The document explores the significance of core values such as resilience, humility, and hard work in shaping personal decisions and goals. It reflects on the author's personal experiences that emphasize the importance of these values in overcoming adversity and achieving personal growth. Additionally, an analysis of labor relations and union dynamics highlights the challenges and changing role of organized labor in the U.S. economy.

1. Core Values Essay
Student XXXXX
Core Values Essay
The Big Three: Resilience, Humility, and Hard Work
[INTRODUCTION] Core values are ultimately what make up
every decision in life. Without core values we make decisions
based off temporary emotions and chasing the next high. Our
core values shape our goals, how we treat people, and how we
carry ourselves. Values aren’t something everyone consciously
thinks about, but we should all be more self-aware when it
comes to this. The more aware we are to our values, the more
we can differentiate what we care about. The core values I
strive for daily are resilience, humility, and hard work.
[BODY PARAGRAPH 1-CORE VALUE #1] Resilience, one of
my primary core values, is something I developed after facing
much adversity. It is the ability to bounce back quickly after
facing adversity, and In life, we all make mistakes or go
through challenging times. We all get rejected, lose, or become
disappointed some times. I know some people who will let their
troubles define them and effect their confidence. Their response
to the adversity causes them to miss so many other
opportunities simply due to a negative attitude. My parents died
when I was young, and I went into the foster care system, where
I was dealt disappointment after disappointment. I used to feel
angry and put the blame on others for all of my hardships.
Being angry and upset did nothing for me except push me
further from my goals. That is why I believe in resilience. If
you are able to quickly get back up and keep moving forward
then there is nothing stopping you in life. I survived the foster
care system, and now I am thriving.
[BODY PARAGRAPH 2- CORE VALUE #2] Humility is

2. another core value I strive to live by, and I developed this core
value after I found myself thinking I was always right one too
many times. I believe being humble is having confidence yet
still accepting we have more to learn. We aren’t better or below
anyone else. Valuing humbleness has allowed me to better
accept constructed criticism. One time when training someone
new at work, the trainee had corrected me. I immediately
thought I was right and he was wrong because he was the
trainee. We looked further into the sources we had and he was
correct. I immediately felt bad for doubting him and for valuing
my knowledge over his. It was a humbling experience for me
and we both learned more. I know I always have more to learn.
There will always be someone else who knows more or is more
talented. If we accept that we know very little overall, we will
be more open to others input and ideas. Being humble is
important in relationships and in the professional world.
[BODY PARAGRAPH 3- CORE VALUE #3] Hard work is my
favorite core value, and I have developed it over years of
working hard—and also being very lazy. Now, at the end of
every day, I ask myself how I could have worked harder. If
you're working hard then you are constantly growing as a
person. If you have something worth working towards then you
should put everything you can into it. When I was in middle
school, I started playing basketball. I was never very good at
basketball but I worked hard to be better. It came natural to
some on the team but I was never very athletic. Every day I
would go home, run, and practice dribbling on our dirt road. I
worked so hard and everyone could see it. Towards the end of
the season my coach finally put me in. I scored twice in that
game and I was happier than ever. It meant more to me that I
had scored those two baskets than the girls who were scoring
twenty per game. The hard work I put towards it gave me a
sense of pride. Even if I don’t always accomplish amazing
things or always win or even recognized, the satisfaction of
knowing I put the work in for it is enough. Have you ever won
something and thought “wow I really didn’t deserve that?” I

3. never want to feel like that. I know I work hard every single day
and deserve the good things I get.
[CONCLUSION] I have had low points in my life where I
wasn’t living based off of my values. It is always very chaotic
and messy. Having values gives you a sense of purpose. Values
are something you can constantly strive for and never achieve
because there is no end goal. Values mold our everyday life and
every single decision. I could wake up one day and choose to
not work hard, or choose to feel bad for myself, but instead I
wake up and choose my values. I have learned a lack of values
causes me to do things I would never think of doing. I would do
or say something and think to myself “that was out of character
for me, that’s not who I am”. That’s why I attempt to be more
self-aware of my values. I strive every day to uphold resi lience,
humbleness, and hard work.
TEAM OUTLINE
1
TEAM OUTLINE
3
CHAPTER 12: Labor Relations
LEARNING OBJECTIVES
· Understand the provisions of the National Labor Relations
Act (NLRA), which apply toall employers, regardless of
whether their workforce is unionized
· Explain the reasons why employees form and join unions

4. · Describe the restrictions the NLRA places on union
organizers and employer behaviors during organizing campaigns
· Gain an appreciation of the reasons for decline in uni on
membership and the challenges organized labor faces in a global
information-based economy
· Understand the process of collective bargaining and the
various types of bargaining items
· Appreciate the role of alternative dispute resolution when
collective bargaining has been unsuccessful
Labor Unrest at the New York MTA
On the morning of December 20, 2005, New Yorkers who relied
on public transit to get to their places of employment or around
town to complete their holiday shopping woke up to find that
the subway and public bus systems had been shut down by a
strike of the 34,000 workers who were members of the
Transport Workers Union Local 100 of the Metropolitan
Transportation Authority (MTA). Negotiations for a new
contract had broken down because of a failure to agree on
retirement or pension provisions and wage increases. The strike
was seen as a particular hardship for lower-income residents of
the outer boroughs of New York City.
While the strike itself lasted only 60 hours, it took another day
to get the transit system fully up and running. Nonetheless, the
strike had a significant impact on New York. Public schools
were affected and had to operate on a delayed schedule, while
many private schools were forced to close completely. Public
safety was impacted detrimentally because of the increased
congestion on streets and sidewalks. The financial impact of the
strike was significant, as the city estimated that it lost more
than $300 million per day and other revenues.

5. The strike was illegal under the New York State Public
Employees Fair Employment Act, more commonly known as the
Taylor Law, which prohibits municipal workers from striking
and provides alternative means for resolution of labor -related
disputes. This law, which had been enacted in response to a
previous transit strike, which took place in 1966, also provides
for criminal penalties, including imprisonment for union
officials and fines to be levied against both the union and
striking employees. Local 100 did not have the support of its
parent union—the International Transport Workers Union—for
the strike, with the parent union ordering Local 100 workers to
return to work as soon as it became aware of what had
transpired. As a result of the strike, Local 100 president Roger
Toussaint was sentenced to ten days in jail and the union was
fined $2.5 million. $300,000 in strike-related penalties were
levied against union members and deducted from the paychecks
of striking workers.1 The aftermath of the strike involved a
tremendous amount of published analysis of the political
behavior of the union as well as local elected officials,
particularly Mayor Michael Bloomberg, illustrating the
politically charged realities in which organized labor operates.
Labor relations is a key strategic issue for organizations
because the nature of the relationship between the employer and
employees can have a significant impact on morale, motivation,
and productivity. Workers who feel that the terms and
conditions of their employment are less than advantageous w ill
not be as committed to perform and to remain with an employer.
Consequently, how organizations manage the day-to-day aspects
of the employment relationship can be a key variable affecting
their ability to achieve strategic objectives.
Workers who have unionized create special challenges for
human resource (HR) management. When workers form unions,

6. the employment relationship becomes more formal through a
union contract and is subject to special provisions of the
National Labor Relations Act. This Act allows unions to be
formed and exist as employee organizations that have the legal
right to bargain with management over various terms and
conditions of employment. Unions provide membership solely
for employees; managers are prohibited by law from joining
employee unions or from forming their own unions.
Organized labor in the United States has had a cyclical history,
generally consisting of short periods of sharp growth in union
membership and activity followed by extended periods of
decline.2 In the early part of the twentieth century, employee-
centered management practices were eroding interest in
unionization. The Great Depression then ignited strong interest
in unions with the resultant creation by John Lewis of the
Congress of Industrial Organizations (CIO). At that time, both
the CIO and the American Federation of Labor (AFL) were able
to unionize large segments of the workforce. These organizing
efforts were largely focused on second-generation immigrants,
particularly Catholics, Italians, and Jews, as unions attempted
to provide these individuals with the full benefits of working in
the WASP-dominated economy.
Unions continued to enjoy increased membership until World
War II. Interest in unions declined post-War until the mid-
1960s, when unions began to reach out to African Americans
during the drive for civil rights and subsequently enjoyed a
renewed popularity. Also at that time, Cesar Chavez founded
the National Farm Workers Association, drawing attention to
the plight of Latino and Filipino farm workers who had been
forced to endure deplorable working conditions and substandard
wages. Chavez’s efforts led to a grape boycott that was
observed by more than 17 million Americans and, more
generally, resulted in widespread awareness and distrust of
exploitation of workers by employers. These successes also led

7. to a flurry of union organization among public sector employees
that continued until the early 1980s.
August 3, 1981, is considered to be a significant day in the
history of American labor. On that date, more than 12,000
employees of the Federal Aviation Administration (FAA) who
were members of the Professional Air Traffic Controllers
(PATCO) union walked off of their jobs. When President
Reagan ordered them back to work within 48 hours, 11,325 of
them refused and were fired immediately, as the FAA
commenced hiring permanent replacements. Since the
unsuccessful PATCO strike, strikes have nearly disappeared in
the United States. During the 1950s, organized labor
successfully orchestrated an average of 344 work stoppages
annually.3 However, post-PATCO, that number had
continuously been in decline and by 2008 had dipped to just 15,
with 9 of these 15 lasting for 10 days or less.4 The PATCO
strike greatly influenced public perceptions against organized
labor stoppages and affirmed the right for employers to hire
permanent replacements for striking workers. This shift has
turned the strike into a present-day near-suicide tactic for
unions.
Union membership in the United States has been steadily
declining for a number of years. In 1970, approximately 30
percent of the private workforce was unionized, in addition to a
majority of public sector employees. By 1999, the U.S.
Department of Labor reported that only 13.9 percent of the
workforce was unionized. By 2013 union membership had
dropped further to 11.3 percent of the workforce. Public sector
employees were more than five times more likely to be union
members than private sector employees (36 percent versus 6.6
percent), and more than 50 percent of union members lived in
seven states (California, New York, Illinois, Pennsylvania,
Michigan, New Jersey, and Ohio).5 These numbers represented
declines in overall union membership as well as in both the

8. public and private sector union density.6
The decline in union membership can be attributed to a number
of factors. First, many workers have become disenfranchised
from their unions. Allegations of union corruption and misuse
of funds—combined with the fact that workers sometimes feel
that the costs of union membership outweigh the benefits—have
eroded union membership. Second, many organizations have
moved their manufacturing and assembly operations outside the
United States. Unions have traditionally had their strongest
bases of support among these blue-collar workers, and the
movement of those jobs overseas has hurt unions. Third,
changes in the nature of work and technology have eliminated
many of the traditional manual labor jobs in which union
members were employed. Finally, many unions have refused to
be flexible enough to allow organizations to grow and adapt in
relation to the changes taking place in their industries, markets,
and the technological, economic, and sociocultural
environments. The traditional model of American labor unions,
which guard employee rights by attempting to maintain the
status quo, no longer benefits employers or employees. Unions
of the future will have to be based on a different model and
have different relationships with the organizations whose
workers they represent—if they continue to exist.
Although overall union membership is declining, it is important
to understand organized labor relations for at least three
reasons. First, in many industries, unionization is the norm.
Many public sector workplaces are unionized. In the private
sector, industries such as transportation, construction,
hospitality, publishing, education, and healthcare are usually
highly unionized. In fact, the transportation industry has the
highest level of private sector union membership, at 25.5
percent.7 Managers and business owners in these industries
have no choice but to be well versed on the laws that regulate
the relationship with union employees. Second, competitors may
be unionized, and settlements in those organizations may impact

9. HR practices, programs, and policies needed to remain
competitive in recruiting and retaining productive employees.
Arguably, the most important reason for employers to have a
sense of the labor relations landscape is that the National Labor
Relations Act provides all employees—rather than just those
who have unionized—with specific rights. Consequently, many
employers who operate in nonunion environments may be
unfamiliar with some of the terms and conditions of
employment outlined in the Act. Section 7 of the Act grants all
employees, including those who are not members of unions, the
right to engage in activities that support their “mutual aid or
protection.” There are six notable provisions under this section
that employers must know to avoid violations of the Act.8
First is the right of employees to discuss employment terms. In
order for employees to consider whether they wish to organize,
they must be able to discuss the terms and conditions of
employment, including compensation, harassment, and
discrimination. This right, however, does not extend to the
disclosure of confidential information, such as salaries, to
which an employee might have access as part of his or her job.
Second, employees reserve the right to complain to third
parties, such as customers, clients, and the media, about their
treatment by the employer. Again, however, the employer
retains the right to prohibit disclosure of any confidential or
proprietary information. Third, employees have the right to
engage in a work stoppage or collective walkout to protest
working conditions without fear of retaliation. Any employee
who is disciplined or discharged for engaging in such behavior
has a valid claim against the employer under the National Labor
Relations Act. Fourth, employees have the right to honor picket
lines without fear of retaliation. This is considered protected
activity regardless of whether the employee is a member of the
picketing union or merely sympathetic to the cause and plight of
the workers on the picket line. Fifth, employees have the
conditional right to solicit and distribute union literature. Such
behavior can be restricted but not fully prohibited, as will be

10. discussed shortly. Finally, employers cannot unilaterally ban
employees’ access to the worksite while off duty. Restrictions
may be imposed that limit access to the interior of the facility if
applied consistently to all employees for all purposes, but
employees still retain the right to be present on company
property, such as the employee parking lot, after working hours
to engage in behaviors protected under the Act.
It cannot be emphasized enough that nonunion employees enjoy
significant protection against arbitrary, capricious, or harassing
conduct by employers. This standard was established by the
Supreme Court in the 1962 case of NLRB v. Washington
Aluminum Co.,9 where the Court found that employee activity
that was concerted for mutual aid or protection (in this case,
walking off the job in protest of poor working conditions) was
lawful. As long as the employee’s or group of employees’
actions are beyond that of a personal complaint pursued in self-
interest, such behavior is protected without the presence of a
formally recognized union. These rights have consistently been
reinforced in numerous court cases since the initial rul ing
in Washington Aluminum.
Just because an organization is not unionized today does not
mean that it may not be in the future. Managers in such
organizations need to know why workers form or join unions,
how the law requires the employer to behave during any union-
organizing campaign and after a union has been voted in, how
the collective-bargaining process is conducted, and how
impasses may be settled. Some management advisors who work
with organizations on labor relations have even gone as far to
encourage employers to have their supervisors talk openly with
employees about possible union representation in a proactive
manner before any possible organizing efforts begin.10 Critical
to such a strategy, however, is training of managers on what
they are allowed to say to employees (facts, opinions, and
examples) and what they are not allowed to say or do (threats,
interrogation, promises, and surveillance).11

