E & I Specialists, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 349 NLRB No. 45 446 E & I Specialists, Inc. and International Brotherhood of Electrical Workers, Local 343. Case 18–CA– 16009–1 February 28, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND KIRSANOW On March 8, 2002, Administrative Law Judge Paul Bogas issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Or- der. The complaint alleged that the Respondent violated Section 8(a)(3) and (1) by refusing to consider for hire or hire 23 individuals because of their union and/or con- certed activities. The judge found these violations.2 Contrary to the judge, we conclude that the General Counsel has failed to meet his initial evidentiary burden of establishing that antiunion animus contributed to the Respondent’s decision not to consider or hire the appli- cants. We therefore dismiss the complaint in its entirety. I. FACTS The Respondent is an industrial electrical contractor based in Lakeville, Minnesota, that performs work in Minnesota, Iowa, Missouri, and South Dakota. Co- founders Jeffrey Peterson and Jeffrey Paulson are its president and vice president, respectively. Being a “young” company, the Respondent, at the time relevant to this proceeding, had not reduced its hiring policy to writing. Under its unwritten policy, former employees, applicants otherwise known to the owners, and those 1 The Respondent has implicitly 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. The Respondent has also requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 The complaint also alleged that Jeffrey Paulson, the Respondent’s vice president, violated Sec. 8(a)(1) by threatening and interrogating applicant Weston Wilson. There are no exceptions to the judge’s find- ing that Paulson did not make the alleged unlawful statements. referred by current employees received hiring preference over unknown applicants. Under its guidelines for hiring unknown or nonreferred applicants, the Respondent pre- ferred industrial experience, proximity to the job, good character, integrity, work history, and availability. The Respondent’s hiring practice was to provide applications to jobseekers who contacted the Respondent, review completed applications, check references if necessary, and conduct personal interviews. On March 16, 2001,3 the Respondent was awarded the electrical contract for a project in Winnebago, Minne- sota. On March 21, the Respondent placed a prepaid, 1- week newspaper advertisement seeking “licensed jour- neymen & apprentice electricians” in southern Minne- sota. Previously, in February 2000, the Respondent had also placed a general help wanted listing at the Minne- sota job bank. Paulson expected to hire 15–16 employ- ees to complete the Winnebago job by the June 5 dead- line. During this period, Peterson was also hiring for a project in Wentworth, South Dakota. In late March, the Respondent transferred its employee Leslie Prange to Winnebago as foreman. Shortly there- after, Prange informed Paulson that other contractors on the Winnebago job were behind schedule and, conse- quently, the Respondent’s electrical work would be de- layed. As a result, fewer electricians than originally planned would be required because the same amount of electrical work would be spread over a longer period. Nonetheless, the Respondent still needed to hire for that job; on April 10, it amended its job bank ad to specifi- cally reference the Winnebago site. During this same period, Allan Stork, an organizer for the Charging Party Union (the Union or Local 343), learned that the Respondent had been awarded, over three union bidders, the contract for the Winnebago pro- ject. Shortly thereafter, he saw the Respondent’s news- paper advertisement and distributed copies to union members, advising them to apply with the Respondent if they wanted to continue working. On March 23, Stork called the number on the ad and was referred to Paulson. In a secretly recorded telephone conversation, Stork told Paulson that he was a union representative, that he had some “guys available around Mankato [Minnesota],” and asked Paulson if he would be willing to hire any of them. During this conversation, Stork said he would like to talk to the Respondent about putting members to work. Paul- son responded that his partner had already been ap- proached by another union representative but that they were not yet ready to hire; that the door was open for hiring a guy or two on an individual basis; that if some- 3 All dates are in 2001, unless otherwise stated. E & I SPECIALISTS, INC. 447 body wanted to come in and fill out an application, “we’ll look at them”; and that there were “one or two guys that look like they would be pretty good.” Paulson concluded the conversation by offering to send Stork an application so that they could talk about the possibility of Stork working for them. On March 25, the 23 alleged discriminatees began call- ing Paulson regarding the ad. In the telephone calls, Paulson inquired about their work history and thereafter sent them applications.4 A few returned their applica- tions to the Respondent. Most, however, returned them to the Union, which forwarded them to the Respondent with cover letters stating that the applicants were union member journeymen, would work under the same terms extended to other employees, and would not allow pro- tected activities to interfere with their employment. Those applications sent in without cover letters revealed the applicants’ union affiliation by listing former union employers and/or union training. The Respondent began receiving these applications on April 10. On their applications, 11 of the applicants sought work as journeymen electricians, 8 simply as electricians, 1 as an apprentice, and 1 as a foreman; 20 indicated salary was negotiable. While some of the ap- plicants were unemployed or expected to be laid off soon, others held secure jobs, with better pay, closer to home than what the Respondent offered. Four of the applicants were full-time employees of the Union. Paulson did not contact any of the union applicants af- ter receiving their applications. The Respondent discon- tinued the job bank ad in late April. From April to July, Paulson hired three licensed journeymen, two unlicensed journeymen, seven apprentices, and one laborer for Win- nebago. The licensed journeymen hired were Keith Schroeder, Ryan Linde, and Gary Chaplin. Schroeder was hired April 17 on Foreman Prange’s referral; he had previously worked with Peterson. Linde, a former em- ployee of the Respondent, was rehired July 10. Chaplin was hired June 4 on Prange’s referral; he had worked with Peterson, Paulson, and Prange, lived in Winnebago, and had 10 years’ relevant experience.5 Chaplin was a member of Local 343, which Paulson knew when hiring him. After Chaplin began work, he told Prange that he had signed a salting agreement with the Union. Chaplin thereafter wore union insignia and distributed union lit- 4 Alleged discriminatee Joshua Nickel was deterred from submitting an application by Paulson’s statement that the Respondent was not hiring. 5 Prange and Stephan Galvin were the only other licensed journey- men at Winnebago; they were transferred from another site. The Re- spondent also transferred unlicensed journeyman Jeffrey Severson and apprentice Joe Koziolek. erature without interference from the Respondent. Chap- lin voluntarily left the Respondent’s employ to take a job with a union contractor. Paulson hired apprentice Chad Kosbab on Chaplin’s recommendation; Paulson assumed Kosbab was a union member. In July, the Respondent was at “full force” at Winnebago for a few days with 14– 15 employees. In April, the Respondent took steps toward hiring two individuals for Winnebago whom it believed to be non- union: Weston Wilson and Michael Jongbloedt. Wilson, a member of the Union, called Paulson on April 4. He intentionally misled Paulson, saying he wanted to work for a nonunion employer and fabricating his employment history and references to conceal his union affiliation. On April 5, Wilson again called Paulson. Paulson told him, “You’re one of the guys we’re considering putting on . . . but we . . . have to go through the application process . . . .” The next day, Paulson, who was driving through Wilson’s town on other business, called Wilson to arrange a meeting; he also began checking Wilson’s references. On April 7, after an employer Wilson listed as a reference, Foster Electric, told Paulson that it did not recognize Wilson’s name, Paulson called Wilson, who provided a fictitious supervisor’s name. When the owner of Foster Electric did not recognize the name Wilson had given Paulson, Paulson called Wilson again to confront him with his falsehoods. Wilson secretly taped this phone conversation, as well as several others with Paul- son. Paulson began the conversation by saying, “I called back to Foster Electric again and spoke to the owner,” and then asked Wilson, “You know his name, right?” Wilson replied, “Well, I guess so,” and Paulson de- manded, “Why don’t you know his name? You have been with the guy for five years.” At that point, Wilson admitted that he had never worked for Foster Electric. Paulson asked, “Okay, so who have you worked for?” Wilson responded, “See, I’m a union member and I knew if I told you that you wouldn’t talk to me.” Paulson an- grily responded that he would not talk to Wilson any- more, and that “giv[ing] false information about em- ployment, that’s just outright wrong.” Wilson repeated his belief that Paulson would not have “even asked to talk” with him if Wilson had disclosed his union mem- bership. Paulson replied, “I would have talked to you— I’ve talked to everybody that’s called me. I mean, how do you know that?” Paulson added: “I’ve worked with a lot of union guys . . . so that has nothing to do with any- thing, but ah, I’ll tell you what, Wes, I’ll make a point of . . . making people know if your name comes up exactly what you just did, okay? Thank you very much.” Paul- son concluded by telling Wilson not to bother sending DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 448 his application because the Respondent would not hire him. Wilson subsequently submitted a truthful applica- tion, but the Respondent never contacted him. Jongbloedt had previously worked with Peterson and Prange for a nonunion contractor. Around April 16, Paulson, who had heard that Jongbloedt was unem- ployed, interviewed Jongbloedt at his home and offered him a job to start the next day, when he could complete an application. On April 16, Paulson told union member Ronald Gruenes that the Respondent was “in the middle of hiring some guys right now” for Winnebago—i.e., that Respondent was no longer accepting applications for the Winnebago job—but that something might work out in Wentworth. In addition to its hires for the Winnebago project, the Respondent hired two union electricians, Kory Rawstern and Brian Parsons, for its Wentworth project. The IBEW local in Sioux Falls, South Dakota (not Local 343), re- ferred these two employees. The Respondent had not been able to find journeymen electricians in the Wen- tworth area through owner/employee referrals.6 II. REFUSAL TO CONSIDER The complaint alleged that from March 23 to April 18, the Respondent refused to consider the 23 alleged dis- criminatees. To establish a discriminatory refusal to consider, the General Counsel must show that (1) the Respondent excluded the applicants from a hiring proc- ess, and (2) antiunion animus contributed to the Respon- dent’s decision not to consider the applicants for em- ployment. If the General Counsel meets this burden, the burden shifts to the Respondent to show that it would not have considered the applicants even in the absence of their union activity or affiliation. FES, 331 NLRB 9, 15 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). The judge found that the Respondent refused to con- sider the 23 named individuals as alleged. The judge found that the first FES element was established by evi- dence that the Respondent (1) used phone interviews to screen out union affiliated applicants, and misled the applicants by sending them applications to create a false impression that they were being considered; (2) did not check references provided by, or interview, any of the union applicants; and (3) treated Wilson, a covert union applicant, disparately from the open union applicants. The judge also found that antiunion animus, the second FES element, was established by the evidence of Wil- son’s disparate treatment, by the Respondent’s deviations from its established hiring procedures (discussed more 6 Peterson testified, however, that he had previously worked with