Tradesmen Intl.

TRADESMEN INTERNATIONAL 351 NLRB No. 37 579 Tradesmen International, Inc. and Carpenters Re- gional Council of Baltimore & Vicinity and In- ternational Brotherhood of Electrical Workers, Local 24 and International Brotherhood of Elec- trical Workers, Local 229 and International Brotherhood of Electrical Workers, Local 143. Cases 5–CA–26411, 5–CA–26437, 5–CA–26687, 5–CA–26692, 5–CA–27482, 5–CA–27927, 5–CA– 26412, 5–CA–26965, 5–CA–26465, and 5–CA– 26466 September 29, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH On December 1, 1999, Administrative Law Judge Martin J. Linsky issued the attached initial decision in this case. The Respondent filed exceptions and a sup- porting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The Gen- eral Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. Charging Party Carpenters Regional Council of Baltimore & Vicinity filed exceptions and a supporting brief, and the Respon- dent filed an answering brief.1 On June 7, 2000, the National Labor Relations Board remanded the case to the judge for further consideration in light of the Board’s decision in FES, 331 NLRB 9 (2000), supplemental decision 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), which sets forth the analytical framework for refusal-to-hire and refusal-to- consider allegations. After inviting and receiving briefs from the parties, the judge, on January 12, 2001, issued the attached supplemental decision. The Respondent filed exceptions, a supporting brief, and a reply brief, and the General Counsel and Charging Party filed briefs in opposition to the Respondent’s exceptions. The General Counsel also renewed his exceptions to the judge’s initial decision. The Charging Party filed exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision, the supplemen- tal decision, and the record in light of the exceptions2 and 1 The term “Charging Party” shall refer only to the Carpenters Re- gional Council, as no other charging party has filed exceptions. 2 There are no exceptions to the judge’s finding that the Respondent unlawfully refused to hire union carpenter Terry Browning, or to the judge’s dismissal of complaint allegations that the Respondent unlaw- fully refused to hire or consider for hire Michael J. McHale, Don Wright, Jerry Fitch, and Oliver Spriggs. More generally, there are no briefs and has decided to affirm the judge’s rulings, find- ings,3 and conclusions4 as modified herein and to adopt the recommended Order as modified and set forth in full below.5 The Respondent leases workers in a variety of skilled crafts to companies in the construction industry. The exceptions to the judge’s failure to address the refusal-to-consider aspect of the complaint allegations. The Charging Party excepts to the judge’s failure to find that the Re- spondent’s hiring and screening policies were inherently discriminatory and destructive of employee rights under the Act. We shall disregard those exceptions because they impermissibly enlarge upon the General Counsel’s theory of the case, which does not include any allegation that the Respondent’s hiring and screening policies were inherently dis- criminatory. Kimtruss Corp., 305 NLRB 710, 711 (1991). We shall also disregard the Charging Party’s exceptions to the judge’s dismissal of the refusal-to-hire allegations as to David Martin, George Noftsinger, James Streett, Michelle Gagnon, Robert McFaul, and Lee Edwards. The Charging Party presents no specific argument in support of those exceptions, but simply reiterates its position that the Respondent’s hiring policies were inherently discriminatory, and adopts the General Counsel’s purportedly more specific arguments related to the named individuals. The General Counsel, however, has not even filed exceptions, let alone arguments, as to those individuals. As a result, the Charging Party’s exceptions lack supporting argument and do not meet the minimum requirements of Sec. 102.46(b) of the Board’s Rules and Regulations. Accordingly, they shall be disre- garded. See Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). 3 The Respondent and the Charging Party have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 4 In his initial decision, the judge concluded that Electrico, Inc., one of the Respondents named in the consolidated complaint, committed certain violations of Sec. 8(a)(1). Those conclusions are not before the Board. After the judge’s initial decision issued, the Board granted the General Counsel’s motion to sever and remand the allegations concern- ing Electrico because Electrico had already complied with the judge’s recommended Order. 5 We have amended the remedy section of the judge’s decision to take account of our recent decision in Oil Capitol Sheet Metal, 349 NLRB 1348 (2007). We have also modified the judge’s recommended Order to conform to our decisions in Ferguson Electric Co., 335 NLRB 142 (2001), and Indian Hills Care Center, 321 NLRB 144 (1996), and to more accurately reflect the violations found. Finally, we have substi- tuted a new notice to comport with these modifications and with our decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). The General Counsel and Charging Party have excepted to the judge’s failure to order that the Respondent publish, in all of its news- paper advertisements for workers, employment applications, and con- tracts with clients, a statement indicating the Respondent’s commitment to refrain from unlawfully screening out applicants based on their union affiliation. We find it unnecessary to pass on those exceptions because the Board is providing the same remedy, on a companywide basis, in Tradesmen International, 351 NLRB 400 (2007). Chairman Battista dissented in Tradesmen and would not grant the remedy sought here for the reasons given in his dissent in that case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 580 present case involves allegations that the Respondent engaged in unlawful conduct towards certain union- affiliated electricians and carpenters who sought work through the Respondent’s labor leasing service.6 The judge found that the Respondent violated Section 8(a)(1) by interrogating electrician Oliver Spriggs and violated Section 8(a)(3) by refusing to hire 16 electricians and 13 carpenters. However, the judge dismissed allegations that the Respondent also violated Section 8(a)(3) by: (1) delaying the hire of electrician Ivan Anderson; (2) dis- charging carpenter Mark Bortle from a construction pro- ject and thereafter refusing to refer him to other construc- tion projects; and (3) refusing to hire carpenter John Ste- ven Victor. The Respondent excepts to the judge’s above unfair labor practice findings. The General Counsel excepts to the judge’s dismissal of the 8(a)(3) allegations as to Anderson, Bortle, and Victor. The Charging Party also excepts to the findings in regard to Bortle and Victor. For the reasons discussed below, we affirm the judge’s findings that the Respondent violated Section 8(a)(3) by refusing to hire 16 union-affiliated electricians and 13 union-affiliated carpenters, and we affirm the judge’s dismissal of the 8(a)(3) allegations as to union-affiliated applicants Bortle and Victor. However, we reverse the judge’s finding with respect to union-affiliated electri- cian Anderson, and find that the Respondent violated Section 8(a)(3) by delaying his hire. Finally, we reverse the judge’s finding that the Respondent violated Section 8(a)(1) by interrogating union-affiliated electrician Spriggs, and we dismiss that allegation. 1. The Respondent unlawfully refused to hire 16 union electricians and 13 union carpenters In 1996, the Respondent began recruiting skilled craftsmen for its newly opened operations in Linthicum, Maryland.7 Twenty-eight union-affiliated electricians and carpenters sought work with the Respondent during that year.8 An additional union-affiliated carpenter ap- plied for work with the Respondent in October 1997. 6 We do not rely on the judge’s characterization of some of those in- dividuals as “salts,” or his overly broad definition of a “salt” as “a union member who applied for work with a non-union employer.” Under Board law, salts are “individuals, paid or unpaid, who apply for work with a nonunion employer in furtherance of a salting campaign.” Oil Capitol Sheet Metal, 349 NLRB 1348, 1348 fn. 5 (2007) (emphasis added). A “salting campaign,” in turn, is defined as a campaign in which a union sends its member(s) to an unorganized jobsite “to obtain employment and then organize the employees.” Tualatin Electric, 312 NLRB 129, 130 fn. 3 (1993), enfd. 84 F.3d 1202 (9th Cir. 1996). 7 All dates hereafter are in 1996, unless otherwise indicated. 8 The electricians contacted the Respondent about work from Janu- ary through April. The carpenters contacted the Respondent about work from February through October. None of those craftsmen was offered a job by the Re- spondent until after unfair labor practice charges were filed in this case. In his initial decision, the judge found that the Re- spondent unlawfully refused to hire the union-affiliated craftsmen because of their union affiliation. Following the Board’s remand of this case for reconsideration under FES, supra, the judge recited the FES framework for analyzing refusal-to-hire allegations and summarily reaf- firmed his earlier findings. The Respondent excepts to the judge’s summary approach on remand to the refusals to hire, and argues that analysis of the facts relevant to each FES element would reveal that the Respondent did not violate the Act in regard to any of the 29 craftsmen at issue. On the contrary, we find that a closer analysis of the FES elements fully supports the judge’s findings. In order to establish a discriminatory refusal to hire under FES, the General Counsel must show that (1) the employer was hiring, or had concrete plans to hire, when the alleged refusal to hire occurred; (2) the applicants had experience or training relevant to the announced or gen- erally known requirements of the positions for hire; and (3) antiunion animus contributed to the decision not to hire the applicants. FES, supra at 12. Once the General Counsel has made this showing, the burden shifts to the respondent to show that it would not have hired the ap- plicants even in the absence of their union activity or affiliation. Id. With regard to the first FES element, the record evi- dence reflects that the Respondent was either hiring or had concrete plans to hire when each of the 29 alleged discriminatees applied for work. The Respondent hired at least two electricians and at least three carpenters per month during the relevant time period—i.e., from Janu- ary through April for the electricians, and from February through October, and also in October 1997, for the car- penters. Moreover, the Respondent advertised in the local newspapers for electricians and carpenters during nearly every relevant month.9 Records of the Respon- dent’s interview appointments further indicate that the Respondent was interviewing for both electricians and carpenters when most of the alleged discriminatees ap- plied. Notwithstanding that evidence of fairly continuous hir- ing of electricians and carpenters throughout the relevant time periods, the Respondent maintains that it was not hiring when union electricians Kevin Balbo and John Kroupa applied. Balbo called the Respondent to apply for electrical work on March 18; Kroupa called for the 9 The sole exception is the month of March, when the Respondent did not run any advertisements for electricians. TRADESMEN INTERNATIONAL 581 same purpose on March 28. They each mentioned their union affiliation to the Respondent and they each were told that the Respondent would be in touch when there was work available. The Respondent never contacted either of them.10 The Respondent correctly points out that it was neither advertising for nor interviewing electricians in late March when Balbo and Kroupa called. Therefore, the Respondent argues, it has established that it was not hir- ing at the time. The record evidence, however, indicates that the Respondent hired an electrician on March 15, just 3 days before Balbo called, and interviewed an elec- trician on April 1, just 4 days after Kroupa called. In light of this evidence, as well as the evidence that the Respondent was hiring fairly continuously throughout the rest of the year, and the overarching reality that the Respondent was attempting to build a roster of employ- ees for its newly opened labor leasing operations in Maryland, we find that the Respondent was indeed hiring or had concrete plans to hire when Balbo and Kroupa called about work. See Shisler Electrical Contractors, 349 NLRB 840, 841 (2007) (finding hiring element of FES satisfied where the employer interviewed and hired an employee within days of alleged discriminatee’s ap- plication); Leiser Construction, LLC, 349 NLRB 413, 417 (2007) (finding hiring element of FES satisfied where the employer hired employees shortly before and after union applicants applied, and advertised for and hired employees throughout the rest of the relevant time period). With regard to the second FES element, it is undis- puted that all of the union-affiliated electricians at issue “had experience or training relevant to the announced or generally known requirements of the positions for hire.” FES, supra at 12. It is similarly undisputed that most of the union-affiliated carpenters met the announced or gen- erally known requirements of the positions for hire. However, the Respondent argues that six of the union carpenters lacked the necessary drywall experience for the positions that were available when they applied.11 The Respondent’s arguments in this regard are meritless. The record evidence establishes that the Respondent was advertising for and actually hiring both carpenters and drywall mechanics when five of the six carpenters in question (Aldridge, Whye, H. Pestridge, W. Pestridge, and Clopein) applied. Regardless of their qualifications 10 The Respondent did not contact Balbo until the following year, when Balbo renewed his efforts to gain employment with the Respon- dent. By that time, Balbo’s name had already appeared in an unfair labor practice charge. 11 Those carpenters are Ed Thuerrauch, Tim Aldridge, Robert Whye, Horace Pestridge, William Pestridge, and William Clopein. to perform drywall work, those carpenters at least had experience relevant to the many general carpentry posi- tions for which the Respondent was hiring. The remaining carpenter at issue, Thuerrauch, had drywall experience relevant to the drywall mechanic po- sition for which he applied. Nonetheless, the Respondent claims that Thuerrauch lacked the specialized experi- ence—in taping or finishing drywall—that was required for the specific positions that ultimately became avail- able. FES, however, does not require the General Coun- sel to prove that an alleged discriminatee had experience to perform whatever tasks ultimately were performed in the positions for hire. Rather, under FES, a showing of experience relevant to the stated or “generally known” requirements of the positions for hire is sufficient. As Thuerrauch had such experience, we find that the Gen- eral Counsel has made the requisite showing as to Thuer- rauch’s qualifications.12 With regard to the third FES element, we find, for the reasons stated by the judge, that the Respondent had an- tiunion animus and that such animus contributed to the decision not to hire the applicants at issue.13 The Re- spondent’s animus is also evident from its untruthful statements to union-affiliated applicants about the avail- ability of carpenter and electrician positions. The cred- ited testimony of union electrician Carmen Voso indi- cates that when Voso called the Respondent to check on the status of his application between February and April, the Respondent told him that “it was a little slow” and “they were still accepting applications but weren’t hiring anybody right then, weren’t putting anybody to work right then.” The record evidence, however, reflects that the Respondent hired six electricians between February and April. Similarly, as the judge found, the Respondent told union carpenter Lee Rutherford that it was not hiring when Rutherford called to apply for work on April 10. However, records of the Respondent’s interview ap- 12 The Respondent’s argument in regard to Thuerrauch is most prop- erly viewed as a rebuttal to the General Counsel’s initial FES case. Accordingly, it is the Respondent’s burden to show that, even if Thuer- rauch had experience relevant to the advertised drywall positions, he would not have been hired in any event because he did not have the specific qualifications for the positions filled or that others had superior qualifications and were hired for that reason. See Jacobs Heating & Air Conditioning, 341 NLRB 981, 982 (2004). We find that the Re- spondent has failed to carry that burden. The Respondent cites no evidence to support its claim that Thuerrauch was unqualified to per- form taping or finishing work. Nor has the Respondent shown, through the incomplete applications it put into evidence, that all of the individu- als who were hired to perform taping work had specific taping or fin- ishing experience. 13 We do not rely, however, on the judge’s inference of animus based on the Respondent’s failure, in its recruiter guidelines, to identify labor unions as a preferred source for workers. See Pollock Electric, Inc., 349 NLRB 708, 710 (2007). