Indiana Salt Permitted to Lie on Job Application

U.S. Court of Appeals for the Seventh Circuit said Feb. 6 that a paid union organizer is permitted to lie on his employment application about his status as a “salt,” or about facts that might raise suspicion that he is a union organizer, so long as he has not misrepresented facts relevant to his job qualifications. The lie is not material, the court said in addressing the question left open by the Supreme Court’s decision in NLRB v. Town & Country Elec., 516 U.S. 85 (1995), because “an employer cannot turn down a job applicant just because he’s a salt or other type of union organizer or supporter.”  Salting is the union practice in which organizers obtain employment with a nonunion firm and try to organize the company’s employees. Even an Indiana statute that criminalizes intentionally making false statements to obtain employment will be preempted by the Nat’l Labor Relations Act, the Seventh Circuit said, if that state law is interpreted to allow an employer to turn down an applicant because he lied about salt status.

The Seventh Circuit held that even though Michael Starnes had lied about why he left his last job, Hartman Bros. Heating & Air Conditioning violated the NLRA by sending Starnes home after he revealed his status as a paid union organizer. Starnes had stated on his job application that he had been laid off from his previous employment at an $11-per-hour job, when he had actually taken a leave of absence to work at Hartman for $8.50 an hour. Although Hartman justifiably discharged him later that day when the company learned that his driving record prevented him from being insured, a mandatory job qualification, the court enforced the NLRB’s order that Starnes be paid for the day up until the time he was justifiably fired.

Judge Richard A. Posner (7th. Cir., Reagan) wrote the decision, and Judges William J. Bauer (7th Cir., Ford) and Terence T. Evans (7th Cir., Clinton) concurred in the opinion. William T. Hopkins of Barnes & Thornburg, Fort Wayne, Ind., represented Hartman. Stephen B. Goldstein, Washington, D.C., represented NLRB. Sheet Metal Workers Int’l Ass’n  Local 20, of Indianapolis, was an intervening respondent in the case. [BNA 2/11/02]