EPI CONSTRUCTION
`
`985
`
`Exceptional Professional, Inc. d/b/a EPI Construction
`and Carpenters’ District Council of Kansas City
`and Vicinity Locals 311 and 978 affiliated with
`United Brotherhood of Carpenters and Joiners
`of America. Cases 17–CA–19272, 17–CA–19325,
`and 17–CA–19385
`August 28, 2007
`SUPPLEMENTAL DECISION AND ORDER
`BY CHAIRMAN BATTISTA AND MEMBERS KIRSANOW
`AND WALSH
`On August 5, 1998, Administrative Law Judge Mary
`Miller Cracraft issued a decision in this case. The Re-
`spondent filed exceptions and a supporting brief, the
`General Counsel filed an answering brief, and the Union
`filed a brief in opposition to the Respondent’s excep-
`tions.
`On September 28, 2001, the National Labor Relations
`Board issued its Decision and Order,1 finding that the
`Respondent committed certain violations of Section
`8(a)(1) and (3) of the Act and dismissing an allegation
`that the Respondent violated Section 8(a)(4) and (1) of
`the Act. The Board also remanded, for further considera-
`tion under FES,2 a complaint allegation that the Respon-
`dent violated Section 8(a)(3) and (1) by refusing to con-
`sider for hire or to hire 10 applicants.
`On January 11, 2002, Judge Cracraft issued the at-
`tached decision on remand. The Respondent filed excep-
`tions, the Union filed a brief in opposition, and the Re-
`spondent filed a reply brief. Additionally, the Union
`filed cross-exceptions and a supporting brief, and the
`Respondent filed an answering brief.3
`
`
`
`1 336 NLRB 234.
`2 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002).
`3 The Respondent also filed a motion to reopen the record, and the
`Union filed a response in opposition to the motion. The Respondent’s
`motion seeks to introduce into evidence copies of letters, asserted to
`constitute job offers, that the Respondent assertedly mailed to 15 al-
`leged discriminatees after issuance of the judge’s initial decision in this
`case. We deny the motion for the same reasons that we denied the
`Respondent’s virtually identical motion in our original decision in this
`case. 336 NLRB at 234 fn. 2. As we noted there, the letters sought to
`be introduced, even if found to constitute unconditional offers of em-
`ployment, would not alter the decision or the requirements set forth in
`the Order. See Hedaya Bros., Inc., 277 NLRB 942 fn. 1 (1985). The
`letters are relevant, if at all, only with respect to the remedial aspect of
`this case. Thus, they may be presented at the compliance phase of this
`proceeding. See Challenge-Cook Bros. of Ohio, 282 NLRB 21, 26 fn.
`7 (1986), enfd. 843 F.2d 230 (6th Cir. 1988). If instatement is ulti-
`mately required (see fn. 5, infra) and the letters are determined to con-
`stitute valid offers, the Respondent will not be required to make a sec-
`ond offer of instatement.
`We also deny the Respondent’s request for oral argument, as the re-
`cord, exceptions, and briefs adequately present the issues and the posi-
`tions of the parties.
`
`350 NLRB No. 81
`
`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 ruling, findings,4 and conclusions and
`to adopt the recommended Order.5
`As noted above, the Board remanded, for further con-
`sideration under FES, a complaint allegation that the
`Respondent unlawfully refused to consider for hire or to
`hire 10 job applicants. To establish a discriminatory re-
`fusal-to-hire violation under FES, the General Counsel
`must show that (1) the respondent was hiring, or had
`concrete plans to hire, at the time of the alleged unlawful
`conduct; (2) the applicants had experience or training
`relevant to the announced or generally known require-
`ments of the positions for hire, or in the alternative, the
`employer has not adhered uniformly to such require-
`ments, or the requirements were themselves pretextual or
`were applied as a pretext for discrimination; and (3) anti-
`union animus contributed to the decision not to hire the
`applicants. Once the General Counsel establishes these
`three elements,
`the burden will shift to the respondent to show that it
`would not have hired the applicants even in the absence
`of their union activity or affiliation. If the respondent
`asserts that the applicants were not qualified for the po-
`sitions it was filling, it is the respondent’s burden to
`show, at the hearing on the merits, that they did not
`possess the specific qualifications the position required
`or that others (who were hired) had superior qualifica-
`tions, and that it would not have hired them for that rea-
`son even in the absence of their union support or activ-
`ity.[6]
`In her decision on remand, the judge, applying FES,
`found that the Respondent, a drywall installation contrac-
`
`
`4 The Respondent has excepted to some of the judges 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.
