Aerotek, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 2016

365 NLRB No. 2 (N.L.R.B. 2016)

365 NLRB No. 2
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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 Work-
ers, 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 cross-
exceptions, 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, find-
ings, 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, con-
trary to the judge, we find that Johnson’s attempt to so-
licit 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 require-
ment 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, how-
ever, the General Counsel’s request for additional reme-
dies.2

1 We shall modify the Order and substitute a new notice to conform
with our findings here, our standard remedial language, and our deci-
sions 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-
I. 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 dis-
criminatees had experience and training relevant to the
jobs for which the Respondent was hiring; and that ani-
mus 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 ap-
plied for employment and that their applications reflected
a genuine interest in becoming employed by the Re-
spondent. 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 discrimi-
natees, the fact that those resumes were submitted to-
gether by Johnson, and Hendershot’s name appearing at
the top of Winge’s resume. Contrary to the Respond-
ent’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 sta-
tus, provided that the submitter of the batched applica-
tions has the requisite authorization from the individual
applicants.”5 As the credited testimony shows, Johnson
was authorized by the other three discriminatees to sub-
mit 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 re-
sume, 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 BOARD2
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 recruit-
ers 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 refer-
ence 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 ad-
ditional 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 Un-
ion determines that the employer is not a viable organiz-
ing 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 seri-
ously contend that the possibility of an employee’s quit-
ting 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 employ-
ment, 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 discrimi-
natees’ part. Those factors, taken either singly or together, do not sup-
port 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 rele-
vance to the discriminatees’ interest in employment with the Respond-
ent, 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 discrimi-
natees’ 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 discrim-
inatees’ genuine interest in being hired by the Respond-
ent.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 Re-
spondent’s further assertion that it could not have been
motivated by unlawful animus because it hired other ap-
plicants 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 support-
ers, 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 non-
discriminatory 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
II. JOHNSON’S ENTITLEMENT TO A FULL REMEDY
On February 29, 2012, Johnson visited the manager of
Interstates Electric, one of the Respondent’s major cli-

8 Toering, 351 NLRB at 233.
9 Id. at 233–234.
10 Unlike the judge, however, we do not rely on the fact that the Re-
spondent entered Winge’s name into its internal database, or on the fact
that at least eight other Respondent employees were secretly Union
members during the relevant period. Neither of these circumstances
was indicative of the discriminatees’ intentions.
11 By contrast, in E & I Specialists, 349 NLRB 446 (2007), and Shell
Electric, 325 NLRB 839 (1998), cited by the Respondent, the employ-
ers knew of (or assumed) the applicants’ current union affiliation.
12 Fresh & Green’s of Washington, D.C., 361 NLRB No. 35, slip op.
at 1 fn. 1 (2014); Fluor Daniel, Inc., 333 NLRB 427, 440 (2001), enfd.
in relevant part 332 F.3d 961 (6th Cir. 2003), cert. denied 543 U.S.
1089 (2005); KRI Constructors, 290 NLRB 802, 812 (1988).
13 The judge found that the Respondent also unlawfully refused to
consider for hire the discriminatees (as the General Counsel had al-
leged), and we adopt that finding. We need not order an affirmative
remedy for that violation, however, because the remedy for an unlawful
refusal to consider is subsumed within the broader remedy for an un-
lawful refusal to hire where the latter violation is found for the same
discriminatee. E.g., Jobsite Staffing & Jobsite Personnel, 340 NLRB
332, 333 (2003).
AEROTEK, INC. 3
ents. Johnson offered to “cut out the middleman” by
having electricians referred from the Union’s hiring hall
directly to Interstates.14 The manager refused. About a
week later, Johnson called the owner of Interstates and
made the same offer.15 At that time, more than 6 months
had passed—with no response from the Respondent—
since Johnson had submitted his resume to the Respond-
ent and indicated that he was interested in “any electrical
position.”
The judge found that Johnson’s conduct in attempting
to supplant the Respondent in providing employees to
Interstates was “obviously inconsistent with the duties of
an employee.” Based on this finding, the judge conclud-
ed that Johnson’s solicitation disqualified him from re-
medial instatement, and he tolled Johnson’s remedial
backpay as of the date he first approached Interstates.
We disagree with the judge’s analysis and conclusion,
for the reasons that follow. As we will explain, it matters
here that Johnson was not an employee when he engaged
in the solicitation and that Johnson’s conduct came after
the Respondent unlawfully refused to hire him.
It is well established that current employees have a du-
ty of loyalty to their employer, and that a violation of this
duty may constitute unprotected activity.16 Thus, the
Board has found that employee actions that interfered
with the employer’s business contracts, or that otherwise
deprived the employer of business, were not protected by
the Act, and that a discharge for such unprotected activi-
ty does not violate the Act.17 The Board has also held
that publicly disparaging the employer may violate a
duty of loyalty and thus permit an employer to lawfully
refuse to hire an applicant for employment.18

14 The Respondent, a staffing company for multiple industries, hires
and refers electricians to other companies engaged in construction.
15 These facts are established by an activity log Johnson prepared for
himself, which provides the only evidence in the record pertaining to
his solicitation of Interstates’ work.
16 NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346
U.S. 464 (1953).
17 See ATC/Forsythe & Associates, 341 NLRB 501, 503-504
(2004); Kenai Helicopters, 235 NLRB 931, 936 (1978); Associated
Advertising Specialists, 232 NLRB 50, 54 (1977).
18 Five Star Transportation, Inc., 349 NLRB 42, 46 (2007). In Five
Star, school bus drivers who worked for the incumbent contractor wrote
letters to the school district urging that its upcoming contract be award-
ed again to their employer, not to a competing company. The letters
sharply criticized the competitor. When the competitor (the respond-
ent) won the contract, it refused to hire the drivers who had applied for
positions. A divided Board panel found that certain of the drivers’
letters were disparaging and unprotected, and so found lawful the re-
fusal to hire those drivers. The majority “disagree[d] with the dissent’s
suggestion that there is no duty of loyalty owed to a prospective em-
ployer by . . . applicants.” Id. at 46.
The Five Star majority did not address the tension between its hold-
ing and an earlier decision, American Steel Erectors, Inc., 339 NLRB
1315 (2003). In American Steel Erectors, a Board majority held that an
More to the point, where an employee has been unlaw-
fully discharged, the Board has held that it may deny
remedial reinstatement if the employer can prove that the
employee engaged in “misconduct so flagrant as to ren-
der the employee unfit for further service, or a threat to
efficiency in the [workplace].”19 The burden placed on
the employer under this test in the remedial context is
“heavier . . . than when [the employer] is merely seeking
to justify the original discrimination,” because the em-
ployer is “seeking to be excused from his obligation to
reinstate or to pay backpay to a discriminatee because of
misconduct which was not a factor in the discriminatory
action.”20
The Board’s “unfit for further service” standard distin-
guishes between misconduct that occurred before the
unlawful discrimination and misconduct that occurred
afterwards. This is necessary because:
[A]n “evaluation of postdischarge employee miscon-
duct requires sympathetic recognition of the fact that it is
wholly natural for an employee to react with some ve-
hemence to an unlawful discharge.” Employers who
break the law should not be permitted to escape fully
remedying the effects of their unlawful actions based on
the victims’ natural human reactions to the unlawful acts.
Hawaii Tribune-Herald, id. (quoting Trustees of Bos-
ton University, 224 NLRB 1385, 1409 (1976), enfd. 548
F.2d 391 (1st Cir. 1977)).21
This case does not fit squarely into any category estab-
lished by Board precedent. No prior decision has ad-
dressed a situation where an applicant for employment
engaged in arguably disloyal conduct, but only after the
prospective employer had unlawfully refused to hire
him.22 But absent on-point precedent, we take a different
approach—and reach a different result—from the
judge’s. We assume, without deciding, that at the time
of his conduct, Johnson had some duty of loyalty to the
Respondent, although he was merely an applicant for

employer lawfully refused to hire a union representative whose “offen-
sive statements” about the employer lost the protection of the Act and
“rendered him unfit for future employment,” but also observed (in
agreement with the dissent) that the representative “owed the [employ-
er] no duty of loyalty at the time.” Id. at 1317.
19 Hawaii Tribune-Herald, 356 NLRB 661, 662 (2011) (emphasis
added) (quoting O’Daniel Oldsmobile, 179 NLRB 398, 405 (1969)),
enfd. 677 F.3d 1241 (D.C. Cir. 2012).
20 Id.
21 See also The Fund for the Public Interest, 360 NLRB No. 110,
slip op. at 13 (2014) (same); CF Taffe Plumbing Co., 357 NLRB 2034,
2034 (2011) (same).
22 Five Star, supra, and American Steel Erectors, supra, are funda-
mentally distinguishable, of course, inasmuch as the applicant’s con-
duct in each of those cases occurred before—not after—the prospective
employer’s unlawful discrimination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
employment, rather than an employee.23 We further as-
sume, again without deciding, that Johnson’s conduct, in
seeking to persuade one of the Respondent’s clients to
hire through the Union’s hiring hall, was disloyal.24 Sub-
ject to these assumptions, we conclude that the proper
test for deciding whether instatement is an appropriate
remedy here is the heightened “unfit for further service”
test that the Board applies when an unlawfully dis-
charged employee has engaged in postdiscrimination
misconduct.25 In applying that test, as noted above, we
place a “heavier” burden on the Respondent to make that
showing in the remedial phase of the case.
Under that heightened test, we cannot conclude that
Johnson was “unfit for further service” —or, rather, unfit
for future service, because of his conduct after the Re-
spondent’s unlawful refusal to hire him. We are guided
by two independent considerations. First, it is a reasona-
ble inference that, at the time of his conduct, more than 6
months after he had applied for work with the Respond-
ent, Johnson knew, or at least reasonably suspected, that
the Respondent had unlawfully refused to hire him and
his fellow discriminatees. In such circumstances, that he
might have had a “natural human reaction to the unlaw-
ful acts”—seeking to persuade the Respondent’s client to

