Date: 02-21-2018

Case Style:

Case Number: 16-4520

Judge: Shepherd

Court: United States Court of Appeals for the Eighth Circuit

Plaintiff's Attorney:

Defendant's Attorney:

Description: 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
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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.2
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.3 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
2Because of this, we refer to Johnson, Hendershot, Jankowski, and Winge
collectively as the “Salts.”
3It is uncontested that Johnson was given permission to send the resumes of the
other three IBEW members.
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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.”4 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.
4The Board’s General Counsel also alleged that Aerotek violated the NLRA by
having some of its recruiters tell placed employees not to discuss wages with other
employees. The ALJ found Aerotek liable for this, and the Board affirmed. That
issue was not appealed by Aerotek.
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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.5
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.
5The dissenting Member raised a number of other issues with the proposed
remedy that are not appealed by Aerotek.
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(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.6 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).7
After that, it must meet the standard requirements in a refusal to hire case: “(1) ‘that
6The Supreme Court has expressly held that salts are covered by the NLRA.
NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 98 (1995) (holding “employee,”
as defined by the NLRA, “does not exclude paid union organizers”).
7While we have not previously decided whether the Toering requirements
constitute a permissible interpretation of the NLRA, neither party challenges its
application here. St. John’s Mercy Health Sys. v. NLRB, 436 F.3d 843, 848 (8th Cir.
2006) (“No objection that has not been urged before the Board, its member, agent, or
agency, shall be considered by the court . . . .” (internal quotation marks omitted)).
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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 the decision not to hire the
applicant [].’” NLRB v. EYM King of Mo., LLC, 696 F. App’x 759, 761 (8th Cir.
2017) (unpublished per curiam) (first, third, fourth, and fifth alterations in original)
(quoting FES, 331 N.L.R.B. 9, 12 (2000)).8
Aerotek does not challenge this legal framework, which the Board and the ALJ
applied. Instead, it argues that the General Counsel did not meet its burden in
showing that the applications were genuine (as required by Toering), that there were
openings for the Salts (the first step under FES), and that anti-union animus
contributed to the refusal to hire (the last step under FES). We address each argument
in turn.
1.
Aerotek argues that the Board and the ALJ erred in finding that the applications
of the Salts were genuine. Under Toering, only if Aerotek provided evidence that
“create[d] a reasonable question as to the applicant’s actual interest” does the burden
shift to the Board’s General Counsel to show that the applicant was actually
interested. 351 N.L.R.B. at 233. Aerotek believes that it created a “reasonable
question” by pointing to (1) the batch submission of the applications; (2) the use of
8Aerotek does not suggest that FES is inapplicable. In its brief, though, it cites
our holding in Nichols Aluminum to suggest that “antiunion animus” must be a
“substantial or motivating factor in the Company’s actions in refusing to consider to
hire.” That language, however, comes from the Board’s case in Wright Line, which
established a test similar to FES, but not directly applicable here. See Nichols
Aluminum, 797 F.3d at 554 (holding “[t]o establish an unfair labor practice under the
Wright Line framework, the Board’s General Counsel must prove . . . [the] protected
conduct was a substantial or motivating factor in the adverse action” (internal
quotation marks omitted)).
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the same template by all applications; (3) the fact that the Salts could leave the job at
any point; and (4) with regards to Winge only, the fact that a copy of his resume was
incomplete because it had Hendershot’s contact information on it, not his.
Toering squarely forecloses the first and second assertions as bases for the
