EPI Construction

National Labor Relations Board - Board Decisions

Aug 28, 2007

350 N.L.R.B. 985 (N.L.R.B. 2007)

EPI CONSTRUCTION
350 NLRB No. 81
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.
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD986
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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD988
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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD990
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 remand by the Board.
There is no evidence of any employment announcements or
advertisements listing specific job requirements. Respondent
explained that it preferred to hire applicants with past drywall
experience and steady employment, among other criteria. The
record evidence regarding the qualifications conveyed to Re-
spondent by the alleged discriminatees is limited to statements
made by Carsel, the only 1 of the 10 to actually speak to Stew-
art, and to the job applications submitted by the applicants. The
applicants were wearing union jackets, caps, and shirts. Carsel
told Stewart that all of the individuals would like to make ap-
plication to go to work for Respondent. He added that these
individuals were qualified carpenters, stating, “[The applicants]
were all journeymen, and we’d like to, you know, we’d work
for his wages, his terms, his benefits, and we’d do him a good
job. And if hired, we would try to organize his company.”
The alleged discriminatees uniformly listed training and/or
experience relevant to the generally known requirements of the
openings. Thus, each of the alleged discriminatees listed past
experience and training in carpentry. Appendix C sets forth this
information in detail.
D. Respondent did not Uniformly Adhere to its Hiring Criteria
Respondent explained that it attempted to hire employees
with past drywall experience. In many instances, Respondent
paid at or near the prevailing wage for journeyman carpenters,
$17.51 per hour, to individuals placed on the payroll between
June 30 and July 27, 1997. From this rate of pay, I infer that
Respondent wanted employees who were capable of rapid,
competent drywall framing and hanging.
Stewart testified that he utilized employee applications to de-
termine whether employees possessed the requisite experience
and training to work for him. He also preferred to hire indi-
viduals with a steady employment history. Stewart requested
that applicants list personal references. Finally, Stewart relied
on an interview to determine which employees to hire. Stewart
explained that Respondent performed specialized carpentry and
he was looking for individuals who had been working in dry-
wall on a regular basis, rather than sporadically. However,
Stewart’s past practice, as set forth in my prior decision, indi-
cates that on at least one occasion he did not require drywall
experience at all. Rather, Stewart hired one applicant with no
relevant training and hired another applicant with only one
month of relevant training. As I have previously concluded,
Respondent did not uniformly apply its hiring requirements.
See 336 NLRB 234, 251. (“Rather, the evidence establishes
that different criteria were utilized for other applicants than for
the batch applicants.”)5
I conclude that Respondent did not uniformly adhere to its
hiring criteria as to 10 of the 13 individuals placed on the pay-

5 I do not find that Respondent’s hiring criteria were pretextual.
Rather, they were pretextually applied.
EPI CONSTRUCTION 991
roll between June 30 and July 27. Few of these individuals
completed an application, gave personal references, or had
interviews. There is little evidence regarding the qualifications
or training of these individuals. Appendix D sets forth the rele-
vant names and the manner in which Respondent adhered or
failed to adhere to its hiring criteria.
E. Antiunion Animus Contributed to Respondent’s Decision not
to Hire the Applicants
In my prior decision, I found various violations of Section
8(a)(1) and (3). These findings were affirmed by the Board6 and
support a finding that antiunion animus contributed to the deci-
sion not to hire the applicants. I note additionally that Carsel
told Stewart that if any of the alleged discriminatees were hired,
they would attempt to organize Respondent’s employees. Ac-
cordingly, Respondent’s defense, that it hired 16 other employ-
ees who had worked for known unionized companies, or who
had a recent history of union membership, and assumed or
knew that these employees belonged to the Union, is not per-
suasive. Respondent also relies on the fact that Stewart was
himself a union member in the past, Respondent has a past
record free of unfair labor practices, and Respondent has signed
union agreements in the past. As the Board has noted, there is a
significant difference between past union affiliation and a
stated intent to organize. H. B. Zachry Co., 332 NLRB 1178,
1183 (2000), relying on Flour Daniel Inc., 311 NLRB 498, 500
(1993), enfd. in part, remanded in part 161 F.3d 953 (6th Cir.
1998). In light of Carsel’s announcement that the applicants
would attempt to organize employees if hired, Respondent’s
defense fails.
F. Respondent’s Burden
Based upon the above findings, the General Counsel has met
the initial burden in the discriminatory refusal-to-hire violation.
