"Salting" cases clarified by NLRB - National Labor Relations Board claims unfair labor practices by FES - Brief Article

Workforce, August, 2000 by D. Diane Hatch, James E. Hall

A recent case concerned the discriminatory refusal to hire union "salts" i.e., individuals who seek employment at least in part for the purpose of organizing the employer. The National Labor Relations Board concluded that an employer, FES, committed unfair labor practices by refusing to consider nine members of Plumbers and Pipe-fitters Local 520 for employment. However, the board remanded the case for further findings to decide whether each applicant would have been hired in the absence of anti-union animus.

In so doing, the board clarified what must be proved to establish a violation of federal law regarding "salts," such as: the employer had concrete plans to hire applicants; the applicants had experience or training relevant to the announced positions for hire, or the requirements were a pretext for discrimination; and anti-union animus contributed to the refusal to hire.

The employer must then show that it would not have hired the union applicants, regardless of their union affiliations. For example, the employer may show that the applicants did not possess the specific qualifications for the position, or that others who were hired had superior qualifications. FES, a Division of Thermo Power, 331 NLRB No. 20 (2000).

Impact: Employers may defend refusals to hire union "salts" on the grounds that such individuals were refused job offers for legitimate, non-discriminatory reasons.

D. Diane Hatch, Ph.D., is a human resources consultant based in San Francisco. James E. Hall is an attorney with the law firm of Barlow, Kobata and Denis, with offices in Los Angeles and Chicago.