23 In this respect, then, we treat Five Star, supra, as valid law, despite
its troubling inconsistency with American Steel Erectors, supra, on the
issue of whether applicants owe a duty of loyalty to their prospective
employers.
24 We question, however, whether a union’s business representative
seeking employment engages in misconduct in these circumstances
merely by simultaneously soliciting work for employees who seek it
through the union’s hiring hall. Cf. Tradesmen International, 332
NLRB 1158, 1159–1161 (2000), enf. denied 275 F.3d 1137 (D.C. Cir.
2002), in which the Board found that a union organizer’s attempt to
have the nonunion respondent subjected to municipal bonding obliga-
tions imposed on subcontractors was protected because it was intended
to “assist the union and its constituents” by protecting employees’ job
opportunities. The court, in reviewing Tradesmen, found no nexus
between the organizer’s statement that the respondent was subject to
bonding requirements and the employees’ terms and conditions of
employment. See 275 F.3d at 1142. In contrast, Johnson’s effort in
this case to directly obtain work for the Union’s hiring hall registrants
has a clear nexus to employees’ terms and conditions. “[A]ctivity that
is otherwise proper does not lose its protected status simply because [it
is] prejudicial to the employer.” Tradesmen International, supra, 332
NLRB at 1160, quoting NLRB v. Circle Bindery, Inc., 536 F.2d 447,
452 fn. 7 (1st Cir. 1976).
25 Sahara Datsun, 278 NLRB 1044 (1986), and Firehouse Restau-
rant, 220 NLRB 818 (1975), cited by our dissenting colleague, were
overruled in this connection by Hawaii Tribune-Herald, supra. Our
colleague is correct that the Board did not hold that the outcome of
those cases would have been different under the new standard, but
neither did the Board hold that the outcome would have been the same.
Thus, the cases have limited, if any, precedential value. North Ameri-
can Dismantling Corp., 341 NLRB 665 (2004), which our colleague
also cites, is inapposite because the employer had not acted unlawfully
toward the employee before he solicited business from one of the em-
ployer’s customers.
turn to the Union for employees—would hardly be so
disproportionate or indefensible as to be disqualifying.
Hawaii Tribune-Herald, supra.
Second, nothing about Johnson’s conduct reasonably
tends to suggest that, if he were instated to employment,
that conduct would continue or that his affiliation with
the Union would somehow preclude him from serving as
a loyal employee. (Indeed, it would seem rather that, if
instated, Johnson would have a strong incentive to honor
his duty of loyalty—which, as a current employee, he
would clearly owe—in order to retain his position and to
be able to pursue his organizing activity.) To presume
that Johnson would be disloyal, based on his prior con-
duct on behalf of the Union, and to deny him a complete
remedy on that basis would run contrary to the principles
underlying the Supreme Court’s decision that union salts
cannot be assumed to have disloyal intentions and are
properly treated as statutory employees by the Board.
NLRB v. Town & Country Electric, Inc., 516 U.S. 85,
96–98 (1995).26
Accordingly, we conclude that Johnson is not disquali-
fied from instatement and full backpay.27
III. REMEDIAL NOTICE
The judge’s recommended Order includes the standard
requirement that the Respondent post a remedial notice
in “all places where notices to employees are customarily
posted,” including via email or any other electronic
means by which the Respondent communicates with its
current employees. The Respondent’s unlawful discrim-
ination, however, affected primarily job applicants—not
necessarily limited to the applicant discriminatees in this
case—rather than its current employees. In addition, the
record shows that applicants sometimes do not even visit
the Respondent’s facility or meet in person with a Re-
spondent recruiter in the course of processing their appli-
cations. Nor can we assume that applicants have access
to any of the internal electronic media through which the

26 The Five Star Board acknowledged the Supreme Court’s Town &
Country decision, but found that did not compel a different result there.
The Board majority observed that although an “intention to organize
[is] not an act of disloyalty to the prospective employer,” the conduct of
the Five Star applicants “did not simply indicate an adherence to the
Union” but “reflected an effort to undermine the [prospective employ-
er’s] standing.” 349 NLRB at 46. Johnson’s conduct in this case is
distinguishable from the conduct at issue in Five Star. Even apart from
the critical fact that it occurred after he was unlawfully discriminated
against, the conduct did not involve public disparagement of the Re-
spondent, but rather indicated an “adherence to the Union” and an
effort to obtain work for its hiring hall.
27 Because we have found that Johnson is entitled to full backpay,
we need not pass on the General Counsel’s cross-exception that the
judge erred in tolling his backpay as of the date of his solicitation,
rather than as of the later date when the Respondent became aware of
his solicitation.
AEROTEK, INC. 5
Respondent may communicate with its employees.28
Moreover, most, if not all, of the electricians hired by the
Respondent are referred to other employers’ worksites
and consequently might never see the notice posted at the
Respondent’s own facility. Additional mailing and post-
ing requirements are therefore warranted here for two
related purposes: first, to ensure that both the Respond-
ent’s applicants and its employees receive notice of their
Section 7 right to protection from discrimination in hir-
ing; and, second, to ensure that those applicants’ and
employees’ full knowledge of that right will reduce the
possibility of further unlawful hiring discrimination by
the Respondent.29
Accordingly, we will require the Respondent to mail
copies of the remedial notice to all individuals who ap-
plied on or after July 29, 2011,30 for electricians’ posi-
tions advertised by the Respondent that were located in
the region serviced by its Omaha facility. In addition, we
will require the notice to be mailed to all of the Respond-
ent’s current electricians who were hired for such posi-
tions but do not work at the Respondent’s Omaha facili-
ty. “The Board provides for the mailing of individual
notices when posting will not adequately inform the em-
ployees of the violations that have occurred and their
rights under the Act.”31 For the benefit of applicants, and

28 In characterizing the remedial measures we adopt for applicants as
“extraordinary,” our dissenting colleague overlooks the failure of con-
ventional notice to account for these circumstances. “The Board . . .
tailors its posting requirement to adapt to varying circumstances on a
case-by-case basis.” Technology Service Solutions, 334 NLRB 116,
117 (2001) (granting motion to expand notice posting).
29 See J. Picini Flooring, 356 NLRB 11, 12 (2010) (remedial notices
“serve to deter future violations”); Ramada Inn, 175 NLRB 474, 474
(1969) (remedial notice “serve[s] a preventive as well as a remedial
purpose”). Our dissenting colleague wrongly implies that only those
employees who were already unquestionably aware of the Respond-
ent’s misconduct—in this case the four discriminatees—are entitled to
remedial notice. Cf. Fresh & Easy Neighborhood Market, 356 NLRB
1175, 1175 (2011) (corporatewide remedy is permissible and necessary
“to ensure that all affected employees will be informed of the respond-
ent’s violation and the nature of their rights under the Act”), enfd. 468
Fed.Appx. 1 (D.C. Cir. 2012).
30 We normally fix the starting date for the period defining the recip-
ients of a remedial notice as the date of the respondent’s initial viola-
tion of the Act. See, e.g., A.W. Farrell & Son, 361 NLRB No. 162, slip
op. at 2 (2014) (notice mailed to all employees respondent employed
“at any time from the onset of the unfair labor practices”); Sommerville
Construction Co., 327 NLRB 514, 514 fn. 2 (1999), enfd. 206 F.3d 752
(7th Cir. 2000) (same). Because we cannot fix the precise date on
which the Respondent made its continuing decision not to hire the
discriminatees, we use the date 1 day after Johnson applied to the Re-
spondent for a job, identified himself as a union organizer, and ex-
pressed his intent to organize the Respondent’s employees. See Fergu-
son Electric Co., 330 NLRB 514, 515–516 (2000) (ambiguities in com-
pliance created by misconduct should be resolved against the wrongdo-
er), enfd. 242 F.3d 426 (2d Cir. 2001).
31 Bill’s Electric, 350 NLRB 292, 297 (2007). See also Abramson,
LLC, 345 NLRB 171, 171 fn. 3 (2005) (notice mailing “particularly
as a logical application of J. Picini Flooring, supra, we
will also require the notice to be sent by email to all ap-
plicants for electricians’ positions in Omaha who com-
municated with the Respondent by email in the course of
submitting their applications.32
Further, as we have done in other cases, we will re-
quire the Respondent to include, for a period of 6
months,33 a prominent statement at the beginning of its
job applications for electricians’ positions located in the
region serviced by its Omaha facility, and on all of its
advertisements for such positions, including the applica-
tions and advertisements it posts on Career Builder,
Thingamajob, and other electronic websites and media.34
The statement is to read as follows:
Aerotek is required to comply with the National Labor
Relations Act. Therefore, we will recruit and refer any
and all applicants without regard to their involvement
with, membership in, or allegiance to any union. We
acknowledge the right of employees to form, join, or
assist unions of their own choosing, or to refrain from
such activities.
These requirements will ensure that applicants are made
aware of their right to protection from discrimination under
the Act from the time they submit their applications.35