Rawstern. Peterson also testified that Parsons had substantial industrial experience. fully below), and by its discontinuance of the job bank ad. The judge cited precedent holding that an employer’s failure to discriminate against every union applicant does not negate the possibility that other union applicants were treated unlawfully. He reasoned that the Respon- dent’s hiring of four known union members (Chaplin, Kosbab, Rawstern, and Parsons) did not outweigh evi- dence of antiunion animus because Chaplin and Kosbab were hired after the Union filed its charge (when the Re- spondent’s hiring practices were under scrutiny),7 and Rawstern and Parsons were not affiliated with Local 343 (the local responsible for the organizing effort), and the Respondent had not been able to meet its hiring needs for the Wentworth job through referrals. Having found that the General Counsel sustained his initial burden under FES, the judge further concluded that the Respondent did not meet its rebuttal burden. The judge found that, during the Union’s organizing effort, the Respondent applied its hiring criteria “inconsistently at best.”8 The judge also found that the Respondent did not follow its usual hiring procedures in at least three instances.9 Finally, the judge found that the April 7 ex- change between Paulson and Wilson belied the Respon- dent’s claim that Wilson’s dishonesty would have elimi- nated him from further consideration. The judge found that the exchange revealed that Paulson turned against Wilson’s job candidacy only when Wilson revealed his union affiliation, not when Paulson discovered that Wil- son had lied. The judge so found because after Wilson admitted that he had never worked for Foster Electric, and before he disclosed his union affiliation, Paulson asked Wilson, “Okay, so who have you worked for?” In the judge’s view, this question showed that Wilson’s admission of mendacity did not deter Paulson from giv- ing Wilson further consideration. The Respondent excepts, arguing that the General Counsel did not meet his initial burden under FES. The Respondent argues that it did not exclude applicants from its hiring process based upon their union affiliation; rather, it applied nondiscriminatory hiring criteria and 7 The judge also discounted the significance of Chaplin’s hiring be- cause, based on Paulson’s, Peterson’s, and Prange’s previous acquaint- ance with Chaplin, the Respondent “may well have trusted Chaplin to refrain from opposing the Respondent on the issue of the Union.” 8 For example, the judge found that the Respondent’s preference for industrial experience did not explain its failure to interview union ap- plicant Jerry Maxfield, who had done much of the original electrical work at Winnebago; its preference for referrals did not explain why most of the employees hired for Winnebago were not referred; its pref- erence for proximity to the job did not explain why it interviewed Wil- son, who lived outside the preferred 60-mile radius from Winnebago, but not union applicants living within the radius. 9 Specifically, the Respondent hired nonreferred applicants William Rindy, Christopher Kirby, and James Andrews. E & I SPECIALISTS, INC. 449 was not required to consider journeymen for apprentice positions, for which they were overqualified. The Re- spondent also argues that antiunion animus did not con- tribute to its decision not to consider applicants. The Respondent contends that it accorded Wilson the same consideration given to open union applicants; that it did not deviate from its hiring policies, but even if it did, minor deviations do not demonstrate animus; that it dis- continued its job bank ad because it had far more appli- cations than openings; and that the judge put it in a “no- win” situation by not giving proper weight to its hiring of union members.10 Finally with respect to animus, the Respondent argues that the only evidence of animus is that the bulk of the union applicants were not hired, and that this evidence is legally insufficient to overcome the Respondent’s legitimate, nondiscriminatory reasons for its actions. The Respondent also contends that, contrary to the judge’s parsing of Paulson’s April 7 conversation with Wilson, a neutral review of that conversation shows that Paulson called Wilson to confront him with his lies and to let him know that those lies cost him consideration for employment. We find merit in the Respondent’s ex- ceptions. With respect to alleged deviations from hiring prac- tices, we disagree with the judge that any such deviations demonstrated antiunion animus. The Respondent began receiving phone contacts from union members shortly after the newspaper ad began running. The Respondent mailed an application to each individual who requested one, and it received 30–40 completed applications, about 24 from union members (most with the union cover letter mentioned above). Paulson reviewed each application when he received it and then filed it. Surreptitiously recorded conversations with Paulson by Stork and Wil- son contradict any inference that Paulson was just going through the motions of considering the union applicants. On the contrary, Paulson stated that he did not “have any problem hiring union guys” and that he had “worked with a lot of union guys . . . so that has nothing to do with anything.” In a similar situation, the Board found it “significant that, based on [employee’s] own recollection of the conversation, [respondent] did not refuse to con- sider [employee] . . . . On the contrary, [respondent] told [employee], ‘we could talk’ if something came up which matched [employee’s] qualifications.” Ambrose Electric, 330 NLRB 78, 83 (1999). Moreover, by the time the union members’ applica- tions began coming in, project delays had impacted the 10 The Respondent also argues that the judge’s speculation that Paul- son may have trusted Chaplin not to organize punishes it for following its policy of hiring individuals it knows. We agree. Respondent’s hiring plans. The General Counsel con- cedes that the Respondent, contrary to its original plans, did not begin hiring in earnest until June. Thus, even assuming union applicants were excluded at all, it is far from clear that the Respondent excluded them from the hiring process during the time period alleged in the com- plaint, namely, March 23 to April 18. Even assuming arguendo that the applicants were ex- cluded from the hiring process, we do not find that anti- union animus contributed to the decision to exclude them. In his posthearing brief to the judge, the General Counsel asserted that animus was established by (1) al- leged 8(a)(1) threats and interrogations by Paulson in unrecorded conversations with Wilson; (2) the Respon- dent’s membership in the Independent Electrical Con- tractors Association (IECA); and (3) Paulson’s state- ments to Stork that the Respondent hires on an “individ- ual basis,” an alleged “code phrase” for not considering union members. The judge explicitly rejected the first two of these bases for finding animus.11 The third basis, individual hiring as a “code” for animus, is contrary to precedent and specious. An employer can lawfully “only accept applications, asked for and filled out in person by the applicant.” Cf. Bay Electric, 323 NLRB 200, 202 (1997). Paulson repeatedly told Stork that he would “look at” union applicants (indeed, there were a couple that looked “pretty good”) and that the door was open for hiring union applicants on an individual basis. Given the above findings by the judge, and applicable Board precedent, the General Counsel changed tack in his answering brief, relying on the Respondent’s pur- ported deviations from its hiring procedure to establish animus. We agree with the Respondent that any devia- tions, to the extent they existed, were minor12 and do not 11 As previously noted, the judge, discrediting Wilson, found no 8(a)(1) threats. Additionally, the judge found that the Respondent’s membership in the IECA does not, standing alone, prove animus. 12 The alleged deviations (e.g., employment offered prior to com- pleted application) occurred when an owner had worked with the appli- cant or when an employee highly recommended an applicant. For example, although the Respondent recruited Jongbloedt while ignoring the union submitted applications, Jongbloedt met the “known quantity” preference, having been referred to Paulson by both Prange and Peter- son, both of whom had worked with Jongbloedt in the past. Notably, the Respondent “deviated” similarly when it hired known union appli- cants Chaplin (offered a job over the phone without an in-person inter- view; turned in application first day on the job), Kosbab (hired without reference check because referred by Chaplin), and Rawstern (hired without reference check because had worked same projects as Peter- son). Under Board precedent, it is lawful to require “stranger” appli- cants to complete applications while not requiring the same of known applicants. Custom Topsoil, Inc., 328 NLRB 446, 447 (1999). Cases such as Norman King Electric, 334 NLRB 154 (2001), and Fluor Daniel, Inc., 333 NLRB 427 (2001), cited by the judge, are distinguish- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 450 establish animus.13 We also find the other bases that the judge relied on to infer animus, that is, the Respondent’s disparate treatment of Wilson14 and the discontinuance of the job bank ad, insufficient to support that inference. III. REFUSAL TO HIRE The complaint alleged that, since about March 23, the Respondent unlawfully refused to employ the same 23 alleged discriminatees that it allegedly refused to con- sider. To establish a discriminatory refusal to hire, the General Counsel must show that (1) the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) the applicants had experi- ence or training relevant to the announced or generally known position requirements, or alternatively, that the respondent had not adhered uniformly to such require- ments, or that the requirements were themselves pretex- tual or applied pretextually; and (3) antiunion animus contributed to the decision not to hire. If the General Counsel meets this burden, the burden shifts to the re- spondent to show that it would not have hired the appli- cants even in the absence of their union activity or af- filiation. FES, above at 12. As stated above, the judge found the alleged refusal-to- hire violation. The judge found that the General Counsel met his initial FES burden by proving that the Respon- dent hired about 12 electricians for Winnebago from April through July, that the alleged discriminatees had relevant experience or training, and that antiunion ani- mus contributed to the decision not to hire. To show animus, the judge relied on the same evidence he relied on in finding the refusal-to-consider violation: disparate treatment of Wilson, deviations from hiring procedures, and discontinuance of the job bank ad. Also for the same reasons mentioned above, the judge discredited the Re- spondent’s proffered reasons—lack of referrals, nonprox- imity to the Winnebago site, Wilson’s dishonesty—for not hiring the union applicants. able, involving situations where employers had changed policies to prevent union applicants from applying. 13 Zurn Nepco, 316 NLRB 811, 818 (1995) (no violation where re- spondent followed hiring procedures “in almost all cases”). 