Labor & Employment Law Daily Wrap Up, NLRB NEWS—Acting General Counsel issues guidance regarding investigation of ‘salting’ cases, (Jul 25, 2025)

By Brandi O. Brown, J.D.

“Regions should deeply probe the witness to test the legitimacy of” their claim of interest in employment with the employer.

After reviewing “salting” cases submitted by the Regions on his instruction, Acting General Counsel of the NLRB William B. Cowen this week provided updated guidance to the Regions for investigation of such cases. Notably, in February, in Memorandum GC 25-05, Cowen rescinded Memorandum GC 21-04. Memo GC 21-04 was issued by former General Counsel Abruzzo and indicated that cases involving the applicability of Toering Electric Co. were ones that she “would like to carefully examine” (a statement that some took as an indication that Toering may be reversed).

Memorandum GC 25-08 provides a summary of Toering, 351 NLRB 225 (2007), a case in which the Board held that job applicants must be genuinely interested in establishing an employment relationship with an employer in order to qualify as a statutory employee subject to the Act’s protection against hiring discrimination based on union affiliation or activity, and reaffirmed that it “governs all salting cases.” It states that Regions are required to determine whether the Toering standard has been met as part of their initial investigations and that before soliciting charged party evidence in those cases, Regions should focus initially on obtaining evidence from the charging party. It instructs Regions to “ensure that the evidence gathered bears on the two legal issues in Toering: whether the alleged discriminatee applied for employment and possessed a genuine interest in being hired.”

Specifically, the memo provides guidance regarding what evidence Regions should seek when investigating the employment application component and the information they should seek from the alleged discriminatee regarding the circumstances of the interview and their genuine interest in the position.

Genuine interest. It instructs Regions to “explore with each alleged discriminatee the sincerity of their interest in employment with the employer.” This should include not only affidavit testimony but also “relevant documentary evidence pertaining to the genuine interest issue.”

Affidavit testimony. Regarding the former, it notes: “Testimony that the applicant would have accepted the position with the employer if an offer had been extended does not, by itself, show a genuine interest within the meaning of Toering. Nor is a mere representation of ‘genuine interest’ sufficient. Once placed in issue, genuine interest must be proved by the General Counsel by a preponderance of the evidence.”

Deep probe. Specifically, the memo instructs that “Regions should deeply probe the witness to test the legitimacy of that claim.” Information to seek could include, according to the memo, “whether the applicant recently refused similar employment with the employer; engaged in disruptive, insulting, or antagonistic behavior during the application process; followed the employer’s established procedures when applying; timely arrived for the interview(s); made follow-up inquiries regarding the application; had relevant work experience with other employers; or was actively seeking similar employment with other employers.”

Vet the age and content of applications. Regarding documentary evidence, this could include “applications, resumes, social media posts, emails and other written communications between the applicant and employer, and those between the applicant and the union, that discuss, refer to or mention the employer and the application process.” Such documents “should be closely scrutinized for signs that would indicate a lack of a genuine interest in employment,” such as “stale” or incomplete applications, which, it states, in some circumstances might “indicate that the applicant did not genuinely seek to establish an employment relationship with the employer.”

Regions are instructed to also “vet the actual contents of applications and resumes for the existence of statements that evince a lack of genuine interest in working for an employer.” It provides as an example application packages in recent investigations that have identified, as a hobby, “reading the National Labor Relations Act,” and skills such as “applying pressure on employers to recognize our union.”

Missing info, gaps. Other irregularities that “may strongly indicate that an applicant lacks a genuine interest in being hired,” the memo states, include failing to provide references or the names and contact information for prior employers; employment gaps; short employment periods with numerous employers; fictitious employer names; suspicious email addresses; erroneous dates; overly vague or generalized descriptions of job duties; and hostile, threatening, or offensive remarks on the application.

Mass or batch applications. The memo also includes information about the alleged union “practice of submitting mass or batch applications to an employer.” It acknowledges that the “fact that applications may have been submitted en masse does not, standing alone, preclude a finding that an applicant is genuinely interested in employment if the submitter of the applications obtained authorization to do so from the applicants” but adds that Regions in such cases should determine whether the applicants actually authorized that submission. “The most effective way to prove that the applicant authorized the submitter to apply on the applicant's behalf is both through the applicant's own testimony and the testimony of the submitter of the applications in question.” It also notes that “[e]vidence that the union regularly confirmed applicants' continuing interest in employment (such as by routinely updating applicant lists or by contacting individuals prior to submitting their applications) would support a finding of agency.”

The memo also tells Regions the following: “It must be remembered that even where an individual’s interest in employment is genuine, many of the factors going into a Toering analysis also may be part of a lawful basis for declining to hire that individual – e.g. an applicant may engage in resume fraud by including false information or not including unfavorable information in a genuine effort to obtain employment. Nothing in FES or Toering requires an employer to accept or ignore such conduct.”

Full investigation. Regarding a decision on the merits and whether a full investigation is necessary, the Acting GC states in the memo that a “full investigation of a salting case is only warranted when the charging party’s evidence demonstrates that the Toering factors have been satisfied or obtaining employer evidence is otherwise appropriate.” From there, the Region should follow standard case processing protocol.

Pre-settlement damages determination. “However, prior to preparing and presenting the proposed settlement agreement to the parties, the Region must examine the salting discriminatee’s entitlement to backpay and instatement in accordance with Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007).” In that case, the memo adds, the Board held that the presumption of indefinite employment “is inapplicable when the discriminate is a union organizer or salt” and, under those circumstances, Regions “should conduct a pre-complaint backpay investigation and allow the enunciated factors to guide their evidence-gathering efforts and determination regarding the appropriate backpay period.”

It adds that Regions “should resist the temptation to base their calculations on the discriminatee’s unsubstantiated claims about the duration of the backpay period” and that they “should afford the charged party an opportunity to submit evidence that would reduce or negate its liability before making a final determination regarding the backpay period and any backpay owed.”

Submission to Division of Advice. Finally, the Acting GC instructs that Regions should submit their Toering refusal to hire and refusal to consider for hire cases to the Division of Advice under certain circumstances. First, when the evidence obtained fails to clearly resolve the matter of agency raised by an authorization to submit an application on someone else’s behalf or whether an applicant was “genuinely interested” in employment. Second, when the Region finds that an applicant had a genuine interest in seeking employment notwithstanding the presence of Toering factors. Finally, where the case raises questions under Toering and Oil Capitol not resolved by the Acting GC’s memo.

News: LaborNews AgencyNews Labor UnionsMembers LitigationNewsTrends GCNNews