ARK Fabricators, Inc.

373 NLRB No. 103 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Ark Fabricators, Inc. and Georgia Carolina Pipe Trades Association a/w the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL–CIO. Case 10–CA–291560 September 26, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On October 26, 2023, Administrative Law Judge G. Rebekah Ramirez issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel and the Charging Party each filed an- swering briefs, and the Respondent filed separate reply briefs to each answering brief. The General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed an answering brief. The Charging Par- ty filed cross-exceptions and a supporting brief, the Re- spondent filed an answering brief, and the Charging Par- ty filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions2 1 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 preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 In affirming the judge’s conclusion that the Respondent violated Sec. 8(a)(3) and (1) of the Act by refusing to hire union organizers Justin Johnson, Brett Petrea, and Andrew Tuttle, we agree with the judge that the Respondent was hiring at the relevant time. In so doing, we find it unnecessary to rely on the judge’s statement that the organiz- ers heard from three other Respondent employees that the Respondent was hiring because we find, in agreement with the judge, that the doc- umentary evidence established that it hired six employees after they applied. We further agree with the judge, for the reasons she states, that the General Counsel has shown that the Respondent’s animus was a moti- vating factor in its decision not to hire the union organizers. Having adopted the judge’s animus finding, we find it unnecessary to reach the General Counsel’s and the Charging Party’s request to overrule United Site Services of California, 369 NLRB No. 137 (2020), and to find the Respondent’s statements to the union organizers as additional evidence of animus. We also find it unnecessary to reach the General Counsel’s and the Charging Party’s request to overrule Electrolux Home Prod- ucts, 368 NLRB No. 34 (2019), as the judge did not rely solely on pretext in her animus finding. As she explained in Intertape Polymer and to adopt the recommended Order as modified and set forth in full below.3 ORDER The National Labor Relations Board orders that the Respondent, Ark Fabricators, Inc., Savannah, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to hire or consider for hire job applicants because they are union organizers, support a union, or seek union representation. (b) In any like or related manner, interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer employment to Justin Johnson, Brett Petrea, and Andrew Tuttle, in the positions for which they applied, or, if such Corp., 372 NLRB No. 133, slip op. at 5 fn. 19 (2023), Member Wilcox would revisit Electrolux and find that it was wrongly decided. In addition, we decline the General Counsel’s and the Charging Par- ty’s request to overrule Toering Electric, 351 NLRB 225 (2007), and Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007), rev. denied sub nom. Sheet Metal Workers Local 270 v. NLRB, 561 F.3d 497 (D.C. Cir. 2009), at this time. Member Prouty joins in applying Toering Electric and Oil Capitol Sheet Metal as extant precedent for the purpose of deciding this case. He would be willing to revisit that precedent in a future appropriate case. We also affirm the judge’s conclusion that the Respondent violated Sec. 8(a)(3) and (1) by refusing to consider union organizers Johnson, Petrea, and Tuttle for hire. To prove a refusal-to-consider violation, the General Counsel must show that the Respondent excluded the appli- cants from a hiring process and that the Respondent was motivated by animus. FES, 331 NLRB 9, 15 (2000), supplemented by 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). Here, the Respondent in- formed the organizers that their resumes would be placed in a “fishing pond” of job applicants to be called as needed. However, although the Respondent subsequently hired 6 individuals for the pipefitter/welder position, it never contacted the organizers for that position or otherwise indicated that they were being considered for hire. In these circum- stances, we find that the Respondent excluded the union organizers from its normal hiring process notwithstanding its gesture of accepting their resumes. In addition, we agree with the judge that the Respond- ent’s animus is demonstrated by its disparate treatment of the organiz- ers and its pretextual and shifting defenses. Inasmuch as the Respond- ent’s defense was pretextual, it has not met its defense burden of show- ing that the union organizers would not have been considered even in the absence of their union affiliation and activity. Chairman McFerran would find it unnecessary to pass on the judge’s finding that the Respondent violated Sec. 8(a)(3) and (1) by refusing to consider the organizers for hire because the remedy for a refusal-to- consider violation would be subsumed within the broader remedy for the refusal-to-hire violation. 3 We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language and in accordance with Para- gon Systems, Inc., 371 NLRB No. 104 (2022). We shall substitute a new notice to conform to the Order as modified. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 positions no longer exist, to substantially equivalent posi- tions. (b) Make Justin Johnson, Brett Petrea, and Andrew Tuttle, whole for any loss of earnings and other benefits suffered as a result of the Respondent’s discriminatory refusal to hire, and for any direct or foreseeable pecuni- ary harms, suffered as a result of the unlawful refusal to consider them for hire and refusal to hire them in the manner set forth in the remedy section of the judge’s decision. (c) Compensate Justin Johnson, Brett Petrea, and An- drew Tuttle, for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 10, within 21 days from the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. (d) File with the Regional Director for Region 10, within 21 days from the date the amount of backpay is fixed either by agreement or Board order, or such addi- tional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s corre- sponding W-2 forms reflecting the backpay award. (e) Within 14 days from the date of this Order, re- move from its files any references to the unlawful refusal to hire Justin Johnson, Brett Petrea, and Andrew Tuttle, or consider them for hire and within 3 days thereafter, notify them in writing that this has been done, and that this unlawful conduct will not be used against them in any way. (f) 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 rec- ords, and reports, and all other records including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at its Savannah, Georgia facility copies of the attached notice marked “Appendix.”4 Copies of the no- 4 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that tice, on forms provided by the Regional Director for Re- gion 10, 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. