As a strategy for unionizing a company’s workforce, “Salting” has been around since before the National Labor Relations Act (the Act) was passed in 1935. While it has never disappeared entirely, the rise of “Big Labor” put it in moth balls. Of late, Salting has returned and been used successfully to unionize companies such as Amazon and Starbucks. For years, big labor has sought to organize employees from without, send­ing trained organizers to meet with employees outside of the workplace. The result has been dismal, with union membership falling to 6% of the nation’s private workforce as of 2021. In recent years, Salting has reemerged as a successful organizing tactic because it unionizes from within.

What Hit Amazon and Starbucks? 

“Salting” is the use of organizers to work as employees of a company for the purpose of unionizing the company’s workforce. While all Salts sow seeds of discontent, they come in several different varieties.

•  Professional organizers, usually employed and paid by a union. The common tactics used by these Salts include trapping the employer into committing unfair labor practices (ULPs). The motive (especially if the union wins) yields notoriety and validates their strength and knowledge advantage over the employer, which they then claim will be used on behalf of the employees. These Salts may also disrupt production by leading ULP strikes, exaggerating personnel issues, creating or fabricat­ing problems, sowing discontent, borderline insubordination and sabotage. Professional Salts are divided into two groups, Overt and Covert Salts. The tactics of each group differ.
  • Overt Salts. An Overt Salt is usually a Professional Salt who announces to the employer at the time of application that the Salt is seeking employment for the purpose of organiz­ing the employer’s employees. The purpose of this tactic is twofold: to trap an unsuspecting employer into saying or doing something that can be used to form the basis of a ULP charge and to destroy the employer’s ability to defend against a ULP based on a lack of knowledge that the appli­cant or employee is a Salt.
  • Covert Salts. Covert Salts try to remain undercover until the support for a union reaches a critical mass and it is advantageous to surface. Their tactic is to disrupt produc­tion, magnify things that are disliked by the employees and demoralize employees. These Salts, too, are likely being paid by a union or are on the regular payroll of an estab­lished union.
• Employee Salts. Whatever their motive or tactics, Employee Salts operate with a wealth of knowledge of the working conditions and employee issues. They often receive training and obtain economic support from an established union. However, they may follow a different track, and try to organize an in-house union.
  • Current Employee Salts are existing employees who, when hired, had no desire to be a Salt. They later become dis­gruntled for any of a host of reasons and seek the support of other employees to organize into a union or join an established union for mutual aid and protection. They usu­ally begin covertly but, if their appeals start to gain traction, will make their organizing efforts public. Often, they estab­lish a connection with an established union, which pro­vides economic support, training and additional organizers.
  • Former Employee Salts. Former Employee Salts have been severed by the employer or have become so disgruntled that they quit. They hang around the outside of the workplace (or engage with the employer’s social media accounts), confronting employees as they go to or from work, trying to convince them that they need a union for protection or improvement of working conditions. Some are motivated by anger and revenge. Others sincerely believe that the work­force needs the protection of a union. Former Employee Salts are often independent and supported economically by organizations and individuals sympathetic to unions, but not unions themselves. They also may use crowdsourcing websites, like GoFundMe. Some Former Employee Salts sell themselves to a union or receive union payments based on the number of authorization cards the Salt obtains.

Chris Smalls, now the president of Amazon Labor Union, is an exam­ple of an employee who became a Salt. He was employed at the Amazon Staten Island facility at the beginning of the pandemic in 2020, and was described once by a senior Amazon lawyer as “not smart or articu­late.” Shortly after Smalls, then an assistant manager, led an employee walkout protesting working conditions, he was fired. But, that did not relieve Amazon of his agitation. He continued to hang around, talking and handing literature to employees at a known transportation hub. His knowledge of the inner workings at the facility gave him instant cred­ibility and became the foundation of these discussions. “Workers’ Rights” was his mantra.

