Labor Law Union Avoidance Strategy By UnionProof Share Tweet Share The National Labor Relations Act (NLRA), Section 7, is one of the most powerful laws passed in employment history. It is used by unions as a tool for organizing because it gives employees the “…right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities…” As an employer, you do have some rights in the effort to stay union free, but those rights have been eroded over time by a number of legal cases and National Labor Relations Board (NLRB) decisions. As difficult as it is to believe, one of the Section 7 words challenged was “employee,” and it arose out of a case involving an electrical contractor dealing with union “salting,” the process of union members applying for nonunion jobs in order to secretly organize the workforce. Salting has been used throughout the history of the labor movement, but mostly in the building and construction industry. In 1995, the Supreme Court asked a critical question during a salting case: “Can a worker be an employee within the meaning of the NLRA, if the worker is paid by the union at the same time to help with union organization?” Incredibly, the decision in the case of National Labor Relations Board v. Town & Country Electric, Inc. (U.S. Supreme court, No. 94-947) was “yes.” A salt can be paid by the union and the employer. As services industries grow and the construction industry shrinks along with union membership, unions are looking for new sources of members. As a result, the use of salting in a variety of industries is expanding, so savvy employers should understand the practice and what they can do to avoid hiring salts or prevent unionization should salts get hired. Who Is Intimidated? It would be nice if a recruiter could ask, “Are you now, or have you been, a member of a union?” Unfortunately, that is not legal, because it is seen as an intimidation tactic that steps on employee rights. However, it is employers who are more likely to feel intimidated, because salts can drag the employer through one NLRB case after another in an attempt to force the employer to spend large amounts of money and time to defend itself against charges of unfair labor practices. In 2007, the IBEW targeted the Toering Electric Company for a salting campaign and also used an “alternative strategy of imposing such costs on a non-union employer as will cause it to scale back its business, leave the salting union’s jurisdiction entirely, or go out of business altogether.” The decision in Toering (351 NLRB No. 18 at 4) reigned salting back a bit in that the NLRB decided that NLRA protections only apply to union job applicants who are honestly interested in employment. A union member cannot apply for a job with the sole intent of getting the application rejected in order to file a complaint. Eye on the Services Industries Salts are no longer found only in the construction industry. The U.S. economy is shifting from being predominantly construction and manufacturing to a services industries base. The U.S. Census Bureau tracks key industry statistics. The construction industry statistics show a steady decline from 2002 to 2012 (most recent data), with the number of businesses down 18 percent and total employment down 22.5 percent. Manufacturing also shows declines for the same time period, with 10.6 percent fewer businesses and 16.3 percent fewer people employed. Most millennials are going to work in the services industries. Research by the Young Invincibles, a national group focused on engaging young adults on a variety of issues, found that young millennials aged 18-24 are primarily working retail and wholesale, and leisure and hospitality. Except in manufacturing, millennial median wages have stagnated or declined. The largest employment sector for millennials aged 25-34 is retail and wholesale, healthcare, manufacturing, and professional and business. Many of the new manufacturing jobs are in the South at non-union, foreign-owned auto plants. Unions are targeting services industries as a result of these economic and demographic shifts. As of 2015, per the Bureau of Labor Statistics, the private sector industries with low unionization rates are in agriculture, finance, food services and drinking places, and professional and technical services. In the eyes of unions, these are fertile grounds for recruiting young adults who are unhappy with their compensation and feel like they are already stuck in low-skilled jobs. Psst … Want to Feel Powerful? Since unions are always ready to pounce when detecting unhappiness, they came up with a new approach. They are recruiting salts among recent college graduates, so the recruits can develop their skills as union organizers in the workplace. Unions target people who were activists in college, and once trained, salts will apply for low-skill jobs in the services industries. The story of salts is one of disruption, so they keep a very low profile to avoid detection. Sometimes salts are willing to be interviewed anonymously, and what they say is of vital important to employers who want to remain union proof. The blog “Working In These Times” gives some insights offered by millennial salts who used pseudonyms to hide their real identities and places of employment. During the interviews, it is made clear that salts are focused on causing trouble in the workplace. They use phrases like “maintain a level of militancy,” “march on the boss” and “harass the managers till they hired me.” Millennial salts also talk about feeling righteous, feeling a taste of power when they see fear in the eyes of employers, and feeling “clean” about purposely starting a lot of trouble in the workplace. The salts interviewed worked on shop floors, as sales clerks and at places like Starbucks. In the book “Playing Against the House: The Dramatic World of an Undercover Union Organizer,” author James Walsh discusses his job as a salt at casinos. He first heard about salting in college