JS Mechanical, Inc.

National Labor Relations Board - Board Decisions

Mar 3, 2004

341 N.L.R.B. 353 (N.L.R.B. 2004)

JS MECHANICAL, INC. 353
JS Mechanical, Inc., and Sheet Metal Workers’ In-
ternational Association, Local Union No. 19.
Case 4–CA–29973
March 3, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On December 10, 2001, Administrative Law Judge
Paul Bogas issued the attached decision. The Charging
Party filed exceptions and a supporting brief. The Re-
spondent filed answers to the Charging Party’s excep-
tions and a brief in support of the judge’s decision.
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 and
to adopt the recommended Order.
We agree with the judge’s dismissal of the complaint
in its entirety including, for reasons more fully discussed
below, the allegations arising from statements by the
Respondent’s superintendent, Matthew Negrotti, on July
13, 2000,2 and from the Respondent’s decisions not to
hire organizers Patrick Keenan and Robert DiOrio.3
I. NEGROTTI’S JULY 13 STATEMENTS
The Respondent fabricates, installs, and services heat-
ing, ventilation, and air-conditioning (HVAC) systems.
On July 13, Keenan and six other union organizers—
some wearing union hats—came to the Respondent’s
office to apply for advertised positions. The Respon-
dent’s office manager, Diane Sulzbach, or another office

1 The Charging Party 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 of 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 Unless otherwise indicated, all dates are 2000.
3 In agreeing with her colleagues that the judge correctly dismissed
the 8(a)(1) allegation arising from the Respondent’s calling the police
to evict union organizers on July 13, Member Liebman adopts the
judge’s analysis only insofar as it is based upon the disruptive behavior
of the organizer applicants, see Heiliger Electric Corp., 325 NLRB
966, 967–968 (1998), and not insofar as it relies on their intentions.
In addition, Member Liebman would not rely on Yellow Freight
Systems, 313 NLRB 309, 329–332 (1993), cited by the judge. That
case is cited for the administrative law judge’s dismissal of an allega-
tion that the employer unlawfully evicted a union representative from
its premises. Because the Board’s decision did not mention the issue
and the General Counsel apparently filed no exceptions, it is not clear
that the finding was reviewed by the Board and thus that the judge’s
ruling is actually precedential.
worker, told them that the Respondent required appli-
cants to set up an appointment by telephone before com-
ing in. When the organizers again asked to fill out appli-
cations, the Respondent’s superintendent, Matthew Ne-
grotti, responded, “Why would you want to? We’re an
open shop . . . I can see by the gentleman’s hat, he’s a
union worker.” The Respondent’s project manager, Carl
Polichetti, who was also present, repeated that the organ-
izers would have to telephone first, but the organizers
refused to leave. The Respondent’s president, James
Smith, also explained the “telephone first” policy and
threatened to call the police if the organizers persisted.
Because of the tense atmosphere and the organizers’ re-
fusal to depart, Smith had Sulzbach call the police. The
organizers departed.
The judge declined to decide whether the version of
Negrotti’s statements that he credited—“Why would you
want to [apply for work]; we’re an open shop . . . I can
see by the gentleman’s hat, he’s a union worker.”—was
unlawful because those statements were not alleged as
unlawful in the complaint or in the General Counsel’s
brief, and their meaning was not fully litigated.4 In its
brief in support of exceptions, the Charging Party argues,
inter alia, that the judge should have found that the
statements violated Section 8(a)(1). We find it unneces-
sary to decide whether Negrotti’s statements, as credited,
were closely related to the complaint allegations and
fully litigated, because we conclude that, in any case,
those statements were lawful.
We agree with the judge that Negrotti’s statements
conveyed surprise that the organizers wanted to work for
the Respondent, and we find that they are not coercive.
See, e.g., Colden Hills, Inc., 337 NLRB 560 (2002).
Thus, Negrotti made the statements while the Respon-
dent’s office staff was explaining the correct application
procedure to the organizers, not discouraging them from
applying. Cf. J. L. Phillips Enterprises, 310 NLRB 11,
13 (1993). And, to the extent the tone of the conversa-
tion became hostile, that hostility was prompted by the
organizer applicants’ crowding into the Respondent’s
offices and refusing to abide by the Respondent’s appli-
cation process. Under these circumstances, we find that
Negrotti’s statements would not have reasonably tended
to coerce or interfere with the organizer applicants’ exer-
cise of their Section 7 rights.
4 The complaint alleges that “[o]n or about July 13, 2000, Respon-
dent by Matthew Negrotti . . . told employee-applicants that Respon-
dent did not want ‘union guys’ at the Facility, thereby indicating that it
was futile for [them] to apply” and that “[b]y the conduct described
above . . . Respondent has been . . . in violation of Section 8(a)(1) of the
Act.” The judge discredited the union organizers’ testimony that Ne-
grotti stated that the Respondent did not want “union guys.”
341 NLRB No. 46
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 354
We respectfully disagree with the view that Negrotti’s
question was “rhetorical” and that this establishes its
unlawfulness. Even if the question (“why would you
want to [apply for work]”) was indeed a rhetorical one,
we do not believe that this would establish a violation.
The rhetorical question was simply reflective of Ne-
grotti’s surprise that union members were applying for
work at a nonunion shop. Neither the question nor the
rest of the statement suggested that the Respondent
would not hire union members because of their union
affiliation.
Our colleague errs in her effort to analogize this situa-
tion to a hypothetical one involving a woman who ap-
plied for work. In her hypothetical, the shop is “all
male,” i.e., women will not be hired. In the instant case,
an open shop is simply one in which there is no bargain-
ing representative. Obviously, members and nonmem-
bers alike can work in a nonunion shop. There is no evi-
dence that the Respondent would not permit members to
work in its nonunion shop.
Further, even if Negrotti’s comments were ambiguous,
there would not be a violation. Negrotti followed his
statement up with a strenuous denial that it was meant to
indicate that the organizers would not be hired because of
their union status.5 Our colleague nonetheless asserts
that Negrotti’s aggressive manner undercuts his denial.
We disagree. Rather, we find that the emphatic manner
of Negrotti’s denial more reasonably would be viewed as
strengthening it.
Nor do we agree with the dissent that the failure of the
president or project manner to clarify any ambiguity in
Negrotti’s initial statement supports a violation. To the
contrary, the significant point is that Negrotti—who ut-
tered the statement—issued an emphatic denial and nei-
ther manager contradicted it.
For all of these reasons, we conclude that the state-
ments did not violate Section 8(a)(1).6