Justine Medina is an example of a political activist turned Salt. Medina was recruited to be a Salt at the Staten Island facility of Amazon. She was a former staffer of Alexandra Ocasio-Cortez, and is a co-chair of the Queens, New York, Chapter of the Democratic Socialists of America and one of the co-chairs of the New York Young Communist League. She was employed by Amazon at a time when Amazon was experienc­ing high turnover and struggling to find enough workers. As a result, its hiring practices became lax. Smalls, Medina, and a growing inner circle of activists committed to Workers’ Rights were successful, and the Staten Island facility became the first Amazon facility to fall to organized labor.

Some of the most effective Salts have been over-educated for the jobs they take. These Salts are principled activists, commonly working under the banner of Workers’ Rights. For these Salts, unionization is a cause, not a way to make a living through union dues, a characteristic that distinguishes them from union-employed Salts. They work through mul­tiple devices that include workplace disruptions and low-key intellectual persuasion. Their effort is to create a movement for “Workers’ Rights” within the workforce. Jaz Brisack, a Rhodes Scholar, became a barista at a Starbucks in Buffalo, New York and fanned the flames of disillusion­ment. She master-minded the organizing drive that produced the first win for labor at a Starbucks in December 2021. As of the date of this pub­lication, over 260 separate Starbucks locations have voted to unionize.

The Law 

In 1995, the U.S. Supreme Court, in NLRB v. Town & Country Electrical,[1] held that Salts are entitled to the protections of the National Labor Relations Act and cannot be discriminated against because of their union activity. Once it is established that the company is hiring qualified applicants and that the Salt is qualified, the company must hire the Salt. If an employer is found by the National Labor Relations Board (Board) to have violated the Act, it can order the reinstatement of the employee with full back pay and other compensation for the losses and expenses suffered while not working for the employer (under a new standard, this could include what the Board has termed “direct or foreseeable pecuni­ary harms”). These damages may include compensation for the loss of future pay.[2]

Because some of the strategies used by Salts (e.g., group and indi­vidual walkouts, sabotage, demoralization, insubordination) can be very damaging to the employer’s business, employers have sought to find lawful reasons for refusing to hire a Salt or discharging a Salt when his/ her cover is “blown.” Some of these defenses have been found to be valid, at least for a time. That is until the Board closes loopholes.

In Little Rock Electrical Contractor, Inc.,[3] for example, the Board held that an employer’s rule that employees could not have two jobs was lawful when it was used to refuse employment to a professional salt. However, in a subsequent case, Tradesmen International,[4] the Board found that an employer’s policy against dual employment violated Section 8(a)(1) of the Act because there was evidence that it was only enforced against known union organizers.

In Toering Electric,[5] a Republican-majority Board found that the employer did not violate the Act when it refused to hire an applicant who clearly was not interested in employment but had applied for a position solely for the purpose of either charging the employer with violating the Act or inducing employees to walk off the job in an unfair labor practice strike. Further, the Board held that, while an employer must make out a prima facie case of disinterest and ulterior motive, the burden of proof falls to the general counsel to establish that the employee had a sincere interest in working for the employer indefinitely. Relying on Toering Electric when considering what may be a valid reason for rejecting an applicant should be done only with caution. Toering is on the current general counsel’s “hit” list of cases that she wants to have the Board reverse. In GC Memorandum 21-04, General Counsel Abruzzo instructs the Regions to report any case involving Toering Electric for evaluation and possible use as a test case. In light of the apparent pro-union bias of the current Labor Board, it is prudent to expect that Toering will either be reversed or significantly modified.

In any case involving the refusal to hire or discharge of a Salt, the NLRB’s general counsel must prove that the employer discriminated against the Salt for engaging in union or other activity protected by the Act. In 2008, the U.S. Court of Appeals for the Eighth Circuit, summarized the proofs in Aerotek, Inc. v. N.L.R.B.,[6] as follows:

1. The applicant must have a genuine interest in obtaining employment with the employer,
2. The employer must be hiring or have concrete plans to hire,
3. The applicant has the required training or experience for the open position, and
4. Union animus contributes to the decision not to hire.