The burden now shifts to Respondent. FES instructs that Re-
spondent must show that it would not have hired the applicants
even in the absence of their union activity or affiliation. FES
continues,
If the respondent asserts that the applicants were not qualified
for the positions it was filing, 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 qualifications, and that it
would not have hired them for that reason evne in the absence
of their union support or activity. In sum, the issue of whether
the allege discriminates would have been hired but for the dis

6 The Board reversed my finding that Respondent violated Sec.
8(a)(4) and (1) by establishing a grievance and arbitration procedure
restricting the rights of employees to use the NLRB processes because
there was insufficient evidence to support a violation. However, the
Board affirmed my findings regarding informing employees that un-
ionization would be futile, creating the impression of surveillance,
promulgating a discriminatory no-solicitation rule, interrogating em-
ployees, threatening employees with layoff, discriminatory promulga-
tion of a drug and alcohol abuse and testing policy, requiring employ-
ees to predate application in order to avoid hiring union applicants and
laying off and suspending employees because of their union activities
or membership.
crimiantion against them must be litigated at the hearing on
the merits.
FES, 331 NLRB 9, 12.
Respondent has not presented any evidence that the appli-
cants did not possess the experience and training that the posi-
tions required. Rather, the sole relevant evidence on the record
as a whole, i.e., the applications forms themselves as well as
Carsel’s comments to Stewart on June 30, 1997,7 indicate that
the alleged discriminatees were qualified for the positions Re-
spondent was filling. They were journeymen union carpenters,
according to Carsel’s statement to Stewart, and they listed ex-
perience in carpentry on their applications.
Stewart testified that although he hired some employees
shortly after June 30, 1997, in his view, the employees he hired
were better qualified than the alleged discriminatees. Stewart
testified that he did not eliminate any of the alleged discrimina-
tees because they did not list personal references or provide
dates for their prior employment.
Respondent’s evidence, as set forth in Appendix D, indicates
that one of those hired, Dave Archer, was a prior employee of
Respondent’s. Six employees, Miguel Argaez, Enrique Cen,
Vladimir Herrera, Fabian S. Rivero, Miguel Varguez, and Mi-
guel Garcia, were well known to Respondent for their drywall
work as subcontractors for Stewart on other projects. Byron
Self, an eighth employee hired during the relevant period, was
highly recommended as an excellent drywall employee by em-
ployees of Respondent. Respondent had been trying to hire Self
for some time prior to June 30, 1997. I conclude that these eight
applicants were superior applicants to the alleged discrimina-
tees.
As to Archer, Respondent was familiar with his work during
his prior tenure with Respondent. Archer was a known prior
employee with a work history of which Respondent had
first-hand knowledge. Similarly, Argaez, Cen, Herrera, Rivero,
Varguez, and Garcia worked since 1996 hanging drywall for
Stewart as subcontractors in apartment buildings. It must be
inferred from the record as a whole, that Stewart was able to
assess their steady drywall work through this employment rela-
tionship. These six employees had been working steadily in
drywall for at least 1 year prior to Respondent’s hiring them.
Finally, as to Self, Stewart’s testimony establishes that Self
came highly recommended specifically for his expertise in
drywall. Based upon these qualifications which are specific to
drywall, the work which Respondent was performing at the
time, I find these applicants superior to the alleged discrimina-
tees. This is not to take away from the excellent qualifications
of the alleged discriminatees who, according to Carsel, were
journeymen carpenters. There can be no doubt that these appli-
cants possessed substantial training and experience and could
have performed the drywall work. However, because the eight
who were hired had immediate, observed, steady drywall em-

7 Testimony regarding the qualifications of each applicant was elic-
ited from Carsel. However, there is no evidence that Carsel’s assess-
ments of each applicant were provided to Respondent as part of the
hiring process. Accordingly, I have disregarded this information as
irrelevant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD992
ployment, I find that they were superior applicants.
Two others who were hired without benefit of uniform appli-
cation of Respondent’s hiring criteria did not have superior
qualifications or past known job experience with Respondent
and were not well known to Respondent for their drywall ex-
pertise or experience. These two are Greg and Steve Rucker.
