United States Court of Appeals

For the Eighth Circuit

___________________________

No. 16-4520

___________________________

Aerotek, Inc.

lllllllllllllllllllllPetitioner

v.

National Labor Relations Board

lllllllllllllllllllllRespondent

International Brotherhood of Electrical Workers, Local 22

lllllllllllllllllllllIntervenor

___________________________

No. 17-1206

___________________________

Aerotek, Inc.

lllllllllllllllllllllRespondent

v.

National Labor Relations Board

lllllllllllllllllllllPetitioner

International Brotherhood of Electrical Workers, Local 22

lllllllllllllllllllllIntervenor
____________

National Labor Relations Board

____________

 Submitted: January 9, 2018

 Filed: February 21, 2018

____________

Before GRUENDER, MELLOY, and SHEPHERD, Circuit Judges.

____________

SHEPHERD, Circuit Judge. 

We are asked two separate but interrelated questions on this appeal. First, did

the National Labor Relations Board (“Board”) have enough evidence to find that

Aerotek, Inc. (“Aerotek”) violated the National Labor Relations Act (“NLRA”)? If

so, second, is the remedy the Board ordered within its discretion? We answer the

former question in the affirmative and the latter in negative. Thus, we affirm the

Board’s finding of a violation, but remand in part to the Board for reconsideration of

the remedy. 

I.

Aerotek is a nationwide staffing agency that operates in Omaha, Nebraska. 

Aerotek works with companies to staff their temporary or full-time positions,

including construction-related ones. This means it places electricians and other skilled

tradesmen in job positions on local construction projects. The International

Brotherhood of Electrical Workers–Local 22 (“IBEW”) does much the same: it also

actively seeks to staff electricians (who are members of their union) in job positions

in the Omaha area. IBEW and Aerotek are competitors in this regard. Even so, IBEW

members still seek placement through Aerotek. This case centers on four IBEW

-2-
members—Brett Johnson, Tim Hendershot, Tom Jankowski, and Alan Winge—who

sought employment through Aerotek but were never placed. By applying to Aerotek,

they hoped to further a “salting” campaign—a campaign by which they actively try

to organize and recruit for their union on non-union jobsites.2

Johnson initially submitted his own updated resume to Aerotek after an Aerotek

intern, who had seen a prior version of his resume in a database, called him and asked

if he was interested in being placed. He then proceeded to submit the resumes of the

other Salts to Aerotek.3

 Each resume stated, in substance, that the individual was

active in the IBEW and sought to organize worksites for the IBEW. Johnson followed

up twice. The first time he sent an email to Aerotek inquiring about specific postings

Aerotek had advertised. After that, he received a call from an Aerotek account

manager, and during the conversation, Johnson told him that he was open to any type

of position regardless of seniority. His goal, as he stated in his initial email, was “to

expose more electricians to the IBEW.” Months later, he again sent an email to

Aerotek, stating that he was interested in “any electrical construction position

available.” Aerotek did not respond to that email. The other Salts had similar

experiences with Aerotek. Hendershot was the only other Salt that was contacted by

Aerotek. After the initial contact—made by an Aerotek recruiter who was temporarily

assigned to help fill construction listings—Aerotek never reached out to Hendershot

again, despite multiple follow-up efforts on his part. 

In the several months following the Salts submitting their resumes, between

early August 2011 and March 2012, Aerotek placed a number of other electricians in

jobs, including eight members of the IBEW salting campaign who did not explicitly

2

Because of this, we refer to Johnson, Hendershot, Jankowski, and Winge

collectively as the “Salts.”

3

It is uncontested that Johnson was given permission to send the resumes of the

other three IBEW members. 

-3-
state their union affiliation when applying to Aerotek. Several of those placed

received salaries lower than what they had received on previous jobs. 