Mining for Salt 

Employers usually want to know whether an applicant is a Salt. If for nothing else, knowledge of whether an applicant is a Salt will allow the employer to ensure that the applicant is treated the same as other appli­cants. Efforts by a Covert Salt to conceal his true identity begins with the manner the application is received as well as the application’s content itself. Some unions, particularly the IBEW, use group or mass applica­tions when an employer is hiring or may be hiring. At times, employees included in the blast are unaware of the application, or the resumes that accompany the applications are out-of-date. The irregularities strongly suggest that the applicants are not really interested in being employed but are part of a setup to file a ULP charge.

Applications themselves must be subjected to a rigorous vetting, not just when the hiring officer suspects an applicant is a Salt, but also for all other applicants. To ensure that every applicant is treated the same (and to avoid a ULP charge for discrimination), the vetting process should be in writing and followed precisely. Further, there should be a strict rule that any falsification in an application will automatically result in a “no-hire” decision. Special attention should be paid to those areas on an application that are often falsified or create suspicion, such as:

• Blanks on the application;
• Fake references;
• Fake Social Security numbers;
• Fake addresses;
• Failure to provide contact information of references;
• Gaps in employment history;
• Short terms of employment with multiple employers; and
• Failure to list past supervisors with contact information.

An employer must have strict procedures for vetting an application that must be followed in every case, no exceptions and to the letter. The natural tendency of a busy hiring officer is to disqualify the application and put it aside when an application contains defects. However, even in those cases the hiring officer should follow the same routine through to the end, investigating and testing every entry on the form. Many cases before the Board are lost because the employer is unable to prove that all employees, including Salts, were treated exactly alike. For that rea­son, the procedures used by an employer should be in writing and the reviewer should mark the results of the investigations on the application itself, so that a document is created that can be used later as evidence. The general counsel cannot prove disparity in treatment if there is none and the employer can prove it with contemporaneous documents.

It is especially important that if any person contacted during the inves­tigation of an employment application mentions “union,” the comment should not be recorded on any document, even a confidential email to the investigator’s superior. Union activity should be irrelevant and irrel­evances need not be recorded. Further, in a ULP case, all documents will have to be produced for review by Board agents, the general counsel and the union. All emails or other written communications will be reviewed as well. Also, supervisors should be kept out of the union information loop. While knowledge can be imputed within the management ranks of an employer, it will be a rebuttable presumption and, depending on the credibility of a supervisor, the employer will have strong evidence with which to rebut imputed knowledge if the supervisor who took the action at issue lacks the knowledge that a new employee is a Salt.

Interviews also should be routinized and follow the same pattern for all applicants. The same “script” for interviews should be used in every case and the applicant’s responses should be noted on the actual script used at the interview. Again, no exceptions, even if the interview is otherwise unremarkable. If the applicant asks questions about unions, a non-answer should be given. Or, perhaps, this would be a time to put a rabbit or two in the hat by responding “We believe that union repre­sentation is a matter for our employees. It is irrelevant to what we are doing here.”

Examining the documents and the applicant directly to reach a judg­ment about whether the applicant is genuinely interested in a long term employment relationship is also important, so long as Toering Electric is the law. Indicators of a lack of a genuine interest may be refusals of job offers for similar employment or multiple jobs with other another employers. A tip-off would be an incomplete or stale resume.

Employers should also consider having rules that later can be used as justification for a refusal to hire. Such rules, however, need to be based on a legitimate business justifications. For example, a rule against having two jobs, as in Little Rock Electrical Contractor, Inc., may be outdated and insufficient in an age when many employees have second jobs. However, a business that is unpredictable and depends on customers with emer­gencies may have a need that justifies a single employer rule. Similarly, a rule that to be hired an applicant must be someone who desires long-term employment may not be justified for an employer whose business model depends on high turnover.

Salts at times bait supervisors into treating them differently from other employees. They also keep meticulous notes for use later during the investigation of a charge. Supervisors also should keep notes, particu­larly of corrective counseling. As stated earlier, charges of discriminatory discipline depend on comparators. It is helpful, therefore, to be able to prove that other employees have been treated the same as the Salt. The notes must not only be regarding the Salt or suspected Salt.

