R.J. Corman Railroad Construction, LLC

R.J. CORMAN RAILROAD CONSTRUCTION 349 NLRB No. 89 987 R.J. Corman Railroad Construction, L.L.C., f/k/a and successor-in-interest to R.J. Corman Railroad Company, L.L.C. and International Union of Operating Engineers Local 150, AFL–CIO. Case 13–CA–38807–1 May 2, 2007 DECISION AND ORDER BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH On August 22, 2001, Administrative Law Judge Wil- liam G. Kocol issued the attached decision. The Re- spondent and the General Counsel each filed exceptions and a supporting brief. The Respondent, General Coun- sel, and Charging Party each filed answering briefs and the Respondent and the General Counsel each 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 briefs1 and has decided to affirm the judge’s rulings, findings,2 and conclusions as modified and to adopt the recommended Order as modi- fied and set forth in full below.3 The judge found that the Respondent committed sev- eral unfair labor practices following an attempt by 15 union applicants to apply for work with the Respondent on May 4, 2000.4 For the reasons stated by the judge, we find that the Respondent violated Section 8(a)(1) by in- terrogating employee Scott Bell, conveying to Bell that union activity would be futile, and threatening employees that the Respondent would close its facility in Bedford Park and take away their benefits if the employees se- lected the Union as their collective-bargaining represen- 1 The Respondent has requested oral argument. The request is de- nied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an adminis- trative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stan- dard 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. 3 As explained below in the amended remedy section of this deci- sion, we shall modify the judge’s recommended Order in accordance with FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). We shall also modify the judge’s Order in accordance with Ferguson Elec- tric, 335 NLRB 142 (2001), and to require the Respondent to expunge from its files any references to its illegal refusal to hire and to consider for hire the FES discriminatees. In addition, we shall correct the judge’s inadvertently mistaken references to “Nick” Candela to read “Matt” Candela. We shall substitute a new notice to conform to the Order as modified and in accordance with Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). 4 All dates are in 2000 unless otherwise indicated. tative.5 We also adopt the judge’s finding that the Re- spondent violated Section 8(a)(3) and (1) by refusing to consider the Union applicants for hire. For the reasons stated below, we further find that the Respondent violated Section 8(a)(3) and (1) by refusing to hire the 15 union applicants. However, because the judge’s analysis of that allegation does not fully conform with the framework set forth in FES, supra, we analyze it below under the FES standard. Facts The Respondent, a railroad construction contractor with a main office in Nicholasville, Kentucky, has per- formed track and switch repair work at various sites, in- cluding, since 1996, Belt Railroad’s Bedford Park, Illi- nois, facility. At that facility, the Respondent employs laborers, operators, and drivers. In general, the Respon- dent hires its employees at its Nicholasville office. However, in 2000, it hired three employees in Ohio to work at a project in Ohio and one employee in Pennsyl- vania to work at a jobsite in Pennsylvania. In March and April, the Respondent also hired locally at Bedford Park after the amount of work at that location had increased by 30 percent. Bedford Park Superinten- dent Jeffrey Howell hired Bedford Park applicant Daryl Surles in March to assist him as foreman. In April, Howell hired Bedford Park applicant Scott Bell as a driver/operator. After Surles and Bell were hired, how- ever, the Respondent still needed workers at Bedford Park, so, on about May 1, Howell asked Bell if he had any friends who might be interested in applying for work, and he gave Bell an application so that Bell could distribute it. Howell told Bell that he wanted to form a crew of local people because the employees from Ken- tucky did not like traveling to Bedford Park. Also in late April or early May, Howell gave application forms to Surles and to a Belt Railroad official for distribution to prospective applicants. During the same time period, Howell offered laborer positions to four individuals who returned completed applications, but these individuals declined the offers. On May 1, Bell told union organizer David Fagan that Howell was looking for workers. Based on this informa- tion, Fagan instructed Mike Aprile, a union task force organizer, to apply for work at Bedford Park, but to not wear any clothing that identified him as a union organ- izer or supporter. On May 2, Aprile arrived at the Bed- ford Park location to apply as a covert salt. He spoke with Surles, who asked him if he could operate equip- 5 In affirming the judge’s findings regarding the 8(a)(1) violations, we note that the Respondent’s exceptions to these findings were solely to the judge’s credibility resolutions. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 988 ment in the yard; Aprile replied that he could. Surles then told Aprile that the Respondent was definitely hiring and that Aprile could speak with Howell the next day. Aprile returned the next day and asked Howell if the Re- spondent was hiring. Howell replied that the Respondent was doing some hiring and asked Aprile if he had a commercial driver’s license. When Aprile said that he did, Howell gave him an application.6 Aprile then informed Fagan that the Respondent was hiring, at which point Fagan advised union task force organizers Delbert Watson and Tom Geffert and others to organize a group of people on the Union’s out-of-work list and have them apply for work with the Respondent. Fagan told these individuals to be ready to work and to wear union clothing. On May 4, 15 union members wearing union clothing approached the Bedford Park facility in five groups of three. The first group consisted of Union Business Agent Angel Del Rivero and two other union members. Del Rivero approached Howell and told him that he was looking for work and that he could perform the work needed; Del Rivero also began to recount his work ex- perience. Howell, who knew of Del Rivero from previ- ous encounters with the Union, interrupted Del Rivero to say that he knew who Del Rivero was. Del Rivero then repeated that he and the other men were looking for work, to which Howell replied that the Respondent was not hiring. Del Rivero said that he and the others were willing to do any kind of work from laborer to driving a truck, but Howell repeated that the Respondent was not hiring. The applicants then left. At no time during this encounter did Howell inquire as to the qualifications of the applicants. Howell responded to the next four groups of applicants in a similar manner. Following the union members’ attempts to apply for work with the Respondent, Howell asked Bell if he was a union member. Howell also told Bell that he would not stand for any “union bullshit,” and he threatened to “close the doors” before the operation went union. In addition, in late May, Howell repeated the threat of plant closure and threatened a loss of benefits at a meeting with 20–30 employees. By June, the Respondent needed additional employees at Bedford Park, despite the fact that Howell had previ- ously told the union applicants that the Respondent was not hiring. Thus, between June 11 and November, when the project ended, the Respondent hired three laborers and one operator at its Nicholasville location and as- signed them directly to Bedford Park. In addition, the Respondent transferred nine other employees from other 6 Aprile never submitted the application. worksites to Bedford Park. These 13 employees made up almost half of the 33 employees that the Respondent hired in total from June to November. On June 27, task force organizer Donald Todd Van- dermyde sent e-mails to the Respondent inquiring about work opportunities.7 He later received an e-mail from “Tom Carter at R.J. Corman” stating that the Respondent was “always in the market for good people,” and provid- ing Vandermyde with addresses for submitting cover letters. Vandermyde, however, never submitted an ap- plication to the Respondent. Analysis A. Refusal to Hire In order to establish a refusal-to-hire violation pursuant to Wright Line,8 the General Counsel has the burden of establishing (1) that the Respondent was hiring or had concrete plans to hire at the time of the alleged unlawful conduct; (2) that the applicants had experience and train- ing relevant to the announced or generally known re- quirements of the positions for which the Respondent was hiring, or in the alternative, that the Respondent had 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 appli- cants. FES, supra at 12. Once this has been established, the burden shifts to the Respondent to show that it would not have hired the applicants even in the absence of their union activity or affiliation. Id. For the reasons stated in the judge’s decision, we adopt the judge’s finding that the Respondent was hiring and had concrete plans to hire drivers, operators, and laborers at Bedford Park at the time of the alleged unlawful con- duct.9 We further adopt the judge’s finding that all 15 appli- cants at least had experience and training relevant to the generally known requirements of the laborer position; that all of the applicants, with the exception of Matt Candela, met the generally known requirements of the operator position; and that applicants Del Rivero, Daniel 7 Vandermyde was one of the May 4 union applicants. 8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). 9 We specifically agree with the judge that the Respondent’s addition to its Bedford Park work force of 13 individuals who were hired at Nicholasville constitutes evidence that the Respondent was hiring or had concrete plans to hire. See Jesco, Inc., 347 NLRB 903, 906 (2006) (employer’s contracting with local employment agency to supply elec- tricians was evidence of concrete plans to hire); Kaminski Electric & Service Co., 332 NLRB 452, 453, 458 (2000) (employer’s use of refer- rals from temporary employment agency was evidence of concrete plans to hire). R.J. CORMAN RAILROAD CONSTRUCTION 989 Patrick Regan, Tom Geffert, Stanley Simrayh, and David Pessmeg, who each held commercial driver’s licenses, met the generally known requirements of the driver posi- tion.10 Finally, we agree with the judge that antiunion animus contributed to the Respondent’s refusal to hire the union applicants. In this regard, the Respondent’s Section 8(a)(1) violations—consisting of an unlawful interroga- tion, statements that union activity would be futile, and threats of plant closure and loss of benefits—provide compelling evidence of the Respondent’s antiunion ani- mus. See Dynasteel Corp., 346 NLRB 86, 90 (2005) (respondent’s threats of plant closure and job loss, state- ments that unionization would be futile, surveillance and interrogation of employees, and instruction to commit unfair labor practices demonstrated that antiunion animus contributed to decision not to hire applicants). Signifi- cantly, these violations closely followed the union mem- bers’ attempted application for employment, and they were clearly based on the Union’s attempt to organize the Respondent’s employees at Bedford Park. Further evi- dence of the Respondent’s antiunion animus was How- ell’s act of supplying an application to covert union ap- plicant Aprile and telling him that the Respondent was hiring, and then the next day refusing to supply applica- tions to the overt union applicants and informing them that the Respondent was not hiring. See V.R.D. Decorat- ing, 322 NLRB 546, 552 (1999) (union animus was a motivating factor in refusal to hire where employer ad- vertised for experienced painters, received applications from experienced painters who were also union mem- bers, and then delayed filling positions to avoid making job offers to union applicants). In sum, for the above reasons, we find that the General Counsel has met his initial burden under FES, supra. 