Are union 'Salts' genuine employees entititled to protection by the usual anti-descriminatory practices?
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Toering Electric Co., 351 NLRB No. 18; NLRB Limits Protection for Job Applicants to Those with a "Genuine Interest"in an Employment Relationship
In Toering Electric Co., 351 NLRB No. 18 (2007), the Board, in a 3-2 decision, ruled that an applicant for employment must be genuinely interested in seeking to establish an employment relationship with the employer to qualify as a Section 2(3) employee and, therefore be afforded protection against hiring discrimination based on union affiliation or activity. The Board explained, “one cannot be denied what one does not genuinely seek.” Further, the Board held that the General Counsel bears the ultimate burden of proving an applicant's genuine interest in seeking to work for the employer.
The Board majority of consisting of Chairman Battista and Members Schaumber and Kirsanow held that the presumption that any individual who submitted an application was entitled to protection was inconsistent with the text of the Act and its basic purposes. The Board ruled that only applicants who are statutory employees within the meaning of Section 2(3) are entitled to protection against hiring discrimination, and that statutory employee status, requires the existence of “at least a rudimentary economic relationship, actual or anticipated, between employee and employer." The majority found no such economic relationship in the case of applicants with no genuine desire to work for the employer. Consequently, job applicants without a genuine interest in employment (i.e. certain "salts") are not employees within the meaning of Section 2(3) of the Act.
The Board reasoned that while some salts, paid or unpaid, may genuinely desire to work for a nonunion employer and solicit their co-workers on behalf of a union, other salts clearly have no such interest. According to the Board, “submitting applications with no intention of seeking work, but rather to generate meritless unfair labor practice charges is not protected activity. Indeed, such conduct manifests a fundamental conflict of interests ab initio between the employer’s interest in doing business and the applicant’s interest in disrupting or eliminating this business.” Such conduct, the Board observed, also collides with the employer’s right, recognized by the Supreme Court, to insist on employee loyalty and on a cooperative employee-employer relationship.
For these reasons, the Board imposed on the General Counsel, in hiring discrimination cases in which the employer puts the good faith intent of the applicant at issue, the burden of proving that the alleged discriminatee was genuinely interested in seeking to establish an employment relationship and was therefore qualified for protection as a statutory employee. The Board explained that this requirement embraces two components:
(1) there was an application for employment, and (2) the application reflected a genuine interest in becoming employed by the employer. As to the first component, the General Counsel must introduce evidence that the individual applied for employment with the employer or that someone authorized by that individual did so on his or her behalf. …. As to the second component (genuine interest in becoming employed), the employer must put at issue the genuineness of the applicant’s interest through evidence that creates a reasonable question as to the applicant’s actual interest in going to work for the employer. In other words, while we will no longer conclusively presume that an applicant is entitled to protection as a statutory employee, neither will we presume, in the absence of contrary evidence, that an application for employment is anything other than what it purports to be.
The Board concluded that although some evidence in Toering suggested the alleged discriminatees’ genuine interest in seeking employment, other evidence suggested the opposite. Under these circumstances, the Board remanded the 10+ year old case to the judge to apply the new analytical framework to the facts of this case.
Members Liebman and Walsh, dissenting, would have retained without modification the standard for litigating hiring discrimination cases set forth in FES, 331 NLRB 9 (2000), placing the burden on the General Counsel not to demonstrate genuine interest in employment, but rather to show that the employer had concrete hiring plans, that the applicant had relevant experience, and that antiunion animus contributed to the employer's decision not to hire the applicant. The dissent criticizes the shift in focus from a question regarding the employer's intent to the applicant's intent. Disapproving of the majority's new burden-shifting standard, the dissent remarks that "t makes no difference whether the union applicant coveted the job, detested the job, or simply wished to test his employability and the employer's adherence to the law." The dissent's position is that union salts – even those whose only goal is to provoke an unfair labor practice – are protected as statutory employees regardless of whether they have a genuine interest in employment. To find otherwise, the dissent argues, would be contrary to Congress' intent since it did not carve out any exception for such individuals.
Declaring a perceived end to the era of salting as a legitimate union tactic, the dissent comments that the Board’s decision in Toering, “continues the Board’s roll-back of statutory protections for union salts who seek to uncover hiring discrimination by non-union employers and to organize their workers” by legalizing hiring discrimination in some, perhaps many, cases involving salts.
Management Perspective
The Board's holding in Toering Electric properly differentiates between a bona fide applicant for employment and someone who has no interest whatsoever in establishing an employment relationship with the employer. The Board's new approach correctly places the burden of proof in hiring discrimination cases on the General Counsel to prove that the alleged discriminatee is a true applicant for employment, and thus deemed a statutory employee entitled to protection under the Act. Contrary to the dissent's declared death to the era of union salting campaigns, the majority allows for the continued use of union salts, with the only limitation that the salts must truly have an interest in going to work for the employer – even if merely for the purpose of organizing the employer's workforce. The Board's decision rectifies an issue of abuse of the Board's process through the filing of meritless charges, is consistent with the statutory protections of the Act, and correctly limits monetary relief to those applicants who would actually accept employment if it was offered to them.
Union Perspective
The United States Supreme Court UNANIMOUSLY found over a decade ago that the Board was correct in concluding that salts were employees as defined in the National Labor Relations Act, specifically noting the broad language of the § 2(3) definition. Some groups contend that there is a problem with salts applying for positions simply to “trap” employers into committing unfair labor practices. The Board majority accepts the premise that some salts abuse Board processes, without any argument from the General Counsel that such abuses exist, and in the Toering Electric decision fashions a remedy for that perceived wrong. The majority cites nothing in the text of the Act that suggests that a person’s motivation can change the broad definition of employee in the Act. The Board requires an initial inquiry into the applicant’s motivation before even considering the employer’s conduct. Thus, under the Board’s ruling, an employer who was unaware that the applicant was a union organizer, believed that the applicant intended to work for the employer, and rejected the applicant solely because the application revealed the applicant was a union member, would not be required to even post a notice that it will not discriminate on the basis of union membership, if it turns out the applicant cannot prove that the applicant intended to accept the position. The Board does not explain how it would be contrary to the Act’s purposes for an Employer to be found to have violated the Act when the employer’s actions warrant such a finding, and be required to post a notice, even if the applicant did not intend to actually accept the position. Given Regional Director’s reluctance to issue complaint in close cases, placing the burden on the General Counsel to show that the applicant intends to accept the position will lead to dismissal of some charges that are, in fact, meritorious, in order to weed out perceived abuses. The Board’s earlier FES decision adequately dealt with the burden of proof and remedial issues in refusal to consider and refusal to hire cases, and it was not necessary to define employee in a way never intended by Congress in order to deal with a perceived, though never proven, wrong.
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Tanja L. Thompson is a Member in the Memphis office of Kiesewetter Wise Kaplan Prather, PLC where she represents management in all aspects of labor and employment law. She is a Chapter Editor of the Developing Labor Law and currently is serving as the Employer co-chair of the Recruitment and Retention Subcommittee of the Section's Membership Development Committee.
Paul W. Iversen is a shareholder in Williams & Iversen, P.A., St. Paul, MN where he represents unions and individuals in labor and employment matters. He is currently Union Co-Chair of the Committee on Development of the Law under the NLRA and an Associate Editor of the Developing Labor Law.
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