testified that, although she had made similar complaints about Mornss, she had no problems with him on July 15 While the Respondent has offered no explanation for the failure to call Robber, no adverse inference is drawn in this instance, as she was subject to subpoena by either side, and, in any event, I believed this aspect of Walker's testimony 9 Driver offered a convincing account of his past difficulties in getting Morriss to follow instructions Morriss confirms that he would seek out Curry if he disagreed with Walker and Driver, having no hesitation to going over their heads At several points, he exhibited a sense of self im- portance, leaving me with a strong impression that he was likely to run afoul of authority However, while It is possible that Driver wanted to get rid of Morris well prior to the advent of the Union, and his hard feelings were understandable, this was Walker's decision, not his Despite this background, Walker admits that he went to the parking lot on July 15 with no intention of terminating Mornss 10 The plant is air conditioned you [Walker] feel " 11 Walker said, "fine" They then re- turned to Morriss' work area where he demanded to speak with his girlfriend, Becky 12 At Walker's urging, Driver went and got her, but did not overhear what sub- sequently was said between them 13 According to Becky, she was beckoned to the "beam room" by Driver She arrived to find Morriss upset He merely told her that she had to find another ride home She claims that he then turned away mentioning the word,"fired " Morriss claims that he specifically told her, "I was fired" Later, Becky, when questioned as to whether her husband ever told her he had quit, showed hesitation, before responding that she could not "remem- ber" him doing so 14 Morriss clocked out at 5 30 a m He deliberately left his tools at the plant because he "figured" he would be back to work the next day He set out to intercept his friend, Charles Curry, knowing that Curry would soon be reporting for work He stopped on the road and waited about a half-hour till Curry happened by When Curry saw him, he stopped However, according to Morriss' testimony on direct examination, having gone through this exercise, though he wanted to talk to Curry, he "was so mad about being fired that [he] couldn't " 15 Despite the plain import of this testimony, on cross-examination Morriss reverses himself, testifying that he at that time told Curry that he had been dis- charged On July 16, Morriss telephoned Curry, inquiring as to whether he had a job According to Mornss, Curry re- plied, "No, his hands were tied I did not have a job "16 ii Walker's account, afforded on cross-examination as a 611(c) witness, was less detailed than that of Driver, and differences are regarded as in- dicative of omission, rather than contradiction He confirms that Morriss stated that he would quit after Walker told him he would "have to satis- fy" Driver " In the Interim, prior to the hearing, Becky became Mrs Morriss " Walker apparently witnessed the meeting between Morriss and Becky, but was not examined as to the incident ' 4 Becky Morriss was not an impeccably honest witness She seemed to be in a quandary with the oath pulling in one direction and her mar- riage in the other However, one factor stands out in her version, namely, that her husband did not take that opportunity clearly and unmistakably to convey that he had been discharged Why not? Had this been the case, having requested to see her, would he have hesitated in making this clear? The Improbable position she was left in might well have prompted Morris' incredible testimony that he wanted to get Becky away from Driver and Walker to explain what had happened, but "they wouldn't let her do that" This excuse seemed inconsistent with Driver's testimony, as confirmed by Becky, that, It was he, who summoned Becky, and with Becky's further testimony that Walker greeted her by stating that Morriss had something to tell her " In this respect, Morris labored under the weight of his own con- trivance He could not decide between falsely testifying that he immedi- ately told both his wife and Curry that he had been discharged, or excus- ing his failure to do so on grounds that he was muzzled, in the case of his wife, by Walker and Driver, and in Curry's case, by his overwrought state ' 6 Curry is no longer employed by the Respondent and currently re- sides in New Hampshire He was not called as a witness for either side Memos submitted over his signature to the Respondent are hearsay on the question of what Mornss and Becky told him concerning the events of July 15 and have not been considered in resolving the question of whether Mornss quit or was discharged (R Exhs 5, 3, and 4) BELDING HAUSMAN FABRICS 243 On July 18, Morriss spoke to Plant Supenntendent Bill Williams about returning to work According to Morriss, Williams said that, "he couldn't go over his supervisors' head and put me back to work " 17 They disagreed as to whether