Hyundai Rotem USA Corporation and Aerotek, Inc. Joint Employer

National Labor Relations Board - Administrative Judge Opinions

Sep 9, 2011

04-CA-037657 (N.L.R.B. Sep. 9, 2011)

JD–54–11
Philadelphia, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
HYUNDAI ROTEM USA CORPORATION
and AEROTEK, INC., JOINT EMPLOYERS
and Case 4–CA–37657
TRANSPORT WORKERS UNION OF
PHILADELPHIA, LOCAL 234, AFL–CIO
Barbara C. Joseph, Esq., for the General Counsel.
Arlene J. Angelo, Esq. (Ballard Spahr LLP), of
Philadelphia, Pennsylvania, for Respondent
Hyundai Rotem USA Corporation.
Marvin Weinberg, Esq. (Fox Rothschild LLP),
of Philadelphia, Pennsylvania, for Respondent
Aerotek, Inc.
Claiborne S. Newlin, Esq. (Meranze, Katz, Gaudioso,
& Newlin, PC), of Philadelphia, Pennsylvania,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. On August 26, 2010,1 Transport Workers
Union of Philadelphia, Local 234, AFL–CIO (the Union or Charging Party), filed a
representation petition in Case 4–RC–21737 seeking to represent certain of Respondent Hyundai
Rotem USA Corporation (HRUSA) and Respondent Aerotek, Inc., employees as a joint
employer (Respondents). At the same time the Union filed an unfair labor practice charge in
Case 4–CA–37657 alleging that the Respondents violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act) by discharging employee Donald Kleinback on August 25 because
of his union activities.
On September 7, the Respondents, as joint employers, signed a stipulated election
agreement setting an election date of October 1 for employees employed at the Respondents’
facilities located at 4500 Germantown Avenue and 2400 Weccacoe Avenue in Philadelphia,
Pennsylvania.

1 All dates are in 2010 unless otherwise indicated.
JD–54–11
Philadelphia, PA
5
On September 9, employee Joseph Flynn filed a charge in Case 4–CA–37677 alleging
that the Respondents violated Section 8(a)(1) and (3) of the Act by discharging him on July 19
because of his union activities.
The Union lost the election and on October 8 filed objections to conduct affecting the 10
results of the election.
On October 15, the Union amended the charge in Case 4–CA–37657 to also allege that
the Respondents had restrained and coerced employees in the exercise of their Section 7 rights
and had maintained an illegal rule subjecting employees to discipline for discussing their 15
compensation and benefits with other employees in violation of Section 8(a)(1) of the Act.
On November 30, Flynn amended his charge in Case 4–CA–37677 to allege that the
Respondents terminated him not only because of his union activities, but also because he
concertedly complained about unsafe working conditions.20
The Union filed a charge on November 30, in Case 4–CA–37838 alleging that the
Respondents violated Section 8(a)(1) of the Act by engaging in unlawful interrogations,
surveillance, an assault, and issued Kleinback a written discipline because of his union activity in
violation of Section 8(a)(3) of the Act.25
An order consolidating cases, consolidated complaint, and notice of hearing in Cases 4–
CA–37657, 4–CA–37677, and 4–CA–37838, issued on December 29 setting forth the allegations
contained in the foregoing charges.
30
On January 4, 2011, a notice of hearing on objections to the election in Case 4–RC–
21737 issued. Also on that date the Regional Director for Region 4 of the National Labor
Relations Board (the Board), issued an order consolidating Cases 4–CA–37657, 4–CA–37677,
and 4–CA–37838, with Case 4–RC–21737 for hearing and ruling and decision by an
administrative law judge of the Board.35
The Respondents filed a timely answer to the consolidated complaint along with
affirmative and other defenses on January 11, 2011. The Respondents admit the service of the
charges, the jurisdictional facts for each Respondent, the job titles for most of the individuals
alleged to be supervisors/agents, the facts establishing their joint employer status, the legal 40
conclusion that they are joint employers, and the labor organization status of the Union. The
Respondents denied the substantive allegations of the complaint and affirmatively defend that
they had legitimate and substantial business justifications for discharging Kleinback and Flynn.
On February 9, 2011, the Regional Director issued an order severing cases because a 45
bilateral informal settlement agreement was reached by the parties in Cases 4–CA–37677, 4–
CA–37838, and portions of Case 4–CA–37657, and the Union requested withdrawal of its
objections in Case 4–RC–21737. Thus, Case 4–RC–21737 and paragraphs 6–12 and related
portions of paragraphs 13 and 14 were severed from the consolidated complaint, leaving only the
substantive allegations contained in paragraphs 5(a) and (b) of the consolidated complaint for 50
hearing.
