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Any merit shop contractor or project owner with a project where merit shop or mixed merit shop / union shop crews are working will eventually deal with some form of union “picketing.”  The term picketing is placed in quotes because its legal definition differs from its colloquial understanding in the industry.  The colloquial term picketing includes a variety of union conduct, such as hand billing, displaying the infamous union rat (or rats), banners, and placards.  What you can and should do in response to union “picketing” depends on the circumstances.

What can the union do?

Generally, peaceful “picketing,” by itself, is not illegal.  Peaceful conduct includes union members handing out flyers (handbilling) to passers by that inform the public of the union’s dispute and displaying a banner or sign “shaming” an owner.  Does this mean that a union is always acting legally when engaging in this type of activity? No, the analysis is fact sensitive but a union’s “peaceful activity” can become illegal if it acts with a secondary intent.

What the union cannot do?

Unions cannot block access to your project, engage in violence, engage in a “mass” demonstration, picket a reserved gate, threaten neutral parties, signal picket, or engage in organizational picket for more than a 30 days (or sometime less).

What should you do?

If the union activity is relatively peaceful (albeit a nuisance) the best approach is to try to ignore it.  You should however keep a record of the activity in case the circumstances become un-peaceful.

What you can do?

If the union’s conduct simply cannot be ignored, then you have a few options.

    A. Set Up Dual Gate

Union’s can protest a labor dispute with the employer who has the ability to hire its members.  Therefore, the carpenters union can protest a labor dispute with a carpentry contractor but cannot protest a dispute with a plumbing contractor.  Picketing aimed a a neutral or secondary party is illegal under the National Labor Relations Act.  On a construction site, there are may different employers working.  The National Labor Relations Board has set up rules to deal with so called common situs picketing.

Under these rules, an project owner can establish a dual gate system.  If the system is established, the union must limit its protest to the gate (entrance) used by the contractor with whom the union maintains a dispute and at the times when the employer is on site.  At a minimum, this is a way to control the location of the picketing.

To establish a valid reserved or dual gate system, owners or contractors must notify the union, post notice of which gate are to be used to the primary contractor and which gate is to be used by the neutral contractors, and, importantly, the gates must be, in fact, used by those parties.  The gates cannot be “tainted.”  In this regard, it is a good idea to keep a record of all those coming and going through each gate.

If the union does not limit its dispute to the location of the primary gate, then it has committed an unfair labor practice and a charge can be filed against it with the National Labor Relations Board.

  B.  Injunctive Relief

Sometimes union activity becomes so unruly that only an order from a Judge can stop it.  (And, sometimes that is not even enough.)  The availability of injunctive relief against a labor union varies from state to state.  However, generally, injunctive relief is limited to situations where the union is engaging in violence, property destruction, mass picketing, or blocking access to a project.  Even in those situations, owners and contractors need to be prepared before they seek emergency relief from the court.  Before requesting injunctive relief, you should:

1.  Gather witnesses to the conduct for the purpose of providing affidavits and potentially testimony in court.

2.  Notify and keep of record of contacting the police to maintain order.  Some states, like Pennsylvania, require that law enforcement be unable to quell the union’s behavior before they will issue an injunction.  In other cases, the police will request that you obtain an injunction before they do anything.

3.  Photograph and record offending conduct.  However, you should not videotape or photograph peaceful conduct.  The National Labor Relations Act prevents you from conducting surveillance of peaceful union activity.  You can record conduct that is violent, blocking entrances, or creating a safety hazard.

4.  Write a letter to the union demanding that they cease and desist the conduct.  Although not technically required for an injunction to issue, because of the extraordinary nature of the remedy, Court will often want you to show that you exhausted all means before seeking relief from the Courts.