5 Specifically, Negrotti testified that he yelled out “.That’s not what I
said . . . [and] if you’re telling me that that’s what I said, I’m calling
you a liar.”
6 Unlike the majority and the judge, Member Liebman would find
that the statements made by Negrotti would reasonably tend to interfere
with the organizer applicants’ exercise of their Sec. 7 rights. Negrotti
did not testify that he was merely expressing surprise, and the Respon-
dent’s own witness, Polichetti, testified that Negrotti’s statements were
“rhetorical.” Unlike an innocent inquiry made in the course of a genu-
ine dialogue, as in Colden Hills, Inc., supra, 337 NLRB at 562–563, a
rhetorical question is not posed in expectation of a response but rather
for effect. Although the statements here arguably may have been am-
biguous—signifying either the Respondent’s unwillingness to hire
union organizers or, as the majority suggests, the Respondent’s doubt
that the organizers could have a genuine interest in working for a non-
union employer—the rhetorical effect would reasonably have been to
suggest that, in the Respondent’s view, the organizer applicants are not
suited to work at the Respondent’s “open shop” facility because of their
II. THE RESPONDENT’S HIRING DECISION
Two months after the organizers’ initial visit to the Re-
spondent’s office, Keenan and another union organizer,
Robert DiOrio, called and scheduled interviews for Sep-
tember 15. They completed applications and were inter-
viewed by Polichetti—Keenan at length and DiOrio until
he ended the interview peremptorily—but were not sub-
sequently contacted. Polichetti discussed the organizers’
applications with Smith after the interviews, and Smith
compared their applications with that of Matthew Cahill,
whom Smith interviewed 1 month later and ultimately
hired for the position. Smith testified that he hired Cahill
for the position of fabricator and commercial installer
because he was a certified welder, had more current
HVAC installation experience, and, in Smith’s view, had
better overall qualifications for the job.
We agree with the judge that there is no evidence that
the Respondent harbored antiunion animus or was moti-
vated by animus in its treatment of applicants Keenan
and DiOrio.7 We also agree with his finding that the
Respondent did not exclude Keenan and DiOrio from its
hiring process, and, thus did not unlawfully refuse to
consider them.8
With respect to the refusal to hire allegations, we find
that, even assuming that the Respondent was unlawfully
motivated, the evidence as found by the judge estab-

union status. (Suppose, for example, a woman applied for the job and
was told, “Why would you want to apply? We’re an all male shop.”)
Although during the incident Negrotti strenuously denied that his
comments indicated that the organizers would not be hired because of
their union status, his aggressive manner undercuts the denial. More-
over, neither the Respondent’s president nor the project manager joined
in Negrotti’s denial, although both were present during the confronta-
tion.
7 Specifically, the judge found that Negrotti’s July 13 statements
were not evidence of animus and, in any event, could not have moti-
vated the hiring decision because he had no part in it. In addition, the
judge declined to infer unlawful motive from Polichetti’s interviews
with the organizers, which the judge found were genuine, or from the
Respondent’s multiple reasons for its hiring decision, which the judge
found were not inconsistent or demonstrably false and were supported
by the record. The judge also found that the Respondent’s 1-month
delay in filling the position, in the absence of evidence that such a delay
was unusual in the Respondent’s operations, did not support an infer-
ence of animus.
Although Member Liebman generally agrees with the judge’s find-
ings, she disagrees with the implication that the absence of evidence
that Negrotti participated in the hiring decision is fatal to an inference
of unlawful motivation based on his antiunion statements. See GM
Electrics, 323 NLRB 125, 125–126, 128 (1997); but cf. Brown & Root
Industrial Services, 337 NLRB 619 (2002).
8 In agreeing with the judge and her colleagues’ dismissal of this al-
legation, Member Liebman does not rely on the finding that there is no
evidence of antiunion animus, but only on the judge’s finding that the
organizer applicants were not excluded from the hiring process. FES,
331 NLRB 9, 15 (2000), supplemental decision 333 NLRB 66 (2001),
enfd. 301 F.3d 83 (3d Cir. 2002).

JS MECHANICAL, INC. 355
lishes, although he did not specifically so find, that the
Respondent met its burden to prove that it would have
hired Cahill instead of the organizers based on qualifica-
tions alone. FES, 331 NLRB 9, 12 (2000), supplemental
decision 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d
Cir. 2002). We find the Charging Party’s arguments to
the contrary to be without merit.9
Smith, who interviewed Cahill and made the hiring de-
cision, testified that he chose Cahill because of his piping
and wiring experience, because he had more recent over-
all HVAC experience, and because he was a certified
welder. In exceptions, the Charging Party asserts that,
even assuming that the Respondent was in fact looking
for a certified welder, it failed to show that Cahill’s
welding skills were superior to Keenan’s and DiOrio’s.
But, Smith specifically testified that he needed a certified
welder for an upcoming project. Cahill clearly had that
certification, which the Respondent believed that Keenan
and DiOrio lacked. According to Smith’s uncontroverted
testimony, the Respondent was in imminent need of a
certified welder.10 In addition, the Charging Party ar-
gues that Keenan and DiOrio were more well-rounded
HVAC mechanics than Cahill in part because of the
length of time they had worked in the field. But Smith,
who interviewed Cahill himself, testified that he selected
Cahill particularly for his piping and wiring skills. When
Polichetti asked Keenan and DiOrio during their inter-
views whether they had refrigeration piping skills, they
stated that they did not, and Keenan indicated when
asked that he did not have high voltage wiring skills.
Although Keenan testified that he had substantial experi-
ence, including as a foreman, working in the HVAC field
for employers who did all aspects of that work, he did
not specifically testify that he had, or told Polichetti dur-
ing his interview that he had, piping and wiring experi-
ence.11 Finally, it is undisputed that Keenan had not

