## Facts

- Town & Country Electric, a nonunion electrical contractor, obtained a contract for electrical work in International Falls, Minnesota, requiring Minnesota-licensed electricians.
- Town & Country used Ameristaff, a temporary staffing agency, to recruit licensed electricians and told Ameristaff the job was “nonunion” and required workers willing to work nonunion.
- The union arranged for eleven union-affiliated applicants (including two paid union organizers) to apply through Ameristaff.
- On the interview date, Town & Country refused to interview ten of the eleven union applicants, giving procedural and staffing reasons that the ALJ found implausible given continuing labor needs.
- One union applicant, Malcolm Hansen, was interviewed and hired through Ameristaff; after he discussed unionization at the jobsite, he was terminated soon thereafter.
- The ALJ credited evidence of antiunion motive, discredited Town & Country’s explanations for the non-interviews and Hansen’s termination, and the NLRB found violations of NLRA §§ 8(a)(1) and 8(a)(3).
- After the Supreme Court held that paid union organizers can be “employees” under NLRA § 2(3), the case returned to the Eighth Circuit for review of the remaining challenges.

## Issues

1. Whether substantial evidence supported the NLRB’s findings that Town & Country violated NLRA §§ 8(a)(1) and 8(a)(3) by refusing to interview or consider union-affiliated applicants because of union status.
2. Whether substantial evidence supported the NLRB’s finding that Town & Country violated NLRA §§ 8(a)(1) and 8(a)(3) by discharging Hansen because of union activity.
3. Whether the NLRB’s remedial order (including reinstatement, backpay, and notice posting) was lawful and within the Board’s discretion.

## Decision

- The Eighth Circuit denied Town & Country’s petition for review and granted the NLRB’s cross-application for enforcement.
- Applying the Supreme Court’s interpretation of NLRA § 2(3), the court treated the union applicants (including paid organizers) as statutory “employees.”
- The court held substantial evidence supported the Board’s finding that Town & Country discriminatorily refused to interview or consider the union applicants due to antiunion animus.
- The court held substantial evidence supported the Board’s finding that Hansen’s termination was motivated by union activity and that the employer’s stated reasons were pretextual.
- The court enforced the Board’s remedy, finding no abuse of discretion.

## Legal Principles

- NLRA § 2(3) includes workers who seek employment with an employer even if the union simultaneously pays them to organize that employer.
- An employer violates NLRA § 8(a)(3) (and derivatively § 8(a)(1)) by refusing to hire, interview, or consider applicants because of union membership or organizing activity.
- An employer violates NLRA § 8(a)(3) (and § 8(a)(1)) by discharging an employee due to protected union activity; the Board may infer unlawful motive from timing, inconsistencies, and credited testimony.
- On judicial review, the NLRB’s factual findings are upheld if supported by substantial evidence, with special weight given to ALJ credibility determinations adopted by the Board.
- The NLRB has broad remedial discretion to order make-whole relief, reinstatement, and notice posting to cure unfair labor practices.

## Conclusion

The Eighth Circuit enforced the NLRB’s order, holding that union “salts” are statutory employees and that substantial evidence supported findings that Town & Country discriminatorily screened out union applicants and discharged Hansen for union activity, warranting reinstatement and make-whole relief.


Town & Country Elec., Inc. v. NLRB, 106 F.3d 816 (8th Cir. 1997)