concurring and dissenting.
I concur in the majority’s ruling insofar as it affirms the Board’s decision finding that MDI violated §§ 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3). I conclude that the majority errs, however, in reversing the Board’s finding that Regina and Edward Saric were unlawfully discharged. I respectfully submit that the majority slights critical evidence supporting the Board’s finding that both Regina and Edward were unlawfully discharged by reason of their union activities. I also dissent from the majority’s opinion that the late-recalled employees, Douglas Jaeger and LaVonne MacAdams, are not entitled to a finding of discrimination against them because of their union activities, along with the other later-recalled employees.
Regina Saric
Upon thorough review of the record, I find that substantial evidence supports the Board’s conclusion that Regina Saric was unlawfully discharged. First, it is important to consider the background of MDI’s open hostility toward the union and the organizing campaign carried on by some of its employees. These hostile activities were relied upon by the Board in making its determinations and were recognized by the majority as well. Second, the evidence shows that on October 28, 1994, the day that MDI received the union’s petition for an election, two supervisors told Lorraine Bunn, the plant manager, that the Sarics were urging employees to sign union authorization cards. That same day Regina distributed copies of a material safety date sheet (MSDS) which an inspector had directed MDI to disseminate. The next day Bunn criticized Regina for distributing the safety sheet. Regina subsequently told her husband that Bunn was “harassing her” and that she was going home because she had a “big headache.” Bunn inconsistently testified about the belongings that Regina took home with her that day-— originally claiming. that Regina brought only her purse and jacket, and later claiming that all of her belongings were gone. Russell Catlett, a supervisor at the plant, also gave inconsistent testimony regarding this subject.5 The Board concluded that the inconsistent testimony of Bunn and Catlett regarding the possessions Regina brought with her “appeared to have been more intended to support [MDI’s] contention that Regina Saric had quit, than to truthfully describe what had taken place when she left work that day.”
*632Later that day, Bunn told Edward Saric that she knew that both he and his wife, Regina, were union sympathizers and that she would not “tolerate” any “union crap.” Bunn then called a meeting and told others that Regina had walked off the job. On November 1, 1994, Bunn posted a written description of Regina’s job so other employees could apply for it. Thomas Man-they, another employee at the plant, testified that Bunn acknowledged to him that Regina had been fired. Manthey also testified that several days later Catlett said “that’s what you get when you mess with the [Ujnion. You end up like [Regina Saric].”
The majority’s acceptance of Bunn’s assumption that Regina voluntarily quit her job because she went home complaining of a headache is unreasonable. The majority credits Bunn as saying that Regina’s absence was “excused.” Yet Bunn immediately posted Regina Saric’s job as an open position. It is difficult for me to say that a reasonable fact-finder could not conclude from this evidence that Regina had been fired.
This court should not substitute its judgment for that of the ALJ and the Board, the fact-finders in this case. Credibility findings are within the province of the Board and the ALJ found Bunn not to be credible. It is not this court’s role to reverse that determination. Our role is solely to review the record to see if there is substantial evidence as a whole to support the Board’s finding. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 5.Ct. 456, 95 L.Ed. 456 (1951). There is evidence in this case, including admissions by Bunn and Catlett, which clearly supports the Board’s finding that Regina had been fired.6
Edward Saric
The same evidence regarding MDI’s illegal motive supports the Board’s finding that Edward Saric was wrongfully discharged. After Bunn admonished Edward about supporting the union, she told him to turn in his keys, stating that she could no longer trust him and that she feared for building safety. As a result, there is little question that Edward considered himself “fired.” In fact, immediately after his conversation with Bunn, Edward told his supervisor that he had been fired. Furthermore, the majority again fails to acknowledge the admissions of Bunn and Catlett that Edward had been fired. In light of this proof, it is somewhat incredulous to say that substantial evidence does not support the Board’s finding.
Absent Witness Rule
The majority opinion applies the absent witness rule in both the Regina and the Edward Saric cases because Regina did not testify. The absent witness rule, which finds its origins in the common law, allows an adverse inference to be drawn from the failure of a witness, who is within control of an adverse party, to appear at trial and testify. Meier v. Commissioner, 199 F.2d 392, 396 (8th Cir.1952). This inference is weighed against the party who controls the witness.