IBEW initially lodged a complaint against Aerotek with the Board in December

2011. In February 2012, Johnson and another member of IBEW approached an

Aerotek client—one who had a number of “covert” IBEW members, placed by

Aerotek, working for it—about staffing electricians directly through IBEW. Johnson

urged the Aerotek client to “cut out the middleman.” After this entreaty was declined,

IBEW filed another complaint against Aerotek on March 1, 2012. Then, on March

7, 2012, Johnson contacted the owner of the same Aerotek client with a similar

proposition. Johnson further upped the ante by instructing IBEW members to wear

listening devices at an event hosted by the Aerotek client shortly thereafter. IBEW

filed a final complaint in April 2012. 

 A consolidated complaint was issued by the Board’s General Counsel in

August 2012, and a three-day trial on that complaint was held before a Board

Administrative Law Judge (“ALJ”). The ALJ found that Sections 8(a)(3) and (1) of

the NLRA had been violated by Aerotek’s refusal to hire and refusal to consider the

Salts for hiring. In making that finding, the ALJ found that Aerotek did not “offer[]

any credible nondiscriminatory explanation for failing to place [the Salts] in the many

jobs that were available to them.”4

 The ALJ’s proposed remedy included backpay for

the Salts, but “tolled” Johnson’s backpay at the day he met with the Aerotek client: 

February 29, 2012. The ALJ also recommended that Aerotek immediately place, or

instate, the Salts save Johnson. Finally, the ALJ suggested that a notice be placed at

Aerotek’s worksites (or sent via email) informing workers of their rights under the

NLRA. 

4

The Board’s General Counsel also alleged that Aerotek violated the NLRA by

having some of its recruiters tell placed employees not to discuss wages with other

employees. The ALJ found Aerotek liable for this, and the Board affirmed. That

issue was not appealed by Aerotek. 

-4-
The Board unanimously agreed with the ALJ’s findings of a violation. But it

splintered on the proposed remedy. The Board majority agreed with the ALJ except

that it found that Johnson’s conduct did not strip him of the right to full backpay and

instatement. It also went beyond the ALJ’s recommended postings in the Omaha

office of Aerotek by ordering that the language be posted on all Aerotek job

advertisements and applications. The dissenting Member agreed with the ALJ that

Johnson’s backpay should be tolled and that Johnson was not eligible for instatement. 

He also found that having Aerotek place language on all job advertisements and

applications was an “extraordinary remedy” unwarranted in this case.5

 

Aerotek petitions for review of the Board’s decision, arguing that the finding

of a violation is not supported by substantial evidence. It also contests the remedy,

specifically the award of full backpay and instatement for Johnson and the mandatory

inclusion of a notice that must accompany its job postings and applications. The

Board’s General Counsel cross-petitions for enforcement of the Board’s order in full. 

We review Aerotek’s challenge to the Board’s finding of a violation first. 

II.

A unanimous Board affirmed the ALJ’s finding that Aerotek had violated the

NLRA in not hiring the Salts and not considering them for hiring. In such cases,

where the Board is in lockstep with the ALJ, “we afford [] great deference to the

Board’s affirmation of the ALJ’s findings.” S. Bakeries, LLC v. NLRB, 871 F.3d

811, 820 (8th Cir. 2017) (alteration in original) (internal quotation marks omitted). 

Our review, then, is to ensure that the Board “correctly applied the law and its factual

findings are supported by substantial evidence,” by which we mean “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

5

The dissenting Member raised a number of other issues with the proposed

remedy that are not appealed by Aerotek. 

-5-
(internal quotation marks omitted). As such, “we may not preempt the Board’s choice

between two fairly conflicting views of” the record, JHP & Assocs., LLC v. NLRB,

360 F.3d 904, 911 (8th Cir. 2004) (internal quotation marks omitted), but we “must

view the inherent strengths and weaknesses of the inferences drawn by the Board,” 

Nichols Aluminum, LLC v. NLRB., 797 F.3d 548, 553 (8th Cir. 2015) (internal

quotation marks omitted). We do not enforce decisions which “rely on suspicion,

surmise, implications, or plainly incredible evidence.” Id. (internal quotation marks

omitted). 