 

 Building and Construction Trades Council of Metropolitan District v. Associated Builders and Contractors of Massachusetts Rhode Island, Inc Massachusetts Water Resources Authority v. Associated Builders and Contractors of Massachusetts Rhode Island, Inc, 507 U.S. 218, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993) , affectionately knows as Boston Harbor, is the seminal Supreme Court decision that held that the National Labor Relations Act (“NLRA”) does not preempt government mandated project labor agreements (“PLAs”) if the government entity is acting as a market participant rather than a market regulator.  Boston Harbor has led to many believing that virtually all PLAs are legal when the government agency is a project owner or if the PLA involves a private project.  However, does Boston Harbor really cut that far?

In short, no.  The primary issue in Boston Harbor was one of preemption.  The Supreme Court addressed whether the NLRA preempted state and local laws and ordinances mandating PLAs.  On that narrow issue, the Supreme Court said there is no preemption if the government is acting as a market participant.   What the Court did not address is whether other federal statutes invalidate PLAs.  Specifically, whether PLA’s can run afoul of Section 8(e), the so called “hot cargo” provisions, of the NLRA.

Under Section 8(e) “”[i]t shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or cease doing business with any other person.”  Virtually all PLAs require any contractor or subcontractor working on the project to sign a letter of assent or that prohibit subcontracting work to any contractor that refuses to sign the letter of assent.  The Courts and the Board have held that such clauses violate Section 8(e) unless the clauses fall within the so called construction industry proviso.

The construction industry proviso states “[p]rovided, [t]hat nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work.”  Therefore, for the statutory exception to apply there must be two things (a) the counter party to the agreement must be a “construction industry employer” and (b) the restriction must be limited to the site of the work.

But there is a third non-statutory prong that must be met.  Under the Supreme Court’s decision in Connell Construction Company, Inc v. Plumbers and Steamfitters Local Union No 100 8212 1256, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975) even if the counter party is a “construction industry employer” they still must have a bargaining relationship with the union.  In that case the Court held that the an agreement between a general contractor and a group of building trade unions violated Section 8(e) because, although Connell was a construction industry employer, the unions did not seek to represent any of the general contractors employees.  Similarly, most, if not all, private project labor agreements that I have reviewed contain an express disclaimer that the agreement does not apply to any employees of the private developer.

On this framework, in 2006, in the Labor Board held that a private project labor agreement between the Glen Falls Building & Construction Trades Council and a private developer of a co-generation electric power plant violated Section 8(e).
Glens Falls Bldg. & Constr. Trades Council & Int’l Union of Bricklayers & Allied Craftsmen, Local Union No. 6 & Int’l Bhd. of Carpenters & Joiners of N. Am., Local Union No. 229 & Int’l Ass’n of Heat & Frost Insulators & Asbestos Workers, Local Union No. 40 & Int’l Ass’n of Bridge, Structural & Ornamental Ironworkers, Local Union No. 12 & Laborers, 350 NLRB 417 (2007).  There, the Board held that because the Building Trades did not seek to represent any of the owner’s employees, the PLA violated Section 8(e) and was not saved by the construction industry proviso.

Finally, may PLAs state they apply to non-construction industry employers, like construction material, ready-mix concrete, and hot mix asphalt suppliers.  These are always invalid because the Board has ruled that Section 8(e) prevent application of the union subcontracting provisions in a PLA to these firms namely because this is work that is not being performed at the “site of construction” and that these firms are not “construction industry employers.”

The Takeaway

If you are a merit shop contractor faced with a private project labor agreement you should consider filing an unfair labor practice charge with the Nation Labor Relations Board, especially with a current Republican majority at the Board.

 

A recent NLRB decision underscores the dangers of improperly operating a double breasted construction firm.  In Rdm Concrete & Masonry, LLC, Collective Concrete, Inc., & Remco Concrete, LLC, Alter Egos & A Single Employer & New Jersey Bldg. Laborers Dist. Council, 366 NLRB No. 34 (Mar. 13, 2018), the Board held that the three respondents, RDM, Collective, and Remco were alter egos of each other and were collectively bound by the terms of the collective bargaining agreement with the Laborers Union.

