The National Labor Relations Board has relieved employers of the burden of proving a union "salt" discriminatorily denied employment would not have worked the entire back pay period claimed by the NLRB General Counsel. In a 3-2 ruling, a Board majority, consisting of Chairman Robert J. Battista and Members Peter N. Kirsanow and Peter C. Schaumber, held that the General Counsel now will be required, "as part of his existing burden of proving a reasonable gross back pay amount due, to present affirmative evidence that the salt/discriminatee, if hired, would have worked for the employer for the back pay period claimed in the General Counsel's compliance specification." Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (May 31, 2007).
When an individual complains he or she was denied a job because of an employer's hostility towards unions, and that the employer regarded the applicant as a union sympathizer, the employer must demonstrate a valid, non-discriminatory reason for its denial to avoid violating the National Labor Relations Act. That the individual seeking employment is an infiltrator, or "salt" sent by a union to work for a nonunion employer with the objective of organizing its employees, has no bearing on the employer's liability.
After this principle was affirmed by the U.S. Supreme Court in 1995, the Board applied the same remedies for unlawful refusals to hire "salts" as it did for other similar misconduct. However, in Oil Capitol Sheet Metal, Inc., the Board changed its policy and determined that the appropriate remedy must be tempered by the circumstances under which union salts function in the workplace, i.e., not as individuals seeking indefinite employment, but as persons wanting employment for a specific period or purpose. Simply put, the Board explained, "Our only point is that the General Counsel has the burden of proving the length of the back pay period."
Here, the union organizer, working for the Sheet Metal Workers union and wearing a union insignia shirt, applied for a job with a contractor. He did not get the job, allegedly, because of his disruptive behavior during the interview. An administrative law judge found that the Board's General Counsel had shown that the contractor had violated the NLRA when it refused to hire the union salt.
The Board agreed with its ALJ that the company acted unlawfully by not hiring the union organizer. Although a finding of such discriminatory conduct normally triggers the remedy of back pay, the Board decided to reconsider the appropriate back pay period in salting refusal-to-hire cases.
The NLRB explained that in a non-salting case there is a "rebuttable presumption" that the back pay period should continue indefinitely from the date of discrimination until an offer of reinstatement is made. Because other job applicants normally seek employment for an indefinite duration, the agency reasons, the employer is in the best position to demonstrate when employment would have terminated. Furthermore, any risk of uncertainty as to the duration of the aggrieved employee's employment should be borne by the employer, since it is a product of the employer's unlawful conduct.
However, in the case of a union salt, it is inappropriate to require the offending employer to produce evidence that the organizer would not have worked for the entire back pay period. "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," the Board said. It found that "much of the uncertainty as to the duration of the back pay period is attributable to the union and salt/discriminatee rather than to the wrongdoing employer, and they are in the best position to prove the reasonableness of the claimed back pay period by presenting, through the General Counsel, evidence readily available to them." Such evidence, the Board explains, would include "the salt/discriminatee's personal circumstances, contemporaneous union policies and practices with respect to salting campaigns, specific plans for the targeted employer, instructions or agreements between the salt/discriminatee and union concerning the anticipated duration of the assignment, and historical data regarding the duration of employment of the salt/discriminatee and other salts in similar salting campaigns."
The Board also noted that the same reasoning applies to the transfer of a salt/discriminatee to future jobsites. "After seeking to organize one jobsite, it does not necessarily follow that the salt would have transferred to another," the Board concluded. The same reasoning impacts the appropriateness of an order of instatement or reinstatement. If it can be shown that the salt's employment would have terminated, based on evidence presented by the General Counsel in establishing a reasonable amount of gross back pay, then reinstatement is inappropriate.
In their dissent, Members Wilma B. Liebman and Dennis P. Walsh asserted that the majority adopted a rule for salting cases "without any party having raised the issue, without the benefit of briefing, and without a sound legal or empirical basis." Furthermore, they asserted that the new approach "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."
As noted, union organizers who apply for positions as "salts" are "employees" protected by the National Labor Relations Act, according to the Supreme Court. NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995). Employers therefore must adhere to the same rules for hiring, promotion, discipline, termination, and other terms and conditions of employment with regard to salts as with other employees. In this case, the employer's liability was not the issue. Rather, concern for an appropriate "make whole" remedy for these unique employees led the Board to reconsider its long-standing presumption that the back pay period should continue indefinitely from the time of the discrimination until an offer of reinstatement, in recognition of the short-term objective of these "salts".
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