Millenials and Gen X Salts and Employees

Organizing in this era of Millennial and Gen X employees[7] presents a dynamic that is reminiscent of the days leading up to the birth of the Act. In fact, commonality of the mantra, “Workers’ Rights,” comes out of the Communist playbook of the 1920s and 1930s. One of these dynamics is the emotion and feelings of kinship that the Salts are able to engender. Both the organizing drives at Amazon Staten Island and the Starbucks stores had the fervor of cults. As a result, the cult-like character which is developed by new age Salts insulates employ­ees from the usual anti-union tactics which have been successful over the last fifty years in keeping unions from being successful in their organizing drives. Employers with a significant number of ml/gx learn the hard way when the strategies of their expensive consultants and lawyers fall flat. In part, this resistance is because ml/gxs think favor­ably about the concept of unionization and unions. As a consequence, negative statements about unions do not resonate, and can have the opposite effect.

“Workers’ Rights” now and “Workers’ Rights” of one hundred years ago have an important difference – the definition of “Rights.” In the 1920s and 1930s, Workers’ Rights meant safety, reasonable hours, and livable wages. In the years since then, those Rights have been mandated by laws and regulations. Today, for many strongly progressive ml/gxs, Rights mean paid time off, twelve months of parental leaves, holidays recognizing causes rather than events or individuals, flexible hours, flex­ible places, assistance in paying college debt, free advancement train­ing, sabbaticals, equity, free health care, a non-contributory retirement plan, inclusion, diversity, respect and partnering in the operation of the business. Ml/gxs appear to rally around largely aspirational concepts, such as respect, involvement and being heard. Unfortunately, these con­cepts are frequently ignored, minimized or dismissed by managers and decisionmakers, most, if not all, of whom were born more than thirty years ago and have no understanding or patience for what they see as an effort to convert the workplace into a social organization. This kind of attitude may be interpreted by the employees as disrespectful. They resent not being taken seriously.

However, on the other side of the equation, ml/gx Salts and their disciples engage in and promote “group think” with the objective of creating something that is similar to that of a cult. Employees who resist their “cause” are ostracized and shunned. They are silenced and intimi­dated. Other employees with differing views are shouted down and not permitted to speak. This can cause division in the workplace, and other personnel issues.

Inoculating Against Salting 

To avoid conflicts, disorder and other destructive conduct an employer should inoculate its employees against a Salt’s arguments and efforts to have employees coalesce around an idea that together they can “force” the employer to do and give what they want. An employer should take the underlying concepts seriously and fashion its policies and behavior, especially that of the supervisors, accordingly.

The temptation to form “focus groups” should be resisted or done with great care and safe-guards against morphing into becoming de facto statutory labor organizations. In T-Mobile USA, Inc.,[8] for example, the company set up employee teams to receive and communicate customer complaints and suggestions to management. In time, the teams began to communicate and discuss with management employee complaints and suggestions. The Board found that the company had set up and con­trolled a labor organization in violation of the Act. Unfortunately, simply discontinuing the program, as ordered by the Board, will create a void that some employees may seek to fill with a union. Members of a focus group may seek to be part of a solution and that often can be seen as recognition of the group and bargaining with them as the representative of the employees, i.e., a union.

Initially, employers should examine all policies to see if any create or validate feelings of disrespect or detachment. These policies should be given special attention. By way of example, an employer’s code of con­duct may be stated in a demeaning manner. It may be that a code which is stated positively by defining expected behaviors should be considered. “Thou shalt not” may give way to “Thou shalt” and achieve the same pur­pose. Also, employee behaviors that need to be modified may be done through a non-punitive discipline system that will avoid the resentment of punitive actions, such as unpaid disciplinary suspensions.

Supervisor education would also be at the top of the list. Supervisors have the most day-to-day contact with the employees and may have to be taught how to treat them. Preferably, the training could include roll playing and hypothetical problem solving.

