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Court Rules Workers Can Serve Two Masters

Although hiring one of the union organizers who join your company for the sole purpose of soliciting union support can have negative effects for your company, their activities are legal.

May 1, 1998
Help Wanted: Paid Union Organizers Need Not Apply. Post that and you’ll find yourself before the National Labor Relations Board (NLRB). Although hiring any one of the increasing number of union organizers who join your company for the sole purpose of soliciting union support can have negative effects for your company, their activities are legal.

The case. In a key 1995 U.S. Supreme Court case, NLRB v. Town and Country Electric, the court ruled that an employee can serve two masters. It upheld the union’s claim that one union organizer was wrongfully dismissed and 10 other organizers were wrongfully refused employment when they applied for positions through an employment agency for jobs at Town and Country Electric in International Falls, Minnesota. The result cost the employer thousands of dollars in legal fees and back wages for each of the 11 union organizers.

The Court’s decision came as a result of the union, the International Brotherhood of Electrical Workers (IBEW), filing charges with the NLRB alleging several violations of the National Labor Relations Act (NLRA). The charges specifically alleged that the union organizers were refused employment and were discriminated against based on their union affiliation.

Rhonda Aliouat, regional attorney for the NLRB’s Region Three in Buffalo, New York, says that when the NLRB investigates salting cases, the question the company has to answer is whether there was a failure to hire or a failure to consider to hire the union organizer. Or if the organizer was hired, was he or she fired as a result of his or her union activity? You need to apply certain standards:

  • Was there union activity?
  • Did the employer have knowledge of union activity?
  • Was there employer animus toward that union activity, and was there discrimination?

That was how the Board investigated the Town and Country Electric case. Its conclusion was that the employer violated the NLRA by refusing to hire the labor organizers.

The decision. But the Board’s decision was reversed by the United States Court of Appeals for the 8th Circuit. The appellate court ruled that NLRB had incorrectly interpreted the statutory word, "employee." In the Appellate Court’s view, the term employee didn’t cover those who work for a company while they’re paid by a labor union to organize that company. Because there was conflict between several circuit appellate courts, the U.S. Supreme Court agreed to review the case and held that the NLRB’s interpretation was correct. Employees can serve two masters and are protected under the NLRA when they organize a nonunion employer.

The response. The Supreme Court’s finding that supported unions in their quest to organize using this Trojan horse strategy has prompted Congress to consider the issue. In February 1997, Rep. Harris Fawell (R-IL) and Sen. Tim Hutchinson (R-AL) have introduced identical bills (H.R. 758 and S. 328) called the Truth in Employment Act. The legislation would amend the National Labor Relations Act to allow employers to not hire applicants whose primary purpose of employment is to organize the employer’s workforce. Specifically the bill would clear employers to not hire applicants who seek employment "in furtherance of the objectives of an organization other than the employer’s." Both bills have been in and out of several committees since they were introduced.

On Oct. 9, 1997, the House Education and Workforce Committee held hearings on H.R. 758 and incorporated the bill into H.R. 3246, the Fairness for Small Business and Employees Act. H.R. 3246 subsequently was passed by the full House on March 26, 1998. The Senate Bill remains in the Education and Labor Committee.

Workforce, May 1998, Vol. 77, No. 5, p. 48.