9 Member Schaumber would not reach the question whether the Re-
spondent has shown that it would have made the same hiring decision
absent the organizers’ protected activity. In dismissing the refusal-to-
hire allegation, he relies solely on the judge’s finding that the General
Counsel failed to establish antiunion animus.
10 DiOrio was not asked at the hearing whether he possessed a weld-
ing certification at the time of his interview, and Polichetti did not
indicate that he asked DiOrio during the interview. However, Smith’s
testimony indicates that he chose Cahill over DiOrio because Cahill
was certified, and the General Counsel, while asserting that DiOrio was
at least as qualified in welding as Cahill, does not argue that he was a
certified welder. Although Keenan testified that he informed Polichetti
at his interview that he could quickly be recertified as a welder, the
judge credited Smith’s testimony that Polichetti did not tell him this
and that Smith believed that recertification would take 1 year.
11 Neither Keenan’s nor DiOrio’s application is in evidence; more-
over, Keenan’s resume does not indicate the particular types of work he
performed for past employers. According to Polichetti, Keenan stated
done full-time HVAC work for at least 8 years.12 Under
these circumstances, we find that the Respondent hired
Cahill rather than the organizer applicants based on his
qualifications and would have made the same decision
even in the absence of the organizers’ protected activity.
ORDER
The complaint is dismissed.

Richard Wainstein, Esq. and Amy L. Weiss, Esq., for the Gen-
eral Counsel.
Michael J. Wietrzychowski, Esq. (Cureton Caplan Hunt Scara-
mella & Clark, P.C.), of Delran, New Jersey, for the Re-
spondent.
Bruce E. Endy, Esq. (Spear, Wilderman, Borash, Endy Sper &
Runckel), of Philadelphia, Pennsylvania, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Philadelphia, Pennsylvania, on July 12, 2001. The Sheet
Metal Workers’ International Association, Local Union No. 19
(the Union or Local 19) filed the original charge on November
28, 2000, and the amended charge on January 4, 2001. The
Regional Director for Region 4 of the National Labor Relations
Board issued the complaint on February 28, 2001. The com-
plaint alleges that JS Mechanical, Inc. (the Respondent) vio-
lated Section 8(a)(1) and (3) of the Act, by refusing to hire and
consider for hire Patrick Keenan and Robert DiOrio because
they are members of the Union. The complaint also alleges that
the Respondent violated Section 8(a)(1) of the Act by telling
union applicants that it did not want “union guys” at the facility
and by threatening to call the police if the union applicants did
not leave the facility. The Respondent filed an answer and
amended answer, in which it denied the substantive allegations
of the complaint.
On the entire record, including my observation of the de-
meanor 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, is a heating and air-
conditioning contractor with an office and principal place of
business in Ivyland, Pennsylvania. During the year prior to the
issuance of the complaint, the Respondent purchased goods
valued in excess of $50,000 directly from points outside the
Commonwealth of Pennsylvania in the course of its business.
The Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),

when asked that he did have some gas piping experience, but had not
done that work in several years and might need retraining.
12 Keenan testified that he had been doing part-time HVAC work
during his 8 years as an organizer, but there is no indication that he told
Polichetti this, and it is not apparent from his resume.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a contractor that fabricates, installs, and
services heating, ventilation, and air-conditioning (HVAC)
systems. It has a facility in Ivyland, Pennsylvania, that includes
an office and sheet metal fabrication shop. James Smith has
been the Respondent’s president and owner since 1990. At the
time of the alleged violations, the Respondent employed 15 to
16 persons to do HVAC work. The Respondent has never been
a signatory to a collective-bargaining agreement with a union,
and its work force has never been represented by a union.
The incident on July 13, 2000
For a 2-week period beginning on July 11, 2000, two help-
wanted advertisements submitted by the Respondent appeared
in a local newspaper. One read:

HVAC Service Tech
Excellent Wages & Benefits
Call 8–4:30 Daily
[Respondent’s Telephone Number]

The other read :

HVAC Commercial Construction Foreperson
Excellent Wages & Benefits
8–4:30 Daily [Respondent’s Telephone Number]

On the afternoon of July 13, 2000, seven union officials ar-
rived together at the Respondent’s facility after seeing or hear-
ing about the help-wanted advertisements. Although the adver-
tisements did not reveal the name or address of the Respondent,
these individuals discerned that the Respondent had placed the
advertisements and found their way to the Respondent’s facil-
ity. None of the individuals called the telephone number listed
in the advertisement to schedule an appointment prior to ap-
pearing at the facility on July 13. The seven union officials
were: Patrick Keenan (P. Keenan) and Charles Burkert, organ-
izers with Local 19; Fred Hammel and Bill Reese, organizers
with the roofers’ union; Steven Keenan (S. Keenan), an organ-
izer with the plumbers’ union; Fred Cosenza, a representative
of the Philadelphia building trades; and Jimmy Cunningham, an
organizer with the insulators union. Burkert was wearing a hat
on which appeared the statement “Sheet Metal Workers Local
19.” Prior to arriving at the Respondent’s facility, the same
group had visited two roofing companies to apply for jobs that
were unrelated to HVAC systems.
P. Keenan led the group of applicants into a small waiting
area adjacent to the Respondent’s office, halting near the en-
trance to the office itself. He told [the] staff of the Respondent
that he and the others wished to complete applications for the
jobs advertised in the newspaper. One of the women working
in the office informed P. Keenan that the Respondent accepted
applications only from persons who had first telephoned to
schedule an appointment and that he and the other organiz-
ers/applicants would have to call to schedule appointments
before they would be allowed to complete applications. Matt
Negrotti Jr., a superintendent with the Respondent, was also
present in the office when the organizers/applicants arrived and
one of those individuals told Negrotti that they wanted to fill
out applications. Negrotti responded, “Why would you want
to; we’re an open shop.” An applicant asked Negrotti what he
meant by that, and Negrotti pointed to Burkert’s union hat and
said, “I can see by the gentleman’s hat, he’s a union worker.”
Also present was Carl Polichetti, a project manager for the
Respondent. Polichetti explained to the applicants that they
would have to call for an appointment if they wished to com-
plete applications.
Either Negrotti or Polichetti informed Smith that a “bunch of
guys” were in the “vestibule” asking for employment applica-
tions. Smith approached the organizers/applicants and told
them that they would have to call for interviews. The organiz-
ers/applicants insisted that they be permitted to complete appli-
cations. Smith explained that the Respondent’s policy was to
accept applications only from persons who had first telephoned
to schedule an appointment, and that the organizers/applicants
would have to call for interviews if they wanted to submit ap-
plications.1 Although the organizers/applicants had now been
informed by three people that they would have to call to sched-
ule appointments if they wanted to complete applications, the
organizers/applicants continued to ask for applications and
declined to exit. Diane Sulzbach, an officer manager who was
present, testified that the organizers/applicants gave the impres-
sion that they would not leave “until they got what they came
for,” that matters became tense, and that she was “freaked out”
and “scared.” One of the organizer/applicants, Burkert, admit-
ted that he became angry and that he raised his voice to the
Respondent’s officials. When the organizers/applicants de-
clined to depart, Smith said, “Listen, if you don’t leave, I’m
going to have to call the Police.” At least some of the organiz-
ers/applicants still declined to exit the premises, and Smith
directed Sulzbach to call the police, which she did. The organ-
izers/applicants apparently left the building at about this time.
The encounter lasted 10 minutes or less.
Soon after exiting, Patrick Keenan attempted to call the Re-
spondent from outside the office to schedule an appointment,
but the phone line was busy. During the period immediately
after the organizers/applicants exited the Respondent’s office
and waiting area, the Respondent received calls from a number
of individuals who scheduled appointments to apply for work,
but these individuals did not appear for their scheduled ap-
pointments and the record does not reveal if any of these calls
were placed by the organizers/applicants.

