FES (A Division of Thermo Power)

National Labor Relations Board - Board Decisions

May 11, 2000

331 N.L.R.B. 9 (N.L.R.B. 2000)

FES 9
FES (a Division of Thermo Power) and Plumbers and
Pipefitters Local 520 of the United Association.
Case 5–CA–26276
May 11, 2000
DECISION AND ORDER REMANDING
BY CHAIRMAN TRUESDALE AND MEMBERS
FOX, LIEBMAN, HURTGEN, AND BRAME
The question presented by this case is whether the Re-
spondent unlawfully refused to consider for employment
and refused to hire nine applicants because of their union
activity or affiliation.1 The issues raised by the case,
which are largely evidentiary and procedural, go to the
most fundamental rights guaranteed by the Act. Protect-
ing the exercise by workers of full freedom of associa-
tion and self-organization is an express, central policy of
the Act. See NLRA, Section 1. Unquestionably, the
denial to employees of access to the work force because
of their union activity or affiliation runs directly against
this policy. The Board’s treatment of allegations of dis-
criminatory refusals to consider or to hire and its deter-
mination of related remedial issues is a measure of the
Board’s effectiveness in giving substance to the rights it
is charged to protect.
On August 10, 1999, the Board held oral argument in
this case to address questions concerning the treatment of
refusals to consider and refusals to hire applicants for
employment in violation of Section 8(a)(3) of the Act.2
The Board set the following issues for oral argument:
1. What is the appropriate remedy for the finding of a
discriminatory refusal to consider applicants for em-
ployment? What must the General Counsel establish in
the hearing on the merits to obtain such a remedy? What
may appropriately be left to compliance and which party
bears the burden of proof at each stage?
2. What is the appropriate remedy for the finding of a
discriminatory refusal to hire applicants for employment?
What must the General Counsel establish in the hearing
on the merits to obtain such a remedy? What may ap-
propriately be left to compliance and which party bears
the burden of proof at each stage?
The Board also asked the parties to address the follow-
ing cases in connection with these issues: Ultrasystems
Western Constructors v. NLRB, 18 F.3d 251 (4th Cir.
1994); B E & K Construction Co., 321 NLRB 561 (1996),
enf. denied 133 F.3d 1372 (11th Cir. 1997); NLRB v.
Fluor Daniel, Inc., 161 F.3d 953 (6th Cir. 1998); and Star-
con, Inc. v. NLRB, 176 F.3d 948 (7th Cir. 1999).

1 On September 29, 1998, Administrative Law Judge Arthur J. Am-
chan issued the attached decision. The Respondent filed exceptions
and a supporting brief. The General Counsel filed an answering brief.
2 The General Counsel filed a preargument brief. The Charging
Party and the Respondent filed preargument and postargument briefs.
Amicus curiae International Brotherhood of Boilermarkers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers, AFL–CIO (Boilermakers)
filed preargument and postargument briefs. Amici curiae American
Federation of Labor and Congress of Industrial Organizations (AFL–
CIO) and the Building and Construction Trades Department, AFL–CIO
(Building Trades Department) filed joint preargument and postargu-
ment briefs. Amici curiae Associated Builders and Contractors, Inc.
(ABC), the Chamber of Commerce of the United States of America
(Chamber), and Independent Electrical Contractors, Inc. (IDE) also
filed joint preargument and postargument briefs.
The Board has considered the decision and the record
in light of the exceptions3 and briefs, the oral argument,
and the preargument and postargument briefs, and has
decided to affirm the judge’s finding that the Respondent
unlawfully refused to consider nine union applicants for
employment, but to remand this proceeding to the judge
for further hearing concerning the discriminatory refusal-
to-hire allegations.
I. BACKGROUND
In Fluor Daniel, Inc., 311 NLRB 498 (1993), the ad-
ministrative law judge found that the respondent violated
Section 8(a)(3) by discriminatorily refusing to hire ap-
proximately 50 applicants who were volunteer union
organizers. The respondent excepted, inter alia, to the
judge’s denial of its motion to require the General Coun-
sel to specify the job positions that the respondent alleg-
edly had unlawfully filled. The Board, however, adopted
the judge’s recommendations. It ordered the respondent
to offer the discriminatees instatement4 to positions for
which they applied and deferred to the compliance stage
the issue of whether appropriate job openings were avail-
able. The Court of Appeals for the Sixth Circuit refused
to enforce the Board’s order, disagreeing with the
Board’s analysis of refusal-to-hire cases. NLRB v. Fluor
Daniel, supra, 161 F.3d 953. The court stated that there
are two elements to an 8(a)(3) violation: antiunion ani-
mus and the occurrence of an action covered by the Act
such as a discharge or failure to hire. The court con-
3 The Respondent argues that the General Counsel and the Charging
Party are precluded under the Board’s Rules and Regulations from
arguing that the Respondent discriminatorily refused to hire union
applicants because they did not file exceptions to the judge’s failure to
find a discriminatory refusal-to-hire violation. We find no merit in this
argument. The judge deferred the refusal-to-hire issue to the compli-
ance stage for resolution. Thus, the judge recommended in the remedy
section of his decision that the Respondent provide backpay to those
whom it would have hired but for its unlawful conduct, with the deter-
mination to be made in compliance if the Respondent would have hired
any of the nine discriminatees. Because the General Counsel and
Charging Party prevailed on the merits of the discriminatory refusal-to-
consider allegation, and the refusal-to-hire issue was expressly reserved
for the compliance stage, we find that Sec. 102.46(b)(2) of the Board’s
Rules and Regulations, providing that any exception not urged shall be
deemed to have been waived, does not preclude consideration of the
refusal-to-hire allegation. See Pay Less Drug Stores Northwest, 312
NLRB 972 (1993) (where the judge found in favor of the General
Counsel on one of his theories, he was not required to file exceptions to
preserve another theory of liability advanced at the hearing), enf. de-
nied on other grounds 57 F.3d 1077 (9th Cir. 1995).
4 Because our decision addresses remedies for applicants for em-
ployment, we have used the term “instatement” (rather than the more
familiar term “reinstatement”). An “instatement” remedy requires an
employer to offer the discriminatees employment in the positions for
which they applied or, if those positions no longer exist, to substantially
equivalent positions.
331 NLRB No. 20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10
cluded that if an employer has no job openings, there can
be no 8(a)(3) violation because no action covered by the
statute has taken place. In short, there is no action “in
regard to hire” as required by Section 8(a)(3). Conse-
quently, the court found that the General Counsel must
prove that there was an actual failure to hire to establish a
refusal-to-hire violation. To do so, the General Counsel
must match qualified applicants with available jobs as an
element of his prima facie case. This must be done at the
hearing on the merits where the respondent has the op-
portunity to meet its burden of showing that it would
have made the same hiring decisions even in the absence
of union activity or affiliation. The court disagreed with
the Board’s deferral of job matching to the compliance
stage. “Determining the scope of an employer’s liability
in compliance proceedings seems to us counterintuitive,
even backwards. Compliance proceedings are better
focused upon remedial questions.” Id. at 970.
In Ultrasystems Western Constructors, 310 NLRB 545
(1993), the Board found that the respondent violated Sec-
tion 8(a)(3) by maintaining a hiring policy which
screened job applicants to discover suspected union
sympathizers and by refusing to consider 66 applicants
because of their union sympathies. No findings were
made about how many jobs were available and how
many would have been filled by union applicants in the
absence of discrimination. Although the administrative
law judge’s recommended order directed the respondent
to make whole only those applicants who may have suf-
fered losses by reason of the discriminatory refusal to
consider them, the Board modified this order to direct
backpay to all 66 applicants and instatement in positions
for which they applied. On review, the Court of Appeals
for the Fourth Circuit agreed with the Board that the re-
spondent had discriminatorily refused to consider the 66
applicants. Ultrasystems Western Constructors v. NLRB,
supra, 18 F.3d 251. The court, however, held that the
Board exceeded its remedial powers by ordering backpay
and instatement for all the discriminatees without regard
to the availability of jobs. Id. at 259. The court observed
that if there were only 10 openings, it would go beyond
remedying the discrimination to order instatement of 66
applicants with backpay. The court held:
The Board could neutralize the discrimination in
screening by ordering consideration of the 66 appli-
cants in some preferential manner on later jobs. And
perhaps it also could order reinstatement with backpay
for those found, in a compliance proceeding, to have
been denied actual positions. Thus, a refusal to con-
sider begets a remedy that the employer must consider,
and when the refusal to consider also results in an ac-
tual refusal to hire, the refusal begets the remedy that
the employer must hire those applicants who otherwise
would have been hired. Id.
On remand, the Board directed that it be determined in
compliance whether the respondent would have hired
any of the applicants but for its unlawful refusal to con-
sider their applications, and that those for whom such
findings were made be offered immediate instatement
and backpay. 316 NLRB 1243, 1244 fn. 7 (1995).
In subsequent cases, the Board followed the approach
taken in its decision on remand in Ultrasystems Western
Constructors. For example, in B E & K, supra, 321
NLRB 561, the Board found that there were seven appli-
cants who were discriminatorily refused consideration
for employment at a time when no job openings existed
for them. The Board ordered that if the General Counsel
showed in compliance that nondiscriminatory considera-
tion would have resulted in the hiring of the seven appli-
cants into positions equivalent to those for which they
applied that became available subsequent to their
applications, the discriminatees were to be offered
backpay and instatement in current equivalent jobs.5

The Board followed the Ultrasystems Western Con-
structors approach again in Starcon, Inc., 323 NLRB 977
(1997). In that case, the Board found that the Respon-
dent violated Section 8(a)(3) by “refusing to hire or even
consider” 80 applicants because of their intent to organ-
ize the Respondent’s work force. Id. at 982. The Board
ordered instatement and backpay for all 80 applicants
and deferred to the compliance stage questions concern-
ing the number of jobs that would have been available
during the period of the discriminatory conduct. On re-
view, the Seventh Circuit agreed with the Sixth Circuit in
Fluor Daniel to the extent that it held that the employer
must be allowed to show at the hearing on the merits that
it would not have hired the discriminatees even in the
absence of their union activity or affiliation. Starcon, Inc.
v. NLRB, supra, 176 F.3d at 951. It disagreed, however,
with the Sixth’s Circuit’s requirement that the General
Counsel match qualified applicants with job openings as
an element of his prima facie case for a refusal to hire
violation. Instead, it held that the General Counsel must
“at a minimum” establish in the unfair labor practice
proceeding the number of union supporters who would
have been hired had the respondent “not been actuated by
hostility to unionization” (and it stated that the number
could be as low as one). 176 F.3d at 951–952. It implied
that establishing which particular applicants would have
obtained which of the discriminatorily withheld jobs
could be determined in compliance. The court agreed
that there was substantial evidence of hiring violations,
but because the General Counsel had not shown how
many applicants had been the victims of a discriminatory
refusal to hire, the court enforced only the cease-and-
5 On review, the Eleventh Circuit did not reach this remedial issue as
it found that substantial evidence did not support the Board’s finding of
a discriminatory practice. 133 F.3d 1372.
FES 11
desist provision of the order and denied enforcement of
the affirmative relief provisions.
II. POSITION OF THE PARTIES AND AMICI
CURIAE
A. The General Counsel’s Position
The General Counsel proposes that the Board adopt a
new framework for analyzing cases of discriminatory
refusals to consider or to hire applicants for employment.
In cases where hiring has taken place, the General Coun-
sel proposes no change from current Board precedent.
However, in cases alleging a refusal to consider where no
hiring has taken place, the General Counsel urges depar-
ture from the approach taken in B E & K Construction,
supra, where the Board, having found a discriminatory
refusal to consider, ordered that the General Counsel be
allowed in compliance to show that subsequent job open-
ings occurred and that the discriminatees would have
been hired for those openings but for the unlawful con-
duct. The General Counsel contends that this approach
amounts to the litigation of an unfair labor practice alle-
gation at the compliance stage. He proposes, instead,
that if a discriminatory refusal to consider has been es-
tablished and no hiring has taken place, the remedy
should be limited to a cease-and-desist order and an or-
der to consider the discriminatees and to hire them if they
meet the employer’s nondiscriminatory standard. Where
subsequent job openings arise, the General Counsel argues
that the question of whether the openings were filled using
lawful considerations should be the subject of a new
charge alleging an actual refusal to hire the applicant.
B. The Charging Party’s Position
The Charging Party argues that although both refusal-
to-consider and refusal-to-hire allegations are present in
this case, the better course is to analyze the case as a re-
fusal-to-hire violation because there is evidence of actual
hiring. The Charging Party further argues that the Gen-
eral Counsel established that union supporters applied at
the time the Respondent was hiring and that the Respon-
dent did not hire the applicants, in part, because of their
union affiliation or support. In addition, the Respondent
failed to show that it would not have hired the union ap-
plicants regardless of their union affiliation. The Charg-
ing Party contends that the General Counsel has, there-
fore, established a refusal-to-hire violation and that the
Respondent should not be given a second chance at com-
pliance to litigate the hiring issue.
C. The Respondent’s Position
The Respondent urges the Board to adopt the approach
of the Sixth Circuit in NLRB v. Fluor Daniel, Inc., supra,
which requires that to establish a prima facie case of dis-
criminatory refusal to hire, the General Counsel must
show that there was a specific job opening available for
which the applicant was qualified and that antiunion
animus was involved in the decision not to hire the appli-
cant. The Respondent argues that the General Counsel
failed to establish a violation here because he did not
match applicants to available job openings.
D. The Boilermakers’ Position
The Boilermakers urge the Board to find that the quali-
fication of applicants should not be an element in the
General Counsel’s prima facie case for either a refusal-
to-consider or a refusal-to-hire violation. The Boiler-
makers argue that only the employer ultimately possesses
the information about whether an applicant is competent
and meets the requirements for a specific job. It may be
virtually impossible for the General Counsel to deter-
mine the specific qualifications the employer is seeking.
The Boilermakers also argue that where there is a re-
fusal-to-hire allegation, that allegation should be ad-
dressed and resolved in the hearing on the merits. Where
both refusal-to-consider and refusal-to-hire allegations
are involved, the Board should determine whether the
refusal to consider gave rise to a refusal to hire in the
liability phase of the proceeding.
E. The AFL–CIO and Building Trades Department
(AFL–CIO) Position
The AFL–CIO does not urge a departure from the
Board’s current treatment of refusal-to-consider and re-
fusal-to-hire violations. It argues that the Board’s holding
that a discriminatory refusal to consider violates the Act
regardless of the contemporaneous availability of positions
is correct because Section 8(a)(3) reaches beyond the ulti-
mate step of the hiring process and proscribes discrimina-
tion “in regard to hire.” Further, such discrimination is
likely to discourage union members from applying again
when jobs might be available. The AFL–CIO also argues
that compliance is an appropriate stage for determining if
the applicant who was unlawfully refused consideration
would have been hired in the absence of the unlawful con-
duct. It argues that the violation is the refusal to consider
and a subsequent refusal to hire is the harm flowing from
that violation. The AFL–CIO points out that compliance
proceedings afford the parties full due process and are
reviewable in the courts of appeals. Finally, the AFL–CIO
argues that if no jobs are available and an instatement or-
der is therefore not appropriate, the discriminatee should
be granted preferential consideration for any further open-
ing and the employer should be required to give notice to
the discriminatee, the charging party and the General
Counsel, of future openings.
F. ABC, Chamber, and IDE’s Position (ABC)
ABC urges the Board to adopt the reasoning of the
Sixth Circuit in Fluor Daniel that in order to establish a
refusal-to-hire violation, the General Counsel must show
that an employer with antiunion animus has denied spe-
cifically available job openings to each qualified alleged
discriminatee. In this regard, ABC argues that there can
be no violation of Section 8(a)(3) for refusing to consider
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12
applicants, absent actual job openings for which such
applicants would have been hired. It argues that all li-
ability should be determined in the unfair labor practice
proceeding and that compliance proceedings should be
reserved only for the calculation of damages for those
discriminatees who have been proven to have been dis-
criminatorily refused available positions.
III. DISCUSSION AND ANALYSIS
We have given careful consideration to the arguments of
the parties and the amici curiae and to the decisions of the
Courts of Appeals for the Fourth, Sixth, and Seventh Cir-
cuits. We acknowledge that there has been some confu-
sion over the elements of 8(a)(3) violations concerning
refusals to hire and refusals to consider applicants for em-
ployment and the stage at which the employer may present
its defense in these cases. Our decision today is designed
to provide clarification. Through the framework set forth
below, we give guidance to all parties litigating refusal-to-
hire and refusal-to-consider violations by making clear the
elements of the violation, the respective burdens of the
parties, and the stage at which issues are to be litigated.6
A. Elements of a Discriminatory Refusal-to-
Hire Violation
To establish a discriminatory refusal to hire, the Gen-
eral Counsel must, under the allocation of burdens set
forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), first show the following at the hearing on the
merits: (1) that the respondent was hiring, or had con-
crete plans to hire,7 at the time of the alleged unlawful
conduct; (2) that the applicants had experience or train-
ing relevant to the announced or generally known re-
quirements of the positions for hire, or in the alternative,
that the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimination;
and (3) that antiunion animus contributed to the decision
not to hire the applicants.8 Once this is established, the