appropriate” where unit employees work on “individual construction
jobsites” across a two-state region). For additional cases supporting
notice mailing based on the likelihood that employees would not see a
notice posted in the workplace due to their physical isolation or other
circumstances, see A.W. Farrell & Son, 361 NLRB No. 162, slip op. at
1–2; Newman Livestock-11, 361 NLRB No. 32, slip op. at 2–3 (2014);
California Gas Transport, 347 NLRB 1314, 1362 fn. 64 (2006), enfd.
507 F.3d 847 (5th Cir. 2007); Parkview Hospital, 343 NLRB 76, 76 fn.
3 (2004); Technology Service Solutions, 334 NLRB 116, 116–118
(2001); Radio-Electronics Officers Union, 306 NLRB 43, 43 fn. 3
(1992), enf. denied on other grounds 16 F.3d 1280 (D.C. Cir. 1994),
cert. denied 513 U.S. 866 (1994).
32 Our dissenting colleague incorrectly suggests that the notice
measures we order here extend beyond electrician positions located in
the region serviced by the Respondent’s Omaha facility.
33 We find that a longer posting period is appropriate for applicants
than our normal 60-day posting period for employees at a respondent’s
worksite, because future applicants will clearly not have as frequent
contact with the Respondent as the employees at the worksite would
have.
34 See, e.g., Tradesmen International, 351 NLRB 399, 406 (2007)
(respondent with similar business required to post a similar statement to
applicants); Kenmor Electric, 355 NLRB 1024, 1035–1036 (2010)
(remedial notice posted at “all places where notices to the public, in-
cluding applicants for employment with [the respondent employer
association’s] members, are customarily posted”), enf. denied on other
grounds 720 F.3d 543 (5th Cir. 2013).
35 Our order of the additional notice requirements set forth above
will not preclude the Respondent from showing in compliance that
specific limitations or “peculiarities” in its electronic media systems
“affect its ability to post remedial notices by these means.” J. Picini
Flooring, supra, 356 NLRB at 14.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ORDER
The Respondent, Aerotek, Inc., located at 310 Regency
Parkway, Omaha, Nebraska, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to hire or consider for hire any job appli-
cant because the applicant is a union organizer or seeks
union representation.
(b) Telling any employee that wages are confidential
and are not to be discussed with others.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the National La-
bor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days of the date of this Order, offer em-
ployment to Brett Johnson, Tim Hendershot, Tom Jan-
kowski, and Alan Winge in the positions for which they
applied, or, if such positions no longer exist, to substan-
tially equivalent positions.
(b) Make Brett Johnson, Tim Hendershot, Tom Jan-
kowski, and Alan Winge whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them in the manner set forth in the remedy
section of the judge’s decision, as amended in this deci-
sion.
(c) Compensate Brett Johnson, Tim Hendershot, Tom
Jankowski, and Alan Winge for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and file with the Regional Director for Region 14, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years for each
discriminatee.
(d) Within 14 days of the date of this Order, remove
from Respondent’s files any reference to the unlawful
refusal to hire Brett Johnson, Tim Hendershot, Tom Jan-
kowski, and Alan Winge and, within 3 days thereafter,
notify them in writing that this has been done and that
the refusal to hire them will not be used against them in
any way.
(e) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(f) Within 14 days after service by the Region, post at
its Omaha, Nebraska facility copies of the attached notice
marked “Appendix.”36 Copies of the notice, on forms
provided by the Regional Director for Region 17, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, 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
through that facility at any time since July 29, 2011.
(g) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense, copies of the attached
notice marked “Appendix” to each of the named discrim-
inatees herein, to each applicant who submitted an appli-
cation for an electrician’s position located in the region
serviced by the Respondent’s Omaha facility on or after
July 29, 2011, and to each of its current electrician em-
ployees whose normal work location in the region ser-
viced by the Respondent’s Omaha facility is not the Re-
spondent’s own premises, at each applicant’s and em-
ployee’s last known address. The Respondent shall also
send the notice by email to all such electrician applicants
who communicated with the Respondent by email in the
course of submitting such applications.
(h) Within 14 days after the date of this Order, promi-
nently include, for 6 months, the following language at
the beginning of its job applications for positions as elec-
tricians located in the region serviced by its Omaha facil-
ity, and in all places where the Respondent advertises or
accepts such applications for employment, including on
the notices it posts on Thingamajob, Career Builder, or
other electronic websites and media: “Aerotek is required
to comply with the National Labor Relations Act. There-
fore, we will recruit and refer any and all applicants
without regard to their involvement with, membership in,
or allegiance to any labor organization. We acknowledge
the right of employees to form, join, or assist labor or-

36
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.”
AEROTEK, INC. 7
ganizations of their own choosing, or to refrain from
such activities.”
(i) Within 21 days after service by the Region, file
with the Regional Director of Region 14 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. December 15, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
For the reasons stated by the judge and my colleagues,
I agree that the Respondent (Aerotek) violated Section
8(a)(3) and (1) of the National Labor Relations Act
(NLRA or Act) by failing to hire and consider for hire
Brett Johnson, Tim Hendershot, Alan Winge, and Tim
Jankowski.1 I part ways with my colleagues, however,
regarding two aspects of this case. First, like the judge, I
would find that Johnson’s efforts to interfere with Aero-
tek’s business interests disqualified him from instate-
ment2 and full backpay. Second, I would adopt the
judge’s recommended Order, which reflects the Board’s
standard remedies for refusal-to-hire violations. I would

1 Applying FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir.
2002), I agree that the General Counsel met his burden of showing that
(1) the Respondent was hiring or had concrete plans to hire; (2) John-
son, Hendershot, Winge and Jankowski had experience and training
relevant to the jobs for which the Respondent was hiring; and (3) anti-
union animus contributed to the Respondent’s decision not to hire or
consider for hire the four applicants. See 331 NLRB at 12. Pursuant to
Toering Electric Co., 351 NLRB 225 (2007), I also agree that the Gen-
eral Counsel met his burden of showing that each of the four applicants
had a genuine interest in securing employment. Finally, I agree that the
Respondent failed to sustain its defense burden under FES, supra, of
showing that it would have refused to consider and/or hire the four
applicants even in the absence of their union activity or affiliation.
The Respondent does not maintain a rule or policy that prohibits
employees from discussing their wages. However, Aerotek recruiters
Kristin Breon and Linsey Rohman told or asked several employees not
to discuss their wages with other employees. I agree with the judge and
my colleagues that these directives or requests interfered with the exer-
cise of Sec. 7 rights in violation of Sec. 8(a)(1) of the Act.
2 Although most people are familiar with the remedy of “reinstate-
ment” when an employee has been unlawfully discharged in violation
of Sec. 8(a)(3) or (1), the standard remedy when an applicant has been
unlawfully denied employment is called “instatement.”
not order the extraordinary remedies my colleagues add
on top of those standard remedies.
1. Aerotek should not be required to employ Johnson,
who sought to injure Aerotek’s business interests
Aerotek is a staffing agency based in Omaha, Nebras-
ka, where it places workers—including electricians—in
construction jobs. The Charging Party Union also refers
electricians to construction jobs in the Omaha area
through its hiring hall. Thus, Aerotek and the Union are
direct competitors. Under a contract with Interstates
Electric (Interstates), Aerotek provided Interstates with
electricians for a construction project at a Tyson Foods
plant in Council Bluffs, Iowa. On February 29, 20123—
after he applied for employment with Aerotek and while
the Tyson Foods project was underway—Johnson ap-
proached the manager of Interstates. Johnson told the
manager that members of the Union were working on the
Tyson Foods project, and he offered to “cut out the mid-
dleman”—namely, Aerotek—by referring electricians to
Interstates from the Union’s hiring hall. The manager
declined the offer. One week later, Johnson telephoned
the owner of Interstates and repeated the offer.4
The judge found, and the parties do not dispute, that
Johnson offered Interstates “the [U]nion’s direct assis-
tance in furnishing manpower to the Tyson[] Foods job”
and thus attempted to “exclude Aerotek from Interstates
work.” The judge found that Johnson’s conduct was “so
obviously inconsistent with the duties of an employee”
that Johnson should be denied instatement, and the run-
ning of the backpay period as to Johnson should be tolled
as of February 29, the date he first contacted Interstates.
Ample Board precedent supports the judge’s determina-
tions, which I would adopt.
“It is well settled that Section 7 of the Act does not
protect employee overtures to contractual interference.”
North American Dismantling Corp., 341 NLRB 665, 666
(2004). In North American Dismantling, an unlawfully
discharged employee repeatedly told one of his employ-
er’s clients that he could put together his own work crew
and perform work assigned to the employer for a lesser
rate. Id. at 666. The Board found that “[t]o the extent
that [the employee] sought to replace the [employer] with
a crew he would provide and thereby interfere with its
business relationship with [the client], [the employee]
was clearly engaged in unprotected conduct.” Id. The
Board further held that the employee’s “effort to steal
work” from the employer made him ineligible for rein-
statement and warranted terminating the backpay period

3 All subsequent dates are in 2012.
4 It appears that the owner of Interstates also declined Johnson’s of-
fer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
on the date the employer learned of his unprotected con-
duct. Id. at 666–667.5 In a number of other cases, the
Board has similarly held that employers are not required
to employ individuals who attempt to interfere with their
business interests.6
The Board has applied these principles to job appli-
cants in a refusal-to-hire case. See Five Star Transporta-
tion, Inc., 349 NLRB 42 (2007), enfd. 522 F.3d 46 (1st
Cir. 2008). In Five Star Transportation, school bus driv-
ers employed by First Student, the school district’s in-
cumbent transportation provider, sent letters to the school
district urging it to continue to contract with First Stu-
dent rather than Five Star Transportation. 349 NLRB at
45. The Board found that the drivers’ letters disparaged
and criticized Five Star and were outside the protection
of Section 7 of the Act. Id. Five Star was awarded the
contract, and the drivers who had written letters applied
for positions with Five Star. The Board found that Five
Star did not violate the Act when it refused to hire or
consider for hire the letter-writing drivers. Id. at 46.
Notably, in finding the drivers’ conduct unprotected, the
Board did not simply rely on the disparaging nature of
their letters. The Board emphasized that “the letters re-
flected an effort to undermine [Five Star’s] standing in
order to secure the school bus contract for First Student,
the contract provider preferred by [the drivers].” Id.7

