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Wednesday, February 24, 2010
Defense Against Union Salting Campaigns
While the recession has landed a solid jab on the nose of construction companies and merit shop workers, it has sent organized labor to the canvas. According to data from the federal Bureau of Labor Statistics, the economic barrage that has pummeled the construction and manufacturing industries has driven private-sector union membership down 10 percent in the last year, accelerating a 50-year downward spiral.
Unions are in trouble, and like a cornered tiger, they are desperate to find an escape. That means aggressive, often unethical, and sometimes illegal organizing tactics will be on the rise. Unions possess an arsenal of obvious yet effective tools to try to boost membership at the expense of project developers, taxpayers and open-shop company owners.
Among the most effective is the salting campaign, a strategy aimed at forcing a non-union company to sign a union contract, often regardless of the firm’s employees’ wishes. Failing to strong-arm the company, the union’s secondary goal is to bury the company under an avalanche of unfounded labor complaints, forcing it to expend time, money and other resources to defend itself rather than competing for and completing construction projects.
As noted, salting is a tried-and-true method of legal harassment, but with care and meticulous recordkeeping, you can avoid becoming entangled in the union’s unscrupulous attempts to bury you under legal and regulatory red tape.
If you find that you’ve hired a union salt or that the union has been successful in convincing a current employee act as a salt, he probably will actively and vocally recruit for union membership, making no secret of his purpose. At the same time, he likely will perform job functions poorly, exhibit bad work habits and/or violate company work or safety rules to the point of termination. The object, of course, is to claim the termination is the result of the unionizing activity and not the subpar job performance.
Protect yourself by ensuring your workplace rules are fair and non-discriminatory against union sympathizers. When disciplining or firing a salt, ensure and document that the punishment is justified, evenly applied regardless of union sentiment, and vetted by upper management and legal counsel. According to the Independent Electrical Contractors, companies cannot institute or enforce rules prohibiting solicitation and distribution if the rules were not established until the organizing began.
If a job applicant advertises his enthusiasm for unions and desire to organize the company’s workers, he may be fishing for grounds to file an unfair labor practice charge with the National Labor Relations Board, according to Frederick M. Switzer III, attorney with the Clayton, MO firm Danna McKitrick . By announcing his intent, the would-be salt hopes to goad the employer “to drop its guard and commit an unfair labor practice, thus giving the union a basis for filing an unfair labor charge. If the employer is not prepared for this, the likely result will be a formal Board complaint, litigation, and an order of reinstatement, back-pay, etc.,” Switzer wrote. “If a union believes that it has a good opportunity to organize a company from within, the salt may remain under cover until after he is employed. Otherwise, the announcement will come at the application or interview stage.” Like asking his marital status, seeking information on his union leanings is a no-no. Assure the applicant that those sentiments will not be considered when you consider the application. Make sure your hiring practices and policies back up your statements.
Have a labor attorney review your company handbook, and ensure supervisors are well-versed in its contents and apply the procedures uniformly.
“The hiring policy should provide that all applicants complete the employment application, and take the necessary tests, before being considered for hire. References should be checked before an applicant is hired,” suggests Michael L. Fortney of the Ohio law firm Fortney and Klingshirn. “If a non-union employee is forgiven for a rule violation, and a union salt is disciplined for the same rule violation, the prospect of prevailing on an [unfair labor practice suit] suffers.”
Fortney notes that “Supervisors are the company's representatives on the front line. [W]hatever you say as a supervisor can bind the company and be held against the company just as though a top company official had made the same statements.”
He reminds management not to threaten employees for unionizing activity or if the union is successful in its organizing efforts. Don’t ask employees their opinion of the unionization effort or its organizers.
Still, if your company becomes the target of a salting campaign, you are not required to sit by and let the union spread false promises or accusations against your company and its management. Fortney notes that you can tell employees the union wants the company to sign the agreement regardless of employee sentiment or support. It is permissible to inform employees that if the effort is successful, they will be required to pay union dues, forfeit their rights to speak for themselves on wages, work hours, and other employment issues.
