Hi-Tech Interiors, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 2006

348 N.L.R.B. 304 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 18
304
Hi-Tech Interiors, Inc. and United Brotherhood of
Carpenters and Joiners of America, District
Council of Kansas City & Vicinity, AFL–CIO.
Case 17–CA–22916
September 28, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND KIRSANOW
On June 20, 2005, Administrative Law Judge Albert
A. Metz issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and Charging Party filed separate answering
briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt his recommended Order as modi-
fied below.2
We agree with the judge that the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to hire, and
to consider hiring, William Rogers and Bruce
Hildebrandt because it knew from their applications that
they intended to organize employees on behalf of the
Union. We find no merit in the Respondent’s argument
that the General Counsel failed to prove that union ani-
mus motivated its hiring decisions because it hired sev-
eral employees who it knew or suspected were affiliated
with the Union. As fully described in the judge’s deci-
sion, Field Superintendent Martin Baumgard’s unlawful
coercive statements to job applicant Woody Hall provide
direct evidence of Respondent’s animus against union
organizers. In particular, Baumgard told Hall, “So, that’s
my only issue with anybody that’s hired on, is that I
don’t want somebody coming on and then a couple of
months down the road trying to organize the company.”3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order to conform more
closely to the 8(a)(3) violations found, and in accordance with the
amended remedy (below) and Indian Hills Care Center, 321 NLRB
144 (1996). We shall also substitute a new notice to conform to the
Order as modified.
3 Based on the specific facts of this case, we affirm the judge’s find-
ing that Baumgard violated Sec. 8(a)(1) by coercively interrogating
Hall during this same conversation. We find no need to pass on
whether Baumgard also unlawfully interrogated job applicant Joe Hal-
That the Respondent hired several known or suspected
union applicants does not negate the strong evidence that
it discriminated against Rogers and Hildebrandt because
of their declared union organizer status.4 Unlike Rogers
and Hildebrandt, none of the individuals hired indicated
an intent to engage in organizational activities.5 Conse-
quently, we agree with the judge that the General Coun-
sel met his initial burden of showing that union animus
motivated the Respondent’s hiring decisions.6 Inasmuch
as the Respondent failed to prove any legitimate reasons
for refusing to hire or consider hiring Rogers and
Hildebrandt, it has not met its rebuttal burden of showing
that it would have taken the same actions even if the dis-
criminatees had not declared their intent to engage in
union organizing activities. The Respondent therefore
violated Section 8(a)(3) of the Act.
AMENDED REMEDY
The Respondent contends in exceptions that it is inap-
propriate to order instatement and backpay for Rogers
and Hildebrandt without making those remedies condi-
tional on their first passing the mandatory drug screening
and physical capacity tests that all new employees must
pass before beginning work. In the circumstances of this
case, passing the tests is a condition of instatement. We
therefore find that the Respondent should be permitted to
administer these tests, and that it is not required to hire a
discriminatee who fails either test.7

stead because the finding of an additional violation would not affect the
remedy for the Respondent’s misconduct.
In finding that Baumgard’s interrogation of Hall violated Sec.
8(a)(1), we agree that the questioning was coercive considering all
relevant circumstances. See Rossmore House, 269 NLRB 1176 (1984),
enfd. sub nom. Hotel Employees & Restaurant Employees Union, Local
11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). We find it unnecessary to
pass on the judge’s finding that the questioning was inherently coer-
cive.
4 See, e.g., Zurn/N.E.P.C.O., 345 NLRB 12, 19 (2005) (Joe Van
Dyke).
5 We place little weight on Baumgard’s testimony about his alleged
attempt to hire Thomas Fischer, who, like Rogers and Hildebrandt,
declared his union organizer status on his application. Fischer applied
for work on July 7 or 8, 2004, but Baumgard testified that he did not
even check Fischer’s prior employer reference until October 2004, after
the Union filed a charge naming Fischer as a discriminatee. In the
interim, the Respondent hired nine carpenters within 3 weeks or less of
their respective application dates. Further, while Baumgard initially
testified that he offered Fischer a job, he later testified that he could not
recall whether he contacted Fischer after learning that he had returned
to work with his former employer.
6 See FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002).
The Respondent does not contest the judge’s findings that it was hiring
at the time of the alleged misconduct or that Rogers and Hildebrandt
had the requisite training and experience for the positions for which
they applied.
