Are you vulnerable to union organizing?
Take our 5-minute quiz to identify both internal and external factors that impact unionization – and get tips on how to become union-proof.
Are your leaders aligned with the company vision?
From Implicit Bias to Managing Change, your leaders need training that moves the company forward.
How engaged are your employees?
This free assessment will guide you to the right strategy to create employee advocates.
Management Consulting Services
Check out our proactive strategies that support positive employee relations.
Tagged with: Positive Employee Relations, Prevent Union Organizing
While union salting is legal, employers who want to prevent union organizing naturally don't like it for more than one reason. First, it increases the chances that your business will be faced with one or more unfair labor practice (ULP) charges which can harm the company brand and are expensive to defend against. Second, employee engagement is negatively impacted. Third, your business is more likely to face union organizing because the whole intent of a union salt is to convince employees to join a labor union.
Union salting is not a new labor union strategy. The legal hassling over union salting goes back to 1995 in the case of the National Labor Relations Board v. Town & Country Electric, Inc. (U.S. Supreme court, No. 94-947). In this case, the Supreme Court decided that an employer and a labor union can be paying a salt at the same time because the employer has control over the person's employment. It is similar to the "moonlighting" reasoning because many people hold two jobs to make ends meet. Just because a labor union is involved, the application of the law can't show anti-union bias.
In 2007, the case of the NLRB vs. the Toering Electric Company (351 NLRB No. 18) decided that job-seeking salts had to be "genuinely interested" in gaining employment. Though this seemed to set the right to act as a salt back, proving or disproving whether someone is genuinely interested in a job is not easy.
In 2018, the U.S. Court of Appeals for the Eighth Circuit found that the staffing agency Aerotek, Inc. violated the NLRA by not considering or hiring salts. In Aerotek Inc. v. National Labor Relations Board (No. 16-4520, No. 17-1206), four International Brotherhood of Electrical Workers (IBEW) members were trying to find jobs through Aerotek and hoped to advance a salting campaign. They intended to recruit employees and organize the company's non-union sites. The employees didn't hide their intentions. One person even said he would take whatever position was an option to recruit employees to the IBEW.
The employer chose not to hire the four salts, so the IBEW filed unfair labor practice charges. The ALG and the appeal court decided that Aerotek violated the NLRA by refusing to hire the salts. The four factors the court names that the NLRB had to show were present to determine whether the NLRA was violated were the following.
A salt really wants the job for unionizing reasons, but the reason for wanting the job is not an NLRB consideration. Union salting presents an area where employer vulnerability to union organizing is significantly increased due to this court decision and a labor union-friendly NLRB and Biden administration.
IRI Consultants has spent decades helping organizations strengthen employee engagement to prevent union organizing by establishing an organizational culture where unions simply aren't necessary. The following sections discuss the basics of union salting, recognizing the signs and strategies, and how you can best protect yourself from this activity.
"Union Salting" is a labor union strategy in which a union-backed person applies for a job in a particular company to start union organizing. The union may pay the person to be a salt. The salt can attempt to hide the real intent for seeking employment (covert salt) or be direct about intentions (overt salt). Some people find a middle ground, leaving it up to the employer to interpret language on the resume and job application or during a job interview. Interpreting language is treacherous ground for the employer because it's easy to violate the National Labor Relations Act. (NLRA).
In the Aerotek case, the IBEW workers made their intentions clear: After employment, they were going to recruit Aerotek-placed employees working on non-union job sites. So Aerotek didn't hire any of the salts. An administrative judge found that Aerotek violated Sections 8(a)(3) and 8(a)(1) of the NLRA, which prohibits employers from restraining or coercing employees in the exercise of their Section 7 rights.
The current pro-union environment is ripe for increased attempts at union salting, given the strong support labor unions are getting from the White House and the House of Representatives, authors of the PRO Act, and the NLRB. The PRO Act may not have passed, but there are other ways for unions to increase membership when there is a pro-union government and NLRB. Salting is one of them because it frequently leads to a ULP where the pro-union NLRB can decide in favor of the union.