11. The word “union” means that workers have agreed to work
together in dealing with and negotiating the terms and
conditions of their employment with management. The Latin
root uni means one, in the sense of a union; it means that a
plurality of workers has united to speak with “one voice.”
Organized labor presents a number of key strategic challenges
for management. First, when workers unionize, the power based
within the organization is redistributed. Employers can find that
their ability to manage workers at their discretion to achieve the
organization’s strategic objectives has been severely curtailed.
Second, the process of unionization involves bringing in outside
players: union representatives, who then become an additional
constituency whose support must be gained for any new or
ongoing management initiatives. Finally, a unionized work
setting can greatly impact the organization’s cost structure,
particularly payroll expenses and work processes that may
contribute to or retard efficiency in operations.
Why Employees Unionize
Employees usually form or join unions because of the perceived
benefits that unionization might provide them. These benefits
can be economic, social, and/or political. Economic benefits can
result from a union’s ability to negotiate higher wages, better or
expanded benefits, greater job or employment security, and
improved working hours and conditions. Social benefits can be
derived from the affiliation and sense of community that
workers share when they are unionized. Their personal issues
and needs relating to their jobs and lifestyles can often be
integrated within the union agenda, with corresponding support
gained from coworkers. Unions also often sponsor social events
for their members and their families. Is it not surprising that
many unions have the word “brotherhood” in their name; this
attempts to signify the family or community atmosphere the
union tries to create for its members.
Political benefits can be gained through the sense of power in

12. numbers. In negotiating with management over terms and
conditions of employment, individual employees are relatively
powerless. They often need the organization (to earn a living)
far more than the organization needs them (individual workers
can be easily replaced). When workers unionize and speak with
one voice, they leverage their individual power against
management and equalize the balance of power within the
organization. Management may be able to do without individual
employees, but they cannot do without their entire workforce.
Unions can allow workers far greater say and involvement in
negotiating and setting critical terms and conditions of
employment and in ensuring fair treatment from the
organization. Unions can often provide additional political
benefits in a literal sense in that the power and strength of their
united membership can be used to support and influence
political races and legislation passed at the local, state, and
federal levels.
No benefits come without some cost, and union membership is
no exception. Union members pay at least two significant costs
for their benefits. First are the economic costs of the fees or
dues that unions charge their members to support the initiatives
the union undertakes on behalf of its employees. Second are the
political costs employees assume when they relinquish their
individual freedom to deal with their employer and be
represented by the union. Individual employees may not agree
with the terms and conditions negotiated for them or the tactics
and strategies the union uses in negotiating. Although
individual employees do vote on the decision to strike, an
employee who does not wish or cannot afford to go out on strike
is basically stuck in accepting the majority position and then
assumes any risk associated with deviating from the union
majority.
The National Labor Relations Act
In 1935, Congress passed the National Labor Relations Act

13. (NLRA), also called the Wagner Act, which gave employees the
right to unionize and to regulate union and management
relations. This Act has been amended several times, most
notably in 1947, with amendments known as the Taft-Hartley
Act, and in 1959, with amendments known as the Landrum-
Griffith Act.
The NLRA created the National Labor Relations Board (NLRB)
to oversee the provisions of the Act. Among other duties, the
NLRB is responsible for overseeing union elections, certifying a
particular union as the official bargaining representative of a
group of employees, and hearing allegations of violations of the
Act from employers, unions, and employee groups.
As a first step in establishing a union, a group of employees
petitions the NLRB, often through the assistance of a union
representative, to conduct an election. As a prerequisite for an
election, the NLRB requires at least 30 percent of the
employees to have signed authorization cards, which indicate an
expressed interest in having union representation from a
specific union. Most petitions to the NLRB involve the
presentation of authorization cards from a far greater number of
employees than 30 percent. These authorization cards are not a
vote for the union; they are merely the means for establishing
the level of employee interest to conduct an election. Some
employees who are not in favor of union representation often
sign authorization cards under peer pressure or to facilitate the
election process. Union-organizing campaigns often create very
stressful working conditions, and some employees who are
against unionization may sign authorization cards to ensure that
the election be held as soon as possible.
Once the NLRB has received the authorization cards and
determined that there is sufficient interest to conduct an
election, it will attempt to determine the appropriate bargaining
unit. A bargaining unit is a group of employees who have
similar wages, skill levels, working conditions, and/or levels of

14. professionalism. The NLRB will determine whether the
organization should have one bargaining unit that covers all
employees or separate bargaining units for different groups of
employees, given the differences in their jobs.
For example, airlines have separate bargaining units for flight
attendants, pilots, and ramp workers, given the differences in
job responsibilities, training, hours, and working conditions.
Newspapers have separate unions for writers, printers, and press
people because of similar differences. A restaurant, on the other
hand, might have one bargaining unit that includes wait staff,
cooks, hosts, bartenders, and bus staff. When a unionized
organization has more than one bargaining unit, each bargaining
unit negotiates a contract with management separately;
however, the individual units are often impacted by what the
other units negotiate, and each unit often lends support to the
others during periods of labor unrest.
When the NLRB conducts an election, the option that receives
the majority of the votes (50 percent plus one) wins the
election. There may, however, be more than two options (union
or no union) on the ballot. Given that the NLRB requires
authorization cards from only 30 percent of employees, it is
mathematically possible for more than one union to be part of
an election. This has been the case when there has been public
knowledge of dissatisfied employees and thus more than one
union attempted to organize workers simultaneously. If there
were three options on the ballot (no union, Union A, Union B)
and none of them received more than 50 percent of the initial
vote, then the option receiving the least support would be
dropped and a second ballot would be issued. Eventually, one
option will have the support of more than 50 percent of the
employees in the prospective bargaining unit.
Behavior During Organizing Campaigns
Union-organizing campaigns often present difficult working

15. conditions for employees, who are often continuously subjected
to opposing information from management, union
representatives, and prounion coworkers in support of their
respective positions. In passing the NLRA, Congress determined
that it should regulate the behavior of management and union
representatives in union-organizing campaigns to ensure that
one does not have an unfair advantage over the other in
communicating positions to employees.
The NLRA outlines specific provisions pertaining to employer
conduct during union-organizing campaigns in its discussion of
unfair labor practices. Section 8(c) of the Act provides that “the
expression of views, arguments or opinions, or the
dissemination thereof, whether in written, printed, graphic or
visual form shall not constitute or be evidence of an unfair labor
practice … if such expression contains no threat of reprisal or
force or promise of benefit.” Therefore, employers have free
rein to communicate their position concerning unionization to
employees during working hours, which is only appropriate
because the employers are paying employees for that time.
However, employers are forbidden from making any threat or
promise pending the outcome of the election. The reason for
this directive is that allowing employers to do so would give
employers an unfair advantage in the election. The union does
not have the power to make any such promises, and so to ensure
a level playing field, the NLRB also prohibits employers from
doing so. Employers need to treat employees more
favorably before the NLRB has stepped in and established
employee interest in conducting an election.
The Act also allows prounion employees the full right to
approach their coworkers at work and express their support of
the union, as long as such contact takes place during
nonworking periods in nonworking areas (such as the employee
cafeteria during lunch breaks, the parking lot after leaving
work, or in a restroom during a scheduled break). This is
consistent with the constitutional guarantee of freedom of

16. speech. Employers can prohibit employees who support the
union from communicating this support to coworkers at any
other time.
A more difficult question concerns the extent to which
employers can prevent employee solicitation by union
representatives at the worksite. The U.S. Supreme Court has
issued several rulings in this area that continue to redefine the
relative positions of unions and management. Generally, an
employer can restrict nonemployee access to employees if two
conditions have been met: (1) The nonemployee—in this case, a
union organizer—must have some reasonable means to access
and communicate with employees outside the workplace, such
as electronic or print media, and (2) the employer must have a
general ban on all nonemployee solicitation. The latter
condition is not limited to union solicitation; it might also
include charitable appeals, blood drives, or employer -sponsored
outings for which employees have to pay. If these two
conditions are met, then the employer can restrict union
organizers’ access to employees.
Historically, this issue of access to employees has involved
somewhat of a “chess game” between employers and union
organizers. Subsequent to the Supreme Court rulings described
above that restrict union organizer access to employees, unions
have turned to a strategy called “salting” the workplace. Salting
involves a paid union organizer applying for employment with
an employer whose employees are the target of an organizing
drive. The Supreme Court has held that under the NLRA, an
employer cannot discriminate against a person solely on the
basis of his or her status as a salt and intention to organize the
workplace. Employers have since countered salting efforts
through the use of restricted hiring criteria that have the effect
of eliminating salts from employment consideration. The
portrayal of union organizing efforts and management responses
as a chess game relates to the fact that each side is attempting
to develop a response to counter the other side’s most recent

17. “move” or court victory. Reading 12.1, “A Big Chill on a ‘Big
Hurt’: Genuine Interest in Employment of Salts in Assessing
Protection Under the National Labor Relations Act,” illustrates
the tensions that exist between unions and employers in
organizing campaigns.
Employees who are dissatisfied with their union representative
may elect to decertify the union. The process for decertification
happens in exactly the same manner as certification—utilizing
authorization cards and requiring a 50 percent plus one majority
employee vote. The NLRA does, however, require employees to
wait at least one year from certification until a decertification
election can be held. This is to ensure that the union has had
appropriate time to work on behalf of the employees and to
ensure that employees do not drain the time and resources of the
NLRB by continually calling for certification and
decertification elections. Similarly, if a union loses an
organizing campaign, the NLRA prohibits another organizing
campaign and election for at least one year.
Collective Bargaining
When a union is elected to represent employees, the union
representative and employer are jointly responsible for
negotiating a collective-bargaining agreement that covers
various terms and conditions of employment. There are no set
requirements as to the term or content of any collective-
bargaining agreement, but the NLRA classifies bargaining items
as mandatory, permissive, or prohibited. Mandatory items must
be negotiated in good faith if one party chooses to introduce
them to the negotiations. They consist of many of the economic
terms of employment, such as wages, hours, benefits, working
conditions, job-posting procedures, or job security provisions.
Mandatory items also include management rights clauses and
union security clauses. The two parties are not required to come
to an agreement on these items, but they are legally required to
discuss them and bargain in good faith if requested by the other

18. party. “Mandatory” simply means that one party cannot refuse
to discuss one of these items if the other party requests to do so.
Permissive items can be discussed if both parties agree to do so.
Neither party can legally force the other party to negotiate over
a permissive item nor can either party pursue a permissive item
to the point of impasse. Permissive items include things such as
changes in benefits for retired employees, supervisory
compensation and discipline, and union input in pricing of
company products and services. Prohibited items are things
neither party can negotiate because these items are illegal. They
include featherbedding (requiring the employer to pay for work
not done or not requested), discrimination in hiring, or any
other violation of the law or illegal union security clauses. A
listing of some of the items that fall under each classification is
presented in Exhibit 12.1.EXHIBIT 12.1: Types of Bargaining
Items
Mandatory
Permissive
Illegal
Base wages
Union representation on board of directors
Closed-shop agreements
Incentive pay
Benefits for retirees
Featherbedding
Benefits
Wage concessions
Discrimination in hiring
Overtime
Employee ownership
Paid time off
Union input into company pricing policy
Layoff procedures

19. Promotion criteria
Union security clauses
Management rights clauses
Grievance procedures
Safety and health issues
© Cengage Learning
Unions often attempt to negotiate security clauses into the
collective-bargaining agreement. These clauses are a mandatory
bargaining item and an attempt to ensure that the union enjoys
some security in its representation of employees and that the
cost of the union’s efforts on behalf of employees is covered.
The two types of union security clauses are union shop
agreements and agency shop agreements. Union shop
agreements require all newly hired employees who are not union
members to join the union within a specified time period after
beginning employment. Agency shop agreements do not require
employees to join the union but require all nonunion members
who are part of the bargaining unit to pay the union a
representation fee, usually equivalent to the amount of dues
paid by union members. The rationale for collecting such fees is
that although individual employees can maintain the freedom of
being nonunion, as bargaining unit members, they reap the
advantages of what the union negotiates. Therefore, it is only
fair that they should share equally in the cost of obtaining what

20. the union is able to achieve for the bargaining unit. Although
union security clauses are a mandatory bargaining item, the
NLRA allows individual states to pass right-to-work laws that
prohibit union and agency shop arrangements. To date, nearly
half the 50 states have passed such laws. When Michigan, the
birthplace of the United Auto Workers and the U.S. labor
movement, became the 24th right-to-work state in December
2012, the move was seen by many as a crushing blow to the
future of organized labor in the United States.12
A third type of union security agreement that was originally
allowed under the NLRA has since been outlawed. Closed-shop
agreements required the employer to hire only applicants
who were already union members. Congress found such
arrangements to be detrimental to labor because individuals
without income were forced to pay union dues without the
benefit of any employment. There was no guarantee that an
applicant who belonged to a union subsequently would be hired,
and so closed-shop agreements were eventually outlawed.
Failure to Reach Agreement
When the union and the employer are unable to agree on the
terms of the collective-bargaining agreement, workers have the
right—under the NLRA—to strike. Whether employers are
obligated to rehire striking employees at the conclusion of the
strike depends on the kind of strike.
An economic strike is one in which the parties have negotiated
in good faith but have been unable to settle on a contract or
collective-bargaining agreement. The organization has the right
to continue to operate during such a strike and often does so by
utilizing management employees, hiring temporary workers,
and/or hiring permanent replacements. The discretion of how to
proceed rests with the organization. Economic strikers cannot
be terminated simply for engaging in collective strike activity.
At the conclusion of the strike, they must be reinstated if two
conditions are met: (1) Their individual jobs still exist and (2)
permanent replacements have not been hired. Economic strikers

