Participation in labor unions in the United States is reaching historical lows.1 With the exception of a slight increase during 1993 and 1994, union membership has been declining since the early 1980s.2 The percentage of organized labor in the overall work force declined from 34.7% in 1954(3) to 15.5% in 1994.4 Several factors are responsible for the decline in union memberships. For example, the economy has changed from a manufacturing base to a service base, which has resulted in a loss of traditional union strength.5 Unions thus far have made little progress toward organizing the growing numbers of women and minorities in the work force.6 Additionally, the economy has become more global and unions have been unable to adapt to the resulting plant relocations, partial shutdowns, mergers, consolidations, and downsizings.7
Unions have responded in a variety of ways to membership decline. The union corporate campaign has joined the strike as "part of a wide array of weapons" labor unions use to achieve their objectives.8 The main objectives of corporate campaigns are to gain union recognition or to facilitate contract bargaining. The corporate campaign is designed to pressure a corporation on whatever fronts necessary to achieve the desired result, whether that is union recognition, a favorable collective bargaining agreement, or the suspension of the use of replacement workers.9 Many campaigns develop "divide and conquer strategies" and strike at a company's power base.10 Such campaigns generally involve "actions against employers such as work slowdowns, negative publicity, demonstrations, and efforts to disrupt the company's executive structure and its relationships with other employers."11 The union strategy is to attack the employer in a comprehensive manner that takes into account the company's financial resources, relationships with other institutions such as banks, and its customer and supplier base.12 Thomas Donohue, president of the American Trucking Association, asserts that unions use corporate campaigns "to blackmail companies into concessions [they] cannot otherwise win at the collective bargaining table or during a union organizing drive."13 The result is the undermining of the productivity, profitability, and competitiveness of some of America's best companies.14
A corporate campaign may take many forms and combine several different strategies.15 One tactic that is popular among unions is "salting."16 Salting occurs when unions send paid professional organizers or activist volunteers to nonunion work sites to apply for jobs.17 Union leaders claim their objective is to cultivate relationships with their fellow workers and to persuade them of the value of unionization,18 while corporate management maintains that unions seek to impose financial burdens on companies, to harass and intimidate them, or even to drive companies out of business.19 The "salts" often succeed by either persuading the employer to sign a collective bargaining agreement or causing the company to scale back its business, leave the union's jurisdiction, or go out of business.20 The corporation usually faces the following dilemma: if it hires salts, they tend to file unfair labor practice claims in an attempt to pressure the employer; if the corporation does not hire the salts, they file discrimination charges against the employer.21 Litigating an unfair labor practice charge typically costs approximately $10,000, and, if the charge is meritorious, employers are often held liable for back pay and benefits.22 Such costs can and do drive many companies out of business.23
Despite the effects of salting, the United States Supreme Court endorsed the tactic in NLRB v. Town & Country Electric, Inc. (Town & Country)24 by holding that a worker can be a company's employee even as he serves the union either as a paid organizer or as a volunteer to organize the company.25 The Court concluded that the National Labor Relations Act (NLRA) definition of "employee" includes any employee, regardless of union affiliation or additional employment.26 Therefore, an employer violates the NLRA if it refuses to hire union organizers or fires them based on their union activities, because such an act constitutes discrimination and discourages membership in a labor union.27 Typically, each job applicant who has been discriminated against receives back pay and a job offer, even if there were more applicants than job openings.28
This Comment argues that union organizers who apply for jobs at nonunion work sites should not be considered employees protected by the NLRA. Part II outlines the facts of Town & Country and the procedural history of the case. Part III argues that the Supreme Court has contravened the congressional intent underlying the NLRA by holding that a union member may be an "employee" of a nonunion company even if a union simultaneously authorizes or pays that member to help the union organize the company. Part IV asserts that the Court has essentially rendered pointless its own decision in Lechmere, Inc. v. NLRB29 and overlooked the fact that unions have access to a variety of other means for reaching employees. Part V maintains that the Court has upset the balance of bargaining power established by the NLRA by impeding employers' abilities to hire the employees they want and demeaning their interests in employee harmony and productivity. Accordingly, Part V advocates the enactment of legislation like the Truth in Employment Act30 to restore the balance of power between unions and businesses. Requiring employers to hire union applicants is essentially like requiring them to allow a Trojan horse31 to enter their workplaces.
