Union salting campaigns have lead to little union organizing but much litigation. This article discusses three federal court of appeals decisions from the late 1990's that clarified and strengthened the law for employers in this area. The three cases are Architectural Glass & Metal Co., Inc. v. NLRB, -- F.3d --, 154 LRRM 2560 (6th Cir. 2/24/97), TIC - The Industrial Company Southeast, Inc. v. NLRB, -- F.3d --, 156 LRRM 2485 (D.C. Cir. 10/7/97), and International Brotherhood of Boilermakers v. NLRB,-- F.3d --, 156 LRRM 2881 (11th Cir. 11/13/97).

      1. The Architectural Glass Case

     The company advertised its job openings in a newspaper. A full-time paid union organizer responded to the ad and applied for a job with the company. The organizer left a blank space for his "current employer" in the application form. He did not state on the form that he was a paid union organizer or worked full-time for a union. The company offered the organizer a job, after which the organizer, in a conversation he secretly tape recorded, told the company that he was a full-time paid union organizer. The company then withdrew its job offer because the company's policy was to not employ any person who had another full-time job. The organizer filed an unfair labor practice charge against the company. The NLRB found the company guilty of the unfair labor practice of discriminatorily refusing to hire the organizer because of his union activities. The NLRB also found the company guilty of improperly asking the organizer about his union employment status. The Court reversed the NLRB and held (1) that the employer lawfully had and enforced a policy denying employment to a job applicant, including a union organizer, who had other full- time employment, and (2) that as part of its implementation of its policy, the employer lawfully asked the organizer about his union employment.

      A. The General Rule of Non-Discrimination

     An employer may not refuse to hire a union organizer job applicant because the organizer works for a union or has announced an intent to organize the employer's employees. However, as the Court noted, there are important limits on this rule:

     "While paid union organizers are 'employees' within the meaning of [the National Labor Relations Act], that does not mean that an employer's refusal to hire a paid union organizer is always unlawful under [the Act]. Rather, as in all cases involving charges of employment actions motivated by antiunion animus, the employer should be permitted to attempt to demonstrate that it had a legitimate business reason for taking employment action against a paid union organizer. Indeed, just because an employee is a paid union organizer does not mean that an employer can take no adverse actions against that employee. . . . The Act does not impose an obligation on the employer to favor union members in hiring employees."

      B. The "No Two Jobs Rule"

     The Court stated: "A rule prohibiting an employee from working two full-time jobs is legitimate. An employer could reasonably conclude that the work product of an employee would suffer if that employee worked two full-time jobs. Additionally, an employer could require its employees to work overtime and on the weekends on a regular or irregular basis, and a second job would make it more difficult for an employee to comply with those requirements. Of course, such a rule must be applied in a nondiscriminatory fashion, and must be promulgated for nondiscriminatory reasons. . . . The Board actually concedes in its brief that employers may promulgate and enforce nondiscriminatory hiring practices excluding dual full-time employment candidates from consideration. [The Board has stated that] an employer may lawfully refuse to hire a statutorily protected employee applicant, including a paid union organizer, on the basis of a nondiscriminatory policy against hiring any individual who, for example, seeks only temporary employment, applies while working for another employer, or intends to work simultaneously for more than one employer."

      C. Questioning An Applicant

     "Because an employer may assert that it refused to hire a paid union organizer because of a legitimate nondiscriminatory policy regarding applicants who intend to work simultaneously elsewhere, it follows that an employer could ask an applicant whether he or she intends to work full-time for two employers. The nature of the information sought would be related to a legitimate policy of the employer. Consequently, in the absence of other circumstances suggesting that the inquiry was coercive, the interrogation [of a union organizer about his union employment] would be lawful." In other words, asking a union employee about his employment is not the same as asking a job applicant about the applicant's union membership.

      2. The TIC Case

     The company had these written job application requirements: applicants were required to complete applications at a particular job service office, in ink on special watermarked forms, and to omit any extraneous information not requested on the forms, such as "Vet, Boy Scout or Union Organizer." The company had a consistent practice of rejecting applications that did not conform to its guidelines, although two or three times the company had asked the job service to ask applicants who had submitted invalid applications to resubmit proper applications. Members of two unions mailed in two sets of job applications, completed at their union halls, on photocopied forms indicating union affiliation (the union added the words "union organizer" to each). The company rejected all the union members' applications because they did not meet the application requirements. The NLRB found the company guilty of illegally discriminating against the union members. The Court reversed.

      A. Non-Discriminatory Enforcement Of Required Application Procedures

     The Court stated: "Prohibited motive will not be inferred where job applicants fail to follow regularly applied, facially neutral application procedures. Here, the NLRB acknowledged that the Company regularly refused to consider all non-conforming applications, and it was undisputed that the Union applications did not conform to the guidelines. The mere fact that the Company knew the applications were from Union applicants does not show animus. There was also insufficient evidence of disparate treatment of other applicants. It was Job Services' policy to contact all persons whose applications did not conform with the guidelines, without regard to Union affiliation. That the Company on two or three occasions asked Job Services to follow its own policy cannot support a finding of discrimination [in a situation where] the Company did not make such a request. The record does not provide any evidence of a baseline practice from which the Company discriminatorily deviated in its treatment of the Union applications. . . . Where a company has consistently followed neutral guidelines, and does so in the case in question, it has met its burden of showing it would have refused to consider applications that deviated from the normal procedure. See VOS Elec., Inc., 309 NLRB 745, 753 (1992) (company burden satisfied where company "demonstrated that applications, from whatever source, were all processed in the same manner"). Here, undisputed testimony indicated that the Company normally rejected non-conforming applications. No evidence suggested that the Company actively considered non-conforming applications."