6 Prior Board cases are overruled to the extent they are inconsistent
with our decision today. In accordance with our usual practice, we
shall apply our new approach not only “to the case in which the issue
arises,” but also “to all pending cases in whatever stage.” Deluxe Metal
Furniture Co., 121 NLRB 995, 1006–1007 (1958).
Our decision does not address affirmative defenses to allegations of
discriminatory refusals to consider or to hire applicants for employment
and does not affect precedent governing such defenses.
7 The General Counsel may establish a discriminatory refusal to hire
even when no hiring takes place if he can show that the employer had
concrete plans to hire and then decided not to hire because applicants
for the job were known union members or supporters. See, e.g., V.R.D.
Decorating, 322 NLRB 546, 551–552 (1996) (employer held to have
discriminatorily refused to hire applicants where employer advertised
for experienced commericial/industrial painters, received applications
from known union members or supporters with experience in commer-
cial and industrial painting, and delayed filling the advertised jobs in
order to avoid making job offers to the union applicants).
8 We do not address the nature of proof necessary to show antiunion
motivation, because that was not an issue in this case. Rather, we ad-
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 positions it was
filling, it is the respondent’s burden to show, at the hear-
ing 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 even in the absence
of their union support or activity. In sum, the issue of
whether the alleged discriminatees would have been
hired but for the discrimination against them must be
litigated at the hearing on the merits.
If the General Counsel meets his burden and the respon-
dent fails to show that it would have made the same hiring
decisions even in the absence of union activity or affiliation,
then a violation of Section 8(a)(3) has been established. The
appropriate remedy for such a violation is a cease-and-desist
order, and an order to offer the discriminatees immediate
instatement to the positions to which they applied or, if
those positions no longer exist, to substantially equivalent
positions, and to make them whole for losses sustained by
reason of the discrimination against them.
This framework for analysis appropriately allocates the
Wright Line burdens in a refusal-to-hire case. Thus, in a
discriminatory discharge case, there generally is no ques-
tion that the alleged discriminatee was in the employer’s
work force. The question centers on why he was re-
moved from the work force. The General Counsel’s bur-
den, therefore, is to show that protected conduct was a
motivating factor in the decision to discharge the alleged
discriminatee. In contrast, the question in a discrimina-
tory hiring case is why the applicant was not taken into
the employer’s work force. That question presupposes
that there were appropriate openings in the employer’s
work force available to the applicant. In a discriminatory
hiring case, therefore, the General Counsel must show
that antiunion animus was a motivating factor in the de-
cision not to hire, and that there was at least one avail-
able opening for the applicant. The showing of an avail-
able opening entails a showing that the applicant had
experience or training relevant to the announced or gen-
erally known requirements of the opening. GM Electrics,
323 NLRB 125, 128 fn. 13 (1997) (the General Counsel
showed availability of jobs for applicants by evidence
that applicants were “journeyman electricians” who ap-
plied for “journeyman electrician” positions).
Our framework for applying Wright Line to discrimi-
natory hiring cases adheres to Board precedent. See,
e.g., GM Electrics, supra, and Casey Electric, 313 NLRB
774 (1994) (noting that the General Counsel established

here to existing law on that issue. Our concurring colleague, Member
Brame, insists upon “direct evidence” of discriminatory motivation. In
most cases where 8(a)(3) violations are found, the conclusion is in-
ferred from all of the circumstances. We know of no case which es-
chews this approach, and we would not abandon it.
FES 13
appropriate openings for applicants and that applicants
for openings of electrician were experienced electri-
cians). We realize, however, that there has been some
confusion over the requirement that the General Counsel
make an initial showing that applicants have experience
or training relevant to the announced or generally known
requirements of the positions for hire. Some of our past
decisions have not included any reference to qualifica-
tions of the applicants in stating the elements of a re-
fusal-to-hire violation. See, e.g., Big E’s Foodland, Inc.,
242 NLRB 963, 968 (1979). We, therefore, clarify that
the General Counsel must make this initial showing.9
The General Counsel’s burden in this regard is limited
to showing that the applicants met the employer’s publicly
announced or generally known requirements of the posi-
tion, to the extent that these facial requirements are based
on nondiscriminatory, objective, and quantifiable em-
ployment criteria. For example, if an employer announces
a position requiring “two years of experience as a licensed
electrician and outstanding skills in wiring,” both objective
and subjective criteria are involved. “Two years of ex-
perience as a licensed electrician” is an objective criterion.
An applicant will know whether he meets that require-
ment. In contrast, “outstanding skills in wiring” is a sub-
jective criterion based on the employer’s judgment of
skills. In such circumstances, the General Counsel meets
his burden by showing that the applicants have 2 years of
experience as a licensed electrician. Proof that the appli-
cant does not meet the wiring skills qualification rests with
the employer. 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. The employer may meet its burden by
proving that the applicants did not have the skills or im-
precise qualifications it was seeking, regardless of their
relevant experience and training, or that others who were
hired had superior qualifications, and that it would not
have hired them for that reason even in the absence of
their union affiliation or support.
Regardless of whether subjective or objective employ-
ment criteria are at issue in the position for which appli-
cants apply, the General Counsel may show, in the alterna-
tive, that the employer did not uniformly adhere to the
announced requirements, or that the requirements were,
themselves, pretextual or pretextually applied. For exam-

9 Our dissenting colleague asserts that we have departed from Wright
Line. However, as discussed above, there has been at least some degree
of inconsistency and confusion in the application of Wright Line to
“refusal-to-hire” cases. In our decision herein, we have simply sought
to eliminate the inconsistency and confusion. Further, in doing so, we
note that there is a difference between a discharge case and a refusal-to-
hire case. In the former, the employee has been performing for the
employer in the job. Thus, he presumptively meets the facial require-
ment for the job. In the latter case, this is not so.
ple, assume that the employer’s announced requirements
for a position of electrician are 2 years’ experience as a
licensed electrician with at least 1 year of experience in
commercial wiring. Assume further that the General
Counsel shows that there are two applicants for this posi-
tion. Applicant A has 2 years of experience as a licensed
electrician, including 1 year of experience in commercial
wiring. Applicant B has 2 years of experience as a li-
censed electrician, including 1 year of experience in resi-
dential wiring, and no experience in commercial wiring.
Assume finally that the General Counsel shows: (1) the
employer decided to hire B because he made a more fa-
vorable impression in the interview, even though A met
the announced requirements and B did not; and (2) the
employer reversed that decision and hired A when it dis-
covered that B was a union supporter. In such a case, the
General Counsel has met his burden on training and ex-
perience because he has made an initial showing that the
announced requirements were applied as a pretext for re-
fusing to hire a union applicant.
Another example of pretext involves the following
scenario. The employer advertises for electricians with 2
years’ experience in commercial wiring. The employer
receives only one application. The applicant, who indi-
cates union affiliation on the application, has completed
an apprenticeship program for electricians working in the
construction industry but has no experience in commer-
cial wiring. The employer hires no one, even though the
record shows that it has an immediate need for electri-
cians.10 Assuming the General Counsel can show anti-
union animus in such a case, he has met his burden on
training and experience by showing that the employee
had relevant or equivalent experience and that the em-
ployer chose to hire no one even though it needed elec-
tricians. In other words, the General Counsel has made a
showing that the announced requirements were applied
as a pretext to avoid hiring a union applicant.
The evidentiary scheme discussed above is an appropriate
allocation of the burdens. The applicants are in the best
position to provide objective evidence about their training
and experience. Thus, it appropriately falls to the General
Counsel to show that the applicants met the objective em-
ployment criteria of the position at issue.11 On the other
hand, the employer alone knows the full range of its subjec-
tive and/or judgmental employment criteria. Further, the
employer is in possession of the information about the
10 In our hypothetical, the record facts show that the employer has a
need for electricians. We do not substitute our business judgment for
that of the employer.
11 According to our dissenting colleague, who cites Judge Posner’s
penguin hypothetical in the Seventh Circuit’s Starcon decision, if an
employer stated in his advertisement that penguins would not be hired,
the General Counsel could establish his case, even if the applicant were
a penguin. With due respect to our colleague, Judge Posner, and the
Seventh Circuit, we believe that where such an objective and precise
qualification is set, the General Counsel must show that the applicant
meets that criterion or that the criterion is pretextual.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14
qualifications of the applicants it has hired. It is, therefore,
appropriate that the burden fall to the employer to establish
that the applicant did not meet its specific criteria for the
position, was otherwise unqualified for the positions, or was
not as qualified as those who were hired.
There has also been confusion and controversy about
discriminatory refusal-to-hire cases where the number of
applicants exceeds the number of job openings. As dis-
cussed earlier, the Sixth Circuit held in Fluor Daniel that
there could be no violation of Section 8(a)(3) if there
were no jobs available and that to establish a discrimina-
tory refusal to hire, the General Counsel had to match
each qualified applicant to an opening. The Seventh Cir-
cuit disagreed with this approach and held in Starcon that
the General Counsel need only show that one applicant
was discriminated against to establish a violation of Sec-
tion 8(a)(3) warranting a cease-and-desist order. If,
however, the General Counsel seeks a backpay and in-
statement remedy, then the General Counsel must show,
at the unfair labor practice stage of the proceeding, how
many of the applicants the employer would have hired
had it not discriminated against union applicants.
We agree with the Seventh’s Circuit’s reasoning. Ac-
cordingly, we find that in cases involving numerous ap-
plicants, the General Counsel need only show that one
applicant was discriminated against to establish a refusal-
to-hire violation warranting a cease-and-desist order. If
the General Counsel seeks an affirmative backpay and
instatement order, he must show that there were openings
for the applicants. Consequently, if, as here, there is evi-
dence that the respondent has hired employees or had
openings available, the General Counsel must show at
the hearing on the merits the number of openings that
were available, that the applicants had the training or
experience relevant to the openings, and that antiunion
animus contributed to the respondent’s decision not to
hire the applicants for the openings. Once the General
Counsel makes this showing, the burden shifts to the
respondent to show that it would not have hired the ap-
plicants even in the absence of their union activity or
affiliation. Proof of the availability of openings cannot
be deferred to the compliance stage of the proceeding.
If the General Counsel is seeking a remedy of instate-
ment and backpay based on openings that he knows or
should have known have arisen prior to the commence-
ment of the hearing on the merits, he must allege and
prove the existence of those openings at the unfair labor
practice hearing.12 If he seeks such a remedy based on

12 Thus, the parties may be assured that litigation of these issues will not
be deferred to the compliance stage or to a subsequent proceeding. Provid-
ing closure of this nature serves the interests of sound administrative prac-
tice and fairness to the parties. See, for example, Jefferson Chemical Co.,
200 NLRB 992 fn. 3 (1972), where, in a different context, the Board im-
posed a similar limitation on the multiple litigation of issues that should
have been presented in an initial proceeding. See also Service Employees
Local 87 (Cresleigh Management), 324 NLRB 774 (1997), where the Board
openings arising after the trial has begun or based on
openings arising before the opening of the trial that he
neither knew nor should have known had arisen, he may
move to amend the complaint. If, however, the adminis-
trative law judge denies the motion, the General Counsel
may seek that remedy in a new unfair labor practice pro-
ceeding based on a new refusal-to-hire complaint.13 Al-
ternatively, the General Counsel may contend, in a com-
pliance proceeding, that discriminatees should be in-
stated with backpay to openings arising during or after
the hearing as a remedy for a refusal-to-consider viola-
tion. (See the next section below for a discussion of the
refusal-to-consider violation.)
Where the number of applicants exceeds the number of
available jobs, the compliance proceeding may be used to
determine which of the applicants would have been hired
for the openings. Assume, for example, that the General
Counsel established at the hearing on the merits that the
respondent had 10 openings, that 15 applicants had the ex-
perience or training relevant to the openings, and that anti-
union animus contributed to the decision not to hire any of
the 15 applicants for the openings. Assume further that the
respondent did not meet its burden of showing that it would
not have hired any of the 15 applicants even in the absence
of their union activity or affiliation. In such circumstances,
the General Counsel has established a refusal-to-hire viola-
tion. He has further established that a backpay and instate-
ment remedy is appropriate for 10 of the applicants. The
compliance proceeding may be used to determine which 10
of the 15 applicants must be offered backpay and instate-
ment. The remaining five applicants would be entitled to a
refusal-to-consider remedy. (See the discussion in the sec-
tion that follows.)
In all other respects, the compliance proceeding for re-
fusal-to-hire violations is limited to the precise calcula-
tions for the make-whole remedy. In cases arising in the
construction industry, the compliance stage is also used
to resolve the issues outlined in Dean General Contrac-
tors, 285 NLRB 573 (1987), concerning the likelihood
that the discriminatees would have been transferred to
other worksites upon the completion of the project at
which the unlawful conduct occurred.14
In compliance proceedings, the General Counsel gen-
erally has the burden of establishing the damage that
needs to be redressed in order to put the employee in the

stated that sound administrative practice and fairness to respondents require
that, wherever practicable, there be but a single hearing on all outstanding
violations of the Act involving the same respondent.
13 See Maremont Corp., 249 NLRB 216, 217 (1980) (the General
Counsel not precluded from litigating allegations in a subsequent sepa-
rate proceeding where the General Counsel was informed of the subject
of the allegations 6 days prior to the hearing in an earlier proceeding,
moved to amend the complaint at issue in that proceeding to include the
allegations, and was prevented from doing so by the administrative
judge’s denial of the motion).
14 Member Hurtgen does not pass, at this juncture, on the validity of
Dean General Contractors, supra.
FES 15
position he would have been but for the respondent’s
unlawful conduct, Mastro Plastics Corp., 136 NLRB
1342, 1346 (1962), enfd. in relevant part 354 F.2d 170
(2d Cir. 1963); but there is a presumption that some back-
pay is owing when there is any unlawful deprivation of
employment. Intermountain Rural Electric Assn., 317
NLRB 588, 590 (1995), enfd. mem. 83 F.3d 432 (10th Cir.
1996). With respect to backpay, the General Counsel has
the burden of showing that the backpay formula and
amount is reasonable and that expenses incurred by the
discriminatees should be offset against interim earnings.
The respondent, however, has the burden of establishing
elements that diminish its backpay liability such as the
discriminatees’ failure to mitigate. Iron Workers Local
373 (Building Contractors), 295 NLRB 648, 655 (1989).
B. Elements of a Discriminatory Refusal-to-
Consider Violation
To establish a discriminatory refusal to consider, pur-
suant to Wright Line, supra, the General Counsel bears
the burden of showing the following at the hearing on the
merits: (1) that the respondent excluded applicants from
a hiring process; and (2) that antiunion animus contrib-
uted to the decision not to consider the applicants for
employment. Once this is established, the burden will
shift to the respondent to show that it would not have
considered the applicants even in the absence of their
union activity or affiliation.
If the respondent fails to meet its burden, then a viola-
tion of Section 8(a)(3) is established. The appropriate
remedy for such a violation is a cease-and-desist order;
an order to place the discriminatees in the position they
would have been in, absent discrimination, for considera-
tion for future openings and to consider them for the
openings in accord with nondiscriminatory criteria; and
an order to notify the discriminatees, the charging party,
and the Regional Director of future openings in positions
for which the discriminatees applied or substantially
equivalent positions.15
If job openings arise after the beginning of the hearing
on the merits, the General Counsel must initiate a com-
pliance proceeding for the purpose of determining
whether the discriminatees would have been selected for
the openings in the absence of the proven discriminatory
failure to consider them for employment.16 The General
Counsel must also initiate a compliance proceeding re-
garding openings arising before the commencement of
the hearing on the merits that he neither knew nor should