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 582 pointments show that the Respondent was interviewing carpenters when Rutherford called and hired two of them within 1 week of Rutherford’s call. We find that the Re- spondent’s false statements to Voso and Rutherford about its hiring needs constitute further evidence of the Respondent’s antiunion animus. See Precipitator Ser- vices Group, Inc., 349 NLRB 797, 799 (2007) (finding animus based on employer’s lying to union applicants about availability of jobs); Jesco, Inc., 347 NLRB 903, 905, 907–908 (2006) (same).14 The Respondent argues that it did not even know that certain of the alleged discriminatees were affiliated with a union, and therefore could not have discriminated against them based on that affiliation.15 We find no merit in that argument. The record evidence establishes that the Respondent had, at the very least, probative informa- tion—i.e., statements from the alleged discriminatees regarding their official service on behalf of the union, union-sponsored training, or prior receipt of union-scale wages—from which to surmise or conclude that the al- leged discriminatees were union members. That infor- mation is sufficient to support a finding of employer knowledge of union activity. See McKee Electric Co., 349 NLRB 463, 464 (2007) (finding that “even where an employer is not aware of an individual’s actual union status, discrimination aimed at ‘suspected’ union activ- ists is unlawful”); Martech MDI, 331 NLRB 487, 488 (2000) (observing that “it is not necessary for the Gen- eral Counsel to prove that the employer had specific knowledge of an employee’s union interest or activities where other circumstances support an inference that the employer had suspicions or probable information on the identity of union supporters”), enfd. 6 Fed.Appx. 14 (D.C. Cir. 2001). In addition to contesting certain aspects of the General Counsel’s initial case under FES, the Respondent argues that it would not have hired the alleged discriminatees regardless of their union affiliation. In particular, the Respondent argues that two of the alleged discriminatees, Michael Berg and Tim Fleischmann, were not bona fide applicants and therefore were lawfully denied employ- ment.16 In making that argument, the Respondent relies 14 We agree with the judge’s finding that the Respondent’s hiring of applicants who had remote ties to the Union or applicants who had repudiated their ties to the Union does not negate the strong evidence of antiunion animus. See Hi-Tech Interiors, Inc., 348 NLRB 304, 304 (2006). 15 The Respondent here refers to alleged discriminatees Nathan “Pete” Love, George Silling, Lee Rutherford, Cy Cicone, Mark Gerke, Randy Gerke, and Joseph Kankowsky. 16 In its exceptions, the Respondent asserts that certain additional in- dividuals were not bona fide applicants. We disregard those excep- tions, pursuant to Sec. 102.46(b) of the Board’s Rules and Regulations, solely on the fact that both Berg and Fleischmann ex- pressed an interest in organizing workers for their respec- tive unions when they applied for work with the Respon- dent. An interest in organizing, however, is not incom- patible with a genuine interest in employment, and cer- tainly does not, in and of itself, render an applicant unfit for employment. See NLRB v. Town & Country Electric, 516 U.S. 85, 92–96 (1995); Sproule Construction Co., 350 NLRB 774, 775 (2007). The Respondent’s argu- ment to the contrary—and, particularly, Recruiter John Conway’s testimony that Berg did not have the Respon- dent’s “best interests” in mind because he wanted to or- ganize the Respondent’s employees—does not excuse the Respondent’s refusal to hire Berg and Fleischmann, but rather serves as further evidence of the Respondent’s antiunion animus. See Shisler Electrical Contractors, supra at 840 (finding animus based on respondent’s deci- sion not to employ an applicant for fear that he would organize employees). The Respondent also argues that several of the alleged discriminatees would not have been hired, regardless of their protected activity, because they had previously earned wages that made them unsuitable for the lower- paying jobs that the Respondent had available during the relevant time period. In this regard, the Respondent cites an asserted wage comparison policy.17 The Board has held that “an employer may defend its failure to hire un- ion applicants by showing that it acted pursuant to a fa- cially nondiscriminatory hiring policy, provided that the employer consistently adhered to the policy.” Jesco, Inc., supra at 906–907. We find, however, that the Re- spondent has failed to make out such a defense here. The Respondent’s reliance on its asserted wage com- parison policy fails because the Respondent did not pro- duce complete applications for all of the employees who were hired during the period when the alleged discrimi- natees applied. The Respondent therefore failed to pro- duce sufficient evidence to permit an assessment of its claim that it used wage histories to match applicants with vacancies. What documentary evidence there is, more- over, actually tends to undercut the existence of a consis- tently applied policy: employees Kevin T. Blanche and Christopher Spurr were hired by the Respondent, even though their applications reflected a history of wages both higher than those offered by the Respondent and comparable to those of the alleged discriminatees. In these circumstances, we find that the Respondent has failed to show, by a preponderance of the evidence, that as they lack supporting argument. See Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). 17 The Respondent offered only testimonial evidence from its own officials to establish the existence of such a policy. TRADESMEN INTERNATIONAL 583 it lawfully refused to hire certain of the alleged discrimi- natees based on a consistently applied wage comparison policy. See C&K Insulation, Inc., 347 NLRB 773, 774 (2006) (observing that “[a]n employer cannot simply present a legitimate reason for its action but must per- suade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected activity”). As the Respondent has failed to carry its FES rebuttal burden by any of the foregoing arguments, we agree with the judge that the Respondent’s refusal to hire the 29 alleged discriminatees violated Section 8(a)(3). 2. The Respondent unlawfully delayed the hire of union-affiliated electrician Ivan Anderson Anderson, an experienced electrician, filed an applica- tion with the Respondent on January 3. Anderson’s ap- plication form reflects that he earned $15 per hour for the first 3 months of the previous year and $21 per hour for the remainder of the year. Notwithstanding this wage history, Anderson indicated on the first page of his appli- cation form that he would work for “shop wages”—i.e., whatever the available jobs paid. The Respondent ulti- mately offered Anderson a job paying $13 per hour on April 10. In the roughly 3-month period between Anderson’s application and the Respondent’s job offer, the Respon- dent hired 15 electricians: 9 in January, 3 in February, and 3 in March. Among the hired electricians was Kevin T. Blanche, whose January 19 application reflects that he had earned between $22.20 and $22.70 per hour for the first 7 months of the previous year and $15 per hour for the remainder of that year. Several pages of Blanche’s application were not submitted into evidence, including the first page of the application containing the Respon- dent’s inquiry regarding the applicant’s desired hourly wage. However, the Respondent’s recruiter’s notes on Blanche’s application were submitted into evidence. Those notes include a reference to a union apprenticeship that Blanche apparently completed, immediately fol- lowed by the notation, “BLACKBALLED.” Blanche was offered a job paying $13.50 per hour on January 26. The judge found that “in light of the fact [that] Ander- son was actually offered a job three months after he filled out an application,” the Respondent did not violate Sec- tion 8(a)(3) in its treatment of Anderson. The General Counsel excepts, maintaining that the Respondent’s de- lay in hiring Anderson was unlawful. We find merit in the General Counsel’s exceptions. Contrary to the judge’s suggestion, the fact that the Respondent eventually made an offer of employment to Anderson does not preclude a finding that the Respon- dent unlawfully delayed making that offer because of union considerations. See Savoy Brass Mfg. Co., 241 NLRB 51, 51 fn. 2 (1979) (finding delay in hiring to be an unfair labor practice, even though the discriminatees were eventually offered jobs), enfd. 628 F.2d 1345 (2d Cir. 1980). It is undisputed (1) that the Respondent was hiring or had concrete plans to hire when Anderson ap- plied, and (2) that Anderson had experience and training relevant to the positions that became available between January and April. See FES, 331 NLRB 9, 12 (2000), supplemental decision 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). Moreover, as discussed above, the General Counsel has carried his initial burden of showing that the Respondent had animus against appli- cants with current ties to a union. The Respondent maintains that it delayed the hiring of Anderson, not because of any antiunion animus, but be- cause Anderson was “too high priced.” However, the Respondent does not explain why Blanche, who applied after Anderson and was equally “high priced” based on his wage history, was offered a job just 1 week after he applied. The disparate treatment of Anderson and Blanche is all the more suspect given the notation on Blanche’s application that he had been “blackballed” from his union apprenticeship program. In these circum- stances, we find that the Respondent has not met its FES burden of proving, by a preponderance of the evidence, that it actually would have delayed hiring Anderson until April 10 even in the absence of his union activity. We accordingly reverse the judge’s finding, and find that the Respondent’s delay violated Section 8(a)(3). 3. The Respondent did not unlawfully discharge union- affiliated carpenter Mark Bortle and thereafter refuse to refer him for other work The Respondent hired Mark Bortle on June 17.18 Bortle was referred by the Respondent to a project with M3 Building Design (M3) on Friday, June 21. During his lunch hour on that project, Bortle wore a union pin, produced a lunchbox with union stickers on it, and began discussing the Union with other employees on the pro- ject. Dennis Meller, a supervisor for M3, cut lunch short after he heard Bortle talking to other employees about the Union. Shortly thereafter, Meller dismissed the em- ployees, except for Bortle, for the day. Before leaving the worksite, Meller told Bortle to return the next day for work. Bortle completed his work in the absence of the rest of the crew on June 21, and reported for work the next day, Saturday, June 22, as instructed, but found no one at the 18 Bortle was a union member, but told the Respondent that he was “dropping out” because he did not like paying dues and was not getting enough work. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 584 worksite. After some time, as no one arrived for work, Bortle left. On Monday, June 24, Bortle went to the Re- spondent’s office and informed Field Representative Ed Stoeker that he had reported for a second day of work on the M3 project but had found no one there.19 Stoeker responded that he did not have any other jobs for Bortle at that moment. Bortle’s testimony and the Respondent’s records indi- cate that the Respondent offered Bortle a job on Tuesday, June 25, the day after his conversation with Stoeker. Bortle declined that job because he had already secured other work. At the end of the week, on Friday, June 28, the Respondent offered Bortle another job. Bortle de- clined that job, as well, indicating that the worksite was too far away. Stoeker at this point mentioned to Bortle that a job at a closer location could be coming up in the next week, and Bortle stated that he would be interested in such a job. Bortle, however, did not contact the Re- spondent to follow up on this potential job or any other job with the Respondent, nor did the Respondent contact Bortle with additional offers of work. Bortle was later dropped from the Respondent’s field employee availabil- ity list on July 10. Bortle testified that he knew, from his orientation with the Respondent, that he needed to keep in touch with the Respondent after completing each of its job assignments, to ensure that he would be considered for future assignments.20 The judge dismissed the General Counsel’s allegations that the Respondent (1) is liable, as a joint employer with M3, for Bortle’s unlawful discharge from an M3 job21 and (2) independently violated Section 8(a)(3) by refus- ing to refer Bortle to other clients after his discharge from the M3 job. The judge did not separately analyze those two allegations, but instead simply found that “Tradesmen did not discriminate against Bortle because it promptly offered him a job which he turned down and neither Bortle nor Tradesmen contacted each other again.” In its exceptions, the General Counsel contends, first, that the judge should have found the Respondent liable for Bortle’s discharge from M3 on a joint-employer the- ory, pursuant to Capitol EMI Music, 311 NLRB 997 (1993), enfd. 23 F.3d 399 (4th Cir. 1994). Second, the 19 By June 24, the Respondent had received word from Meller that Bortle had not performed satisfactorily on the M3 Building Design job—Bortle had “only finished around 25 sheets” of drywall. 20 The General Counsel acknowledges that, at the orientation session Bortle attended, the Respondent told employees “they had to call the office when out of work on a particular job or when interested in work.” 21 The judge invited the General Counsel to seek summary judgment against M3 Building Design, as that employer failed to file an answer to the complaint. General Counsel argues that the judge erroneously dis- missed the refusal-to-refer allegation without considering evidence that the Respondent failed to refer Bortle to available area jobs and disparately removed him from its field employee availability list. For the reasons ex- plained below, we are not persuaded by the General Counsel’s arguments that the Respondent discriminated against Bortle as alleged. We accordingly affirm the judge’s dismissal of the relevant complaint allegations. In Capitol EMI Music, supra, the Board set forth the circumstances under which one employer’s conduct in violation of Section 8(a)(3) will be attributed to a nonact- ing joint employer. The General Counsel must first show that the employers in question are joint employers of a group of employees and that one of the joint employers engaged in discrimination against an employee or em- ployees in the jointly managed work force. Capitol EMI Music, supra at 1000. If the General Counsel makes that showing, the burden shifts to the nonacting employer who seeks to escape liability for the unlawful discrimina- tion to show that “it neither knew, nor should have known, of the reason for the other employer’s action or that, if it knew, it took all measures within its power to resist the unlawful action.” Id. Here, even assuming that the General Counsel has carried his initial Capitol EMI burden, we find that the Respondent has carried its re- sponsive burden of showing that it neither knew nor should have known of the unlawful reason for M3’s ac- tion against Bortle. The Respondent’s records indicate that Meller, a su- pervisor for M3, provided feedback to the Respondent about Bortle. None of the recorded feedback, however, included any reference to Bortle’s union activity while at the M3 job, much less any intimation that M3 wanted to let Bortle go because of his union activity. There is also no evidence to suggest that the Respondent would have discovered what had happened with Bortle in the normal course of its affairs: none of the Respondent’s agents was present at the M3 worksite, except to introduce Bortle and set up his work at the beginning of the workday.22 Notwithstanding that evidence, the General Counsel contends that the Respondent’s knowledge of the unlaw- ful reasons for Bortle’s discharge may be inferred from certain other evidence in the record. In particular, the General Counsel relies on the credited testimony of Ted Cook and Jim Correll, one of them an official connected 22 The factual situation here is distinguishable from that in Trades- men International, 351 NLRB 27 (2007), where we found the respon- dent liable for its client’s unlawful discharge of a jointly managed employee. In that case, unlike here, the respondent was expressly told by its client that the jointly managed employee had been discharged for union activity. TRADESMEN INTERNATIONAL 585 with a small electrical contracting company,23 that if they used the Respondent’s labor leasing service, they could return an employee to the Respondent for any reason, including the employee’s union activity. We are not per- suaded by that evidence. The Respondent’s willingness, as a general matter, to take an employee back from a client based on union con- siderations does not suggest that the Respondent knew, in the specific circumstances here, that Bortle was dis- charged by M3 because of his union activity. Signifi- cantly, M3 gave the Respondent a facially legitimate reason for the discharge—Bortle’s asserted slowness in hanging drywall—and there is no basis for concluding that the Respondent unreasonably accepted that explana- tion. We accordingly decline to draw the inference of knowledge requested by the General Counsel, and we find that the Respondent has carried its burden under Capitol EMI Music of showing that it was not complicit in M3’s discharge of Bortle for union activity. With regard to the allegation that the Respondent unlawfully refused to refer Bortle for work following his discharge from M3, we observe, in the first place, that the Respondent offered Bortle two different jobs follow- ing his discharge. The General Counsel contends that the Respondent nonetheless discriminated against Bortle by failing to refer him to additional jobs that subsequently became available, and by later dropping him from its field employee availability list entirely. We disagree. After receiving two job offers from the Respondent, Bortle failed to maintain contact with the Respondent, which he knew he had to do in order to retain his eligibil- ity for work.24 In these circumstances, we find that the Respondent did not treat Bortle disparately, as the Gen- eral Counsel maintains, or otherwise unlawfully refuse to refer Bortle for work after his discharge from M3. 