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3
I heard the remaining allegations on February 10, 2011, in Philadelphia, Pennsylvania. 5
Those allegations concern the maintenance and enforcement, by the Respondents, of a portion of
the confidentiality provision contained in the employees’ employment agreement that prohibits
them from discussing their compensation “in any manner, with the client, the client’s employees
or any contract employees of the client.”
10
On the entire record, including my credibility determinations based on the demeanor of
the witnesses, as well as my credibility determinations based on the weight of the respective
evidence, established or admitted facts, inherent probabilities, and inferences drawn from the
record as a whole and, after considering the briefs filed by the Respondents, the Charging Party
and the counsel for the Acting General Counsel,2 I make the following15
FINDINGS OF FACT
I. JURISDICTION20
At all material times, HRUSA, a Pennsylvania a corporation with a facility at 2400
Weccacoe Avenue, Philadelphia, Pennsylvania (the Factory), has been engaged in the assembly
of rail cars. HRUSA, in conducting its business operations at the Factory, annually purchased
and received goods valued in excess of $50,000 directly from points outside the Commonwealth 25
of Pennsylvania. HRUSA 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.
At all material times, Aerotek, a Maryland corporation working at the Factory, has been
engaged in providing temporary work force staffing to other businesses including HRUSA. 30
Aerotek, in conducting its business operations at the Factory received in excess of $50,000 from
HRUSA for providing work force staffing services. Aerotek 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.
The Respondents admit and I find that the Union is a labor organization within the 35
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background40
Since at least February 2010, Aerotek has been providing personnel to perform work for
HRUSA at its Philadelphia facility located at 2400 Weccacoe Avenue (the Factory). These
employees are provided pursuant to an agreement between HRUSA and Aerotek. HRUSA and

2 The counsel for the Acting General Counsel’s unopposed motion to correct the transcript is
granted, except replace the first “a” on p. 11, L. 2 with “the.” Also on p. 11, L.12 replace
“enforces” with “enforced this.” I do not see a need for a correction on p. 75, L. 9.
JD–54–11
4
Aerotek admit that they exercise control over the labor relations policies with respect to the 5
employees who are supplied to, and work for, HRUSA, but are paid by Aerotek. Furthermore
they admit that they codetermine the terms and conditions of employment of those as joint
employers.
The appropriate collective-bargaining unit as described in the parties stipulated election 10
agreement is:
All full time and regular part time production employees, maintenance employees,
warehouse employees, quality control and testing employees jointly employed by [the
Respondents] at the facilities located at 4500 Germantown Avenue and 2400Weccacoe
Avenue, Philadelphia, Pennsylvania. (GC Exh. 1(d).)15
It is not disputed that all employees of the Respondents, who are hired through Aerotek,
must complete, date, and sign a three-page “Employment Agreement.” (GC Exh. 2.) After the
agreement is completed it is signed by the applicant and a Aerotek representative.
20
Section 1 of the agreement, “Ratification,” states in relevant part: You understand and
acknowledge that this offer of temporary employment with AEROTEK, is subject to final
approval by the Client and that you shall not be entitled to any wages or employment unless
actually hired by Aerotek to work the specific assignment for the Client pursuant to this
agreement.25
Section 3 of the agreement, “Compensation,” sets forth hourly and overtime rates, bonus
eligibility, holiday pay, accrual of paid personal time and accrual of paid vacation time. Section
5, “Confidentiality” ends with the following: YOU FURTHER AGREE NOT TO DISCUSS
THE COMPENSATION STATED IN THIS AGREEMENT, OR THE COMPENSATION 30
PAID TO YOU BY AEROTEK PURSUANT TO ANY PRIOR EMPLOYMENT
AGREEMENT, IN ANY MANNER, WITH THE CLIENT, THE CLIENT’S EMPLOYEES OR
ANY CONTRACT EMPLOYEE OF THE CLIENT.
During the summer of 2010, the Union conducted an organizing campaign at the35
Weccacoe Avenue facility. The Union talked to employees and distributed literature to them
outside of the facility. The Union filed an RC petition to represent the mechanical and electrical
final assembly rail cars employees working on HRUSA rail cars though TTA, another contact
employer at the Weccacoe Avenue facility. The petition was amended on June 28 to add
HRUSA as a joint employer, with TTA, of those employees. On August 5, the Union won the 40
election in the Hyundai and TTA joint employer unit and was certified to represent the
employees on August 16.
