Americlean

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 1052 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1052
Americlean Restoration and Maintenance Corp.,
d/b/a Americlean and Local 466, International
Brotherhood of Painters and Allied Trades,
AFL–CIO. Case 3–CA–21350
August 27, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On March 27, 2001, Administrative Law Judge Joel P.
Biblowitz issued the attached decision and supplemental
decision.1 The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this matter 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,2 and conclusions and
to adopt the recommended Order, as modified below.3
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by failing to hire seven appli-
cants for employment. Applying the standard set forth in
FES, 331 NLRB 9 (2000), the judge found that the Gen-
eral Counsel sustained his burden of showing that the
Respondent was hiring and had job openings for the
seven applicants, that the applicants had the experience
and qualifications to perform these jobs, and that the Re-
spondent’s antiunion animus contributed to the decision
not to hire the applicants. The judge further found that
the Respondent had not sustained its burden of establish-
ing that it would not have hired the applicants even ab-
sent their union activities. We agree with the judge’s
findings.

1 On April 22, 1999, the Administrative Law Judge issued his deci-
sion in the above captioned case, finding that the Respondent had vio-
lated Sec. 8(a)(3) and (1) of the Act by its failure to hire and failure to
consider to hire Philip Tucker, Austin Devine, James Chmielewsky,
Nancy Devine, John McLean, William O’Leary and Carl Winchell
because of their membership in, and support for the Union. Thereafter,
on June 7, 2000, the Board remanded this case for further consideration
in light of its decision in FES, 331 NLRB 9 (2000).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
In adopting the judge’s finding that the Respondent unlawfully re-
fused to hire James Chmielewsky, we note that Chmielewsky’s em-
ployment application indicated that he had attended a painting appren-
ticeship program for 3 years and then worked as a painter for more than
4 years.
3 We will modify the notice to include language conforming with
that set forth in the judge’s recommended Order. In addition, we will
modify the recommended Order in accordance with Indian Hills Care
Center, 321 NLRB 144 (1996), and Ferguson Electric Co., 335 NLRB
No. 15 (2001).
Our dissenting colleague contends that the Respondent
did not unlawfully refuse to hire two of the applicants,
Philip Tucker and Nancy Devine. According to our col-
league, the General Counsel failed to meet his burden un-
der FES of showing that Tucker and Devine possessed the
necessary experience to qualify for employment with the
Respondent as painters. Although Tucker and Devine
credibly testified to having 20 and 21 years experience
respectively, our colleague finds this evidence insufficient
to meet the General Counsel’s burden under FES because
it does not show that the Respondent knew that Tucker
and Devine had the requisite experience. Relying on the
fact that the Respondent’s newspaper advertisements
stated that the Respondent was seeking painters with a
minimum of 5 years experience, and virtually dismissing
the fact that the Respondent’s application asked only for
the applicant’s last four employers, our colleague con-
cludes that the General Counsel failed to sustain his bur-
den because the applications do not show that Tucker and
Devine had 5 years of painting experience. We find no
merit to our colleague’s contention.
Although the record establishes that the Respondent’s
advertisements sought applicants with five years experi-
ence, the Respondent’s application clearly did not ask the
applicant for information showing 5 years experience; it
only asked the applicant to list the last four employers
and the dates of their employment. Indeed, the portion of
the application asking for the last four employers is very
small, and there is no additional space on the application
upon which to list additional work experience. It is thus
clear that this application did not seek to inquire whether
the applicant had 5 years experience.4 Accordingly, the
4 Thus, there is no support for our colleague’s contention that Tucker
and Devine withheld such information from the Respondent. Indeed,
their applications included all of the relevant information concerning
their last four employers. Furthermore, the evidence shows that the
Respondent did not screen out applicants who failed to list prior em-
ployers with whom the applicant had a total of 5 years painting experi-
ence. The Respondent’s newspaper advertisements appeared 14 times
during the period from late January 1998 to later May 1998, uniformly
requiring 5 years experience for painters. During the period spanned by
these advertisements, Charles Olden and Chris Walsh filed applications
for employment as painters, were interviewed and were hired. Their
applications did not indicate 5 years experience as painters. During this
same period, six other persons applied for painter positions and were
interviewed, although their applications did not list the prerequisite 5
years’ experience. These applicants, who were interviewed—although
not hired, included Michael Randall, Kirk Flandsberg, Jeffrey Miller,
Mark Davis, Patrick Moorehouse and Chad Ovitt. Our dissenting col-
league speculates that the Respondent may have been hiring for “entry
level” painters, or that these applicants could have communicated addi-
335 NLRB No. 83
AMERICLEAN 1053
absence of such evidence on the applications of Tucker
and Devine cannot be fatal to the General Counsel’s
case.
We also find our colleague’s analysis is flawed be-
cause it attaches no significance to the fact that both
Tucker and Devine credibly testified to having substan-
tially more than 5 years’ painting experience, and instead
faults the General Counsel for not establishing that the
Respondent had knowledge of this experience. The
Board stated in FES that in order to meet his initial bur-
den, the General Counsel must show, inter alia, “that the
applicants had experience or training relevant to the an-
nounced or generally known requirements of the posi-
tions for hire. . . .” FES, supra at 12. The Board further
explained that

The General Counsel’s burden in this regard is
limited to showing that the applicants met the em-
ployer’s publicly announced or generally known re-
quirements of the position, to the extent that these
facial requirements are based on nondiscriminatory,
objective, and quantifiable employment criteria.
FES, supra at 13.

This requirement is met here by the testimony of
Tucker and Devine, which establishes that they had 20
and 21 years experience respectively. There is nothing in
the language of FES that requires the General Counsel,
as part of his initial burden, to additionally show in these
circumstances that the Respondent knew the applicants
had the requisite experience. Indeed, to the extent that
some ambiguity existed because of the advertisement’s
reference to 5 years experience and the application’s re-
quest for information only about the last four employers,
FES specifically states that in such circumstances the
burden is on the employer to show that the applicant
failed to meet the qualifications.5 Our colleague’s con-
tention that the General Counsel must initially establish
an added element of employer knowledge of these quali-
fications is in clear conflict with the FES framework.
Finally, we disagree with our colleague’s contention
that our application of FES makes “employers responsi-

