Jet Electric Co.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650 Jet Electric Company, Inc. and Local Union 342 of the International Brotherhood of Electrical Workers, AFL–CIO. Case 11–CA–18395 November 22, 2002 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS LIEBMAN, COWEN, AND BARTLETT On August 10, 2001, the National Labor Relations Board issued a Decision and Order1 granting the General Counsel’s Motion for Summary Judgment and finding that the Respondent had violated Section 8(a)(3) and (1) by, inter alia, refusing to consider for hire and failing and refusing to hire Rodney Booe, Stanley Grace, Jerry Loftis, Roger Stanley, Douglas Summers, Allen Craver, Gary Maurice, and Percival Millington. The Board held in abeyance a final determination of the appropriate rem- edy pending a remand of this case for a hearing before an administrative law judge on the limited issue of the num- ber of openings that were available to the applicant- discriminatees under FES, 331 NLRB 9 (2000). On April 23, 2002, Administrative Law Judge James M. Kennedy issued the attached decision on remand, finding that the Respondent had eight job openings within the 4 months after the first refusal to hire, and recommending that the Board order instatement and backpay, with interest, for the eight named employees. No party has filed exceptions to the judge’s decision. The Board has considered the decision and record, and has decided to adopt the judge’s rulings, findings, and conclusions, and to reaffirm the Order in the Board’s earlier decision as modified and set forth in full below. Contrary to our dissenting colleague, we decline to re- examine, sua sponte, the Board’s prior summary judg- ment decision in this case. There, the Board found that the Respondent failed to submit a sufficient answer to the complaint, and therefore that the allegations of the amended complaint were deemed to be admitted. Thus, in finding that the Respondent refused to hire or consider for hire the discriminatees, the Board relied on the alle- gation that “[at] all times material and continuing to date, Respondent filled job openings at its Winston-Salem, North Carolina job site.” We find as a matter of policy and sound procedure that, where summary judgment has issued and is undisputed, no purpose is served by second- guessing the Board’s earlier decision. Our colleague acknowledges that, under FES, when numerous applicants are involved, the General Counsel “need only show that one applicant was discriminated against to establish a refusal-to-hire violation warranting a cease-and-desist order.” FES, supra at 14. Based on 1 334 NLRB 1059. that holding, the Board found in the earlier decision that the allegations of the amended complaint, including that the Respondent was filling job openings, were sufficient to warrant granting summary judgment on the refusal-to- hire allegation and issuing a cease-and-desist order. Un- der FES, no hearing was required to reach a conclusion on the allegation and remedy to this extent. However, the Board found that a hearing was neces- sary in order to determine whether the affirmative reme- dies of backpay and instatement were appropriate.2 These remedies require a showing of the number of openings available. FES, supra at 14. That information was not included in the amended complaint and, because the Board found that the Respondent had not adequately answered the complaint, no hearing had been held. By remanding this issue for a hearing, the Board com- plied with the directive of FES not to defer the question of the availability of openings to the compliance stage. Id. Rather than a “post-decision hearing,” as it is charac- terized by our dissenting colleague, the Board ordered an initial hearing on a matter as to which summary judg- ment was not granted. Also in accordance with the proc- ess established in FES, the General Counsel amended the complaint to identify the openings of which he was aware before the hearing. Id. We view our difference with our dissenting colleague as essentially procedural in nature. In the posture of this case, particularly the Respondent’s failure to file excep- tions, we simply would not revisit this matter. ORDER The National Labor Relations Board orders that the Respondent, Jet Electric Company, Inc., Winston-Salem, North Carolina, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Threatening not to hire employees because of their affiliation with a union. (b) Threatening to interrogate employees regarding their union affiliation. (c) Advising employees and applicants that union- affiliated employees would not be hired. (d) Threatening to discharge employees for their af- filiation with a union. (e) Interrogating employees regarding their union af- filiation and membership. (f) Refusing to consider for hire or to hire applicants because of their affiliation with a union. 2 Compare Center State Beef, 327 NLRB 1246 (1999) (summary judgment granted finding violations, but remanded to administrative law judge for hearing regarding whether Gissel bargaining order war- ranted). 338 NLRB No. 77 JET ELECTRIC CO. 651 (g) Changing its hiring practices and policies in order to deny employment to union-affiliated applicants. (h) 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) Rescind the changes in hiring practices and poli- cies designed to deny employment to union-affiliated applicants. (b) Within 14 days from the date of this Order, offer Rodney Booe, Stanley Grace, Jerry Loftis, Roger Stanley, Douglas Summers, Allen Craver, Gary Maurice, and Percival Millington instatement to a job for which they applied or a substantially equivalent position, with- out prejudice to their seniority or any other rights or privileges. (c) Make Rodney Booe, Stanley Grace, Jerry Loftis, Roger Stanley, Douglas Summers, Allen Craver, Gary Maurice, and Percival Millington whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the judge’s decision. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusals to hire or consider for hire Rodney Booe, Stanley Grace, Jerry Loftis, Roger Stanley, Douglas Summers, Allen Craver, Gary Maurice, and Percival Millington, and within 3 days thereafter notify the applicants in writing that this has been done and that the unlawful refusals to hire or consider for hire will not be used against them in any way. (f) Within 14 days after service by the Region, post at its facilities in Winston-Salem, North Carolina, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent’s au- thorized representative, shall be posted by the Respon- 3 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” dent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since January 2, 1999. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. MEMBER COWEN, dissenting. I would not adopt the judge’s April 23, 2002 decision on remand and recommendation to order Respondent to provide the eight alleged discriminatees instatement and backpay.1 The judge’s findings are improper because they were rendered after the Board issued its August 10, 2001 decision granting the General Counsel’s Motion for Summary Judgment. While the Board’s August 10, 2001 decision is the law of the case, and I accept it as such, I do not accept the judge’s findings rendered after this final decision. As explained further below, the Board cannot remedy its error of granting summary judgment without sufficient allegations or record evidence by or- dering a post-decision hearing to fill in the missing facts. The Board granted summary judgment on the basis that the Respondent had failed to file an adequate answer to the complaint. Although I would find the Respon- dent’s answer to the complaint adequate,2 I have a differ- ent basis for finding the Board’s granting of the General Counsel’s Motion for Summary Judgment was in error as to the unlawful refusal-to-hire allegations. The Board’s finding of these refusal-to-hire violations in the absence of allegations or record evidence regarding the number of 1 While no party filed exceptions to the judge’s April 23, 2002 deci- sion on remand, it is well established that the Board may exercise its remedial discretion even in the absence of exceptions. WestPac Elec- tric, 321 NLRB 1322 (1996). 2 I agree with former Chairman Hurtgen’s dissenting opinion that the General Counsel’s Motion for Summary Judgment should have been denied. See Jet Electric Co., 334 NLRB 1059, 1061–1062 (2001). The pro se Respondent filed a timely response stating that “I deny all com- plaints directed at me, James A. Jackson, or my company Jet Electric, Inc.” I agree with Chairman Hurtgen, for the reasons stated by him, that this response was a sufficient denial of the complaint’s allegations, particularly in light of the greater latitude typically accorded unrepre- sented parties. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652 openings that were available to the alleged discriminatees was in direct contravention of the clear standards set forth by the Board in FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). As to the issue of available job openings, the General Counsel merely alleged in the original complaint that the Respondent “filled job openings” at “all material times.” The Board, in my view, erroneously found this ambigu- ous, conclusory allegation to be sufficient under FES.3 The Board went on to find that the “undisputed” allega- tions of the complaint were “sufficient under FES to es- tablish a refusal-to-hire violation warranting a cease-and- desist order.”4 Implicitly acknowledging the deficiency in the General Counsel’s allegations of job openings, however, the Board’s order contains neither a specific nor a general instatement provision. In the absence of allegations or record facts regarding the number of available job openings, the Board should have denied summary judgment as to the unlawful re- fusal to hire allegations. Instead the Board found that the Respondent unlawfully refused to hire all eight alleged discriminatees5 and remanded the case to the judge with an order to essentially fill in this evidentiary gap post- decision. The General Counsel thereafter issued an amended complaint on September 5, 2001,6 which listed specific dates upon which eight job openings allegedly occurred. The Respondent filed an answer denying the allegation and a hearing was thereafter conducted before the judge. The judge found that eight job openings oc- curred on various dates (only two of which matched the dates in the amended complaint) within the 4 months after the first application by an alleged discriminatee. In finding the refusal-to-hire violations without allega- tions regarding the dates and numbers of job openings, the Board majority did exactly what it said it would not do in FES. The dictates of the Board’s FES decision are clear. In order to make out a prima facie case of unlaw- ful refusal to hire, the General Counsel—at the hearing on the merits—must show, inter alia, that “the respondent was hiring, or had concrete plans to hire,7 at the time of 3 Jet Electric Co., supra at 1059–1060. 4 Id. slip op. at 1. 5 Id. slip op. at 2 (“In . . . refusing to hire, the above-named appli- cants . . . the Respondent has been discriminating in regard to the hire . . . of its employees and applicants for employment . . . violating Sec- tion 8(a)(3) and (1) of the Act.”). 