21. run the risk that the employer may eliminate their jobs or hire
replacements; both activities are protected under the NLRA.
An unfair labor practice strike is one in which employees strike
in response to some action of management that the NLRA
identifies as an unfair labor practice. These behaviors are
outlined within the statute, and workers who go out on such a
strike have a guaranteed legal right to reinstatement by the
employer even if the employer has hired permanent
replacements in the interim.
A wildcat strike is one in which workers decide not to honor the
terms of the collective-bargaining agreement and walk out in
violation of their obligation to the employer under the
agreement. Because wildcat strikers have breached their
contractual obligations to the employer, they have no right to
reinstatement in their jobs. Wildcat strikes can be caused by
perceived unfair treatment of an employee by management or a
worksite may be perceived as hazardous or dangerous, such as
those found in the mining and construction industries. In certain
industries, management will attempt to resolve the issue if the
claims are deemed to have merit in lieu of fighting the union in
court. In addition, federal workers are prohibited by law from
striking for any reason, including an economic strike. Any
strike by federal employees is not protected under the NLRA,
and striking employees have no legal rights to return to their
jobs. Such was the case in the early 1980s when the PATCO
union struck, and President Reagan immediately fired and
replaced the striking workers.
The incidence of labor strikes in the United States is decreasing
as both employees and employers realize that everyone loses
during a strike. The company gets hurt financially and in the
public domain; workers get hurt financially and emotionally;
customers may be hurt operationally and financially,
particularly if there are no substitute providers. Organizations

22. can prevent strike activity in two principal ways: through the
use of a formal grievance procedure or through the alternate
dispute resolution (ADR) processes of mediation or arbitration.
Grievance procedures are a permissive bargaining item under
the National Labor Relations Act, as indicated in Exhibit 12.1.
Grievance procedures outline how conflicts or disagreements
between workers and management over the terms of the
collective-bargaining agreement are handled. Grievance
procedures are often the catalyst to resolving problems before
the conflict escalates to a strike. They are also useful in helping
union leaders and management identify weaknesses or
oversights in the collective-bargaining agreement that can be
addressed during the negotiations over subsequent collective-
bargaining agreements. Grievance procedures are also useful as
a means of communicating to management firsthand work-
related sources of employee dissatisfaction that can hamper
morale and productivity.
An increasing number of collective-bargaining agreements are
calling for mediation or arbitration of labor disputes as a means
of avoiding strikes. Mediation involves an outside third party
who has no binding decision-making authority assisting both
sides in reaching a settlement. This individual assists the two
sides in finding some middle ground on which they can agree
and in facilitating dialogue and concessions. Arbitration works
in a similar manner: It involves an outside, unbiased third party
who listens to the arguments presented by both sides. However,
the arbitrator renders a ruling or decision that binds both
parties. Both sides agree to abide by the decision of the
arbitrator prior to entering the arbitration hearing. Mediation is
frequently used in public sector organizations where strike
activity is outlawed at the federal level and often greatly
restricted at the state and local levels. Arbitration is used quite
frequently in professional sports in resolving salary disputes
between union players and the owners of their teams.

23. Arbitration has been controversial in that it has been perceived
as depriving employees of their rights to pursue claims in courts
of law and have their cases heard by a jury and replacing this
process with an employer-controlled system that is less likely to
result in a favorable decision for the employee. However,
history has shown that this is not the case. Employment-related
cases heard in federal district courts historically have resulted
in a 12 percent rate of success for employees, while general
employment arbitration has favored employees in 33 percent of
cases decided, and labor arbitration—heard under a collective-
bargaining agreement—has favored employees in 52 percent of
cases.13Unions Today
One way in which unions are attempting to maintain their
viability in light of declining membership is to recruit in
organizations and industries with which they have no previous
affiliation. With the demise of their traditional manufacturing
base, many domestic unions have expanded their missions, as
efforts to recruit new members have become a top priority. Such
recruiting efforts are seen as so central to the ongoing
livelihood of unions that the AFL-CIO now earmarks one-third
of its operating budget for organizing, compared to just 5
percent 10 years ago.14 Consider the diversity now present in
some of the leading labor unions: the United Steelworkers of
America, established in 1936 to represent steelworkers, now
includes employees from Good Humor/Breyers, the Baltimore
Zoo, and Louisville Slugger; the United Auto Workers,
established in 1935 to represent auto workers, now includes
employees from Miller Beer, Planter’s nuts, Kohler bathroom
fixtures, Yamaha musical instruments, and Folger’s Coffee; the
International Brotherhood of Teamsters, established in 1903 to
represent drivers in the freight-moving industry, now includes
flight attendants, public defenders, and nursing home
employees. There is no consensus regarding the value of such
diversification by unions. Some argue that it provides more

24. power to unions and their members by strengthening their
numbers and preventing their dependence on one particular
industry. On the other hand, critics argue that this prevents
unions from being very influential in setting wages and policy
in a particular industry, given the need to spread time and
resources across multiple industries. However, given the demise
of traditional manufacturing jobs from which unions originated
and relied on for their support and power, unions have little
choice but to reach out to new industries. The critical issue is
whether this diversification is really strategic for the union or
merely opportunistic.
Another new development in how unions operate is their
reliance on technology. Unions have been using the Internet
effectively to recruit new members, particularly those in
technology-based industries, and to gain support from others in
their organizing efforts. The South Bay Central Labor Council,
based in California’s Silicon Valley, consists of 110 affiliated
unions that represent more than 100,000 employees in the area.
The Council is using the Internet to communicate with and, it is
hoped, organize contingent workers.15 Similarly, the Service
Employees International Union undertook a campaign to
organize janitorial workers in the Silicon Valley. The union
successfully used the Internet to publicize its case against Apple
Computer, Oracle, and Hewlett-Packard worldwide via
electronic bulletin boards that informed engineers and
programmers about the wages and working conditions of those
who cleaned their offices at night.16 Finally, the Oakland-based
Local 2850 of the Hotel Employees & Restaurant Employees
International Union used the Internet in a campaign against
software giant PeopleSoft. In attempting to organize workers
from a hotel used extensively by PeopleSoft and its corporate
partners and unable to gain the support of PeopleSoft, the union
launched an Internet campaign that caused PeopleSoft’s stock
value to decline by more than $63 million, according to the
company’s own estimates.17
The NLRB has also considered the role of technology as it

25. relates to worker rights under the NLRA. Given its charge to
ensure that employees are able to communicate freely with each
other about wages and all other conditions and terms of
employment, the NLRB has endorsed e-mail communication
between employees as a means of safeguarding those rights.
Only when an employee’s behavior is disruptive does NLRA
protection cease. As a result, employer policies that ban all
nonbusiness and/or personal use of e-mail may interfere with
the right to self-organize and therefore constitute a violation of
the NLRA. A key issue here is the extent to which employees
normally use the employer’s computer system for their regular
work and communication with coworkers. Employees who
normally use a computer system in carrying out their regular job
responsibilities are considered differently from employees who
generally do not use computers or e-mail to carry out their
regular job responsibilities. In addition, the more e-mail is
normally used in the workplace, the less restrictive a policy an
employer can implement that regulates communication that
might be considered protected concerted activity under the
NLRA.18
In recent years, the proliferation of social media has greatly
altered the means by which employees communicate with each
other, both inside and outside of the workplace. The National
Labor Relations Board has provided protection to some
employees who have had adverse action taken against them by
their employers due to their social media communications and
postings. Reading 12.2, “Social Media, Employee Privacy and
Concerted Activity: Brave New World or Big Brother?,”
discusses issues surrounding employee privacy and how social
media posting by employees may fall with NLRA protection.
Broader employer policies regarding employee electronic
communications have also been targeted by the National Labor
Relations Board. Warehouse retailer Costco had a policy which
prohibited employees from making defamatory statement
deemed unlawful by the NLRB. Specifically, the policy stated,

26. “Employees should be aware that statements posted
electronically (such as to online message boards or discussion
groups) that damage the company, defame any individual or
damage any person’s reputation or violate policies outlined in
the Costco Employee Agreement, may be subject to discipline,
up to and including termination of employment.” The NLRB
found the prohibition to be too broad and designed to squelch
employee concerted communications with each other.19 As part
of the same decision, the NLRB also struck down Costco rules
that prohibited employees from (1) posting, distributing,
removing, or altering any material on company property; (2)
discussing “private matters of members and other employees …
including topics such as, but not limited to, sick calls, leaves of
absence, FMLA call-outs, ADA accommodations, workers’
compensation injuries, personal health information, etc.”; (3)
sharing, transmitting, or storing for personal or public use
without prior management approval sensitive personal
information such as membership, payroll, confidential credit
card numbers, Social Security numbers, or employee personal
health information.20
To guide employers, the NLRB has prepared three separate
updated social media reports, which describe all social media
cases reviewed by the agency. These documents provide
guidance to employers in formulating social media policies that
will comply with federal labor laws.21 Their two main
advisories for employers are (1) employer policies should not be
so sweeping that they prohibit the kinds of activity protected by
federal labor law, such as the discussion of wages or working
conditions among employees; and (2) an employee’s comments
on social media are generally not protected if they are mere
gripes not made in relation to group activity among
employees.22Conclusion
Unions have a long and deep history in the United States and
enjoy strong support under federal law. However, union
membership is declining in America; unions in this country

27. probably will not survive if they continue to display traditional
adversarial relationships with employers. Traditional
approaches to negotiation usually involved the union trying to
gain concessions from management and winning the negotiation.
To be successful in the future, unions must develop partnerships
with employers and seek win–win outcomes to collective
bargaining that strengthen both the union’s position and
employees’ rights and enhance the performance of the
organization. Rigid posturing by unions in attempting to
maintain the status quo works against the many initiatives and
innovations organizations develop as they attempt to respond to
changes in their environments and remain more competitive.
Given the changing nature of organizations and work, unions
clearly need to reinvent themselves. Unions need to consider
that the jobs of today and those of the future are quite different
from the jobs of the past. Increasing global competition,
changing technology, the heightened pace of merger and
acquisition activity, the move toward smaller businesses and
autonomous divisions, and the increasing diversity in the
workforce represent broad changes for unions in the United
States. The jobs being created in our economy are more service-
than manufacturing-oriented; are much more complex,
multifaceted, and broadly designed; involve teams, cooperation,
and working with others; and involve more self- or peer
supervision than supervision by management. Countries such as
Japan and Germany have extensive unionization and produce
some of the highest quality, most technologically advanced
products. Their unions facilitate worker involvement,
development, and participation programs; also, the unions
partner with employers in creating beneficial change rather than
inhibiting change and attempting to ensure workers’ rights by
maintaining the status quo.
As unions decline in number and stature, workers become less
powerful. Without union representation, employee interests can
only be advanced through increased government regulation of

28. the employment relationship or through innovative and
responsive HR programs that organizations initiate themselves.
Increased legislation may ensure worker rights, but it can also
inhibit organizational flexibility and change. Innovative HR
programs can provide workers with benefits, but usually, the
organization retains power and control over the workers, who
maintain their individual status in dealing with separate issues
with the employer. Legislation preserves rights and empowers
workers to a limited extent, but it inhibits change.
Organization-designed initiatives can promote change but still
leave individual workers at a disadvantage when dealing with
employers on issues of equity. Hence, policymakers need to
take a critical look at the institution of collective bargaining to
determine whether it has lived up to the ideals Congress
established for it under the NLRA.
Very few unionized companies have developed effective worker
participation programs because unions are interested in keeping
workers insulated from management issues. Ironically, however,
successful employee participation programs in nonunionized
organizations have actually increased workers’ power and voice
in dealing with management. Union leaders need to create a new
model of worker representation if they plan to survive in the
twenty-first century. This can only be done if union leaders
rethink their roles and adopt collective-bargaining strategies
that allow both the employees and employers to benefit. Union
leaders need not only political and negotiating skills but also
management skills in understanding the whole organization:
strategic issues facing the employer and the organization’s
environment. Instead of seeing themselves as adversaries to
management, they should envision themselves as facilitators and
consultants. Although employers clearly need to consider labor
relations from a strategic perspective, union representatives
must do so even more if they are to keep their unions viable for
tomorrow’s organizations.
Critical Thinking
1.

29. With unionization on the downturn, why should an organization
be concerned about labor relations?
2.
What benefits are received and what costs are incurred when
workers unionize?
3.
Describe the process by which workers unionize.
4.
What are the possible outcomes of failure to reach consensus on
a collective-bargaining agreement?
5.
Contrast the style of labor unions in the United States to that
found in other countries.
6.
Does union diversification make unions stronger or weaker?
How would you feel as an auto worker to see the United Auto
Workers representing employees outside the auto industry?
7.
What rights and responsibilities do employers and employees
have regarding the use of social media communications under
the National Labor Relations Act?
Reading 12.1
8.
Assess the status of employer and union recruiter behaviors in
union-organizing campaigns. How much access should union
organizers have to employees? What new behaviors are likely
from employers and union organizers in response to the actions
of the other party?

30. Reading 12.2
9.
How can social media impact the rights of employees under the
National Labor Relations Act? Can or should any restrictions be
placed by employers on workplace discussions that take place
through social media?
Exercises
1.
Locate a local unionized organization. Interview both a manager
and a union employee to determine the level of satisfaction each
has with the employment relationship. What types of union
activity/inactivity contribute to these positions?
2.
Investigate one large union, such as the United Auto Workers,
United Steelworkers, or Teamsters, in depth and then examine
its member base and recent activity on behalf of its members.
Does it appear that diversification has made this union more or
less effective?
3.
Investigate the nature of collective bargaining in Australia,
Canada, and Mexico and the countries that constitute the
European Union and then compare and contrast the nature and
state of collective bargaining in these areas as well as determine
the implications this has for global business.
4.
Visit the Web sites for the AFL-CIO (http://www.aflcio. org)
and Teamsters (http://www.teamsters.com). What programs does
each union offer its members? What are the main issues each
union appears to be pursuing? Do these programs and issues
appear to be well matched to the needs of the U.S. labor force?
5.
Visit the Web site for the National Labor Relations Board

31. (http://www.nlrb.gov). Of what value is this Web site for
employers? Of what value is this Web site for union leaders?
6.
Design a social media policy for an employer that would
optimally serve both the employers and the employee without
running afoul of the National Labor Relations Act.
Chapter References
1.
Wikipedia. “2005 New York City Transit Strike,” available
at http://en.wikipedia.org/wiki/2005_New_York_City_transit_st
rike.
2.
Caudron, S., et al. “The Labor Movement to War,” Workforce,
January 2001, pp. 27–33.
3.
McCartin, J. “PATCO, Permanent Replacement and the Loss of
Labor’s Strike Weapon,” Perspectives on Work, 10, (1),
Summer 2006, pp. 17–19.
4.
Bureau of Labor Statistics, available
at http://www.bls.gov/news.release/wkstp.nr0.html.
5.
U.S. Bureau of Labor Statistics, Union Members Summary,
January 23, 2013. Available
at http://www.bls.gov/news.release/union2.nr0.htm.
6.
U.S. Bureau of Labor Statistics, Labor Force Statistics from the
Current Population Survey, Union Members, available
at http://stats.bls.gov.
7.