15 Respondents will be required to provide such notification until the Re-
gional Director concludes that the case should be closed on compliance.
16 This procedure also applies in fashioning a remedy in compliance
for a refusal-to-hire violation where the number of discriminatees ex-
ceeds the number of available openings. The General Counsel must
initiate compliance proceedings to determine which of the discrimina-
tees would have been hired to fill the available openings, and to deter-
mine if the remaining discriminatees would have been hired to fill any
openings arising after the beginning of the hearing on the merits.
have known had arisen.17 At the compliance proceeding,
in carrying his burden of showing that the discriminatees
would have been selected, the General Counsel would
typically put on evidence showing that the discriminatees
had the qualifications or training related to the an-
nounced or generally known requirements of the posi-
tions and that, given the time at which they had applied,
their applications would have been reviewed when the
opening occurred.18 Once this is established, the burden
will shift to the respondent to show that it would not
have hired the discriminatees to fill those openings even
in the absence of its earlier refusal to consider them on
the basis of their union activity or affiliation. If the re-
spondent fails to meet its burden, then the discriminatees
must be offered the positions in question or, if those po-
sitions no longer exist, substantially equivalent positions,
and be made whole for any losses suffered as a result of
the respondent’s unlawful conduct.
This framework for analysis of refusal-to-consider vio-
lations adheres to Board precedent. B E & K Construction
Co., supra, 321 NLRB 561. Further, for the reasons set
forth below, we believe that this approach is appropriate
notwithstanding the criticisms discussed in the background
section above that there can be no violation of Section
8(a)(3) when no hiring is taking place and that the Board is
improperly litigating issues of liability in a compliance
proceeding that is confined to remedial issues.
1. A discriminatory refusal to consider may violate Sec-
tion 8(a)(3) even when no hiring is occurring
The Board has long held that hiring need not take
place in order to find an unlawful refusal to consider un-
ion applicants for employment.19 However, the Sixth
Circuit in Fluor Daniel and the Respondent have asserted
that there can be no violation of Section 8(a)(3) when
there are no jobs available. Their position is that Section
8(a)(3) only prohibits discrimination “in regard to hire”
and there can be no such discrimination in the absence of
hiring. We do not find this position persuasive.
17 The General Counsel also has the option of moving to amend the
complaint to assert a refusal to hire as to these openings. See the pre-
ceding section. If the General Counsel does not move to amend, how-
ever, or if the motion is denied, the General Counsel must initiate com-
pliance proceedings.
18 Since the General Counsel is seeking to prove only the conse-
quences of the refusal-to-consider violation—not a new discrimination
violation—proof of animus is not part of his case in compliance. How-
ever, because there has been no showing in the hearing on the merits
with respect to the hiring decision on the subsequent job opening, is-
sues related to that hiring decision cannot be resolved against the re-
spondent as an adjudicated wrongdoer. Instead, the General Counsel
must prove that the discriminatees actually would have been selected
for the opening in question, and that entails, at a minimum, showing
that applications filed at the time the discriminatees applied would still
be regarded as active when the opening occurred, had the respondent’s
normal nondiscriminatory practices been followed.
19 See, e.g., Shawnee Industries, Inc., 140 NLRB 1451, 1452–1453
(1963), enf. denied on other grounds 333 F.2d 221 (10th Cir. 1964).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16
A refusal to consider an applicant on the basis of union
activity or affiliation has at least two independent conse-
quences, either of which would warrant a remedy, given
the purposes of the National Labor Relations Act. First,
the refusal excludes applicants from the hiring process,
whether or not job openings are available at the time of
application. Such excluded applicants are then not
within the pool of applicants for whom future jobs may
become available. There is no question that an obstruc-
tion of this sort constitutes discrimination “in regard to
hire” even if there are no job openings at the time it is
imposed. Second, such a discriminatory refusal is a de-
terrent to employees’ engaging in their right of self-
organization. It is just as discouraging, and just as obvi-
ously discrimination in regard to hire, as the legendary
“No Irish need apply” signs of decades past.
The Supreme Court has long recognized that discrimi-
nation against union labor in hiring has reverberations
beyond the refusal to hire an individual employee. In
Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941), the
Court emphasized that such discrimination was a serious
impediment to the exercise of the right to organize. In
holding that the 8(a)(3) proscription of “discrimination in
regard to hire” extended to discriminatory practices to-
wards applicants for employment, the Court relied on its
understanding of the policies of the Act. It stated:
Of compelling consideration is the fact that words
acquire scope and function from the history of events
which they summarize. We have seen the close link
between a bar to employment because of union af-
filiation and the opportunities of labor organizations
to exist and to prosper. Such an embargo against
employment of union labor was notoriously one of
the chief obstructions to collective bargaining
through self-organization. Indisputably the removal
of such obstructions was the driving force behind the
enactment of the National Labor Relations Act. The
prohibition against “discrimination in regard to hire”
must be applied as a means towards the accomplish-
ment of the main object of the legislation. [Id. at
185–186.]
The Court’s basis for concluding that discrimination
against union applicants was an impediment to organizing
was as follows:
Discrimination against union labor in the hiring of
men is a dam to self-organization at the source of
supply. The effect of such discrimination is not con-
fined to the actual denial of employment; it inevitably
operates against the whole idea of the legitimacy of
organization. [Id. at 185.]
The Phelps Dodge Court was not faced with a refusal
to consider union applicants where there were no job
openings. However, the Court’s rationale for finding that
Section 8(a)(3) extends to applicants for existing open-
ings applies with equal force to a situation where there
are no immediate openings. Preventing union applicants
from entering the pool of applicants for future job open-
ings is as much an obstacle to collective bargaining
through self-organization as is refusing to hire union ap-
plicants for current openings. In both cases, employees
are cut off from entering the work force, currently or at a
future time, where they can exercise the right to organize.
In both cases, the discrimination undermines the princi-
ple of freedom of organization, which the Act envisions
as a central means of attaining industrial peace.
For these reasons, we respectfully disagree with the
Sixth Circuit and adhere to well-established Board
precedent that an employer violates Section 8(a)(3) if it
refuses to consider union applicants for employment
even if there are no openings at the time of application.
2. The compliance proceeding for a refusal-to-consider
violation is an appropriate forum for determining
whether there was an actual job loss as a result of
that refusal
When a job opening follows on the heels of a refusal to
consider an applicant for positions of that kind, the ques-
tion whether the applicant would have been offered that
job had he been given nondiscriminatory consideration at
the outset is a remedial issue appropriately determined in
the compliance stage of the refusal-to-consider violation.
As discussed above, one significant consequence of a
discriminatory refusal-to-consider violation is the dis-
criminatory denial of access to the pool of applicants for
future openings. Because the fundamental purpose of
Board remedies is to “undo the effects of [the] violations
of the Act,” NLRB v. Seven-Up Bottling Co., 344 U.S.
344, 346 (1953), it is appropriate to consider in compli-
ance whether, had the applicant entered the pool at the
time of application, he or she would have been hired for
a job that subsequently opened up. If the General Coun-
sel makes such a showing, then requiring that the job be
offered to that applicant is a necessary part of the make-
whole remedy.
By requiring that refusal-to-consider discriminatees be
offered jobs in such circumstances, the Board does noth-
ing more than exercise its statutory authority to make
employees whole by “restoring the economic status quo
that would have obtained but for the company’s wrongful
[action].” NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S.
258, 263 (1969). In this regard, restoring the status quo
ante for the victims of discriminatory refusals to consider
by requiring offers to them of subsequent openings
which they would have filled had they been given lawful
consideration for hire when they applied is analogous to
requiring that victims of unlawful refusals to hire or
unlawful discharges be offered the positions they would
have occupied in the absence of the discrimination
against them. Hicks Oils & Hicksgas, 293 NLRB 84, 87
(1989), enfd. 942 F.2d 1140 (7th Cir. 1991) (reserving
for compliance the determination of the particular jobs
FES 17
that two probationary employees would have advanced
into had they not been unlawfully discharged, with the
particulars of reinstatement and backpay to be based on
that determination); Bailey Distributors, 292 NLRB
1106, 1108 (1989), enf. denied in part on other grounds
sub nom. NLRB v. Browne, 890 F.2d 605 (2d Cir. 1989)
(in compliance, requiring reinstatement to, and backpay
for, a driver position to which the employee who had
been discriminatorily denied hire into helper position
would have advanced absent the discrimination).20
Those lines of precedent make clear that make-whole
relief is not adequate if the victim of unlawful discrimi-
nation is not ultimately placed in the position he would
have enjoyed had no discrimination occurred. See also
Operating Engineers Local 68 (Ogden Allied Mainte-
nance Corp.), 326 NLRB 1 (1998) (discriminatee found
not to have incurred a willful loss of interim earnings by
refusing Respondent’s offer to reinstate him to job held
prior to discharge, where discriminatee’s seniority would
have earned him promotion to higher paying position
absent unlawful discharge).
The Board has stressed that a compliance proceeding
accords full due process to the parties. Thus, in Perma
Vinyl Corp.21 the Board determined in a compliance pro-
ceeding that the purchaser of the respondent was a suc-
cessor with knowledge of the respondent’s unfair labor
practices. In concluding that the successor was responsi-
ble for remedying the respondent’s unfair labor practices,
the Board stated:
Of course, no such adjudication of liability can be
made without affording the bona fide purchaser a full
opportunity at a hearing, after adequate notice, to pre-
sent evidence on the question of whether it is a suc-
cessor which is responsible for remedying a predeces-
sor’s unfair labor practices. The successor would also
be entitled, of course, to be heard against the en-
forcement of any order issued against it. As has al-
ready been indicated, U.S. Pipe cannot validly claim
that it was denied due notice and a fair hearing in this
case. [Id. at 969–970.]
The Supreme Court approved the Board’s compliance
proceedings as a forum according due process to the par-
ties in Golden State Bottling Co. v. NLRB, 414 U.S. 168
(1973). There, the Court stated:
In this case, All American [the successor] has no com-
plaint that it was denied due notice and a fair hearing.
It was made a party to the supplemental backpay speci-
fication proceeding, given notice of the hearing, and af-

20 The Second Circuit upheld the Board’s finding that the discriminatee
would have advanced from helper to driver in the normal course of
events; it disagreed with the Board that the discriminatee was entitled to
backpay at the drivers’ rate during those portions of the backpay period
when his license to drive large commercial trucks was suspended.
21 164 NLRB 968 (1967), enfd. sub nom. United States Pipe &
Foundry Co. v. NLRB, 398 F.2d 544 (5th Cir. 1968).
forded full opportunity, with the assistance of counsel,
to contest the question of its successorship for purposes
of the Act and its knowledge of the pendency of the un-
fair labor practice litigation at the time of purchase. [Id.
at 181.]
IV. APPLICATION TO THE CASE AT BAR
The complaint in this case alleges both refusal-to-
consider and refusal-to-hire violations. The judge found,
and we agree, that the Respondent unlawfully refused to
consider nine union applicants for employment.22 Al-
though there was evidence that the Respondent hired
eight welder pipefitters, the judge found that the current
state of the record was insufficient to determine whether
the Respondent would have hired any of the nine union
applicants, if it had considered them on a nondiscrimina-
tory basis. Accordingly, he deferred to compliance the
determination of whether any of the nine applicants
would have been hired, absent the discriminatory refusal
to consider. Under the framework we have set forth to-
day, however, matters that can be litigated at the unfair
labor practice stage, must be litigated at that stage and
cannot be deferred to compliance. There was evidence in
the record that the Respondent hired eight welder pipefit-
ters. It should have been determined at the unfair labor
practice hearing whether the Respondent’s failure to hire
the discriminatees for those positions constituted unlaw-
ful refusals to hire warranting backpay and instatement
remedies. But, given the confusion in the law, as set
forth above, which we have attempted to clarify today,
22 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent correctly asserts that the judge erred in stating in fn.
6 of his decision that Bob McCubbin testified that FES hired Carl
Knobb. The record shows that McCubbin testified only that FES inter-
viewed Carl Knobb. The judge’s error, however, does not affect his
conclusion that the Respondent unlawfully failed to interview or con-
sider any of the Local 520 applicants for employment.
In finding that the Respondent unlawfully refused to consider nine union
applicants for employment, the judge concluded that the criteria by which
the Respondent claimed to disqualify the union applicants do not exist in
written form, are not strictly adhered to, and thus, in the circumstances of
this case, appear to be post hoc justifications for disqualifying a union appli-
cant or potential union organizer. We agree with this conclusion. Cf. J. O.
Mory, Inc., 326 NLRB 604 (1998) (no finding of pretext or disparate treat-
ment of union applicants where wage comparison factor was part of estab-
lished hiring policy applied in nondiscriminatory manner). We, therefore,
find it unnecessary to rely on any of the judge’s additional rationale con-
cerning the “wage compatibility” criterion.
Because the judge did not reach the refusal-to-hire allegation, he did
not consider the “wage compatibility” criterion as a defense to that
allegation. Nevertheless, the issue of the criterion was fully litigated
and the judge made the findings described above, which we have ap-
proved. Accordingly, the record may not be reopened on this issue.
Any consideration of the criterion on remand must be confined to the
facts as already found by the judge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18
we shall remand the proceeding to the judge for the pur-
poses of reopening the record and resolving this issue. If
hiring occurred between the opening of the initial hearing
in this case and the reopening of the hearing on remand,
the General Counsel must also litigate the question of
whether the ninth discriminatee would have been hired
for any such subsequent openings in the absence of the
discriminatory refusal to consider him.
ORDER
It is ordered that this proceeding is remanded to Ad-
ministrative Law Judge Arthur J. Amchan for appropriate
action consistent with his Decision and Order.
IT IS FURTHER ORDERED that the judge shall pre-
pare a supplemental decision setting forth credibility
resolutions, findings of fact, conclusions of law, and a
recommended Order, as appropriate on remand. Copies
of the supplemental decision shall be served on all par-
ties, after which the provisions of Section 102.46 of the
Board’s Rules and Regulations shall be applicable.

MEMBER HURTGEN, concurring.
I agree with most of the majority opinion. However,
in two respects, I have a somewhat different view.
1. My colleagues in the majority say that there can be
a violation of Section 8(a)(3), in a “refusal-to-consider”
case, even if there are no job openings at the time of ap-
plication. By contrast, my concurring colleague says that
there can be no 8(a)(3) violation unless there is a job
opening at the time of application. In my view, the con-
flict is to be resolved on the basis of the statutory lan-
guage of Section 8(a)(3). That is, the violation depends
on whether there is “discrimination in regard to hire.”
In order to illustrate my position on this issue, I shall
assume a case in which there are no job openings at the
time of application. If the employer has a hiring process
(e.g., he normally files applications for future openings),
and the employer refuses to do so for union adherents,
then there is an 8(a)(3) violation. That is, there is dis-
crimination “in regard to hire,” i.e., in regard to the em-
ployer’s hiring process.1
By contrast, if the employer has no such process (e.g.,
he simply turns away all applicants if there are no open-
ings), there is no discrimination in regard to hire. There
is no discrimination because the employer would also
turn away nonunion applicants, and there is no “in regard
to hire” because the employer has no hiring process.
I think that, in most cases, the employer has some hir-
ing process. Thus, in most cases, I would find the 8(a)(3)
violation. However, I believe that proof of a hiring proc-
ess is essential to that violation.2

1 If it turns out that the employer in this situation never has future
openings, there would be no remedy of instatement and backpay.
2 Even if there is no 8(a)(3) violation, there can nonetheless be an
8(a)(1) violation. In this regard, I agree with my colleagues that a
refusal to consider union adherents sends an unlawful message to un-
ion-adherent applicants, even when there are no job openings. I would
2. I agree with Member Brame’s observation that
“wage compatibility” is not necessarily a code word for a
discriminatory refusal to hire union members. In the
instant case, however, it was a pretext for such discrimi-
nation.
MEMBER BRAME, concurring.
The Board’s decision today significantly revises our
approach in 8(a)(3) failure-to-hire and failure-to-consider
cases. These revisions represent a substantial improve-
ment over the ambiguous and, in many respects, conflict-
ing mandates of the Board’s prior case law in this area.
However, the majority’s decision fails to fully address
the reasons why the Board’s prior approach in this area
was unsatisfactory and, accordingly, does not provide
sufficient guidance to parties, practitioners, and the
Board’s administrative law judges concerning the appli-
cation of the new formulation. Accordingly, I am writing
separately to set forth my view of the proper approach in
cases of this type.
I. HISTORY OF WRIGHT LINE1
A. Background
The Board’s consideration of allegations of discrimina-
tion in employment based on union support or activity is
necessarily complex, as these cases involve the interplay of
three separate sections of the Act: Section 8(a)(3) and (c)
and Section 10(c).
Section 8(a)(3) provides, in pertinent part, that it is an
unfair labor practice for an employer, “by discrimination
in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage
membership in any labor organization.” The Supreme
Court has stated that
[t]he language of Section 8(a)(3) is not ambiguous. The
unfair labor practice is for an employer to encourage or
discourage membership by means of discrimination.
Thus this section does not outlaw all encouragement or
discouragement of membership in labor organizations;
only such as is accomplished by discrimination is pro-
hibited. Nor does this section outlaw discrimination in
employment as such; only such discrimination as en-
courages or discourages membership in a labor organi-
zation is proscribed.2
Thus, proof of discriminatory conduct that is motivated by
union animus is generally required to establish a violation of
Section 8(a)(3): “In the absence of a showing of antiunion
motivation, an employer may discharge an employee for a
good reason, a bad reason, or for no reason at all. Whether
other persons would consider the reasons assigned for a dis-

find that this message is an 8(a)(1) violation, and I would order the
cessation of that conduct.
1 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
2 Radio Officers v. NLRB (A. H. Bull Steamship Co.), 347 U.S. 17,
42–43 (1954).
FES 19
charge to be justified or fair is not the test of legality under
Section 8(a)(3).”3 Indeed, the Supreme Court stressed this
very principle in the seminal case upholding the constitution-
ality of the Act in 1937, by recognizing that the Act “does
not interfere with the normal exercise of the right of the em-
ployer to select its employees or to discharge them. . . . [t]he
Board is not entitled to make its authority a pretext for inter-
ference with the right of discharge when that right is exer-
cised for other reasons than . . . intimidation and coercion.”4
The Act also requires the Board to give careful consid-
eration to the evidence presented to establish union ani-
mus in support of an allegation of unlawful discrimina-
tion of employment. In particular, Section 8(c) provides
that “[t]he expressing of any views, argument, or opin-
ion, or the dissemination thereof, whether in written,
printed, graphic, or visual form, shall not constitute or be
evidence of an unfair labor practice under any of the pro-
visions of this Act, if such expression contains no threat
of reprisal or force or promise of benefit.” This clause
was added to the Act by Congress in 1947 in order “to
prevent chilling lawful employer speech by preventing
the Board from using anti-union statements, not inde-
pendently prohibited by the Act, as evidence of unlawful
motivation.”5 As the First Circuit has observed:
Dislike of unions is not uncommon among employers,
and not only do principles of free speech permit it to be
voiced, but so does section 8(c) of the Act. [Fn. omit-
ted.] To use protected expression to build a case would
seem to make the Act a trap. . . . Rather, the employer
must have exhibited opposition not merely to the union,
but to lawful activity by its employees in pursuit of
their objectives.”6
Further complicating matters, Section 10(c) provides,
in pertinent part, that “[n]o order of the Board shall re-
quire the reinstatement of any individual as an employee
who has been suspended or discharged, or the payment to
him of any backpay, if such individual was suspended or
discharged for cause.”7 This section establishes a statu-
tory requirement that an employer be relieved of backpay
or reinstatement obligations in a discrimination case,
where the employer would have taken the same action