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current and former employees employed by Respondent at any time since February 1, 2022. (h) Within 21 days after service by the Region, file with the Regional Director for Region 10 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. , September 26, 2024. ______________________________________ Lauren McFerran, Chairman ______________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government “This notice is the same notice previously [sent or posted] electronical- ly on [date].” 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ARK FABRICATORS INC. 3 The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to hire or consider for hire job ap- plicants because they are union organizers, support a union, or seek union representation. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights listed above. WE WILL, within 14 days of the date of the Board’s Order, offer employment to Justin Johnson, Brett Petrea, and Andrew Tuttle, in the positions for which they ap- plied, or if such positions no longer exist, to substan- tially equivalent positions. WE WILL make Justin Johnson, Brett Petrea, and An- drew Tuttle whole for any loss of earnings and other benefits resulting from our discriminatory refusal to hire, less any net interim earnings, plus interest, and WE WILL also make them whole for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful re- fusal to hire, including reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Justin Johnson, Brett Petrea, and Andrew Tuttle, for the adverse tax consequences, if any, of receiving lump-sum backpay awards and WE WILL file with the Regional Director for Region 10, within 21 days of the date that the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay awards to the appropriate calendar years for each employee. WE WILL file with the Regional Director for Re- gion 10, within 21 days of the date that the amount of backpay is fixed either by agreement or Board order, or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipi- ent’s corresponding W-2 forms reflecting the backpay award. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any references to our unlaw- ful refusal to hire Justin Johnson, Brett Petrea, and An- drew Tuttle or consider them for hire, and WE WILL , within 3 days thereafter, notify them in writing that this has been done and that our unlawful conduct will not be used against them in any way. ARK FABRICATORS, INC. The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/10-CA-291560 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washing- ton, D.C. 20570, or by calling (202) 273-1940. Kurt Brandner, Esq., for the General Counsel. Nathan A. Colarusso, Esq., for the Respondent. Kathleen Bichner, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE G. REBEKAH RAMIREZ, Administrative Law Judge. This case was tried in Savannah, Georgia, on August 9 and 10, 2023. The Georgia Carolina Pipe Trades Association affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL–CIO (the Union or the Charging Party) filed the charge giving rise to this case on March 2, 2022,1 and the Gen- eral Counsel issued the complaint on March 22, 2023. The complaint alleges that Ark Fabricators, Inc. (the Re- spondent or the Company) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) when it refused to consider for hire and refused to hire Union Organizers Justin Johnson, Brett Petrea, and Andrew Tuttle, who applied for positions with it on February 1.2 The Respondent timely filed an answer in which it denied committing any of the violations alleged in the complaint. On the entire record,3 including my observation of the demeanor of the witnesses, and after consid- ering the briefs filed by the General Counsel, the Charging 1 All dates are in 2022 unless otherwise indicated. 2 The complaint was amended at the hearing, without objection, to correct a typo in par. 6(d). 3 General Counsel’s unopposed Motion to Correct Transcript is granted. During my review of the record, I found additional transcript errors where corrections are warranted, although none are material. The word “well” is corrected to “weld” on the following transcript pgs.: Pg. 112, line 13; Pg. 113, lines 3, 13, 21, and 23; Pg. 119, line 13; Pg. 123, lines 18, 20, 22, and 23; Pg. 124 lines 3, 7, 12, 13, and 15; Pg. 125, lines 15 and 17. The word “discrepancies” is corrected to “discrimi- natees” on Pg. 133, line 10. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Party, and the Respondent, 4 I make the following findings of fact and conclusions of law. FINDINGS OF FACT JURISDICTION Respondent is a corporation with an office and place of busi- ness in Savannah, Georgia, where it is engaged in the construc- tion industry as a pipefitting, welding, and mechanical contrac- tor. In conducting its operations during the calendar year end- ing December 31, 2022, Respondent purchased and received goods valued in excess of $50,000 from points outside of the state of Georgia. Accordingly, 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. In addition, Respondent admits, and I find that the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is a family-owned business, established by Wil- liam Joseph “BJ” Duncan’s father about 15 years ago in Augus- ta, Georgia. (Tr. 162.) Duncan, who is a co-owner of the busi- ness, opened Respondent’s Savannah, Georgia office (the Sa- vannah office) in or about 2020. (Tr. 160.) Respondent’s opera- tions have always been nonunion.5 At all material times, Scott Carter was the operations manag- er and Charles Harley the superintendent at the Savannah of- fice. Carter and Harley are admitted supervisors and agents of Respondent for purposes of Section 2(11) and 2(13) of the Act. The Union first approached Respondent in mid-2021 with the goal of engaging in a “top-down” union organizing cam- paign. (Tr. 17.) Brett Petrea, the Union’s lead organizer, ex- plained that a top-down organizing campaign consists of the Union engaging in direct discussions with a contractor concern- ing whether it is interested in signing a collective-bargaining agreement or PLA. To this end, in July 2021, Local 188 union organizer Andrew Tuttle and union training director Perry Banks visited the Savannah office and met with Duncan and Carter. (Tr. 103.) Tuttle informed Respondent that the union had a hiring hall, and that they were looking to partner with Respondent to provide it with labor. (Tr. 103.) The men agreed to meet for lunch to continue the discussion, but Respondent failed to reply to Tuttle’s follow-up text messages to schedule a meeting.6 (Tr. 104, 108.) 4 The transcript and exhibits in this decision are referenced as fol- lows: “Tr.” for transcript, “GC Exh.” for General Counsel’s exhibit, “R. Exh.” for Respondent’s exhibit, and “CP Exh.” for Charging Party’s exhibit. The post hearing briefs are referenced as: “GC Br.” for the General Counsel’s brief, “R. Br.” for Respondent’s brief, and “CP Br.” for Charging Party’s brief. 