14 The General Counsel claimed that Paulson’s interview of Wilson at a local restaurant and Paulson’s extension of a job offer to Wilson pending a reference check were deviations from the normal hiring routine that established animus. The latter misrepresents the record— Paulson did not extend an offer to Wilson; moreover, it was precisely because Paulson followed the Respondent’s policy of checking refer- ences that it detected the lie that ultimately led to its decision not to hire Wilson. Even assuming that Paulson’s interviewing of an applicant while swinging through town was unusual, we do not believe that the record evidence is sufficient to establish an inference that the Respon- dent’s treatment of Wilson was motivated by antiunion animus. The Respondent again excepts, arguing that while it had plans to hire, its plans changed such that it did not hire anyone who responded to the local newspaper ad, union or nonunion. Also, as above, the Respondent ar- gues that the journeymen applicants were overqualified for apprentice positions. Finally, the Respondent reiter- ates that the General Counsel did not establish the requi- site animus. We agree with the judge that the General Counsel es- tablished the first two elements of its prima facie case. Regarding the first element, the Respondent is correct that construction delays resulted in little actual hiring by May 16, when the Union filed its charge. But the Re- spondent’s newspaper ad indicates that the Respondent had concrete plans to hire, and, in fact, between April and July, it did hire about 12 employees for the Winne- bago project. Regarding the second element, the Re- spondent argues that the applicants were overqualified. Regardless of the merits of this argument, the record shows that the Respondent filled three journeymen posi- tions, and the General Counsel established that the al- leged discriminatees possessed experience and/or train- ing relevant to those three positions. However, as to the third element, we disagree with the judge that the General Counsel established animus. There is no direct evidence of animus in the record, nor any reasonable basis for inferring it.15 Mere knowledge that a pool of applicants is union affiliated and the subse- quent failure to hire any of them is insufficient to support a finding of animus.16 The Respondent’s stated prefer- ence that it remain nonunion is also, standing alone, in- sufficient to establish animus.17 Not only is there no direct evidence of animus, but there is evidence negating animus. Indeed, an em- ployer’s main defense against a finding of antiunion animus is a showing that it actually hired union appli- cants. Shell Electric, above, 325 NLRB at 841; J. O. Mory, Inc., above, 326 NLRB at 605. Here, the Respon- dent hired several union members. We disagree with the judge’s finding that the Respondent’s hiring of union affiliated applicants Chaplin and Kosbab did not negate a finding of animus because they were hired after the Un- ion filed the unfair labor practice charges. In Shell Elec- tric, above, the judge, implicitly rejecting an argument 15 Nothing Paulson said, other than statements Wilson claimed Paul- son made in the untaped conversations with Wilson that the judge discredited, was alleged to violate Sec. 8(a)(1). 16 Rondout Electric, Inc., 329 NLRB 957, 966–967 (1999); Shell Electric, 325 NLRB 839, 840 (1998) (no prima facie case where non- union employer simply fails to hire union member; the General Counsel must prove knowledge, animus, and causal connection). 17 J. O. Mory, Inc., 326 NLRB 604, 605 (1998). E & I SPECIALISTS, INC. 451 that the employer was trying to “build a case,” refused to infer animus where the employer similarly hired a union member after the charge was filed. There, the Board affirmed the judge’s conclusion that the General Counsel had not sustained his prima facie case where 4 of the 12 employees hired were union members. Here, the num- bers are even stronger—one in three licensed journeymen hired for Winnebago was union. Moreover, Chaplin and Kosbab were hired in June, when most of the hiring for the delayed Winnebago job took place. The timing of their hiring is more plausibly explained by that fact than by the judge’s suspicion of postcharge case building. The judge also discounted the Respondent’s hiring of known union members Rawstern and Parsons for the Wentworth job because those applicants were members of a different IBEW local that apparently did not have a salting campaign underway. But the judge’s reasoning is undercut by the Respondent’s treatment of Chaplin. The Respondent hired Chaplin for the Winnebago job after it had been informed of Local 343’s organizational inten- tions for that job, and knowing that Chaplin was a mem- ber of that local. Thus, the evidence shows that the Re- spondent willingly hired union members regardless of whether it viewed them as likely to engage in organiza- tional activity. We therefore reject the judge’s implica- tion that Rawstern and Parsons were hired because the Respondent thought they would not trouble the waters. IV. SUMMARY In sum, we find that the General Counsel failed to es- tablish antiunion animus so as to make out either a re- fusal-to-consider or a refusal-to-hire prima facie case. Accordingly, we dismiss the complaint. ORDER The recommended Order of the administrative law judge is reversed and the complaint is dismissed. Karen Nygren Wallin, Esq., for the General Counsel. Alec Beck, Esq. and Marc Chrismer, Esq. (Seaton, Beck & Pe- ters), of Edina, Minnesota, for the Respondent. Allan Stork, of Rochester, Minnesota, for the Charging Party. DECISION STATEMENT OF THE CASE PAUL BOGAS, Administrative Law Judge. This case was tried in Minneapolis, Minnesota, on October 10 and 11, 2001. The charge was filed by the International Brotherhood of Electrical Workers, Local 343 (the Union) on May 16, 2001, and the Re- gional Director for Region 18 of the National Labor Relations Board (the Board) issued the complaint on August 10, 2001. The complaint alleges that E & I Specialists, Inc. (the Respon- dent) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by refusing to hire and consider for hire 23 individuals because those individuals supported or assisted the Union and engaged in concerted activities. The complaint also alleges that the Respondent interfered with, restrained, and coerced employees in violation of Section 8(a)(1) by threaten- ing and interrogating one or more individuals. The Respondent filed a timely answer in which it denied the substantive allega- tions of the complaint. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Respondent is an electrical contractor with an office and place of business in Lakeville, Minnesota. In conducting its business, the Respondent received gross revenues in excess of $50,000 from sales and service provided to customers located outside the State of Minnesota, and has purchased and received at its Minnesota facilities goods valued in excess of $50,000 directly from points outside the State of Minnesota. The Re- spondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent performs electrical and instrumentation con- tracting work, most of it industrial in nature. It is based in Lakeville, Minnesota, and has performed work in the States of Minnesota, Iowa, Missouri, and South Dakota. Jeffrey Paulson and Jeffrey Peterson are the owners of the Respondent, which they cofounded approximately 3 years ago. Since then, the Respondent’s work force has grown from 2 or 3 employees, up to over 20 employees at the time of trial. Paulson is the Re- spondent’s vice president and Peterson is its president. The Respondent has never been a union contractor and its employ- ees have never been represented by a union for collective- bargaining purposes. On March 16, 2001, the Respondent was awarded the con- tract to perform the electrical work for an expansion of the Corn Plus ethanol plant in Winnebago, Minnesota. The con- tract was formalized on March 27, 2001. The Respondent originally estimated that it would have 15 or 16 employees working at the Winnebago project. The contract called for the Respondent to substantially complete the work by June 5, 2001. This deadline was pressing enough that the Respondent placed a help wanted advertisement for new employees even before the contract for the work was finalized. The advertisement appeared in the Mankato Free Press newspaper from March 21 to 28, 2001, and read: Industrial/Electrical Contractor is immediately hiring licensed journeymen & apprentice electricians for projects in so MN. Competitive wages & benefits are available to qualified appli- cants. Contact Jeff Paulson @ [two telephone numbers]. The advertisement was prepaid for 1 week and terminated at the end of that week without further action by the Respondent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 452 The Respondent had also been running a help wanted adver- tisement with the Minnesota job service/job bank since Febru- ary 2000. This advertisement, which could be accessed on the internet and was maintained at no cost to the Respondent, was a general call for electricians. The job service/job bank adver- tisement was amended as of April 10, 2001, to specifically refer to potential employment at the Winnebago jobsite. (Tr. 84.) During the period that the Respondent was seeking to hire elec- tricians for the Winnebago project, it was also hiring electri- cians for a jobsite in Wentworth, South Dakota. Les Prange was the Respondent’s foreman for the Winne- bago project. He arrived at the jobsite during the last week of March 2001, and was the first of the Respondent’s workers to start there. Upon his arrival, Prange discovered that the work of the mechanical contractors was behind schedule. This meant a delay for the Respondent’s work since some aspects of the electrical contracting could not begin until after the completion of mechanical work. The Respondent’s work at the Winnebago jobsite was also affected by delays in the delivery of important equipment and alterations in the measurements for part of the construction. Shortly after arriving at the Winnebago jobsite, Prange told Paulson that the Respondent would not need as many employ- ees as was originally anticipated because the delays were going to mean that the same amount of electrical work would take place over a longer period of time. Paulson testified that the Respondent originally believed it had only 10 weeks to com- plete the job, but the delays meant it would have 16 to 18 weeks to complete the same amount of electrical work. The change in forecast notwithstanding, on April 10 the Respon- dent’s job service/job bank advertisement was amended to spe- cifically seek employees for the Winnebago project. Allan Stork, an organizer with the Union, became aware that the Respondent had been awarded the contract for the expan- sion of the ethanol plant in Winnebago. When Stork saw the Respondent’s help wanted advertisement in the Mankato Free Press he made copies of it and sent them to union members whose jobs were ending, as well as to union officials. The copies that Stork circulated had a number of his handwritten notations, including the following: “[t]his company is a serious threat to our standard of living; [p]lease call and ask for an application; [w]hile on the phone, ask about wages and bene- fits; [a]sk co-workers to call also; [c]all me when you get your application.” Starting on March 25, 2001, the 23 alleged discriminatees began contacting the Respondent to discuss employment. (GC Exh. 12.) Most of these contacts were made by telephone.1 The conversations varied somewhat, but generally the prospec- tive applicants talked to Paulson and told him they had seen the help wanted advertisement and were seeking employment. Paulson asked the callers about their work experience and prior employers, and offered to send each an application. In at least one case, Paulson informed the applicant that he would be con- sidered for the Respondent’s project in Wentworth, South Da- 1 An exception is alleged discriminatee Timothy Goebel, who went to the Winnebago jobsite and applied in person. kota, instead of, or in addition to, the Winnebago job. (GC Exh. 14.) Twenty-two of the 23 alleged discriminatees received and completed the application materials.2 Of these, a few returned the applications directly to the Respondent, but most gave their applications to Stork or to Mark Maguet—another organizer with the Union—who in turn mailed the applications to the Respondent along with cover letters signed by Steven B. Lusk, the business manager of the Union. The cover letters accompa- nied the applications of at least 17 of the alleged discriminatees and stated, inter alia, that the applicants: were members of the Union; had been certified as journeymen; were willing to work under the same terms and conditions the Respondent had ex- tended to other employees; and would not allow any protected activities to interfere with their efficiency and productivity as employees. (GC Exh. 10.) Many of the applicants also re- vealed their union affiliation in other ways—for example, by identifying one or more union contractors as a prior employer, or by mentioning their union training or status.3 The Respondent began to receive the completed application forms and cover letters on April 10. On the applications re- ceived at trial, 11 of the alleged discriminatees indicated that they were seeking work as journeyman electricians,4 8 stated that the position they were seeking was simply “electrician,”5 1 stated that he was seeking a position as an apprentice,6 and 1 stated that he was seeking work as an electrician foreman.7 Twenty of the alleged discriminatees indicated on their applica- tions that salary was negotiable or that they had no particular salary demands.8 Among these applicants were a number who were currently unemployed, or knew that they would soon be laid off. Others applied even though they had secure jobs, 2 The only exception is Joshua Nickel, who testified credibly that he talked to Paulson by telephone on April 18, 2001, and was deterred from submitting an application by Paulson’s statement that the Respon- dent was not hiring. The applications located by the Respondent, and submitted by the parties as a joint exhibit, did not include an applica- tion from alleged discriminatee Timothy Goebel, but I credit Goebel’s testimony that he completed and submitted an application at the Win- nebago jobsite. 