No. 22-2958 ___________________________

Strategic Technology Institute, Inc.

Petitioner

v.

National Labor Relations Board

Respondent ___________________________

No. 22-3045 ___________________________

Strategic Technology Institute, Inc.

Respondent

v.

National Labor Relations Board

Petitioner ____________

National Labor Relations Board ____________

Submitted: September 20, 2023 Filed: December 6, 2023 ____________ Before LOKEN, WOLLMAN, and BENTON, Circuit Judges. ____________ BENTON, Circuit Judge.

Strategic Technology Institute, Inc. (“STI”) petitions for review of the National Labor Relations Board’s order that it violated subsections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3). See Strategic Tech. Inst., Inc. and Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO, 371 NLRB No. 137, 2022 WL 4237157 (Sept. 13, 2022). The Board seeks to enforce the order. Having jurisdiction under 29 U.S.C. § 160(f), this court grants the petition for review, vacates the order, and remands.

I.

From August 2017 until July 2020, STI had a contract to maintain engines and propellers for the U.S. Air Force. Tyler Boyd of STI fired 17 employees from its Little Rock facility—three on September 27, 2019, and fourteen on October 9, 2019. Boyd, the program manager for the contract, who was based in Texas, did not visit the Little Rock facility before the terminations. He managed remotely through site supervisor Gerald Kiihnl, who resigned the day after the last terminations.

In the summer before the terminations, STI’s Little Rock employees began discussing unionizing. Mechanic Eric Rambo resigned on August 30, 2019. That day, by a phone call, he told Boyd that employees were discussing unionizing. In an exit interview, Rambo told Kiihnl that employees were considering “trying to get a union in.” Kiihnl relayed this to Boyd in a phone call.

From March to September 2019, the Air Force issued STI five corrective action reports (“CARs”) for safety and performance issues. On September 18, a CAR cited STI with leaving a screwdriver in an aircraft engine it had serviced. The CAR required STI to explain the corrective acts it would take to prevent similar

-2- issues. STI responded with tool-accountability training and procedural changes. STI added: “Training and re-training have unfortunately proven not to be effective. Counseling is in order before loss of limb or life occurs. These issues shall require actions to be taken.”

STI found three employees responsible for the error. On September 23, Kiihnl verbally reprimanded them (the first discipline for the three). Later that day Boyd told Kiihnl that the discipline should be more severe. On September 27, Boyd fired the three employees.

On September 20, the day after learning of the CAR, Boyd had instructed Kiihnl to evaluate and rank 41 Little Rock employees, STI’s first rankings at Little Rock. Kiihnl completed this evaluation on September 23. He scored each employee as “3-out-of-5.” He then ranked them based on performance, attendance, and how well they worked with others. There is no evidence that union activity was considered in the rankings.

On October 9 (a day after Kiihnl returned from vacation), Boyd fired the 14 lowest ranked employees for “poor performance.” Boyd prepared an identical verbal-counseling form for each fired employee’s personnel file. The ALJ and Board found that these forms, which cited the five 2019 CARs, were “full of falsifications” and “outright lies.” On each form, Boyd copied Kiihnl’s signature without his authorization. (While Kiihnl wa