3 Borin Packaging Co., 208 NLRB 280, 281 (1974).
The Supreme Court has held that in certain cases an employer’s
conduct is so “inherently destructive” of Sec. 7 rights that an unlawful
motive may be presumed and independent evidence of antiunion moti-
vation is not required. See, e.g., NLRB v. Erie Resistor Corp., 373 U.S.
221 (1963). No conduct of this character is presented in the typical
hiring discrimination case under consideration herein.
4 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45–46 (1937).
5 Holo-Krome Co. v. NLRB, 907 F.2d 1343, 1347 (2d Cir. 1990), de-
nying enf. to 293 NLRB 594 (1989).
6 NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666, 670
(1st Cir. 1979).
7 As discussed more fully below, Sec. 10(e) also requires the Board’s
findings to be “supported by substantial evidence” as a condition of
enforcement of its orders by the courts of appeals.
even if “the employer had not been influenced by his
unlawful motives.”8
B. The Board’s Early Cases
Initially, the Board employed an “in part” causation
test in deciding 8(a)(3) cases.9 Ignoring the mandate of
Section 10(c), the Board’s test allowed the General
Counsel to establish a violation of the Act by showing
that a discharge was motivated merely “in part” by the
employee’s protected activities, even if the employer also
relied on a legitimate business reason. Consequently,
under this test “once hostility to protected rights is found,
the inquiry ends and [an] employer’s plea of legitimate
justification is ignored.”10
C. Court Rejection
The Board’s “in part” test received a mixed reception in
the courts of appeals. The First and Ninth Circuits generally
required that the discriminatory motive be the primary rea-
son for the challenged employment decision before an un-
fair labor practice finding would be sustained.11 Other cir-
cuits applied the Board’s “in part” test.12 Still others applied
tests which encompassed variations on the “in part” and
“dominant motive” themes.13 Regardless of the specific test
applied, however, the courts generally recognized that the
fundamental issue in 8(a)(3) cases is a determination of the
cause of the challenged employer action. The courts also
recognized that, in order to decide accurately the causation
issue, it was important to consider both the evidence of
unlawful motivation presented by the General Counsel as
well as any evidence of a legitimate reason advanced by the
employer to explain its actions.
8 NLRB v. Transportation Management Corp., 462 U.S. 393, 403 fn.
6 (1983).
9 See, e.g., Youngstown Osteopathic Hospital Assn., 224 NLRB 574, 575
(1976), enf. denied 574 F.2d 891 (6th Cir. 1978); Erie Sand Steamship Co.,
189 NLRB 63 fn. 1 (1971); Tursair Fueling, Inc., 151 NLRB 270, 271 fn. 2
(1965); Bankers Warehouse Co., 146 NLRB 1197, 1200 (1964).
10 Wright Line, supra, 251 NLRB 1083, approved in NLRB v. Transpor-
tation Management Corp., supra, 462 U.S. at 399–403, overruled in part on
other grounds Director, Office of Workers Compensation Programs, Dept.
of Labor v. Greenwich Collieries, 512 U.S. 267, 276–278 (1994).
In Wright Line, the Board recognized that its “in part” causation test
did not reflect the requirements of the Act, particularly the mandate of
Sec. 10(c) that the Board may not order the reinstatement of an individ-
ual who was discharged for cause. See 251 NLRB at 1088.
11 See, e.g., NLRB v. Fibers International Corp., 439 F.2d 1311 (1st Cir.
1971) (dominant motive test required by Act; “in part” test rejected); Poly-
nesian Cultural Center v. NLRB, 582 F.2d 467, 473 (9th Cir. 1978) (im-
proper motive must be dominant and moving cause).
12 Allen v. NLRB, 561 F.2d 976, 982 (D.C. Cir. 1977); NLRB v. Retail
Store Employees Local 876, 570 F.2d 586 (6th Cir. 1978), cert. denied 439
U.S. 819 (1978); NLRB v. Gogin Trucking, 575 F.2d 596, 601 (7th Cir.
1978); Larlmer Press v. NLRB, 568 F.2d 166, 173–174 (10th Cir. 1977).
13 See, e.g., Waterbury Community Antenna, Inc. v. NLRB, 587 F.2d
90, 98 (2d Cir. 1978) (unlawful motivating factor must have been “but
for” cause of discharge); Edgewood Nursing Center v. NLRB, 581 F.2d
363, 368 (3d Cir. 1978) (if employer puts forth justifiable cause for
discharge, Board must find that employer’s reason was a pretext in
order to find a violation of the Act).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20
D. Adoption of Wright Line
In Wright Line, a wrongful termination case, the Board
set forth an analytical framework for applying Section
8(a)(3) and (1) where the question presented is whether
an employee’s employment conditions were “adversely
affected by his or her engaging in union or other pro-
tected activities and, if so, whether the employer’s action
was motivated by such employee activities.”14 The Board
began by reviewing its prior decisions in 8(a)(3) cases
and relevant courts of appeals decisions reviewing those
cases, including those cited above. Acknowledging that
no one test was uniformly accepted by the reviewing
courts, the Board then turned to a pair of Supreme Court
decisions addressing alleged violations of constitutional
rights. In Mt. Healthy City School District Board of Edu-
cation v. Doyle,15 a public school teacher’s contract was
not renewed after he had publicized a change in the
school district’s dress policies. The school district stated
that he was being discharged because of his public
speech, and because he had used obscene language and
gestures in the school cafeteria.
The Supreme Court rejected a lower court decision
holding that the discharge violated the teacher’s constitu-
tional rights because it was admittedly based, at least in
part, on the teacher’s exercise of his First Amendment
right of free speech. As the Supreme Court recognized:

A rule of causation which focuses solely on
whether protected conduct played a part, “substan-
tial” or otherwise, in a decision not to rehire, could
place an employee in a better position as a result of
the exercise of constitutionally protected conduct
than he would have occupied had he done nothing.
The difficulty with the rule enunciated by the Dis-
trict Court is that it would require reinstatement in
cases where a dramatic and perhaps abrasive inci-
dent is inevitably on the minds of those responsible
for the decision to rehire, and does indeed play a part
in that decision—even if the same decision would
have been reached had the incident not occurred.
The constitutional principle at stake is sufficiently
vindicated if such an employee is placed in no worse
a position than if he had not engaged in the conduct.
A borderline or marginal candidate should not have
the employment question resolved against him be-
cause of constitutionally protected conduct. But that
same candidate ought not to be able, by engaging in
such conduct, to prevent his employer from assess-
ing his performance record and reaching a decision
not to rehire on the basis of that record, simply be-
cause the protected conduct makes the employer
more certain of the correctness of its decision.16

14 Wright Line, supra, 251 NLRB at 1083.
15 429 U.S. 274 (1977).
16 Id. at 285–286 (quoted in Wright Line, supra, 251 NLRB at 1086).
Consistent with these principles, the Supreme Court held
that the proper test of causation was as follows:

Initially, in this case, the burden was properly
placed upon respondent to show that his conduct was
constitutionally protected, and that this conduct was
a “substantial factor”—or, to put it in other words,
that it was a “motivating factor” [fn. omitted] in the
Board’s decision not to rehire him. Respondent hav-
ing carried that burden, however, the District Court
should have gone on to determine whether the Board
had shown by a preponderance of the evidence that
it would have reached the same decision as to re-
spondent’s reemployment even in the absence of the
protected conduct.17

The Supreme Court applied these principles in Village
of Arlington Heights v. Metropolitan Housing Develop-
ment Corp.,18 a case decided the same day as Mt.
Healthy. In Arlington Heights, the Supreme Court held
that the plaintiffs had failed to establish that racial dis-
crimination was “a motivating factor” in a local govern-
ment’s zoning decision, which had the effect of exclud-
ing a racially integrated development from the jurisdic-
tion. Citing Mt. Healthy, the Supreme Court stated that:

Proof that the decision by the Village was moti-
vated in part by a racially discriminatory purpose
would not necessarily have required invalidation of the
challenged decision. Such proof would, however, have
shifted to the Village the burden of establishing that the
same decision would have resulted even had the im-
permissible purpose not been considered. If this were
established, the complaining party in a case of this kind
no longer fairly could attribute the injury complained of
to improper consideration of a discriminatory purpose.
In such circumstances, there would be no justification
for judicial interference with the challenged decision.
But in this case respondents failed to make the required
threshold showing.19

Applying these principles in the context of the Act, the
Board held that it would employ the following causation test
in all cases alleging violations of Section 8(a)(3) or viola-
tions of Section 8(a)(1) turning on employer motivation:

First, we shall require that the General Counsel make a
prima facie showing sufficient to support the inference
that protected conduct was a “motivating factor” in the
employer’s decision. Once this is established, the bur-
den will shift to the employer to demonstrate that the
same action would have taken place even in the ab-
sence of the protected conduct. [Fn. omitted.] [Wright
Line, supra, 251 NLRB at 1089.]
17 429 U.S. at 287.
18 429 U.S. 252 (1977).
19 429 U.S. at 271 fn. 21 (quoted in Wright Line, supra).
FES 21
E. Judicial Reception and Reformulation of Wright Line
Cases subsequent to Wright Line have made clear that
the General Counsel has the burden of proving that anti-
union sentiment was “a motivating factor” in the chal-
lenged employment decision. Thus, in approving the
analytical framework established by the Board in Wright
Line the Supreme Court in NLRB v. Transportation
Management Corp.20 interpreted the Board’s decision as
placing on the General Counsel “the burden of persua-
sion on the question of whether the employer fired [the
discriminatee] at least in part because he engaged in pro-
tected activities.”21 The Court agreed with the Board that,
once this showing was made, the Board could appropri-
ately shift the burden of persuasion to the respondent to
show that it would have taken the same action even in the
absence of the protected activity. However, the Court ap-
proved this allocation of the burden of proof only because
the General Counsel had previously established that “[t]he
employer is a wrongdoer; he has acted out of a motive that
is declared illegitimate by the statute. It is fair that he bear
the risk that the influence of legal and illegal motives can-
not be separated, because he [has] knowingly created the
risk and because the risk was created not by innocent ac-
tivity but by his own wrongdoing.”22
In Director, Office of Workers Compensation Pro-
grams, Dept. of Labor v. Greenwich Collieries,23 the
Supreme Court reaffirmed the importance of the re-
quirement that the General Counsel bear the burden of
proof, i.e., the burden of persuasion, that “antiunion sen-
timent contributed to the employer’s decision.” Only
after this burden is met, could the Board properly “place
the burden of persuasion on the employer as to its af-
firmative defense.”24
In Handy Andy, Inc. v. NLRB,25 the D.C. Circuit stated
that, in light of the Supreme Court’s holding in Green-
wich Collieries, the language in the Wright Line formula-
tion, which referred to the General Counsel’s burden as
one of establishing a “prima facie case” was no longer
appropriate.26 In Manno Electric, Inc.,27 the Board effec-

20 462 U.S. at 399–403.
21 Id. at 400 fn. 5. The Court also stated that, once this showing was
made, “proof that the discharge would have occurred in any event and
for valid reasons amount[s] to an affirmative defense on which the
employer carrie[s] the burden of proof by a preponderance of the evi-
dence.” Id. at 400. See sec. III, infra.
22 NLRB v. Transportation Management, supra, 462 U.S. at 403.
23 512 U.S. 267, 276–278 (1994).
24 Id.
25 53 F.3d 1334 (D.C. Cir. 1995).
26 The Board’s use of the term “prima facie case” to describe the Gen-
eral Counsel’s burden of proof in Wright Line appears to have led to some
confusion concerning the nature of the General Counsel’s evidentiary
burden. The term “prima facie case” is also used in Title VII disparate
treatment cases decided using the analytical framework first set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In that setting,
the term “prima facie case” describes the evidence which a plaintiff must
introduce in order to create a presumption that discrimination has oc-
curred and then shift the burden of production (but not the risk of nonper-
tively accepted the D.C. Circuit’s position, stating that,
under the Wright Line test
[t]he Board has always required the General Counsel to
persuade that antiunion sentiment was a substantial or
motivating factor in the challenged employer decision.
The burden of persuasion then shifts to the employer to
prove its affirmative defense that it would have taken
the same action even if the employees had not engaged
in protected activities.28
Accordingly, the Board no longer refers to the General
Counsel’s burden as one of establishing a “prima facie
case.”
II. APPLICATION OF WRIGHT LINE
A. General Considerations
Wright Line, thus, established a framework for consid-
eration of cases involving alleged discrimination in em-
ployment, but a framework is not a formula for deciding
8(a)(3) cases. In particular, the Wright Line framework
does not establish the nature or quantity of evidence nec-
essary to satisfy the burden of proof imposed on the
General Counsel under Wright Line. That is one issue
before the Board in this case.
The fundamental issue in all 8(a)(3) cases is whether
the challenged adverse employment action would have
taken place “but for” the protected activity. As the Su-
preme Court cautioned in the Mt. Healthy decision, “[a]
rule of causation which focuses solely on whether pro-
tected conduct played a part, ‘substantial’ or otherwise,
in a decision,” goes too far, because it “could place an
employee in a better position as a result of the exercise of
constitutionally protected conduct than he would have
occupied had he done nothing.”29 As discussed above,
the burden of introducing the evidence needed to resolve
the ultimate issue of “but for” causation is properly di-
vided between the General Counsel and the respondent
using the Wright Line framework. However, to meet his
burden of proof in any 8(a)(3) case, the General Counsel
must establish facts sufficient to allow the factfinder to
conclude that union animus was a motivating factor in
the challenged adverse employment action.
In some cases, the General Counsel will be able to
meet his burden of proof by presenting direct evidence of
discriminatory motivation.30 The Board and the courts

suasion) to the defendant to articulate a legitimate, nondiscriminatory
reason for the challenged employment action. Under the McDonnell
Douglas framework, the risk of nonpersuasion does not shift. See gener-
ally Walker v. Mortham, 158 F.3d 1177, 1184–1185 and fn. 10 (11th Cir.
1998), cert. denied 120 S.Ct. 39 (1999).
27 321 NLRB 278 (1996).
28 Id. at 280 fn. 12.
29 Mt. Healthy, supra, 429 U.S. at 285–286.
30 See, e.g., Pan American Electric, Inc., 328 NLRB 54 (1999) (pro-
ject superintendent stated that he would not take applications from
union applicants and was trained in screening out union applicants);
Merit Electric Co., 328 NLRB 212 (1999) (employer admitted that it
refused to hire applicants because they were union activists) (same).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22
have also held that “the Board may rely on circumstantial
evidence presented by General Counsel in establishing
that anti-union animus figured in the employer’s actions,
provided that the circumstantial evidence is substantial
and the inferences drawn therefrom reasonable.”31
On the other hand, in deciding disparate treatment
cases arising under Title VII of the Civil Rights Act of
1964, the Federal courts generally require the plaintiff to
present direct evidence of discriminatory motivation be-
fore shifting the burden of persuasion to the employer in
the manner contemplated by the Board’s Wright Line
decision.32 This requirement is based on the controlling
opinion of Justice O’Connor in Price Waterhouse v.
Hopkins,33 which recognized that, “in order to justify
shifting the burden on the issue of causation to the de-
fendant, a disparate treatment plaintiff must show by
direct evidence that an illegitimate criterion was a sub-
stantial factor in the decision.”34 Circumstantial evi-
dence, in contrast, may be an “indication of discrimina-
tion” but is not by itself sufficient to establish the exis-
tence of the evil Congress sought to prevent: an adverse
employment decision caused by discrimination on the
basis of a prohibited criterion.35
The Board has not had occasion to consider whether
the Federal courts’ rulings on the proof of causation in
Title VII cases are applicable to the issue of causation in
cases arising under Section 8(a)(3) of the Act.36 In light
of the consistent court approval of the Board’s current
practice of relying on circumstantial evidence to establish
causation, for present purposes, I will assume that this is

