Aerotek, Inc.,

Docket Number17-CA-071193

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Aerotek, Inc. and International Brotherhood of Electrical Workers, Local 22, affiliated with the International Brotherhood of Electrical Workers, AFL–CIO. Cases 17–CA–071193, 17–CA– 075605, and 17–CA–078720

December 15, 2016

DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN

On March 11, 2013, Administrative Law Judge Arthur

J. Amchan issued the attached decision. The Respondent filed exceptions, the General Counsel filed crossexceptions, both parties filed supporting and answering briefs, and the Respondent filed a reply brief.

The National Labor Relations 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, and conclusions, as modified below, to modify the remedy, and to adopt the judge’s recommended Order as modified and set forth in full below.1

We adopt the judge’s finding, for the reasons he stated, that the Respondent, through its recruiters, unlawfully told employees that wages were confidential and were not to be discussed with other employees. As explained below, we also agree with the judge that the Respondent unlawfully refused to hire union salts Brett Johnson, Tim Hendershot, Alan Winge, and Tom Jankowski. But, contrary to the judge, we find that Johnson’s attempt to solicit one of the Respondent’s client employers to hire electricians referred from the Union’s hiring hall, after the Respondent had discriminated against Johnson, does not disqualify him from instatement and full backpay. We will also modify the judge’s notice-posting requirement in order to ensure that applicants for hire, along with the Respondent’s employees, learn of their statutory right to protection from discrimination. We reject, however, the General Counsel’s request for additional remedies.2

1 We shall modify the Order and substitute a new notice to conform with our findings here, our standard remedial language, and our decisions in AdvoServ New Jersey, 363 NLRB No. 143 (2016), and Durham School Services, 360 NLRB No. 85 (2014).

2 The General Counsel requested that the Respondent be required to take certain affirmative steps in processing the four discriminatees’ applications and to notify them and the Region in writing of “all job openings” for which they are qualified during the 60-day notice posting period. We find those provisions unnecessary in view of the Order’s other requirements to make the discriminatees whole and not to dis-

  1. THE FAILURE TO HIRE JOHNSON, HENDERSHOT, WINGE, AND JANKOWSKI

    The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to hire Johnson, Hendershot, Winge, and Jankowski. As the judge found, the General Counsel met his initial burden under FES3 by showing that the Respondent was hiring at the time of the alleged unlawful conduct; that the discriminatees had experience and training relevant to the jobs for which the Respondent was hiring; and that animus against union activity was a motivating factor in the Respondent’s failure to hire the discriminatees. The judge also found, as required by Toering Electric,4 that the General Counsel showed that the discriminatees applied for employment and that their applications reflected a genuine interest in becoming employed by the Respondent. For the reasons stated by the judge, and as further discussed below, we conclude that the General Counsel carried his burden of proof in all respects and that the Respondent failed to establish a defense to the refusal-to-hire allegations.

    A. Genuine Interest in Employment

    The Respondent contends that the discriminatees were not genuinely interested in being hired. We reject each of the Respondent’s arguments on this point.

    First, the Respondent relies on the “generic” similarity of format among the resumes for three of the discriminatees, the fact that those resumes were submitted together by Johnson, and Hendershot’s name appearing at the top of Winge’s resume. Contrary to the Respondent’s contentions, none of those facts indicates a lack of interest in employment. As the judge noted, “[t]he fact that applications may be submitted in a batch is not, in and of itself, sufficient to destroy genuine applicant status, provided that the submitter of the batched applications has the requisite authorization from the individual applicants.”5 As the credited testimony shows, Johnson was authorized by the other three discriminatees to submit their resumes to the Respondent. The Respondent also treated the discriminatees’ resumes as valid, as shown by the fact that one of its recruiters later attempted to contact Hendershot for a job (mistakenly, as the judge found, and not reflecting the Respondent’s intent). Moreover, Johnson’s resume was not “generic” and clearly stated his extensive industrial experience, yet he was not hired. In contrast, even without receiving a resume, the Respondent hired Joe Stock, a salt who con-

    criminate unlawfully.

    3 FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002).

    4 Toering Electric Co., 351 NLRB 225, 233 (2007).

    5 Toering, 351 NLRB at 233 fn. 51.

    DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    cealed his current union affiliation. The Respondent thus demonstrated that it did not consider even the absence of a resume to indicate lack of interest in employment.

    Second, the Respondent points to Johnson’s failure to follow up on a telephone suggestion by one of its recruiters that he apply for a foreman position with one of the Respondent’s clients. Johnson had called the recruiter under a false name for the purpose of providing a reference for another salt applicant. He could not very well have applied for the foreman position under the false name, and he had already submitted his own resume (which he later updated) to the Respondent. In these circumstances, we find that Johnson’s failure to take additional steps in pursuit of the foreman position does not indicate a lack of interest in employment.6

    Third, the Respondent relies on the Union’s salting agreement with its members, under which the Union can direct a member to leave a nonunion employer if the Union determines that the employer is not a viable organizing prospect. We do not agree that the salting agreement is evidence that the discriminatees were not genuinely interested in working for the Respondent. There are many reasons why an employee might choose to leave any particular job—e.g., better job prospects elsewhere, starting a business, injury, or illness. No one would seriously contend that the possibility of an employee’s quitting employment at some future time for any of those reasons indicates a lack of interest in employment at the time of application. Further, as noted by the judge, the Respondent was hiring for projects of short duration and in, fact, hired some employees who informed it that they intended to work elsewhere within a few months. We reject the suggestion that the mere possibility of quitting under the terms of the salting agreement indicates a lack of interest on the part of any of the discriminatees.7

    In sum, as the judge found, the Respondent presented no credited evidence that “creates a reasonable question as to the [discriminatees’] actual interest in going to

    6 As the General Counsel notes, the Respondent’s willingness to discuss job openings with (as it thought) a complete stranger who had not submitted an application or even indicated an interest in employment, contrasted with its failure ever to contact Johnson, is evidence of unlawful motive.

    7 The Respondent cites several additional factors without explaining why, in its view, any of them indicates lack of interest on the discriminatees’ part. Those factors, taken either singly or together, do not support the Respondent’s contention. Some are factually unsupported, such as the claim that the Union’s salting campaign was intended to drive the Respondent out of business. Most lack any apparent relevance to the discriminatees’ interest in employment with the Respondent, e.g., the Union’s attempt to obtain the Respondent’s internal billing and rate structure by making surreptitious recordings. And none finds support in the cases cited in the Respondent’s brief.

    work for the [Respondent].”8 Accordingly, the discriminatees’ applications alone were sufficient to establish their genuine interest.9 In any case, we also agree with the judge that the credited evidence confirms the discriminatees’ genuine interest in being hired by the Respondent.10

    B. Animus

    We agree, for the reasons stated by the judge, that the Respondent had a discriminatory motive for failing to hire the discriminatees. We find no merit in the Respondent’s further assertion that it could not have been motivated by unlawful animus because it hired other applicants who were union members during the relevant timeframe. The Respondent was unaware of any of those other applicants’ current union affiliations when it hired them.11 And even if the Respondent had shown that it did not discriminate against some known union supporters, this would not preclude our finding a violation with respect to the discriminatees.12

    C. Respondent’s Defense

    Finally, the Respondent has failed to show, under FES, that it would not have hired the discriminatees even if they had not been union supporters. As the judge found, “Respondent has not offered any credible nondiscriminatory explanation for failing to place the four discriminatees in the many jobs that were available to them.” Accordingly, we agree with the judge that the Respondent’s refusal to hire the discriminatees violated Section 8(a)(3).13

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