Covert Union Organizing-Beware the Trojan Horse

Just as Spartacus went undercover to enter and attack his enemy’s castle, labor organizations today use a guise to enter and then organize businesses. This practice, called salting, is thriving across the country and costing employers millions of dollars each year in legal fees and back wages. It begins with a normal job advertisement and ends with the hiring of the best-qualified worker. It’s only later you discover the person you hired is employed full time by a labor union as an undercover union organizer.

Union salting has been on the rise since it was made legal by the 1995 U.S. Supreme Court case, NLRB v. Town and Country Electric. Michael Van Gordon, the chief organizer with Indiana’s Local 20 of the Sheet Metal Workers Union in Indianapolis knows the practice well. Van Gordon is using sheet-metal worker apprentices with the AFL-CIO’s youth-to-youth program in salting operations. He said the last apprenticeship class completed 1,780 job applications at 279 nonunion companies. Thirty-five union organizers salted in.

So what’s the harm? Beyond the obvious possible outcome of a unsuspecting company falling prey to unionization, salting can result in costly lawsuits. Discriminating against union officials by not considering them for employment is one legal land mine. Disciplining them—especially with termination—when they solicit participation is another. The good news is that the HR solution isn’t as complicated as many employers believe. HR can avoid liabilities by using guidelines when hiring, disciplining and firing labor organizers.

What’s union salting?
Many employers don’t know what salting is until it hits them. The term comes from the mining industry and refers to how promoters scattered precious metals around the mine to make it appear more valuable to investors. A policy manual of the International Brotherhood of Electrical Workers (IBEW), describes the salting process as “artificially enriching” the nonunion contractor with union organizers. Although salting is a strategy primarily used by blue-collar labor unions within the construction and building industry, it’s a strategy labor unions are also using in other sectors, such as hotel and restaurant industries.

Associate Professor Paul Baktari from the State University of New York at Potsdam explains: “Salting is akin to the Trojan horse. The covert practice involves full-time union organizers applying to Help Wanted classified ads placed by nonunion businesses. Often the union organizers misrepresent their employment backgrounds on the employment application by failing to disclose they’re full-time union organizers.” If an employer doesn’t run reference checks, the organizer quite possibly will be hired. Once infiltrating the employer and becoming entrenched in the workforce, the union operative initiates a union-organizing campaign. The practice is on the rise and being supported by AFL-CIO President John Sweeney. “We will be training at least a thousand organizers a year, pouring $20 million into organizing programs—and organizing from the Sunbelt to the Rust Belt and from the health-care industry to the high-tech field,” said Sweeney during a speech before the National Press Club in 1995, a month after the U.S. Supreme Court ruled salting legal.

Screen out salters early.
To avoid such practices at your company, you must be proactive, says Brent Ballow from the Nashville, Tennessee-based law firm of King and Ballow. Ballow is one of the country’s experts in union salting campaigns. Ensuring that all job candidates complete an employment application and provide past job references is the first step in protecting the employer.

Checking those references is the second. During salting activities, unions rely on employers not conducting background or reference checks. Many labor organizers try to infiltrate the workforce by intentionally falsifying their employment application and omitting their current employment status as an organizer with a labor union. This is the standard practice taught to union salters because, as Van Gordon emphasizes, this type of covert salting proves more effective than the overt method—when the organizer admits he or she is seeking employment for the purpose of organizing the employer. Van Gordon says that out of approximately 7,000 employment applications organizers filled out over the last eight years using the overt method, only two were hired. Using the covert method, considerably more were hired, although he declined to say how many.

Therefore, implementing a system to ensure all finalists for a position undergo a reference check is important. This process will reveal whether a job candidate has been less than truthful on his or her job application. Bob Baughn, human resources director for JESCO Inc., a Tupelo, Mississippi-based construction firm, says that conducting effective reference checks is essential, as is creating and enforcing a policy of declining to hire applicants who provide false information on their employment applications. Baughn recommends other HR strategies, such as checking for gaps in employment that may be indicative of employment with a labor union.

But, Ballow warns, “The reference-check process [and policy enforcement] should be implemented for all finalist job applicants—not just those an employer may suspect are union salters.” Targeting salters is clearly in violation of the National Labor Relations Act.

Professor Baktari agrees. He explains that the National Labor Relations Act (NLRA), supported by the 1995 U.S. Supreme Court decision in the Town and Country Electric case, prohibits discrimination against salters. “Keep good notes during the recruiting and interview process,” says Baktari. “If during the interview the job candidate engages in overt salting and admits he or she is a union organizer, keep in mind you can’t decline to hire this person based on his or her union affiliation. However, hiring a different candidate based on the perception and fact that he or she is the better qualified candidate is defensible.”

Carl Cannon, vice president of construction with Pan American Electric Inc. in Nashville, Tennessee, says overt salting has occurred at his company. “In a lot of cases, union organizers will say on their applications that they’re union members with the International Brotherhood of Electrical Workers. But we don’t take that into consideration when making hiring decisions, and we don’t ask them if they’re paid union organizers. We hire the best-qualified applicant.”

Another union strategy that employers should be on the look out for during the interview process is surreptitious tape recordings made during a union operative’s meeting with HR department staff. Rufus F. Palmer, vice president of JESCO, says this has happened to his company on a number of occasions. “You don’t find out what your company personnel say to an applicant/union organizer until the tape recording is introduced at the NLRB [National Labor Relations Board] hearing. Then it’s too late.” For example, if the HR manager reveals the company is planning to fill 15 positions, and 15 union organizers apply but less than 15 are hired, then there’s no doubt the union will file charges with the NLRB. JESCO was salted six times between 1995 and 1997 and currently is appealing a massive NLRB award of a half-million dollars to the 5th Circuit Court of Appeals.