`In addition, in some of its exceptions, the Respondent contends that
`the judge’s rulings, findings, and conclusions demonstrate bias and
`prejudice. On careful examination of the judge’s decision and the
`entire record, we are satisfied that the Respondent’s contentions are
`without merit.
`5 For the notice designated by the judge as “Appendix E,” we will
`substitute a new notice in accordance with Ishikawa Gasket America,
`Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004).
`The instatement and make whole remedy prescribed by the judge
`shall be implemented in accordance with Oil Capitol Sheet Metal, Inc.,
`349 NLRB 1348 (2007).
`6 FES, above, 331 NLRB at 12.
`
`

`

`986
`
`DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
`
`tor, unlawfully refused to hire two union-affiliated job
`applicants and refused to consider eight others. Specifi-
`cally, the judge found that the General Counsel met his
`initial burden as to the refusal-to-hire allegations for all
`10 applicants, but that the Respondent met its rebuttal
`burden of establishing that it would not have hired 8 of
`the applicants even in the absence of their union activity
`or affiliation.
`The judge found that eight of the employees whom the
`Respondent hired to fill its job openings—employees
`Argaez, Cen, Herrera, Rivero, Varguez, Garcia, Archer,
`and Self—had superior qualifications to those of the un-
`ion-affiliated applicants. Thus, employees Argaez, Cen,
`Herrera, Rivero, Varguez, Garcia, and Archer were well
`known to Stewart, the Respondent’s president, for their
`drywall work as subcontractors for the Respondent on
`prior projects, and Stewart had been able to assess their
`drywall work through their participation in these pro-
`jects. Additionally, these employees had been working
`steadily in drywall for at least 1 year before the Respon-
`dent hired them. Archer also had been an employee of
`the Respondent previously, and the Respondent had first-
`hand knowledge of his work history. Employee Self was
`highly recommended by employees of the Respondent
`for his drywall expertise, and the Respondent had re-
`cruited him for some time prior to securing him as an
`employee.
`The judge found that these eight employees’ drywall
`qualifications—precisely the type of work that the Re-
`spondent performed—and their “immediate, observed,
`steady drywall employment” made them superior appli-
`cants to the discriminatees, who were journeymen car-
`penters. Thus, the judge found that the Respondent estab-
`lished that, even if the discriminatees had not engaged in
`union activity, the Respondent would have hired these
`eight employees rather than the alleged discriminatees.
`We agree.
`Our dissenting colleague contends that the judge’s
`finding as to these eight discriminatees cannot stand be-
`cause, when assessing whether the General Counsel had
`met his initial FES burden, the judge found, among other
`things, that the Respondent did not uniformly adhere to
`its hiring criteria, which the judge found were pretextu-
`ally applied. In our view, however, the judge’s finding
`in this regard was mistaken. The Respondent did uni-
`formly adhere to its hiring criteria. It merely deviated
`from its usual procedures for determining whether appli-
`cants satisfied those criteria.
`According to Stewart’s testimony, the Respondent
`tried to hire employees who had drywall experience, had
`been working in drywall on a regular basis, and had a
`steady employment history. Those were the Respon-
`
`dent’s hiring criteria. Stewart further testified that he
`used employment applications to determine whether em-
`ployees possessed the requisite experience and training,
`and he requested that applicants list personal references.
`Finally, Stewart relied on interviews to determine whom
`to hire. Those were the Respondent’s procedures for
`measuring applicants against its criteria.
`The judge, who specifically found that the Respon-
`dent’s hiring criteria were not
`themselves pretextual,
`concluded that Respondent did not uniformly adhere to
`its hiring criteria as to 10 of the 13 individuals placed on
`the payroll between June 30 and July 27, 1997—
`including employees Argaez, Cen, Herrera, Rivero, Var-
`guez, Garcia, Archer, and Self—because few of these 13
`individuals completed an application, gave personal ref-
`erences, or had interviews.
