October 15, 2009

Construction Corner

Ontario Labour Relations Board decision endorses union salters on construction sites

For the first time, an Ontario Labour Relations Board decision has fully and explicitly endorsed the “salting” approach to organizing construction contractors.

It is a common, but controversial, tactic for unions trying to organize construction contractors to “salt” their sites with paid organizers.

These “salts” generally drive around looking for organizing opportunities, posing as unemployed tradespersons looking for a job. An unsuspecting contractor hires them and puts them to work.

The “salts” then proceed to organize the contractor’s other workers in the same trade, and a union application soon follows. Sometimes these “salts” are actually full-time salaried employees of the union.

An occasional twist in this story is that a “salt” will manage to get himself fired by the contractor around the time that the union files it application, and the union (his employer) will then complain that the contractor has committed an unfair labour practice by firing him.

In almost every case, the “salts” disappear a day or so after the union makes its application, as they move on to their next target.

Salting is a particularly effective organizing tactic when deployed against residential builders and general contractors. Although they generally employ few people directly, the impact of a successful drive can be significant because of “subcontracting” clauses in collective agreements that require the company to use unionized subtrades. For some, the result can be significant enough to bring the viability of the business into question.

Many contractors probably assume that a salaried employee of a union could not possibly be allowed to make up a story to get a job, sign up the workers, and then himself be counted as a union supporter when the Labour Board totals up the numbers of employees for and against the union.

If so, they are wrong on all counts.

In a recent case, the Board ruled that “salts” — even full-time salaried employees of the union — are also “employees” of the contractor. These “salts” are entitled to all of the same legal protections that any other “regular” employee has, and their support for the union is counted just like that of any other employee (see Carpenters’ Union, UBCJA, 2009 CanLII 38768 (Ont. L.R.B.)).

The contractor in this case tried to persuade the OLRB that even if salting is legal as an organizing tactic, it is unfair for a paid organizer of the union to be counted in the “vote,” because this essentially allows the union to vote for itself.

Further, the contractor argued, if the decision to unionize is supposed to be made by a majority of the contractor’s employees, it would be unfair to the employees to allow the union’s agents to be part of the group – they could tip the balance in favour of the union, even if a majority of the “regular” employees were opposed.

The OLRB rejected these arguments. It ruled that the legal test for being an “employee” looks only at whether a person is performing work for the employer in the trade. What else the person might do, and what their motivations and interests are, don’t matter. The Board went further, though, and expressed philosophical support for “salting” as an organizing technique.

Alberta passed legislation in 2008 that did not prohibit the practice of salting, but requires that employees have more of a connection to the employer than the typical “salt” does, if they are to count in a union vote. For example, an eligible employee must have been employed for at least 30 days before the union application is filed, and must remain employed until a vote is taken. Although these changes may seem like commonsense rules to employers, unions in Alberta loudly opposed them.

These rules do not apply in Ontario. In Ontario, the bottom line is that construction contractors (and employers generally) need to be aware of “salting” as an organizing technique. It is lawful, it is common, and salts count.

Greg McGinnis is a partner in the Toronto Labour Group at Heenan Blaikie LLP, home of Canada’s largest management-side labour and employment practice, and can be reached at gmcginnis@heenan.ca He represents many construction contractors. http://www.dcnonl.com/article/id35761