Innes Construction Co.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 351 NLRB No. 34 508 Innes Construction Co., Inc. and Michigan Regional Council of Carpenters Local Union 525, United Brotherhood of Carpenters and Joiners of America.1 Case 7–CA–43674 September 29, 2007 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW On July 25, 2001, Administrative Law Judge Law- rence W. Cullen issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The Charging Party filed a brief in response to the Respon- dent’s exceptions, and the General Counsel filed a brief in support of the judge’s decision. The National Labor Relations Board has delegated 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, findings,2 and conclusions only to the extent consistent with this Decision and Or- der. I. BACKGROUND The Respondent is a North Dakota–based contractor that performs construction projects throughout the Mid- west. Menards, a chain of home improvement stores, has contracted with the Respondent on a number of projects. In early 2001, the Respondent was hiring for an upcom- ing construction project at a Menards in Battle Creek, Michigan. The Respondent needed to hire 25–30 em- ployees for the job, including carpenters and laborers. It placed an ad in the local newspaper for the week of Janu- ary 2, 2001, and began accepting applications at the Menards jobsite that same day. On January 3, Dick Moorehead, business agent for Michigan Regional Council of Carpenters Local Union 525 (the Union), telephoned the Respondent’s vice presi- dent, Jeff Johnson. Moorehead asked Johnson to use the Union’s hiring hall and to sign a contract with the Union. Johnson declined. Later that day, Chad Miller, an organ- izer for the Union, visited the Menards store and filled out an application. Miller did not reveal his union af- filiation. Miller and Johnson discussed the job. In the course of their discussion, Johnson told Miller that it was a nonunion job, that unions were a thing of the past, and that union members were pawns of the business manag- 1 We have amended the caption to reflect the disaffiliation of the United Brotherhood of Carpenters and Joiners of America from the AFL–CIO effective March 29, 2001. 2 The Respondent contends that some of the judge’s rulings, find- ings, and conclusions are the product of bias. On careful examination of the judge’s decision and the entire record, we are satisfied that these contentions are without merit. ers. Johnson also acknowledged, however, that there were benefits to unions, such as job training; and he told Miller that he was pleased with the work done by union employees on another Menards project. Miller returned to the Menards site later that morning with 11 other union members, all of whom were wearing union T-shirts. Miller told Johnson that he was an organ- izer for the Union, that he represented the union carpen- ters who were with him, and that they were there to apply for work on the project. Miller told Johnson that the ap- plicants were all laid off and needed the work. He also stated that the applicants would participate in legal con- certed activities to organize the jobsite and that they were good men who would give an honest 8 hours’ work for 8 hours’ pay. Johnson allowed the 11 to fill out applications. As the 11 filled out their applications, Miller repeatedly at- tempted to convince Johnson to sign a union contract, stating, in part, as follows: By the time you started paying overtime, you can afford the union package. I mean if that’s something you are interested in, I’ve got a wage package con- tract out in my truck you can take a look at. . . . . I’ve got about 120 guys on our out-of-work list right now. It wouldn’t be a problem manning the project for you at five-eighths, no overtime, and that’s where you’re going to save money because you’re not paying taxes on the fringe benefits either . . . . . . . . [I]f you want to try and get hold of me[,] give it some thought, look at the numbers, would you be in- terested in taking a look at our wage package and our contract? . . . . [W]e can definitely work together, . . . we can definitely work something out with you. . . . . You can quit wasting time here with applications for the next two days and call me, I’m not going to send you somebody that I know won’t do a good job. . . . . . . . Would you be interested in just taking a look at things[?] [M]aybe you could punch a few numbers in the calculator and take a look at our wage pack- age[.] I mean it can’t hurt[,] can it? . . . . Obviously I’d like to get carpenters on this job making area standards wages and benefits we negotiate. INNES CONSTRUCTION CO. 509 Johnson asked whether the applicants were willing to work under the Respondent’s guidelines. Miller responded for the group, stating that the applicants’ wages would be “ne- gotiable,” and each applicant wrote “negotiable” on his ap- plication as the desired rate of pay.3 Johnson turned down Miller’s repeated efforts to per- suade him to accept or at least consider a union contract, explaining that the Respondent’s contract with Menards had been bid on a nonunion basis and he (Johnson) could not go the union route at that point in time. Johnson also told Miller that at Menards’ request, he had bid a previ- ous Menards contract on a union basis at union rates, which had worked out well. Johnson did not interview any of the applicants. He testified that he believed that Miller spoke for all of them