II. PROCEDURAL HISTORY OF TOWN& COUNTRY ELECTRIC, INC.
Town & Country Electric, a nonunion electrical contractor based in Wisconsin, entered into a contract to complete electrical renovations at the Boise Cascade paper mill in International Falls, Minnesota.32 Minnesota requires electrical contractors to employ one Minnesota-licensed electrician for every two unlicensed electricians working at the job site, so Town & Country retained Ameristaff Personnel Contractors (Ameristaff) to recruit Minnesota-licensed electricians for the job.33 Locals 292 and 343 of the International Brotherhood of Electrical Workers (IBEW) encouraged unemployed members to apply and, if hired, to organize Town & Country's job site.34 Although most union constitutions do not allow union members to work for nonunion employers, the IBEW had passed a "salting resolution" that permitted members to work for nonunion companies in an effort to unionize their workplaces.35 The union had established a fund from which to reimburse members for wage, health benefits, and travel differentials they incurred during nonunion jobs.36
When Town & Country personnel traveled to Minneapolis to interview electricians for the positions, approximately twelve members of IBEW Local 292, including two fulltime union organizers, were waiting to interview.37 None of them had scheduled interviews, except Malcolm Hansen.38 The only other applicant present who had a scheduled interview was not a union member.39 Town & Country interviewed Hansen and the nonunion applicant and then announced that they would not interview anyone who did not have an appointment.40 After conducting several interviews with Hansen, Town & Country hired him.41 After Hansen had worked three days, Town & Country discharged him for the following reasons: he failed to comply with safety rules; he disrupted the work site by talking continuously; he repeatedly attempted to persuade other employees to join the union, even after they told him they were not interested; he damaged materials, tools, and parts; and his work performance was consistently unsatisfactory.42
In response to the unfair labor practice charges the IBEW filed against Town & Country, the National Labor Relations Board (NLRB) held that Town & Country violated the NLRA by refusing to interview the two union officials and the eight other union members and by discharging Hansen.43 The NLRB ordered Town & Country to reinstate Hansen in his prior position and to provide him with back pay.44 The Board also required Town & Country to offer immediate employment to the ten union members Town & Country had not hired, in positions for which they had applied and were qualified, and to make them whole for any earnings they had lost by reason of the discrimination against them.45
The Eighth Circuit Court of Appeals refused to enforce the NLRB's order by holding that the union officials, Hansen, and the other union members were not employees within the meaning of NLRA section two.46 In reaching its decision, the Eighth Circuit relied upon common law principles of agency and concluded that an employee could not legitimately be allegiant to both a union and a nonunion employer simultaneously.47 Therefore, the court found that Hansen and the other union applicants were not entitled to NLRA protection.48
The United States Supreme Court vacated the Eighth Circuit's judgment and held that the NLRB's construction of the term "employee" is lawful, and therefore the NLRA does cover paid union organizers.49 The Court's primary rationale for this conclusion appeared to be that "the [NLRB] . . . possesses a degree of legal leeway when it interprets its governing statute, particularly where Congress likely intended an understanding of labor relations to guide the Act's application."50 The Court adopted the NLRB's conclusion that the Board's interpretation of the term "employee" does not conflict with common law principles of agency because "service to the union for pay does not `involve abandonment of . . . service' to the company."51 The Court stated:
Common sense suggests that as a worker goes about his ordinary tasks during a working day . . . he or she is subject to the control of the company employer, whether or not the union also pays the worker.... And, that being so, that union and company interests or control might sometimes differ should make no difference.52
Although common sense may suggest that a union organizer will faithfully carry out the duties assigned by the nonunion employer, experience indicates that such fidelity usually does not exist.53 This Comment argues that the Court has overlooked the fact that, but for his or her intention to organize the job site, the union organizer turned nonunion company employee would not have applied for the job. The organizer's very presence at the job site necessitates an intent that is inimical to the nonunion employer's interests from the outset of the employer-employee relationship.
III. CONTRAVENTION OF CONGRESSIONAL INTENT
A. The Chevron Test
By holding that a paid union organizer may be a company's "employee" under the NLRA, the Supreme Court has contravened the congressional intent underlying the NLRA. The Court itself stated in Chevron, US.A., Inc. v. Natural Resources Defense Council, Inc.54 that when a court reviews an agency's construction of the statute it administers, the court must ask (1) "whether Congress has directly spoken to the precise question at issue" and, if Congress has not directly addressed the issue, (2) "whether the agency's answer is based on a permissible construction of the statute."55 If the statute clearly expresses Congress' intent, courts do not defer to the agency's interpretation of the statute; they simply enforce the statute's clear meaning.56 If the statute is not clear, courts defer to the agency's interpretation as long as it is reasonable.57 The Taft-Hartley amendments to section two of the NLRA make it clear that Congress intended the definition of "employee" to have a meaning consistent with common law agency principles.58
The Court in Town & Country largely glossed over the required analysis of Congress' intent underlying the NLRA. The Court conceded that, "[i]n the past, when Congress has used the term 'employee' without deEming it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine."59 However, the Court also stated that it had repeatedly said that "[s]ince the task of defining the term 'employee' is one that `has been assigned primarily to the agency created by Congress to administer the Act,' . . . the [NLRB]'s construction of that term is entitled to considerable deference..."60 Ignoring precedent, the Court did not rely on one of these standards of review over the other, but adopted a combination of the two. It held that the NLRB acted reasonably in concluding that the term "employee" could include a union organizer without running afoul of common law agency principles.61 However, review of agency principles reveals that a union organizer cannot be loyal to both his union and his nonunion employer simultaneously. The Court should have given greater consideration to legislative intent when deciding Town & Country.
When Congress passed the NLRA, it did not authorize the NLRB to define each word in the Act according to whatever meaning the NLRB wished.62 In fact, when Congress amended the NLRA in 1947, the conference report for the Labor-Management Relations Act criticized the tendency of the NLRB and the Court to ignore the common law in defining "employee," as evidenced in NLRB v. Hearst Publications.63 Senator Taft spoke of the need for the Board and the courts to determine the meaning of "employee" according to general principles of agency.64 It therefore seems reasonable to assume that the committee intended the NLRB and the courts to return to the common law as the basis for defining "employee."65 As recently as 1992, in Nationwide Mutual Ins. Co. v. Darden, the Court stated that, after Hearst Publications, "Congress amended the statute. . . to demonstrate that the usual common-law principles were the keys to meaning."66 The NLRB67 and several courts68 have since relied on Darden by construing the NLRA's definition of "employee" according to common law principles. However, the Supreme Court ignored this intention when it decided Town & Country.
