July 25, 2025 – Memorandum GC 25-08
The NLRB’s Acting General Counsel (GC), William Cowen, has issued new marching orders for how the agency will investigate “salting” cases – when union organizers apply for jobs with the aim of organizing (or provoking) the employer.
As unfair as it may seem, “salting” is protected under the NLRB, which prohibits employers from discriminating against applicants for union activity or support. As a result, an employer who refuses to hire and/or disciplines a “salt” may face an unfair labor practice charge (ULP).
However, this memo replaces prior guidance and makes it clear there is more room to challenge whether a “salt” is a genuine job applicant.
The Core Legal Test
Salting cases now require the NLRB’s General Counsel to prove both:
- The FES Standard –
- The employer was hiring or had concrete plans to hire.
- The applicant met the employer’s stated job requirements (or the employer’s requirements weren’t consistently applied or pretextual).
- Anti-union bias factored into the employer’s refusal to hire/consider the applicant.
- The Toering Standard –
- The applicant actually applied (or authorized someone to apply for them).
- The applicant had a genuine interest in working for the employer – not just stirring the pot.
Impact on Region Investigations
Unlike civil court, each NLRB Region makes the determination on whether a complaint should issue from a charging party’s claims. Typically, the investigating board agent will seeking information and evidence from both the charging party and employer. However, under this memo, Regions are directed to focus their efforts on gathering evidence from the charging party as part of their investigation before seeking evidence from the employer. Based on the charging party’s evidence, the Region must decide whether to dismiss the charge, absent withdrawal, and must refrain from conducting further investigation or soliciting employer evidence. And, where the evidence is unclear, Regions must submit the case to the Division of Advice, which provides legal guidance to the agency’s regional offices.
Signs an Applicant May Not Be “Genuine”
An applicant’s “genuine interest” is challenged with evidence such as:
- The applicant previously turned down similar work
- The application contains hostile, antagonistic, or “gotcha” comments (e.g., hobbies “filing unfair labor practice charges”)
- They were disruptive or insulting in interviews
- The application is incomplete, stale, or otherwise suspicious (think: fake employers, missing references, or gaps in employment)
Pro Tip: Just because someone says they’d accept the job doesn’t prove genuine interest – actions, history, and documentation matter.
Backpay in Salting Cases
Even if the NLRB finds a violation, Oil Capitol limits backpay for salts:
- The GC must show how long the salt would actually have stayed
- No presumption of indefinite employment
- Factors include union campaign plans, past salt job lengths, and any agreements about assignment duration
Why This Matters for California Employers
California’s active labor environment makes salting campaigns more likely. This memo arms employers with practical ways to defend against bad-faith salting charges – especially by:
- Documenting suspicious application behavior
- Maintaining consistent, lawful hiring standards
- Keeping records of disruptive conduct
- Asking questions about why the applicant is interested in the job and noting deficient responses
Bottom Line: In the salting game, intent matters. If a “job applicant” is really just applying for a union campaign stunt, this new guidance gives California employers tools to prove it.