7 Kamtech, Inc., 333 NLRB 242 (2001).
HI-TECH INTERIORS, INC. 305
With respect to backpay, if either discriminatee fails a
test, that does not necessarily mean he would have done
so at the time of the Respondent’s discrimination in
2004. However, a present-day test failure is sufficient to
raise an inference that the discriminatee would also have
failed the test in 2004 at the time of the discrimination.
The discriminatee is in possession of the evidence to
show that his physical capacity and/or drug usage was
different on that earlier date. Consequently, upon show-
ing of a test failure, the burden should shift to the Gen-
eral Counsel to go forward with evidence that the dis-
criminatee would have passed the test if administered at
the time of the Respondent’s unlawful conduct. The ul-
timate burden of persuasion remains with the wrongdo-
ing Respondent. Thus, if the evidence on the record as a
whole is in equipoise, then the Respondent will not pre-
vail in its claim that backpay should be limited based on
the test results.8
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, Hi-Tech
Interiors, Inc., Manhattan, Kansas, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order, as modified.
1. Substitute the following for paragraph 1(c).
“(c) Failing and refusing to consider applicants for
hire, or failing and refusing to hire applicants because of
their support for the United Brotherhood of Carpenters
and Joiners of America, District Council of Kansas City
and Vicinity, AFL–CIO, or any other labor organiza-
tion.”
2. Substitute the following for paragraph 2(a), reletter-
ing subsequent paragraphs.
“(a) Within 14 days from the date of this Order, offer
William Rogers and Bruce Hildebrandt instatement to
the positions for which they applied, subject to their
passing drug screening and physical capacity tests re-
quired for all new employees, or, if those positions no

8 Any backpay due shall be computed as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). As stated by the
judge, the Board leaves to compliance the determination of how long a
discriminatee would have worked for the Respondent if he had not been
unlawfully refused hire. Dean General Contractors, 285 NLRB 573
(1987). Chairman Battista and Member Schaumber recognize that
Dean General represents current Board law. They have concerns,
however, about whether that case was correctly decided. Inasmuch as
evidence adduced at the compliance stage may lessen or eliminate
backpay and eliminate the instatement order, they do not pass on the
respective burdens of proof as to these matters, except as discussed
above with respect to the physical capacity and drug tests. Progressive
Electric, 344 NLRB No. 52, slip op. at 3 (2005).
longer exist, to substantially equivalent positions (subject
to the same conditions), without prejudice to their senior-
ity or any other rights or privileges that they would have
enjoyed absent the discrimination against them.
“(b) Make William Rogers and Bruce Hildebrandt
whole, with interest, for any loss of earnings and other
benefits sustained by reason of the discrimination against
them, in the manner set forth in the Amended Remedy
section of this Decision and Order.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate employees, including appli-
cants for employment, concerning their union member-
ship, activities, or sympathies.
WE WILL NOT inform employees, including applicants
for employment, that we will not hire applicants who
intend to engage in union organizing activities.
WE WILL NOT fail and refuse to consider applicants for
hire, or fail and refuse to hire applicants, because of their
support for the United Brotherhood of Carpenters and
Joiners of America, District Council of Kansas City and
Vicinity, AFL–CIO, or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights under Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer William Rogers and Bruce Hildebrandt in-
statement to the positions for which they applied, subject
to their passing the drug screening and physical capacity
tests we require of all new employees before they start
work, or if those positions no longer exist, to substan-
tially equivalent positions (subject to the same condi-
tions), without prejudice to their seniority or any other
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD306
rights or privileges that they would have enjoyed absent
the discrimination against them.
WE WILL make William Rogers and Bruce Hildebrandt
whole for any loss of earnings and other benefits suffered
as a result of our discrimination against them, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order,
expunge from our files all references to the unlawful
failure to hire and to consider for hire William Rogers
and Bruce Hildebrandt, and WE WILL, within 3 days
thereafter, notify them in writing that this has been done
and that our unlawful conduct will not be used against
them in any way.
HI-TECH INTERIORS, INC.
Michael Werner, Esq., for the General Counsel.
David L. Vogel, Esq., for the Respondent.
Martin W. Walter, Esq., for the Charging Party Union.
DECISION1
ALBERT A. METZ, Administrative Law Judge. The issues are
whether the Respondent unlawfully interrogated employees
concerning their union activities, implied that it would refuse to
hire union-affiliated employees, and refused to hire or consider
for hire, William Rogers and Bruce Hildebrandt because of
their union affiliation. The Respondent’s conduct is alleged to
have violated Section 8(a)(1) and (3) of the National Labor
Relations Act.2 On the entire record, including my observation
of the demeanor of the witnesses, and after considering the
briefs filed by the parties, I make the following findings of fact.