`In other words, the judge
`confused the Respondent’s usual procedures for applying
`its criteria with the criteria themselves. In her analysis of
`the Respondent’s rebuttal case under FES, the judge
`found that the just-named applicants had “immediate,
`observed, steady drywall employment.” That is, they
`met the Respondent’s hiring criteria.
`We agree with our colleague, however, that the Gen-
`eral Counsel met his initial burden under FES by show-
`ing that the union applicants had experience or training
`relevant to the announced or generally known require-
`ments of the positions for hire. The other two elements
`of the General Counsel’s initial case were also shown.7
`The General Counsel having met his burden, the judge
`properly applied FES and analyzed whether the Respon-
`dent had met its rebuttal burden of showing that, even if
`the discriminatees had not engaged in union activity or
`been affiliated with the Union, the Respondent still
`would not have hired them. One of the ways that the Re-
`spondent may satisfy this burden is by showing, in the
`words of FES, “that others (who were hired) had superior
`qualifications, and that it would not have hired [the dis-
`criminatees] for that reason even in the absence of their
`union support or activity.”8 The judge found that the Re-
`spondent made this showing here.
`Although the Respondent did not adhere to all of its
`hiring procedures when seeking to identify experienced
`
`
`7 We agree with our dissenting colleague as to the General Counsel’s
`initial burden under FES. The appropriate test under the second prong
`of the General Counsel’s initial burden is whether the applicants had
`the relevant experience or training or, if not, whether the employer did
`not uniformly adhere to those requirements or applied them in a pretex-
`tual way. The Board required the judge to make findings on both parts
`of the test to preclude a need for a further remand in the event that the
`Board were to disagree with the judge’s finding as to one. The judge
`apparently misunderstood the remand order to mean that the General
`Counsel had to show that both parts of the test were met.
`8 FES, above, 331 NLRB at 12.
`
`

`

`EPI CONSTRUCTION
`
`987
`
`drywall workers to hire, its actual hiring shows that it did
`hire applicants who had been regularly working in dry-
`wall. All but one of the 13 individuals whom the Re-
`spondent hired between June 30 and July 27 had drywall
`experience.9 Additionally, while Argaez, Cen, Herrera,
`Rivero, Varguez, Garcia, Archer, and Self did not submit
`applications or give references, the Respondent, as noted
`above, was familiar with their work as subcontractors
`(and, in Archer’s case, as an employee) and Self had
`been recruited by the Respondent based on the recom-
`mendations of current employees.10
`Thus, even though the Respondent did not always fol-
`low its usual procedures, its lack of uniformity in this
`regard did not mean that, given a choice between appli-
`cants who had “immediate, observed, steady drywall
`employment” and others, the Respondent was indifferent
`or would hire applicants at random. As set forth by the
`judge, the eight employees whom the Respondent hired
`had substantial, recent experience in doing drywall work.
`Moreover, as described above, the Respondent had di-
`rectly observed the work of all but one of them, and the
`other came highly recommended by current employees of
`the Respondent. Given these employees’ drywall experi-
`ence and the fact that the work of all but one of them had
`been directly observed by the Respondent, we agree with
`the judge that the Respondent has established that these
`eight employees were superior applicants and that the
`Respondent would have hired them rather than the dis-
`criminatees even in the absence of the discriminatees’
`union activity and affiliation.
`Our dissenting colleague says that the Respondent
`“skewed” the overall process so as to prefer nonunion
`applicants, and “grudgingly” accepted applications from
`Union adherents. Accepting these quoted terms ar-
`guendo, they support our agreement that the General
`Counsel met his initial burden of proof. However, the
`judge found, and we agree, that the Respondent then met
`its burden of showing that those selected had qualifica-
`tions superior to those of the alleged discriminatees (not
`simply, as our colleague says, that those selected were
`qualified). Thus, we cannot agree that those quoted
`terms establish a violation.
`
`
`9 Employee Steve Rucker had no drywall experience, but his father
`was an employee of the Respondent.