31 NLRB v. Instrument Corp. of America, 714 F.2d 324, 328 (4th Cir.
1983) (emphasis added). See also Jet Star, Inc. v. NLRB, 163 LRRM
2977) (7th Cir. 2000) (same) (employer’s discriminatory motive can be
proved through circumstantial evidence); ITT Automotive v. NLRB, 188
F.3d 375, 388 (6th Cir. 1999) (direct evidence of unlawful motivation
not required; animus may be inferred from all the circumstances);
Wright Line, supra, 251 NLRB at 1083–1084 (same).
32 See Watson v. SEPTA, 207 F.3d 207 (3d Cir. 2000) (same) (only plain-
tiffs who demonstrate with sufficiently direct evidence that an impermissible
factor was a motivating factor are entitled to the shift in the burden of per-
suasion); Taylor v. Virginia Union University, 193 F.3d 219, 232 (4th Cir.
1999), cert. denied 120 S.Ct. 1243 (2000); Day v. Johnson, 119 F.3d 650,
654 (8th Cir. 1997), cert. denied 522 U.S. 1055 (1998) (in the absence of
direct evidence, plaintiff must show employer’s explanations were a pre-
text); Fields v. New York State Office of Mental Retardation, 115 F.3d 116,
122 (2d Cir. 1997) (“there must be either direct evidence of discrimination,
or circumstantial evidence that is ‘tied directly to the alleged discriminatory
animus’”) (citation omitted) (quoting Ostrowski v. Atlantic Mutual Insur-
ance Cos., 968 F.2d 171, 182 (2d Cir. 1992)); Smith v. F. W. Morse & Co.,
76 F.3d 413, 421 (1st Cir. 1996) (direct evidence is required to shift burden
of proof). See generally Making Sense of the McDonnell Douglas Frame-
work: Circumstantial Evidence and Proof of Disparate Treatment Under
Title VII, 87 Cal. L. Rev. 983 (1999); Michael A. Zubrenski, Note, Despite
the Smoke, There Is No Gun: Direct Evidence Requirements in Mixed-
Motives After Price Waterhouse v. Hopkins, 46 Stan. L. Rev. 959 (1994).
33 490 U.S. 228 (1989).
34 Id. at 276.
35 Id.
36 At least one commentator has suggested that they are. See Modern
Discrimination Theory and the National Labor Relations Act, 39 Wm.
& Mary L. Rev. 99, 126 fn. 142 (1997).
a permissible construction of the Act. However, as the
Supreme Court has recognized in the Title VII context,
unless all potential legitimate reasons for not hiring an
applicant are eliminated from the case, circumstantial
evidence alone is insufficient to establish that a union
applicant would have been hired but for an employer’s
union animus.37 Accordingly, the Board must carefully
consider whether the particular circumstances of a given
case are sufficiently compelling to establish that “[t]he
employer is a wrongdoer; he has acted out of a motive
that is declared [to be] illegitimate by the statute.”38
Until today, the Board has failed to undertake this
analysis in hiring discrimination cases. Rather, the Board
appears to have simply imported into the hiring discrimi-
nation context an adapted version (or, more accurately,
versions) of the evidentiary standard developed in dis-
criminatory discharge cases. At no time has the Board
explained why proof of these elements actually estab-
lishes that the applicant would have been hired but for
his or her protected activities and that the failure to hire
was motivated by unlawful antiunion discrimination. The
Board’s omission of this analytical task explains the
Board’s difficulty in obtaining court enforcement of its
orders in hiring discrimination cases.
As explained below, the evidentiary threshold applied by
the Board in discriminatory discharge cases is appropriate in
that setting, because the circumstances of a discharge case
in combination with the elements of proof required by the
Board often are sufficient to support an inference of dis-
crimination. Because the circumstances surrounding the
hiring process are quite different, however, the evidentiary
threshold must reflect those circumstances.
B. Discriminatory Discharge Cases
1. Elements of a discriminatory discharge violation
In the typical discharge case, the General Counsel can
meet the Wright Line burden of proof by showing union
or protected activity, employer knowledge, antiunion
animus, and the adverse action.39 This showing is suffi-
cient to meet the General Counsel’s burden because of
the particular circumstances involved in a discharge case.
2. Evidence and inferences
In discriminatory discharge cases, whether the alleged
discriminatee was in fact discharged is rarely disputed.
Rather, the focus is on the employer’s motivation. As noted
37 Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
38 NLRB v. Transportation Management, supra, 462 U.S. at 403.
39 See, e.g., New Otani Hotel & Garden, 325 NLRB 928 (1998); Co-
lumbia Distribution Services, 320 NLRB 1068, 1071 (1996); Farmer
Bros. Co., 303 NLRB 638, 649 (1991), enfd. mem. 988 F.2d 120 (9th Cir.
1993). Consistent with these principles, in Wright Line itself the Board
found that the General Counsel met his burden of proof by presenting
evidence of the respondent’s knowledge of Bernard Lamoreaux’s union
support and activities, “considerable” antiunion animus directed toward
Lamoreaux, the timing of the discharge, and disparate treatment of Lam-
oreaux, compared to other similarly situated employees.
FES 23
above, it is, of course, axiomatic that “[i]n the absence of a
showing of antiunion motivation, an employer may dis-
charge an employee for a good reason, a bad reason, or for
no reason at all. Whether other persons would consider the
reasons assigned for a discharge to be justified or fair is not
the test of legality under Section 8(a)(3).”40 However, em-
ployers rarely, if ever, discharge an employee on a whim.41
A discharge generally represents a significant change in the
status quo. Thus, it is not unreasonable to expect an em-
ployer to be able to articulate a nondiscriminatory reason for
the discharge decision. In addition, the fact that an individ-
ual has satisfied an employer’s hiring criteria and worked
for an employer for a period of time without incident sup-
ports an inference that the employee was qualified for the
job he or she held. Moreover, the employer also has access
to information concerning the employee’s performance and
conduct and thus has the ability to establish the existence of
any justifications for the discharge, such as performance
problems or misconduct.42
C. Hiring Discrimination Cases
1. Elements of a hiring discrimination case
The Board has, with court approval, applied the Wright
Line shifting burdens of proof in cases involving an al-
leged discriminatory failure to hire or to consider an ap-

40 Borin Packaging, supra, 208 NLRB at 281.
41 See also Furnco Construction Corp. v. Waters, 438 U.S. at 577:
[W]e know from our experience that more often than not people do
not act in a totally arbitrary manner, without any underlying reasons,
especially in a business setting. Thus, when all legitimate reasons for
rejecting an applicant have been eliminated as possible reasons for the
employer’s actions, it is more likely than not that the employer, who
we generally assume acts only with some reason, based his decision
on an impermissible consideration such as race. [Emphasis added.]
Consistent with these principles, arbitrators place the burden of justi-
fying a discharge on the employer, albeit pursuant to contractual “just
cause” clauses. See, e.g., J. E. Simplot Co., 103 L.A. 865, 867 (Tilbury,
1994) (in a discharge case, the burden is generally on the employer to
prove the existence of wrongdoing).
42 See McCormick, Evidence § 337 at 429 (4th ed. 1992).
The circumstances differ somewhat, however, in a reduction-in-
force (RIF) case. In that setting, the issue is not why members of a
protected class were discharged, or whether they were meeting normal
performance expectations, but whether they were selected for the RIF
for an unlawful reason. Accordingly, the courts have recognized that
the showing required to establish liability must be tailored to the par-
ticular circumstances of a RIF. See, e.g., Mitchell v. Data General
Corp., 12 F.3d 1310, 1315 (4th Cir. 1993). See also Goldtex, Inc. v.
NLRB, 14 F.3d 1008, 1014 (7th Cir. 1994) (allegations that particular
employees were singled out for disparate treatment in an economically
motivated RIF require “special attention,” lest the Board improperly
interfere with “the legitimate business judgments” of employers). As
the Seventh Circuit observed in Goldtex, an employer’s
adoption of a performance-based, rather than a seniority-based, crite-
rion for [layoff] is unlawful only if it operates as a pretext for discour-
aging union membership or dismissing employees who were active in
their support for unionization. Otherwise, it is a perfectly legitimate at-
tempt on the part of a company to shore up the performance of its
work force in a time of economic stringency.
Goldtex, supra, 14 F.3d at 1014.
plicant for employment.43 The courts have generally ap-
proved this use of the Wright Line framework in this set-
ting.44 However, the Board has failed to articulate a con-
sistent legal standard by which to measure the General
Counsel’s burden of proof in these cases. Thus, in some
hiring discrimination cases the Board has held that the
General Counsel may establish “a prima facie case that
hostility to union activity or affiliation was a motivating
factor in an employer’s failure to hire” by proving “ani-
mus, union activity or affiliation, employer knowledge,
timing and the availability of jobs for the applicants.”45
In other cases, the Board has stated that
the elements of a discriminatory refusal-to-hire case are
the employment application by each alleged discrimi-
natee, the refusal to hire each, a showing that each was
or might be expected to be a union supporter or sympa-
thizer, and further showings that [an] employer knew or
suspected such sympathy or support, maintained an
animus against it, and refused to hire the applicant be-
cause of such animus.46
In general, however, the formulations previously em-
ployed by the Board appear to copy the standard for dis-
criminatory discharge cases discussed above. Conspicu-
ously missing from these formulations is any requirement
that the General Counsel show that the applicants are in any
way qualified for the job.47 Likewise, the Board’s formula-
tion of the General Counsel’s burden of proof has not spe-
cifically required proof of job availability. Rather, to the
extent that this issue is addressed, the Board has appeared to
view the issue of job availability as an affirmative defense
on which the employer has the burden of proof.48
43 See Lewis Mechanical Works, 285 NLRB 514 (1987) (recognizing
that Wright Line is applicable to failure to hire cases), enfd. mem. 869
F.2d 1497 (9th Cir. 1989).
44 See, e.g., Starcon, Inc. v, NLRB, 176 F.3d 948, 950 (7th Cir.
1999); NLRB v. Iron Workers Local 46, 149 F.3d 93, 102–103 (2d Cir.
1998); NLRB v. Fluor Daniel, Inc., 161 F.3d 953, 965–966 (6th Cir.
1998); Ultrasystems Western Constructors, Inc. v. NLRB, 18 F.3d 251,
257 (4th Cir. 1994).
45 Pan American Electric, Inc., 328 NLRB 54, 55 (1999). See also
GM Electrics, 323 NLRB 125, 128 (1997).
46 Big E’s Foodland, Inc., 242 NLRB 963, 968 (1979). The Board
has cited Big E’s Foodland with approval in subsequent cases. See,
e.g., Grand Rapids Press, 327 NLRB 393 (1998); M. J Mechanical
Services, 324 NLRB 812, 816 (1997).
47 But see WACO, Inc., 316 NLRB 73 fn. 1 (1995) (the General Counsel
did not meet his burden of proof where the alleged discriminatees lacked the
experience required by the employer in its job advertisements).
48 See, e.g. Falcone Electric Corp., 308 NLRB 1042 fn. 3 (1992). But see
Delta Mechanical, Inc., 323 NLRB 76, 81 (1997) (the General Counsel did
not establish prima facie case of discriminatory refusal to consider where
the General Counsel did not establish that employer was hiring or had open-
ings, and employer’s policy was to accept applications only when it was
hiring).
In Irwin Industries, 325 NLRB 796, 798 (1998), the Board dismissed al-
legations that an employer had discriminatorily refused to hire 30 “volunteer
union organizer” applicants based on evidence that the employer had no
openings at the time. The Board also noted that it was the employer’s his-
torical practice to hire on the basis of referrals, prior work experience with
the employer, or continued and persistent efforts to obtain work after the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24
2. Evidence and inferences
The Board has compounded its failure to articulate a
consistent legal standard in hiring discrimination cases
by relying on inferences appropriate to a discriminatory
discharge case. In so doing, the Board has failed to rec-
ognize that the circumstances in a typical alleged hiring
discrimination case are quite different than those pre-
sented in a discriminatory discharge case.
Regardless of whether the evidence presented is direct
or circumstantial, the courts have clearly instructed the
Board that it must carefully consider the evidence pre-
sented by the General Counsel in order to determine
whether he has satisfied his burden of proof and draw
from that evidence only those inferences that are reason-
able.49 “‘When the Board purports to be engaged in sim-
ple factfinding . . . it is not free to prescribe what infer-
ences from the evidence it will accept and reject, but
must draw all those inferences that the evidence fairly
demands.’”50 “Courts performing substantial evidence
review, therefore, must examine whether the Board con-
sidered all of the reasonable inferences compelled by the
evidence in reaching its decision.”51
The Board’s error has been to uncritically treat a discrimi-
natory discharge case like a hiring discrimination case. In the
former, the employer has altered the status quo. Generally,
the adverse action (termination, demotion, or other form of
discipline) is acknowledged, and the hearing focuses appro-
priately on the motivation for the action. By contrast, in
many refusal-to-hire cases, a heavily disputed issue is
whether the employer even acted, that is, whether it reviewed
the applications in issue. Any framework of analysis must
account for the need to show that the employer took action
with respect to the challenged applications and require evi-
dence from which the factfinder can conclude that the appli-
cations would have been acted on favorably in the absence of
protected activity. This requires, inter alia, proof of the exis-
tence of vacancies, hiring, and claimants having qualifica-
tions at least as good as those hired during the relevant pe-
riod of time.52 Only after such a showing can the Board
properly shift the risk of nonpersuasion within the scope of
the larger issue, as framed by the Supreme Court in Mt.
Healthy. Indeed, in Wright Line the Board adopted the Mt.
Healthy standard requiring proof by the General Counsel that

submission of an application, and that none of the union applicants actively sought work with the employer after submitting their applications. However,
the Board did not indicate whether these matters were part of the General
Counsel’s case, or an affirmative defense.
49 NLRB v. Instrument Corp. of America, 714 F.2d 324, 328 (4th Cir.
1983).
50 Pirelli Cable Corp. v. NLRB, 141 F.3d 503, 514 (4th Cir. 1998) (quot-
ing Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998)).
51 Pirelli Cable Corp. v. NLRB, id. Accord: Sam’s Club v. NLRB, 173
F.3d 233 (4th Cir. 1999) (circumstantial evidence must be substantial);
Gibson Greetings v. NLRB, 53 F.3d 385, 393 (D.C. Cir. 1995) (same).
52 Of course, any backpay award requires that the General Counsel
establish that the claimant was available for work for the period for
which backpay is claimed.
the protected conduct was a “substantial” or “motivating
factor” in the hiring decision. This necessarily requires an
ultimate finding that but for the protected activity, the appli-
cant would have been hired. Otherwise, any lower standard
would improperly “place an employee in a better position as
a result of the exercise of . . . protected conduct than he
would have occupied had he done nothing.”53 Because of
the Board’s failure to recognize the enhanced showing re-
quired in failure to hire cases, the courts of appeals have of-
ten reacted strongly, especially when the Board’s hidden
presumptions results in such unjustifiable practices as award-
ing more jobs to union claimants than the employer had va-
cancies.54
The hiring process is inherently more subjective and
often more hurried than a typical decision to discharge an
employee, as the employer necessarily has less informa-
tion about the skills and abilities of applicants than it
does with respect to its current employees. The haste
often inherent in the hiring process, especially in the con-
struction industry where mass hiring situations are a fre-
quent occurrence, leaves the employer less time to com-
pare carefully all of the applications it receives and
sometimes leads to hiring decisions based on seemingly
small differences and on intuition, rather than on a foren-
sic review of all of the evidence that could possibly be
gathered.55 Moreover, the hiring process does not exist
unless there is an open position to be filled; absent proof
of a job opening there can be no discrimination “in re-
gard to hire,” any more than there can be a discrimina-
tory discharge without proof that an employee was, in
fact, discharged.56 Especially in a mass hiring situation,
where an employer may receive hundreds of applications
for dozens of openings, there is no basis for presuming
that the employer even read any particular application,
much less that the application was considered and re-
jected for discriminatory reasons. Moreover, because the
typical applicant has no work history with the employer,
there is no basis for inferring that he or she possesses the
skills and experience required for the job.
D. Discharge and Hiring Cases Compared
Discharge cases thus “are entirely distinguishable from
cases where applicants merely request jobs that may be
nonexistent or for which they are not qualified. In the
latter case, there is no assurance that a violation of the
53 Mt. Healthy City School District Board of Education v. Doyle, su-
pra, 429 U.S. at 285 (quoted in Wright Line, supra, 251 NLRB at 1086).
54 See, e.g., Ultrasystems Western Constructors, Inc. v. NLRB, supra.
55 See generally T. Sowell, Knowledge and Decisions (1996), Chs. 3 and
8, e.g. p. 172: “[T]he government substitutes its own decisions [for those of
the market] in the form of more explicitly articulated knowledge, in either
words or statistics. Articulation, however, can lose great amounts of knowl-
edge. The continuously adjusting process of decision making through tran-
sient subjective estimates of prospects is not recorded or available in verifi-
able form to third parties.” See also generally Polanyi, K, The Tacit Dimen-
sion (1966), e.g., p.3: “[W]e know more than we can tell.”
56 NLRB v. Fluor Daniel, supra, 161 F.3d at 967.
FES 25
Act has occurred. In the former, a violation is much more
likely”57 In a discharge case, the issue is whether union
animus caused the employer to discharge an employee.
The occurrence of the challenged employment action
(i.e., the discharge) is rarely in dispute. The only issue is
the motivation behind that action.
In contrast, in a hiring discrimination case, the issue is
whether union animus caused an employer not to hire an
applicant. By finding that the General Counsel can meet
his burden and establish a violation by showing animus,
union activity or affiliation, and employer knowledge, the
Board has in effect presumed that union applicants will be
hired absent unlawful discrimination, solely on the basis of
their having applied. Such a presumption does not accord
with common sense, as applicants, union or nonunion, are
not hired for many reasons, particularly lack of qualifica-
tions, or lack of vacancies, or both.
In sum, “it is more sensible to impose heavier burdens,
in the form of a lighter prima facie case for the NLRB,
on an employer who inherits an entire unionized labor
force that it claims is inadequate when compared with an
employer who merely turns down job applicants.”58 In
the latter situation, the employer has “definite hiring
needs and those needs should receive individualized
treatment by the NLRB when proving its prima facie
case at the liability stage of its proceedings.”59
E. The Majority’s Revised Standard
In these circumstances, today’s decision is a substan-
tial improvement over the Board’s inconsistent and in-
adequate treatment of these issues in prior decisions. As
the majority’s decision makes clear, in a hiring discrimi-
nation case the General Counsel must show: (1) that the
respondent was hiring or had concrete plans to hire at the
time of the alleged unlawful conduct; (2) that the appli-
cants 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 were themselves pretextual or were applied
as a pretext for discrimination; and (3) that antiunion
animus contributed to the decision not to hire the appli-
cants. By requiring proof by the General Counsel of
openings and qualifications at the liability stage, the ma-
jority’s decision responds to the concerns expressed by
the reviewing courts in Fluor Daniel, Starcon, and Ultra-
systems. The dissent, however, fails to perceive that
unless the General Counsel shows that a claimant meets
the Respondent’s bona fide qualifications, there is no
reason to believe “that antiunion considerations contrib-
uted to the decision not to hire.” (Emphasis added.)
The majority’s discussion of the showing required with
regard to applicant qualifications, in particular, appropri-