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business in Manhattan, Kansas, is a contractor engaged in the
business of interior finish and specialized exterior construction
including metal stud framing, installation of drywall, plaster,
acoustical ceilings, and applying exterior insulation finish sys-
tem (EIFS). The Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ROGERS AND HILDEBRANDT APPLY FOR EMPLOYMENT
The Respondent’s relevant hierarchy consists of President
Fred Willich and Martin Baumgard, who serves as field super-
intendent. Baumgard reports directly to Willich and is respon-
sible for all of Respondent’s hiring decisions.
On about July 4, the Respondent placed advertisements in
the Topeka Capital Journal and Manhattan Mercury newspapers
seeking employees to work as metal stud framers and sheet
rockers. Union member William Rogers applied for employ-
ment with Respondent on July 9. Rogers was acting pursuant
to instructions from his union business agent in seeking em-

1 This matter was heard at Manhattan, Kansas, on April 12, 2005.
All dates in this decision refer to 2004, unless otherwise stated.
2 29 U.S.C. § 158(a)(1) and (3).
ployment from the Respondent. His application stated that he
had in excess of 40 years of framing and sheetrock experience.
Rogers wrote the words “Union Organizer” on the top of his
application.
On July 12, union carpenter Bruce Hildebrandt completed an
application for employment with the Respondent. Hildebrandt
wrote on his application that he had 18 years of metal stud and
sheetrock experience. Hildebrandt also wrote the words “Un-
ion Organizer” on the top of his application.
The Respondent hired the following carpenter employees
during the relevant period:
HIRE
DATE EMPLOYEE EXPERIENCE
July 19 Greg Green 15 years of framing &
sheetrock experience
which was similar to
Hildebrandt’s experience,
but far less than Rogers’
40 years of carpentry
experience.
July 21 Darrell Frye 7 years of framing &
sheetrock experience.
July 27 Tim Sheen 2 & 3 years of framing
experience & 1 year of
sheetrock experience.
July 29 Joe Halstead 6 years experience framing
& hanging sheetrock.
Aug. 5 Edgar Damron A carpenter whose back-
ground was comparable to
Hildebrandt’s.
Aug. 10 Chris Flowers 6 years of framing experi-
ence & 5 years of sheet-
rock experience.
Sept. 7 Jason Haslouer 10 years of framing ex-
perience & no experience
hanging sheetrock.
Sept. 14 Woody Hall 5 years of framing &
sheetrock experience.
Sept. 24 Charlie Strauss Strauss did not list how
many years he had been
hanging sheetrock or fram-
ing.
Hildebrandt did not receive a response to his application and
on September 9 he telephoned the Respondent to inquire about
the matter. He testified without contradiction that the Respon-
dent’s receptionist told him that the Respondent was hiring and
she promised to pass his name along to Martin Baumgard.
Hildebrandt did not hear from the Respondent and thus he tele-
phoned the Respondent on September 22. Again he was told
that the Respondent was still hiring. Hildebrandt never heard
from the Respondent. Rogers telephoned the Respondent on
September 22 to check on the status of his application but never
heard back from the Respondent.
Between July and September 2004, the Respondent hired
nine carpenters. In July and October, the Respondent placed
advertisements in local newspapers seeking carpenters with
framing, sheetrock, and acoustical ceiling experience. The
Respondent admittedly had numerous ongoing projects, includ-
ing seven projects on which its estimated manpower require-
ments exceeded 700 days.
HI-TECH INTERIORS, INC. 307
In October, the Respondent continued its need for employees
but was having difficulty meeting these demands. The Re-
spondent publishes an in-house newsletter, the “Hi-Tech In-
former,” and in the October edition Baumgard wrote:
Work wise things are looking up and it has been an extremely
busy year. We had a fairly busy summer, with a great deal of
overtime on Panera Bread, Council Grove High School, Wa-
mego High School, Discovery Furniture and Seaton Hall just
to name a few. . . . We have a great deal of work running now
and plenty more work in the books to keep everyone busy all
winter long and throughout most of the spring. . . . I could
also use some help finding new employees, if you have
someone in mind let me know. [GC Exh. 7.]
The Respondent was unable to hire all of the carpenters that
it needed. Thus, on October 5, the Respondent signed a labor
supply agreement with MSI, Inc. Pursuant to this agreement
MSI contracted to provide the Respondent with employees at a
billing rate of $22.96 per hour, per man straight time.