A.

In a salting case where there is an alleged refusal to hire or refusal to consider

to hire, there are several requirements the Board’s General Counsel must satisfy in

order to prove a violation of the NLRA.6

 First, it must show an “applicant’s genuine

interest in obtaining employment” by demonstrating that “there was an application for

employment,” and—if “the employer . . . put[s] at issue the genuineness of the

applicant’s interest through evidence that creates a reasonable question as to the

applicant’s actual interest”—then the Board must prove that the “application reflected

a genuine interest in becoming employed by the employer” by a preponderance of the

evidence. Toering Elec. Co. & Foster Elec., 351 N.L.R.B. 225, 233-34 (2007).7

After that, it must meet the standard requirements in a refusal to hire case: “(1) ‘that

6

The Supreme Court has expressly held that salts are covered by the NLRA. 

NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 98 (1995) (holding “employee,”

as defined by the NLRA, “does not exclude paid union organizers”). 

7

While we have not previously decided whether the Toering requirements

constitute a permissible interpretation of the NLRA, neither party challenges its

application here. St. John’s Mercy Health Sys. v. NLRB, 436 F.3d 843, 848 (8th Cir.

2006) (“No objection that has not been urged before the Board, its member, agent, or

agency, shall be considered by the court . . . .” (internal quotation marks omitted)). 

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the respondent was hiring, or had concrete plans to hire,’ (2) ‘that the applicant[] had

experience or training relevant to the . . [.] requirements of the position[],’ and 

(3) ‘that anti [labor organization] animus contributed to the decision not to hire the

applicant [].’” NLRB v. EYM King of Mo., LLC, 696 F. App’x 759, 761 (8th Cir.

2017) (unpublished per curiam) (first, third, fourth, and fifth alterations in original)

(quoting FES, 331 N.L.R.B. 9, 12 (2000)).8

Aerotek does not challenge this legal framework, which the Board and the ALJ

applied. Instead, it argues that the General Counsel did not meet its burden in

showing that the applications were genuine (as required by Toering), that there were

openings for the Salts (the first step under FES), and that anti-union animus

contributed to the refusal to hire (the last step under FES). We address each argument

in turn. 

1.

Aerotek argues that the Board and the ALJ erred in finding that the applications

of the Salts were genuine. Under Toering, only if Aerotek provided evidence that 

“create[d] a reasonable question as to the applicant’s actual interest” does the burden

shift to the Board’s General Counsel to show that the applicant was actually

interested. 351 N.L.R.B. at 233. Aerotek believes that it created a “reasonable

question” by pointing to (1) the batch submission of the applications; (2) the use of

8

Aerotek does not suggest that FES is inapplicable. In its brief, though, it cites

our holding in Nichols Aluminum to suggest that “antiunion animus” must be a

“substantial or motivating factor in the Company’s actions in refusing to consider to

hire.” That language, however, comes from the Board’s case in Wright Line, which

established a test similar to FES, but not directly applicable here. See Nichols

Aluminum, 797 F.3d at 554 (holding “[t]o establish an unfair labor practice under the

Wright Line framework, the Board’s General Counsel must prove . . . [the] protected

conduct was a substantial or motivating factor in the adverse action” (internal

quotation marks omitted)). 

-7-
the same template by all applications; (3) the fact that the Salts could leave the job at

any point; and (4) with regards to Winge only, the fact that a copy of his resume was

incomplete because it had Hendershot’s contact information on it, not his. 

Toering squarely forecloses the first and second assertions as bases for the

requisite “reasonable question.” It explicitly held “[t]he fact that applications may be

submitted in a batch is not, in and of itself, sufficient to destroy genuine applicant

status.” Toering, 351 N.L.R.B. at 233 n.51. It further stated that “stale or incomplete

[applications] may” raise questions about genuineness—not merely similarly

formatted ones. Id. at 233 (emphasis added).

