The National Labor Relations Board (NLRB) recently issued four decisions that are good news for both unionized and union-free employers. This Alert addresses the holding in Toering Electric Co., Cases 7-CA-37768, 7-CA-39093, and 7-CA-39205 (Sep. 29, 2007), a 3-2 decision critical of the union practice of submitting batch applications by union “salts” uninterested in actually working for the targeted employer. Recognizing that these applications are frequently submitted for the sole purpose of generating meritless unfair labor practice charges, the Board held that such individuals are not protected by the NLRA’s prohibition on discrimination. “In our view submitting applications with no intention of seeking work but rather to generate meritless unfair labor practice charges is not protected activity.”
In Toering, the Board held that the NLRA’s protection against discrimination based on union considerations only applies to an applicant for employment who is “genuinely interested in seeking to establish an employment relationship with the employer.” Additionally, the Board held that the General Counsel bears the burden of proving that the person allegedly subjected to a discriminatory refusal to hire meets this requirement.
This case arose when the national president of the International Brotherhood of Electrical Workers (IBEW) announced the union’s salting campaign targeting nonunion employers. The union president urged local unions to join him in “driving the non-union element out of business.” With this goal in mind, the International Union issued a training manual that urged local unions to put economic pressure on the targeted company by filing unfair labor practice charges at every opportunity. The Board found that the purpose of these charges was to require the targeted employer to incur the substantial expense of defending itself in legal proceedings and to disrupt the targeted employer’s work force and production by declaring a series of unfair labor practice strikes.
A local union subsequently targeted Toering Electric by having union “salts” submit applications for employment. The company’s alleged refusal to hire union-affiliated applicants led to several unfair labor practice charges. In an effort to settle these claims, the company offered jobs to six members of the local union, but all six failed to show up for work. Other local union members received back-pay awards in settlement of their ULP charges against the company.
Two years later, a union organizer again targeted Toering by submitting numerous resumes of union members in response to the company’s blind help wanted newspaper advertisements. Of the resumes submitted by the union organizer, five contained no work history dates, five were stale and one was the resume of a union member who had refused an earlier job offer from Toering in settlement of a ULP charge.
Toering did not hire any of the individuals whose resumes were submitted by the union organizer. Subsequently, the General Counsel filed ULP charges based on this refusal to hire. The NLRB administrative law judge (ALJ) found that Toering violated Sections 8(a)(3) and (a)(1) by refusing to hire the union salts. However, the Board reversed the ALJ’s determination.
The Board noted that the U.S. Supreme Court has held that Section 8(a)(3)’s prohibition on discrimination extends to applicants for employment. See Phelps Dodge Corp. v. NLRB. Although neither Section 8(a)(3) nor the Supreme Court’s decision in Phelps Dodge limit the provision’s antidiscrimination protection to employees, “subsequent precedent makes clear that Section 8(a)(3) bars job discrimination only against individuals who meet the statutory definition of ‘employee’ in Section 2(3).”
Only Applicants Genuinely Interested in Employment are Protected
The Board then held that “an applicant for employment entitled to protection as a Section 2(3) employee is someone genuinely interested in seeking to establish an employment relationship with the employer.” The Board noted that its holding in Toering is consistent with statutory policy, Supreme Court precedent, and Board practice. “It is also necessary to allay reasonable concerns that the Board's processes can be too easily used for the private, partisan purpose of inflicting substantial economic injury on targeted nonunion employers rather than for the public, statutory purpose of preventing unfair labor practices that disrupt the flow of commerce.”
Further, the Board held:
there is a meaningful distinction between direct economic warfare between parties to labor disputes and the subversion of the Board's processes by one party for the objective of inflicting economic injury on the other. The Board does not serve its intended statutory role as neutral arbiter of disputes if it must litigate hiring discrimination charges filed on behalf of disingenuous applicants who intend no service and loyalty to a common enterprise with a targeted employer. Instead, the Board becomes an involuntary foil for destructive partisan purposes. The Congressional goal of industrial peace through the “friendly adjustment of industrial disputes” is not furthered by extending the Act's protections against hiring discrimination to such applicants.
General Counsel Bears the Burden of Showing the Applicant’s Genuine Interest in Employment
The Board stated that it is specifically seeking to discourage cases where unfair labor practice allegations of hiring discrimination are filed for the objective of inflicting economic injury on the targeted company. Accordingly, the Board abandoned its implicit presumption that anyone who applies for a job is protected as a Section 2(3) employee.
Instead, the Board now imposes on the General Counsel the burden of proving the applicant's genuine job interest. There are two components to this requirement: (1) 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.
Once the General Counsel has shown that the alleged discriminatee applied for employment, the employer may contest the genuineness of the application through evidence such as that the individual:
- refused similar employment with the respondent employer in the recent past;
- incorporated belligerent or offensive comments on his or her application;
- engaged in disruptive, insulting, or antagonistic behavior during the application process; or
- engaged in other conduct inconsistent with a genuine interest in employment.
Similarly, evidence that the application is stale or incomplete may, depending on the circumstances, indicate that the applicant does not genuinely seek to establish an employment relationship with the employer.
If the employer presents such evidence, the General Counsel must then prove by a preponderance of the evidence that the individual in question was genuinely interested in seeking to establish an employment relationship with the employer. Thus, the ultimate burden of proof as to the Section 2(3) status of the alleged discriminatee-applicant rests with the General Counsel.
Because the General Counsel now bears the burden of proving that an applicant was genuinely interested in employment with the targeted company, an employer's motivation for making an alleged discriminatory hiring decision does not become relevant until the General Counsel satisfies his burden of proof on the applicant's statutory employee status.
Employers’ Bottom Line:
The Board’s decision in this case is good news for employers. However, it illustrates the importance of ensuring that application and hiring procedures are designed to ascertain the applicant’s genuine interest in the position.
If you have any questions regarding this decision or need assistance in reviewing or redesigning your application forms or hiring procedures to ensure they are directed at ascertaining the applicant’s genuine interest in the position, please contact the Ford & Harrison attorney with whom you usually work.