Leading Edge Aviation Services

National Labor Relations Board - Board Decisions

Sep 29, 2005

345 N.L.R.B. 977 (N.L.R.B. 2005)

LEADING EDGE AVIATION SERVICES
345 NLRB No. 75
977
Leading Edge Aviation Services, Inc. and Terry Host.
Case 11–CA–19783
September 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On May 22, 2003, Administrative Law Judge Margaret
G. Brakebusch issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find-
ings, and conclusions as modified below and to adopt the
recommended Order as modified.1
We agree with the judge’s finding that the Respondent
violated Section 8(a)(1), (3), and (4) of the Act by failing
and refusing to hire Charging Party Terry Host as a Qual-
ity Control Inspector (QC inspector) on its second shift.
For the reasons discussed below, however, we find that
the Respondent lawfully refused to hire Host for that
position on its first shift.
Facts
The pertinent facts are fully set forth in the judge’s de-
cision. In brief, the Respondent operates an aircraft
maintenance facility in Greenville, South Carolina, as a
subcontractor to the Lockheed Martin Aircraft Center.
The Respondent’s director of military programs, Craig
Arnold, is responsible for this facility. The Respondent’s
facility is located within the fenced-in Lockheed prop-
erty; its employees work in the same aircraft hangars
with Lockheed employees and its managers have daily
contact and regular meetings with Lockheed’s managers.
In early October 2002,2 the Respondent determined
that it needed to hire two new QC inspectors. One would
replace its only QC inspector, Harry Gaskins, who was
slated to become a manager. The other one would be the
QC inspector for the new second shift that was targeted
to begin the first of January 2003 due to an expected in-
crease in work.
Terry Host applied for a QC inspector position on Oc-
tober 31. Host was a highly qualified applicant, with
many years of aircraft maintenance experience, including
6 years as a QC inspector with Lockheed. While at
Lockheed, Host was a prominent and visible leader of an
unsuccessful union organizing campaign in 1999; he was
also the target of several unfair labor practices committed

1 We have modified the judge’s recommended Order to delete the
requirement that the Respondent make discriminatee Terry Host whole
within 14 days. We have also added a make-whole provision to the
judge’s recommended notice.
2 All dates are 2002, unless otherwise indicated.
by Lockheed, filed a charge against Lockheed, and testi-
fied at the hearing.3 In an interview with Arnold on Oc-
tober 31, Host stated he had no problems working on the
second shift or being paid $18 per hour.
The Respondent never offered Host a job. Instead, it
offered the second-shift QC inspector position to Jeff
Meyer on November 5 or 6. However, Meyer rejected
the offer, and the Respondent ultimately never hired
anyone for that position. Carlos Hoyos, who was re-
ferred by Meyer, was hired as the first-shift QC inspector
on November 18.
Analysis
We first address the Respondent’s hiring decision with
respect to Host and the second shift, and then examine
the decision with respect to the first shift, applying in
both instances the test for refusal-to-hire violations ar-
ticulated in FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83
(3d Cir. 2002).
I.
With respect to the Respondent’s decision not to hire
Host for its second shift, we agree with the judge’s find-
ing that the General Counsel has carried his initial bur-
den under FES. We further agree that the Respondent
has failed to prove that it would not have hired Host even
absent his union activities.
The General Counsel demonstrated that the Respon-
dent was hiring or had concrete plans to hire at the time
Host applied and that Host’s technical skills and experi-
ence were relevant to the announced or generally known
requirements for the QC inspector position.4 On the ba-
sis of the credited testimony, the judge found that Arnold
was aware, at least as of November 4 or 5, of Host’s un-
ion activities at Lockheed and his Board charges against
Lockheed.5
Although there was no direct evidence of animus, the
judge properly found that the record as a whole, and in
particular the Respondent’s pretextual reasons for not
hiring Host, support an inference of animus. See Tide-
water Construction Corp., 341 NLRB 456 (2004); La
Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002).
Thus, the Respondent contends that it did not hire Host

3 Lockheed Martin Aircraft Center, Case 11–CA–18558 (Dec. 11,
2000) (ALJ) (unpublished).
4 Indeed, Arnold admitted that Host was a “good strong candidate
with well-rounded experience and strong technical skills.”
5 In affirming that finding, we do not rely on the judge’s inference
that Lockheed Supervisor Janus must have informed Arnold about
Host’s actions. Rather, we rely on Host’s uncontroverted testimony
that, on November 4 or 5, he told Arnold about his union activity and
his “court case” against Lockheed. We also note that Arnold admitted
that he was aware of Host’s union activities by the time that Arnold
hired Hoyos on November 18.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD978
for the second shift because the work that was to be done
on that shift never materialized. Yet Arnold admitted
that the Respondent did start the second shift in early
November by hiring two new employees and transferring
others from the first shift. Further, according to credited
testimony, Arnold offered the second-shift QC inspector
position to Meyer on November 5 or 6.6 Arnold also
claimed that one reason for rejecting Host was that his
“written skills were lacking,” even though he had no ob-
jective basis for this conclusion. Finally, Arnold added
written comments on Host’s application some 2 weeks
after his interview, which the judge found to be “disin-
genuous and contrived.”7
Because the Respondent’s reasons for not hiring Host
for the second-shift QC inspector position have been
found to be pretextual—i.e., they either did not exist or
were not actually relied on—they cannot form the basis
for a valid rebuttal to the General Counsel’s case. Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982). We therefore adopt the judge’s
finding that the Respondent violated Section 8(a)(1), (3),
and (4) by failing and refusing to hire Host as its second-
shift QC inspector.
II.
In contrast to our ruling with respect to the second-
shift decision, we find merit in the Respondent’s excep-
tion to the judge’s finding that it unlawfully failed to hire
Host for the first-shift QC inspector’s position. We as-
sume arguendo that the General Counsel established an
initial showing of discriminatory motive. However, the
Respondent has met its burden of demonstrating that it
would not have hired Host for that position even absent
his union and protected activities.
Host appeared at his job interview on October 31
wearing sunglasses, jeans, and boots. Based on the in-
terview, Arnold concluded that Host was lacking in in-
terpersonal skills. The conclusion as to lack of interper-
sonal skills was, in turn, based primarily on two factors:
(1) Host was “overconfident” in the interview; (2) Host
wore sunglasses during the interview and thus could not
make eye contact with Arnold or vice versa. Arnold thus
found that Host would be better suited for the second-
shift QC inspector position, where there would be less
need for him to “interface” with Lockheed management,