5 For the reasons explained below, I agree with the judge that the
backpay period should terminate on the date of the misconduct, not the
date the employer learned of the misconduct. See fn. 11, infra.
6 See ATC/Forsythe & Associates, 341 NLRB 501, 503 (2004)
(company providing bus service to the city of Tempe, Arizona, lawfully
discharged an employee because, among other reasons, the employee
engaged in “contractual interference” by offering his dissident union
group to city officials as an alternative service provider); Kenai Heli-
copters, 235 NLRB 931, 936 (1978) (employer lawfully discharged
pilots after they told the employer’s dispatcher that they planned to go
on strike and operate a competing tourist helicopter service); Associat-
ed Advertising Specialists, Inc., 232 NLRB 50, 53–54 (1977) (employer
lawfully discharged employee after employee underbid the employer as
a direct competitor, resulting in the employer’s loss of business from a
principal customer); Marshall Maintenance Corp., 145 NLRB 538,
539–540 (1963) (stating that it would be “manifestly improper to re-
quire [r]espondent to employ anyone whose loyalty and efforts as an
employee might be affected by his own self-interest as an entrepreneur
and business competitor”). See also Rex Printing Co., 227 NLRB
1144, 1144–1145 (1977) (Board permitted employer to condition rein-
statement of unlawfully discharged employee on his “divesting himself
of all ownership interests” in competing business enterprises and “ceas-
ing to solicit business” for one of those enterprises); Crystal Linen
Service, 274 NLRB 946, 948–949 (1985) (employer lawfully disci-
plined employees after they solicited the employer’s customers to
switch to a competitor).
7 The Board has also denied applicants instatement and full backpay
when they engaged in other types of unprotected conduct. See Smucker
Co., 341 NLRB 35, 35–36 (2004) (applicants not entitled to instate-
ment, and the backpay period ended on the date Smucker learned that
they cheated on a preemployment exam), enfd. 130 Fed.Appx. 596 (3d
The Board has also denied reinstatement to unlawfully
discharged employees who engaged in postdischarge
efforts to undermine their employers’ business interests.
See Sahara Datsun, 278 NLRB 1044, 1045–1046 (1986)
(discharged employee not entitled to reinstatement,
where he “attempt[ed] to undermine the [r]espondent’s
business” by falsely telling bank that provided financing
to respondent’s customers that loan applications submit-
ted to bank had been falsified), enfd. 811 F.2d 1317 (9th
Cir. 1987); Firehouse Restaurant, 220 NLRB 818, 824–
825 (1975) (following restaurant’s unlawful failure to
return waiter to work following a vacation, waiter law-
fully discharged for publicly disparaging the restaurant’s
food “for the avowed purpose of causing harm to
[r]espondent’s business”).
Johnson engaged in the very type of unprotected con-
duct identified by the Board in these many cases. His
repeated solicitations of high-level officials at Interstates
were a blatant effort to interfere with and undermine the
Respondent’s contractual relationship with Interstates,
who my colleagues acknowledge was one of the Re-
spondent’s major clients. Johnson sought to replace
Aerotek’s employees with employees referred by the
Union. Indeed, my colleagues concede that Johnson’s
goal was “to divert business from the Respondent.”
Moreover, Johnson’s efforts were more egregious than
those of the applicant bus drivers in Five Star Transpor-
tation. Johnson attempted to interfere with the Respond-
ent’s ongoing business relationship with Interstates,
whereas the letter-writing drivers were supporting their
current employer, First Student, in competing with Five
Star for the school district contract.
The Board has not been entirely consistent regarding
whether an applicant for employment owes a duty of
loyalty to a prospective employer,8 but my colleagues
assume that applicants owe at least “some duty of loyal-
ty” to their prospective employers, and my colleagues
further assume that Johnson’s conduct was disloyal.
Nonetheless, they find that Johnson is entitled to in-
statement and full backpay under the standard set forth in
Hawaii Tribune-Herald, 356 NLRB 661 (2011), which

Cir. 2005); American Steel Erectors, Inc., 339 NLRB 1315, 1316–1317
(2003) (finding that prospective employer was privileged not to consid-
er applicant for hire where the applicant, “through use of deliberate and
outrageous exaggerations, . . . accused the [employer] of unsafe prac-
tices” at meetings of a state apprenticeship council).
8 In American Steel Erectors, the Board stated that applicants for
employment do not owe a duty of loyalty to a prospective employer.
339 NLRB at 1316–1317. But in Five Star Transportation, the Board
held to the contrary. 349 NLRB at 46 (“Just as an employer legitimate-
ly wants extant employees to be loyal, so a prospective employer legit-
imately wants prospective employees to be loyal. In both cases, the
goal is the same—not to have disloyal employees on the payroll.”).
AEROTEK, INC. 9
the Board applies to determine what remedial conse-
quences, if any, flow from a discriminatee’s postdis-
charge misconduct. Under this standard, to be excused
from its duty to reinstate a discriminatee, and to toll the
running of the discriminatee’s backpay period, the em-
ployer must prove “misconduct so flagrant as to render
the employee unfit for further service, or a threat to effi-
ciency in the plant.” 356 NLRB at 662.9
I believe Johnson’s unprotected conduct disqualified
him from instatement, and it stopped the running of his
backpay period as of the date that Johnson made his
overtures to Interstates, regardless of whether one applies
the “unfit for further service” standard.10 The Board has
consistently disapproved of employees and applicants
who interfere with an employer’s business interests, and
in line with these cases, I agree that the individuals
should be denied reinstatement (or instatement) and any
further accrual of backpay.11
2. Other remedial issues
In the affirmative provisions of his Order, the judge
recommended requiring the Respondent to (1) offer em-
ployment to Hendershot, Jankowski and Winge; (2)
make them (and Johnson, subject to the limitation dis-
cussed above) whole for any loss of earnings and other
benefits resulting from its unlawful conduct; (3) remove
from its files any references to its unlawful conduct; and
(4) for 60 days, post a notice in its Omaha, Nebraska
facility in all places where notices to employees are cus-
tomarily posted, and distribute the notice electronically if
the Respondent customarily communicates with its em-
ployees by such means. These are the Board’s standard

9 Although the Board in Hawaii Tribune-Herald overruled Sahara
Datsun and Firehouse Restaurant to the extent that the Board in those
cases did not apply the “unfit for further service” standard, the outcome
of those cases was left undisturbed. See 356 NLRB at 663 fn. 10
(“[W]e do not pass on the question of whether any of the conduct at
issue in those cases would have been grounds for denying reinstatement
or backpay under the correct standard.”).
10 I need not reach or determine whether the correct standard to ap-
ply here is the “unfit for further service” standard or some other test,
nor do I pass on the precise extent of the duty of loyalty that applicants
owe to a prospective employer.
11 I agree with the judge that the accrual of backpay terminates as of
the date that Johnson first contacted Interstates. Although in some
cases the Board has stopped the running of the backpay period on the
date the employer learned of such misconduct, I believe the appropriate
cutoff is the date the individual chose to pursue interests incompatible
with employment by the employer. In my view, if the Board stops the
accrual of Johnson’s backpay only when the Respondent learned of his
misconduct, this would improperly reward Johnson for concealing his
activities from the Respondent, to whom I believe Johnson owed a duty
of loyalty. Under these circumstances, I believe it is incongruous to
find that Johnson’s actions render him ineligible for employment, while
awarding him backpay for periods subsequent to when those actions
occurred.
remedies for an unlawful refusal to hire, and I agree they
are appropriate here.
I disagree with my colleagues’ remedy—not recom-
mended by the judge—requiring the mailing of a notice
to all electricians placed by Aerotek who work away
from its Omaha, Nebraska facility. The Board’s standard
remedy is to require notice mailing if the respondent has
gone out of business or closed the facility where the un-
fair labor practice or practices occurred. Although Aero-
tek places employees to work at other locations, I do not
believe this presents the kind of unusual circumstances
under which I have approved notice mailing. See Bud
Antle, Inc., 361 NLRB No. 87, slip op. at 2 (2014)
(Member Miscimarra, concurring) (notice mailing ap-
propriate where migratory work force “move[d] from
place to place harvesting crops throughout the year”).
I also disagree with the extraordinary remedy of re-
quiring the Respondent to prominently post a statement
of employee rights at the beginning of its job applica-
tions and on all its job advertisements.12 The Board has
ordered comparable remedies in only two cases, both of
which are plainly distinguishable from the instant case.13
Neither would I order the extraordinary and unprecedent-
ed remedy of requiring the Respondent to mail and email
the notice to all individuals who applied for electricians’
positions on or after July 29, 2011, which was the day
after Johnson applied at Aerotek. The Board’s remedial
notices are “a means of dispelling and dissipating the
unwholesome effects of a respondent’s unfair labor prac-
tices.” Chet Monez Ford, 241 NLRB 349, 351 (1979),
enfd. mem. 624 F.2d 193 (9th Cir. 1980).14 There is no

