The NLRB’s Acting General Counsel (GC), William Cowen, has issued new marching orders for how the agency will investigate “salting” cases – when union organizers apply for jobs with the aim of organizing (or provoking) the employer.

As unfair as it may seem, “salting” is protected under the NLRB, which prohibits employers from discriminating against applicants for union activity or support. As a result, an employer who refuses to hire and/or disciplines a “salt” may face an unfair labor practice charge (ULP).

However, this memo replaces prior guidance and makes it clear there is more room to challenge whether a “salt” is a genuine job applicant.

The Core Legal Test

Salting cases now require the NLRB’s General Counsel to prove both:

1. The FES Standard –
   • The employer was hiring or had concrete plans to hire.
   • The applicant met the employer’s stated job requirements (or the employer’s requirements weren’t consistently applied or pretextual).
   • Anti-union bias factored into the employer’s refusal to hire/consider the applicant.
     
2. The Toering Standard –
   • The applicant actually applied (or authorized someone to apply for them).
   • The applicant had a genuine interest in working for the employer – not just stirring the pot.

Impact on Region Investigations

Unlike civil court, each NLRB Region makes the determination on whether a complaint should issue from a charging party’s claims. Typically, the investigating board agent will seeking information and evidence from both the charging...

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