button Vol. 5
No. 5
Fall 2000

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Plan To Add 1 Million Union Members
line NLRB Regulation of Nonunion Conduct
line E-mail can lead to legal quagmire
line NLRB -
news about "salting"

line Violence
Top Security Concern in 2000

line Briefs


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button NLRB - New approach in "salting" cases.

The issue of union "salting" in the workplace is in the news again.
Recently the NLRB changed and clarified its approach to cases involving "salting" - the practice of union activists or organizers applying to a non-union employer with the objective of getting hired and then engaging in union organizing.

The NLRB in slip 331-20 addresses the NLRB General Counsel's (GC) action to bring two Section 8(a)(3) charges against an employer (FES - A Division of Thermo Power).

The charges are for (1) refusal to hire and (2) refusal to consider nine applicants because of their union activity or affiliation. The NLRB (1) remanded the refusal-to-hire charges for further hearing, and (2) held that the employer committed unfair labor practices as to the refusal-to-consider.

Here are more details as explained by the General Council (GC).

(1) Refusal-to-hire.

The burden is on the employer to show "that it would not have hired the applicants even in the absence of their union activity or affiliation."

"The issue of whether the alleged discriminatees would have been hired but for the discrimination against them must be litigated at the hearing on the merits." The GC must initially show that "antiunion animus was a motivating factor in the decision not to hire, and that there was at least one available opening for the applicant."

If the number of applicants exceeds the number of openings, a cease-and-desist order is warranted if only one applicant was discriminated against. Compliance proceedings are limited to allocating specific discriminatees to specific openings, precise calculations for the make-whole remedy, and adding new discriminatees respecting openings arising during or after the hearing on the merits.

(2) Refusal-to-consider.

At the hearing on the merits the GC must show:
"(1) that the respondent excluded applicants from a hiring process; and (2) that antiunion animus contributed to the decision not to consider the applicants for employment."

The NLRB can find a refusal-to-consider violation even when an employer is not hiring. The remedy for a violation is a cease-and-desist order, consideration for future openings, and notification. If jobs open after the beginning of the hearing, the GC can use compliance proceedings to establish a refusal-to-hire.

If you need help in preventing the "salting" of your workplace, just give us a call at Braun Consulting Group, or email us at
Contact Braun-BCG.

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