`10 In view of the Respondent’s familiarity with these individuals’
`work, we understand the judge’s statement that there was little evidence
`regarding their qualifications and training as indicating merely that they
`did not submit, and the Respondent did not introduce into evidence,
`applications or other documentation formally setting forth their qualifi-
`cations and training. Clearly, based on the Respondent’s familiarity
`with these individuals’ work, the Respondent knew that they were well
`qualified and had substantial experience in performing the type of work
`for which the Respondent hired them.
`
`In sum, the judge found, and we agree, that the Gen-
`eral Counsel met his initial burden. The burden then
`shifted to the Respondent. We conclude, as did the
`judge, that the Respondent would have chosen the per-
`sons hired because of their superior drywall qualifica-
`tions, even absent the union affiliation and activity of the
`nonchosen applicants.
`
`ORDER
`The National Labor Relations Board adopts the rec-
`ommended Order of the administrative law judge as
`modified below and orders that the Respondent, Excep-
`tional Professionals, Inc. d/b/a EPI Construction, Nixa,
`Missouri, its officers, agents, successors, and assigns,
`shall take the action set forth in the Order as modified.
`Substitute the attached notice for that of the adminis-
`trative law judge.
`MEMBER WALSH, dissenting in part.
`I join in all aspects of the majority’s decision, with the
`exception of its adoption of the judge’s finding that the
`Respondent did not violate Section 8(a)(3) and (1) by
`refusing to hire 8 of the 10 union-affiliated job appli-
`cants. That finding is the apparent result of our mis-
`statement of the appropriate test in the remand order, and
`it is fundamentally inconsistent with FES.1
`Under FES, in a hiring discrimination case, the Gen-
`eral Counsel has the initial burden of showing: (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 or training relevant to the an-
`nounced or generally known requirements of the posi-
`tions for hire, or, in the alternative, that the employer has
`not adhered uniformly to such requirements, or that the
`requirements themselves were pretextual or were applied
`as a pretext for discrimination; and (3) that antiunion
`animus contributed to the decision not to hire the appli-
`cants. If the General Counsel satisfies that burden, 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.
`In this case, the judge found that the General Counsel
`established the first and third elements of its initial bur-
`den: that the Respondent was hiring when the 10 union-
`affiliated applicants applied for work and that antiunion
`animus contributed to the Respondent’s decision not to
`hire them. Regarding the second element of the test, the
`judge found that all of those applicants had experience or
`training relevant to the announced or generally known
`requirements of the positions for hire and that the Re-
`spondent had not adhered uniformly to those require-
`
`
`1 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002).
`
`

`

`988
`
`DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
`
`ments. With respect to the second part of that test, the
`judge specifically found that the Respondent applied one
`set of criteria to the union-affiliated applicants and a dif-
`ferent set to other applicants. In other words, as the
`judge stated, the Respondent’s hiring criteria were “pre-
`textually applied.”
`In making that finding, the judge correctly observed
`that FES set forth that element of the test—whether the
`applicants met the announced or generally known job
`requirements or that the employer had not uniformly
`adhered to those requirements—in the disjunctive, but
`that the Board’s decision remanding the case to her
`stated it in the conjunctive. “In an excess of caution,”
`the judge proceeded “as instructed . . . .” Based on those
`findings, the judge found that the General Counsel met
`his initial burden, and that the burden therefore shifted to
`the Respondent to show that it would not have hired
`those applicants even in the absence of their union af-
`filiation.
`The judge then found that the Respondent met its re-
`buttal burden as to 8 of the 10 applicants, because it es-
`tablished that it hired 8 other applicants who possessed
`stronger qualifications than those of any of the union-
`affiliated applicants. Accordingly, the judge concluded
`that the Respondent violated Section 8(a)(3) and (1) only
`by refusing to hire two of the union applicants.2
`Although the judge correctly found a violation regard-
`ing the Respondent’s refusal to hire two of the appli-
`cants, her finding concerning the remaining eight cannot
`stand. The judge found that the Respondent applied its
`hiring criteria pretextually, but she then permitted the
`Respondent to avoid liability by showing that it would
`have refused to hire 8 of the 10 union applicants because
`it hired 8 other applicants who possessed stronger quali-
`fications. That finding is illogical.3 Having found that
`
`
`2 The judge did not specify which 2 of the 10 discriminatees were
`unlawfully refused employment; the judge left that determination to the
`compliance stage of the proceeding.
