The Dangers of Salting Under Trump

Nick Johnson March 23, 2017

Salting is a union organizing tactic in which an organizer (a “salt”) applies for a job at a nonunion company with the goal of organizing his or her coworkers to form a union. (Photo by Scott Olson/Getty Images)

This arti­cle was first post­ed by Jacobin.

Attacks on the Amer­i­can labor move­ment have often been swift, dra­mat­ic, even vio­lent. The 1947 Taft-Hart­ley Act was such a wide­spread attack on labor rights that union­ists called it the slave labor bill.” Reagan’s fir­ing of more than eleven thou­sand strik­ing air traf­fic con­trollers shocked and under­mined the entire labor move­ment. Strik­ing work­ers were repeat­ed­ly killed by fed­er­al troops, state mili­tias, local law enforce­ment, and pri­vate guards from the late nine­teenth cen­tu­ry through the 1930s.

Oth­er attacks on labor have been more nuanced and sub­tle, but not nec­es­sar­i­ly less destruc­tive. Labor’s pow­er to effec­tive­ly strike was evis­cer­at­ed piece-by-piece by fed­er­al court deci­sions and deci­sions of the Nation­al Labor Rela­tions Board (NLRB) that grad­u­al­ly banned or removed legal pro­tec­tions for var­i­ous kinds of strikes.

Union busters have cho­sen this approach to tar­get salt­ing,” and these attacks may resume under Pres­i­dent Trump.

Salt­ing is a union orga­niz­ing tac­tic in which an orga­niz­er (a salt”) applies for a job at a nonunion com­pa­ny with the goal of orga­niz­ing his or her cowork­ers to form a union, recent­ly explored in detail by Erik For­man. The his­to­ry of salt­ing in the Unit­ed States goes back at least to the found­ing of con­struc­tion unions in the late 1800s, and unions have uti­lized the tac­tic in numer­ous indus­tries through­out the twen­ti­eth century.

In Steve Early’s 2013 book Save Our Unions: Dis­patch­es from a Move­ment in Dis­tress, one chap­ter tells the sto­ries of salts involved in mod­ern cam­paigns to orga­nize hotel work­ers, Star­bucks baris­tas, bicy­cle mes­sen­gers, and oth­ers. Ear­ly con­cludes that the inside expe­ri­ence pro­vides salts invalu­able” lessons they can put to use if they move on to oth­er roles in the labor movement.

In addi­tion, the insid­er role pro­vides numer­ous ben­e­fits for the orga­niz­ing cam­paign at hand. Rather than act­ing in an out­side capac­i­ty, salts gain addi­tion­al cred­i­bil­i­ty as they earn the trust of their cowork­ers and can more ful­ly under­stand and effec­tive­ly agi­tate around the con­cerns that are unique to a par­tic­u­lar workplace.

While pro­vid­ing its prac­ti­tion­ers with lessons in how labor orga­niz­ing works, salt­ing is also an effec­tive tool for unions. This is why his­tor­i­cal­ly, the tac­tic has often come under attack by cap­i­tal and the Right — and why it may soon come under attack in the Trump era.

Legal pro­tec­tion for salts

Under the Supreme Court’s 1995 deci­sion NLRB v. Town & Coun­try Elec­tric, salts are enti­tled to all of the var­i­ous legal pro­tec­tions of the Nation­al Labor Rela­tions Act. This means that it is ille­gal for com­pa­nies to fire, refuse to hire, or oth­er­wise dis­crim­i­nate against a salt because of their union affil­i­a­tion or union activities.

After Town & Coun­try Elec­tric, the NLRB devel­oped legal stan­dards for deter­min­ing whether a com­pa­ny ille­gal­ly refused to hire a salt. Ini­tial­ly, the salt must prove that the com­pa­ny was hir­ing, that the salt was qual­i­fied for the posi­tion, and that the salt’s union affil­i­a­tion con­tributed to the company’s deci­sion not to hire the salt.

The com­pa­ny can then defend itself by demon­strat­ing that it had a legit­i­mate rea­son for not hir­ing the salt. If it can­not do that, the board will find that the com­pa­ny unlaw­ful­ly discriminated.

Once the NLRB deter­mined that a com­pa­ny unlaw­ful­ly dis­crim­i­nat­ed, either by refus­ing to hire a salt or by fir­ing a salt, the typ­i­cal rem­e­dy was to order the com­pa­ny to offer employ­ment to the salt and to pro­vide the salt with back pay. The board assumed that the salt should receive back pay for the entire time peri­od from the date the com­pa­ny dis­crim­i­nat­ed against the salt until the date the com­pa­ny extend­ed a valid offer of employ­ment to them, unless the com­pa­ny pro­vid­ed evi­dence that the salt would not have con­tin­ued work­ing for the com­pa­ny for the entire period.

