Acting NLRB General Counsel Issues Guidance for Salting Cases

On July 24, National Labor Relations Board Acting General Counsel (AGC) William B. Cowen issued Memorandum GC 25-08 (the “Salting Memo”), which provides case processing guidance to the Regions for investigating refusal-to-hire and refusal-to-consider-for-hire cases that arise in the “salting” context. 

What Are Salting Cases?

“Salting” is defined in the Salting Memo as “the act of a trade union in sending a union member or members to an unorganized jobsite to obtain employment and then organize the employees.” Job applicants are considered employees under the National Labor Relations Act (NLRA or the “Act”) for purposes of being protected from discrimination under the Act. 

The Salting Memo reiterates the Board’s legal standard for salting cases set forth in Toering Elec. Co., 351 NLRB 225 (2007) and FES, 331 NLRB 9 (2000). Under this standard, the general counsel bears the burden of establishing a violation of the Act by demonstrating (i) that the employer was hiring or had concrete plans to hire; (ii) that the applicant had experience or training relevant to the job requirements as announced or generally known (or that the employer has not adhered uniformly to such requirements or the requirements were pretextual); (iii) that antiunion animus contributed to the decision not to hire; and (iv) that the applicant had a genuine interest in establishing an employment relationship with the employer.

Case Processing Guidance

Cowen confirmed that Toering governs all salting cases, and that Regions should gather evidence from the charging party bearing on two legal issues: (i) whether the alleged “salt” applied for employment and (ii) whether they possessed a genuine interest in being hired. 

Investigating the Application Component 

The memo instructs Regions to focus their initial investigative efforts and resources on obtaining evidence from the charging party before soliciting evidence from the employer, which includes obtaining copies of all application materials. 

Cowen notes that in salting campaigns, unions sometimes submit mass or batch applications to an employer. The Salting Memo makes clear that applications submitted en masse do not, standing alone, preclude a finding that any applicant is genuinely interested in employment, provided the applicant authorized submission of the application on their behalf. Cowen instructed the Regions to determine whether such authorization occurred through testimony of the applicant and the submitter of the application. 

Investigating Genuine Interest

While the general counsel’s prima facie burden is to establish only that an application was submitted, AGC Cowen instructs the Regions to gather evidence of an applicant’s genuine interest during the initial investigation. Regions should do so, he says, because employers almost invariably contest the genuineness of the applicant’s interest, and the general counsel must prove genuine interest by a preponderance of the evidence.

The Salting Memo instructs the Regions to probe witnesses to test the legitimacy of their claim by asking questions such as “whether the applicant recently refused similar employment with the employer; engaged in disruptive, insulting, or antagonistic behavior during the application process; followed the employer’s established procedures when applying; timely arrived for the interview(s); made follow-up inquiries regarding the application; had relevant work experience with other employers; or was actively seeking similar employment with other employers. 

In addition, Regions are instructed to request documentary evidence such as applications, resumes, social media posts, emails, and other communications between the applicant and the employer or union that refer to the application process. Cowen also urges Regions to vet the contents of applications and resumes for statements that evince a lack of genuine interest in working for an employer—e.g., when a resume lists “reading the National Labor Relations Act” as a hobby or “applying pressure on employers to recognize our union” as a skill. That an applicant previously worked for a unionized employer or held a position with a union is not disqualifying, but can be a factor in the sincerity analysis.

The memo instructs the Regions to take evidence from the employer only “when the charging party’s evidence demonstrates that the Toering factors have been satisfied or obtaining employer evidence is otherwise appropriate.”

Determining Backpay in Meritorious Cases

Determining the backpay period in a salting case can be challenging. What if an applicant asserts that if hired, they would have worked for the employer indefinitely? AGC Cowen instructs the Regions that the applicant’s word alone is insufficient to establish this. Citing Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007), AGC Cowen explains that the general counsel needs to present affirmative evidence that the applicant, if hired, would have worked for the employer for the backpay period claimed. If the general counsel is unable to do this, then the applicant will not be considered entitled to the job. Regions are instructed to use pre-complaint backpay investigations to determine the appropriate backpay period. Factors considered in determining the appropriate period include the applicant’s personal circumstances, instructions or agreements between the applicant and union concerning the anticipated duration of the assignment, and historical data regarding the duration of employment of alleged salts and other individuals in similar organizing campaigns. 

AGC Cowen adds that Regions should afford the employer an opportunity to provide evidence that would reduce or negate liability before making a final determination regarding the backpay period and any backpay owed.

What Can Employers Take from This?

The Salting Memo does not change the longstanding law that an employer may not refuse to hire an applicant because of their union activities or sympathies. In such a case, the general counsel retains the burden of establishing refusal-to-hire/consider-for-hire cases, and the thorny issue of an applicant’s genuineness. However, the Salting Memo demonstrates a change in tone from the prior administration, which sought to challenge Toering. The Salting Memo additionally gives employers examples of factors that can indicate an applicant does not have a genuine interest in employment, as well as an outline of what a Region’s investigation will encompass in “salting” cases going forward.