`3 The majority contends that the Respondent did not discriminatorily
`apply its hiring criteria, as the judge found, but that it failed to uni-
`formly adhere to its hiring procedures for determining whether the
`applicants satisfied those criteria. The majority then argues that, be-
`cause the Respondent’s application of the hiring criteria was nondis-
`criminatory, its determinations that the nonunion applicants were more
`qualified than the union applicants was made without regard to union
`affiliation. That argument does not withstand scrutiny. Whether the
`Respondent discriminatorily applied its hiring criteria, or, alternatively,
`whether it discriminatorily applied its hiring procedures to determine
`whether applicants met those criteria, the fact remains that the Respon-
`dent skewed the overall process to give preferential treatment to nonun-
`ion applicants. Although the nonunion applicants who were hired may
`have been qualified for the positions for which they applied—and it is
`difficult to tell, as many of them did not submit applications, furnish
`references, or have interviews—it is more likely than not that the Re-
`spondent viewed their qualifications more favorably than those of the
`
`the Respondent acted with antiunion animus and that it
`applied its announced hiring criteria pretextually, the
`inquiry was over: at that point, it was no longer possible
`for the Respondent to mount a defense based on a neutral
`application of those same criteria.4 Accordingly, the
`judge should not have found that the Respondent acted
`lawfully in hiring the eight nonunion applicants, based
`on their allegedly superior credentials.
`I would reverse the judge’s finding that the Respon-
`dent met its rebuttal burden as to any of the refusal-to-
`hire allegations, and would therefore find that the Re-
`spondent’s refusal to hire all 10 of the union-affiliated
`applicants violated the Act.
`APPENDIX E
`NOTICE TO EMPLOYEES
`POSTED BY ORDER OF THE
`NATIONAL LABOR RELATIONS BOARD
`An Agency of the United States Government
`The National Labor Relations Board has found that we vio-
`lated Federal labor law and has ordered us to post and obey
`this notice.
`FEDERAL LAW GIVES YOU THE RIGHT TO
`Form, join, or assist a union
`Choose representatives to bargain with us on
`your behalf
`Act together with other employees for your bene-
`fit and protection
`Choose not to engage in any of these protected
`activities.
`WE WILL NOT fail and refuse to hire employees be-
`cause of their activity on behalf of or membership in
`Carpenters’ District Council of Kansas City and Vicinity
`Locals 311 and 978 affiliated with United Brotherhood
`of Carpenters and Joiners of America (the Union).
`WE WILL NOT refuse to consider applicants for em-
`ployment because of their activity on behalf of or mem-
`bership in the Union.
`
`
`
`
`union applicants, whose applications it accepted only grudgingly and
`who were otherwise excluded from the hiring process, consistent with
`the Respondent’s strong preference for hiring nonunion applicants. In
`the circumstances, it cannot be said that the Respondent’s overall
`evaluation of the applicants was nondiscriminatory and gave no regard
`to union affiliation, as the majority suggests.
`4 The same principle applies in pretext cases decided under Wright
`Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
`denied 455 U.S. 989 (1982): “Where it is shown that the reason or
`reasons given by the Company for its adverse action were a pretext—
`that is that the reasons either do not exist or were not in fact relied
`upon—it necessarily follows that the Company has not met its burden
`and the inquiry is logically at an end.” Overnite Transportation Co.,
`343 NLRB 1431, 1454 (2004), and cases cited.
`
`

`

`EPI CONSTRUCTION
`
`989
`
`WE WILL NOT in any like or related manner interfere
`with, restrain, or coerce you in the exercise of the rights
`set forth above.
`WE WILL offer instatement to two individuals we dis-
`criminatorily failed and refused to hire, whose identity
`will be determined in a Board compliance proceeding, in
`the positions for which they applied or, if those positions
`no longer exist, in substantially equivalent positions,
`without prejudice to their seniority or any other rights or
`privileges they would have enjoyed had we not unlaw-
`fully refused to hire them.