This court has indicated that the absent witness rule should not apply where the witness is equally available to both parties. See Mammoth Oil Co. v. United States, 275 U.S. 13, 52, 48 S.Ct. 1, 10, 72 L.Ed. 137 (1927) (holding that the absent witness rule is to be applied “only in cases where it is manifest that proofs are in the power of the accused, not accessible to the prosecution”) (citation omitted); see also Schoenberg v. Commissioner, 302 F.2d 416, 420 (8th Cir.1962); Johnson v. United States, 291 F.2d 150, 155 (8th Cir.1961). In Jen*633kins v. Bierschenk, 333 F.2d 421 (8th Cir.1964), this court relied on Schoenberg, stating:
“We have serious doubt whether in a situation such as is presented here, where the witness was apparently equally available to both parties, any presumption should flow from the failure of either party to call such witness. Any rule creating a presumption from failure to produce a witness must be applied with caution.”
There is nothing which indicates that [the witness] was not equally available as a witness to both the plaintiff and the defendants.
Jenkins, 333 F.2d at 425 (quoting Schoenberg, 302 F.2d at 420).
The Supreme Court has also held that this rule is to be applied with caution. See Mammoth Oil Co., 275 U.S. at 52, 48 S.Ct. at 10. As the court in Jenkins observed:
We adhere to our comment that any rule creating a presumption of this kind is to be applied with caution and we agree with the trial court that “there must be a reason for such a supposition, and a factual area within which it may logically operate. The supposition must rise above the level of mere possibility.”
Jenkins, 333 F.2d at 425.
The adverse inference the majority applied against Regina and Edward as a result of Regina’s decision not to testify should not have been used against them. The inference is especially inappropriate in Edward’s case. The majority states that “it is reasonable to infer that the Sarics talked after they left the plant and decided not to return to MDI because their pay was too low, Edward’s job duties were being reduced, and they had been unfairly abused by plant manager Bunn.” This is simply rank speculation. Even assuming that Regina did talk with Edward about whether or not he was fired, any question as to what her husband told her would have called for hearsay.7 The conclusion ineluctably follows that the use of the adverse witness rule in Edward’s case is totally inappropriate.
Likewise, the rule does not apply to Regina’s case. First, Regina was equally available as a witness to both MDI and the Board. MDI could have subpoenaed Regina to testify and called her as a hostile witness. There was no explanation as.to why this was not done. Furthermore, there exists no claim that the Board was guilty of concealing her. Second, all the facts and circumstances surrounding Regina’s termination were proven by the NLRB and MDI. The only evidence that could be gained through Regina’s testimony would have been cumulative, as well as self-serving and conclusory.
Notwithstanding the cumulative concerns expressed, the fundamental flaw in the majority’s reasoning that the adverse inference rule should be applied is that it overlooks the fact that the inference is solely within the Board’s power, as the fact-finder, to draw. See NLRB v. Link-Belt Co., 311 U.S. 584, 597, 61 S.Ct. 358, 365, 85 L.Ed. 368 (1941); NLRB v. Falk Corp., 308 U.S. 453, 461, 60 S.Ct. 307, 312, 84 L.Ed. 396 (1940). Assuming the inference was appropriate, which it clearly was not, it is within the sole prerogative of the trial court to draw the inference. In the present case, the ALJ did not draw the inference and there is no basis for this court to rely upon such an inference in reviewing the administrative record. In making such an inference, the majority wrongfully usurps the role of the trier of fact.
In sum, the evidence overwhelmingly supports sustaining the Board’s findings *634with respect to Edward and Regina Saric. The undisputed evidence shows (1) that there was anti-union sentiment at MDI and it was expressed to both Edward and Regina; (2) that Bunn took Edward’s keys and relieved him of his duties; (3) that Bunn immediately posted the opening of Regina’s job; and (4) that Bunn and Cat-lett both admitted that Regina and Edward had been fired. All of this evidence substantially supports the ALJ’s and the Board’s hypothesis: Edward and Regina were fired because of their union activities.
