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Toering Electric - NLRB Peppers Union Salts

More good news for employers! A union “salt” is a pro-union person who applies for a job at a non-union company for the purpose of attempting to persuade the other employees to join or form a union.  Not surprisingly, salts leave a bad taste in employers’ mouths.  The National Labor Relations Act (Act), however, prohibits employers from discriminating against employees who engage in certain protected union organizing activities.  Although many employers have argued that salts are not “employees” in the strictest sense, until recently the National Labor Relations Board (Board) has held that all applicants for employment are entitled to an implied presumption that they are protected as “employees” under Section 2(3) of the Act.  But in Toering Electric Co., 351 N.L.R.B. No. 18 (September 29, 2007), the Board held that only applicants who are “genuinely interested” in employment are entitled to protection as employees.

The Board’s Analysis
In Toering , a 3-2 majority of the full Board found that “the relationship between an employer and a putative job applicant who has no genuine interest in working for that employer is not the economic relationship contemplated by the Act.”  Rather, there must be an “actual or anticipated” relationship between the employee and the employer to receive protection under the Act.  When an applicant applies solely as part of a salting campaign, the applicant has no real intention of creating an economic relationship with the employer.  Consequently, the Act’s “concern with balancing the bargaining power between employers and employees does not extend to them.”  The Board, therefore, held that only those applicants who are genuinely interested in an employment relationship with the employer are entitled to protection as employees under Section 2(3).

Under the new standard, the Board’s General Counsel has the ultimate burden of proving an applicant’s genuine interest in employment.  The Board will no longer presume an interest.  The General Counsel initially must prove that the applicant applied or authorized another to submit his or her application.  The employer then must demonstrate that the employee lacked a genuine interest in employment.  The Employer may, for example, present evidence that the individual refused similar employment with the employer in the recent past; incorporated belligerent or offensive comments in his or her application; engaged in disruptive, insulting, or antagonistic behavior during the application process; or engaged in other conduct inconsistent with a genuine interest in employment.  None of this is unusual for a salt.  The General Counsel must then rebut the employer’s evidence and prove by a preponderance of evidence that the applicant was genuinely interested in employment.  The new rule levels the playing field and should reduce the amount of time and resources wasted dealing with salts.

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