Arbitration Agreements     At-Will Employment Disclaimers     Collective Bargaining     Employer Investigations   
Exclusive Bargaining Representatives     National Labor Relations Act     National Labor Relations Board     Overly Broad Confidentiality Provisions   Policies Against Union Insignia     Practical Considerations for Employers     Protected Activities     Representation & Elections Process   
Other Petitions & Elections     Strikes and Picketing     Unfair Labor Practices of Employers     Unfair Labor Practices of Unions   
Unfair Labor Practice Charges      Union Organizing Tactics     Unions Home     HR Knowledge Central Home       

Union Organizing Tactics

Unions may use several tactics to attempt to organize workers in non-union workplaces. Two of the most prominent tactics are described below.

Salting: Salting is a practice used by unions to organize the employees of a non-union employer by sending in union members, union employees or union sympathizers to apply for employment with the objective of organizing the employer’s employees into the union. Some of the applicants will appear to be well-qualified for the position applied for and will hold themselves out to be non-union in the previous employment history.

Once employed, the “salts” will start soliciting union participation from the employees during their time on the job. Once the employer learns of this activity, the union will file charges with the NLRB if anyadverse action is taken against any of these employees. Also, these employees may try to provoke the employer to terminate their employment. Such action would expose the employer to possible liability.

Other job candidates will appear to apply for employment while wearing union shirts or insignia, hoping that they will be turned down for employment. If so, the applicants will then file charges with the NLRB, claiming that they were denied employment because of their obvious union support. In Toering Electric, the NLRB ruled that to qualify as an “employee” entitled to protection against hiring discrimination based on union affiliation or activity, the applicant must be generally interested in establishing an employment relationship with the employer.

“Corporate Campaigns” and Card Check/Neutrality Agreements: “Corporate Campaigns” are an alternative to traditional “bottom up” or grass roots type organizing — where organizers try to convince employees to sign enough authorization cards to obtain a secret ballot election. “Corporate Campaigns” use a “top down” or “boardroom approach” to organizing.

Whether it is a combination of consumer boycotts, attacks on company directors, shareholder initiatives, or other means, a “corporate campaign” is designed to inflict pain, financially and politically, until the employer’s board of directors or top management decides it is preferable not to oppose a union’s organizing efforts.

The ultimate goal of a corporate campaign, is usually to convince the employer to remain neutral (i.e., not contest the union’s efforts to organize employees) as a tradeoff for the union stopping the corporate campaign. With a neutrality agreement, unions are typically given access to the workplace and employee contact details, and the employer often agrees to recognize and bargain with the union once it has been able to convince a majority of the employees to sign authorization cards without any secret ballot NLRB election.

In July 2013, the United States Supreme Court agreed to review the Eleventh Circuit Court of Appeals decision in Mulhall v. Unite Here Local 355; a significant decision in which the court found that neutrality agreements violate the anti-bribery provisions of the Labor Management Relations Act because they provide the union something of value. The particular question in this case was whether an employer violates the anti-bribery provisions by promising to (1) remain neutral to union organizing and (2) to grant the union limited access to the employer’s property and employees in exchange for (3) the union’s promise to forego its rights to picket, boycott or otherwise put pressure on the employer’s business.

However, in December 2013, the U.S. Supreme Court dismissed the Mulhall case prior to making any decision. The Court decided to dismiss the case without reviewing the merits because the neutrality agreement in this particular case had already expired before the lower court made its decision. As a result, the lower court’s decision that commonly used neutrality agreements amount to bribery still stands, potentially restricting a powerful tool in the union’s corporate campaign arsenals.

Employers facing a “corporate campaign” or a request for a neutrality or card check agreement should consult with counsel, especially since the law in this area is evolving and complex.