A recent National Labor Relations Board (“NLRB”) decision, Aerotek, Inc. v. International Brotherhood of Electrical Workers, Local 22, affiliated with the International Brotherhood of Electrical Workers, AFL-CIO held that if an applicant can demonstrate “a genuine interest in employment” in addition to or apart from his or her pro-union beliefs, that applicant cannot be screened out of the hiring process on the basis of his or her union sympathies. In the Aerotek case, a national employment screening service for non-union contractors failed to consider four union electricians for hire while placing many other electricians in positions at non-union companies.
The NLRB has held that a job applicant who alleges a refusal to hire based on union affiliation or pro-union beliefs much show an application for employment and that the applicant was genuinely seeking to establish an employment relationship. If those two prongs are met, the employer then has the burden to show that it would not have hired the applicant even if the applicant had no known or suspected union affiliation.
In Aerotek, the NLRB held that the applicants had shown sufficient “genuine interest,” particularly since three of the four were unemployed or underemployed when they applied with Aerotek and they later accepted other jobs that became available. The NLRB also held that Aerotek’s failure to hire the union electricians was because of their union affiliation, rather than because Aerotek thought they had previously earned too much to qualify for open positions. Aerotek was ordered to stop refusing to consider applicants for employment based on union affiliation and to make the four applicants whole for loss of wages and benefits.