10 The General Counsel argues that Matt Candela had experience and training relevant to the generally known requirements of the driver and operator positions. However, as discussed in the judge’s decision, the Respondent required drivers to possess a valid commercial driver’s license, and the General Counsel failed to establish that Candela met that requirement. Likewise, the General Counsel also failed to show that Candela met the generally known requirements of the operator position—i.e., experience operating heavy equipment. Compare Nor- man King Electric, 334 NLRB 154, 159 (2001) (applicants had experi- ence and training relevant to the generally known requirements of electrician position because they had experience as electricians and the employer stated no specific requirements). In agreeing with the judge that there is no evidence that Candela met the generally known requirements of the driver or operator position, we do not rely on the judge’s speculation that instating Candela to one of those positions would be dangerous to Candela and other employees at the site. In any event, we agree with the judge that Candela at least had ex- perience and training relevant to the generally known requirements for the Respondent’s laborer position. The burden therefore shifts to the Respondent to prove that it would not have hired the applicants even in the absence of their union activity or affiliation. In order to establish this affirmative defense, “[a]n employer cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected activity.” W.F. Bolin Co., 311 NLRB 1118, 1119 (1993), petition for review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996). To this end, the Respondent contends that it would not have hired the union applicants because it had a policy of only hiring from its Nicholasville office, and the Union applicants in this case applied at its Bedford Park work- site. However, in agreement with the judge, we find no merit to this contention given the evidence in the record that the Respondent departed from its policy of hiring only at Nicholasville when it needed to staff projects in other locations. For example, as noted above, the Re- spondent hired individuals in Ohio and Pennsylvania to work on projects in those respective States; and more importantly, it also hired locally at Bedford Park, as evi- denced by its hiring of Surles and Bell, its offer of em- ployment to four other Bedford Park applicants, and its solicitation of applications in Bedford Park immediately prior to the union applicants’ attempted application. See Nelcorp, 332 NLRB 179, 180 (2000) (finding that re- spondent failed to show it would have transferred current employees instead of hiring applicants where it repeat- edly departed from asserted transfer policy), enfd. 51 Fed. Appx. 33 (2d Cir. 2002). The Respondent’s efforts to hire locally at Bedford Park are consistent with the special status of the Bedford Park project in 2000 as one of the Respondent’s largest and fastest growing work- sites. Indeed, 13 of the 33 individuals hired between June and November by the Respondent nationwide were assigned to work at Bedford Park at some point during the relevant time period.11 Accordingly, in these circum- stances, we find that the Respondent has failed to show that it would not have hired the union applicants even in the absence of their union activities. 11 We find that this case is distinguishable in material respects from ZURN/N.E.P.C.O., 345 NLRB 12 (2005). The Board found that, under the circumstances of that case, the respondent employer’s deviations from a hiring policy did not “yield an inference that the entire hiring process was unlawfully motivated.” Id. at 20. The Board found that the employer violated Sec. 8(a)(3) in instances where it deviated from its hiring policy, but found no violation where nonunion applicants were hired in apparent conformity with the policy. ZURN differs from this case in that, unlike this case, there was no evidence in ZURN that the employer excluded union applicants from the hiring process. Id. at 22; see Jesco, Inc., supra. at 906 fn. 8. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 990 B. Job Openings If the General Counsel seeks an affirmative remedy of backpay and instatement for a refusal-to-hire violation, he must allege and prove at a hearing on the merits the existence of openings that he knows or should have known to have arisen prior to the hearing. FES, supra, 331 NLRB at 14.12 Here, the General Counsel alleged the existence of 33 openings because the Respondent had hired a total of 33 individuals during the relevant time period, from May 4 to November. Included in this num- ber are the 13 positions at Bedford Park filled by indi- viduals who were hired at Nicholasville but then trans- ferred to Bedford Park. The judge, however, found that only the 13 positions at Bedford Park were available to the union applicants. Because it appears that the indi- viduals hired into the other 20 positions were hired to work projects in other locations, we find, in agreement with the judge, that only the 13 positions at Bedford Park were “openings for the applicants” within the meaning of FES. See Tri-County Paving, Inc., 342 NLRB 1213, 1220 (2004) (vacant lowboy driver position filled by transferred employee was an available position that would have been filled by a union applicant were it not for the respondent’s antiunion motivation and intent).13 12 We disavow any implication in the judge’s decision that pleading or proof of such openings is part of the General Counsel’s initial burden under FES. The judge also erroneously stated that the General Counsel was re- quired to prove at the hearing that the alleged discriminatees remained available and willing to accept employment with the Respondent after May 4. FES does not impose this burden on the General Counsel in order to establish either an unlawful refusal-to-hire violation or that a remedy of backpay and instatement is warranted. Instead, as the judge ultimately recognized, the issue of applicant availability is to be re- solved at the compliance stage of this proceeding. At compliance, the judge’s findings concerning availability should not be given any weight. The judge found no refusal-to-hire violation and no entitlement to backpay and instatement for applicant Candela because Candela did not testify at the hearing and the General Counsel did not otherwise show that he was available for work after May 4. This was the sole basis for the judge’s finding. However, because the General Counsel was not required to show Candela’s availability at this stage of the proceed- ing—and because, as discussed above, Candela had experience and training relevant to the generally known requirements for the laborer position at the Respondent—we reverse the judge and find that the Respondent violated Sec. 8(a)(3) and (1) by refusing to hire him on May 4. We shall therefore provide Candela with the appropriate reme- dies for this violation 13 The General Counsel argues that all 33 positions should be con- sidered openings. We reject this position for the reasons stated by the judge. Thus, the General Counsel failed to establish that the Respon- dent would have hired the local union applicants at Bedford Park to work at distant projects AMENDED REMEDY In the proposed remedy and Order sections of his deci- sion, the judge instructed the Respondent to offer in- statement and other make-whole remedies to 14 dis- criminatees, even though the existence of only 13 open- ings was established at the hearing.14 This remedy does not conform to current Board law, and we therefore mod- ify the judge’s remedy, recommended Order, and notice. As the Board held in FES, supra at 14, “Where the number of applicants exceeds the number of available jobs, the compliance proceeding may be used to deter- mine which of the applicants would have been hired for the openings.” Thus, we shall leave to compliance the determination of which discriminatees would have been hired into the 13 relevant openings but for the Respon- dent’s unlawful discrimination. Any discriminatees who it is determined would not have been hired into one of the open positions are due the following remedy: A cease and desist order; an order to place the dis- criminatees in the position they would have been in, absent discrimination, for consideration for future openings and to consider them for the openings in ac- cordance with nondiscriminatory criteria; and an order to notify the discriminatees, the charging party, and the Regional Director of future openings in positions for which the discriminatees applied or substantially equivalent positions. Id. at 15; see also CNP Mechanical Inc., 347 NLRB 160, 174 (2006).15 ORDER The National Labor Relations Board orders that the Respondent, R.J. Corman Railroad Construction, L.L.C., 14 As noted above, we have reversed the judge’s dismissal of the re- fusal-to-hire allegation as to Candela. Accordingly, there are now 15 discriminatees as to that allegation, rather than 14, as found by the judge 15 Member Kirsanow makes the following observations concerning the remedy. Pursuant to Dean General Contractors, 285 NLRB 573 (1987), the judge left to compliance the issue of whether the discrimi- natees would have been transferred to other jobsites after work at the Bedford Park jobsite had been completed. As stated in McKee Electric Co., 349 NLRB 463, 466 fn. 14 (2007), Member Kirsanow recognizes that Dean General represents current Board law, but he has concerns as to whether that case was correctly decided. Accordingly, although Member Kirsanow agrees with the judge that the issue of how long the discriminatees would have remained employees of the Respondent if they had been hired is to be left to compliance, he also notes that the related issue of which party bears the burden of proof on this matter is also properly left to compliance, and that the resolution of these issues will determine the amount of backpay and whether instatement contin- ues to be appropriate. McKee Electric, supra. R.J. CORMAN RAILROAD CONSTRUCTION 991 Nicholasville, Kentucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees concerning their union activity. (b) Threatening employees that their union activity would be futile. (c) Threatening employees that it would close its facil- ity in Bedfrrd Park if the employees selected the Union as their collective-bargaining representative. (d) Threatening employees that they will lose benefits if they selected the Union as their collective-bargaining representative. (e) Refusing to hire, consider for hire, or otherwise discriminating against employees because they support International Union of Operating Engineers, Local 150, AFL–CIO, or any other union. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer instatement to the appropriate discriminatees from the following list, as determined in the compliance stage of the this proceeding should have been hired, to the available positions for which they attempted to apply, or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges: Angel Del Rivero, Don- ald Todd Vandermyde, Thomas Zlamal, Daniel Patrick Regan, Nicholas Zasiebida, Kevin Colin Burke, Tom Geffert, Lindell Viou, Sean Flanagin, Delbert Watson, Stanley Simrayh, James Ward, Donald Ban, David Pessmeg, and Matt Candela. (b) Make whole any of the discriminatees identified in the compliance stage of the proceeding as being entitled to instatement into the 13 available positions for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge’s decision, as amended by the remedy section of this decision. (c) Consider, in accord with nondiscriminatory criteria, the remaining applicants for future job openings that arise, and notify the applicants, the Charging Party, and the Regional Director of such openings in positions for which the applicants attempted to apply, or substantially equivalent positions. (d) Within 14 days from the date of the Board’s Order, remove from its files any reference to the unlawful re- fusal to hire or refusal to consider for hire Angel Del Rivero, Donald Todd Vandermyde, Thomas Zlamal, Daniel Patrick Regan, Nicholas Zasiebida, Kevin Colin Burke, Tom Geffert, Lindell Viou, Sean Flanagin, Delbert Watson, Stanley Simrayh, James Ward, Donald Ban, Matt Candela, and David Pessmeg, and within 3 days thereafter, notify them in writing that this has been done and that the refusal to hire or consider them for hire will not be used against them in any way. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its facility in Bedford Park, Illinois, copies of the at- tached notice marked “Appendix.”16 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 13, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since May 4, 2000. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. 16 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992 FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT coercively interrogate employees about their union activity. WE WILL NOT threaten employees that their union ac- tivity would be futile. WE WILL NOT threaten employees that we will close our facility in Bedford Park if employees selected the Union as their collective-bargaining representative. WE WILL NOT threaten employees that they will lose benefits if they selected the Union as their collective- bargaining representative. WE WILL NOT refuse to hire, or consider for hire, or otherwise discriminate against employees because they support International Union of Operating Engineers, Lo- cal 150, AFL–CIO, or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer instatement to the appropriate discrimi- natees from the following list, as determined in the com- pliance stage of the Board’s proceeding should have been hired, to the available positions for which they attempted to apply or, if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges: Angel Del Rivero, Donald Todd Vandermyde, Thomas Zlamal, Daniel Pat- rick Regan, Nicholas Zasiebida, Kevin Colin Burke, Tom Geffert, Lindell Viou, Sean Flanagin, Delbert Watson, Stanley Simrayh, James Ward, Donald Ban, Matt Can- dela, and David Pessmeg. WE WILL make whole any of the discriminatees identi- fied in the compliance stage of this proceeding as being entitled to instatement for any loss of earnings and other benefits resulting from the discrimination against them, less any net interim earnings, plus interest. WE WILL notify in writing the Regional Director, the Charging Party, and any of the above discriminatees not offered instatement when openings arise, and consider them in a nondiscriminatory manner for these positions. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful refusal to hire or refusal to consider for hire Angel Del Rivero, Donald Todd Vandermyde, Thomas Zlamal, Daniel Patrick Regan, Nicholas Zasiebida, Kevin Colin Burke, Tom Geffert, Lindell Viou, Sean Flanagin, Delbert Watson, Stanley Simrayh, James Ward, Donald Ban, Matt Candela, and David Pessmeg, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the refusal to hire or consider them for hire will not be used against them in any way. R.J. CORMAN RAILROAD CONSTRUCTION, L.L.C., f/k/a and successor-in-interest to. R.J CORMAN RAILROAD COMPANY, L.L.C. Richard S. Andrews and Brigid M. Barnicle, Esqs., for the Gen- eral Counsel. Richard A. Lane, Esq. (Fletcher & Sippel, L.L.C.), of Chicago, Illinois, for the Respondent. Louis E. Sigman and Carol O’Shana, Esqs. (Sigman, Auerbach, Pierson, Neuman & Katsaros, Ltd.), of Chicago, Illinois, for the Union. DECISION STATEMENT OF THE CASE WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Chicago, Illinois, on May 29–31, 2001. The charge and amended charges were filed September 7, 2000, November 13, and May 4, 2001,1 respectively, by International Union of Operating Engineers, Local 150, AFL–CIO (the Union). The amended complaint (the complaint) was issued May 21, 2001. The complaint alleges that R.J. Corman Railroad Construction, L.L.C., f/k/a and successor-in-interest to R.J. Corman Railroad Company, L.L.C. (Respondent) violated Section 8(a)(1) when it interrogated employees about their union activities, informed employees that any attempts to organize a union would be fu- tile, threatened employees with plant closure if they were suc- cessful in their union activities, and impliedly threatened em- ployees with loss of benefits if they selected the Union as their collective-bargaining representative. The complaint also al- leges that Respondent violated Section 8(a)(3) by excluding 15 named individuals from its hiring process, refusing to consider those persons for hire into available positions, and refusing to hire them. R.J. Corman Railroad Company, L.L.C., filed a timely answer that admitted the allegations of the complaint concerning the filing and service of the charge and amended charges, labor organization status, and agency status. The an- swer admitted that R.J. Corman Railroad, L.L.C. conducted a railroad construction business through its Construction Divi- sion, that the Construction Division maintained an office and place of business in Nicholasville, Kentucky, and that it oper- ated a construction project in Bedford Park, Illinois. The an- swer also admitted that on January 1, 2001, the railroad con- struction operations of R.J. Corman Railroad, L.L.C were trans- ferred to R.J. Corman Railroad Construction, L.L.C., and that it is the successor to R.J. Corman Railroad L.L.C., Construction Division. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed 1 All dates are in 2000 unless otherwise indicated. R.J. CORMAN RAILROAD CONSTRUCTION 993 by the General Counsel, Respondent, and the Union, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a corporation, is engaged in the railroad con- struction business with an office and place of business facility in Nicholasville, Kentucky, and a worksite located in Bedford Park, Illinois, where it purchased and received goods valued in excess of $50,000 directly from points located outside the State of Illinois. Respondent 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 Respondent operates out of Nicholasville, Kentucky, and provides services on a number of railroad construction sites located in the eastern United States. It lays rail, does tie inser- tions, and change outs, switch renewals and new track construc- tion. Gerald Gupton is Respondent’s chief engineer. He over- sees 80 to 100 construction employees and the 7 to 8 superin- tendents who work at a jobsite and oversee a specific project. Each superintendent has a crew that typically remains with the superintendent as they work on different projects. Respondent generally hires employees as needed from the eastern Kentucky area and, in fact, most of Respondent’s employees live in that area. Most newly hired employees are friends, relatives, and acquaintances of current employees. Respondent’s employees travel from their home area in eastern Kentucky in groups to the work on out-of-state projects. Respondent owns vans and provides the transportation for these trips. Typically, Respon- dent picks these employees up at their homes on Sunday after- noon and drives them to a hotel near the project location. Re- spondent also transports the employees to and from the hotel and project site. Respondent pays for their lodging and pro- vides them a meal allowance. Respondent then provides their transportation back home. Respondent has employed about 60 to 70 percent of the employees for 1 year or more. The re- mainder are employed for shorter periods. Gupton testified that Respondent had never laid off any of its employees. Respondent provides services for the Belt Railroad at the railroad’s location in Bedford Park, Illinois, where it works on removing, rebuilding, and replacing railroad tracks and switches. It first provided services there in 1996 and that pro- ject lasted 6 to 7 months. It has returned there every year since and worked there beginning in about March or April and work- ing until about October. Respondent’s employees work in a fenced in compound at that location; Respondent also keeps its equipment in that compound. It employs operators, laborers, and drivers at this site who use a mobile crane, a loader, back- hoes, dump trucks, Prentice trucks, an excavator, and a dozer. Jeffery Howell is Respondent’s superintendent at this location. He has worked on this project each year with the same core crew of about 11 employees. During 2000 the size of the pro- jects assigned to Respondent by the Belt Railroad grew by about 30 percent over the previous year. Howell found it nec- essary to ask Gupton for approval to hire a foreman to assist him. Respondent decided to hire a local person for that posi- tion. Daryl Surles, who was hired to fill that position, received the same meal allowance that the other employees received, but he did not receive payment for hotel costs because he lived in the area. He was hired with the understanding that when the project at Bedford Park ended he would be assigned to other projects but that he would have to provide his own transporta- tion to and from those projects. However, when the project ended in about October, Surles decided not to accept work at other locations. As more fully described below, Respondent also replaced one employee working on this project and added on one additional employee for a core crew of 13 employees. When Howell needed additional help he called Gupton who sent additional employees if they were available. By June, work had backed up and Respondent found it necessary to sup- ply additional employees to the Bedford Park location. Howell also kept application forms in his truck and gave them to inter- ested applicants. He retained the completed applications and considered them when Respondent had the need to hire addi- tional employees. For this project, Respondent picked up the crew from eastern Kentucky on Sunday afternoon and returned them home on Thursday afternoon. These employees thus sometimes worked 12 hours a day or longer. The employees there wore either a blue hat, which indicated that were an op- erator or driver, or a red hat, which signaled that they were laborers. In 2000 work on this project continued until early November. Respondent did not recognize the Union at the Bedford Park location or elsewhere. In about 1990, R.J. Corman Derailment Services, LLC, an affiliate of Respondent, purchased a business with a facility in Gary, Indiana. That employer recognized the Union as the collective-bargaining representative for employees in that facil- ity and the parties negotiated a contract covering those employ- ees. Sometime in about April or May contract negotiations for the Gary facility between that employer and the Union broke down and the Union went on strike. The strike continued as of the time of the hearing in this case. By about June 12, the Un- ion had begun picketing Respondent at the Bedford Park loca- tion as part of that labor dispute. The Union employs task force organizers. These are fulltime employees of the Union whose job includes applying for and obtaining work as salts. If a task force organizer or other union employees are hired as a salt they continue to receive their full salary and benefits from the Union as well whatever he or she earned working for the employer. B. The Applicants Apply for Work In April, David Fagan, union