3 The four alleged discriminatees whose applications were not shown to have been accompanied by the cover letter from the Union were Earl Bushbaum, Gregory Collins, Timothy Goebel, and Ronald Gruenes. These individuals listed one or more union contractors among their former employers or otherwise revealed their union affiliation. Jt. Exh. 6; Tr. 153, 224–225; GC 12. Joshua Nickel did not submit an applica- tion or a cover letter from the Union, and did not affirmatively reveal his union affiliation to the Respondent. 4 These were: Michael Borchardt, Jeremiah Flotterud, Ronald Grue- nes, Chad Hacker, Trevor Hansen, Bradley Nelson, Robert Olson, Tracy Saunders, Thomas Small, Allan Stork, and Wesley Urevig. The record does not support the Respondent’s contention that “all 24 of the applications forwarded by Local 343 were for journeyman positions.” R. Br. 11 fn. 4. 5 These were: Richard Brua, Earl Bushbaum, Kenneth Jenson, Ste- ven Lusk, Mark Maguet, Mark Rutten, Robert Schupp, and Weston Wilson. 6 Gregory Collins. 7 Jerry Maxfield. 8 The exception is Robert Olson, who under “salary desired” wrote “$24.00 per Hr + Benefits.” E & I SPECIALISTS, INC. 453 closer to their homes than Winnebago was, that paid better wages than the Respondent was offering. Four of the alleged discriminatees were employed full time by the Union in the positions of organizer or business manager. Paulson was responsible for making the hiring decisions for the Winnebago project. He did not choose to hire, interview, or contact any of the alleged discriminatees after receiving their written applications.9 Sometime in April, after April 10, the Respondent discontinued the job service/job bank advertise- ment it had run for over a year. Paulson testified that he dis- continued the advertisement because the Company already had more than enough applicants and he did not want to encourage more people to apply. However, Peterson conceded that during that period the Company was having trouble finding enough electricians for its project in Wentworth, North Dakota. Within 5 months of when the Respondent began the Winne- bago project, Paulson hired 12 individuals to work there. In April, Paulson hired Keith Schroeder as a licensed journeyman, Robin Hanson as an unlicensed journeyman, and Justin Bok as a laborer. (Jt. Exh. 4.) There were no new hires in May, but hiring resumed in June when Paulson hired Gary Chaplin as a licensed journeyman,10 Wade Nelson as an unlicensed jour- neyman, and Chad Kosbab, Jeffrey Hiller, Richard Lampman, Joseph Maxwell, and Ken Wheeler as apprentices. Id. In July, Paulson hired Ryan Linde11 as a licensed journeyman, and Ron Barnick and Dave Paulson as apprentices. Id. In all, Paulson hired three licensed journeymen, two unlicensed journeymen,12 seven apprentices, and one laborer for Winnebago. The Re- spondent also transferred four or five other employees to the Winnebago project from other jobs. Id. In July, the Respon- dent’s manpower there was at its “full force” of approximately 14 or 15 employees—1 or 2 employers fewer than the Respon- dent originally anticipated.13 9 Alleged discriminatee Weston Wilson was contacted and inter- viewed, but as is discussed below, this was before the Respondent received Wilson’s application, or was aware of his union affiliation or activity. 10 Chaplin had actually been offered the job at the end of May 2001, but did not begin his employment until the next month. 11 The parties agree that Ryan Linde was hired on July 10, 2001. R. Br. 7; GC Br. 43 fn. 37. This is contrary to the information contained in Jt. Exh. 4, which states that Linde was hired on November 1, 1999. Since the parties concur regarding the July 10, 2001 hiring date, I as- sume that it is correct. 12 The Respondent indicates that it hired only three journeymen for the Winnebago job. R. Br. 16–17 and fn. 6. It apparently arrives at this figure by excluding the individuals who its own records show it em- ployed as journeymen, but who, in fact, lacked State journeyman li- censes. 13 During the period from March 21 until July 18, 2001, the Respon- dent also hired 13 individuals to work on a project in Wentworth, South Dakota. Jt. Exh. 4. Of these, four were hired as licensed journeymen, two as unlicensed journeymen, and seven as apprentices. On August 6, 2001, the Respondent hired one licensed journeyman and two appren- tices for work on a new construction project. Id. There is at least some indication that the Respondent would consider an individual for an opening at another project even if that individual contacted Paulson to seek employment at the Winnebago jobsite. See GC Exh. 14. How- ever, I will not decide whether the alleged discriminatees should have been considered or hired for positions at jobsites other than the one in The Respondent also took steps to hire at least two individu- als for the Winnebago job who ultimately did not end up work- ing for the Respondent. One was Michael Jongbloedt. Jongbloedt had been laid off by his previous employer on April 15, and a third party informed Prange of this. At the time, Jongbloedt was not a union member and had been working for nonunion contractors. Years earlier he had worked with Paul- son, Peterson, and Prange at a nonunion contractor, although Jongbloedt’s testimony indicated that he had little, if any, recol- lection of Peterson and Paulson. Prange told Peterson he had heard that Jongbloedt might be available and, on the night of April 15, Peterson contacted Jongbloedt and invited him to visit the Winnebago site and talk to Paulson in person the next day. This meeting did not occur, but, on the evening of April 16, Paulson made a stop at Jongbloedt’s home, interviewed him, and offered him a position as a journeyman at the Winnebago jobsite. Paulson informed Jongbloedt that he could start work the next day and fill out an application afterwards. Paulson explained to Jongbloedt that the Respondent’s employees sometimes worked at jobsites far from their homes, and that employees in that situation usually shared a rented house near the work location. Jongbloedt told Paulson that he needed time to consider his options. Jongbloedt subsequently contacted the Union about the possibility of becoming a union electrician. On Friday, April 20, Jongbloedt decided to join the Union and left a phone message for Paulson stating that he had taken another job. The same day that Paulson visited Jongbloedt’s home to interview him and make a job offer without a prior application, Paulson had told Ronald Gruenes, a union electrician whose previous employers were union contractors, that the Respon- dent was no longer taking applications for the Winnebago job. Another individual who the Respondent took steps towards hiring was Weston Wilson. Wilson is a union member, and one of the alleged discriminatees in this case, but during his initial contacts with Paulson he intentionally gave the false impression that he was opposed to unions and was not a union member. On April 4, during their first telephone conversation, Wilson asked Paulson if the Respondent was a union or a nonunion contractor and when Paulson responded “nonunion,” Wilson said, “[G]ood because I want to work nonunion.” During his contacts with Paulson, Wilson gave a fabricated employment history designed to conceal his union affiliation. Paulson asked Wilson to meet him for a face-to-face interview before Wilson had even received an application form. While none of the al- leged discriminatees who were open about their union member- ship were ever offered an in-person meeting with Paulson, Paulson rushed to arrange one with Wilson, telling Wilson on April 5 that he wanted to meet with him “today or tomorrow if that would be possible.” Before Paulson had seen Wilson’s application or checked his references, Paulson told Wilson on April 5 that “you’re one of the guys we’re considering putting on . . . but we . . . have to go through the application process and all that other stuff.” Paulson then contacted Wilson’s sup- Winnebago since that question was not fully litigated. In its brief, the General Counsel only alleges that the alleged discriminatees should be instated based on openings at the Winnebago jobsite. See GC Br. 43; Jt. Exh. 4. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 454 posed former employer, Foster Electric, but the person he spoke to did not recognize Wilson’s name. On April 7, Paulson spoke with Wilson by telephone about the problem and Wilson stated that Paulson could talk to “Fred Meyers,” a fictitious supervisor at Foster Electric. Paulson contacted Foster Electric, spoke to the owner, and apparently concluded that Wilson had never worked there. Despite that revelation, Paulson called Wilson again on April 7. Under questioning by Paulson, Wilson admit- ted that he had never worked for Foster Electric. This admis- sion apparently did not deter Paulson from giving Wilson fur- ther consideration, since Paulson then asked, “Okay, so who have you worked for?” At this point Wilson stated, “Well that’s the thing. See I’m a union member and knew if I told you that you wouldn’t talk to me.” Paulson responded, “Okay, well I won’t talk to you, not anymore.” Paulson became angry and told Wilson that it was wrong to lie and that the Respon- dent would not hire him. I find based on the totality of the evidence that prior to the second conversation between Wilson and Paulson on April 7, Paulson believed Wilson’s statement that he preferred to work for a nonunion contractor. Wilson subsequently submitted an application on which he truthfully stated his work history with union contractors, but he was not contacted again or hired by the Respondent. Among the persons that the Respondent hired for the Winne- bago and Wentworth jobs were several who the Respondent knew were union members. Among these was Gary Chaplin, who had worked with Paulson, Peterson, and Prange before the Respondent was founded. Paulson testified credibly that he knew Chaplin was a union member at the time he hired him. Shortly after Chaplin began work with the Respondent as a journeyman, he revealed to Prange that he had signed a “salt- ing”14 agreement with the Union. During his employment with the Respondent, Chaplin distributed union literature and wore a hat and shirt with union insignias or prounion messages on them. The Respondent was aware of this activity, but Chaplin was never disciplined and he testified that he felt no pressure from Paulson or Peterson due to his union activity. Chaplin left the Respondent voluntarily when he was offered a job with a union contractor. Paulson also hired Chad Kosbab as an ap- prentice based on Chaplin’s recommendation, even though Paulson assumed that Kosbab was also a union member. The Respondent hired two union electricians—Kory Rawstern and Brian Parsons—for its project in Wentworth, even though those individuals had been referred to the Respondent by a union official. Rawstern and Parsons were referred by the union local based in Sioux Falls, South Dakota, not by the Minnesota-based union local that mounted the organizing effort and filed the charge that led to the instant proceeding. Peterson testified that the Respondent hired Rawstern and Parsons because there were “not a lot of electricians” in the Wentworth area and the Re- spondent had been unable to meet its requirements for jour- neymen electricians through referrals. (Tr. 27.) 