A. Background

The three charged entities were all owned by members of the same family.  Collective Concrete was owned by Ryan Ciullo.  In 1999, Ryan started Collective.  Collective listed his parents residence as it official place of business.  Ryan’s father Mark owned a separate company, D&M Mansonry.  When Ryan started Collective, Mark was winding down D&M and would assist Ryan with operating collective.  In 2001, Collective signed a Section 8(f) agreement with the Laborers Union.  Thereafter, Collective signed three successor 8(f) agreements with the Laborers.  As suspected, the agreement covered the terms and conditions of Collective employees performing Laborers Union claimed work.

While covered by those agreements, the Laborers Union filed grievances against Collective.  Mark, Ryan’s father, represented Collective at those grievance hearings.  In one matter, an action was initiated in federal court to overturn an arbitration award and Mark signed an affidavit in that case.

In 2007, Mark formed RDM a concrete and masonry firm with no union affiliation.  When he formed RDM, Mark stopped working for Collective.  However, RDM performed the same type of work as Collective and Collective transferred some equipment to RDM.  Ryan does not hold an ownership interest in RDM but was employed by RDM.  Moreover, RDM and Collective shared back office employees, who happened to be Ryan’s wife and mother.  At a certain point, Collective and RDM shared office space.  When Collective ran into financial trouble, RDM transferred $1.6 million dollars to it.

Then in 2014, RDM signed an agreement with the Union.  Circumstances arose that led to a consent judgment being entered in favor of the Union and against RDM and Collective, jointly and severally.

Soon, RDM’s work slowed down.  And, in 2015 Ryan started a new company called Remco, which also performed masonry and concrete work.  Ryan testified that he formed Remco to obtain non-union work.  In 2016, the Union demanded that Remco recognize it as the bargaining agent for its employees under the collective bargaining agreements with RDM and Collective.

B.  The Outcome and Damages.

As expected, the Board found that Collective and RDM were a single employer and Remco was an alter-ego or “disguised continuance” of RDM.  The Board applied its long standing rule that the collective-bargaining agreement of an employer applies to its alter ego, as of the date of the alter ego’s first use of bargaining unit employees. E. G. Sprinkler Corp., 268 NLRB 1241, 1241 fn. 1 (1984).  The Board further ordered that the entities make the employees whole for any loss of earnings or benefits, plus interest compounded daily. That means that Collective, RDM, and Remco could owe huge sums of money.

C.  The Take Aways

  1. Forming a double breasted operation carries huge risks for those that are not prepared to properly organize and operate the two firms.
  2. Forming a non-union entity for the purpose of avoiding bargaining obligations will almost always fail.
  3. Improperly forming a double breasted entities carries with it the potential for huge penalties.

I don’t know much about the Ultimate Fighting Championship (“UFC”).  I don’t follow the sport.  However, I do follow the NLRB dockets and the matter Zubba, LLC d/b/a Ultimate Fighting Championship caught my attention.  After some diligent research (a/k/a googling it), I learned that this case was apparently causing some scuttlebutt in the UFC world.  However, employers in all industries where unionization efforts are prevalent can learn something from the complaint.

The complainant in the case is Leslie Smith.  Ms. Smith is a female mixed martial artist (“MMA”).  She apparently is good enough to have obtained a world wide ranking of #9.  She has fought on the UFC circuit for several years.  In her spare time, Ms. Smith also leads an organization called “Project Spearhead.”  Project Spearhead isan effort to unionize UCF’s fighters.  Among other things, Ms. Smith launched a website www.projectspearhed.com to draw attention to her cause.  Ms. Smith had promoted the website and her unionization efforts through social media, traditional media, and planned on wearing a mouth piece in an upcoming fight to promoted her pro-union webpage.

On April 21, 2018, Ms. Smith was schedule to fight, but her opponent apparently did make weight.  (Louden Swain she was not.)  That fight would have been Ms. Smith’s last fight under her contract with UFC.  Ms. Smith requested that the UCF extend her contract for two more fights in exchange for her fighting a heavier weighing opponent.  UFC declined.  Moreover, UFC notified Ms. Smith that her contract would not be renewed.