5 Duncan testified that he managed one job under a project labor agreement (PLA) in Augusta in 2010. That is the extent of Respond- ent’s agreements with any union. 6 Duncan mostly corroborated Tuttle’s testimony concerning this meeting. Duncan testified that Tuttle did not come back to the office to continue the conversation, but he did not deny that Tuttle sent him texts Union Organizer Justin Johnson testified, undisputed, that he also met with one of Respondent’s co-owners, Chris Duncan, in Augusta, three or four times over the past couple of years. Johnson explained that he offered Respondent manpower and discussed the possibility of signing a contract or PLA with the Union. (Tr. 83.) In November 2021, Petrea called the Savannah office and spoke briefly with Carter. (Tr. 18.) According to Petrea, in testimony undisputed by Carter, he tried to schedule a meeting to discuss unionization with Carter, but Carter was not interest- ed, and the call ended after just a few minutes. (Tr. 18.) Nothing else happened until January. On January 17, Tuttle and Johnson ran into one of Respondent’s foremen, T.J. Aber- nathy, at a gas station. (Tr. 82, 101.) They asked Abernathy if Respondent was hiring pipefitters and welders. Abernathy told them that Respondent was hiring, and that they should call Carter. (Tr. 82, 101.) Later that day, Johnson and Tuttle ran into another Respondent foreman named Darryl at a marina and asked him if Respondent was hiring. (Tr. 84, 101.) Darryl said that he would call Carter and after making a short call, he said that Respondent was hiring and that they should go by the shop to apply. (Tr. 84, 101.) B. Salting Campaign Since the Union’s attempts to engage Respondent in a “top- down” organizing campaign had failed, the Union decided to attempt a “bottom-up” campaign. (Tr. 20.) A bottom-up cam- paign consists of getting union organizers and/or members hired covertly and overtly so they can talk to a company’s em- ployees about unionization while working for the company. (Tr. 20.) This is what is also commonly known as a “salting” campaign. Consequently, on January 18, the Union solicited Danny Davenport, who is the lead organizer for the Florida Pipe Trades, to apply for work at Respondent’s Savannah office. Davenport agreed to apply covertly as a “salt,” meaning that he would not reveal his union association to Respondent. (Tr. 20, 46.) Within a couple of days, Davenport called Respondent and talked to Charles Harley on the phone. (Tr. 47.) Davenport’s uncontroverted testimony regarding this call was that Harley told him Respondent was looking for pipefitters and that they had two good-sized projects. (Tr. 48.) Davenport told Harley that he had about 7 years of pipefitter experience but did not have experience as a welder. (Tr. 45.) Harley told Davenport that if he could report to work by the following Monday morn- ing, January 24, he would be hired at $28 an hour with $80 per diem. (Tr. 49.) On January 24, Davenport reported to work at Respondent’s Savannah office where he attended a safety meeting and com- pleted new hire paperwork along with another new employee, Anthony Parker. (Tr. 50.) Davenport did not submit a resume. His work application does not reveal any union association and his listed previous employment reflected a little less than 5 years of experience as a pipefitter. (GC Exh. 7.) The next day, that went unanswered. (Tr. 183.) Therefore, I credit Tuttle’s testimony that Respondent did not respond to his attempts to meet again. ARK FABRICATORS INC. 5 Davenport and Parker reported to work at a papermill under the supervision of Respondent’s foreman Scott Wells. (Tr. 52–53.) C. Johnson, Petrea, and Tuttle Apply for Employment On February 1, Johnson, Petrea and Tuttle went together to Respondent’s Savannah office to apply for work. (Tr. 21.) Petrea made an audio recording of this visit. (Tr. 23, GC Exh. 2 and 3.) The men were greeted by an employee only identified as “Jack,” who informed them that he was the purchasing manag- er. Petrea informed Jack that they were “organizers with the union… here to put in a resume and go to work for y’all.” When asked whether Respondent had work, Jack replied, “we’ve got a lot of work.” Jack told the men that he was not the person to talk about getting hired and called Carter. (Tr. 22, GC Exh. 2 and 3.) Moments later, Carter came out to meet the men. (Tr. 102– 103.) Petrea immediately informed Carter that he was a local union organizer. In response to the men introducing them- selves, Carter said, “I (sic) seen you.” Petrea informed Carter that they were “here to apply for work with you.” Carter said, “Apply for work. Fill them out.” Petrea stated that he had about 30 years of experience as a welder, Johnson stated that he had 10 years of experience, and Tuttle stated that he had 20 years of experience. Petrea stated that they would do a good job and during their own time they would educate workers about the union. Carter replied, “I didn’t know y’all could do that.” Petrea told Carter that there is nothing that says that you can’t, and confirmed that they would work for Respondent, and dur- ing their own time would educate workers about the benefits of a union. Carter asked, “So you’re still employed with some- body where there’s a union now?” and Petrea told him yes. The men left their resumes with Carter, and Petrea asked, “is there anything else we need to do to be considered.” Carter replied no, “I got all I need to give you a call.” (GC Exh. 2 and 3.) The three resumes clearly indicate that the men were inter- ested in a position as pipefitter/welder, that they were associat- ed with the Union and intended to educate coworkers about the Union if hired. All three resumes also included contact infor- mation and relevant work experience. (GC Exhs. 4, 10, and 11.) The above account is based on the credible testimony of Petrea, which was corroborated by Tuttle, Johnson, and by the audio recording of the conversation. I do not credit Carter’s testimony about this conversation and found Carter’s testimony incredible and inconsistent. According to Carter, he told Petrea that Respondent had a big job in Illinois that was winding down and those employees would be returning to the Savannah office to fill any open positions. (Tr. 144.) However, the audio record- ing does not corroborate this account and in fact reflects that Carter never once mentioned a job in Illinois. (GC Exh. 2 and 3.) In addition, Carter admitted that he did not mention an Illi- nois job when he provided an affidavit to the Board on April 14, 2023. Carter also admitted that in his affidavit he stated that when Johnson, Petrea, and Tuttle applied for work on February 1, they did not tell him that they were union organizers or were associated with the Union. (Tr. 152–153.) Carter did not pro- vide an explanation for this misstatement, and even if he had, the audio recording unmistakably shows that the men promi- nently announced their union affiliation to Carter several times verbally and on their resumes. It is obvious