tional years of experience at the time they submitted their applications.
However, given the number of applications for painting positions that
did not show on their face the required 5 years’ of experience, we infer
that there was no initial requirement to show this information as a pre-
requisite for an applicant to obtain an interview enabling the applicant
to reveal the required level of experience at that time. The discrimina-
tees’ inability to be interviewed precluded them from obtaining this
opportunity.
5 See FES, supra at 13 (“Similarly, if there is any ambiguity in the
employer’s statement of requirements for the position or any suggestion
that the requirements are not rigid (e.g., ‘two years preferred’), the
burden is on the employer to show that the applicant failed to meet
these imprecise qualifications.”).
ble for the inaccuracy of the information submitted by
job applicants,” and “forc[es] employers to play a guess-
ing game.” This contention rests upon the erroneous
assumption that the applicants were asked to provide
information demonstrating 5 years’ experience. The
simple fact is that the Respondent never asked Tucker
and Devine to provide this information and that it hired
other applicants who “withheld” this information on their
applications. The record clearly establishes that the Re-
spondent chose to make these hiring decisions without
inquiring as to their experience. Indeed, there is no evi-
dence even remotely suggesting that the Respondent was
“forced” to make a hiring decision without having com-
plete information.
We also reject the Respondent’s contention that the
discriminatees were not hired on account of their high
wage histories, which ranged from $16 to $21.40. The
Respondent contends that because it had previously hired
five applicants with wage histories ranging from $14 to
$19 only to have them leave shortly after being hired, it
created a policy whereby it would consider an applicant
with a wage history of $12, but would not grant an inter-
view to an applicant with a wage history of $16.
The record shows, however, that the Respondent regu-
larly departed from this purported policy. Indeed, within
2 months after the discriminatees applied for jobs with
the Respondent, the Respondent interviewed four appli-
cants with wage histories of more than $16, hiring one
with a wage history of $21.05. In addition, about 7
months after the discriminatees applied for jobs with the
Respondent, the Respondent interviewed and offered a
position to another applicant who had a wage history of
$16. Further, as noted in the judge’s original decision,
the Respondent called Carl Winchell, whose application
indicated a salary history of $16, to offer him an inter-
view, but upon learning from Winchell that he was a
member of the Union terminated the telephone conversa-
tion and never called him back. We find that the above
conduct demonstrates that the Respondent’s wage history
assertions are pretextual.
Accordingly, we adopt the judge’s finding that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
refusing to hire the seven applicants for employment.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, and
orders that the Respondent, American Restoration and
Maintenance Corp., d/b/a Americlean, Glenn Falls, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraphs 2(a) and (b)
and reletter the subsequent paragraphs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1054
(a) Within 14 days from the date of the Board’s Order,
offer employment to Philip Tucker, Austin Devine,
James Chmielewski, Nancy Devine, John McLean, Wil-
liam O’Leary and Carl Winchell for jobs which they ap-
plied or, if such job no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges to which they would
have been entitled if they had been hired.
(b) Make Philip Tucker, Austin Devine, James
Chmielewski, Nancy Devine, John McLean, William
O’Leary and Carl Winchell whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, less any interim earning, plus
interest.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records necessary to ana-
lyze the amount of payment due under the terms of this
Order.
2. Substitute the attached notice for that of the admin-
istrative law judge.

CHAIRMAN HURTGEN, dissenting in part.
I find that the Respondent did not violate Section
8(a)(3) and (1) of the Act by refusing to hire applicants
Philip Tucker and Nancy Devine.1 As explained below, I
disagree with the interpretation of the Board’s decision in
FES2 that has lead my colleagues to the opposite conclu-
sion.
In FES, the Board established a new standard for de-
termining the lawfulness of an employer’s refusal to hire
applicants for employment. To establish a discrimina-
tory failure to hire, the General Counsel has the initial
burden to show, at a minimum, that (1) the employer was
hiring or had concrete plans to hire; (2) the applicants
had experience or training relevant to the announced (or
actually applied) nondiscriminatory, objective, and quan-
tifiable qualifications for the position; and (3) antiunion
animus contributed to the decision not to hire the appli-
cants.
Here, as the judge found, the first element of the FES
test is satisfied by record evidence that the Respondent:
(1) placed a newspaper advertisement seeking painters;
(2) received applications and interviewed applicants; and
(3) and hired at least 10 painters during the period rele-
vant to these proceedings. The third element of the test,
antiunion animus, is shown by: (1) the Respondent’s

1 All references herein to Devine refer to Nancy Devine.
2 FES 331 NLRB 9 (2000).
questioning self-identified union member applicants
about their union activities and denying them interviews,
in contrast to its treatment of applicant Winchell, who
did not disclose his union membership when he filled out
an employment application; and (2) the fact that the Re-
spondent annotated the applications of several of the ap-
plicants, who were not interviewed, with the word “Un-
ion” and other union-related notations.
There remains for analysis the second of the FES ob-
jective criteria, that is, the applicants’ experience and
training relevant to the Respondent’s advertised painting
jobs. Contrary to the judge, I find that the General
Counsel has not satisfied the burden to show that Tucker
and Devine possessed the necessary experience to qualify
for employment by the Respondent as painters. Accord-
ingly, as to Tucker and Devine, the General Counsel has
not established a prima facie case of a discriminatory
refusal to hire.
The relevant facts are these. On January 28 and Feb-
ruary 3, 1998, respectively, Tucker and Devine went to
the Respondent’s facility and filled out applications in
response to the Respondent’s newspaper advertisement
seeking “quality painters with own tools, transportation,
clean driver’s license & minimum 5 years experience.”
(Emphasis added.) The application form requests that
applicants describe their education and special training,
list their last four employers and dates of employment,
and give the names of references.
On the application form, Tucker listed, as his last four
employers, painting jobs starting in May 1997 and last-
ing through September 1997, and employment as an or-
ganizer for the Union beginning in September 1997. He
listed, as a reference, one person in the painting business
whom he had “known” for 10 years. Devine listed, as
her last four employers, painting jobs beginning about
February 1997 and ending in January 1998. She also
listed special training as a “Wallpaper-vinyl expert.”
Thus, despite the Respondent’s advertised requirement
of 5 years painting experience, neither Tucker’s nor De-
vine’s application indicated that the applicant satisfied
that requirement. That was the information available to
the Respondent when it decided not to interview or hire
Tucker and Devine.
As noted, the newspaper advertisement clearly set
forth the 5-year requirement. The applicants can hardly
say that they were unaware of the requirement, for they
were responding to that advertisement. Notwithstanding
this, they set forth, on their application forms, a work
history that showed less than 5 years experience. Thus,
so far as Respondent was aware, they did not have the
requisite experience.
AMERICLEAN 1055
Contrary to my colleagues, I find nothing ambiguous
in the Respondent’s clearly stated requirement of 5 years
painting experience. This unambiguous requirement is
not rendered unclear by the Respondent’s use of a pre-
printed, standard application form. Concededly, the form
calls only for the listing of four prior employers and the
dates of each. To the extent that the four prior employ-
ments do not together yield 5 years experience, there
were many ways (e.g., oral statements) in which appli-
cants could have communicated other prior employment
which satisfied the 5-year requirement.
My colleagues suggest that the Respondent’s knowl-
edge, or lack thereof, is irrelevant. But, clearly, the Re-
spondent was the person who was doing the hiring, and it
would thus seem apparent that its knowledge (concerning
whether applicants meet the stated requirements) would
be not only relevant but critical.
I recognize that 1 year later, at the instant unfair labor
practice hearing in February 1999, Tucker and Devine
testified that they had more than 5 years painting experi-
ence—20 years experience for Tucker, and 21 for De-
vine. Their reasons for withholding this information
from the Respondent, at the time they applied for jobs,
were not satisfactorily explained.3
My colleagues contend that the General Counsel’s
eliciting of this tardy evidence of Tucker’s and Devine’s
employment history at the hearing is sufficient to satisfy
the FES burden of demonstrating that the two possessed
the required experience to qualify for employment by the
Respondent. I disagree. The Respondent having clearly
communicated an unambiguous experience requirement
in its newspaper advertisement, the applicants were re-
sponsible for demonstrating that they possessed the nec-
essary experience. Instead, they demonstrated the oppo-
site. Other applicants who responded to the newspaper
advertisement recognized their responsibility and entered
information regarding their entire painting work history
on the application forms.
My colleagues point out that the Respondent ran
newspaper advertisements for painters with 5 years ex-
perience 14 times between January and late May 1998.
By examining bare, unexplained employment applica-
tions and hiring data, my colleagues observe that, within
that same approximate time frame, the Respondent inter-
viewed and hired two employees (Olden and Walsh)