requisite “reasonable question.” It explicitly held “[t]he fact that applications may be
submitted in a batch is not, in and of itself, sufficient to destroy genuine applicant
status.” Toering, 351 N.L.R.B. at 233 n.51. It further stated that “stale or incomplete
[applications] may” raise questions about genuineness—not merely similarly
formatted ones. Id. at 233 (emphasis added).
The Supreme Court’s decision in Town & Country Electric addresses
Aerotek’s third contention. In bringing paid union organizers under the protections
of the NLRA, the Court dismissed the fact that such organizers could leave at any
time. The Court noted, so too might “a worker who has found a better job, or one
whose family wants to move elsewhere.” Town & Country Elec., Inc., 516 U.S. at 96.
Thus, the fact that the Salts may have taken action that any other employee might have
taken does not create a “reasonable question” as to the genuineness of their
applications.
Aerotek’s evidence with regards to Winge’s application—that a copy of his
resume contained Hendershot’s contact information—however, does provide
“reasonable evidence” to suspect its genuineness, given that it was technically
incomplete without the correct contact information. Toering, 351 N.L.R.B. at 233
(holding “stale or incomplete [applications]” may be reasonable evidence to question
application’s genuineness). The burden thus shifts to the Board’s General Counsel
under Toering to show the genuineness of Winge’s application.
We find that the Board’s General Counsel met its burden. Toering’s goal was
to prevent “unfair labor practice litigation” where there was “no actual loss of an
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opportunity for work”; in other words, Toering sought to ensure the NLRA was used
to resolve disputes between employers and those who “depend upon the Employer,
even in part, for their livelihood or for the improvement of their economic standards.”
Id. at 229 (internal quotation marks omitted). Unemployment, and the desire to find
work, are perhaps the greatest signals that there was an “actual loss of an opportunity
for work.” Id. at 230. Winge appeared at trial and testified that he was unemployed,
searching for work, and would have taken a position offered by Aerotek. Aerotek
does not point to any evidence disputing Winge’s testimony. Because of this, we find
Winge’s application was genuine under Toering. See also NLRB. v. Beacon Elec.
Co., 504 F. App’x 355, 369 (6th Cir. 2012) (unpublished) (finding genuine interest
where “the salts were unemployed”).
2.
Aerotek next argues that the Board’s General Counsel did not meet the first step
under FES, namely that it was never shown that “there were openings for the four
applicants.” Aerotek concedes there were 37 positions open at the time in
question—and that they were being filled. But, it asks us to factor in the
competitiveness of those 37 positions because it had “over 500 applicants in its
database.” We find this unconvincing. Aerotek points to no authority to support this
argument, and, more importantly, FES simply asks the Board’s General Counsel to
show “that the respondent was hiring.” 331 N.L.R.B. at 12. Aerotek concedes that
it was hiring, and, under FES, there is no reason to inquire further.
3.
Finally, Aerotek argues that the “Board . . . improperly found a discriminatory
motive for failing to hire the [Salts],” the final FES element. See id. Under our
deferential standard of review, S. Bakeries, 871 F.3d at 820, we find that the Board’s
finding of animus motivating the failure to hire or consider to hire the
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Salts—buttressed by the ALJ’s decision and factual findings—was supported by
substantial evidence. As an initial matter, Aerotek argues that the case against it is
entirely circumstantial. Animus motivating unlawful conduct can nonetheless be
“inferred from both direct and circumstantial evidence.” NLRB v. RELCO
Locomotives, 734 F.3d 764, 780 (8th Cir. 2013). Such circumstantial evidence can
include—as is present here—“implausible explanations and false or shifting reasons”
provided by the employer. York Prods., Inc. v. NLRB, 881 F.2d 542, 545 (8th Cir.
1989).
As the ALJ noted, “[Aerotek] made no attempt to place any employee who
indicated that they were a voluntary organizer”—or simply, it made no attempt to
place the Salts. On this point, Aerotek counters that it “hired and re-hired union
members.” The exact charge, however, is that it failed to hire union organizers who