B. Principles of Agency and the Eighth Circuit Opinion
If the Supreme Court had complied with Chevron and first considered the congressional intent underlying the NLRA and its definition of "employee," perhaps the Court would have more stringently applied the principles of agency doctrine and would have considered the implications for Town & Country's situation. In previous cases, the Court referred to the Restatement of Agency as the guiding source for the common law of agency.69 Control is the central defining characteristic of the employee-employer relationship. According to section two of the Restatement (Second) of Agency, "[a] servant is an agent employed by a master to perform services in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master."70
Under agency law, a servant may be subject to the control of two independent masters simultaneously only if service to one master does not require the abandonment of service to the other master.71 Furthermore, a person "cannot be a servant of two masters in doing an act as to which an intent to serve one necessarily excludes an intent to serve the other."72 Agency law requires that agents act solely to benefit the principal in all matters connected with the agency.73 An agent is obligated "not to act or to agree to act during the period of his agency for persons whose interests conflict with those of the principal in matters in which the agent is employed."74 Therefore, even if an employee is subject to the concurrent control of two independent employers, she is considered the agent only for the employer she truly intends to serve if that service prevents complete fidelity to the other. If service to one employer requires any "degradation of service" to the other, the individual cannot establish an employer-employee relationship with the second employer.75
A union organizer's service to his union could conflict with his service to his nonunion employer in at least two ways. First, the employer's interest in maintaining an efficient workplace and completing contracts in a cost-effective manner may directly conflict with the organizer's intent to unionize the work force. The organizer's efforts may interfere with employee productivity by distracting nonunion employees. The organizer may file unfair labor practice charges, meritorious or not, that require expenditures for legal services, or intentionally damage the work site in a manner that increases the company's unforeseen costs.
Second, the union organizer may have no intention of being a good employee because her only reason for taking the job is to organize the work force. Although an employer may lawfully discharge even union members because of their poor performance, having to do so in itself harms the employer financially by requiring the employer to pay wages not fully earned and to incur the cost of hiring a replacement, not to mention the delay such action may cause. Both the NLRB's and the Court's decisions, especially in Town & Country, rest on the assumption that union organizers "do not regularly engage in conduct justifying an employer's blanket refusal to hire them"76 or an employer's lawful discharge of them. The NLRB and the Court apparently ignored or completely discredited Town & Country's supervisors' and employees' testimony about Hansen's disruption of the job site, his harassment of the other employees, and his mistreatment of tools and materials.77 In fact, the Court stated, "[N]othing in this record suggests that such acts of disloyalty were present, in kind or degree, to the point where the company might lose control over the worker's normal workplace tasks."78 Although the Court noted that "the Union's resolution contains nothing that suggests, requires, encourages, or condones impermissible or unlawful activity,"79 it did not appear to consider whether, despite the union's resolution, the union organizer did in fact engage in activity that would warrant his termination.
In Town & Country's appeal of the NLRB's decision, the Eighth Circuit held that neither the two full-time paid union organizers nor the volunteer union organizers were employees for purposes of the NLRA.80 The court pointed out that ordinarily "the control a master can properly exercise over the conduct of a servant prevents simultaneous service for two independent employers."81 With respect to the two professional union organizers, the court found that their interests inherently conflicted with Town & Country's interests. The organizers wanted to obtain positions with Town & Country not for financial gain, but to organize its employees, or to harm the company financially and cause it to move its business elsewhere.82 The court determined that in such a situation the union official would comply with the mandates of the union, not the nonunion employer: "If the union commands him to increase his organizational activities at his second employer's expense, he will do so. If the union asks him to quit working for his second employer, he will do so."83 And, if the nonunion employer discharged the professional union organizer, the organizer could simply return to his full-time union job.84
With respect to the volunteer union organizers, the Eighth Circuit concluded that the organizers were ultimately the agents of IBEW Local 292.85 The Local had encouraged them to apply for positions with Town & Country to unionize the job site, and these union members were required to comply with the IBEW salting resolution.86 The resolution provided that the union members could seek employment with nonsignatory contractors only for the purpose of organizing the contractor's employees.87 The resolution required the union members to "promptly and diligently carry out their organizing assignments, and leave the employer or job immediately upon notification."88
Organizing activities such as Hansen's distract union organizers from their regular job functions. The "salt" employee must do at least a minimal amount of work to avoid being terminated for poor performance, but the main reason he has sought work with the company is to gain access to its nonunion employees. His impetus is to persuade those employees at least to consider unionization or to cause the company to suffer financially because it is not unionized. Solely to fulfill these purposes, the union authorizes the organizer to work for a nonunion company. Although employers can limit organization efforts to non-work hours, such as lunch time, before work, and after work, at many job sites the employer is unable to monitor employee activities during working hours.89 For example, Town & Country's witnesses testified that Hansen frequently disappeared from the work site for long periods, he did not do much work because he was constantly talking about the union when he was supposed to be working, and he slowed the job and distracted the other employees with his incessant speech.90 Based on these facts, the Eighth Circuit reasoned that employers such as Town & Country "should not be required to place and retain on [their] payroll[s] those whose continued presence on the job will be determined by an entity other than [themselves]."91 As in Hansen's case, a union organizer who obtains a position with a nonunion company solely to unionize or harm that company violates the principles of agency because he is acting simultaneously for persons whose interests conflict. Therefore, a salt should not be protected as an "employee" under the NLRA.