Apply appropriate disciplinary measures.
Even with the use of reference checking, some labor organizers may make it through the hiring process. Therefore, it’s important to have defensible and proactive disciplinary policies in place as well, such as no-solicitation and no-moonlighting policies. Explaining these policies to new employees and requiring them to sign a statement that they understand and will adhere to these and all other company policies will support an employer’s desire to remain union-free. “Any violation of these or other policies by any employee, including union salters, can be dealt with through the employer’s disciplinary procedure,” explains JESCO’s Baughn. As long as the employer doesn’t selectively enforce these policies on union salters, but rather ensures these policies are applied impartially throughout the organization, salting activity would become more difficult for unions to engage in.

For example, if a salter is hired and caught soliciting employees to sign union interest cards, the union organizer could face disciplinary action for violating the no-solicitation policy. However, an employee soliciting employees for any other reason, such as posting a notice that his or her car is for sale, would also have to face the same discipline. “A no-solicitation policy, just as all other hiring and employment policies, must be applied equally, or the employer is left open to a union’s unfair labor charges,” says attorney Ballow.

“[A no-solicitation policy] worked for us,” says Cannon. Pan American Electric’s job sites span across the United States as do its 500 blue-collar employees, averaging about 25 at any one job site. “Several years ago we decided to train our employees about the National Labor Relations Act and what we need to do to comply with that law. In our training, we tell our people not to do anything that would break the law. In our company policies, we don’t allow any solicitation during work time—that’s just not union organizing, but any solicitation of any type,” he says.

The same practice holds true for no-moonlighting policies. If it’s learned that an employee moonlights for a labor union, then that employee could face discipline. But so could another employee who works evenings at the local burger joint. Ballow says employers have the ability to control the work environment in this regard, and they should seriously consider using their authority.

Consistently and impartially implementing and applying these restrictive policies would on the one hand curb salting, but on the other hand, may impact employee morale. So, think twice before proceeding via policy making.

Make sure terminations are legal.
Union organizers who get into your company know what they’re doing. In fact, they participate in an organizing training program called COMET or Construction Organizing Membership Education Training. During the first stage, COMET One training, new organizers are presented the reasons why the building trades must organize, and in COMET Two training, they learn how to organize. Says Van Gordon: “We teach them how to get a job and to be the hardest workers, most productive, and most skilled so other employees look up to them. They then announce their affiliation with the union and respond to questions about the union. At that time, the organizing campaign begins.”

What the employer does and how the employer reacts to a union’s salting campaign will determine whether it will face substantial penalties. Often the first reaction is to dismiss the union organizer. According to attorney Ballow, this would be the worst possible action an employer can take.

Ballow admits that “an employer can’t completely protect itself from all salting activity because federal labor laws give unions an unfair advantage.” Nevertheless, instituting some strong policies and disciplinary measures, up to and including termination, will protect the employer, just as long as discipline and dismissals are dispensed in a nondiscriminating way. JESCO’s Palmer and Baughn both suggest employers keep a detailed record of employee dismissals and disciplinary actions for all policy violations, which can be presented at an NLRB hearing if the union claims its organizers were dismissed unfairly and for reasons other employees hadn’t been dismissed. “You’ve got to have your ducks in a row when the NLRB hearing comes up. Otherwise, without substantial documentation to prove your case, you could face serious penalties and legal fees,” explains Palmer.

Look what happened to JESCO During 1995 and 1997 when union organizers made a half-dozen salting attempts at JESCO, the company fired one union salter for violating company policy by defacing a hard hat that belonged to the company. The salter had placed a union sticker on the hard hat. The union, IBEW, charged JESCO with violating the NLRA as it relates to discriminating against union members engaged in a protected concerted activity—union organizing. In addition to the hard-hat charge, the union filed another five against JESCO for unfair labor practices in firing 18 job applicants who were union organizers. Subsequently, the NLRB merged the six charges into three and heard the cases in February 1997, awarding the IBEW union organizers nearly a half-million dollars in back wages. The NLRB ruled in favor of the union because JESCO allegedly failed or refused to hire the 18 organizers. “We’ll continue to fight those charges, and we’ve upgraded our HR function and training of our staff, and haven’t had another salting attempt for nearly a year,” says Palmer.

Fighting the charges.
Despite an employer’s best efforts, some suits do get filed, as JESCO executives have learned. If, in fact, you find yourself pondering the possibility of defending a salting case before the NLRB, you can invest in salting insurance. According to officials with the Associated Builders and Contractors (ABC), contractors who have joined the ABC can take advantage of a salting insurance program that would pay legal fees and up to 90 percent of back-pay awards issued by the NLRB. That program was initiated in July 1997 and can be supplemented by a general employment practices liability insurance (EPLI) policy that would cover other employment and labor claims. Insurance of this type may be a good investment. Unions file tens of thousands of unfair labor practice charges each year, costing employers millions of dollars and sometimes their businesses. In 1996 and 1997, more than 33,000 unfair labor charges were filed. There’s no doubt the employer with insurance will best weather the storm of defending itself against union charges in the future. Unless the bills being considered by Congress eventually pass, employers will have to continue fending for themselves.

Workforce, May 1998, Vol. 77, No. 5, pp. 45-51.