57 Id. at 970.
58 Id. at 971.
59 Id.
ately recognizes the distinction between hiring discrimina-
tion and discriminatory discharge cases discussed above. As
I understand the majority’s holding, they would require the
General Counsel to show that the alleged discriminatees in
a hiring discrimination case met the employer’s “objective”
hiring criteria, and they would place on the employer the
burden of establishing, as an affirmative defense, that the
applicants were not hired because they did not meet any
“subjective” criteria established by the employer. I agree
with this allocation of the burden of proof with regard to
qualifications, and I note that this requirement comports
with the practice in other areas of the law, such as Title VII
disparate impact cases, where the plaintiff must show that he
or she met the basic qualifications for the position, but is not
required to introduce evidence concerning his or her relative
qualifications as compared to successful applicants as part of
his or her initial showing.60 Rather, once the plaintiff has met
his or her burden, the employer is required to establish that it
would not have hired the plaintiff in any event because the
person chosen had superior qualifications.61
I am concerned, however, that the majority’s discussion of
the circumstances in which the General Counsel could met
his burden of proof with regard to applicant qualifications by
showing pretext may encourage the finding of violations in
circumstances where the evidence does not support an infer-
ence of unlawful employer motivation and thereby violate
the Supreme Court’s proscription against “plac[ing] an em-
ployee in a better position . . . than he would have occupied
had he done nothing.”62 The majority first cites a hypotheti-
cal case in which an employer reverses a decision to hire an
applicant, who does not meet the basic qualifications of the
job, when it learns that the applicant was a union supporter.
While I agree that proof of such a series of events could sup-
port a finding of discrimination, I would not find that the
General Counsel had met his burden of proof unless the to-
tality of the circumstances established that it is more likely
than not that the discovery of the applicant’s union support
caused the employer to change its mind.63
The majority’s second hypothetical is even more prob-
lematic. The majority posits a case in which an employer
advertises for electricians with 2 years of commercial ex-
perience and then refuses to hire the only applicant, an elec-
trician who does not meet the employer’s standards, but
who indicates union affiliation on the application. Accord-
60 See generally Walker v. Mortham, supra, 158 F.3d at 1192–1193.
61 Id. In my view, the distinction used in Title VII cases between the
basic and relative qualifications for a position better captures the dis-
tinctions the majority appears to be drawing than the “objective-
subjective” dichotomy which they have employed. Thus, the example
they cite of a requirement that applicants have “outstanding welding
skills” is, in fact, a relative qualification as an applicant can only be
deemed “outstanding” in comparison with others.
62 Mt. Healthy, supra, 429 U.S. at 285.
63 For example, evidence that an initial decision to hire was over-
ruled by a higher ranking official upon learning that the applicant was
unqualified would diminish the weight of this circumstantial evidence
as proof of discrimination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26
ing to the majority, if the General Counsel can establish
“anti-union animus,” that is sufficient to meet his burden of
proof with regard to qualifications as, by showing that the
employer hired no one, “even though the record shows that
it has an immediate need for electricians,” the General
Counsel would have established that the commercial ex-
perience requirement was a pretext.64
I would not find that the General Counsel had satisfied
his burden of proof under the majority’s hypothetical.
The majority, in effect, infers discriminatory motivation
from the fact that an employer (1) was hiring for posi-
tions for which the applicant was not qualified; (2)
“needed” to hire workers in positions for which the ap-
plicant was qualified; and (3) had union animus. In de-
ciding discrimination cases, however, the Board may not
substitute its business judgment for an employer’s—
including a determination of how many employees the
employer “needs.”65 Accordingly, and contrary to the
majority, I would not find that a facially neutral hiring
qualification (i.e., 2 years’ experience as a commercial
electrician) is pretextual simply because there is evidence
in the record from which the Board, in hindsight, would
find that the employer also “needed” workers who did
not meet the employer’s announced qualifications.66 Un-

64 The majority fails to specify the type of evidence that would be
sufficient, in their view, to show antiunion animus under their ap-
proach. As discussed below, I would evaluate alleged evidence of anti-
union animus in light of its nexus, if any, to the alleged discrimination.
65 See, e.g., Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th
Cir. 1995) (“[T]he employment discrimination laws have not vested in the
federal courts the authority to sit as super-personnel departments reviewing
the wisdom or the fairness of the business judgments made by employers,
except to the extent that those judgments involve intentional discrimina-
tion.”). Accord: DeJarnette v. Corning Inc., 133 F.3d 293 (4th Cir. 1998);
Ruiz v. Posadas de San Juan Associates, 124 F.3d 243 (1st Cir. 1997).
I am particularly skeptical of any claim by the majority that the Board
could determine that an employer’s bona fide qualification requirements are
not, in fact, necessary for the particular job. “How well one thing substitutes
for another cannot be determined by how similar they are in physical char-
acteristics, or indeed, by any purely objective criteria. Economists define
substitutability in terms of people’s subjective preferences as revealed by
their overt behavior.” T. Sowell, supra, at 49. Thus,
[t]hird-party observers may dismiss product differences as negligible,
just as they dismiss production cost differences as negligible. How-
ever, there is no “objective” measure of what is negligible. Something
is negligible or not negligible to someone. In baseball, for example,
the difference between a .250 hitter and a .350 hitter is only about one
hit out of every three games, which might seem negligible to a casual
onlooker, but that can be the difference between being sent back to the
minor leagues and ending up in the Hall of Fame. [Id. at 208.]
66 For the purpose of this discussion, I have assumed, as the ma-
jority does, that the General Counsel has established that the em-
ployer needs electricians without commercial experience. However,
it is not clear to me how the General Counsel could establish the
existence of such a “need” in a real case. To assume an abstract
“need” for employees misunderstands the business world. See T.
Sowell, supra: “There is no such thing as objective, quantitative
‘need.’” (Emphasis in original.) Moreover, an employer may in-
tend to hire a given number of new workers, but that projection is
necessarily contingent on the employer’s current appraisal of eco-
nomic conditions, demand for the employer’s goods or services, the
Unless the General Counsel presents additional evidence
sufficient to show that, absent the claimants’ protected
activity, the employer would have hired applicants who
did not meet its announced qualifications (e.g., direct
evidence of discriminatory motivation in declining to
offer employment because of protected conduct), I would
not find a violation in these circumstances as in my view
to do so would substitute the Board’s business judgment
for the employer’s and unfairly penalize the employer for
adhering to its announced standards.67
In sum, I would require the General Counsel to show
that the applicant met the actual qualifications for the
position established by the employer. In general, this
would require proof that the alleged discriminatee met
the announced or advertised qualifications for the job,
unless the employer is shown to have applied lower stan-
dards in practice.
F. The Appropriate Standard for Hiring Discrimina-
tion Cases
Consistent with the foregoing discussion, in hiring dis-
crimination cases, I would require the General Counsel
to show, at a minimum: (1) that the respondent was hir-
ing, or had concrete plans to hire; (2) that the applicants
met the announced (or actually applied) qualifications for
the position; and (3) that antiunion animus contributed to
the decision not to hire the applicants, taking into ac-
count all of the circumstances in the case—those which
support a finding of discrimination and those which sug-
gest that antiunion animus was not a motivating factor.
In determining whether the General Counsel has
shown that antiunion animus was a motivating factor, I
would consider all of the relevant evidence presented in
each case, including but not limited to the following:
• whether the alleged discriminatee actually sought
work with the employer.
In my view, a Section 8(a)(3) violation is not made out
unless there is proof that the alleged discriminatee ac-
tually sought work with the employer. In most cases,
this requirement will be satisfied by proof that the al-
leged discriminatee communicated to the employer his
or her interest in obtaining employment, e.g. by submit-
ting an employment application. Where the circum-
stances suggest that an alleged discriminatee did not
have a bona fide interest in employment with the re-
spondent, however, I would find that such evidence

availability of applicants, skill levels, and price. R. H. Leftwich,
The Price System and Resource Allocation, Ch. 13 (4th ed. 1970).
67 Indeed, an employer who relaxed its hiring criteria after learning
of an applicant’s union affiliation, but failed to do so for those who
were not affiliated with a union, could be charged with discrimination
against nonunion applicants. Thus, the Act proscribes with equal force
discrimination to discourage and to encourage union membership.
FES 27
suggests that no “discrimination in regard to hire” has
taken place.68

• whether the General Counsel has established that the
employer’s explanation for its hiring decisions was
pretextual.

To the extent that the General Counsel, as part of his
case in chief, elicits from the employer an explanation
for its decision not to hire an applicant, and then dem-
onstrates that this explanation is false, such a showing
would tend to support an inference that the real reason
for the refusal to hire was an unlawful one which the
employer wishes to hide.69

• whether the General Counsel has presented direct
evidence of an unlawful discriminatory motivation.

• whether the General Counsel has presented evidence
from which a factfinder could determine that the
evidence of union animus presented by the General
Counsel contributed to the alleged discrimination.

Evidence, for example, of threats not to hire union ad-
herents, by a hiring official, directed at an employee-
applicant, would support a discrimination claim by that
applicant in the event that he or she was not hired by
the employer. Similar statements by individuals not in-
volved in the hiring process, directed at individuals
other than the alleged discriminatee, or remote in time
from the events in question, in contrast, would be enti-
tled to little if any weight.
G. Discriminatory Failure to Consider Cases
I am in general agreement with the majority’s discus-
sion of the evidence required to establish that an em-
ployer unlawfully failed to consider an applicant for em-
ployment in violation of Section 8(a)(3) of the Act, sub-
ject, of course, to the foregoing discussion concerning
the burden of proof on the General Counsel. However, I
am concerned that language in the majority’s decision

68 Examples of factors I would consider relevant in this connection in-
clude evidence that an application was submitted by a third party, allegedly
on behalf of an alleged discriminatee, but without the “applicant’s” knowl-
edge or consent. Compare Kyles v. J. K. Guardian Security Services, 77 FEP
1473 (N.D. Ill 1998) (job testers not bona fide employees under Title VII). I
would also consider relevant evidence of the alleged discriminatee’s de-
portment during the application process, including evidence that a supposed
applicant for employment engaged in rude or boisterous behavior inconsis-
tent with an intent to obtain employment.
69 See, e.g., Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th
Cir. 1966). In assessing whether the General Counsel has carried his
burden of proof, the General Counsel’s evidence must, of course, be
viewed in isolation, apart from evidence presented by the respondent.
Bali Blinds Midwest, 292 NLRB 243 (1989). Consistent with this prin-
ciple, I would consider pretext evidence as support for the General
Counsel’s case only if it is presented by the General Counsel as part of
his case in chief. A finding that a respondent’s asserted reasons are
pretextual may warrant a finding of unlawful motivation, if supported
by the surrounding facts, but does not, of course, require such a finding.
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
leaves open the possibility that a violation could be made
out even in circumstances in which the employer was not
hiring for legitimate, nondiscriminatory reasons. I per-
ceive no warrant for the Board to find a violation of Sec-
tion 8(a)(3) in those circumstances.
The essence of a failure to hire violation is proof that
an applicant was not hired by an employer because of his
or her union or other protected, concerted activities. As
discussed above, implicit in a failure to hire violation is
the existence of a job opening into which the applicant
would have been hired in the absence of the unlawful
discrimination against them.
A failure to consider violation, on the other hand, is estab-
lished when the General Counsel shows that an applicant
was discriminatorily excluded from an employer’s hiring
process.70 This exclusion may result in a loss of employ-
ment in cases where the employer subsequently hires appli-
cants and the alleged discriminatee would have been con-
sidered and hired absent the unlawful discrimination. In
such cases, I agree with the majority that a violation of Sec-
tion 8(a)(3) has been made out, and should be remedied.
In some cases, the alleged failure to consider will in-
volve openings that existed prior to the commencement of
the hearing. The majority’s decision properly notes that, if
the General Counsel knows or should have known of such
openings, he must allege a failure to hire violation and
prove the elements of the violation at the trial on the mer-
its. However, it may also be the case that openings will
arise after the commencement of the hearing for which
the applicant would have been considered absent the
unlawful discrimination. I agree with the majority that a
violation of Section 8(a)(3) may be made out in those
situations as well.
However, I would not find an unlawful failure to con-
sider in violation of Section 8(a)(3), in situations where
the employer would not have hired anyone, for nondis-
criminatory reasons. In my view, a failure to consider
allegation presumes the existence of an active hiring
process.71 Thus, an employer does not meaningfully
“consider” anyone for employment unless the employer
is hiring. There is, accordingly, no discrimination in re-
gard to hire, proscribed by Section 8(a)(3), if an em-
ployer merely accepts or retains some applications, while
discarding others, unless some of the applications sub-
70 See Modern Electric Co., 327 NLRB 92 (1998). In Modern Elec-
tric, the Board found that the employer unlawfully refused to consider
an applicant for an electrician position where the applicant’s resume
was not forwarded to the hiring official for discriminatory reasons.
However, the Board dismissed an allegation that the employer unlaw-
fully failed to hire the applicant for the position for which he was de-
nied consideration, as the employer proved that it would not have hired
the discriminatee even in the absence of his union activities.
71 See Delta Mechanical, Inc., supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 28
mitted contemporaneously with those of the alleged dis-
criminatees were considered for an actual opening.72
If an employer communicates to employees that it will
not accept applications from union members, or will not
accord them nondiscriminatory consideration for openings
that may arise, however, I would find that the employer has
thereby violated Section 8(a)(1), as such statements rea-
sonably tend to interfere with, restrain, or coerce employees
in the exercise of their Section 7 rights, and I would order
the employer to cease and desist.73 No further relief would
be ordered unless the employer subsequently hired from
among the applications submitted contemporaneously with
those of the alleged discriminatees.
An 8(a)(3) violation, on the other hand, with its con-
comitant remedies of backpay and reinstatement, where
appropriate, requires proof not only of employer conduct
which interferes with, restrains, or coerces employees in
the exercise of their Section 7 rights, but of “discrimina-
tion in regard to hire.” As discussed above, proof of a
hiring process is an essential element of such a violation.
III. EMPLOYER AFFIRMATIVE DEFENSES
The courts have frequently criticized the Board’s han-
dling of employer defenses in 8(a)(3) cases. For example,
the courts have rejected findings by the Board that an
employer unlawfully disqualified applicants pursuant to a
rule against “batched” applications74 and nonresponsive
information on applications,75 and have rejected the
Board’s position that employee-applicants have a Section
7 right to put “union organizer” on their application.76
The courts have also rejected findings by the Board that
an employer unlawfully disqualified applicants pursuant
to rules against photocopied applications77 and dual em-
ployment.78 It seems clear from the foregoing that the
reviewing courts have not accepted the Board’s assess-
ment of employer affirmative defenses. I will not com-
ment further, however, because these issues are not the
subject of the Board’s decision today.

