['Unions/Labor Relations']
['Unions/Labor Relations', 'Unfair Labor Practices']
05/17/2022
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A “salt” is a union organizer who applies for a job with your company with the intent of organizing the workers into a union. The term comes from the practice of covertly having several union organizers scattered - like salt - as applicants at a non-union employer, in the hopes that at least one salt will get hired and then organize the non-union workforce of that employer.
The salt may actually be paid by the union for this activity, or the salt may be unpaid. The “salting” may be open or covert. However, these union organizers, even if they are paid by the union they represent, are still protected from discrimination in hiring by the National Labor Relations Act. Employers can’t discriminate against salts by refusing to hire them based solely on their union affiliation.
Some salts will intentionally goad the unwitting employer (who may not have much experience with unions or union organizing) into committing an unfair labor practice in the application and hiring stage. Making anti-union statements to a salt, or requiring more from a salt during the hiring process than from other applicants (with the purpose of disqualifying the salt), could be grounds for an unfair labor practice charge.
Once hired, salts are employees like any other, and are subject to the same work rules as everyone else. For example, if you have a non-solicitation policy, that would apply to salts as to when and how they may solicit employees for unionization.
Check your hiring practices
When it comes to salts, your hiring practices will play a critical role in determining to what extent they must be considered for employment. The general rule is that if the salt is qualified for the job, the salt must be considered for the job along with other qualified candidates. If you have an established set of hiring priorities that you follow as a consistent practice - for example, looking at internal candidates first, then former employees, then internal referrals, and finally from unknown applicants from the outside - you have a better chance of excluding the salt than you would if your practice is to accept all applications from any source equally.
Be careful that you don’t change your hiring practice suddenly when faced with a salting attempt. That could be viewed as antiunion animus, and will probably look like an obvious attempt to avoid salts. A refusal to hire must be based on legitimate business reasons. However, you could change your hiring practices now to help avoid future salting attempts.
Unfair labor practices
If you refuse to hire a union salt and your company is found guilty of committing an unfair labor practice, the damages may include a cease and desist order requiring your company to refrain from further activity that may discourage salts from applying, and also back pay for what the salt should have earned if hired. This back pay award used to involve an indefinite time period from the date of the discrimination. However, a recent National Labor Relations Board (NLRB) decision ruled that an employer’s exposure is now more limited than that, because a salt is not likely to stay at a particular job for a long period of time, but rather move on to another employer and try to organize the workforce there.
In the 2007 Toering Electric decision (351 NLRB No. 18), the NLRB held that applicants must prove they have a genuine interest in the job, as opposed to those who employ outrageous tactics (such as arriving en masse to a job interview, complete with video camera, to intimidate the employer), for the purpose of filing unfair labor practice charges when they are not hired.
For an employer to win on a salting claim, the employer must show that any hiring practice that excluded the salt was in effect before the salt applied; that there were no exceptions made to the hiring policy or practice in regard to the salt; and that the policy wasn’t a pretext for discrimination against union members.
What to do when a salt interviews
It’s best to have hiring practices in place that will help you avoid hiring union salts. However, if you do find yourself interviewing a salt, there are certain guidelines to follow. If an applicant comes to a job interview wearing a union pin, insignia, or pro-union clothing, treat him or her like any other applicant. Don’t cut the interview short, and don’t require anything additional from the salt that you wouldn’t require of other applicants in an attempt to disqualify him or her.
If the salt talks openly about unionization, or tries to goad you into making anti-union statements, refrain from making any statements at all - instead, keep the conversation focused on his or her qualifications for the job.
If you choose not to hire the salt, be sure you have objective reasons for not hiring the individual, and document the reasons why another candidate was considered the best candidate.
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