organizer, advised Scott Bell to seek employment at the Gary facility. Bell went to that facility and spoke with Phil Emerson, a superintendent. Bell asked if they were hiring and Emerson said that they were. Emerson asked if the union hall had sent him and Bell said no, that he was not a member of the Union. Emerson said that was good because they were trying to weed out the Union at the Gary facility and that there might be a position for Bell in Bedford Park. He arranged for Bell to meet with Howell at the Gary facility the next day. However, while Bell appeared the next DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 994 day at the scheduled time Howell did not. Instead, Bell spoke to Howell by telephone. They arranged to meet the next day at Bedford Park. Bell went there the next day. Howell reviewed Bell’s application, gave him an explanation of the company history, and hired him as a driver/operator subject to Bell pass- ing a drug test and completing a portion of the application per- taining to drivers. Bell was hired at $9.50 per hour with an increase to $10 after 30 days. Howell told Bell that he could continue to work for Respondent after the Bedford Park project ended that year, but that while Respondent would pay his hotel costs and give him the meal allowance Bell would have to pro- vide his own transportation to and from the projects. While employed there Bell operated a number of different pieces of equipment, including driving a truck. On occasion Howell told him to operate a piece of equipment that he had no previous experience operating. Bell told this to Howell, who replied that Bell should just get on the machine and learn to operate it. Bell did so. On about May 1, Howell gave Bell another application form and asked if Bell had any friends who might be interested in applying for work. Howell said that he wanted to get a crew of local people started because the employees from Kentucky did not like coming to the Bedford Park location. The envelope from which Howell took the application form appeared full. Howell had also given application forms to Surles and to a Belt Railroad official for distribution by them. Howell obtained completed application forms from several potential employees. He contacted them to see if they were interested in working as laborers, but the applicants declined the offers.2 Bell reported to Fagan that Howell had given him an em- ployment application and that Howell had asked if he had any friends looking for work. As a result of this information Fagan instructed Mike Aprile, a task force organizer for the Union, to apply for work at Bedford Park. Fagan told Aprile not to wear any clothing that identified him as a union organizer or sup- porter. On May 2, Aprile did so. He arrived at the Bedford Park fa- cility about 6:30 to 7 a.m. He was dressed in work clothes and wore nothing identifying himself as being from the Union. Aprile announced that he was looking for work and asked for an employment application. He spoke with Surles, Respon- dent’s yard foreman and in charge of the yard. Surles said that Aprile would have to talk with Howell. Surles then asked Aprile questions about his work experience and pointed out some pieces of equipment that were in the yard and asked if he could operate them; Aprile said that he could. Surles also told him that they operated out of Kentucky and asked if Aprile was willing to travel; Aprile said that he was. Surles said that they had just hired a truck driver but that two of his laborers were leaving that week. Aprile asked if they would be hiring and Surles answered yes, they definitely were hiring. Surles said 2 The foregoing facts are based on Fagan’s and Bell’s credible testi- mony and certain portions of Howell’s testimony. However, I have determined to credit Howell’s testimony only to the extent that it is set forth in the facts contained in this decision. For reasons explained in other parts of this decision I have concluded that Howell’s testimony is generally not reliable. that Howell was the supervisor and would be there the next day.3 Aprile returned the next day, dressed the same way, and asked Howell if they were hiring. Howell said that they were doing some hiring and asked Aprile if he had a commercial driver’s license. Aprile said that he did. Howell said that he had to gather the application, that it was about 20 pages. How- ell gathered the application pages from a folder he kept in his truck and gave them to Aprile. The folder appeared to be full. Howell said that Aprile could bring back the application and give it to Surles if he was not around.4 Aprile then informed Fagan that Respondent was hiring. Fagan then advised Delbert Watson, Tom Geffert, and others to organize a group of people on the Union’s out-of-work list and have them apply for work. Fagan told them to be ready to go to work if they were hired, but to wear their union jackets, buttons, hats, and T-shirts. On May 4, a number of people gathered at a parking lot near Respondent’s facility in Bedford Park and later 15 of them applied for work with Respondent. All visibly wore clothing such as jackets, hats, and T-shirts that identified them as union supporters. Some also wore union buttons on their clothing. They divided up into groups of three and then drove onto Re- spondent’s premises using the Union’s distinctive gray 1999 Crown Victoria. All were dressed in work apparel. Angel Del Rivero, Todd Vandermyde, and Matt Candela were the first group to drive onto the premises. Del Rivero and Vandermyde got out of the car and approached Howell. Del Rivero said that he was looking for work, that he could do the work; he started to give his work experience. Howell inter- rupted and said that he knew who Del Rivero was;5 Howell started to walk away. Del Rivero continued to say that they were looking for work and Howell said that Respondent was not hiring. Del Rivero said that they were willing to do any kind of work from laborer to driving a truck. Howell said that they were not hiring. The applicants then left. At no time did Howell inquire as to the qualifications of the applicants.6 Stanley Simrayh, Donald Ban, and Nick Zasiebida were the second group to drive into Respondent’s yard. Simrayh asked Howell if he was Jeff (Howell). Howell replied that his name was Tim. Simrayh laughed and said that he knew he was talk- ing to Jeff (Howell). Simrayh asked if they were hiring and Howell said no. Simrayh asked if they could fill out applica- tions and Howell again said no. Simrayh asked if Howell knew when they would be hiring and whether they could get an inter- view; Howell said no. When Simrayh asked when they could fill out applications, Howell said that they would have to con- tact their office in Nicholasville. One of the other applicants 3 Surles did not testify; these facts are unrefuted 4 These facts are based on Aprile’s testimony. He impressed me as a credible witness. Howell testified that he could not recall whether or not he met with Aprile 5 Howell had come to know that Del Rivero was a union agent from previous encounters 6 These facts are based on a composite of the credible testimony of Del Rivero, Vandermyde, Aprile, and the notes that Aprile made on May 4. Candela did not testify R.J. CORMAN RAILROAD CONSTRUCTION 995 asked whom they should talk to in Nicholasville and Howell answered that he did not know. Simrayh then drove away.7 Daniel Regan, Kevin Burke, and Tom Zlamal were in the third group. After they arrived in Respondent’s yard, Regan got out of the car and asked Howell if he was accepting appli- cations and Howell said no. Regan asked if they would be accepting applications in the future and Howell again said no. Burke asked if Howell was sure he was not hiring; Burke said that he was looking for work too. Howell said no. Regan said thank you, the applicants got back in the car, and they drove away.8 Tom Geffert, Lindell Viou, and Sean Flanagin were the next group to drive to Respondent’s yard. Geffert approached How- ell and introduced himself as Tom Geffert from the Union. He asked Howell if he was “Jeff” (Howell), but Howell answered that his name was “Tim.” Geffert said that he was there to apply for a position. Howell replied that they were not taking applications and they were not hiring anyone. Geffert asked if Howell could tell him when they would be hiring. Howell said that he could not answer that and Geffert would have to contact their Nicholasville office to get that information. The appli- cants then left.9 Delbert Watson, James Ward, and David Pessmeg were in the last group to drive into Respondent’s yard. Howell drove his truck to the car used by the applicants, threw his hands up in the air, and told the applicants that they were not hiring. How- ell then drove away. Watson got out of the car and handed out about seven authorization cards to nearby employees. He then got back in the car and drove away.10 Within 10 to 15 minutes after the last group of applicants left, Howell said that he would like to talk to Bell. He and Bell took a ride in Howell’s truck. As they rode Howell asked Bell if he was from the Union; Bell answered no. Howell said that was good, that they were not going to stand for any union bull- shit going on around there. Howell said that they did not want any part of the Union, that they would close the doors before they went union. Howell also said that he told the union appli- cants that his name was Tom Fitzgerald and gave them a ficti- tious number to call. Howell told Bell that he had called the police to have the applicants escorted off the property because they were trespassing. On several unspecified occasions there- after, Howell repeated to Bell his remarks about the Company closing its doors if it went union. 7 These facts are based on a composite of the credible testimony of Simrayh, Zasiebida, and Ban. I recognize that Zasiebida testified that he went in the car driven by Del Rivero. However, this testimony is uncorroborated and contrary to the notes made by Aprile at the time indicating the order in which the applicants drove over. Under these circumstances, I conclude that the notes are more reliable. 8 These facts are based on a composite of the credible testimony of Regan, Burke, and Zlamal. I recognize that Zlamal testified that he thought he rode with Del Rivero. However, that testimony is not cor- roborated and it is contrary to the notes taken on May 4. Under these circumstances I again conclude that the notes are more reliable. 9 These facts are based on a composite of the credible testimony of Geffert, Viou, and Flanagan. 