Last summer, my pro bono representation of a group of University of Pennsylvania graduate students caused a bit of a brou-hah-hah among the SWJ‘s leading the unionization of Penn’s graduate schools.  (It also garnered me the most gracious complement ever from the American Federation for Teachers, who sent out a mass email calling me a “destructive force.”  I cannot thank the AFT enough for that comment it has been great for marketing.)

Late yesterday, it was learned that the AFT had withdrawn its petition to organize the graduate students at Penn.  News comes on the heals of similar actions at Boston College and Yale.  As much as I would like to think it was because of my “destructive force” abilities as a lawyer, alas, I had nothing to do with it.  The withdraws are a strategic attempt by the unions to prevent the National Labor Relations Board from overturning the Obama-era Columbia University decision that granted graduate students the right to organize.  By withdrawing the petitions, the unions hope to prevent an appeal which would offer the NLRB the opportunity to overturn Columbia University.  The unions appear to be content to play the long game and hope the current Republican majority make up of the Board changes in five years in which case they could continue unionization efforts of graduate students using the intact Columbia University precedent.  It is an interesting tactic and we will see how it plays out.  Of course, the NLRB can still its little used rule making authority to sua sponte overturn Columbia U.

During a recent review of the NLRB dockets, I came across an interesting filing.  The Sheet Metal Contractors Association (SMCA), who is the multi-employer association that bargains with Sheet Metal Workers Local 19.  Local 19 has apparently filed an unfair labor practice charge against it.  The docket is scant on precise details but it appears to be an issue over SMCA refusal to bargain with Local 19’s .  Many collective bargaining agreements expire this year.  If Local 19’s is one of them it would likely expire on April 30.  The union’s charge could indicate problems between Local 19 and the SMCA over the terms of a new agreement.  If an agreement cannot be reached by that date, it could mean Local 19 will strike, which would impact several projects in Philadelphia.  This is worth keeping an eye on.

The strategy to avoid union salts is rather simple.  But, simplicity does not mean easy.  The process requires discipline.  A salt is a paid union organizer that attempts to gain employment with a non-union employer for the purpose of either (a) organizing the employers workforce or (b) bringing a costly unfair labor practice charge for discriminatory hiring practices.

A “covert salt” is someone who conceals his union affiliation in order to gain employment with a non-union employer for the purpose of starting a union organizing campaign.  Actually, conceal is an understatement.  Covert salts actively lie to gain employment with a non-union employer.  Covert salts apply for jobs under false names, social security numbers, and use bogus resumes.

An “overt salt” is someone who proudly announces his union affiliation for the opposite reason.  He hopes you do not hire him because of his union affiliation.  The National Labor Relations Act prohibits employers from refusing to hire someone because of his or her union affiliation or sympathizes.  Unions count on novice employers to make the mistake of believing that they can refuse to hire a union member if they are a non-union employer.  Even if the person applying for the job stated purpose is to organize your company, you cannot refuse to hire them on that basis.  If the National Labor Relations Board determines that you discriminated against an individual based on his union affiliation, it can order you to hire the individual and worse order you to pay the individual (who is also being compensated handsomely by the union) the salary you would have paid him if you had hired him.

Believe it or not, the Supreme Court has declared the practice of salting legal.

However, while the deck is certainly stacked in favor of the unions, employers can still avoid union salts.  But again, it takes discipline.  Why is discipline so important in avoiding union salts? Because the steps you take to avoid union salts must be uniformly applied.  Otherwise, a practice deployed only against a suspected salt will be evidence of your intent to discriminate.

  1. Show no animus towards unions.

First and foremost, if a overt salt applies for a job position and they are remotely qualified, you should interview him.  However, the person conducting the interview cannot show any animosity towards the union whatsoever.  A good initial interviewer would be someone that has the personality of drywall.  Union salts are trained professionals.  The will attempt to bait the interviewer into making a comment that proves your company has an animus towards organized labor.  The person performing the initial interview should be trained to keep it boring as heck.  Ask basic questions about employment history, skill level, desire salary, ect.  Any questions posed to the interviewer about unions should be met with a blank stare or vague reply.  By simply granting the covert salt an interview, you have significantly undercut the unions ability to bring a unfair labor practice charge against you.