identified themselves as such. Regardless, the ALJ discredited the testimony of
Aerotek employees who said that they knowingly placed union sympathizers in
positions. In the end, the ALJ found Aerotek placed only one known union
sympathizer, who was not an identified organizer, in April 2012. We find no reason
to disturb the ALJ’s credibility determinations given that the findings were based on
inconsistencies between testimony and documentary evidence. See RELCO
Locomotives, 734 F.3d at 787 (credibility determinations only overturned if they
“shock the conscience”). And thus the claim that Aerotek consistently placed known
union organizers falls away.
From this baseline, Aerotek suggests that its actions (or inactions) toward the
Salts were not motivated by anti-union animus. First, Aerotek argues that “[d]ue to
timing, other applicants were more qualified” than the Salts. Its strategy—to fill
positions within 48-72 hours—meant that applications that were submitted closer to
a job posting date were preferred. But, its own activity belies this. For example, it
hired candidates who submitted applications around the same time as the Salts (July
2011) in December 2011 and February 2012. Second, Aerotek also suggests that
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Johnson was passed over because of his salary demands. His communications with
Aerotek, however, indicated that he was open to any position given that his goal was
to organize.9 The Board was entitled to reject these rationales as “implausible.” York
Prods., 881 F.2d at 545. As a result, we find “substantial evidence” underpinning the
Board’s findings that anti-union animus contributed to Aerotek’s actions. S. Bakeries,
871 F.3d at 820.
III.
Aerotek also challenges the remedy proposed by the Board. The Board’s
General Counsel cross-petitions for its enforcement in full. We review the remedy for
abuse of discretion. NLRB v. Miller Waste Mills, 315 F.3d 951, 955 (8th Cir. 2003).
And “[w]e examine the Board’s findings more critically when, as here, the Board’s
conclusions are contrary to the ALJ’s.” Nichols Aluminum, 797 F.3d at 553.
The only portion of the remedy properly before us is instatement and full
backpay for Brett Johnson.10 The ALJ concluded that “Johnson’s conduct in
9Aerotek also argues that the resumes of Hendershot, Jankowski, and Winge
were “legitimately questioned,” citing a single recruiter’s testimony that he found the
resumes “very unusual” and “suspicious.” The recruiter, however, testified he found
the resumes suspicious because “[i]t was apparent . . . that one person submitted all
three resumes.” J.A. 581. To the extent Aerotek is arguing the batch submission
raised questions as to the genuineness of the applications, as explained above, we
dismiss this argument in Section II.A.1.
10In its opening brief, Aerotek also challenges a portion of the remedy that
mandates certain language be included in Aerotek’s future job postings. Yet, Aerotek
never brought that specific challenge before the Board—it merely objected to this
portion of the remedy on procedural grounds—and it is not properly before us. See
St. John’s Mercy Health Sys., 436 F.3d at 848 (holding Board must receive “adequate
notice of the basis for the objection,” and solely “[o]bjecting to a remedy is not
sufficient to indicate the specific basis for the objection” (internal quotation marks
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attempting to exclude Aerotek from [its client’s work] is so obviously inconsistent
with the duties of an employee” that his backpay was tolled and instatement was
denied. A majority of the Board disagreed. Despite finding that “[t]his case does not
fit squarely into any category established by Board precedent,” the Board applied a
pre-existing “unfit for further service” standard to assess Johnson’s actions. Under
that standard, it found that he was not disqualified from full backpay and instatement.
We find otherwise.11 That standard, as the Board itself stated, was meant to
excuse “natural human reaction[s]” to unlawful discrimination. The Board finds that
Johnson’s overtures to the Aerotek client were precisely that. But, the precedents the
Board cites never find directly competitive behavior to be a “natural human reaction”
to discrimination.12 The characterization of Johnson’s actions is all the more puzzling
because the “Board has indicated that salting . . . may be found to be unprotected if
the purported organizational activity is subterfuge to further purposes unrelated to
omitted)).
11Aerotek did not contest the applicability of the “unfit for further service”
