Unions sometimes use a strategy called “salting” to organize employees. It occurs when a union sends a union member (a “salt”) to an unorganized job site to obtain employment and then organize the employees. Because job applicants are employees under the National Labor Relations Act (NLRA), a salt may be protected from discrimination under the NLRA. In July, the National Labor Relations Board (NLRB) Acting General Counsel, William B. Cowen (AGC), issued guidance instructing NLRB representatives when investigating cases in which a job applicant files a charge against an employer that refused to consider the applicant because he or she was engaged in salting. The memo provides an opportunity for employers to review their hiring processes to avoid getting caught up in charges from a salting campaign.
The NLRA prohibits employers from discriminating against job applicants based on union affiliation or interfering with applicants’ efforts to organize employees. A potential salt may identify prior union affiliation on an application or explicitly state an intent to organize employees to take advantage of these protections. If an employer refuses to consider the applicant or refuses to hire the applicant, the applicant may file a charge with the NLRB, arguing that failing to consider or hire the applicant violated the NLRA.
Excluding whether the employer refused to consider or hire the applicant for non-discriminatory reasons, there are two primary legal issues that arise in these cases:
- Did the alleged salt apply for employment?
- Did the alleged salt have a genuine interest in being hired?
If the alleged salt did not apply for employment, then the employer cannot be liable for refusing to consider or hire them. Likewise, if the alleged salt had no genuine interest in being hired, then the employer is not liable for refusing to consider or hire them. The AGC’s memo instructed NLRB representatives to collect evidence about these two legal issues when investigating salting cases and provided the following guidance:
- An applicant included among bulk applications does not mean the applicant did not apply or had no genuine interest in being hired.
- Application details such as “reading the National Labor Relations Act” as a hobby, listing skills such as “applying pressure on employers to recognize our union,” “exposing employers who commit unfair labor practices” and “filing charges,” may suggest (but do not automatically prove) the applicant has no genuine interest in being hired.
- Other facts relevant to whether the applicant has a genuine interest in being hired include, “whether the applicant recently refused similar employment with the employer; engaged in disruptive, insulting, or antagonistic behavior during the application process; followed the employer’s established procedures when applying; timely arrived for the interview(s); made follow-up inquiries regarding the application; had relevant work experience with other employers; or was actively seeking similar employment with other employers.”
The AGC’s guidance is helpful for employers considering strategies to mitigate the risk of union organizing. For example, a relevant fact to whether an applicant has a genuine interest in being hired includes whether the applicant “followed the employer’s established procedures when applying.” If an employer has a policy prohibiting the hiring of applicants with multiple jobs or unsolicited applications, then it may help the employer avoid discrimination claims from salts. However, the time to implement these policies is before organizing begins. Salting rarely occurs independent of a larger campaign by a union to organize employees. Once that campaign begins, efforts to institute new policies to deter salting may violate the NLRA. As a result, employers (in consultation with a labor attorney) should consider implementing lawful strategies to deter salting before such a campaign starts.