Stewart acknowledged that Greg Rucker worked as a superin-
tendent from 1992 to 1997 at National Specialties, where com-
monly superintendents did not work with their tools. Stewart
testified that Greg Rucker stated during his interview that he
had been using his tools to complete a project. However, this
does not convince me that he had superior qualifications to
those of the applicants. Steve Rucker had no experience in
drywall. As to those vacancies, Respondent has not shown that
it would not have hired the alleged discriminates because they
did not possess the specific qualifications for the positions even
in the absence of their union support or affiliation. A compli-
ance proceeding may be utilized to determine which of the
alleged discriminatees would have been hired for those two
vacancies. FES, 331 NLRB 9, 14 (2000).8
G. Respondent Excluded the Applicants from the Hiring Proc-
ess and Antiunion Animus Contributed to the Decision not to
Consider the Applicants for Employment
In my prior decision, I found that Respondent excluded the
alleged discriminatees from the hiring process and that anti-
union animus contributed to the decision not to consider them
in the hiring process. It is undisputed that during that time,
other employees were hired who did not complete job applica-
tions. It is also undisputed that Stewart told the applicants it
would take him 2 weeks to get back to them. After considera-
tion of the factors outlined above, I find no reason to alter my
conclusion that Respondent excluded the applicants from the
hiring process and antiunion animus contributed to the decision
not to consider the applicants for employment.9
CONCLUSIONS OF LAW
1. By discriminatorily refusing to hire two of the alleged dis-
criminatees, Respondent has violated Section 8(a)(1) and (3) of
the Act within the meaning of Section 2(6) and (7) of the Act.
2. By discriminatorily refusing to consider the ten alleged
discriminatees for employment, Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-

8 Respondent’s motion to reopen the record on remand to receive
evidence regarding “unconditional” offers of instatement made to each
of the alleged discriminatees between the period August 12 to Septem-
ber 15, 1998, is denied. Such offers are not relevant at this stage of the
proceedings.
9 In Sommer Awning Co., 332 NLRB 1318, 1319 fn. 4 (2000), the
Board found it unnecessary to decide the merits of a refusal-to-consider
violation because the remedy for such a violation was subsumed within
the broader remedy of the refusal-to-hire violation. This observation
would appear to be accurate in the particular facts of that case—where
there were not more applicants than there were available openings.
ate the policies of the Act.
Having discriminatorily failed to hire two of the alleged dis-
criminatees, Respondent shall cease and desist and offer the
discriminatees instatement to the positions to which they ap-
plied or, if those positions no longer exist, to substantially
equivalent positions, and make them whole for losses sustained
by reason of the discrimination against them. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). This order is subject to the
compliance stage to determine which of the ten alleged dis-
criminates would have filled the two vacancies.
Having failed to consider for hire the 10 alleged discrimina-
tees, Respondent shall cease and desist and place the discrimi-
natees in the position they would have been in, absent discrimi-
nation, for consideration for future openings, to consider them
for the openings in accord with nondiscriminatory criteria, and
notify the discriminatees, the Union, and the Regional Director
for Region 17 of future openings in positions for which the
discriminatees applied or substantially equivalent positions.
Because the number of applicants is greater than the number of
available openings, if job openings occur after the beginning of
the hearing, the General Counsel must initiate a compliance
proceeding to determine whether the remaining discriminates
would have been selected in the absence of Respondent’s dis-
criminatory failure to consider them.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, Exceptional Professional, Inc. d/b/a EPI
Construction, Nixa, Missouri, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discriminatorily failing to hire employees because of
their union activity or membership.
(b) Discriminatorily failing to consider for hire applicants
because of their union activity or membership.
(c) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Offer instatement to two alleged discriminates, whose
identity is to be determined in the compliance stage of this pro-
ceeding, to the positions to which they applied or, if those posi-
tions no longer exist, to substantially equivalent positions and
make them whole for any loss of earnings and other benefits
sustained by reason of the discrimination against them, in the
manner set forth in the remedy section.
(b) Consider on a nondiscriminatory basis the remaining dis-
criminates for future job openings that arise subsequent to the
beginning of the hearing and notify the discriminates, the Un-

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
EPI CONSTRUCTION 993
ion, and the Regional Director for Region 17 of such openings
in positions or substantially equivalent positions for which the
discriminates applied, in the manner set forth in the remedy
section.
(c) Remove from its files any reference to unlawful refusal to
hire two discriminatees, whose identity is to be determined in
the compliance stage, and notify them in writing that this has
been done and that the refusal to hire them will not be used
against them in any way.
(d) Remove from its files any reference to unlawful refusal
to consider for employment the remaining discriminatees,
whose identity is to be determined in the compliance stage, and
notify them in writing that this has been done and that the re-
fusal to consider them will not be used against them in any
way.
(e) Preserve and, within 14 days of a request, provide at the
office designated by the Board or its agents, a copy of all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the
terms of this Order. If requested, the originals of such records
shall be provided to the Board or its agents in the same manner.
(f) Within 14 days after service by the Region, post at its
place of business in Nixa, Missouri, copies of the attached no-
tice marked “Appendix E.”11 Copies of the Notice, on forms
provided by the Regional Director for Region 17, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that the notices are not al-
tered, defaced, or covered by any other material. In the event,
during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since June 30, 1997.
