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NLRB tightens up on "salts."
October 03, 2007 by Ross Runkel at LawMemo
A "salt" is a job applicant sent by a union to either (a) get a job and advocate for unionism from within, or (b) set the employer up for an unfair labor practice.
It is, of course, unlawful for an employer to refuse to hire an applicant merely because the applicant plans on expressing pro-union views.
In Toering Electric Company, 351 NLRB No. 18 (September 29, 2007), the NLRB (3-2) has modified the rules for the application of Section 8(a)(1) to employer refusals to hire or to consider hiring an applicant because of union considerations, requiring the General Counsel to prove that an applicant was "genuinely interested in seeking to establish an employment relationship with the employer."
The Board majority said:
"Section 8(a)(3) of the Act makes it an unfair labor practice for an employer 'by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .' The protection of this provision has been extended to applicants for employment. Consequently, an employer can violate Section 8(a)(3) by refusing to hire or to consider hiring an applicant because of union considerations."In many instances, there is no question that an individual who applies for work with an employer does so pursuant to a good-faith interest in accepting a job if offered on acceptable terms. However, in some cases, it is apparent that alleged applicants have no such interest. In this case, we address such behavior under the standard adopted by the Board in FES for determining whether there has been a discriminatory refusal to hire or consider for hire. First, we define an applicant entitled to statutory protection against hiring discrimination as someone genuinely interested in seeking to establish an employment relationship with the employer. Second, we impose on the General Counsel the burden of proving under FES that an alleged discriminatee meets this definition.
"Requiring that the General Counsel prove an applicant's genuine interest in securing employment is essential to the effective administration of the Act. Our decision today will insure that only those for whom Congress intended statutory protection as actual or potential employees will receive it. As discussed below, the Board's experience has shown that in some hiring discrimination cases, particularly those involving 'salting' campaigns, unions submitted batched applications on behalf of individuals who were neither aware of the applications nor interested in employment opportunities with the employer. In other cases, individuals submitted applications but were not interested in obtaining employment with the employer. Their applications, sometimes accompanied by conduct plainly inconsistent with an intent to seek employment, were submitted solely to create a basis for unfair labor practice charges and thereby to inflict substantial litigation costs on the targeted employer. The absence of a clear and consistently applied requirement that the General Counsel must prove an applicant's genuine interest in securing employment has opened the door to these abusive tactics. By imposing this requirement under FES, we shall prevent those who are not in any genuine sense real applicants for employment from being treated by the Board as if they were."
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