Labor: NLRB Modifies “Salting” Case Standards
By Nick A. Nykulak
“Salting” is a union organizing strategy in which paid or unpaid union supporters or organizers (called “salts”) seek employment with a non-union company with the goal of organizing the company’s workforce. Often times, “salts” are terminated or laid off from employment and the legality of those employment decisions are tested. Last year, the National Labor Relations Board (NLRB) issued two decisions, Toering Electric and Oil Capitol Sheet Metal, which altered the burden of proof for proving discrimination and awarding back pay in salting cases. In response to these decisions, the Office of the General Counsel for the NLRB issued two memorandums establishing guidelines for its personnel to follow when investigating and prosecuting these types of cases.
In Toering Electric, the NLRB held that a salt is not presumptively entitled to protection against discrimination under the National Labor Relations Act (Act) based upon union affiliation or activity, unless the General Counsel for the NLRB can prove the salt made a bona fide application for employment and was “genuinely interested” in becoming an employee of the hiring employer. Before the Toering decision, the salt’s genuine interest in employment with the hiring employer was presumed. The memorandum issued by the Office of the General Counsel for the NLRB provides that the General Counsel must prove the salt had actually applied for employment or had specifically authorized someone to do so on his behalf. When multiple employment applications are submitted for a position with the hiring employer, the General Counsel must investigate whether the applicants authorized union submitters to do so on their behalf.
The memorandum further provides that a hiring employer may counter the General Counsel’s evidence and raise an issue as to whether the salt had a “genuine interest” in employment by establishing that: (1) the salt had recently refused similar employment with another employer; (2) the salt made belligerent or offensive comments on the employment application; (3) the salt engaged in disruptive or antagonistic behavior during the application or interview process or engaged in conduct otherwise inconsistent with a genuine interest in employment; or (4) the salt’s application for employment was stale or otherwise incomplete.
If the hiring employer can prove any of these elements, the salt would not be entitled to protection under the Act for discrimination, unless General Counsel could then show through contrary evidence that the salt: (1) would have accepted the position with the hiring employer; (2) properly followed the employer’s application procedures; (3) possessed the relevant work experience required; or (4) was seeking similar employment with other employers. The General Counsel could also establish, through contrary evidence, that (5) the salt’s activity with the union would not interfere with working for the hiring employer.
The Board’s decision in Toering Electric bolsters an employer’s ability to defend against frivolous salting practices meant solely to cause economic damage to the hiring employer where the union salt never intended to enter into an employment relationship with the hiring employer.
Similarly, the NLRB’s decision in Oil Capitol Sheet Metal further protects employers from frivolous salting practices by requiring the General Counsel to prove that the salt is entitled to back pay. In Oil Capitol, the NLRB held it would no longer apply a rebuttable presumption against the hiring employer that a salt who was not hired because of his union activity would have continued to work indefinitely for the employer and is entitled to back pay for the period from the date of the discrimination until the employer made a valid hiring offer. Oil Capitol places the burden on the General Counsel to establish if (and for how long) the salt would have worked for the hiring employer, in order to determine back pay.
The second memorandum issued by the Office of the General Counsel instructs its personnel that in order to establish a salt’s back pay, General Counsel must consider whether the salt’s employment was temporary or limited in duration, analyze the union’s salting policies and practices to determine how long the salt would have been employed, analyze the union’s plans against the targeted employer, look to union agreements with the salt for instructions regarding the salt’s anticipated duration of employment and examine historical information regarding the duration of a typical salt’s employment. The Oil Capitol decision and the elimination of the rebuttable presumption against the employer will limit the back pay due to a salt who is found to have been discriminated against under the Act.
If you have any questions regarding the guidelines discussed in this article, please feel free to contact Alan Ross or Nick Nykulak for more information.