14 Salting refers to the “the act of a trade union in sending a union member or members to an unorganized jobsite to obtain employment and then organize the employees.” Tualatin Electric, Inc., 312 NLRB 129, 130 fn. 3 (1993), enfd. 84 F.3d 1202 (9th Cir. 1996). B. Paulson’s Alleged Unlawful Statements to Wilson Wilson had six conversations with Paulson about working for the Respondent. Five of these were on the telephone, and one was face-to-face. Unknown to Paulson, Wilson tape re- corded four of the five telephone conversations. Copies of these tape recordings were submitted as exhibits at trial, along with written transcripts of what was said. The General Counsel does not allege that any of the statements memorialized on these tape recordings constituted threats or interrogations. However, the General Counsel does allege that during the only two conversations with Paulson that Wilson did not record, Paulson threatened and interrogated Wilson. To support its claim of unlawful threats the General Counsel relies on Wil- son’s testimony about those two conversations. Wilson testi- fied that, on April 4, Paulson told him that the Respondent had discontinued the advertisement in the Mankato paper because most of the response was from union members. Wilson also testified that, on April 6, Paulson said: that if Wilson ever wanted to work as a union member the Respondent’s company was not the place for that employment; that as long as Paulson and Peterson owned the Respondent, it would not be a union employer; and, that applications from union members were not “good.” As evidence of unlawful interrogation, the Respondent relies on Wilson’s testimony that during the unrecorded con- versation with Paulson on April 6, Paulson asked, “[D]id you ever check with the Union hall in Mankato for work.” Paulson testified, contrary to Wilson, that he did not make any of these alleged statements. Based on Wilson’s demeanor and the record as a whole, I do not credit his testimony that Paulson made the statements that are alleged to violate Section 8(a)(1). At the outset, I note that it is suspicious that the offending statements are alleged to have been made during the only two conversations between Wilson and Paulson for which no recordings were offered. Since Paul- son was not aware he was being taped it is improbable that he would reserve unlawful threats and interrogations for the two conversations for which there is no tape recording to turn for corroboration. I also note that the General Counsel submitted recordings or written accounts of 16 other conversations be- tween union applicants and Paulson (GC Exhs. 9, 12, 14), and that in none of those conversations is it alleged that Paulson made any statements that violated the Act. Moreover, Wilson’s claim that Paulson said he discontinued the advertisement in the Mankato paper because of the response from union members is dubious given Paulson’s uncontradicted testimony, supported by documentary evidence, that before the advertisement in the Mankato Free Press had even started to appear (and therefore, before the union members responded) that advertisement was slated to expire automatically on March 28.15 A cloud is also cast over Wilson’s testimony by his admis- sion at trial that he is willing to lie for what he considers a “good cause.” (Tr. 207.) Moreover, his false statements to Paulson were not simple misrepresentations, but ones that re- 15 It does not appear that Wilson could have been thinking of the dis- continuance of the Minnesota job service/job bank advertisement, be- cause the Respondent did not discontinue that advertisement until some time after April 7. E & I SPECIALISTS, INC. 455 quired some premeditation. Prior to speaking with Paulson, Wilson used the internet to find the name and location of an electrical contractor that he would falsely identify as a former employer. When Paulson subsequently challenged Wilson with the fact that the employer did not recognize Wilson’s name, Wilson fabricated the name of a supervisor who he said the Respondent could contact. Under different circumstances it would make sense to credit the sworn trial testimony of a wit- ness, even though he or she had made false, unsworn, state- ments while operating “undercover.” However, in combination with the other factors discussed above, I believe that Wilson’s admitted willingness to deceive undermines the credibility of his testimony regarding Paulson’s alleged unlawful statements. I find that the General Counsel has failed to carry its burden of proving that Paulson made any of the statements alleged to violate the Act. Therefore, the complaint allegation that the Respondent violated Section 8(a)(1) by threatening and interro- gating employees (complaint pars. 5 and 7) should be dis- missed. C. Respondent’s Hiring Process The Respondent has no written hiring policy, but does have an unwritten one. The Respondent describes its policy this way: a) Industrial experience is preferred. [The Respon- dent] will especially consider candidates with experience working on ethanol plants or in industry in which custom- ers are involved. b) Applicants with personal referrals from successful employees or owners of [the Respondent] are preferred. Applicants with evidence of character, integrity and good performance and conduct with prior employers are pre- ferred. c) Present availability for work and proximity to job site are preferred. Otherwise, satisfactory applicants living close to the job who are not employed are strong candi- dates for employment. d) Applicants who rank highly in one or more of the above listed items are preferred, even if they have less electrical construction experience or credentials. (Jt. Exh. 5; Tr. 366.) Peterson testified that after the initial phone contact with a prospective employee, the Respondent will send the individual an application. (Tr. 21–23.) After the Respondent receives the application back from the prospective employee, it will look over the individual’s work history and possibly contact the references listed. Id. The next step is to arrange to meet the individual face-to-face and talk to them about terms of employment, such as hours, wages, benefits, and the location of the work. Id. Peterson testified that before hir- ing someone, the Respondent will have a completed application from them, will have checked their references, and interviewed them face-to-face. (Tr. 23.)16 16 Paulson’s testimony regarding the hiring process, Tr. 40ff., was somewhat at odds with Peterson’s testimony. Based on demeanor and the testimony itself, I found Paulson to be the less reliable of the two witnesses on this score. Paulson’s account of the hiring process was vague, and he seemed intent on describing a process so nebulous that The record indicates that, during the Union’s organizing ef- fort, the Respondent applied these policies and procedures in- consistently at best. Although the Respondent states that it refused to hire the alleged discriminatees, in part, because they were not referred by the owners or employees of the Company, the record shows that the Respondent hired other individuals— for example William Rindy, Christopher Kirby, and James Andrews—who also were not referred by the employees or owners of the company. (Tr. 332–333, 343–344.) In fact, the majority of the 12 persons hired by the Respondent for the Winnebago project were not shown to have been referred by an employee or owner of the Company. Furthermore, the record does not support the contention that selection criteria based on proximity to the jobsite were consis- tently applied. For example, the Respondent hired Joseph Maxwell, who lived in Mankato, Minnesota, to work at the Winnebago jobsite, but did not hire or even arrange in-person interviews with alleged discriminatees Kenneth Jenson and Mark Rutten—highly qualified union electricians who also lived in Mankato. (Jt. Exh. 6.)17 Wilson, who lived in Owa- tonna, Minnesota, approximately 77 miles by car from Winne- bago (Jt. Exh. 2) and Rand McNally Standard Highway Mile- age Guide (1982 ed.), see also Hartford Fire Insurance Co. v. Orient Overseas Containers, 230 F.3d 549, 556 (2d Cir. 2000) (taking judicial notice of Rand McNally publication showing distances between cities), and who intentionally gave Paulson the false impression that he opposed unions, was granted an in- person interview and his employment references were checked before he even submitted an application. However, alleged discriminatee Robert (Mike) Borchardt—a highly qualified applicant who lived in Fairmont, Minnesota, approximately 25 miles by car from Winnebago, id.—was not hired or granted an in-person interview and the Respondent never checked his ref- erences. The same treatment was received by alleged discrimi- natee Mark Maguet, who lived in Minnesota Lake, Minnesota, less than 40 miles by car from Winnebago, id., as well as by Jenson and Rutten, both of whom lived in Mankato about 35 miles by car from Winnebago. Id. The credibility of the Re- spondent’s assertion that it rejected applicants because they lived too far from a jobsite is further eroded by the evidence that the Respondent’s employees shared a rental house or a motel room near the jobsite when the work was too distant from home to permit a daily commute. no hiring decision could be inconsistent with it. Peterson’s testimony regarding the hiring process was more straightforward and clear, and, I am convinced, more reliable. 17 Both Jenson and Rutten stated on their applications that they were applying for the position of “electrician” and that salary was negotiable. The Respondent’s help wanted advertisement was seeking both “li- censed journeymen & apprentice electricians.” Although both Jenson and Rutten were apparently licensed as journeymen, their applications for “electrician” positions encompass both journeyman electrician positions and apprentice positions. The record contains no credible evidence that either of these applicants indicated that they were exclu- sively interested in journeyman positions. Nor has the Respondent offered evidence of any reason why a licensed journeyman electrician willing to work as an apprentice should not, or could not, do so. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 456 Although most of the alleged discriminatees had significant experience with industrial electrical work, none was hired and none, except covert union member Wilson, was even granted an in-person interview. Indeed, although the first principle of the Respondent’s hiring policy is to “especially consider candidates with experience working on ethanol plants,” the Respondent did not hire, or arrange an in-person meeting with, Jerry Max- field who had done much of the original electrical work at the Winnebago ethanol plant itself, and had been an electrician for approximately 18 years. The record also shows that, in selecting employees for the Winnebago project, the Respondent failed to follow its hiring procedure which included an application, then proceeded with a review of the applicant’s work history and references, and fi- nally moved to a discussion with the applicant about the terms of employment. Indeed, the evidence showed that in a number of cases the Respondent offered employment to persons who had not even completed applications. Kosbab, for example, was offered a job before the Respondent received an applica- tion from him or checked his work history, and despite the fact that Paulson, Peterson, and Prange did not know him. Similarly, the Respondent offered Jongbloedt a job without first obtaining an application from him or checking his references. Instead, Jongbloedt was told that he could start work and complete an application afterwards. Wilson, an alleged discriminatee who concealed his union affiliation, was interviewed in-person, and his references were checked before the Respondent received an application from him. On the other hand, the alleged discrimi- natees who were open about their union affiliation were re- quired to submit an application as a first, and only, step prior to rejection. D. The Complaint Allegations The complaint alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by refusing to consider for employ- ment, or to employ the following individuals because they joined, supported, or assisted the Union, and engaged in con- certed activities: Robert (Mike) Borchardt, Richard Brua, Earl Bushbaum, Gregory Collins, Jeremiah Flotterud, Timothy Goebel, Ronald Gruenes, Chad Hacker, Trevor Hansen, Ken- neth Jenson, Steven Lusk, Mark Maguet, Jerry Maxfield, Brad- ley Nelson, Joshua Nickel, Robert Olsen, Mark Rutten, Tracy Saunders, Robert Schupp, Thomas Small, Allan Stork, Wesley Urevig, and Weston Wilson. The complaint further alleges that the Respondent interfered with, restrained, and coerced em- ployees in violation of Section 8(a)(1) through the use of threats and interrogation. Analysis Failure to Consider and Failure to Hire18 In FES, 331 NLRB 9 (2000), the Board set forth the frame- work for analyzing both refusal-to-consider allegations and refusal-to-hire allegations. In order to establish a discrimina- 18 As discussed above, I find that the General Counsel had failed to establish that any of the statements alleged to constitute unlawful threats or interrogation were made. Therefore, the complaint allega- tions regarding that conduct should be dismissed. See complaint pars. 5 and 7. tory refusal-to-consider violation, the General Counsel must show: (1) that the respondent excluded the applicants from a hiring process; and (2) that antiunion animus contributed to the decision