that Carter changed his testimony at the hearing due to the uncontroverted evidence provided by the audio recording. Carter also admitted to anoth- er misstatement in his affidavit where he stated that Respondent had not hired anyone between February 1 and March 15, except for John Johnson, who was hired as a general foreman. (Tr. 153.) As will be discussed below, this statement is also indis- putably incorrect and false. Right after leaving Respondent’s facility, Johnson, Petrea, and Tuttle again ran into Respondent’s foreman Abernathy. Petrea asked him if Respondent had work and Abernathy stated that they had plenty of work and they were picking up more.7 (Tr. 28.) D. Respondent hires salt “Jayce” Carr On February 3, Petrea solicited union member Jeffery “Jayce” Carr to apply covertly with Respondent. (Tr. 29, 111.) At the time, Carr had 7 years of work experience as a pipefit- ter/welder. (Tr. 110.) On February 4, Carr called Respondent and spoke with Charles Harley on the phone for about 45 minutes. (Tr. 112.) Carr’s undisputed recollection of this call is that he informed Harley of his work experience, Harley asked him how he had heard about the company, and Carr said that he had found them online and Harley did not request a resume or references but instructed him to report to the office for a drug and weld test. (Tr. 112.) Carr took a drug test on February 7, a weld test on February 8, and started working as a welder the same day. (Tr. 113, R. Exh. 2.) On February 8, Petrea called Carter on the phone. Petrea recorded the conversation. (GC Exh. 5 and 6.) Petrea asked Carter if he had any updates for him concerning the resumes he, Johnson and Tuttle had handed him. Carter told him that he had their resumes but that they had a “full house” and were “wind- ing down.” He added that they would call people as needed and that their resumes were in the “old fishing pond” where Respondent keeps resumes and calls on people as they are needed.8 (GC Exh. 5 and 6.) Contrary to Carter’s statement that Respondent was not hir- ing, Davenport’s undisputed testimony at the hearing was that on February 8 he asked Harley if Respondent still needed weld- ers and Harley told him that they did. (Tr. 55–56.) Davenport told Harley that he knew welders that were looking for work and he would tell them to contact him. (Tr. 56.) E. Respondent is informed of Salting Campaign On March 1, Davenport revealed to his coworkers that he was a union organizer. (Tr. 57.) He spoke with Foreman Scott Wells, and coworkers Anthony Parker and Michael Ragsdale. (Tr. 59.) These employees had a lot of questions and seemed interested in learning more, so they agreed to meet with organ- 7 Respondent did not call Abernathy to testify at the hearing, so this testimony is undisputed. 8 At the hearing, Carter incredibly testified that he told Petrea that Respondent was waiting for employees to come back from the Illinois job. (Tr. 146–147).) I do not credit Carter since Petrea’s testimony was corroborated by the audio recording which demonstrates that there was again no mention of the Illinois job during this conversation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 izer Johnson during lunch the next day. (Tr. 59, 89.) Davenport told the employees that management did not know he was a union organizer. Upon arriving at work on March 2, Davenport told Wells, Parker, and Ragsdale that he was going to let Respondent know that he was an organizer. Davenport then sent a text message to Harley revealing that he was a union organizer and was assist- ing the Union in its efforts to organize Respondent’s employ- ees. (Tr. 61, GC Exh. 8.) About 10 to 15 minutes after sending the text, Wells told Davenport that he had to go to the office. (Tr. 62.) When Wells returned from the office, he informed Davenport that he was not going to be able to drive the group out to meet with Johnson during lunch and that the company truck could not be seen out in the parking lot at lunchtime. (Tr. 63.) According to Davenport, Wells’ demeanor noticeably changed upon his return from the office. Davenport asked Par- ker and Ragsdale if they wanted to walk out to meet Johnson for lunch, but they also declined to go. (Tr. 63.) The rest of the workday, Davenport noticed that his coworkers were not inter- ested in talking to him about the Union anymore.9 On March 2, Johnson and Tuttle went back to Respondent’s office and spoke to Carter. (Tr. 87, 105.) They asked him if Respondent was hiring, and Carter said they were not. (Tr. 87.) Johnson informed Carter that Davenport was a salt, and Carter told him that he already knew. (Tr. 87.) F. Respondent’s Hiring Practices Respondent’s records show it hired 10 new pipefitter/welders at the Savannah office in January. (R Exh. 2. )10 Out of these employees, one was a covert salt (Davenport), one was a rehire (Parker), and there is no record evidence of the hiring circum- stances for the remaining eight hires. Carr, who was the other covert salt, was the only pipefitter/welder hired in February.11 By the end of March, Respondent had six pipefitter/welders (having hired Benjamin Bartlett on March 16 and lost four earlier hires).12 Respondent continued to hire and lose pipefit- ter/welders throughout the year. As of the end of the year, Re- spondent had six pipefitter/welders on its employee roster.13 9 A few days after Davenport revealed his union affiliation, he sent a letter to Respondent stating that he was going on strike to protest unfair labor practices, namely, Respondent’s refusal to hire the three union organizers. (GC Exh. 9.) 10 R. Exh. 2 and GC Exh. 18, p. 1, are identical lists of Respondent’s rehires and new hires in 2022. 11 The next hire was John Johnson on February 21, but Johnson was hired as a general foreman, not a pipefitter or welder. 12 Although the next group of hires were employed after the charge was filed on March 2, their hiring dates demonstrate that Respondent continued to have hiring needs in March and April with the hires of Bartlett on March 16, and of four other employees on April 4 and 5. Concerning Bartlett, I find, contrary to Respondent’s claims, that he was not an employee referral. Carr’s undisputed testimony was that when he found out that Bartlett was looking for work, he gave him Harley’s contact information—he did not state that he referred Bartlett to Harley. (Tr. 119.) 