10 These facts are based on a composit of the credible testimony of Watson, Ward, and Pessmeg. In late May, Howell held a meeting with about 20 to 30 em- ployees. Howell told them that he had been in a union and it never did a damn thing for him; that it took his money and never gave anything in return. He said that if the Union got in the Company would close its doors, shut down the team that it has there, and move on. Howell also said that if the Union got in the employees would lose their transportation to and from Kentucky, their meal and lodging expenses, and their uniforms. These foregoing facts are based on Bell’s testimony. I rec- ognize that Respondent had terminated Bell before he testified in this case. Bell filed an unfair labor practice charge but the Regional Director concluded that the charge lacked merit. But I also have considered the fact that Bell was not a task force organizer and thus did not get paid by the Union while working for Respondent. Howell denied that he asked Bell about his union activities. He admitted that he held a meeting of em- ployees in late May during which he discussed the Union, but he claimed that the subject of the meeting was the establish- ment of a reserve gate to deal with the picketing by the Union that was occurring then. Howell did not specifically deny the remarks attributed to him by Bell in the late May meeting. But Howell’s testimony does not withstand scrutiny. He admitted on cross-examination that the picketing did not begin until about June 12. It follows that the mention of the Union at the May meeting was not in the context of setting up a reserve gate—at least not without further explanation. Moreover, in the affidavit that Howell gave to the Board during the investigation of this case, Howell stated that the May meeting that he held with employees pertained to safety matters and not a reserve gate issue. He further admitted in that affidavit that he may have told the assembled employees that he had once belonged to a union and it did not help him. Based on the foregoing and on my observation of the relative demeanor of the witness, I conclude that Bell’s testimony is more credible. On June 27, Vandermyde located Respondent’s website and sent am e-mail stating: I saw your posting on your webpage about work opportuni- ties. I am a heavy equipment operator and wondering what positions you might have and where they are located? What is required and how do I get an application? The next day Vandermyde received an e-mail response from “Tom Carter at RJ Corman” that stated: Todd- as I’m only a company contact, I don’t know specifics of our job opportunities at the moment, though we have rail gangs that are almost always on the road (Chicago, New Eng- land and other points), and we are always in the market for good people for our derailment crews, and you can see from our web site map where these are located. If you’d send me an address I’ll forward you a job application that might get the ball rolling. Vandermyde then sent his address to Carter and added that he was not afraid to travel and would consider relocating. Van- dermyde thereafter received an application. He e-mailed Carter saying that he had received the application and that he noticed that it said RJ Corman Company. Vandermyde asked if the application would work for Respondent’s derailment division, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 996 and whether he had to submit a separate application to be con- sidered for Respondent’s construction division. Carter replied that the application was considered “universal” for the Com- pany. He suggested that Vandermyde submit cover letters with his application and provided the information concerning whom the cover letters should be addressed to. Vandermyde never completed the application. C. Positions Available From May 4 until the work at the Bedford Park facility ended on about November 1, Respondent hired 33 employees nationwide. This included 25 laborers, 2 drivers, and 1 opera- tor, mechanic, driver/operator, driver/laborer, driver/mechanic, and “farm.” During this relevant time period, 13 employees were assigned to the Respondent’s Bedford Park location. Four persons were newly hired from the eastern Kentucky area and began work directly at the Bedford Park location; three worked as laborers, one worked as an operator. Two started on June 12, one on June 14, and the last on July 19. Nine other em- ployees initially worked at projects other than Bedford Park, but were assigned to work there during the relevant period. Eight of these employees worked as laborers, one as a driver. They worked at Bedford Park for periods ranging from 2 to about 6 weeks from June 11 to October 14.11 D. Qualifications and Availability of Applicants Angel Del Rivero is a business agent for the Union. He has worked for the Union for over 10 years and his yearly salary is about $88,000. Before working for the Union he worked as an equipment operator for about 18 years doing construction, road, and underground sewer work. Del Rivero also operated heavy equipment while serving in the military. He has experience operating a wide variety of heavy construction equipment. Del Rivero also had about 2 years’ experience working as a driver and has a commercial driver’s license. Del Rivero is a college graduate and completed 1 year of law school. Del Rivero was prepared to start work immediately if hired; he would have accepted out-of-state work if offered.12 However, Del Rivero had not worked as a laborer for about 11 to 12 years. Del Rivero was available for work and would have accepted em- ployment with Respondent if offered after May 4. Donald Todd Vandermyde has worked for the Union for 2 years as a task force organizer. He earns a salary of about $78,000 per year. Before working for the Union Vandermyde worked as a heavy equipment operator. He completed the Un- ion’s apprenticeship program and has been a journeyman for about 6 or 7 years. He has experience working on mass dirt crews, road crews, sewer crews, and asphalt crews. He is able to operate a wide variety of heavy equipment. Vandermyde also worked as a laborer before becoming an apprentice. Van- dermyde drove heavy trucks while serving in the military, but he does not have a commercial driver’s license. Vandermyde 11 These facts are based on the stipulation of the parties. I do not credit Howell’s testimony to the extent that it is inconsistent with that stipulation. 12 These findings should not be confused with the issue of how long an applicant would have continued to work after accepting employ- ment. was prepared to start work that day if offered; he had his safety vest, hardhat, and steel-toed boots in the trunk of his car. Van- dermyde would have accepted out-of-state work also. He last worked as a laborer in 1988. Vandermyde was available for work and would have accepted employment with Respondent if offered after May 4. Thomas Zlamal has worked as a laborer and operator off and on for 18 years. Zlamal is not an employee of the Union but he is a union member and journeyman operator. He has at least 5 years of experience operating a full range of heavy equipment. He was prepared to start work on May 4 if he had been offered a job. Zlamal also would have accepted out-of-state work. Three or four weeks after Zlamal applied for work with Re- spondent he found work with another employer; he worked there a month or two. When that job ended he let the Union’s hiring hall know that he was seeking work. After a few weeks Zlamal found work with another employer, where he worked again for a period of time. All of his work during the relevant time period was at union scale, the lowest of which was $16 per hour. Zlamal would not have accepted an offer of employment from Respondent during those times after May 4 when he was working for other employers; he would have accepted an offer from Respondent during the times after May 4 when he was unemployed. Daniel Patrick Regan has employed by the Union as a busi- ness representative for about 5 years. He receives a yearly salary of about $88,000. Regan has been a union member for almost 35 years. He has almost 30 years of experience working as a laborer and operating a wide range of heavy equipment. Regan also has experience as a driver and has a commercial driver’s license. Regan was prepared to start work on May 4 if Respondent had offered him employment, including out-of- state work. Regan also was available and would have accepted employment with Respondent if it was offered to him during the relevant time period after May 4. Nicholas Zasiebida is a journeyman operator with over 5 years of experience operating a wide range of heavy equipment. He also worked for 6 years as a laborer. He has been a union member for over 3 years, but he is not an employee of the Un- ion. He would have begun working on May 4 if an offer had been made, including an offer for out-of-state work. On about June 15, Zasiebida began working for Stanley Rebose Trucking operating a rubber tire loader at the union rate of about $29.50 per hour. He worked there for about 2-1/2 weeks. Without losing any time off, Zasiebida began working for Marina Trucking doing the same work at the same rate. He worked at Marina until about Christmas. I conclude that Zasiebida would not have accepted employment with Respondent if it were of- fered to him after he began working for Stanley Rebose.13 13 Zasiebida admitted that he would not have accepted employment as a laborer with Respondent if offered after June 15. He was more equivocal about whether he would have accepted an operator’s posi- tion. He indicates a number of factors that he would consider before deciding whether or not to accept an operator’s position. Those factors included whether the job was permanent and whether he would be able to work during the winter. I conclude, however, that Zasiebida would not have left his high paying, relatively long-term job to accept em- ployment as an operator with Respondent. R.J. CORMAN RAILROAD CONSTRUCTION 997 Kevin Colin Burke has worked as a business representative for the Union for 5 years. He earns a yearly salary of about $88,000. Before that Burke had 14 years of experience operat- ing a full range of heavy equipment. He also has experience working as a laborer and had a commercial driver’s license, but he allowed it to lapse at some undisclosed time. Burke was prepared to start work on May 4 if Respondent had offered him employment, including out-of-state work. Burke also was available and would have accepted employment with Respon- dent if it were offered to him during the relevant time period after May 4. Tom Geffert has been employed by the Union as a task force organizer since October 1997. He earns a yearly salary of about $78,000. Before that he worked as a laborer, truck driver, and a heavy equipment operator. He is a journeyman operator and has experience operating a wide range of heavy equipment. He also has a class A commercial driver’s license. Geffert was prepared to start work on May 4, if Respondent had offered him employment, including out-of-state work. Geffert also was available and would have accepted employment with Respondent if it were offered to him during the relevant time period after May 4. Geffert last did laborers’ work in 1996. Lindell Viou has been a union member for 7 years; he is not employed by the Union. He is a journeyman operator and has 7 years' of experience operating a full range of heavy equipment. Viou also has 15 years experience working as a laborer. Viou would have started work on May 4, if offered, including out-of- state work. Viou worked for Material Services as an operator for about 60 days beginning late May. He also worked for Sheehan Pipeline for about a month during the critical time period after May 4. He also worked at other union jobs during this time period. Viou would not have accepted an offer of employment from Respondent during the times after May 4 when he was employed elsewhere at union scale. Sean Flanagin is a union member and a journeyman opera- tor; he is not employed by the Union. He has 5 years of experi- ence operating a wide range of heavy equipment and has worked as a laborer for about 1 year. Flanagin would have started work on May 4, if offered, including out-of-state work. On about June 15, Flanagin began working at union scale at Golf Construction as an operator. He continued working there up to the date of the hearing. Flanagin would not have accepted an offer of employment from Respondent during the times after May 4 when he was employed elsewhere at union scale. Delbert Watson is a task force organizer for the Union, a po- sition he has occupied for 4 years. His yearly salary is about $78,000. Before that he was a business agent for 4 years and a dispatcher for the Union for 3 years. He has been a union member for about 31 years. Before he became an employee of the Union, Watson was a journeyman operator. He has experi- ence operating a full range of heavy equipment. Watson also worked as a laborer for about 6 years. Watson was prepared to start work on May 4 if Respondent had offered him employ- ment, including