Beating The Union at Its Own Game

By Douglas M. Nabhan,
Labor & Employment Section
dnabhan@williamsmullen.com



If you are holding your breath that Congress will outlaw the practice of salting, you died some time ago. With that in mind, how do you protect yourself these days against the salting practice? The answer is not simple, but there is an answer that can help you. Remember that the union's goal is to have the employer recognize it. In pursuit of this goal, the union's main tactic is to have the employer expend exorbitant amounts in attorney's fees. Your strategy must anticipate the union's goals and frustrate them.

The union generally targets an employer who is a merit shop contractor advertising for help. The union, at any given time, has numerous members at the union hall looking for work. Lately, the unions have either had a business agent call your company or may merely send members over in large or small contingents to fill out applications. If the applicants state they are from a union, prospective employers have an obligation to view them as you would any other applicant and decide whether to hire them based solely on their qualifications. You do not have an obligation to hire all of the union's people, nor do you have an obligation keep secret that they are members of the union. You should not refer to them as "troublemakers" to your existing workplace or in any way indicate that their design is to cause you problems. You should simply address your existing workers and explain that the union has sent some men over and that it is likely that they will be trying to convince people that they should join the union or that they should leave the company to join the union.

Your first attack should be targeted towards explaining to the workers that if the union is so wonderful and really pays higher wage rates, then why are these men sitting on the bench in the first place? Second, why are they agreeing to work for less than what the union has promised them is the union scale? Finally, you should let your employees know that you have made a commitment to keep them working so that they have a dependable income to be able to take care of their families. Point out also that you do not lay employees off immediately if the work slows down.

The story that you have to tell is a good one and yet many contractors are afraid to confront the issue of the union and address it head on: You do not charge dues for your employees. You recognize seniority, yet a new person who shows ambition can be recognized by pay raises and promotions without waiting for someone to leave or to die. You should discuss that they do not need an outside third party to speak and act for them and that they can come to you directly to discuss issues or concerns. You should also feel confident in citing that the union's numbers are shrinking and it simply has no choice but to seek new members by making promises of higher wages and benefits.



One of the best ways you can prepare your workers for a union salting attack is to prepare them for what the union will be telling them. You should tell your employees that while it is true that the union speaks of a higher wage rate, they should ask how often do those union members have regular work? The union will talk about a defined benefit plan that it sponsors and how it will guarantee the workers a retirement plan when they retire. You should arm your employees with the facts to be able to show that the company would never have to agree to any such benefit plan and that you do not think that such a plan is your employees' best interests. The eligibility and the amount of benefits that those employees receive can be very deceptive, and they should ask the union representatives for copies of the "Summary Plan Descriptions" so that they can see for themselves how these plans really operate. Employees should understand that if the union were to gain the right to represent the them that all they win is the right to make demands at the bargaining table. The company retains the right to reject any demand that is not in the best interest of the company. If the company rejects a demand or a number of demands, then the union can do one of two things. The union can accept what the company has offered or the union can authorize a strike. You should tell the employees that they must be willing to strike if they do not like what the company offers. Unions are used to the old multi-employer bargaining units that included all the electrical workers or the pipefitters in a certain geographic market. These days very few companies are willing to sign such an agreement, and the unions who still are members of these group agreements are having to bargain individual contracts with the groups that they have won the right to represent. The unions are uncomfortable with this arrangement and do not know how to bargain a separate bargaining agreement when they have been used to a master agreement. It is within the law for the company to state that the workers should be careful about what they sign and they should understand that what the union promises and what the union gets can be very different things. It is also within the law to tell the employees that with the union they could possibly get more with the union as has been promised, but that they could also get exactly what they presently have, or they could even could less. Depending upon the state that you do business in, union members might not even have to pay dues (if you live in a right to work state). If the workers get exactly what they had received before the union arrived and they have to pay dues, they have actually lost wages. If the employees have to strike to get what they want, they will not be paid by the company and they could be permanently replaced in their jobs.


PRACTICAL POINTER: The simple truth is that it is your obligation to tell your employees these facts because the union will not step forward and tell them the whole truth. Hoping and wishing that the union will not attack your company is not the prudent course of action. Arm your employees with the truth about the union, and you will see that your workers are the best insurance you can have if you find yourself having hired union organizers.