“Salting” the wounds of labor organizing

One of the tactics workers used to successfully organize Amazon's Staten Island fulfillment center was the use of "salts."

"Salting" is a common organizing tactic used by labor unions. It is when union organizers apply for jobs with non-union employers for the express purpose of organizing the employer's workforce from the inside. In addition to organizing, the salts also try to inflict economic harm on the targeted employer by triggering unfair labor practice charges and resulting back pay liability. Salting is one the more underhanded methods of organizing used by labor unions.

It's devious, it's effective … and it's 100 percent legal. 

According to the National Labor Relations Board, as long as the salt is "genuinely interested in seeking to establish an employment relationship with the employer," it's unlawfully discriminatory for an employer to refuse to hire him or her because of his or her union affiliation or support.

Consider, for example, Aerotek v. NLRB (8th Cir. 2018), in which four organizers of the International Brotherhood of Electrical Workers Union applied for placement with Aerotek, a staffing agency. The applicants told Aerotek that they wanted to organize worksites for the IBEW and that they would accept any placement anywhere in the country as a means to expose more electricians to the union. When Aerotek refused to place any of the four, they filed unfair labor practice charges with the NLRB. The ALJ found, and the Board agreed, that Aerotek's failure to place, or even consider for placement, any of the salts violated the NLRA, as there were positions available for which they were qualified to fill. 

On appeal, the Eighth Circuit affirmed, holding that an employer violates the Act if it refuses to hire a salt and:

1. the employee (salt) has a genuine interest in securing employment with the employer; 
2. the employer was hiring or had concrete plans to hire; 
3. the applicant was qualified for the open position; and 
4. anti-labor animus contributed to the decision not to hire.

Aerotek (and, more recently, Amazon) teach employers that salting campaigns are not merely theoretical. They are real, they work, and, when sniffed out and squashed by employers, they can create legitimate legal risk.