B. Aerotek Supervisor Philip Lee has Employee Visitors
45
Supervisor Philip Lee is Aerotek’s account recruiting manager and an admitted
supervisor of the Respondents within the meaning of Section 2(11) of the Act. His office is in
the Weccacoe Avenue facility. Donald Kleinback was a welder at the Weccacoe Avenue
facility. On June 24, shortly after the Union filed the petition to represent the TTA employees,
Kleinback went to Lee’s office to get a free T-shirt. When he entered the office fellow 50
employees welders Paul Fisher and Matt Padro were talking with Lee. Kleinback testified that
JD–54–11
5
he did not hear the conversation, but was later told by the employees that they were talking to 5
Lee about pay.
Lee’s best recollection is that Fisher, Kleinback, and another employee came to his office
to get T-shirts. After getting the T shirts one of the men closed the door and Fisher began talking
about the upcoming TTA election. Fisher said “with the things that are going on with TTA right 10
now, we’re going to want a pay increase. If that doesn’t happen, I don’t know what’s going to
happen.” Lee did not respond and the men left.
C. Lee Reacts
15
Paragraph 5(b) of the complaint alleges that on or about June 24, 2010, the Respondents,
by Phil Lee, enforced the confidentiality provision set forth above by telling employees that they
were not to discuss their pay with each other. In support of this allegation Kleinback testified
that also June 24, at approximately 2 p.m. he and about 10 other welders were going outside for
their break. As they were leaving, Lee told them to gather around him. Kleinback testified that 20
Lee appeared to be upset. Lee told the employees that he did not want them talking to each other
about their wages. Lee also said, accordingly to Kleinback, that he did not want them talking to
TTA employees about the wages the welders were paid. Lee concluded by telling the welders
that he did not want them bringing wages up and trying to leverage him for more money, that
they had signed a contract and that was the wage that they would be getting.25
Lee denied ever telling employees not to discuss wages. Counsel for the Acting General
Counsel argues that Lee is not creditable and that his statements violated Section 8(a)(1) of the
Act.
30
On August 24, 2010, Kleinback was discharged for an unrelated reason. He filed an
unfair labor practice charge with the Board, and his charge was resolved by a non-Board
settlement agreement. With those events in mind I closely observed and listened to Kleinback’s
testimony in order to ascertain if he had a bias against the Respondents. I neither heard nor
observed any bias on Kleinback’s part. On the contrary he appeared to be a fully credible35
witness who exhibited excellent recall and testified in a candid and convincing manner. His
testimony was even more impressive because much of it related to a matter that was developed
on cross-examination.
In contrast to Lee, Kleinback clearly and without reservation identified Matthew Padro 40
and Paul Fisher as the welders who were in Lee’s office when he arrived. He denied going to
Lee’s office with Fisher and Padro and he twice emphatically denied being part of the
conversation with Lee. He testified that he overheard nothing of what was said and that all his
knowledge about what was said, was told to him by Fisher.
45
Lee identified the employees who were in his office as “Paul Fisher, to my best
recollection, I thought it was Paul Fritz, another welder and Don Kleinback.” (Tr. 59.) During
cross-examination, when asked to identify who was with Fisher he states, “I believe Paul Fritz
and Donald Kleinback.” (Tr. 64.) When asked if all three were present during the conversation
he answers “[t]o my recollection, yes.” Later he claims, “[f]rom what I remember all three were50
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6
there” the entire time. (Tr. 64.) When asked if he is sure he admits that he is not a “[h]undred 5
percent sure, I guess I’m not sure.” (Tr. 65.)
Lee’s lack of certainty is troubling. He claims that the employees made him feel “like I
was cornered in my small office.” (Tr. 68.) And consequently he sent an email to all Aerotek
employees because he “felt, you know, threatened to get—you know, to give them that increase. 10
If—you know, if I didn’t, I don’t know, because he (Fisher) just left it at I don’t know what’s
going to happen.” (Tr. 71.) Immediately after this statement he agrees with the counsel for the
Charging Party that he was not physically threatened. Counsel then asked if Lee felt threatened
because the men might unionize. Lee responds “possibly,” but then immediately contradicts
himself by stating, “I felt threatened because I had three grown men in my small office close the 15
door . . . and then say ‘we need a pay increase or I don’t know what’s going to happen.’ I don’t
know what to take from that.” (Tr. 72.) Lee previously averred that Fisher was the speaker for
the group and that the other men “didn’t say anything that—to help me out or say otherwise.”
