Non-union Aerotek had a contract to provide electricians to Interstates Electric for a construction project in Council Bluffs, Iowa. The International Brotherhood of Electrical Workers (IBEW) union sent Brett Johnson and two other members to apply for jobs with Aerotek. Once hired, Johnson and his cohorts were instructed to organize Aerotek workers to join the IBEW. The act of a union sending a union member into a non-union company with the goal of organizing the non-union workers into forming or joining a union is called salting. Johnson was a salt.
Aerotek, realizing that they were salts, did not hire Johnson or the other union members seeking employment with Aerotek. The two pro-union NLRB Members, Pearce and McFerran, found Aerotek liable for unlawfully denying employment to salts. Member Miscimarra dissented because the NLRB has consistently declined to protect employees who undermine an employer’s business interests and should have applied the same rule to Johnson, a job applicant.
Now for some legalese. Members Pearce and McFerran said they assume that as a job applicant Johnson had a duty of loyalty to his prospective employer, but the proper test was the one the Board applies to post-discharge misconduct by employees who have been unlawfully fire by an employer. In such cases, the Board holds an employee who engages in misconduct after an act of discrimination retains a right to reinstatement and back pay unless the worker is “unfit for further service.” Member Miscimarra disagreed, stating the NLRB has repeatedly held that the National Labor Relations Act does not protect employees who attempt to interfere with a company’s contractual relationships.
Which side is right? For now, Members Pearce and McFerran make up a majority, so their opinion must be followed. Their opinion may not be right, but it must be followed.
Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.