During the 1990's many labor unions engaged in so-called "salting campaigns" against non-union employers. In a "salting campaign," union members and/or professional union organizers (the "salts") apply for jobs with a non-union employer and, if they are hired, they then try to organize the employer's employees "from the inside." Often during a salting campaign union organizers "mass mail" job applications from union members to an employer, or a group of union members show up all at once to apply en masse for employment with the employer. It is also common for union organizers to openly announce their identity and union organizational purpose when applying for employment with a non-union employer. Union salting campaigns received a boost from the U.S. Supreme Court in 1995 when the Court held in NLRB v. Town & County Electric, Inc., 516 U.S. 85 (1995) that a professional paid union organizer job applicant is an "employee" within the meaning of the National Labor Relations Act, and therefore that such a professional paid union organizer job applicant may not be denied employment simply because the organizer is a paid union employee or has an announced union organizational purpose.

     This pro-union law and union salting campaigns have not resulted in an upsurge of union membership in this country. Non-union employers have resisted these salting campaigns, and it now appears that union salting campaigns generally have not been very effective in helping unions organize the employees of non-union employers. However, union salting campaigns have generated much NLRB litigation. In particular, it is quite common for union organizers or union members who have applied for employment with but are not hired by a non-union employer to file unfair labor practice charges claiming that the employer illegally refused to hire them because of their union activities or affiliations.

     On February 27, 1997 the National Labor Relations Board in Washington, D.C. affirmed the dismissal of all unfair labor practice charges brought against a Southern Maine electrical contractor which had adopted a particular hiring policy and failed to hire union organizers on several occasions. Bay Electric, Inc., 323 NLRB No. 20 (1997).

     The union organizers and the NLRB's General Counsel asserted three unfair labor practice charges against the contractor: (1) that the contractor had discriminatorily refused to hire two union organizers in the fall of 1993, (2) that the contractor had adopted a discriminatory hiring policy in January, 1994, and (3) that the contractor had discriminatorily refused to hire a union organizer several times in 1995. Lawrence C. Winger, Esq. represented the contractor during a trial in Boston before the Administrative Law Judge, and on appeal to the NLRB in Washington.

     The first claim against the contractor was that the contractor refused to hire two union organizers in the fall of 1993. In September, 1993, the two union organizers, who were known to be such, applied for jobs by filing written applications with the company. The organizers were assumed to be qualified for the jobs for which they applied. The application forms stated that they were "active" for 60 days. In fact, the company's policy was to consider applications only for 60 days. The company's defense in this case was that it had no job openings and did no hiring during the 60 days after the applications were filed. The Administrative Law Judge and the Board rejected the union organizers' claims. The Board said:

     "We adopt the judge's finding that the Respondent did not, as alleged, violate Sec. 8(a)(3) of the Act by refusing . . . to consider for hire or to hire [the union organizers] during the 60-day period . . . when their applications were active (as provided on the face of the applications). There was no showing that the Respondent was hiring during those 60 days. Thus, the General Counsel failed to establish that there was any unlawful conduct at any time during that period."

     COMMENT: This holding reaffirms the requirement that in order to establish a failure-to-hire claim, a claimant must prove that the employer had relevant job openings (i.e., openings in jobs for which the claimant was qualified and had applied) and was hiring during the relevant period of time. The holding also shows that if an employer wants to consider job applications to be "active" for only a limited period of time, the employer may do so, but the employer should state the active period of time on the face of the application form itself.

     In January, 1994, the contractor adopted a hiring policy which stated in part: "We will only accept applications, asked for and filled out in person by the applicant. We will only accept applications when there is an opening; we will refuse all applications, resumes and inquiries when there are no openings for employment." The union organizers did not like this policy because it conflicted with their "salting campaign" practice of "mass mailing" multiple employment applications to the company. The union organizers and the General Counsel claimed that this policy was discriminatorily adopted to discourage union activity at the company. The company answered that the policy was legal on its face and that the policy had not been discriminatorily applied. The Administrative Law Judge and the Board rejected the union organizers' claims. The Board said:

     "There is insufficient evidence to establish that the Respondent's hiring policy requiring individuals to apply in person for posted job openings and keeping applications active for [only] 60 days was discriminatorily applied or promulgated to discourage union activity."

     COMMENT: Here we see an employer's first three lines of defense against a union salting campaign: 1. Only accept applications for posted or announced job openings. 2. Only accept applications which are completed and filed in person by the applicants (i.e., don't accept mailed-in applications). 3. Only consider filed applications "active" for a limited period of time. To be legal, these policies must, of course, be applied evenhandedly to all job applicants, not just to union organizers, and these policies must be adopted and implemented before a union organizing campaign begins, not during an organizing campaign.

     The final claim against the contractor was that the contractor had refused to hire a union organizer several times in 1995. The evidence showed that on the first of those occasions the organizer, in the middle of an otherwise extended discussion about various non-employment topics with a company manager, said "I was just wondering if you were looking to hire at all," to which the manager replied, "We're not hiring anybody right now," and then the subject was not discussed further. The organizer never asked for or submitted a job application. The subsequent visits were basically the same. On these facts, the Administrative Law Judge ruled that the organizer had never actually asked for or applied for work for himself; instead, his comments appeared to be inquiries about what work might be available for other union members. The Administrative Law Judge dismissed the organizer's failure-to-hire claim, and the NLRB affirmed that dismissal.

     COMMENT: This holding is just a reaffirmation of the general rule that, as the Administrative Law Judge said, it is a "basic predicate" of a failure-to-hire claim that the claimant proves that the claimant actually applied for employment with the employer. Many individuals inquire about jobs but don't actually apply for employment. Others commence the employment application process but then fail to complete the process in one way or another. An employer should clearly state what its job application requirements are and only accept applications that are properly completed and filed.

     WARNING: One of the union organizers involved in this case brought a concealed tape recorder to the employer's premises and secretly tape-recorded his conversations with the employer's manager and office employees! The employer did not learn of these tape recordings until they were used as evidence in the unfair labor practice trial! Employers are warned to be very cautious about having undocumented oral conversations with union organizers. An employer may refuse to have a conversation with any job applicant who wants or tries to tape-record the conversation.

DISCLAIMER: All information is provided for educational or promotional purposes only and not as legal advice on a particular matter. The information is provided AS IS with no warranties of accuracy, completeness, merchantability, or fitness for a particular purpose. Providing this information DOES NOT create an attorney-client relationship between Lawrence C. Winger, Esq. and the reader. All information is Copyright (c) Lawrence C. Winger, Esq. 2000 All Rights Reserved.

Dated: January, 2000
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