I do not find Lee to be a credible witness. Surely Fisher’s statement that if the employees 20
did not get a pay increase he did not know what would happen, cannot in anyway be construed as
a threat of physical violence. Indeed, the Board has found, with court approval, that stronger
statements were nonthreatening and protected by the Act. Kiewit Power Constructors Co., 355
NLRB No. 150, slip op. at 3–4 (2010), enfd. —F.3d—, 191 L.R.R.M. (BNA) 2242 (D.C. Cir.
Aug. 3, 2011) (No. 10-1289, 10-1312) (Physical threat must be unambiguous). In fact when the 25
statement is considered in the context of the pending TTA union representation election it may
fairly be assumed that Fisher was implying that a union representation election might be in the
offing.
I also find it incredible that Lee feels cornered in his small office, with the door closed,30
by three of his employees and yet he cannot say with absolute certainty that one of his employees
was present the entire time.
I find it suspicious that Kleinback was not subject to a vigorous examination as to how he
could be present in a small enclosed office with three other men, only one of whom spoke, and 35
yet claim that he did not hear a word that was said.
I find it incomprehensible that Lee told no one of his ordeal, nor did he discipline any of
his alleged tormentors. He claims that he felt that “it” could handled by sending an email to all
Aerotek employees. (GC Exh. 3.)40
Shortly after ordering the welders not to discuss their wages, he sent an email to the 50 or
60 Aerotek employees who work at the facility. In addition to reminding them that they all
signed the employment agreement (GC Exh. 2.), he attached a copy of the agreement to the
email, and reproduced verbatim, the following part of the confidentiality section: YOU 45
FURTHER AGREE NOT TO DISCUSS THE COMPENSATION STATED IN THIS
AGREEMENT, OR THE COMPENSATION PAID TO YOU BY AEROTEK PURSUANT TO
ANY PRIOR EMPLOYMENT AGREEMENT, IN ANY MANNER, WITH THE CLIENT,
THE CLIENT’S EMPLOYEES OR ANY CONTRACT EMPLOYEE OF THE CLIENT.
50
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As a “furthermore” he quotes from the ratification section of the agreement which states, 5
“that Aerotek may terminate your employment, with or without cause, at any time.” He then
warns the employees that, “if I am threatened again or leveraged with inquiries of pay increases
by recent events with TTA, I will resort to applying the ramifications of this agreement.” (GC
Exh. 3.)
10
The counsel for the Acting General Counsel contends that the Respondents through Lee,
it’s supervisor, violated Section 8(a)(1) by informing its employees they could be terminated for
discussing their wages and benefits “in any manner, with the client, the client’s employees or any
contract employees of the client.
15
D. Discussion
“[W]age discussions among employees are considered to be at the core of Section 7
rights.” Parexel International, LLC, 356 NLRB No. 82, slip op. at 3 (2011). “An employer’s
rule which prohibits employees from discussing their compensation is unlawful on its face.” 20
Danite Sign Co., 356 NLRB No. 124, slip op. at 1 fn. 1 and slip op. at 7, (2011) quoting Freund
Baking Co., 336 NLRB 847 (2001); Lutheran Heritage Village-Livonia, 343 NLRB 646, 646
(2004).
Based on the foregoing I find that the Respondents have violated Section 8(a)(1) of the 25
Act by promulgating a policy that explicitly prohibits employees from discussing their
compensation. Thus, under its confidentiality policy, which is part of its employment agreement,
Aerotek asserts that it may discharge any employees who discuss any facet of their compensation
with an employee of the client. At the Weccacoe Avenue location, which is the subject of the
charge, HRUSA and Aerotek are admitted joint employers. Because they are all employees of 30
Aerotek as well as employees of the client HRUSA, they are forbidden to discuss their
compensation with each other. The provision also prohibits discussing their compensation with
contract employees of the client, such as TTA.
Michael Burke, Aerotek’s director of business operations testified that it was his 35
understanding that TTA was not a staffing company and “we define contract people, is that they
are working through a staffing company.” He never identified the “we,” but based on the
credited testimony and Lee’s email it is obvious that Lee did not want the employees talking to
the TTA employees. Moreover Burke’s understanding appears to be inconsistent with footnote 2
of Aerotek’s brief:40
Aerotek has always interpreted ‘“contract employees hired by Aerotek’s clients”’
to exclude other Aerotek employees, but include individuals hired by their clients to
perform certain tasks. For instance, Mr. Kleinback was free to discuss his wages with
other Aerotek employees (or any union), but was not to discuss his wages with 45
employees hired by [TTA], a company providing [HRUSA] with certain contract
employees. (Emphasis in the original.)