(g) Wthin 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.
APPENDIX A
ORDER ON REMAND
On September 28, 2001, this case was remanded “for further
consideration [regarding] the complaint allegation that the Re-
spondent unlawfully refused to consider for hire or to hire 10
applicants. . . .”1 Specifically, the Board noted that on May 11,
2000, it issued FES 331 NLRB 9, setting forth a framework for

11 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.”
1 EPI Construction, 336 NLRB 234 (2001).
analysis of refusal-to-hire and refusal-to-consider allegations.
The instructions on remand continued:
We have decided to remand this case to the judge for further
consideration in light of FES, including, but not limited to de-
termination of: (1) whether there were available openings at
the time that the alleged discrimination occurred; (2) the
number of such available openings; and (3) whether the appli-
cants had training and/or experience relevant to the an-
nounced or generally known requirements of the openings
and whether those requirements were not uniformly adhered
to or were either pretextual or pretextually applied. The judge
may, if necessary, reopen the record to obtain evidence re-
quired to decide the case under the FES framework.2
Thereafter, all parties participated in a conference call held
on November 9, 2001, to discuss procedures on remand. Coun-
sel for the General Counsel asserted that the record made in
November 1997 and March 1998 was sufficient and there was
no need to reopen the record to receive further evidence. Coun-
sel for the Charging Party stated that he agreed with counsel for
the General Counsel regarding the basic elements of FES.
However, he had some concern that the remedy of instatement
and backpay, sought by the General Counsel, might require
further evidence to the extent General Counsel sought a remedy
based on openings arising after the trial on the merits had be-
gun.3 Counsel for Respondent opined that there was no need to
reopen the record because “it would not do us any good under
the circumstances.” This comment was made in the context of
counsel’s argument that undisputed evidence introduced by
Respondent at the initial trial on the merits had been ignored.
Based upon the positions of the parties as well as the holding
in FES and the terms of the Board’s remand herein, I have de-
termined that the record is sufficient to decide the case under
the FES framework. Briefs on remand shall be submitted on
Friday, December 14, 2001. To the extent the parties disagree
with my decision not to reopen the record, they are instructed to
brief that issue, specifically setting forth what evidence they
would seek to introduce were the record reopened.
APPENDIX B
Between June 30, 1997, and the end of the payroll period of
July 7 to July 13, 1997, 17 new names appeared on Respon-
dent’s payroll. At least 13 of these individuals primarily per-
formed carpentry work? Respondent agrees that the rate of
$17.51 per hour was a journeyman carpenter rate. Respondent
paid its newly hired employees at or near this rate. From this, I
infer that Respondent wanted skilled employees who could
work competently and rapidly.
• Dave Archer first appeared on the payroll during the
period July 7 to July 13. He was compensated at a
rate of $17.51 and worked 47 hours during that pay
period. There is no application form in evidence for
Archer.
• Miguel Argaez first appeared on the payroll during the

2 EPI Construction supra at 235.
3 See FES, supra at 239.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD994
period July 7 to July 13. Respondent asserts that he was
hired on June 30, 1997, as a helper at $10 per hour. How-
ever, the payroll indicates that Argaez started at a rate of
$16.05 and worked 38 hours that pay period. Respondent
contends that Argaez, Cen, Herrera, Rivero, Varrguez,
and Garcia were "hired" long before June 30, 1997, when
the alleged discriminatees applied for work. However,
there is no evidence that this is so. Respondent relies on a
date in April 1997 when Gabriel May was hired. How-
ever, Stewart was unable to tie the hiring of these six em-
ployees to the date when May was hired, sometime in
April. These employees all began working during the
week of July 7 or later. I find that the dates which they
appeared on the payroll are much more reliable than the
dates in other documents generated by Respondent. There
are no applications for these employees. Stewart's vague
testimony regarding plans to hire them predating June 30,
1997, was unpersuasive. Accordingly, I conclude these
six individuals were hired after June 30, 1997.
• Enrique Cen first appeared on the payroll during the pe-
riod July 7 to July 13. He is listed as starting at a rate of
$16.05 and working 16 hours during that pay period.
• Quinten Carter, Sebastian Carter, Ted Carter, and Robert
Carter first appeared on the payroll during the period July
7 to July 13, 1997. According to Respondent, the four
Carters were hired on June 30, 1997, as journeyman plas-
terers. They spent about 10 to 20 percent of their time per-
forming interior framing, which is carpentry work.
• Vladimir Herrara (sometimes listed as Vladimir, H.) first
appeared on the payroll during the period July 7 to July
13. He is listed as starting at a rate of $16.05 and working
40 hours during that pay period.