4. The Respondent did not unlawfully interrogate union-affiliated electrician Oliver Spriggs Spriggs visited the Respondent’s office three times— for interviews in May and October, and for an orientation session in December—before he was hired by the Re- spondent. On one of those occasions, while Spriggs was seated in the Respondent’s waiting room with his union hardhat on his knee, one of the Respondent’s recruiters, John Conway, asked Spriggs whether he was a member 23 As explained in the judge’s decision, Jim Correll was a union or- ganizer who posed as an assistant to Cook at certain sales meetings with the Respondent. 24 We find that the General Counsel’s example of one person, Larry Gruntman, among the hundreds of individuals on the Respondent’s employment eligibility list, who was called for a job despite not main- taining contact, does not prove the General Counsel’s assertion that Bortle was treated disparately. of a union. Spriggs responded that he was, and Conway made no further comment on the subject. The judge found that Conway’s question directed to Spriggs was coercive and therefore violated Section 8(a)(1). We dis- agree. Conway’s single question regarding Spriggs’ un- ion affiliation would not reasonably have been coercive in the circumstances, as Spriggs’ hardhat already con- veyed his support for a union and Spriggs was not other- wise subject to coercion of any kind during the conversa- tion. See Boydston Electric, 331 NLRB 1450, 1450 fn. 5 (2000) (finding that single question regarding union membership, of an applicant whose membership was already obvious, did not violate Section 8(a)(1)); see also Rossmore House, 269 NLRB 1176, 1177 (1984) (holding that totality of circumstances must be examined in as- sessing coerciveness of an interrogation), enfd. sub nom. Hotel Employees & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Accordingly, we reverse the judge’s finding of an 8(a)(1) violation based on Conway’s isolated question.25 AMENDED REMEDY Having found that the Respondent discriminatorily re- fused to hire certain individuals as indicated above, we shall order the Respondent to offer them instatement and make them whole for any loss of earnings and other benefits that they may have suffered as a result of the unlawful discrimination against them. Any backpay pro- vided to the discriminatees as a part of this make-whole remedy shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in accordance with New Horizons for the Re- tarded, 283 NLRB 1173 (1987). The duration of the backpay period for union salts Michael Berg and Tim Fleischmann shall be determined in accordance with Oil Capitol Sheet Metal, 349 NLRB 1348 (2007).26 In addi- tion, although the make-whole remedy provided for herein includes an order of instatement for all of the dis- criminatees, the instatement award for Berg and 25 Member Walsh would find, contrary to his colleagues, that Con- way’s question regarding applicant Spriggs’ union affiliation violated Sec. 8(a)(1). As indicated in the precedent cited by the judge, “[q]uestions concerning union preference, in the context of job applica- tions, are inherently coercive.” Pan American Electric, 328 NLRB 54, 54 (1999). In any event, Member Walsh would still find Conway’s question coercive even under a totality-of-the-circumstances analysis: the question was posed in the context of the Respondent’s obvious efforts to screen out union-affiliated applicants, and therefore could not reasonably have been viewed as having a legitimate purpose or as an innocent or isolated inquiry. 26 Members Liebman and Walsh dissented in relevant part in Oil Capitol. See Oil Capitol, supra 1357, et seq. Regarding the present proceeding, they recognize that the majority view in Oil Capitol is current Board law and accordingly, for institutional reasons only, they approve its application at compliance. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 586 Fleischmann is subject to defeasance pursuant to our decision in Oil Capitol if, at the compliance stage, the General Counsel fails to carry his burden of proving that Berg and Fleischmann would still be employed by the Respondent absent the discrimination against them. Oil Capitol, supra, slip op. at 7.27 ORDER The National Labor Relations Board orders that the Respondent, Tradesmen International, Inc., Linthicum, Maryland, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging employees from engaging in activi- ties on behalf of a labor organization by refusing to hire job applicants because they are members or supporters of unions. (b) Delaying the hiring of job applicants because they are members or supporters of unions. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer the individuals listed below instatement to the positions for which they applied or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privi- leges they would have enjoyed absent the discrimination against them. ELECTRICIANS Kevin Balbo Kevin Barnett Dennis Becker Michael Berg Ed Brown Robert Edwards Dennis Egbert David Henderson John Kroupa Mike Logan Nathan “Pete” Love Timothy Moist Dwayne Shambaugh George Silling Carmen Voso Neil Wilford CARPENTERS Tim Aldridge Terry Browning Cy Cicone William Clopein Tim Fleischmann Mark Gerke Randy Gerke Joseph Kankowsky Horace Pestridge William Pestridge Lee Rutherford Ed Thuerrauch Michael Victor Robert Whye 27 The Respondent may show, at compliance, that discriminatees other than Berg and Fleischmann were union salts and therefore subject to the remedial limitations set forth in Oil Capitol. See Oil Capitol, supra, slip op. at 6 fn. 22. (b) Make the individuals listed above, plus Ivan Anderson, whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against them, with interest, in the manner set forth in the amended remedy section of this Decision. (c) Within 14 days from the date of the Board’s Order, remove from its files any reference to the unlawful re- fusal to hire, or unlawful delay in hiring, the discrimina- tees named in paragraphs 2(a) and (b), above, and, within 3 days thereafter, notify them in writing that this has been done and that the refusal to hire them, or the delay in hiring them, will not be used against them in any way. (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, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its Linthicum, Maryland facility, copies of the attached notice marked “Appendix B.”28 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate 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 3, 1996. (f) 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. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 28 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the 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.” TRADESMEN INTERNATIONAL 587 APPENDIX B 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 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 discourage employees from engaging in activities on behalf of a labor organization by refusing to hire job applicants because they are members or support- ers of unions. WE WILL NOT delay the hiring of job applicants because they are members or supporters of unions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL, within 14 days from the date of the Board’s Order, offer the individuals listed below employment in the positions for which they applied or, if those positions no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights or privileges they would have enjoyed absent the discrimi- nation against them. ELECTRICIANS Kevin Balbo Kevin Barnett Dennis Becker Michael Berg Ed Brown Robert Edwards Dennis Egbert David Henderson John Kroupa Mike Logan Nathan “Pete” Love Timothy Moist Dwayne Shambaugh George Silling Carmen Voso Neil Wilford CARPENTERS Tim Aldridge Terry Browning Cy Cicone William Clopein Tim Fleischmann Mark Gerke Randy Gerke Joseph Kankowsky Horace Pestridge William Pestridge Lee Rutherford Ed Thuerrauch Michael Victor Robert Whye WE WILL make the individuals listed above, plus Ivan Anderson, whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against them, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to our unlaw- ful refusal to hire the individuals named above, and our unlawful delay in hiring Ivan Anderson, and, within 3 days thereafter, notify them in writing that this has been done and that the refusal to hire them, or delay in hiring them, will not be used against them in any way. TRADESMEN INTERNATIONAL, INC. Brenda Valentine Harris and Thomas P. McCarthy, Esqs., for the General Counsel. Kenneth B. Stark, Esq., of Cleveland, Ohio, and Vincent T. Norwillo, Esq., of Solon, Ohio, for Respondent Tradesmen International, Inc. Vincent T. Norwillo, Esq., also Counsel of Record for Respon- dent Electrico, Inc. Joel A. Smith, Esq., of Baltimore, Maryland, for Carpenters Regional Council of Baltimore & Vicinity. John M. Singleton, Esq., of Baltimore, Maryland, for IBEW Locals 24, 143, 229. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. Between July 17, 1996 and November 9, 1998 numerous charges and amended charges were filed by the Carpenters Union and Elec- tricians Union against Tradesmen International, Inc., hereinaf- ter Tradesmen, and Electrico, Inc., herein Electrico.1 On March 30, 1998, April 8, 1998, and May 21, 1998, the National Labor Relations Board, by the Regional Director for Region 5, issued Consolidated Complaints against Tradesmen and Electrico.2 Trial on the Consolidated Complaints began on July 30, 1998. On November 27, 1998 the National Labor Relations Board, by the Regional Director for Region 5, issued a com- plaint in Case 5–CA–27927 which was consolidated for trial with the instant consolidated complaints. 1 Charging Party United Brotherhood of Carpenters & Joiners, Car- penters District Council, Baltimore & Vicinity changed its name to the Carpenters Regional Council of Baltimore & Vicinity. In this litigation they will be referred to as the Carpenters Union. Charging Parties IBEW Locals 24, 143, and 229 will be referred to in this litigation as the Electricians Union. 2 The consolidated complaint named three additional employer Re- spondents, namely, M-3 Building Design, McKenzie Contracting Cor- poration, and Summit Interior Construction. M-3 Building Design never filed an Answer and the General Counsel may seek Summary Judgment before the Board. McKenzie Contracting Corporation and Summit Interior Construction entered into informal settlement agree- ments with the General Counsel, which I approved. Upon compliance with those agreements I dismissed the complaints against McKenzie and Summit on September 13, 1999. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 588 In the various complaints it is alleged that Tradesmen vio- lated Section 8(a)(1) and (3) of the Act when it unlawfully in- terrogated applicants for employment about their union status and when it refused to hire numerous union carpenter and union electrician applicants for employment because of their affilia- tion with a union and it is further alleged that Electrico violated Section 8(a)(1) of the Act when it unlawfully interrogated an employee about his union activity, unlawfully created the im- pression that union activities were under surveillance, and when it informed an employee that it would be futile to seek union representation. Tradesmen and Electrico filed Answers in which they deny that they violated the Act in any way. A hearing was held before me in Baltimore, Maryland, on 20 days between July 30, 1998 and February 11, 1999. Upon the entire record in this case, to include post hearing briefs submitted by the General Counsel, counsel for Trades- men, and counsel for the Charging Party Carpenters, and upon my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION At all material times, Tradesmen, an Ohio corporation with a office in Linthicum, Maryland, and at various other locations in the United States, including locations in the States of Ohio and Virginia, has been engaged in the business of providing skilled tradespersons to construction contractors and industrial mainte- nance enterprises. Tradesmen admits, and I find, that at all material times Tradesmen has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Electrico, a Maryland corporation with an office and place of business in Baltimore, Maryland, has been engaged as an elec- trical contractor. Electrico admits, and I find, that at all material times Elec- trico has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Tradesmen and Electrico admit, and I find, that at all mate- rial times that Carpenters Regional Council of Baltimore and Vicinity and IBEW Locals 24, 143, and 229 are labor organiza- tions within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Overview Tradesmen is a construction labor leasing company. It hires employees in a wide range of manual and mechanical skill trades. It leases these employees to its customers or clients, who are typically general contractors and subcontractors within the construction industry. An Ohio corporation, Tradesmen has offices in at least 10 states, including a facility in the Baltimore, Maryland, suburb of Linthicum, the sole location involved in the instant case. The Linthicum office opened in November 1995 and within a couple of months had the following staff on site: Hugh Boggs was general manager, John Conway was the recruiter, Jim Carmen, Ed Stoecker, Dick Gay, and Russ Hicks were field representatives, and Barbara Green was the administrative as- sistant. The recruiter was the person who did the hiring. The field representatives were the ones who secured the clients or customers, i.e., those contractors who would avail themselves of Tradesmen’s services. The administrative assistant an- swered the phone. The general manager was in an overall charge of the office. Tradesmen’s practice was to place ads in the newspaper, principally the Baltimore Sun, and applicants for employment would call. The ad generally would not contain Tradesmen’s name but would obviously have Tradesmen’s phone number. If an applicant for employment called to apply for a job the re- cruiter or general manager, if the recruiter was busy too to take the call, would talk to the applicant, do a prescreen on the ap- plicant, i.e., fill out a prescreen form which contained certain particulars about the applicant. If the applicant looked like a promising candidate the applicant would be scheduled for an interview. The interview would generally be conducted by the recruiter but sometimes by the general manager. If the inter- view went well the applicant would be hired but before he or she went to work for a customer or client, the applicant would attend an orientation run by Tradesmen. In rare emergency situations the applicant would go to work for the customer right away and take the orientation at night when working during the day for the customer. It is alleged in this case that Tradesmen failed and refused to hire certain applicants for employment because of their mem- bership in and affiliation with a union. If so then Respondent violated the Act. See, e.g., Big E’s Foodland, 242 NLRB 963 (1979); M.J. Mechanical Services, 324 NLRB 812 (1997); M&M Electric Co., 323 NLRB 361 (1997). The elements of such a violation are as follows: an applicant applied for a job that the employer was desiring to fill and the applicant was qualified for the job, the refusal to hire the applicant, a showing that the applicant was or might be expected to be a union sup- porter or sympathizer, and further a showing that the employer knew or suspected such sympathy or support, maintained an animus against it, and refused to hire the applicant because of such animus. See, e.g., Fluor Daniel, Inc., 311 NLRB 498 (1993), enforced in part and remanded in part 102 F.3d 818 (6th Cir. 1996). Basically union applicants from two skilled crafts, i.e., elec- tricians and carpenters, applied for work with Tradesmen and were not hired. Not all applicants who called in for a job were granted an in- terview and not all who were interviewed were hired. Trades- men claims it told applicants to keep in touch and if they did not hear from Tradesmen they should call Tradesmen. Some of the alleged discriminatees in this case testified they were told to keep in touch and others testified that they were told that they would be called by Tradesmen and not told to call Tradesmen. I will treat the union electrician applicants first and will then address the union carpenter applicants. An indication of Tradesmen’s views regarding unions may be gleamed from General Counsel Exhibit 10 which is Trades- men’s Recruiter Manual. The principal person making hiring decisions for Tradesmen is the recruiter who was John Conway TRADESMEN INTERNATIONAL 589 for most of the time in this case. The Recruiter Manual lists the resources used by Tradesmen’s recruiters to locate skilled la- bor. The Recruiter Manual suggests as sources of skilled labor (1) newspaper advertising, (2) referrals from other employees, (3) Tradesmen’s own inactive files, (4) the bureau of unem- ployment, (5) trade schools, (6) high school job fairs, (7) the Veterans Administration, (8) employees who have been laid off by Tradesmen’s clients, and (9) local parole boards. Unions are not listed as a source for skilled labor. Not even in a pinch. The fact that Tradesmen will recruit employees from the local parole board and not from a Union speaks volumes about Tradesmen’s opinion of unions and union affiliation. The applications filled out at the interview state that the ap- plication will be active for 90 days for consideration and after that the applicant must reapply. The applicant is hired and paid by Tradesmen at an hourly rate. The employee submits paperwork form the customer to establish how many hours the employee worked for the cus- tomer. The customer pays Tradesmen for the labor at a rate higher obviously, than Tradesmen pays the worker and this is where Tradesmen makes its profit. It is the position of Tradesmen that the alleged discrimina- tees in this case—both the electricians and the carpenters— were qualified electricians and carpenters and Tradesmen does not question their skills as craftsmen except that with respect to certain drywall carpentry work Tradesmen would not want just any qualified carpenter but one with experience in drywall work. B. Union Electrician Applicants for Employment Between January 4 and October 7, 1996, 21 journeymen electricians who were members of either IBEW Local 24, Local 143, or Local 229 applied for positions with tradesmen. It is alleged that they were either not hired because of their union affiliation or, in a few cases where they were offered a job, there were substantial delays in their being offered employment because of their union affiliation. 