6 I am aware of no basis for permitting the General Counsel to amend his complaint after the Board has already issued its decision in the case. 7 As noted in FES, the “General Counsel may establish a discrimina- tory refusal to hire even when no hiring takes place if he can show that the employer had concrete plans to hire and then decided not to hire because applicants for the job were known union members or support- the alleged unlawful conduct.”8 As thoroughly discussed in FES, the Board was taken to task in previous cases by the U.S. Courts of Appeals for the Sixth and Seventh Circuits for failing to require the General Counsel in unlawful refusal-to-hire cases to establish the availability of job openings as part of the General Counsel’s prima facie case and instead allowing such proof to be deferred to the compliance stage of the proceeding.9 The Board in FES adopted the Seventh Circuit’s approach in Starcon, holding in relevant part that: [I]n cases involving numerous applicants, the General Counsel need only show that one applicant was dis- criminated against to establish a refusal-to-hire viola- tion warranting a cease-and-desist order. If the General Counsel seeks an affirmative backpay and instatement order, he must show that there were openings for the applicants. Consequently . . . the General Counsel must show at the hearing on the merits the number of open- ings that were available . . . . Proof of the availability of openings cannot be deferred to the compliance stage of the proceeding.10 Furthermore, the Board made clear that the General Counsel must plead such facts regarding the number of available openings. Specifically, the Board stated that “[i]f the General Counsel is seeking a remedy of instate- ment and backpay based on findings that he knew or should have known have arisen prior to the commence- ment of the hearing on the merits, he must allege and prove the existence of those openings at the unfair labor practice hearing. If he seeks such a remedy based on openings arising after the trial has begun or based on openings arising before the opening of the trial that he neither knew or should have known had arisen, he may move to amend the complaint.”11 The Board majority in the present case erred, in my view, by failing to recognize that in order to establish a refusal to hire violation as to even one of the alleged dis- criminatees, the General Counsel had to allege that “there was at least one available opening for the applicant.”12 The reasoning behind this requirement is simple: an em- ployer cannot fail to hire an applicant into a position that ers.” FES, 331 NLRB at 12, fn. 7 [citations omitted]. The present case does not involve this type of allegation. 8 Id. at 12. 9 Id. at 9–11, 14 (discussing NLRB v. Fluor Daniel, Inc., 161 F.3d 953 (6th Cir. 1998) and Starcon, Inc. v. NLRB, 176 F.3d 948 (7th Cir. 1999)). 10 Id. at 14 (emphasis added). 11 Id. (emphasis added). 12 Id. at 12 (emphasis added). JET ELECTRIC CO. 653 does not exist.13 It is axiomatic that in order to satisfy this burden, the General Counsel must be able to show the dates upon which one or more job openings existed. Without such proof, the Board cannot determine whether the positions were available, i.e., whether the respondent was hiring at the time of the alleged discriminatees’ ap- plications. In conclusion, looking solely at the Board’s August 10, 2001 decision as to the unlawful refusal-to-hire claims, we are left with the Board’s finding of 8(a)(3) and (1) violations for the refusal to hire eight alleged discrimina- tees without findings of fact on the issue of how many openings, if any, were available at the time of the alleged discriminatees’ applications. Without such findings, no backpay and instatement remedy is available to the al- leged discriminatees with regard to the refusal to hire violations. 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 vio- lated the Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT threaten not to hire employees because of their affiliation with a union. WE WILL NOT threaten to interrogate our employees re- garding their union affiliation. WE WILL NOT advise our employees or applicants that union-affiliated employees will not be hired. WE WILL NOT threaten to discharge our employees for their affiliation with a union. WE WILL NOT interrogate our employees regarding their union affiliation and membership. WE WILL NOT refuse to consider for hire, or refuse to hire, applicants because of their affiliation with a union. 13 Id. (“[T]he question in a discriminatory hiring case is why the ap- plicant was not taken into the employer’s work force. That question presupposes that there were appropriate openings in the employer’s work force available to the applicant.”) WE WILL NOT change our hiring practices or policies to deny employment to union-affiliated applicants. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind the changes in our hiring practices or policies designed to deny employment to union-affiliated applicants. WE WILL offer Rodney Booe, Stanley Grace, Jerry Loftis, Roger Stanley, Douglas Summers, Allen Craver, Gary Maurice, and Percival Millington instatement to a job for which they applied or a substantially equivalent position, without prejudice to their seniority or any other rights or privileges. WE WILL make Rodney Booe, Stanley Grace, Jerry Loftis, Roger Stanley, Douglas Summers, Allen Craver, Gary Maurice, and Percival Millington whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, together with interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful refusals to hire or consider for hire applicants Rodney Booe, Stanley Grace, Jerry Loftis, Roger Stanley, Doug- las Summers, Allen Craver, Gary Maurice, and Percival Millington, and WE WILL within 3 days thereafter notify the applicants in writing that this has been done and that the unlawful refusals to hire or consider for hire will not be used against them in any way. JET ELECTRIC COMPANY, INC. Ronald C. Morgan, for the General Counsel. James A. Jackson, President, of Winston-Salem, North Caro- lina, for the Respondent. Gary M. Maurice, Business Manager, of Winston-Salem, North Carolina, for