NLRB Acting General Counsel issues memorandum on union salting

As a general rule, under the National Labor Relations Act (NLRA), job applicants are protected from discrimination. In FES (A Div. of Thermo Power), 331 NLRB 9 (2000), the NLRB outlined a test to determine whether an employer discriminated against a job applicant because of their union affiliation. Per FES, to demonstrate union discrimination, the NLRB General Counsel (GC) must establish “(1) that the [employer] was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants.” Id. at 12. Once the GC establishes the required elements, the burden shifts to the employer to establish that “it would not have hired the applicants even in the absence of their union activity or affiliation.” Id. 

In Toering Electric Company, 351 NLRB 225 (2007), the NLRB determined that the protections under the NLRA were being abused in salting cases where job applicants (i.e. salts) “have engaged in conduct clearly intended to provoke a decision not to hire them, or have engaged in antagonistic behavior toward the employer that is wholly at odds with an intent to be hired” (emphasis in original). Accordingly, the NLRB added the following requirements to the GC’s case: “(1) there was an application for employment, and (2) the application reflected a genuine interest in becoming employed by the employer.” 351 NLRB 225, 233. The GC, therefore, had to present evidence regarding the first element; as to the second element, the employer had to put at issue the genuineness of the applicant’s interest. The NLRB further stated, “[W]hile we will no longer conclusively presume that an applicant is entitled to protection as a statutory employee, neither will we presume, in the absence of contrary evidence, that an application for employment is anything other than what it purports to be.” Id.

Now, with GC Memorandum 25-08, NLRB investigators must first assess whether the salt was genuinely seeking employment, before moving to other parts of the investigation. Specifically, the memo states, “Regions should focus their initial investigative efforts and resources on obtaining evidence from the charging party. Regions should ensure that the evidence gathered bears on the two legal issues in Toering: whether the alleged discriminatee applied for employment and possessed a genuine interest in being hired.” 

After gathering the relevant evidence from the charging party, investigators then assess whether the job applicant is entitled to protection under the NLRA. In the event the investigator concludes the job applicant was a bona fide applicant or is unable to decide the issue without a complete investigation, “the Region should proceed to solicit the [employer’s] evidence, complete its investigation and make a final determination. Thus, a full investigation of a salting case is only warranted when the charging party’s evidence demonstrates that the Toering factors have been satisfied or obtaining employer evidence is otherwise appropriate.” Accordingly, the effect of the memorandum is that investigations will become more burdensome on the front end, and there is a likelihood that an employer need not present evidence before the charge is dismissed. 

It is important to note that GC memorandums are not binding law; however, they do provide guidance regarding the agency’s policies and procedures. GC Memorandum 25-08 offers employers a clearer path for defending against salting claims and potentially lightens their burden with respect to investigations. However, employers should take note that discriminating against applicants solely for union affiliation remains unlawful.