Aerotek, Inc. (17-CA-071193 et al.; 365 NLRB No. 2)  Omaha, NE, December 15, 2016.

The National Labor Relations Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) by refusing to hire four applicant electricians who were Union members, and Section 8(a)(1) by prohibiting employees from discussing each other’s wages. A majority (Chairman Pearce and Member McFerran; Member Miscimarra dissenting) found, contrary to the judge, that one of the discriminatees was not shown to be disqualified from remedial instatement and full backpay by his having solicited a Respondent client to employ electricians referred by the Union.  The majority distinguished this case from others bearing on whether applicants have a duty of loyalty, based on the remedial setting, the fact that the discriminatee was unlawfully denied employment and could infer so before he engaged in his adverse activity, and the absence of evidence that the discriminatee, if instated to employment, would not serve the Respondent as a loyal employee.  The same majority also found that, to ensure that job applicants receive notice of their protection from discrimination, the Respondent should be required: (1) in addition to the standard notice posting, to mail (and email) the notice to all individuals who applied for electricians’ jobs in the Respondent’s locality during the relevant period, to the four discriminatees, and to the Respondent’s current electricians (who did not work at the Respondent’s own facility), and (2) to post a no-discrimination disclaimer on its job applications and at all sites (including electronic) where it advertises and accepts applications for electrician jobs in its locality. Member Miscimarra would have found that the one discriminatee’s solicitation of a Respondent client disqualified him from remedial instatement, and that the majority’s additional notice requirements were unwarranted.

Charges filed by International Brotherhood of Electrical Workers, Local 22, a/w the International Brotherhood of Electrical Workers, AFL-CIO.  Administrative Law Judge Arthur J. Amchan issued his decision on March 11, 2013.  Chairman Pearce and Members Miscimarra and McFerran participated.

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