The success of Ms. Smith’s case hinges on whether she is an employee or independent contractor.  The National Labor Relations Act protects employees but not independent contractors.  Ms. Smith claims she has been mis-classified as an independent contractor.  The employee v. independent contractor has been a hot issue of late.  The NLRB will apply a eleven (11) factor test known as the right to control test to determine whether Ms. Smith is an employee or independent contractor.  As the Board and Courts have held no one factor is controlling.  But, following the decision in FedEx Home Delivery v. Nat’l Labor Relations Bd., 849 F.3d 1123 (D.C. Cir., 2017), 849 F.3d 1123, 1126 (D.C. Cir. 2017)  whether the “putative independent contractors have significant entrepreneurial opportunity for gain or loss” has become a critical factor.  Smith is vulnerable on this issue.

If I were representing UCF, on cross examination, I would ask Ms. Smith a series of questions concerning this factor, such as, whether she considers herself a brand, whether she hopes to win her fights, whether she hopes that he ranking will improve, and whether she hopes her success will lead to opportunities to derive income from sources other than actual fights (i.e sponsorship and licensing deals).

The Takeaways.

I see two takeaways for employers in industries that are the frequent target of unionization efforts.

  1.  Ignore the Gut Reaction to Rid Yourself of the Problem.

Ms. Smith is claiming she was effectively terminated because of her union activities.  Simply put, under the National Labor Relations Act you cannot retailate against an employee who voices support for unions or unionization.  The complaint underscores the need to treat anyone engaged in a unionization effort careful before terminating them or simply changing their employment conditions.  Even if this was not a motivating factor in UFC’s decision to not renew her contract, the decision could have been a strategic error.

The complaint does not mention whether her Project Spearhead was gaining any traction with other MMA fighters.  Apparently there are 350 UCF MMA fighters.  So, for Ms. Smith’s efforts to go anywhere she would have to obtain signatures from 30% of those fighters or 105.  If Ms. Smith was able to obtain that level of support, then the Board would determine whether the critical issue of whether the fighters are employees, entitled to a union election, or independent contractors, who are not.  Now, as Ms. Smith seems to boast in he complaint, that threshold issue can be decided without her having to first obtain the 105 signatures.

UCF strategic mistake is that they could have effectively dealt with Ms. Smith unionization efforts by keeping her in the fold through carefully crafted PR campaign and other efforts to dissuade fighters from forming a union.  Meanwhile, they could preserve the issue of independent contractor status for a later date and even begin the process of creating a record specifically tailored to address that issue, if and when, the date arrived when it needed to be argued.  If Ms. Smith’s complaint is successful, a future UCF unionization effort becomes much easier.

2.  Call her bluff.

If you are concerned about your company becoming unionized, then you need to look hard at how your are treating your employees and how your are educating them on what it means to be union.  If your are treating your employees well then they are not going to be receptive to the union message. How well you are treating your employees needs to be viewed objectively.  Also, you need to constantly educate your employees why employee free choice is superior to unionization.  The union message is seductive, in part, because the union organizer is a highly trained salesperson and knows what to say to get in the door with your workforce.  However, a properly educated workforce will see the message for what it is, cheap sales talk that the union cannot often back up.

 

Last week’s Boston Globe has a story about the recent dismissal of a criminal case against two Boston city officials for their involvement with an alleged union extortion scheme designed to pressure non-union businesses to give work to members of the local Teamsters Union.  (The reporters were kind enough to seek my comments for the article.)  The case in Boston is notable because its outcome diverges from similar cases brought in Philadelphia and New York, which resulted in convictions.

A.  Background on the Hobbs Act.

Federal indictments under the Hobbs Act, 18 U.S.C. Section 1951, for actions taken to “entice” non-union contractors and developers to hire union members is a subject matter that I have written about on this blog.  The reason for my interest is not only because I represent a number of merit shop contractors and developers (as well as union contractors) but because of several recent high profile cases indicting union officials for extorting contractors and developers into hiring union members.  Those in Philadelphia are aware of the indictments involving Ironworkers Local 401, which involved its use of “goon squads” and other tactics to obtain work for its members and signatory contractors.  That indictment ultimately lead to the conviction of several Ironworkers, including its President.  That case came on the heals of a similar case involving the Operating Engineers.