In 2007, the Repub­li­can-con­trolled NLRB issued a pair of deci­sions that made it eas­i­er for com­pa­nies to get away with dis­crim­i­nat­ing against salts or, for com­pa­nies unable to get com­plete­ly off the hook despite the new­ly favor­able legal stan­dards, to reduce the finan­cial penal­ty imposed for their discrimination.

First, the board decid­ed Oil Capi­tol Sheet Met­al in May 2007. In this case, the NLRB changed the rules for deter­min­ing the amount of back pay to award to a salt who was the vic­tim of unlaw­ful discrimination.

Instead of assum­ing that the salt would have con­tin­ued work­ing for the com­pa­ny and allow­ing the com­pa­ny to rebut this assump­tion with con­trary evi­dence, the union must now prove the hypo­thet­i­cal that the salt would have con­tin­ued work­ing for the employ­er for the entire back pay peri­od claimed. This new approach, wrote the two dis­sent­ing board mem­bers, not only vio­lates the well-estab­lished prin­ci­ple of resolv­ing reme­di­al uncer­tain­ties against the wrong­do­er, but also treats salts as a unique­ly dis­fa­vored class of discriminatees.”

Not sat­is­fied with mere­ly soft­en­ing the penal­ties for com­pa­nies that dis­crim­i­nate, the board went fur­ther four months lat­er in Toer­ing Elec­tric Com­pa­ny by requir­ing salts to jump through more hoops to estab­lish that the com­pa­ny vio­lat­ed the law.

Now, in addi­tion to sat­is­fy­ing the pre­vi­ous­ly men­tioned test for prov­ing that the com­pa­ny unlaw­ful­ly dis­crim­i­nat­ed against a job appli­cant, the union must also prove that the appli­cant was gen­uine­ly inter­est­ed in seek­ing to estab­lish an employ­ment rela­tion­ship with the employer.”

This means that even if it is undis­put­ed that a com­pa­ny refused to hire a salt because of the salt’s union affil­i­a­tion, which is unques­tion­ably ille­gal under Town & Coun­try Elec­tric, the salt must prove to the board’s sat­is­fac­tion that he or she gen­uine­ly” want­ed the job — what­ev­er that means. If the salt can­not do so, the board ignores the dis­crim­i­na­tion and the com­pa­ny is off the hook for its oth­er­wise ille­gal actions.

Oil Capi­tol and Toer­ing Elec­tric con­sti­tute a sig­nif­i­cant dan­ger to unions’ rights to engage in orga­niz­ing activ­i­ties. The evi­dence in unfair labor prac­tice cas­es is fre­quent­ly ambigu­ous, often depend­ing on a judge’s inter­pre­ta­tion of wit­ness cred­i­bil­i­ty. Inquiries into an individual’s men­tal state, such as whether a salt gen­uine­ly” want­ed a job, are even more fraught with uncertainty.

NLRB offices are pro­tec­tive of their lim­it­ed resources, so this addi­tion­al oppor­tu­ni­ty for com­pa­nies to intro­duce uncer­tain­ty is poten­tial­ly a sig­nif­i­cant hur­dle for a union to clear in its effort to con­vince the NLRB to pros­e­cute a charge.

The place­ment of the bur­den of proof in these cas­es is huge­ly con­se­quen­tial — if the evi­dence is unclear, the par­ty with the bur­den will lose. When a com­pa­ny dis­crim­i­nates against a union orga­niz­er, it makes no sense to give the com­pa­ny the ben­e­fit of the doubt and place the bur­den of proof on the union. But this is exact­ly what the NLRB now does.

These cas­es have been the Right’s most suc­cess­ful attack on salt­ing, but they have also pur­sued oth­er meth­ods. Repub­li­can leg­is­la­tors have intro­duced a bill called the Truth in Employ­ment Act, which would allow com­pa­nies to fire or refuse to hire salts under an even more lenient legal stan­dard, in every con­gres­sion­al ses­sion since Town & Coun­try Elec­tric was decid­ed in 1995.

Repub­li­can-led con­gres­sion­al com­mit­tees have also held numer­ous hear­ings on the sub­ject over the years, typ­i­cal­ly with obnox­ious titles such as Exam­in­ing Union Salt­ing’ Abus­es and Orga­niz­ing Tac­tics That Harm the US Econ­o­my.” At these hear­ings, the com­mit­tees have pre­dictably solicit­ed tes­ti­mo­ny from busi­ness own­ers about how they have been vic­tim­ized” by salt­ing campaigns.

