concurring in part and dissenting in part:
Stretching to its very limits that deference we owe the Board’s factual inferences, I agree with the majority that the Board’s finding concerning the six strikers who applied for jobs on February 2 is supportable. I also agree that the Board’s finding that Southwest’s one-day-only hiring technique was “designed” to circumvent applications from strikers is not supported by substantial evidence, since the general counsel failed to put on any testimony directed to this point. Nor did the general counsel sustain his burden of showing that the strikers who applied subsequently during the month of February were ever discriminated against with respect to their applications, since no evidence was produced to show that there were vacancies for outside hires at the time those applications were received. The majority does not rest its opinion on a contrary determination.
The majority would instead affirm the Board’s finding of discrimination as to the post-February 2 striker applicants (but not as to those who never applied) on the theory that the Board legitimately inferred that Southwest had notified incumbent employees about the hiring date but did not so notify the strikers — for discriminatory reasons. According to the majority, if the strikers who eventually applied had known about the one-day hiring period, they would have applied on February 2, and would have been rejected *1347as had the others. The Board based its decision on its factual determination (quoted by the majority) that the hiring process was “weighted toward the predecessor’s employees in some manner” and its “infer[ence] that some former employees of the predecessor’s meat department were called by agents of the Respondent and told about the 1-day application procedure, urged to come into the stores and apply for jobs.” Maj. Op. at 1340-41 (emphasis added) (quoting 313 N.L.R.B. at 622).
The Board, however, did not rely on the majority’s logic to extend its discrimination finding to the post-February 2 striker applicants. It said that
the Respondent hired 60 meat department employees after February 2. No striker was hired. With respect to those who never applied, we note that the Union had made a request for reinstatement for all strikers, and thus the Respondent knew that they all wanted to work for it. In addition, the Respondent’s policy was to hire experienced employees. Finally, we note that the Respondent hired some employees in other departments without application. However, it failed to extend that privilege to strikers.
313 N.L.R.B. at 622 (emphasis added). In other words, the Board is essentially sticking to its theory, notwithstanding our earlier remand, that the employer had an obligation to seek out the strikers for employment. The Board regards Southwest’s failure to do so as the crucial evidence of discrimination. Only for this reason would Southwest’s knowing that the strikers were willing to work matter. The majority rightfully eschews endorsing that notion but instead “reinterprets” the Board’s opinion to have made a finding that the company discriminatorily declined to notify the strikers as to the one-day hiring opportunity.
I think it is a fair inference that incumbent employees had superior information than did any and all nonincumbents, but as is well known with or without expertise, information of this kind has a way of being shared among employees in an organization even against the wishes of management (it is often called scuttlebutt). In this ease, the ALJ and the Board specifically credited the testimony of Southwest’s managers who stated that they had not given preferential notice to incumbent workers.* On the other hand, a good number of persons in the community who were not incumbent employees — including a significant proportion of the strikers — managed to gain information about Southwest’s hiring plan. In short, that it came to be known to most incumbents and others in the community that Southwest would begin taking applications on February 2 simply is not evidence that Southwest’s management ever deliberately notified anyone.
Furthermore, even if Southwest had preferred incumbents to all nonineumbents through notification or otherwise, that would not be evidence of discrimination against strikers qua strikers. In that event, the strikers would have been treated precisely as were all other nonincumbents. Only if the Board had asserted a proposition that it has expressly disavowed — that Southwest owed a special duty to the strikers beyond the requirement that it treat them in the same manner as it treated nonstriker nonincum-bents — could a discrimination theory be based on the company’s failure specifically to notify the strikers of the February 2 hiring.
The difficulty with the Board’s position is that the general counsel never made out a prima facie case that Southwest had discriminated against the post-February 2 applicants. Evidence of a general antiunion animus is certainly by itself not adequate to show discrimination against any particular employee. Power, Inc. v. NLRB, 40 F.3d 409, 417-18 (D.C.Cir.1994); Synergy Gas Corp. v. NLRB, 19 F.3d 649 (D.C.Cir.1994) (citing NLRB v. Transportation Management Corp., 462 U.S. 393, 395, 103 S.Ct. 2469, 2471, 76 L.Ed.2d 667 (1983)). The burden to present an affirmative defense therefore nev*1348er shifted to Southwest. Compare Maj. Op. at 1343-44. The murkiness of the record and the impreciseness which marks both Board decisions in this case simply reflect a failure of proof. The majority analyzes the question whether the Board’s finding of discrimination against the post-February 2 striker applicants is supportable as if it were a remedial issue, subordinate to the Board’s finding of discrimination against the February 2 applicants. See Maj. Op. at 1345. But that approach simply will not work. The Board is obliged to find that Southwest discriminated against the post-February 2 applicants as well as the February 2 applicants. And we must test that subsequent finding for substantial evidence just as we did the former. Compare Power, Inc., 40 F.3d at 417-20; Synergy Gas, 19 F.3d at 651-53.
This is a difficult case — I suspect because the Board, drawing upon its expertise, is rather certain that this employer deliberately did something to exclude strikers from new employment opportunities. I am by no means unsympathetic to the Board’s conviction. I, too, strongly suspect that Southwest somehow did that which the Board believes. But there is simply not substantial evidence to prove it, and neither the Board’s fixed determination, notwithstanding our remand, nor the majority’s imaginative reading of the Board’s decision will fill the gap.
The Board stated:
We find that the pertinent testimony is that the Respondent’s witnesses did not themselves contact any meat department employees or know of any contact of meat department employees before the 1-day hiring process and we will not second-guess the judge by finding that either Schroat or Tamez was untruthful.
313 N.L.R.B. at 622.