• Fabian. S. Rivero is listed as beginning employment dur-
ing the period July 7 to July 13, 1997, at a rate of $18.32
and working 32 hours on each of two different projects
during that pay period.
• Greg and Steve Rucker dated their applications for work
June 3, 1997. Respondent’s set up sheets for new employ-
ees to list their date of hire as June 30, 1997. I discredit
both the date of application and the date of hire on these
documents as unreliable and inconsistent with a full read-
ing of these individuals' applications. Thus, Greg Rucker
stated that he worked for National Specialties from De-
cember 1992 until July 1997. Under reason for leaving, he
stated, “came to work here!” Steve Rucker stated that he
worked for National Specialities until July 1997. Both in-
dividuals first worked during the payroll period July 7 to
13, 1997. Greg Rucker’s starting rate of pay was $17.32.
Steve Rucker’s starting rate of pay was $15.40. Both per-
formed carpentry work for Respondent. I find these indi-
viduals were hired after June 30, 1997.
• Miquel Varguez first showed up as an employee during
pay period July 7 to July 13, 1997, at a rate of $16.05
working 15 hours.
• M. Williams began working during pay period July 7 to
July 13, 1997, at a rate of $15.18 for 40 hours. Respon-
dent contends that the record indicates that Williams was
hired prior to June 30, 1997. In fact, Williams’ employee
set up sheet shows a hire date of June 25, 1997. His appli-
cation for employment is dated June 1, 1997, on the front
and July 1, 1997 by his signature. The front date, “June 1,
1997” shows clear tampering or rewriting. Williams’ 1-9
form is also dated July 1, 1997. For these reasons, I find
that the date when Williams actually began working is
more reliable. I discredit these other dates and find that
Respondent hired Williams in July 1997.
New employees continued to arrive. For instance, during
payroll period July 14 to July 20, 1997,
• Jonathan T. Hackenberg, who submitted an employment
application on July 3, 1997,2 first worked during payroll
period July 14 to July 20, 1997. Hackenberg is listed at a
rate of $18.32 per hour and worked 46 hours during that
pay period.
• Danny Joiner first appeared on the payroll during the pe-
riod July 14 through 20, 1997, at a rate of $16.05, work-
ing 16 hours.
• Miguel Garcia appeared on the payroll during the period
July 14 through 20, 1997, at a rate of $16.05 and worked
58 hours.
During payroll period July 21 to 27, 1997, Byron Self first
appeared at a rate of $17.51, working 37 hours.
APPENDIX C
Alleged discriminatee James D. Carsel applied for any posi-
tion starting anytime with “salary desired,” an open issue. He
noted his special skills as carpentry and union organizing and
listed his trade school as Carpenters #311. Carsel listed his job
experience from 1986 to 1990 with R. E. Smith Construction;
from 1990 to 1995 with Dalton Killinger Construction; and
from 1995 to 1997 as an organizer with the Union. He listed
two personal references. Although Carsel’s carpentry and gen-
eral drywall experience was not recent, in that he had either
been a superientendent (1986–1995) or a union organizer
(1995–1997), Carsel had the training and experience relevant to
the generally known requirements.
Larry Dale Collinsworth, alleged discriminatee, stated on his
application that he wanted a job as a carpenter, was available
immediately, and would work for Respondent’s wages. He
listed vocational—technical training for 2 years in a machine
shop and listed special skills as, “all phases of construction.”
His job history showed fairly steady employment work in the
construction industry including the Joplin, Missouri Sears pro-
jects and work for Dalton Killinger, a well-known union gen-
eral contractor. He listed three personal references.
Alleged discriminatee Roger A. Hensley applied with Re-
spondent stating that he would perform any position and could
start immediately. He listed his skills and training as a carpenter
noting that he had atteneded for 4 years and graduated from
“Union Apprentice Classes.” Hensley listed three jobs of 5 to 8

2 Hackenberg’s credited testimony that he was instructed to predate
his employment application has been taken into consideration. Accord-
ingly, although the application is dated June 25, 1997, Hackenberg
testified that he submitted the application on July 3, 1997.
EPI CONSTRUCTION 995
months duration in 1993, 1995 and 1996.1 He did not list any
personal references.
Bob Dale Hurn applied for carpentry work immediately, not-
ing that he was referred by the Union. He listed only “carpen-
try” in the special skills section. His employment history was
very stable. He listed jobs as a carpenter and as a framer and he
listed three personal references.