1 I accept the Respondent’s contention that its policy was to accept
employment applications only from individuals who had telephoned to
schedule appointments. This finding is consistent not only with the
testimony of the Respondent’s officials, but also with the text of the
help-wanted advertisements, which state the telephone number, but not
the address, of the Respondent. The General Counsel introduced no
evidence indicating that the Respondent allowed nonunion applicants to
complete applications without first calling to schedule appointments.
Moreover, the record shows that the Respondent interviewed individu-
als known to be affiliated with unions when those individuals followed
the Respondent’s procedure by telephoning first to set up appointments.

JS MECHANICAL, INC. 357
The complaint includes an allegation that Smith and/or Ne-
grotti told the organizers/applicants that the Respondent did not
want “union guys” at the facility. I conclude that the General
Counsel has failed to prove that this statement was made. The
allegation regarding the “union guys” comment was denied by
Smith (Tr. 154), Negrotti (Tr. 115), and Polichetti (Tr. 124–
25).2 The General Counsel’s witnesses on this subject—P.
Keenan, Burkert, and S. Keenan—gave testimony that was
quite inconsistent. According to P. Keenan, Negrotti said,
“We don’t want no union guys around here.” (Tr. 22.) Burk-
ert, on the other hand, testified to the quite different statement:
“We’re non-Union and we don’t hire Union. We don’t even
have an ad in the paper.” (Tr. 75.) The only real similarity
between P. Keenan’s and Burkert’s reports of the offending
statements is that both explicitly refer to unions in a way that
indicates persons associated with unions are not welcome.
Moreover, Burkert was unable to specifically identify who
made the alleged remark. S. Keenan, who is P. Keenan’s
brother, was also unable to identify a specific speaker, but testi-
fied that a man in the Respondent’s office said, “[W]e don’t
want you guys around here,” and then explained, “You know
what you union guys are.” (Tr. 67.) This testimony is at vari-
ance with Burkert’s account and only somewhat consistent with
P. Keenan’s version of what was said. Based on the inconsis-
tencies in the testimony of the General Counsel’s witnesses, as
well as the demeanor of those witnesses, and also considering
the demeanor and contrary testimony of the Respondent’s wit-
nesses, I decline to credit the testimony of the General Coun-
sel’s witnesses regarding the alleged unlawful statement. I find
that the General Counsel has not met its burden of showing that
an official of the Respondent more likely than not made the
statement.
The failure to hire P. Keenan and DiOrio after interviews on
September 15, 2000
For a 2-week period beginning on September 13, 2000, two
help-wanted advertisements submitted by the Respondent ap-
peared in local newspapers. One read:

HVAC Commercial
Installation Mechanic
Exc. Wages & Benefits
Call JS Mechanical @ [Telephone Number]
for interview

The other read:

HVAC Service Technician
Commercial & Residential
Exc. Wages & Benefits
Call JS Mechanical @ [Telephone Number]
for interview

P. Keenan telephoned the Respondent and scheduled an in-
terview for September 15, 2000. Robert DiOrio, another organ-
izer with the Union, also telephoned the Respondent, and he,
too, scheduled an interview for September 15. On September