Baumgard testified that since October 2004, MSI supplied the
Respondent with 15–20 carpenters, finishers, EIFS, and acous-
tical ceiling mechanics. The Respondent also advertised in the
Topeka Capital Journal on October 20 seeking additional em-
ployees with experience in metal studs, drywall, EIFS, acousti-
cal ceilings, and other related activities.
III. CONVERSATION BETWEEN BAUMGARD AND JOE HALSTEAD
Union Organizer Paul Garrett asked union member Joe Hal-
stead to submit an application to the Respondent and on July 16
Halstead telephoned the Respondent’s office. Halstead used a
tape recorder to record his conversation. The evidence shows
that Halstead requested an application and was advised that
Respondent was hiring. His call was then transferred to
Baumgard who also told Halstead that the Respondent was
hiring. The conversation continued to the point where
Baumgard asked Halstead:
MB: . . . are you, Union, non-union?
JH: Uh, I have been Union in the past.
MB: Okay, well that’s fine, we are a non-Union shop.
JH: Yeah, that’s fine.
MB: Okay.
JH: I realize that.
MB: Well I’ve had a lot of Union guys thinking we
were Union.
JH: Okay.
MB: And, then, you know, it wastes everybody’s time
because they don’t want to work for me. [GC Exhs. 13 and
14.]
Baumgard’s representation to Halstead that he had “a lot of
Union guys” thinking that the Respondent was a union com-
pany and it was a waste of time because they did not want to
work for him was contradicted by Baumgard’s testimony.
Baumgard testified that he could not recall any employees who
had applied for work and who had been offered a job ever tell-
ing him they could not work for the Respondent because it was
a nonunion company. Likewise, Baumgard testified that he
could not recall any of the applicants who had a union back-
ground ever thinking that the Respondent was a union com-
pany. I conclude that Baumgard’s inquiry of Halstead was
motivated by Baumgard’s desire to gain knowledge of the ap-
plicant’s union sympathies.
IV. CONVERSATION BETWEEN WOODY HALL AND BAUMGARD
Union member Woody Hall went to the Respondent’s jobsite
at Discovery Furniture in Topeka on August 25. Hall spoke
with Respondent’s Foreman Casey Willich about employment.
Willich gave him an application and instructed him to speak
with Baumgard about getting hired. Hall subsequently tele-
phoned Baumgard and made arrangements to fax his applica-
tion to Respondent’s office. On September 8, Hall went to the
Respondent’s office for a scheduled interview with Baumgard.
Hall carried a hidden tape recorder with him during the inter-
view. Baumgard inspected Hall’s application and noticed that
he had previously worked for KBS, a union contractor. The
recorded conversation then continued:
MB: What, you going to try and stick with the Union?
Cause we are nonunion.
WH: Yeah, I know, there’s just no work in Topeka.
MB: I know, but see the thing is with them, the Dis-
covery Furniture store here in Topeka, they put a banner,
they’re out there picketing us. And we’ve got Heritage
Bank in Topeka and they’re starting to put another picket
sign up there. And we’ve got another job that they’re
threatening to throw another picket sign up there. So, I
mean, just making sure that, I mean I’ve had a couple of
guys come in and say ‘I’m sitting on the bench too much, I
just can’t do it no more’ and then when I tell them I’m
(unintelligible.) for nonunion it’s all “oh I can’t work for
you.” So, that’s the only thing I’m getting at. So I mean,
with your qualifications and your skills I see no reason not
to hire you. The thing is we don’t want somebody coming
in here and six months down the road trying to send the
Union back in here, cause they want this company bad.
They want the company name, they want the company,
they want the people. And they’re, they’re saying we’re
doing all kinds of nasty things that we’re not. That’s just
them. So, there is no feelings with me and the Union. I
could take them or leave them. But I just don’t want them
here.
WH: Okay.
MB: So, that’s my only issue with anybody that’s
hired on, is that I don’t want somebody coming on and
then a couple of months down the road trying to organize
the company. [GC Exhs. 11 and 12, pp. 1–2.]
Baumgard did not contest the accuracy of the taped conver-
sations with Hall and Halstead. Baumgard did testify that he
could not recall anything about these conversations. I credit the
accuracy of the taped conversations and the testimony of Hall
and Halstead and find that Baumgard did speak the words at-
tributed to him.
V. ANALYSIS
A. The 8(a)(1) Allegations
The Government alleges that Baumgard’s interrogation of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD308
Halstead about his union affiliation is a violation of Section
8(a)(1) of the Act. The Respondent defends Baumgard’s ques-
tions about applicants’ union membership and statements about
union organizing as merely an effort to inform applicants of the
Respondent’s nonunion status.