     In short, an employer's consistent handling of job applications will protect the employer from discrimination claims arising out of the rejection of the applications.

      3. The Boilermakers Case

     The company had a written policy providing that any application containing nonresponsive information would be disqualified. The application forms contained a statement that read: "PROVIDE ONLY THE INFORMATION REQUESTED. FAILURE TO DO SO WILL RESULT IN DISQUALIFICATION OF YOUR APPLICATION." The policy also provided that incomplete applications would be rejected. About eighteen union members applied for employment with the company. On their applications, the members identified themselves as "volunteer union organizers" by writing words to that effect at the bottom of each application. None of the individuals were hired. The company sent letters to each of the individuals, notifying them that their applications had been disqualified because they were not completed in accordance with the instructions. The letter informed them that they were free to re-apply. The company rejected all of the applications because they contained nonresponsive information. The NLRB ruled that the company's policy was unlawful. The Court reversed.

      A. The Application Requirements: Theory

     The company's theory in enacting the policy was that, if applicants were not permitted to provide nonresponsive information such as race, disability, or union affiliation, then the company could not use those factors against an applicant in the hiring process. Also, the company wanted clean, easy-to-read applications. Therefore, the company instituted a neutral nondiscriminatory policy which was designed to permit management to consider only those factors which were actually relevant to an applicant's suitability to a particular job. This was lawful.

      B. The Application Requirements: Practice

     The evidence showed that the company had enforced its policy in a non-discriminatory manner, and that the company's non-responsive information policy was in place long before the union members applied. Over the years, the company had disqualified approximately 200 applications for containing nonresponsive information. The evidence proved that the company did not only disqualify applications which contained union-related nonresponsive information but also disqualified applications containing other types of nonresponsive information. Furthermore, once the company determined that an application contained nonresponsive information, management sent a letter to the applicant informing him of his disqualification and inviting him to reapply. The union members who wrote "volunteer union organizer" on their applications received the same courtesy. This evidence proved that the company had not discriminated against the union applicants.

      4. Lessons Learned From These Cases And Tips For Avoiding Union Salting Problems

      A. Have The Best Hiring Policy That Is Right For You

     Not every company can realistically have hiring policies similar to those discussed above. Some companies could not enforce strict hiring and application requirements and still meet their hiring needs. Each company must decide for itself what hiring policy is realistic for that company. Most companies probably can have and enforce the "no two full-time jobs" rule or the "no incomplete applications" rule, but most companies may find it difficult to consistently enforce strict and detailed application form requirements or strict application procedures.

      B. Have A Well-Explained, Written Hiring Policy, And Adopt It Before Union Organizing Starts

     Don't wait for union organizing to start to adopt a written hiring policy. A new hiring policy adopted after organizing starts usually will be found to be unlawful. Only written policies can be used effectively to avoid union salting problems. Unwritten rules or unwritten past practices are simply an invitation to litigation and adverse NLRB findings. The written policy should explain why the hiring and application requirements have been adopted. The policy should state the neutral and non-discriminatory reasons for the requirements.

      C. Non-Discriminatory Enforcement

     The key for any employer is to fairly and consistently enforce whatever hiring or application policies the employer may have. An employer may not normally ignore its own policies and then, after organizing starts, enforce those policies only against union organizers or union members. An employer may only disqualify a union organizer's application for a reason that would disqualify a non-organizer's application.

      D. Advertising

     Advertise if you have to, but don't advertise if you don't have to. Union organizers get many of their salting leads from the help wanted ads. Why make it easy for them to target your operations?

      E. Watch Out For Secret Tape Recordings

     Many union organizers make secret tape-recordings of their conversations with employer representatives. Be careful! An employer may have a rule that tape-recordings of hiring conversations are not allowed and will be grounds for rejection of employment applications or termination of employment.

      F. If An Applicant Seeks Only Temporary Employment

     Don't forget that the NLRB has stated that an employer seeking a regular employee may reject an applicant seeking only temporary employment. This is important, because many union organizers seek only temporary employment with non-union employers. NOTE: In order to avoid unintended employment contracts, an employer seeking a regular, non- temporary employee must be careful not to promise long-term employment to a new hire, unless the employer wants to make such a promise of long-term employment.

      G. Put Specific Requirements Or Guidelines On The Application Form

     State a requirement or guideline relating to an application form in the form itself rather than in a separate document. The form itself will then advise the applicant directly and effectively of the requirement or guideline.

      H. Further Information

      For further information about union salting matters, see Lawrence C. Winger, Esq.'s posted article: Employer Defenses Against Union Salting Campaigns

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: February, 2000
[Top Of Page]