In another September 29, 2007 decision, Toering Electric Company, the National Labor Relations Board ("NLRB" or "Board") held that, to be considered an "employee" under Section 2(3) of the National Labor Relations Act ("Act") an applicant entitled to statutory protection against hiring discrimination must be "genuinely interested in seeking to establish an employment relationship with the employer." In addition, the General Counsel now has the burden of proving that an alleged discriminatee meets this definition. This decision substantially impacts unions' use of "salts" - union members who are sent to an unorganized job site to engage in tactics designed to force an employer to recognize the union or drive the employer out of business. The Toering decision specifically addresses one type of "salting" tactic ­­- enlisting union members to apply for jobs with nonunion employers that they do not intend to accept so the union can file numerous failure-to-hire unfair labor practice charges to force the employers to expend considerable sums defending the charges until they agree to recognize the union or go out of business.

In Toering, the Board explained its rationale that "only those individuals genuinely interested in becoming employees can be discriminatorily denied that opportunity on the basis of their union affiliation or activity; one cannot be denied what one does not genuinely seek." Thus, "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 interest ab initio between the employer's interest in doing business and the applicant's interest in disrupting or eliminating this business." Further, the Board's remedies are limited to those "effecting a restoration of the situation, as nearly as possible, to that which would have obtained but for illegal discrimination." Thus, it is appropriate for the Board to limit "the scope of the remedy to the actual harm suffered." Accordingly, the Board's decision to require the General Counsel to prove "genuine interest" "will insure that only those for whom Congress intended statutory protection as actual or potential employees will receive it."

The Board noted at length that unions' use of the Act's protections historically have led to substantial abuses, such as when applicants have been deemed Section 2(3) employees when they have engaged in conduct "clearly intended to provoke a decision not to hire them, or have engaged in antagonistic behavior toward the employer that is wholly at odds with an intent to be hired." Notwithstanding such conduct, prior Board law allowed employers charged with Section 8(a)(3) failure-to-hire discrimination to challenge an applicant's genuine interest in a job only as an affirmative defense that it would have refused to hire or consider the applicant, even in the absence of union activity, because the applicant lacked a genuine interest in the job. Thus, the employer had to prove not just the applicant's lack of interest, but also that the reason the employer did not hire the applicant was because of this lack of interest.

Under the new framework outlined in Toering, the General Counsel must show that the individual, or someone on the individual's behalf, applied for employment with the employer. The employer then must introduce evidence reasonably calling into question the applicant's genuine interest, such as by showing prior recent refusal of a job offer; unprofessional or offensive comments on the job application or conduct during the application process; a stale or incomplete application; or other conduct inconsistent with a "genuine interest" in employment. The General Counsel then must rebut this evidence and prove by a preponderance of the evidence that the applicant was genuinely interested in establishing an employment relationship with the employer. Thus, the General Counsel has the ultimate burden of proof of the applicant's Section 2(3) status.

While this decision will not eliminate unions' use of salts, it should put a substantial crimp in unions' ability to use failure-to-hire unfair labor practice charges to force employers to recognize a union or put it out of business.