out-of-state work. Watson also was available and would have accepted employment with Respondent if it were offered to him during the relevant time period after May 4. Watson last did laborers’ work in 1973. Watson was hired once by a nonunion employer after he applied as an overt task force organizer. After working there 2 or 3 days Watson asked the foreman if he could receive the same pay as the others on the site. When the foreman said no Watson and the other task force organizers who had been hired went on strike. None of the other employees joined the strike and it does not appear that Watson ever made an offer to return to work. Watson candidly admitted that if he were hired by Respondent and felt that the working conditions there were not appropriate he would have considered going on strike there too. Stanley Simrayh has worked as an organizer for the Union for about 5 years; he has been a union member for 12 years. His yearly salary is about $88,000. Before becoming an organ- izer Simrayh worked was a journeyman operator; he has ex- perience operating a full range of heavy equipment. He also has worked as a laborer. He has driven trucks and has a com- mercial driver’s license. Simrayh was prepared to start work on May 4 ,if Respondent had offered him employment, including out-of-state work. He also was available and would have ac- cepted employment with Respondent if it were offered to him during the relevant time period after May 4. Simrayh was hired once by a nonunion employer after he applied as an overt task force organizer. He worked 3 days and went on strike to pro- test alleged unfair labor practices. There is no evidence that the Union filed unfair labor practice charges with the Board over this matter. No other employees joined the strike. James Ward has been a member of the Union for 3 years; he is not an employee of the Union. He is a journey operator and has 10 years’ experience operating a wide range of heavy equipment. He also has 12 years of experience working as a laborer. Ward would have started work immediately if had been a position by Respondent at the Bedford Park location. Ward was uncertain, though, whether he would have accepted an out-of-state job. In the third week in June, Ward found work as an operator on a union job at $30 per hour. He worked on that job until mid-October. He would not have accepted em- ployment with Respondent if offered during the time he was employed at the union job. Donald Ban has been a journeyman operator and a member of the Union for about 10 years; he is not an employee of the Union. He has experience operating a full range of heavy equipment. Before that he worked as a mechanic for about 20 years. He also has experience as a laborer. Ban would have accepted employment if Respondent had offered it to him on May 4, including out-of-state work. About 2 weeks after May 4, Ban worked for a week at a union job. He also worked at other union jobs during the relevant time period after May 4. Ban would not have accepted employment with Respondent if it were offered during those times. David Pessmeg is a journey operator and has been a member of the Union for about 2 years. He has experience operating a wide range of heavy equipment and has a commercial driver’s license. He also has worked as a laborer for about 3 to 4 years. Pessmeg would have accepted employment if Respondent had offered it to him on May 4, including out-of-state work. How- ever, in mid-May, Pessmeg found work as an operator on a union job at $18 per hour; thereafter, he found work at another union job for over $30 per hour. Pessmeg would not have ac- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 998 cepted employment with Respondent if it were offered during those times. Matt Candela, who was in the first group that applied for work, did not testify at the hearing. The facts in the prior paragraphs are based on the testimony of the applicants, who I found to be credible. Respondent does not challenge that testimony insofar as it described the past experience of the applicants. Respondent does argue that the testimony of the applicants who are employees of the Union is not believable to the extent that they claimed they would have accepted employment with Respondent if offered. In the same vein, Respondent argues that the union organizers did not make bona fide applications for work. I disagree. It was part of the jobs of the union organizers to seek and accept employment as salts. I conclude that they would have done their jobs and ac- cepted employment. However, this finding is separate from the matter of how long they would have remained working; that issue is addressed in the remedy section below. III. ANALYSIS A. The 8(a)(1) Allegations The complaint alleges that on May 4 Respondent unlawfully interrogated an employee about his union activities. I have found that on that date Howell asked Bell if he was from the Union; Bell answered no. Howell said that was good, that they were not going to stand for any union bullshit going on around there. Howell said that they did not want any part of the Union, that they would close the doors before they went union. Inter- rogation of an employee is not per se unlawful. Rather, the General Counsel must show that the interrogation reasonably tends to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Emery Worldwide, 309 NLRB 185, 186 (1992). In making that determination the Board examines the totality of circumstances. Sunnyvale Medi- cal Clinic, 277 NLRB 1217 (1985). Here, the questioning oc- curred in Howell’s truck with just the two of them present. It occurred shortly after Howell had rejected the attempts of the union applicants to apply for work. Howell displayed the seri- ousness of the inquiry by stating that it was good that Bell was not from the Union. He coupled the questioning with other unlawful statements, as shown below. Under these circum- stances, I conclude that by interrogating an employee concern- ing his union activity Respondent violated Section 8(a)(1). The complaint alleges that during that same conversation Respondent informed an employee that union activities would be futile.14 Statements that convey to employees that their un- ion activities will be futile are unlawful. Wellstream Corp., 313 NLRB 698, 706 (1994). Howell’s comments clearly conveyed such futility. By conveying to employees that their union activ- ity would be futile, Respondent violated Section 8(a)(1). The complaint alleges that on about May 30 Respondent threatened employees with plant closure if the employees se- lected a union as their collective-bargaining representative. I have found above that during a meeting in late May Howell told employees that he had been in a union and it never did a 14 The General Counsel does not allege that Howell’s remarks were unlawful threats. damn thing for him; that it took his money and never gave any- thing in return. He said that if the Union got in the Company would close its doors, shut down the team that it has there, and move on. This statement was not coupled with an explanation showing that the closing was due to demonstrably probable consequences beyond Respondent’s control. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). By threatening employees that it would close its facility in Bedford Park if the employees selected the Union as their collective-bargaining representative, Respondent violated Section 8(a)(1). Dlubak Corp., 307 NLRB 1138, 1145 (1992). The complaint alleges that Respondent impliedly threatened employees with loss of benefits if they selected the Union as their collective-bargaining representative. I have found that during the same meeting Howell told the employees that if the union got in the employees would lose their transportation to and from Kentucky, their meal and lodging expenses, and their uniforms. These were benefits that Respondent provided to its employees. The Board has held that such statements are unlaw- ful. Hertz Corp., 316 NLRB 672 fn. 2 (1995). By threatening employees that they will lose benefits if they selected the Union as their collective-bargaining representative, Respondent vio- lated Section 8(a)(1). B. Refusal-to-Hire Allegations In FES, 331 NLRB 9 (2000), the Board revised the frame- work it applies in cases involving allegations of refusal-to-hire and refusal-to-consider for hiring. It did so in an effort to ad- dress criticisms of earlier decisions by Courts of Appeals. The Board held that in order to prove an unlawful refusal to hire the General Counsel must establish (1) that the employer was hir- ing, or had concrete plans to hire at the time of the alleged unlawful conduct; (2) that the applicants had the experience or training relevant to the announced or generally known require- ments of the positions; and (3) that antiunion animus contrib- uted to the decision not to hire the applicants. The Board also emphasized that the General Counsel must plead and prove the number of job openings available to the applicants, including openings that became available after the alleged discriminatees applied for work. Concerning the number of openings, the parties stipulated that between May 4 and November 1, Respondent hired 33 employees for its projects located throughout the eastern United States. The General Counsel contends that all of these open- ings were available for the alleged discriminates. More specifi- cally, the General Counsel contends that Respondent would have hired the union applicants at Bedford Park for work at its projects in locations such as Vermont and Massachusetts. I disagree. Respondent’s practice has been to hire almost all of its employees from eastern Kentucky. These new hires are usually friends, relatives, or acquaintances of current employ- ees. Respondent transports these employees from eastern Ken- tucky to the various project locations. Respondent also occa- sionally hires employees locally, but these employees are hired to work on the local project. Once work at the local project is over, these employees are offered work at other projects, but they must provide their own transportation to and from those other projects. There is no evidence that Respondent hires local R.J. CORMAN RAILROAD CONSTRUCTION 999 employees to begin work at distant projects.15 The facts in this case are consistent with that practice. Surles and Bell were hired to work at Bedford Park. Respondent had sought to hire additional employees specifically to work at Bedford Park. There is no evidence that Respondent’s hiring efforts at Bed- ford Park were directed at finding employees to work at distant projects.16 Indeed, each of the four employees hired and ini- tially assigned to Bedford Park came from eastern Kentucky. It is important to note that the General Counsel does not contend that Respondent’s hiring practice is unlawful. Yet to accept the General Counsel’s contention would require Respondent to alter the lawful manner in which it conducts its business. I conclude that the General Counsel has failed to establish that all 33 positions were available for the discriminatees,17 and he has not argued in his brief any other theory concerning avail- able positions. Normally this conclusion would result in the dismissal of the complaint for it is not my role to develop theories neither spe- cifically plead nor propounded by the General Counsel. I none- theless consider whether it is appropriate to address the matter of whether the 13 employees whom Respondent assigned to work at Bedford Park after May 4 were positions available to the union applicants. On the one hand, FES requires that the General Counsel plead the number of available openings in the complaint. The General Counsel has failed to do so. However the Union, unlike the General Counsel, has argued in its brief that the 13 positions Respondent assigned to Bedford Park after May 4 were available for the union applicants. Thus the Union has preserved the issue. And despite the lack of notice of this issue in the complaint, I conclude that this matter has been fully litigated. All parties presented evidence on this issue and the Union and Respondent addressed the matter in their briefs. I thus conclude that it is appropriate to consider the issue of whether the 13 positions were available. Turning to that issue, I have concluded above that Respon- dent hired Surles and Bell for work at Bedford Park. Respon- dent was attempting to hire additional employees as shown by the fact that Howell gave application forms to Bell, Surles, and officials of the Belt Railroad for their distribution. On May 1, Howell gave another application form to Bell and said that he wanted to get a crew of local people started because the em- ployees from Kentucky did not like coming to the Bedford Park location. On May 2, Surles admitted to Aprile that Respondent was looking to hire employees, including laborers; on May 3, Howell gave an application form to Aprile. Howell in fact attempted to hire additional employees as laborers and drivers but was unsuccessful. Moreover, the stipulation of the parties 15 I find little of value in the email exchange on Respondent’s web- site, described above. The sender of the email messages made clear that he had little direct knowledge of the facts and Vandermyde never applied for a position. 