not to consider the applicants for employment. Wayne Erecting, Inc., 333 NLRB 1212 (2001) (citing FES, supra). If the General Counsel makes these showings, then the burden shifts to the Respondent to show that it would not have consid- ered the applicants even in the absence of the applicants’ union activity or affiliation. Id. In order to establish a refusal-to-hire violation, the General Counsel must show: (1) that the respon- dent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known re- quirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants. Id. If the General Counsel makes these showings, then the burden shifts to the Respondent to show that it would not have hired the applicants even in the absence of the applicants’ union activity or affiliation. Id. I conclude that the General Counsel has succeeded in prov- ing that the Respondent unlawfully excluded the alleged dis- criminatees from its hiring process based on their union affilia- tion, or on its belief or suspicion that they would engage in union organizing activity if hired. The General Counsel meets the first element of its initial burden by proving that the Re- spondent excluded the alleged discriminatees from the hiring process. The record shows that the alleged discriminatees be- gan to individually contact the Respondent to apply as early as March 25, 2002, only 4 days after the Respondent’s help wanted advertisement first appeared in the Mankato Free Press. Generally, these contacts were made by calling Paulson at the phone numbers listed in the Respondent’s advertisement. Al- though the Respondent concedes that the alleged discriminatees were all qualified for the positions at issue, not one of the al- leged discriminatees who was open about his union work his- tory or affiliation was even granted an in-person interview with Paulson, much less hired by the Respondent. Moreover, al- though Peterson testified that checking an applicant’s work history and references was one of the steps in the selection process, the Respondent did not check the references of any of the alleged discriminatees who were open about their union work history or affiliation. (Tr. 425.) By contrast Wilson, the alleged discriminatee who pretended to be antiunion during his initial contacts with Paulson, was told by Paulson that he was “one of the guys we’re considering putting on” even before Wilson submitted an application. Then Paulson called Wilson at home and arranged to meet him face-to-face at a restaurant near Wilson’s home. Before Wilson had completed, or even received an application, Paulson contacted the nonunion con- tractor that Wilson claimed to have worked for in the past. The Respondent has not forwarded any credible reason why Wilson deserved a level of consideration that was denied to the alleged discriminatees who were open about their union affiliations. Wilson was not personally acquainted with Paulson, Peterson, or Prange, and no current employee recommended him for the E & I SPECIALISTS, INC. 457 position. As discussed above, he lived no closer to Winnebago than persons who were not considered, and in some cases lived considerably farther away. The Respondent has not shown that Wilson had qualifications which exceeded those of the alleged discriminatees who the Respondent declined to meet or hire. In reaching my conclusion that the alleged discriminatees were excluded from the hiring process, I considered that most of them were briefly interviewed by Paulson when they reached him by telephone and that application forms were provided to those who requested them. However, the record in this case shows that Respondent never seriously considered the alleged discriminatees based on an evaluation of lawful criteria. Rather the brief interview and application served primarily as a means of both screening out applicants who were likely to engage in organizational activities, and giving such applicants the false impression that they were being considered. I also conclude that the General Counsel has shown that an- tiunion animus contributed to the decision not to consider the alleged discriminatees. I am persuaded largely by the difference in treatment that the Respondent afforded Wilson as compared to the alleged discriminatees who were open about their union work history and affiliation. PNEU Electric, Inc., 332 NLRB 616, 617 (2000) (inference that antiunion animus motivated refusal to consider is warranted based on disparity between treatment received by union member whose affiliation was unknown to employer and treatment received by union mem- bers whose affiliation was known to employer); Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. mem. 97 F.3d 1448 (4th Cir. 1996). As discussed above, when Wilson reached Paulson by telephone on April 4 and pretended to be opposed to unions, Paulson gave every indication of being anx- ious to hire him. On April 5, Paulson told Wilson that he wanted to meet with him “today or tomorrow,” and then made a special stop near Wilson’s home the next day to conduct a face- to-face interview. During one of their telephone conversations, before Wilson’s references had been checked, Paulson said that Wilson was “one of the guys we’re considering putting on.” After meeting with Wilson, Paulson made multiple telephone calls in an effort to verify Wilson’s fabricated work history. The record provides every reason to believe that Paulson was prepared to offer Wilson a job if Wilson’s fabricated nonunion work reference checked out. By contrast, Paulson did not rush to set up meetings with any of the alleged discriminatees who were open about their union work history and affiliation. In fact, it did not conduct in-person interviews with any of them. The Respondent did not check the references of any of the al- leged discriminatees who it knew were union members, nor did it tell any of those individuals that they were likely to be hired. This disparity in treatment is striking and is not explained by timing or qualifications. Many of the alleged discriminatees— e.g., Borchardt, Bushbaum, Hacker, Hansen, Lusk, Maxfield, Rutten, Stork, and Urevig—responded to the Respondent’s help wanted advertisement as early as, or earlier than, Wilson and had comparable qualifications.19 The disparity is also not ex- 19 Wilson had 14 years of experience in the electrical trade. Jt. Exh. 6. Borchardt had been in the electrical trade for 25 years, Bushbaum for 25 years, Hacker for 7 years, Hansen for 5 years, Lusk for 25 years, plained by the distance of the applicants’ homes from the Win- nebago site. As noted above, the record does not support the Respondent’s claim that it relied heavily on such proximity as a basis for hiring. At any rate, a number of the alleged discrimi- natees lived in Fairmont, Mankato, or Minnesota Lake, all of which are closer than Wilson’s home in Owatonna to the Win- nebago jobsite.20 The Board will also infer a discriminatory antiunion intent on the part of an employer when it deviates from its own past hiring practices, or where the employer is unable to provide a credible and rational explanation for its deviation. Waterbury Hotel Management LLC, 333 NLRB 482, 545 (2001); Fluor Daniel, Inc., 333 NLRB 427, 437–438 (2001); Kentucky Gen- eral, Inc., 334 NLRB 154, 159–160 (2001); Eddyleon Choco- late Co., 301 NLRB 887, 889 (1991); D. H. Baldwin Co., 207 NLRB 25, 27 (1973), enfd. mem. 505 F.2d 736 (8th Cir. 1974). I conclude that in this case the Respondent deviated from its stated hiring procedures in ways that suggest the presence of antiunion animus. Peterson testified that after a telephone con- tact, the next step in the hiring process is to obtain an applica- tion from the individual. According to Peterson, the Respon- dent then reviews the applicant’s work history and possibly contacts applicant’s references. After that, the Respondent discusses terms of employment with the prospective employee. Peterson stated that he could not remember any cases where the Respondent had hired someone without first obtaining an appli- cation from that individual, checking references, and conduct- ing an in-person interview. However, when faced with the union activity in this case, the Respondent largely abandoned those steps with respect to persons it wished to hire. As dis- cussed above, the Respondent made several job offers without receiving an application or contacting the individual’s former employers. When Paulson was under the impression that Wil- son was opposed to unions, Paulson did not wait to receive an application before indicating that he was interested in hiring him. Nor did Paulson await Wilson’s application before dis- cussing the terms of employment during an in-person interview, and contacting a nonunion electrical contractor that Wilson had named as his former employer. The Respondent offered em- ployment to at least three other individuals—Chaplin, Kosbab, and Jongbloedt—without even obtaining applications from them first. Maxfield for 17 years, Rutten for 14 years, Stork for 12 years, and Urevig for 23 years. Id. 20 I reject the General Counsel’s contention that I should find anti- union animus because Paulson threatened and interrogated Wilson. As discussed above, I found that the General Counsel has failed to show that the statements alleged to constitute threats and interrogation were made by Paulson. Therefore, I do not base my conclusion that animus contributed to the refusal to consider on those statements. I also reject the General Counsel’s contention that I should infer an- tiunion animus based on the Respondent’s membership in the Inde- pendent Electrical Contractors Association (IEC). Peterson testified without contradiction that he joined this organization because it had an apprenticeship program that he thought would benefit the Respondent and its employees. I conclude that the record in this case does not establish that the Respondent’s membership in the IEC is evidence of antiunion animus. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 458 Some additional evidence of animus is provided by the Re- spondent’s decision to discontinue the help wanted advertise- ment that was available on the internet through the Minnesota job service/job bank. The Respondent had been running this advertisement for over a year, and did not discontinue it until a week or two after the Respondent began to receive the applica- tions with cover letters from the Union. The timing, along with the record as a whole, leads me to conclude that the advertise- ment was discontinued because of the response by applicants who intended to engage in organizational activities. I do not believe that the advertisement was discontinued because of delays affecting the Winnebago project. Indeed, after the Re- spondent knew that it was experiencing delays at the Winne- bago job, the Respondent actually amended the internet adver- tisement to specifically mention potential employment at the Winnebago site. Moreover, the Peterson testified that during this period the Respondent was having trouble finding enough journeyman electricians for its job in Wentworth. In reaching my conclusion that antiunion animus contributed to the Respondent’s refusal to consider hiring the alleged dis- criminatees, I weighed the fact that four known or suspected union members—Chaplin, Kosbab, Parsons, and Rawstern— were among the approximately 27 persons the Respondent hired for Winnebago, Wentworth, and a new construction pro- ject, around the time of the alleged discrimination. (Jt. Exh. 4.) However, Chaplin, and Kosbab—the only ones who the Re- spondent hired for the Winnebago jobsite that was the focus of the Union’s efforts—both were employed after the Union filed its May 16 charge alleging hiring discrimination and other vio- lations of the Act.21 Thus, it cannot be assumed that the Re- spondent’s decisions to hire Chaplin and Kosbab were made without awareness of the outside scrutiny that the charge would bring to its hiring activities. Moreover, Chaplin was an ac- quaintance of Paulson’s, Peterson’s, and Prange’s, and had worked with all three of them in the past. Based on those rela- tionships, Paulson may well have trusted Chaplin to refrain from opposing the Respondent on the issue of the Union.22 Kosbab, in turn, was hired, according to the Respondent’s ac- count, “because he had been referred by Chaplin, who was a trusted employee.” (R. Br. 9.) With respect to Rawstern and 21 Notice of the charge was served on the Respondent by first-class mail and/or facsimile on May 17, 2001. The Respondent offered Chap- lin a job during the “last week” of May 2001. Tr. 74, 407. Chaplin and Kosbab both started working for the Respondent on June 4, 2001. Jt. Exh. 4; R. Exh. 10. Parsons, a union member who the Respondent hired for the Wentworth job, began working on May 21, 2001. The record does not reveal when Parsons was offered employment, and it is not clear whether the Respondent was aware of the unfair labor practice charge when he was hired. Rawstern, another union member that the Respondent hired for the Wentworth job, began work on May 1, 2001—before the unfair labor practices charge was filed. R. Exh. 3. 