The Supreme Court’s decision in Town & Country Electric addresses

Aerotek’s third contention. In bringing paid union organizers under the protections

of the NLRA, the Court dismissed the fact that such organizers could leave at any

time. The Court noted, so too might “a worker who has found a better job, or one

whose family wants to move elsewhere.” Town & Country Elec., Inc., 516 U.S. at 96. 

Thus, the fact that the Salts may have taken action that any other employee might have

taken does not create a “reasonable question” as to the genuineness of their

applications. 

Aerotek’s evidence with regards to Winge’s application—that a copy of his

resume contained Hendershot’s contact information—however, does provide

“reasonable evidence” to suspect its genuineness, given that it was technically

incomplete without the correct contact information. Toering, 351 N.L.R.B. at 233

(holding “stale or incomplete [applications]” may be reasonable evidence to question

application’s genuineness). The burden thus shifts to the Board’s General Counsel

under Toering to show the genuineness of Winge’s application. 

We find that the Board’s General Counsel met its burden. Toering’s goal was

to prevent “unfair labor practice litigation” where there was “no actual loss of an

-8-
opportunity for work”; in other words, Toering sought to ensure the NLRA was used

to resolve disputes between employers and those who “depend upon the Employer,

even in part, for their livelihood or for the improvement of their economic standards.” 

Id. at 229 (internal quotation marks omitted). Unemployment, and the desire to find

work, are perhaps the greatest signals that there was an “actual loss of an opportunity

for work.” Id. at 230. Winge appeared at trial and testified that he was unemployed,

searching for work, and would have taken a position offered by Aerotek. Aerotek

does not point to any evidence disputing Winge’s testimony. Because of this, we find 

Winge’s application was genuine under Toering. See also NLRB. v. Beacon Elec.

Co., 504 F. App’x 355, 369 (6th Cir. 2012) (unpublished) (finding genuine interest

where “the salts were unemployed”). 

2.

Aerotek next argues that the Board’s General Counsel did not meet the first step

under FES, namely that it was never shown that “there were openings for the four

applicants.” Aerotek concedes there were 37 positions open at the time in

question—and that they were being filled. But, it asks us to factor in the

competitiveness of those 37 positions because it had “over 500 applicants in its

database.” We find this unconvincing. Aerotek points to no authority to support this

argument, and, more importantly, FES simply asks the Board’s General Counsel to

show “that the respondent was hiring.” 331 N.L.R.B. at 12. Aerotek concedes that

it was hiring, and, under FES, there is no reason to inquire further. 

3.

Finally, Aerotek argues that the “Board . . . improperly found a discriminatory

motive for failing to hire the [Salts],” the final FES element. See id. Under our

deferential standard of review, S. Bakeries, 871 F.3d at 820, we find that the Board’s

finding of animus motivating the failure to hire or consider to hire the

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Salts—buttressed by the ALJ’s decision and factual findings—was supported by

substantial evidence. As an initial matter, Aerotek argues that the case against it is

entirely circumstantial. Animus motivating unlawful conduct can nonetheless be

“inferred from both direct and circumstantial evidence.” NLRB v. RELCO

Locomotives, 734 F.3d 764, 780 (8th Cir. 2013). Such circumstantial evidence can

include—as is present here—“implausible explanations and false or shifting reasons”

provided by the employer. York Prods., Inc. v. NLRB, 881 F.2d 542, 545 (8th Cir.

1989). 

As the ALJ noted, “[Aerotek] made no attempt to place any employee who

indicated that they were a voluntary organizer”—or simply, it made no attempt to

place the Salts. On this point, Aerotek counters that it “hired and re-hired union

members.” The exact charge, however, is that it failed to hire union organizers who

identified themselves as such. Regardless, the ALJ discredited the testimony of

Aerotek employees who said that they knowingly placed union sympathizers in

positions. In the end, the ALJ found Aerotek placed only one known union

sympathizer, who was not an identified organizer, in April 2012. We find no reason

to disturb the ALJ’s credibility determinations given that the findings were based on

inconsistencies between testimony and documentary evidence. See RELCO

Locomotives, 734 F.3d at 787 (credibility determinations only overturned if they

“shock the conscience”). And thus the claim that Aerotek consistently placed known

union organizers falls away. 