13 Out of these six employees, Michael Wells and Dillons Carver were neither rehires or referrals; Donald Parker was a rehire; and the last three, Earle White, Michael Holloway, and Colby Carter, were employee referrals hired between April and October. (R. Exh. 2.) Duncan and Carter testified that most of Respondent’s em- ployees are rehires (formerly laid off employees) and/or em- ployee referrals. (Tr. 141, 167.) However, I do not fully credit this testimony. Only five employees (out of a total of 27 hires) were rehires in 2022.14 In addition, the indisputable evidence is that at least three employees (Davenport, Carr, and Bartlett) were hired without an employee referral and as described above, there was no evidence regarding the circumstances of the hiring of eight pipefitter/welders hired in January. Carter and Duncan testified uncontradicted that Respondent does not advertise or post job openings to the public. (Tr. 142, 167.) Therefore, I find that during the relevant time period, Respond- ent’s hiring practices involved a combination of rehires, em- ployee referrals and hires with no previous connection to the company. Moreover, there was no evidence concerning how long Respondent keeps resumes on file. LEGAL ANALYSIS I. APPLICABLE LAW This is a salting case. The General Counsel alleges that Re- spondent, in violation of Section 8(a)(3) and (1) of the Act, refused to consider for hire or hire three union organizers for open positions for which they were qualified, and that Re- spondent did so because of these applicants’ association with the Union. It is well settled that job applicants have Section 7 rights un- der the Act, even if they are union organizers or may be salts. In NLRB v. Town & Country Electric, Inc., the Supreme Court, noting the considerable deference afforded to the Board’s inter- pretation of the Act, affirmed that the Board could lawfully construe the Act’s definition of “employee” to include paid union organizers. 516 U.S. 85, 94–95, 98 (1995). As such, un- ion organizers that apply for employment may not be discrimi- nated against in hiring because of their union affiliation. In FES, 331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), the Board set forth the analytical framework for refusal-to-hire allegations: To establish a discriminatory refusal to hire, the General Counsel must, under the allocation of burdens set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), first show the following at the hearing on the merits: (1) that the respondent was hiring, or had concrete plans to hire, at the time of the al- leged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known re- quirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants. Once the General Counsel satisfies the initial burden of showing by a preponderance of the evidence that the employ- ee’s union activity was a motivating factor in respondent’s adverse action, the burden will shift to the respondent to show 14 Although Respondent marked Robert Branson as a rehire, his em- ployment records do not reflect that he had previously worked for Re- spondent. (GC Exh. 18, pp. 3–6.) ARK FABRICATORS INC. 7 that it would not have hired the applicants even in the absence of their union activity or affiliation. The respondent does not meet its burden merely by showing that it had a legitimate rea- son for its action; it must persuasively demonstrate that it would have taken the same action even in the absence of the protected conduct. If the respondent’s proffered reasons are pretextual—either false or not actually relied on— discriminatory motive may be inferred “that the [real] motive is one that the employer desires to conceal- an unlawful motive- at least where… the surrounding facts tend to reinforce that inference.” Pro-Spec Painting, Inc., 339 NLRB 926, 949 (2003), citing Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). See also Intertape Polymer Corp., 372 NLRB No. 133, slip. op. 7 (2023) (where the Board found that circumstantial evidence of discriminatory motive may include, among other factors, the timing of the action in relation to the union or other protected conduct; contemporaneous unfair labor practices; shifting, false, or exaggerated reasons offered for the action; failure to conduct a meaningful investigation; departures from past practices; and disparate treatment of the employee.) The FES framework was modified by the Board in Toering Electric Co., 351 NLRB 225 (2007). The Board explained that in salting cases, the General Counsel bears the ultimate burden of proving an applicant’s genuine interest in seeking employ- ment. This burden has two components: 1) that there was an application for employment; and 2) that, if the employer con- tests the applicant’s actual interest in employment, the General Counsel must prove by a preponderance of the evidence that that the applicant was genuinely seeking to establish an em- ployment relationship with the employer. The employer may contest the genuineness of the application through evidence including, but not limited to, the following: evidence that the individual refused similar employment with the respondent employer in the recent past; incorporated belligerent or offen- sive comments on his or her application; engaged in disruptive, insulting, or antagonistic behavior during the application pro- cess; or engaged in other conduct inconsistent with a genuine interest in employment. II. THE 8(A)(3) AND (1) ALLEGATIONS A. The General Counsel’s Prima Facie Case Under the Toering test, I find that counsel for the General Counsel met his burden in proving that Johnson, Petrea, and Tuttle had a genuine interest in employment. The men came to Respondent’s Savannah office with their updated and complete resumes and said they were interested in jobs with Respondent after being instructed by three different employees of Respond- ent to talk to Carter about applying for jobs. In meeting with Carter, they did nothing to suggest that they were not genuinely interested in employment. All three organizers followed-up with Carter about their job applications. Lastly, each testified credibly that they would have accepted a position with Re- spondent, if offered. (Tr. 41, 86, 91, 100.) In its brief, Respondent argues that “indirect” evidence shows a lack of genuine interest in employment by the three organizers. (R. Br. at 17.) The purported indirect evidence is that the men did not contact Harley or Duncan for work and that they did not ask Davenport or Carr to recommend them for employment. Respondent cites no precedent to support its as- sertion that such alleged indirect evidence has ever been con- sidered by the Board as evidence of lack of genuine interest in employment. Regardless, there was no credible evidence to support the assertion that applying for work with Carter, exclu- sively, made the applications for employment less legitimate. Not once did Carter tell the union organizers that they should contact Harley or Duncan for employment instead of dealing directly with him. And it makes little to no sense to expect the Union to use its covert salts to make employment referrals of overt salts. In any case, there is no evidence on the record that Respondent refused to consider for hire the three organizers because it thought that they were not genuinely interested in employment. I also find that counsel for the General Counsel met his bur- den under FES in proving that Respondent violated Section 8(a)(3) and (1) in refusing to consider for hire or hiring the three organizers. There is no doubt that Respondent was hiring at the time that the three organizers applied for work on February 1. Respond- ent hired Davenport, who was neither a rehire or an employee referral, and Parker, who was a rehire, on January 24. They