    2.  Keep accurate records of ALL interviews.

The point is critical.  Why?  Because if the union files an unfair labor practice charge against your firm, you will be given an opportunity to convince the NLRB investigating office that the charge is meritless. If the agent agrees, no complaint will be filed.

It is important to keep records of all interviews not just interviews of overt salts because you need to be able to show uniform application of the interview process.  Employers may even consider the bold step on audio or video recording interviews.  However, before doing this you should confirm what your individual state law is on audio and video recording.  Some states require consent for the person being recorded.  (Stating that you record all interviews could be enough to scare away salts.)

It is also important to keep records of subsequent interaction with the overt salt.  Typical overt salts do not actually want to work for your firm.  Instead, they exist solely to trigger an unfair labor practice charge against you based on your alleged discrimination against them.  Knowing this, you can use some reverse psychology by actually offering the overt salt a job.  Usually, the overt salt offered a position will not call your office back.  However, that will not deter the union from filing an unfair labor practice charge anyway. But, armed with records that you attempted to contact the salt and the boring interview where you showed no emotion concerning unions, it becomes almost impossible for the union to have a valid salting charge.

3. Follow up with references.

For those not bold enough to offer the salt a job, then employment must be denied on some neutral basis.  Salts often fabricate resumes and employment history.  Therefore, you need to call each reference and alleged former employer and ask about the salt.  Of course, when performing this task, do not forget about step 2.  Make sure to keep records of your contact with former employers.  Also, this policy must be implemented with ALL applicants.  You cannot simply chose to call former employers of suspected union salts.  If the union salt’s references do not pan out or do not reply to your inquires (both highly likely) you can legally deny the salt employment because of your neutral policy of employing only those with positive feedback from former employers.  Again discipline is key, the policy has to be applied consistently and with every applicant.

 4.   Institute a dishonesty policy.

For those without the ability to conduct adequate reference checks on each applicant, a dishonesty policy provides another avenue to prevent the employment of a covert salt that lies.  This policy should be in writing and state that false information supplied to the employer on an application is grounds for immediate termination.  It should be disclosed to the applicant at the time of the interview.  I recommend having the applicant sign an acknowledgment of the policy.  However, it does not end with simply having a policy.  Remember the rule of uniformity.  The policy cannot only be invoked against overt salts.  Anyone who provides knowingly false information on an application has to be terminated and you need to be able to establish that you have terminated other based on this policy.

There are only a few of the steps you can take to prevent union salts from causing havoc.  Of course, I am not going to give away all of my countermeasures in this blog post.  But these are start.

 

A recent New York Times article about the unionization of digital media companies like Vox, (the now defunct) Gawker, and Thrillist provides important lessons for companies concerned about unionization, not just those in the digital media niche.

Employers should pay attention to the demographics of these firms.  Their employees are young and college educated.  Given those demographics, the move towards unionization is not surprising.  A Pew Poll found that at least 55% of so called millennials are receptive to unions. If one employee’s comments from the article are any indication, the employees have taken the union bait hook, line, and sinker.  The employee is quoted as saying she supported the union because it will bring “transparency on pay, having a decent pay scale that allows a ladder of sustainability where you can support yourself on such an income, and having due process and a guarantee of severance in the case of layoffs.”  The article also notes that the employees at these firms sounded a common (yet false) refrain when it comes to unionization – the belief that it would lead to better wages, benefits, and job stability.

Notice how the employee described what the union could offer.  Words like “transparency,” and “sustainability,” are the buzz words of a generation and show up in any marketing effort tailored towards millennials.  Union organizers know that the generally held ideals of this generation present fertile ground for their message.  As your workforce skews younger, how do you counteract an organizing message to a ground that is predisposed to receive it favorably?  By simply telling the truth.  The union cannot delivery on what they are promising.  There is no easier place to start then the claim that unionization will lead to job security and better wages.

   1. Job stability and security.

I have no idea why these employees think that having a collective bargaining agreement will make it less likely that they will be laid off.  If anyone knows of a CBA, that prohibits layoffs send it to me.  Sure, there are certain agreements that contain grievance provisions that an employee can invoke if they believe they have be wrongfully terminated, but in the interim they are still laid off.  Ditto with the guarantee of severance upon layoffs.