From this baseline, Aerotek suggests that its actions (or inactions) toward the

Salts were not motivated by anti-union animus. First, Aerotek argues that “[d]ue to

timing, other applicants were more qualified” than the Salts. Its strategy—to fill

positions within 48-72 hours—meant that applications that were submitted closer to

a job posting date were preferred. But, its own activity belies this. For example, it

hired candidates who submitted applications around the same time as the Salts (July

2011) in December 2011 and February 2012. Second, Aerotek also suggests that

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Johnson was passed over because of his salary demands. His communications with

Aerotek, however, indicated that he was open to any position given that his goal was

to organize.9

 The Board was entitled to reject these rationales as “implausible.” York

Prods., 881 F.2d at 545. As a result, we find “substantial evidence” underpinning the

Board’s findings that anti-union animus contributed to Aerotek’s actions. S. Bakeries,

871 F.3d at 820.

III.

Aerotek also challenges the remedy proposed by the Board. The Board’s

General Counsel cross-petitions for its enforcement in full. We review the remedy for

abuse of discretion. NLRB v. Miller Waste Mills, 315 F.3d 951, 955 (8th Cir. 2003). 

And “[w]e examine the Board’s findings more critically when, as here, the Board’s

conclusions are contrary to the ALJ’s.” Nichols Aluminum, 797 F.3d at 553. 

The only portion of the remedy properly before us is instatement and full

backpay for Brett Johnson.10 The ALJ concluded that “Johnson’s conduct in

9

Aerotek also argues that the resumes of Hendershot, Jankowski, and Winge

were “legitimately questioned,” citing a single recruiter’s testimony that he found the

resumes “very unusual” and “suspicious.” The recruiter, however, testified he found 

the resumes suspicious because “[i]t was apparent . . . that one person submitted all

three resumes.” J.A. 581. To the extent Aerotek is arguing the batch submission

raised questions as to the genuineness of the applications, as explained above, we

dismiss this argument in Section II.A.1. 

10In its opening brief, Aerotek also challenges a portion of the remedy that

mandates certain language be included in Aerotek’s future job postings. Yet, Aerotek

never brought that specific challenge before the Board—it merely objected to this

portion of the remedy on procedural grounds—and it is not properly before us. See

St. John’s Mercy Health Sys., 436 F.3d at 848 (holding Board must receive “adequate

notice of the basis for the objection,” and solely “[o]bjecting to a remedy is not

sufficient to indicate the specific basis for the objection” (internal quotation marks

-11-
attempting to exclude Aerotek from [its client’s work] is so obviously inconsistent

with the duties of an employee” that his backpay was tolled and instatement was 

denied. A majority of the Board disagreed. Despite finding that “[t]his case does not

fit squarely into any category established by Board precedent,” the Board applied a

pre-existing “unfit for further service” standard to assess Johnson’s actions. Under

that standard, it found that he was not disqualified from full backpay and instatement. 

We find otherwise.11 That standard, as the Board itself stated, was meant to

excuse “natural human reaction[s]” to unlawful discrimination. The Board finds that

Johnson’s overtures to the Aerotek client were precisely that. But, the precedents the

Board cites never find directly competitive behavior to be a “natural human reaction”

to discrimination.12 The characterization of Johnson’s actions is all the more puzzling

because the “Board has indicated that salting . . . may be found to be unprotected if

the purported organizational activity is subterfuge to further purposes unrelated to

omitted)).

11Aerotek did not contest the applicability of the “unfit for further service”

standard before the Board. We do not decide whether it is indeed the proper standard;

instead, we hold that Johnson’s conduct is not excused under it. 