The Eighth Circuit's analysis more accurately implements the intent with which Congress enacted and amended the NLRA. Congress passed the NLRA in 1935 to equalize the bargaining power of employees and employers by encouraging "practices fundamental to the friendly adjustment of industrial disputes."92 In 1947, Congress amended the NLRA via the Labor-Management Relations Act93 and added, among other changes, the statement: "Experience has further demonstrated that certain practices by some labor organizations, their officers, and members have the intent or the necessary effect of burdening or obstructing commerce.... The elimination of such practices is a necessary condition to the assurance of the rights herein granted."94 Both the congressional record and the text of the NLRA indicate that Congress strove to balance the interests of employers and employees. In light of its stated purpose of "removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes . . . and by restoring equality of bargaining power between employers and employees,"95 Congress likely did not intend the NLRA to protect a union activity, such as salting, which backs nonunion companies into corners and essentially forces them to comply with union demands. By using the common law agency doctrine to review the NLRB's interpretation of the word "employee," the Supreme Court should have concluded that a professional union organizer, or a union member applying for a position at the direction and under the ultimate control of the union, is not a bona fide applicant entitled to the protections granted to employees by the NLRA.
IV. TOWN & COUNTRY IMPLICATIONS FOR LECHMERE, INC. V. NLRB
Even as the Supreme Court's Town & Country decision disregarded the legislative intent behind the NLRA, the Court also essentially rendered pointless its own decision in Lechmere, Inc. v. NLRB.96 Lechmere involved an unfair labor practice charge filed by Local 919 of the United Food and Commercial Workers Union, in which the union alleged that Lechmere violated the NLRA by barring union organizers from its property.97 The union sought access to Lechmere's employees for organizing purposes by placing union handbills on the windshields of cars parked in a corner of Lechmere's lot that was used mainly by employees.98 The NLRB ruled in the union's favor,99 but the Supreme Court held that Lechmere had the right to exclude non-employee organizers from company property.100 The Court cited NLRB v. Babcock & Wilcox Co.101 to support its conclusion that section seven of the NLRA does not protect non-employee union organizers except in rare cases where the inaccessibility of employees makes ineffective the reasonable attempts by non-employees to communicate with them through the usual channels.102
In Sunland Construction Co.,103 a companion case to Town & Country, the NLRB distinguished Lechmere as a property rights decision that did not affect the rights under the NLRA of job applicants and other "statutory" employees.104 In a concurring opinion, Board Member Raudabaugh expressed concern that the NLRB's protection of salting would create an artifice whereby a paid union organizer could circumvent the Lechmere decision and thus render Lechmere a "non-event."105 The Supreme Court's Lechmere decision practically "impel[led] organizers interested in reaching employees to become statutory 'employees' themselves by applying for a job at the company."106 The Court's holding in Town & Country effectively destroyed the limits of Lechmere by granting union access to company property when the employees are "beyond the reach of reasonable union efforts to communicate with them"107 and when union organizers apply for jobs with nonunion companies.
In the Town & Country decision, the Supreme Court reiterated that an employer "may as a rule limit the access of non employee union organizers to company property."los However, by finding even paid union organizers to be "employees" protected by the NLRA, the Court failed to extrapolate the Lechmere rule. As a result, the Court essentially denied employers the right to limit the access of any union organizers who applied for positions with nonunion companies. Granted, employers are not required to hire applicants who are not qualified for the positions for which they have applied, but this right does little to protect employers from the dilemma they encounter when unions wage salting campaigns.109 Even Board Member Raudabaugh stated that a "union organizer could simply come in through the front door as an applicant" if the NLRB obligated an employer to hire a union organizer qualified for the job.110 He added that he did not believe the Supreme Court, "having erected property barriers in Babcock and Lechmere, intended for these barriers to be so easily transgressed."111 When deciding Town & Country in favor of the union, the Supreme Court arguably overlooked the fact that unions have access to a variety of other means of reaching employees, such as calling orgaizational meetings or distributing information outside the workplace, in their efforts to persuade nonunion employees of the merits of union membership.112
V. IMBALANCED BARGAINING POWER
In upholding the union tactic of salting, the Supreme Court has upset the balance of bargaining power established by the NLRA by impeding employers' ability to hire the employees they want and demeaning their interest in employee harmony and productivity. Employers, particularly small or family-owned businesses, should not have to face financial jeopardy or sacrifice employee autonomy to make it easier for unions to exercise their rights. While larger businesses may be better able to absorb the costs of defending unfair labor practice charges and may already have a formal system of supervision, smaller businesses often cannot afford to defend such charges or to maintain extensive supervisory structures to oversee their employees' activities.113 Furthermore, both large and small businesses have the right to believe that their employees possess a certain level of loyalty. "With the Court upholding salting. . ., companies will lose the sense of security they have with employees they trust."114 Additionally, neither the NLRB nor the Court appears to have considered the implications of NLRA section eight, which provides: "It shall be an unfair labor practice for a labor organization or its agents . . . (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) . . ." 115 Arguably, unions are violating this provision if, by engaging in salting and other tactics, they intend to create evidence to support an unfair labor practice charge against that employer.116
