Aerotek, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 11, 2013

17-CA-071193 (N.L.R.B. Mar. 11, 2013)

JD-9-13
Omaha, NE
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AEROTEK, INC.
and Cases 17-CA-071193
17-CA-075605
17-CA-078720
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, LOCAL 22,
affiliated with the INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO
Michael E. Werner, Esq., for the General Counsel.
William A. Harding and Kelly M. Ekeler, Esqs, Harding and Shultz, P.C., L.L.O.,
Lincoln, Nebraska, and Mark Freeman, Freeman and Freeman, P.C. Rockville, Maryland,
for the Respondent.
Lori Elrod, Esq., Blake & Uhlig, P.A., 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 Section 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 refusing to hire Brett Johnson since
about August 1, 2011 and refusing to consider for hire and refusing to hire Tim Hendershot, Tom
Jankowski and Alan Winge since about September 1, 2011.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
JD-9-13
2
FINDINGS OF FACT
JURISDICTION
Respondent, Aerotek, Inc., a corporation, with headquarters in Hanover, Maryland, near 5
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 excess 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 10
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 15
these, the Environmental and Engineering Division places employees in the construction
industry. The Union and Aerotek are competitors with regard to placement of journeymen and
apprentice electricians. The Union provides labor to employers, as does Aerotek and other
employee staffing companies. At least with regard to some employers, companies such as
Aerotek provide a convenient employee staffing alternative to establishing relationships with 20
labor organizations. Indeed, when testifying in the instant hearing, 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 ten 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. 219.25
On July 27, 2011, Kacie Woodley, an intern working as a recruiter for Aerotek, called Brett
Johnson. Woodley asked Johnson if he was interested in employment. Woodley made the
following entry into Brett Johnson’s profile in Aerotek’s Recruiter Work Space (RWS) system:
30
Brett is looking to make at least 30/hour. He is the membership coordinator with local 22
union. He is sending me his updated résumé is always open to hearing about new opps.
G.C. Exh. 34.1
35
RWS is a database containing information on essentially any individual who has had
contact with Aerotek relating to potential employment. Johnson had a profile in this system prior
to July 2011. His profile was created in October 2009, The profile 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 40
because of his union activity. Aerotek paid Johnson $4,445.20 as part of this settlement.

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, G.C. 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
misunderstanding of what he would accept on August 8.
JD-9-13
3
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 5
submitted his résumé.
Johnson then contacted Local 22 member Joe Stock and asked him to apply to Aerotek.
Stock contacted Aerotek recruiter Daniel Mehmen on July 28. Mehmen interviewed Stock and
then emailed Les Shallberg, the owner of Fremont Electric Company that evening, informing 10
Shallberg that Stock was available to start work the following Monday. Mehmen informed
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 15
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…
G.C. Exh. 6.20
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, G.C. Exh. 3, p. 127
or communicated by Stock during his interview that he had any relationship with the IBEW in August 25
2011. I discredit Mehmen’s testimony that he knew Stock was a union supporter 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. 388.30
Stock began work at Freemont as a general laborer on August 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, G.C. Exh. 8.
35
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 September
2008 as a temporary member of Local 22, he has had no relationship with the Union since
September 2008.
40
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 journeyman’s license, G.C. Exh. 2, p. 2.
On August 8, Johnson sent the following email to Aerotek recruiter Daniel Mehmen, in 45
response to this and other postings:
JD-9-13
4
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 available 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 5
IBEW…
G.C. Exh.. 38.
Aerotek account manager Jacob Shank called Johnson the same day, after Johnson sent 10
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
15
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 applicants with Aerotek, G.C. Exh. 34. On
the résumés of all three, the fact that there were volunteer union organizers, as well as licensed
journeymen electricians, was prominently noted, G.C. Exh. 39.20
Jankowski is the vice-president of Local 22, an elected position and is a member of the
Union’s Executive Board. He regularly 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 25
unemployed 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 non-union
contractors. On August 5, 2012, Winge and Brett Johnson submitted Winge’s resume to Sentry 30
Engineering in Mecina, Iowa. At that time, Winge authorized Johnson to submit his resume to
other non-union contractors for salting purposes. Winge did not know specifically that it would
be submitted to Aerotek, Tr. 330-31. However, Johnson specifically asked Hendershot and
Jankowski if he could submit 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 non-union 35
employment if it did not serve the Union’s organizing interests.4