3 My colleagues are mistaken in contending that I “attach[] no sig-
nificance” to Tucker’s and Devine’s testimony at the hearing establish-
ing that, at the time of their application for employment with the Re-
spondent, each has more than 5 years’ painting experience. As I ex-
plain infra, the testimony concerning the 5 years of experience is rele-
vant, but so is the fact that Respondent was not aware that they had that
experience.
whose applications did not indicate 5 years experience,
and interviewed but did not hire six other applicants
(Randall, Flandsberg, Miller, Davis, Moorehouse, and
Ovitt) whose applications similarly did not indicate 5
years experience. From these bare, unexplained records,
my colleagues infer that the Respondent did not have an
“initial requirement to show [5 years experience] as a
prerequisite for an applicant to obtain an interview.”
I do not find such an inference reasonable based on the
record, which is devoid of context to support this infer-
ence. None of these applicants testified at the hearing.
No witness testified as to the circumstances under which
the applications were filed and the applicants were inter-
viewed. There is no showing of a nexus between these
applications and the ad. There is no evidence showing
whether these applicants applied for the advertised paint-
ing positions that required 5 years experience and, if so,
whether the applicants conveyed in some other manner
additional information to satisfy the experience require-
ment. In any case, the application forms submitted by
several applicants contain notations made by company
officials, apparently made during interviews, that suggest
that the Respondent may have been interviewing for en-
try-level painting positions, different from the advertised
positions at issue here.
In my view, these bare, unexplained application forms
have little probative value. The absence of evidence re-
garding these applications is not surprising, however,
given that the Respondent has not asserted as a defense
that it never hired painters with less than 5 years experi-
ence and thus, always screened out applications that did
not show sufficient experience. Rather, the instant case
is about a failure to hire in response to a particular adver-
tisement that called for 5 years experience. It was the
General Counsel’s burden to show that the alleged dis-
criminatees met the requirement, and conveyed that to
Respondent. Other applications in the past, not in re-
sponse to the instant advertisement, are irrelevant.
In fact, my colleagues’ argument begs the critical is-
sue, which is whether the General Counsel met his initial
burden, under FES, to demonstrate that the applicants for
the advertised positions possessed the necessary experi-
ence to qualify for employment. As shown, the General
Counsel did not satisfy his burden to show that, at the
time when Tucker and Devine applied for employment,
they possessed the necessary 5 years experience. Thus,
as to Tucker and Devine, the General Counsel failed to
establish a critical part of his prima facie case.
FES does not support the position of my colleagues.
Common sense and the plain language of the FES stan-
dard require that the determination whether applicants
meet the necessary experience requirements must be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1056
made based on information available to employers at the
time that hiring decisions are made, not months or years
later, when the information is no longer useful. Other-
wise, the effect of FES would be to establish a one-sided
guessing game in which applicants are free to provide
information which indicates that they fail to satisfy an
employment requirement, and then (much later) testify
that they do meet the requirements. I would not join my
colleagues in making employers responsible for the inac-
curacy of the information submitted by job applicants,
and forcing employers to play a guessing game.
In sum, Tucker and Devine applied for positions that
unambiguously required, inter alia, a minimum 5 years of
painting experience.4 Tucker’s application reflected only
5 months of past employment as a painter. Devine’s
application showed, at most, 1 year of painting experi-
ence. Thus, neither applicant demonstrated to the Re-
spondent that they had the necessary experience to qual-
ify for employment. Concededly, the Respondent’s ap-
plication form only asked applicants to identify their last
four employers. It did not expressly ask for total years of
experience. However, the applicants were responding to
an advertisement that plainly and unambiguously stated a
5-year experience requirement. It was the responsibility
of the applicants to demonstrate to the Respondent that
they possessed the necessary experience at the time they
applied. Several of the discriminatees understood this
responsibility and included their total years of painting
experience on the application forms. Tucker and Devine
did not do so. Thus, the Respondent acted lawfully in
deciding not to interview and not to hire the two appar-
ently unqualified applicants.
Accordingly, I would reverse the judge’s unfair labor
practice findings with regard to the Respondent’s deci-
sion not to hire Phillip Tucker and Nancy Devine.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union

4 No party has argued that this experience requirement was not le-
gitimate, or that the Respondent did not uniformly adhere to this re-
quirement when making hiring decisions.
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to hire applicants for employ-
ment because of their support of Local 466, International
Brotherhood of Painters and Allied Trades, AFL-CIO
(the Union) or any other labor organization or their en-
gagement in union activities or because of their status as
paid union representatives.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL , within 14 days from the date of the
Board’s Order, offer employment to Philip Tucker, Aus-
tin Devine, James Chmielewski, Nancy Devine, John
McLean, William O’Leary and Carl Winchell for jobs
which they applied or, if such job no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges to which they
would have been entitled if they had been hired.
WE WILL make Philip Tucker, Austin Devine, James
Chmielewski, Nancy Devine, John McLean, William
O’Leary and Carl Winchell whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, less any interim earning, plus
interest.

AMERICAN RESTORATION AND
MAINTENANCE CORP., D/B/A
AMERICLEAN
SUPPLEMENTAL DECISION
JOEL P. BIBLOWITZ, Administrative Law Judge. By deci-
sion dated April 22, 1999, I found that the Respondent violated
Section 8(a)(1) and (3) of the Act by refusing to hire, or con-
sider for hire, Phillip Tucker, Austin Devine, James
Chmielewsky, Nancy Devine, John McLean, William O’Leary,
and Carl Winchell because of their membership in, and support
for, Local 466, International Brotherhood of Painters and Allied
Trades, AFL–CIO (the Union). By Order Remanding Proceed-
ing to administrative law judge dated June 7, 2000, the Board
remanded the proceeding to me for further consideration in
light of its decision in FES, 331 NLRB 9, which issued on May
11, 2000. By Joint Motion to Reopen Record for Receipt of
Stipulation, together with Joint Stipulation with attachments,
dated between February 8 and February 12, 2001, the parties
agreed that there was no need to reopen the record to present
additional testimony and exhibits. In addition, I gave the parties
an opportunity to file briefs herein.
AMERICLEAN 1057
Facts and Analysis
Austin Devine, Tucker, McClean and Chmielewsky went to
the Respondent’s premises on January 28, 1998;1Winchell went
on either January 28 or 29, but not with any of the above-
named individuals. O’Leary and Nancy Devine went to the
premises on February 3. All of them, with the exception of
Winchell, were wearing union shirts and hats and went in re-
sponse to an ad that the Respondent had placed in a Glens Falls,
New York newspaper on January 25 requesting “. . . quality
painters with own tools, transportation, clean driver’s license &
minimum 5 years experience. Steady work, non seasonal . . . .”
I found that none of these applicants were hired, or considered
for hire, by the Respondent for discriminatory reasons, in viola-
tion of Section 8(a)(1) and (3) of the Act.
In FES, supra, the Board set forth the three elements of a
prima facie case of an employer’s discriminatory refusal to
hire:

(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 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 dis-
crimination; and (3) that antiunion animus contributed to the
decision not to hire the applicants.

