“Salting” is an organizing tactic in which union supporters seek employment at a non-union employer with the goal of organizing the workforce once hired. For many years, unions used salts as an effective tool to organize non-union workforces, particularly in the construction industry. In 2007, the NLRB issued two decisions (both by 3-to-2 margins), which limited the effectiveness of salts. Last week, the office of the NLRB’s General Counsel issued two Memoranda to its Regional Offices that provide insight into how the NLRB will investigate and litigate salting cases under the  new standards.

In Oil Capital Sheet Metal, Inc., 349 NLRB No. 118 (June 6, 2007), the NLRB ruled that it would no longer assume that a salt who was not hired because of his or her union activity would have continued to work indefinitely, thereby entitling the salt to back pay until the employer makes a valid hiring offer. Instead, the NLRB’s General Counsel must prove that the salt, if hired, would have worked for the employer for the period claimed. In Toering Elec. Co., 351 NLRB No. 18 (Sept. 27, 2007), the NLRB ruled that a salt applying for a job is not protected unless he or she is “genuinely interested” in an employment relationship with the hiring employer. The NLRB bears the burden of proving the salt’s “genuine interest”and bona fide job application.

The General Counsel issued a Guideline Memorandum concerning Toering, which is significant in several respects. To begin, it notes that, although the holding in Toering is broadly-worded and could be interpreted as applying to all discriminatory refusal-to-hire cases, the General Counsel instructs the NLRB’s Regional Office that Toering’s burden-of-proof standards apply only in the salting context. The Memorandum also describes the types of evidence needed to establish a salt’s bona fide application for employment. In Toering, a union organizer mailed his resume, along with the resumes of 18 other union members, in response to the employer’s “help wanted” ad. The Memorandum cautions that, in cases involving batch applications, the Regions should investigate to determine whether the applicants, in fact, authorized the submitter(s) to send applications on the applicants’ behalf.

Lastly, the Memorandum reminds the Regional Offices that, under Toering, an employer’s motivation for making an alleged discriminatory hiring decision does not become relevant unless there is evidence sufficient to establish that the salt had a genuine interest in employment. Examples of evidence tending to support a salt’s genuine interest in employment include: submission of an application consistent with the employer’s procedures (even if applications are submitted “en masse” and at the request of a union); on-time arrival for interviews; follow-up inquiries regarding the status of the application; relevant work experience; and/or whether the applicant also sought similar employment with other employers. On the other hand, the following are mentioned specifically as examples of evidence indicating a lack of genuine interest: belligerent or offensive comments on the  application; disruptive, insulting, or antagonistic behavior during the application process; and applications that are “stale” or incomplete.

The General Counsel issued a similar Memorandum regarding Oil Capitol, which notes that the shifting of the burden of proof concerning the duration of a salt’s back-pay period “will significantly affect” investigation and litigation of salting cases. Because, in the construction industry employees frequently move from job to job, the General Counsel will now need to collect “affirmative evidence” that the salt would have worked for the employer the entire back-pay period.

In light of these employer-friendly rulings and instructions, employers that believe they may be susceptible to union organizing tactics, such as salting, should review their application processes and practices to ensure that any instances of inappropriate applicant conduct during the hiring process are documented. Taking such steps will improve an employer’s ability to rebut the NLRB’s attempts to prove an applicant’s genuine interest in employment.