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 contradicted by Shank. I therefore credit
it. Johnson and Shank met in February 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.
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 non-union 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 defense for not hiring or considering
JD-9-13
5
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 three
months. Jankowski was laid by Omaha Electric and has worked several jobs of short duration
since his lay-off. With the exception of one voice mail message left by Aerotek recruiter Curtis 5
Coatman for Hendershot on February 24, 2012, neither Johnson, Hendershot, Jankowski nor
Winge ever heard from Aerotek.
Little over three weeks from the conversation between Shank and Johnson, on August 30,
2011, Respondent placed journeymen electricians, David Myhr and Jeffrey Thomsen with 10
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, Aerotek
placed many other employees; journeymen and apprentice electricians, with contractors after 15
August 8.
Johnson emailed Aerotek recruiter Daniel Mehmen on November 30, 2011, reiterating his
interest in “any electrical construction position available,” G.C. Exh. 40. Aerotek did not
respond to this email. On December 6, 2011, Aerotek placed four apprentices with IES 20
Commercial at wage rates of either $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 25
Tyson Foods’ plant in Council Bluffs, Iowa. Among the journeymen hired for Interstates5 during
this period are the following individuals, with their date of hire and wage rate:
Warren Kennedy January 16 $14
Mark Mesenback February 6 $2330
Carlos Ramos February 6 $23
Jimmy Coats February 20 $23
Julio Juarez February 20 $25
Duane North February 20 $23
Jack Shelly February 20 $2335
Aaron Flores February 23 $17
Jesus Flores February 23 $17
David Erwin February 27 $25
Jason Perry February 27 $23
Kelly Jansen March 5 $2440

the discriminatees for hire. Respondent was hiring primarily for projects of short duration and in fact
hired employees such as Kyle Modlin and Jason Darnold, who informed Aerotek that they intended to
work elsewhere within a few months.
5 All these individuals apparently were assigned to Interstates’ Tyson Foods project, Exh. R-16.
JD-9-13
6
Steven Meling March 5 $24
Adrian Sterns March 5 $24
While the employment of most of these individuals with Interstates ended by mid-April
2012, Julio Juarez continued working for Interstates through August 20.5
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 Interstates through Aerotek from January
9, to July 9, 2012, Jt. Exh. 4. On July 9, Miller went on the Interstates payroll, Exh. R-16. 10
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 February 10, 2012; Mark Meisenbach who
became an Interstates employee on March 24, 2012; and Mike Miodowski who became an 15
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 candidates for the Interstates job. He 20
left a telephone voice mail message for Tim Hendershot informing him of an open journeyman
position and sent Hendershot an email. The message and email instructed Hendershot to call
Coatman if he was interested in the position, G.C. Exh. 48 and R Exh. 27. Hendershot’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 February 24.25
One reason given by Respondent for failing to hire the 4 alleged 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. 30
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 February
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 employer. 35
John Tonn, who was placed by Aerotek with Concrete Equipment at $13 per hour, apparently
left the Union in September 2010. With the Union he had been paid over $30 per hour when
employed, Jt. Exh. 4, G.C. 3, p. 137. These past wage rates were reflected on their résumés or
applications.
40
Aerotek also placed journeymen in apprentice positions. Jason 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 apprentice with Interstates at $16 per hour.
45
On March 9, 2012, Brett Johnson sent Aerotek recruiter Dan Mehmen a letter informing him
that eight of the Aerotek employees on the Interstates project were volunteer organizers for Local
JD-9-13
7
22. These employees are Adrian Sterns, Carlos Ramos, Steve Meling, Kelly Jansen, Jimmy
Coats, David Erwin, Jack Shelly and Jason Perry, G.C. Exh. 43.6 Brett Johnson testified that
there may have other Local 22 members or sympathizers on the project whose relationship to the
Union was never 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 5
Aerotek’s Omaha, Nebraska office, excluding supervisors and low-voltage technicians, G.C.
Exh. 44.
At trial Jacob Shank testified that he was aware that a number of the employees placed at
Interstates had a relationship with Local 22 when they were hired. I discredit that testimony. In 10
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.815
Breon testified that she was not aware of the union affiliation of any employee she placed
until April 2012, Tr. 525-26. One of the employees she placed on the Interstates job was union
salt David Erwin on February 27, Tr. 524-25, Jt. Exh. 4.
20
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 written applications of any applicants who were selected for
placement by Respondent’s recruiters, prior to their placement.25
In preparation for the instant trial, Jacob Shank prepared Exhibit R-16, which with his
testimony, constitutes Respondent’s evidence that it knowingly placed Local 22 members or
supporters 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 30
discriminatees.10