    2.   Unionization does not lead to better wages and benefits.

Unionization will lead to a pay raise is a tried and true organizers tactic.  The truth is that unionization can result in better, worse, or the same wages and benefits. A successful union vote guarantees only one thing – negotiating.  It does not result in the employer signing a CBA.  Employees erroneously think that their current wage and benefit package is the floor from which these negotiations begin.  This is false.  The truth is that at the bargaining table the parties are working from a clean slate.  Those negotiations can lead to wages and benefits that are better, worse, or the same as what employees currently have.  Furthermore, during negotiations, wages and benefits frozen.

Millennials have been exposed to anti-free market drivel since grad school.  So, employers cannot wait until a petition for election is being circulated to start telling their employees the truth.

 

Businesses engage customers and clients online more than ever.  Now, your online strategy needs to include a plan to combat union organizing.  Unions have been ahead of the game on using social media and the internet to support their organizing campaigns.  One of the reasons for that was the cost involved with the campaign.  However, even small employers now have available to them powerful tools in the form of social media like Facebook, LinkedIn, and Twitter and micro-websites, that are either free or cost very little.

Employees are Demanding It.

While doing my share of labor work, I do quite of bit (and enjoy) trial work.  I have seen how the frequency of life being conducted online and the use of smartphones and tablets has effected juries.  Juries now demand some sort of visual interaction with the case. An attorney that uses technology (it could be as simple as a power point) to demonstrate her case to a jury not only is more engaging but appears better squared away than her adversary relying on paper documents, legal pads, and poster boards.

Moreover, while strictly prohibited, does anyone really think some jurors are not going home at night and googling the lawyers, the parties, and the issues in the case?  Sure, the Judge rightfully warns jurors against the use of the internet to research anything about the case during trial – and that includes when they are home – that is like telling someone not to think about a polar bear sitting on the beach drinking a pina colada.  Jurors – as many lawyers forget – are people.  (No, I am not advocating setting up an online strategy for potential jurors who may google your case against the Judge’s instructions.)

Winning a union election (or any election) is like a jury trial.  Its about persuasion.  Your employees that will decide whether you become a unionized workplace are no different than jurors or voters in a political election. Your side must engage and persuade.  Given the depth and breadth of political campaigns’ use of the internet and social media, which are just an uber-sophisticated version of a union organizing campaigns, it is surprising that more employers do not utilize the power of these vehicles to win an election.  Can you imagine a modern political candidate conducting an election without the use of some online strategy?

Furthermore, employees are likely fact checking everything use say about the unionization effort during a captive audience meeting by going online.  Employees are now doing their own independent research on the information both sides present to them.  However, unlike jurors, they are not prohibited from doing so.  In fact, employers that have the right social media and online tools in place should be encouraging employees to do so.  Therein lies the tremendous opportunity for employers.

Captive Audience Meetings are Not Enough.

The old school approach to opposing a union organizing effort was fairly predicable.  Employers would hold captive audience meetings, hope their employees paid attention, and discuss some aspect of the union that they think would cause an employee to vote No.  Following the presentation, some employers would give the employee some literature to review on the topic.  Employers would often use hokey handouts and play much maligned videos.

Captive audience meetings still play a role.  However, their effectiveness is placed on steroids when combined with an online and social media strategy.  At the conclusion of the meeting, employer should encourage employees to go online to learn more.  Employees can convey an exponentially more amount of information using this combined approach.  Employees can digest this information on their time and when they are ready to pay attention to it.

Employers need to remember the facts are on your side.  The trick is getting the facts to employees.

What does the approach look like?

First, employers need to engage all of their employees on social media and provide them with the same information they are providing in the captive audience meetings.  Nearly every employee is on some social media platform. Furthermore, they are not just using social media daily but several times daily.  Social media is 100% free and it provides the employer the opportunity to personally engage with the employee and provide him or her with specific information they feel is important.  If an employer does nothing else it should be to set up sites on Facebook, Linkedin, and Twitter to engage employees.  Of course, employers can’t just set it and forget it, they still must ENGAGE.