16 To this limited extent I credit Gupton’s testimony that it was Re- spondent’s practice not to do so. 17 This finding makes it unnecessary for me to decide Respondent’s arguments that the union applicants never applied for work as Kentucky based employees and that the General Counsel has failed to show that the union applicants would have been hired in time to be available for some of the 33 positions that were filled shortly after May 4. shows that Respondent found it necessary to increase its work force at Bedford Park by 13 employees after May 4. These facts clearly show that Respondent was in fact hiring employ- ees for Bedford Park and had concrete plans to hire additional employees as of May 4. Respondent argues that it decided to abandon its plans to lo- cally hire laborers and drivers before the union applicants ap- plied for work. This argument is based on Howell’s testimony. But Howell’s testimony on these points is so contrary to the record as a whole that it serves to undermine his overall credi- bility. Howell admitted that in April he had distributed applica- tions and spoke to applicants in an effort to hire additional la- borers and the unrefuted evidence shows that as late as May 2 Surles indicated that Respondent was still planning to hire la- borers. Yet, Howell testified that on some unspecified time before the morning of May 4 he decided not to attempt to hire local laborers because he concluded that he would be unable to find any in the Chicago area willing to work for $8.50 per hour. Howell also admitted that he had been attempting to hire an- other driver. Howell testified that he had been expecting that a driver would be leaving and he was attempting to hire a re- placement. Indeed, on May 3, he gave Aprile an application with the hope of hiring him as a driver. Yet Howell’s testi- mony is that at some unspecified time after he gave Aprile an application and the morning of May 4 he learned that the driver would not be leaving and thus abandoned his efforts to hire a replacement. None of this testimony has any corroboration in the record. To the contrary, in Howell’s pretrial statement he said, “At the time that the Local 150 guys came to Bedford Park . . . I was looking for drivers.” I conclude that Howell’s testimony was a patently fabricated after-the-fact attempt to explain evidence that was damaging to Respondent. In sum, I conclude that Respondent had concrete plans to hire employees for work at Bedford Park and that in fact there were 13 open- ings available for the union applicants at that location. Turning now to the qualifications of the applicants, Respon- dent was seeking to hire, and did in fact assign to work at Bed- ford Park after May 4, employees classified as laborers, opera- tors, and drivers. Each of the 14 applicants who testified at the hearing was qualified to work as laborers and operators; Re- spondent does not seriously contend otherwise. Del Rivero, Regan, Geffert, Simrayh, and Pessmeg had experience driving and had current commercial driver’s licenses.18 They were thus qualified to work as drivers. Matt Candela’s qualifications require more analysis. It will be recalled that Candela did not testify at the hearing. The General Counsel put in no evidence concerning Candela’s work history, union membership, journeyman status, or any other information that shed light on Candela’s qualifications. I con- clude, however, that there were no requirements for the laborer position other than a willingness to perform physical labor. By making application on May 4, Candela demonstrated that will- ingness. Respondent argues that the General Counsel has failed 18 I conclude that Respondent has shown that possession of a com- mercial driver’s license was a requirement of the driver’s position. It required Bell to have that license, asked Aprile if he had such a license also. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1000 to a case concerning Candela because no witness ever identified Candela as having applied for work on May 4. I disagree. In addition to the notes he took, Aprile specifically identified Candela as one of the people who drove on the facility to apply for work. But the General Counsel also argues that Candela should be considered for instatement to the driver and operator positions as well. He argues that he does not need to show that any of the applicants, including Candela, were qualified for any of the positions because Respondent never publicly announced or made generally known any requirements for the positions, or that the qualifications for the positions were vague or subjec- tive. He argues that it was thus Respondent’s burden to show that the applicants were not qualified, citing FES and Norman King Electric, 334 NLRB 154, 158 (2001). Thus, the argument continues, because Respondent has not shown that Candela was not qualified for the positions Candela is entitled to be consid- ered for instatement for the driver and operator positions. I disagree. It is clear that Respondent was seeking some em- ployees to work as drivers and operators. There are generally known qualifications for these positions: sufficient experience or training to demonstrate an ability to operate heavy construc- tion equipment or drive a truck. The General Counsel must show that the applicants had these generally known require- ments. The weakness of the General Counsel’s argument is shown by the fact that he would have the Board order Respon- dent to hire Candela as an operator and driver when there is no evidence whatsoever that Candela has ever driven a truck or operated heavy equipment. Apart from the real possibility of damage to equipment, such an order would be potentially dan- gerous to Candela and the other employees on the site. I thus conclude that the General Counsel has only shown that Candela was qualified to work as a laborer. I have concluded thus far that Respondent had concrete plans to hire employees for the Bedford Park location, that there were 13 positions available for the union applicants to fill, and that those applicants were qualified as a group to fill those posi- tions. I now examine whether antiunion animus contributed to Respondent’s decision not to hire the applicants. In doing so I am guided by Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The applicants engaged in union activity by wearing union apparel and otherwise demonstrating their sup- port of the Union. Respondent was unquestionably aware of the fact the applicants were union supporters. Respondent’s antiunion animus is shown in several ways. First, I have con- cluded that Respondent violated the Act by interrogating an employee concerning his union activity, by conveying to em- ployees that their union activity would be futile, by threatening employees that it would close its facility in Bedford Park if the employees selected the Union as their collective-bargaining representative, and by threatening employees that they would lose benefits if they selected the Union as their collective- bargaining representative. Respondent contends that these facts may not be considered evidence of animus for the refusal-to- hire because this unlawful conduct occurred after May 4. This argument is unpersuasive. Howell’s statements to Bell oc- curred only 10 to 15 minutes after the last group of applicants left. Those statements are thus clearly part and parcel of the refusal-to-hire. And the depth of Respondent’s animus is shown by the fact that it made other unlawful statements later that same month. Respondent’s antiunion animus is shown by the very refusal-to-hire process itself. In this regard, Respon- dent was seeking to hire additional employees throughout the period before the union applicants appeared. Indeed, the day before they appeared Respondent was seeking to hire employ- ees. But with the appearance of the union applicants Respon- dent abruptly announced it was no longer hiring. This scenario alone is sufficient to demonstrate antiunion animus. Indeed, as the General Counsel points out, Respondent's abandonment of its plans to hire locally came as a result of the events of May 4 and therefore was itself unlawful. V.R.D. Decorating, 322 NLRB 546 (1996). I also conclude that Howell attempted to mislead the applicants by saying that he did not have applica- tions and by using a false name. Such evasive responses sup- port an inference of animus. Respondent argues that the reason Howell failed to give application forms to the union applicants was because he ran out of them. Howell testified, in response to leading questions, that he gave Aprile the last application that he had. I reject this argument and Howell’s testimony to that effect again serves to seriously undermine his credibility. Howell earlier testified that he could not remember meeting Aprile, yet he testified with apparent assurance that he gave his last application to Aprile. Indeed, Aprile testified that on May 3 the folder that Howell used to store the applications forms appeared full. Moreover, I note that the credited evidence shows that Howell never told the union applicant that he had run out of applications.19 I conclude that the General Counsel has met his initial burden of showing that antiunion animus contributed to Respondent’s refusal to hire the union applicants. I now turn to the question of whether the applicants re- mained available and willing to accept employment with Re- spondent if they had been offered positions that became avail- able after May 4. As the Board stated in FES, “[T]he issue of whether the alleged discriminatees would have been hired but for the discrimination against them must be litigated at the hearing on the merits.” Id. at 12. In 3D Enterprises Contract- ing Corp., 334 NLRB 57 (2001), the Board stated, “the General Counsel must also litigate the question of whether the discrimi- natees would have been hired for any such subsequent openings in the absence of the discriminatory refusal to consider them.” Id. I have concluded above that Zlamal, Zasiebida, Viou, Flanagin, Ward, Ban, and Pessmeg would not have accepted offers of employment from Respondent for certain periods of time. It surely follows that Respondent would not have unlaw- fully refused to hire these applicants during those time periods if the applicants would have rejected the offers of employment. For those periods of time the General Counsel has failed to show that those applicants would have been hired absent anti- union animus. As the court stated