and that their designation of “negotiable” as their desired pay rate referred to whatever Miller could negotiate on their behalf. Of the 12 applicants (including Miller, who had applied that morning), 8 were journeyman carpen- ters, 2 were apprentices in their third or fourth year of the Union’s 4-year apprentice program, and 2 were journey- man millwrights. Later that day, two journeyman carpenters who were members of the Union applied covertly, i.e., without re- vealing their union affiliation. A few days later, both covert applicants were offered positions as carpenters. In addition, the Respondent’s superintendent, John Mc- Cloud, hired six applicants to work at the site. None of the overt union applicants was offered a position. The complaint alleged that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to hire and to consider for hire the 12 overt union applicants. Applying FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002), the judge found that the General Counsel estab- lished an initial case of discriminatory refusal to hire, and that the Respondent failed to sustain its rebuttal burden.4 Excepting, the Respondent contends that the General Counsel did not sustain his initial burden because he failed to establish antiunion animus. Further, the Re- 3 The dissent erroneously concludes that Johnson’s failure to answer the question of how much the Respondent was paying left the appli- cants “no choice” but to write “negotiable” on their applications. Miller, however, first used this word early in his discussion with John- son, and, shortly thereafter, each applicant wrote “negotiable” as his desired pay rate before Johnson was asked what the Respondent was paying. Thus, Johnson’s failure to specifically respond to this subse- quent inquiry clearly was not the reason for the applicants’ use of the word “negotiable.” Instead, it was Miller’s statement to Johnson on behalf of the applicants that precipitated the applicants’ use of that word. 4 The judge also concluded that the Respondent violated Sec. 8(a)(3) by refusing to consider the union applicants as well as by refusing to hire them. However, the judge neither stated nor applied the elements of a refusal-to-consider violation set forth in FES, supra. spondent argues that it rejected the applicants because they were unwilling to work for the wages offered by the Respondent. The Respondent argues that Johnson rea- sonably believed that the union applicants were repre- sented by Miller, that Miller was seeking Johnson’s agreement to the Union’s contractual wages, and that the applicants were not interested in accepting employment at the wage the Respondent was offering. The Respon- dent also argues that it refused to hire Miller on the addi- tional basis that he lied on his application about his work experience. II. ANALYSIS We agree with the judge that FES, supra, sets forth the applicable standard in this case. We disagree, however, with the judge’s finding under FES that the Respondent violated Section 8(a)(3) and (1) by refusing to hire the 12 union applicants. We find it unnecessary to address the Respondent’s contention that the General Counsel failed to sustain his initial burden under FES because, even assuming the General Counsel met his burden of show- ing that antiunion animus contributed to the Respon- dent’s refusal to hire Miller and the 11 other applicants, we find that the Respondent met its rebuttal burden under FES by showing that it reasonably believed that the ap- plicants were only willing to work under a union contract or pursuant to a wage agreement to be negotiated on their behalf by Miller. The Respondent was privileged to re- fuse to hire the applicants with these conditions at- tached.5 The Respondent’s first contact with the Union oc- curred when Johnson spoke with Union Business Agent Moorehead, who requested that Johnson utilize the Un- ion’s hiring hall and sign a union contract. Later that day, union organizer Miller arrived at the site with 11 other applicants and renewed the effort Moorehead had initiated, pressing Johnson to agree to union wages. Throughout this encounter, Miller made it clear to John- son that he represented all 12 applicants (including him- self) and spoke on their behalf, reinforcing Johnson’s reasonable belief that the 11 were not there to apply indi- vidually but rather as part of a package deal that included the union-contract wages Miller was urging Johnson to look at and accept. Notably, Johnson gave the applicants an opportunity to dispel his belief. He asked if the applicants were willing to work for him under the Respondent’s guidelines. Miller responded that their wages would be “negotiable,” and the applicants wrote “negotiable” on their applica- 5 It was not alleged that the applicants lacked a genuine interest in employment, and we find it unnecessary to reach the issue in light of our decision. