Smith, Gambrell & Russell, LLP

Union Organizing Tactics

Telltale Signs

Union membership has been in decline for years. Fifty years ago, approximately 35 percent of the American work force belonged to a union. Today, unions represent less than eight percent of American workers in the private sector and 12.5 percent of all workers. To reverse this trend, unions are engaging in increasingly aggressive efforts to boost their membership. Two union-organizing tactics that pose a potential threat to employers are card checks and salting.

Card Checks

Rather than employing traditional, statutorily authorized secret ballot elections supervised by the National Labor Relations Board (NLRB), more and more unions have been pushing hard for "card check" procedures as a means to gain certification by the NLRB. A "card check" is a process by which companies grant union recognition after a majority of workers sign cards saying they favor a union. Once the company recognizes the union's majority status, then the company must negotiate a contract or collective bargaining agreement with the union. Card checks were used to sign up approximately 70 percent of the private sector workers who joined unions last year, as compared to just five percent two decades ago. Through card checks, 150,000 private sector workers joined unions in 2005.

Why are your workers willing to sign such cards? Aside from work-condition issues that may pique workers' interest in a union, many workers presented with a union authorization card may sign it simply because they do not wish to offend the person standing before them or just to get rid of the nagging union representative. Sometimes employees are led to believe that they are simply signing a request for a secret ballot election or a nonbinding statement of interest. At other times, employees are threatened into signing the cards. Indeed, heavy-handed tactics often are used to gain employees' signatures on the cards. U.S. Rep. Charlie Norwood (R-Ga.), chairman of the House Subcommittee on Workforce Protections, is sponsoring legislation that would outlaw card checks. Rep. Norwood wrote in an op-ed article in The Washington Times that "Union thugs are allowed to confront individual workers on the job and at their homes, and demand the worker sign a card giving the union exclusive rights to representation." Given the relative ease by which unions are getting members to sign union authorization cards, unions now say that as a general rule they do not want traditional NLRB elections.

What rights does an employer have? The National Labor Relations Act (NLRA) protects employees' rights, and those rights must be preserved. But the NLRA does not expressly provide for card checks as a way to demonstrate the majority status of the union; rather, the secret ballot election is the only statutory basis for employees to show that the union should be recognized as their certified bargaining agent. (Interestingly, even though the unions express no faith in the election process to demonstrate their majority status to get a labor contract, they demand secret ballot elections supervised by the NLRB when employees demand a decertification (removal) of the union.)

An employer is permitted to recognize a union voluntarily if it is presented with evidence that the union has the support of a majority of the employees. However, an employer may always insist that an election be held even if it is presented with the requisite number of signed authorization cards. Based on the tactics that frequently are used to obtain the employees' signatures on the cards, employers should avoid agreeing to a card check procedure.

Salting

"Salting" is another union method used to organize your work force. Salting may take one or more of the following forms:

  • The union sends out a member to get a job with a company while concealing his or her union membership. After the "salt" is hired, he or she openly attempts to organize the work force. The salt usually violates the company's rules until he or she gets terminated. The union then files an unfair labor practice charge alleging that the company discriminated against the salt because of his or her union activity.
  • The union sends a member to apply for a job when he or she is wearing union clothing. If the salt is not interviewed or hired, the union files an unfair labor practice charge with the NLRB.
  • The union has a member pick up an application form from a company. The member takes the application back to the union hall where dozens of copies are made and other union members complete the applications, clearly indicating thereon their union membership and union organizing experience. The applications are returned to the company with a demand to be hired. If the applicants are not interviewed or hired, the union files an unfair labor practice charge with the NLRB.

Unfair labor practice charges based on the above activities cost the union very little money to bring, but can be very expensive for a company to defend against. Companies and their front-line supervisors and managers should be trained to understand that their actions with respect to "salts" can lead to expensive liabilities for the company. Managers and supervisors should be trained as to what they may say and do within the bounds of the NLRA. Also, companies should consider developing a policy prohibiting an application form from being removed from the workplace.

As the above illustrations demonstrate, unions are alive and well and are continuing their efforts to organize your work force. Resistance efforts can be a minefield for employers. Be aware of union tactics, but do not fight them without first consulting legal counsel.

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