32. Ibid.
8.
Segal, J. A. “Labor Pains for Union-Free Employers,” HR
Magazine, March 2004, 49, (3), pp. 113–118.
9.
NLRB v. Washington Aluminum Co. 370 U.S. 9 (1962).
10.
Smith, A. “Talk, Talk Talk About Unions,” Society for Human
Resource Management, November 14, 2012. Available
at http://www.shrm.org/Pages/login.aspx?ReturnUrl=%2fhrdisci
plines%2flaborrelations%2farticles%2fpages%2forganizing-
discussions.aspx.
11.
Ibid.
12.
Linn, A. “Michigan’s Right-to-work Laws Will Ripple Across
the U.S.” NBC News. Available
at http://www.nbcnews.com/business/economywatch/michigans-
right-work-laws-will-ripple-across-us-1C7559684.
13.
Wheeler, H., Klaas, F. and Mahony, D. Workplace Justice
Without Unions. W.E. Upjohn Institute for Employment
Research, 2004.
14.
Hirsh, S. “Unions Reach Everywhere for Members,” Baltimore
Sun, January 25, 2004, p. ID.
15.
Newman, N. “Union and Community Mobilization in the

33. Information Age,” Perspectives on Work, 6, (2), pp. 9–11.
16.
Ibid.
17.
Ibid.
18.
Lyncheski, J. E. and Heller, L. D. “Cyber Speech Cops,” HR
Magazine, January 2001, 46, (1), pp. 145–150.
19.
Costco Wholesale Corp. and United Food and Commercial
Workers Union, Local 371, 358 NLRB No. 106 (2012).
20.
Ibid.
21.
NLRB, Office of the General Counsel, (Third) Report of the
Acting General Counsel Concerning Social Media Cases
(Memorandum OM 12-59) (May 30, 2012).
22.
Deschenaux, J. “NLRB Issues Second Social Media
Report,” Society for Human Resource Management. January 31,
2012. Available
at http://www.shrm.org/legalissues/federalresources/pages/nlrbs
ocialmediareport.aspx.
READING 12.1: A Big Chill on a “Big Hurt:” Genuine Interest
in Employment of Salts in Assessing Protection Under the
National Labor Relations Act
Jeffrey A. MelloAbstract

34. As union membership has continued to decline steadily in the
US, union organizers have become more creative and vigilant
with their organizing strategies. Chief among these strategies
has been “salting,” a process by which unions attempt to
organize employees from the inside rather than the outside. The
Supreme Court has ruled that, under the National Labor
Relations Act, “salts” cannot be discriminated against solely on
the basis of their status as salts. This paper examines employer
responses to resist salting efforts, including a recent decision by
the National Labor Relations Board, which redefines the
landscape under which salting activities can be conducted and
considered protected activity.
Union membership has been declining steadily in the US since
the US Bureau of Labor Statistics began tracking such numbers
25 years ago. At that time, 20.1% of the US workforce was
unionized. By 2008, only 12% of workforce was unionized with
a continuous steady decline having been recorded over that
time. In 2008, public sector unionization stood at 35.9% while
private sector unionization had declined to 7.4%, with both
percentages having each lost a full percentage point over the
preceding 3 years (Bureau of Labor Statistics 2008). This steady
25 year decline, however, was not a new trend but rather the
continuation of a trend that pre-dated the Bureau of Labor
Statistics tracking (Curms et al. 1990).
This decline can be attributed to a number of factors. First, the
movement of many traditionally union-held jobs to developing
countries overseas to take advantage of lower labor costs has
been increasingly dramatically in recent years. Second, changes
in the nature of the employment relationship, including the
increased transience of the workforce and the erosion of the
assumption, or presumption, of lifetime employment and the
growing trend toward part-time and contract employment have
impacted workers’ interest in being represented by unions.
Third, the rise in undocumented or illegal workers who are
unprotected or afraid to protest and/or organize has affected

35. unions. Fourth, many of the jobs being created in our economy
are in areas in which unions have no experience organizing,
such as call centers, and involve workers who work from their
homes or remote locations, rather than at the employer’s
physical facility. Fifth, an increasing number of employers are
resisting and fighting union organizing attempts more so than in
the past. More than 75% of employers confronted with union
organizing campaigns now hire consultants and an entire new
industry of “union avoidance firms,” often consisting of former
union leaders, has been established over the past three decades
with anti-union success rates that generally exceed 90% (Maher
2005; Logan 2006). Sixth, unions themselves have been blamed
for not keeping up with the times and failing to address the
concerns of the fastest growing segments of the hourly labor
force, including women, minorities and immigrants. Finally, the
alleged antiunion doctrine and teachings of business schools
have been cited as promoting and encouraging more adversarial
relations between employers and unions (Gould 2008;
Anonymous 2003).
Unions have responded to declines in membership by becoming
much more aggressive in their recruiting tactics. One of the
main strategies now being employed by unions is “salting,” a
process by which union organizers attempt to organize a
workplace internally. Originally implemented in the early 1970s
in the construction industry (Raudabaugh 2008), salting
involves a union representative applying for and subsequently
obtaining employment with the organization whose workers are
being targeted for unionization. Salting provides union
organizers with more direct and regular access to employees
who are the target of the unionization drive that would be
realized by organizing from the outside. More recently salting
activity has evolved into a means of political and economic
warfare against employers as the basis for unfair labor practice
allegation filings with the National Labor Relations Board
(NLRB). This paper discusses the legal foundation upon which

36. salting activities are based, the recent court activity and NLRB
rulings in salting cases, subsequent management reactions to
curtail salting activity and the judgments on the legality of such
activities under the National Labor Relations Act (NLRA; 29
U.S.C. § 151 et. seq.). These decisions have significant
implications not only for unions as they attempt to maintain
their viability but also for employers in ensuring that their
management practices and actions do not run afoul of the
NLRA.
Supreme Court Provides Protection to Salts Under the National
Labor Relations Act
The Supreme Court first addressed salting in NLRB v. Town
and Country Electric, Inc. (116 S. Ct. 459, 1995) where it found
that paid union representatives who attempt to gain employment
with a specific employer whose workers they are trying to
organize cannot be discriminated against solely on the basis of
their status as “salts.” Even though a salt may have no intention
of remaining with the employer subsequent to a successful
organizing drive, the Court found that union salts are
considered “employees” under the NLRA and hence, are entitled
to the full range of rights expressly provided to employees
under the statute. As a result, any failure to consider or hire
otherwise qualified salts, as well as the decision to terminate a
salt once the salt’s intentions are made known or union
organizing activities begin, solely based on salt status, is
unlawful under the NLRA. While an employer has no per se
obligation to hire a salt, no job applicant can be denied
employment solely based on her or his status as a salt.
Town and Country constituted what was described as a “chess
match” between employers and union organizers as each
attempted to assert their rights under the NLRA (Mello 1998). A
previous Supreme Court ruling, Lechmere, Inc. v. NLRB (112 S.
Ct. 841, 1992), had strengthened management rights in resisting
organizing activity by disallowing the practice of union
organizers approaching employees on the employer’s property;

37. in this case, the employer-owned employee parking lot. Salting
served as a union response to the restrictions placed on uni on
organizer access to employees in Lechmere and the Town and
Country decision validated the use of salting as a tactic to
organize workers. While Town and Country was a significant
victory for organized labor in prohibiting employers from
refusing to hire an applicant or subsequently terminate an
employee who is attempting to organize its workers, the
decision didn’t address the question of whether a salt can
intentionally lie as part of her or his employment application
process about his or her status as a salt and/or the intention to
organize the workplace. More so, to the extent that Town and
Country gave unions the upper hand in the “chess match,” the
decision certainly gave employers incentive to respond by
monitoring more closely the specific activities of union
organizing efforts.
Intentional Misrepresentation in the Employment Application
Process
In 2002 the Seventh Circuit addressed the extent to which a salt
may lie about organizing intentions in Hartman Bros. Heating
and Air Conditioning, Inc. v. NLRB (280 F.3d 1110, 2002).
Hartman Bros., an Indiana-based heating and air-conditioning
contractor, hired Starnes, who had stated on his employment
application that he had been laid off from his previous job
which paid him $11 per hour. The truth was that Starnes had
taken a formal leave of absence from his position so that he
might work for a union to assist with its organizing efforts. As
the position at Hartman for which Starnes had applied paid only
$8.50 per hour, suspicions might have been aroused if Starnes
stated that he was still employed at a job which paid $11 per
hour. Immediately upon being hired, Starnes informed Hartman
Bros. that he was a union salt who intended to organize the
company. Hartman responded by telling Starnes to leave the
workplace without formally terminating him.

38. The job for which Starnes had applied and been hired required
driving. Consequently, as part of his application Starnes was
required to provide information about his driving history and
stated that he had received one speeding ticket. Hartman Bros.
then informed him that its liability insurer would need to check
his driving record and that Starnes would be ineligible for
employment if, as a result of this investigation, the insurer
refused to provide liability coverage for his driving. Four hours
after Starnes had been ordered off the premises for declaring his
salting intentions, the insurer contacted Hartman Bros. and
disclosed that Starnes had received not one, but two speeding
tickets and that he would be denied coverage. Starnes was
immediately discharged as a result of this misrepresentation and
his disqualification for insurance coverage.
Around the time Starnes applied for a position with Hartman,
Till also applied for employment. Till, however, was
accompanied by a known union organizer, who declared that he
was a union organizer and wore a baseball cap with the union’s
logo. Hartman refused to hire Till.
The court found Hartman Bros. in violation of the NLRA in its
refusal to hire Till as it found that this refusal was motivated
solely by hostility toward unions. Hartman was ordered to cease
and desist in its discriminatory practices against salts and other
union supporters and to hire Till with backpay, in line with the
Supreme Court ruling in Town and Country.
Starnes’ case was more complicated than Till’s. In justifying its
decision to terminate Starnes, Hartman cited an Indiana law
which prohibits any person from knowingly or intentionally
making a false or misleading written statement in seeking
employment. The court, however, found that if the state statute
was being cited as a means for an employer to deny employment
to an individual based on an applicant’s lies about salt status,
the statute would be pre-empted by the National Labor
Relations Act. Any lie about salt status would be immaterial to

39. the hiring decision nor to an applicant’s qualifications for the
job for which (s)he had applied and be based on a presumably
erroneous employer assumption that the individual would not be
a bona fide employee at any point in time. The court further
found that criminalizing any applicant deception over salting
intentions could only be a strong-arm means of discouraging
salting, which would be further at odds with the Supreme
Court’s decision in Town and Country. The fact that Starnes
lied about his being laid off by his previous employer would not
be grounds for dismissal as it was done solely to hide his salting
intentions and the NLRA would preempt the Indiana statute that
prohibits individuals from making false or misleading
statements as part of an employment application.
The Seventh Circuit did concur with the earlier NLRB ruling
that the discharge of Starnes based on his driving record was
legitimate as the action was done pursuant to a company policy
that had been uniformly applied to all employees without
animus toward an employee’s participation with or attitudes
toward unions. Hartman Bros. was, however, required to pay
Starnes backpay, for the 4 h that had elapsed between his arrival
at work and being sent home upon receipt of the insurance
report. The court further ruled that the unfair labor practice
committed by Hartman Bros. was not the discharge of Starnes
but rather, sending him home and depriving him of the
opportunity to begin organizing prior to the arrival of the
insurance report.
Implications
Hartman Bros. dealt employers another post-Town and
Country blow in finding that paid union organizers can lie on
their job applications about their affiliation with unions as salts
but cannot misrepresent facts about their credentials, skills or
qualifications for employment. Lying about salt status is not
material to a hiring decision because, under Town and
Country, an employer cannot reject a job applicant solely on the

40. basis of being a salt, union employee or union supporter. Any
applicable state statutes which might make it illegal for
applicants to lie or make misrepresentations on their
employment applications are preempted by the National Labor
Relations Act when any such lies or misrepresentations pertain
to any union affiliation or activity.
The Hartman Bros. decision represented another victory for
unions that further put employers on the defensive.
Under Hartman Bros., unions have less difficulty placing paid
organizers in the employ of companies they are attempting to
organize. To prevent unfair labor practice charges from being
levied, employers need to be sure that any criteria used for
screening and selection of employees is objective, valid,
essential for job performance and not based, in any way, on an
applicant’s actual or perceived salt status. Although no cases
have been heard relative to “perceived” salt status, the Seventh
Circuit’s ruling in Hartman Bros. makes it likely that those
applicants perceived to be salts would enjoy the same pr otection
as actual salts. One weapon employers might have to counter
salting in light of Hartman Bros. would be the implementation
of a policy that prohibits any employee from simultaneously
holding any full or part-time employment with another
employer, particularly one within the same industry. Any such
policy may or may not be upheld in a given jurisdiction based
on local laws and general attitudes toward labor but its chances
of success are more likely if enforced in a uniform manner
toward all employees.
Employers Fight Back—Use of Preferential Hiring Criteria
The Seventh Circuit provided unions with a significant victory
in Hartman Bros which affirmed their rights to use aggressive
salting tactics as a means of organizing a workplace. As unions
have gained the upper hand in their “chess match” with
employers, employers have not been passive in fighting
aggressive union organizing efforts. A post-Hartman Seventh
Circuit ruling, Operating Engineers Local 150 v. NLRB (325

41. F.3d 818, 7th Cir, 2003), provided employers with a significant
victory in their efforts to fight union salting tactics.
Local 150 involved Brandt Construction Company, an Illinois
highway contractor, which provides municipal road
construction, bridge building, concrete and asphalt paving,
sewer and water utility work and demolition work. Brandt had
utilized a long-term preferential hiring policy whereby
employment applications submitted by current or former
employees and those filed by individuals referred by current
employees received preferential consideration over applications
received from non-referred walk-in applicants. Brandt also gave
preferential consideration to applicants referred by equal
employment opportunity service providers under a prior
conciliation agreement entered into with the US Department of
Labor which required Brandt to increase the numbers of women
and minorities employed on each job pursuant to federal, state
and local equal employment opportunity regulations. Brandt
allowed any of these applicants who receive preferential
treatment to apply for employment at any time without an
appointment while walk-in applications were only accepted on
Mondays and only when the company was hiring.
These hiring practices and policies were formalized and posted
at the time Brandt entered into its agreement with the
Department of Labor. The posting noted that applications would
only be “considered current for a period of two weeks.… After
fourteen days the employment application expires and any
individual interested in employment must complete a new
application, if they are being accepted. We do not accept
applications when we are not hiring.” The posting further
specified that Brandt showed preference for applicants in the
following descending order; (1) current employees of the
company; (2) past employees with proven safety, attendance and
work records; (3) applicants recommended by supervisors; (4)
applicants recommended by current non-supervisory employees;
(5) unknown (walk-in) applicants.