There is another benefit that comes with social media engagement.  It can be used as a tool to gauge the strength of your opposition campaign.  Polling or interrogating employees on how they intend to vote in an upcoming union election is an unfair labor practice.  If severe enough it could cause an employer be directed to bargain with a union. So, you cannot conduct an online poll through social media of your employees thoughts on unionization.

However, social media can act as a sort of de facto poll.  All social media tools have some sort of mechanism whereby the reader can “like” a post or follow your site.  Social media tools also provide for a person to forward the post to his or her followers in the form of a re-tweet or re-post.  Social media users can also comment on your posts.  Likes, follows re-tweets, follows, and positive comments can provide an employer within invaluable data on the effectiveness of its campaign.

Second, employers need to set up a webpage that provides employees with information on all of the reasons why they should vote No.  The webpage should have links where employees can find additional information about the union that is seeking to organize them.  But website are expensive, right?  Wrong.  Several blog platforms (I recommend WordPress) are free.  An employer could probably start an effective website dedicated to providing employees with information about the union for less than $100 and have it up and running in a few hours.

Again the key for these tools to be extremely effective is engaging users and generating great content.  Therefore, employers need to dedicate someone to making sure employees are engaged through social media, that the right information is reaching these employees, and the webpage contents powerful content.

Beyond the Basics

Being present and engaging on social media and online are basic but effective.  Employers looking to invest a bit more time and more (but not that much more) money can consider the following.

  • Targeted Facebook ads.  If you give Facebook a list of users they will target ads to them.  I have seen this run as low $30 per month.
  • Text messages.  You can send your employees text messages with information about the campaign.  Although, I would find these extremely annoying.
  • Encourage employees to set up their own pages.  While employers are prohibited from providing employees assistance in opposing the campaign, employers are free to encourage employees that oppose unionization to set up there own social media pages on Facebook, Linkedin, and Twitter.

One final thing.  The importance of using social media to engage employees is only going to grow with millennials entering the workforce.  This generation was weened online.  I have no data to support it but if you have a large younger workforce and you are not engaging employees online I bet you will lose a election 100% of the time.

Also, employers need to be careful with engagement.  Providing employees with information is perfectly legal. However, if employers make certain comments to employees or what will happen if the employer becomes unionized, they could face an unfair labor practice charge. While the mediums have changed, the message needs to stay the same.

 

 

 

Some of the most viewed topics on this blog are those concerning double breasted company.  That is a two separate firms, commonly owned, one that is a signatory to a union and the other that is merit shop.

An issue frequently encountered with double breasted construction companies is an union arbitrator’s jurisdiction over the non-signatory firm.  The issue usually goes something like this.  A signatory employer’s collective bargaining agreement contains language prohibiting double breasting (which could be invalid).  The collective bargaining agreement also contains an arbitration provision requiring all disputes concerning a breach of the agreement (a grievance) be decided by an arbitrator in private arbitration.  The union files a demand for arbitration claiming that the union signatory has breached the collective bargaining agreement’s anti-dual shop provision.  The union names the non-union firm as a party to the arbitration based on its status as an alleged “single employer.”

What should the non-union firm do?  It should ignore the arbitration demand or file an action in federal court to obtain a court order prohibiting the arbitrator from taking any action against it.  The law in most – if not all – jurisdictions is that an arbitrator has no jurisdiction over a non-signatory firm.  If the union obtains an arbitration award against the non-union firm, the District Court will vacate that award if the non-union firm requests relief.  The general rule is that only a court can determine whether a non-signatory is bound by a collective bargaining agreement.  Moreover, some courts have held that a court must determine that the union and non-union entities are a single employer before that will happen.  Because a single employer finding is fact sensitive, that cannot be done without discovery.

The take away.  If you own a dual shop firm and receive a demand from the union to arbitrate, you need to review your collective bargaining agreement, be prepared to fight the union, and win.