6 The fact that the Respondent did not continue the second shift in
January 2003, does not explain why Host was not hired in early No-
vember.
7 According to the credited testimony, Arnold was also untruthful in
his dealing with Host. He told Host, falsely, that two men from Texas
and California were being brought in to fill the QC inspector positions.
Arnold also told Host that he had checked with Host’s references, when
in fact he had not done so.
and that he was not suitable for the first-shift position,
which required greater interaction with Lockheed man-
agement. Arnold explained:
Probably the most sensitive part of that job is—related
to the customer/subcontractor relationship. The cus-
tomer/subcontractor relationship, the customer is al-
ways right, but in some cases they’re not. And the
communication skills are important in being able to tell
the customer he is wrong. It requires sometimes a lot
of self-composure. It certainly requires the ability to be
able to communicate . . . carefully.
Arnold’s assessment that Host was not suited for the
first-shift position was evident in the interview and in his
telephone call to Host the following day. Host himself
testified that the second shift was the only shift Arnold
discussed with him in the interview. In the follow-up
telephone call, Arnold told Host that he was qualified for
the second-shift QC inspector position. No mention was
made of the first-shift position. Thus, it is apparent that,
based on the interview, Arnold ruled out Host as a candi-
date for the first-shift position. We find that the Respon-
dent established a valid, nondiscriminatory reason for not
hiring Host for the first-shift position, based on its rea-
sonable conclusion that Host’s poor interpersonal skills
rendered him unsuitable for that position, where such
skills were important.
In finding that the Respondent failed to show that it
would have refused to hire Host in the absence of his
union activity, the judge’s reasoning regarding Host’s
wearing of sunglasses during his interview misses the
mark. Thus, the judge discounted Host’s wearing of
sunglasses as a reason for the Respondent’s not hiring
him merely because she viewed this reason as inconsis-
tent with Arnold’s statement that he “would have consid-
ered Host for the second-shift position if the work had
come through.” In finding this supposed inconsistency,
the judge ignored the difference between the first-shift
and second-shift positions pointed out by the Respon-
dent. Thus, the judge failed to address the first-shift
job’s additional requirement of frequent interaction with
Lockheed management and the need for such interactions
to be handled with a deft touch. Given this significant
difference between the first-shift and second-shift posi-
tions, there is nothing inconsistent between Arnold’s
finding Host unqualified for the first-shift position due to
his poor interpersonal skills and Arnold’s stated willing-
ness to hire Host for the second-shift position.
Moreover, in light of the judge’s failure to address the
Respondent’s explanation that the difference between the
first-shift and second-shift positions accounted for Ar-
nold’s finding Host suited for the latter but not the for-
LEADING EDGE AVIATION SERVICES 979
mer, we cannot accept the judge discrediting Host’s
wearing of sunglasses in his job interview, and the nega-
tive impression of overconfidence, as the reasons for the
Respondent’s not hiring Host for the first-shift position.
Thus, we disagree with the judge’s finding that the Re-
spondent’s supposed inconsistency in rationale was
“more illustrative of a pretext than a valid consideration.”
In giving credence to Arnold’s reasons for finding
Host not suited for the first-shift position, we do not rely
on Arnold’s testimony alone. We rely, in part, on the
undisputed fact that Host wore sunglasses during his job
interview with Arnold and on reasonable inferences that
may be drawn from this fact. Additionally, Arnold’s
testimony that the poor impression Host made at the in-
terview regarding his interpersonal skills led Arnold to
rule him out for the first-shift position is further sup-
ported by Host’s testimony that the second-shift QC job
was the only position that Arnold discussed with him at
the interview. Consequently, we find credible Arnold’s
explanation that, based on the interview, he concluded
that Host lacked interpersonal skills and was overconfi-
dent. We further find that Host’s wearing of sunglasses
in the interview, gave a negative impression to Arnold.
As noted, the judge discredited Arnold’s testimony
that Host’s wearing of sunglasses during the interview
led Arnold to find Host unsuitable for the first-shift posi-
tion. We disagree with that discrediting because it was
narrow and based on a false premise. As explained
above, the judge rejected, as inconsistent, Arnold’s tes-
timony that Host’s wearing of sunglasses and the nega-
tive impression he gave during the interview led Arnold
to conclude that he was unsuitable for the first-shift posi-
tion but not the second-shift position. As explained
above, we have found this discrediting flawed, because
the judge failed to acknowledge or address the Respon-
dent’s explanation regarding the difference between the
first-shift position and the second-shift position.
In addition, we rely on other testimony of Arnold
which was uncontradicted.8
Concededly, the wearing of sunglasses and the projec-
tion of overconfidence may be questioned by some as a
basis for denying a job to an applicant. But, job inter-
views are largely subjective matters, and it is not for the
Board to second-guess employers on these matters. Ar-
nold’s assessment that Host was unsuitable for the first
shift is to be respected.

8 The judge did not address Arnold’s testimony, quoted above, that
the most sensitive part of the first-shift QC inspector job related to the
customer/subcontractor relationship and required a lot of composure
and the ability to communicate carefully. This testimony was uncon-
troverted, and it has not been disputed by any party.
Accordingly, we find that the Respondent has shown
that it would not have hired Host for that position even in
the absence of his union and protected activities.9 We
reverse the judge and find that the Respondent’s failure
to hire Host for the first-shift QC inspector position did
not violate the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Leading
Edge Aviation Services, Greenville, South Carolina, its
officers, agents, successors, and assigns shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
“Make whole Terry Host for any losses he may have
suffered by reason of the discrimination against him as
set forth in the remedy section of this decision.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
MEMBER LIEBMAN, dissenting in part.
The majority relies entirely on discredited testimony1
to find that the Respondent lawfully refused to hire Terry
Host as the QC inspector on its first shift. Without that
reliance—obviously inappropriate—there is no basis to
reverse the judge’s finding of a violation. And even if
the evidence were credible, it would not establish that the
Respondent would have refused to hire Host on the first
shift even absent his protected activity. See FES, 331
NLRB 9, 12 (2000), enfd. 301 F.3d 83 (3d Cir. 2002).
I.
The majority relies on the testimony of Craig Arnold,
the Respondent’s director of military programs. Arnold
testified that he hired Carlos Hoyos, instead of Host, for
the first-shift position for several reasons. Arnold testi-
fied that Hoyos demonstrated strong communications
and interpersonal relationship skills during the interview.
Arnold was also “impressed with Hoyos as open-minded
and receptive to change.” This impression evidently
stemmed from the fact that, unlike Host, Hoyos had no
experience as a QC inspector and thus would not be