42. Shortly after the conciliation agreement and Brandt’s award of a
large job, Local 150 sent some of its members to Brandt to
apply for employment. The union members had been told by
Local 150 to apply wearing union hats or other insignia and
further instructed to indicate on their applications that they
were salts and had been sent by the union for the express
purpose of organizing Brandt. At the same time, Brandt
received 32 referral applications as well as 20 additional non-
union walk-in applications. Brandt hired a total of eight
applicants, all of whom had been referred. For the remainder of
that year, Brandt hired 29 additional applicants, 28 of whom
were referrals, from a pool of 67 referrals. Consistent with
posted policy, all new hires were offered employment within 14
days of their application.
In response to the hiring, Local 150 filed an unfair labor
practice charge against Brandt with the National Labor
Relations Board. The union alleged that Brandt had “changed,
limited and made more onerous its hiring practices and
procedures with the purpose of making it more difficult for
applicants with pro-union sentiments to apply or obtain
employment,” in direct violation of Section 8(a)(1) of the
National Labor Relations Act. Several months later Local 150
filed an additional unfair labor charge against Brandt, alleging
that the company refused to hire union members despite the fact
that all of new hires at Brandt at that point had been former
employees, referrals from current employees or supervisors or
referrals from equal employment opportunity service providers
and the company had also not accepted any walk-in
applications. Local 150 later filed a third unfair labor charge
which alleged that Brandt “has in effect and continues to
maintain and apply a hiring practice of giving preference in
hiring to referred applicants regardless of their skill level over
walk-in or unknown applicants” and that “such policy is
designed to discriminate, interfere and prevent union-affiliated

43. applicants from being considered for employment ... and is
designed to deter the effects of union organization in violation
of the Act.”
The court found that while Brandt’s policy clearly made it more
difficult for union applicants and salts to gain employment, it
did not violate the NLRA as the manner in which all applicants
had been hired, by referral, excluded all walk-in applicants,
regardless of whether or not these individuals were affiliated
with a union. In issuing this decision in favor of the employer
the court relied on two earlier NLRB rulings. The first
was Zurn/N.E.P.C.O. (329 N.L.R.B. 484, 1999), which held that
a hiring policy which gives preference to current and former
employees, as well as referrals by management, did not
discriminate on the basis of union activities because “the policy
does not on its face preclude or limit the possibilities for
consideration of applicants with union preferences or
backgrounds.” The second, Custom Topsoil, Inc. (328 N.L.R.B.
446, 1999), held that an employer did not discriminate on the
basis of union membership when it differentiated between
“stranger” and “familiar” applicants as this differentiation did
not involve a per se distinction between union and nonunion
applicants.
In issuing its ruling favoring Brandt, the court relied on the fact
that Brandt applied its preferential hiring policy in a
nondiscriminatory manner with applications submitted by all
walk-ins rejected under a long-standing and consistently applied
policy, absent of any direct anti-union animus. The court also
noted and commended Brandt for improving its employment of
women and minority applicants pursuant to its conciliation
agreement with the Department of Labor. The court found that
the critical factor that prevented Local 150 members from being
hired was the fact that they freely chose to apply as walk-ins,
traditionally the applicants of last choice for Brandt under its
publicized policy. Brandt gave union applicants exactly the

44. same consideration as all other walk-in or unknown applicants
and union members were in no way prevented from obtaining a
referral from a preferential applicant source if they so chose.
The NLRB ruling in Local 150 has found support in subsequent
cases. The Board also ruled in favor of another employer who
used preferential hiring criteria in Ken Maddox Heating and Air
Conditioning, Inc. (340 N.L.R.B. No. 7, 2003). Maddox, an
Indiana HVAC contractor, gave preference in hiring to
applicants it had previously employed as well as to applicants
referred by current employees and business associates, similar
to Brandt. This long-standing policy was challenged when only
one of 37 qualified overt union applicants was hired while 55
nonunion applicants were hired to fill 56 vacancies. The NLRB
noted that because Maddox’s policy had been in place for some
time, this fact invalidated the allegation that the policy was
specifically implemented to counter a salting campaign. The
Board further found that the policy “was not inherently
destructive of employee rights” or “sufficient, by itself, to
establish animus.” Citing Brandt as precedent the NLRB found
that the general use of referral policies is a legitimate and
justifiable employment practice. In Maddox the referral practice
did not create a closed hiring system, which effectively
screened out union applicants, nor was it applied in any kind of
inconsistent or disparate manner.
Employers Find Additional Support for Their Use of Restricted
Hiring Criteria
The victory for employers in Local 150 was only the beginning
as other employers have succeeded in their attempts to fight
union organization and salting through the use of restricted,
rather than preferential, hiring criteria. Kanawha Stone
Company, Inc. (334 N.L.R.B. No. 28, 2001) involved an
employer whose hiring policy consisted of an assessment of
specific hiring needs on a particular job, based on applications
filled out on the employee’s first day of work. The company did

45. not maintain any applicant pool or hiring lists unless some kind
of mass hiring was being conducted. All hiring was handled by
superintendents at individual job sites rather than at the main
office. Kanawha’s hiring criteria restricted hiring to three
groups of individuals; (1) employees on temporary lay off, (2)
former employees and (3) referrals from existing employees.
Applicants not falling into one of these categories were not
considered for employment. This long-standing policy had been
in effect since the company’s inception. After a group of union
members applied for employment at the main office, rather than
at an individual job site, and who did not fit the above criteria
were not hired, the union filed charges with the National Labor
Relations Board.
Refusal to hire cases are considered under a burden-shifting
scheme established by the Third Circuit in NLRB v. FES (A
Division of Thermo Power; 301 F.3d 83, 3rd Cir., 2002). This
case established the following criteria by which refusal -to-hire
cases are analyzed:
To establish a discriminatory refusal to hire, the General
Counsel must … first show: (1) that the respondent was hiring,
or had concrete plans to hire, at the time of the alleged unlawful
conduct; (2) that the applicants had experience or training
relevant to the announced or generally known requirement of
the position for hire, or in the alternative, that the employer has
not adhered uniformly to such requirement, or that the
requirements were themselves pretextual or were applied as a
pretext for discrimination; and (3) that anti-union animus
contributed to the decision not to hire the applicants. Once this
is established, the burden will shirt to the respondent to show
that it would not have hired the applicants even in the absence
of their union activity or affiliation.
When the NLRB applied this criterion to Kanawha, it found that
while union applicants were excluded from consideration for
employment and some anti-union animus appeared to be
present, Kanawha met its burden of proof by showing that it

46. lawfully failed to consider the union applicants because they
simply failed to meet any of its legitimate hiring criteria.
While Kanawha dealt with a flat-out refusal to hire, an
employer in another case found a more specific means of
excluding union members from consideration for employment.
This criteria, refusal to hire based on wage incompatibility, was
challenged in the NLRB ruling Kelley Construction of Indiana,
Inc (333 N.L.R.B. No. 148, 2001). Kelley utilized the hiring
criterion that new employees be accustomed to earning wages in
line with those paid by Kelley. This policy ideally would allow
Kelley to retain employees for as long as possible and minimize
disruptions and costs incurred through excessive turnover.
When Kelley refused to hire 27 union applicants based on this
criterion, the union filed charges with the NLRB. The NLRB
had previously established a precedent for wage disparity as a
legitimate means of selecting applicants in the absence of
evidence of disparate application to union members
in Wireways, Inc (309 N.L.R.B. 245 1992). In Kelley, the Board
applied the FES burden-shifting criterion in concluding that
Kelley’s hiring decisions were made without regard to the
prospective salts’ union affiliation because the salts did not
satisfy the neutral and legitimate hiring criteria of wage
compatibility.
Subsequent to Kelley, however, the NLRB was presented with
another salting case involving wage incompatibility criteria in
which it ruled that wage disparity was not a legitimate
justification for denial of employment. In Contractors Labor
Pool (CLP; 335 N.L.R.B. No. 25, 2001) the employer enforced a
“30% rule,” which involved rejection of any applicant whose
most recent wages differed by more than 30% from CLP’s
starting wages. When challenged by a union, CLP’s 30% rule
had been newly established and based on a study of worker
retention which calculated the “break point” at which employees
would be less likely to remain in the employ of CLP.

47. The NLRB found that while CLP had shown a legitimate
business reason for adopting the policy that appeared not to be
motivated by anti-union animus, the policy was “inherently
destructive” of employees’ NLRA rights to organize as the net
effect of the policy was to “disqualify automatically virtually
all applicants who had recently earned union contract wages”
which “directly penalizes those who have exercised their
protected right to work in an organized workforce and imposes a
formidable threshold barrier to protected organizational activity
in the unorganized workforces of CLP and its contractor
clients.” The Board considered this outcome analogous to the
theory of disparate impact applied to anti-discrimination cases
heard under Title VII of the Civil Rights Act of 1964. In
disparate impact cases, all individuals are treated the same but
the treatment results in different outcomes or consequences for
different groups.
While the NLRB acknowledged that the 30% policy impacted
both union and non-union applicants, this fact did not mitigate
the “obvious and profound discriminatory effect” it had on
those who rights were “expressly protected under the NLRA.”
This was based on the finding that the policy, regardless of its
intent, excluded virtually all applicants with union history while
only excluding some applicants with nonunion wage history.
The outcome was that the only way to gain employment with
CLP was through prior employment with another nonunion
employer.
Despite the fact that the NLRB accepted the employer’s
legitimate business interest in employee retention as the basis
for its wage compatibility policy, it held that a balancing act
was necessary between the legitimate rights of CLP’s
business interests and those of employees under the NLRA.
Because the 30% rule was “not essential to the successful
operation of CLP’s business,” the “destructive direct, broad,

48. severe and enduring impact of this rule on employee rights” had
to receive priority in the balancing act.
The Board did note that it was not making a blanket ruling
in CLP on the legitimacy of any other wage compatibility rules
“that may have a lesser exclusionary effect or that may be more
narrowly drawn and essential to an employer’s business
operation.” While Kelley provided affirmation for employer
wage disparity policies, CLP refined that ruling by articulating
the need for wage disparity cases to be examined on a case-by-
case basis relative to balancing employer needs with employee
rights. The end result is that while employers may be able to
justify wage disparity employment screening policies, they
clearly need to be able to show that such policies have a non-
disparate impact on union members and/or prospective salts.
The Latest Chapter—Genuine Interest in Employment
As the courts and NLRB have ruled on wage disparity policies
and clarified the criteria under which they should be considered,
another issue has arisen regarding salting and employer
responses to salting activities. This issue concerns whether
prospective salts need to show a genuine interest in actually
working for the employer to which they’ve applied in order to
received protection of their salting activities under the NLRA.
In Phelps Dodge Corp. v. NLRB (313 U.S. 177, 1941), one of
the first Supreme Court cases under the NLRA, it was held that
the statute made it an unfair labor practice by an employer to
discriminate against applicants for employment in addition to
actual employees. As noted, the Supreme Court ruled in Town
and Country Electric that job applicants who are also salts are
considered “employees” under the NLRA and entitled to
protection afforded by the statute, particularly section 8(a)(3)
which prohibits an employer from “discrimination in regard to
hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any

49. labor organization.” In other words, job applicants are de facto
“employees” under the NLRA. Such protection has served as the
foundation for salting activities by union organizers but a new
NLRB ruling, Toering Electric Company (Toering Electric
Company and Foster Electric, Inc., and Local Union No. 275,
International Brotherhood of Electrical Workers, 351 NLRB No.
18, 2007), answered the question of whether an applicant
needed to be genuinely interested in employment to qualify for
protection under the NLRA.
In 1987 the President of the International Brotherhood of
Electrical Workers (IBEW) announced an aggressive campaign
to begin targeted nonunion employers for unionization via
salting. Indeed in a videotaped speech produced and distributed
at that time he encouraged local unions to unite with him in
“driving the non-union element out of business.” In tandem with
this, the IBEW issued a Construction Organizing Membership
Education Training (COMET) manual, which provided guidance
for local unions on how to conduct effective salting campaigns.
The COMET manual emphasized organizing strategies that
would cause employers to scale back their businesses, be forced
to leave the union’s jurisdiction entirely or even completely go
out of business. The driving force behind such economic
outcomes would be the filing of unfair labor practices charges
against employers at every opportunity. Such charges would
impose immediate and usually substantial costs on employers as
they attempted to defend themselves as well as disrupt the
employer’s workforce and operations via a series of continuous
and ongoing unfair labor practice allegations.
In 1994 Toering Electric became a target of Local 275 of the
IBEW’s salting campaign. IBEW filed charges alleging that
Toering refused to hire or even consider any union-affiliated
individuals who applied for employment, in violation of section
8(a)(3) of the NLRA. In 1995 Toering agreed to settle the
allegations by offering employment to six members of Local