the Charging Party. DECISION ON REMAND STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge. This case was heard in Winston-Salem, North Carolina, on February 27, 2002, pursuant to a limited remand issued by the National La- bor Relations Board in its Decision and Order of August 10, 2001 (334 NLRB 1059). The Board’s decision was pursuant to the General Counsel’s Motion for Summary Judgment as Re- spondent had failed to file an adequate answer to the operative complaint. In its decision the Board partially granted the Motion for Summary Judgment and found that Respondent had violated Section 8(a)(1) of the Act in a variety of ways and had also violated Section 8(a)(3) of the Act by refusing to consider for hire or to hire eight applicants because of their affiliation with the Union. However, it was unable to determine if a backpay and instatement remedy was warranted. More specifically, the Board observed that its decision in FES, 331 NLRB 9 (2000), obligated the General Counsel to establish the number of jobs DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654 available in order to warrant a backpay remedy. Since the General Counsel had not done so, and due to the limited find- ings of fact based on the pleadings, the Board was unable to determine whether a backpay and instatement order was appro- priate. It therefore issued the limited remand order to allow it to make that judgment. The remand instructed the Regional Director for Region 11 to ascertain “how many job openings were available at times relevant to the discriminatees’ applications for work.” The amended complaint of February 26, 2001, which was the basis for the Board’s summary judgment, had listed by name eight individual applicants for employment, together with the dates they were denied employment. The first was alleged to have occurred on February 17, 1999, and the last was alleged to have taken place on May 5, 1999. The Board adopted the allegations of the complaint as its findings of fact. Upon receipt of the remand, the Regional Director issued an amendment to the amended complaint and notice of hearing on September 5, 2001. In it he listed eight dates on which he al- leges eight job openings occurred. Respondent filed an answer denying the allegation and the instant hearing ensued. The sole witness was Respondent’s president, James A. Jackson. The General Counsel is the only party who chose to file a brief. It has been carefully considered. In that brief, the Gen- eral Counsel now asserts that 79 job openings occurred after February 17, 1999. I. THE FACTS A. The Setting Respondent is a nonunion electrical contractor performing commercial electric construction work in North Carolina’s Triad area, specifically Winston-Salem, Greensboro, and High Point. It is essentially a one-man operation, entirely run by Jackson.1 In 1998 it had undertaken the electrical installation work at a Super 8 Motel construction project in Winston- Salem. Sometime in mid-February 1999,2 its labor subcontrac- tor, GHW Electric, left the job, leaving it uncompleted. As a result, Respondent had to scramble to find employees to per- form the work, for it did not then have a sufficient number of its own workmen. The electricians and helpers it found came from various sources. One came from GHW, while others were called from temporary labor suppliers, including Tradesmen International, Labor Finders, and Labor Ready. The Board found during this time period that Respondent re- fused to consider for hire and failed and refused to hire Rodney Booe (February 17), Stanley Grace (February 19), and Jerry Loftis (February 23). The next group whom the Board found Respondent had discriminated against by refusing to consider and failing and refusing to hire included Roger Stanley (March 10), Douglas Summers (March 15), and Allen Craver (March 1 JUDGE KENNEDY: Do you—do you have an office support staff of any kind? MR. JACKSON: No sir. JUDGE KENNEDY: It’s just you, is that it? MR. JACKSON: It’s just me. 2 All dates are 1999 unless noted otherwise. 16). These were followed by similar discrimination against Gary Maurice3 (April 28) and Percival Millington (May 5). The September 5, 2001 amendment is not congruent with these dates. There, the Regional Director asserted that the slots to which these discriminatees were entitled opened March 19, April 5, May 7, May 14, June 25, July 20, August 5, and Au- gust 27. It was during this general time frame that a new project, the Wingate Inn in Winston-Salem began (about March 15) and the Super 8 project ended (June 21). The Winston-Salem Wingate Inn project continued until January 14, 2000. On August 31, Respondent began two other projects, another Wingate Inn, located in Greensboro, and a Central Carolina Bank site in High Point. It completed the High Point project on August 25, 2000, and the Greensboro Wingate Inn on November 15, 2000. It did not perform any more work until late December 2001, a hiatus of more than a year. Because of that circumstance, the General Counsel agrees that after the completion of the second Wingate Inn project in November 2000, there were no more slots to which the discriminatees could have been assigned. Jackson testified that he hires three types of employees, helpers, electricians, and foremen. Foremen are statutory su- pervisors since they have authority to hire, and are not of con- cern here. He says that he further breaks down the electricians by the amount of experience they have, ranging from appren- tice, with 2–3 years’ experience to journeyman. He agrees that an electrician can perform the work of a helper or an appren- tice. He said: Q. [By Mr. MORGAN]: Okay, the question I’m asking you, Mr. Jackson, is the people that you hire[d] or worked for Jet Electric in the journeyman or electrician classifica- tion, would you agree that they were also