The first requirement is satisfied by the newspaper ad which
stated that the Respondent was looking for painters, together
with the fact that it was interviewing applicants, and took appli-
cations from the seven discriminatees herein. In addition, At-
tachment A of the parties’ Joint Stipulation establishes that the
Respondent hired employees for the following periods between
January 1998, and November 1, 1999: from February 5 until
April 17; from April 6 to May 18; from May 21 to November
25; from July 17 to December 3; September 21 through No-
vember 5, 1999, and from April 27, 1999, through April 8,
2000. Employees who were subsequently hired by the Respon-
dent worked for the following periods: March 28, 2000, to No-
vember 2, 2000; May 11, 2000, until October 14, 2000; April
11, 2000, to July 31, 2000; June 26, 2000, and still employed
by the Respondent; August 10, 2000, to October 10, 2000; and
October 23, 2000, and still employed by the Respondent.
The second requirement calls for a more thorough examina-
tion of the record herein. In FES, supra, the Board determined
that the General Counsel has the burden of establishing that the
applicants met the employer’s publicly announced or objective
requirements for the job, while the employer bears the burden
of establishing that the applicant did not meet the “imprecise”
or subjective, qualifications (in FES, the example used was
“outstanding skills in wiring”). The requirements specified in
the ad were quality painters, own tools and transportation, clean
driver’s license, and 5 years of painting experience. The Re-
spondent’s application for employment requests the applicants’
education, special training, if any, last four employers and three

1 Unless indicated otherwise, all dates referred to herein relate to the
year 1998.
references with the number of years known. There is no spe-
cific place on the application for number of years experience as
a painter.
Austin Devine lists 1978 to 1981 for “Became a Union
Painter” and union painting jobs from 1981 through 1997.
Tucker lists his last four employers as painting jobs commenc-
ing May 1997 through September 1997, all of which he states
he left due to lack of work, and District Council 9 of the Paint-
ers’ Union as his employer from September 1997 to the present
as an organizer; he also lists, at least, one person in the painting
business whom he has known for 10 years. Chmielewsky’s
application lists his four most recent jobs as commencing in
May 1993 and concluding in January, and a 3-year painting
apprenticeship program. McClean’s application states that he
has painted for 22 years, served a 4-year apprenticeship, and
lists painting employment from 1978 to 1998. Winchell’s ap-
plication lists 8 years employment as a painter and O’Leary’s
application lists painting employment for the prior 6 years.
Nancy Devine’s application lists her last four employers as
commencing February 1997 and concluding in January and her
special training as “Wallpaper-vinyl expert.” All of these appli-
cants had driver’s licenses; there is no evidence one way or the
other whether they had their own tools. The evidence therefore
establishes that all of the applicants, with a few possible excep-
tions, satisfied all the objective requirements of the Respon-
dent’s ad. Although Tucker’s four past painting employers only
covered 5 months, he lists an individual in the painting business
whom he has known for 10 years as a reference.
Chmielewsky’s application lists his four most recent jobs as
commencing in May 1993, which would be 4 months short of
5 years, but he also lists 3 years of a painting apprenticeship
program. The other possible exception is Nancy Devine, who
lists her four former employers as commencing March 1997
and concluding in January; and lists the reason for leaving each
of these jobs as “lack of work.” Obviously, these four jobs
lasted less than the 5years of experience in the painting industry
specified in the Respondent’s ad. However, that may be due to
the fact that the application only requests the applicant’s past
four employers and does not ask for the number of years spent
in the industry. Further, the Respondent never objected to the
lack of painting experience of Nancy Devine, or of any of the
other applicants. I therefore find that the counsel for the Gen-
eral Counsel has satisfied its burden under FES that the appli-
cants met the Respondent’s objective criteria set forth in the ad,
while the Respondent did not meet its burden of establishing
that the applicants were not “quality painters.” The second
requirement of FES has therefore been met.
Finally, FES requires that antiunion animus contributed to
the decision not to hire the applicant. In my decision I found
that the union membership of the applicants was the reason that
they were not hired. Central to this finding was that of these
applicants, only Winchell received a call from the Respondent
to come for an interview, and he was the only applicant who
did not make his union membership obvious when filling out
the application at the employer’s premises. However, when he
responded to the offer of an interview by saying that he be-
longed to the Union, the conversation ended and a job offer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1058
never materialized. In addition, three of the applicant’s applica-
tions had the word “Union” written on them by the Respondent.
Having found that counsel for the General Counsel has sus-
tained his burden under FES, I find that the Respondent has not
sustained its burden of establishing that it would not have hired
the applicants even absent their union activities. As stated in
my decision, I reject the Respondent’s defenses herein, princi-
pally its salary history defense.
In addition to establishing the three elements as set forth
above, FES requires that the counsel for the General Counsel
must establish the number of openings that the Respondent had
available if, as is true here, counsel for the General Counsel
seeks an affirmative backpay and instatement order.2 Attach-
ment A of the Parties’ stipulations sets forth the painters hired
by the Respondent from January 1998 to October 2000. This
attachment establishes that the Respondent had job openings
for the following periods:

1. February 5 through November 25.3
2. July 17 through December 3.
3. September 21, 1998 through November 5, 1999.
4. April 27, 1999 through April 8, 2000.
5. March 28, 2000 through November 2, 2000.
6. April 11, 2000 through July 31, 2000.
7. May 11, 2000 through October 14, 2000.
8. August 10, 2000 through October 10, 2000.
9. Two positions, one commencing June 26, 2000, and the
other, October 23, 2000.
CONCLUSIONS OF LAW
1. The Respondent has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent had the following job openings available
after January 28:

(a) February 5 through November 25.
(b) July 17 through December 3.
(c) September 21, 1998 through November 5, 1999.
(d) April 27, 1999 through April 8, 2000.
(e) March 28, 2000 through November 2, 2000.
(f) April 11, 2000 through July 31, 2000.
(g) May 11, 2000 through October 14, 2000.
(h) August 10, 2000 through October 10, 2000.
(i) June 26, 2000 and October 23, 2000 to the present time.

4. The discriminatees herein had the experience and qualifi-
cations to perform these jobs.
5. The Respondent’s antiunion animus contributed to the Re-
spondent’s failure to employ any of the discriminatees herein.