were both hired as pipefitters. Harley, an admitted supervisor, told Davenport during his interview that Respondent was hiring pipefitters and that they had two good-sized projects at the time. This message was consistent with what the union organ- izers heard from two foreman working for Respondent on Janu- ary 17. A foreman and the purchasing manager again told the three union organizers on February 1 that Respondent was hir- ing. Then, on February 8, Respondent hired Carr as a pipefitter. As discussed above, Respondent continued to hire pipefit- ter/welders in March, April, and May.15 At the hearing, Carter falsely claimed that he informed the three union organizers at the time they applied for work that Respondent was not hiring and that any job openings would go to employees returning from an Illinois job. As stated above, I did not find Carter was a reliable witness and do not credit his testimony. Carter’s testimony was riddled with inconsistencies between his testimony at the hearing and his Board affidavit. As the February 1 recording reflects, the men told Carter that they were union organizers and in response, Carter did not tell them that Respondent was not hiring or that job openings were being reserved for returning employees from the Illinois job. Instead, Carter told them that they did not need to do anything else to be considered for a job. Duncan was the only other witness to testify on behalf of Re- spondent.16 Duncan testified that he entrusted hiring/manpower decisions, and the running of the office and the field to Carter and Harley. (Tr. 168, 176–177.) In response to a question on direct examination, Duncan replied that his awareness of the 15 In total, 6 pipefitter/welders were hired between March and May 2. (R. Exh. 2.) 16 Counsel for General Counsel requests that I draw an adverse in- ference from Respondent’s failure to call Charles Harley. I find it un- necessary to draw an adverse inference since I have credited General Counsel’s witnesses’ testimony regarding any interactions they had with Harley. I also find the adverse inference inappropriate because Respondent established that Harley is no longer employed. (Tr. 149.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 status of projects was only at a 20,000-foot level. (Tr. 177.) For instance, Duncan admitted that he had no knowledge of Carr’s interview or hiring process prior to Carr’s testimony about it at the hearing. (Tr. 173.) Duncan’s testimony about the Illinois job was vague, inconclusive, and lacked any details. Duncan testified about Respondent’s list of hires and re-hires, which does not identify any employee that was hired to go to nor any employee that returned from the alleged Illinois job. I do not credit Duncan’s testimony claiming that Benjamin Bartlett was hired to go to the Illinois job. (Tr. 179.) On cross-examination, Duncan admitted that during Bartlett’s short four-weeks of employment he only worked in Savannah. (Tr. 188.) In addi- tion, Bartlett’s new hire paperwork indicates he was applying to be “close to home” in Savannah. (GC Exh. 18, pp. 71–72.) Respondent also submitted a report with man-hours for the Savannah office, but that report has no information about any employees going to or returning from the Illinois job. (R. Exh. 1, Tr. 169.) Thus, neither one of Respondent’s two witnesses, nor any documentary evidence, substantiated Respondent’s claim that it was not hiring and/or that open positions went to employees returning from the Illinois job at the time that the three union organizers applied to work. Instead, the evidence demonstrates that Respondent does not have a formal applica- tion process or job posting process—and it hired pipefit- ter/welders on an ongoing and as-needed basis throughout the year. There is also no doubt that the three union organizers were as qualified or more for the positions of pipefitter/welder as were Davenport and Carr. Thus, the two first factors in FES were satisfied.17 I also find that counsel for the General Counsel met his bur- den in establishing that Respondent’s failure to consider for hire or hire the three union organizers was motivated by anti- union animus. This is demonstrated by the fact that Respondent interviewed and hired Davenport and Carr, whose applications did not show their affiliation with the Union, and who simply cold-called Respondent for work. And during the exact same time period, Respondent did not interview or hire Johnson, Petrea, and Tuttle, whose union affiliation was prominently displayed on their resumes. This evidence establishes that Re- spondent disparately treated job applicants whose union affilia- tion was conspicuous, which in turn, is evidence of antiunion animus. I also find antiunion animus based on Respondent’s shifting defenses and pretextual explanations for its actions. Animus can be established with proof that the employer’s asserted rea- sons for the adverse action were pretextual. Intertape Polymer, supra. See also Control Building Services, Inc., 337 NLRB 844, 845 (2002) (where Respondent’s only explanation for terminat- ing an employee was blatantly pretextual, Board found that termination was motivated by antiunion animus) citing with 17 Respondent does not dispute the three union organizers’ qualifica- tions. In its brief, Respondent alluded to their experience as “foreman level…with substantial experience.” (R. Br. at 20.) Respondent’s claim for the first time in its brief that it did not need employees as highly skilled as the three union organizers is rejected as pretextual. There was no evidence to substantiate this assertion. approval Custom Top Soil, Inc., 327 NLRB 121 (1998) (where Board found substantial evidence of animus which included Respondent's pretextual reasons for not hiring the discrimi- natees). As discussed above, Carter falsely stated in a Board affidavit that (1) he did not know that Johnson, Petrea, and Tuttle were affiliated with the Union when they applied for work and (2) Respondent did not hire any pipefitter/welders between February and March. In its first position statement in response to the Board charge, Respondent repeated these asser- tions. (CP Exh. 1.) In its second position statement to the Board, Respondent asserted that it had inadvertently excluded Carr’s hire in its first position statement because he was sup- posedly a “very short-term hire made at the request of an exist- ing employee to accommodate shared travel costs.” (CP Exh. 2.) These assertions are demonstrably false. At the hearing Carter changed his testimony to state that he knew the appli- cants were union organizers, but incredibly stated that he did not know what that meant. Respondent tried to elicit testimony from Carter about Carr being a short-term employee, but he testified that he was “not sure.” Carr credibly testified that he was not hired on a short-term basis, nor was he recommended by an existing employee. (Tr. 118, 150.) In its brief, Respondent now argues that Respondent has never hired employees who came into the office on a “cold call” nor have hiring