9 Contrary to the dissent, in so finding, we are not altering the rebut-
tal burden borne by employers under FES. More specifically, we do
not believe that an employer can carry its rebuttal burden by simply
“articulating as many seemingly plausible reasons that it can think of.”
Obviously, an employer must establish that, in fact, there were legiti-
mate reasons for its action. We believe that the Respondent has done
so here. Our colleague disagrees. It is this difference, rather than a
difference in standards of burden of proof, which separates us from our
colleague.
1 I do not understand why the majority contends that it is not doing
so, especially because it specifically criticizes the judge for discrediting
the witness on whose testimony it relies.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD980
wedded to old ways of doing things. Arnold also testi-
fied that Hoyos had a better professional demeanor and
presentation than Host, who struck Arnold as “overcon-
fident and lacking in interpersonal skills.” This latter
assessment was apparently based on Host’s having worn
sunglasses to his interview with Arnold (because he had
inadvertently left his regular glasses in his car). Finally,
Arnold testified that, although Host demonstrated good
verbal communications skills, Arnold was concerned that
Host’s written communications skills were lacking.
The judge rejected these contentions as “fabricated and
without substance.” She found unpersuasive Arnold’s
assertion that Hoyos was more open-minded and recep-
tive to change. She questioned Arnold’s expressed con-
cern over Host’s written communications skills, in light
of Arnold’s admission that he had no writing sample or
information from Host’s previous employer, Lockheed,
on which to base that concern. The judge found Ar-
nold’s reliance on Host’s having worn sunglasses to his
job interview invalid, given that Arnold testified that he
would have considered Host for the second-shift QCI
position if enough work had materialized. And she
found Arnold’s testimony even less credible because of
his handwritten notes on Host’s employment application,
which she found to be “disingenuous and contrived.” In
short, the judge found the Respondent’s proffered rea-
sons for rejecting Host to be pretextual—i.e., they either
did not exist or were not actually relied on in making the
decision. Limestone Apparel Corp., 255 NLRB 722
(1981), enfd. 705 F.2d 799 (6th Cir. 1982). Having
found Arnold’s proffered reasons to be pretextual, the
judge necessarily must have discredited the testimony
supporting them.
The judge also discredited other critical parts of Ar-
nold’s testimony. Specifically, she rejected his claims
that he had no knowledge of Host’s previous Board
charges until the week of the hearing; that he never of-
fered the second-shift QCI position to anyone; that he
considered Host only for the second shift; and that the
only reason he failed to hire Host for that position was
the expected work from Lockheed never materialized.
Indeed, it is not too much to say that the judge discred-
ited Arnold’s testimony, either explicitly or implicitly, in
every material respect. The judge was, therefore, on
good ground in rejecting the Respondent’s proffered rea-
sons for not hiring Host on either the first or second shift,
and in finding that it violated Section 8(a)(3) and (4) in
each instance.
II.
The majority apparently accepts the judge’s findings
and conclusions, except in one respect. The one excep-
tion is Arnold’s claim, based on Host’s wearing sun-
glasses at the interview, that he considered Host to be
overconfident and lacking in interpersonal skills. The
judge rejected that contention because Arnold professed
willingness to hire Host for the second shift; she found
that “dichotomy in rationale . . . more illustrative of a
pretext than a valid consideration.”
The majority argues, as Arnold did, that unlike the
second-shift QCI, the first-shift QCI is often required to
deal directly with the client, and therefore that stronger
interpersonal skills are required of the inspector on the
first shift. Thus, the majority contends, there was no
inconsistency between Arnold’s refusal to hire Host for
the first shift and his stated willingness to hire him for
the second shift, and the judge improperly found Ar-
nold’s reason for the former action to be pretextual. Ac-
cordingly, the majority finds that the Respondent has
demonstrated that, even if it was motivated in part by
animus toward Host’s protected activities, it would have
refused to hire Host for the first-shift QCI position even
absent those activities.
III.
The majority’s position is untenable. To reverse the
judge and dismiss the allegation that the Respondent
unlawfully refused to hire Host for the first shift, the ma-
jority must do two things: (1) find that Arnold’s pro-
fessed reasons for not hiring Host—his asserted overcon-
fidence and lack of interpersonal skills—existed and
were actually relied on in making the hiring decision
(otherwise, the judge’s finding of pretext must stand);
and (2) find that Arnold would have rejected Host for
those reasons, even absent his protected activity. Neither
finding can be supported.
First, the majority does not explain why it is willing to
accept Arnold’s assertions that Host seemed overconfi-
dent and lacking in interpersonal skills and that Arnold
rejected Host for the first-shift position for those reasons.
The record contains only Arnold’s unsupported testi-
mony in this regard.2 Were Arnold a credible witness,
his testimony might be persuasive. But Arnold was not a
credible witness: the majority seemingly agrees with the
judge that practically everything else of substance that
Arnold said at the hearing was unworthy of belief. Why,
then, does it choose to credit Arnold’s testimony on this
issue?3 Of course, “nothing is more common in all kinds
of judicial decisions than to believe some and not all” of

2 Thus, for example, there is no job description in the record indicat-
ing that strong interpersonal skills are necessary for the QCI position on
the first shift but not the second.
3 The majority accepts the judge’s conclusion that Arnold apparently
attempted to create a paper trail to justify not hiring Host—an attempt
that would have made no sense had Arnold had a valid reason for re-
jecting him.
LEADING EDGE AVIATION SERVICES 981
a witness’ testimony.4 But one must provide a sound
reason for believing one part of a witness’ testimony if
all the witness’ other testimony is being rejected. The
majority has not done so.5
In my view, Arnold’s unsupported and uncorroborated
testimony cannot be accepted, given his lack of credibil-
ity when testifying on other matters. Arnold never ex-
plained why he deemed Host to be deficient in interper-
sonal skills apart from his eye wear at the interview.
And, despite having interviewed Host personally and
having checked with Lockheed personnel concerning
Host’s previous employment, Arnold failed to point to
any evidence that might support a belief that Host was in
fact deficient in interpersonal skills.6
Nor did Arnold establish any link between Host’s as-
serted overconfidence (which Arnold conceded was not
necessarily a negative quality) and any job requirement
for the first-shift QCI position. Arnold did suggest that it
takes time for overconfident individuals to learn that they
are inspecting according to Leading Edge procedures
rather than Lockheed procedures. However, Arnold
never explained why this should be so for overconfident
individuals, but not for others. More to the point,
though, is that QC inspectors on both the first and second
shifts would be inspecting according to Leading Edge
procedures. But Arnold professed a willingness to hire
Host for the second shift, thereby ruling out any possibil-
ity that overconfidence could be a problem on that shift.
Absent any distinction between the shifts in this regard,
overconfidence could not have worked against Host’s
application for the first-shift position either.
Thus, the judge properly discredited Arnold’s testi-
mony that he rejected Host for the first-shift position
because of overconfidence and lack of interpersonal
skills. But even if those qualities existed and contributed
to the Respondent’s decision, the decision was still
unlawful.
The General Counsel has demonstrated that unlawful
animus was a motivating factor in the Respondent’s re-
fusal to hire Host. Accordingly, the violation is estab-
lished unless the Respondent can show that it would have

4 NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir.
1950), vacated and remanded on other grounds 340 U.S. 474 (1951).
5 In failing to explain its actions, the majority ignores the Board’s
long-established policy, which is not to overrule an administrative law
judge’s credibility resolutions unless the Board is convinced by the
clear preponderance of all the relevant evidence that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951).
6 Although Arnold also testified that using good judgment and com-
municating with the proper individual are essential in dealing with
customers, he did not testify that he believed that Host would fall short
in either respect.
refused to hire him even absent his protected activity.
FES, supra. It is well established that the Respondent
cannot carry that burden merely by showing that it could
have rejected Host because of his asserted overconfi-
dence and lack of interpersonal skills; it must show that it
would have rejected him for those reasons. See, e.g.,
Masiongale Electrical-Mechanical, 337 NLRB 42, 43
(2001), enfd. in relevant part 323 F.3d 546 (7th Cir.
2003).
The Respondent’s problem is that Arnold claimed to
have rejected Host not only because of his overconfi-
dence and lack of interpersonal skills, but, in addition to
those reasons, because of concern over Host’s written
communications skills and because Hoyos was more
open-minded and receptive to change. The judge, the
majority, and I have rejected the latter two explanations
as pretextual. Thus, having asserted that it turned down
Host’s application for four separate reasons, the Respon-
dent is now left with only two possibly legitimate rea-
sons for its decision. Of course, the Respondent could
have attempted to show that it would have refused to hire
Host for those reasons alone, but it did not. Arnold, who
made the decision, did not testify that he would have
refused to hire Host for the first shift purely because of
his overconfidence and lack of interpersonal skills. Ac-
cordingly, the Respondent has failed to demonstrate that
it would have rejected Host for the first-shift position for
nondiscriminatory reasons. The majority’s contrary con-
clusion is simply wrong.
IV.
I assume that the subjective factors on which Arnold
purportedly relied could be valid business considerations
in the hiring context. Here, however, they were not: the
judge found, and I agree, that they were pretextual—i.e.,
they either did not exist or were not actually relied on. In
finding to the contrary, the majority suggests that an em-
ployer can carry its rebuttal burden under FES simply by
articulating as many seemingly plausible reasons as it
can think of for refusing to hire a union supporter, in the
hope that the Board will find that at least one has not
been disproved and for that reason alone is not only be-
lievable but actually dispositive of the case. Accord-
ingly, I would affirm the judge’s finding that that refusal
was unlawful.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD982
The National Labor Relations Board has found that we
violated 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 refuse to hire applicants on the basis of
their activities on behalf of the Aircraft Mechanics Fra-
ternal Association or any other union.
WE WILL NOT refuse to hire applicants on the basis of
their having filed charges and/or participated in Board
proceedings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Terry Host employment in the position for
which he applied or, if that position no longer exists, in a
substantially equivalent position, without prejudice to
seniority or any other rights or privileges to which he
would have been entitled if we had not discriminated
against him.
WE WILL make Terry Host whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful refusal to employ Terry Host and, WE WILL, within 3
days thereafter, notify him in writing that we have done
so and that we will not use this personnel action against
him in any way.
LEADING EDGE AVIATION SERVICES, INC.
Jasper Brown, Esq., for the General Counsel.
Melvin Hutson, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Greenville, South Carolina, on April 24
and 25, 2003. The charge was filed by Terry Host, an individ-
ual (Host) on December 12, 2002,1 and later amended on
March 7, 2003. Based upon the original and the amended
charge, the Regional Director for Region 11 of the National
Labor Relations Board (the Board) issued a complaint and no-

