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If a paid union organizer applied for a job at a non-union company, most employers would probably refuse to interview that applicant, fearing that the applicant would attempt to organize the company or otherwise pose an unionization threat. In National Labor Relations Board v. Town & Country Electric, Inc., however, the United States Supreme Court held unanimously that such applicants – known as “salts” – are protected employees under the National Labor Relations Act (the “NLRA”). Thus, the NLRA’s protection against anti-union discrimination now extends to individuals who work for a company while a union simultaneously pays them to organize that company.

The employer, Town & Country, a non-union electrical contractor, sought to hire several licensed electricians. The union agreed to pay its members the difference between union-scale wages and their non-union salary if they would accept a non-union job at Town & Country and help to organize the workplace. Town & Country refused to interview 10 of 11 union applicants. The company hired the one union applicant it interviewed, but fired the union member after only three days on the job.

The union members filed complaints with the National Labor Relations Board (the “Board”). The Board ruled in favor of the union members, finding that the company committed an unfair labor practice by refusing to interview or retain the individuals because of their union membership. The Board’s decision rested on its interpretation of the term “employee” in the NLRA to include job applicants working as paid union organizers. On appeal, the Eighth Circuit Court of Appeals reversed the Board, ruling that the NLRA did not protect such individuals.

“Salts” Are Covered Employees
The United States Supreme Court affirmed the Board’s interpretation of the term “employee” to include applicants and workers who are also paid union organizers.

The Court found the Board’s interpretation to be consistent with the Act’s definition of a covered employee, which provides that “the term “employee” shall include any employee” with only certain specified exceptions. This language, according to the Court, was broad enough to include company workers paid by a union for organizing purposes. In addition, the Court noted that union organizing is a protected activity under the NLRA and, therefore, an employer may not require a worker to refrain from engaging in such protected activity, regardless of whether the company perceives those activities as disloyal.

Relying on common law agency principles, Town & Country argued that an individual may not be a servant or employee of two masters if service to one necessarily excludes an intent to serve the other. Town & Country argued that a paid union organizer, at times, will serve the union in ways that will be adverse to the company and, therefore, must be the servant of the union alone. For example, Town & Country suggested that the “salt” may desert the company upon request by the union or possibly sabotage the company or its products.

The Court disagreed, finding that a person could be the servant of the union and the company at the same time. Like the Board, the Court found that service to the union for pay did not involve abandonment of service to the employer. In the Court’s view, it “should make no difference” that union and company interests may, at times, differ. The Court also pointed to the possibility that the employees may limit their organizing efforts to non-working hours, which the Court compared to “simple moonlighting, a practice wholly consistent with a company’s control over its workers as to their assigned duties.”

The Court expressly limited its opinion to the narrow issue of the Board’s construction of the term “employee.” The Court left open the issue of whether a paid union organizer shares a sufficient “community of interest” with other employees as to wages, hours and working conditions to warrant inclusion in the same bargaining unit.