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Aerotek, Inc. v. National Labor Relations Board

United States Court of Appeals, Eighth Circuit

February 21, 2018

Aerotek, Inc. Petitioner
v.
National Labor Relations Board Respondent International Brotherhood of Electrical Workers, Local 22 Intervenor Aerotek, Inc. Respondent
v.
National Labor Relations Board Petitioner International Brotherhood of Electrical Workers, Local 22 Intervenor National Labor Relations Board

          Submitted: January 9, 2018

          Before GRUENDER, MELLOY, and SHEPHERD, Circuit Judges.

          SHEPHERD, CIRCUIT JUDGE.

         We are asked two separate but interrelated questions on this appeal. First, did the National Labor Relations Board ("Board") have enough evidence to find that Aerotek, Inc. ("Aerotek") violated the National Labor Relations Act ("NLRA")? If so, second, is the remedy the Board ordered within its discretion? We answer the former question in the affirmative and the latter in negative. Thus, we affirm the Board's finding of a violation, but remand in part to the Board for reconsideration of the remedy.

         I.

         Aerotek is a nationwide staffing agency that operates in Omaha, Nebraska. Aerotek works with companies to staff their temporary or full-time positions, including construction-related ones. This means it places electricians and other skilled tradesmen in job positions on local construction projects. The International Brotherhood of Electrical Workers-Local 22 ("IBEW") does much the same: it also actively seeks to staff electricians (who are members of their union) in job positions in the Omaha area. IBEW and Aerotek are competitors in this regard. Even so, IBEW members still seek placement through Aerotek. This case centers on four IBEW members-Brett Johnson, Tim Hendershot, Tom Jankowski, and Alan Winge-who sought employment through Aerotek but were never placed. By applying to Aerotek, they hoped to further a "salting" campaign-a campaign by which they actively try to organize and recruit for their union on non-union jobsites. [1]

         Johnson initially submitted his own updated resume to Aerotek after an Aerotek intern, who had seen a prior version of his resume in a database, called him and asked if he was interested in being placed. He then proceeded to submit the resumes of the other Salts to Aerotek.[2] Each resume stated, in substance, that the individual was active in the IBEW and sought to organize worksites for the IBEW. Johnson followed up twice. The first time he sent an email to Aerotek inquiring about specific postings Aerotek had advertised. After that, he received a call from an Aerotek account manager, and during the conversation, Johnson told him that he was open to any type of position regardless of seniority. His goal, as he stated in his initial email, was "to expose more electricians to the IBEW." Months later, he again sent an email to Aerotek, stating that he was interested in "any electrical construction position available." Aerotek did not respond to that email. The other Salts had similar experiences with Aerotek. Hendershot was the only other Salt that was contacted by Aerotek. After the initial contact-made by an Aerotek recruiter who was temporarily assigned to help fill construction listings-Aerotek never reached out to Hendershot again, despite multiple follow-up efforts on his part.

         In the several months following the Salts submitting their resumes, between early August 2011 and March 2012, Aerotek placed a number of other electricians in jobs, including eight members of the IBEW salting campaign who did not explicitly state their union affiliation when applying to Aerotek. Several of those placed received salaries lower than what they had received on previous jobs.

         IBEW initially lodged a complaint against Aerotek with the Board in December 2011. In February 2012, Johnson and another member of IBEW approached an Aerotek client-one who had a number of "covert" IBEW members, placed by Aerotek, working for it-about staffing electricians directly through IBEW. Johnson urged the Aerotek client to "cut out the middleman." After this entreaty was declined, IBEW filed another complaint against Aerotek on March 1, 2012. Then, on March 7, 2012, Johnson contacted the owner of the same Aerotek client with a similar proposition. Johnson further upped the ante by instructing IBEW members to wear listening devices at an event hosted by the Aerotek client shortly thereafter. IBEW filed a final complaint in April 2012.

         A consolidated complaint was issued by the Board's General Counsel in August 2012, and a three-day trial on that complaint was held before a Board Administrative Law Judge ("ALJ"). The ALJ found that Sections 8(a)(3) and (1) of the NLRA had been violated by Aerotek's refusal to hire and refusal to consider the Salts for hiring. In making that finding, the ALJ found that Aerotek did not "offer[] any credible nondiscriminatory explanation for failing to place [the Salts] in the many jobs that were available to them."[3] The ALJ's proposed remedy included backpay for the Salts, but "tolled" Johnson's backpay at the day he met with the Aerotek client: February 29, 2012. The ALJ also recommended that Aerotek immediately place, or instate, the Salts save Johnson. Finally, the ALJ suggested that a notice be placed at Aerotek's worksites (or sent via email) informing workers of their rights under the NLRA.

         The Board unanimously agreed with the ALJ's findings of a violation. But it splintered on the proposed remedy. The Board majority agreed with the ALJ except that it found that Johnson's conduct did not strip him of the right to full backpay and instatement. It also went beyond the ALJ's recommended postings in the Omaha office of Aerotek by ordering that the language be posted on all Aerotek job advertisements and applications. The dissenting Member agreed with the ALJ that Johnson's backpay should be tolled and that Johnson was not eligible for instatement. He also found that having Aerotek place language on all job advertisements and applications was an "extraordinary remedy" unwarranted in this case.[4]

         Aerotek petitions for review of the Board's decision, arguing that the finding of a violation is not supported by substantial evidence. It also contests the remedy, specifically the award of full backpay and instatement for Johnson and the mandatory inclusion of a notice that must accompany its job postings and applications. The Board's General Counsel cross-petitions for enforcement of the Board's order in full. We review Aerotek's challenge to the Board's finding of a violation first.

         II.

         A unanimous Board affirmed the ALJ's finding that Aerotek had violated the NLRA in not hiring the Salts and not considering them for hiring. In such cases, where the Board is in lockstep with the ALJ, "we afford [] great deference to the Board's affirmation of the ALJ's findings." S. Bakeries, LLC v. NLRB, 871 F.3d 811, 820 (8th Cir. 2017) (alteration in original) (internal quotation marks omitted). Our review, then, is to ensure that the Board "correctly applied the law and its factual findings are supported by substantial evidence, " by which we mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks omitted). As such, "we may not preempt the Board's choice between two fairly conflicting views of" the record, JHP & Assocs., LLC v. NLRB, 360 F.3d 904, 911 (8th Cir. 2004) (internal quotation marks omitted), but we "must view the inherent strengths and weaknesses of the inferences drawn by the Board, " Nichols Aluminum, LLC v. NLRB., 797 F.3d 548, 553 (8th Cir. 2015) (internal quotation marks omitted). We do not enforce decisions which "rely on suspicion, surmise, implications, or plainly incredible evidence." Id. (internal quotation marks omitted).

         A.

         In a salting case where there is an alleged refusal to hire or refusal to consider to hire, there are several requirements the Board's General Counsel must satisfy in order to prove a violation of the NLRA.[5] First, it must show an "applicant's genuine interest in obtaining employment" by demonstrating that "there was an application for employment, " and-if "the employer . . . put[s] at issue the genuineness of the applicant's interest through evidence that creates a reasonable question as to the applicant's actual interest"-then the Board must prove that the "application reflected a genuine interest in becoming employed by the employer" by a preponderance of the evidence. Toering Elec. Co. & Foster Elec., 351 N.L.R.B. 225, 233-34 (2007).[6]After that, it must meet the standard requirements in a refusal to hire case: "(1) 'that the respondent was hiring, or had concrete plans to hire, ' (2) 'that the applicant[] had experience or training relevant to the . . [.] requirements of the position[], ' and (3) 'that anti [labor organization] animus contributed to ...


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