NLRB Memo Shifts Tone On Defenses Against Union 'Salting'

With the current lack of a quorum on the National Labor Relations Board, new legal developments in the labor world have been slow during the first year of President Donald Trump's second administration.

Even without new cases, however, the labor world has been active. For example, on Nov. 13, the union representing Starbucks employees began an unfair labor practice strike that they are dubbing the Red Cup Rebellion.¹

The Starbucks strike represents just another tactic in a long-standing attempt to organize the company. In that organizing effort, the union has employed a number of tactics, including the practice of salting.

Salting is a union organizing tactic that the NLRB defines as a situation in which a union sends an applicant to an employer for the express purpose of obtaining employment in order to organize the employees at that location.

The important question in salting cases brought before the NLRB has typically been whether, and under what circumstances, salts — i.e., the individuals who are seeking employment for the purpose of organizing — receive the same protections as other employees under the National Labor Relations Act.

A Background on Salting and the NLRB's Memo

On July 24, the NLRB's acting general counsel, William Cowen, provided guidance memorandum 25-08, addressing the question of how the board should determine whether an employment applicant who is salting an employer is protected under the NLRA.² The memo provides new insight into the defenses that employers can utilize in salting cases.³

In his memorandum, Cowen specifically sought to provide guidance to the NLRB's regional offices for investigating salting cases in the wake of the NLRB's 2007 decision in Toering Electric Co.⁴

The Toering case altered the legal standard that applies to claims that an employer unlawfully discriminated against a salting applicant by denying employment to that individual.

Generally, job applicants are considered prospective employees who carry protections under the NLRA. In the Toering case, however, the NLRB recognized a concern that has long been raised by employers in salting cases — whether a salt had any legitimate interest in gaining employment.

In particular, employers have often argued that some salts engage in conduct that is designed only to provoke a decision not to hire them, or otherwise engage in conduct that shows no legitimate interest in obtaining employment with the employer. In other words, despite appearing to be an applicant on paper, the salt instead has no interest in working at the employer under any circumstances.

The acting general counsel's memorandum notes that such salting tactics include the submission of "applications by individuals who either lacked an interest in obtaining employment or were unaware of the submission," and "weaponizing Board processes by filing unfair labor practice charges to inflict substantial litigation costs on the targeted employer or to drive the non-union element out of business."^[5]

The NLRB's Toering decision attempted to separate salting tactics where the applicant has some legitimate interest in the job versus salting scenarios where the applicant has none at all.

Applying the Toering decision to existing NLRB salting law, the acting general counsel's memorandum, partially quoting prior precedent, explains that the following elements must be satisfied in order to bring a successful salting case:

• The employer was hiring;
• "[T]he applicant had experience or training relevant to the announced or generally known requirements";
• "[A]ntiunion animus contributed to the decision not to hire the applicant"; and
• The applicant was genuinely interested in getting a job with the employer.⁶

Applying the Memo

Applying this legal standard, the acting general counsel's memorandum provides specific guidance to the NLRB regional offices on how to investigate salting cases.

First, the NLRB regional offices, when investigating salting charges, are directed to focus on the Toering requirement that the applicant possesses genuine interest in obtaining a job from the employer.

To that end, the regional offices are directed to investigate the circumstances surrounding the salt's employment application, including whether the salt submitted the application themself, or whether someone else submitted it on their behalf.

With respect to mass applications sent to an employer, the acting general counsel notes that the regions should ascertain whether the individual applicants actually authorized that application be made on their behalf.

While noting that the act of submitting mass applications does not render the applications automatically unprotected, the acting general counsel noted the importance of obtaining evidence concerning the circumstances of such a mass submission.

Second, the acting general counsel directs the regional offices to obtain evidence on the applicant's genuine interest in employment. Such evidence might include whether the applicant has relevant experience or whether the applicant's job history confirms legitimate interest in the position.

Conversely, the evidence might suggest the application appears to be designed only to generate controversy or a dispute, without any corresponding indicia of interest in the position.

Third, the acting general counsel directs the regional offices to determine whether there is evidence that meets the four-part Toering test before taking evidence from the employer on why the particular applicant did not receive the job.

Finally, the acting general counsel provides guidance on determining back pay calculations in meritorious salting cases.

In particular, the acting general counsel notes that the presumption that a salt would be entitled to back pay from the date of the discriminatory denial of hire until a legitimate offer of employment is made, does not apply to salting cases.

Instead, there must be evidence presented that the salt would have actually worked for the employer in order to justify a back pay award.

Takeaways

For employers, there are several takeaways from the acting general counsel's memo on salting.

Salting applicants continue to have potential protections under the NLRA, so employers should be careful to document why applicants did not receive jobs, and make sure they are consistent in all hiring decisions.

Salting may signal the beginning of a far larger campaign to organize an employer, such as what occurred with Starbucks. If they experience salting, employers should take care to look for other signs of employee unrest and organizing, so that issues can be dealt with before they spiral into a larger campaign.

Employers should document any unusual issues surrounding applications, including the circumstances surrounding submission and comments made by the applicant that demonstrate a lack of interest in the position.

Additionally, employers should be certain to only advertise positions that must be filled, so as not to generate salting applications and then have to explain why certain advertised positions were not ultimately filled.

The acting general counsel's memorandum displays a change of tone by the NLRB for employers that are forced to defend salting charges. Employers may have various defenses that would have been rejected under prior administrations, but may gain traction under the direction of the acting general counsel's new memorandum.

Lastly, if liability is found in a salting case, employers may still have arguments against damages, including limiting back awards.

Conclusion

It will take some time for the acting general counsel's guidance to make its way into regional investigations, and ultimately into NLRB cases.

For employers like Starbucks, salting can signal the beginning of an active organizing campaign, so it should not be ignored or viewed only as a minor nuisance.

Employers that are confronted with salting cases should make sure to keep abreast of what is likely to be an evolving legal landscape for how such unfair labor practice cases are litigated.

Footnotes

1. See https://sbworkersunited.org/our-strike/.

2. 29 U.S.C. Sec. 151 et seq. (2000).

3. NLRB Memorandum GC 25-08.

4. 351 NLRB 225 (2007).

5. Toering, at 229-31.

6. NLRB Memorandum GC 25-08.