Section one of the NLRA states Congress' intention to protect the right of employees to organize and bargain collectively.117 Both the NLRB and the Supreme Court make much of the NLRA's expansive definition of "employee."118 Their respective decisions in Town & Country seem to rest in part on Congress' failure expressly to omit union organizers from the NLRA's definition of "employee."119 The NLRB noted:
Although Congress did not specifically consider the status of union organizers when enacting Section 2(3), it expansively referred to "employees" as "workers," "wage earners," "workmen," and "every man on the payroll." Even when Congress amended Section 2(3) in 1947 specifically to exclude additional classifications from the definition of "employee," it did not narrow the general definition of "employee."120
Even though the legislative history does not explicitly exclude union organizers from NLRA protection, it is unlikely that Congress, in its quest to equalize the bargaining power of employers and employees, intended to grant unions a weapon like salting that leaves employers basically defenseless.121
Salting campaigns usually inflict serious financial injury upon the targeted companies. Bill Love, president of SKC Electric Inc., told members of the United States House Small Business Committee and the House Subcommittee on Employee-Employer Relations that, from 1992-1996, his company was the target of a salting campaign.122 During that time, the union filed more than thirty complaints with the NLRB, which Love said were unfounded but will cost the company thousands of dollars in legal fees.123 David Meyer, president of Meyer Brothers Building Co., told the panel that unions had just begun filing complaints against his company and already his legal expenses had reached $20,000.124 John Gaylor, of Gaylor Electric, has to budget almost $200,000 each year to defend himself against frivolous charges filed by the union.125
These are only a few examples of salting consequences126 that led a group of Senators in February of 1997 to introduce the Truth in Employment Act of 1997, in part to protect employer rights.127 The legislation would amend section eight of the NLRA to make it clear that an employer is not required to hire any person who applies for a job to promote interests unrelated to those of the employer.128 The purposes of the Truth in Employment Act are:
(1) to preserve the balance of rights between employers, employees, and labor organizations that is fundamental to a system of collective bargaining;
(2) to preserve the rights of employees to organize, or otherwise engage in concerted activities protected under the National Labor Relations Act; and
(3) to alleviate pressure on employers to hire individuals who seek or gain employment in order to disrupt the workplace of the employer or otherwise inflict economic harm designed to put the employer out of business.129
The Truth in Employment Act recognizes that employers should be entitled to some measure of confidence that the job applicants they consider and eventually hire are motivated by their desire to work for the employer.130 As Senator Kassebaum asserted, the federal labor law "protects the right of workers to organize a union," but "it does not and it should not protect unions as they attempt to use our Federal agencies to harass companies." 131 Although the NLRB and the Supreme Court relied on a lack of evidence of congressional intent when they decided Town dE Country, the congressional intent underlying the Truth in Employment Act is clear. It is up to Congress to combat the Supreme Court's Town & Country decision by enacting the Truth in Employment Act132 and restoring the balance of rights that is the foundation of our collective bargaining system.
The only reason an employer would hire an individual he knows intends to harm his company is because broad interpretations of the NLRA's definition of "employee" provide the employer with no alternative besides having to defend against discrimination charges. Ironically, nonunion companies seem to be victims of discrimination themselves, even if unintended, in the aftermath of the Supreme Court's Town & Country decision. By refusing to consider seriously the consequences of salting in terms of common law principles of agency, both the NLRB and the Supreme Court have disregarded the real implications of their decisions and have effectively backed nonunion employers against a wall.
As a result of Town & Country, nonunion companies have no effective means to deal with the salting campaigns unions wage against them. A method must exist for unions to achieve their goals without harming nonunion companies, particularly small, family-owned businesses that are an integral part of the United States economy. It is up to Congress to enact legislation that will restore the balance of bargaining power the NLRA established for employees and employers.
1. See generally THOMAS GEOGHEGAN, WHICH SIDE ARE YOU ON?: TRYING TO BE FOR LABOR WHEN IT'S FLAT ON ITS BACK (1991). 2. See C. John Cicero, The Classroom as Shop Floor: Images of Work and the Study of Labor Law, 20 VT. L. REv. 117, 117 nn.2-3 (1995). 3. Michael H. Gottesman, In Despair, Starting Over: Imagining a Labor Law for Unorganized Workers, 69 CHI.-KENT L. REV. 59, 59 n.1 (1993). 4. See EMPLOYMENT & EARNiNGs (Bureau of Labor Statistics, U.S. Dep't of Labor), Jan. 1995, at 214 tbl. 40.
5. See Samuel Estreicher, Labor Law Reform in a World of Competitive Product Markets, 69 CHI.KENT L. REV. 3, 6 (1993). 6. See, e.g., Katherine Van Wezel Stone, The Legacy of Industrial Pluralism: The Tension Between Individual Employment Rights and the New Deal Collective Bargaining System, 59 U. CHI. L. REv. 575, 580-81 n.14 (1992). 7. Id at 586-90.
8. Special Report, Labor Unions Turn More Often to Strategies Other than Strikes, 1994 DLR 204 dl9 (Oct. 25, 1994). 9. BNA Special Report, UNIONS TODAY: NEW TACTICS TO TACKLE TOUGH TIMEs 57 (1985). 10. Id.
11. Julius G. Getman & F. Ray Marshall, Industrial Relations in Transition: The Paper Industry Exampie, 102 YALE LJ. 1803,1831(1993). 12. Id at 1832.
13. Corporate Campaign: Business Leaders Blast Union Tactics; House Hearings Planned for November, 1995 DLR 184 d4 (Sept 22, 1995). 14. See id
15. See generally Melinda J. Branscomb, Labor, Loyalty, and the Corporate Campaign, 73 B.U. L. REV. 291 (1993) (discussing various tactics unions adopt to wage corporate campaigns). For a more general discussion of corporate campaigns and their effects, see Paul Jarley & Cheryl Maranto, Union Corporate Campaigns: An Assessment, 43 IND. LAB. L. REv. 505 (1990). 16. The term "salting" probably derives its meaning from the mining industry practice of salting a mine to increase its output. See Tualatin Elec., 312 N.L.R.B. 129, 130 n.3 (1993) (A.L.J. opinion) (explaining the possible origins of the term "salting").