in Starcon, Inc. v. NLRB, 176 F.3d 948 (7th Cir. 1999), a decision the Board addressed in FES: 19 Respondent points to GC Exh. 5 as support for its contention that the applicants themselves admitted that Howell told them that he had no applications. I do not agree. That document shows only that the applicants were “denied applications.” R.J. CORMAN RAILROAD CONSTRUCTION 1001 The worker might have gotten a higher-paying job and thus have no interest in being reinstated and have suffered no loss from the discrimination. There would be no basis for order- ing reinstatement and backpay in such a case but the Board would still be entitled to enter a cease-and-desist order to pro- vide some assurance against a repetition of the violation. [176 F.3d at 951.] In context, I understand this to mean that there can be no re- fusal-to-hire violation or refusal-to-hire remedy unless it is shown that the discriminatee was available and would have accepted employment if offered, but that a cease-and-desist order can still be entered if there has been a refusal-to-consider violation. The General Counsel argues that this issue should be resolved in the compliance stage of these proceedings. But the language quoted above shows that this issue cannot be deferred. This is an issue that goes to the merits of the violation. No refusal to hire can be shown if the applicant was no longer will- ing to accept employment with Respondent if offered. The General Counsel has invoked the maxim that ambiguities should be resolved against the wrongdoer. But it is important to note that the General Counsel has not shown that any of the union applicants would have been hired to start work on May 4 itself. Indeed, Aprile had sought work on May 2 and 3; he was not hired on the spot. Thus, as of May 4, there was no unlawful refusal to hire. As the Board itself stated in FES in the context of considering the remedy for a refusal-to-consider violation: [B]ecause there has been no showing in the hearing on the merits with respect to the hiring decision on the subsequent job opening, issues related to that hiring decision cannot be resolved against the respondent as an adjudicated wrongdoer. Id. at 15 fn. 18. Thus, the Board does not apply that maxim in these circumstances. The General Counsel next argues that it should be Respondent’s burden to show that the union appli- cants were not available for employment since Respondent is in the best position to know when openings became available. He also argues that it is unfair to require the General Counsel and the union applicants to show that they would have been avail- able for work at unknown dates after May 4. But these argu- ments show that the General Counsel misunderstands his bur- den under FES. It is his burden to plead and prove the number of subsequent openings; that entails pleading and proving the dates on which the openings became available. Thus, the Gen- eral Counsel must have that information before he issues a complaint. Rather, it is the alleged discriminatees, not the em- ployer, who has the information concerning their availability on the dates the General Counsel alleges they should have been hired.20 In any event, as I read FES the Board has placed that burden on the General Counsel. Next, the General Counsel argues that to “require proof of availability for a job unlawfully withheld from the discriminatees before the offer is made is to put the cart before the horse so to speak and deprive the dis- criminatee of a remedy for a violation under the guise of negat- ing the violation in the first place.” But this argument, as well as others made by the General Counsel, again assumes that 20 Even if the burden is on Respondent, I conclude that they have met that burden concerning the applicants named above. there has been a refusal-to-hire violation as of May 4 when, for reasons explained above, none has shown. Next, the General Counsel gives an example to support his argument. Suppose, he asks, that an applicant was ill and in the hospital and could not physically perform the work at the time the employer makes an offer of employment? But posing this question only serves to undermine the General Counsel’s argument, because under those circumstances the employer could lawfully pass over the unavailable applicant and hire someone able to begin work immediately. The General Counsel concedes that FES requires him to prove availability in the context of compliance proceedings flowing from a refusal-to-consider violation. Yet it is clear that the Board intended that these very same matters be addressed during the hearing on the merits for refusal-to-hire allegations for openings that occur before the hearing. I there- fore conclude that the applicants listed above were not available for employment during the specified time periods21 and thus may not be considered for offers of employment that became available during those same time periods. One final matter needs to be addressed: the status of Candela’s availability. I have concluded above that the General Counsel must show during the hearing on the merits that the applicants were avail- able to accept employment on the dates he contends the offers should have been made. The General Counsel has produced no evidence concerning Candela’s availability. It follows there has been no refusal-to-hire violation concerning Candela and he is not entitled to an offer of employment for any position that became available through November 1. I now address whether Respondent has shown that it would not have hired the union applicants for reasons unrelated to their union support. Respondent argues that it would not have hired any of the union applicants because it hires its employees from the eastern Kentucky area and then assigns them as needed to its projects. I conclude that the evidence does not support this argument. Although it was Respondent’s general practice to hire employees from the eastern Kentucky area, Respondent had hired employees locally in the past. The pro- ject at Bedford Park was unique in that it was Respondent’s biggest, and it was still growing. It is apparent that Respondent had determined that, notwithstanding its general practice, it was going to hire local people there.22 Because Respondent has failed to show that it would have refused to hire the union applicants for reasons unrelated to their support for the Union, I conclude that it violated Section 8(a)(3) and (1) by refusing to hire the 14 named applicants. A. Refusal-to-Consider for Hire Allegations As indicated the General Counsel argues that Respondent has unlawfully refused to consider the union applicants for employment. In FES, the Board held that to establish a refusal- to-consider violation the General Counsel must establish that (1) the respondent excluded the applicants from the hiring 21 I leave to compliance the determination of the precise dates that these discriminatees were unavailable 22 I have considered Gupton’s testimony that the hiring of local em- ployees Bell and Surles were “special cases.” I reject that testimony to the extent that it implies that Respondent was not seeking to hire more local employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1002 process and (2) antiunion animus contributed to the decision not to consider the applicants for employment. Once this is established, the burdens shifts to the respondent to show that it would not have considered the applicants even in the absence of their union support. Here, the facts show that Respondent had been giving application forms and considering applicants for employment. However, when the union applicants ap- peared on the scene on May 4, Respondent refused to give them applications or otherwise consider them for employment. For reasons previously stated, this action was motivated by Re- spondent’s antiunion animus. I conclude that the General Counsel has met his initial burden of showing a refusal-to- consider violation. I now examine whether Respondent has shown that it would not have considered the applicants for employment even absent its antiunion animus. However, Respondent makes no argu- ments that have not been previously considered and rejected. Accordingly, I conclude that by failing to consider the 15 named applicants for employment because they supported the Union, Respondent violated Section 8(a)(3) and (1). CONCLUSIONS OF LAW 1. By the following conduct, Respondent has engaged in un- fair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. (a) Interrogating employees concerning their union activity. (b) Conveying to employees that their union activity would be futile. (c) Threatening employees that it would close its facility in Bedford Park if the employees selected the Union as their col- lective-bargaining representative (d) Threatening employees that they will lose benefits if they selected the Union as their collective-bargaining representative. 2. By the following conduct, Respondent has engaged in un- fair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. (a) Refusing to hire Angel Del Rivero, Donald Todd Van- dermyde, Thomas Zlamal, Daniel Patrick Regan, Nicholas Zasiebida, Kevin Colin Burke, Tom Geffert, Lindell Viou, Sean Flanagin, Delbert Watson, Stanley Simrayh, James Ward, Don- ald Ban, and David Pessmeg because they supported the Union. (b) Failing to consider Angel Del Rivero, Donald Todd Van- dermyde, Thomas Zlamal, Daniel Patrick Regan, Nicholas Zasiebida, Kevin Colin Burke, Tom Geffert, Lindell Viou, Sean Flanagin, Delbert Watson, Stanley Simrayh, James Ward, Don- ald Ban, David Pessmeg, and Nick Candela for employment because they supported the Union. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Respondent argues that the seven union organizers would not have remained on the job very long and therefore are not enti- tled to reinstatement and full backpay. It argues that the union organizers had not performed laborer’s work for many years and have become unaccustomed to long, hard, physical work, especially the 12-hour or longer days that Respondent required of its employees. It argues that it is unrealistic to believe that the Union would have allowed seven highly paid organizers to remain away from their normal duties for long periods of time. Respondent points out that in the two instances where organiz- ers were hired as salts the organizers ceased working within 2 to 3 days to engage in a “strike.” These arguments are compel- ling. However, the Board has held that this issue is appropriate for resolution in compliance. 3D Enterprises Contracting Corp., supra at 57 fn. 2. In this case, I am not satisfied that this issue has yet been fully litigated from the perspective of the General Counsel and the Union. Under these circumstances, I conclude it is more appropriate to leave this issue for resolution in compliance. I shall also leave to compliance the matter of whether the discriminatees would have been transferred to other jobsites after completing work at Bedford Park. Dean General Contractors, 285 NLRB 573 (1987). With those pro- visos, Respondent having discriminatorily refused to hire em- ployees, it must offer them instatement and make them whole for any loss of earnings and other benefits, computed on a quar- terly basis from date of the refusal to hire to date of proper offer of instatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987). Respondent having discriminatorily refused to consider employees for hire, it must place the discriminatees in the posi- tions they would have been in, absent discrimination, for open- ings that occurred after November 1, 2000, and to consider them for those openings in accord with nondiscriminatory crite- ria; it must also notify the discriminatees and the Regional Di- rector of future openings for which the discriminatees applied or substantially equivalent positions. [Recommended Order omitted from publication.]