1 All dates are in 2002 unless otherwise indicated.
tice of hearing on March 11, 2003. The complaint alleges that
Leading Edge Aviation Services, Inc. (the Respondent) violated
Section 8(a)(1), (3), and (4) of the National Labor Relations
Act (the Act) by refusing to hire Host on or about October 31,
2002, because of his concerted activity on behalf of the Aircraft
Mechanics Fraternal Association (the Union) and because he
filed charges and/or participated in a Board proceeding.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the oral argu-
ments given by counsel for the General Counsel and counsel
for the Respondent at the close of the hearing, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation, is engaged in aircraft
maintenance at its facility in Greenville, South Carolina, where
it annually purchases and receives goods and materials valued
in excess of $50,000 directly from points outside the State of
South Carolina. 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. In its answer filed April 2, 2003,
Respondent denies that the Union is a labor organization within
the meaning of Section 2(5) of the Act and the record contains
little evidence with respect to the Union’s specific functioning
and activities. Host testified without contradiction however,
that the Union is a craft-oriented independent aviation union
that represents employees of Northwest Airlines, Atlantic Coast
Airlines, Alaska Airlines, and American Transportation Air. In
1999, the Union petitioned the Board to represent mechanics
employed by Lockheed Martin Aircraft Center (Lockheed) and
Host served as president of the Union’s organizing committee.
Thus, the record contains uncontroverted evidence that the
Union is an organization in which employees participate and an
organization that exists for the purpose, in whole or in part, of
dealing with employers concerning wages, hours, and other
conditions of employment. Accordingly, I find that the Union
is a labor organization within the meaning of Section 2(5) of
the Act. See Alto Plastics Mfg. Corp., 136 NLRB 850, 851
(1962).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
General Counsel argues that Respondent refused to hire Host
on October 31 as a Quality Control (QC) inspector because of
his prior union activity at Lockheed as well as for his having
filed a charge against Lockheed and for his testifying against
Lockheed during the Board proceeding. Respondent argues
that Host’s protected activities played no part in its decision not
to hire him for the position of QC inspector.
B. Respondent’s Operation
Respondent has been in operation in Greenville, South Caro-
lina, since August 1989. Respondent’s operation involves two
primary groups of services for aircraft. One service involves
paint stripping and sterilizing the outside of aircraft in prepara-
tion for repainting as well as inside and outside aircraft detail-
ing. The second group of services involves repairing and ser-
LEADING EDGE AVIATION SERVICES 983
vicing the aircraft’s fuel system. The fuel system services op-
eration is performed on a four-engine turbo prop aircraft known
as a P-3. During its 14-year operation in Greenville, Respon-
dent has been a subcontractor to Lockheed Martin Aircraft
Center (Lockheed) and its operation is contained within the
fenced Lockheed property. Although Respondent maintains a
separate office trailer, Respondent’s employees work in the
same aircraft hangars with Lockheed employees. As Respon-
dent’s director of military programs, Craig Arnold is responsi-
ble for the day-to-day management of Respondent’s subcon-
tract facility at Lockheed in Greenville. Arnold confirmed that
Respondent and Lockheed utilize common work areas and he
interfaces daily with Lockheed’s management staff. There are
both regularly held meetings and ad hoc discussions between
Respondent’s managers and Lockheed’s managers.
C. Background
Terry Host began working for Lockheed in 1989. His em-
ployment as a QC aircraft inspector continued until March
2001, when he resigned to work for General Electric. In 1998
and 1999, Host became actively involved in organizing activi-
ties by the Aircraft Mechanics Fraternal Association at Lock-
heed’s Greenville, South Carolina facility. Host testified that as
president of the Union’s organizing committee, he was in
charge of all union activities at Lockheed’s facility. He rou-
tinely distributed a union newsletter to maintenance employees
at least once or twice each week during the organizing period.
He also wore a union T-shirt at all times during the Union’s
organizing campaign.
On December 11, 2000, Administrative Law Judge William
N. Cates issued a bench decision in Lockheed Martin Aircraft
Center and Terry J. Host, an individual2 finding that Lockheed
violated Section 8(a)(1) and (3) of the Act by issuing a verbal
warning and written warning to Host because he joined, sup-
ported, or assisted the Union and by engaging in protected con-
certed activity. In commenting upon Host’s union activity,
Judge Cates stated:
With respect to Union activity, employee Host testified that
he contacted the union and asked about their assisting him in
bringing about unionizing of the employees at the Company
herein. The evidence tends to indicate that Mr. Host served as
the focal or lead point for the Union’s activities at the Com-
pany, particularly in the 1999 Union campaign that culmi-
nated in an election that I believe the record reflects was per-
haps held in June of 1999. That election went in favor of the
Company by approximately a 2 to 1 vote. During the Union
campaign and at all times thereafter, employee Host wrote
dear fellow employee letters and distributed those to employ-
ees at the Company as frequently as two or more times per
week.
Judge Cates also noted that in May and July of 1999, a num-
ber of local newspaper articles mentioned Host by name, in-
cluded his picture, and referenced him as a supporter of the
Union. Judge Cates further noted that Host solicited employees
to sign union cards and wore union T-shirts bearing the union