standard before the Board. We do not decide whether it is indeed the proper standard;
instead, we hold that Johnson’s conduct is not excused under it.
12The main case the Board cites is Stephens Media, LLC, 356 N.L.R.B. 661
(2011). In that case, blog posts and comments made at a public forum by a discharged
employee were excused under the “unfit for further service” standard. Id. at 663.
Stephens Media also cites two other cases for its holding. In Trustees of Boston
University, it was noted that “postdischarge threats, challenges to fight, and other
verbal misconduct are not normally considered sufficiently serious to render the
employee unsuitable for future employment.” 224 N.L.R.B. 1385, 1409 (1976).
O’Daniel Oldsmobile, the other case cited by Stephens Media, provides stronger
support for the Board’s position. 179 N.L.R.B. 398 (1969). In that case, the Board
held that discharged employees who handed out handbills disparaging a company
were not disqualified from backpay. Id. at 405. Even so, the discriminatees were not
engaged in calculated, competitive behavior against the respondent company like
Johnson is here.
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organizing.” Progressive Elec., Inc. v. NLRB, 453 F.3d 538, 553 (D.C. Cir. 2006)
(alteration in original) (internal quotation marks omitted).
Yet the Board glosses over this. By all accounts, Johnson’s actions reflected
a strategy to poach an Aerotek client. As described in the proceedings before the ALJ,
Johnson initially approached a line manager for the Aerotek client about “cutting out
the middleman,” i.e., Aerotek. Rebuffed, a week later, Johnson made the same pitch
higher up the chain of command—directly to the owner of the Aerotek client. After
that, testimony in the record suggests Johnson directed union members, currently
working for the Aerotek client, to wear listening devices to pick up trade secrets at an
employee appreciation night hosted by the Aerotek client.
Johnson’s behavior is not the type of reactive, emotive conduct the “unfit for
further service” standard is designed to forgive. Cf. Stephens Media, 356 N.L.R.B. at
662 (finding “it is wholly natural for an employee to react with some vehemence to
an unlawful discharge” (internal quotation marks omitted)). Instead, it is reflective
of a “design[] to drive the employer out of the area.” Casino Ready Mix, Inc. v.
NLRB, 321 F.3d 1192, 1198 (D.C. Cir. 2003) (emphasis added). The unmistakable
conclusion to be drawn from Johnson’s course of conduct is that he was acting in his
role as a competitor to Aerotek—and not as an aggrieved discriminatee.13 As such,
the Board abused its discretion in finding Johnson’s behavior wholly pardoned by the
“unfit for further service standard.” See Detroit Edison Co. v NLRB, 440 U.S. 301,
13The Board’s General Counsel suggests that Johnson approached the Aerotek
client out of frustration at not being placed, and did so after seven months of
discrimination. The specific client he approached, however, had only started
recruiting for the job in question at the beginning of January. Johnson then
approached that client in February.
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316 (1979) (“The role that Congress . . . has entrusted to the courts in reviewing the
Board’s petitions for enforcement of its orders is not that of passive conduit.”).14
We remand to the Board to refashion the remedy as to Johnson. See NLRB v.
Food Store Employees Union, Local 347, 417 U.S. 1, 10 (1974) (holding when a
remedy is found to be an abuse of discretion “remand to the agency for
reconsideration . . . is ordinarily the reviewing court’s proper course”). Our holding
is simply that full backpay and instatement for Johnson is unwarranted under the
Board’s “unfit for further service standard.” Given that it was not briefed before us,
we make no judgment as to whether the ALJ’s remedy—tolling backpay at the date
of Johnson’s first contact with the Aerotek client, February 29, 2012—is an
appropriate remedy.

* * *

14We do not decide whether Five Star Transportation, 349 N.L.R.B. 42
(2007)—which Aerotek cites extensively—is persuasive authority on these facts.
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Outcome: In sum, we grant Aerotek’s petition for review in part and the Board’s crosspetition for enforcement in part. The Board’s order is enforced except its proposed remedy for Brett Johnson. We remand narrowly for reconsideration of that portion of the remedy.

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