17. See Herbert R. Northrup, "Salting" the Contractors' Labor Force: Construction Unions Organizing with NLRB Assistance, 14 J. LAB. RES. 470, 471 (1993). 18. See BNA Special Report, supra note 9, at 56.
19. See id Interestingly, the Union Organizing Manual of the International Brotherhood of Electrical Workers explains why it uses salts. The IBEW's purpose is to gather information that will "shape the strategy the organizer will use later in the campaign to threaten or actually apply the economic pressure necessary to cause the employer to . .. . raise his prices to recoup additional costs, scale back his business, leave the union's
jurisdiction, [or] go out of business...." Statement on Introduced Bills and Joint Resolutions, Truth in Employment Act of 1997, 143 CONG. REC. S1383-01, S1397 (quoting the Union Organizing Manual of the IBEW). The International Vice President of the United Food and Commercial Workers Union has been quoted as saying, "If we can't organize them, the best thing to do is erode their business as much as possible." Id 20. See Organizing: Union 'Salts' Being Used to Apply Economic Pressure, House Panel Told, 1995 DLR 211 d3 (Nov. 1, 1995) (describing the testimony of several employers from the construction industry). According to these employers, the salting objective in many cases is "to impose a financial burden on a company that tries to defend itself against tactics used by salts and even to drive the company out of business." Id Michael McCune, the chief executive officer of Contractors Labor Pool (CLP) in Reno, Nevada, stated, "We're not a target for unionization.... Rather, we are targeted for extinction." Id He said that, of the 18,000 employees CLP had hired during the past eight years, the only unfair labor practices against the company had been filed by salts. See id 21. See id
22. See Organizing: Union 'Salts' Being Used to Apply Economic Pressure, House Panel Told, 1995 DLR211 d3 (Nov. 1,1995). 23. See id; see also infra notes 122-125 and accompanying text (discussing examples of the financial burdens placed upon companies as a result of litigation from salting campaigns). 24. 516 U.S. 85 (1995). 25. Id at 96-98.
26. Id at 88-92. Section 2(3) of the NLRA defines "employee": The term "employee" shall include any employee and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parents or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act (45 U.S.C. sec 151 et seq.), as amended from time to time, or by any other person who is not an employer as herein defined.
29. U.S.C. sec 152(3) (1988). 27. 29 U.S.C. sec 158(a)(3)(1988).
28. See Note, Organizing Worth Its Salt: The Protected Status of Paid Union Organizers, 108 HARV. L. REV. 1341, 1346 (1995) (citing Ultrasystems Western Constructors, Inc., 310 N.L.R.B. 545, 546 (1993) (holding that job applicants discriminated against at one job site may also recover back pay for other sites at which they did not apply because "applying would have been futile") and Fluor Daniel Inc., 304 N.L.R.B. 970, 979-81 (1991) (A.L.J. opinion) (awarding back pay and requiring the employer to offer positions to all 48 applicants for 14 positions)).
29. 502 U.S. 527, 533-34 (1992) (holding that the National Labor Relations Board may order an employer to grant union access to company property only "where `the location of the plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them"' (quoting NLRB v. Babcock & Wilcox Co., 351 U.S. 105,113 (1956)). 30. S.328, 105th Cong. 1st Sess., sec 3 (1997).
31. See Sunland Constr. Co, 309 N.L.R.B. 1224, 1232 (1992) (Member Oviatt, concurring) (stating that salts are "reminiscent of the Trojan Horse whose innocuous appearance shields a deadly enemy"). 32. Town & Country Elect., Inc., 309 N.L.R.B. 1250,1250 (1992). 33. Id. Town & Country retained exclusive discretion in interviewing, hiring, setting wage rates, supervising, and discharging any employees retained through Ameristaff. Id at 1251. The union applicants in question were essentially temporary employees, but that issue is beyond the scope of this Comment. 34. Id.
35. The IBEW's salting resolution states in part: WHEREAS: The first obligation of the members of this local union is to organize the unorganized in order to maintain and secure our wages, benefits and other conditions of employment, and WHEREAS: The success of any organizing drive depends upon the support of each and every union craftsman, both on and off the job; therefore be it RESOLVED: That the (title of responsible local union official or committee here) be empowered to authorize members to seek employment by nonsignatory contractors for the purpose of organizing the unorganized, and be it further. . . RESOLVED: That such members, when employed by nonsignatory employers, shall promptly and diligently carry out their organizing assignments, and leave the employer or job immediately upon notification, and be it further RESOLVED: That any member accepting employment by a nonsignatory employer, except as authorized by this RESOLUTION, shall be subject to charges and discipline as provided by our Constitution and Bylaws.
IBEW Special Projects Department, UNION ORGANIZATION IN THE CONSTRUCTION INDUSTRY Exhibit A (1993).
36. See Town & Country Elec., Inc., 309 N.L.RB. at 1251. 37. See id 38. See id 39. See id
40. See id at 1252. 41. See Town & Country Elec., Inc., 309 N.L.R.B. at 1252. 42. See id at 1268-71 (presenting the testimony of Hansen's supervisor and fellow employees regarding his performance at the job site). 43. Id at 1278, 1280. 44. Id at 1280-81.