22 The Respondent notes in its brief that Chaplin was hired despite the fact that he was “a salt sent by [the Union],” and suggests that this shows that Paulson did not allow antiunion animus to figure in his hiring decisions. R. Br. 20. However, the record is clear that the Re- spondent did not know that Chaplin had agreed to act as a union salt until after Chaplin was hired. Indeed, Chaplin did not even contact union officials about acting as a salt until after Paulson made the job offer to him. Tr. 268. Parsons, the Respondent conceded that it hired those two known union members for the Wentworth project only because there were “not a lot of electricians” in the Wentworth area and the Respondent had been unable to meet its requirements for journeymen electricians through referrals. (Tr. 27.) In addition, although Rawstern and Parsons were union members, they were not affiliated with the local that was mounting the organizing effort and which filed the charge that led to this proceeding. The Board has made clear that a respondent’s failure to dis- criminate against every union applicant does not negate the possibility that other union applicants were treated unlawfully. H. B. Zachry Co., 332 NLRB 1178, 1183 (2000); Norman King Electric, 324 NLRB 1077, 1085 (1997), enfd. sub nom. Ken- tucky General, Inc. v. NLRB, 177 F.3d 430 (6th Cir. 1999), enfd. mem. 178 F.3d 1294 (6th Cir. 1999); KRI Constructors, Inc., 290 NLRB 802, 812 (1988). This is particularly true where, as here, the alleged discriminatees were not only union members, but, in most cases, union members whose applica- tions were accompanied by cover letters from the Union that aligned them with a union organizing effort. In H. B. Zachry, 332 NLRB at 1183, the Board held that antiunion animus was proven where the employer refused to hire applicants who indi- cated on their applications that they would engage in union organizing upon hire, even though the employer had “taken a chance on hiring” an individual who had links to the union, but who had not indicated that he would engage in union organiz- ing if hired. As the Board noted, “there is a significant differ- ence between past union affiliation and notice of present intent to organize.” Id. Under the circumstances present here, I con- clude that the Respondent’s benign treatment of Chaplin, Kos- bab, Rawstern, and Parsons, does not outweigh the evidence of antiunion animus. Id.23 23 I find that antiunion animus contributed to the decision not to con- sider alleged discriminatee Josh Nickel, even though Nickel testified that, based on their telephone conversation, he had no reason to believe that Paulson knew he was a union member. Tr. 262. By the time that Nickel contacted Paulson on April 18, Paulson had been aware for at least a week that the Respondent was the subject of a significant union effort. Nickel was the last, or second to last, of the alleged discrimina- tees to contact the Respondent about employment. It is not surprising to me that Paulson would not reveal any suspicions he had about Nickel’s union affiliation during his conversation with Nickel, or that Paulson would suspect the union affiliation of applicants for the Win- nebago job who, like Nickel, were not referred by someone trusted by the Respondent. In any case, Paulson’s decision not to consider Nickel could be violative of the Act even if Paulson did not know Nickel’s union status, as long as Paulson’s treatment of Nickel was part of an effort to screen out union members or otherwise deter union activity. Weldun International, Inc., 321 NLRB 733, 748 (1996), enfd. mem. in part 165 F.3d 28 (6th Cir. 1998); Electro-Voice, Inc., 320 NLRB 1094, 1095 fn. 4 (1996); Guille Steel Products Co., 303 NLRB 537 fn. 1 (1991); American Wire Product, 313 NLRB 989, 994 (1994); Mini- Togs, Inc., 304 NLRB 644, 648 (1991), enf. granted in part and denied in part NLRB v. Mini-Togs, Inc., 980 F.2d 1027 (5th Cir. 1993); ACTIV Industries, 277 NLRB 356 fn. 3 (1985). I find that Paulson excluded Nickels as part of such an effort. Nickels was deterred from actually submitting an application by Paulson’s representation that the Respondent was no longer hiring. This does not preclude a finding that the Respondent violated the act by discriminatorily failing to consider or hire Nickels. The Board has held E & I SPECIALISTS, INC. 459 For the reasons discussed above, I find the General Counsel has succeeded in proving that the Respondent excluded the alleged discriminatees from the hiring process and that anti- union animus contributed to the decision to exclude the alleged discriminatees. Therefore, the burden shifts to the Respondent to show that it would not have considered the alleged discrimi- natees even in the absence of the applicants’ union activity or affiliation. In its brief, the Respondent sets forth reasons why it contends that the alleged discriminatees were not “bona fide applicants.” (R. Br. 12–17.) Those reasons are: (1) the alleged discriminatees were not “[r]eferrals from E & I employers or owners,” Id. at 12;24 and (2) the alleged discriminatees did not live in close proximity to—within approximately 60 miles—of the Winnebago jobsite. In the case of alleged discriminatee Wilson, the Respondent relies on Wilson’s dishonesty in pro- viding a fabricated work history during conversations with Paulson as a basis for denying him consideration. The record does reflect that Paulson was anxious to consider individuals for the Winnebago job who the Respondent, or trusted employees of the Respondent, were familiar with. However, Paulson was also anxious to consider hiring Wilson, who was not referred by anyone, before Paulson discovered that Wilson’s antiunion stance was a ruse. Although the record did show that hirees Keith Schroeder and Gary Chaplin were known to the owners of the company or referred by an em- ployee of the company,25 the record also showed that the Re- spondent hired William Rindy, Christopher Kirby, and James that the filing of an application is not necessary to perfect a claim of hiring discrimination where the alleged discriminatee is led to believe that filing an application would be futile. Plumbers Local 572 (MK- Ferguson), 297 NLRB 691, 694–695 (1990); Atlantic Interstate Mes- sengers, Inc., 274 NLRB 1144, 1151 (1985); Joseph Magnin Co., 257 NLRB 656, 666 (1981), enfd. 704 F.2d 1457 (9th Cir. 1983), cert. denied 465 U.S. 1012 (1984); A. J. Librera Disposal Service, 247 NLRB 829, 833 (1980). 24 The Respondent states that its policy is to rely on referrals from the Respondent’s owners or employees. See, e.g., R. Br. 12 (“Referrals from E&I employees or owners”); Jt. Exh. 5, p. 4, sec. 9.b. (“Appli- cants with personal referral from successful employees or owners of E&I are preferred.”). However, where convenient to describe actions inconsistent with the stated policy, the Respondent suggests that the policy includes relying on referrals by persons who are neither owners nor employees of the company, as long as the referral renders the appli- cant a “known quantity.” See, e.g., R. Br. 13. 25 Kosbab was apparently referred by Chaplin, but Chaplin could not have been an employee of the company at the time he made the referral since both Kosbab and Chaplin were hired at the same time. Tr. 407; Jt. Exh. 4. Thus, Kosbab was not hired pursuant to the Respondent’s policy of hiring persons referred by the owners or employees of the company. The record contradicts the Respondent’s claim that Chaplin was a “proven and trusted employee” when he referred Kosbab. R. Br. 13. In its brief, the Respondent states that Ryan Linde, who it hired in July 10, 2001, to work as a journeyman at the Winnebago jobsite, was a former employee of the Respondent. R. Br. 7. However, the record citation that the Respondent relies on—Jt. Exh. 4—merely gives a different, earlier, hire date for Linde, and does not substantiate that Linde was hired a second time, or that any earlier period of employ- ment resulted in a favorable referral from the Respondent’s owners or employees. Andrews even though they did not have the benefit of such referrals. (Tr. 332–333, 343–344.) Indeed, the Respondent has not shown that the majority of the 12 persons who it hired to work at Winnebago had the benefit of a referral from the Re- spondent’s owners or employees. Thus, the Respondent’s pref- erence for relying on referrals from the owners or employees of the company does not explain why the Respondent did not consider employing the highly qualified alleged discriminatees after their applications were submitted with cover letters from the Union. The Respondent notes that the Board has held that it is law- ful for an employer to reject union applicants while hiring other applicants already known by, or referred to, the employer. (R. Br. 13–15.) However, to be lawful such a policy must be ap- plied in a nondiscriminatory manner, Kentucky General, Inc., 334 NLRB at 162; ITT Industries, 331 NLRB 4, 5 (2000); Jennie- O Foods, 301 NLRB 305, 316 (1991); and adopted for reasons other than interference with union or protected activi- ties, Cannondale Corp., 310 NLRB 845, 849 (1993). As dis- cussed above, the evidence in this case shows that the Respon- dent’s referral policy was applied to deny consideration for employment to persons who the Respondent had reason to be- lieve were likely to engage in organizing activities if hired, but overlooked with respect to other applicants. For these reasons, I conclude that the Respondent has failed to show that the al- leged discriminatees would have been lawfully rejected based on the referral policy even absent the Respondent’s discrimina- tory motive. The record does not support the argument that the Respon- dent lawfully declined to consider the alleged discriminatees because it preferred to hire persons who lived close to the job site and generally excluded employees who lived more than 60 miles away. As discussed above, the record shows that the Respondent did not place a high premium on an applicant’s proximity to the jobsite. The Respondent sometimes hired or gave greater consideration to applicants who lived farther from the jobsite than the alleged discriminatees did. In at least two recent instances, the Respondent’s employees arranged for temporary quarters near a jobsite that was too distant from their homes to permit daily commuting. Moreover, even the Re- spondent concedes that nine of the alleged discriminatees met its claimed requirement of residing within 60 miles of the Win- nebago jobsite. (R. Br. 15–16.) Yet, none of those nine who was open about his union affiliation was even granted an in- person interview prior to being denied employment. Indeed, alleged discriminatees Borchardt, Maguet, Jenson, and Rutten all lived less than 40 miles by car from Winnebago and yet the Respondent did not attempt to meet with any of them. Con- versely, when Paulson believed that Wilson was opposed to unions, Paulson met with Wilson in person and otherwise showed a desire to fully consider him for employment, even though Wilson lived approximately 77 miles by car from the Winnebago jobsite. A policy of deciding whether to consider applicants based on the proximity of the individual’s residence to a jobsite might well provide a lawful basis for rejecting union applicants if that policy is adopted for nondiscriminatory reasons and applied in a nondiscriminatory manner. However, the evidence in this DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 460 case leads me to conclude that the Respondent enforced the proximity policy to exclude persons who it believed or sus- pected were likely to engage in organizational activities, but waived the requirement for other applicants. I conclude that the Respondent has failed to show that a policy regarding prox- imity to the jobsite would have resulted in the refusal to con- sider the alleged discriminatees even absent the Respondent’s antiunion animus. The Respondent claims that it lawfully disqualified alleged discriminatee Wilson based on his dishonesty during the appli- cation process. As discussed above, in an effort to conceal his union affiliation, Wilson falsely stated to Paulson that he had worked for Foster Electric, a nonunion contractor in Minot, North Dakota. Wilson subsequently submitted an