2 Sulzbach was present for some of the July 13 episode, but testified
that she was very upset during the incident, and could not remember
any of the specific statements during the exchange.
15, P. Keenan and DiOrio arrived together at the Respondent’s
facility for their appointments. Originally Smith was going to
interview P. Keenan and DiOrio himself. However, for reasons
that are not entirely clear, he became unavailable to conduct the
interviews and directed Polichetti to do so. In the past, Po-
lichetti had sometimes interviewed applicants, but generally his
involvement in hiring was minimal, and Smith had ultimate
hiring authority.
After arriving at the Respondent’s facility, P. Keenan com-
pleted an application, which he supplemented with a resume.
The resume indicated that P. Keenan had been an organizer
with the Union from 1992 to the present.3 It did not report
work experience for P. Keenan as anything other than an organ-
izer after 1992. The resume listed experience with two private
employers from 1981 to 1992, but did not state what P.
Keenan’s positions or job duties were with those companies.
The resume reported, inter alia, that P. Keenan had attended a
4-year journeyman program, a 4-year apprenticeship program,
and a 2-year program at the Union’s welding school, but did
not state when he had attended or completed those programs. It
noted that P. Keenan had “[e]xperience with layout, fabrication,
sketching and installation of sheet metal work” “use of brake,
form machines and plasma.” The resume does not mention
HVAC systems, or explicitly state that any of P. Keenan’s work
or training involved such systems. On his application, P.
Keenan listed his experience and training as a sheet metal
worker.4
P. Keenan’s interview with Polichetti lasted 20–25 minutes.
Polichetti looked over P. Keenan’s application and resume and
commented, “I see you’re very qualified.” Polichetti went on
to make a fairly detailed inquiry into P. Keenan’s experience
and capabilities. P. Keenan described work in single-family
dwellings, residential units, commercial settings, hospitals,
industrial settings, and highrise office buildings. P. Keenan
responded in the affirmative when Polichetti asked if he could
solder and braze. Polichetti also asked about various skills
relevant to HVAC installation and P. Keenan conceded that he
lacked a number of these skills. In particular, Polichetti asked
P. Keenan if he could do high voltage wiring, refrigeration,
evacuation, checking, testing, and charging, and P. Keenan
responded that he was not capable of those tasks. Polichetti
asked if P. Keenan could do gas piping, and thread couple pip-
ing, and P. Keenan indicated that he would require retraining in
those areas. Polichetti asked if P. Keenan could do work in-
3 The applications of P. Keenan and DiOrio were not produced at
trial; however, the resume that P. Keenan gave to the Respondent was
made an exhibit.
4 P. Keenan testified that the apprenticeship program included train-
ing in HVAC installation, and that his prior work experience included
installation of HVAC systems. However, he did not testify that he
conveyed this information on his application. At any rate, P. Keenan
testified that he completed the apprenticeship program in 1985 and that
he he had not received any additional training between then and the
time he applied in September of 2000. P. Keenan testified that the
contractors he worked for from 1981 to 1992 installed HVAC systems,
but he did not state which of the various installation tasks he himself
performed while working for those contractors, nor did he state what
precisely he told the Respondent about that work.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358
volving digital controls, and P. Keenan answered that he did
not have much experience in that area. When asked whether he
was a certified welder, P. Keenan responded that he was no
longer certified, but that he had been certified in the past and
could become recertified quickly. P. Keenan conceded that
welding is a common practice in the HVAC field and is very
important to that work. Before the interview ended, P. Keenan
offered to enter the Respondent’s shop area and show what
types of machinery he could operate, but Polichetti declined the
offer.
Polichetti interviewed DiOrio after P. Keenan’s interview
concluded. At the time of the interview, DiOrio had been a
union organizer for a month or two, and prior to that he had
been a sheet metal worker for 18 years. On his application,
DiOrio stated that he was applying for the positions of fabrica-
tor, installer, and helper. He listed experience running a shop
where ductwork was fabricated, operating various machines,
and sketching. He reported that he had been to a welding
school, but the record does not reveal whether he stated that he
was, or ever had been, certified as a welder. During the inter-
view, Polichetti asked DiOrio about his service experience, and
DiOrio responded that he had attended a class on service work
for a year, but had no experience actually doing service work in
the field. According to DiOrio, service work includes such
tasks as installing the unit, wiring the unit, running gas pipe,
running the line set from the condenser to the heater, and trou-
ble shooting the unit.5 Polichetti asked if DiOrio could perform
piping or refrigeration work, and DiOrio responded that he
could not, but that he could easily do the sheet metal compo-
nent of the work. After about 10 minutes, DiOrio interrupted
Polichetti’s questioning and said: “Look, you really know what
I’m here for. You know, please give this information to Mister
Smith on how we can help him with his manpower problems.”
The two men got up, shook hands, and DiOrio left.
Polichetti gave the applications of both P. Keenan and
DiOrio to Smith. Later Smith and Polichetti briefly discussed
the applications and what Polichetti had gleaned during the
interviews. Polichetti testified that P. Keenan and DiOrio
“didn’t seem like they had the qualifications that virtually all of
our other mechanics have,” and “[w]e couldn’t understand how
we could . . . work with these guys.” The Respondent never
contacted P. Keenan and DiOrio to inform them whether they
had been selected for employment. P. Keenan telephoned the
Respondent a week after his interview to check on the status of
his application and was told that Smith or Polichetti would call
him, but neither did.
Smith selected Matthew Cahill on October 15, 2000, to fill
the opening for which P. Keenan and DiOrio had been inter-
viewed.6 Cahill was interviewed by Smith on October 12,
2000. Cahill reported that his most recent employment was in a
position he listed as “HVAC,” from March 1998 until Septem-

5 This differs from sheet metal fabrication work for HVAC systems,
which usually takes place in a shop and involves making ducts out of
flat pieces of metal.
6 The General Counsel concedes that it appears there was only one
opening available in the position for which P. Keenan and DiOrio ap-
plied. GC Br. at fn. 10.
ber 2000. He stated that his duties included “fabrication of duct
& installation,” and Mig welding. He reported working prior to
that from January 1997 until March 1998 as an “HVAC-
Welder,” in which capacity his duties included “fabrication of
duct & installation,” and Mig, Tig, and stick welding. The
resume states that Cahill had graduated from a welding pro-
gram in 1983 and was a certified welder. Smith said that dur-
ing the interview he asked Cahill questions to determine how
“well-rounded” he was. Smith determined that Cahill’s HVAC
experience included “wiring,” but that Cahill lacked boiler
experience and service experience. Although Cahill was a
member of the Union, the Respondent was not aware of this at
the time it interviewed and selected him.
Smith testified that he compared Cahill’s application to those
of P. Keenan and DiOrio, and decided to select Cahill. Accord-
ing to Smith, Cahill was hired primarily because he was a certi-
fied welder with both pipe welding and duct welding experi-
ence and that the Respondent had an upcoming job that re-
quired a certified welder to perform the pipe welding in apart-
ments at an airforce base. Smith was aware that P. Keenan had
once been certified as welder, but knew that this certification
had expired. According to Smith, there was generally a 1-year
waiting list to obtain recertification. He was unaware that P.
Keenan had told Polichetti that he could be recertified quickly.
Smith also stated that in his view Cahill had broader relevant
experience than P. Keenan and DiOrio, including experience in
wiring.7 He noted that Cahill’s work experience in the HVAC
field was very current.8
B. The Complaint Allegations
The complaint in this case alleges that the Respondent vio-
lated Section 8(a)(1) of the Act by telling organizers/applicants
that it did not want “union guys” at the facility, thereby indicat-
ing that it was futile for the organizers/applicants to apply for
employment. In addition, the complaint alleges that the Re-
spondent violated Section 8(a)(1) by threatening to call the
police if the organizers/applicants did not leave the facility. The
complaint further alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by refusing to hire and consider for
7 The General Counsel argues that Cahill’s application did not indi-
cate piping or wiring experience, GC Br. at 32–33, that Cahill’s appli-
cation did not claim experience with installation or wiring, id. at 30,
and that I should reject Smith’s contention that Cahill’s piping and
wiring experience were among the reasons that he was selected instead
of P. Keenan and DiOrio. However, the fact that Cahill did not list
installation and wiring experience on his application does not prove that
Smith was unaware that Cahill had such experience. Cahill (who no
longer works for the Respondent and is a member of the Union) was
not called as a witness by the General Counsel, and there is no record
evidence rebutting Smith’s testimony that he interviewed Cahill and
understood that Cahill had experience in piping and wiring.
8 Cahill is a member of the Union, but at the time the Respondent
hired him it was unaware of this affiliation. On September 10, 2000,
the Respondent hired James Ward as a fabricator, despite the fact that
Ward had stated on his application that he was a union sheet metal
apprentice. Anthony Visalli, a foreman with the Respondent, testified
that the Respondent hired him even though he volunteered during an
interview with Polichetti that he was, or had been, affiliated with the
Pipefitters’ union.