qualified to per- form jobs as helpers or apprentices or any other—? A. Yes sir. Q. If they were working as an electrician for you, or could work for you as electrician, they could perform any job that Jet Electric had? JUDGE KENNEDY: Well, with the modification that they’re probably not going to be forem[e]n. Q. Right, I’m not—I’m talking about employee posi- tions. A. No sir. Q. Would you not agree that—that in general [an] electrician could do the work of a helper? A. Yes sir. Q. Okay and an electrician could do the work of what you called a two or three year apprentice? A. Yes sir. B. The Hiring A review of the documentary evidence, together with Re- spondent’s president, Jackson’s testimony leads to several gen- eral observations. First, Respondent sought to finish the Super 8 job principally with employees from temporary agencies. It added only five to its own payroll: Thomas Hawks (February 3 Maurice is the Union’s business manager and its representative in this case. JET ELECTRIC CO. 655 23, a transfer from GHW), Kenneth Hawks (March 22), Bruce Goad (April 5, a transfer from Tradesmen), Donald Daniels (April 27, a transfer from Labor Ready) and Michael Powell (May 3) (originally hired April 7 for the Wingate, terminated after 2 days work). Both Daniels and Powell were helpers. However, the temporary agencies referred 24 electricians and/or helpers to the Super 8 job, including Goad and Daniels. Of that number, 9 worked for only 1 day and 3 worked for only 2 days. While there is no evidence one way or the other concerning their competency, it does not seem to be much of a stretch to conclude that these shorttime individuals are not rep- resentative of whether or not a regular job can be assigned to each of them. More likely, they were part of a winnowing process aimed at keeping the best performers and letting the poorer performers fall by the wayside. Those failures might be due to lack of skill or speed in performance; they might also be due to the employee’s decision not to stay. And, since all of those came from temporary agency referrals, it is quite likely that some of those 1- or 2-day employees were called only for that duration. It seems, but is not entirely clear, that Respondent stopped using referrals from the temporary agencies about April 9 with the departure of two temps from the Winston-Salem Wingate on that date. At that project, the winnowing process almost stopped as only 2 of the 164 direct hires lasted 2 days or less. The record is not as clear with respect to direct hiring at the second Wingate Inn and the Central Carolina Bank projects. The General Counsel has offered only the timecards for the year 2000, and they undoubtedly cover both projects. Indeed, since both of those projects began in late August 1999, the 1999 timecards cover those projects as well as the Super 8 and much of the Winston-Salem Wingate. Yet, the timecards do not show to which project the named employees were assigned. Jackson testified that some individuals were transferred back and forth. Since the projects were running simultaneously, they no doubt had different needs, particularly since the bank project was running much faster (probably because it was a smaller job) and the two Wingates were at different stages. The post- August 1999 and the 2000 timecards do show when new hires came aboard and also show, at least on some occasions, that a number of new hires did not last more than a day or two. It would appear that the winnowing process had resumed, assum- ing it had ever stopped. Furthermore, the record does not definitively reflect whether Respondent utilized the services of the temporary agencies in 2000, though it appears it did not. Neither Labor Finders nor Labor Ready show any billings after April 30. Tradesmen In- ternational’s billings for electricians, stopped in March, but resumed on December 10, 17, 24, and 31, and although refer- encing a Wingate Inn project, do not specify whether it was in Winston-Salem or in Greensboro. Since the Winston-Salem Wingate was in the wind-down stage, it is most likely that these were assigned to Greensboro, although, pickup work at Winston-Salem is possible as well. The December 10 billing 4 The 16 do not include the June 25 transfers of Thomas Hawks, Kenneth Hawks, and Donald Daniels to the Wingate Inn from the Super 8 job upon its completion. shows a referral of five employees, two of whom worked only 8 hours. The three who worked more than 8 hours stayed for the following 2 weeks. Yet, those three vanished with the De- cember 31 billings. In their place are two others, neither of whom worked a full week. Although the record is scant, it is likely that the winnowing process was in effect there, too. II. ANALYSIS In FES the Board, in describing the elements of a discrimina- tory refusal-to-hire violation listed the three elements necessary to make out such a case. It said the elements are: (1) a showing that the respondent was hiring or had concrete plans to hire at the time of the alleged unlawful conduct; (2) the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alterna- tive, that the employer has not adhered uniformly to such re- quirements, or that the requirements were themselves pretextu- ous or were applied as a pretext for discrimination; and (3) antiunion animus contributed to the decision not to hire the applicants. The Board then stated that if those elements are shown, a cease-and-desist order is appropriate, but if the Gen- eral Counsel is seeking an instatement order together with backpay, he must show at the hearing on the merits that there were openings for the applicants. Moreover, the General Coun- sel must show the number of openings; if there is more than one alleged discriminatee, then the General Counsel must show the number of openings which were available. FES, supra at 14. Here the General