Morriss had been fired or quit 18 When Momss accused Walker of abusive behavior towards him, Wil- liams said that he had not heard this before, suggesting that Morriss forget about it and find work with another company Morriss testified that he understood Williams to be saying that he would be restored only if Driver and Walker approved 18 However, he made no appeals to the latter On analysis, the General Counsel's initial allegation that the Respondent discharge Morriss is unsubstantiated Infirmities in his own testimony and that of his wife, contribute persuasively to the probability that he quit out of pique at Walker's remonstration in the parking lot 20 Alternatively, the General Counsel contends that, even so, the refusal to rehire was unlawfully motivated In this respect the General Counsel has presented a powerful prima facie case Thus, within 2 weeks—and even fewer working days—after the commencement of union activi- ty, this key employee organizer, whose umon sentiment was known, voluntarily terminated his employment in an obvious display of temperament Within the week before his equest for rehire, he twice was targeted by Shift Overseer Walker for an unlawful expression of union animus The possibility that the quit might have been seized on as a means of eliminating a union sympathizer was heightened by the fact that others had been rehired and it was company policy to do so if the supervisors af- fected wished 21 In his case, a second chance was denied, despite the fact that Morriss admittedly was a competent craftsmen, his job was key to the operation, and so difficult to fill that Plant Superintendent Williams was prompted to comment, "you don't want to lose one unless you just have to "22 17 Williams testified that he first learned that Morriss wanted his job back on July 18 He further testified, however, that when the incident was reported to him on the morning of July 15 Walker and Dnver told him they opposed rehire Neither Walker nor Driver were examined in this respect Moreover, they would not have known, at that time, that Momss would seek his job back Nevertheless, Morriss tended to confirm Williams through admission that Williams on July 18 told him that he would not overrule his supervisors, a remark which enforces the proba- bility that Walker and Dnver previously had apprised Williams of their determination not to rehire Morriss 12 Williams testified that Morriss stated that he had quit Because con- sistent with my ultimate conclusion in this regard, his testimony in this respect is credited 12 I do not agree with the observation in the Respondent's bnef that Williams "in effect" told Moms that "he would have to work the matter out with his supervisors" If this was a viable alternative, Williams could have said so In any event, it was Williams' obligation to assure that any position on rehire taken by Walker and Driver was not founded upon union considerations, and if It was, liability, in the circumstances, could not be avoided by Morriss' failure to seek them out 20 Having so found, It is unnecessary to consider the Respondent's con- tention that the Board is collaterally estopped from deciding that issue That claim derives from a finding by an Appeals Examiner of the Virgin- ia Employment Commission that Morriss had quit 2 ' See, eg,GC Exhs 5, 8, 10, 12, and 14 22 Plant Supenntendent Williams testified that without Morriss the head technician had to step in He also noted that several replacement candidates had to be sent to school, in the unguaranteed hope that one would prove capable of performing the job The degree of training in- The foregoing easily supports an inference that union activity contributed to the decision not to rehire Morriss Accordingly, under Wright Line, 251 NLRB 1083, 1089 (1980), the onus shifted to the Respondent to disassociate its decision from union activity The burden imposed is one of "persuasion," or as described by the Board in Roure Bertrand Dupont, Inc , 271 NLRB 443 (1984), "an affirmative defense in which the employer must demon- strate by a preponderance of the evidence that the same action would have taken place even in the absence of protected conduct" Plant Manager Williams was the sole witness examined as to the refusal to rehire, and he testified that he de- ferred to the judgment of Driver and Walker Both downgraded Morriss, but not on the basis of his skills Instead, they were examined as to his general work his- tory, stressing his propensity to leave his work area without authorization, an offense which undoubtedly re- quired control and correction, but for which Morriss had never been formally warned 23 Moreover, while their dissatisfaction was less than coextensive," neither was examined as to whether and why they allegedly decided against rehire, or if in fact any such decision was com- municated to Williams Thus, the Respondent, having elected to stand solely on Williams' testimony, has denied the opportunity to consider the precise grounds on