Preparing for Union Salts

October 1, 1997

When do you not want skilled workers? Answer: When they have not really come to work. Today, AGC of Ky.'s many "merit shop" members face this dilemma.

The dilemma is created by union "Salting." Union "Salts" often apply for work not in the hope of being hired, . . . but in the hope of burdening the "merit shop" contractor with defending multiple legal actions.

"Salting" works like this. After a merit shop contractor is awarded a job, a large number of union members submit job applications. Although they may be journeymen level craftsmen, they often say that they will accept "any job available." If any of the union applicants are not hired, then, the Union files "Unfair Labor Practice Charges" with the National Labor Relations Board (NLRB) against the merit shop contractor.

"Salting" may have replaced picketing as the Trade Union's favorite weapon against merit shops. Earlier this year, a "merit shop" contractor, working in Kentucky, had to pay almost $200,000.00 in settlement of claims that it discriminated against union workers.

The Law. 

The National Labor Relations Act makes it illegal to refuse to hire a job applicant because he/she is a union member, or even a union organizer. Most contractors are aware of such anti-discrimination laws. The problem, however, is that any time a merit shop contractor fails to hire a Union "Salt," the "Salt" will charge the contractor with unlawful discrimination regardless of the real reason why the union applicant was not hired.

Many contractors have employment policies that have the effect of disqualifying many Union "Salts." Unless these employment policies are put in writing, however, and consistently applied, proving that the Union "Salt's" union status was not the "real reason" why the "Salt" was not hired will be difficult.

For example, few contractors hire skilled workers to fill laborer or "helper" jobs. Policies against hiring over-qualified workers are perfectly legal. Yet they often have the effect of disqualifying many union "Salts." This is because most "Salts" have an employment history of performing higher skilled jobs. Unless your "overqualified" policy is in writing, and applied consistently, however, the NLRB will, likely, conclude that the "real reason" for your failure to hire the union applicant was his/her union status. The same is true of almost any policy that has the effect of "screening out" Union "Salts."

What To Do.

Merit shop contractors should be careful to put in writing and consistently apply any employment policy or practice that has the effect of disqualifying union "Salts" for employment. In addition to policies against hiring "over-qualified" applicants, the following are examples of employment policies that may have the effect of disqualifying union "Salts."

1. No "Moonlighting" Policies - Some employers have a policy against hiring persons who have a second or "moonlighting" job. Such a policy prevents hiring paid union organizers. Employment by the union is a "second" job.

2. No "Moonlighting At Work" Policies - These policies forbid employees to earn extra money by engaging in other activities while at work for the employer. Examples of activities forbidden by "no moonlighting-at-work" policies include selling Amway, long distance services, vitamins, or other multi-level marketing products, while at work. These policies would also forbid earning money from a union for organizing activities at work.

3. No "Stale" Job Applications - Many employers put time limits on how long an employment application remains "active" for consideration by the employer. These policies have the effect of washing out the applications of "Salts", if they fail to reapply for work, after their applications expire.

4. No Mail-In Applications - Many employers require job applicants to apply in person. Salting Campaigns often rely upon mailed applications.

5. Hiring Priorities - Many contractors have established priorities for hiring applicants. For example, a contractor may always hire former employees first, then graduates of vocational or other training programs, then persons recommended by current employees, etc. Since such hiring priorities may place other applicants ahead of Union "Salts," such hiring priorities should be reduced to writing and consistently applied in order to survive legal attack.

Caution!

In order to be lawful, an employment policy or practice must be "neutral" as to a job applicant's union status. If the NLRB or the Courts find that an employment policy was adopted for the purpose of screening out Union "Salts," it will be illegal. If the employment policy is applied in a discriminatory manner so that only Union "Salts" are eliminated from consideration, the policy will be illegal. For these reasons, unless your employment policies are reduced to writing before Union "Salting" begins, worded in a "neutral manner," and consistently applied, your policies may not stand up to a legal challenge. For this reason, you should consult your labor law before "Salting" occurs, whenever possible.

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