1. Ivan Anderson Ivan Anderson is a member of IBEW Local 24, which is headquartered in Baltimore, Maryland. He filled out an appli- cation for work with Tradesmen on January 3, 1996, after being called in for an interview following his call to Tradesmen. Anderson had called Tradesmen at the suggestion of Local 24. Anderson had worked as an electrician for 27 years. Based on his application it was obvious to Tradesmen that he was union affiliated. Although Anderson said he would take a job for shop wages, i.e., whatever the job paid, and credibly testified that he called Tradesmen many times after he filled out his application he was not offered a job by Tradesmen until April 10, 1996. Tradesmen witness Ed Stoecker, who was no longer in the employ of Tradesmen when he testified before me, claimed that Anderson, he thought, was too high priced for available jobs until April because Anderson’s work record showed that he worked higher paid jobs in the past. Anderson was offered a job, which he accepted, on April 10, 1996, before the first unfair labor practice charge in this case, July 17, 1996, was filed against Tradesmen. According to General Counsel Exhibits 130 and 131, 15 electrician jobs were filled by Tradesmen in the 3-month period between the time Anderson applied for a job in January 1996 and received an offer of employment in April 1996. However, in light of the fact Anderson was actually offered a job three months after he filled out an application I conclude that Tradesmen did not violate the Act in its treatment of Anderson. 2. Carmen Voso and George Silling Carmen Voso saw a Tradesmen ad for electricians in the newspaper. He called Tradesmen and was called in for an in- terview. Voso has been a member of IBEW Local 24 in Baltimore for 25 years and went to the interview wearing a union hat and jacket and accompanied by a fellow union member George Silling. Both were interviewed on January 29, 1996. Voso testified before me. He impressed me as an honest and forthright witness. I credit his testimony in its entirety. Silling never testified but his application is in evidence as General Counsel Exhibit 39 and reflects extensive experience and clear union affiliation. Neither Voso nor Silling were offered jobs by Tradesmen. Following his interview and submission of his application on January 29, 1996, Voso called Tradesmen repeatedly to check on the status of his application. He called on February 6, 12 and March 6, 18, and 26, and April 15 or a total of 6 times. Tradesmen never had anything for him. I conclude that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Carmen Voso. I note that pursuant to General Counsel Exhibits 130 and 131 Tradesmen hired three electricians in February 1996, three in March 1996, four in April 1996, and three in May 1996. In reaching the conclusion I reach regarding Voso I also rely on the evidence of union animus set forth below. The only difference between Voso and Silling is that there is no evidence of follow-up calls to Tradesmen by Silling. I place great weight on the fact that they interviewed with Tradesmen on the same day. One of the first things I learned in law school is that “the law abhors a vain act.” To reasonably suggest that Silling, if he called Tradesmen, would have been hired where Voso called Tradesmen numerous times and was not hired is to engage in a flight of fancy. Accordingly I conclude that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire George Silling. 3. David Henderson David Henderson is a long time electrician and a member of IBEW Local 24 in Baltimore. Both in response to a suggestion from union organizer Jim Correll, who had seen a Tradesmen ad, and because Henderson saw the same ad himself he called Tradesmen and was invited in for an interview and to fill out an application, which he did on January 31, 1996. He was called in for an interview even though he had disclosed to general manager Hugh Boggs over the phone that he (Henderson) was a member of IBEW Local 24. At the interview Henderson wore a union T-shirt. Hender- son was interviewed by recruiter John Conway and I credit Henderson’s testimony that he told Conway that he (Hender- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 590 son) would work for $13 an hour. Conway told Henderson that he was going to check Henderson’s references and would be in touch. Henderson was not told he had to call Tradesmen. Henderson called Tradesmen once but Conway wasn’t there. Henderson was never contacted by Tradesmen. Tradesmen, through Conway, claims that Henderson was not offered a job because Henderson had been making more money in prior jobs than they could get him and that Henderson didn’t keep in touch. In fact, Henderson had called one day, told Conway he would work for $13 an hour, Tradesmen continued to run ads and hired electricians as noted above in the discussion of union applicants Voso and Silling. Considering also the evidence of union animus below I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire David Henderson. Indeed after Henderson applied he contin- ued to see ads in the paper run by Tradesmen seeking electri- cians. 4. Neil Wilford Neil Wilford has been an electrician for 12 years and is a member of IBEW Local 24. Union organizer Jim Correll told Wilford about ads Tradesmen was running in the paper for electricians. Work was slowing down and there were a lot of union electricians “on the bench,” i.e., out of work. He called Tradesmen and was asked in for an interview even though he said over the phone to Hugh Boggs that he was af- filiated with a union. Wilford was interviewed and filled out an application on January 30, 1996. At the interview Wilford wore a “Union Yes” button. After the interview, Wilford called Tradesmen twice about work although he had not been told that he had to call Tradesmen. Wilford was not offered a job by Tradesmen until just prior to his testifying before me on September 14, 1998. Electrician jobs were filled by Tradesmen in February, March, April, and May of 1996 and considering all the facts, to include the union animus set forth below I find that Tradesmen violated Section 8(a)(1) and (3) when it failed and refused to hire Neil Wilford. 5. Michael J. McHale Michael J. McHale did not testify. However, his prescreen and application, which he filled out February 2, 1996, reflected that he was a volunteer organizer for IBEW Local 24, worked for a known union contractor, and was willing to work for whatever wages Tradesmen paid. Tradesmen did not offer a job to McHale. There is no evi- dence that McHale was told he would be called by Tradesmen. There is no evidence of any follow up calls being made by McHale to Tradesmen. In light of the record I do not conclude that Tradesmen vio- lated the Act with respect to Michael McHale. 6. Michael Berg Michael Berg has been an electrician for 16 years. He has a master’s license, which is fairly rare and demonstrates out- standing skills, and has been a member of IBEW Local 24 since 1977. At the suggestion of union organizer Jim Correll, Berg called Tradesmen and spoke with general manager Hugh Boggs who told him to call John Conway. He called Conway and was scheduled for an interview on February 2, 1996. Berg was interviewed by Conway on February 2, 1996. Berg was wearing a union jacket and had listed union contrac- tors on his application and noted that he was a union organizer. During the interview Conway said to Berg “nice jacket.” Berg was not told after the interview that he had to call Tradesmen but he did anyway calling three times. He was never called by Tradesmen and not offered a job. Conway testified that because Berg’s interest in applying for work for Tradesmen was to organize Tradesmen’s employees therefore Berg didn’t have the best interests of Tradesmen in mind and he was not hired. In light of the above admission that Berg was not hired be- cause of expected protected concerted activity on his part to- gether with the fact that jobs for which Berg was qualified were filled and considering Tradesmen’s union animus set forth be- low I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Michael Berg. Tradesmen did offer a job to Berg some three weeks before he testified before me on August 7, 1998. 7. Kevin Barnett Kevin Barnett is also a master electrician. He has been an electrician for 24 years and is a member of IBEW Local 24. He called Tradesmen for a job at the suggestion of his union busi- ness agent. He filled out an application and was interviewed on February 2, 1996 by recruiter John Conway. At the interview Barnett wore a union button and had a union pen and pencil set in his breast pocket. Barnett was told that he would get a call from Tradesmen. He was not told he had to call Tradesmen. Barnett called Tradesmen one time and left his home phone number. Thereaf- ter he called six to eight times more up to August 1996. On one occasion when he called Conway told him that he (Conway) would call Barnett if anything developed. Barnett checked the want ads in the paper and saw that Tradesmen, following his interview, was still advertising for electricians. Tradesmen, through Conway, claimed he didn’t hire Barnett because, as a union electrician Barnett made more money than Tradesmen could offer. However, Barnett was never asked if he would work for less than the money per hour he had been paid in the past. In addition, Barnett had told Tradesmen that he needed work because the job he was on was winding down. Lastly, Barnett testified there was large unemployment among the members of IBEW Local 24, i.e., 300 were out of work. Considering the above plus the union animus evidence and the fact that there were jobs for Barnett to fill for which he was qualified I conclude that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Kevin Bar- nett. TRADESMEN INTERNATIONAL 591 8. Electrician applicants from IBEW Local 229 (York, Pennsylvania) and IBEW Local 143 (Harrisburg, Pennsylvania) Many of the alleged discriminatees in this case were from IBEW Local 24, which is headquartered in Baltimore, Mary- land. As noted above there was unemployment among the mem- bers of IBEW Local 24 and many were looking for work. In- deed, then union organizer for IBEW Local 24 Jim Correll testified that 300 of its 1600 members were out of work in 1996. In addition there was high unemployment among the members of IBEW Local 229 headquartered in York, Pennsyl- vania and among the members of IBEW Local 143 headquar- tered in Harrisburg, Pennsylvania. According to Rand McNally and Company’s Standard Highway Mileage Guide, York is 46 miles by car from Balti- more and Harrisburg is 79 miles by car from Baltimore. As counsel for the parties in this case and the Board well know from countless other cases electricians, carpenters, and others employed in the construction trades often travel great distances for employment. Jim Correll from IBEW Local 24 advised union officials Jim Dougherty of IBEW Local 229 (York, Pennsylvania) and Ge- rald Hawkins of IBEW Local 143 (Harrisburg, Pennsylvania) that Tradesmen was running want ads and that some of their out of work members may want to apply with Tradesmen. Dougherty testified that after 12 years of full employment there was widespread unemployment (50 or 60 members out of a membership of 190) among the members of IBEW Local 229 in 1996. Hawkins testified that there was also widespread unemploy- ment among the members of Local 143 in 1996. Suffice it to say on February 22, 1996, Dougherty brought four members of Local 229 to the office of Local 24 in Balti- more and Hawkins also brought four members of Local 143 to the office of Local 24 in Baltimore. Jim Correll spoke to the would be job applicants and asked them, if they were interested in going to work for Tradesmen, to call and try to get an interview and in the phone call state that they had been referred to Tradesmen by Jim Correll of IBEW Local 24. Two of the eight men, i.e., James Altland and Leshek Vlo- darchyk of Local 229 did not call Tradesmen that day but the other six did, i.e., Dennis Egbert and Dennis Becker of Local 229 and Bob Edwards, Ed Brown, Tim Moist, and Dwayne Shambaugh of Local 143. All eight men also signed Local 24’s out of work book so that they might secure a job referral from Local 24. Dennis Egbert had seen a Tradesmen ad for electricians on February 21, 1996. He had been an electrician for 20 years and a member of the union for 5 years. He had been on layoff status for at least 3 months prior to February 22, 1996. He called Tradesmen from the office of Local 24 and said he had been referred by Jim Correll. The woman he spoke with (ap- parently administrative assistant Barbara Green) told him that he had to speak with Jim Conway who was too busy to speak with him because of interviews. He left his name and tele- phone number. The very next day, February 23, 1996, Egbert called Tradesmen again and spoke to the same woman and again left his name and telephone number. He never heard from Tradesmen. Phone records corroborate Egbert’s testi- mony that he called Tradesmen on February 23, 1996 from his home. This was a long distance call. Dennis Becker testified that he is a union member and has traveled to New Jersey and Delaware for jobs. He was out of work when he called Tradesmen on February 22, 1996. Becker called Tradesmen and identified himself as an out of work un- ion electrician looking for work. The woman he spoke with said Conway was busy in an interview and he should call back. The very next day Becker called again and was told by the same woman that Tradesmen was not taking applications. Becker left his name and telephone number. He never heard from Tradesmen again. Ed Brown testified that he is a union member and called Tradesmen on February 22, 1996. He told the woman who answered, who he thinks identified herself as Barbara, that he was an out of work union electrician calling from Local 24. He was put on hold and she returned to say Conway was busy all day conducting interviews. She then cut him off. He never heard further from Tradesmen nor did he call Tradesmen. Brown believes that he was among the last of the six union members from York and Harrisburg to call Tradesmen that day and was treated quite abruptly. Dwayne Shambaugh, a union member, has traveled to De- troit, Michigan, and Atlantic City, New Jersey for work. Al- though he needed to have his recollection refreshed by refer- ence to his affidavit he testified that he called Tradesmen and the woman who answered put John Conway on the phone. Shambaugh told Conway that he was from Local 143 and call- ing from Local 24’s office and was seeking employment. Conway told Shambaugh that Tradesmen was not advertising for workers right then but he took Shambaugh’s name and tele- phone number and told Shambaugh that he (Conway) would call him. Shambaugh never heard from Tradesmen. Sham- baugh was unemployed and looking for work when he called Tradesmen. Tim Moist had been an electrician for 13 years when he called Tradesmen on February 22, 1996. He has commuted as far as 60 miles for work. He was unemployed when he called Tradesmen. Moist spoke on the phone with John Conway and told Conway that he was an out of work electrician from Local 143 calling Tradesmen from the offices of Local 24 and he was looking for work and had been referred by Jim Correll. Moist left his name and phone number with Conway who told Moist that he (Conway) would call Moist or Moist could call Trades- men again. Moist never called. And Tradesmen never called Moist. Moist was the first of the group of six to call Tradesmen that day. Bob Edwards has been an electrician for 22 years. He has commuted as far as 1-1/2 hours for work. He had been unem- ployed for 3 months when he called Tradesmen. Edwards’ recollection was refreshed by his affidavit and he testified that he told the woman who answered the phone and referred him to John Conway and he also told Conway that he was calling from Local 24 because of an ad he was told about by union organizer Jim Correll. Conway said there was no ad and no interview DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 592 appointments available and that Conway would call Edwards. Edwards never heard from Tradesmen. As can be seen above the six union members who called Tradesmen on February 22, 1996, and who Tradesmen knew were affiliated with a union i.e., Egbert, Becker, Brown, Sham- baugh, Moist, and Edwards, did not get to first base regarding employment. None were even called in to fill out an applica- tion much less offered a job. The six men were salts, but “overt” salts, that is, the em- ployer was advised up front and candidly about their union affiliation. Their treatment contrasts sharply with the treatment of Leshek Vlodarchyk, who was a “covert” salt, that is, an ap- plicant for employment who did not let the employer know that he was affiliated with a union. A