2 FES, supra at 14.
3 There was an 11-day period, April 6 through April 17, when both
Christopher Walsh and Charles Olden were employed by the Respon-
dent, but this could be explained by either a training period for the latter
or a severance period for the former, so this period will not be included
as a “two employee period.”
6. By failing to hire Austin Devine, Tucker, Chmielewski,
McLean, Winchell, O’Leary, and Nancy Devine, the Respon-
dent violated Section 8(a)(1) and (3) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. Pursuant to the
Board’s Remand and FES, I have found that the Respondent
had eight specified job openings between February 5, 1998, and
October 10, 2000, as well as two open-ended job openings, that
the discriminatees were qualified to fill these positions, but that
the Respondent did not hire them because of its union animus,
in violation of Section 8(a)(1) and (3) of the Act. I shall there-
fore recommend that the Respondent offer them instatement
and make them whole for any loss of earnings or other benefits
they may have suffered as a result of the discrimination prac-
ticed against them from the date that they would have com-
menced working for the Respondent to the date that the em-
ployment would have ended. The amounts due to the discrimi-
natees, if anything, shall be determined at a compliance hearing
using, inter alia, the job opening dates found above as well as
the other stipulations received herein4. The amount of backpay
shall be computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), and shall be reduced by net interim
earnings, with interest computed in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended
ORDER5
The Respondent, American Restoration and Maintenance
Corp., d/b/a Americlean, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to hire applicants for employment because of
their support of the Union, their engagement in union activities,
or their status as paid union organizers.
(b) In any like or related manner, interfering with, restraining
or coercing employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of this Order, and pursuant to my findings
as discussed above, offer employment to Phillip Tucker, Austin
Devine, James Chmielewski, John McLean Carl Winchell,
William O’Leary, and Nancy Devine in jobs for which they
4 Some of the attachments that were part of the Stipulation herein re-
late to instatement offers that the Respondent made to the discrimina-
tees herein that were either not responded to or were refused. I will
leave the determination of the effect of these letters and the amount of
backpay, if any, due to the discriminatees herein to the Compliance
proceeding herein.
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
AMERICLEAN 1059
applied or, if such jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any other
rights or privileges to which they would have been entitled if
they had not been discriminated against, and make them whole
for any loss of earnings and other benefits suffered as a result
of the discrimination against them in the manner set forth in the
remedy section of the decision.
(b) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(c) Within 14 days after service by the Region, post at its fa-
cility in Glens Falls, New York copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since January 28, 1998. Further, the Respondent shall
mail a copy of this notice to each of the named discriminatees
herein, at their last known address or at the address listed on
their employment application.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification 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. March 27, 2001
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discriminate against applicants for employ-
ment by refusing to hire them because of their support of Local
466, International Brotherhood of Painters and Allied Trades,
AFL–CIO or any other labor organization or engagement in
union activities or because of their status as paid union repre-
sentatives.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Or-
der, offer to the employees named below employment in jobs
for which they applied or, if such jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their senior-
ity or any other rights or privileges to which they would have
been entitled if they had been hired and WE WILL make them
whole for any loss of earnings and other benefits resulting from
the discrimination against them, less any interim earnings, plus
interest:

Phillip Tucker, Austin Devine, James Chmielewski, Nancy
Devine, John McLean, William O’Leary and Carl Winchell.

AMERICAN RESTORATION AND
MAINTENANCE CORP., D/B/A
AMERICLEAN
Alfred M. Norek, Esq., for the General Counsel.
Gary C. Hobbs, Esq., Bartlett, Pontiff, Stewart & Rhodes, P.C.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge: This case
was heard by me on February 22, 1999 in Albany, New York.
The complaint, which issued on August 11, 19981 and was
based upon an unfair labor practice charge that was filed on
May 29 by Local 466, International Brotherhood of Painters
and Allied Trades, AFL–CIO (the Union), alleges that Ameri-
can Restoration and Maintenance Corp., d/b/a Americlean,
herein called the Respondent, interrogated an applicant for
employment regarding his union membership, and refused to
hire and/or consider for hire employee-applicants Phillip
Tucker, Austin Devine, James Chmielewsky, Nancy Devine,
John McLean, William O’Leary, and Carl Winchell because of
their support for, or membership in the Union, in violation of
Section 8(a)(1) and (3) of the Act.
1 Unless indicated otherwise, all dates referred to herein relate to the
year 1998.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1060
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that it has been engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
The Respondent admits, and I find, that the Union has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE FACTS
A. January 28 Salts
This is a salting case involving individuals who appeared at
the Respondent’s office on January 28, and February 2, and 3
and filled out employment applications, but were not hired by
the Respondent. Devine, Tucker, McClean, and Chmielewsky
went to the Respondent’s facility on January 28, 1998 at about
2 p.m. in response to an ad that the Respondent had placed in a
local newspaper in Glens Falls, New York. The ad, which ap-
peared on January 25 stated:

