THE MERIT SHOP MESSAGE

The Merit Shop Message

The Merit Shop Message is a philosophy that encourages open competition and a free-enterprise approach that awards contracts based solely on merit, regardless of labor affiliation. Merit shop is not union vs. non-union. It’s simply a way of doing business, built on free enterprise.



Talking To Your Employees

You have the right to talk to your employees about what it means to be a merit shop contractor in the construction industry. That discussion may lead to talking about unions and that is okay - as long as you do not threaten your workers or promise them any benefits for rejecting a union. This section contains more information on what you can and can't do, along with information on which activities will need to be reported.

Paycheck Stuffers

To give you the tools you need to talk to your employees about the merit shop, this section provides a list of messages that can be used as paycheck stuffers. Just click the document below you would like to use, print as many copies as you need and distribute.

For more information about merit shop construction or support for the free-enterprise system, any member of the public can view the following websites (among others): www.abc.org and www.freeenterprisealliance.org. Nothing in these websites constitutes an agreement or arrangement to persuade the employees of any employer with regard to labor relations matters.

Available paycheck stuffers to download are located here.

Legal Overview: Do's & Don'ts

Legal Overview

In general, so long as contractors do not threaten workers either directly or indirectly, and so long as they do not promise them any benefits for rejecting a union, employers have a pretty free hand in telling their firm’s story and explaining why they choose to be merit shop contractors. Members of management can state facts and give their opinions on unions. Employers can and should tell their employees why a union is not necessary.

Further, employers have the right to continue running their business as before. As a practical matter, it is advisable to consult with labor counsel before taking any action that would hurt a pro-union employee. This is because the employer may have to prove that the action was not taken because of the employee’s union activities.


The Do's

You can and should explain that merit shop contractors believe in performing and rewarding work based on merit, without discrimination based on union affiliation.

You can and should tell employees about any bad experiences you or others you know of have had with unions.

You can and should talk about how working on a merit shop basis has led to the company’s success, and how operating under a union contract would likely make it harder to compete for business.

You can and should state that no employee has to pay dues or fees to any outside organization in order to work at your company.

You can and should say you think employees should just say “No” if a union organizer asks them to sign a union card.

The Don'ts

Employers do not have the right to threaten, intimidate or coerce employees into adopting the employer’s view on unions, or to interrogate or spy on employees to find out about their union activities or how they feel about the union.

An easy way to remember the things employers and supervisors cannot do or say during a union organizing attempt is to think of the word: T-I-P-S.

It will cover most of the pitfalls you can get into until you receive professional guidance.


T

Threaten - you cannot threaten individuals participating in union activities with reprisals such as reducing employee benefits, firing the employee, or retaliation of any kind, and, of course, you cannot take such reprisals.

I

Interrogate - you cannot interrogate employees as to whether or not they signed any union card or whether they are supporting the organizing activity, how they intend to vote, or what they think about union representation.

P

Promise - you cannot promise wage or benefit increases, promotions, or any other future benefit to employees for opposing the union, nor can you give such benefits for this reason.

S

Spy -You cannot “spy” or conduct surveillance on union activities to determine who is attending union meetings of who is signing union cards or supporting the union. This applies to both work time and non-work time, on and off the firm’s premises.

Finally, employers should never discriminate against employees based upon their support for a union or based upon union opposition.

Persuader Rule Reporting

When to Report Activity Under the Persuader Rule

You’re not a labor expert and you want help in communicating with your employees about unions. But some of that help may be reportable to the Department of Labor. The guide below will help keep you determine when public reports have to be filed. The following does not constitute legal advice, and you may want to consult a labor lawyer. You should also check out the Labor Department guidelines on what constitutes reportable “persuader activity,” which can be found at www.dol.gov.

When You Don't Need to Comply With Requirements As long as an employer is communicating the previously listed messages lawfully to employees, without bringing in outside consultants or ABC staff to speak to the employees on the employer’s behalf, no reports need to be filed with any government agency. The employer is also allowed to get advice from outside consultants, including ABC staff, on how to communicate the merit shop message to employees under current rules of the US Department of Labor (USDOL).
When You Do Need to Comply With Requirements

The Labor Management Reporting and Disclosure Act (LMRDA) contains a reporting requirement that comes into play whenever an employer makes an agreement or arrangement with an outside person for that person to directly or indirectly persuade the employer’s workers on the subject of unions. So if an employer decides to have an outsider talk to the employer’s employees about unions, both the employer and the outside person must file reports with USDOL that will be posted on the internet. The current rules contain a very important exception for “advice.” The persuader reporting rules apply to lawyers, consultants, and association staff. This means that any time an employer agrees to have a lawyer, consultant or ABC staff member talk to the contractor’s employees about unions, a reporting requirement is likely to arise. ABC recommends that its members, as well as any ABC lawyers, consultants or staff, fully understand the applicable reporting requirements that may come into play before anyone other than a member of the member contractor’s management communicates with their employees about unions.

Note that the reporting requirements may apply even though the communications are completely in compliance with the “TIPS” rules under the National Labor Relations Act. Even though the persuader communications may be perfectly legal, they have to be disclosed publicly if anyone other than a member of the employer’s management team communicates with the employees.

Under current rules of the US Department of Labor, no reports have to be filed if an employer simply receives “advice” on the subject of unions. Such advice can include vital information about collective bargaining, scripts and talking points for effective employer communications, training seminars for management, flyers and videos, and internet postings. The key factor in determining whether these or other activities constitute advice is whether the final communication to the employees comes from the employer, not the outside advisors.

USDOL has recently proposed new rules that would greatly expand the reporting requirements for employers and their advisors by severely limiting the “advice” exemption. If and when such rules become final, ABC will give notice to its members, who may then need to change their methods of communicating with employees.