U.S. Supreme Court Gives Protection to Union Organizers

In a unanimous decision, the United States Supreme Court ruled that Union Organizers (known as "Salts") may be considered employees under the National Labor Relations Act ("Act"). NLRB v. Town & Country Electric, Inc., No. 94-947 (U.S. S.Ct. November 18, 1995). In so ruling, the Court reversed the 8th Circuit Court of Appeals and resolved an issue over which the federal circuit courts have been split. This case arguably provides protection for applicants for employment who seek positions, in part, to organize the company's employees from within. The logical implication of this ruling is that employers cannot refuse to hire an applicant simply because they are paid by a union to help organize the employer.

Traditionally the National Labor Relations Board ("NLRB") has treated paid union organizers seeking employment to unionize an employer's workforce like any other applicants who are protected against discrimination based upon union affiliation. Among the federal circuit courts there has been a split of authority on whether paid union organizers are employees protected under the Act. This Supreme Court decision upholds the NLRB treatment of paid union organizers as employees under the Act.

The Town and Country case involved two full time union organizers who were applying for positions with a non-union employer as well as other union members who were encouraged by the union to apply for jobs with the non-union employer, and to whom the union agreed to pay the difference between their salaries and union scale wages. The NLRB had ruled that these union organizers were employees under the Act and the 8th Circuit Court of Appeals reversed that ruling. However, the United States Supreme Court reversed the 8th Circuit in this recent decision and upheld the NLRB interpretation.

The Supreme Court held that the NLRB's interpretation of the definition of employees under the Act was lawful and consistent with the broad language of the Act, its legislative history, and Supreme Court precedent. The Court also found that it was consistent with several of the purposes of the statute, including protecting the rights of employees to organize without employer interference.

The employer, among other things, argued that an employee cannot serve two employers. However, the Supreme Court ruled that, under the law, a person may be under the employ of two employers if service to the one does not involve abandonment of service to the other. In other words, if the union organizers are performing their assigned duties during work time, they have not abandoned service to their employer to serve the union.

The significance of this case involves the effect on the hiring and firing of paid union organizers. The logical extension of this ruling is that employers cannot refuse to hire or discharge paid union organizers because they intend to organize the employer. However, the Court cautioned that its ruling was a narrow one, and stated that it expressed no view on whether refusal to interview or retain union organizers is an unfair labor practice. Regardless, employers will need to be particularly careful in how they handle "salts" who apply for employment and/or employees who are discovered to be on a union payroll. Employers should consult legal counsel before taking any action against such people simply because of their status as paid union organizers.