As with any labor issue, your best bet when facing a salting campaign – or better yet, before the issue arise – is to consult an experienced attorney.
Unions are in trouble, and like a cornered tiger, they are desperate to find an escape. That means aggressive, often unethical, and sometimes illegal organizing tactics will be on the rise. Unions possess an arsenal of obvious yet effective tools to try to boost membership at the expense of project developers, taxpayers and open-shop company owners.
Among the most effective is the salting campaign, a strategy aimed at forcing a non-union company to sign a union contract, often regardless of the firm’s employees’ wishes. Failing to strong-arm the company, the union’s secondary goal is to bury the company under an avalanche of unfounded labor complaints, forcing it to expend time, money and other resources to defend itself rather than competing for and completing construction projects.
As noted, salting is a tried-and-true method of legal harassment, but with care and meticulous recordkeeping, you can avoid becoming entangled in the union’s unscrupulous attempts to bury you under legal and regulatory red tape.
If you find that you’ve hired a union salt or that the union has been successful in convincing a current employee act as a salt, he probably will actively and vocally recruit for union membership, making no secret of his purpose. At the same time, he likely will perform job functions poorly, exhibit bad work habits and/or violate company work or safety rules to the point of termination. The object, of course, is to claim the termination is the result of the unionizing activity and not the subpar job performance.
Protect yourself by ensuring your workplace rules are fair and non-discriminatory against union sympathizers. When disciplining or firing a salt, ensure and document that the punishment is justified, evenly applied regardless of union sentiment, and vetted by upper management and legal counsel. According to the Independent Electrical Contractors, companies cannot institute or enforce rules prohibiting solicitation and distribution if the rules were not established until the organizing began.
If a job applicant advertises his enthusiasm for unions and desire to organize the company’s workers, he may be fishing for grounds to file an unfair labor practice charge with the National Labor Relations Board, according to Frederick M. Switzer III, attorney with the Clayton, MO firm Danna McKitrick . By announcing his intent, the would-be salt hopes to goad the employer “to drop its guard and commit an unfair labor practice, thus giving the union a basis for filing an unfair labor charge. If the employer is not prepared for this, the likely result will be a formal Board complaint, litigation, and an order of reinstatement, back-pay, etc.,” Switzer wrote. “If a union believes that it has a good opportunity to organize a company from within, the salt may remain under cover until after he is employed. Otherwise, the announcement will come at the application or interview stage.” Like asking his marital status, seeking information on his union leanings is a no-no. Assure the applicant that those sentiments will not be considered when you consider the application. Make sure your hiring practices and policies back up your statements.
Have a labor attorney review your company handbook, and ensure supervisors are well-versed in its contents and apply the procedures uniformly.
“The hiring policy should provide that all applicants complete the employment application, and take the necessary tests, before being considered for hire. References should be checked before an applicant is hired,” suggests Michael L. Fortney of the Ohio law firm Fortney and Klingshirn. “If a non-union employee is forgiven for a rule violation, and a union salt is disciplined for the same rule violation, the prospect of prevailing on an [unfair labor practice suit] suffers.”
Fortney notes that “Supervisors are the company's representatives on the front line. [W]hatever you say as a supervisor can bind the company and be held against the company just as though a top company official had made the same statements.”
He reminds management not to threaten employees for unionizing activity or if the union is successful in its organizing efforts. Don’t ask employees their opinion of the unionization effort or its organizers.
Still, if your company becomes the target of a salting campaign, you are not required to sit by and let the union spread false promises or accusations against your company and its management. Fortney notes that you can tell employees the union wants the company to sign the agreement regardless of employee sentiment or support. It is permissible to inform employees that if the effort is successful, they will be required to pay union dues, forfeit their rights to speak for themselves on wages, work hours, and other employment issues.
As with any labor issue, your best bet when facing a salting campaign – or better yet, before the issue arise – is to consult an experienced attorney.
Labels: Commercial, Construction Industry, Industrial
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