12The main case the Board cites is Stephens Media, LLC, 356 N.L.R.B. 661

(2011). In that case, blog posts and comments made at a public forum by a discharged

employee were excused under the “unfit for further service” standard. Id. at 663. 

Stephens Media also cites two other cases for its holding. In Trustees of Boston

University, it was noted that “postdischarge threats, challenges to fight, and other

verbal misconduct are not normally considered sufficiently serious to render the

employee unsuitable for future employment.” 224 N.L.R.B. 1385, 1409 (1976). 

O’Daniel Oldsmobile, the other case cited by Stephens Media, provides stronger

support for the Board’s position. 179 N.L.R.B. 398 (1969). In that case, the Board

held that discharged employees who handed out handbills disparaging a company

were not disqualified from backpay. Id. at 405. Even so, the discriminatees were not

engaged in calculated, competitive behavior against the respondent company like

Johnson is here. 

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organizing.” Progressive Elec., Inc. v. NLRB, 453 F.3d 538, 553 (D.C. Cir. 2006)

(alteration in original) (internal quotation marks omitted). 

Yet the Board glosses over this. By all accounts, Johnson’s actions reflected

a strategy to poach an Aerotek client. As described in the proceedings before the ALJ,

Johnson initially approached a line manager for the Aerotek client about “cutting out

the middleman,” i.e., Aerotek. Rebuffed, a week later, Johnson made the same pitch

higher up the chain of command—directly to the owner of the Aerotek client. After

that, testimony in the record suggests Johnson directed union members, currently

working for the Aerotek client, to wear listening devices to pick up trade secrets at an

employee appreciation night hosted by the Aerotek client. 

Johnson’s behavior is not the type of reactive, emotive conduct the “unfit for

further service” standard is designed to forgive. Cf. Stephens Media, 356 N.L.R.B. at

662 (finding “it is wholly natural for an employee to react with some vehemence to

an unlawful discharge” (internal quotation marks omitted)). Instead, it is reflective

of a “design[] to drive the employer out of the area.” Casino Ready Mix, Inc. v.

NLRB, 321 F.3d 1192, 1198 (D.C. Cir. 2003) (emphasis added). The unmistakable

conclusion to be drawn from Johnson’s course of conduct is that he was acting in his

role as a competitor to Aerotek—and not as an aggrieved discriminatee.13 As such,

the Board abused its discretion in finding Johnson’s behavior wholly pardoned by the

“unfit for further service standard.” See Detroit Edison Co. v NLRB, 440 U.S. 301,

13The Board’s General Counsel suggests that Johnson approached the Aerotek

client out of frustration at not being placed, and did so after seven months of

discrimination. The specific client he approached, however, had only started

recruiting for the job in question at the beginning of January. Johnson then

approached that client in February. 

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316 (1979) (“The role that Congress . . . has entrusted to the courts in reviewing the

Board’s petitions for enforcement of its orders is not that of passive conduit.”).14 

We remand to the Board to refashion the remedy as to Johnson. See NLRB v.

Food Store Employees Union, Local 347, 417 U.S. 1, 10 (1974) (holding when a

remedy is found to be an abuse of discretion “remand to the agency for

reconsideration . . . is ordinarily the reviewing court’s proper course”). Our holding

is simply that full backpay and instatement for Johnson is unwarranted under the

Board’s “unfit for further service standard.” Given that it was not briefed before us,

we make no judgment as to whether the ALJ’s remedy—tolling backpay at the date

of Johnson’s first contact with the Aerotek client, February 29, 2012—is an

appropriate remedy. 

IV.

In sum, we grant Aerotek’s petition for review in part and the Board’s crosspetition for enforcement in part. The Board’s order is enforced except its proposed

remedy for Brett Johnson. We remand narrowly for reconsideration of that portion

of the remedy. 

______________________________

14We do not decide whether Five Star Transportation, 349 N.L.R.B. 42

(2007)—which Aerotek cites extensively—is persuasive authority on these facts. 

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