50. 275 but all six failed to show up for work. Prior to the
settlement, Local 275 boasted in its newsletter that it succeeded
in inflicting “a big hurt” on Toering’s business.
In 1996 Local 275 again targeted Toering via a salting
campaign. The head of Local 275 submitted 18 resumes to
Toering. Of these resumes, five contained no work history
dates, five were “stale,” meaning that they were not current,
outdated by as much as 6 years, and one was from one of the six
individuals who had failed to show up for work when hired the
previous year under the settlement agreement. Because the
resumes were mostly stale or incomplete, Toering declined to
hire any of the individuals whose resumes were submitted by
Local 275. This action prompted another set of unfair labor
practices charges to be filed by Local 275 against Toering.
Toering Electric argued that the applicant salts should not be
entitled to protection under the NLRA as they had no intention
of ever working for Toering, as evidence by the fact that none
of the applicants to whom employment offers had been made the
previous year ever showed up for work. Instead, Toering argued
that the only purpose of the charges was to induce economic
harm on Toering and such behavior should not be protected
under the NLRA.
In considering the merit of Local 275’s allegations, the NLRB
considered that under Phelps Dodge, protection against
discrimination is not limited to individuals who are actually
employed by the employer and extends to job applicants as well.
This interpretation was further reinforced by the Supreme Court
in Town and Country Electric in 1995 in which the Court
considered whether salts could receive any protection under the
NLRA. In this latter case, the Court stated that the term
“employee” did not necessarily exclude paid union organizers
but stopped short of saying that paid union organizers enjoyed
blanket protection under the NLRA. The NLRB was asked to
determine in Toering whether in order for a job applicant to

51. receive protection under the NLRA that such applicant have a
genuine interest in employment with the employer to whom he
had applied.
The NLRB found that Phelps Dodge was distinguishable
from Toering as the applicants in Phelps Dodge were clearly
interested in employment with the employer. The NLRB held
in Toering that in order for a job applicant to receive protection
under the NLRA the applicant had to be “genuinely interested in
seeking to establish an employment relationship with the
employer.” The NLRB found that the salt applicants at Toering
had incurred no harm as the employment they were being denied
was not something they actually sought and that the filing party,
the union, had to prove an individual’s genuine interest in
actually seeking to establish an employment relationship with
the employer as a prerequisite for filing a charge. The Board
found that it had an obligation to “allay reasonable concerns
that the Board’s processes can be too easily used for the private,
partisan purpose of inflicting substantial economic injury on
targeted nonunion employers rather than for the public,
statutory purpose of preventing unfair labor practices that
disrupt the flow of commerce.” In considering the request for
backpay for the rejected applicants, the Board found that
Section 10(c) of the Act did not provide for any kind of punitive
damages and was limited to effecting “a restoration of the
situation, as nearly as possible, to that which would have
obtained but for the illegal discrimination.” Hence, there was no
basis for any action or award to the salt applicants, even if
Toering had been found to have committed an unfair labor
practice in violation of the NLRA. The board found that
“submitting an application with no intention of seeking work
but rather to generate meritless unfair labor practice charges is
not protected activity” under the NLRA.
Perhaps what is most significant about Toering is the fact that
the Board realized that the automatic presumption of an
applicant’s genuine interest in employment with an employer is

52. a flawed assumption. Because it had not been previously
necessary to prove this as the basis for filing a charge, unions
could easily inflict “big hurts” on employers by engaging in
such tactics used by Local 275. Employers would indeed incur
significant costs and disruption of operations. More so, the
resources of the NLRB ended up being diverted to cases and
protracted litigation where there was no actual loss of the
opportunity to work as applicants never intended to work for the
employer in the first place. Hence, in Toering, the Board shifted
the burden of the employer needing to prove that the applicant
was indeed interested in employment back to the union and
applicant in requiring that this evidence of “genuine interest” be
submitted in justifying the unfair labor practice allegation.
Hence, the Board felt the need to “abandon the implicit
presumption that anyone who applied for a job is protected”
under the NLRA. Most important for employers is that the
employer’s motivation for engaging in the behavior that
constitute the alleged discrimination act does not become
relevant until the burden of proof has been satisfied that the
applicant does indeed have a genuine interest in employment.
Implications
The Supreme Court decision in Town and Country
Electric represented the beginning of a new era in labor
relations in the US (Mello 2004). At the time of the decision,
unions were suffering from declining memberships and finding
little success as they attempted to employ more creative and
aggressive organizing strategies. In its Town and
Country decision, the Supreme Court validated the right of
labor organizers to salt the workplace, handing organized labor
a significant victory. As salting has become a more prevalent
union organizing strategy, employers have attempted to counter
salting by attempting to force salts to disclose their union
affiliations if the salts have not blatantly done so and are
attempting to organize in a more discreet manner. The Seventh
Circuit handed unions and labor organizers an additional major

53. victory in Hartman Bros., which will bolster union efforts to
continue to test the extent of their NLRA support in the courts.
These pro-labor rulings have enticed employers to devise new
strategies to prevent their workplaces from becoming unionized.
Chief among these have been the use of preferential and
restricted hiring criteria. Employers do not appear to be in
violation of the NLRA when they employ preferential hiring
policies as evidence in Local 150, where the Seventh Circuit
affirmed an employer’s right to do so, as long as the policies
were consistently applied to both union and nonunion
applicants. Restricted hiring criteria cases, heard under the FES
burden-shifting scheme, are a bit ambiguous. Initially affirmed
by the NLRB relative to the right of an employer to exclude
non-refereed applicants from hiring consideration, those cases
involving wage disparity are less clear-cut as the Board has
stressed the need to consider them based on their individual
facts and circumstances.
Even though employers have enjoyed some success with the use
of restricted hiring criteria, such policies should be
implemented with caution. While both the courts and NLRB
have found that referral-only policies do not directly violate the
National Labor Relations Act, such policies may violate anti -
discrimination in employment provisions of the Civil Rights Act
of 1964. To the extent that an employer has a homogeneous
workforce, referrals may logically come from the same
population, which could expose an employer to a possible
discrimination charge if non-hired salts were not part of this
population. Under the theory of disparate impact, all
employees/applicants are treated equally but the treatme nt
results in different outcomes for different classes of individuals.
This may be particularly true when an employer has a racially
homogeneous workforce. In such case, a union might simply
target employers whose workforces are entirely Caucasian by
using an African–American, Hispanic–American or Asian–

54. American salt. While the consequences of using such a strategy
have not yet been tested in the courts, the civil rights of
individual salts might easily trump employer rights and
responsibilities under the NLRA and ultimately impede an
employer’s ability to use restricted hiring criteria and remain
salt and union-free in the long run.
In Toering, the NLRB addressed the fact that union organizing
campaigns in which prospective salts applied for employment
had turned, in many instances, from those in which there was a
genuine interest in organizing the employer’s workforce, which
is protected activity under the NLRA, to adversarial processes
which were designed intentionally to inflict substantial harm on
employers. The shifting of the burden of proof from employer to
applicant under Toering greatly alters the landscape under
which salting activities can and will be conducted in the future.
Union organizers, on the other hand, will now be forced to
consider salting as originally intended; a means of organizing
the employer’s workforce from the inside, an activity that is
clearly within the protection of the National Labor Relations
Act, rather than one that is used to coerce employers into
responses that form the basis for unfair labor practices
allegations. Ironically this “pro-employer” decision could
greatly benefit unions. By realizing the limitations of the
protection afforded to salting efforts to “gain entry” into an
employer’s workforce can allow unions to fine-tune their
campaign organizing strategies.
It is also probably safe to say that the issues confronted by the
NLRA in Toering have not been put to rest. The case was
decided by a slim 3–2 margin and in a lengthy and scathing
dissent the minority points out several problems with the
majority’s decision. First is the fact that Congress has expressly
chosen not to amend the NLRA relative to the issue of genuine
interest or intent of job applicants through a number of anti -
salting bills which have been introduced since Town and

55. Country. Second, and perhaps more notable, is concern over the
difficulty of assessing “genuine interest,” given the multitude of
factors which enter into a job applicant’s decision whether to
accept or not to accept employment. Of course, the importance
of such factors can vary from one applicant to another so
certainly the issues addressed in Toering have not been fully
resolved and give unions the opportunity to test the ambiguities
inherent in the decision. While Toering constitutes a victory of
sorts for employers there is no question that unions, many of
whom are fighting for their livelihood, will be further resolved
in their organizing efforts as a result of the decision. More so,
the slim majority in this case could easily be overturned in the
future by political appointees to the NLRB from another
political party or even by those from the same party with
different ideologies.
Organized labor in the US continues to find itself at a critical
juncture. As jobs traditionally performed manually by union
members have become automated, filled by
undocumented/illegal workers, and/or moved overseas, unions
have to be aggressive and creative in maintaining and expanding
their membership bases if they are to survive. This will need to
happen at the same time that many employers take actions to cut
costs by eliminating positions held by union members and/or
reducing benefit levels of unionized employees. The stakes are
high for both sides with the parties continuing to see collective
bargaining as a zero-sum game. Recent court decisions have
provided both employers and unions added incentive to continue
their adversarial behavior. As both sides test the limits of the
NLRA, the courts and the NLRB will ultimately determine who
wins not only individual battles but the ongoing war as
ambiguous sections of the National Labor Relations Act are
challenged interpreted. Ladies and gentlemen, the chess match
is far from over.
Source: Employee Responsibilities and Rights Journal, 21, (1),
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United States. Perspectives on Work, 11(2), 6–9.
Logan, J. (2006). The union avoidance industry in the United
States. British Journal of Industrial Relations, 44(4), 651–676.
Maher, K. (2005). Unions’ new foe: Consultants. The Wall
Street Journal, August 15, 2005, p. Bl.
Mello, J. A. (1998). Redefining the rights of union organizers
and responsibilities of employers in union organizing
drives. Society for the Advancement of Management Advanced
Management Journal, 63(2), 4–9.
Mello, J. A. (2004). Salts, lies and videotape: Union organizing
efforts, management responses and their consequences. Labor
Law Journal, 55(1), 42–52.
Raudabaugh, J. (2008). National Labor Relations Board 2007
year in review: Fueling unions’ demand for Euro-centric labor
lab reform. Labor Law Journal, 59(1), 16–25.
READING 12.2: Social Media, Employee Privacy and
Concerted Activity: Brave New World or Big Brother?
Jeffrey A. MelloIntroduction

57. Advances in technology which allow tremendous portability and
affordability of personal computers, personal digital assistants
and tablet devices combined with the proliferation of social
media networking sites have changed the way in which we
communicate, both privately and publically. Individuals are now
afforded the means to communicate with friends, co-workers
and even strangers via networks that until very recently were
not available. While e-mail has existed for several decades, new
social media, particularly Facebook and Twitter, have not only
greatly altered how both individuals and organizations
communicate, but also changed the ways in which business is
conducted as well as how people interact with each other in
many of their personal and professional dealings.
As of December 2011, Facebook had more than 800 million
active users, half of whom log on to the site on a daily basis and
half of whom access Facebook through their mobile
devices.1 Roughly 200 million of these members are in the
United States, representing two-third of the
population.2 Facebook is currently available in more than 70
languages around the world3 and is estimated to reach 30
percent of global internet users.4 Twitter has approximately 300
million users,5 although participation in both sites continues to
expand in both numbers of members and volume of
communications.
The use of social networking is not limited to personal
communications. 46 percent of information technology
professionals believe that online social networking is an
important business tool and 31 percent of that number
considered it to be essential to contemporary business. More
than 25 percent of organizations with 500 or more employees
have developed some sort of social networking presences as a
business tool.6 A recent poll conducted of human resource
professionals by the Society for Human Resource Management
found that 68 percent of organizations were using social media
for external communications, recruiting and marketing to

58. engage customers, potential customers and potential
employees.7 Employers see tremendous benefit from social
networking which include facilitating collaboration among
employees, improved efficiencies in operations, facilitation of
orientation and learning, internal brand building, employee and
organizational development and faster development of new
products and services.8 However, 85 percent of IT professionals
acknowledge that they are aware of employees visiting social
networking sites for personal usage while at work.9 The use of
online social media has contributed to the further blurring of the
separation between employees’ work and personal lives.
Traditional Employer Monitoring—E-mail and Internet Usage
A significant number of employers monitor the communications
and online activities of their employees in the workplace.10 In
fact, 43 percent of employers were actively monitoring their
employees’ internet use in 2007, the most recent year in which a
reliable widespread survey was administered.11 Most large
employers have electronic communications policies that alert
employees that the employer reserves the right to conduct such
monitoring. E-mail activity is also widely monitored.12 Most of
this monitoring is accomplished not manually but electronically
via software programs which can track time, content, size,
attachments and recipients.13 This tracking can also be used on
personal e-mail accounts (such as those from AOL, yahoo and
Google) which are accessed from the employer’s network.14 96
percent of employers who monitor their employee e-mails track
incoming as well as outgoing messages.15 It is, however, more
difficult for employers to monitor text and e-mail messages sent
from employees’ personal personally-owned communication
devices than from those provided by the employer.
There are many reasons why employers engage in monitoring
the electronic communications of their employees. The first is
to protect the employer from a variety of legal liabilities which
could come about as the result of the content of such
communications. Reporting requirements imposed under the

59. Sarbanes-Oxley require the retention and storage of all e-mails
related to financial transactions.16 In the event of any kind of
employee misconduct, the employer can be held liable if the
employer knew of the conduct and did nothing about it as well
as if the employer was unaware of the conduct but was
presumed that the employer “should have known” about the
conduct.17 Such an obligation on the part of employers requires
a heightened level of sensitivity toward the activities of
individual employees which might necessitate the monitoring of
communications taking place at work, on employer-owned
equipment and networks and within the context of an
employee’s job. Additional liability can be incurred through the
sending and transmission of sexually explicit or provocative e -
mails, with or without graphic images, and display of materials
on pornographic websites which can serve as a basis for a
sexual harassment lawsuit.18
Second, employers also might engage in employee monitoring
to determine the extent to which employees are actually doing
their jobs during work hours and not engaging in distracting
personal business. In addition to paying employees for work
which is not being performed during regular working house,
excessive personal use of employer networks and servers can
result in lost productivity and efficiency for a work unit, data
storage problems and/or slower network operations.19
A third reason for employer monitoring rests with the fact that
electronic media can be a means for disgruntled employees to
transmit confidential files or provide access to secure parts of
the employer’s website or intranet.20 Employers need to ensure
that confidential documents, files, information and/or trade
secrets are not disseminated to those outside of the organization
who have no legitimate business interests in accessing such
information.21 The challenge here is that electronic
transmission of proprietary information is quick and relatively
easy but can also be “undone” if detected in a timely manner,
justifying the need for vigilant monitoring.