72 See NLRB v. Fluor Daniel, Inc., supra, 161 F.3d at 967 (“It cannot
be an unfair labor practice merely for an employer to harbor animus
against union members for applying for jobs that do not exist”).
73 This is the true analogue, under the Act, to the “legendary ‘No
Irish need apply’ signs of decades past” cited by the majority.
74 B E & K Construction Co. v. NLRB, 133 F.3d 1372 (11th Cir.
1997), denying enf. to 321 NLRB 561 (1996).
75 Boilermakers (H. B. Zachry) v. NLRB, 127 F.3d 1300 (11th Cir.
1997), denying enf. in pert. part to 319 NLRB 967 (1995).
76 Id.
77 TIC-The Industrial Co. Southeast, Inc. v. NLRB, 126 F.3d 334
(D.C. Cir. 1997), denying enf. to 322 NLRB 605 (1996).
78 Architectural Glass & Metal Co. v. NLRB, 107 F.3d 426 (6th Cir.
1997), denying enf. to 316 NLRB 789 (1995). Compare Little Rock
Electrical Contractors, 327 NLRB 932 (1999) (dismissing failure to
hire allegation where employer applied nondiscriminatory rule against
dual employment).
In my view, there is at least a possibility that, in some circum-
stances, an antidual employment requirement would be a qualification
for a position and thus properly part of the General Counsel’s case.
IV. REMEDY AND COMPLIANCE ISSUES
Many of the concerns expressed by the reviewing
courts with the Board’s jurisprudence in this area relate
to the remedies it has applied in cases where the Board
has found a refusal to hire or to consider an applicant for
hire. In particular, the courts have repeatedly chastised
the Board for attempting to address in compliance pro-
ceedings issues which relate to the respondent’s liabil-
ity.79 The majority’s decision today represents a solid
step forward in addressing these concerns by addressing
each element of a hiring discrimination violation and by
recognizing the necessity that the General Counsel show
some evidence related to the applicants’ qualifications.
I am, however, concerned that some of the presumptions
employed by the Board in compliance proceedings improp-
erly expand an employer’s remedial obligations beyond
those necessary to make discriminatees whole for the losses
actually suffered as a result of the discrimination against
them. The Board’s usual remedy for an unlawful refusal to
consider or to hire is to direct the employer to hire the dis-
criminatee into the position for which he or she applied, or
to a substantially equivalent position if the original position
no longer exists, and to provide backpay for the entire pe-
riod between the date of the discriminatee’s application and
the date of a valid offer of employment.80 Where, as in the
case of most construction industry employers, the discrimi-
natee was hired for a specific project, the Board will pre-
sume that the discriminatee would have been transferred to
subsequent projects and require backpay for those projects
as well, unless the employer proves that the applicants
would not have been transferred.81 There is some logic to
applying this remedy in discharge cases, where the respon-
dent had an opportunity to evaluate the discriminatee on the
job and in comparison with coworkers. There is, however,
no basis for applying the presumption to failure to hire
cases, for it forces the respondent to prove why it would not
have transferred to future jobs an applicant whom it never
hired and whose skills it has not observed.82
79 See Starcon, Inc. v. NLRB, supra, 176 F.3d at 952 (“The scope of
the order must be determined before the order is entered, not after-
wards. . . . We can hardly do this when the order is as tentative, and its
practical scope and operation as indefinite, as the order is here.”);
NLRB v. Fluor Daniel, Inc., supra, 161 F.3d at 969 (“[d]etermining the
scope of an employer’s liability in compliance proceedings seems to us
counterintuitive, even backwards”); Ultrasystems Western Construc-
tors, Inc. v. NLRB, supra, 18 F.3d at 259 (recognizing that an issue
which relates to liability “should not be omitted from consideration in
the liability phase on the basis that it can just as easily be addressed in a
compliance proceeding”).
80 See, e.g., Casey Electric, Inc., 313 NLRB 774 (1994).
81 Id. See also Dean General Contractors, 285 NLRB 573 (1987).
82 Because the issue arises in the compliance context, the presump-
tion also raises due-process concerns. Typically, the General Counsel’s
compliance evidence is presented by a compliance officer, whose
summary of the evidence, combined with the presumption, completes
the General Counsel’s case. In many cases, the respondent is then left
to make its defense without discovery or the benefit of cross-examining
the discriminatees during the General Counsel’s case.
FES 29
“It is, of course, settled law that a presumption adopted
and applied by the Board must rest on a sound factual
connection between the proved and inferred facts.”83 As
the Supreme Court explained more than 50 years ago in
Republic Aviation Corp. v. NLRB,84 “[l]ike a statutory
presumption or one established by regulation, the validity
[of a presumption adopted by the Board through adjudi-
cation], depends upon the rationality between what is
proved and what is inferred.”85 And, “[w]here such a
nexus is lacking, the presumption is invalid.”86 In par-
ticular, the Board, in adopting a presumption, “is not free
to ignore statutory language by creating a presumption
on grounds of policy to avoid the necessity for finding
that which the legislature requires to be found.”87
The Board’s authority to remedy unfair labor practices is
prescribed by the Act, which authorizes the Board to issue
orders requiring the respondent “to cease and desist from
such unfair labor practice, and to take such affirmative ac-
tion including reinstatement of employees with or without
backpay, as will effectuate the policies of [the Act].”88 The
Board’s remedial orders should “make employees only
whole, and not more, by ‘restoring the economic status quo
that would have obtained but for the company’s wrongful
[action]’ . . . . The order in the first instance, even though
general, must nevertheless be congruent with the scope of
discrimination, so that its enforcement neutralizes the dis-
crimination, and does not go beyond.”89
Applying these principles, I have substantial doubts
concerning the fairness of the Board’s presumptions re-
garding an employer’s reinstatement and backpay obliga-
tions in hiring discrimination cases. In the case of an
employee who is unlawfully discharged in violation of
Section 8(a)(3), it is reasonable to expect that the em-
ployee would have remained on the payroll, in the ab-
sence of the unlawful discrimination, and to provide for a
commensurate award of backpay. Moreover, in the event
that this presumption is inaccurate in a particular case,
the employer is the party with the information relevant to
the issue. Accordingly, it is not unfair to place on the
employer the burden of rebutting the presumption.
The circumstances are quite different, however, in a
case of hiring discrimination. There, the Board must pro-
ject the future of an individual who never worked for the
employer and has no work history with that employer to

83 NLRB v. Baptist Hospital, 442 U.S. 773, 787 (1979) (questioning
validity of presumption that solicitation activity outside of immediate
patient care areas does not interfere with the delivery of patient care
services).
84 324 U.S. 793 (1945).
85 Id. at 804–805.
86 Painters Local 829 v. NLRB, 762 F.2d 1027, 1034 (D.C. Cir. 1985), de-
nying enf. to 267 NLRB 858 (1983), on remand 278 NLRB 319 (1986). See
generally McCormick, Evidence, supra, § 347 at 476–479.
87 Painters Local 829 v. NLRB, supra, 762 F.2d at 1034.
88 29 U.S.C. § 160(c).
89 Ultrasystems Western Constructors v. NLRB, supra, 18 F.3d at 258–259
(quoting NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263 (1969)).
be evaluated. There is no basis for presuming that the
applicant would have met the employer’s requirements
once hired, much less that the employee would have been
transferred from one job to another over the subsequent
months and years. This presumption is particularly inap-
posite in cases where an employer hires on a project-by-
project basis, and does not retain a stable work force.
Moreover, in contrast to the situation in a discharge case,
the employer does not have access to any information
concerning the applicant beyond whatever may be con-
tained in their application.
For the foregoing reasons, I would not apply the Dean
General presumption of continued employment in failure to
hire or failure to consider cases. Rather, I would limit back-
pay and instatement remedies to the duration of the project
as to which the unlawful discrimination occurred, unless the
General Counsel can introduce evidence from which the
factfinder can infer that the discriminatee would have been
transferred to each claimed subsequent project.
V. SALTING ISSUES
The principles set forth above are, of course, applica-
ble in all hiring discrimination cases. However, a sub-
stantial portion of the hiring discrimination cases at the
Board involve union “salts”; individuals who seek em-
ployment at least in part for the purpose of organizing the
employer. “Salting” has been defined as the practice of
“having union members or organizers take jobs with
open-shop contractors to organize workers, or to harass
or disrupt contractor operations.”90 Consistent with these
objectives, in at least some cases union organizers submit
applications in the hope of being rejected so that they can
file unfair labor practice charges with the Board and in-
flict legal expenses on the targeted employer in retalia-
tion for its failure to recognize the union.91 Concerns
over these practices have led one administrative law
judge to conclude that alleged discriminatees in cases
before him were not bona fide applicants but instead had
applied for the purpose of giving the union grounds for
filing unfair labor practice charges.92
90 Herbert R. Northrup, “Salting” the Contractors’ Labor Force:
Construction Unions Organizing with NLRB Assistance, 14 J. Lab. Res.
469, 471–473 (1993).
91 For example, the International Brotherhood of Electrical Workers’ salt-
ing manual states that the goals of a salting operation included: “[t]he addi-
tion of several high-priced, non-productive journeymen [attorneys] to . . . .
payroll; [t]he exposure of [the employer] to substantial back pay and interest
liability plus fringe benefit accruals, if any . . . [t]he eventual placement on
the payroll and job of a substantial number of Local 934 member-
organizers.” See Ippli, Inc., 321 NLRB 463, 469 (1996).
These tactics are especially useful in the construction industry be-
cause construction contractors are susceptible to “top-down” organizing
pressures not permissible in other industries.
92 See Zeppelin Electric Co., 328 NLRB 452, 458 (1999); M. J. Me-
chanical Services, 324 NLRB 812, 825 (1997). See also Sunland Con-
struction, Inc., 309 NLRB 1224, 1246 (1992) (characterizing salting
tactics as comparable to “blackmail”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 30
I do not doubt that some employers unlawfully refuse
to hire applicants, or to consider them for employment,
because of their union activities or membership. When-
ever such violations occur, they must be taken seriously
as they deprive employee applicants of the full freedom
of self-organization provided by the Act. However, there
is no warrant for finding a violation of the Act, much less
for imposing any remedial obligations on an employer,
for failing to hire an individual who is not genuinely
seeking employment. As long as parties appearing before
the Board continue to employ these ill-advised tactics,
the Board must take great care to insure that it is not “co-
opted” by “organized labor interests” and draw only the
appropriate conclusions required by the full context of
each case which comes before it.
VI. APPLICATION OF CORRECT LEGAL
STANDARD TO THE FACTS OF THIS CASE
I join the majority in affirming the judge’s finding that the
Respondent unlawfully failed to consider nine union appli-
cants for employment and in remanding to the judge the
issue of whether the Respondent unlawfully failed to hire
the nine applicants. In finding that the Respondent unlaw-
fully failed to consider the applicants, the judge, inter alia,
rejected the Respondent’s wage compatibility defense,
wherein the Respondent asserted that it did not consider or
hire the applicants because their applications indicated that
they had previously worked for employers who paid wages
significantly higher than the wage rate paid by the Respon-
dent. The judge found that the Respondent’s “wage rate
criteria” were a post hoc rationalization for excluding union
supporters from employment, based on evidence that the
criteria did not exist in written form and credited testimony
that they were not consistently applied. In agreement with
the majority, I would adopt these findings.
The judge, however, also appears to have found that a
wage compatibility defense is “a code word for Union or
union organizer” and hence inherently illegitimate. Any
such finding is, of course, erroneous as a matter of law.93
Moreover, in light of the judge’s failure to address the
allegation that the Respondent unlawfully failed to hire
the nine applicants for the eight welder pipefitter posi-
tions shown to have been open during the relevant period
of time, which we are remanding to the judge, it seems
clear that the judge could not have considered or decided,
the applicability of the wage compatibility defense to that
allegation. In these circumstances, I understand the ma-
jority’s decision to contemplate that this defense, and any
other affirmative defense, may be asserted by the Re-
spondent in connection with the remand of this case.

MEMBER FOX, concurring and dissenting in part.
Although I agree with my colleagues as to the general
framework set out in the majority opinion for analyzing and

93 See J. O. Mory, Inc., 326 NLRB 604 (1998); Bay Control Services,
315 NLRB 30 fn. 2 (1994); Wireways, Inc., 309 NLRB 245 (1992).
litigating refusal-to-consider and refusal-to-hire cases, I do
not agree with their specification of the elements of proof of
a refusal-to-hire violation insofar as it requires the General
Counsel to establish not only that antiunion animus contrib-
uted to the decision not to hire the alleged discriminatees,
but also that the applicants “had experience or training rela-
tive to the announced or generally known requirements of
the positions for hire,” or that these “announced or generally
known” requirements were pretextual or not uniformly ad-
hered to. In my view, this formulation suffers from two
defects. First, it shifts to the General Counsel a burden
which, under the Wright Line test approved by the Supreme
Court in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), should properly be borne by the employer,
once it has been shown that the employer has acted out of an
unlawful motive. Second, it seems to me likely to unneces-
sarily complicate the litigation of refusal-to-hire cases.
In Wright Line, 251 NLRB 1083, 1089 (1980), the
Board announced that it would henceforth apply the fol-
lowing causation test in “all cases” alleging violations of
Section 8(a)(3) or violation of Section 8(a)(1) turning on
employer motivation:
First, we shall require that the General Counsel make a
prima facie showing sufficient to support the inference
that protected conduct was a “motivating factor” in the
employer’s decision. Once this is established, the bur-
den will shift to the employer to demonstrate that the
same action would have taken place even in the ab-
sence of the protected conduct. [Emphasis added.]
As the Supreme Court stated when it approved the Wright
Line test in Transportation Management, supra, once it has
been shown that protected conduct was a motivating factor
in the employer’s discharge or “other adverse action” taken
against an employee, it is appropriate that the employer bear
the burden of showing that the adverse action would have
occurred in any event:
The employer is a wrongdoer; he has acted out of a mo-
tive that is declared illegitimate by the statute. It is fair
that he bear the risk that the influence of legal and ille-
gal motives cannot be separated, because he knowingly
created the risk and because the risk was created not by
innocent activity but by his own wrongdoing. [462
U.S. at 403.]
Applying a Wright Line analysis to refusal-to-hire
cases, the General Counsel should be able to make out a
violation by showing that there was an actual refusal to
hire—i.e., that the applicant applied for a position the
employer was seeking to fill and was not hired for that
position—and that antiunion considerations contributed
to the decision not to hire. At that point, the employer
having been shown to have “acted out of a motive that is
declared illegitimate by the statute,” he should not be
able to escape liability unless he can show that for le-
gitimate, nondiscriminatory reasons such as lack of
qualifications he would not have hired the applicant even
FES 31
absent the unlawful motive. As Judge Posner explained
in his penguin hypothetical in Starcon, Inc. v. NLRB, 176
F.3d 948 (7th Cir. 1999), if a penguin wearing a button
identifying himself as a voluntary union organizer ap-
plied for and was turned down for a job as a welder, and
the General Counsel was able to prove that the employer
would never hire anyone wearing a voluntary union or-
ganizer button, “this would be a classic mixed-motive
case, and it would therefore be open to Starcon to prove
that, in any event, it would never hire a penguin because
penguins can’t weld. But the burden of proving this
would be on Starcon.” Id., 176 F.3d at 948.
The problem with the majority’s test is that the burden
does not shift to the employer once the General Counsel has
established the refusal to hire and “that antiunion animus
contributed to the decision not to hire” (the third element of
the majority’s test). Rather, the burden remains on the Gen-
eral Counsel to additionally show that the applicant met cer-
tain “announced or generally known” qualifications for the
position, or that those requirements were pretextual or were
not uniformly adhered to. In other words, instead of the em-
ployer having to prove that under legitimate, nondiscrimina-
tory criteria that it actually used for evaluating applicants, the
alleged discriminatee would not have been hired, the General
Counsel has to prove that the applicant met whatever an-
nounced or “generally known” requirements there may have
been for the job, and these requirements are presumed to be
those that the employer actually utilized unless the General
Counsel can prove otherwise. This a significant departure
from established procedures for litigating cases alleging vio-
lations of 8(a)(3), with potentially significant consequences
for how such cases will be ultimately decided.
As the Supreme Court made clear in Transportation
Management, what is at stake in the allocation of burdens
under Wright Line is which side bears the risk that “the
influence of legal and illegal motives cannot be sepa-
rated.” 462 U.S. at 403. Under Wright Line, that risk is
properly placed on the employer, because he has been
shown to have acted with an unlawful motive. If he is
unable to come forward with evidence sufficient to per-
suade the factfinder that he would have taken the same
action for lawful reasons, he cannot escape liability.
Under the majority’s formulation for refusal-to-hire
cases, at least part of the risk of nonpersuasion is on the
General Counsel rather than the employer. I see no rea-
son for such a departure from the basic principles of
Wright Line in refusal-to-hire cases.
I am not suggesting that under an analysis consistent
with Wright Line, evidence of the applicant’s qualifica-
tions for the job would never be part of the General
Counsel’s case. I recognize that in cases where there is
no direct evidence of unlawful motive, and the General
Counsel is relying on inferences drawn from other evi-
dence to establish a violation, a showing by the General
Counsel that the alleged discriminatees were in fact
qualified for the positions for which they applied might
well be necessary in order to convince the finder of fact
that antiunion considerations were indeed a motivating
factor in the decision not to hire. See, for example,
WACO, Inc., 316 NLRB 73, 76 fn. 9 (1995), in which the
Board concluded that in light of the General Counsel’s
failure to adduce any evidence of antiunion animus and
the judge’s finding that the applicants lacked the qualifi-
cations sought by the employer, the General Counsel had
failed to make out a prima facie case that the Respondent
refused to hire job applicants because of their union af-
filiation. What I find objectionable, and contrary to
Wright Line, is that under the majority’s test, even where
the General Counsel has established that union animus
was a motivating factor in the failure to hire—even
through direct evidence of unlawful motive—the General
Counsel must additionally provide proof of the appli-
cant’s qualifications in order to establish a violation.
Contrary to the majority’s assertion, their new formu-
lation of the elements of a refusal-to-hire violation is not
supported by Board precedent. The Board has previ-
ously stated that:
the elements of a discriminatory refusal-to-hire case are
the employment application by each alleged discrimi-
natee, the refusal to hire each, a showing that each was
or might be expected to a union supporter or sympa-
thizer, and further showings that [an] employer knew of
or suspected such sympathy or support, maintained an
animus against it, and refused to hire the applicant be-
cause of such animus.
Big E’s Foodland, Inc., 242 NLRB 963, 968 (1979). See
also, e.g., Grand Rapids Press, 327 NLRB 393, 396 (1998);
M. J. Mechanical Services, 324 NLRB 812, 816 (1997). The
Board has never said that the General Counsel must, in addi-
tion to showing that the employer refused to hire the appli-
cant because of union animus, show that the applicant was
qualified for the position. The cases cited by the majority as
consistent with their new formulation—GM Electrics, 323
NLRB 125 (1997), and Casey Electric, 313 NLRB 774
(1994)—simply illustrate the point made above that the
Board has relied on evidence that the applicants were quali-
fied for the positions as support for a finding that their union
affiliation was a factor in the decision not to hire them.
The Board adopted the Wright Line test for determin-
ing liability in 8(a)(3) cases in large part because various
other tests employed by the Board and the courts had
created widespread disagreement and controversy about
the respective burdens of the parties in such cases, and
how those burdens could be satisfied. My concern is that
the majority’s new formulation of the elements necessary
to make out a refusal to hire, insofar as it departs from
the Wright Line formulation, will once again signifi-
cantly complicate the prosecution and adjudication of
such cases, and lead to much unnecessary litigation over,
for example, what are the “generally known” require-
ments for particular jobs, and what constitutes training or
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 32
experience “related to” such requirements. In accor-
dance with Wright Line, I would adhere to the formula-
tion of the elements of a discriminatory refusal to hire set
forth in Big E’s Foodland, supra, and similar cases. Ac-
cordingly, I dissent from the portion of the majority deci-
sion, which changes that test.