The Board holds that an employer’s inquiries about an appli-
cant’s union membership during a job interview are inherently
coercive and violate the Act. Quality Drywall Co., 254 NLRB
617, 621 (1981) (questions concerning former union member-
ship in the context of job application interviews, are inherently
coercive, without accompanying threats, even when the inter-
viewee is subsequently hired); Service Master, 267 NLRB 875,
875 (1983); Triple H. Electric Co., 323 NLRB 549, 552 (1997).
Baumgard’s interrogation of Halstead’s union membership was
made during the critical job interview stage and, under case
law, was inherently coercive. I find that Baumgard’s question-
ing of Halstead was indeed an unlawful inquiry into the appli-
cant’s union membership and sympathies. I conclude, there-
fore, that the Respondent did violate Section 8(a)(1) of the Act
by this interrogation.
The Government alleges that Baumgard’s statement to Hall
that the Respondent would remain nonunion implied that the
company would refuse to hire union-affiliated applicants. Ad-
ditionally, it is alleged that Baumgard unlawfully interrogated
Hall regarding his union affiliation and preference. Baumgard
noted that Hall’s application showed he had worked for the
union firm KBS which led him to inquire if Hall was “going to
try and stick with the Union.” As discussed above, I conclude
that such an interrogation of a job applicant is coercive and a
violation of Section 8(a)(1) of the Act under well established
Board precedent. Baumgard’s additional statements are like-
wise unlawful. Thus, Baumgard followed the interrogation by
stating, “The thing is we don’t want somebody coming in here
and six months down the road trying to send the Union back in
here, cause they want this company bad.” Baumgard added,
“. . . that’s my only issue with anybody that’s hired on, is that I
don’t want somebody coming on and then a couple months
down the road trying to organize the company.” Such state-
ments clearly tend to interfere with, restrain, and coerce em-
ployees in their rights under the Act to engage in union and
other protected concerted activity. Quality Control Electric,
323 NLRB 238 (1997) (employer’s statement that it was afraid
to hire union members because it did not want to be organized
held to be unlawful). Baumgard’s statements were coercive
and a clear indication that the Respondent would refuse to hire
applicants who were affiliated with a labor organization and
intended to organize the Respondent. I conclude that these
statements also violated Section 8(a)(1) of the Act.
B. The 8(a)(3) Allegations
The Government alleges that the Respondent refused to hire
and refused to consider for hire Rogers and Hildebrandt be-
cause of their “union organizer” expressions set forth on their
applications. The Respondent contends that Rogers was well
qualified and, although he was never hired, it was considering
him for employment as a foreman. The Respondent asserts that
Baumgard had knowledge of Hildebrand’s work habits and
decided not to hire him because of an adverse opinion as to
those habits and because his reference check was unfavorable.
The Respondent has no written policies concerning the han-
dling of employment applications or the interviewing of appli-
cants. Baumgard does have a practice, however, of reviewing
all applications and assessing whether the applicant is worthy
of an interview. If the candidate is promising Baumgard checks
his references. The Respondent keeps employment applica-
tions on file for 6 months.
William Rogers listed over 40 years of carpentry experience
on his application, including a union apprenticeship, training in
scaffolding, and first aid instruction. Rogers’ application noted
that he worked as a foreman on several projects including a
HAZMAT facility in Los Alamos, New Mexico, and a power-
plant in Council Bluffs, Iowa. Rogers is also certified as a
building inspector by the International Conference of Building
Officials.
Bruce Hildebrandt’s application reflected that he had 15
years experience in framing and installing acoustical ceilings,
and 18 years experience in hanging sheetrock. Hildebrandt had
worked as a foreman on two projects, supervising approxi-
mately seven employees on each project.
1. Refusal-to-consider standard
In FES, 331 NLRB 9 (2000), the Board set forth the stan-
dards for judging discriminatory refusals-to-consider individu-
als for hire and for assessing illegal refusals to hire. To estab-
lish a discriminatory refusal-to-consider case, it is necessary to
show:
1.) the respondent excluded applicants from a hiring process;
and 2.) antiunion animus contributed to the decision not to
consider the applicants for employment.
If these elements are established, the Employer then bears
the burden of demonstrating that it would not have considered
the applicants even in the absence of their union activity or
affiliation.
