NLRB Sets New Standard for Determining Backpay for Salts
The National Labor Relations Board (NLRB) has established new evidentiary standards for determining backpay awards in cases of discrimination against a union “salt.” The decision is considered favorable for nonunion employers.
“’Salting’ has been defined as ‘the act of a trade union in sending in a union member or members to an unorganized jobsite to obtain employment and then organize the employees,’” the Board noted, adding that “a salting campaign’s immediate objective may not always be organizational” but may be “to precipitate the commission of unfair labor practices by startled employers.” Individuals who apply for work with a nonunion employer in furtherance of a salting campaign, whether paid by the union or not, are called “salts.” Federal labor law prohibits employers from discharging or refusing to a salt because of union affiliation or activity.
In cases where the Board has found that an unlawful discharge or refusal to hire has taken place, the employer normally must pay the discriminatee backpay for the period of time that the discriminatee would have worked for the employer but for the employer’s unlawful act. The Board applies a rebuttable presumption that the discriminatee would have worked for the employer for an indefinite period, and measures the backpay period from the date of the unlawful act until the employer has made a valid offer of employment (in refusal-to-hire cases) or reinstatement (in discharge cases). The issue in this case was whether that presumption should apply where the discriminatee is a salt.
The Board held that it should not. Unlike other job applicants, salts often do not seek employment for an indefinite period, the Board said. Rather, salts typically 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 (NLRB) General Counsel, evidence readily available to them.” The presumption has no validity in this context 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.”
Instead of relying on the presumption, the General Counsel will now be required to present affirmative evidence that the salt, if hired, would have worked for the employer for the claimed backpay period. Such evidence may include, e.g.: the salt’s personal circumstances, union salting policies and practices, the union’s specific plans for the targeted employer, instructions or agreements between the salt and union about the anticipated duration of the assignment, and historical data regarding the duration of employment of the salt and other salts in similar salting campaigns. The new standard will apply in both unlawful discharge and refusal-to-hire cases.
Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (5/21/07).
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