A recent memo issued by the acting general counsel of the National Labor Relations Board (NLRB), William Cowen, could complicate how “salts”—union members who seek jobs with non-union employers to advocate for unionization—are protected under labor law. The guidance, which instructs regional offices to scrutinize the intent behind salts’ job applications, introduces a new obstacle for workers alleging anti-union discrimination.
Background on Union Salting
Union salting has long been recognized as a lawful organizing tactic. It allows union members to apply for jobs in non-union workplaces with the goal of promoting union activity from the inside. When these applicants are denied employment or dismissed, they can file unfair labor practice claims if the motivation is believed to be anti-union bias.
Cowen’s memo changes how these cases are approached by suggesting that NLRB investigators prioritize verifying whether the applicant genuinely wanted the job. In other words, did the applicant intend to work there or was their sole purpose to organize? If a salt is seen as disingenuous in their job pursuit, the employer’s decision not to hire or retain them may not be considered discriminatory.
Legal Experts Weigh In
Labor law attorneys and experts note this is a substantial shift. Previously, courts and the NLRB were less focused on motive, often deferring to the right of union members to apply for jobs regardless of purpose. The new approach puts the burden on workers to prove their dual intent: both to work and to organize.
Critics argue the policy could chill union activity by making it riskier and more burdensome for salts to come forward with claims. Employers may also feel emboldened to dismiss job applicants or new hires they suspect of being salts, knowing the evidentiary bar for retaliation has effectively been raised.
Implications Going Forward
This memo does not change the law per se but signals a shift in enforcement priorities that could have widespread effects. For unions, it presents a strategic dilemma—how to continue salting campaigns while mitigating legal risk. For employers, it may offer a path to more aggressively screen or reject applicants tied to union movements.
As always, how this plays out will depend on the facts of individual cases and the evolving approach of regional NLRB offices. But the signal is clear: salting may still be legal, but proving discrimination just got harder.
For further details, please contact the lawyers at Tobia & Lovelace Esq., LLC at 201-638-0990.