Salts Without Genuine Interest in Employment Are Not Protected from Discriminatory Refusal to Hire
In a victory for nonunion employers targeted by union salting campaigns, the National Labor Relations Board (NLRB or Board) has held that only job applicants “genuinely interested” in employment with an employer are protected by the National Labor Relations Act’s (NLRA) prohibition against discrimination on the basis of union affiliation or activity.
The Board also held that the NLRB general counsel prosecuting an unfair labor practice charge on behalf of such an applicant bears the burden of proving the applicant’s genuine interest. This new requirement will “prevent those who are not in any genuine sense real applicants for employment from being treated by the Board as if they were,” announced the Board.
While salting has been defined as “the act of a trade union in sending a union member or members to an unorganized jobsite to obtain employment and then organize the employees,” noted the Board, the immediate objective of a salting campaign “may not always be organizational, and the role of an individual ‘salt’ who applies for work may not always be to obtain employment.” In some hiring discrimination cases, unions have submitted batched applications on behalf of individuals who were neither aware of the applications nor interested in employment with the employer. In other cases, the individuals submitted their own applications but engaged in conduct inconsistent with an intent to seek employment, applying strictly to create a basis for unfair labor practice charges and to inflict substantial litigation costs on the targeted employer. This is not the type of economic relationship contemplated and protected by the NLRA, said the Board. Such individuals cannot be discriminatorily denied the opportunity to be employees because they are not genuinely seeking to be employees. Therefore, they are not “employees” as defined and protected by the NLRA. To hold otherwise would enable the devotion of Board resources to extended litigation where there was no actual loss of an opportunity for work.
The Board recognized that salting campaigns may involve protected activity and that “some salts, paid or unpaid, may genuinely desire to work for a nonunion employer and to proselytize co-workers on behalf of a union.” The Board said that its decision does not immunize employers “from lawful economic pressure resulting from labor disputes. However, there is a meaningful distinction between direct economic warfare between parties to labor disputes and the subversion of the Board’s processes by one party for the objective of inflicting economic injury on the other.”
To better ensure against such subversions, the Board decided to abandon the presumption that anyone who applies for a job is a protected “employee.” Instead, in all hiring discrimination cases, the general counsel will bear the burden of proving that the alleged discriminatee was an applicant entitled to protection as a statutory “employee.” This burden has two components. First, the general counsel must provide evidence that the individual applied for employment with the employer or that someone authorized by the individual applied on his or her behalf as an agent. Second, once the general counsel has done this, and if the employer has shown evidence that calls into question the genuineness of the applicant’s interest, then the general counsel must rebut that evidence and prove by a preponderance of the evidence that the applicant was genuinely interested in working for the employer. Only after this burden has been met will the issue of the employer’s possibly discriminatory motive in refusing to hire the individual become relevant.
Toering Electric Co., 351 NLRB No. 18 (9/29/07).
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