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New NLRB Guidance On Salts

Volume 7, Issue 5
April 18, 2008

The National Labor Relations Board's ("NLRB") Office of the General Counsel recently issued two guideline memoranda on the union practice of "salting" and the cases of Toering Electric Company, 351 NLRB No. 18 (Sept. 2007) and Oil Capitol Sheet Metal, 349 NLRB No. 118 (May 2007). "Salting," as defined in Oil Capitol, is the act of a trade union in sending in a union member or members, paid or unpaid, (called "salts") to an unorganized job site or employer to obtain employment with the object of: (1) organizing the employees; or (2) precipitating unfair labor practices in order to weaken that target employer. The new guideline memoranda shed additional light on the impact of Toering and Oil Capitol on unfair labor practice charges stemming from refusals to hire salt applicants.

Oil Capitol is relevant to those instances where the NLRB proves that an employer violated the Act when they failed to hire a salt and the amount of backpay to which the salt is entitled. Previously, it was presumed that a salt applicant would have continued indefinitely in the Respondent's employ for backpay purposes. Oil Capitol held that the NLRB must prove that the salt applicant who was denied employment would have worked the entire period for which backpay is sought. This should impact liability considerations for employers considering refusing to hire a suspected salt, especially under circumstances demonstrating that the applicant would have been a short term employee.

Toering set forth a new requirement for a job applicant to be protected under the National Labor Relations Act, namely that they have a genuine interest in seeking to establish an employment relationship with the employer. In fact, once an employer raises a question as to the applicant's actual interest in going to work for the employer, the NLRB will have the ultimate burden of proving this genuine interest in any refusal to hire case in the salting context. As explained by the General Counsel, this genuine interest requirement has two components: (1) the submission of a bona fide application; and (2) the genuine interest in becoming employed by the employer.

Employers should note that the application requirement is met if the salts actually apply for employment or authorize someone to do so on their behalf. Hence, the submission of applications in batches does not preclude bona fide applicant status so long as the applications were authorized to be submitted by the applicants in question.

The General Counsel identified potential conduct which employers might raise to question the genuine interest of an applicant. Employers who may face salting should keep an eye out for applicants who have:

  • recently refused similar employment with the employer;
  • made belligerent or offensive comments on the application;
  • engaged in disruptive, insulting, or antagonistic behavior during the application process;
  • engaged in other conduct inconsistent with the genuine desire to establish an employment relationship with the employer; and/or
  • submitted a stale or incomplete application (coupled with other circumstances supporting that the applicant did not genuinely seek to establish an employment relationship).

When deciding whether to refuse to hire a suspected salt applicant based upon an indication that they do not have a genuine interest in being employed, employers should also keep an eye out for the following, which, according to the General Counsel, may establish proof that an applicant had such a genuine interest or otherwise refute the employer's showing:

  • the submission of an application in accordance with the employer's procedures;
  • the applicant's arrival on time to interviews;
  • whether there were follow-up inquiries regarding the application;
  • whether the applicant had relevant work experience with other employers;
  • whether the applicant was also seeking similar employment with other employers;
  • the lack of evidence suggesting that the applicant was there for any reason other than to apply for work;
  • whether conduct engaged in that was inconsistent with a desire for an employment relationship was in response to inappropriate actions or comments by management interviewers; and/or
  • whether it can be established that an applicant's union responsibilities will not interfere with his obligations to the employer.

The General Counsel indicated that credible direct testimony from an applicant that he or she would have accepted the position if it had been offered may also be used to prove a salt applicant's genuine interest.

More information regarding the Toering and Oil Capitol cases and the General Counsel memoranda can be found at:

http://www.kzalaw.com/engine/file_writing/file_uploads/zSpQ4HP9F8ZiBXdn.pdf

http://www.kzalaw.com/engine/file_writing/file_uploads/t1dmLLtJ0Bj7fFqs.pdf

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.