Perhaps most important is that managing by walking around should have a resurgence. Person to person contact is still the best way to estab­lish connections with employees. The conduct of the supervisor in Colart America[9] is a good example of validating what new age Salts feed on and what fans the fire of unionization.

In Colart, a supervisor was approached by a group of employees that presented him with a list of complaints of racism, mistreatment and unfair work assignments. Instead of acknowledging the employees’ con­cerns and initiating an investigation with the assistance of the human resources personnel, he told the employees that they must follow proto­col and take their complaints up the chain of command. He added that there would be a problem if he found out that the employees were voic­ing their complaints to each other instead of to management.

The conduct of the manager was an invitation to employees to orga­nize for protection, if nothing else. Clearly the manager either had not been trained or fell asleep during the part about respecting employees and taking their concerns seriously. Employees with a list of complaints that they present to a supervisor is a common method by which a Salt is able to insert into conversations with employees the need for collective action.

Establishing connections with employees takes time and effort, and supervisors must be given time to perform that aspect of their responsi­bilities. Loading up supervisors with paperwork to the exclusion of deal­ing directly with the employees does not prevent adversarialism. Rather, it promotes the most difficult thing an employer has to deal with and remedy – emotional detachment from the company.

Employers who have not created a work environment in which the employees feel connected and involved will have a particularly difficult time when a new age Salt shows up and pours salt on the self-inflicted wounds. The employer will have little more than negativity and fear in its tool box. While all employees benefit from education about the realities and limitations of unions and such education should be used in every campaign, employees who feel no connection to the employer other than a paycheck may be resistant to any argument that a union will not give them respect or involvement. And, things may get worse.

In April 2022, the current general counsel of the Labor Board, Jennifer Abruzzo, issued GC Memorandum 22-04. In the memo, she alerted Regional offices and all employers that she will urge the Board to rule that captive (mandatory) audience speeches and obligatory one-on-one con­versations should be prohibited as a violation of the law. Subsequently, she brought a test case to the Board via Cemex Construction Materials Pacific.[10] If the Board accepts its general counsel’s request, which is likely, it will have removed one of the most important tools employers have in the face of a union campaign. Since the general counsel is the enforcement arm of the Board and may find such speeches and conver­sations to be inherently coercive in violation of the law, captive audience meetings and conversations as a campaign tool may be doomed regard­less of what the Board does. As a result, employers may be limited to voluntary meetings and conversations. Employees who feel detached from the employer are likely not to attend voluntary meetings held in the context of a union organizing drive.

Conclusion

Salting is an old method of organizing that has been modernized. Workers’ Rights was the mantra of the Socialists and Communists in the 1930s and is the new age Salts’ mantra today, with amplification by social media. Salting is extremely difficult to combat, particularly if the work­place has not become resistant through the intelligent use of revised policies and well-designed training programs for all levels of manage­ment. It can be done, just not overnight, regardless of the skills of the best consultants after the fact.

Notes

1. NLRB v. Town & Country Electrical, 516 U.S. 85 (1995).

2. The Board has struggled with calculating future pay loss for years. Stated simply, the issue is how much pay can an employee lose when the Salt is not going to continue to be employed after the workforce has been organized. For years the Board followed a pre­sumption that the back pay period should run from the date of discrimination until the employer makes a valid offer of reinstatement. In Oil Capitol, 349 NLRB 1348 (2007), the Board held that the presumption would no longer be used for a Salt and that the general counsel of the Board must prove a reasonable back pay amount in light of all of the facts.

3. Little Rock Electrical Contractor, Inc., 327 NLRB No. 166 (1999).

4. Tradesmen International, 351 NLRB 399 (2007).

5. Toering Electric, 351 NLRB 225 (2007).

6. Aerotek, Inc. v. N.L.R.B., 883 F.3d 725 (2008).

7. Hereafter ml/gx or ml/gxs.

8. T-Mobile USA, Inc., 372 N.L.R.B. No. 4 (Nov. 18, 2022).

9. Colart America, 372 NLRB 9 (Nov. 23, 2022).

10. Cemex Construction Materials Pacific, 28-CA-230115.

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