Alleged discriminatee John P. Duncan completed Respon-
dent's employment application on June 30, 1997, stating that he
was interested in “Sheetrock Metal Stud” and could begin the
following day. He stated that he was a journeyman carpenter
with special skills in other specific areas. He listed two past
jobs, “Freesen Corp. III” from January to July 1996 and
“Danan Corp. Penn” from July to October 1996. Duncan listed
a general contractor, a mechanic, and a carpenter as his refer-
ences. All lived in the southwest Missouri area. Danan built the
Sears store at the Joplin, Missouri Mall. Freesen worked on the
Highway 71 bridge project—a series of seven bridges in south-
west Missouri.
Thomas Earl McFarland applied for “Carpenter any work”
immediately for prevailing wage or your carpenters’ wages. He
listed special skills in tiling and he filled in the names of four
companies with no dates indicated in which he worked as an
installer. He listed three personal references. His work as an
“installer” with special skills in tile and metal would not neces-
sarily rule out general carpentry work, especially if he installed
the drywall upon which he installed tile. In any event, among
the undated list of employers, including Superior Tile, Zichel,
and Fred & Tom’s Flooring, another employer, Interior Con-
struction, appears. McFarland listed his position with Interior
Construction as an installer. Any ambiguities in McFarland’s
application could have been resolved with a personal interview.
However, Respondent did not afford the alleged discriminatees
interviews.
Mike F. Joyce applied for a job as a carpenter stating that he
could start immediately. His special skills listed on the applica-
tion were drywall-studs-concrete work and forms. He com-
pleted the application showing fairly steady employment and
gave three personal references.
The application of Shelley Rose Williams indicated that she
desired carpentry work. She was available immediately and
would work at Respondent’s wages. Special skills were listed
as carpentry and drywall. Four past jobs were listed. Respon-
dent’s notes on the application indicate that one of the jobs was
a drywall job and one was forms. Three personal references are
listed.
Alleged discriminatee Steven Paul Wilson applied for a posi-
tion with Respondent as a carpenter to start immediately at a
negotiable salary rate. He listed special skills as “layout &
trim.” He also noted that he had studied civil engineering by
correspondence at a community college. Wilson listed three
jobs in 1996 and 1997, all left because the jobs were finished,
in which he performed as a trim carpenter or millwright. Wil-
son listed three personal references.
Alleged discriminatee Matthew Allen Rausch completed his

1 These were Dannon Services (Sears), Artisan Construction, and
Midwest Interiors.
application for the position of carpenter noting that he could
begin work that day and would like $15.28 per hour. He stated
he was referred by Union Local #978 and completed 4 years of
carpentry trade school. His special skills were listed as “metal
stud & sheet rock.” He listed steady employment and two per-
sonal references.
APPENDIX D
Dave Archer began working for Respondent during the pay-
roll period ending July 13 for a rate of $17.51. Respondent did
not require Archer to complete a job application. Stewart ex-
plained that Archer worked for one of Respondent’s subcon-
tractors, Elite Plastering. When Elite ran out of work in 1996,
Stewart hired Archer for a brief time. Archer was rehired in
July 1997 and eventually served as foreman on the Carthage
Humane Society project which Respondent began in the spring
of 1998. Based upon the record, it would appear that Archer
performed as a drywall worker when he began working for
Respondent in July 1997. In any event, Archer was hired based
upon his prior work for one of Respondent’s subcontractors and
for Respondent. There is no evidence that he was hired based
upon a uniform standard or any training relevant to the gener-
ally known requirements of the job. Rather, the evidence indi-
cates he had prior experience with Respondent and was rehired
based upon that prior experience.
Miguel Argaez was hired after the alleged discriminatees ap-
plied for work. Respondent did not have an application for
Argaez. Respondent claimed somewhat conflictingly in papers
prepared for trial that Argaez was either a helper or a drywall
hanger. These documents have been discredited. Stewart ex-
plained that Argaez had worked previously for him on a sub-
contract basis on apartment units hanging drywall. These sub-
contracts were paid on a lump sum or piece rate basis. Argaez
had never been an employee of Respondent’s until he appeared
on the payroll during the period ending July 13. There is no
evidence regarding Argaez’ training. There is no evidence of
personal references or a satisfactory interview. Apparently,
according to Stewart, Argaez had past job experience as a dry-
wall hanger and Stewart was familiar with this experience. The
hiring procedures for Argaez do not indicate that a uniform
standard was applied.
Enrique Cen was hired under the same circumstances as Ar-
gaez. Cen worked for Stewart on a subcontract basis on apart-
ment units. There is no job application for him. Stewart did not
testify what Cen’s experience was except to say that he was one
of the subcontractors on the drywall hanging. I find, as with
Argaez, that the hiring procedures were not uniformly applied
with regard to Cen.