In one instance, a House com­mit­tee heard tes­ti­mo­ny from the own­er of an upstate New York elec­tri­cal con­tract­ing com­pa­ny who had, accord­ing to an NLRB judge’s deci­sion issued only eleven days pri­or to the hear­ing, ille­gal­ly inter­ro­gat­ed, threat­ened, and fired union sup­port­ers who worked for him. But these tac­tics had no real way for­ward fol­low­ing Obama’s elec­tion in 2008.

An unforced error

The NLRB faced seri­ous obsta­cles dur­ing Obama’s pres­i­den­cy, most promi­nent­ly with the Supreme Court vacat­ing years of the board’s deci­sions as a result of con­gres­sion­al Repub­li­cans refus­ing to approve Obama’s nom­i­nees to the board. On the whole, how­ev­er, the Oba­ma-era NLRB made improve­ments to the labor law landscape.

As a result of the board’s 2011 deci­sion Spe­cial­ty Health­care, small­er groups of employ­ees who want to form a union for them­selves, such as the mem­bers of a par­tic­u­lar depart­ment, are now more eas­i­ly able to orga­nize on their own with­out need­ing to orga­nize oth­er groups of cowork­ers as well. In 2015, the NLRB imple­ment­ed new elec­tion rules with mod­ern­ized pro­ce­dures that have led to faster union rep­re­sen­ta­tion elec­tions. The board also over­turned deci­sions by the Bush-era board that had changed exist­ing law gov­ern­ing issues like decer­ti­fi­ca­tion elec­tions and joint employ­ers in ways that favored bosses.

In the ear­ly days of the Oba­ma admin­is­tra­tion, union-busters feared that the Bush board’s salt­ing deci­sions would also be on the Oba­ma board’s chop­ping block. This fear end­ed up being unfounded.

Inex­plic­a­bly, the Oba­ma NLRB denied union requests to recon­sid­er the Bush board’s deci­sions, stat­ing that it was not pre­pared at this time to devi­ate from prece­dent” and con­tin­ued to apply the new anti-salt standards.

The Oba­ma board’s con­found­ing course of action makes the sta­tus of this par­tic­u­lar bat­tle espe­cial­ly frus­trat­ing. Labor has cer­tain­ly suf­fered more con­se­quen­tial defeats in recent years, includ­ing the con­tin­ued expan­sion of right-to-work laws, the roll­back of col­lec­tive bar­gain­ing rights for state employ­ees, and the fail­ure of efforts for fed­er­al card check leg­is­la­tion.

Many of these defeats, how­ev­er, have result­ed in large part from state-lev­el polit­i­cal con­di­tions that will be extra­or­di­nar­i­ly dif­fi­cult to over­come in the near future. Fail­ing to restore the board’s pre­vi­ous salt­ing rules, on the oth­er hand, was an entire­ly unforced error.

Salt­ing under Trump

With Trump in the White House, Repub­li­can con­trol of the House and Sen­ate, and an open seat on the Supreme Court to fill, the Right can now get to work tar­get­ing labor.

Noto­ri­ous racist Steve King has rein­tro­duced the Truth in Employ­ment Act for the new leg­isla­tive ses­sion, along with oth­er anti-labor bills, such as the Nation­al Right to Work Act and a bill to repeal the Davis-Bacon Act, which keeps wages high for gov­ern­ment sub­con­tract­ing workers.

Some com­menters have sug­gest­ed that focus­ing on these bills would be a trap,” not­ing the unlike­li­hood of their pas­sage. While this may be true, leg­is­la­tion is only one of the Right’s poten­tial paths. Once Trump makes his NLRB appoint­ments and they receive Sen­ate approval, the Repub­li­can major­i­ty on the board could con­tin­ue to chip away at pro­tec­tions for salts or fur­ther soft­en penal­ties for com­pa­nies that dis­crim­i­nate against them.

And after Scalia’s seat is filled and the Supreme Court pro­hibits agency fees in the inevitable suc­ces­sor case to Friedrichs v. Cal­i­for­nia Teacher Asso­ci­a­tion, anti-union groups could pur­sue addi­tion­al cas­es to thwart union and work­er rights.

The chaot­ic first months of the Trump admin­is­tra­tion have pro­vid­ed the labor move­ment with lit­tle clar­i­ty as to what to expect in the com­ing years. Unions and work­ers will sure­ly face a vari­ety of attacks, and we will need to act as depend­able allies for oth­er social move­ments and oppressed groups as well.

We will need to make intel­li­gent deci­sions about how to focus our time and resources in the strug­gle against Trump. But it is clear that we need to be pre­pared for any­thing — Trump has shown that noth­ing is off the table. Salt­ing will not be the first tar­get of the union-busters, but the attacks on salt­ing over the last twen­ty years make clear that it is on their hit list.

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Nick John­son is a union lawyer in New York City.
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