2 2000 WL 33665485 (NLRB Div. of Judges).
insignia and he noted that Lockheed’s management officials
knew about Host’s participation in union activities.
D. Respondent’s Hiring of QC Inspectors
Prior to October 2002, Respondent employed Harry Gaskin
as its only QC inspector. Arnold testified that in early October,
Respondent decided to hire additional QC inspectors. Respon-
dent planned to promote Gaskin and to hire a replacement for
him on first shift. Additionally, Respondent planned to hire an
additional inspector for the new second-shift operation that was
scheduled to begin in January to accommodate Lockheed’s
January aircraft arrivals. Each week Respondent receives a
report from Lockheed reflecting when different aircraft are
scheduled to arrive at Lockheed for servicing. Based upon
Lockheed’s forecast, Respondent anticipated that it would need
a second-shift operation to accommodate the January aircraft
arrival.
Respondent advertised in the local newspaper for employees
to fill the positions of fuel systems technicians, structures tech-
nicians, QC inspectors, production and fuel systems’ managers
and leads as well as division manager. Arnold testified that he
had been looking for possibly three QC candidates. He had a
60-day period from the end of October through the end of De-
cember as his timetable for hiring new QC inspectors. He
added however, that he had wanted to complete the hiring by
the first of December. Arnold explained that Respondent was
required to have a second inspector by the end of December to
prepare for the production increase predicted by Lockheed.
In early November, Respondent began a limited second-shift
operation. Two new individuals were hired and other employ-
ees were transferred from first shift to maintain continuity.
Respondent hired Shane Thornley as its first new QC inspector
at the end of October. Thornley only worked for 2 or 3 days
before he resigned to take a position as a teaching professional
with the Professional Golfers’ Association, which had been his
lifelong dream. Personnel records reflect that Thornley’s last
day of work was October 28.
E. Terry Host’s Application for Employment
When Host worked as a QC inspector for Lockheed, he was
responsible for finding any discrepancies in the aircraft that
required repair. After repairs were made by the mechanics,
Host again inspected the aircraft. In order to work as a QC
inspector, he was required to submit his qualifications and ap-
pear before a review board. Host met all the requirements to
perform the QC inspection for Lockheed and as Lockheed’s QC
inspector for 6 years; he received numerous awards for getting
out the aircraft in a timely fashion. He also trained other in-
spectors while he was employed with Lockheed.
After learning from friends about possible job openings at
Respondent’s facility, Host telephoned Arnold on October 31.
Arnold told Host that Respondent was looking for fuel-tank
inspectors for the P-3 aircraft and Host immediately faxed his
resume to Arnold. Host’s resume reflected that from 1989 until
2001, he had worked for Lockheed as a QC inspector, perform-
ing inspection duties on line and hangar aircraft and back-shop
components, as well as inspecting aircraft technicians’ work
prior to releasing aircraft back to service. The resume also
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD984
reflected that from 1987 until 1989, Host worked for Lockheed
Arabia in Saudi Arabia. Host included in the resume that in
this capacity he assigned duties of 23 mechanics, launched,
recovered, and scheduled maintenance for 16 aircraft; inter-
faced with Saudi customers, and trained Saudi Arabian Air
Force counterparts. Host served as an aircraft mechanic for the
United States Air Force from 1980 until 1986 and he was li-
censed as an AP mechanic.3 Arnold testified that an AP license
is required for Respondent’s inspectors and is issued after spe-
cific training that follows Federal Aviation Administration
(FAA) guidelines. Arnold explained that the training is ob-
tained through a continuous 2-year training program at a dedi-
cated school or 4 years of hands-on experience with subsequent
qualifications and testing by FAA designated examiners. After
receiving Host’s fax, Arnold called and asked Host how soon
he could come in to file an application.
Host met with Arnold later in the day on October 31. Host
wore a long-sleeve dress shirt, jeans, and boots. He also wore
his prescription sunglasses into the interview because he had
inadvertently left his regular glasses in his car. During the
interview, Arnold asked about his prior qualifications and his
experience in working on the P-3 aircraft. Host recalled that he
told Arnold that he would not only be comfortable with the
required paperwork but he would be comfortable with training
other employees if needed. Host told Arnold that he would not
have any problem working on second shift and that he would be
content starting at $18 an hour. Arnold told him that Gaskin
would contact him and he would be required to take a drug test.
Arnold asked him how soon he could start to work. Host testi-
fied that he understood that the only thing standing in the way
of his starting was his talking with Gaskin and his taking the
drug test.
After talking with Arnold, Arnold’s administrative assistant,
Bud Kirley, gave Host a tour of the facility. As Host and
Kirley walked through the 1029 Hangar, Host saw several of
the Lockheed employees with whom he had worked over the
years. He recalled specifically seeing and making eye contact
with Rich Parker, Lockheed’s P-3 program manager. As he
continued the tour, Kirley remarked that Respondent planned to
bring in two individuals from out of town to do the fuel-tank
maintenance work. Kirley concluded by telling Host that Gas-
kin would let him know when he would take the drug test.
On November 1, the next day after Host’s tour of the facility,
Arnold telephoned Host. Arnold told him that he was going to
bring in two men from Texas and California to fill the QC posi-
tions. He added that if they did not work out, Host would be
his third choice. He suggested that Host might want to check
back with him after the first of the year. Over the weekend,
Host checked with the individuals who were listed as references
on his application and learned that Respondent had not con-
tacted them. On or about November 4 or 5, Host telephoned
Arnold and asked him to explain again why he was not going to
be hired. Arnold told him only that he was filling the positions
with individuals from out-of-town. He assured Host that he had