Vladimir Herrera first appeared on the payroll during the pe-
riod ending July 13, 1997. Herrera did not complete an em-
ployment application. Stewart testified that Herrera was hired
under the same circumstances as Argaez and Cen, in that
Herrera worked on the apartment complex subcontracts. There
is no other evidence regarding Herrera’s experience, training,
qualifications, work history, or personal references. There is no
indication that he was interviewed. I find that the hiring proce-
dures were not uniformly applied with regard to Herrera.
Fabian S. Rivero first appeared on the payroll during the pe-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD996
riod ending July 13, 1997. Rivero did not complete an em-
ployment application. Stewart testified that Rivero was a sub-
contractor, a sheet rock hanger. There is no evidence regarding
his experience, qualifications, training, work history, personal
reference or interview. I find that the hiring procedures were
not uniformly applied with regard to Rivero.
Four individuals named Rucker worked for Respondent dur-
ing the relevant time period. Two of these individuals, Randy
Rucker and Joe Rucker, were employees of Respondent as
early as pay period May 25 to June 1, 1997. Accordingly, their
hiring is not at issue herein. However, Greg and Steve Rucker
first began working for Respondent during pay period July 7 to
13, 1997.
Greg and Steve Rucker dated their employment applications
June 3, 1997. As earlier noted, I find that Greg Rucker’s appli-
cation could not have been submitted on June 3, 1997, as dated,
because it indicates that Greg Rucker left his prior job in July
1997 and “came to work here!” Similarly, I find that Steve
Rucker’s application could not have been submitted on June 3,
1997, as dated, because it indicates that Steve Rucker left his
prior job in July 1997 while at the same time indicating that he
could start work for Respondent “now.”
The Ruckers’ applications contain such internal inconsisten-
cies regarding the date they completed the applications, that I
find it more likely that they completed their applications in
early July 1997 just as Hackenberg did. Respondent asserts that
in my prior decision I made a specific finding that Greg and
Steve Rucker applied for work on June 3, 1997.1 It is true that I
made specific findings that their applications were dated June
3, 1997. However, this does not preclude further consideration
of the internal inconsistencies which lead me to discredit that
date of application.
Greg Rucker’s employment application indicates that he at-
tended 1 year of building trades classes in high school. For
special skills, he listed that he built a house. His prior job was
as a superintendent for National Specialties for 8 years. He
listed drywall and carpentry experience in 1991 and 1992. Greg
Rucker’s application indicated steady employment. Three per-
sonal references were listed. Greg Rucker’s drywall experience
was somewhat dated and his training was minimal. Respondent
did not uniformly apply its stated hiring criteria in hiring Greg
Rucker.
Stewart acknowledged that Steve Rucker had absolutely no
drywall experience. In fact, Steve Rucker’s application indi-
cated that he had previously worked as a cook for Sonic and
then as a laborer for National Specialties. Steve Rucker listed
three personal references. In any event, as to lack of relevant
experience, Stewart testified,
He [Steve Rucker] was getting ready to go into the military
and he [Greg Rucker, Steve’s uncle] said he [Steve Rucker]
would like to work for about two months, period, and that he
[Greg Rucker] could try to get a lot of work out of him [Steve
Rucker], but he [Steve Rucker] was a good hard worker and

1 Respondent cites p. 15, L. 10 (“His [Greg Rucker’s] most recent
experience was listed on his June 3 application as job superintendent.”)
and p. 15, L. 14 (Steve Rucker also applied on June 3 and began work-
ing during the July 7 payroll period.)
he [Greg Rucker] worked directly with him [Steve Rucker].
And I took Randy [Rucker—Steve’s father] and Greg’s vouch
that they would try to get it for him [Steve Rucker] and
that’s--I basically hired him [Steve Rucker] because him
[Steve Rucker] being his [Randy Rucker’s] son and [Greg
Rucker’s] nephew.
With regard to Steve Rucker, there can be no doubt that Re-
spondent did not adhere to its hiring criteria.
Miguel Varguez (spelled on payroll records as Vargus) first
appeared on the payroll during the period ending July 13, 1997.
Varguez did not complete an employment application. Stewart
testified that Varguez was a subcontractor, a sheet rock hanger,
“He’s one of the subs that Raphael and Fabian [Rivero] was in
charge of, one of the individuals.” There is no evidence regard-
ing Varguez’ experience, qualifications, training, work history,
personal reference or interview. I find that the hiring proce-
dures were not uniformly applied with regard to Varguez.