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8
The footnote contains no citations to the record and there is no evidence that any employee was 5
ever told of Aerotek’s “interpretation” or Burke’s “understanding.” Laidlaw Transit, Inc., 315
NLRB 79, 83 (1994).
Based on the foregoing I find that the Respondents confidentiality provision contained in
their employment agreement explicitly restricts Section 7 activity and would likely have a 10
chilling effect on Section 7 rights such that the mere maintenance of the provision is an unfair
labor practice, even absent evidence of enforcement. See, e.g., NLRB v. Vanguard Tours, 981
F.2d 62, 67 (2d Cir. 1992) (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 fn. 10
(1945)).
15
1. Counsel for the Acting General Counsel’s additional argument
Counsel for the Acting General Counsel also submits that even if the provision did not
explicitly restrict Section 7 rights the provision is nonetheless unlawful “because the rule has
been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage Village-Livonia, 343 20
NLRB 646, 647 (2004).
Thus, Lee’s June 24 email set forth the overbroad confidentiality provision verbatim.
That provision prohibits the employees from discussing their current compensation, and all prior
compensation, earned pursuant to the Aerotek employment agreement, in any manner, with the 25
client, the client’s employees or any contract employee of the client.
The paragraph following the overbroad confidentiality provision is a single sentence.
That sentence instructs the employees to “look under section 1” of the employment agreement
where it is written that Aerotek may terminate the employees “with, or without cause, at any 30
time.”
In the final paragraph Lee warns the employees that if he is “threatened again or
leveraged with inquires of pay increases by recent events with TTA, I will resort to applying the
ramifications of [the employment] agreement.”35
Certainly the veiled reference to “recent events with TTA” is not lost on the employees.
It cannot be anything other than the Union soliciting the employees directly outside of the
facility, and the filing of an election petition with the Board to represent the TTA employees.
40
“The test of whether a statement is unlawful is whether the words could reasonably be
construed as coercive, whether or not that is the only reasonable construction.” Double D
Construction Group, 339 NLRB 303, 303–304 (footnote omitted) (2003). I find that Lee’s
email, which was sent to all employees at the facility who signed the Aerotek employment
agreement, satisfies the Board’s test.45
Counsel for the Acting General Counsel also argues that the statements made by Lee just
before sending his email are evidence that those employees who heard his statements would
reasonably construe the language of the confidentiality provision as a prohibition of the
employees’ Section 7 rights. Lee’s statements were absolute and made without reservation. He 50
told the 10 welders in no uncertain terms that they were not to speak about their wages among
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9
themselves, with any TTA employee, and to not even mention wages to Lee in an effort to 5
leverage him for more money. In short Lee’s actions on June 24 constituted a blanket
prohibition of the employees’ Section 7 rights to discuss wages and compensation, followed by a
direct threat of discharge if the employees questioned or leveraged Lee with inquires about pay,
all of which was predicated on the Respondents’ overly broad confidentiality provision.
10
2. The Respondents’ defenses
The Respondents argue that Aerotek’s confidentiality provision is premised on legitimate
and substantial business justifications. In support of this argument Burke testified that Aerotek is
in a very competitive business and if competitors learn of the employees’ wage rates they could 15
undercut Aerotek and be awarded the bid. The second reason offered by Burke was to prevent
the client from learning of Aerotek’s margin, i.e., the monetary difference between what Aerotek
charged the client and what it paid its employees. The final reason is to prevent the client’s
employees from learning that they were making less money than Aerotek employees, this would
cause problems for the client and Aerotek would not be awarded repeat business or would have 20
its contract canceled by the client.
These reasons are similar to those offered by another supplier of temporary workers in
NLS Group, 352 NLRB 744 (2008), incorporated by reference in 355 NLRB No. 169 (2010),
enfd. 645 F.3d 475 (1st Cir. 2011). There the administrative law judge found that although the 25
Respondent's confidentiality provision did restrict the employees’ Section 7 right to discuss their
terms and conditions of employment with third party clients, the Respondent’s proffered
business justifications outweighed the restriction on those rights. The Board had two
opportunities to adopt the judges’ decision and yet both times it found that the confidentiality
provision was unlawful because the employees reasonably would construe it to prohibit activity 30
protected by Section 7.
I find that the Respondents proffered business justifications do not outweigh the
employees’ right to discuss their wages. A right referred to as “the core of Section 7 rights,” “the
most critical element in employment,” and “the grist on which concerted activity feeds.” Parexel 35
International, LLC, 356 NLRB No. 82, slip op. at 3 (2011), and cited cases.
