In Toering Electric Co., 2007 NLRB LEXIS 413 (September 29, 2007), the National Labor Relations Board (the "Board") addressed two important issues: (1) the extent to which an applicant for employment enjoys the same protection against discriminatory hiring that is afforded to employees; and (2) the burden of proving that an applicant, who has allegedly experienced discrimination in hiring, meets the definition of "employee" that is protected under the National Labor Relations Act ("NLRA").

Many employers have experienced "salting" at their workplaces. Salting occurs when a union sends its members to a non-unionized workplace to obtain employment and then to organize the employees at the facility. Some salts may be genuinely interested in gaining employment with the non-union employer. However, other salts have no such intention. In submitting applications for employment, their only intention is to create opportunities to file unfair labor practice charges against the employer if the employer fails to offer them employment. These charges serve to impose upon the non-union employers the expenses associated with defending themselves against unfair labor practice charges in legal proceedings and to disrupt the non-union workplace through the use of unfair labor practice strikes. By its recent decision in Toering, the Board has made it more difficult for applicant salts to file unfair labor practice charges against non-union employers on the basis of discriminatory hiring.

Under Section 8(a)(3) of the NLRA, an employer commits an unfair labor practice if it discriminates in regard to hiring or tenure decisions on the basis of an employee's membership or non-membership in a union. The Board has previously determined that an applicant for employment enjoys the same protection under Section 8(a)(3) that is afforded to employees. In Toering, the Board clarified the extension of 8(a)(3) to job applicants by holding that, for an applicant to be entitled to protection, he/she must be genuinely interested in establishing an employment relationship with the employer. This holding has eliminated the protections against discriminatory hiring available to applicant salts who have no genuine interest in pursuing employment with the employer.

In 1996, Toering Electric Co. became the target of a union salting campaign. In response to a "help wanted" ad in the newspaper, the organizer of the International Brotherhood of Electrical Workers, Local 275, mailed his resume along with resumes of 18 other union members to Toering in two submissions. Toering did not hire any of the 18 union applicants. The union claimed that Toering had committed unfair labor practices by engaging in discriminatory hiring. Toering defended its decision by stating that the fact that the resumes were out-of-date and incomplete led it to believe that the individual applicants were salts who were not genuinely interested in seeking employment. It argued that, because of their lack of interest in employment, the applicant salts did not enjoy the protection of Section 8(a)(3) against discriminatory hiring afforded to employees.

Rationale for Modification of Salters' Protection

The Board concluded that an applicant for employment was entitled to protection as an employee under Section 8(a)(3) only if he/she was genuinely interested in seeking to establish an employment relationship with the employer. Its decision was based on several factors. First, the Board explained that an "employee" protected under the NLRA should have an actual or anticipated economic relationship with the employer. Because an applicant with no genuine interest in seeking an employment relationship would have no actual or anticipated economic relationship with an employer, he/she would not be an "employee" within the meaning of the NLRA. Additionally, the Board noted that the purpose of the NLRA was to remedy actual harm suffered by employees, not merely to punish employers for engaging in discriminatory behavior. Thus, because an applicant with no genuine interest in obtaining employment with the employer would suffer no actual harm on the basis of the employer's decision not to hire him/her, the applicant would have no remedy under the NLRA. Finally, the Board stated that the failure to limit the scope of protection afforded to applicants under the NLRA would result in the real and unacceptable possibility of abuse of the Board's processes.

Before the Board's decision in Toering, there was an automatic presumption that every individual who applied for a job was genuinely interested in employment and thus protected as an "employee" under Section 8(a)(3). If an employer was charged with an unfair labor practice, it could raise the issue of the applicant's lack of genuine interest in employment only as an affirmative defense. To better achieve its goal of discouraging disinterested applicants from filing charges against employers for discriminatory hiring, the Board in Toering abandoned the automatic presumption of "employee status" afforded to all applicants. Instead, it imposed upon the General Counsel the ultimate burden of proving an applicant's genuine interest in establishing an employment relationship with the employer once the employer makes a preliminary showing that the application is not genuine. Evidence that the applicant rejected a prior employment offer, has an out-of-date or incomplete application, uses offensive language on the application, etc., are all indicia of a lack of genuineness.

What This Means for Employers

The Board's decision in Toering is a significant victory for non-union employers. It narrows the scope of applicants who are afforded the protection of "employee status" under Section 8(a)(3) of the NLRA by requiring that such applicants be genuinely interested in seeking an employment relationship with the employer. Additionally, the decision shifts the ultimate burden of proving that an applicant is genuinely interested in employment to the General Counsel. In essence, the Toering decision minimizes protections for union salts who seek to uncover discriminatory hiring practices by non-union employers, since the employer's motive for failing to hire them is not relevant unless the General Counsel first establishes that they were genuinely interested in employment.

However, employers should exercise caution and make certain that they have sufficient evidence of an applicant's lack of interest before denying employment on the ground that they are a union salt. It should be noted that the fact that an application is received as part of a batch submitted by a union is not itself sufficient to conclude that the applicant is not genuinely interested in employment, provided that the applicant authorized submission of his/her application with the batch. Because the sufficiency of evidence is a discretionary determination, employers should seek the advice of counsel before making any decision to deny employment on the basis of an applicant's alleged disinterest in actual employment.