Judge Strikes Down Contractor’s “No Union Hires” Policy

Kollman & Saucier
Kollman & Saucier

Late last month, a NLRB Administrative Law Judge found that a Pennsylvania construction contractor violated the NLRA by screening out applicants with union backgrounds.  Hard Hat Services,  4-CA-196783 (12/27/17). The Judge found that the company improperly asked applicants about their union membership and relied on an on-line recruiting service to screen out applicants who appeared to have union affiliation.

The NLRA makes it illegal for an employer to refuse to hire someone because they have a connection to a labor organization.  In Hard Hat Services, the company placed an ad looking for electricians, helpers, and foremen.  An organizer for the IBEW union arranged for two electricians to apply for jobs and disclose both their union membership and the fact that they worked for union contractors in their applications.  He also arranged for a third applicant — who had far less experience than the other two  — to apply and conceal his union membership. Sure enough, the less experienced applicant was contacted for an interview, while the other two applicants were never contacted.  During the interview, he was asked whether he had ever worked for a union company, as well as whether his father was in a union.  The applicant answered “no” to both, and he was offered a job.

Given these facts, it is not surprising that the ALJ found that Hard Hat violated Section 8(a)(3) of the NLRA by discriminating against applicants based on their union activity.  This case is a classic example of “salting,” where union organizers set up an employer with clearly qualified applicants who disclose obvious union affiliations.  While the Trump NLRB may be taking a somewhat more pro-employer view toward unfair labor practice charges  than its predecessor,  such blatant violations of the law will still leave the “salted” employer with a bitter taste in its mouth.

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