60. How widespread are these alleged transgression activities? A
recent American Management Association survey found that 14
percent of employees admitted to e-mailing confidential or
proprietary information about their employer its people,
products and services to outside parties; 14 percent admitted to
sending third parties potentially embarrassing and confidential
company e-mail that is intended strictly for internal readers; 89
percent of employees admitted to using the office system to
send jokes, gossip, rumors or disparaging remarks to outsiders;
and 9 percent admitted using company e-mail to transmit sexual,
romantic or pornographic text or images.22
Despite the justifications for employer monitoring, there can be
a significant downside to this activity. Employees can often
view electronic monitoring by employers as an invasion of their
privacy which serves to erode any trust relationship which
exists between employees and employers. Eroded trust can have
detrimental effects on employee morale, commitment,
performance, retention and self-esteem.23 Employees, however,
can and do circumvent employer monitoring though the usage of
personal e-mail accounts, rather than those of the employer,
and/or use a variety of personal communications devices, such
as their own laptop computers, cell phone, Blackberrys, i -
Phones or other portable digital assistant devices to
communicate during work hours for personal communications,
web browsing, shopping, checking sports scores, pleasure
reading or any other kind of personal activity. A typical
supervisor may not have the time to monitor each subordinate to
determine whether the device being used is owned by the
employer or the employee. In addition, the portability of such
devices can make them difficult to conceal and their similarity
to the typical hardware provided makes personal usage difficult
to determine.
28 percent of employers who monitor employee e-mail admit to
having terminated one or more employees due to what was
discovered as a result of monitoring.24 In two–thirds of these

61. cases the terminations were the result of inappropriate or
offensive language, content or both. In other cases the dismissal
was attributable to excessive personal use of the internet during
working hours.25Legality and Privacy
Generally speaking, employer monitoring of employee
communications is not only legal but also practical, given the
nature and reach of electronic communications. E-mail
monitoring has not been found to be unlawful, regardless of
whether or not employees had been informed of company
policy,26 mainly because the employer usually owns the
hardware that is being used for communications as well the
network access on which the e-mail has been sent and received.
Employer internet monitoring is generally protected because
employees cannot expect any reasonable expectation of privacy
relative to websites they visit while they are at work and being
paid by the employer for their services.27 In short, there is no
statutory right to privacy afforded to employees regarding their
employment-related electronic communications.
To date, courts have consistently held that employees do not
have any reasonable expectation of privacy regarding online
communication, including internet usage and work e-mail
systems.28 The early precedent-setting case regarding e-mail
monitoring, Smyth v. Pillsbury,29 was heard in 1996. The court
found that employees have no reasonable expectation of privacy
because e-mail communications are voluntary and employer’s
interests in maintaining professionalism and preventing
harassment in the workplace take precedent over any privacy
expectations of employees. This reasoning was extended in
another case, McLaren v. Microsoft,30 where Michael McLaren,
a Microsoft employee, had labeled some folders as “personal”
on his computer and created private passwords by which he
accessed them. The court found that the employer’s ownership
of the computer and the network preempted any presumption or
expectation of privacy on the part of the employee. The court
further held that any alleged privacy claims were rendered moot

62. when an e-mail was transmitted to another person, hence
becoming public.31The Next Wave of Monitoring—Social
Networking Sites and Search Engines
Social networking, as noted above, is the latest significant trend
in personal communications. However, a significant number of
businesses have embraced social networking sites as a critical
means of communication, public relations, promotion and
marketing and branding. Social media is also being used to
communicate with employees as well as with prospective
employees about job opportunities and the employment
relationship in general.
The combination of employer business use of social networking
combined with its popularity among individuals who use it for
personal reasons creates two strong simultaneous forces driving
the proliferation of social networking. Use of social networking
sites by employees is easy and inexpensive. Similarly,
monitoring of employees’ social network activities by
employers is easy and inexpensive. No special technology or
customized software program is needed for such monitoring. To
conduct any kind of monitoring activity, an employer would
only need to create a free account, even under a disguised
identity, on a social networking site to gain access to the
activities of any or all of its employees. Unless users of a social
networking site restrict their personal account to “friends only,”
the accounts they create and their content are publically
available. Some employees are aware of the possibility of
employer monitoring as 29 percent of employees report having
become both more private and conservative in their social
networking endeavors for fear of employer discovery and
retribution.32 This is an especially risky issue for employees as
an employer can shield their identity by using a pseudonym
allowing them to learn about employee’s off-work, personal life
in a manner that the employee may not know who has actually
gained access to the information the employee has posted.

63. Monitoring through the use of search engines is as equally
quick, easy and inexpensive. Google or Yahoo searches, for
example, can turn up information about employees which they
employee may not have personally chosen to make public and/or
information which was posted by others. Much of this
information can be potentially embarrassing, such as
information about legal proceedings.33 However, it is probably
much easier for an employer to find discomforting information
about an employee on a social networking site as the purpose of
such sites is to share information which is personal and si tes
such as Facebook seem to encourage individual self-expression.
Employers face an ethical question relative to whether, as part
of due diligence in the hiring process, they should scour online
networks and sources to discover information about prospective
hires. A 2011 survey of HR executives conducted by the Society
for Human Resource Management found that 26 percent of
organizations were using search engines and 18 percent were
using social networking sites to screen, rather than
recruit,34 applicants for employment. Of this group, 15 percent
were using information gathered via search engines to
disqualify candidates and 30 percent had used information
found on social networking sites to disqualify an
applicant.35 However, a more general survey found that 95
percent of employers admitted to using social media sites to
discover additional information about job applicants.36 A third
survey found that 45 percent of employers research social media
sites as part of the routine screening of job applicants.37
While the survey results vary, it is very clear that employers are
utilizing search engines and social media to discover
information about job applicants and, in some cases, use this
information to screen out applicants. Arguments in favor of
utilizing such practices would include the desire to ensure that
the applicant provides the best “fit” with the company,
particularly in light of how expensive recruiting activities can
be. Many employers condone, if not encourage, hiring managers

64. and human resources personnel to conduct such due diligence,
feeling that the practice is certainly not unlawful and, given
potential costs and risks associated with hiring the wrong
candidate, an ethical if not necessary practice. Privacy
advocates would argue that visiting the Facebook profile of a
job applicant as part of the employer’s screening of potential
employees is both unnecessary and an invasion of privacy.
Once a job applicant becomes an employee, the appropriateness
of such searches becomes even more ambiguous. While the
same information obtained via social networking and search
engine monitoring may be available post–hire as well as pre-
hire, one could question the motivation of an employer’s
searches into existing employees’ private personal lives outside
of work. Once the practice became public within the workplace,
such post-hire searches might greatly affect employee morale
and trust38 as in most cases an employer might monitor an
employee’s social networking activities and posts as a means of
collective evidence to use against an employee for disciplinary
purposes rather than simply wanting to get to know the
employee better.
A number of recent situations have illustrated the consequences
for employees of employer monitoring of employee activity
online. After thirteen members of the Virgin Atlantic Airlines
cabin crew expressed their impressions of employer, its planes
and passengers as part of a Facebook group Virgin terminated
them.39 The airline could not find any “justification for using
[Facebook] as a sounding board for staff of any company to
criticize the very passengers who ultimately pay their salaries.”
When Boston-based Anglo Irish Bank employee Kevin Colvin
told his supervisor he had to miss work due to a family
emergency in New York, his supervisor checked his Facebook
page the following day and discovered that Colvin had posted
Halloween party pictures from the previous night with Colvin
dressed as a green fairy holding a wand and can of beer. Colvin

65. was fired for lying after his supervisor forwarded the photo to
everyone in the office.40
Mario County FL Sherriff’s office fired deputy Brian Quinn
after Quinn posted a picture of himself on his MySpace page in
full uniform with comments about women’s breasts, binge
drinking and nude swimming for “conduct unbecoming of an
officer.”41 Dan Leone, a Philadelphia Eagles parking lot
attendant, was terminated after six years of service when he
posted derogatory comments on his Facebook page which
criticized the Eagles for their failure to resign a player.42 In yet
another case, a server at Brixx Pizza in North Carolina berated a
couple who left her a small tip on her Facebook page,
mentioning her employer (Brixx) by name, and was fired as a
result. In defending its action, Brixx claimed a violation of
company policy against disparaging customers and criticizing
the restaurant.43
These incidents illustrate the fact that issues related to work and
employment which were previously “vented” among co-workers
at the water cooler, in the cafeteria or in the rest room and now
being vented publically online for a much wider audience. A
disgruntled employee doesn’t have to wait to get back to the
office to express her or his feelings. Online networks provide an
immediate opportunity to deal with issues and express feelings.
While such public venting allows for spontaneity of expression,
posts also cannot often be retracted and may continue to exist
and be accessed long after the employee has “calmed down” or
even had a change or heart about any specific incident. More so
social network monitoring of existing employees can allow
employers to monitor activities and discover personal
information which may or may not be work-related. The ethical
issue for employers is that much of which may be discovered
online is not related to job performance and how is such
information to be used once it is discovered.
Where We Stand
As the above discussion illustrates, the American legal system

66. has not kept up with the technological advances which have
greatly altered how we communicate. The creation of new
communication media which were previously unavailable and
the availability of the means to monitor the usage and content
by which people communicate raise the issue of the
appropriateness of employer monitoring.
The only existing law which impacts communications, the
Electronic Communications Privacy Act (ECPA),44 was enacted
in the 1980s in response to the kinds of electronic
communications which were being utilized at that time. Title I
of the EPCA45 addresses electronic communications solely
from the perspective of the interception of wire and aural
messages. Despite the fact that e-mail was in its earliest stages
of development at the time the EPCA was passed and social
networking as we know it was non-existent, federal court
decisions have applied the terms and conditions of the EPCA to
e-mail. However, Title I provides for the express exemptions
from the statue communications related to the normal course of
business as well as those conducted on proprietary
communication networks and systems. Consequently, employers
have prevailed in every case in which employees have objected
to monitoring as a violation of their privacy rights.46
Hence, employees currently enjoy no specific privacy rights in
their communications and very limited protection against
employer monitoring (unless such monitoring was targeted at a
specific employee who alleges the monitoring was based on
protected class status) and the possible consequences employers
take in response to what they discover as part of any
monitoring. Courts have also not overturned firings which have
been based solely on derogatory postings on social networking
sites. Employers have generally not been liable for adverse
employment actions resulting from employee postings on social
media sites unless the employer gained access to the
information in violation of the website’s agreed terms of usage
or without consent.47 However, because social networking is
still a relatively new phenomenon in personal, mass public

67. communication, it is understandable that no specific laws have
yet been developed regarding employee and employer rights and
responsibilities.
National Labor Relations Act and Concerted Activity
Prior to the advent of social networking, the first case which
tested the extent to which electronic communication by
employees was protected under any federal law involved an
online bulletin board system. In Konop v. Hawaiian
Airlines,48 the Ninth Circuit Court of Appeals held that an
online bulletin board, established and maintained by a company
pilot, used to discuss and criticize the employer’s relationship
with the employee union was protected concerted activity under
the Railway Labor Act (RLA). Because the Konop court relied
upon National Labor Relations Act (NLRA) in reaching its
decision, which is typical in RLA cases, the Konop holding was
considered precedent for interpretation of the NLRA relative to
this issue.49
Given the advent of social networking and online employer
monitoring of employees, the question has been raised as to
whether the NLRA might provide employees some kind of
protection against employer actions taken in regard to employee
postings online. At this juncture, several complaints have been
filed with the National Labor Relations Board (NLRB).
The first complaint was filed with the NLRB in November 2010.
Danwmarie Souza, a union member/employee of the American
Medical Response of Connecticut (AMR) ambulance service,
posted negative comments about her supervisor on her Facebook
page from her home computer after a work request she
submitted had been denied. When some of her co-workers
posted supportive comments in direct response to her post,
Souza posted further negative comments and was subsequently
fired for alleged violation of the AMR’s internet policy which
prohibits employees from posting anything about AMR without
express permission. While the employer stated that Souza was

68. fired due to “multiple, serious complaints about her behavior,”
the NLRB reasoned that because Souza was communicating with
her co-workers about her supervisor, even though it was in a
public forum which could be accessed by others, she was
engaging in concerted activity rather than being disloyalty to
her employer. Concerted activity is protected under Section 7 of
the NLRA, which prohibits employers from interfering with
employees’ efforts to work together to improve the terms and
condition of their workplace and their employment. There was
no court ruling in the case as the parties settled in February
2011. As part of the settlement AMR agreed to revise its
company policies regarding employees’ rights to communicate
with each other about work-related matters.50
However, in April 2011, the NLRB did not find unlawful
another employer’s decision to fire an employee because of
inappropriate post to his Twitter account. When the Arizona
Daily Star newspaper discovered tweets from one of its
reporters which made sarcastic and derogatory comments about
copy editors the employee was told by the managing editor that
he was prohibited from airing grievances or commenting
publically about the Daily Star. Subsequent to this incident the
reporter posted additional sarcastic tweets which criticized both
the Tucson police and the reporting of a local television station.
When the reporter was terminated he filed a complaint with the
NLRB who held that the reporter’s behavior was neither
protected nor concerted activity under the NLRA because it did
not related to terms and conditions of employment nor did it
seek to involve other employers on matters related to
employment. While the associate general counsel of the NLRB
recommended that the charge be dismissed, he did note that the
employer had made statements which could be interpreted as
impeding employees’ Section 7 rights, specifically noting that
the managing editor had told the employee that he was not
allowed to tweet about anything related to work.51
In the AMR example, it is noteworthy that Souza was part of a
unionized workplace. Employers need to remain cognizant,

69. however, of the fact that nonunionized employees enjoy the
same rights under the NLRA as those who already belong to
unions, including the right to communicate with coworkers
about working conditions in a concerted manner. In May 2011,
the NLRB announced that it was suing Hispanics United of
Buffalo, a nonprofit agency which provides various social
services to low-income clients. After an employee of Hispanics
United alleged that the organization’s employees did not do
enough to assist its clients, five co-workers responded to this
statement, through Facebook-postings, by criticizing their
workloads and working conditions. Hispanics United terminated
the Facebook-posting employees on the grounds of harassment
of their co-worker who made the initial statement. The NLRB
argued that the Facebook postings constitute protected
concerted activity under Section 7 because they pertain to terms
and condition of employment. In September 2011 an NLRB
administrative law judge ruled against the employer, accepting
the MLRB argument, and ordered that the five employees be
reinstated with back pay.52
Section 7 of the NLRA provides all covered employees the right
to engage in “concerted activities for the purpose of collective
bargaining or other mutual aid or protection.” It is critical
however, that in order to receive protection that the employee’s
actions or communications not be simply on her or his own
behalf nor should the employee disparage the employer, display
blatant insubordination or distribute or publicize confidential
information to which the employee is privy.53 Section 7
protection would not be afforded in such instances.
Regardless of whether a workplace is unionized or nonunion,
any employer policy which attempts to impede employees’
abilities and rights to communicate outside of the workplace
regarding wages, hours, supervision or working conditions
would be subject to a Section 7 challenge. Such protected
concerted activity could include online discussion boards, as
noted in the Konop case, or even the case of a single employee