AMERICLEAN, a drug-free company, seeks quality
painters with own tools, transportation, clean driver’s li-
cense & minimum 5 years experience. Steady work, non
seasonal. A great place to work! Call for an appointment
between 3 & 5pm
Devine, who is an Organizer for District Council 9 of the In-
ternational Brotherhood of Painters, which is made up of local
unions from Long Island to Plattsburgh, New York, was the
principal spokesperson for the group. He testified that earlier
that day he called the telephone number listed in the ad and said
that several painters were interested in applying for the jobs. He
was told to come to the office between 3 and 5 p.m.; the appli-
cants arrived as a group at the Respondent’s facility at about 2
p.m. They were all wearing union hats and shirts. The hats were
white with the union name in blue lettering, and the shirts were
white with the International Union’s name in blue lettering.
When they arrived, the Respondent’s receptionist/clerical em-
ployee, Michele Bardon gave them employment applications to
complete and showed them into a conference room, where they
filled out the applications. When they returned to her desk with
the completed applications, Bardon asked, “You guys aren’t
union are you?” Devine responded that they were, and Bardon
did not say anything. The other employee of the Respondent
present at the time, Luke Graves, the bookkeeper, said that he
wouldn’t tell if they didn’t tell. He also said that the Respon-
dent was not a union company and did not pay union wages.
Devine said that was okay, because they were not asking for
union wages, the wages that they were requesting were flexible
or negotiable. Devine also said that on his own time, before and
after work and on his lunch hour, he would be attempting to
organize the Respondent’s employees to sign with his union;
Graves burst out laughing and said: “Good luck.” Devine also
said that he would be a hard worker and would accept whatever
pay the Respondent was paying its employees. Bardon then
asked for their driver’s licenses, made copies of them, and re-
turned them. She also asked them if they had industrial experi-
ence (they all answered that they did) and how many years’
experience they had and they left. When Devine had not heard
from the Respondent he called and spoke to “Ann”; at about the
end of March, after seeing an identical ad in the newspaper, he
called Graves and asked him if anything was wrong with their
applications, if they had to reapply, and why they had not been
called. Graves told him that they did not have to reapply, that
the applications are maintained indefinitely. During their visit
on January 28, he and the other applicants were each courteous,
did not raise their voice, and did not place union bumper stick-
ers on cars in the Respondent’s parking lot. If he had been of-
fered employment by the Respondent, he would have accepted
the offer.
Tucker, a Business Representative for District Council 9 of
the Painters’ Union, testified that after he saw the ad in the
newspaper on January 25, he called the telephone number listed
and was told to come to the office on January 28 between 3:00
and 5:00; he and the three other applicants arrived at the office
at about 2:00 wearing union hats and shirts. He testified that
they went at 2 p.m. because McLean told them that he had an
appointment to be there at 2 p.m., and the others went with him.
The receptionist, Bardon, gave them employment applications
to fill out, which they did and they returned them to Bardon at
her desk. She then asked for their driver’s licenses, and made
copies of them. At that time, she asked them, “Are you all un-
ion painters?” and they said that they were. Devine then said
that if he was hired, in his off hours, before and after work and
during lunch, he would attempt to organize the Respondent’s
employees. After he said this Graves, who was sitting at a com-
puter laughed. During this visit, Devine was speaking in a nor-
mal conversational tone and was not acting in any confronta-
tional manner. About a week later, Tucker called the Respon-
dent’s office and asked if their applications were still on file, if
they were being considered, and how long they were kept on
file, and he was told that they were kept on file indefinitely. If
he were offered employment by the Respondent, he would have
accepted the offer at the Respondent’s wage scale.
McLean testified that on January 27 he called the Respon-
dent’s office and said that he had seen the ad in the paper and
would like to fill out an employment application; he was told to
come the following day between 2 and 2:30 p.m. He arrived on
January 28 shortly after 2 p.m. with Tucker, Devine and
Chmielewsky; they were each wearing a union hat and shirt.
They were given employment applications by the receptionist,
filled them out and returned them to her. They were then asked
for, and turned over, their driver’s licenses which she made
copies of. At about that time, she asked if they “were all Un-
ion”, and they said that they were. Graves said, “Well, I won’t
tell anyone if you won’t tell anyone.” Devine said that they
were going to attempt to organize the shop before and after
work and during the lunchbreak, and that he would be a good
conscientious worker. Graves laughed, and said good luck in
organizing the shop. During this meeting Devine was speaking
in a normal tone of voice. At that time, McLean had been un-
employed for a few weeks, and if he had been offered a job by
the Respondent, he would have accepted the job.
Graves who, at the time of the hearing herein was no longer
employed by the Respondent, testified that he had no responsi-
AMERICLEAN 1061
bilities involving interviewing, hiring or firing employees;
rather, he performed normal bookkeeping responsibilities for
the Respondent. He was in his office when the four applicants
arrived on January 28. They asked for employment applica-
tions, and Bardon gave them the applications and took them to
the conference room where they filled them out.2 He was typing
at Bardon’s desk when the applicants gave Bardon their com-
pleted applications and she asked for, and received, their
driver’s licenses, which she photocopied. Bardon then told
them that she would give the applications to Jamie Morello, the
Respondent’s painting manager and Devine said that he was a
union organizer and he intended to organize the Respondent’s
employees. “He was shouting at the top of his voice when he
did this.” At this point Graves got up and stood next to Bardon
because of the volume of Devine’s voice. Devine had some
papers rolled up in his hand and he was hitting them against the
counter and pointing at him and Bardon. He was very fright-
ened and concerned by Devine’s manner. At no time did Bar-
don ask them if they were union members and he never laughed
or said anything to the four applicants. After the applicants left,
Graves told Morello that the four individuals were very rude,
loud and intimidating.
Bardon, who left Respondent’s employ in March, testified
that while employed by the Respondent she was the only cleri-
cal employee and was the recipient of telephone calls from job
applicants. On those occasions, she usually gave the applicant a
specific time to be at the office, for example 2 p.m. She testi-
fied: “it was usually a little test we would give to see if some-
one could be punctual.” She was sitting at her desk when De-
vine and the three other applicants came to the office on Janu-
ary 28. She gave each of them an application and took them to
the conference room to fill them out. When they gave her the
completed applications, she asked for and received their
driver’s licenses, which she photocopied. At about that point
Devine’s voice became very loud; he was yelling toward
Graves, not Bardon, about how he was part of the Union and he
was going to organize the Respondent’s employees at lunch and
after work and asked Bardon what her name was. This lasted
for a couple of minutes during which time Bardon felt very
uncomfortable. She never asked them about their status with
the Union. Later that day she told Morello that they were rude
and made her feel uncomfortable.
Morello, who had been employed by the Respondent as the
painting division manager until August, testified that he inter-
views painters applying to work for the Respondent. On about
January 28, Graves and Bardon told him about the January 28
incident with the applicants: “The unprofessionalism and the
loudness, threatening attitude that they brought into the office.”
He testified why he never interviewed any of these individuals:
“Number one reason was their unprofessional attitude and their
threatening and making Michele and Luke feel uncomfortable.
That was number one reason.” The reason that bothered him