salt is a union member who applies for work with a nonunion employer. Vlodarchyk was trained as an electrician in his native Poland. He came to America in 1982 and has been a member of IBEW Local 229 (York, Pennsylvania) since the fall of 1994. From 1982 to 1994 he worked with nonunion contractors. Although he went to the offices of Local 24 on February 22, 1996, he did not call Tradesmen that day but merely signed Local 24’s out of work book. Approximately 1-1/2 weeks after February 22, 1996, and af- ter seeing an ad run by Tradesmen in the paper Vlodarchyk, at the suggestion of union organizer Jim Dougherty, called Tradesmen from his home. The woman who answered put John Conway on the phone. Vlodarchyk told Conway that he was out of work and men- tioned some nonunion contractors he had worked for in the past. Conway told him to come in for an interview. Vlodar- chyk had made no mention of any ties to a union. When Vlo- darchyk filled out his application and was interviewed he again made no reference to a union. Conway set him up for orienta- tion preliminary to sending him out to work but by this time Vlodarchyk had secured other employment and did not attend the orientation. In light of all the facts recited above and considering the un- ion animus of Tradesmen recited below and manifested herein and the fact that jobs were available to be filled and noting the disparate treatment accorded the six “overt” salts versus the treatment accorded the one “covert” salt I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Egbert, Becker, Brown, Shambaugh, Moist, and Edwards. Conway’s argument that because the 1996 winter was harsh that he didn’t want to hire applicants from as far away as Har- risburg and York, Pennsylvania, is not credited and I find it pretextual. Conway also claims that he understood that Vlo- darchyk was going to be staying in Baltimore hence they could pursue employment with him is also not credited. Tradesmen first brought this up in their case long after Vlodarchyk had been dismissed as a witness and Vlodarchyk was never asked by Tradesmen’s counsel anything about his moving to Balti- more. 9. Nathan “Pete” Love Nathan “Pete” Love has been an electrician for 17 years and is a long time member of IBEW Local 24. He saw a Trades- men ad in the paper and heard about Tradesmen from union organizer Jim Correll. Love was out of work when he called Tradesmen in mid February 1996. He went in for an interview on February 29, 1996. Love highlighted his union apprentice- ship training in the application and interview process. When Love left the interview Conway told him that Tradesmen would contact him. He called Tradesmen weekly for several weeks after his interview even though he was not told by Tradesmen that he had to do so. Tradesmen never contacted him about a job. Tradesmen claims it never called Love because it had no work at $15 per hour. Based on the evidence of union animus and the availability of jobs for which Love could have been hired I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Nathan “Pete” Love. 10. Don Wright Don Wright, a long time member of IBEW Local 24, called Tradesmen and was told to come in for an interview. Wright filled out an application and was interviewed on March 4, 1996. In the interview Wright told Conway that he was out of work and Wright’s application reflected union training. In early April 1996, about 1 month later, Tradesmen called Wright and offered him a job which Wright turned down be- cause he thought it was too far from his home but he told Con- way he was turning it down because he had just taken another job. He later called Conway again and said he was available. He never heard from Tradesmen and he stopped calling in April 1996. Conway doesn’t remember any calls from Wright. Since Wright was offered a job just 1 month after he was in- terviewed and turned it down I do not believe that Tradesmen violated the Act in its dealings with Don Wright. 11. Jerry Fitch Jerry Fitch has been a member of IBEW Local 24 since 1970. Fitch called Tradesmen on March 13, 1996, and got through to John Conway. He told Conway that he was certified through IBEW Local 24 and had worked for two companies in the last 20 years. Both were union contractors and right after Fitch said this he sensed a change in Conway’s attitude toward him, which had been friendly up to that point. Conway said he had nothing right then and Fitch should call Conway in 3 months. Fitch never called Tradesmen back. Conway didn’t remember Fitch and a search of Tradesmen’s record did not reveal a prescreen for Fitch. Prescreens are the forms filled out by a Tradesmen employee on everyone that calls in for an interview. The prescreen is filled out and main- tained whether the person calling in is scheduled for an inter- view or not. It is possible, of course, that a prescreen or any other docu- ment for that matter could be misplaced or lost. Based on all the evidence I do not find that Tradesmen vio- lated the Act in its treatment of Jerry Fitch. Fitch was working at the time he called Tradesmen and was interested in lining something up if he got laid off. Fortunately for Fitch the com- pany he was working for secured a good contract and Fitch continued working and was not laid off. TRADESMEN INTERNATIONAL 593 12. Kevin Balbo Kevin Balbo has been a union electrician for 19 years. He was at the union hall signing the out of work list in March 1996 when union organizer Jim Correll told him about Tradesmen. He called Tradesmen and spoke with John Conway. He told Conway he was a union member and Conway said he’d call him back but did not. Balbo did not hear from Tradesmen. Tradesmen claims it did not call Balbo because there was no work. But this is not true. In May 1997, more than 1 year later, Balbo called Trades- men again and even though he said he was a union member he got an interview and filled out an application. This, of course, is after unfair labor practice charges have been filed against Tradesmen. Indeed, Balbo was one of the discriminatees listed in charge number 5–CA–26412 filed with the Board’s Balti- more office on July 17, 1996. Balbo was told by Tradesmen to keep in touch with Tradesmen if he didn’t hear from them. Later in May 1997 Balbo was offered a job by Tradesmen but turned it down because he would have to travel further than he wanted to. I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Balbo in March 1996. Tradesmen did not violate the Act in its dealings with Balbo after he reapplied in 1997. Any backpay period would end upon Tradesmen offering a job to Balbo in May 1997. 13. John Kroupa John Kroupa is an electrician and has been a member of IBEW Local 24 for 26 years. He called Tradesmen’s office on March 28, 1996, and spoke with John Conway. He told Con- way that he had been to the union hall and had spoken to Jim Correll who said Tradesmen was looking for electricians and he wanted to come in for an interview. Conway told him that Tradesmen didn’t need anyone at that time and particularly not in the Towson, Maryland area where Kroupa lived. Conway told Kroupa that Tradesmen would be in touch with him. No further contact with Tradesmen. He later saw ads Tradesmen ran for electricians. When Kroupa called he was not out of work but work was winding down and he would soon need a job. I find that Tradesmen violated Section 8(a)(1) and (3) of the Act in failing and refusing to hire John Kroupa. 14. Mike Logan Mike Logan is a union electrician and a member of IBEW Local 24. He called Tradesmen’s office and spoke with John Conway. Logan told neither the woman who answered the phone nor Conway that he was a union member and Conway asked him in for an interview. Logan wore a union hat and union button to the interview, which took place on April 24, 1996. While in the office he heard someone he couldn’t identify, and not Conway, say “o fuck another one of those” and “if any problem with the guy give me a beep.” Since no one else other than himself and Tradesmen personnel were in the office one could assume the person was referring to Logan because of his obvious union affiliation. During the interview Logan told Conway that he was a member of IBEW Local 24. At the end of the interview Con- way told Logan that he would be in touch with Logan if any- thing breaks loose. Logan called a couple of times and finally was told by Conway that Tradesmen would call him. He later saw ads in which Tradesmen advertised for electricians. Logan was never offered a job. Conway testified that during the interview he left the room and when he returned he caught Logan looking through some papers on Conway’s desk and for that reason alone would not hire Logan. Logan was recalled in rebuttal by the General Counsel and credibly denied that he was ever left alone by Conway much less that he looked through papers on Conway’s desk. I find Conway’s claim lacking in credibility. When Logan testified before me the first time on September 15, 1998, he was never questioned about this matter of looking through papers on Conway’s desk during cross-examination. In addition, in posi- tion letters sent to Region 5 Tradesmen never claimed that this had occurred or it was a reason it did not hire Logan. Logan testified in rebuttal on February 11, 1999, after Conway testi- fied in Tradesmen’s case over several days in January and Feb- ruary 1999. In light of all the evidence I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Mike Logan. 15. Oliver Spriggs Oliver Spriggs has been an electrician for over 30 years and a member of IBEW Local 24 for about 6years. Spriggs first applied with Tradesmen in May 1996. He kept calling Tradesmen but was never offered a job. At no time did Spriggs inform Tradesmen that he was affiliated with a union and there is no evidence that Tradesmen knew he was affiliated with a union growing out of his May 1996 application. It is not alleged by the General Counsel that Tradesmen violated the Act in connection with Sprigg’s attempts in May 1996 to find work with Tradesmen. It is alleged that Tradesmen violated the Act when it failed and refused to hire Oliver Spriggs between October 7, 1996, when Spriggs reapplied with Tradesmen, and December 11, 1996, when Tradesmen hired Spriggs. In October 1996, Spriggs filled out an application with Tradesmen after speaking with John Conway. Spriggs was carrying a union hat. In October 1996, Spriggs was told by Conway that there was no work available for him but he should keep in touch. Spriggs called and in December 1996 Conway hired him and sent him on a job. Prior to going out on the job Spriggs went through orienta- tion. He had his union hat with him. Either at orientation in December 1996 or when he reapplied in October 1996 Conway asked Spriggs if he was a member of a union. This is alleged as an 8(a)(1) interrogation and I so find. See Pan American Elec- tric, Inc., 328 NLRB 54 (1999). Tradesmen claims it did not hire Spriggs more quickly be- cause he seemed quite frail and they didn’t know if he was up to the job. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 594 Spriggs testified before me on October 6, 1998, some 2 years after he applied with Tradesmen in October 1996, and he did appear quite frail at that time. He recounted that he had some medical problems. I don’t know how Spriggs appeared 2 years earlier and there is no evidence on that other than Conway’s testimony. In any event, it is alleged that Tradesmen violated the Act af- ter Spriggs reapplied in October 1996, but in light of all facts and most specifically the fact that Spriggs was hired by Tradesmen some two months later I find no violation of the Act by Tradesmen in connection with the hiring of Spriggs but do find that Tradesmen unlawfully interrogated Spriggs in either October or December 1996 when Conway asked Spriggs if he was a member of a union. Spriggs was a very honest witness. 16. Jobs available for electricians As noted above I find that a number of union electrician ap- plicants for employment were discriminated against by Tradesmen in its hiring process: NAME OF DISCRIMINATEES DATE OF DISCRIMINATEE’S CALL TO TRADESMEN OR DATE DISCRIMINATEE FILLED OUT APPLICATION IF CALLED IN FOR INTERVIEW 1. Carmen Vosa January 29, 1996 2. George Silling January 29, 1996 3. David Henderson January 30, 1996 4. Neil Wilford January 30, 1996 5. Michael Berg February 2, 1996 6. Kevin Barnett February 2, 1996 7. Dennis Egbert February 22, 1996 8. Dennis Becker February 22, 1996 9. Ed Brown February 22, 1996 10. Dwayne Shambaugh February 22, 1996 11. Timothy Moist February 22, 1996 12. Robert Edwards February 22, 1996 13. Nathan “Pete” Love February 29, 1996 14. Kevin Balbo March 18, 1996 15. John Kroupa March 28, 1996 16. Mike Logan April 24, 1996 The evidence at trial reflects that Tradesmen continued through the period from January 1996 to December 1996 to advertise for electricians and hired a number of electricians. What follows is the date that newly hired electricians began work for Tradesmen. If more than one electrician started work that week I have indicated the number who started that week next to the date: 1. 01/17/96 (2) 17. 06/28/96 2. 01/26/96 (7) 18. 07/19/96 (2) 3. 02/02/96 19. 07/26/96 4. 02/14/96 20. 08/2/96 (2) 5. 02/23/96 21. 08/16/96 (2) 6. 03/01/96 22. 08/23/96 (3) 7. 03/08/96 23. 08/30/96 8. 03/15/96 24. 09/13/96 (3) 9. 04/12/96 (3) 25. 09/20/96 10. 04/26/96 (2) 26. 09/27/96 (6) 11. 05/03/96 27. 10/04/96 12. 05/10//96 28. 10/11/96 (2) 13. 05/17/96 29. 10/18/96 14. 05/24/96 30. 10/28/96 15. 06/14/96 31. 12/06/96 16. 06/21/96 32. 12/13/96 (2) A total of 55 electricians were hired during and in the months following the attempts by 16 union electricians to se- cure employment with Tradesmen. In other words, there were many more than enough jobs for the 16 union electrician dis- criminatees in this case. C. Union Carpenter Applicants for Employment Between February 21 and October 22, 1996, 16 union affili- ated carpenters applied for work with Tradesmen and were not hired. One year later, in October 1997, four more union affili- ated carpenters applied for work with Tradesmen and also were not hired. And 1 year after that in June 1998, one additional union affiliated carpenter applied for work with Tradesmen and was not hired. The situation regarding each of these 21 applicants will be treated below as well as the allegations involving Mark Bortle who is alleged to have been fired by M-3 Building Design, a company Tradesmen hired him to work for and was thereafter not referred out by Tradesmen. 1. Tim Aldridge Tim Aldridge has been a carpenter for 17 years and is a member of Carpenters Local 340 in Hagerstown, Maryland, which is approximately 50 miles from Baltimore, Maryland. Aldridge was laid off and went to Carpenters Local 101’s union hall in Baltimore to sign the out of work list. Union or- ganizer George Eisner showed him an ad that Tradesmen had run in the paper for carpenters. Aldridge called Tradesmen on February 19, 1996, and identi- fied himself as a voluntary union organizer. He spoke with John Conway who told him that all the interview slots were filled up and that Tradesmen would call Aldridge if they needed him. Conway took down Aldridge’s name and phone number. Aldridge never called Tradesmen because no one at Tradesmen told him he had to do so. He never heard from Tradesmen and eventually secured employment elsewhere. Based on all the evidence, to include job availability and un- ion animus, I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Tim Aldridge. TRADESMEN INTERNATIONAL 595 2. David Martin David Martin has been a carpenter for 15 years. He is a member of Carpenters Local 101. He saw an ad for carpenters run by Tradesmen on February 18, 1996. He called Tradesmen the very next day, February 19, 1996. He spoke with field rep- resentative Jim Carmen. He told Carmen that he was with Lo- cal 101 and would prefer union scale if hired. Carmen told him that all the carpenter jobs were filled and we’ll call you, i.e., Tradesmen would call Martin. Martin was not told to call Tradesmen. According to Martin he never heard from Tradesmen and never filled out an application. On cross-examination it came out that Martin had applied again with Tradesmen about 1 month later in March 1996, had filled out an application, and been interviewed by recruiter John Conway but was not hired. Martin had no recollection of fill- ing out an application or meeting with Conway but documents in evidence prove it. Conway had no recollection of interview- ing Martin, but did identify the prescreen form as having been filled out by him. Martin’s testimony was quite confusing and in light of the fact that he clearly filled out an application in March and didn’t even know it causes me to pause in concluding that Tradesmen violated the Act with regards to David Martin and I, therefore, find no violation of the Act. 3. Robert Whye Robert Whye has been a carpenter and a member of Carpen- ters Local 101 in Baltimore for 24 years. He saw an ad for Tradesmen in the paper on February 18, 1996. Union organizer George Eisner also brought it to his attention. Whye was out of work at the time. Whye called Tradesmen on February 19, 1996, from the un- ion hall and spoke with field representative Jim Carmen. He told Carmen about his union affiliation and asked if that would be a problem. Carmen answered no. Carmen then told him that the jobs were filled and that John Conway did the hiring. Whye left his name and phone number. Whye was not told to call Tradesmen back. He didn’t. And Tradesmen never called him even though Carmen said he’d give Whye’s name and phone number to Conway. Jim Carmen, who no longer works for Tradesmen, testified that he had no recollection of Whye. In light of all the evidence I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Robert Whye. 4. Ed Thuerrauch Ed Thuerrauch has been a carpenter for 22 years and is a member of Carpenters Local 101. He saw a Tradesmen ad that ran on February 21, 1996, in the paper and called Tradesmen on February 22, 1996. Although employed at the time he was looking for his next job because he was working only part-time. Thuerrauch spoke with field representative Jim Carmen and told Carmen that he was looking for work and would get good references from his prior employers except for one, Dance Brothers, which had fired him because of his union activity. Carmen told Thuerrauch that all carpenter jobs were filled and Tradesmen would call Thuerrauch if anything opened up. Thuerrauch was never called by Tradesmen. Carmen testified that he didn’t remember any call from any- one who said he would get a bad reference from a prior em- ployer because of union activity. Carmen claims he never told anyone that Tradesmen would call them. I found Thuerrauch to be very credible. In light of all the evidence I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Ed Thuerrauch. 