JS MECHANICAL, INC. 359
hire P. Keenan and DiOrio because they are members of the
Union.
III. ANALYSIS AND DISCUSSION
A. Antiunion Remark
It is a violation of Section 8(a)(1) for an employer to make
statements to applicants indicating that it would be futile for
union members to apply for employment. Sunland Construc-
tion, 311 NLRB 685, 704 (1993); J. L. Phillips Enterprises, 310
NLRB 11, 13 (1993). The complaint alleges that when the
organizers/applicants appeared at the Respondent’s facility on
July 13, Negrotti or Smith said that the Respondent “did not
want ‘union guys’ at the Facility, thereby indicating that it
would be futile for employee-applicants with Union affiliation
to apply.” Negrotti and Smith were both supervisors and agents
of the Respondent at the time and the General Counsel alleges
that the statement violates Section 8(a)(1).
Preliminarily, the Respondent contends that “[g]iven the
makeup of the group [of organizers/applicants] that arrived en
masse and unannounced at the Respondent’s place of business,
it is clear that the they had no real intention of seriously apply-
ing.” (Respondent’s proposed findings of fact at p. 6, par. 17).
Although the Respondent does not explicitly make the argu-
ment, it appears to be suggesting that the organizers/applicants
were not “employees” entitled to the Act’s protection since they
were not bona fide applicants. I conclude that the organiz-
ers/applicants, although they were paid union organizers, were
bona fide applicants at the time the Respondent allegedly indi-
cated that it would be futile for them to apply. Professional
organizers, when applying for work, are considered statutory
employees entitled to the protections of the Act. NLRB v.
Town & Country Electric, 516 U.S. 85 (1995). Several of the
organizers/applicants testified credibly that their activities as
organizers included attempting to get hired by nonunion com-
panies with the intention of trying to organize the company’s
work force once hired. Although the organizers/applicants did
adopt a rather intimidating posture during their July 13 visit to
the Respondent’s facility, I find that one of their objectives at
the time of Negrotti’s alleged unlawful statements was to se-
cure employment with the Respondent. Therefore, I conclude
that the organizers/applicants must be considered employees
entitled to the protections of the Act at that time.
As discussed above, I have found that the General Counsel
failed to meet its burden of showing that, as alleged in the com-
plaint, Negrotti or Smith told the organizers/applicants that the
Respondent did not want “union guys,” or made any other re-
marks to them explicitly stating that union applicants were not
welcome. I did find, however, that when the organiz-
ers/applicants stated that they wanted to fill out applications,
Negrotti responded, “Why would you want to; we’re an open
shop” and that when asked what he meant, Negrotti replied, “I
can see by the gentleman’s hat, he’s a union worker.” The
complaint does not mention these statements by Negrotti and in
its brief, the General Counsel does not allege that these state-
ments violated Section 8(a)(1). However, the General Coun-
sel’s brief does remark in passing that the statements “sug-
gested that the applicants were wasting their time.” The mean-
ing and legal import of the statements that I find Negrotti made
were not fully litigated and I believe it would be inappropriate
for me to go beyond the allegations of the complaint and rule
on whether those statements violated the Act. It is certainly not
clear to me based on the evidence that was presented that Ne-
grotti was doing anything more than expressing surprise that
union workers wanted to apply with the Respondent. Negrotti
did not, at least on the face of it, indicate that union members
were disqualified as applicants, or that it would be improper for
persons affiliated with unions to work for the Respondent.
I conclude that the complaint allegation that the Respondent
violated Section 8(a)(1) by stating that it “did not want ‘Union
guys’ at the Facility, thereby indicating that it was futile for
employee-applicants with Union affiliation to apply for em-
ployment” should be dismissed.
B. Respondent’s Threat to Call the Police
The General Counsel alleges that the Respondent violated
Section 8(a)(1) on July 13 by threatening to call the police if
the organizers/applicants did not leave the facility. The Re-
spondent’s president and owner, Smith, admits he told the or-
ganizers/applicants that if they would not leave, he would call
the police, but the Respondent contends that such action was
not unlawful because of the belligerent and intimidating behav-
ior of the organizers/applicants.
The General Counsel states that an employer violates Section
8(a)(1) when it threatens to call the police if union representa-
tives who are acting lawfully on the employer’s property refuse
to leave. At the time Smith threatened to call the police, how-
ever, the organizers/applicants no longer had a legitimate pur-
pose for being inside the Respondents’ facility. The organiz-
ers/applicants who testified about the July 13 episode did not
deny that they refused to withdraw from the facility even after
being repeatedly told that if they wished to apply they, like
other prospective applicants, would have to first schedule ap-
pointments by telephone. Moreover, I am convinced that the
Respondent’s inhospitality attempts to apply on a walk-in basis
did not come as a surprise to the organizers/applicants since the
help-wanted advertisements to which the organizers/applicants
were responding withheld the Respondent’s identity and loca-
tion. Under all the circumstances, I believe that the organiz-
ers/applicants were no longer attempting in good faith to initi-
ate the Respondent’s application process at the time Smith
threatened to call the police.
What precisely the organizers/applicants did hope to accom-
plish by refusing to leave after being apprised of the Respon-
dent’s policy regarding applications is not perfectly clear, al-
though it is certainly plausible given the evidence that their aim
was to intimidate the Respondent.9 One thing that is clear is

