National Clothesline

The National Labor Relations Board (NLRB) is the federal agency charged with enforcing the country’s laws involving union organizing, collective bargaining, and related issues.

The National Labor Relations Act began as a pro-union statute in 1935, but in 1948 Congress enacted several pro-management and pro-employee amendments that restored some balance. Still, the Act has plenty of pro-union provisions, and the NLRB attracts more employees with union sympathies than management philosophies.

It has always been difficult for me to explain to clients that the NLRB is a neutral agency. Some of the rules that have evolved, theoretically to protect employees, are irrational, anti-employer proclamations.

For example, you cannot ask an employee how he feels about unions, no matter how comfortable he is with the question.

If an employer makes a mistake under one of those rules, the NLRB prosecutes the unfair labor practices with its lawyers sharing counsel table with union lawyers and business agents.

Recently, I have even more trouble convincing myself that the NLRB is neutral because of a phenomenon called “salting.”

Salting is where a union sends loyal members or union business agents to apply for jobs with non-union companies. If the employee is hired, he unionizes the company from the inside. If he is not hired, the union files unfair labor practice charges claiming that the “applicant” was the victim of anti-union discrimination.

The term “salting” is based on the dishonest practice of “salting” a barren mine with gold to make potential investors think that the mine has potential.

Because union salting involves dishonesty, it seems appropriate that this practice be called “salting.”

Unfortunately, the United States Supreme Court has said that professional union “salts” have the same rights as real applicants for employment, which means that they cannot be rejected solely because of their union membership.

The NLRB has so embraced the concept of protecting paid union organizers with no real interest in being hired by a non-union company that the situation has become pathetic. Even where the union salts misbehave while filling out applications, the NLRB bends over backwards to penalize any employer that gets caught in the union’s salting trap.

If you hire a professional organizer like any other applicant, then find out that he is a terrible employee, the NLRB makes you jump through hoops to show that you did NOT fire the employee for being an organizer. The NLRB has become, in essence, an arm of big labor, though some would say that the NLRB has always been such an organization.

So, what does an employer do if confronted with eight paid organizers from a union answering an ad for employees the employer has just placed? Hire them and hope that they work hard and limit their organizing to breaks? Or refuse to hire them and be faced with government lawyers prosecuting them?

The situation is as ugly as it sounds, and it makes no sense to a casual observer.

We recommend that our senators and representatives be lobbied to amend the National Labor Relations Act to outlaw the hideous practice of salting. Until then, employers must be vigilant in dealing with salting.

Employers must have good hiring procedures in place, and it must apply those procedures to ensure that the best applicants are hired.

If a “salt” gets hired, he must be treated just like other employees before discipline is handed out.

Nevertheless, there is nothing wrong with dealing with the situation by telling the employees exactly what is going on.

First, tell your employees that the union is so eager to get new dues-paying members that it is paying “John Doe” while he works next to them, in effect getting paid twice.

Second, tell them that if the company gets unionized, John Doe will probably quit to go unionize someone else.

Third, tell them the truth about unionization and what it means for the average employee. There is no guarantee of wage or benefit increases.

Because salting is such a hideous practice, get help the minute you realize that it is happening to your business. Unless you want to spend thousands of dollars fighting the NLRB doing the union’s dirty work, you need to make the right choices at every step of the process.

Frank Kollman is a partner in the law firm of Kollman & Saucier, PA, in Baltimore, MD. He can be reached by phone at (410) 727-4300 or fax (410) 727-4391. His firm’s web site at www.kollman-law.com has articles, sample policies, news and other information on employee/employer relations.