The latest labor law case on salting
By John D. Finerty Jr.
of Palmer & Finerty, S.C.
Feb. 8, 2002
John D. Finerty Jr.
Palmer & Finerty, S.C.
On Feb. 6, the United States Seventh Circuit Court of Appeals in Chicago, the federal appellate court that covers Wisconsin, decided Hartman Brothers Heating and Conditioning v. NLRB. In that case, the court affirmed an order of the National Labor Relations Board that held the employer committed unfair labor practices by refusing to hire a union organizer and terminating the employment of another who was attempting to organize employees. In affirming the NLRB’s order, the court held that union salts, even when they obtain employment by lying on a job application, may be entitled to back pay and reinstatement — or in the case of rejected applicants, instatement — if the applicants’ support for the union motivated the employer’s decision to terminate.
Union salts are really paid union organizers. Salts are widely used as unions have stepped up their organizing efforts to bolster decreasing membership numbers. If the salt is not hired, the union may file an unfair labor practice charge with the National Labor Relations Board and claim that the refusal to hire was because of union affiliation. If the board decides that the employer refused to hire the salt because of a union affiliation, the board may order a number of different remedies, including reinstatement — or, in the case of a rejected applicant, an order to hire — and back pay.
How salts operate
The Hartman Brothers case demonstrates the process unions use to organize nonunion employers using salts. In that case, the sheet-metal workers union sent two applicants to Hartman Brothers Heating to apply for a job that paid about $8.50 an hour.
One of the employees, Starnes, wrote on his job application that he had been laid off from a previous job that paid $11 an hour. In actuality, Starnes was on a leave of absence from a union employer in order to participate in the union’s organizing efforts at Hartman. A second employee, Till, applied for a similar position but disclosed he was a union organizer, wore a baseball cap with the union’s logo on it and told the employer he was there to organize its employees. The employer did not hire Till, but it did hire Starnes.
Immediately after hiring Starnes, however, the employer sent him home purportedly because the company wanted his driving record cleared with its insurance company. Starnes would have been required to drive a Hartman Heating truck in the course of his employment. Starnes’ driving record was, however, worse than he admitted on his job application, so Hartman fired Starnes as well.
The union filed an unfair labor practice charge with the NLRB. The board, after conducting a trial, held that Hartman’s motivation in refusing to hire Till was because he was a paid union organizers. The board ordered Hartman to hire Till and to also pay Starnes for the eight-hour workday for which he was initially hired.
The legal rule
The federal appeals court affirmed the NLRB order and, in doing so, noted that salts often conceal the fact that they are union organizers and may lie on job applications. The important question addressed by the court was whether a salt may lie on a job application to get a job with a nonunion employer. The court wrote: "We think that he may, at least if the lie concerns merely his status as a salt, union organizer or union supporter and not his qualifications for the job." The court reasoned that an applicant’s status as a salt does not entitle the employer to infer that he will not be a bona fide employee. The court also pointed out, however, there may be particular jobs that may require loyalty to the employer, usually by virtue of little or no supervision, and, therefore, lying on a job application may be relevant.
Union members are employees
An employer cannot refuse to hire a salt solely because of a union affiliation. Salts are protected from discriminatory termination of a refusal to hire by the United States Supreme Court’s decision in NLRB v. Town & Country Electric Inc. In Town & Country, the court held that a worker or applicant is considered an employee even if, at the same time, a union pays that worker to organize the workplace. Therefore, an employer’s refusal to hire a union organizer on the basis of his or her union status is considered a violation of the National Labor Relations Act. If union salts are qualified, an employer cannot refuse to hire the union applicant based on union affiliation alone.
Mentioned in this Article
Prepare to be fair
So what can an employer do to limit its liability? One alternative is to implement neutral policies and procedures before salts begin applying. The policies should not consider union affiliation as a hiring criteria anymore than one would consider race, national origin or any other protected category. The NLRB has also approved some other neutral employment policies.
One alternative is to implement a conflict of interest policy that provides employees are not allowed to simultaneously hold a full-time position with another employer in or affiliated with the building or construction industry. As with any workplace policy, a conflict of interest policy should be included in the employee handbook and communicated to everyone in the company. Besides having a carefully drafted policy in place, the employer must also enforce the policy in all instances and document each infraction.
If the employer is lax about enforcing the policy, or gives employees exceptions for nonunion-related employment, the union can argue that the policy is only in place to target union salts.
Another practical tip is to put policies in place to closely – but objectively – review all job applications. When an employer is targeted for a unionization drive, unions will often bombard the employer with union members’ applications for every job opening.
If the employer does not take the time to review the applications and hire the most qualified candidates, there may be an inference that the contractor considered factors other than qualifications – such as union affiliation. Prospective employees may be required to apply in person, fill out the application on the employer’s premises and submit to an in-person interview. These are not simply techniques to address salting by unions, but common sense precautions to make sure you hire the most qualified applicant.
John Finerty Jr. can be reached at Palmer & Finerty, S.C., 262-798-1111, or visit laborlogic.com.