9 As discussed above, I do conclude that earlier in their visit the or-
ganizers’ purposes included a legitimate attempt to seek employment.
However, once the organizers had repeatedly been apprised of the
Respondent’s policy requiring potential applicants to telephone to
schedule an appointment, their refusal to leave the premises was no
longer part of a legitimate attempt to apply for work. Even if obtaining
employment was still among their purposes at the time of Smith’s
statement regarding the police, and I doubt that it was, the organizers’
tactic of attempting to bully the Respondent into permitting them to

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 360
that their activities were having the effect of disrupting work in
the Respondent’s office. At least four persons employed by the
Respondent, including the president of the company, were
drawn into the exchange, and one office worker testified credi-
bly that she was “freaked out” by the organizers/applicants and
left the area. Burkert, an organizer/applicant, admitted that he
became angry and raised his voice to an employee of the Re-
spondent during the incident. The Board has upheld the right
of employers to set rules controlling the access of union appli-
cants to their workplace where the presence of those applicants
was disruptive of the work of the employer’s office staff.
Rainbow Painting & Decorating, 330 NLRB 972, 2000. With
respect to union organizers, the Board has also upheld a deci-
sion that it was permissible for an employer to have the police
evict a union organizer from its premises when the organizer
was disrupting work. Yellow Freight Systems, 313 NLRB 309,
329–332 (1993), enf. granted in part denied in part by 37 F.3d
128 (3d Cir. 1994). When Smith warned that he would call the
police, the organizers/applicants no longer had a legitimate
purpose for remaining inside the Respondent’s facility and
were disrupting work in the Respondent’s office.
The General Counsel cites Farm Fresh, Inc., 305 NLRB 887
(1991), and Weis Markets, Inc., 325 NLRB 871 (1998), to sup-
port its contention that Smith committed a violation when he
warned that he would call the police unless the organiz-
ers/applicants left the facility. However, neither of those deci-
sions supports finding a violation where, as here, the organizer
was not engaged in legitimate organizational activities at the
time an employer threatened to call the police. Indeed, the
decision in Farm Fresh upheld the right of the employer to
threaten to have the police eject an organizer suspected of un-
protected “blitz” tactics such as scattering union literature in a
nonpublic location in the facility. 305 NLRB at 888. In Weis
Markets, the employer threatened to have nonemployee organ-
izers arrested unless they stopped leafleting on the sidewalks in
front of three of the Respondent’s stores. In a decision af-
firmed by the Board, the administrative law judge concluded
that the employer had violated the Act by excluding the organ-
izers, but based this conclusion on the fact that the employer’s
leases did not give it the right to control access to the sidewalks
in front of the stores. In the instant case, the organizers were
actually inside the Respondent’s facility, in a waiting area
barely large enough to contain them. The General Counsel has
not suggested that the Respondent’s property interests in that
area did not include the right to exclude persons from it. More-
over, whereas in Weis it appears that the organizers were en-
gaging in leafleting activity protected by Section 7, the organ-
izers in the instant case had no legitimate purpose inside the
Respondent’s facility at the time Smith warned that he would
call the police. Thus, Weis does not warrant finding a violation
in the instant case.

bypass the normal application procedures does not justify their refusal
to leave the facility. See W.D.D.W. Commercial Systems & Invest-
ments, Inc., 2001 WL 1011927, *23 (NLRB) (decision that union or-
ganziers are not meaningfully distinguishable from other ‘employees’
under the statute should not be read to give paid union organizers carte
blanche in the workplace; organizers are subject to valid employer
rules).
For the reasons discussed above, I conclude that the allega-
tion that the Respondent violated Section 8(a)(1) on July 13 by
threatening to call the police if the organizers/applicants did not
leave the facility should be dismissed.
C. Refusal to Consider or Hire
In order to establish discriminatory refusal to hire in viola-
tion of the Act, the General Counsel must first show: “(1) that
the respondent was hiring, or had concrete plans to hire, at the
time of the alleged unlawful conduct; (2) that the applicants had
experience or training relevant to the announced or generally
known requirements of the positions for hire, or in the alterna-
tive, 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.” FES, 331 NLRB 9, 12 (2000). If the General
Counsel succeeds in making these showings, 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.
Id. To establish discriminatory refusal to consider, the General
Counsel bears the burden of showing: (1) that the respondent
excluded applicants from a hiring process; and (2) that anti-
union animus contributed to the decision not to consider the
applicants for employment. FES, 331 NLRB at 15.
The record establishes the first two elements of a refusal-to-
hire claim. The evidence shows that the Respondent was seek-
ing to fill an opening in September and October 2000 when P.
Keenan and DiOrio applied and were denied employment.
Furthermore, it is clear that P. Keenan and DiOrio had experi-
ence and training in the sheet metal and HVAC fields that was
relevant to significant aspects of the HVAC mechanic/installer
position that Respondent was seeking to fill. The General
Counsel stumbles, however, at the requirement that it show the
existence of antiunion animus that contributed to the decision
not to hire the applicants. In an effort to meet its burden with
respect to this element, the General Counsel first relies on Ne-
grotti’s alleged statement, 3 months earlier, that the Respondent
did not want “Union guys” around. However, as discussed
above, I found that the General Counsel failed to show that
Negrotti made that statement. The statements that Negrotti was
shown to have made indicated surprise about the organiz-
ers/applicants desire to apply for work with the Respondent, but
do not establish antiunion animus. At any rate, there is no evi-
dence that Negrotti was involved in any way with the decision
not to select P. Keenan and DiOrio for employment. The al-
leged discriminatees were interviewed by Polichetti and the
hiring decision was made by Smith after a discussion with Po-
lichetti. Thus even if the General Counsel had shown that Ne-
grotti harbored antiunion animus, it still would have failed to
show that Negrotti’s antiunion feelings contributed to the deci-
sion not to hire P. Keenan or DiOrio.
The General Counsel also argues that animus is shown by
the fact that Polichetti described the position as “residential
installer” during the interviews whereas Smith testified that the
position he wanted to fill was “commercial installation me-
chanic.” I do not consider it particularly telling that Polichetti
called the position something somewhat different than what