12 The required statement reads: “Aerotek is required to comply
with the National Labor Relations Act. Therefore, we will recruit and
refer any and all applicants without regard to their involvement with,
membership in, or allegiance to any union. We acknowledge the right
of employees to form, join, or assist unions of their own choosing, or to
refrain from such activities.”
13 In Tradesmen International, 351 NLRB 399 (2007), the Board or-
dered a virtually identical remedy where the employer committed “se-
rious violations of the Act . . . on other occasions at another of its facili-
ties,” it admitted that “screening out union adherents [was] practically
the . . . corporate raison d’être,” and it “actively suggested to its field
offices that they engage in unlawful conduct in order to remain union-
free.” Id. at 404, 407. In KenMor Electric Co., 355 NLRB 1024
(2010), enf. denied 720 F.2d 543 (5th Cir. 2013), the Board ordered
notice posting to include “all places where notices to the public, includ-
ing applicants . . . , are customarily posted” where an employer “explic-
itly advertised” its referral system “as an effective means to avoid hir-
ing union members,” “hindered the efforts of applicants who were salts
and union members to be hired,” and otherwise engaged in conduct that
“reasonably tended to interfere with union applicants’ attempts to gain
employment on equal terms with other applicants.” Id. at 1027–1028,
1035-1036. There is no evidence in this case remotely comparable to
Tradesmen International or KenMor Electric.
14 See also NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346
(1953) (the purpose of the Board’s remedies is “to undo the effects of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
reason to believe that any other applicants besides the
four discriminatees have ever been aware of the Re-
spondent’s unlawful conduct. Thus, it is unnecessary to
mail them the notice because, as to them, there is no
chilling effect to dissipate.
Accordingly, I join the majority as to some issues in
the instant case, and I respectfully dissent as to other
issues, as described above.
Dated, Washington, D.C. December 15, 2016
______________________________________
Philip A. Miscimarra Member
NATIONAL LABOR RELATIONS BOARD
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 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 or consider for hire any
job applicant because the applicant is a union organizer
or seeks union representation.
WE WILL NOT tell employees that they are not to dis-
cuss wages with others.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer employment to Brett Johnson, Tim Hender-
shot, Tom Jankowski, and Alan Winge in the positions
for which they applied, or, if such positions no longer
exist, to substantially equivalent positions.
WE WILL make Brett Johnson, Tim Hendershot, Tom

violations of the Act”); Frank Bros. Co. v. NLRB, 321 U.S. 702, 704
(1944) (“One of the chief responsibilities of the Board is to direct such
action as will dissipate the unwholesome effects of violations of the
Act.”).
Jankowski, and Alan Winge whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against them in the manner set forth in the
Board’s decision.
WE WILL compensate Brett Johnson, Tim Hendershot,
Tom Jankowski, and Alan Winge for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 14, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each of them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to hire Brett Johnson, Tim Hendershot, Tom
Jankowski, and Alan Winge and WE WILL, within 3 days
thereafter, notify them in writing that this has been done
and that the refusal to hire them will not be used against
them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, include, for 6 months, the following language on
our job applications for electricians and in all places
where we advertise or accept applications for electrician
jobs in the Omaha region, including online:
Aerotek is required to comply with the National Labor
Relations Act. Therefore, we will recruit and refer any
and all applicants without regard to their involvement
with, membership in, or allegiance to any union or la-
bor organization. We acknowledge the right of em-
ployees to form, join, or assist unions of their own
choosing, or to refrain from such activities.
AEROTEK, INC.
The Board’s decision can be found at
www.nlrb.gov/case/17–CA–071193 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
AEROTEK, INC. 11
Michael E. Werner, Esq., for the General Counsel.
William A. Harding and Kelly M. Ekeler, Esqs. (Harding and
Shultz, P.C., L.L.O.), of Lincoln, Nebraska, and Mark
Freeman, Freeman and Freeman, P.C.), of Rockville, Mar-
yland, for the Respondent.
Lori Elrod, Esq. (Blake & Uhlig, P.A.), of Kansas City, Kansas,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Omaha, Nebraska, on October 29 and 30, 2012 and
January 3, 2013. Local 22 of the International Brotherhood of
Electrical Workers (IBEW) filed the charges in these matters on
December 21, 2011, March 1, and April 12, 2012. The General
Counsel issued the consolidated complaint which is before me
on August 28, 2012.
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) on several occasions by telling employees that their
wages and other terms and conditions of employment were
confidential and that they were prohibited from discussing
wages and other terms and conditions of employment with
other employees. He also alleges that Respondent violated
Section 8(a)(3) and (1) in refusing to consider for hire and re-
fusing to hire Brett Johnson since about August 1, 2011, and
refusing to consider for hire and refusing to hire Tim Hender-
shot, Tom Jankowski, and Alan Winge since about September
1, 2011.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Aerotek, Inc., a corporation, with headquarters
in Hanover, Maryland, near Baltimore, provides temporary
personnel and job screening services in various locations in a
number of states, including its facility in Omaha, Nebraska. At
its Omaha facility it annually performs services valued in ex-
cess of $50,000 in States other than Nebraska. 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 and
that the Union, IBEW Local 22, is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent has 6 or 7 different divisions operating from the
Omaha office. Only one of these, the Environmental and Engi-
neering Division places employees in the construction industry.
The Union and Aerotek are competitors with regard to place-
ment of journeymen and apprentice electricians. The Union
provides labor to employers, as does Aerotek and other em-
ployee staffing companies. At least with regard to some em-
ployers, companies such as Aerotek provide a convenient em-
ployee staffing alternative to establishing relationships with
labor organizations. Indeed, when testifying in the instant hear-
ing, Brett Johnson a full-time organizer with IBEW Local 22,
stated the number of newspaper advertisements for electricians
has been steadily diminishing over the past 10 years. Johnson
believes that, “the result is that more and more contractors are
not advertising themselves, but using staffing companies, in my
opinion, to screen out union members,” Tr. 219.
On July 27, 2011, Kacie Woodley, an intern working as a re-
cruiter for Aerotek, called Brett Johnson. Woodley asked John-
son if he was interested in employment. Woodley made the
following entry into Brett Johnson’s profile in Aerotek’s Re-
cruiter Work Space (RWS) system:
Brett is looking to make at least 30/hour. He is the member-
ship coordinator with local 22 union. He is sending me his
updated résumé is always open to hearing about new opps.
(GC Exh. 34.)1
RWS is a database containing information on essentially any
individual who has had contact with Aerotek relating to poten-
tial employment. Johnson had a profile in this system prior to
July 2011. His profile was created in October 2009,. The pro-
file may be related to the fact that in September 2007 Aerotek
settled an unfair labor practice charge filed by IBEW Local 22
which alleged that it had refused to consider Johnson for hire
and had refused to hire him because of his union activity. Aero-
tek paid Johnson $4,445.20 as part of this settlement.
Woodley emailed Johnson, asking for his résumé and telling
him that she would “keep an eye out for higher-level electrical
positions.” Johnson replied on the morning of July 28, 2011,
stating, “I like working worth (sic) the tools and any electrical
position will do apprentice or journeyman anything I can do to
get in to organize electrical contractors in the union.” He also
submitted his résumé.
Johnson then contacted Local 22 member Joe Stock and
asked him to apply to Aerotek. Stock contacted Aerotek re-
cruiter Daniel Mehmen on July 28. Mehmen interviewed Stock
and then emailed Les Shallberg, the owner of Fremont Electric
Company that evening, informing Shallberg that Stock was
available to start work the following Monday. Mehmen in-
formed Shallberg that:
For the last 4 months Joe was working for a residential and
commercial contractor in Blair NE but before that worked for
Centaur Electric. Joe’s foreman from Centaur said he was
very reliable and very knowledgeable. If they had more work
he would have been glad to keep Joe working for them. Prior
to that Joe was a Journeymen electrician for the IBEW for 4
years and left to go to Centaur . . .
(GC Exh. 6.)
The reference from Centaur that Stock gave Mehmen was
phony. He provided Mehmen with Brett Johnson’s telephone
number. Johnson provided the favorable reference posing as
“Larry,” Stock’s foreman at Centaur. There was no indication
from Stock’s employment application (GC Exh. 3, p. 127) or

1 Johnson testified that he did not tell Woodley that he was looking
to make at least $30 per hour. I credit his testimony as it is consistent
with the email he sent to Aerotek on August 8, 2011 (GC Exh. 38), and
his uncontradicted account of his conversation with Aerotek account
manager Jacob Shank the same day. Assuming that Woodley, who did
not testify, simply made a mistake, Johnson corrected any misunder-
standing of what he would accept on August 8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
communicated by Stock during his interview that he had any
relationship with the IBEW in August 2011. I discredit
Mehmen’s testimony that he knew Stock was a union support-
er when he placed Stock with Freemont Electric. Mehmen’s
email to Fremont’s owner, quoted above, indicates that
Mehmen understood that Stock had a relationship with the
IBEW in the past but was no longer associated with the Union.
Mehmen did contact Stock regarding a non-bargaining unit,
non-electrical job in December 2011, after Stock had identified
himself as an IBEW member (Tr. 388).
Stock began work at Freemont as a general laborer on Au-
gust 1 at $21 per hour. He worked for Freemont until October
17, 2011. Stock’s foreman told Mehmen that Stock did a great
job while working for him (GC Exh. 8).
On August 1, 2011, Respondent placed Brandon Strine with
Fremont Electric at a wage rate of $16 per hour. Although
Strine had worked for a union contractor from May to Septem-
ber 2008 as a temporary member of Local 22, he has had no
relationship with the Union since September 2008.
On August 5, Aerotek posted a notice for an electrician with
3 years or more of experience in electrical and commercial
buildings for a client in Blair, Nebraska. Among the required
skills in this announcement was the possession of a journey-
man’s license (GC Exh. 2, p. 2).
On August 8, Johnson sent the following email to Aerotek
recruiter Daniel Mehmen, in response to this and other post-
ings:
I have sent my resume to Kacie Woodley with Aerotek on
7/27/2011 and informed her that I would take any position,
apprentice or journeyman and have had no offer of a position
yet. I couldn’t help but notice the multiple job postings avail-
able with Aerotek and thought that the one with your client in
Blair would be a good fit as I have industrial experience. I
like the idea of working with larger contractors allowing me
time to expose more electricians to the IBEW. . .
(GC Exh. 38.)
Aerotek account manager Jacob Shank called Johnson the
same day, after Johnson sent this email. Shank told Johnson
that Woodley no longer worked for Aerotek and had not passed
on Johnson’s information to him.2 Shank said Respondent was
looking only to place apprentices. Johnson replied that he
would accept any position, as a journeyman or apprentice.
Shank said he would consider Johnson for eligible jobs in the
future.3
On August 12, 2011, Johnson uploaded the résumés of union
members Tim Hendershot, Tom Jankowski, and Alan Winge
into the database for Career Builder. As a result Respondent’s
RWS system automatically entered them as employment appli-
cants with Aerotek (GC Exh. 34). On the résumés of all three,
the fact that there were volunteer union organizers, as well as

