A Little Less Salt in the Wound, NLRB Changes Presumption on Salt Backpay
by Michael Fox
"Salting" is a practice where union organizers apply for job with dual motives — both to work for the employer and to advance the union's organizing efforts. If not hired because of their union support the Supreme Court held in National Labor Relations Board v. Town & Country Electric, Inc. it is a violation of the National Labor Relations Act.
Usually the remedy in refusal to hire cases is backpay. In determining the amount of back pay the Board noted its general policy is to apply a rebuttable presumption that backpay should continue indefinitely from the date of the discrimination until a valid offer of reinstatement has been made. In a decision issued May 31st, the Board faced the issue of "whether that presumption should apply in the case of a union salt."
Here's the Board's explanation of why the presumption makes sense in non-salting cases:
This procedure is appropriate as a matter of fact and policy in a refusal-to-hire case that does not involve salts because job applicants normally seek employment for an indefinite duration, the respondent employer is in the best position to demonstrate that a given job would have ended or a given employee would have been terminated at some date certain for nondiscriminatory reasons, and any uncertainty as to how long an applicant, if hired, would have worked for a respondent employer is primarily a product of the respondent’s unlawful conduct.
But in a 3-2 decision, the Board majority explained why the presumption does not work when salts are involved:
Oil Capitol Sheet Metal, Inc.
Unlike other applicants for employment, however, salts often do not seek employment for an indefinite duration; rather, experience demonstrates that many salts remain or intend to remain with the targeted employer only until the union’s defined objectives are achieved or abandoned. For this reason, much of the uncertainty as to the duration of the backpay period is attributable to the union and salt/discriminatee rather than to the wrongdoing respondent employer, and they are in the best position to prove the reasonableness of the claimed backpay period by presenting, through the General Counsel, evidence readily available to them.
In sum, the traditional presumption that the backpay period should run from the date of discrimination until the respondent extends a valid offer of reinstatement loses force both as a matter of fact and as a matter of policy in the context of a salting campaign. Indeed, as discussed below, rote application of the presumption has resulted in backpay awards that bear no rational relationship to the period of time a salt would have remained employed with a targeted nonunion employer. In this context, the presumption has no validity and creates undue tension with well-established precepts that a backpay remedy must be sufficiently tailored to expunge only actual, not speculative, consequences of an unfair labor practice, and that the Board’s authority to command affirmative action is remedial, not punitive.
(NLRB 5/31/07) [pdf].
Members Liebman and Walsh vigorously dissented:
In reversing the burden of proof with respect to remedial issues involving salts, the majority overturns Board precedent endorsed by two appellate courts and rejected by none. Today’s change in the law is made without any party having raised the issue, without the benefit of briefing, and without a sound legal or empirical basis. Indeed, the majority concedes that the Board’s prior rule—which required the employer to show that the backpay period should be reduced for salts, as for other victims of unlawful discrimination—was “within the Board’s discretion.” The majority’s new approach, in contrast, not only violates the well-established principle of resolving remedial uncertainties against the wrongdoer, but also treats salts as a uniquely disfavored class of discriminatees, notwithstanding the Supreme Court’s ruling that salts are protected employees under the National Labor Relations Act. NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995).
Two points —
- Expect a large hue and cry from the world of organized labor;
- The decision is indicative of another major problem that really needs a systemic fix, the time it takes such decisions to occur. Here the termination in question was 1999, the ALJ's decision was in 2000. The reasons for the delay are complex, but are basically a result of a system that needs reworking.
Unfortunately, the chances of that happening are even less than organized labor applauding this as a well reasoned decision.