6 G.C. Exh. 43 bears a date of February 9, 2013. I credit Brett Johnson’s testimony that this is a
typographical error and the letter should have been dated March 9. 7 of the 8 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.
9Earlier 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 an client 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, Resp. Exh. 31.
JD-9-13
8
The alleged Section 8(a)(1) violations: alleged
prohibition against employees 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, G.C. Exh.- 49, Tr. 522, 542. 5
Respondent contends that it did not violate the Act because these recruiters were not acting as
agents of Aerotek when they make 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, Resp. Exh. 29 at pp. 7-8 states that an employee may be 10
disciplined or terminated for a number of offenses, including “Disclosing business “secrets” or
confidential information.” Breon, in her March 5, 2012 conversation 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, 15
“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.20
Respondent contends that Breon and Rohman were not acting 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 conveying 25
company policy.
Analysis
Refusal to Consider/Refusal to Hire: The legal framework30
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:
35
NLRB v. Town & Country Electric, Inc., in which the Supreme 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).
40
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 45
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
JD-9-13
9
concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the
applicants had experience or training relevant to the announced or generally
known requirements 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 5
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 respondent
to show that it would not have hired the applicants even in the absence of their
union activity or affiliation.
10
The FES framework was modified by the Board in Toering Electric Co., 351 NLRB 225,
232-34 (2007).11 The Board found that in salting cases, the General Counsel bears the ultimate
burden of proving the applicant’s genuine interest in employment. 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 15
preponderance of the evidence that that the applicant was genuinely seeking to establish an
employment relationship with the employer.
Another case which is not directly applicable to the proceeding on the merits before me,
but which obviously has great bearing on the litigation posture of this is case is Oil Capitol and 20
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.
25
Aerotek was hiring; all four alleged discriminatees applied for work with Aerotek and were
genuinely interested in employment. 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 30
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
discriminatees 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 35
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

11 The same day that the Board issued its decision in Toering, it issued a decision in Tradesman, Inc.,
351 NLRB 399 (2007) in which the employer’s business was virtually identical to that of the
Respondent in this case.
12 Respondent concedes as much at page 20 of its brief.
13 Respondent’s argument at pages 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.
JD-9-13
10
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 willingness to work for non-union 5
companies in furtherance of his organizing goals, as demonstrated by his completion of a job
assignment with Tradesman in March 2011, Tr. 232-34, G.C. Exh. 41.14
Respondent’s reliance on the Toering decision in arguing that Winge did not apply for
employment with Aerotek is misplaced both factually and legally. The Board stated in Toering 10
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 n. 51. Respondent does not contend 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. However, one week prior to the 15
submission, Winge authorized Johnson 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 Johnson, did in fact apply for employment at Aerotek.15
Hendershot’s genuine interest in employment is established in part by his uncontradicted 20
testimony that he attempted to respond to Curtis Coatman’s call twice and left voicemail
messages to which he received no response.
The General Counsel made an initial showing of discrimination which was not rebutted by
Respondent.25
I infer discriminatory motive from several factors. First, that Respondent made no
attempt to place any employee who indicated 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 30
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 Johnson, i.e., his wage history, to
be pretextual and further evidence of discriminatory motive. First of all, Respondent does not 35