Douglas Jaeger and LaVonne MacAdams
The Board found that the General Counsel met the burden of proving that the union sympathies and activities of the ten late-recalled employees had been a substantial or motivating cause of MDI’s decision to delay their recall. The majority agrees that there is substantial evidence to support the conclusion that MDI’s anti-union animus caused the late-recall of the employees. The majority, however, makes two exceptions for Douglas Jaeger and LaVonne MacAdams. I respectfully disagree with the majority’s decision to single out these two employees and deny MDI’s liability with respect to them. If MDI is guilty of a section 8(a)(3) violation as to the late recall of the entire group, there is no evidence the same anti-union animus did not enter into the late recall of Jaeger and MacAdams. It is nonsensical to hold otherwise.
MDI advances a variety of explanations for why each individual was not promptly recalled. The majority singles out Jaeger and MacAdams because they have “specific physical disabilities.” Jaeger suffered from a stroke and needed an assistant, while MacAdams injured her thumb and claimed workers’ compensation benefits in March. The majority concludes that these disabilities precluded them from being recalled any earlier than April. I disagree for four reasons.
First, as the majority recognized, the Board properly found that MDI’s anti-union animus caused the delayed recall of the employees. I see no reason why Jaeger and MacAdams should not equally benefit from this finding. Second, these two individuals are not the only two out of the ten employees at issue who were disabled: Parker had a “small motor disability;” Thompson suffered from back spasms; and Younger was confined to a wheelchair. In fact, MDI made it a goal to employ disabled employees. There is no reason that Jaeger and MacAdams should be singled out by the majority for their disabilities.
Third, although there is some ambiguity surrounding the doctor’s orders concerning MacAdams’ ability to work, the Board did not attempt to pass on that matter, but decided that the date MacAdams was able to work was an issue properly left for the compliance hearing. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 902, 104 S.Ct. 2803, 2814, 81 L.Ed.2d 732 (1984); NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 260, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969). I agree. Due to her union sympathies, Mac-Adams should be treated like the other late-recalled employees and receive the benefit of the overall finding of the ALJ, which the Board and the majority sustained, that the late recall stemmed from anti-union animus. Any ambiguity as to the date MacAdams could commence employment should be left for a compliance hearing.
This logic applies to Jaeger as well. MDI claimed that Jaeger’s recall was not delayed due to anti-union sentiment, but rather, because they could not find an. assistant for him until April. The majority accepted this defense. I disagree and conclude that Jaeger also should benefit from the finding that MDI’s late recall of the ten employees was due to their union activities. The determination of the date that Jaeger could work with assistance should be reserved for the compliance hearing because it is a question of damages and not liability.
Finally, the majority also applied the adverse inference rule previously dis*635cussed to defeat Jaeger’s and MacAdams’ claims. Once again, this inference is not warranted with respect to these individuals. First, if the Board wanted to subpoena the witnesses they could have done so. Second, the majority draws an adverse inference even though the Board did not. Therefore, there is no legal basis upon which this court should apply the inference on appeal.
In conclusion, I would hold that there is no reason to treat Jaeger and MacAdams any differently than the other eight late-recalled employees with respect to the anti-union animus upon which MDI’s liability rests. If MDI is guilty at all, which the Board clearly found and the majority upheld, then it should be guilty as to the entire group. There is no reasonable basis to single them out and deny them an opportunity to be compensated for MDI’s anti-union activities.
. On direct examination, Catlett stated that he saw Regina leave with a box of her belongings. Later, on cross-examination, he admitted that Regina had her back to him and he did not know what she was carrying when she left the office.
. The majority’s reliance on the finding of the unemployment compensation panel is totally irrelevant. It is clearly not binding on the Board. The Board, through the ALJ, must rely on the record developed at its own hearing. Even if the panel’s finding could be properly considered, it has no bearing in this case because the panel presumably did not consider the anti-union animus by company officials leading up to Regina's termination.
. There is also the possibility that Regina’s right not to testify would have been protected by the marital communications privilege which bars testimony concerning statements privately communicated between spouses. See United States v. Jackson, 939 F.2d 625, 627 (8th Cir.1991); United States v. Ramos-Oseguera, 120 F.3d 1028, 1042 (9th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1094, 140 L.Ed.2d 149 (1998) (stating that federal common law recognizes two different marital privileges).