Michael Williams dated his employment application June 1,
1997, but signed it on July 1, 1997. Williams first appeared on
Respondent’s payroll during the period ending July 13, 1997. I
find that the application was submitted no earlier than July 1,
1997. Williams applied to be a “Carpenter Apprentice,” with
“open” salary desired and immediate availability. He listed
special studies or research work as carpentry, drywall. Williams
listed steady employment as a carpenter and laborer with Mid-
west Drywall (November 1996 to July 1997), Image Building
(March to October 1996), and T & K Construction. He listed
three personal references. Stewart testified,
Well, I would have talked to him, he—Ron East, he was a
close friend to him and Ron vouched for him and I looked
through it, but I don’t think I specifically saw that he had been
working drywall on all the deals and Ron said he worked with
him extensively.
Williams’ pay ($17.51 per hour) indicates he was hired as a
journeyman carpenter. There is application and interview evi-
dence regarding Williams’ specific drywall experience. I find
that the hiring procedures were uniformly applied with regard
to Williams. I also note that his personal reference, Ron East,
“vouched” for him.
Jonathan T. Hackenberg first appeared on Respondent’s pay-
roll for the period July 14 to 20, 1997, earning in excess of
journeyman carpenter rates. Hackenberg submitted his em-
ployment application on July 3, 1997, indicating experience in
the construction industry without dates. He listed three personal
references. Hackenberg testified that he had contacted Respon-
dent throughout the year and one-half prior to July 1997 at-
tempting to get hired. He was interviewed by Stewart on July 3,
1997, and hired thereafter.
As Stewart explained,
He had contacted me numerous times over the previous year
or year and a half prior. At two or three different locations,
he’d come on about getting jobs and at the times we weren’t
hiring or just missed him and he was always working, he
worked mostly for Doug Wilson, which I knew Doug. And
he’d always kept busy and it always seemed to be wrong—
whenever he was busy with Doug, I was busy too or vice
EPI CONSTRUCTION 997
versa, so, I never did end up offering him a job until he come
in and said he was off and then he filled out an application
and he—you know, had been currently employed and I said—
he has very good qualifications, been always working steady
at drywall and Doug Wlson gave a real high recommendation.
He’d always—even Doug stated, he was kept to the last on a
job, which that’s always your best guys, to the last two or
three people on the job when you’re closing it out to finish it.
I find that Respondent utilized its hiring procedures, as outlined
by Stewart, on a uniform basis with regard to Hackenberg.
Danny Joiner completed an employment application for Re-
spondent on July 14, 1997, and first appeared on the payroll
during the period July 13–20, 1997. Joiner was sent by the Un-
ion to apply for a job as a covert salt. He did not list any union
affiliations. He listed welding as a special skill, indicated steady
employment in drywall and carpentry and listed three personal
references. Joiner was interviewed by Stewart, who testified,
Danny came in and—he was a friend that had worked around
Ron East for quite some time and Danny came in, I talked to
him at length, filled out an application. He basically, had
really good qualifications, he’d been working at that time and
he was—he’d just finished doing a project and was available
right then and he said he might have something come up and I
said I’d try to put him on over at the other job.
I find that Respondent utilized its hiring procedures, as outlined
by Stewart, on a uniform basis with regard to Joiner.
Miguel Garcia began working for Respondent during payroll
period July 13–20, 1997. Respondent did not have an applica-
tion for Garcia. Stewart explained that Garcia worked with
Argaez and Varguez on a subcontract basis on apartment units.
These subcontracts were paid on a lump sum or piece rate ba-
sis. Garcia had never been an employee of Respondent’s until
he appeared on the payroll during the period ending July 13.
There is no evidence regarding his qualifications, personal ref-
erences, work history, or interview. Apparently, according to
Stewart, Garcia had past job experience as a drywall hanger and
Stewart was familiar with his work. The hiring procedures for
Garcia do not indicate that a uniform standard was applied.
During payroll period July 21–27, 1997, Byron Self began
working. Self was referred to Respondent by the Union as a
covert salt. His employment application, dated February 21,
1997, showed no special skills and minimal job experience
without dates. He listed three personal references. Stewart testi-
fied,
And Steve and Carl, two of the guys that are still with me,
worked with him down there and said he was very good. As a
matter of fact, I’d tried to get him over the last year, three or
four other times. He’d been doing work on the road and I was
never able to connect with him, but he knew that I was trying
to get him to go to work back for me at some point and he’d
come back in. And of course, those guys—and I worked
down there with the guys then and knew that he was a real
good hand and so, I hired him.
I find that Respondent did not utilize its standard hiring proce-
dures with regard to Self.