needs ever taken place “en masse” where Respondent would need to consider resumes on file. Respond- ent also asserts that from Carter’s perspective, Respondent did not need hires, he told the union organizers as much, and his hiring decision was not linked to Harley’s decision to later hire Carr. However, there is ample evidence that Respondent hired at least three employees (Davenport, Carr, and Bartlett) after cold-calls, and there is no evidence regarding the hiring cir- cumstances of most of the hires in January. In addition, it was Carter who told the organizers that Respondent kept resumes in a “fishing pond” for future consideration. Notably, Carter did not say anything about the resumes being stale and there is no evidence that Respondent disregarded applications after a cer- tain period of time. It is preposterous to claim that the two ad- mitted supervisors of Respondent who were indisputably in charge of hiring were not coordinating their hiring efforts. Re- spondent’s changing rationalizations for not considering for or hiring the three organizers support an inference of pretext. Un- der Electrolux Home Products, 368 NLRB No. 34 slip. op. at 4, fn. 15 (2019), this finding of pretext further supports an infer- ence of animus and discriminatory motive. B. Respondent’s burden of proof I find that Respondent did not meet its burden in showing that it would not have hired the three organizers absent their union affiliation. Respondent’s asserted defense that it did not have any job openings at the time that the organizers applied for work or that any job openings would be filled by employees returning from an Illinois job are rejected as pretextual. As indicated above, Respondent indisputably hired pipefit- ter/welders right before and right after the three named organiz- ers applied for work. Additionally, Respondent did not submit credible evidence substantiating its claim that job openings were filled by employees returning from the Illinois job. As ARK FABRICATORS INC. 9 indicated above, I discredited Carter’s and Duncan’s testimony in this regard. Respondent’s new defense that it does not hire employees that make cold-calls and/or did not have the need to consider resumes on file is also rejected as pretextual, as ex- plained above. In summary, Respondent did not present a legit- imate business reason for not considering for hire or hiring the three union organizers. Moreover, the evidence demonstrates that Respondent provided pretextual reasons and shifted its defenses between its position statements to the Board, its evi- dence at the hearing, and its brief. Based on the foregoing, under all the circumstances of the case, I find that Respondent’s failure to consider for hire and hire the three union organizers was motivated by their union activity. GENERAL COUNSEL’S REQUEST THAT THE BOARD OVERRULE PRECEDENT In his brief, counsel for the General Counsel seeks to have the Board overrule: (1) Toering Electric, supra; (2) Oil Capitol Sheet Metal, 349 NLRB 1348 (2007), review denied sub nom. Sheet Metal Workers Local 270 v. NLRB, 561 F.3d 497 (D.C. Cir. 2009);18 (3) Electrolux Home Products, supra;19 and Unit- ed Site Services of California, 369 NLRB No. 137 (2020)20. The position of the administrative law judge is to follow cur- rent Board law. It is not the place of the administrative law judge to make or alter existing law or policy—this role lays solely with the Board. See, e.g., Western Cab Co., 365 NLRB No. 78, slip op., at 1 fn. 4 (2017); Pathmark Stores Inc., 342 NLRB 378 fn. 1, (2004). Under current Board law, I find Re- spondent violated the Act as alleged. As discussed above, I find that the three union organizers were genuine job applicants under Toering. Additionally, I will order that the backpay peri- od be determined in accordance with Oil Capitol. Regarding the application of Electrolux, as discussed above, I find evi- dence of animus based not only on Respondent’s pretextual reasons for its actions but also on all the surrounding facts in- cluding that Respondent hired pipefitter/welders unaffiliated with the Union after they cold called for work, right before and after the union organizers applied for work. Regarding United Site Services, I find it unnecessary to rely upon Respondent’s statements to the union organizers at the time they applied for work questioning whether they were still employed with the Union or if they were allowed to educate their coworkers about the Union on nonwork time to find animus. 18 In Oil Capitol, the Board declined to apply a presumption of in- definite employment where a discriminatee is a union salt and held that the General Counsel is required to produce affirmative evidence that a salt/discriminatee, if hired, would have worked for the respondent for the backpay period claimed in a compliance specification case. Failure to meet this burden will result in no instatement or reinstatement. 19 In Electrolux, the Board held that although there was evidence that the reason for the alleged unlawful discharge was pretextual, pretext alone is insufficient to meet the General Counsel’s burden under Wright Line. 20 In United Site Services, supra, at 14 fn. 68, the Board held that noncoercive statements of opposition to unions, which are protected by Sec. 8(c) of the Act, may not be relied upon as evidence of antiunion animus in support of unfair labor practice findings. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act by refusing to consider Justin Johnson, Brett Petrea, and Andrew Tuttle, for employment since February 1, 2022. 4. Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire the above-named employees since February 1, 2022. 5. Respondent’s unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 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. The Respondent shall be ordered to cease and desist from failing and refusing to consider for hire or hire individuals be- cause of their union membership, affiliation, or activities. Fur- thermore, the Respondent, having discriminatorily refused to hire Justin Johnson, Brett Petrea, and Andrew Tuttle, shall be ordered to offer them instatement and make them whole for any loss of earnings and other benefits they may have suffered as a result of the unlawful discrimination against them. Respondent will also be ordered to remove from its files any references to the refusal to consider for hire these individuals. Backpay shall be computed in accordance with F.W. Wool- worth Co., 90 NLRB 289 (1950), plus interest, as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). The duration of the backpay period shall be determined in accordance with Oil Capital Sheet Metal, 349 NLRB 1348 (2007). In accordance with the Board’s decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent shall compensate Johnson, Petrea, and Tuttle, for any direct or foreseeable pecu- niary harms incurred as a result of the unlawful adverse actions against them, including reasonable search-for-work and interim employment expenses, if any, regardless of whether these ex- penses exceed interim earnings. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, com- pounded daily as prescribed in Kentucky River Medical Center, supra. Respondent shall further compensate the discriminatees for the adverse tax consequences, if any, of receiving a lump- sum backpay award, and file with the Regional Director for Region 10, within 21 days of the date that the amount of back- pay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the proper calendar year. Respond- ent shall also, within 21 days of the date the amount of backpay is fixed by agreement or Board order, file a copy of each back- pay recipient’s W-2 forms reflecting the backpay award. The General Counsel has further requested, as an additional remedy, that Respondent be required to, for a period of 6 months, include a prominent statement at the beginning of Re- spondent’s job applications for pipefitting, welding, and me- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 chanical positions, and on all of Respondent’s advertisements for such positions including electronic advertisements, a state- ment that it is required to comply with the Act, and that it will recruit and refer applicants without regard to their union in- volvement or membership. The General Counsel does not cite any authority for such remedy, and so I decline to recommend it here. The Charging Party requested, as an additional remedy, that Respondent provide the Union with access to its facility and employees, a Notice reading, and NLRB training for Respond- ent’s officials. I also decline to recommend the requested reme- dies. The cases cited by the Charging Party are distinguishable from the instant case. The Board has found a notice-reading remedy appropriate where the employer’s violations are suffi- ciently numerous and serious that a reading of the notice is warranted to dissipate the chilling effect of the violations on employees’ willingness to exercise their Section 7 rights. Amerinox Processing, Inc., 371 NLRB No. 105, slip op. at 2 (2022); Gavilon Grain, LLC, 371 NLRB No. 79, slip op. at 1 (2022). I do not find that a notice-reading remedy is warranted in this case because Respondent does not have a history of vio- lating the Act and there was no evidence that the unfair labor practice violations committed by Respondent were widespread. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended21 ORDER Respondent, Ark Fabricators, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to consider for hire or refusing to hire job ap- plicants because of their union membership, affiliation, or ac- tivities. (b) In any like or related manner, interfering with, restrain- ing, or coercing its employees in the exercise of the rights guar- anteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, offer imme- diate employment (instatement) to Justin Johnson, Brett Petrea, and Andrew Tuttle, in the position for which they applied, or, if such position no longer exists, to a substantially equivalent position. (b) Make Justin Johnson, Brett Petrea, and Andrew Tuttle, whole for any loss of earnings and other benefits, and for any direct or foreseeable pecuniary harms, suffered as a result of the discrimination against them in the manner set forth in the rem- edy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the refusal to consider for hire Justin Johnson, Brett Petrea, and Andrew Tuttle, and within 3 days thereafter, notify them in writing that this has been done, and that the refusal to consider them for hire will not be used 21 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. against them. (d) Compensate Justin Johnson, Brett Petrea, and Andrew Tuttle, for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 10, within 21 days from the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years. (e) File with the Regional Director for Region 10, within 21 days from the date the amount of backpay is fixed, either by agreement or Board order or such additional time as the Re- gional Director may allow for good cause shown, a copy of the corresponding W-2 forms reflecting the backpay award. (f) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment rec- ords, timecards, personnel records, 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. (g) Within 14 days after service by the Region, post at its facility in Savannah, Georgia copies of the attached notice marked “Appendix.”22 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. In the event that, dur- ing the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current and former employees employed by Respondent at any time since February 1, 2022. In addition to the physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. 22 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notices must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronical- ly on [date].” 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ARK FABRICATORS INC. 11 (h) Within 21 days after service by the Region, file with the Regional Director for Region 10 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. October 26, 2023 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 violated Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT refuse to hire job applicants or refuse to con- sider for hire job applicants because of their membership in, or activities in support of the Georgia Carolina Pipe Trades As- sociation affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL–CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of your rights guaranteed you under Section 7 of the National Labor Relations Act. WE WILL, within 14 days of the date of this Order, offer immediate employment to Justin Johnson, Brett Petrea, and Andrew Tuttle, in the position for which they applied, or if such position no longer exists, to a substantially equivalent position. WE WILL make Justin Johnson, Brett Petrea, and Andrew Tuttle whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered because we failed to hire them, with interest. WE WILL compensate Justin Johnson, Brett Petrea, and An- drew Tuttle, for the adverse tax consequences, if any, of receiv- ing a lump- sum backpay award and WE WILL file with the Regional Director for Region 10, within 21 days of the date that the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the ap- propriate calendar year(s). WE WILL file with the Regional Director for Region 10, within 21 days of the date that the amount of backpay is fixed, either by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of the corresponding W-2 forms reflecting the backpay award. WE WILL , within 14 days from the date of this Order, remove from our files all references to the failure to hire Justin Johnson, Brett Petrea, and Andrew Tuttle and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the failure to hire them will not be used against them in any way. ARK FABRICATORS INC. The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/10-CA-291560 or by using the QR code below. Alternatively, you can obtain a copy of the deci- sion from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.