2. Refusal-to-hire standard
The Board in FES, supra at 12, stated the following elements
are necessary to establish a discriminatory refusal-to-hire:
(1) The respondent was hiring, or had concrete plans to hire,
at the time of the alleged unlawful conduct; (2) The applicants
had experience or training relevant to the announced or gener-
ally known requirements of the positions for hire, or in the al-
ternative that the employer has not adhered uniformly to such
requirements, or that the requirements were themselves pre-
textual or were applied as a pretext for discrimination; and (3)
antiunion animus contributed to the decision not to hire the
applicants. Once these elements are established the burden
will shift to respondent to show that it would not have hired
the applicants even in the absence of their union activity or af-
filiation.
The record shows that in the summer and fall of 2004, the
Respondent had a large amount of work and a great need for
carpenters. To fill this need the Respondent did directly hire
nine carpenter employees, continued to advertise for additional
applicants, and urged its employees to recommend potential
applicants. Ultimately the Respondent had to hire contract
HI-TECH INTERIORS, INC. 309
carpenters through MSI in order to meet its needs.
The Respondent does not contest the technical qualifications
of Hildebrandt or Rogers whose backgrounds included many
years of experience as carpenters. I find that both men had the
experience and training relevant to requirements of the posi-
tions for which they applied.
3. Bruce Hildebrandt
Hildebrandt applied for employment with the Respondent on
July 12. Baumgard testified that he had worked for a contractor
that also employed Hildebrandt approximately 7 years before
Hildebrandt’s application. Baumgard testified that Hildebrandt
was not hired because he had occasion to observe Hildebrandt
at work during that employment and found him to be a slow
worker. On October 6, the Union filed a charge against the
Respondent alleging that the failure to hire Hildebrandt was an
unfair labor practice. Baumgard testified that on October 12,
he checked Hildebrand’s references after being instructed by
the Respondent’s president to check all references regardless of
intent to hire because “people change.” Baumgard testified that
when he asked Louie Gasprich of Dry Wall Construction Com-
pany about Hildebrandt, Gasprich said that he would not hire
him back. Thus, based on these two reasons, Baumgard’s his-
toric observation of Hildebrandt’s work and his reference
check, Baumgard decided not to hire him. Gasprich did not
testify at the hearing.
This explanation varies from the Respondent’s position
statement provided to the Government during the investigation
of the charges in this case. That statement gave the following
explanation for not hiring Hildebrandt:
Hi-Tech received Bruce Hildebrandt’s application for em-
ployment on July 12th, 2004. During the hiring process men-
tioned above, the previous employers of Mr. Hildebrandt in-
formed Hi-Tech that they would not hire him back for several
factors, including lack of production while at his previous jobs
and the fact the Mr. Hildebrandt did not take a leadership role
during his prior employment. Hi-Tech’s policies are for ap-
plicants to have a good track record with their former em-
ployers and to have a progressive leadership roll within their
previous jobs. Based on the information received from Mr.
Hildebrandt’s former employers, he did not meet Hi-Tech’s
criteria for employment. [GC Exh. 8.]
The position statement makes no reference to Baumgard’s
personal trepidation about Hildebrandt’s work resulting from
having previously worked with him. The sole reason for not
hiring Hildebrandt is stated to be the poor references he re-
ceived. In fact, the evidence shows that only one reference
check was completed on Hildebrandt and this was done some 3
months after he applied for work and after charges were filed
regarding his not being hired. I find that the Respondent has
offered shifting reasons for not hiring Hildebrandt. Naomi
Knitting Plant, 328 NLRB 1279, 1283 (1999) (shifting reasons
constitute evidence of discriminatory motivation); Black Enter-
tainment Television, 324 NLRB 1161 (1997) (Board noted
Respondent’s shifting explanations given in its position state-
ment and its assertions at the hearing for reducing hours and
laying off of employees. “The Board has long expressed the
view that when an employer vacillates in offering a rational and
consistent account of its actions, an inference may be drawn
that the real reason for its conduct is not among those asserted.”
Sound One Corp., 317 NLRB 854, 858 (1995).”); Mastercraft
Casket Co., 289 NLRB 1414, 1420 (1988), enfd. 881 F.2d 542
(8th Cir. 1989). I infer that the reasons offered for not hiring
Hildebrandt are not the true reasons he was not hired.
Weighing against the Respondent’s defense for not hiring
Hildebrandt is Baumgard’s statements of antiunion animus and
the Respondent’s intent not to hire union supporters because,
“. . . we don’t want somebody coming in here and six months
down the road trying to send the Union back in here,” and “. . .