2 This was a bit disingenuous since Woodley had entered her notes
of the July 27 conversation into Respondent’s RWS system.
3 Johnson’s account of this telephone conversation was not contra-
dicted by Shank. I therefore credit it. Johnson and Shank met in Febru-
ary 2011, after recruiter Daniel Mehmen initiated contact with IBEW
Local 22 through Johnson. Shank and Mehmen met with Johnson for
about 30 minutes at the Union Hall at that time.
licensed journeymen electricians, was prominently noted (GC
Exh. 39).
Jankowski is the vice-president of Local 22, an elected posi-
tion and is a member of the Union’s Executive Board. He regu-
larly works as an electrician. Hendershot and Winge also work
regularly as electricians. Neither holds any position with the
Local. As of August 12, Jankowski was working reduced hours
at Omaha Electric, a unionized employer. Winge was unem-
ployed as was Hendershot. Their résumés did not indicate
whether or not they were currently employed.
All three had volunteered to participate in the Union’s salting
campaigns at nonunion contractors. On August 5, 2011, Winge
and Brett Johnson submitted Winge’s resume to Sentry Engi-
neering in Mecina, Iowa. At that time, Winge authorized John-
son to submit his resume to other nonunion contractors for
salting purposes. Winge did not know specifically that it would
be submitted to Aerotek (Tr. 330–331). However, Johnson
specifically asked Hendershot and Jankowski if he could sub-
mit their resumes to Aerotek. They specifically authorized
Johnson to do so (Tr. 314, 338). All three understood that the
Union could order them to quit their nonunion employment if it
did not serve the Union’s organizing interests.4
As of the October 30, 2012 hearing session, Winge had been
employed with a union contractor since April 2012; Hendershot
had been employed by a union contractor for 3 months. Jan-
kowski was laid by Omaha Electric and has worked several
jobs of short duration since his layoff. With the exception of
one voice mail message left by Aerotek recruiter Curtis Coat-
man for Hendershot on February 24, 2012, neither Johnson,
Hendershot, Jankowski, nor Winge ever heard from Aerotek.
Little over 3 weeks from the conversation between Shank
and Johnson, on August 30, 2011, Respondent placed journey-
men electricians, David Myhr and Jeffrey Thomsen with
Fremont Electric at a wage rate of $20 per hour. So far as this
record demonstrates neither Myhr nor Thomsen has ever had
any relationship with Local 22 or any other union. Respondent
has not offered any specific evidence as to why it placed Myhr
and Thomsen, as opposed to any of the alleged discriminatees.
As Joint Exhibits 4 and 6 and Exhibit R-16 demonstrate, Aero-
tek placed many other employees; journeymen and apprentice
electricians, with contractors after August 8.
Johnson emailed Aerotek recruiter Daniel Mehmen on No-
vember 30, 2011, reiterating his interest in “any electrical con-
struction position available” (GC Exh. 40). Aerotek did not
respond to this email. On December 6, 2011, Aerotek placed
four apprentices with IES Commercial at wage rates of either

4 Johnson testified that salting agreements with Local 22 members
have on one or more occasions been cancelled because the member
decided to stay at the nonunion contractor and drop his membership
with the Local. Thus, salting can be a two-edge sword if a member
decides he or she would be likely to be employed more consistently if
he or she terminated his union membership.
I find that Respondent cannot legitimately rely on this fact as a de-
fense for not hiring or considering the discriminatees for hire. Re-
spondent was hiring primarily for projects of short duration and in fact
hired employees such as Kyle Modlin and Jason Darnold, who in-
formed Aerotek that they intended to work elsewhere within a few
months.
AEROTEK, INC. 13
$16 or $17 per hour. On December 16, 2011, Aerotek placed
Brandon Strine at Weston Solutions at a rate of $23.39 per
hour.
Between January 16, 2012, and February 17, 2012, Aerotek
placed a number of journeymen and apprentices with Interstates
Construction Company. Interstates was performing work at a
Tyson Foods’ plant in Council Bluffs, Iowa. Among the jour-
neymen hired for Interstates5 during this period are the follow-
ing individuals, with their date of hire and wage rate:
Warren Kennedy January 16 $14
Mark Mesenback February 6 23
Carlos Ramos February 6 23
Jimmy Coats February 20 23
Julio Juarez February 20 25
Duane North February 20 23
Jack Shelly February 20 23
Aaron Flores February 23 17
Jesus Flores February 23 17
David Erwin February 27 25
Jason Perry February 27 23
Kelly Jansen March 5 24
Steven Meling March 5 24
Adrian Sterns March 5 24
While the employment of most of these individuals with In-
terstates ended by mid-April 2012, Julio Juarez continued
working for Interstates through August 20.
Between January 9, 2012, and February 27, 2012, Aerotek
placed 10 apprentices with Interstates at a wage rate of between
$14 and $18.50 per hour. While most of these assignments
ended in March and April, Rodgina Miller worked for Inter-
states through Aerotek from January 9, to July 9, 2012 (Jt. Exh.
4). On July 9, Miller went on the Interstates payroll (Exh. R-
16).
Some other employees placed by Aerotek became permanent
employees of Interstates after a period of time on the Aerotek
payroll. These include Carter Kemp, placed by Aerotek on
August 30, 2011, who went on the Interstates payroll on Febru-
ary 10, 2012; Mark Meisenbach who became an Interstates
employee on March 24, 2012; and Mike Miodowski who be-
came an Interstates employee on April 14, 2012.
None of the four alleged discriminatees in this case was ever
contacted by Aerotek with a view to offering them employment
with one possible exception. On February 24, 2012, Aerotek
recruiter Curtis Coatman was assigned for one day to find can-
didates for the Interstates job. He left a telephone voice mail
message for Tim Hendershot informing him of an open jour-
neyman position and sent Hendershot an email. The message
and email instructed Hendershot to call Coatman if he was
interested in the position (GC Exh. 48 and R. Exh. 27). Hen-
dershot’s testimony that he called twice and left messages for
Coatman is uncontradicted. I therefore credit it. Coatman did
not work on the Interstates account on any day other than Feb-
ruary 24.
One reason given by Respondent for failing to hire the 4 al-

5 All these individuals apparently were assigned to Interstates’ Ty-
son Foods project (Exh. R-16).
leged discriminatees or follow-up on their applications is that
their prior work history indicated that they made been paid too
much in the past for them to “fit” the positions Aerotek was
seeking to fill. In fact Aerotek hired a number of employees
who had made $30 or more on prior jobs.
Examples of employees placed by Respondent at wage rates
considerably below what the employee had earned in the past
are as follows: Julio Juarez, placed with Interstates on Febru-
ary 20, 2012, at a wage rate of $25 per hour, had been paid $30
an hour with two prior employers. Duane North, who Aerotek
attempted to place, also earned $30 per hour with a prior em-
ployer. John Tonn, who was placed by Aerotek with Concrete
Equipment at $13 per hour, apparently left the Union in Sep-
tember 2010. With the Union he had been paid over $30 per
hour when employed (Jt. Exh. 4, GC Exh. 3, p. 137). These
past wage rates were reflected on their résumés or applications.
Aerotek also placed journeymen in apprentice positions. Ja-
son Darnold, who was placed at Interstates at $16 per hour, had
earned $23 per hour in prior employment as a journeyman.
Similarly, Respondent placed Charles Christman, who also
represented himself as a journeyman electrician, as an appren-
tice with Interstates at $16 per hour.
On March 9, 2012, Brett Johnson sent Aerotek recruiter Dan
Mehmen a letter informing him that eight of the Aerotek em-
ployees on the Interstates project were volunteer organizers for
Local 22. These employees are Adrian Sterns, Carlos Ramos,
Steve Meling, Kelly Jansen, Jimmy Coats, David Erwin, Jack
Shelly, and Jason Perry (GC Exh. 43).6 Brett Johnson testified
that there may have been other Local 22 members or sympa-
thizers on the project whose relationship to the Union was nev-
er disclosed. On March 30, Johnson filed a petition with the
Board to represent all journeymen and apprentice electricians
working in the construction field employed out of Aerotek’s
Omaha, Nebraska office, excluding supervisors and low-
voltage technicians (GC Exh. 44).
At trial Jacob Shank testified that he was aware that a num-
ber of the employees placed at Interstates had a relationship
with Local 22 when they were hired. I discredit that testimony.
In an affidavit given to the Board on May 8, 2012, during the
investigation of the Local 22 charges, Shank stated that he first
learned that there were employees at Interstate affiliated with
the Union when Aerotek recruiter Kristin Breon7 told him that
Brent Burnham was complaining of harassment at the Interstate
project by union supporters (Tr. 113). In recanting from this
statement, Shank did not adequately explain what led him to
make it in the first place.8
Breon testified that she was not aware of the union affiliation
of any employee she placed until April 2012 (Tr. 525–526).