 

Jan Von Bergen at the Philadelphia Inquirer reported that work on Comcast’s new tower came to a halt this morning when striking members of Local 542 picketed the Comcast tower project and other union trades refused to cross the picket line.  However, this show of solidarity (during the afternoon on the Friday before the Fourth of July) is unlikely to last past the long weekend.  Why?  Because any conduct by Local 542 aimed at encouraging a work stoppage by other union members is illegal and the companies that employ the sympathetic union members are in breach of contract if they do not work on Tuesday.

Continue Reading The Comcast Project is Not Likely to Be Shut Down Too Long

In a case that has been widely discussed on this blog, a United States federal district court Judge denied the Philadelphia Carpenters’ Union’s motion to dismiss a federal RICO case filed against it by the Pennsylvania Convention Center.  Judge Nitza I. Quiñones Alejandro issued the ruling on the Union’s motion.

Continue Reading District Court denies Carpenters Union Motion to Dismiss RICO case- What it Means

In early September a Texas jury awarded a janitorial $5.3 million against the local chapter of the SEIU.  The janitorial firm claimed that the SEIU damaged its reputation and caused it damages when it spread false, defamatory, and disparaging stories about the firm.  Specifically, the janitorial firm claimed that the SEIU told the janitorial firms customer and potential customers that the firm “systematically failed to pay its employees for all hours worked, instructed janitors to work off the clock and had fired, threatened or refused to hire janitors who supported joining a union.”  According to Law360.com, the union did this with “fliers, handbills, letters, emails, newsletters, speeches and postings on its website accused [the firm] of violating wage-and-hour and other labor laws.”

The SEIU’s apparently tactics are hardly unique. Union campaigns that use fliers, handbills, letters, emails, newletters, ect. to pressure third-parties from doing business with a targeted employer are hardly unique.  In fact, they are quite common place in Philadelphia and its surrounding suburbs, particularly with the building trades unions.  Most of the business owners of the company’s that are the target of the campaign are frustrated – to say the least – with the truthfulness of the statements contained in the union’s literature.  For example, many unions claim a non-union employers pays substandard wages or wages less than what the union pays.  However, the union has no way of know whether that is truthful or not and the many firms offer packages that are better than the union rate.

Could a suit similar to the one brought in Texas be successful in Pennsylvania?  Yes.  In the Texas case, the SEIU was sued for defamation.  Pennsylvania recognizes the tort of defamation.  In the commercial context, defamation concerning a business is referred to as “commercial disparagement.”  A plaintiff in a commercial disparaging case needs to prove the following elements: (1) the statement is false, (2) the publisher either intends the publication to cause pecuniary loss or reasonably should recognize that publication will result in pecuniary loss, (3) a loss does in fact result, (4) the publisher either knows that the statement is false or acts in reckless disregard of its truth or falsity, an (5) no privilege attaches to the statement.

In many of the union campaigns that we see, the first three elements can usually be found.  The fourth could probably be proved through discovery, unless the plaintiff’s customer outright terminates their contract, in which case the company would have other remedies against the union.  The challenge would be element 5.

A conditional privilege attaches to a commercially disparaging statement when the statement involves some interest of the person who publishes it, some interest of the person to whom it is published or some other third person, or a recognized interest of the public.  KBT Corp. v. Ceridian Corp., 966 F. Supp. 369, 374 (E.D. Pa. 1997).  However, this privileged is lost when it is abused by “publication that is the result of malice, i.e. ‘a wrongful act done intentionally or without excuse or generated from reckless or wanton disregard of another’s rights.'”
There are no know reported cases in Pennsylvania involving a case against a trade union for commercial disparagement.  This might be because of the previous difficulty plaintiff had in proven the fifth element of the claim. However, as the Texas case showed, in the digital age proving that element is getting easier. In the Texas case, the plaintiff obtained emails showing that the intent of the union was to put the janitorial firm out of business and bragging about when the firm in fact lost business.  If a plaintiff can find emails like that, it makes it very hard for the defendant to claim that it was not acting in a manner done with the intent to harm the business.

News that a non-union contractor had filed a Lawsuit against IBEW Local 98 and its leader, John Dougherty, made headlines this week.  While making fodder for local media, the plaintiffs must bound several legal hurdles before IBEW Local 98 and “Johnny Doc” face any threat of liability.