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 510 tions. There was no evidence that the applicants indi- vidually were willing to work for the wages the Respon- dent was willing to pay. The applicants gave no indica- tion that they wished to negotiate their wages individu- ally. In fact, the applicants spoke only sporadically and for the most part not directly to Johnson during the con- versation between Johnson and Miller; for example, after Miller told Johnson that the applicants’ pay rate would be negotiable, one applicant asked Miller how to spell that word. Throughout the conversation, Miller continued to speak on behalf of himself and the other applicants, and he repeatedly sought to persuade Johnson to sign, or at least look at, a union contract. Miller referenced the un- ion wage package and offered to show Johnson a sample union contract to prove that he could afford to staff the job using union workers at union wage rates. Johnson’s response shows his understanding of what Miller was seeking. He told Miller that his contract with Menards had been bid on a nonunion basis, so he could not go the union route. Reinforcing that his position was based on economics and not the applicants’ union status, Johnson then told Miller that, at Menards’ request, he had bid a previous Menards contract on a union basis at union rates, and that it had worked out well. Based on the foregoing, we find that Johnson reasona- bly believed that the applicants (including Miller, him- self) were only willing to work for the Respondent as part of a union package deal that included union wages. The Respondent was entitled to adhere to the wages it was offering, and to refuse to hire applicants it reasona- bly believed were unwilling to accept those wages. We do not agree with our dissenting colleague that Johnson was obligated to take additional steps to confirm his be- lief. The issue is whether the Respondent showed, by a preponderance of the evidence, that it would have re- jected the applicants regardless of their union affiliation. To make that showing, Johnson did not have to be cer- tain that they were unwilling to work for less than union scale. It suffices that Johnson formed and acted on a reasonable belief that they would not do so. That, we find, is what the Respondent did, and it would have done likewise regardless of the applicants’ union status. Thus, even assuming the General Counsel established a prima facie refusal-to-hire case, the Respondent rebutted it by showing that it would have refused to hire the 12 union applicants even in the absence of their union affiliation.6 6 In view of our finding that the Respondent has met its FES burden, we find it unnecessary to pass on the Respondent’s argument that it refused to hire Miller on the additional basis that he falsified his appli- cation. As stated above, the complaint also alleged that the Respondent unlawfully refused to consider the union applicants, and without applying the relevant test, the judge so concluded. We reverse this conclusion also. To establish an unlawful refusal to consider, the General Counsel must show that the respondent excluded appli- cants from a hiring process, and that antiunion animus contributed to that decision. Once this showing is made, the burden shifts to the respondent to show that it would not have considered the applicants even in the absence of their union activity or affiliation. FES, supra at 15. The refusal-to-consider allegation fails for the same reasons, explained above, that the refusal-to-hire allegation does. That is, assuming arguendo that the General Counsel established a prima facie case, the Respondent rebutted it by showing that Johnson acted on his reasonable belief that the applicants were only willing to accept employ- ment as part of a union package deal that included union wages. Thus, the Respondent would have refused to consider the union applicants even in the absence of their union affiliation. Accordingly, we reverse the judge’s decision and will dismiss the complaint. ORDER The complaint is dismissed. MEMBER LIEBMAN, dissenting. The record demonstrates that the Respondent’s pur- ported basis for refusing to hire or consider for hire 12 overt union applicants—that they would work only for union wages, and only those wages negotiated for them by union organizer Chad Miller—was no more than an after-the-fact justification. Accordingly, in agreement with the judge, I would find that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to hire and consider for hire the applicants.1 I. Although the majority merely assumes arguendo that the General Counsel met his initial burden under FES, 331 NLRB 9, 12 (2000), of demonstrating that the Re- spondent’s refusal to hire and consider for hire these ap- plicants was motivated by antiunion animus, the evi- dence clearly establishes that this burden was met. There is no dispute that the Respondent was hiring—in fact, it hired over 30 carpenters, laborers, and helpers— and that the union applicants had experience and training relevant to the carpenter and laborer positions that the Respondent was seeking to fill. 1 See generally McKee Electric Co., 349 NLRB 463, 465 (2007) (re- jecting employer’s posthoc justifications in refusal-to-hire case). INNES CONSTRUCTION CO. 511 The Respondent’s antiunion animus is shown by, among other things, Vice President Jeff Johnson’s state- ment to Chad Miller that he does not hire union members unless he has to, and the Respondent’s hiring of two cov- ert union applicants, and two other applicants who had no construction experience,2 instead of the well-qualified overt union applicants. II. Thus, the burden shifted to the Respondent to show that it would not have hired or considered the overt union applicants even in the absence of their union affiliation. FES, supra, 331 NLRB at 12. A. The essential facts can be briefly stated: When organ- izer Miller arrived at the Menards construction site with the overt union applicants, Miller advised Vice President Johnson that he