because some friends salted hotels as room-service attendants and bellmen. Walsh eventually organized workers at two Florida casinos — Mardi Gras and Calder. He described how salting works. Salts build leadership committees who have sway with coworkers and are willing to confront managers about worker issues. Walsh spent as much time as he could with coworkers outside of work to get to know them, participating in a lot of activities just so he could identify potential leaders. He also observed people at work to see who stood up to managers, marking them as potential allies. Walsh seldom discussed unions while at work as a buffet server and bartender. Role of Recruiters and Hiring Managers in Identifying Salts It is difficult to identify specific people as salts if they are extremely careful about hiding their role, but there are ways to combat a planned salting campaign. They primarily fall into two categories: 1) follow employment laws, and 2) develop an organizational culture and leadership team that negate the need for a union in the minds of employees. The first category of anti-salting strategies are things every employer should develop or do. You can look for clues that a job applicant is pro-union and may be a salt. For example, the resume shows a history of positions with only unionized companies. You cannot ask a job applicant about their union associations or volunteer work with labor organizations because that could lead to an NLRB complaint. Recruiters and hiring managers can listen carefully for union terminology used during the interview. However, a competent salt has been carefully trained by the union to not make these kinds of mistakes. Unions and salts practice answers to hundreds of potential interview questions. A trained salt would never ask a recruiter, “Does your company have a grievance procedure?” Assuming some salts may get hired, the best protections against a salting campaign to stay union free are creating an engaging positive company culture; having well-developed informed leaders who are effective communicators; carefully developing employee policies and procedures that ensure non-discriminatory employee decisions are made at hiring and during employment; and providing regular employee training on the company’s perspective on the negative impact of unionization. You should not give your employees any reason to be interested in joining a union, making the efforts of salts nonproductive. Employers must be careful to follow employment laws, taking extra precautions to avoid NLRB charges. For example, it is important to keep accurate employment interview records and make sure there are legally documented reasons for not hiring an applicant. Salts are always ready to cause trouble. They are not supposed to submit applications without having a sincere intent to gain employment, but with so many millennials seeking work beneath their education level, it is more difficult to spot salts bombarding an employer with applications meant to intentionally get rejected. Developing policies and procedures that are designed to prevent discriminatory management behaviors is critical. There should be an employee handbook with consistent rules concerning hiring, promotion, training, compensation, reporting issues and so on. Best Offense: A Culture of Engagement The ideal way to prevent a salting campaign is to develop a culture where high-performing leaders are excellent communicators and know how to engage and motivate employees on a daily basis. Couple this with convincing employee training on the consequences of unionization, and it is likely your employees will have no reason to join a union-organizing campaign. Communication is key to remaining union proof. Leaders should be accessible to employees, proactive in addressing their needs and concerns, and consistently engaging. One of the most important steps you can take as an employer is ensuring employees are well-trained and kept informed. Onboarding begins the process of sharing the company’s mission, history, and culture. Additional and ongoing training can cover topics like employee benefits and perspectives on unionization. Using a dedicated website, online videos, social media and/or e-learnings, managers can communicate with employees on a regular basis concerning many of the areas that are favored union targets, like safety and management responsiveness. Training can also give employees specific reasons they should avoid unions, such as the fact that employees will have to pay union dues to an organization that is intent on creating an adversarial workplace. Engaged employees are more likely to let managers and supervisors know they have been approached by a salt outside of work. Leadership training on building morale, developing trust, giving praise and setting realistic goals is often overlooked to the detriment of the company. People at the top must depend on the frontline managers to build teams and strengthen a positive company culture. A salt will be quick to detect problems, like frustrated employees who believe their managers do not care about them as people and are not to be trusted. Case in point: The salt who worked at Starbucks claims the managers treated him like a robot, so he enjoyed trying to unionize the business behind the managers back. Employers in the services industries can expect unions to double their salting efforts because they are desperate to find new sources of union members. Many millennials are amenable to unions because unions help them feel more in control of their destiny in a feeble economy that is driving them to lower paying jobs. Employers in all services industries should be aware of the current salting practices and expect union efforts to continue reaching into services sectors, like computer services, to grow. Staying union proof is possible, but only by staying on top of union practices and knowing how to respond should there be signs of an organizing attempt.