Union Salting Defenses Upheld
You place a newspaper ad for five common laborers to help your regular skilled construction workers on a new project. You plan to pay the laborers about $10 per hour. Fifteen experienced, journeymen craftsmen fill out applications. Since their past jobs all paid over $20 per hour, you hire some recent high school graduates, who you think will stick with the job, instead. What’s wrong with that?
If the journeymen craftsmen are union members, this simple hiring decision may create a legal mess. The National Labor Relations Board (NLRB) may charge your company with unlawful discrimination against union members. The NLRB will provide the union with an NLRB lawyer, leaving your company to pay for its own defense or face an automatic order to hire the union members and pay them backpay.
As discussed in an earlier Benchmark article (Fall 1997), unions increasingly are sending union members to apply for work with merit shop contractors. The purpose of this practice, called “SALTING,” is not to find jobs for out-of-work union members. Rather, the purpose of SALTING is to create legal and management hassles to force merit shop contractors to sign union shop agreements or shut down. A recent court decision, however, confirms the validity of the contractor’s “first line of defense.” This is a provable reason for the contractor’s hiring decision that has nothing to do with the applicant’s union status.
In Clark Electric, Inc. v. NLRB and IBEW Local 38, the Federal Appellate Court, with authority over Kentucky, Tennessee, Ohio and Michigan, recognized that the following are legitimate reasons for hiring a non-union applicant over a union “salt”:
1. Customer recommendation of the applicant;
2. Applicant’s wage expectations are within the job’s range of pay;
3. Higher score on knowledge/skill tests;
4. Past experience working with or for the contractor.
The above lists are merely illustrations. Any legitimate business reason for choosing one applicant over another can justify a failure to hire a union “salt.” Beware, however, the Court must be convinced that the contractor’s stated business reason is the real reason for the hiring decision, not just an excuse to avoid hiring the union applicant.
The best practice is to establish a written, hiring priority that lists the most important factors that will govern who you will hire. Then, establish a record of sticking to this hiring priority before union salts show up.
Of course, if a union applicant is the most qualified under your hiring priority, you may not lawfully discriminate against the union applicant. Your other employees have a right to know, however, that unions target merit shop contractors because the union is mad because the merit shop contractor has hired them, the union-free construction worker. Unions don’t have enough jobs for their members, so they want your employees’ jobs. This knowledge may help your employees resist a union “salt’s” efforts to recruit your employees for the union or lead them out on strike.