Counsel, upon receipt of the remand, modi- fied the complaint to allege that there were eight specific dates between March 19 and August 27. Counsel for the General Counsel now argues, after the conclusion of the evidence, that he has shown there were some 79 job openings between Febru- ary 17 and the conclusion of the second Wingate Inn job in November 2000. That number is based upon his count of indi- viduals who were either directly hired or were referred to one of the projects by a temporary agency. First, it is not at all clear that the Board’s Order included re- ferrals from temporary agencies. Usually temporary agencies provide short-term, temporary work. Occasionally, and it oc- curred here, the employer will offer “permanent” employment to an individual who has been referred by such an agency and the employee will then be transferred to the employer’s own payroll. I observe that the Board, in its summary judgment decision, ordered Respondent to cease and desist “changing its hiring practices and policies in order to deny employment to union- affiliated applicants.” Despite that language, there is no sug- gestion, much less a finding, that the order is aimed at the use of temporary employees dispatched by temporary employment agencies. Nor can such a purpose be discerned from the opera- tive complaint. Surely if the General Counsel believed that Respondent had improperly used the temporary agencies to shield itself from unionization, the complaint would have said so. It did not, and I do not believe it can be assumed from the Board’s Order that such was the General Counsel’s intent. In fact, the General Counsel either knew or should have known that the reason Respondent began using temporary agencies in DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656 March was because its subcontractor, GHW, had walked off the job without notice, leaving Respondent in a serious bind. That incident does not suggest that the use of temporary employment agencies had anything to do with an effort to avoid unioniza- tion, only that Respondent was trying immediately to remedy a business crisis. Accordingly, I reject the General Counsel’s contention that job openings filled by the temporary agencies’ referrals were the job openings which the discriminatees sought. Second, I conclude that the methodology of simply counting the hires over a 22-month period (February 1999–November 2000) results in a severe overstatement of what actually oc- curred. Among other things, the February 17 putative start date coincides only with the hire of Thomas Hawks as he came over from GHW. Clearly that was not a job opening which Rodney Booe, for whom the Board found a violation on that date, would have received. On March 22, Respondent hired Kenneth Hawks, and Booe may very well have fit there. However, the second discrimina- tee, Grace (February 19 violation) could have as well. So could Loftis who the Board found had been discriminated against on February 23, Stanley (Board finding of March 10), Summers (March 15), and Craver (March 16). Respondent did not hire again until April 5, but this was Goad who was being trans- ferred from Tradesmen International. There is no showing that any of the discriminatees would have offered that job, as Goad’s abilities by then were a known quantity. That job was not an opening which the discriminatees would have filled. (An opening did occur April 6.) Similarly, on April 27, Re- spondent transferred Donald Daniels to its own payroll from Labor Ready. Again, no discriminatee would have been given that job, for the same reasons, although an opening did occur on April 26. Moreover, solely counting hires does not take into account the winnowing process, for it cannot seriously be argued that the discriminatees were seeking jobs of only 1 or 2 days’ dura- tion or some type of temporary work. They must be assumed to have been seeking longer jobs, although by the very nature of construction work, that employment is likely to be of relatively short duration. And even though the discriminatees were seek- ing jobs longer than 1 or 2 days, it does not follow that “perma- nent” or project-length jobs were available shortly after each made his application. The available job might have been tem- porary (in the Lloyd A. Fry Roofing Co., 121 NLRB 1433, 1437–1438 (1958); M. J. Pirelli & Sons, 194 NLRB 240, 250 (1971) sense) and, therefore, not an actual opening. Under FES, bona fide job openings, not simply fill-in work, must be demonstrated. That is the General Counsel’s burden and he made no effort to identify the true openings. Third, FES speaks in terms of job openings “at the time of the alleged discrimination.” Literally, that occurs in the Board’s statement of the elements of a refusal-to-hire violation. But timing is inextricably intertwined with the freshness of the discriminatee’s application. The application and the job open- ing must be relatively close in time; there must be a logical, contemporary, connection between the two where a finder of fact can say confidently that absent the discrimination, a spe- cific employee should have been offered a specific job or jobs. Indeed, the Board’s Order here requires me to find “how many job openings were available at times relevant to the discrimina- tees’ applications for work.” (Emphasis added.) Supra at 11. It is not enough, as the General Counsel implies, to say that a victim of a refusal to consider an application occurring in Feb- ruary 1999 is entitled to backpay for a job which became open in July 2000. Some kind of nexus in time must be shown, and the amendment seems to have been an effort to do that. Yet, counsel for the General Counsel has made no effort to follow through in his brief. Instead, he has substituted the number count of 79. Fourth, the Board in Dean General Contractors, 285 NLRB 573 (1987), in the