The Hobbs Act makes it a federal crime to extort or attempt to extort a business or individual engaged in interstate commerce.  However, the common understanding of extortion differs from the technical meaning of extortion found in the Hobbs Act.  Under the Hobbs Act “the term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”  (The reason for my highlighting of these terms will become clear in a minute.)

For years, because of a U.S. Supreme Court Case U.S. v. Enmons, the prevailing view was the unions and their officials were immune from liability under the Hobbs Act.  In Enmons, the Supreme Court explained that a Hobbs Act violation involves two things: (1) actual threatened force, violence, or fear (means) and (2) the obtainment of property of another (ends).  So, the means and the ends must be illegitimate before a Hobbs Act violation can occur.  The Court in Enmons reasoned that the property that was allegedly extorted was higher wages for union members and since the union had a legitimate claim to those wages it could not extorted “the property of another.”  The Court made clear that the union’s means “force, violence, and fear” could still be prosecuted under state law, but for a federal law to be broken the both elements would need to be met.

Subsequent decisions, including decisions in the Ironworkers and Operating Engineers cases, walked back the seemingly broad breadth of the holding in Enmons.  Several courts noted that Enmons should be limited to its facts.  Those being where a union was engaged in an active strike against an employer with whom it had an existing collective bargaining relationship.  Compared to a situation, such as with the Ironworkers and Operating Engineers, where there was no such relationship between the unions and the victims.

Now, as I discuss in the Boston Globe, the federal court’s decision to dismiss the indictments against the two Boston officials and the previous ruling by the 1st Circuit Federal Appeals Court could make it harder for federal prosecutors to indict union officials or it could just further clarify the contours of the Hobbs Act intersection with federal labor law.

B.  The Boston Teamsters Case: The Ends and the Means.

In United States v. Burhoe (1st Cir., 2017), the president of the local Teamsters union and an associate were indicted for extorting non-union businesses into employing Teamsters on projects.  After a six-week trial, the jury found them guilty, under the Hobbs Act and related federal charges.  The defendants appealed their convictions under the Hobbs Act and the 1st Circuit Court of Appeals overturned their convictions reasoning that their conduct in pressuring non-union firms to employ Teamsters did not rise to extortion under the Hobbs Act.

The Court reasoned that under the Hobbs Act both the ends and the means of the extortion must be unlawful.  Thus, as in Enmons, to be guilty under the Hobbs Act the defendant must have no legitimate claim to the property obtained and his means of obtaining it must also be wrongful.  The Court noted that threats of violence or physical harm are almost always a wrongful means under the Hobbs Act.  The Court also said threats of economic harm could be wrongful.  It becomes wrongful when the defendant has no legitimate right to the property sought.

The Court then examined the indictment as it related to the non-union firms.  The indictment alleged that the defendants extorted wages for imposed, superfluous, and unwanted labor through the threat of economic harm and physical harm to the company and others.  The Court then examined the underlying cases of extortion.  While in each case the union officials were aggressive and blunt and threatened a picket line, the Court noted that no bodily harm or property damage was threatened or occurred.

Defendants challenge to the conviction hinged on whether the trial court properly instructed the jury on extortion.  Defendants argued that the trial court should have instructed the jury that the labor was superfluous, unwanted, and fictitious.  In other words, the wages extorted (the ends) would have to be in return for no show jobs.  The Court reasoned that if the union members actually worked, there could be no Hobbs Act violation, at least when the pressure was limited to threats of picketing.  The Court held that picketing to pressure an employer to hire union members was protected under the National Labor Relations Act (this is not correct but it was not a central issue in the case).  Thus, the Court reasoned anytime a union set up a picket line to protest non-union work it could result in a Hobbs Act violation if the employer ultimately caved to the union’s demands.

