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This article was originally published by the Wisconsin Chapter of the Associated Builders and Contractors in its April 2007 Merit Shop Talk newsletter.

This Could Happen To You!  Recent Salting Attack

By Jim Pease

It was the fall of 2005.  The contractor’s business was prospering, several new contracts had been obtained, and it appeared there were experienced tradespeople available on the labor market who the contractor was able to hire for the needed build up of its crew.  It was almost too good to be true!

Then, without any notice, the Chicago Regional Council of Carpenters, which has taken over the old Milwaukee and Southeastern District Council of Carpenters, began picketing virtually all of the contractor’s jobs.  About this same time, several employees reported that teams of representatives of the union were coming to their homes in an effort to persuade them to sign cards authorizing the union to represent them.  Those cards will take on an increasing significance if the unions are able to ram through their Employee “Free Choice” bill that would use those cards to replace a secret ballot election to determine whether employees wanted to be represented by a union.

The most surprising report about the union’s home visits was that four employees the contractor had recently hired were part of the union’s visitation teams.  Then two of those employees took off work for two days and picketed on behalf of the union in front of the contractor’s office.

Shortly thereafter, the contractor received a letter from the union stating that the contractor’s employees had decided to form a safety committee and that two of the new employees were the employees who had formed that safety committee.  Those employees proceeded to challenge work assignments as unsafe and stated that the contractor’s efforts to make that work safe were inadequate, and to use every opportunity to use “safety” as an opportunity to delay and disrupt work.

During working time, some of the new employees handed out flyers that made derogatory statements about the contractor.  When confronted by a foreman, one of the new employees who was handing out the flyers went ballistic, yelling that the foreman was harassing him for engaging in protected activity.  That employee left the job claiming that the foreman had fired him, which, in fact, did not occur.  Then all four salts picketed the contractor’s office to protest the “firing” and demanded a meeting with the contractor’s owner ASAP even though they knew the owner was out of town.

Then one of the new employees called OSHA to report “major safety violations.”  When the OSHA inspector arrived at the jobsite, the employee who had called OSHA stopped working and followed the OSHA inspector around the project even though he was told by his foreman to return to work.  Even after the OSHA inspector told the employee he could return to work, the employee continued to shadow the inspector.

The union filed many unfair labor practice charges against the contractor with the National Labor Relations Board based on claims that the contractor had retaliated against the new employees because they were union organizers and because they had engaged in protected activity.  The NLRB issued a complaint against the contractor.

Many employers believe that salting couldn’t happen to them ... until it is too late.

In this case, the contractor learned a very expensive lesson that it had to prepare in advance for salting.  The contractor learned that it had to train its supervisors to understand what protected activity was and that it is unlawful to retaliate against employees for engaging in protected activity.  The contractor learned that, in administering discipline against employees who have engaged in protected activity, the contractor had to be able to prove that it would have imposed the discipline even if the salt hadn’t been a salt, wasn’t otherwise affiliated with a union and hadn’t engaged in protected activity.   In effect, the contractor had the burden of proving that it was innocent of any retaliatory conduct.  The contractor also learned that once the NLRB determines that some of an employer’s conduct is motivated by a desire to retaliate for protected activity, the NLRB will assume that all adverse action by the employer against any union supporter is similarly motivated and is unlawful.

Avoid a nasty experience.  Prepare your management team for salting NOW!  And, consider inoculating your employees on the salting strategy so they will recognize it for what it is and not engage in conduct that will get their employer in trouble, for example, by picking on or hassling a salt.

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