process of refining the standard remedy for unlawful discharges in the construction industry, observed that reinstatement as a standard remedy was appropriate and that it could not presume that an employee would not be carried from one project to a succeeding one. It therefore adopted the stan- dard reinstatement remedy to all cases, allowing a respondent to demonstrate at the compliance stage that backpay would have been cut off if a transfer to another construction site would not have been made. Similarly, we know from General Counsel’s Exhibit 2 that some regular employees were transferred from the Super 8 to the first Wingate on June 25 when the Super 8 job ended. Sec- ond, there is Jackson’s testimony to the same effect as well as his testimony that mid-job reassignments took place. Q. [By Mr. MAURICE]: You’ve pretty much acknowl- edged already in your testimony Mr. Jackson that you had a number of employees on four job sites, two in Winston- Salem, one in High Point, and one in Greensboro. Did you in fact, transfer some of the employees from one job to another and what I would assume there is that that would be employees that established themselves with you as dependable employees? You didn’t hire separately for each job—did you? A. No sir. Q. You did transfer people. And at times they would work even during the week on one job, possibly jump to the other on the weekend as you needed them? A. Yes sir. Q. The continuity of employment— . . . JUDGE KENNEDY: But Mr. Maurice’s question is . . . The answer to his question even though it was a little bit convoluted is yes, you move people around and they were— MR. JACKSON: Yes sir, I did. We know, therefore, that since transfers from project to pro- ject did occur, one cannot make the assumption that a job opened for which a discriminatee can make a claim when em- ployees were transferred or when a new project or a new phase of a project began. Accordingly, incumbent employees must be seen to have been preferred over new hires. And, it must fol- low that since no new job opened when that occurred, it could not have been a discriminatory act. Indeed, the General Coun- sel has not made that contention. JET ELECTRIC CO. 657 Under FES, the Board has given the General Counsel wide latitude to determine whether a discriminatory refusal to con- sider should be converted to a discriminatory refusal to hire, together with the concomitant remedies of backpay and in- statement. Specifically, the Board said, supra at 14, “If the General Counsel is seeking a remedy of reinstatement (sic) and backpay based on openings that he knows or should have known have arisen prior to the commencement of the hearing on the merits, he must allege and prove the existence of those openings at the unfair labor practice hearing. [Footnote omit- ted.] If he seeks such a remedy based on openings arising after the trial has begun or based on openings arising before the opening of the trial that he neither knew nor should have known had arisen, he may move to amend the complaint.” Here, the General Counsel took the opportunity to amend the complaint when the matter was remanded to the Regional Di- rector with instructions. He alleged eight dates, presumably after an appropriate investigation. Indeed at the hearing, the General Counsel was entirely familiar with Respondent’s hiring records. Therefore, the dates chosen in the September 5, 2001 amendment are the dates which in the Board’s words the Gen- eral Counsel “knew or should have known.” Counsel for the General Counsel has made no effort to further amend the com- plaint, except by way of its assertion in the brief that 79 open- ings had occurred between February 17, 1999, and November 15, 2000. While the bare facts concerning hiring decisions are not in real dispute during that period, there are a number of conclusions which could be drawn from those bare facts about which reasonable persons could disagree. Furthermore, when a complaint is amended to require more specificity, as this was, it is contrary to the purposes of the Act to go in the opposite di- rection, placing the general ahead of the specific. Moreover, such a maneuver is contrary to the remand’s directive to find openings “at times relevant” to the applications. Accordingly, I find it appropriate to hold the General Counsel to the specificity set forth in the September 5, 2001 amendment. Furthermore, I find that the Board’s directive requires the General Counsel to show job openings reasonably contempora- neous either with the job applications as found by the Board or, secondarily, with the openings alleged to have occurred as set forth in the amendment. Given Jackson’s testimony that electricians can do both ap- prentice work and helper work, I shall also assume that the eight applicants are capable of doing whatever work was being offered when it became available. I make that assumption with the full recognition that in actuality, some of the applicants who were journeymen electricians might have turned down helper work had it been offered because of the lower pay rate. It is nonetheless appropriate here because the Board has found them to be qualified for any of the openings which occurred in this general time frame. Jackson’s testimony is consistent with the Board’s finding and I shall assume for the purposes of this case, that if a job became open, one of the applicants would have taken it if offered. The first hiring which occurred after Booe’s February 17 ap- plication took place a month later, March 19, a date consistent with the first date in the amendment. On that date Respondent hired two helpers, Darryl Springer and Reginald Fuller. These were bona fide job openings as Springer remained employed through May 17 and Fuller through April 15. At that time Booe, Grace, Loftis, Stanley, Summers, and Craver had all filed applications