was aware that Johnson earlier had re- jected Union Business Agent Dick Moorehead’s request that the Respondent use the Union’s hiring hall to staff the Menards project and that it sign a collective- bargaining agreement with the Union. Johnson con- firmed during his conversation with Miller that the Re- spondent was not inclined to sign a collective-bargaining agreement with the Union, and he specifically stated that the Respondent was not going to pay prevailing wages on the Menard job. Miller advised Johnson that the union applicants were nonetheless going to attempt to organize the Respondent by seeking employment with the Respondent. Miller explained that there was a further reason why the union applicants wanted to work for the Respondent: they were all unemployed and could “sorely use the work” until the availability of work picked up in the spring, when the Menards job would be completed. Miller repeatedly emphasized that the union applicants would do good work for the Respondent. He advised Johnson that the applicants would give the Respondent “an honest eight hours’ work for eight hours’ pay,” that they “are not go- ing to lay down on [the Respondent] because they’re union or something,” that they would be “on time every day” and would be “working 100 percent for [the Re- spondent] every day.” B. Given this evidence, there is no basis to find that John- son would reasonably think that the union applicants were not interested in working for the Respondent be- cause it was not willing to pay union scale. Despite being explicitly told that they would not be paid prevailing 2 One had worked as an apartment manager and bartender, and the other had most recently done watercraft and auto-detailing work. wages, the union applicants still submitted applications and (through Miller) advised Johnson that they were un- employed and likely would be for several months and made a strong sales pitch to be hired. As the judge cor- rectly reasoned, the mere fact that the applicants were there to organize the Respondent presupposes that they were willing to work for the Respondent without a union contract or union wages. If Johnson actually had a concern that the applicants would not work for the Respondent unless it paid union scale wages, there were simple steps that he could have taken: He could have asked the applicants what they were willing to work for. He could have advised them that he doubted that they would work for less than union scale. He could have made them employment offers to test their interest in working for the Respondent at below union scale. But Johnson did none of those things. The majority asserts that Johnson also declined to hire the covert union applicants because they insisted on Miller negotiating their wages. Yet neither Miller nor any of the other applicants ever suggested that the appli- cants’ wages would have to be negotiated by Miller. Because Johnson failed to answer the question of how much the Respondent was paying, the applicants had no choice but to write “negotiable” on their applications as the desired rate of pay. The term “negotiable” reasona- bly signaled no more than that the applicants were open to discussing the Respondent’s wage rates, whatever those rates might be. The evidence certainly does not establish that the applicants—who, to repeat, sought to organize a nonunion employer—were insisting on union negotiation of their wages as a condition of employment. That stance predictably would have defeated their aim, which depended on being hired.3 Because the Respondent clearly did not meet its rebut- tal burden of demonstrating that it would not have hired or considered for hire the overt union applicants even in the absence of their union affiliation, I dissent.4 Patricia Fedewa, Esq., for the General Counsel. 3 The majority erroneously asserts that the applicants, during the conversation with Johnson, gave no indication that they wished to negotiate their wages individually. The transcript of the conversation shows that the applicants participated in the conversation on several occasions and that one of the applicants specifically asked Johnson what wages the Respondent paid. Johnson failed to tell the applicant what the Respondent paid. 4 I would also reject the Respondent’s assertion that it lawfully re- fused to hire and consider for hire Miller because he lied when he failed to disclose that he was a union organizer when he initially applied for work. See Hartman Bros. Hearting & Air Conditioning, Inc. v. NLRB, 280 F.3d 1110, 1112–1113 (7th Cir. 2002) (applicant may lie regarding his status as union organizer without losing protection of Act, because status is not relevant to qualifications for job). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 512 Timothy J. Ryan, Esq. and Elizabeth Welch Lykins, Esq., for the Respondent. Nicholas Nahet, Esq. and Edward J. Pasternak, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on May 16 and 17, 2001, in Battle Creek, Michigan. The complaint was issued by the Acting Regional Director for Region 7 of the National Labor Relations Board (the Board) and is based on a charge filed by the Michi- gan Regional Council of Carpenters Local Union 525, United Brotherhood of Carpenters and Joiners of America, AFL–CIO (the Charging Party or the Union) on January 22, 2001. The complaint alleges that Innes Construction Co., Inc. (the Re- spondent or the Company) violated Section 8(a)(1) and (3) of the Act. The complaint is joined by Respondent’s answer wherein it denies the commission of any violations of the Act. On the entire record including the testimony of the witnesses and the exhibits received in evidence and after review of the briefs filed by the parties, I make the following FINDINGS OF FACT I. JURISDICTION The complaint alleges, Respondent admits, and I find that at all times material, Respondent has been a North Dakota corpo- ration with offices and a place of business located in Grand Forks, North Dakota, where it has been engaged as a building contractor in the construction industry, that during the calendar year ending December 31, 2000, Respondent in conducting its business operations described above, performed services valued in excess of $50,000 in States other than the State of North Dakota, and has been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that at all times material, the Union has been a labor organization within the meaning of Section 2(5) of the Act. Facts This is a “salting”1 case wherein the Union sought to organ- ize the Respondent’s employees by having its members apply for jobs for an upcoming construction project at which the Re- spondent was to perform construction services for Menards, a home improvement store in Battle Creek, Michigan. The work to be performed within the preexisting shell of the store con- sisted of setting up fixtures, including building racking, shelv- ing, and everything within the store other than the items for sale. Respondent’s vice president, Jeff Johnson, testified he intended to hire a total of 25 to 30 carpenters, and skilled and unskilled laborers. He placed an advertisement in the local newspaper, The Battle Creek Inquirer on January 2, 2001, and 1 Salting is an organizing strategy utilized by labor organizations whereby its members seek employment with nonunion employers in order to organize their employees. the remaining dates of that week, and positioned himself at a table with chairs near the front entrance to the Menards store where he accepted applications from January 2 to 6, 2001. On the morning of January 3, Johnson received a telephone call from Local Union 525 Business Manager Dick Moorehead who requested that Johnson utilize the local hiring hall and sign a union contract. Johnson declined the offer. Later that morn- ing, local union organizer Chad Miller applied with Respondent for work at the store and filled out an application for work and discussed the job with Johnson who indicated that it was a non- union job. Miller made no reference to his union affiliation. In a conversation between Miller and Johnson secretly recorded by Miller, Johnson made some unfavorable references concern- ing unions that they were a thing of the past and that union members were pawns of the business managers. Miller had also called a number of carpenters who were on the Union’s out-of-work list and they met for breakfast and were each given a union T-shirt with the union logo and the phrase “Organize or Die” thereon. Subsequently that morning Miller once again went to the Menard jobsite along with 11 other members of the Union, all of whom were wearing the union T-shirt. According to Johnson he was encircled by the 12 individuals. Miller then informed Johnson he was an organizer for the Union and that the other individuals were there to apply for work on the pro- ject. He also informed Johnson that they would participate in legal concerted activities in order to organize the employees on the jobsite. He also told Johnson that the employees were all laid off and needed the work until the construction work opened up in the spring. He also told Johnson the applicants were all good men who would give an honest 8 hours for 8 hours pay. He also informed Johnson that the applicants lived in the nearby vicinities of the jobsite. All applicants filled out applications and put the word “negotiable” as their desired rate of pay. During the course of this process, Miller attempted to persuade Johnson to accept a union contract and offered to make adjustments that might be more palatable to Respondent than the standard labor agreement. Johnson said that the con- tract with Menards had been bid on a nonunion basis and he could not go the union route at this point in time. He also told Miller that at Menards’ request Respondent had bid a previous contract with Menards on a union basis at union rates which had worked out well. None of the applicants were offered in- terviews that day by Johnson who testified they did not request interviews and he believed that Miller spoke for all of them and that the words “negotiable” as the expected rate of pay referred to whatever Miller could negotiate for them. Johnson testified that his normal procedure for interviewing applicants was to have them fill out applications and he would then give them an on the spot interview, discussing the job, their qualifications, and he would note a description of the indi- vidual and a “yes” or “no” indicating his preference as to their hire. In the case of the union member applicants of that date, he wrote “maybe” except for Miller whom he declined to con- sider because he believed Miller had lied to him in his earlier application that morning of January 3 as Miller had not re- vealed his true purpose for applying. The complaint alleges that the following individuals, who possessed experience or training relevant to the advertised positions, submitted em- INNES CONSTRUCTION