The Respondents also argue that the confidentiality provision is not overly broad because
it contains no “blanket” limitation on discussing wages with “other parties’ (which could be
construed by employees to include a union) or with co-workers.” The Respondents cite NLS 40
Group, above, as support. (R. Br. at 12.)
The Board, in NLS Group, after applying the general standard set forth in Lutheran
Heritage Village-Livonia, 343 NLRB 646 (2004), concludes “that the Respondent's
confidentiality provision is unlawful because employees reasonably would construe it to prohibit 45
activity protected by Section 7.” (Footnote omitted.) “The provision, by its clear terms,
precludes employees from discussing compensation and other terms of employment with ‘other
parties.’ Employees would reasonably understand that language as prohibiting discussions of
their compensation with union representatives.” (at 745.)
50
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10
I have previously found that the confidentiality provision, both as written and as enforced 5
by Lee, prohibits the Respondents’ employees from discussing compensation among themselves,
HUSA employees, and TTA employees, all of whom are literally coworkers. Counsel for the
Acting General Counsel also provides a plethora of case support for the contention that the
Board has found employee communications about wages and working conditions to be protected
concerted activities under Section 7 when directed to numerous other entities apart from co-10
workers and unions. (GC Br. at 14.) Suffice it to say, as did the United States Court of Appeals
for the First Circuit, that “since its 1990 decision in Kinder-Care Learning Ctrs., 299 NLRB
1171 (1990), the Board has consistently held that when a rule’s plain language restricts
employees’ ability to communicate their conditions of employment to third parties it violates
section 8(a)(1).” (Citation omitted.) NLRB v. Northeastern Land Services Ltd., 645 F.3d 475, 15
483 fn. 4 (1st Cir. 2011), enfg. 352 NLRB 744 (2008).
Based on the foregoing and the record as a whole I find that the Respondents violated
Section 8(a)(1) of the Act by maintaining a provision in the confidentiality section of their
employment agreement explicitly prohibiting employees from discussing their wages and 20
benefits “in any manner, with the client, the client’s employees or any contract employee of the
client.” I further find that the Respondents violated Section 8(a)(1) when, on June 24, 2010,
Phillip Lee, its supervisor, explicitly restricted the employees’ Section 7 rights by orally ordering
them not to discuss their wages among themselves or with any TTA employees. I also find that
Lee violated Section 8(a)(1) when, on June 24, he sent an email to all Respondents’ employees at 25
the facility. In his email Lee warned the employees that they could be terminated for discussing
their wages and benefits “in any manner, with the client, the client’s employees or any contract
employee of the client.” Attached to his email is a copy of the employment agreement and the
overbroad confidentiality provision is quoted verbatim in the email. Accordingly, I find that the
overbroad confidentiality provision “has been applied to restrict the exercise of Section 7 rights,” 30
which, in addition to the provision being an explicit restriction on those rights, is another reason
that overbroad confidentiality provision is unlawful. Lutheran Heritage, above at 647.
CONCLUSIONS OF LAW
35
1. The Respondents Hyundai Rotem USA Corporation and Aerotek, Inc., are joint
employers within the meaning of the Act and have been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Transport Workers Union of Philadelphia, Local 234, AFL-CIO is a labor 40
organization within the meaning of Section 2(5) of the Act.
3. The Respondents have violated Section 8(a)(1) of the Act by the following conduct.
(a) Maintaining or enforcing a provision in its employment agreement under the heading, 45
“Confidentiality” that contains the following language: “YOU FURTHER AGREE NOT TO
DISCUSS THE COMPENSATION STATED IN THIS AGREEMENT, OR THE
COMPENSATION PAID TO YOU BY AEROTEK PURSUANT TO ANY PRIOR
EMPLOYMENT AGREEMENT, IN ANY MANNER, WITH THE CLIENT, THE CLIENT’S
EMPLOYEES OR ANY CONTRACT EMPLOYEE OF THE CLIENT.”50
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(b) Promulgating, maintaining, or enforcing an oral rule prohibiting employees from 5
discussing wages, hours, benefits, and other terms and conditions of employment among
themselves, with other employees or with nonemployees.
(c) Threatening employees by email with discharge if they discuss their wages, hours,
and other terms and conditions of employment among themselves, with other employees, or with 10
nonemployees, and referencing the overly broad confidentiality provision in the email.
2. The unfair labor practices set forth above affect commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
15
REMEDY
Having found that the Respondents have engaged in certain unfair labor practices, I shall
order them to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having found that the Respondents maintained an 20
overbroad confidentiality provision in its employment agreement, I shall order the Respondents
to revise or rescind the provision and to notify its employees, in writing, that it has done so.