5. George Noftsinger and James Streett George Noftsinger has been a carpenter for 28 to 30 years and is a member of Carpenters Local 1354 located in Aberdeen, Maryland. James Streett has been a carpenter for 27 years and is also a member of Carpenters Local 1354. Noftsinger and Streett had been partners in a tomato growing business. They testified before me on September 16, 1998. Noftsinger had not worked in the trade, i.e., as a carpenter, since 1995. Streett did not work in the trade, i.e., as a carpen- ter, in either 1995 or 1996. They were both active in their to- mato growing business. At the suggestion of Carpenters Local 101 union organizer George Eisner Noftsinger and Streett called Tradesmen in re- sponse to a Tradesmen ad for drywall mechanics. They called Tradesmen, one right after the other, from the union hall on March 18, 1996. Noftsinger and Streett called Tradesmen and spoke with John Conway and let Conway know that they were union affiliated carpenters calling for work. They called one time and were not told to call back. They never got a call from Tradesmen and they never again called Tradesmen. Conway had no recollection of them and the files of Trades- men contain no prescreens on either man. A prescreen is the form routinely filled out and maintained by a Tradesmen’s representative for every call received by a job applicant whether the applicant is called in for an interview and to fill out an application or not. I believe Noftsinger and Streett that they called Tradesmen but I also believe Conway that he had no recollection of them and the records of Tradesmen contain no record of their having called. It seems probable that the prescreens for Noftsinger and Streett were immediately misplaced and, under the circum- stances, especially considering the fact that neither man called Tradesmen back after March 18, 1996, I find no violation of the Act with respect to Tradesmen’s treatment of Noftsinger and Streett. In addition Noftsinger who hadn’t worked in the trade since 1995 doesn’t appear to be a serious candidate for employment nor does Streett at least as a March 1996 because both men were then in the tomato growing business. 6. Lee Rutherford Lee Rutherford has been a carpenter for 28 years and is a member of Carpenters Local 1354 in Aberdeen, Maryland. He was out of work when he saw a Tradesmen ad in the paper on April 10, 1996 while at his mother-in-law’s house. The ad DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 596 indicated that Tradesmen was looking for an experienced car- penter and if the carpenter had painting experience it would be a plus. Rutherford is a carpenter with painting experience. Rutherford called and spoke with John Conway that very day, i.e., April 10, 1996. He told Conway, who identified him- self as John with no last name, but Conway was the only John at the Tradesmen office, that he was a carpenter with painting experience. He told Conway he had been working union scale. Rutherford was told that Tradesmen was not hiring and Tradesmen would call him if any jobs became available. Tradesmen never called Rutherford nor did he call them. Ruth- erford was an out of work carpenter with the specific experi- ence Tradesmen was looking for, he let Tradesmen know of his union background and did not get to first base. Tradesmen claims it did not have a prescreen on Rutherford. A significant difference from Rutherford on the one hand and Noftsinger and Streett on the other hand is that Rutherford was a considerably more serious candidate for employment. In light of all the evidence I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Lee Rutherford. 7. Cy Cicone and Mark Bortle Cy Cicone and Mark Bortle have worked together as carpen- ters. Cicone has been a carpenter for over 20 years and is a member of Carpenters Local 101. Bortle has been a carpenter for 20 years and is also a member of Carpenters Local 101. On Friday, June 14, 1996, Cicone and Bortle finished up a job, were laid off, and called Tradesmen in response to an ad in the paper shown them by union organizer George Eisner. They went together for an interview on June 17, 1996. Bortle was interviewed first and then Cicone. Bortle told recruiter John Conway that he had been working union and was a union member but was dropping out of the union because he didn’t like paying dues and wasn’t getting enough work. Conway told Bortle that Tradesmen had plenty of work for carpenters. Bortle’s interview lasted between 30 and 40 minutes. Later that day Bortle got a call and went to work for Tradesmen as a back hoe operator. After Bortle was no longer needed as a back hoe operator he was sent out by Tradesmen to a job with M3 Building Design. In section III,C,8, below I will discuss what happened to Bortle at M3 Building Design. Cicone was interviewed by Conway immediately after Bortle was interviewed. Cicone listed union officials as references on his application and also noted that he had been a shop steward. Cicone’s interview lasted only about 10 to 15 minutes accord- ing to Bortle. Cicone couldn’t remember how long it took. Cicone was told that Tradesmen would call him. In the course of the interview Conway told Cicone that Tradesmen had more carpentry work than they did carpenters. When Bortle told Cicone later that very day that he had been hired Cicone called Tradesmen and was told that Bortle was hired because of his back hoe experience and that Tradesmen would be in contact with Cicone. Cicone was never offered a job. Although he was at home or his wife or children were at home he says he was never called. Tradesmen claims it called Cicone but there was no answer when they called on June 18 and June 19, 1996. I don’t believe that occurred. Cicone credibly testified that if he was not home his family had strict instructions on what to do if he were called about a job. He received no message that Tradesmen had called. In any event, Tradesmen, if they really had a job for Cicone and couldn’t reach him by phone could easily have reached Cicone through Bortle whom they did hire because Tradesmen knew that Bortle and Cicone worked as partners and interviewed together and it was Bortle who had set up the interview for both he and Ci- cone. I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Cy Cicone. The treat- ment accorded Bortle, who says he is dropping out of the union, contrasts sharply with the treatment accorded Cicone who does not say that. 8. Mark Bortle’s experience with M3 Building Design Mark Bortle reported to work at M3 Building Design on June 21, 1996. It was his second job through Tradesmen. Dur- ing a lunch break on his first day Bortle produced a lunch box with union stickers on it. He also put on a union pin. M3 su- pervisor Dennis Meller was present. Bortle began to talk up the union and Miller cut lunch short. Shortly thereafter Miller had the crew, except for Bortle, quit for the day. Miller told Bortle to return to work the next day. After having worked alone the rest of June 21, 1996, Bortle finished the day and reported for work on Saturday, June 22, 1996 at 5 a.m. By 7 a.m. or 7:30 a.m. when no one else had shown up for work, not even Dennis Meller, Bortle went to Tradesmen’s office to tell them what happened. Tradesmen’s office was closed. On Monday, June 24, 1996, Bortle returned to Tradesmen’s office and told them what happened on Saturday, i.e., he reported for work but no one showed up. Bortle was wearing a union hat and T-shirt when he appeared at Tradesmen’s office on June 24, 1996. Bortle met with field representative Ed Stoecker. Stoecker had nothing for Bortle right at that time but a few days later did offer Bortle a job in Pennsylvania, which Bortle turned down. Bortle got other work from sources other than Tradesmen and never called Tradesmen again nor did Tradesmen call him. Business records of Tradesmen reflect that M3 Building De- sign didn’t want Bortle back because he didn’t do enough work on his one day on the job. Of course Bortle testified he did and M3 could see he was pro union. M3 Building Design never filed an answer to the complaint in this case and the General Counsel may proceed with a motion for summary judgment if they deem it appropriate. Even though Tradesmen is alleged to be a joint employer with M3 Building Design I find that Tradesmen did not dis- criminate against Bortle because it promptly offered him a job which he turned down and neither Bortle nor Tradesmen con- tacted each other again. However, I will consider evidence of M3’s treatment of Bortle in the section of this decision that speaks to the issue of union animus on Tradesmen’s part. 9. Mark Gerke and Randy Gerke Mark and Randy Gerke are brothers and long time members of Carpenters Local 101. On July 8, 1996, the brothers went to TRADESMEN INTERNATIONAL 597 the union hall to sign the out of work list and called Tradesmen in response to an ad that ran in the paper the day before. Randy Gerke called first and then his brother Mark. General Manager Hugh Boggs spoke to both brothers. Both brothers told Boggs that they were union carpenters and had been through union apprenticeship training. Boggs told Randy he would get back to him in a few days to set up an interview. Boggs asked Mark in the second call if he (Boggs) had just spoken with his brother and Mark said yes. Boggs told Mark that he would get back to him to set up an interview but not before July 17, 1996. Tradesmen never called either of the Gerke brothers back to set up an interview. I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Randy and Mark Gerke. Boggs claimed he didn’t remember any calls from the Gerke brothers. 10. Joseph Kankowsky Joseph Kankowsky is a carpenter and has been a member of Carpenters Local 101 for 20 years. He went to the union hall to sign the out of work list on July 8, 1996. He had recently been laid off from the same job as the Gerke brothers. Union organ- izer George Eisner showed him a Tradesmen ad in the paper that had run on July 7, 1996. Kankowsky called Tradesmen and was connected to General Manager Hugh Boggs. Boggs asked a number of questions and Kankowsky, in the course of the questioning, informed Boggs that he had received his training from the Carpenters union. Boggs told Kankowsky that he would get back to him the following week to set up an interview. Kankowsky never got a call from Tradesmen although he had left Boggs with his name and phone number and his phone had an answering machine. Bogg does not remember speaking with Kankowsky. I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Joseph Kankowsky. 11. Tim Fleischmann Tim Fleischmann has been a carpenter for 18 years and has been a member of Carpenters Local 101 for the last 12 years. He signed the out of work list at the union hall on July 8, 1996, and was shown a Tradesmen ad that ran in the paper on July 7, 1996, by union organizer George Eisner. Fleischmann called Tradesmen on July 9, 1996, and was connected to recruiter John Conway. Fleischmann made no mention of his union affiliation and was asked in for an inter- view on July 11, 1996. At no time was he ever told there could be no interviews before July 17, 1996, as Boggs had told Mark Gerke the day before. At the interview on July 11, 1996, Fleischmann wore a union hat and T-shirt. On his application Fleischmann noted his un- ion membership and the personal references he listed were officers of his local. He put on his application that he had been laid off from a prior job because he was a member of a union. As he waited for his interview to begin he talked about the union with some others in the waiting room. At the interview he told Conway that he organized jobs for the union. Fleischmann called Tradesmen three times after his inter- view to check on the status of his application and was not of- fered a job or called in for orientation. He stopped calling and never heard from Tradesmen. Conway testified that Fleischmann was not hired because he seemed more interested in the union that in working for Tradesmen and was rude and arrogant to boot. I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Tim Fleischmann. 12. Michelle Gagnon Michelle Gagnon did not testify before me. However, she did submit two applications to Tradesmen, which are in evi- dence. The first application was submitted on July 23, 1996. The application and other documents reflect that Tradesmen was aware of Gagnon’s membership in Carpenters Local 101. Conway claimed he called Gagnon about a job a few weeks after she applied and she didn’t return his call. A document discovered after trial began before me reflects that Gagnon did call back and leave a message to Conway. There was no more documentation. Gagnon did not testify and on the basis of the instant record I can not conclude that Tradesmen violated the Act regarding its treatment of Michelle Gagnon. Gagnon applied a second time on February 17, 1997. Con- way said he had nothing for her at the present time and she was to call him but did not. Conway claims he wanted to hire her because she was a woman and Tradesmen didn’t have very many women applicants. Again Gagnon did not testify and no reason such as death or ill health was proffered as the reason she did not testify and based on the record or lack of it I find no violation in Trades- men’s treatment of Michelle Gagnon. 13. Horace Pestridge and William Pestridge Horace Pestridge and William Pestridge are father and son. Both are members of Carpenters Local 101. Horace has been a carpenter for 33 years and his son, William, has been a carpen- ter for 12 years. On October 21, 1996, the Pestridges went to the union hall and were shown a Tradesmen ad by union organizer George Eisner. Both had recently signed the union out of work list. The ad had run on Sunday, October 20, 1996. First the son William and then the father Horace called Tradesmen. Both were called in for an interview and to fill out applications on October 22, 1996. First the son and then the father were inter- viewed by recruiter John Conway. Both Pestridges were wear- ing union hats and union jackets at the interview. It is clear that both Pestridges in the interview with Conway let Conway know they were union carpenters. At the end of the interviews Conway said he’d call them in a day of two. Both Pestridges called Conway 2 days after the interview and were told that he (Conway) would call them about work. Conway did not call them. Neither father nor son were offered jobs by Tradesmen and the Sunday immediately after their interview as well as the Sunday immediately before their interview they saw Tradesmen ads in the paper. Conway claims that the Pestridges wouldn’t fit in with Tradesmen and he didn’t hire them. Conway also thought that DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 598 the son William was very arrogant. Conway didn’t view the Pestridges as heavy construction types. I find this explanation pretextual and conclude that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Horace and William Pestridge. 14. William Clopein William Clopein filled out an application and interviewed with Tradesmen on the same day as the Pestridges, i.e., October 22, 1996. Indeed the Pestridges and Clopein had been laid off from the same job several days earlier and Clopein entered Tradesmen’s office for his interview on October 22 just as the Pestridges were leaving. Clopein has been a carpenter for 30 years and a member of Carpenters Local 101 for 27 years. He signed the out of work list at the union hall on October 14, 1996. Like the Pestridges, he called Tradesmen in response to the October 20, 1996 Tradesmen ad for drywall carpenters. He spoke with recruiter John Conway over the phone on October 21, 1996, didn’t mention any union affiliation, and was sched- uled for an interview on October 22, 1996. Clopein wore a union hat and jacket to the interview. Con- way told him in the interview that there was plenty of work and when asked by Clopein if being in the union was a problem told Clopein that it was no problem and that he (Conway) had sent out quite a few union people. Conway told Clopein that he (Conway) would contact him or it would be even better if Clopein called Conway in a couple of days. Clopein called Conway 2 days later on October 24, 1996, Conway told Clopein that he had been too busy to get to Clopein’s applica- tion and he would call Clopein. Tradesmen never called Clopein and he didn’t call Tradesmen again. Conway testified he didn’t hire Clopein because he didn’t fit drywall or heavy construction needs. This, I find, is pretextual. I find Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire William Clopein. 15. Jobs available for carpenters I have found that a member of union carpenters were dis- criminated against in hiring by Tradesmen because of their union affiliation. They are as follows: NAME OF DISCRIMINATEES DATE OF DISCRIMINATEE’S CALL TO TRADESMEN OR DATE DISCRIMINATEE FILLED OUT APPLICATION IF CALLED IN FOR INTERVIEW 1. Tim Aldridge 02/19/96 2. Robert Whye 02/19/96 3. Ed Thuerrauch 02/22/96 4. Lee Rutherford 04/10/96 5. Cy Cicone 06/17/96 6. Randy Gerke 07/08/96 7. Mark Gerke 07/08/96 8. Joseph Kankowsky 07/08/96 9. Tim Fleishmann 07/11/96 10. Horace Pestridge 10/22/96 11. William Pestridge 10/22/96 12. William Clopein 10/22/96 Tradesmen, during the period from February 19, 1996 to the end of December 1996, did hire a number of carpenters. Below are the dates the carpenters were hired by Tradesmen and a number next to the date if more than one carpenter was hired on that date.3 1. 