3 AP mechanic Jeff Meyer testified that this term refers to an air-
frame and powerplant mechanic. Meyer testified that Lockheed re-
quired its QC inspectors to have an AP license.
checked his references and he added: “they spoke very highly
of you.” Host recalled that when he told Arnold that he had
contacted his references and he knew that they had not been
called, there was a long pause. Arnold again suggested that
there might possibly be a job for him after the first of the year.
Host asked Arnold if he had spoken with Lockheed’s P-3
program manager, Rich Parker. Arnold acknowledged that he
had done so but assured Host that his talking with Parker had
nothing to do with whether he was being hired or not hired.
Arnold explained that Parker had seen Host in the hangar and
had asked Arnold questions about him and had asked whether
Host was going to be an employee. Host pressed on and urged
Arnold to be honest with him as to what Parker had told him.
Host recalled telling Arnold: “Let’s cut out the B.S. You know
you can be honest with me about what was said. I went from
being hired—or, excuse me, to all I need to do is taking drug
test one day, then I’m the third choice, and, you know, I’d like
the truth.” Arnold then acknowledged that while Parker had
told him that Host was a good worker, he also mentioned that
Host had some trouble in his past. Host assured Arnold that he
had not left Lockheed without giving 2 weeks’ notice and that
he had left voluntarily. Host explained that the only trouble
that he had in the past had been related to the Union and added
that Lockheed had been found guilty on five of the six charges
in the “Court” case against him. Host testified that he then con-
fronted Arnold with Kirley’s statement that the individuals
coming in from out-of-town were scheduled for maintenance
and not QC positions. Arnold ended the conversation by telling
Host that there was no job available for him and that Arnold
could not hire him at all.
F. Jeff Meyer’s Application for the QC Position
Just as Host, Jeff Meyer worked for Lockheed as a QC in-
spector and then later for General Electric. When Meyer heard
about a possible job opening at Respondent’s facility, he was
scheduled for layoff from General Electric for the first week of
November. After he faxed his resume to Respondent’s office
around the first of November, he was contacted to come in for
an interview. Meyer recalled that his interview was after Host
applied for the job and before his layoff on November 8.
When Meyer interviewed with Arnold, Arnold told him that
Respondent was planning to bring in employees for the second
shift in order to keep the work flowing as well as to hire two
QC inspectors. Meyer recalled Arnold saying that he needed
inspectors and that he needed to hire fairly quickly. Arnold
asked about Meyer’s background and also asked how soon he
would be available to start work. After Meyer’s interview,
Arnold telephoned him on or about November 6, and told him
that he was in a position to offer Meyer the job at $18 an hour.
Meyer asked if he could have a day or two to think about the
offer. Meyer did not take the job however, declining it for
another job offer. When Meyer telephoned Arnold to let him
know that he was not taking the job, Arnold asked him if he
knew anyone else who might be interested in the job. Meyer
suggested that Carlos Hoyos and Randy Herman might be in-
terested. Meyer offered to get in touch with these individuals
and let them know of the job openings and he did so after his
conversation with Arnold.
LEADING EDGE AVIATION SERVICES 985
G. Respondent’s Rationale for not Hiring Host
Arnold described Host as a good strong candidate for the po-
sition. He remembered Host as having good, well-rounded
experience and strong technical skills. Arnold testified that he
had not offered Host the position however, because he had
concerns about Host’s interpersonal skills. As an example,
Arnold explained that Host’s wearing sunglasses during the
interview prevented his making eye contact with Host. Arnold
added that Host also appeared to have an “over-confidence
level.” When asked if there were any other reasons that he had
not offered Host the job, Arnold recalled that he had some con-
cerns about Host’s communication skills. He explained that
while Host’s verbal skills were relatively good, his written
skills “possibly seemed lacking.” Although he added that he
was not sure if the written communication skills were lacking,
he referred to no written document upon which he had based
this doubt. Arnold further acknowledged that he did not require
a writing sample from Host nor did he check with Lockheed’s
managers about Host’s communication skills or writing ability.
Arnold explained that he thought that Host would have been
better suited for the second-shift QC position because it would
require less interfacing with Lockheed management. Arnold
explained that he would have extended an offer to Host to work
on second shift once he was confident of Lockheed’s funding
for the scheduled aircrafts.
Arnold asserted that while Host was still under considera-
tion, Respondent received indications from Lockheed that there
was no funding committed for new P-3 aircraft after the first of
January. Arnold testified that as a result of receiving this “indi-
cation” from Lockheed, Host was removed from consideration
for employment. As an example of this notification, Respon-
dent submitted a copy of Lockheed’s April 22, 2003 PDM and
SARP Aircraft Schedule, showing the receipt of only three
aircraft in 2003. On the schedule, Arnold noted that no incom-
ing Leading Edge Aviation Service or LEAS work was sched-
uled to be received after January 6 through July 8. Respondent
also provided its personnel rosters for October 30, 2002 and
April 23, 2003, showing a reduction in fuel and detail employ-
ees from 50 to 34 employees.
It is undisputed however, that Respondent hired Carlos
Hoyos as a QC inspector on November 18. Hoyos’ resume
reflects a fax date of November 13, and Hoyos’ application is
dated November 14. While Arnold maintained that at the time
that Carlos Hoyos was hired on November 18, Host was still
under consideration for employment, he never identified the
specific date when Respondent first learned of the funding
problem with Lockheed or when Host ceased to be considered
for employment. Arnold maintains that Respondent never hired
a second-shift QC inspector and that Respondent no longer has
a second-shift operation for production in the fuel system.
Arnold recalled that he telephoned Host the day after his in-
terview to tell him that his interview had gone well and that he
was certainly qualified for the second-shift position. Arnold
acknowledged that he had two technicians who came in from
out-of-state, however neither of them were inspectors. He de-
nied that he ever discussed these individuals with Host or that
he had ever told Host that they were hired as QC inspector
positions. Arnold denied that he ever told Host that he could
not use him at all.
Arnold denied that he ever offered a position to Meyer. He
maintained the only position that would have been open for
Meyer was one on the second shift and Meyer had explained
that he could not take a first-shift position because of shared
child-care responsibilities. Arnold testified that while Hoyos’
technical skills4 were equivalent to Host, Hoyos’ communica-
tion skills were better. Arnold testified that he had been im-
pressed with Hoyos as openminded and receptive to change and
“knowing that is key to understanding a whole new QC sys-
tem.” Arnold added that with Hoyos, there was no concern that
he would revert back to old habits from any previous quality
control system.5 He described Hoyos as having a better profes-
sional demeanor and presentation.
H. Respondent’s Knowledge of Host’s Union
and Protected Activities
Arnold acknowledged that he had not spoken with any of
Host’s references about his work. He testified that he had tried
to contact one of the individuals but did not reach him. He
confirmed that he had spoken with Rich Parker the same day
that he interviewed Host. He also talked with Lockheed Super-
visor Joe Janus either the same day or the day after his inter-
view with Host. Arnold denied that either Janus or Parker told
him anything about Host’s involvement with the Union while at
Lockheed. Arnold testified that he had not known about Host’s
having filed a charge with the Board or going to court against
Lockheed until the week of the April 25 trial. He admitted
however, that within a week or two after interviewing Host, he
learned of Host’s union organizing. He testified that he had
been walking through the shop floor and employees told him
about Host’s involvement in union organizing. Arnold did not
explain how these conversations came about or why employees
would have volunteered such information to him at that time.
Arnold did not deny that Host told him about his union activity
and the court case when they spoke on November 4 or 5.
III. FACTUAL AND LEGAL CONCLUSIONS
The General Counsel alleges that Respondent refused to hire
Host because of his union activity and because he filed charges
and/or participated in a Board proceeding. In FES, 331 NLRB
9 (2000), the Board defined the elements of a refusal-to-hire
violation, as follows:
To establish a discriminatory refusal to hire, the General
Counsel must, under the allocation of burdens set forth in
Wright Line, 251 NLRB 1083 [ ] (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 [ ] (1982), first
show the following at the hearing on the merits: (1) that the

