NLRB General Counsel Gets Salty: Directs Regions to Take a Closer Look at Whether an Applicant for Employment in a ‘Salting’ Case Is Entitled to NLRA Protections

On July 24, William B. Cowen, the acting general counsel (GC) of the National Labor Relations Board (NLRB or Board), issued GC Memorandum 25-08 (Memo) to the Board’s regional offices (Regions) to provide guidance on determining whether a “union salt” is protected by the National Labor Relations Act (NLRA or Act).

In this policy announcement welcomed by employers, the GC added a few important and necessary hurdles for union salts to receive protection and gave employers a road map for defending against unfair labor practice charges.

Background

“Salting” is a unionization tactic where union organizers, or “salts,” obtain employment at a nonunion workplace with the goal of organizing the workforce. This is an effective strategy for unions, as it allows the union to discreetly build support for an election as well as permits unions to organize the staff from the inside out. Employers may feel tempted to take a hard stance against hiring union salts, but they should be aware of the legal protections afforded to these applicants.

Legal Standard

In NLRB v. Town & Country Elec., Inc., 516 U.S. 85 (1995), the U.S. Supreme Court held that salts applying for a job generally are considered “employees” under the Act and are protected from discrimination. In addition, under NLRA Section 8(a)(3), employers cannot discriminate against applicants who are union salts based on their union behavior.

However, the salt can lose the Act’s protection, allowing an employer to legally refuse to hire a salt where the salt has engaged in conduct clearly intended to provoke a decision not to hire.

In FES (A Division of Thermo Power), 331 NLRB 9, 12-13 (2000), enfd. 301 F.3d 83 (3d Cir. 2002), the Board stated that in order to establish a violation of the NLRA for refusing to hire a union salt, the GC must demonstrate by a preponderance of the evidence that:

1. The employer was hiring or had concrete plans to hire.
2. The applicant had experience or training relevant to the announced or generally known requirements.
3. An antiunion bias was part of why the applicant was not hired.
   
   Once the GC establishes the required elements, the burden shifts to the employer to establish that it would not have hired the union salt even in the absence of the salt’s union activity.
   
   The Memo in no uncertain terms establishes the policy that the initial investigation now must establish two additional criteria:
4. An application for employment was properly submitted.
5. The applicant reflected a “genuine interest in becoming employed.”

In emphasizing the applicant’s genuine interest, the GC relied on Toering Electric Company, 351 NLRB 225 (2007).

Furthermore, the Memo instructs the Regions to focus their initial investigations on obtaining evidence from the charging party – not the employer. If no evidence of an application being submitted or a genuine interest in becoming employed exists, the Memo directs the Regions to dismiss the Charge without seeking evidence from the employer.

So, if Required, How Best Can an Employer Challenge a Salt’s Genuine Interest in Becoming Employed?

The Memo expressly states an employer may contest an applicant’s genuine interest by presenting evidence that the salt:

1. Recently refused similar employment
2. Made belligerent or offensive comments on the application
3. Displayed disruptive or antagonistic behavior during the application process
4. Engaged in conduct inconsistent with genuine interest in employment
5. Submitted a stale or incomplete application

Once the employer has placed the genuine interest of the salt at issue, the burden shifts back to the GC, who must prove the genuineness of the application by a preponderance of the evidence.

Takeaways: What Employers Should Do

Importantly, GC memoranda are not binding law; however, they do indicate how the Regions will approach litigating salt cases. Here are a few key takeaways for employers:

1. Employment Discrimination: Discriminating against applicants due to union affiliation remains unlawful, and employers should not refuse an applicant solely for the applicant’s union affiliation.
2. Lawful Basis for Refusing to Hire: While discrimination against union views remains illegal, nothing requires an employer to accept or ignore independent conduct such as an applicant submitting fraudulent or misleading resumes – so, closely review the resume. Other red flags to look for on applications include:
   • Failure to provide references
   • Short employment stints with numerous employers
   • Gaps in employment
   • Suspicious email addresses
   • Appearing extraordinarily overly qualified for the position
3. Detailed Recordkeeping: Employers should keep detailed records to ensure that if a Charge is filed, they have a nondiscriminatory rationale for refusing to hire an applicant. Specifically, employers should note whether:
   • The applicant followed the employer’s established procedures when applying.
   • The applicant followed the employer’s established procedures when applying.
   • The applicant made follow-up inquiries regarding the application/interview.
4. Review Applicant Resumes for Hostile Statements: The Memo outlines a number of statements on resumes that evidence the applicant does not have a genuine interest in applying for the job, such as:
   • “Applying pressure on employer to recognize our union” as a skill
   • “Exposing employers who commit unfair labor practices” as a skill
   • “Filing charges” as a skill

To avoid potentially costly litigation and other financial exposure, if an employer is faced with an applicant who is a suspected salt, we encourage you to immediately reach out to the BakerHostetler Labor Relations team so that we can assist you and your organization.

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