02/22/96 (2) 19. 05/3/96 36. 08/23/96 2. 02/27/96 20. 05/15/96 37. 08/26/96 3. 02/28/96 21. 05/23/96 38. 08/30/96 4. 02/29/96 22. 05/27/96 39. 09/05/96 5. 03/05/96 23. 05/30/96 40. 09/10/96 6. 03/07/96 24. 06/10/96 41. 10/04/96 7. 03/08/96 25. 06/12/96 42. 10/21/96 8. 03/14/96 (2) 26. 06/13/96(2) 43. 10/22/96 9. 03/15/96 27. 06/17/96 44. 10/24/96 (4) 10. 03/25/96 28. 06/21/96 45. 10/28/96 (3) 11. 03/29/96 29. 06/24/96 46. 10/30/96 12. 04/05/96 30. 06/26/96 47. 10/31/96 (4) 13. 04/11/96 (2) 31. 06/28/96 48. 11/01/96 14. 04/12/96 32. 07/02/96 49. 11/05/96 15. 04/16/96 33. 07/03/96 50. 11/06/96 16. 04/17/96 34. 07/26/96 51. 11/12/96 17. 04/18/96 35. 08/22/96 (3) 52. 11/15/96 18. 04/25/96 A total of 65 carpenters were hired by Tradesmen from Feb- ruary 19, 1996, to the end of the 1996 time frame. In other words there were many more than enough jobs for the 12 car- penter discriminatees in this case. Late in the litigation Tradesmen suggested a distinction between carpenters and drywall mechanics although virtually all the discriminatees credibly testified as to expertise in all areas of carpentry, to include drywall work. In any event of the 65 carpenters hired by Tradesmen be- tween February 19, 1996, and the end of 1996, 33 were hired for their first job with Tradesmen in the classification of car- penter and 32 were hired for their first job with Tradesmen in the drywall classification. This information is gathered from examining General Counsel Exhibits 136 and 138. The evi- dence at trial reflects that while drywall work is within the ex- pertise of carpenters not all carpenters are expert in hanging and tapering drywall. 16. Union carpenter applications in October 1997 and June 1998 On October 6, 1997, and again on October 10, 1997, two un- ion carpenters on each date applied for work with Tradesmen and on June 5, 1998, a union carpenter applied for work with Tradesmen. 3 This information comes from GC Exhs. 136, 138, and 139 submit- ted to me by counsel for the Carpenters and General Counsel by letter dated May 12, 1999. Smith and McCarthy’s letter also reflects no objection to the admission by Tradesmen of these three exhibits and further recites that General Counsel withdraws GC Exh. 137. Accord- ingly, the new GC Exhs. 136, 138, and 139 are admitted. TRADESMEN INTERNATIONAL 599 17. Robert McFaul and Lee Edwards Robert McFaul has been a carpenter and a member of Car- penters Local 101 for 20 years. He saw a Tradesmen ad that ran in the paper on October 5, 1997. He was shown the ad by union organizer George Eisner. McFaul’s partner, Lee Edwards, was with him. It is common for carpenters to work with a partner. They are not necessarily hired as a team but it is common for two men to work together as they go from one project to another. McFaul and Edwards were both unemployed at the time. They separately called Tradesmen and spoke with John Conway. McFaul left his name and phone number with Conway after telling Conway that he was a union member. He claims he never got a call. Conway testified and is corroborated by documentary evi- dence that he called McFaul and left a message for McFaul to come in for an interview at 2 p.m. on October 11, 1997. McFaul claims he never got the message and, in any event, he secured other work by October 11, 1997, and began a new job on that very day. I do not find that Tradesmen violated the Act in its treatment of McFaul. McFaul was scheduled for an interview and didn’t show up for the interview. Lee Edwards has been a carpenter for 20 years and is a member of Carpenters Local 1354 in Aberdeen, Maryland. Edwards called Tradesmen right after McFaul did. He spoke with Conway and told Conway he had worked union. He left his phone number and never got a call back for Tradesmen. Edwards didn’t call Tradesmen because he went to work the very next week. Tradesmen never located a prescreen on Edwards. Under the circumstances I must conclude that Tradesmen did not violate the Act in its treatment of Lee Edwards. 18. John Steven Victor and Michael Victor John Steven Victor and Michael Victor are brothers and members of the Carpenters Union. John Steven Victor, who goes by the name Steven, has been a union member for 4 years and Michael has been a union member for 7 years. Union organizer George Eisner showed the brothers a Tradesmen ad and suggested to them that they call Tradesmen and try to get an interview but not disclose their union affilia- tion. If they got an interview one brother would be a “covert” salt, i.e., not disclose his union affiliation, and the second brother to be interviewed would clearly manifest his union affiliation and be an “overt” salt. Steven and Michael Victor called Tradesmen, deliberately mentioning only former employers, which were nonunion, and not disclosing their union affiliation and both were scheduled for an interview on October 10, 1997. Steven was interviewed first and then his brother Michael. Steven kept his union affiliation a secret in the interview and, among other things, Conway told him that if his brother was as sharp as he they would both get jobs fairly quickly. Steven had an interview of approximately 30 to 45 minutes. The last thing that Conway told Steven Victor was that he should call Conway with the names and telephone numbers of former supervisors so Tradesmen could check his references. Steven Victor never got back to Tradesmen and found work elsewhere. Michael Victor has then called in for his interview. Michael Victor wore a union hat and union jacket into his interview with Conway. Michael told Conway that both he and his brother wanted to organize employers and that they were both union carpenters. Conway told Michael that he would call him if any work became available. Michael’s interview lasted 15 to 20 minutes and was considerably shorter than Steven’s interview. Conway did not ask Michael for the names and telephone num- ber of former supervisors as he did with Steven. Michael was less than forthcoming on the witness stand and denied that there was a plan whereby he would be an “overt” salt and his brother a “covert” salt. But, of course, this clearly was the plan. Conway claimed that neither man seemed suited for the job and Tradesmen hired others who were better qualified and that is why the Victors were not hired. Under the circumstances I find that Tradesmen did not vio- late the Act with respect to Steven Victor because Steven ad- mits he was supposed to get names and phone numbers of for- mer supervisors to Conway and he admits he never did. How- ever, I find that Tradesmen did violate Section 8(a)(1) and (3) of the Act when it failed and refused to hire Michael Victor. General Counsel Exhibits Number 136 and 138 reflect that Tradesmen hired carpenters on October 20, 1997, October 21, 1997, and November 3, 1997 and hired one drywall mechanic on October 31, 1997. 19. Terry Browning Terry Browning has been a carpenter for 20 years and is a member of Carpenters Local 101. Browning called Tradesmen and was asked to come in and fill out on application on June 4, 1998. He filled out an appli- cation but no one was there to interview him and he returned the next day when he was interviewed by recruiter Don Miller, who had been made a recruiter just a month earlier. John Con- way had been switched for recruiter to field representative and by June 1998 had terminated his employment with Tradesmen. During the interview when it became clear that Browning was a union carpenter Miller told Browing “we don’t like to hire from the union.” Miller denied he said this to Browning but I find that he did say it. I credit Browning over Miller. Arguably both men have a motion to fabricate but, based on demeanor, I credit the testimony of Browning. After the interview Browning called Tradesmen and left his name and telephone number but was never called by Trades- men. Miller testified that he was impressed with Browning but never called Browning back because Browning was “over- looked.” In other words, his application fell through the cracks. Miller testified he interviewed several other carpenters on the day he interviewed Browning and they were all hired. I find that Tradesmen violated Section 8(a)(1) and (3) of the Act when it failed and refused to hire Terry Browning. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600 D. Tradesmen’s Union Animus There was significant evidence, direct and circumstantial, of union animus demonstrated at the hearing before me. For ex- ample: 1. Ted Cook was the owner of a small electrical contracting firm named Vol Tec. He was contacted by Tradesmen who wanted him to use Tradesmen as a source of skilled labor, i.e., be a customer or client of Tradesmen. In March 1996 he and IBEW Local 24 union organizer Jim Correll, who was posing as an assistant to Cook, met at Vol Tec’s offices with General Manager Hugg Boggs and field representative Jim Carmen from Tradesmen. Boggs had no recollection of the meeting. Carmen was never asked any ques- tions about the meeting when he testified. Cook and Correll testified about the meeting and I credit their testimony. Cook testified that the Tradesmen representa- tives said they screen applicants and can tell who is union and who is not. And, if for any reason Vol Tec didn’t like someone the Tradesmen representative said to them they could just send the person back. Cook couldn’t remember if it was Boggs or Carmen who said it. Likewise, Correll testified that the Tradesmen representa- tives claimed that Tradesmen can screen union from nonunion applicants for employment. He believes it was Jim Carmen but it may have been Hugh Boggs who said also that if a union guy showed up with his union hat and button just send him back and Tradesmen’s lawyers, to whom they pay $100,000 a year for this sort of thing, will take care of it. The testimony of Cook and Correll demonstrates union ani- mus on the part of Tradesmen. 2. In April 1996 recruiter John Conway sent memos to all field employees of Tradesmen working for various of Trades- men’s customers advising them that Tradesmen needed skilled craftsmen, to include carpenters and electricians, and if an em- ployee of Tradesmen recommended someone and they were hired and worked 160 hours the person making the recommen- dation would get a $200 bonus. This was at the same time that union electricians and union carpenters were not getting job offers or sometimes even interviews. See General Counsel Exhibit 27. 3. Timothy Demski is an electrical contractor. He met with field representative Jim Carmen about using Tradesmen’s labor pool. Demski told Carmen he would prefer not to use union electricians. Carmen said that that was not a problem because Tradesmen “typically didn’t employ union labor.” In addition Demski needed some electricians in late spring 1996 for a job and Tradesmen didn’t have enough electricians to supply him and yet union electrician applicants for employ- ment weren’t getting to first base with Tradesmen with respect to employment. 4. As noted above Tradesmen’s policy as spelled out in its Recruiter Guidelines is to seek to hire from parole boards pris- oners on work release if Tradesmen is having difficulty hiring skilled craftsmen. Yet Tradesmen’s policy doesn’t provide for contacting the local union or its hiring hall to hire unemployed union skilled craftsmen. Prisoners on work release are prefer- able to union labor. If this isn’t evidence of union animus I don’t know what would be evidence of union animus. 5. Union Organizer Jim Correll who became the President of the Baltimore Building and Construction Trades Council in November 1996 and prior to that was an organizer and business representative for IBEW Local 24 testified that in the period December 1995 until November 1996 when he took his new position he referred “well over a hundred” out of work union electricians to Tradesmen and only four were hired. Two of them were not even union members at the time he referred them to Tradesmen. Correll also testified that throughout the De- cember 1995 to November 1996 time frame Tradesmen con- tinuously ran want ads for electricians in the newspaper. Virtu- ally none of the union people could get hired and Tradesmen continued to advertise for electricians. 6. The statement of Tradesmen recruiter Dan Miller to union carpenter applicant Terry Browning in June 1998 that “we don’t like to hire from the union.” 7. The disparate treatment accorded electrician Leshek Vlo- darchyk, who did not disclose union affiliation and was treated well by Tradesmen, and the treatment accorded electricians Dennis Becker, Dennis Egbert, Bob Edwards, Ed Brown, Tim Moist, and Dwayne Shambaugh, who did disclose their union affiliation, as more specifically spelled out in section III,B,8, above. 8. The disparate treatment accorded carpenters Mark Bortle and Cy Cicone. Bortle and Cicone come in for an interview together, which had been set up for both of them by Bortle. Bortle, who says he is dropping out of the union, gets two jobs from Tradesmen, and Cicone, who does not say he is dropping out of the union, receives no offers of employment from Tradesmen. See section III,C,7, above for more details. 9. As noted above in March 1996 Tradesmen representatives told Ted Cook and Jim Correll, who was posing as an assistant to Ted Cook, that if a customer of Tradesmen didn’t like a craftsman for any reason, to include union affiliation, they could just send the person back to Tradesmen and that appears to be just what M3 Building Design did with respect to carpen- ter Mark Bortle in June 1996. See section III,C,8, above, for more detail. 10. As spelled out in more detail in Section F below, involv- ing alleged 8(a)(1) conduct on the part of Electrico, Inc., Rich- ard Meehan testified that he applied for work with Tradesman. In early 1997 he interviewed with John Conway and told Con- way he had been working out of IBEW Local 26 in Washing- ton, D.C. but was not interested in going back to the union and Tradesmen hired him to go work for Electrico, Inc. The treat- ment of Meehan was not unlike the treatment accorded Mark Bortle who said he was leaving the union and was hired. Those union applicants for employment who did not voice dissatisfac- tion with their union did not fare as well as those that did. E. Tradesmen’s Claim That It Did Hire Union Applicants for Employment Tradesmen did hire some applicants for employment who had some indicia of union affiliation in their past. And these hires were made during the time frame that I find the union affiliated electrician and carpenter applicants for employment were being denied employment in violation of Section 8(a)(1) and (3) of the Act. Invariably, however, the craftsmen hired TRADESMEN INTERNATIONAL 601 either expressed dissatisfaction with their union such as Paul Bonnette,4 Mark Bortle, Richard Meehan, or the association with the union was manifested by working for a known union contractor years earlier. The discriminatees I find were unlaw- fully discriminated against in this case manifested to Trades- men that they were current union members or wanted to organ- ize or were referred to Tradesmen by their union. There is a significant difference between hiring someone who belonged to a union in the past, and hiring an active union member in whom an employer may risk an effort to organize his work force. Clock Electric, Inc., 323 NLRB 1226, 1231 (1997). While employing individuals who at some point in their career had some union affiliation may be inevitable for a company such as Tradesmen, the Board has recognized a dif- ference between those individuals with a union connection and those who consider themselves to be union organizers: [A]lthough many of the applicants who were offered em- ployment displayed some link to a union, we agree with the judge that there is a significant difference between an appli- cant for employment who puts on his application that he has worked in the past for a union contractor and one who states clearly that he is a “voluntary union organizer.” The latter applicant explicitly places the employer on notice that he will try to exercise his statutorily protected right to organize his fellow employees. Fluor Daniel, Inc., 311 NLRB 498, 500 (1993). John Conway made it clear that applicants such as Tim Fleischman and Mike Berg who expressed an intention to or- ganize were “rare birds” who were undesirable. They did not meet the appropriate Tradesmen’s standards for “attitude” and “motivation” because they did not “give a hoot” about the Company. The true reason for that is all too obvious. Trades- men sought to avoid job applicants who would likely try to organize. Tradesmen’s claim that it denied employment to the union applicants because of their attitude or because they wouldn’t fit in is, in the context of this case, a veiled reference to their protected union activity. See Climatrol, Inc., 329 NLRB 946 (1999). F. Allegations Involving Electrico, Inc. Richard Meehan has been an electrician for 22 years. He in- terviewed with Tradesmen in early 1997. Meehan did not in- form Conway that he was a member of IBEW Local 24 in Bal- timore but did tell Conway that he worked out of IBEW Local 26’s hiring hall in Washington, D.C. but because of excessive lay offs he wasn’t interested in returning to IBEW Local 26. As noted above in section D,10, on evidence of Tradesmen’s union animus Meehan was hired although union members who did not express dissatisfaction with their union were not hired. Meehan was hired by Tradesmen and sent out to work for Electrico, Inc., one of Tradesmen’s customers or clients. Meehan began discussing the union with his coworkers at Electrico, Inc., some of whom Meehan knew from a prior em- ployment. Meehan worked at Electrico, Inc., for about one 4 Bonnette was not as discriminatee and was called as a witness by Tradesmen in its case. week and told his fellow workers, among other things, that union wages were better than the wages they were being paid. Meehan discussed the union on breaks and on luncheon re- cess. Although Electrico supervisor Rick Hutson was not physically present when he discussed the union there came a time, on or about March 8, 1997, after Meehan had discussed the union with his fellow workers, when Rick Hutson ap- proached him at work. What follows in excerpts from Meehan’s testimony before me about his encounter with Hutson: Q. Where did this conversation take place? A. On the second floor of the building by where the tool boxes were, where we kept—where we had our meet- ings before we went to work. Q. What were you doing at the time? A. I just walked on the job and we were talking. And he asked me if I was there for the Union. Q. Who is ‘he’? A. Rick Hudson [sic]. Q. He asked if you were there for the Union? A. Uh-huh. Q. And what else did he say? I’m sorry. What did you say to him? A. I said, ‘I’m here to work. But, what if I was here for the Union?’ And he said, “Well, this Company is not going to be organized,” something to that effect. “This Company will not be organized.” Q. Did he say anything to you about the Union? A. Yes. He told me he used to be a member of the Union, told me who he worked for, a Company that I used to work for also. Q. What Company is that? A. Northeast Electric. Q. And what did he say about the Union in that re- gard? A. He said that the Union wasn’t doing him any good. That’s why he wasn’t working out of Local 24 any more. Q. And did he say anything about certain members of the Union, or officers of the Union? A. Yes. Q. What did he say, specifically? A. He said I could ‘tell that c— s—, Woody McNa- mara, to kiss a his a—, and Willie Richardson, too.’ Q. Who was Willie Richardson? A. He was Assistant President at the VA at the time of the Local 24. [sic] Q. And the other name was Woody? A. Woody McNamara. Q. Who was Woody McNamara, his position at that time? A. The Business Agent at Local 24. Q. When Mr. Hudson approached you that day, that morning, specifically what did he say about are you from the Union? How did he put that? MR. STARK: Objection. Asked and answered. JUDGE LINSKY: Objection overruled. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 602 BY MS. HARRIS: Q. Can you recall specifically what he said to you in that regard? A. When we first started talking, he says he wanted to know was I there for a Union to organize the Company, to help organize. I told him I was here working. But, you know, if any- body would ask me, yes, I was going to tell them about the Union. I mean, it wasn’t a bad conversation. He just said ‘There’s not going to be any organizing for this Company and if you’re going to do it, because I’ll tell you, it will be during break time or lunch time.’ And that he knew the rules, and that kind of stuff.” Rick Hutson did not testify. I found Meehan to be credible and, accordingly, I find that Electrico, Inc., violated Section 8(a)(1) of the Act in its statements to Meehan, by Hutson, which amount to unlawful interrogation, creating the impres- sion that Meehan’s union activities were under surveillance, and unlawfully informing Meehan that it would be futile to seek union representation. See, Publishers Printing Co., 317 NLRB 933, 935 (1995); Albert Einstein Medical Center, 316 NLRB 1040 (1995). REMEDY The remedy for the 8(a)(1) violation by Electrico, Inc., should be a cease-and-desist order and the posting of an appro- priate notice. With respect to Tradesmen the remedy should include a cease-and-desist order, an order that Tradesmen offer jobs to the persons I find Tradesmen unlawfully discriminated against and the payment of back pay to those discriminatees. The back pay should run from the time the discriminatee would have been offered a job if there had been no discrimination. In other words, if two electricians, for example, were discriminated against the back pay should run for each from the time the next two electricians were hired. I believe full compliance with the remedies set forth above will remedy Tradesmen’s unfair labor practices. Accordingly, I see no need to order Tradesmen, as requested by the General Counsel, to include for a period of 2 years in a prominent man- ner at the beginning of all its advertisements for employment, and all its contracts to supply employees to employers, and all its applications for employment, whether for its own lists of available employees or for specific requests for employees from any of its client employers, the following language: “Tradesmen International, Inc. is committed to full compliance with the laws of the United States of America, including the National Labor Relations Act. Therefore, we will recruit and refer any and all applicants without regard to their involvement with or membership in, or allegiance to any labor organization. We recognize and support the right of all American citizens to form, join or assist labor organizations or their own choosing, or to refrain from such activities.” CONCLUSIONS OF LAW 1. Tradesmen International, Inc., and Electrico, Inc., are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The charging party unions are labor organizations within the meaning of Section 2(5) of the Act. 3. Tradesmen International, Inc., violated Section 8(a)(1) of the Act when its recruiter John Conway unlawfully interrogated an employee about his membership in a union. 4. Electrico, Inc., violated Section 8(a)(1) of the Act when its supervisor Rick Hutson interrogated an employee about his union activities, created the impression that union activities were under surveillance, and told an employee that it would be futile to seek union representation. 5. Tradesmen International, Inc., violated Section 8(a)(1) and (3) of the Act when it failed and refused to offer positions to the discriminatees listed below in paragraph 2 of my recom- mended Order because of their union affiliation. 6. The above unfair labor practices affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. Based on these findings of fact and conclusions of law and pursuant to Section 10(c) of the Act I hereby issue the follow- ing recommended5 ORDER Tradesmen International, Inc., Linthicum, Maryland, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unlawfully interrogating employees about their union membership. (b) Discouraging employees from engaging in activities on behalf of a labor organization by refusing to hire job applicants because they are members or supporters of unions. (c) In any like or related manner interfering with, restraining, or coercing its employees or applicants for employment in the exercise of their Section 7 rights protected by the Act. Electrico, Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unlawfully interrogating employees about their union ac- tivities, creating the impression that employee union activity is under surveillance, or telling employees that it will be futile to select union representation. (b) In any like or related manner interfering with, restraining, coercing its employees in the exercise of their Section 7 rights protected by the Act. 2. Take the following affirmative action deemed necessary to effectuate the purposes and policies of the Act: (a) Within 14 days from the date of this Order, Tradesmen International, Inc., shall offer to the below listed individuals employment in positions for which they applied, or if those positions no longer exist, to substantially equivalent positions, 5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. TRADESMEN INTERNATIONAL 603 without prejudice to their seniority and other rights and privi- leges: ELECTRICIANS: 1. Kevin Balbo 9. John Kroupa 2. Kevin Barnett 10. Mike Logan 3. Dennis Becker 11. Nathan “Pete” Love 4. Michael Berg 12. Timothy Moist 5. Ed Brown 13. Dwayne Shambaugh 6. Robert Edwards 14. George Silling 7. Dennis Egbert 15. Carmen Voso 8. David Henderson 16. Neil Wilford CARPENTERS: 1. Tim Aldridge 7. Joseph Kankowsky 2. Cy Cicone 8. Horace Pestridge 3. William Clopein 9. William Pestridge 4. Tim Fleischmann 10. Lee Rutherford 5. Mark Gerke 11. Ed Thuerrauch 6. Randy Gerke 12. Robert Whye (b) Tradesmen International, Inc., should make the individu- als listed in paragraph 2(a) above whole for any loss of pay and other benefits suffered by them as a result of Tradesmen’s dis- crimination against them. Backpay to be computed in accor- dance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). (c) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports and all other records necessary to analyze the amount of backpay due under the terms of this Or- der. (d) Within 14 days after service by the Region Tradesmen International, Inc., and Electrico, Inc., shall post copies of the attached appropriate notice marked “Appendix A and B.”6 Copies of the notice, on forms provided by the Regional Direc- tor for Region 5, after being signed by an authorized represen- tative of Tradesmen or Electrico, as appropriate, shall be posted by them immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Tradesmen and Electrico to ensure that the notices are not altered, defaced or covered by any other mate- rial. In addition, Electrico shall mail a copy of its notice to each of its then employees working at the site where Richard Meehan worked for Electrico on March 8, 1997. (e) Within 21 days after service by the Region, Tradesmen and Electrico shall file with the Regional Director for Region 5, sworn certifications of a responsible official on a form provided by Region 5 attesting to the steps that each has taken to comply with this order. 6 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.” APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected con- certed activities. WE WILL NOT unlawfully interrogate employees about their union membership. WE WILL NOT discourage employees from engaging in activi- ties on behalf of a labor organization by refusing to hire job applicants because they are members or supporters of unions. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees or applicants for employment in the exercise of their Section 7 rights protected by the Act. WE WILL offer to the below listed individuals employment in positions for which they applied, or if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges: ELECTRICIANS: 1. Kevin Balbo 9. John Kroupa 2. Kevin Barnett 10. Mike Logan 3. Dennis Becker 11. Nathan “Pete” Love 4. Michael Berg 12. Timothy Moist 5. Ed Brown 13. Dwayne Shambaugh 6. Robert Edwards 14. George Silling 7. Dennis Egbert 15. Carmen Voso 8. David Henderson 16. Neil Wilford CARPENTERS: 1. Tim Aldridge 7. Joseph Kankowsky 2. Cy Cicone 8. Horace Pestridge 3. William Clopein 9. William Pestridge 4. Tim Fleischmann 10. Lee Rutherford 5. Mark Gerke 11. Ed Thuerrauch 6. Randy Gerke 12. Robert Whye WE WILL make the above listed applicants whole for any loss of pay and other benefits as a result of our discrimination, with interest. TRADESMEN INTERNATIONAL, INC. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 604 APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected con- certed activities. WE WILL NOT unlawfully interrogate employees about their union membership. WE WILL NOT create the impression among employees that their union activities are under surveillance. WE WILL NOT tell employees that it will be futile for them to seek union representation. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees or applicants for employment in the exercise of their Section 7 rights protected by the Act. ELECTRICO, INC. Brenda Valentine Harris and Thomas P. McCarthy, Esqs., for the General Counsel. Kenneth B. Stark, Esq., of Cleveland, Ohio, and Vincent T. Norwillo, Esq., of Solon, Ohio, for Respondent Tradesmen International, Inc. Joel A. Smith, Esq., of Baltimore, Maryland, for Carpenters Regional Council of Baltimore & Vicinity. John M. Singleton, Esq., of Baltimore, Maryland, for IBEW Locals 24, 143, 229. SUPPLEMENTAL DECISION MARTIN J. LINSKY, Administrative Law Judge. On Decem- ber 1, 1999, I issued a decision in the above-captioned case after a 20-day hearing and the receipt of briefs. The General Counsel, Charging Party, and Respondent filed exceptions to my decision. On May 11, 2000, the Board issued its decision in FES, 331 NLRB 9 (2000), setting forth the framework for analysis of refusal-to-hire and refusal-to-consider violations. On June 7, 2000, the Board remanded the above-captioned case, which was pending before the Board, to me. The Remand Order reads, in pertinent part, as follows: “The Board has de- cided to remand this case to the judge for further consideration in light of FES, including, if necessary, reopening the record to obtain evidence required to decide the case under the FES framework. Issues to be considered on remand include, but are not limited to: (1) whether, under FES, the burden shifted to the Respondent to demonstrate that, absent the discrimination, each of the alleged discriminatees would not have been hired, and particularly whether each of the alleged discriminatee- carpenters was not an experienced drywall mechanic and whether the Respondent would not have hired them for that reason in the absence of the discrimination; (2) whether the Respondent met that burden for each alleged discriminatee; and (3) whether and when, absent the discrimination against them, each discriminatee would have been hired.” On August 7, 2000, I issued an invitation to file briefs, at- tached to this Supplemental Decision as appendix A [omitted from publication], which invited the parties to file briefs on the remand issues. In timely filed briefs counsel for the General Counsel writing for themselves and also expressing the position of counsel for the Charging Party Electricians oppose, as unnecessary, the reopening of the record in the instant case as does counsel for the Charging Party Carpenters in his brief. Only the Respon- dent argues that the record should be reopened for the introduc- tion of additional evidence. I agree with counsel for the General Counsel, Charging Party Electricians, and Charging Party Carpenters. I find it unneces- sary, contrary to Respondent, to reopen the record. In FES, 331 NLRB 9, 12 (2002), the Board held (footnote omitted): To establish a discriminatory refusal to hire, the Gen- eral Counsel must, under the allocation of burdens set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), first show the following at the hearing on the merits: (1) that the respondent was hiring . . . (2) that the applications had experience or training relevant to . . . the positions for hire . . . and (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 General Counsel meets his burden and the re- spondent fails to show that it would have made the same hiring decisions even in the absence of union activity or affiliation, then a violation of Section 8(a)(3) has been es- tablished. The appropriate remedy for such a violation is a cease-and-desist order, and an order to offer the discrimi- natees immediate reinstatement to the positions to which they applied or, if those positions no longer exist, to sub- stantially equivalent positions, and to make them whole for losses sustained by reason of the discrimination. The evidence at hearing was overwhelming that the General Counsel made out a prima facie case in the instant matter and that the burden shifted to Respondent to demonstrate that, ab- sent the discrimination, each of the alleged discriminatees would not have been hired in any event. Respondent demonstrated at the 20-day hearing and in its posthearing brief that it was aware of its burden to demonstrate that even if discrimination was proven, which they, of course, hotly contested, the discriminatees would not have been hired in any event. TRADESMEN INTERNATIONAL 605 Respondent failed to meet its Wright Line burden of showing that it would not have hired the discriminatees even in the ab- sence of their union activity. The evidence was clear that those carpenters and electricians hired by Respondent were not better qualified that the alleged discriminatees I found to have been discriminated against be- cause of their union affiliation. This is particularly true with respect to electrician and carpenter positions. With respect to the drywall mechanic position which is a job that falls within the general carpenter classification Respondent argues that only expert drywall mechanics would be hired for those positions and not just any competent journeyman carpenter like the al- leged carpenter discriminatees. However, Respondent, as I noted in my decision, raised this defense later in the litigation making it appear to be pretextual. Further union journeymen carpenters are trained in drywall work and are competent to perform it. In any event even if the carpenter discriminatees were properly denied employment as drywall mechanics be- cause those hired by Respondent had greater expertise in that area than they did there were more than enough carpenter jobs that were filled by Respondent for which all the carpenter dis- criminatees were clearly qualified and no applicants with greater skills were hired into those positions by Respondent. The discriminatees should be offered instatement and back- pay should run from the date that jobs for which they were qualified were filled by Respondent. See pp. 593–595, 598– 599, and 28 of my December 1, 1999 decision. Counsel for the General Counsel correctly points out in their brief on remand that I inadvertently left off the names of carpenter discrimina- tees Michael Victor and Terry Browning from my recom- mended order and notice. [Recommended Order omitted from publication.]