C.  The Ironworkers and Operating Engineers Cases.

In contrast, the federal courts in the Dougherty and Larson cases reached different conclusions regarding the intersection of the Hobbs Act and the National Labor Relations Act.  These cases are also in contrast in two ways.  First, in both cases, the union’s means was threats of and actual violence and property damage (in the Doughtery case the Ironworkers were alleged to have burnt down a Quaker meeting house).  Second, neither court held that the wages extracted had to be for fictitious or no-show services for their to be a Hobbs Act violation.

The Larson case goes further and shows the divergence on the issue of a legitimate claim to property.  In Larson, members of the Operating Engineers were indicted under the Hobbs Act – and related federal criminal statutes, including RICO.  The indictment alleged that the union members sought to obtain wages and other property interests from non-union firms using the means of actual violence, sabotage of property, and threats.

The defendants moved to dismiss the indictment under Enmons arguing since the ends were legitimate the means were irrelevant.  The magistrate judge recommended dismissal of the indictment based on Enmons.  But, the district judge disagreed.

In contrast to the Burhoe ruling, in Larson the trial judge rejected the argument that flipping non-union jobs to union jobs was a legitimate union objective.  The trial judge succinctly framed the issue in labor union extortion cases stating:

 If the union acts in furtherance of a legitimate labor objective, the use of force or violence incident to the pursuit of that objective is not subject to Hobbs Act liability (although it might be subject to prosecution under other provisions). However, if a union’s objective is not legitimate, Enmons will not protect it from prosecution under the Hobbs Act.

As the Court explained, “[i]n a legitimate strike situation, the union has a lawful platform on which to seek higher wages and better terms for its members. However, when a union pursues agreements with new employers through primary tactics of violence, threats, and intimidation, it does not have a lawful platform on which to claim the property of the employer. The use of such tactics is therefore “wrongful” under the Hobbs Act.

D.  Do the means matter?

Burhoe’s ultimate conclusion that a union official does not commit extortion simply by threatening a picket line is not the problem.  In fact, that conclusion is probably correct.  The problem for prosecutors at least in the 1st Circuit is that it concluded that the wages extorted must be for fictitious work, at least in part. In Burhoe, the Court stated “It follows that the district court erred in instructing the jury that it could find extortion where the defendants sought to obtain “imposed, unwanted, superfluous or imposed, unwanted, and fictitious work” by using “fear of economic loss,” which encompasses picketing protected under the NLRA.”  The Court continued by explaining “the disjunctive construction impermissible relieved the government from having to prove that the work was “fictitious” and thus could have allowed the jury to find a violation merely because the union sought to turn around nonunion jobs to maintain the prevailing wage through such a threatened picket, and the employer did not want to use the union workers to perform the work.”

On one hand it could be said that under Burhoe is limited to its facts.  Thus, when the means are limited to threats of and actual “peaceful” picketing, then the government must show that the ends were for no-show work.  In other words, contrary to Enmons, the means do matter.  Larson may actually shed some light on this when it held that when a union is attempting to obtain work for its members it “may [not] use an unlimited array of coercive tactics to secure such an agreement with an employer.”

However, on the other hand, if Burhoe is limited to its facts, then the Court’s analysis does not make any sense because if the ends are legitimate property then, as Enmons holds, the means to obtain it, while potential violating other laws, does not violate the Hobbs Act.  So, it would not matter if the means were peaceful picketing or a threat to break the legs of an owner of a non-union firm.  Therefore, under Burhoe’s reasoning any conduct, including property damage or physical harm, that results in a non-union employer agreeing to hire union members is not punishable under the Hobbs Act.  As in Enmons, the violence to property and body may be punishable under state law, but the conduct does not violate the Hobbs Act.

Ultimately, this seemingly inherent contradiction in Enmons must be resolved by Congress or the Supreme Court.  Before then, case law suggest the means do matter.  Threatened an actual violence to person or property is going to be grounds to indict under the Hobbs Act, while aggressive behavior and threats of a picket line may prove more challenging.

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.