`WE WILL make these individuals whole for any loss of
`earnings and other benefits resulting from the discrimina-
`tion against them, less any net interim earnings, plus in-
`terest.
`WE WILL consider the remaining discriminatees, whose
`identity will be determined in the compliance proceed-
`ing, for future job openings in accord with nondiscrimi-
`natory criteria, and WE WILL notify them, the Union, and
`the Regional Director for Region 17 of future openings
`in positions for which the discriminatees applied or sub-
`stantially equivalent positions.
`WE WILL remove from our files any reference to our
`unlawful refusal to hire or to consider for hire the indi-
`viduals identified in the compliance proceeding as stated
`above, and WE WILL notify each of them in writing that
`this has been done and that the refusal to hire them or
`consider them for hire will not be used against them in
`any way.
`
`EXCEPTIONAL PROFESSIONAL, INC. D/B/A EPI
`CONSTRUCTION
`Stanley D. Williams, Esq., for the General Counsel.
`Donald W. Jones, Esq. (Hulston, Jones, Gammon 8 Marsh), of
`Springfield, Missouri, for the Respondent.
`Michael T. Manley, Esq. (Blake 8 Uhlig), of Kansas City, Kan-
`sas, for the Charging Party.
`DECISION ON REMAND
`STATEMENT OF THE CASE
`MARY MILLER CRACRAFT, Administrative Law Judge. This is
`a remand pursuant to FES, 331 NLRB 9 (May 11, 2000).1 In
`FES the Board restated, inter alia, the elements that the General
`Counsel must establish in order to meet the initial burden in
`refusal-to-hire and refusal-to-consider for hire cases. In light of
`FES, on September 28, 2001, the Board remanded a portion of
`the instant case for further consideration of the complaint alle-
`gations that the Respondent unlawfully refused to consider for
`hire or to hire 10 applicants. EPI Construction, 336 NLRB 234
`(2001). The Board requested that on remand, further considera-
`
`
`1 Following a hearing in November 1997 and March 1998, on Au-
`gust 5, 1998, I issued a decision in this case.
`
`tion be given to
`(1) whether there were available openings at the time that the
`alleged discrimination occurred; (2) the number of such avail-
`able openings; and (3) whether the applicants had training
`and/or experience relevant to the announced or generally
`known requirements of the openings and whether those re-
`quirements were not uniformly adhered to or were either pre-
`textual or pretextually applied. The judge may, if necessary,
`reopen the record to obtain evidence required to decide the
`case under the FES framework.
`EPI Construction, 336 NLRB at 235. The Board specifically
`noted that its remand allowed for consideration of other factors
`as well.2
`On the entire record, including my observation of the de-
`meanor of the witnesses, and after considering the original and
`additional briefs filed by counsel for the General Counsel,
`counsel for the Charging Party, and counsel for the Respondent,
`I make the following
`FINDINGS OF FACT ON REMAND
`A. There were Available Openings at the Time of the Alleged
`Discrimination
`The date of the alleged discrimination is June 30, 1997, and
`thereafter. Thus, the complaint alleges that about June 30,
`1997, Respondent refused to consider for hire or to hire em-
`ployee applicants Jim Carsel, Larry Collinsworth, Roger
`Hensley, Bob Hum, John Duncan, Tom McFarland, Mike
`Joyce, Shelley Williams, Steve Wilson, and Matt Rausch. In
`my original decision, 336 NLRB 234, 250 (2001), I found that
`on June 30, 1997, at about 10 or 10:30 a.m., Carsel and the
`other alleged discriminatees completed job applications and
`submitted them to Respondent. Stewart said he would not get to
`these applications for 2 weeks. He said he would call.