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—84, 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 applications made in his real name.
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 distinguishes his case from that of the employees discussed in Toering
at 351 NLRB page 234. Other factors are that he was unemployed and that the resume submitted to
Aerotek was current. I would also note that Respondent entered Winge into its RWS database on August
12, 2012, G.C. 34. 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
Respondent’s brief at 22) is inconsistent with its contention that he is not a job applicant with Aerotek.
JD-9-13
11
have a rule or policy against placing employees in jobs lower than their prior wages, Tr. 211-12.
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, 582-83 (2007). 5
In the end result, 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. The
reasons Respondent gives for failing to consider or hire Jankowski, Hendershot and Winge are
totally lacking in specifics, Tr. 102-05. Thus, for Jankowski and Hendershot, Jacob Shank 10
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 discriminatees in favor
of employees who were not more qualified and probably, in some cases, clearly less qualified,
Flour Daniel, Inc., 350 NLRB 702, 705-06 (2007).
15
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 20
reached him and Jeffrey Thomsen on August 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, G.C. Exhs. 9, 10 and
11.1625
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
Aerotek's customers, Tr. 196. Without such an explanation, I conclude that Aerotek failed to
consider the discriminatees for hire or place them with their customers because they indicated 30
that they intended to organize after they were hired. Even if Respondent knowingly hired several
union members or supporters, which I find it did not, that would not negate the strong evidence
that it discriminated against Hendershot, Winge, Jankowski and Johnson because of their
declared union organizer status, Hi-Tech Interiors, Inc., 348 NLRB 304 (2006).
35
Respondent’s disabling conflict argument
On February 29, 2012, Brett Johnson and another Local 22 representative visited the
offices of Interstates Electric in Omaha and met with Interstates Manager Lee Heitmann.
Johnson told Heitman that IBEW members were working on Interstates’ Tyson Foods job. He 40
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 manpower to the Tysons Foods job, Resp. Exh. 23, Tr. 267.

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.
JD-9-13
12
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 5
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,
10
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 Aerotek became aware 15
of Johnson’s solicitation of Interstates’ business prior to the second day of the instant hearing
(October 30, 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 of the testimony of Smucker’s human resources 20
manager that he would have deemed the discrinimatees’ employment application invalid had he
known that they had cheated on their pre-employment skills test. The Board did not specifically
reject Judge Schlesinger’s conclusion that the discriminatees’ conduct was “Malum in se.”
(conducted generally regard as wrong regardless of whether it has been expressly prohibited by
statute or other means).25
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 engaged in any activity that is unprotected and which would warrant 30
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 employees that their 35
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
determining whether an employee is acting with apparent authority on behalf of the employer 40
when that employee makes a particular statement or takes a particular action. Apparent authority
results 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

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, 934-36 (1978).
JD-9-13
13
principal 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 5
reasonably 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.
10
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
management and were conveying company policy. In communicating to employees that wages
were confidential and that employees 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 15
that employees were not disciplined nor threatened with discipline is irrelevant, Independent
Stations Co., 284 NLRB 394, 396-97 (1987); Cintas Corp., 344 NLRB 943, 945-46 (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 that was the case.20
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 25
refusing 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.30
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to 35
effectuate 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
benefits, consistent with the Board’s decision in Oil Capitol and Sheet Metal, 349 NLRB 1348 40
(2007), computed on a quarterly basis less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest compounded daily, Kentucky River Medical
Center, 356 NLRB No. 8 (October 22, 2010) as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).18
45

18 With regard to Brett Johnson this obligation is tolled as of February 29, 2012.
JD-9-13
14
Respondent shall file a report with the Social Security Administration 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 No. 44 (2012).
5
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended19
ORDER
The Respondent, Aerotek, Inc., its officers, agents, successors, and assigns, shall10
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.15
(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.20
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days of the Board’s Order, offer immediate employment to Tim
Hendershot, Tom Jankowski and Alan Winge in the positions for which they applied, or, if such 25
positions 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 30
February 29, 2012.
(c) Within 14 days of the Board’s Order, remove from Respondent’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 35
will not be used against them..
(d) 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 designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records 40
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.

19 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-9-13
15
(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 Respondent’s authorized
representative, 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. 5
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 employees employed by the Respondent at any time since 10
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.15
(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.
20
Dated, Washington, D.C. March 11, 2013
____________________25
Arthur J. Amchan
Administrative Law Judge
30

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 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-9-13
16
JD-9-13
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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to consider for hire or refuse to hire any job applicant because we believe
that they intend to try to organize 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, restrain, 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 immediate 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 suffered as a result of the discrimination against them in the manner
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 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
him will not be used against them.
AEROTEK, INC.
(Employer)
Dated By
(Representative) (Title)
JD-9-13
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.
8600 Farley Street, Suite 100, Overland Park, KS 66212-4677
(913) 967-3000, Hours: 8:15 a.m. to 4:45 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, (913) 967-3014.
.