which had not been properly considered. There- fore, two of those six are eligible to be considered for instate- ment and backpay as of March 19. Skipping the Goad transfer on April 5, the next hire which occurred was on April 6 when Respondent hired Randy Lunsford as a helper. This, too, was a bona fide job opening as Lunsford remained employed until June 25, when he ceased working, for he was not transferred to the Winston-Salem Win- gate Inn project. This date is closely connected to the April 5 allegation found in the amendment. I find that one job opening occurred here which could have been filled by four of the same six applicants (the other two having filled the previous two positions). The fourth and fifth job openings occurred on April 26, when Respondent hired Steve Heath and Charles Taylor as helpers. These were also bona fide job openings. Heath remained em- ployed from that date through October 29, 2000, and Taylor remained employed through July when he quit. Although the April 26 hire date does not match any allegation in the amend- ment, I regard it as contemporaneous. Therefore, two more of the original six applicants would be entitled to backpay for those jobs, although three of them would have been assigned to the earlier openings. Noncognizable transfers occurred on April 27 and May 3 when Daniels and Powell were transferred to the Wingate from the Super 8. The sixth job opening occurred on May 7. This, too, is a date alleged in the amendment. On that date Respondent hired Barry Smith as an electrician. This is a bona fide opening and Smith remained employed until July 8 when he quit. Maurice had applied on April 28 and Millington on May 5, so those two had become eligible for this opening even as one of the original six remained unremedied. This opening entitles one of the remaining three discriminatees to backpay. The seventh job opening occurred on May 17 when Respon- dent hired Ricky Coone as an electrician. This date also coin- cides with May 14,5 as alleged in the amendment. Again, this is a bona fide job opening and Coone remained employed through the pay week ending February 21, 2000.6 Backpay for this job opening would have gone to one of the two who had not been assigned the May 7 opening. The eighth opening occurred when Respondent hired Lee Upchurch as a helper on June 1. Upchurch remained employed from June 1 through July 16, demonstrating that it was a bona fide opening. The remaining applicant should receive backpay for this position. 5 The May 1999 timecards show Coone began on a Monday during the pay week ending May 20. However, May 20 is a Thursday and Respondent’s pay weeks end on Fridays. The General Counsel’s sum- mary asserts that Coone’s first day was May 14, a Friday. I believe that to be an error and that he actually began on Monday, May 17, in the pay week ending May 21. 6 Coone’s return in August 2000 is irrelevant to this slot. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 658 III. REMEDY The Board was unable to determine from the pleadings whether Respondent had violated Section 8(a)(3) of the Act only by a refusal to consider or whether it was actually a refusal to hire. It remanded the matter so that it could determine whether Respondent was in the process of hiring at the time it committed violations of Section 8(a)(3). It held in abeyance the determination of any further appropriate affirmative remedy. In view of my finding that Respondent had eight job open- ings within the 4 months after the first refusal to consider, I recommend that the Board issue a remedy requiring the in- statement of the eight named employees to the job openings found above, together with backpay and interest. Accordingly, I recommend that the Board find that Respondent violated Section 8(a)(3) when, on the dates set forth in the decision, it refused to offer employment to Rodney Booe, Stanley Grace, Jerry Loftis, Roger Stanley, Douglas Summers, Allen Craver, Gary Maurice, and Percival Millington. I further recommend that the Board order Respondent to offer them instatement to those or substantially equivalent jobs, without prejudice to their seniority or any other rights or privileges. It should also order Respondent to make them whole for lost earnings, if any, to- gether with interest. Backpay should be computed from the date they would have been hired less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). In this regard, given the fact that Re- spondent’s practice concerning the transfer of employees from one job to another is a mixed practice, I do not believe it to be appropriate to adhere to the presumption set forth in Dean Gen- eral Contractors, 285 NLRB 573 (1987), which presumes that the discriminatees would be transferred to new projects. Here, the record indicates that it is more appropriate to match a dis- criminatee to a hiree, as shown above, and then track each slot as it actually provided employment to the hiree. IV. RECOMMENDATION I further recommend that the Board supplement its Order by inserting the following in paragraph 2 of its Order and reletter- ing subparagraphs (b), (c), and (d) as (d), (e), and (f): “(b) Within 14 days from the date of this Order, offer Rod- ney Booe, Stanley Grace, Jerry Loftis, Roger Stanley, Douglas Summers, Allen Craver, Gary Maurice, and Percival Millington instatement to a job for which they applied or a substantially equivalent position, without prejudice to their seniority or any other rights or privileges. “(c) Make Rodney Booe, Stanley Grace, Jerry Loftis, Roger Stanley, Douglas Summers, Allen Craver, Gary Maurice, and Percival Millington whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth above. “(d) Preserve and, within 14 days of a request, make avail- able to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order.” [Recommended Order omitted from publication.]