46. Town & Country Elec., Inc. v. NLRB, 34 F.3d 625, 629 (Si Cir. 1994). 47. Id at 628. 48. Id at 629.
49. NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 98 (1995). 50. Id at 89-90. 51. Id at 95 (quoting Town & Country Elec., Inc., 309 N.L.R.B. 1250, 1254 (1992)). 52. Id
53. See supra note 42 and accompanying text (detailing the ways in which Hansen undermined Town & Country's job); see also infra Part V (providing examples of the consequences of salting campaigns).
54. 467 U.S. 837 (1984). 55. Id at 842-43. 56. See id 57. See id
58. Labor Management Relations Act, Pub. L. No. 80-101, Sec. 101, 61 Stat. 136,138, sec 2(3) (1947). 59. NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 94 (1995) (quoting Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992)). 60. Id (quoting Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984)). 61. Id at 94-95. The Court explained, "Common sense suggests that as a worker goes about his ordinary tasks during a working day . . ., he or she is subject to the control of the company employer, whether or not the union also pays the worker.... [T]hat union and company interests or control might sometimes differ should make no difference." Id. at 95. 62. See Note, Jonathan D. Hacker, Are Trojan Horse Union Organizers "Employees"?: A New Look at Deference to the NLRB's Interpretation of NLRA Section 2(3), 93 MICH. L. REv. 772, 779 (1995) (stating that
"Congress intended then, and it intends now, that the Board give to words not far-fetched meanings but ordinary meanings"); see also H.R. REP. No. 245, 80th Cong., 1st Sess. 18 (1947). 63. See H.R CONF. REP. No. 510, 80th Cong., Ist Sess. 32-33 (1947) (stating that the Supreme Court, in NLRB v. Hearst Publications; 322 U.S. 111(1944), had held that the NLRB could disregard the law of agency in defining "employee" to include independent contractors, and explaining that Congress intended effectively to reverse this opinion). 64. Id 65. Id
66. 503 U.S. 318, 324-25 (1992) (examining the congressional intent underlying the NLRA). 67. Sunland Constr. Co., 309 N.L.RB. 1224, 1227 (1992). 68. See, e.g., Town & Country v. NLRB, 34 F.3d 625, 628 (8th Cir. 1994); Willmar Elec. Serv., Inc. v. NLRB, 968 F.2d 1327, 1329 (D.C. Cir. 1992). 69. See, e.g., Community for Creative Non-Violence v. Reid, 490 U.S. 730, 752 n.31 (1989) ("In determining whether a hired party is an employee under the general common law of agency, we have traditionally looked for guidance to the Restatement of Agency."). 70. RESTATEMENT (SECOND) OF AGENCY 2(2) (1957). 71. Id 226 ("A person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other.").
72. Id sec 226 cmL a. 73. Id sec 387. 74. Id sec 394. 75. See Hacker, supra note 62, at 782 (analyzing agency principles and the "Trojan horse organizer" question).
76. Id. at 787 n.78. 77. The Eighth Circuit even noted on remand from the Supreme Court that: [H]ad the ALJ credited the testimony of Hansen's coworkers, he would have found that Hansen failed to accurately bend and cut lengths of conduit; that he broke an inordinate number of blades because of his improper use of a portable band saw; that he chipped and dulled a large number of drill bits . . .; and that he abused a pipe-threading machine by pounding on it with a hammer rather than by tightening the locking mechanism by hand. Under this view of the testimony, Hansen was either an incompetent or a saboteur.
Town & Country Elec., Inc. v. NLRB, 106 F.3d 816, 821 n.2 (8th Cir. 1997). Although courts usually review agency findings under a clearly erroneous standard, even the Administrative Law Judge who first heard the case wrote, "The witnesses presented by each side to this controversy, for the most part, were not entirely credible, thus, complicating the fact finding process." Town & Country Elec., Inc. v. IBEW, Locals 292 & 343, 309 N.L.R.B. 1250, 1259 n.l (1992). In light of these fact-finding difficulties, the Supreme Court should
have at least considered Hansen's alleged activities when determining whether his discharge by Town & Country was based on a pretext. 78. NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 96 (1995). 79. Id.
80. Town & Country Elec., Inc. v. NLRB, 34 F.3d 625, 629 (8th Cir. 1994). 81. Id at 628; see also RESTATEMENT (SECOND) OF AGENCY sec 226 cmt. a (1957). 82. Town & Country, 34 F.3d at 629. 83. Id
84. Id Additionally, the discharged organizer could then charge the company with engaging in unfair labor practices by claiming that it discharged him because of his organizing efforts, which Hansen did in this situation. Id 85. Id
86. Town & Country, 34 F.3d at 629; see also IBEW Special Projects Department, supra note 35 (giving an example of such a salting resolution). 87. Town & Country, 34 F.3d at 629. 88. Id. (quoting Local 292's job salting resolution).
89. The key to the salting ruling is that union organizers can be paid for organizing while they are on the clock. Although many salts do attempt to rally employees during the lunch break or before or after work, others talk to co-workers about the union while on the job. Brad L. F. Hoeschen, Court Gives Union Practice of 'Salting' a Boost, NEW ORLEANs CITYBUSINEss, Feb. 19, 1996, at 6. 90. See Town & Country Elec., Inc., 309 N.L.R.B. 1250, 1271-73. 91. Town & Country Elec., Inc. v. NLRB, 34 F.3d. 625, 629 (8th Cir. 1994). 92. National Labor Relations Act, 49 Stat. 449 (1935). 93. Pub. L. No. 80-101, 61 Stat. 136 (1947), as amended; 29 U.S.C. secs 141-197 (1988). 94. 29 U.S.C. sec 151 (1988), as amended. 95. Id.