Hyundai America Shipping Agency, 357 NLRB No. 80 (2011).
Respondent HRUSA contends that notwithstanding their admitted joint employer status 25
with Aerotek it should not be held liable for any violations found with respect to Aerotek’s
maintenance and/or enforcement of its confidentiality provision.
It is well settled that “[a]s joint employers, each is responsible for the conduct of the
other and whatever unlawful practices are engaged in by the one must be deemed to have been 30
committed by both . . . .” Ref-Chem Co., 169 NLRB 376, 380 (1968), enf. denied on other
grounds 418 F.2d 127 (5th Cir. 1969). Respondent HRUSA relies on Capital EMI Music, 311
NLRB 997 (1993), enfd. 23 F.3d 399 (4th Cir. 1994) (Table), as an exception to the foregoing,
albeit a narrow one. In Capital EMI Music, there was a nonacting joint employer with no daily
involvement with the employees, and the alleged violations were premised on antiunion motive. 35
Respondent HRUSA admittedly is an active participant in the employment relationship, and
there are no findings of unlawful motive. Respondent HRUSA’s counsel suggests that the Board
left open the possibility of expanding the holding in Capital EMI Music. I believe that had the
Board wanted to expand the holding in Error! Not a valid link., it would have done so at some point
during the intervening 18 years. In any case such an expansion is the province of the Board, not 40
that of an administrative law judge.
I reject Respondent HRUSA’s argument and I will direct that it and Respondent Aerotek
sign the notice as joint employers and that they post the notice in the Germantown and Weccacoe
Avenue locations.45
I shall also order that Respondent Aerotek sign and mail a separate notice to all current
and former employees employed under the employment agreement that has been found to
contain the overbroad confidentiality provision. (GC Exh. 2.) In agreement with the counsel for
the Acting General Counsel I find that this mailing is necessary because employees working 50
under the agreement work in widely scattered locations for a multitude of clients. NLS Group,
JD–54–11
12
352 NLRB 744, 746 (2008), incorporated by reference in 355 NLRB No. 169 (2010), enfd. 645 5
F.3d 475 (1st Cir. 2011). The record is silent regarding a specific date when the overbroad
confidentiality provision became part of the employment agreement. Accordingly, I accept the
counsel for the Acting General Counsel’s suggestion that February 25, 2010, 6 months before the
filing of the charge in this case, is an appropriate starting date. Based on the evidence the
mailing shall be limited to current and former employees located in Southeastern Pennsylvania. 10
That area encompasses Chester, Delaware, Philadelphia, Montgomery, and Bucks counties. (Tr.
at 36.) (Cf. id. at 744, fn. 4.) (Respondent stipulated that the contract language was the same or
similar for all employees.)
On these findings of fact and conclusions of law and on the entire record, I issue the 15
following recommended3
ORDER
The Respondents, Hyundai Rotem USA Corporation and Aerotek, Inc., joint employers, 20
Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing a provision in its employment agreement under the heading,25
“Confidentiality” that contains the following language: “YOU FURTHER AGREE NOT TO
DISCUSS THE COMPENSATION STATED IN THIS AGREEMENT, OR THE
COMPENSATION PAID TO YOU BY AEROTEK PURSUANT TO ANY PRIOR
EMPLOYMENT AGREEMENT, IN ANY MANNER, WITH THE CLIENT, THE CLIENT’S
EMPLOYEES OR ANY CONTRACT EMPLOYEE OF THE CLIENT.”30
(b) Promulgating, maintaining, or enforcing an oral rule prohibiting employees from
discussing wages, hours, benefits, and other terms and conditions of employment among
themselves, with other employees or with nonemployees.
35
(c) Using the overbroad confidentiality provision described in paragraph 1(a) above, to
threaten employees with discharge or discipline if they discuss wages, hours, benefits, and other
terms and conditions of employment among themselves, with other employees or with
nonemployees.
40
(d) 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 effectuate the policies of the Act.
