Construction Industry "Salting" Tactics

How Employers Win "Salting" Cases

by Richard H. Wessels, Esq.

By now virtually all construction industry employers are well aware of the infamous "salting" tactic.

In its simplest form, a "salt" is a job applicant who is controlled by a union. Under the current state of the law, a "salt" has protection of the National Labor Relations Act. A negative personnel decision routinely results in NLRB litigation.

The Union’s plan is that, in various ways, the "salt" will make your life miserable. The Company is placed in the "no-win" situation of defending NLRB charges for failure to hire or giving a paid union organizer full access to employees and property. Pain is then inflicted upon an employer to such a degree that he will eventually capitulate (or so the Union hopes) and sign the Union’s area agreement.

There are sound legal arguments that "salts" should not be given the protection of the National Labor Relations Act. However, such is not the state of the law. The U.S. Supreme Court in the landmark Town & Country Electric case found that such an individual is protected by the Act. Efforts to legislatively address this bad case have thus far failed.

The key to dealing with this union tactic is preparation. Fact patterns are widely divergent. Companies will vary greatly as to their needs and personnel procedures. However, it is instructive to note some successful defenses. Examples are:

• Applicant violated Company rule against non-responsive information on application. Thus, the application with comments like "volunteer union organizer" disqualified the job applicants. (Boilermakers v. NLRB)
• Employer was not hiring. (Norris Electric)
• Refusal to consider faxed applications where Company policy was that photocopied applications were not accepted. (Industrial Construction Services)
• Applicant had poor personal hygiene. (Clock Electric)
• Intimidating and disrespectful conduct (insistence on video taping the process) sufficient to disqualify applicants. (Heileger Electric)
• Applicant wanted higher compensation than Company was willing to pay. (M&M Electric)
• Applicant was rude and offensive during the application process (Global Industrial Contractors)
• Company had a policy of not hiring employees who had other full time employment. Note that this is a particularly tricky issue because of the potential that it could be viewed as a pretext for refusing to hire union organizers. (Architectural Glass & Metal)
• Company policy valid for job applicants to complete job application at a particular job service office on special forms. No labor law violation when photocopied applications were rejected. (Industry Co. S.E.)
• No violation to fail to hire applicant because he had primarily worked as a supervisor in prior positions. (BE&K Construction)
• Applicant drove another company’s truck to the interview. (M&M Electric)
• High wage history sufficient to disqualify candidates. (J.O. Mory)

Keep in mind that these are just examples. Note particularly that slight changes in the facts could change the results. Indeed, in a recent speech, one of the five NLRB members stated: "The question of ‘salting’ is one of the most difficult issues the NLRB faces. Both the NLRB and the courts are all over the place."

If any readers wish the full citation on any of these cases or a copy of the case itself, give my legal assistant Mary Beth Connelly a call at (630) 377-1554 or via fax at (630) 377-1653; or e-mail Ellyn Schuster @ elschuster@stch.w-p.com.