On May 4, 2012, the United States Court of Appeals for the Sixth Circuit released its opinion in NLRB v. Beacon Electric Co., No. 07-2554, and upheld the NLRB’s decision that an electrical contractor violated the NLRA by refusing to hire union salts who had applied for positions with the contractor in 1997. The Court found, despite protests from the employer, that the ALJ and Board had properly considered whether the employees were bona fide job applicants when applying for the positions at issue.
The path to the Court of Appeals was a long and winding one based on ever-evolving Board law and multiple remands to an ALJ. The case arose when union members applied for positions at Beacon in 1997. Beacon denied these individuals — who were acknowledged salters — employment, but hired non-union employees days later. The union then filed a charge against Beacon alleging discrimination in violation of Sections 8(a)(1) and 8(a)(3) of the NLRA. In response, Beacon claimed that it had an unwritten practice whereby it only hired employees solely based on referrals and this was the reason that the salters had not been hired, while others were.
No one bought this argument. In 1998, an ALJ sustained the complaint against Beacon, finding that the Company had discriminated against the salters. A final decision was not reached by the Board, however, until 2007 because the Board twice remanded the case to the ALJ to consider additional evidence in light of ever-changing Board law. Ultimately, the Board upheld the ALJ’s decision and found that a violation of the NLRA had occurred.
Beacon then appealed the case to the Sixth Circuit. Curiously, Beacon did not directly challenge the Board’s decision not to apply it’s recent ruling in Toering Elec. Co., 351 NLRB 238 (2007), to the case. In Toering, the Board found that the general counsel has a burden of establishing that an applicant had a genuine interest in seeking employment. Rather, Beacon presented a more roundabout argument that the Board failed to consider whether the salters were bona fide applicants and thus the Board had failed to apply the correct legal standard to the matter.
The Sixth Circuit found that the Board had used the correct legal standard in reaching its decision. Moreover, and contrary to Beacon’s arguments, the Circuit found that the ALJ had allowed the parties to present evidence regarding whether the salters were bona fide applicants and the ALJ made findings that they were. Thus, the Circuit upheld the Board’s decision.
The Circuit’s decision presents an interesting analysis of the Board’s evolving treatment of salters.