CO. 513 ployment applications in response to the advertisement for carpenters, skilled laborers and general setup workers: Paul Bird Thomas Hooper Nate Bitely Norman Leny William Dearing Chad Miller Chad Delano Thomas Powers Loren Devenney Jerry Voyce Gabe High Travis Williams It is undisputed that all of these individuals except union or- ganizers Bitley and Miller were unemployed at the time they applied. However Miller testified that he and Bitely were avail- able for work if Respondent chose to hire them and he informed Johnson of this. With respect to their qualifications Thomas Hooper, Thomas Powers, Jerry Voyce, Chad Delano, Bitely, Miller, Norman Leny, and William Dearing are journeymen carpenters. Travis Williams and Loren Devenney were appren- tices in their third or fourth year respectively of the Union’s 4- year apprenticeship program. Paul Bird and Gabe High were journeyman millwrights. Subsequently on January 3, union organizer Jason Winfield and union member Jerry Rosenburg applied as “covert salts” without indicating their affiliation with the Union. Both were journeyman carpenters. Rosenburg was on a layoff status at the time. Their credentials which they put on their applications showed less experience than they actually had. However, a few days later they were offered positions as carpenters. Johnson testified he was the first representative of the Re- spondent to arrive on the jobsite. He anticipated bringing in the job superintendent, John McCloud, and five or six lead em- ployees from Respondent’s home office and hiring 25 to 30 employees from the local area. However, Superintendent McCloud hired six applicants after Johnson left the jobsite. He hired Jason Clemens, Douglas Conklin, Richard Johnson, Eric Vanderlan, Geoffrey Varner, and Michael White. Although they were subpoenaed by the General Counsel, the Respondent did not produce the applications of these employees who were hired by McCloud. Additionally, McCloud was not called as a witness by Respondent although he remained employed by Respondent as of the date of the hearing. It is undisputed that none of the members of the Union who displayed their union affiliation were hired by Respondent. Johnson testified he did hire Michael Gomera and Scott Keeler who were former union members. Analysis As set out above “salting” is a practice utilized by certain un- ions which consists of having their members seek employment from employers in an attempt to organize the employers em- ployees on behalf of the unions. In some cases the applicants for employment are paid business agents and paid organizers for the unions. Employers have contended in the past that paid business agents and organizers are not bona fide applicants for employment. In Town & Country Electric v. NLRB, 34 F.3d 625 (8th Cir. 1994), enfd. 516 U.S. 85 (1995), the United States Supreme Court upheld the Board’s position that paid union organizers are employees within the meaning of Section 2(3) of the Act. The Court held the language of the Act is broad enough to include workers whom a union also pays for organiz- ing and that “the Board’s broad literal interpretation of the word employee is consistent with several of the Act’s purposes, such as protecting the right of employees to organize for mutual aid without employer interference,” citing Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945), and “encouraging and protecting the collective-bargaining process,” citing Sure- Tan, Inc. v. NLRB, 467 U.S. 883, 892 (1984). See also Pan American Electric, 328 NLRB 54 (1999). In FES, 331 NLRB 9 (2000), the Board set out the criterion for finding violations in refusal-to-hire cases: To establish a discriminatory refusal to hire, the General Counsel must first show (1) that the respondent was hiring or had plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the posi- tion for hire or in the alternative, that the employer had not adhered uniformly to such requirements, or that the require- ments were themselves pretextual or were applied as a pretext for the discrimination; (3) that antiunion animus contributed to the decision not to hire the applicants. Once this is estab- lished, the burden will shift to the respondent to show that it would not have hired the applicants even in the absence of their union activity or affiliation. If the respondent asserts that the applicants were not qualified for the positions it was fill- ing, it is the respondent’s burden to show at the hearing on the merits, that they did not posses the specific qualifications the position required or that others (who had been hired) had su- perior qualifications, and that it would not have hired them for that reason even in the absence of their union support or activ- ity. [Supra at 13.] The Board also stated: Where there are numerous applicants and the General Coun- sel seeks affirmative backpay for the applicants he must show that there were openings for the applicants, that is he must show the number of openings that were available, that the ap- plicants had the training or experience relevant to the open- ings, and that antiunion animus contributed to the Respon- dent’s decision not to hire the applicants for the openings. Once the General Counsel makes this showing, the burden shifts to the respondent to show it would not have hired the applicants even in the absence of their union activity or affilia- tion. [Supra at 4.] In the instant case, I find in agreement with the General Counsel the evidence presented at the hearing satisfies the crite- ria set out in FES. See also Kanawha Stone Co., 334 NLRB 235 (2001). 