96. 502 U.S. 527 (1992) (holding that the National Labor Relations Board may order an employer to grant union access to company property "only where `the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them"' (emphasis in original) (quoting NLRB v. Babcock & Wilcox Co., 351 U.S.105,113 (1956)). 97. Id. at 531. 98. Id at 529.
99. Lechmere, Inc., 295 N.L.R.B. 94 (1988). 100. Lechmere, 502 U.S. at 541. 101. 351 U.S. 105 (1956) (holding that a company may bar non-employee union organizers from conducting organizing activities on company property, as long as the union has other reasonable means of reaching the nonunion employees). 102. Lechmere, 502 U.S. at 540 (citing NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956)). 103. 309 N.L.R.B. 1224 (1992). 104. Id. at 1229.
105. Id at 1233 (Member Raudabaugh, concurring). 106. See Note, Organizing Worth Its Salt: The Protected Status of Paid Union Organizers, 108 HARV. L. REV. 1341, 1348 (1995) (arguing that employers who refuse to hire salts unlawfully discourage membership in labor unions).
107. Lechmere, Inc. v. NLRB, 502 U.S. 527, 534 (1992) (quoting NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956)). 108. NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 97 (1995) (citing Lechmere, Inc. v. NLRB, 502 U.S. 527, 538 (1992)).
109. Certainly employers can discharge employees who perform poorly at work. However, a union employee's intentionally poor performance can serve the union in at least two ways. If the union seeks merely to harm the nonunion company financially, poor work or misuse of tools can cause a financial impact. Furthermore, an unfair labor practice charge based on the discharge, substantiated or not, can also financially harm a company in addition to pressuring it to unionize. 110. Member Raudabaugh wrote, "[I]f an employer has a nondiscriminatory policy or practice of refusing to hire temporary employees, I think it clear that the employer, acting pursuant to that policy or practice, could refuse to hire someone who plans to work for the employer during an organizational drive and to leave thereafter." Sunland Constr. Co., 309 N.L.R.B. 1224, 1233 (1992) (Member Raudabaugh, concurring). Member Raudabaugh concurred in Town & Country for the reasons stated in his concurring opinion in Sunland. Town & Country Elec., 309 N.L.R.B. 1250, 1258. 111. Id
112. See, e.g., James A. Craft & Marian M. Extejt, New Strategies in Union Organizing, 4 J. LAB. RES. 19 (1983) (discussing various components of union organizing).
113. See infra notes 122-126 and accompanying text (relating examples of the consequences salting campaigns may hold for small businesses). 114. Hoeschen, supra note 89, at 6. 115. 29 U.S.C. sec 158(b)(2) (1988). 116. See Northrup, supra note 17, at 479-84; see generally Leonard Bierman & Rafael Gely, Salting the Contractor$s' Labor Force, 15 J. LAB. REs. 309 (1994). 117. 29 U.S.C. sec 151 (1988). 118. Id sec 152(3).
119. 309 N.L.R.B. 1250, 1253 ("There is no evidence in the legislative history that Congress intended Section 2(3), at least as to paid union organizers, to be more restrictive than the ordinary meaning of its terms."). 120. Id
121. It is more plausible that Congress contemplated situations in which persons who were already employees of a nonunion company would act concertedly to make certain requests of the company. See, e.g, The Truth in Employment Act of 1997, 143 CONG. REC. E252-03, E253 (statement of Sen. Fawell) ("Surely, Congress could not have intended the NLRA to be used as the legal shield that unions now commonly invoke in defense of their abusive behavior."). Although employers can fire employees based on poor productivity, taking such action against union organizers often results in the filing of unfair labor practice charges. Many employers choose not to discharge such employees because the potential lawsuits are too costly. See infra notes 122-126 and accompanying text.
122. See Brian Kaberline, Contractors and Unions Air Out Debate Over 'Salting' to Congress, 14 KAN. CITY Bus. J. 10 (April 19,1996). 123. See id 124. See id
125. Statement on Introduced Bills and Joint Resolutions, The Truth in Employment Act of 1996, 143 CONG. REC. S1383-01, S1397 (statement of Sen. Hutchinson). Gaylor related a classic example of salting tactics when he told of having to fire an employee who refused to wear his hard-hat on his head. Id The employee would strap his hard-hat to his knee and dare Gaylor to fire him because he said the employee manual stated only that he had to wear the hard-hat, it did not state where he had to wear it. Id 126. Senator Gorton stated that the bill seeks to curb the abuses of salting: Abuses that have caused one constituent in my state to declare bankruptcy, one to agree to sign a union agreement because he "was too old to go through the harassment again," one who is afraid to hire more employees, one who has in excess of $100,000 in legal fees, and another who just "got off easy" with $40,000 in legal fees. Statements on Introduced Bills and Joint Resolutions, The Truth in Employment Act of 1996, 142 CONG. REC. S7302-02, S7305 (statement of Sen. Gorton).
127. S. 328, 105th Cong., 1st Sess., sec 3 (1997). 128. See id sec 4. 129. Id sec 3. 130. 142 CONG. REC. E520 (daily ed. March 24, 1996) (statement of Rep. Fawell).
131. 142 CONG. REC. S7305 (daily ed. June 28, 1996) (statement of Sen. Kassebaum). 132. On September 14, 1998, the Senate voted unanimously to consider the Truth in Employment Act. 144 CONG. REC. D962-02, D962.…