When Job Applicants Volunteer Union Membership

Friday, October 25, 2013

I recently provided some compliance counseling in a situation where an employer engaged in hiring laborers for a new construction project encountered applicants who brought up their union affiliation during the interview process or included union-specific content on their application materials.  Because the employer sensed he might be entering dangerous waters, he reached out for guidance.

The federal agency that determines whether an employer has committed an unfair labor practice is the National Labor Relations Board (NLRB).  When a labor union or union member believes that an employer has evaluated the suitability of job candidates according to their pro-union opinions, past union membership or interest in union organizing, the union or union member will often report that conduct to the NLRB and request an investigation.

The basic test the NLRB has developed for evaluating whether a pre-employment hiring process violates federal labor laws is whether, under all circumstances, the employer's process reasonably tends to restrain, coerce, or interfere with rights guaranteed by those laws.  For example, the NLRB has determined that questioning job applicants during interviews violates federal law when the questions are designed to generate information for the employer about pro-union opinions, past union membership or interest in union organizing, and when the interview includes threats of unfavorable consequences if the applicant engages in pro-union activity or has contact with union organizers.   Even in cases when the job applicant is hired, the NLRB can still determine that questions during the job interview concerning former union membership and union preference are unlawful.

The problem, of course, is that sometimes unions send their organizers -- known as “salts” -- to actually apply for jobs with an employer and, during the interview process, these persons openly announce that they are pro-union or intend to organize for the union while working.  The U.S. Supreme Court has held that even these persons must be treated like any other job applicant, without discrimination.

The following rules MUST be followed at all times by supervisors and all hiring personnel:
  1. Do not ask applicants about union membership either on a form or during an interview.
  2. Never tell union applicants that no jobs are open while running a help wanted ad or hiring off the street.
  3. Never hire non-union applicants with little experience for skilled jobs, despite the fact that qualified union applicants are available.
  4. Never tell union applicants that interviews or written applications are required while hiring other applicants without them.
It is important for supervisors and all hiring personnel to be aware of the basic rules of salting.  Your failure to respond properly can result in litigation against the employer, including severe financial damages and penalties.
"What if an applicant tells me during an interview that he or she is a union member without my asking?"
That should make no difference to your hiring practices. Just follow your normal procedures.  Do not respond negatively, angrily or critically when statements like that are made during an interview.  Your response to any reference to union membership or pro-union opinions should be, "It is our practice to hire the best qualified applicants.  We give no preferential treatment to anyone nor do we discriminate against anyone on the basis of their union membership."