`On June 30, 1997, or shortly thereafter Respondent had
`available openings. In my original decision at 336 NLRB at
`250, I found that although Respondent’s president, Fred Stew-
`art, initially told Carsel that Respondent was not taking applica-
`tions on June 30, 1997, when Carsel countered that Gerald Hill,
`Job Supervisor for General Contractor Dalton Killinger, told
`Carsel that Respondent was behind on the Dalton Killinger
`project, Stewart replied, “fine,” and handed job applications to
`all of the alleged discriminatees. I further found that Respon-
`dent hired at least 13 employees shortly after June 30, 1997,
`and additionally utilized 4 employees from its general contrac-
`tor between June 25 and July 30, 1997. 336 NLRB 251. Based
`upon this evidence, I conclude that Respondent had available
`openings on June 30, 1997, or shortly thereafter.3
`
`
`2 Following a conference call held on November 9, 2001, all counsel
`participating, I determined that the record was sufficient to decide the
`case under the FES framework. A date was set for briefing of the issue
`on remand. All counsel filed additional briefs on remand. A copy of
`this ruling on remand is attached as “Appendix A.”
`3 Respondent argues that its use of four Dalton Killinger employees
`to perform carpentry work cannot be viewed as job openings for which
`the alleged discriminatees could be considered. I agree that Respon-
`dent’s arrangement to utilized Dalton Killinger employees began on
`June 25, 1997, and therefore predates the alleged discriminatees’ appli-
`
`

`

`990
`
`DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
`
`B. There were at Least 13 Available Job Openings on or
`Shortly After June 30, 1997
`Respondent is a sheet rock installation contractor engaged in
`the construction industry. Around the time the alleged discrimi-
`natees applied for employment, Respondent’s projects included
`the Carthage Elementary School, Columbian-Fairview Elemen-
`tary School, Santa Fe School, Tomahawk School, Mills Ander-
`son Justice Center, College Heights Christian School, Reming-
`ton Country Club, Fairfield Inn, Budgetel Inn, Hickory County
`School, and the Carthage Humane Society.
`Respondent generally allowed individuals to complete appli-
`cation forms before and after June 30, 1997. Accordingly, Jona-
`thon Hackenberg testified that he was allowed to complete an
`application on July 3 but was requested to postdate the applica-
`tion to June 25.
`Moreover, Respondent’s general contractor testified that Re-
`spondent was behind schedule on the Carthage Elementary
`School job. This contractor assigned four of its employees to
`perform Respondent’s work of hanging drywall and installation
`of acoustical ceiling materials in order to avoid paying liqui-
`dated damages. Respondent was charged for the time these
`employees spent performing Respondent’s work between June
`25 and August 12, 1997.
`This evidence indicates that Respondent was taking applica-
`tions and needed assistance. There is no evidence regarding any
`specific length of time which Respondent maintained applica-
`tions for active consideration. Excluding those employees hired
`primarily to perform plastering work,4 Respondent hired at least
`13 individuals to perform carpentry work between June 30 and
`July 27, 1997. Appendix B sets forth the complete information
`regarding Respondent’s hiring during this period. The record
`conclusively demonstrates that Respondent was hiring at the
`time the alleged discriminatees applied for work.
`C. The Applicants had Training and/or Experience Relevant
`to the Announced or Generally know Requirements of
`the Openings
`The third requirement on remand is phrased in the conjunc-
`tive. Accordingly, the Board has requested on remand that I
`determine
`Whether the applicants had training and/or experience rele-
`vant to the announced or generally known requirements of the
`openings and whether those requirements were not uniformly
`adhered to or were either pretextual or pretextually applied.
`EPI Construction, 336 NLRB at 235. I note that in FES, supra,
`331 NLRB 912, the Board phrased the General Counsel’s bur-
`den disjunctively, inter alia as follows:
`(2) that the applicants had experience or training relevant to
`the announced or generally known requirements of the posi-
`
`
`
`cations for employment with Respondent. I find that the use of these
`employees supports a finding that Respondent was short-handed and
`needed employees to meet its construction deadlines.
`4 Plastering work, although it may technically qualify as “carpentry”
`work, was not specifically sought by any of the alleged discriminatees.
`Carsel agreed that a separate union represented plasterers and he did
`not view Respondent’s hiring of plasterers as an act of discrimination
`against the Union.
`
`tions for hire, or in the alternative, that the employer has not
`adhered uniformly to such requirements, or that the require-
`ments were themselves pretextual or were applied as a pretext
`for discrimination. . . .
`In an excess of caution, I will make the findings as instructed
`on r