45
(a) Within 14 days of the Board’s Order, revise or rescind the provision in its
employment agreement under the heading, “Confidentiality” that contains the following

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–54–11
13
language: “YOU FURTHER AGREE NOT TO DISCUSS THE COMPENSATION STATED 5
IN THIS AGREEMENT, OR THE COMPENSATION PAID TO YOU BY AEROTEK
PURSUANT TO ANY PRIOR EMPLOYMENT AGREEMENT, IN ANY MANNER, WITH
THE CLIENT, THE CLIENT’S EMPLOYEES OR ANY CONTRACT EMPLOYEE OF THE
CLIENT.” and notify the employees at both of the Respondents’ Philadelphia locations, in
writing, what action has been taken.10
(b) Within 14 days after service by the Region, post at both its Philadelphia, Pennsylvania
facilities copies of the attached notice marked “Appendix A.”4 Copies of the notice, on forms
provided by the Regional Director for Region 3 after being signed by the Respondents’
authorized representative, shall be posted by the Respondents and maintained for 60 consecutive 15
days in conspicuous places including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondents customarily communicate with their employees by such means.
Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, 20
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondents have gone out of business or closed the facilities involved in these
proceedings, the Respondents shall duplicate and mail, at their own expense, a copy of the notice
to all current employees and former employees employed by the Respondents at any time since
February 25, 2010.25
(c) Within 14 days after service by the Region, Respondent Aerotek shall duplicate and
mail, at its own expense, copies of the attached notice marked “Appendix B.”
5
Copies of the
notice, on forms provided by the Regional Director for Region 3, after being signed by Aerotek’s
authorized representative, shall be mailed to the last known address of all current and former 30
employees employed by the Respondent, since February 25, 2010, in the Southeastern
Pennsylvania area. Respondent Aerotek shall also notify all current and former employees in
writing, what action it has been taken regarding the unlawful “Confidentiality” provision.
(d) Within 21 days after service by the Region, the Respondents will file with the 35
Regional Director a sworn certification of responsible officials on a form provided by the Region
attesting to the steps that the Respondents have taken to comply.

4If 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
5 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–54–11
14
5
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of
the Act not specifically found.
Dated, Washington, D.C. September 9, 2011.
10
____________________
JOHN T. CLARK
ADMINISTRATIVE LAW JUDGE
15
JD–54–11
Philadelphia, PA
APPENDIX A
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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain or enforce the provision in our employment agreement under the
heading, “Confidentiality” that contains the following language: “YOU FURTHER AGREE
NOT TO DISCUSS THE COMPENSATION STATED IN THIS AGREEMENT, OR THE
COMPENSATION PAID TO YOU BY AEROTEK PURSUANT TO ANY PRIOR
EMPLOYMENT AGREEMENT, IN ANY MANNER, WITH THE CLIENT, THE CLIENT’S
EMPLOYEES OR ANY CONTRACT EMPLOYEE OF THE CLIENT.”
WE WILL NOT promulgate, maintain, or enforce an oral rule prohibiting you from discussing
wages, hours, benefits, and other terms and conditions of employment among yourselves, with
other employees or with nonemployees.
WE WILL NOT threaten you with discipline and discharge if you discuss your wages, hours,
benefits, and other terms and conditions of employment among yourselves, with other
employees, or with nonemployees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
JD–54–11
Philadelphia, PA
WE WILL notify you in writing as to whether we have revised or rescinded the overbroad
confidentiality provision contained in our employment agreement.
HYUNDAI ROTEM USA CORPORATION
and AEROTEK, INC.
(Joint Employers)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, 7th Floor, Philadelphia, PA 19106-4404
(215) 597-7601, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (215) 597-5354.
JD–54–11
Philadelphia, PA
APPENDIX B
NOTICE TO EMPLOYEES
Mailed 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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain or enforce the provision in our employment agreement under the
heading, “Confidentiality” that contains the following language: “YOU FURTHER AGREE
NOT TO DISCUSS THE COMPENSATION STATED IN THIS AGREEMENT, OR THE
COMPENSATION PAID TO YOU BY AEROTEK PURSUANT TO ANY PRIOR
EMPLOYMENT AGREEMENT, IN ANY MANNER, WITH THE CLIENT, THE CLIENT’S
EMPLOYEES OR ANY CONTRACT EMPLOYEE OF THE CLIENT.”
WE WILL NOT promulgate, maintain, or enforce an oral rule prohibiting you from discussing
wages, hours, benefits, and other terms and conditions of employment among yourselves, with
other employees or with nonemployees.
WE WILL NOT threaten you with discipline and discharge if you discuss your wages, hours,
benefits, and other terms and conditions of employment among yourselves, with other
employees, or with nonemployees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
JD–54–11
Philadelphia, PA
WE WILL notify you in writing as to whether we have revised or rescinded the overbroad
confidentiality provision contained in our employment agreement.
AEROTEK, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, 7th Floor, Philadelphia, PA 19106-4404
(215) 597-7601, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (215) 597-5354.