When 18 members were not hired by Toering, the union filed discrimination charges against the company with the NLRB. Some of the applications were from individuals who already held employment and were not actively looking for work, or were submitted by the union without their prior consent by the applicants. After a hearing, an administrative law judge concluded that Toering had unlawfully refused to hire the applicants.
Reversing the judge's decision, the NLRB's majority held that the National Labor Relations Act protects only persons genuinely interested in obtaining employment with the employer. "[O]nly 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." The board reasoned that only job applicants who were actually deprived of employment opportunities should be protected by the NLRA. Toering Electric Co., 351 NLRB No. 18 (9/29/07).
Impact: Employers confronted with a salting campaign can lawfully refuse to hire union-affiliated job applicants for any number of legitimate, nondiscriminatory reasons. Applicants may also be rejected if they do not intend to genuinely seek employment.
Workforce Management, October 22, 2007, p. 7 -- Subscribe Now!