6 GC Exh. 43 bears a date of February 9, 2012. I credit Brett John-
son’s testimony that this is a typographical error and the letter should
have been dated March 9. Seven of the eight salts, all except Ramos,
had not been hired as of February 9.
7 Breon’s name is now Kristen Kruse. I will refer to her as Kristin
Breon, the name by which the job applicants knew her.
8 Burnham did not work at the Interstates project until February 23.
I find that Shank was not aware that any of the employees placed at
Interstates had a relationship with Local 22 at the time they were placed
with Interstates.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
One of the employees she placed on the Interstates job was
union salt David Erwin on February 27 (Tr. 524–525, Jt. Exh.
4).
Breon also testified that her account manager, Jacob Shank,
reviewed and approved the candidates she selected before they
were submitted to Interstates or other employer (Tr. 528).
However, she did not specify what that review entailed. There
is no evidence that Shank examined any of the résumés or writ-
ten applications of any applicants who were selected for place-
ment by Respondent’s recruiters, prior to their placement.
In preparation for the instant trial, Jacob Shank prepared Ex-
hibit R-16, which with his testimony, constitutes Respondent’s
evidence that it knowingly placed Local 22 members or sup-
porters with Interstates.9 I find that this is not so. In any event,
no applicant placed by Respondent indicated that they were a
volunteer union organizer, as did the alleged discriminatees.10
The alleged 8(a)(1) violations: alleged prohibition against em-
ployees discussing wages
It is undisputed that Aerotek recruiters Kristin Breon and
Linsey Rohman told or asked several employees not to discuss
their wages with other employees (GC Exh.- 49, Tr. 522, 542).
Respondent contends that it did not violate the Act because
these recruiters were not acting as agents of Aerotek when they
made these statements, that these statements are not rules or
policies of Aerotek and the employees were not disciplined or
threatened with discipline.
Respondent’s employee handbook (R. Exh. 29 at pp. 7–8),
states that an employee may be disciplined or terminated for a
number of offenses, including “Disclosing business “secrets” or
confidential information.” Breon, in her March 5, 2012 con-
versation with employee David Erwin, told Erwin that “Pay is
confidential.” Rohman asked employees Carlos Ramos, Mike
Miodowski and Adrian Sterns to keep their wages confidential.
When account manager Jacob Shank was asked at trial whether
Aerotek treats employees’ salaries as confidential, he replied,
“No, not necessarily.” Shank testified further that he was not
aware whether or not Aerotek had a rule against employees
talking about their wages with other employees and that he
recommends that recruiters not say that to employees (Tr. 142–
43). Thus, it is clear that neither Breon nor Rohman violated
any company rule in telling employees that their wages were
confidential and that they should not be discussing their wages
with others.
Respondent contends that Breon and Rohman were not act-
ing on behalf of Respondent because they were simply trying to
make their jobs easier. Assuming that were the case, they did
not inform the employees that they were merely requesting a
personal favor. From an objective standpoint, any reasonable
employee would believe that Breon and Rohman were convey-

9 Earlier in this decision I discredited Dan Mehmen’s testimony that
he understood that Joe Stock was affiliated with the Union when he
placed Stock at Fremont Electric.
10 On the other hand Respondent did place Andrew Stock with a cli-
ent in April 2012, after he had demonstrated his union sympathies.
Recruiter Jason Brandau attempted to contact union salt David Erwin in
August 2012. However there is no evidence as to whether Brandau was
aware of Erwin’s union affiliation (R. Exh. 31).
ing company policy.
Analysis
Refusal to Consider/Refusal to Hire: The legal framework
This is what is commonly referred to as a salting case. There
are a number of cases under the Act that apply to salting cases
and thus establish the framework for considering the facts of
this case. The most important of these cases are:
NLRB v. Town & Country Electric, Inc., in which the Su-
preme Court, noting the considerable deference accorded to
the Board’s interpretation of the Act, affirmed that the Board
could lawfully construe the Act’s definition of “employee” to
include paid union organizers. 516 U.S. 85, 94–95, 98 (1995).
FES, 331 NLRB 9 (2000), supplemented 333 NLRB
66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). In FES,
Board held that:
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 respondent
was hiring, or had concrete plans to hire, at the time of the al-
leged unlawful conduct; (2) that the applicants had experience
or training relevant to the announced or generally known re-
quirements of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such requirements,
or that the requirements were themselves pretextual or were
applied as a pretext for discrimination; and (3) that antiunion
animus contributed to the decision not to hire the applicants.
Once this is established, the burden will shift to the respond-
ent to show that it would not have hired the applicants even in
the absence of their union activity or affiliation.
The FES framework was modified by the Board in Toering
Electric Co., 351 NLRB 225, 232–234 (2007).11 The Board
found that in salting cases, the General Counsel bears the ulti-
mate burden of proving the applicant’s genuine interest in em-
ployment. This burden has two components: (1) that there was
an application for employment; and (2) that if the employer
contests the applicant’s actual interest employment, the General
Counsel must prove by a preponderance of the evidence that
that the applicant was genuinely seeking to establish an em-
ployment relationship with the employer.
Another case which is not directly applicable to the proceed-
ing on the merits before me, but which obviously has great
bearing on the litigation posture of this is case is Oil Capitol &
Sheet Metal, 349 NLRB 1348 (2007). In that case the Board
held that the General Counsel, as part of his existing burden of
proving a reasonable gross backpay amount due, must present
affirmative evidence that the salt/discriminatee, if hired, would
have worked for the employer for the backpay period claimed
in the General Counsel’s compliance specification.

11 The same day that the Board issued its decision in Toering, it is-
sued a decision in Tradesman, Inc., 351 NLRB 399 (2007), in which
the employer’s business was virtually identical to that of the Respond-
ent in this case.
AEROTEK, INC. 15
Aerotek was hiring; all four alleged discriminatees applied for
work with Aerotek and were genuinely interested in employ-
ment. All four had training and experience relevant for the jobs
for which Aerotek was hiring
I conclude that, applying the standards set forth in FES and
Toering, the General Counsel has established that Respondent
violated Section 8(a)(3) and (1) in refusing to consider for hire
and refusing to hire Brett Johnson, Tim Hendershot, Alan
Winge, and Tim Jankowski. Respondent has not met its burden
of showing that it would not have hired the alleged discrimi-
natees even in the absence of the indication that they intended
to engage in organizing activity. Aerotek placed numerous
employees after the four discriminatees applied for employment
at Aerotek. All four were licensed electricians with experience
and training relevant to virtually all these jobs.12 Although
Aerotek contests the discriminatees' interest in the available
jobs, I conclude that the General Counsel has met its burden
under Toering.13
In finding that all four were interested in the posted jobs, I
rely on the fact that Hendershot, Winge, and Jankowski were
unemployed or underemployed at the time of their application
to Aerotek and have worked in their trade when jobs became
available. I also rely on the fact that at least 8 other union
members worked as salts for the companies to which they were
sent by Aerotek. As to Johnson, he has demonstrated his will-
ingness to work for nonunion companies in furtherance of his
organizing goals, as demonstrated by his completion of a job
assignment with Tradesman in March 2011 (Tr. 232–234, GC
Exh. 41).14
Respondent’s reliance on the Toering decision in arguing
that Winge did not apply for employment with Aerotek is mis-
placed both factually and legally. The Board stated in Toering
that the fact that applications are submitted in batch, is not in
and of itself sufficient to destroy genuine applicant status, if the
submitter has the requisite authorization from the individual
applicants, 351 NLRB at 233 fn. 51. Respondent does not con-
tend that Johnson had no such authorization from Hendershot
and Jankowski. However, Respondent contends that Johnson
was not authorized to submit Winge’s application to it. How-
ever, one week prior to the submission, Winge authorized John-
son to submit his resume to Sentry Engineering and any other
salting targets of the Union. Given that fact that Winge was
unemployed at the time, I conclude that Winge, through John-

12 Respondent concedes as much at p. 20 of its brief.
13 Respondent’s argument at pp. 20–22 of its brief, that the alleged
discriminatees were included in Aerotek’s hiring process, is somewhat
inconsistent with its position that they were not genuinely interested in
employment and its argument that Winge never applied to work at
Aerotek.
14 On October 27, 2011, Recruiter Dan Mehmen asked Johnson if he
was interested in a foreman’s position when Johnson, using an alias,
called Mehmen to give a reference for another union salt. Johnson did
not follow up on that offer, Tr. 283–284, Exh. R-25. I conclude that
Johnson’s failure to express interest in a foreman’s position, mentioned
to him under an assumed name, has no bearing on whether he had a
genuine interest in offers of employment made in response to applica-
tions made in his real name.
son, did in fact apply for employment at Aerotek.15
Hendershot’s genuine interest in employment is established
in part by his uncontradicted testimony that he attempted to
respond to Curtis Coatman’s call twice and left voicemail mes-
sages to which he received no response.
The General Counsel made an initial showing of discrimination
which was not rebutted by Respondent
I infer discriminatory motive from several factors. First, that
Respondent made no attempt to place any employee who indi-
cated that they were a voluntary organizer, with the exception
of what appears to be Curtis Coatman’s accidental contact with
Hendershot. I infer that Coatman’s call was accidental and not
meant to be an attempt to place Hendershot from the fact that
Respondent neither contradicted Hendershot’s testimony that
he replied to Coatman nor offered an explanation for that fact
that it did not return his subsequent telephone calls.
I find Respondent’s explanation for failing to contact John-
son, i.e., his wage history, to be pretextual and further evidence
of discriminatory motive. First of all, Respondent does not
have a rule or policy against placing employees in jobs lower
than their prior wages (Tr. 211–212). Secondly, Respondent in
fact placed several employees in jobs paying considerably less
than they had earned previously. Thus Respondent did not
show that it lawfully refused any of the alleged discriminatees
based on a consistently applied wage comparison policy,
Tradesman International, 351 NLRB 579, 582–583 (2007).
In the end result, Respondent has not offered any credible
nondiscriminatory explanation for failing to place the four dis-
criminatees in the many jobs that were available to them. The
reasons Respondent gives for failing to consider or hire Jan-
kowski, Hendershot, and Winge are totally lacking in specifics
(Tr. 102–105). Thus, for Jankowski and Hendershot, Jacob
Shank speculated that they were not hired “probably” due to
timing rather than lack of qualifications. I infer discriminatory
motive from the fact that Respondent bypassed the discrimi-
natees in favor of employees who were not more qualified and
probably, in some cases, clearly less qualified, Flour Daniel,
Inc., 350 NLRB 702, 705–706 (2007).
I also infer discriminatory motive from the disparate way
Respondent treated the applications of the four discriminatees
as opposed to those of David Myhr and Jeffrey Thomsen. On
August 8, Jacob Shank told Brett Johnson that Respondent was
only seeking to place apprentices. On August 19, Shank knew
that Fremont Electric wanted two journeymen electricians.
Recruiter Dan Mehmen attempted to contact David Myhr on
August 24 and then reached him and Jeffrey Thomsen on Au-