Background on RICO

The lawsuit was filed under a set of laws known as the Racketeer Influenced and Corrupt Organizations Act (RICO).  I have written about RICO’s impact on labor unions on this blog before and predicted that recent federal court cases made RICO claims against more viable.  RICO is a Nixon era set of laws that were originally passed to combat organized crime.  There is both a civil and criminal component to RICO.  (Interestingly, the RICO act remained relatively dormant until then U.S. Attorney Rudy Giuliani began effectively using it to prosecute the mob in the 1980’s.)  Although recent decisions have made RICO claims against unions more viable, any RICO claim is still challenging.  Indeed, some courts require a plaintiff in civil RICO cases to file a separate RICO case statement detailing its allegations.  RICO claims are powerful.  Some have called RICO claims a “thermonuclear” litigation device because the law permits the award of trebel (triple) damages and attorneys fees.

The Elements of a RICO Claim

Generally, to prove a civil RICO claim, a plaintiff must prove  the following elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.  Racketeering activity is defined as specific “predicate acts” under the RICO.  And, by pattern, the Courts mean two or more.  RICO predicate acts are specific and include things such as murder, kidnapping, robbery, bribery, extortion, drug dealing, mail fraud and wire fraud.  Bad conduct alone, no matter how salacious, is not a predicate act.  The conduct must qualify as one of the specific predicate acts defined in the statute and most of the predicate acts are federal crimes.

The Predicate Acts in the IBEW Case

As outrageous as the allegations are against IBEW, none of those allegations matter if they do not amount to a “predicate act” under RICO.  In fact, those allegations appear to be mere window dressing because fighting, intimidation, and name calling are not predicate act. That is not to say they are not crimes.  They could be.  They just are not predicate acts under RICO. In fact, the plaintiff does not even try to argue that they are. Rather, the specific predicate acts that plaintiff identifies in the IBEW case is extortion under the Hobbs Act and under Pennsylvania law.  So, plaintiff has to prove that IBEW attempted to extort him or outright extorted him.

Under state law, extortion requires that someone actually give up property or money because of some threat.  In the IBEW case, it does not appear that IBEW acquired property from the plaintiff as a result of the threats.  Plaintiff does not even plead that happened.  Thus, it is not likely plaintiff’s case will be successful under a theory that IBEW violated state extortion laws.

However, under the Hobbs Act, the extortion need not actually occur.  Instead, a violation of the Hobbs Act occurs based upon the mere attempt at extortion.  The allegation that IBEW violated the Hobbs Act is were things could get interesting.

Thing gets interesting because of another RICO case involving a Dougherty and a labor union – Joe Dougherty in the Ironworkers criminal case.  In that case, the defendants moved to dismiss the indictment alleging that the government could not prove a predicate act under the RICO.  The predicate act that the government relied upon in that case – the Hobbs Act – is the same predicate act the plaintiff in the IBEW case relies upon.

In that case, the Court refused to dismiss the indictment against the Ironworker defendants based upon inability to use the Hobbs Act against labor unions.  The Judge in that case ruled that union can commit a violation of the Hobbs Act when it uses violence and threats of violence to obtain “services which the employer [does not seek]” or unwanted or fictitious work.  The Judge that decided that case – Judge Michael Baylson.  The Judge in the IBEW case – yep – Judge Baylson.

The Plaintiff’s Specificity Problem

While you might be thinking this is all good news for the plaintiff, not so fast my friend.  Courts require civil RICO acts to be plead with specificity.  The IBEW plaintiff claims that IBEW tried extorted him in order to obtain “wages and/or other property.”  However, the plaintiff does not explain what wages or property IBEW would have obtained from him if the extortion were successful.  Perhaps more importantly, it is not clear from the pleading that the attempted extortion to obtain the wages and property happened on more than one occasion or just the day of the fight.  It is also not clear if the union’s misconduct was in an effort to extort him or because they just didn’t like him.

IBEW lawyers will surely seize on this and other defects in the pleading in a Motion to Dismiss.  If they do, odds are they will be successful.  If they are not, then significant precedent will be set.  Furthermore, the case will proceed with discovery and things will get very interesting.