I just don’t want them here.” See C. P. Associates, Inc., 336
NLRB 167, 168 (2001) (animus established by evidence of
unlawful threats and interrogating applicants/employees about
their union sympathies.) I found Baumgard’s demeanor while
testifying to be guarded and evasive in explaining his hiring
practices and procedures. This assessment of Baumgard’s tes-
timony also includes his clouded memory as to what he said to
Hall and Halstead regarding being union carpenters and the
Respondent not wanting to be organized by the Union. He
could not “recall” anything about such discussions. As noted,
Hildebrandt had prominently advised the Respondent of his
prounion sympathies by stating on his application that he was a
“Union Organizer.” Based on the record as a whole I do not
credit Baumgard as to the reasons he gave for not hiring
Hildebrandt.
The Respondent was in urgent need of carpenter employees at
the time of Hildebrandt’s application for employment, he was a
qualified carpenter, and I find that antiunion animus contributed
to the decision not to consider him for employment and that this
was, at least in part, the reason he was excluded from the hiring
process. The Respondent offered shifting reasons as to why it
did not consider him for employment. I find, therefore, that the
Respondent has not met its burden of establishing that it would
not have hired Hildebrandt even in the absence of his union
membership and “union organizer” status. Wright Line, 251
NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). See Zengel Bros., 298 NLRB
203, 206 (1990) (an employer’s failure to offer a consistent ac-
count of its actions warrants an inference that the real reason for
its conduct is not among those asserted); Gaetano & Associates,
Inc., 344 NLRB 531, 533–534 (2005). I conclude that the pre-
ponderance of the evidence establishes that the Respondent
unlawfully refused to consider Hildebrandt for employment in
violation of Section 8(a)(1) and (3) of the Act.
Regarding the allegation that Hildebrandt was unlawfully re-
fused employment the evidence shows that the Respondent (1)
was hiring, or had concrete plans to hire, at the time of the al-
leged unlawful conduct; (2) Hildebrandt had the experience or
training relevant to the requirements of the positions for hire
and (3) antiunion animus contributed to the decision not to hire
him. I further find that the credited evidence demonstrates that
the Respondent failed to show that it would not have hired
Hildebrandt even in the absence of his union activity or affilia-
tion. Wright Line, supra. I conclude that the Respondent also
unlawfully refused to hire Hildebrandt in violation of Section
8(a)(1) and (3) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD310
4. William Rogers
The Respondent asserts that Rogers was not hired because he
was over qualified for the openings it had for carpenters.
Baumgard testified that he would consider Rogers for a fore-
man’s position but the hiring done for those jobs had been from
present or former employees.
The evidence shows that Rogers was a highly qualified and
experienced carpenter. He did not seek a foreman position on
his July 9 application and listed as “negotiable” his expected
pay. The Respondent never contacted him about employment
despite its pressing need for carpenters. Rogers’ application,
unlike others, shows no evidence that the Respondent ever
checked his references. The Respondent never returned his
telephone call inquiring about the status of his application. The
Respondent never discussed with Rogers that it was consider-
ing him for a foreman position or ask whether he was willing to
work as a journeyman carpenter. The Respondent hired several
less experienced carpenters in the meantime and, when it ran
out of acceptable applicants, it resorted to contracting with MSI
to provide additional carpenters.
Rogers had conspicuously advised the Respondent of his
prounion sympathies by stating on his application that he was a
“Union Organizer.” As noted above, the Respondent’s hiring
agent exhibited clear antiunion animus against hiring anyone
who was going to attempt to organize its employees.