70. who discusses issues related to supervision. Although there has
been little commentary about how social media could be used as
a means of organizing workplaces, the NLRB interpretation
issued in AMR could easily be seen by union organizers as a
new means to communicate with workers who are being
recruited by the union for representation. Both pro-union
employees and organizers themselves are afforded opportunities
to communicate with workers via social media and networks
that were previously unavailable, more cumbersome and/or
more costly. Social networking has changed the way in which
we communicate and this is particularly so for employees who
wish to express themselves about working terms and conditions
which apply to others. Given the above discussion it seems
inevitable that social media will be embraced by labor unions as
a means and strategy for not only communicating with existing
union members but, perhaps more important, a means to
communicate with employees of companies which are being
targeted for organization.
Summary
Social networking is here to stay as not only have individuals
embraced it as a vital means of communication, organizations
have similarly embraced it as a vital 21st century means of
marketing and promotion and conducting business. The question
remains as to whether employees are entitled to a reasonable
amount of privacy in their personal, public communications on
social networking sites. At this juncture, unless such postings
can be considered concerted activity, employers are free to take
action against employees based on postings which do not sit
well with the employer. However, the NLRB is apparently
readily to vigorously investigate any allegations of alleged
suppression of or intimidation related to concerted activity but
even then there is some presumption of a duty of loyalty to the
employer and limitations as to how far an employee can go.
While numerous states have passed laws which restrict
employer actions which are the result of an employee’s legal

71. off-duty conduct, there is no body of law which addresses the
issue of employer monitoring of and resultant discovery of
information posted on social networking sites. Employers can
be fair-minded in developing policies which balance business
needs and any reasonable perceived privacy expectations
employees could have but in the interim, until such case law is
developed, the only protection employees potentially have
against employer actions based on discovery of social
networking posts is the defense of protected concerted activity
under the NLRA. However, while the NLRB has been quick to
file suit in such cases, no court has yet to rule on this
interpretation. In the meantime, employees need to use
discretion and judgment with their posts, realizing the
perpetuity issue associated with hitting the “send” or “enter”
button on the keyboard.
Source: © 2012 by Jeffrey A. MelloENDNOTES
1. Wikipedia, http://en.wikipedia.org/wiki/Facebook, retrieved 6
January 2012.
2. New York
Times, http://topics.nytimes.com/top/news/business/companies/f
acebook_inc/index.html, retrieved 6 January 2012.
3. Wikipedia, supra note 1.
4. Jeremiah Owyang, A Collection of Social Networks Stats for
2010, http://www.web-strategist.com/blog/2010/01/19/a-
collection-of-social-network-stats-for-2010/, retrieved 6
January 2012.
5. Wikipedia, http://en.wikipedia.org/wiki/Twitter, retrieved 6
January 2012.
6. Lauren Leader-Chivee and Ellen Cowan, Networking the way
to success: online social networks for workplace and
competitive
advantage, http://findarticles.com/p/articles/mi_6768/is_4 _31/ai
_n31909656/, retrieved 6 January 2012.
7. Society for Human Resource

72. Management, SHRM Survey Findings: The Use of Social
Networking Websites and Online Search Engines in Screening
Job Candidates, 25 August, 2011.
8. Leader-Chivee, supra note 6.
9. Sarah Perez, A Growing Acceptance of Social Networking in
the
Workplace, http://www.readwriteweb.com/enterprise/2009/07/a-
growing-acceptance-of-social-networking-in-the-w.php,
retrieved 6 January 2012.
10. See Am. Mgmt. Ass’n & The ePolicy Inst., 2007 Electronic
Monitoring & Surveillance Survey 4 (2008), available
athttp://www.plattgroupllc.com/jun08/2007ElectronicMonitorin
gSurveillanceSurvey.pdf (surveying employer monitoring
practices in various areas such as the Internet, e-mail, computer
usage, etc.)
11. Id. at 1.
12. Id. at 5 (stating that twenty-six percent of employers
monitor all employees’ e-mail accounts and seventeen percent
of employers only monitor the e-mail accounts of employees in
selected job categories).
13. Id. (reporting that seventy-three percent of all employers
that monitor employee e-mails do so via software monitoring
programs).
14. Online Spying: Remote Computer Spyware
Software, Online-Spying.com, http://www.online-
spying.com/webmail-spy.html (last visited Oct. 7, 2010).
See also Rachel Konrad & Sam Ames, Web-Based E-mail
Services Offer Employees Little Privacy, cnet News (Oct. 3,
2000), http://news.cnet.com/2100-1017-246543.html (stating
that, “unfortunately, security experts say many employees
would be surprised to know that Web-based email services also
offer little privacy. Messages sent via a Yahoo or Hotmail
account … are just as accessible [as employer-created e-mail
accounts] to nosy employers.”).
15. Am. Mgmt. Ass’n & The ePolicy Inst., supra note 10, at 1.

73. 16. Carolyn Holton, Identifying disgruntled employee systems
fraud risk through text mining: A simple solution for a multi -
billion dollar problem, 4 Decision Support Systems, 46, 853–
864 (2009).
17. Christopher Pearson Fazekas, 1984 Is Still Fiction:
Electronic Monitoring In the Workplace and U.S. Privacy Law,
15 Duke L. & Tech. Rev. 1-16 (2004).
18. See, e.g., Blakey v. Cont’l Airlines Inc., 751 A.2d 538, 543–
44 (N.J. 2000) (discussing the facts of a sexual harassment case
filed by a female airline pilot claiming, among other things, that
her coworkers posted sexually explicit comments about her on
Continental Airlines’ online bulletin board).
19. See, e.g., Lisa Scott & Ross Tate, Monitoring Internet
Usage—Spring 2010, Ass’n of Local Gov’t Auditors
(2010), http://www.governmentauditors.org/index.php?option=c
om_content&view=ar
ticle&catid=47:accounts&id=594:monitoring-internet-usage-
spring-2010&ltemid=123 (reiterating that employee Internet use
for personal reasons can cause “[b]andwidth and storage
shortages [sic] [particularly] from peer to-peer [sic] file sharing
and audio/video streaming.”); and William P. Smith and Filiz
Tabak, Monitoring Employee E-mails: Is There Any Room for
Privacy? 23 Academy of Management Perspectives, (4), 33–48
(2009).
20. See, e.g., Jared A. Favole, Ex-Bristol-Myers Employee
Charged with Stealing Trade Secrets, Barclays Latitude Club
(Feb. 3, 2010), http://www.barclays.com/latitu-
declub/er_gr_global_news_article.html?ID_NEWS=133949142 (
discussing accusations against a Bristol Myers’ technical
operations associate for allegedly stealing company trade
secrets in order to form a competing company in India); Elinor
Mills, Microsoft Suit Alleges Ex-Worker Stole Trade Secrets,

74. cnet News (Jan. 3, 2009), http://news.cnet.com/8301-10805_3-
10153616-75.html (stating that an ex-employee “allegedly
downloaded confidential documents onto his company-issued
laptop … and then allegedly used a file-wiping program and a
‘defrag’ utility designed to overwrite deleted files in order to
hide the tracks.”).
21. Smith and Tabak, supra note 19, at 34.
22. Laura P. Petrecca, More employers use tech to track
workers, USA Today, 17 March, 2010.
23. See, e.g., Mia Shopis, Employee Monitoring: Is Big Brother
a Bad Idea?,SearchSecurity.com (Dec. 9,
2003), http://searchsecurity.techtarget.com/news/interview/0,28
9202,sid14_gci940369,00.html (quoting an expert in electronic
monitoring who stated that “[e]mployee monitoring is a bad
idea ... when it’s used for Big Brother and micromanagement
purposes. Organizations would be better off not doing it if
they’re going to scrutinize their employees’ every move. If it
creates a morale problem (and it will if it’s not handled
properly) all of its value is diminished.”). More generally,
employee monitoring can have the following negative effects: 1.
An employee may suffer loss of self-esteem if she interprets the
monitoring to indicate a lack of trust in her.; also, Smith and
Tabak, supra note 19, at 43.
24. Am. Mgmt. Ass’n & The ePolicy Inst., supra note 10, at 1.
25. Id. at 8–9.
26. Encouragingly, seventy-one percent of employers
monitoring employee e-mail notify such employees prior to any
monitoring. See id. at 5 (stating that eleven percent of
employers do not notify employees while another eighteen
percent do not know whether e-mail monitoring took place).

75. 27. See, e.g., Doe, 887 A.2d at 1167 (upholding an employer’s
Internet monitoring policy, questioning whether, “with actual or
imputed knowledge that Employee was viewing child
pornography on his computer, was defendant under a duty to
act, either by terminating Employee or reporting his activities to
law enforcement authorities, or both?” and concluding that such
a duty exists).
28. Tanya E. Milligan, Virtual Performance: Employment Issues
in the Electronic Age, 38 Colorado Lawyer (2), 29–36 (2009).
29. 914 F. Supp. 97, 100 (ED Pa. 1996).
30. 1999 WL 339015, 1999 Tex. App. LEXIS 4103 (Tex. App.-
Dallas May 28, 1999).
31. Michael Rustad and Sandra R. Paulsson, Monitoring
Employee E-Mail And Internet Usage: Avoiding The
Omniscient Electronic Sweatshops: Insights From
Europe, 7 University of Pennsylvania Journal of Labor &
Employment Law, 829–904 (2005).
32. See, e.g., Deloitte, Social Networking and Reputational Risk
in the Workplace
4 (2009), available at http://www.deloitte.com/assets/Dcom-
UnitedStates/Local%20Assets/Documents/us_2009_ethics_work
place_survey_220509.pdf., at 12.
33. See, e.g., Corey A. Ciocchetti, The Eavesdropping
Employer: A Twenty-First Century Framework forEmployee
Monitoring, 48 American Business Law Journal, (2), 285–369
(2011).
34. A different survey, also conducted by the Society for Human
Resource Management in 2011, found that 56% of organizations

76. use social media sites to recruit applicants, with 95% using
Linkedin, 58% using Facebook and 42% using Twitter. This 56
% represented an increase from 34% just three years earlier in
2008. SHRM Research Spotlight: Social Networking Website
and
Staffing, http://www.shrm.org/Research/SurveyFindings/Docum
ents/Social%20Networking%20Flyer_FINAL.pdf, retrieved 6
January 2012.
35. Society for Human Resource Management, supra note 7.
36. Alexis Madrigal, What You Shouldn’t Post on Your
Facebook Page If You Want A Job, http://www.thea-
tlantic.com/technology/archive/2011/10/what-you-shouldnt-
post-on-your-facebook-page-if-you-want-a-job/246093,
retrieved 6 January 2012.
37. Damian R. LaPlaca and Noah Winkeller, Legal Implications
of the Use of Social Media: Minimizing the Legal Risks for
Employers and Employees, 5 J. Bus. Tech L. Proxy 1
(2010), http://www.law.umaryland.edu/academics/journals/jbtl/
proxy/5/5_001_LaPlaca.pdf, at 8.
38. Ciocchetti, supra note 33.
39. John Browning, Employers Face Pros, Cons with Monitoring
Social Networking, Houston Bus. J. (Feb. 27,
2009), http://www.bizjournals.com/houston/stories/200 9/03/02/s
mallb3.html.
40. Id.
41. Id.
42. Kabrina Krebel Chang, Facebook Got Me Fired, Builders
and Leaders, http://www.bu.edu/builders-

77. leaders/2011/05/18/facebook-got-me-fired/34-35, retrieved 6
January 2012.
43. Id.
44. Pub. L. 99-508,Oct. 21, 1986, 100 Stat. 1848, 18 U.S.C.
§2510-2522.
45. Stored Communications Act, 18 U.S.C. §§ 2701-12
46. Smith and Tabak, supra note 19, at 38.
47. LaPlaca and Winkeller, supra note 36, at 7.
48. 236 F.3d 1035 (9th Cir.2001).
49. Scott Grubman, Think Twice Before You Type: Blogging
Your Way to Unemployment, 42 Georgia Law Review 615
(2008); Carson Strege-Flora, Wait! Don’t fire that blogger!
What Limits Does Labor Law Impose on Employer Regulation
of Employee Blogs?, 2 Shidler J. L. Com. & Tech. 11 (Dec. 16,
2005), at <http://www.lctjournal.washington.edu/Vol2/a011Stre
ge.html>
50. Chang, supra note 41, at 35.; Maria Greco Danaher, NLRB
Settles Complaint Based on Facebook Posts as ‘Concerted
Activity’, http://www.shrm.org/LegalIssues/FederalResources/P
ages/NLRBSettlesComplaintFacebook.aspx, 9 February 2011,
retrieved 6 January 2012.
51. Allen Smith, NLRB: Discharge of Employee for
Inappropriate Tweets Was
Lawful, http://www.shrm.org/LegalIssues/FederalResources/Pag
es/NLRBInappropriateTweets.aspx, 13 May 2011, retrieved 6
January 2012.

78. 52. Maria Z. Stearns, NLRB Actively Engaged in Examining
Employee Social Media
Use, http://www.rutan.com/files/Publication/46b9dcfa-2034-
4c1f-a7ce-
5907c824a6de/Presentation/PublicationAttachment/e806e8b8-
2e0d-48ae-9ed3-
5f095a222d18/Society%20for%20Human%20Resource%20Mana
gement.pdf, 16 September 2011, retrieved 6 January 2012
53. Nancy King, Labor Law for Managers of Non-Union
Employees in Traditional and Cyber Workplaces, 40 American
Business Law Journal, (4), 827–883 (2003); Robert
Sprague, Fired for Blogging: Are There Legal Protections for
Employees Who Blog?, 9 U. Pa. J. Lab. & Emp. L. 355 (2007).
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