National Labor Relations Board updates guidance for investigating salting cases

On July 24, the National Labor Relations Board’s Acting General Counsel, William B. Cowen, issued updated guidance for investigating salting cases that will likely enhance employers’ chances of prevailing before the board. Employer representatives defending pending salting charges should request that any hearings be immediately postponed, and supplemental briefs should be considered to ensure that any findings are consistent with this memorandum’s instructions.

Salting is an effort by a union to have members gain employment at an unorganized job site and then convince the employees to organize. Applicants for employment are considered employees protected under the National Labor Relations Act. Unions prevail in salting cases when they prove that: (1) the employer was hiring or had near-certain plans to hire, (2) the applicant had experience or training relevant to the requirements of the position, and (3) the decision not to hire the applicant was due, in part, to antiunion animus. In 2007, after finding that salting protections were being abused when applicants were applying for positions and engaging in conduct to provoke a decision not to be hired, the board placed the burden on the general counsel to prove that the applicant was genuinely interested in obtaining the job in order to prevail.

Under this new guidance, evidence relevant to the applicant’s sincerity in applying for the position should be obtained during the initial investigation rather than after employers raise the issue at a hearing. Investigators should request documentary evidence to support applicants’ claims of genuine interest and “deeply probe” testimony that the position would have been accepted if offered. Resumes and applications should be examined for statements that reflect a lack of interest. The memorandum provides examples of this language by citing to recently reviewed applications that included applicants’ hobbies of “applying pressure on employers to recognize our union,” “exposing employers who commit unfair labor practices,” or “filing charges.” These comments, according to the guidance, indicate that the applicant is not a bona fide candidate. The guidance instructs investigators to close investigations unless an applicant’s evidence establishes that there was a genuine interest in the job.

The memorandum also clarifies entitlement to backpay and job placement when applicants prevail in salting claims. Claims typically allege that applicants would have remained in the position indefinitely, and the board has the authority to award backpay and instatement reflecting indefinite employment. Now, the general counsel/union must present affirmative evidence that the applicant would have worked during the backpay period and stayed in the position indefinitely to be entitled to backpay and instatement.

The guidance states that investigations should include a backpay investigation that includes:

1. The applicant’s personal circumstances
2. Union policies and practices regarding organizing campaigns
3. Any union organizing plans for the employer
4. Instructions from the union to the applicant concerning the duration of employment, and
5. Historical data regarding the length of employment of all applicants in similar organizing campaigns. Crucially, investigators should provide employers with an opportunity to submit evidence to rebut allegations that backpay and instatement are owed.

Employer counsel should use this guidance to immediately request that any pending hearing concerning salting be postponed to ensure that the underlying investigation includes consideration of the applicant’s genuine interest in the position and an evaluation of how long the applicant would have remained in the position if hired. Counsel should also determine if supplemental briefing is necessary on these two issues to ensure that the final investigation follows the mandates of this guidance.

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