07/25/2025: Updated Guidance on How to Engage in Salting

The Acting GC is signaling greater scrutiny of salting campaigns.

Guidance for Investigating Salting Cases, GC 25-08, (GC Memo)

This July 24, 2025 memorandum from Acting General Counsel William B. Cowen provides updated guidance for NLRB Regional Offices investigating "salting" cases - situations where union members apply for jobs at non-unionized workplaces with the intent to organize employees. The memo supersedes previous guidance and establishes new case processing procedures.

Legal Framework

The memo outlines the legal standard established in Toering Electric Company, which modified the earlier FES standard for determining whether a "salt" applicant qualifies for protection as an employee under Section 2(3) of the National Labor Relations Act.

Under Toering, the General Counsel must prove two additional components beyond the FES requirements:

1. An application for employment was submitted

2. The application reflected a genuine interest in becoming employed

The employer may contest an applicant's genuine interest by presenting evidence that the applicant:

• Refused similar employment recently

• Included belligerent or offensive comments on the application

• Displayed disruptive or antagonistic behavior during the application process

• Engaged in conduct inconsistent with genuine interest in employment

• Submitted a stale or incomplete application

Investigation Guidance

The memo instructs Regional Offices to:

1. Focus initial investigation on obtaining evidence from the charging party before soliciting charged party evidence

2. Thoroughly investigate both the application component and the genuine interest issue

3. For mass applications, determine whether applicants authorized someone to submit applications on their behalf

4. Examine applicants' sincerity through evidence beyond mere claims of "genuine interest"

5. Review application materials for signs of insincerity, such as:

   • Statements about "reading the NLRA" as a hobby

   • Skills like "applying pressure on employers" or "filing charges"

   • Missing references or contact information

   • Suspicious employment history or vague job descriptions

   • Hostile or offensive remarks

Decision Process

Regional Offices should:

1. Assess evidence from the charging party before seeking charged party evidence

2. Dismiss allegations if an application wasn't submitted/authorized or the applicant lacks genuine interest

3. Proceed with full investigation only when charging party's evidence satisfies Toering factors

Backpay Determination

For meritorious cases, Regional Offices must:

1. Examine the discriminatee's entitlement to backpay according to Oil Capitol Sheet Metal

2. Present affirmative evidence of how long the discriminatee would have worked if hired

3. Consider factors including:

   • Discriminatee's personal circumstances

   • Union policies and practices

   • Specific plans for the targeted employer

   • Instructions between discriminatees and the union

   • Historical data on employment duration in similar campaigns

4. Conduct pre-complaint backpay investigation

5. Allow the charged party to submit evidence that might reduce liability

Division of Advice Submissions

Cases should be submitted to the Division of Advice when evidence fails to clearly resolve:

1. Agency issues related to application submissions

2. Whether an applicant was "genuinely interested" in employment

3. Cases where an applicant is found to have genuine interest despite the presence of Toering factors

Significant Cases Cited

• Toering Electric Company, 351 NLRB 225 (2007): Established that job applicants in salting cases must demonstrate genuine interest in employment to receive NLRA protection.

• FES (A Division of Thermo Power), 331 NLRB 9 (2000): Established the initial framework for determining discrimination in hiring that Toering later modified.

• Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007): Eliminated the presumption of indefinite employment for union organizers/salts in determining backpay periods.

• Progressive Electric, Inc. v. NLRB, 453 F.3d 538 (D.C. Cir. 2006): Affirmed that job applicants are generally protected as employees under Section 2(3) of the NLRA.

• Tualatin Electric, Inc., 312 NLRB 129 (1993): Provided the definition of "salting" as union members applying at non-union jobsites to obtain employment and organize.