2 The affidavit that Graves gave to the Board states that he gave the
employment applications to the four individuals and brought them to
the conference room to fill them out, and he testified: “It’s possible”
that he did so.
was, “it’s kind of obvious. You don’t need to have those types
of individuals around.”
Mark Miller, the Respondent’s president, testified that when
applicants call for an appointment to pick up an employment
application they are given a firm time to come in. “It’s the first
test to see if they can hold an appointment and follow direc-
tions.” If the applicant did not arrive at the set time, they nor-
mally would not consider the individual for employment. In
addition, someone who is rude, loud and obnoxious, would not
be considered for employment.
Winchell and Randall also applied for work at the Respon-
dent’s facility on either January 28 or January 29. Winchell
testified that after seeing the ad in the newspaper, he called the
telephone number listed and spoke with a lady. He asked her if
they were still taking applications, she said that they were, and
set up an appointment for him for the following day. On direct
examination he testified that the appointment was set for 2:45;
on cross examination he testified that it was set for between
2:45 and 3:15 p.m., and that he arrived at about 3 p.m.. He and
Randall appeared together at that time; the receptionist (pre-
sumably Bardon) gave them applications to complete and took
them to a room where they could fill them out. When they
completed the applications and returned them to the reception-
ist she asked them for identification and they gave her their
drivers’ licenses, which she photocopied and returned to them.
Winchell testified that on the following day, he received a tele-
phone call from a lady who asked him if he would come to the
Respondent’s office for an interview, and “she gave me the
time, 2:45 or 3:15, between that hours,” to come. He said that
he would, and then said, “By the way, I belonged to the Union.
She hesitated for a minute. She said, well, I will call you back.
She never called back. I didn’t hear nothing from them since
then.” He has a telephone and an answering machine at home,
and there were never any subsequent messages from the Re-
spondent; he never called them as well. At the time, he had
been unemployed for about a month, and if he had been offered
a job by the Respondent, he would have accepted it. Winchell’s
employment application has certain entries under “Remarks”
saying: “not currently working, no problem with varied shifts,
has transportation, has tools, used to working 40 plus hours.”
Winchell testified that this information is correct, but he does
not remember giving this information to the receptionist at the
Respondent’s office. Bardon testified that Winchell told her this
when he handed in the employment application on January 28.
In addition, she wrote “Union” on the top of the front page of
the application because “he had to have volunteered it. I would
not have asked.” Morello testified that he makes the decisions
on who will be interviewed, and he never asked anybody to call
Winchell for an interview because under “Salary Desired” on
the employment application he listed $16 an hour, and the Re-
spondent was only paying about half of that. Additionally, he
testified that because he was out of the office about 80 percent
of the time, he almost always arranged for interviews at 7 or 8
a.m.
B. February 2 Salt
Kirk Flansburgh, who was not a union member and is not al-
leged as a discriminatee herein, testified that Devine informed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1062
him that the Respondent advertised for painters, and asked him
if he would like him to apply for a job there. He told Flansburg
that he would like him to help in organizing the shop. Flans-
burg went to the Respondent’s office on the morning of Febru-
ary 2 and was given an employment application by the recep-
tionist, filled it out and returned it to her. That was the extent of
his actions at the office that morning. When he returned home
that afternoon there was a message from a male at the Respon-
dent saying that he should call the Respondent’s office for an
interview. Later that day he called the office and arranged to be
interviewed at the Respondent’s office the following day. He
was interviewed on February 3 by two men whom he could not
identify; he was asked about his skills and past history, but he
does not recall whether there was any discussion of wages.
They said that they would like to hire him and, at that time,
offered him a job that was located two hours north of Glens
Falls; he lives in the Albany, New York area, about an hour
South of Glens Falls. He testified: “I terminated the interview
once I said the job was too far.” Miller and Walter Bohlman,
who at the time was Morello’s assistant, testified that at that
time the Respondent did not have a job 2 hours north of Glens
Falls. Morello testified that his procedure was to conduct two
interviews, including a “hands on test” and a drug test prior to
hiring any individual and he never offered employment to any-
one after only one interview and that Flansburg’s testimony
was “incorrect.” After the initial interview, Flansburg called the
office, but as Morello was out, he left a message. Later that
day, when Morello returned, he called Flansburg to arrange for
a second interview and left a message on his answering ma-
chine. Flansburg never returned this call, so Morello did not
pursue him further.
C. February 3 Salts
O’Leary, who had seen the Respondent’s newspaper ad,
went to the Respondent’s office on February 3 with Nancy
Devine, Austin Devine’s wife. They testified that they arrived
at about 10:30 a.m. wearing union shirts and hats identical to
those warn on January 28. They asked for and received em-
ployment applications from, presumably, Bardon, filled them
out and returned them to her. O’Leary asked if there was a
problem with them being union, and was told that there was
not. Bardon asked O’Leary and Nancy Devine if they were
familiar with industrial settings, and they said that they were.
She also asked them for their driver’s licenses, which they gave
her. In addition, O’Leary gave her his business card, which lists
Local 201 of the Painters’ Union, and lists his title as J.A.T.C.
Coordinator. Bardon made a copy of that card, together with his
driver’s license, and attached it to his employment application.
Both O’Leary and Nancy Devine’s application has written un-
der “Remarks”, not by them, but presumably by Bardon: “Is
union, but doesn’t care that we are not, has license, doesn’t
mind the travel, has experience in industrial settings.”
O’Leary’s application also states: “not pushy about union
status.” Bardon testified that she wrote this on the applications
because O’Leary and Nancy Devine told her that. “I would not
have asked.” O’Leary and Nancy Devine each testified that if
the Respondent had offered them employment, they would have
accepted the offer.
The Respondent has a number of defenses herein in addition
to its defense that Devine’s loud and disruptive manner on
January 28 contributed to its decision not to offer employment
to Devine, Tucker, McLean and Chmielewsky. Initially it de-
fends that it has no union animus and, in fact, employs union
people. In addition, it defends that most or all of these individu-
als were not hired or even seriously considered for hire because
the Salary History in their applications states that they were
previously employed at about $16 an hour or more. The Re-
spondent’s policy and history is not to hire applicants such as
that because they were paying only about $8 or $9 an hour and
their experience was that such employees remain for a very
short time, until they get a better offer.
As to the former defense, Morello testified that he knows of
two employees of the Respondent, Bob Tyler and Mike Rich,
who are union members. Tyler was employed by the Respon-
dent prior to Morello’s employment with the Respondent, but
Morello hired Rich, whose employment application lists Qual-
ity Painting, a known unionized employer in Amsterdam, New
York and an hourly rate of $15.50 an hour, and two other em-
ployers at $14.75 and $12 an hour. The salary desired in his
employment application was $9.00 an hour. Charles Olden filed
an employment application on March 24. His most recent em-
ployer (from June to July 1997) was Quality Painters, where he
earned $14.65 an hour. Other wage rates for the period May
1996 to July 1997 range up to $21.05 an hour. Morello testified
that he hired Olden knowing that he had recently been em-
ployed by Quality. Tyler has been employed by the Respondent
since about October 1995. His resume lists the Union from
1986 to 1995 under Work Experience and salary desired as $9,
but does not contain a salary history for the prior 13 years.
Tucker, who has been a union member for 15 years and had
been union treasurer, testified that Rich and Tyler have not
been union members since about 1994 or 1995. The Respon-
dent interviewed applicant Jeffrey Miller in about February.
The Salary History on his employment application lists $8 and
$10 in 1994, 1995 and 1996, and $21 from December 1997.
As to this latter defense, there are two relevant areas in the
Respondent’s employment application, Salary Desired, and
Salary History. Morello testified that during the time in ques-
tion, the Respondent was paying painters between $8 and $9 an
hour. If someone listed $16 as the Salary Desired, Morello
would not consider that applicant for an interview. If an appli-
cant listed $12, he would “consider that.” As to an applicant’s
Salary History, he testified: “we have hired, from time to time,
men who have made $18, $19, $21 an hour, and as soon as
another $18, $19, $21 an hour job comes along, they leave . . .
really upsets what we are trying to do as a company.” He did
not offer to interview Devine, Tucker, McLean, and
Chmielewsky “number one” because of their “unprofessional”
and “threatening attitude” toward Bardon and Graves. An addi-
tional reason was the salary history in their employment appli-
cations. Tucker listed four jobs in 1997, each at $16 an hour.
Devine’s two most recent jobs were at $21 an hour.
Chmielewsky’s two most recent jobs were at $18.75 an hour,
and the job before those was at $11, and McLean’s most recent
employment was at $16 and $17 an hour. All four wrote “nego-
tiable” for the salary desired in the employment application.
AMERICLEAN 1063
Morello interviewed Flansburg, who listed $12 as the salary
desired, and salaries from $10 to $18 (self employed) under
salary history. Michael Randall, who completed his employ-
ment application on January 28, listed three jobs between 1995
and 1997 of $10 and $12 an hour, and a salary desired as
“flexible.” Morello interviewed him because those rates were
“within our working range.” He did not attempt to interview
Winchell because the one employer listed paid him $16 an
hour, and the salary desired was also $16. Francis Santoro,
whose employment application is dated January 28 and whose
salary history was between $15 and $16 an hour and who listed
$16 for salary desired also was not offered an interview by the
Respondent. Anthony Vecchio filed an employment application