Do your organizational leaders know how to spot a union salt? As mentioned, the signs of a union salt can be overt or covert. It is the grey area that creates the biggest challenge. The grey area is when a job applicant's language or activities makes him or her a suspected salt, but there is nothing specific the hiring manager believes proves one way or another if it's true. In many cases, salts are silent on the topic of labor unions, hoping the interviewer won't get suspicious. Remember, the union salt's goal is to get hired to gain access to the workforce. The labor unions train salts concerning the language to use and the behaviors that don't raise the alarm with the employer.
So how do you recognize the signs of a union salt interviewing for a job or a salt in your workforce? There is no easy answer because it's like putting puzzle pieces together unless the person declares being a salt. You can learn how to spot a union salt during a job interview or after hiring by understanding common strategies and learning how to recognize salt language.
Of course, suppose the job applicant says he or she is interested in unionizing your company or applies for a job wearing union clothing or a pin. In that case, you're forewarned to adhere to labor laws with the utmost diligence. Most of the time, a salt doesn't announce their real intention. It's also important to recognize that some salts really do want the job AND want to lead a union organizing effort.
During the recruitment and hiring process and after employment, there are some typical signs a salt is present. Some of the common signs include the following.
How you respond to these behaviors will determine your risk of facing ULPs. IRI Consultants has trained many business leaders in this area because of the high-risk level.
If a union salt is hired, the strategy to identify the presence of a salt is to notice changes in employee behaviors and employee-management relationships. Since you can't ask a job applicant or an employee directly, you have to watch for certain behaviors that signal union involvement. After hiring a salt, the signs of union organizing activity are the same signs of union organizing that occur even if a salt is not involved. They include things like new employee alliances, changes in employee routines, communication changes, and all the signs of union organizing.
In some cases, the newly hired salt will openly try to organize employees and even picket a workplace or job site. In the age of employee activism, this approach would not be surprising. Another tactic is the union sends the company resumes of union members. If the employer hires any of them, the union has a foothold in the company. If the employer doesn't hire any of them, the union files a ULP.
One important point to remember is that the salting strategy is adapted to the industry. The union strategy applicable to all industries is getting a salt hired who can work from the "inside." But in the construction industry, a non-union company can hire non-union labor, so the labor unions want the company to sign a pre-hire agreement that says it will only hire union employees even though the company is not unionized. This is a nod to the fact that construction employers have a high degree of worker variability and fluidity, so a union has difficulty gaining majority support.
The pre-hire agreement is allowed per Section 8(f) of the NLRA. The salting strategy may take a different path in this case, like the union offering certain employees working on critical employer projects union rate work for a period of time, pulling the employees off the project and leaving the employer in a bind.
It isn't easy to access an actual salting contract that a person signed with the union. The Center for Union Facts managed to do so. The contract was between a salt and the International Brotherhood of Electrical Workers Local 323. The contract said:
The salt is hired to disrupt your workplace and will look for any small or large issue to use as leverage for filing a ULP.
How you respond to salting depends on when you discover union salting was attempted or successful.
Suppose you suspect a job candidate is a salt. In that case, you must not ask the applicant anything about the person's perspective on unions, including whether he/she supports the union or has been involved in a union organizing campaign. You can only ask for more information specifically related to determining the person's qualifications for the job.
Suppose a job candidate says he/she is affiliated with a union. In that case, you need only to explain that the affiliation doesn't impact the assessment of qualifications and doesn't make any difference in the talent management process. It may be challenging to show impartiality, so using the correct language is important. A salt may be adept at getting a recruiter or hiring manager to say the company won't hire a pro-union job applicant. NLRA Section 8(a)(3) makes it unlawful to discourage union activities by discriminating against an employee regarding hiring or tenure of employment. You can't even discourage membership in a labor organization.
If you hire a salt, you can't terminate the person just because the person is pro-union or trying to start a union organizing campaign. You can do two things. First, consistently adhere to your HR policies in all personnel matters. Organizational leaders should continue conducting job performance reviews, coaching and training employees, and conducting supervisory duties without bias. Second, if you become aware of an effort to start a union organizing campaign, like finding a union authorization card, you must follow the law and not single out the salt.