Steven L. Sokolow and Patrick M. Devine, Esqs., for the General
Counsel.
Thomas R. Davies, Esq. (Harmon & Davies, P.C.), of Lancaster,
Pennsylvania, for the Respondent.
James L. Cowden, Esq. (Strokoff & Cowden, P.C.), of Harris-
burg, Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This
case was tried in York, Pennsylvania, on July 20, 1998. The
charge was filed May 20, 1996,1 and the complaint was issued
December 29, 1997.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
FES is a division of Thermo Power Corporation. FES has an
office and facility in York, Pennsylvania, where it manufac-
tures industrial refrigeration equipment. From this facility it
annually sells and ships goods valued in excess of $50,000 to
points outside the Commonwealth of Pennsylvania. FES admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union, Plumbers and Pipefitters Local Union 520, is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
On February 9, 1996, six union members applied for employ-
ment with FES, three more applied on March 29, and one member
applied on April 24. None of these were contacted or interviewed
by Respondent and none were offered employment. The General
Counsel alleges Respondent refused to consider for employment
and refused to hire these applicants in violation of Section 8(a)(1)
and (3) of the Act because they were union members and because
FES expected that these applicants would try to organize its em-
ployees. Respondent contends the applicants were not considered
for nondiscriminatory reasons.
On or about January 15, 1996, Neil “Chip” Roche, Respondent’s
vice president for manufacturing, signed off on a company requisi-
tion request for the hiring of five welder/pipefitters who could pass
a 1-G and 6-G weld test, as well as read and understand mechanical
drawings. He signed off on a requisition request for three more
experienced welder/pipefitters on February 19.
At or about the time of the first request, FES’ construction divi-
sion also decided to hire welder/pipefitters in anticipation of possi-
bly receiving a contract to do work for Pocono Produce Company.
On February 4, FES placed a classified advertisement for welders
and pipefitters in the York, Pennsyvania, Sunday News.
On February 9, Terry Peck, the Local 520 business agent,
accompanied five unemployed union journeymen to FES’ of-

1 All dates are in 1996 unless otherwise indicated.
fice. They wore union hats and union jackets and filed em-
ployment applications. They also videotaped this process.
The FES construction division was not awarded the contract
with Pocono Produce and apparently never hired anyone to fill
the positions for which it advertised on February 4.2 However,
the union applications were also reviewed by Chip Roche, who
decided not to interview or hire the union applicants. Roche
was aware of the video taping by the Union on February 9, and
discussed with other FES personnel the possibility of consult-
ing with a labor attorney regarding these applications.
On March 27, the FES manufacturing department placed a
classified ad in the York Daily Record, which stated:

FES has immediate openings for WELDERS. The ideal can-
didate will be certified to build Pressure Vessels per ASME
Section VIII and/or have experience building Carbon Steel
Piping Systems per ANSI B31.5. If you have strong welding
skills, FES will train you to work on pipe and vessels

FES ran an identical ad on March 29.
On March 29, Terry Peck returned to FES’ office with jour-
neymen John Ganoe and Brian Bathavic, who filed employ-
ment applications. Peck also submitted a resume for Thomas
Bathavic III. Approximately 3 days later, one of the York
newspapers ran an article about the difficulties faced by area
employers due to a shortage of skilled labor. Roche, whose
picture accompanied the article, was quoted as saying that FES
might have to build a new plant outside of the York area due to
a shortage of skilled labor, particularly welders. Roche was also
quoted as worrying about where he was going to find 5 to 10
workers to man the expansion of a York area operation.3
Shortly after this article appeared, Union Business Agent
Terry Peck called Roche. Peck told Roche that he had jour-
neymen pipefitters and welders available. Roche replied that
“he was not interested in the Union or what the Union could do
for him or his company.”4
Sometime during March, Terry Peck also responded to a
newspaper advertisement placed by an employment agency,
Personnel Express. Peck’s application and that of two other
individuals, who apparently weren’t connected with the Union,
were sent to FES. Roche’s immediate subordinate, Bob
McCubbin, interviewed the other two applicants, but not Peck.
Finally, union journeyman Robert Stupp submitted an employ-
ment application directly to FES on April 23. He was never
contacted by the Company.
FES filled all the positions covered by the January and Feb-
ruary requisitions and the March advertisements. None of the
employees hired had the qualifications set forth in the requisi-
tions or advertisements; all of the union applicants had these
qualifications. Respondent also dealt with its labor shortage by
contracting out some of its fabrication work.
Analysis
Discrimination in refusing to consider applications for hire
on the basis of union membership or activity is discrimination
2 The construction division hired two welder/trainees during the first
half of 1996; the record does not indicate in what month they were
hired, or whether their positions could have been filled by the union
applicants.
3 Roche confirmed that he told the reporter that he was having trou-
ble finding welders.
4 Peck’s testimony regarding this conversation is unrebutted and thus
credited.
FES 33
in regard to hire within the meaning of Section 8(a)(3). Such
discrimination is proved by showing that (1) the employer is
covered by the Act; (2) that the employer at the time of alleg-
edly illegal conduct was hiring or had concrete plans to hire; (3)
that antiunion animus contributed to the decision not to con-
sider, interview or hire an applicant; and (4) that the applicant
was a bona fide applicant, 3E Co., 322 NLRB 1058, 1061–1062
(1997), NLRB v. Ultrasystems Western Contractors, 18 F.3d
251, 256 (4th Cir. 1994), enfg. in part, denying enforcement in
part, and remanding Ultrasystems Western Contractors [I], 310
NLRB 545 (1993), quoted in Ultrasystems Westem Contractors
[II], 316 NLRB 1243 (1993). Pursuant to Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), the
General Counsel must show that antiunion sentiment was a
substantial factor in the employer’s decision. If he does so, the
employer must prove its affirmative defense that it would have
taken the same action even if the employees had not engaged in
protected activity.
In the instant matter, Respondent does not dispute that it was
covered by the Act. The record also shows that it hired a num-
ber of employees soon after the union members applied for
employment. The General Counsel has also established that the
nine union members were bona fide applicants by proving that
they were experienced welders and/or pipefitters, 3E Co., supra
at 1058 fn. 2 and 1062.
Inferences of animus and discriminatory motivation may be
warranted under all the circumstances of a case, even without
direct evidence, 3E Co., 322 NLRB 1058, 1062 (1997). In this
case, there is direct evidence of animus and discriminatory
motivation. While Respondent was seeking new employees,
Peck called “Chip” Roche and informed him that the Union had
journeymen pipefitter and welders available with the qualifica-
tions mentioned in FES’ employment advertisements. Roche
responded by telling Peck he was not interested.
There is also indirect evidence from which I infer antiunion
animus and discriminatory motive. Respondent advertised for
skilled welders. When presented with applications from union
members/voluntary organizers, who had such qualifications,
FES decided to hire individuals who were significantly less
qualified. Respondent’s assertion that it prefers to hire indi-
viduals with basic skills and then train them “the FES way” is
belied by the advertisements. These advertisements lead me to
conclude that if individuals with the skills listed had applied for
a job at FES and hadn’t indicated that they intended to organ-
ize, they would have been considered for employment.
FES contends that it decided not to interview or contact any
of the union applicants after determining that they were not a
“good fit” for FES employment. The criteria it claims to have
used consists of the level of effort put into their applications,
whether their applications were complete, “wage rate compati-
bility” and stability in prior employment. I find these criterion
to be pretexts for discriminatory hiring practices. The finding of
such a pretext supports the inference of antiunion animus and
discriminatory motive, Fluor Daniel, Inc., 304 NLRB 970
(1991). The criteria by which Roche claims he disqualified the
union applicants do not exist in written form and are not strictly
adhered to. There is no evidence they were ever applied to any
applicants other than the Local 520 “salts.”5 The criterion thus

5 There is also no evidence that Respondent inquired as to whether the
union applicants would be willing to work at its wage rates, or whether any
of them would not have been willing to work for FES at these rates.
appear to be posthoc justifications for disqualifying a union
applicant or potential union organizer. FES’ disqualification of
individuals for “wage rate incompatibility” is merely a code
word for Union or union organizers.6
I therefore conclude that the General Counsel has met its prima
facie case of proving that 9 of the 10 union applicants were not
hired for discriminatory reasons. There is no evidence, however,
that Respondent was aware that Robert Stupp, who applied on
April 24, was a union member or organizer. I therefore dismiss the
complaint with regard to Stupp. On the other hand, I infer that
Respondent knew or suspected that John Ganoe, Brian Bathavic,
and Thomas Bathavic were union organizers (or salts) from the fact
that business agent Peck accompanied the first two to FES’ office
and submitted the latter’s resume.
For many of the same reasons, I conclude that Respondent has
not made out a legitimate affirmative defense.7 For example, Re-
spondent contends that it adopted its “wage compatibility” criterion
as the result of its earlier experience in hiring several laid-off union
employees from York International Company. FES contends that
because these employees returned to work when recalled by York,
it would never consider hiring employees who have made signifi-
cantly higher wages elsewhere.
I find the testimony that FES adopted a nondiscriminatory
hiring policy as the result of this experience not to be credible.
It is hardly surprising that the York employees returned to
York, when that company recalled them. I do not believe that
their departure was unanticipated by FES.
If FES is concerned that union employees will leave for the
first job available to them at union scale, it has alternatives to
discriminating against them in employment. As the Supreme
Court noted in Town & Country Electric, 116 S.Ct. 450, 457
(1995), “[a] company disturbed by legal but undesirable activ-
ity, such as quitting can offer its employees fixed-term con-
tracts, rather than hiring them ‘at will’ or it can negotiate with
its workers for a notice period.” Respondent has not pursued
such solutions, but continues to hire its employees at will.
Finally, even if Respondent was unhappy with its experience
with the York employees, that experience does not provide a
sufficient basis for recognizing its “wage compatibility” crite-
rion as a legitimate nondiscriminatory factor in considering job
applicants. To do so would essentially allow Respondent to
avoid hiring anyone who has ever been a union journeyman.
Moreover, NLRA cases are replete with instances in which ex-
union employees have chosen to work nonunion because, for
example, they concluded that the nonunion employer provided
steady, albeit lower wage employment. See, e.g., M. J. Me-
chanical Services, 325 NLRB 1098, 1106 fn. 20 (1998).
6 It is not even clear that this factor was applied in a consistent manner.
Bob McCubbin testified that FES hired employee Carl Knobb, who worked
for unionized sheetmetal employers. There is no indication as to whether
Knobb was a journeyman or apprentice, but if he was a journeyman, he too
probably suffers from “wage rate incompatibility.” There is no indication
that Knobb was going to try to organize Respondent’s employees.
7 Respondent in its brief notes that it received 88 applications from
individuals seeking positions as pipefitters or welders during the period
from June 1995 though May 1996, and hired very few of them. This
provides no grounds for an affirmative defense in that there is no indi-
cation that any other applicants had comparable qualifications to those
of the alleged discriminatees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 34
CONCLUSIONS OF LAW
By refusing to consider for hire applicants Brian Bathavic,
Thomas Bathavic III, Brett Emerich, John Ganoe, Kevin
Goodman, George Heckert, Terry E. Peck, David Wagner, and
Richard Walker II, Respondent violated Section 8(a)(1) and (3).
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent violated Section 8(a)(1) and
(3) of the Act by refusing to consider nine applicants for employ-
ment, l shall order Respondent to consider them for hire and to
provide backpay to those whom it would have hired but for its
unlawful conduct.8 In addition, if at the compliance stage of this
proceeding it is determined that the Respondent would have hired
any of these nine employee-applicants, the inquiry as to the amount
of backpay due these individuals will include any amounts they
would have received on other jobs to which the Respondent would
later have assigned them. Finally, if at the compliance stage it is
established that the Respondent would have assigned any of these
discriminatees to current jobs, Respondent shall hire those indi-
viduals and place them in positions substantially equivalent to
those which they would have been hired for initially.
On these findings of fact and conclusions of law and on the
entire record, l issue the following recommended9
ORDER
The Respondent, FES (a Division of Thermo Power), York,
Pennsylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to consider for hire applicants on the
basis of their union affiliation or based on Respondent’s belief
or suspicion that they may engage in organizing activity once
they are hired.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

8 The current state of the record is insufficient to determine whether
Respondent would or would not have hired any of the applicants, if it
had considered them on a nondiscriminatory basis. Roche testified that
the only reason he could find for not considering applicant John Ganoe
was his “wage incompatibility.” Respondent suggests it would not
have hired Kevin Goodman because he had been fired from his last job
and left it off his FES employment application. While the record sug-
gests that Ganoe had superior qualifications to employees hired after he
applied, Respondent will have the opportunity at the compliance stage
to establish that it would not have hired him. However, it will bear the
burden of proving that employees hired after the application dates of
Ganoe and the other discriminatees had superior qualifications, H. B.
Zachry Co., 319 NLRB 967, 968 (1995). The fact that Goodman had
been fired by a previous employer does not necessarily mean that FES
would not have hired him. Individuals who have been fired before are
hired all the time, particularly when there is a labor shortage, even by
employers who are aware of their prior employment record. With re-
gard to the shortcomings of other Union applications (i.e., incomplete
employment history), these appear to have been made a disqualifying
factor on a very selective basis by FES.
9 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 purposes.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make whole any of the following job applicants for any
losses they may have suffered by reason of Respondent’s dis-
criminatory refusal to consider them for hire as determined in
the compliance stage of this proceeding. Offer those applicants,
who would currently be employed but for Respondent’s unlaw-
ful refusal to consider them for hire, employment in positions
for which they applied. If those positions no longer exist, Re-
spondent must offer these applicants substantially equivalent
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 by Respondent:
Brian Bathavic, Thomas Bathavic III, Brett Emerich, John
Ganoe, Kevin Goodman, George Heckert, Terry E. Peck,
David Wagner and Richard Walker II.
(b) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Within 14 days after service by the Region, post at its York,
Pennsylvania facility, copies of the attached notice marked “Ap-
pendix.”10 Copies of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent immedi-
ately upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or cov-
ered 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 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 February 9, 1996.
(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.
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.

WE WILL NOT fail or refuse to consider for hire applicants
on the basis of their union affiliation or based on our belief or
suspicion that they may engage in organizing activity once they
are hired.
10 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.”
FES 35
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 make whole, with interest, those of the applicants
named below who, as determined in an NLRB compliance
proceeding, are found to have suffered economic loss as a result
of our failure and refusal to consider them for hire:

Brian Bathavic, Thomas Bathavic III, Brett Emerich, John
Ganoe, Kevin Goodman, George Heckert, Terry E. Peck,
David Wagner and Richard Walker II.

WE WILL offer those applicants listed above who would be
currently employed by us, but for our unlawful refusal to consider
them for employment, employment in positions for which they
applied. If those positions no longer exist, we will offer them em-
ployment in substantially equivalent positions, without prejudice to
seniority or any other rights or privileges to which they would have
been entitled if we had not discriminated against them.
WE WILL notify in writing all applicants listed above that
any future job application will be considered in a nondiscrimi-
natory manner.

FES (A DIVISION OF THERMO POWER)