which reemployment was denied and the credulity of those reasons In this light, considering the operational disadvantages and uncertainties to be faced by elimina- tion of a fully trained, competent technician," this doubt-ridden and incomplete presentation fails to over- come the prima facie showing of proscribed discrimina- tion Simply put, the Respondent has failed to offer any persuasive proof that in the absence of union activity it still would have made no attempt to salvage the Employ- er's investment in Morriss Accordingly, it is concluded that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to rehire him volved is evidenced by the Williams comment that 'it usually takes about two years to get a technician before he can halfway run a job 23 Morriss did receive a warning for overstaying a break in 1987, but there is no indication that he, on that occasion, removed himself to a lo- cation precluding reasonable access by supervision and coworkers 24 Walker, not Dnver, had authonty to discharge His major, if not predominant, complaint related to the fact that Morriss too often could not be found when needed by the weavers Since Walker had the greater authonty, the failure to explore his position on rehire leaves an Important void in the Respondent's proof Thus, the record is left lacking in expla- nation for Walker's abandonment of his earlier stance that, on learning that Morriss was in the parking lot, he approached Inin with no intention of terminating him I am left to speculate as to whether Walker's shift in position was influenced by union activity or something else that might have occurred on the parking lot In my opinion, this proof failure pre- cludes a finding that employment would have been denied even if the quit had taken place in a union free environment See Inland Steel Co, 257 NLRB 65, 67 (1981), where the administrative law judge was pre- cluded under Wright Line from "relying upon a defense never asserted by the Respondent" 23 The Respondent in its brief states that "reemployment decisions would be made by their supervisors based upon employment history and Weldon's evaluation of how they would perform in the future" This, of course, begs the question It confirms that the state of mind of Walker and Dnver is determinative m such matters The failure to examine them denies the defense direct proof as to punty of its motive 244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 The Respondent independently violated Section 8(a)(1) of the Act by telling an employee that he had stabbed a management representative in the back through his support of the Union 4 The Respondent violated Section 8(a)(3) and (1) of the Act by refusing, on and after July 18, 1988, to rehire Clifton Morriss because of his union activity 5 The above unfair labor practices have an effect on commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, it shall be recommended that it be ordered to cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act The Respondent having unlawfully denied rehire to Clifton Morriss shall be ordered to reemploy him in his former position, or if that position no longer exists, to a substantially equivalent position, 26 and to make him whole for any loss of earnings and other possible bene- fits, computed on a quarterly basis from July 18, 1988, to the date of a proper offer of employment, less any net interim earnings, as prescribed m F W Woolworth Co, 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed27 ORDER The Respondent, Weldon Mills, A Division of Belding Hausman Fabrics, Inc , Emporia, Virginia, its officers, agents, successors, and assigns, shall 26 It is contemplated that Mornss' reemployment will be effected with- out loss of seniority and other rights and pnvileges, but only to the extent that such benefits are available to rehires under the Respondent's established nondiscriminatory, employment practices 27 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 1 Cease and desist from (a) Telling employees that by engaging in union activi- ty they are stabbing a management representative in the back, and hence guilty of disloyalty (b) Discouraging membership in a labor organization, by refusing to rehire, or in any other manner discriminat- ing with respect to wages, hours, or other terms and conditions or tenure of employment (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Clifton Morriss immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, in the manner set forth in the remedy section of the decision (b) 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 (c) Post at its plant in Emporia, Virginia, copies of the attached notice marked "Appendix "28 Copies of the notice, on forms provided by the Regional Director for Region 5, 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 (d) Notify the Regional Director in writing withm 20 days from the date of this Order what steps the Re- spondent has taken to comply 28 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"