Baumgard’s bias against the Union organizing the Respondent
was also evident in his demeanor when testifying. In this re-
gard Baumgard’s lack of conviction and hesitating manner
when testifying were not persuasive that he was candidly stat-
ing the real reasons for failing to hire Rogers. Thus, Baumgard
is not credited as to the reasons he gave for not hiring Rogers. I
have also considered the weight of the evidence and find that
the admitted facts show the Respondent’s urgent need for car-
penters make it inherently improbable that it would totally ig-
nore a highly experienced applicant to its own business detri-
ment. This conduct shows that the Respondent fabricated the
reasons it did not hire Rogers and I infer from such action that
the Respondent had an unlawful motive in fabricating such
reasons. Shattuck Denn Mining Corp., 362 F.2d 466, 470 (9th
Cir. 1966) (“If [a trier of fact] finds that the stated motive for a
discharge is false, he certainly can infer that there is another mo-
tive. More than that, he can infer that the motive is one that the
employer desires to conceal—an unlawful motive—at least where
the surrounding facts tend to reinforce that inference.”); Tidewa-
ter Construction Corp., 341 NLRB 456, 458 (2004) (“By defini-
tion, an employer’s proffer of a lawful, but false, reason for an
alleged act of Section 8(a)(3) discrimination constitutes evidence
that the proffered lawful reason was pretextual, i.e., it either did not
exist or was not, in fact, relied upon, thereby permitting the Shat-
tuck Denn inference that the employer was shielding an illicit mo-
tive.”) Limestone Apparel Corp., 255 NLRB 722 (1981); LaGloria
Oil & Gas Co., 337 NLRB 1120, 1124 (2002). I find that the
Respondent has not shown that it would have refused to hire or
consider for hire Rogers regardless of his union membership or
activities. Wright Line, supra. I conclude that the Government
has shown by a preponderance of the evidence that the Respon-
dent has violated Section 8(a)(1) and (3) of the Act by refusing
to hire and refusing to consider for hire William Rogers. FES,
331 NLRB 9 (2000).
As set forth above the Government has shown the Respon-
dent had a number of openings that were available for hiring at
the relevant time. That evidence demonstrates that the Respon-
dent was advertising for help when Hildebrandt and Rogers
applied for employment and that the company hired nine car-
penter employees within a short period thereafter. C. P. Asso-
ciates, Inc., 336 NLRB 167, 168 (2001) (newspaper ads and
contemporaneous hirings at the time of the alleged unlawful
conduct prove element 1 of FES standards for refusal to hire
violation). I find, therefore that such proof of job openings
justifies an affirmative remedy of instatement and backpay for
both Hildebrandt and Rogers. Choctaw Builders, Inc., 338
NLRB 799 (2003); Jet Electric Co., 334 NLRB 1059, 1159–
1160 (2001). See also Jobsite Staffing, 340 NLRB 332 (2003)
(when both a refusal-to-hire and a refusal-to-consider for hire
violation are found the remedy for the refusal to consider viola-
tion is subsumed by the broader refusal to hire remedy.)
CONCLUSIONS OF LAW
1. The Respondent, Hi-Tech Interiors, Inc., Manhattan, Kan-
sas, is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of Amer-
ica, District Council of Kansas City and Vicinity is a labor
organization within the meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) and (3) of
the Act.
4. The foregoing unfair labor practices constitute unfair la-
bor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Hi-Tech Interiors, Inc., Manhattan, Kansas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees, including applicants for em-
ployment, concerning their union membership, activities, or
sympathies.
(b) Informing employees, including job applicants, that it is
futile for applicants who intend to engage in union organizing
activity to apply for work.
(c) Failing and refusing to consider applicants for hire, or
failing or refusing to hire applicants, because of their member-
ship in, or support for, the United Brotherhood of Carpenters
and Joiners of America, District Council of Kansas City and
Vicinity, AFL–CIO, or any other labor organization.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
HI-TECH INTERIORS, INC. 311
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make William Rogers and Bruce Hildebrandt whole, with
interest, for any economic loss suffered as a result of the failure
and refusal to hire them, computed on a quarterly basis, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). As determined
in a subsequent compliance proceeding, instate William Rogers
and Bruce Hildebrandt to the available positions for which they
applied or, if those positions no longer exist, to substantially
equivalent positions. Instatement shall be without prejudice to
seniority or any other rights or privileges to which these dis-
criminatees would have been entitled if the Respondent had not
discriminated against them. Because Respondent is engaged in
the construction industry, I shall further recommend, in accord
with Dean General Contractors, 285 NLRB 573 (1987), that
the Board leave to the compliance stage of this proceeding the
determination of whether the discriminatees would have con-
tinued in the Respondent’s employment after completion of the
projects for which they would have been hired. Network Dy-
namics Cables, 341 NLRB 735, 735 fn. 2 (2004). See also
Cheney Construction, 344 NLRB 238 (2005), and Progressive
Electric, Inc., 344 NLRB 426 (2005) (at the compliance stage,
the parties may introduce evidence as to how long a discrimina-
tee would have worked for the Respondent if he had not been
unlawfully refused hire).
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal-to-hire and con-
sider-for-hire the above-named discriminates and, within 3 days
thereafter, notify them in writing that this has been done and
that the unlawful actions will not be used against them in any
way.
(c) Preserve and, within 14 days of a request or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payments re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of the records if stored in
electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Manhattan, Kansas copies of the attached notice
marked “Appendix”4 Copies of the notice, on forms provided
by the Regional Director for Region 17, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, 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 July 9, 2004.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certificate of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

4 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.”