15 The fact that Winge showed up at the hearing and testified as to
his interest in placement by Aerotek is one of many factors that distin-
guishes his case from that of the employees discussed in Toering at 351
NLRB 234. Other factors are that he was unemployed and that the
resume submitted to Aerotek was current. I would also note that Re-
spondent entered Winge into its RWS database on August 12, 2012
(GC 34 Exh. He thus became a potential candidate for any position
available through Aerotek, Tr. 443, 558–560, 590. Respondent’s
placement and maintenance of Winge’s name in RWS (see R. br. at 22)
is inconsistent with its contention that he is not a job applicant with
Aerotek.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
gust 26. Myhr and Thomsen were placed with Fremont on
August 30 and 31, respectively. Respondent has not offered
any explanation as to why it did not attempt to inform any of
the discriminatees of the openings for journeymen at Fremont,
or why it placed Myhr and Thomsen at Fremont instead of the
discriminatees (GC Exhs. 9, 10, and 11).16
With regard to Winge, Respondent offered no reason for its
failure to contact him. Shank was also unable to definitively
state the reason Brett Johnson was not placed with one of Aero-
tek's customers (Tr. 196). Without such an explanation, I con-
clude that Aerotek failed to consider the discriminatees for hire
or place them with their customers because they indicated that
they intended to organize after they were hired. Even if Re-
spondent knowingly hired several union members or support-
ers, which I find it did not, that would not negate the strong
evidence that it discriminated against Hendershot, Winge, Jan-
kowski, and Johnson because of their declared union organizer
status, Hi-Tech Interiors, Inc., 348 NLRB 304 (2006).
Respondent’s disabling conflict argument
On February 29, 2012, Brett Johnson and another Local 22
representative visited the offices of Interstates Electric in Oma-
ha and met with Interstates Manager Lee Heitmann. Johnson
told Heitman that IBEW members were working on Interstates’
Tyson Foods job. He then offered to “cut out the middleman”
and refer electricians directly to Interstates. Heitmann declined
the offer. On March 7, Johnson called the owner of Interstates
and offered the union’s direct assistance in furnishing manpow-
er to the Tysons Foods job (R. Exh. 23, Tr. 267).
Respondent appears to contend that this conduct entitled it to
deny employment to all four of the discriminatees. However,
since it did not rely on this in failing to hire any of the four
alleged discriminatees, it cannot defend against the allegations
in the complaint on this basis, Aztech Electric Co., 335 NLRB
260, 265 (2001). Moreover, there is no basis for denying
Winge, Hendershot, and/or Jankowski instatement or a full
backpay remedy on the basis of misconduct on the part of Brett
Johnson, Crown Plaza LaGuardia,, 357 NLRB 95 (2011), and
cases cited therein. However, whether Brett Johnson’s backpay
should be tolled and/or whether Respondent should be required
to “instate” Johnson is a different issue.
In North American Dismantling, 341 NLRB 665 (2004), the
Board found an employee was not entitled to reinstatement and
limited his backpay due to his employer’s awareness that the
employee had attempted to steal work from the Respondent.17
Under a strict reading of Board precedent, there is no basis for
denying Brett Johnson instatement or limiting Respondent’s
backpay liability because there is no evidence as to when Aero-
tek became aware of Johnson’s solicitation of Interstates’ busi-
ness prior to the second day of the instant hearing (Oct. 30,

16 Dan Mehmen, did not, for example, testify that he placed the most
recent applicants or that Myhr and Thomsen were more qualified than
the discriminatees, which in any event does not appear to be the case.
17 Other cases in which the Board has found an employee’s activities
in competition with the employer to be unprotected are ATC/Forsyth,
341 NLRB 501 (2004); Associated Advertising Specialists, Inc., 232
NLRB 50, 53–54 (1977); and Kenai Helicopters, 235 NLRB 931, 934–
936 (1978).
2012), and there is no testimony by Respondent that it would
have refused to hire him on that basis, Smucker Co, 341 NLRB
35 (2004).
The Board in Smucker Co. relied in part on the testimony of
Smucker’s human resources manager that he would have
deemed the discriminatees’ employment application invalid had
he known that they had cheated on their preemployment skills
test. The Board did not specifically reject Judge Schlesinger’s
conclusion that the discriminatees’ conduct was “Malum in se.”
(conduct generally regarded as wrong regardless of whether it
has been expressly prohibited by statute or other means).
I conclude that Johnson’s conduct in attempting to exclude
Aerotek from Interstates work is so obviously inconsistent with
the duties of an employee that his backpay should be tolled as
of February 29, 2012, when he visited Interstates’ office. On
the other hand, neither Winge, Hendershot, nor Jankowski en-
gaged in any activity that is unprotected and which would war-
rant Aerotek from discriminating against any of them now or in
the future.
Respondent violated Section 8(a)(1) as alleged Linsey Rohman
and Kristin Breon were agents of Aerotek when telling employ-
ees that their wages were confidential
Board law regarding the principles of agency is set forth and
summarized in its decision in Pan-Oston Co., 336 NLRB 305
(2001). The Board applies common law principles in determin-
ing whether an employee is acting with apparent authority on
behalf of the employer when that employee makes a particular
statement or takes a particular action. Apparent authority re-
sults from a manifestation by the principal to a third party that
creates a reasonable belief that the principal has authorized the
alleged agent to perform the acts in question. Either the princi-
pal must intend to cause a third person to believe the agent is
authorized to act for him, or the principal should realize that its
conduct is likely to create such a belief.
The Board also stated in Pan-Oston, supra, that the test for
determining whether an employee is an agent of the employer
is whether, under all the circumstances, employees would rea-
sonably believe that the employee in question was reflecting
company policy and speaking and/or acting for management.
The Board considers the position and duties of the employee in
addition to the context in which the behavior occurred. It also
stated that an employee may be an agent of the employer for
one purpose but not another.
In the instant case there is no question but that employees
speaking to Rohman and Breon about wages would reasonably
believe that the two recruiters were speaking for Aerotek man-
agement and were conveying company policy. In communi-
cating to employees that wages were confidential and that em-
ployees should not discuss them, Respondent, by Rohman and
Breon, violated Section 8(a)(1) of the Act, Freund Baking Co.,
336 NLRB 847 (2001). The fact that employees were not dis-
ciplined nor threatened with discipline is irrelevant, Independ-
ent Stations Co., 284 NLRB 394, 396–397 (1987); Cintas
Corp., 344 NLRB 943, 945–946 (2005). The communication of
such a rule or policy violates Section 8(a)(1). It is clear from
the record also that Rohman and Breon had no reason to know
that they were not communicating company policy, assuming
AEROTEK, INC. 17
that was the case.
CONCLUSION OF LAW
Respondent violated Section 8(a)(3) and (1) by refusing to
consider or hire Brett Johnson from about August 1, 2011, to
February 29, 2012, and refusing to consider for hire and refus-
ing to hire Tim Hendershot, Tom Jankowski and Alan Winge
since about September 1, 2011.
Respondent violated Section 8(a)(1) in telling employees that
wages were confidential and are not be discussed with other
employees.
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.
The Respondent having discriminatorily refused to hire Brett
Johnson, Tim Hendershot, Tom Jankowski, and Alan Winge, it
must make them whole for any loss of earnings and other bene-
fits, consistent with the Board’s decision in Oil Capitol and
Sheet Metal, 349 NLRB 1348 (2007), computed on a quarterly
basis less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest compound-
ed daily, Kentucky River Medical Center, 356 NLRB 6 (2010),
as computed in New Horizons, 283 NLRB 1173 (1987).18
Respondent shall file a report with the Social Security Ad-
ministration allocating backpay to the appropriate calendar
quarters. Respondent shall also compensate the discriminatee(s)
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year, Latino Express, Inc., 359 NLRB 518 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended19
ORDER
The Respondent, Aerotek, Inc., Omaha, Nebraska, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to consider for employment or refusing to hire
any job applicant because the applicant is a union organizer or
seeks union representation.
(b) Telling any employee that wages are confidential and are
not to be discussed with others.
(c) 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 of the Board’s Order, offer immediate
employment to Tim Hendershot, Tom Jankowski and Alan

18 With regard to Brett Johnson this obligation is tolled as of Febru-
ary 29, 2012.
19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
Winge in the positions for which they applied, or, if such posi-
tions no longer exist, to substantially equivalent positions.
(b) Make Tim Hendershot, Tom Jankowski, and Alan Winge
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them in the manner set forth
in the remedy section of the Board’s decision. Make Brett
Johnson whole through February 29, 2012.
(c) Within 14 days of the Board’s Order, remove from Re-
spondent’s files any reference to the unlawful refusal to hire
Tim Hendershot, Tom Jankowski, and Alan Winge and within
3 days thereafter, notify them in writing that this has been done
and that the refusal to hire them will not be used against them..
(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 rec-
ords, 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
Omaha, Nebraska facility copies of the attached notice marked
“Appendix.”20 Copies of the notice, on forms provided by the
Regional Director for Region 17, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, 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 employ-
ees employed by the Respondent at any time since August 1,
2011.
In addition to physical posting of paper notices, notices shall
be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. March 11, 2013
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

20 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
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 consider for hire or refuse to hire any
job applicant because we believe that they intend to try to or-
ganize employees.
WE WILL NOT tell employees that they are not to discuss
wages with others.
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 of the Board’s Order, offer imme-
diate employment to, Tim Hendershot, Tom Jankowski, and
Alan Winge in the positions for which they applied, or, if such
positions no longer exist, to substantially equivalent positions.
WE WILL make Tim Hendershot, Tom Jankowski, and Alan
Winge whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them in the man-
ner set forth in the remedy section of the Board’s decision. WE
WILL make Brett Johnson whole for any such losses through
February 29, 2012.
WE WILL, within 14 days of the Board’s Order, remove from
our files any reference to the unlawful refusal to hire Tim Hen-
dershot, Tom Jankowski, and Alan Winge and WE WILL, within
3 days thereafter, notify them in writing that this has been done
and that the refusal to hire him will not be used against them.
AEROTEK, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/17-CA-071193 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.