application that truthfully stated his prior work history, but he was not hired or given further consideration. The Respondent has not identified a single nonunion applicant who was rejected for making a false statement like Wilson’s during the application process. Moreover, the record shows that Paulson was still willing to consider Wilson’s application after discovering that Wilson had lied about his former employment, and that Paulson only decided to bar Wilson after Wilson revealed his union affiliation. On April 7, Paulson talked to the owner of Foster Electric, and apparently discovered that Wilson had never worked there. Even though Paulson knew at this point that Wilson had been dishonest about his work history, Paulson did not deny Wilson further consideration, but rather contacted Wilson again by telephone. When Wilson admitted during that conversation that he had lied about working for Foster Electric, Paulson simply sought another reference, asking, “Okay, so who have you worked for?” Paulson did not, at that time, end the conversation or state that he was no longer interested in hiring Wilson. It was only when Wilson subsequently revealed his union affiliation, explaining, “See I’m a union member and knew if I told you that you wouldn’t talk to me,” that Paulson for the first time indicated that Wilson would no longer be con- sidered, stating, “Okay, well I won’t talk to you, not anymore.” The exchange on April 7 belies the Respondent’s claim that it was Wilson’s dishonesty in hiding his union status, rather than Wilson’s union status itself, which led Paulson to deny Wilson further consideration for hire. I do not condone Wilson’s dis- honesty,26 but the Respondent has failed to show that such dis- honesty, would have resulted in it denying Wilson further con- sideration absent its antiunion motive. For the reasons discussed above, I conclude that the General Counsel has shown that antiunion animus contributed to the Respondent’s decision not to consider the alleged discrimina- tees for employment, and that the Respondent has failed to meet its burden of showing that any of the alleged discrimina- tees would have been denied such consideration absent their 26 The record does show that Wilson was caught between a rock and a hard place. His choice was either to reveal his union work history during the initial contact with Paulson, in which case all indications are that he would have been denied further consideration like the other alleged discriminatees, or to lie about his former work history, and thereby gain further consideration, but risk eventual discovery of his misrepresentation. union affiliation or the Respondent’s belief or suspicion regard- ing their intent to engage in union organizing activity if hired. Therefore, I conclude that the Respondent violated Section 8(a)(1) and (3) of the Act by discriminatorily denying the 23 alleged discriminatees consideration for employment. I also conclude that the General Counsel has established that the Respondent discriminatorily refused to employ the alleged discriminatees in violation of Section 8(a)(1) and (3) of the Act. The General Counsel has clearly shown that the Respondent was hiring at the time that the alleged discriminatees were de- nied employment. The record shows that during the period from April to July 2001, the Respondent hired approximately 12 electricians for the Winnebago project.27 The General Counsel has also met its burden of showing that the applicants had experience or training relevant to the announced or gener- ally known requirements of the positions for hire. Indeed, the Respondent concedes that every one of the alleged discrimina- tees had experience that rendered them qualified. (R. Br. 12.) The record supports this, showing that most of the alleged dis- criminatees had 10 or more years experience as electricians and that all of them had at least 4 years of such experience—much of it in the type of industrial work that the Respondent per- formed. A number of the alleged discriminatees were ex- tremely well qualified. To cite just one example, alleged dis- criminatee Jerry Maxfield had approximately 18 years experi- ence as an electrician, possessed both a journeyman’s license and a master’s license from the State of Minnesota, and was one of the electricians who constructed the ethanol plant in Winnebago. In addition, the General Counsel has shown that antiunion animus contributed to the decision not to hire the applicants, thus satisfying the final element of its initial burden under FES, supra. The evidence of the Respondent’s animus was discussed at length above in the analysis of the allegation that the Re- spondent unlawfully refused to consider the alleged discrimina- tees, and that evidence need not be discussed here. Suffice it to say that the stunning, and unexplained, disparity between the treatment received by Wilson, who concealed his union affilia- tion, and the alleged discriminatees who revealed their union affiliation, as well as the Respondent’s departures from its stated hiring procedures, and the suspicious timing of the Re- spondent’s decision to discontinue the job service/job bank advertisement, are no less persuasive evidence of animus in hiring than they are of animus in denial of consideration for hire. Similarly, the reasons that the Respondent offered to ex- plain its failure to hire the alleged discriminatees—lack of re- ferrals from employees or owners of the company, distance from the jobsite, dishonesty—are not credible for the reasons discussed above. The Respondent has failed to meet its burden of showing that it would have denied the alleged discriminatees 27 In its brief, the Respondent attempts to minimize its hiring by con- centrating only on the electricians who it hired as licensed journeymen. However, only 11 or 12 of the 23 alleged discriminatees indicated on their applications that they were interested specifically in journeyman jobs. The record contains no credible evidence that more than 12 of the alleged discriminatees informed the Respondent that they were only interested in journeyman positions. E & I SPECIALISTS, INC. 461 employment absent their union affiliation or their believed or suspected intent to engage in union organizing activity if hired. Therefore, I find that the General Counsel has proven that the Respondent violated Section 8(a)(1) and (3) of the Act by deny- ing the alleged discriminatees employment based on their union affiliation or based on the Respondent’s belief or suspicion that they would engage in union organizing activity if hired. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has violated Section 8(a)(1) and (3) of the Act by refusing to consider for employment, and refusing to employ, the following individuals because of their union affilia- tion or the Respondent’s belief or suspicion that they would engage in union organizing activity if hired: Robert (Mike) Borchardt, Richard Brua, Earl Bushbaum, Gregory Collins, Jeremiah Flotterud, Timothy Goebel, Ronald Gruenes, Chad Hacker, Trevor Hansen, Kenneth Jenson, Steven Lusk, Mark Maguet, Jerry Maxfield, Bradley Nelson, Joshua Nickel, Robert Olsen, Mark Rutten, Tracy Saunders, Robert Schupp, Thomas Small, Allan Stork, Wesley Urevig, and Weston Wilson. 4. The Respondent did not commit the other unfair labor practices alleged in the complaint. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I recommend that it be required to cease and desist therefrom and to take certain affirmative action nec- essary to effectuate the policies of the Act. Under the Board’s decision in FES, supra, “[i]f the General Counsel is seeking a remedy of instatement and backpay based on openings that he knows or should have known have arisen prior to the commencement of the hearing on the merits, he must allege and prove the existence of those openings at the unfair labor practice hearing.” 331 NLRB at 14. In its brief, the General Counsel identifies four journeyman electrician openings,28 and five apprentice openings with respect to which it alleges that the Respondent unlawfully denied the discrimina- tees employment. I conclude that the General Counsel has proven the existence of four journeyman electrician openings and five apprentice electrician openings that the discriminatees were unlawfully denied. The positions that the General Coun- sel has alleged and proven that the discriminatees were unlaw- fully denied are the ones that were filled as follows by the per- sons named: Robin Hanson (journeyman, hired April 16, 2001); Jeffrey Hiller (apprentice, hired June 19, 2001); Richard 28 In the text of its brief, the General Counsel asks that the discrimi- natees be offered instatement to six journeyman positions, but in the accompanying footnote the General Counsel only alleges the existence of four journeyman openings “for which Union applicants could have been hired.” GC Br. 43 fn. 37. The General Counsel has not alleged that the Respondent had concrete plans to fill any other journeyman openings. Pursuant to the Board’s decision in FES, supra, I limit the instatement and backpay remedy regarding journeyman positions to those four openings that the General Counsel has alleged and proved. Lampman (apprentice, hired June 19, 2001); Ryan Linde (jour- neyman, hired July 10, 2001); Joseph Maxwell (apprentice, hired June 18, 2001); Wade Nelson (journeyman, hired May 19, 2001); Dave Paulson (apprentice, hired July 16, 2001); Keith Schroeder (journeyman, hired April 17, 2001); Ken Wheeler (apprentice, hired June 11, 2001).29 (Jt. Exh. 4.) Therefore, I recommend that the Respondent be ordered to offer four journeymen electrician jobs and five apprentice elec- trician jobs to the discriminatees named in the complaint or, if those jobs no longer exist, to substantially equivalent positions in Minnesota or Iowa without prejudice to the discriminatees’ seniority or any other rights or privileges which they would have enjoyed had the Respondent hired the discriminatees when they applied. In addition, I will recommend that the Re- spondent be ordered to make the discriminatees whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in accordance with F. W. Wool- worth Co., 90 NLRB 289 (1950), plus interest as computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987). The number of discriminatees in this case ex- ceeds the number of available jobs, and, consistent with the Board’s decision in the FES case, I defer to the compliance stage a determination regarding which four individuals among the 23 discriminatees must be offered journeymen positions, and which 5 individuals among the 23 discriminatees must be offered apprentice electrician positions. 331 NLRB at 14 (“Where the number of applicants exceeds the number of avail- able jobs, the compliance proceeding may be used to determine which of the applicants would have been hired for the open- ings.”). I also recommend that the Respondent be ordered to post copies of the notice at all jobsites. The General Counsel asks that I recommend that the Respondent be ordered to mail copies of the notice to “all applicants and current and former employ- ees employed by the Respondent at any time since March 23, 2001.” The General Counsel has not explained why it believes that mailed notice to all current and former employees is neces- sary, and I conclude that such a remedy is not warranted. The record does not show that persons actually working for the Respondent were subjected to unlawful antiunion activity in the workplace. To the contrary, Chaplin, who engaged in union organizational activities while working for the Respondent, testified that the Respondent did not impede those activities. I conclude that posting of the notice at the Respondent’s jobsites is an adequate remedy with respect to the Respondent’s em- ployees. I do, however, recommend that the Respondent be ordered to mail copies of the notice to individuals who applied with the Respondent at any time after the Respondent’s help- wanted advertisement in the Mankato Free Press first appeared on March 21, 2001. This will ensure that victims of the Re- spondent’s unlawful hiring and consideration activities will be made aware of the violations and of the Respondent’s obliga- 29 The General Counsel does not allege that the discriminatees were unlawfully denied the positions at the Winnebago jobsite filled by Gary Chaplin (journeyman, hired June 4, 2001), Chad Kosbab (journeyman, hired June 4, 2001), and Ron Barnick (apprentice, hired July 27, 2001). GC Br. 43 fn.37. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 462 tion to consider and hire applicants with without regard to un- ion affiliation or activities. [Recommended Order omitted from publication.]