4 Hoyos’ application reflects that he has an associate’s degree in air-
frame and powerplant technology as well as experience as an airframe
and powerplant licensed technician. His nonmilitary work experience
includes work as an airframe and powerplant mechanic and technician
for three employers including Lockheed during the period from 1998 to
2000. After 2000, he worked as an assembly-line team leader for Gen-
eral Electric.
5 Hoyos’ resume reflects that while he worked as a technician, he
had not worked previously as a QC inspector.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD986
respondent was hiring, or had concrete plans to hire, at the
time of the unlawful conduct; (2) that the applicants had ex-
perience or training relevant to the announced or generally
known requirements of the position for hire, or in the alterna-
tive, that the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves pretex-
tual or were applied as a pretext for discrimination; and (3)
that antiunion animus contributed to the decision not to hire
the applicants. Once this is established, the burden will shift
to the respondent to show that it would not have hired the ap-
plicants even in the absence of their union activity or affilia-
tion.
General Counsel has met the requisite burden by showing
that Respondent was hiring or had concrete plans to hire, at the
time that Host applied and was rejected for employment. Ar-
nold testified that he had two positions open at the time of
Host’s interview. Arnold further admitted that while he hired
Hoyos, Host’s technical skills were equivalent to Hoyos. A
comparison of Host’s and Hoyos’ resumes reflect that while
Hoyos had 2 to 3 years of nonmilitary experience as an air-
frame and powerplant mechanic and technician, Host claimed
12 years of experience as a QC inspector for Lockheed. Thus,
both of the first two elements are established in the refusal to
hire analysis.
Respondent argues that General Counsel has not met the
burden of establishing the third element in the analysis. Re-
spondent argues that direct evidence of animus is required and
the record is devoid of such evidence. Certainly, this case is
somewhat unique in the fact that there is no evidence that Host
or any other employee engaged in union activity at Respon-
dent’s facility. All of the union activity and protected activity
in filing and pursuing a Board charge was directed to Lockheed
and not Respondent. Additionally, there is neither an allegation
nor any evidence that Arnold or any other management official
engaged in any independent 8(a)(1) violation. Accordingly,
Respondent is correct in its argument that there is no direct
evidence of animus toward Host. Citing Fluor Daniel, Inc.,
304 NLRB 970 (1991), counsel for the General Counsel argues
that animus may be inferred however, even without direct evi-
dence. Contrastly, Respondent argues that the circumstances
involved in the Fluor Daniel case are distinguishable from the
facts herein. In Fluor Daniel, an employer failed to hire any of
48 known union supporter applicants. Despite the fact that the
applicants had sufficient credentials and experience to fill the
positions, none of the applicants were offered a position, called
for an interview, or even contacted by the employer after sub-
mitting their application. Respondent’s counsel argues that in
the instant case, there was only one individual involved and that
Respondent had a legitimate business reason for not offering
him a position.
The circumstances of this case are different from Fluor
Daniel with respect to the number of applicants and the exis-
tence of direct evidence of knowledge of union and protected
activity. These differences however, are insufficient to affect
the applicability of the Board’s findings to the instant case. In
discussing the burdens of the General Counsel and the respon-
dent under Wright Line, supra, the Board stated in Fluor
Daniel: “It is also well settled, however, that when a respon-
dent’s stated motives for i[t]s actions are found to be false, the
circumstances may warrant an inference that the true motive is
an unlawful one that the respondent desires to conceal. The
motive may be inferred from the total circumstances proved.
Under certain circumstances the Board will infer animus in the
absence of direct evidence. That finding may be inferred from
the record as a whole.” Fluor Daniel, above at 970. The Board
has also noted that because there is seldom direct evidence of
unlawful motivation, the General Counsel may rely on circum-
stantial evidence from which an inference of discriminatory
motive may be drawn. See Abbey’s Transportation Services,
284 NLRB 698, 701 (1987).
I find the record as a whole supports an inference of animus.
This conclusion is based upon a number of factors. Respondent
acknowledges that at the time that Arnold interviewed Host on
October 31, there were two QC positions to be filled. Respon-
dent contends that it would have considered Host for the sec-
ond-shift position had it ever materialized. Respondent asserts
that because of the reduction in work from Lockheed, the sec-
ond-shift QC position never came about. Certainly, Respon-
dent presented evidence to show that there was a reduction in
work and ultimately a reduction in the work force in 2003.
Accordingly, while it may be plausible that there was no sec-
ond-shift QC inspector position available in 2003, Respondent
has not credibly demonstrated a nondiscriminatory basis for its
failure to hire Host when he applied in October 2002. Arnold
testified that he had only considered Host for the second-shift
QC position. By asserting that Host was only considered for
the second-shift QC inspector position, Respondent reduces the
availability of work for Host. I find Respondent’s asserted
reasons for such limited consideration as pretextual. Arnold
admits that Host was a good strong candidate with well-
rounded experience and strong technical skills. Arnold de-
scribed Hoyos and Host as having equivalent technical skills.
Arnold contends however, that he selected Hoyos over Host
because Hoyos impressed him as being openminded and recep-
tive to change. He contends that he wouldn’t have concerns
about Hoyos reverting to any bad habits from quality control
experience. While he gave no further explanation, he appar-
ently found Hoyos preferable because he had never worked as a
QC inspector in contrast to Host who had 12 years experience
as a QC inspector for Lockheed. Although Arnold described
Hoyos as having better communication skills, he acknowledged
that Host’s verbal communication skills were good. He added
that possibly his written skills were lacking. He admitted how-
ever, that he neither required Host to provide a writing sample
nor did he check with Lockheed’s managers to determine
Host’s writing ability. He in fact, identified no objective basis
for his alleged doubts of Host’s written communication skills.
It is undisputed that on the same day or the day after Host’s
interview, Arnold talked with Rich Parker and Joe Janus. Ar-
nold denies that either of them told him about any problems
with Host or about his union activity. Arnold admits however,
that Parker was surprised to see Host on the premises and ques-
tioned his presence. Arnold also acknowledged that he had
heard from “some folks” on the floor that when Host left Lock-
heed there had been “some issues.” Arnold testified that when
LEADING EDGE AVIATION SERVICES 987
he had spoken with Janus, Janus had simply verified Host’s
employment and described him as a good inspector. In the
November 2000 trial before Administrative Law Judge Cates,
Host testified that Janus threatened him with discharge for
wearing a union logo T-shirt rather than a company-provided
shirt. In his December 11, 2000 decision, Judge Cates not only
found that Janus’ comments constituted a verbal promulgation
of an unlawful uniform policy, but also an unlawful termination
threat because of Host’s union activity. Additionally, Judge
Cates found that Lockheed unlawfully issued a written warning
to Host for engaging in protected concerted activity. The text
of the decision indicates that Janus testified that Host was out
of his work area at the time and Lockheed argued that Host was
not engaged in protected concerted activity.
Thus, rather than talking with the references listed in Host’s
application, Arnold almost immediately talked with Janus about
Host’s work at Lockheed. I find it incredible that Janus simply
verified Host’s employment and described Host as a good in-
spector without mentioning Host’s union or protected activities.
It is implausible that Janus would have failed to mention that
Host filed a charge against Lockheed and testified against the
company in the unfair labor practice proceeding. As a result of
Host’s testimony, Judge Cates found Janus’s actions violative
of the Act. Although exceptions to the judge’s decision may be
pending, it would be naive to assume that a Lockheed manager
named in the judge’s decision would have a casual response to
any inquiry about Host.
Although Arnold asserts that neither Parker nor Janus told
him about Host’s union or protected activity, he admits that he
was told about Host’s union activity within a week or two of
Host’s interview. He recalled that while walking through the
shop floor, employees told him about Host’s involvement in
union organizing. Thus, by Arnold’s own admission, he was
aware of Host’s union organizing activities when he hired Car-
los Hoyos on November 18. Additionally, Arnold did not re-
fute Host’s testimony that he (Host) told Arnold about his un-
ion activity and the court case when they spoke on November 4
or 5. Accordingly, the overall evidence supports a finding that
when Arnold rejected Host for the position of QC inspector, he
knew about Host’s union activity and his having filed and pur-
sued Board charges against Lockheed. I also note that Host
filed an amended charge on March 7, 2003, alleging that Re-
spondent not only failed to hire him because of his union activ-
ity but also because he filed charges and gave testimony under
the Act. The complaint and notice of hearing that issued on
March 11, 2003, specifically alleges in paragraphs 7, 9, and 12
that Respondent failed to hire Host because of his having filed
charges and/or participated in a Board proceeding. As the
manager who is responsible for the day-to-day management of
Respondent’s Greenville, South Carolina facility, I find it in-
credible that he only learned of Host’s having filed charges and
his participation in the Board hearing during the week preced-
ing the April 24, 2003 hearing. Accordingly, I find that when
Respondent refused to hire Host, it did so with knowledge of
his prior union activity and his protected activity in filing and
pursuing charges under the Act. Arnold’s denial of this knowl-
edge and his denial of any information received from Lockheed
managers diminish his credibility.
Further, the overall record reflects that Respondent’s reasons
for selecting Hoyos rather than Host were pretextual. Jeff
Meyer credibly testified that he interviewed and applied for the
QC inspector position after Host. Meyer recalled Arnold’s
telling him that Respondent needed inspectors and needed to
hire fairly quickly. Although Arnold recalled that he inter-
viewed Meyer, Respondent contended that his application and
resume were lost. Arnold testified that he had not offered a
position to Meyer because he knew that Meyer would only be
available for a second-shift position. I note however, that if
Respondent admitted to offering a position to Meyer on second
shift or on any shift, such an offer would adversely affect Re-
spondent’s rationale for not hiring Host. I found Meyer to be a
credible witness. He was not involved in the union organizing
campaign at Lockheed and has never worked for Respondent.
His testimony appeared straightforward with no inclination to
exaggeration or embellishment. I find no basis to discredit
Meyer’s testimony that Arnold offered him a QC inspector job
after he submitted an application and interviewed with Arnold.
When Meyer declined the offer, Arnold asked him if he knew
anyone else who might be interested. It was Meyer’s sugges-
tion and his contacting Carlos Hoyos that led Respondent to
Hoyos. Despite the fact that Host was admittedly a good strong
candidate with good experience and good technical skills, Ar-
nold offered the position first to Meyer and then ultimately to
another individual that Meyer suggested. The only rationale
that Arnold could give for not offering the position to Host was
his contention that he had “concerns about Host’s interpersonal
skills” and that Host’s written communication skills seemed
possibly lacking. This determination was made however, de-
spite the fact that Arnold did not request a writing sample from
Host nor verify any possible deficiency with Lockheed or any
other previous employer. While Arnold included Host’s wear-
ing of sunglasses during the interview as one of the considera-
tions in failing to hire Host, he nevertheless asserted that he
would have considered Host for the second-shift position if the
work had come through from Lockheed. Such a dichotomy in
rationale appears more illustrative of a pretext than a valid con-
sideration.
Additionally, I find Arnold’s rationale for not hiring Host
less credible based upon Arnold’s handwritten notes on Host’s
application. (GC Exh. 10.) Arnold testified that during the
interview, he noted the last day that Host was scheduled to
work for GE. Written beneath this date are the words “Okay
our second shift” with lines drawn through the words. Arnold
identified the next line as “LMAC schedule change” followed
by “No.” Arnold testified that these words were written at a
different time and indicated Lockheed’s schedule change and
that Respondent could not hire Host and could not fill another
position. The final portion of Arnold’s handwritten note in-
cludes “Carlos Hoyos accepted. Hold for future openings.”
Arnold gave no plausible explanation for going back to Host’s
application 2 to 2-1/2 weeks later to confirm that the job had
been offered to Hoyos or to add the gratuitous information
about his qualifications for second shift and Respondent’s in-
ability to hire him for that shift. Overall, the notes appear dis-
ingenuous and contrived.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD988
Respondent contends that it only considered Host for the
second-shift position and would have offered him the job had
Respondent received funding from Lockheed to expand the
second-shift fuel-service operation. I do not find Respondent’s
argument persuasive. Meyer credibly testified that he was of-
fered the second-shift QC inspector position on or about No-
vember 6. Thus, Meyer’s credible testimony completely un-
dercuts Respondent’s argument that no position was ever avail-
able for Host. Additionally, Arnold admits that the second-shift
operation began in November. Two new employees were hired
and others transferred from the first shift. Arnold admits that as
late as November 18, Host was still under consideration for
employment. Additionally, Arnold’s explanation as to why
Hoyos was the better choice for the day-shift QC inspector
position appeared to be fabricated and without substance. Ar-
nold’s assertion that Hoyos appeared more openminded and
receptive to change is unpersuasive. Additionally Arnold’s
explanation of his concerns about Host’s writing skills were
equally questionable when he admitted that he had no writing
sample or information from Lockheed upon which to base this
opinion.
Accordingly, even without direct evidence, I find that an in-
ference of animus and a discriminatory motive are warranted
under all the circumstances of the case. Grant Prideco, 337
NLRB 99 (2001). Washington Nursing Home, Inc., 321 NLRB
366, 375 (1996). Thus, even though there is no overt evidence
of animus, an inference of animus may be drawn from evidence
of false reasons and concealment. Finding Host’s and Meyer’s
testimony to be more credible than Arnold, I find that an infer-
ence of animus is justified, noting, inter alia, that the various
reasons given by Respondent for its failure to hire Host on ei-
ther first or second shift are pretextual. I further note that a
pretextual reason supports an inference of an unlawful one.
Keller Mfg. Co., 237 NLRB 712, 717 (1978).
Based upon the record as a whole, I find that the circum-
stances warrant an inference that Respondent’s true motive is
an unlawful one. See Wright Line, supra, 251 NLRB at 1088
fn. 12 (citing Shattuck Dean Mining Co. v. NLRB, 362 F.2d
466, 470 (9th Cir. 1966). Finding Respondent’s asserted reason
for its failure to hire Host as pretextual, I also find that Respon-
dent has failed to satisfy its Wright Line burden of showing that
it would not have hired Host, even in the absence of his union
activity. See FES, 331 NLRB 9, 12 (2000).
Section 8(a)(4) of the Act provides that it shall be an unfair
labor practice for an employer to discriminate against an em-
ployee because he files charges or gives testimony under the
Act. As the Board noted in General Services, 229 NLRB 940,
941 (1977), the Board’s approach to remedying violations of
Section 8(a)(4) has generally been liberal in order that the
Board may perform its statutory function. Under this liberal
approach, the Board has included within the protections of
Section 8(a)(4), job applicants and employees of other employ-
ers. Id. at 941. The evidence reflects that General Counsel has
established a prima facie case that in refusing to hire Host,
Respondent was motivated at least in part by unlawful reasons
and that Respondent has not met its burden of demonstrating
that it would have refused to hire Host absent his filing of
charges with the Board and his testimony and participation in
the Board proceeding. Accordingly, Respondent has not met its
burden under the Wright Line analysis and as established for
discrimination analysis under Section 8(a)(4) of the Act.
Freightway Corp., 299 NLRB 531 fn. 4 (1990). Accordingly,
the record supports a finding that Respondent failed to hire
Terry Host in violation of Section 8(a)(1), (3), and (4) of the
Act.
CONCLUSIONS OF LAW
1. Respondent Leading Edge Aviation Services, Inc. of
Greenville, South Carolina, is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondent violated Section 8(a)(1), (3), and (4) of the
Act by its refusal to hire Terry Host.
3. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that Respondent unlawfully failed to hire
Terry Host, I shall recommend that Respondent be required to
offer him a job and to make him whole for any loss of earnings
and other benefits, computed on a quarterly basis from October
31, 2002 to the date of proper job offer, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Leading Edge Aviation Services, Inc.,
Greenville, South Carolina, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to employ job applicants because of their union
activities or because of their having filed charges and/or testi-
fied in a Board proceeding.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Terry Host employment in the position for which he sought to
apply without prejudice to his seniority or other rights or privi-
leges to which he would have been entitled absent the discrimi-
nation against him.