JS MECHANICAL, INC. 361
Smith called it. Polichetti did not place the help-wanted adver-
tisement and did not make the hiring decision. He was called
upon to interview the applicants only when Smith unexpectedly
became unavailable. Moreover, there was no evidence that the
distinction between residential installer and commercial in-
staller was significant, and, indeed, Polichetti testified that gen-
erally anyone who could do commercial installation could also
do residential installation. At any rate, Polichetti’s basic view
that the experience of the two alleged discriminatees was unap-
pealingly narrow from the Respondent’s point of view is con-
sistent with Smith’s explanation for rejecting them in favor of
Cahill, regardless of the precise title of the position.
The General Counsel also argues that antiunion motive can
be inferred from the Respondent’s “shifting, inconsistent and
clearly pretextual” explanations for rejecting the alleged dis-
criminatees. (GC Br. at 28–29.) I disagree. Smith, who made
the decision to select Cahill, testified that he did so because
Cahill, unlike either Keenan or DiOrio, was a certified welder
with both pipe and conduit welding experience, and because
Cahill’s HVAC experience was broader than theirs and in-
cluded wiring experience. Most of the experience of the al-
leged discriminatees, at least their more recent hands-on ex-
perience, was in the area of sheet metal fabrication, which in-
volved constructing metal ducts for HVAC units, but did not
encompass HVAC-related tasks such as piping, wiring, evacua-
tion, and charging. Smith also stated that he was favorably
impressed with the fact that Cahill had very current experience
in the HVAC field, in contrast to P. Keenan, whose recent work
was as a union organizer. While there is, I grant, some basis
for difference of opinion about whether the Respondent se-
lected the best applicant, the reasons given by the Respondent
for choosing Cahill instead of P. Keenan and DiOrio are coher-
ent and have support in the record. Certainly those reasons are
not so clearly false as to satisfy the General Counsel’s burden
of showing animus. Indeed, the record did reflect that P.
Keenan had worked almost exclusively as an organizer —not as
a sheet metal worker, much less an HVAC specialist—for ap-
proximately 8 years prior to applying. Similarly, the evidence
showed that DiOrio’s experience as a sheet metal worker in-
cluding work involving HVAC units, but that this HVAC work
was largely limited to fabricating ducts, and did not include
doing service work such as installation, wiring, running gas
piping, and trouble shooting. Cahill, on the other hand, worked
full-time in the HVAC field from 1997 until September 2000.
Cahill reported that he had experience wiring HVAC units, and
that he was a certified welder with both pipe and duct welding
experience.
The General Counsel argues that antiunion animus is shown
by the fact that Smith has given different reasons for selecting
Cahill over P. Keenan and DiOrio. I do not believe that this
shows animus, or even pretext, under the facts present here. An
employer will frequently have multiple reasons for considering
one applicant better suited for a position than another. The fact
that the Respondent, or another employer, gives more than one
reason for selecting a particular applicant does not, without
more, show that any of those reasons are untrue. Here, Smith’s
reasons—i.e., that Cahill had broader, more recent, HVAC
experience and that his status as a certified welder was of value
for a large upcoming project—are not inconsistent or incom-
patible with one another and each may reasonably have played
a part in the selection decision.
The General Counsel also attempts to raise an inference of
animus by noting that after P. Keenan and DiOrio applied, the
Respondent left the position unfilled for a month before hiring
Cahill. In my view, a month-long selection process is not so
protracted as to raise an inference of antiunion animus. The
General Counsel did not produce any evidence that a 1-month
selection period was very unusual in the Respondent’s opera-
tions or that it was contrary to the practices of other employers
in the industry.
Finally, it is worth noting that at least three of the seven in-
dividuals hired by the Respondent in September and October of
2000 were either current or former union members. In the
case of two of those hirees—Anthony Visalli and James Ward
—the evidence showed that the Respondent was aware of the
union affiliation at the time it made the selections. Although it
is still possible that the Respondent would seek to exclude other
union members, that evidence does cast further doubt on the
General Counsel’s allegation of discriminatory hiring.
I also conclude that the General Counsel has failed to meet
its burdens with respect to the allegation of discriminatory re-
fusal to consider. First, the evidence does not show that P.
Keenan and DiOrio were excluded from the hiring process.
The Respondent interviewed P. Keenan at length and in detail
regarding his experience and qualifications. The Respondent
began a similarly thorough interview with DiOrio, but DiOrio
chose to terminate the interview before its completion. After
the interviews, Polichetti and Smith discussed the qualifica-
tions and experience of the two alleged discriminatees. Smith
compared the qualifications of the alleged discriminatees to
those of Cahill before deciding to select Cahill. The reasons
that Smith gave for his selection are not incoherent, contrary to
the record, or otherwise implausible. I conclude that the Re-
spondent did not exclude the discriminatees from the hiring
process.
The General Counsel argues that P. Keenan and DiOrio were
denied consideration for employment because Smith did not
personally interview them and because their references were
not contacted. I do not find it significant that the alleged dis-
criminatees were interviewed by Polichetti rather than by
Smith. Polichetti sometimes interviewed job applicants and
Smith was not available at the time of alleged discriminatees’
scheduled interviews. The fact that after P. Keenan and DiOrio
were interviewed and compared to the selected applicant, the
Respondent chose not to contact their references does not
amount to a failure to consider given the record of this case.
There was no evidence that the Respondent contacted the refer-
ences of all, most, or even very many, of the applicants who it
considered for hire. The fact that the alleged discriminatees
only made it so far in the selection process does not mean that
they were excluded from that selection process. In any case,
had I concluded that the Respondent decided not to fully con-
sider P. Keenan and DiOrio for employment, I would still not
find a violation since the General Counsel has not shown that
antiunion animus contributed to any such decision. This con-
clusion is based on the same factors that led me to conclude

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 362
that the General Counsel has failed to demonstrate that anti-
union animus contributed the decision not to hire P. Keenan
and DiOrio.
For the reasons discussed above, I conclude that the allega-
tion that the Respondent violated Section 8(a)(1) and (3) by
refusing to hire, or consider for hire, P. Keenan and DiOrio
should be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has not been shown to have committed
the unfair labor practices alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 10
ORDER
The complaint is dismissed.

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.