1. The evidence showed the Respondent was hiring at the time the alleged discriminatees were applying for work. Re- spondent hired 27 employees. Of these, only five were carpen- ters and the rest were skilled and unskilled laborers. 2. The alleged discriminatees had the necessary experience and qualifications for the jobs. The applications of the dis- criminatees clearly demonstrate that they were qualified for the jobs and had equal or superior experience and qualifications for the jobs for which Respondent hired other applicants. None of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 514 the members of the Union who were journeymen carpenters or millwrights or apprentice carpenters all of whom had openly displayed their union affiliation, were hired. Respondent ig- nored the obvious experience of the union members and instead chose employees with no construction experience such as Teresa Barrett who had worked as a bartender and apartment manager. It hired Shawn Ruddock as a skilled laborer whose recent experience was the ownership of a watercraft and auto detailing service. These facts support an inference of illegal motive. Shortway Suburban Lines, 286 NLRB 323, 326 (1987). I find no merit to Respondent’s contentions that the dis- criminatees were not hired because they did not stay for inter- views as it is clear that Johnson did not offer them the opportu- nity for an interview as he had for other applicants. I further find no merit to Johnson’s contention that he presumed that the discriminatees were not interested in employment without a union contract because they wrote “negotiable” on their appli- cations and let Miller speak for them. Miller’s announcement to Johnson that they were there to apply for jobs and to engage in concerted activities in order to organize Respondent’s em- ployees would presuppose that they were willing to go to work for Respondent without a union contract. The hiring of former union members Garmora and Keeler by Respondent does not prove a lack of animus. There “is a significant difference be- tween past union affiliation and notice of present intent to or- ganize.” In re Fluor Daniel, Inc., 333 NLRB 427 (2001). Respondent’s failure to call Superintendent John McCloud to testify supports an adverse inference that hiring of the six em- ployees he hired rather than the discriminatees was motivated by the Respondent’s antiunion animus. As the General Counsel contends in brief without “McCloud to testify and in addition no applications to review, it is impossible to determine what occurred during the hiring process.” I find the six applicants [Recomm(one carpenter and five laborers) hired by McCloud must be accordingly presumed to be less qualified than the 12 discriminatees. The Board’s requirement of matching the union applicants to the jobs filled by less qualified applicants has been met in this case. None of those hired had superior qualifications than the discriminatees who were not hired. The journeymen and ap- prentice carpenters and journeymen millwrights were clearly more qualified than the applicants hired by Respondent. Re- spondent hired 5 carpenters, 11 skilled laborers, and 11 labor- ers. At least 8 of the 12 discriminatees clearly met the require- ments for the five carpenter positions as they were journeymen carpenters and the remaining discriminatees met the require- ments for the skilled and unskilled laborer positions. I further find that given Respondent’s conduct in this case in rejecting open union advocates for hire, its refusal to hire Miller on the ground he lied is insufficient to defeat his claim in this case for the refusal to hire him as Miller had no obligation to disclose his union affiliation at the time he initially applied. CONCLUSIONS OF LAW 1. Respondent, Innes Construction Co., Inc., is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. Michigan Regional Council of Carpenters Local 525, United Brotherhood of Carpenters and Joiners of America, AFL–CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) and (3) of the Act by refusing to hire and consider for employment the following employees: Paul Bird Thomas Hooper Nate Bitely Norman Leny William Dearing Chad Miller Chad Delano Thomas Powers Loren Devenney Jerry Voyce Gabe High Travis Williams 4. The above unfair labor practices in connection with the business engaged in by Respondent as set out above have the effect of burdening commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(1) and (3) of the Act, it shall be ordered to cease and desist therefrom and to take certain affirmative actions designed to effectuate the policies of the Act. Having found that Respondent unlawfully refused to hire Paul Bird, Nate Bitely, William Dearing, Chad Delano, Loren Devenney, Gabe High, Thomas Hooper, Norman Leny, Chad Miller, Thomas Powers, Jerry Voyce, and Travis Williams, it is recommended that compliance shall identify the five discrimi- natees who would have been hired to the five carpenter posi- tions and the remaining seven discriminatees who would have been hired to the seven skilled laborer positions. Backpay shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and shall be reduced by net interim earnings, with interest computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987). [Recommended Order omitted from publication.]