6 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.
LEADING EDGE AVIATION SERVICES 989
(b) Within 14 days from the date of the Board’s Order, make
whole Terry Host for any losses he may have suffered by rea-
son of the discrimination against him as set forth in the remedy
section of this decision.
(c) Within 14 days from the date of the Board’s Order re-
move from its files any reference to the unlawful refusal to
employ Terry Host and within 3 days thereafter notify the em-
ployee in writing that this has been done and that this personnel
action will not be used against him in any way.
(d) 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 payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
Greenville, South Carolina facility copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms provided
by the Regional Director for Region 11, 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 October 31, 2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official

7 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.”
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to hire applicants on the basis of their
activities on behalf of the Aircraft Mechanics Fraternal Asso-
ciation or any other union.
WE WILL NOT refuse to hire applicants on the basis of their
having filed charges and/or participated in Board proceedings.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Terry Host employment in the position for which he ap-
plied. If that position no longer exists, we will offer employ-
ment in a substantially equivalent position, without prejudice to
seniority or any other rights or privileges to which he would
have been entitled if we had not discriminated against him.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to our unlawful refusal to
employ Terry Host and, WE WILL, within 3 days thereafter, no-
tify him in writing that we have done so and that we will not
use this personnel action against him in any way.
LEADING EDGE AVIATION SERVICES, INC.