Vice President, Labor Policy, U.S. Chamber of Commerce
October 19, 2022
Over the last year or so, a wave of union elections has made the news as employees of traditionally non-unionized employers have voted in favor of union representation. This phenomenon might appear to be an organic movement to the casual observer, but without question an age-old labor organizing technique may help explain the reason for this seemingly sudden boom: Salting.
Outside of the world of labor policy, the term “salting” is what you do to a flavorless entree, but employers would do well to understand its other meaning. Dating back at least 100 years, salting refers to the practice of union organizers or trained members applying for a job with a non-union employer for the specific purpose of unionizing the employer’s workforce.
Paid union salts are on the union payroll and remain so even if the target employer also hires them. Employers are not allowed to ask if a job candidate is affiliated with a union, but union salts may make their intentions known during the hiring process. If they do, simply not hiring them may seem like a reasonable option but following that path could place the employer in legal jeopardy by establishing an anti-union animus to be used against it later.
As observers of labor policy know, firing employees for engaging in union activities is unlawful and can trigger an unfair labor practice (ULP) charge before the National Labor Relations Board (NLRB). Similarly, failing to hire or place a union salt can also trigger a ULP charge.
The National Labor Relations Act (NLRA) explicitly makes it unlawful not to hire someone based on membership in a union. In addition, the Supreme Court resolved conflicting circuit court decisions on the issue of paid salts and upheld the NLRB’s interpretation that salts can remain on the union payroll while also working for the employer they are attempting to unionize.
In 2007, the NLRB refined its framework for determining whether employers violate the NLRA in refusing to hire salts. In Toering Electric Co., the Board placed the burden on the NLRB General Counsel to demonstrate that a salt was genuinely interested in an employment relationship with the employer in order to sustain a ULP, which offers some, but not necessarily much, protection for employers.
Union salts present complicated legal issues, as well as potentially expensive, retroactive back-pay orders for not hiring them or for discharging them if they are hired and their intentions become apparent. There are drawbacks for workers as well. They’ll be stuck with a colleague whose sole purpose at the job site is to sow discord and ultimately attempt to make them pay union dues. Salts may also pressure an employer to agree to “voluntarily” recognize a union, which would force employees to have union representation whether they want it or not. While it’s a term many businesses aren’t familiar with, employers would be wise to be aware of this potentially destructive tactic and understand what protections they may have.