Jottings By An Employer's Lawyer

Sunday, June 11, 2006

Less Salt In the Wound

I am not sure that the labor movement would appreciate Judge Posner's to the point description of the purpose of the construction union practice known as "salting":
That is, they were union organizers whose motive in applying for jobs with Starcon was, by advertising their intention to organize the employer’s workforce, to precipitate an unfair labor practice by the employer (refusing to hire them because of their revealed, indeed flaunted, intentions).
Starcon International, Inc. v. International Brotherhood of Boilermakers (7th Cir. 6/7/06) [pdf].

Nor are they probably happy with the outcome, which was upholding the NLRB's ruling that only 2 of the more than 100 salts who had applied would receive backpay. Those 2 were the only ones who testified that they would have taken a job if it had been offered.

Because of the procedural status of the case, the 7th Circuit made clear it was not saying that the Board would have been required to rule that way, but also went on to say why it seemed clear to that it was a correct ruling. Noting that the NLRA was not a penal statute, the Court could see no reason that the normal rule that a person seeking relief has the burden of proving entitlement should be altered for this case.

Although unlikely to make construction employers look any more favorably on this practice, it at least made it hurt a little less this time.

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