with the Respondent on April 3, 1997. His salary history ranged
from $16.50 to $18.50 an hour, and the salary desired was $10
an hour. Morello testified that Vecchio told him that he was
willing to start at $9; he was hired, showed up for a company
meeting, and never appeared again. Four other named individu-
als who were employed by the Respondent in 1994 and 1995
and had salary histories of about $10 to $15 or $15 to $19, were
hired and trained by the Respondent, and stayed for between
two weeks to a few months. Miller testified that in the past, the
Respondent had hired individuals with a high salary history and
“they would work until the better paying job came along, and
they would be gone. And they usually didn’t last more than two
weeks.” Afterward, the Respondent’s policy was: “To take a
closer look at people’s pay history, and not consider someone
that is…making over $15, $16 an hour as a good candidate, as a
long-term employee.”
III. ANALYSIS
Initially, it is alleged that the Respondent, on about January
29, by Morello, interrogated an applicant for employment re-
garding his union membership in violation of Section 8(a)(1) of
the Act. As there is no evidence that this occurred, I recom-
mend that this allegation be dismissed. As regards the remain-
ing allegation herein, in Wright Line, 251 NLRB 1083 (1980),
the Board spelled out the burdens to be applied in 8(a)(3) cases,
including salting cases such as the instant matter. The General
Counsel has the initial burden of establishing a prima facie case
sufficient to support the inference that the individual’s pro-
tected conduct was a “motivating factor” in the employer’s
decision (in this case) not to hire the applicants. If the General
Counsel has satisfied this requirement, the burden shifts to the
employer to establish that the employees would not have been
hired ”even in the absence of the protected conduct.”
There are a number of credibility determinations that need to
be made prior to determining whether the General Counsel has
sustained its initial burden herein. I found Devine, Tucker, and
(especially) McLean to be credible witnesses who appeared to
be testifying in an honest and truthful manner, and credit their
testimony that Devine did not raise his voice or act in a loud or
threatening manner at the Respondent’s facility on January 28.
That is not to say that Bardon and Graves were totally incredi-
ble witnesses. Although they are no longer employed by the
Respondent and had nothing to gain from their testimony in
support of the Respondent’s position, I found the testimony of
Devine, Tucker and McLean more credible. Further, I find it
more reasonable that the applicants who were applying for the
jobs in order to be able to organize the Respondent’s employees
on their free time would be respectful, as Tucker and McLean
admittedly were, in order to get the job. I therefore credit the
testimony of Devine, Tucker and McLean over that of Bardon
and Graves concerning the incident of January 28, and reject
the Respondent’s defense that Devine’s alleged unprofessional
and threatening attitude was the “number one reason” that these
four applicants were not hired. The remaining defenses are that
the Respondent lacked any union animus and did not hire the
applicants herein because it had a practice of not hiring appli-
cants with a salary history substantially in excess of what Re-
spondent was paying ($8 or $9 an hour at the time). While this
defense has some reasonable appeal, it must be carefully exam-
ined in order to determine whether it is a convenient pretext for
refusing to hire union members.
The instant matter is a perfect illustration of the dangers in-
herent in this defense. The union members herein, while em-
ployed in union or prevailing rate jobs recently, were paid
hourly wages ranging from about $15 to $21 an hour. Any em-
ployer, fearful of salting campaigns in general or union em-
ployees in particular, could simply invoke this “salary history
defense” in order to defend its refusal to hire union members.
This defense, even if supported by some bad situations that the
Respondent had experienced in the past, such as its employ-
ment of Vecchio in 1997 and four other individuals with high
salary histories who were hired by the Respondent in 1994 and
1995 and only remained for from a few weeks to a few months,
cannot be used mechanically to defeat rights established by the
Act.
I find that the Respondent has not adequately established its
salary history as a defense to the allegations herein. Although
there is credible evidence that the Respondent had been burnt in
the past by hiring high salaried individuals, there is also evi-
dence that they continued to interview applicants, such as
Olden and Miller, with high salary histories. Donald A. Posey,
Inc., 327 NLRB 140 (1998), distinguishable from the instant
matter. In that case, the applicant-discriminatee assured the
employer that, if hired, he would remain in their employ for at
least a year. The applicants herein gave no such assurances. In
addition to the above, I found Winchell to be a credible and
believable witness, although it is reasonable to believe Bar-
don’s testimony that Winchell gave her the prior employment
information listed on the application. Winchell was a credible
witness, but not one with a perfect memory. I credit his testi-
mony that on the day following his interview, he was called to
come to the Respondent’s office for an interview; when he
responded that he belonged to the Union, the conversation and
his contact with the Respondent ended. Winchell’s employment
application, under salary history, lists only one job for 8 years
and an hourly salary of $16. All of this convinces me that while
the Respondent’s salary history defense herein has some obvi-
ous appeal, the evidence establishes that at the time in question
it was enforced in a selective manner.
I also reject the Respondent’s defense that it lacked union
animus. Although there is some disputed evidence that it em-
ployed some union members, there is some credible and some
undisputed evidence establishing animus. As stated above, I
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1064
credit Winchell’s testimony that after he informed Bardon that
he was a Union member, he was never again offered the inter-
view. In addition, Bardon noted on Winchell, O’Leary, and
Nancy Devine’s employment application that they were union
members. Although Bardon testified that they volunteered this
information, neither she nor any of the Respondent’s witnesses
testified as to why this information was relevant to the Respon-
dent in determining which applicants to hire. It should have
nothing to do with their qualifications, and it was not a factor
that Morello would have to know in determining whether they
should be interviewed. Since I have discounted the Respon-
dent’s defenses herein, I find that the General Counsel has sus-
tained his initial burden herein and that the Respondent has not
sustained its burden of establishing that these applicants would
have been hired even in the absence of their union membership.
CONCLUSIONS OF LAW
1. The Respondent has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1)(3) of the Act on
about January 28 and February 3 by refusing to hire, or con-
sider for hire, job applicants Devine, Tucker, Chmielewsky,
McLean, Winchell, O’Leary, and Nancy Devine because of
their union membership and support.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. Having found that
the Respondent unlawfully refused to hire, or consider for hire,
Devine, Tucker, McLean, Chmielewski, Winchell, O’Leary,
and Nancy Devine, the Respondent must offer them employ-
ment to the same or substantially equivalent position for which
they applied, without prejudice to any seniority or other rights
or privileges to which they would have been entitled in the
absence of the discrimination. Respondent must also make
them whole for any loss of earning or other benefits they may
have suffered as a result of the discrimination practiced against
them from the date that they would have commenced working
for the Respondent to the date that the Respondent makes them
a valid offer of employment. Such amounts shall be computed
in the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and shall be reduced by net interim earnings, with
interest computed in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
ORDER
The Respondent American Restoration and Maintenance
Corp., d/b/a Americlean, its officers, agents, successors, and
assigns, shall
1. Cease and desist from:
(a) Refusing to hire, or consider for hire, job applicants who
were members of Local 466, International Brotherhood of
Painters and Allied Trades, AFL–CIO, or any other union.
(b) In any like or related manner, interfering with, restraining
or coercing employees in the exercise of their rights guaranteed
them by 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 Phillip
Tucker, Austin Devine, James Chmielewski, John McLean,
Carl Winchell, William O’Leary and Nancy Devine employ-
ment to the same or substantially equivalent positions for which
they applied, without prejudice to any seniority or any other
rights or privileges to which they would have been entitled in
the absence of the Respondent’s hiring discrimination.
(b) Make the above named employees whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them in the manner set forth in the remedy sec-
tion of this decision.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its fa-
cility in South Glens Falls, New York copies of the attached
notice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 3, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In addition, the Respondent, at its own expense, shall
duplicate and mail a copy of the notice herein to the seven ap-
plicants found to have been unlawfully discriminated against in
this Decision.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification 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. April 22, 1999
4 If this Order is enforced by a Judgment of the 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.”
AMERICLEAN 1065
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
the National Labor Relations Act and has ordered us to post and
abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT refuse to hire job applicants because they
are members of Local 466, International Brotherhood of Paint-
ers and Allied Trades, AFL–CIO or any other labor organiza-
tion.
WE WILL NOT in any like or related manner interfere with,
restrain or coerce you in the exercise of rights guaranteed you
by Section 7 of the Act.
WE WILLwithin 14 days from the date of the Board’s Order,
offer Phillip Tucker, Austin Devine, Nancy Devine, James
Chmielewski, John McLean, William O’Leary, and Carl
Winchell employment to the same or substantially equivalent
positions for which they applied, without prejudice to their
seniority or any other rights or privileges to which they would
have been entitled in the absence of our hiring discrimination.
WE WILL make Tucker, Devine, Devine, Chmielewski,
McLean, O’Leary, and Winchell whole for any loss of earnings
and other benefits resulting from our discrimination against
them, less any net interim earnings, plus interest.
AMERICAN RESTORATION AND
MAINTENANCE CORP., D/B/A
AMERICLEAN