As discussed in a subsequent section, you should continue to execute your strategy to prevent unionization, which is a strategy for strengthening positive employee relations. Leadership training is critical to avoiding ULPs and preventing union organizing. Your managers and supervisors need to learn labor relations, a complex set of language and behaviors and knowledge, and how to develop positive employee relations.
You don't have to hire a salt just because the person is associated with a union out of fear you will be charged with a ULP if you don't. You must treat the person fairly, assessing their work experience and other qualifications as to whether they are a good fit for the position.
If a salt is hired, it doesn't necessarily mean a union organizing campaign will start. The person will hopefully find a highly engaged workforce with little interest in unionizing, for example. However, the salt will try and raise interest in unions, so it's important to remember that employers and employees have rights per the National Labor Relations Act.
The National Labor Relations Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8(a)(1) states that it's an unfair labor practice for any employer to "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" of the Act.
The salt has the right to talk about work issues and unions with coworkers. You can't legally interfere with that right. We suggest reviewing the UnionProof article NLRA Section 7: Your Employees' Right to Choose. It's important to remember that employees have the right to oppose unions, but employers have rights too. Just because a salt tries to unionize the workplace doesn't mean he or she will be successful.
We have previously discussed 30 steps an employer can take in response to signs of union organizing while staying within the NLRA requirements. You may find it helpful to review the article What are Employers' Rights Against Unions?
Be careful not to single the employee out when a salt is involved. Targeting a salt with negative management actions to discourage unionizing will lead to charges of Unfair Labor Practices. For example, reprimanding the salt for poor performance with the intent of terminating the employee will lead to a ULP if the employee had great performance reviews until identified as a salt. The NLRB and Administrative Law Judges will look at the "totality of circumstances," which means what you've done in the past is considered when looking at employer actions. Consistency in leadership and decision-making is crucial.
Bias in recruitment and interviewing is thought of as treating people differently based on something like race, ethnicity, gender, disability, etc. Bias is a much broader concept in the HR arena. You can show bias against a job applicant whom you suspect supports or clearly supports unions. You can't change the questions you ask someone during an interview because the person has union sympathies. This makes a case for hiring managers to use standardized pre-employment interview questions and an interview committee rather than a single interviewer.
The decidedly pro-union American Prospect addressed the use of pre-employment tests to screen out likely union sympathizers. These tests include testing for job skills, cognitive abilities, and personality. The personality tests have helped employers screen out people who like to support causes and identify employees likely to unionize.
American Prospect says there are strong legal arguments that the NLRB could issue new rules to restrict or ban personality testing based on past precedents that prohibit direct and indirect questions asked of job applicants and employees that can be used to identify union supporters or "troublemakers." Of real concern to employers is summed up by American Prospect writing, "The payoff from preventing employers from screening out "troublemakers" or identifying those who manage to slip onto the payroll could be a significant improvement in the ability of workers to build a critical mass of union supporters to expand collective bargaining across the country."
Your job applicant procedures can't be skewed toward identifying people likely to support unionizing. The same applies to your interviewing processes. If you suspect an employee is a salt, don't change your questions because the salt will file a ULP when you don't hire him or her. If you showed any bias by changing your procedures or processes because of a belief that the person is a salt, the NLRB would find you committed a ULP.
The critical question is: Are there ways to protect your company from being salted by a union at any stage of the employment process?
There is no definitive formula for responding to union salting because the approach a salt takes is adapted to the organization. Some elements significantly increase your ability to prevent union organizing – a positive organizational culture, an effective communication system, an engaged workforce, and trained leaders are just a few.
Are you concerned about salting in your organization? IRI Consultants has the experience and expertise to help you meet your unique organizational needs. Our team of experts can help you recognize salting and understand the legal do's and don'ts to prevent union organizing.
Get Help With Salting by contacting IRI Consultants!