NLRB Changes Standard for Proving Damages in Salting Cases

The NLRB has changed the evidentiary standard for determining the duration of the backpay period when the discriminatee is a "salt."  A salt, of course, is a union person who applies for a job with an employer for the purpose of initiating a union organizing campaign.  An employer who fires a salt (or any other employee) violates Section 8(a)(3) of the NLRA by discriminating against that employee on the basis of union activity (NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995)).  The remedy for an unlawful discharge or refusal to hire includes the employer’s payment of back pay to the employee for the period from the unlawful act until the employer made a valid offer of reinstatement (or instatement, in the case of an unlawful refusal to hire).

Until now, the Board has applied a presumption in all discrimination cases that, if hired, the employee would have stayed on the job for an indefinite period.  If the job was a construction job, the Board applied a further presumption that the employer would have transferred the employee to other jobsites when the job from which s/he was discharged (or for which s/he should have been hired) came to an end.

Now, however, the Board has changed the burden in salting cases.  In salting cases, the burden now is on the union to prove how long the salt would have stayed on the job.  Damages will be awarded for only the duration that the union proves the salt wold have remained on the job.  The Board reasoned that most salts stay on the job until they either succeed in their organizational effort or they conclude that such efforts are unsuccessful, and that in either situation the union usually then sends the salt to seek to organize the employees of another nonunion employer.  For this reason, the Board concluded that the burden of proof should be on the union.

The Board's decision does not affect the burden of proof in non-salting cases.

The Board's decision was 3-2.  It should come as no surprise that Liebman and Walsh were the dissenters.  They criticized the majority for overturning Board precedent endorsed by two appellate courts and rejected by none, without any party having raised the issue, without the benefit of briefing, and without any sound legal or empirical basis.  The dissent would have continued to treat salts as the Board treats all other employees who are subjected to employment discrimination, reasoning that in back pay cases, it is appropriate to resolve factual uncertainties against the employer who already has been found to be a wrongdoer.

Here's my take:  NLRB remedies already are of the slap-on-the-wrist variety.  Even before this case,  many employers were more than happy to pay a few years worth of back pay for the privilege of firing a union organizer.  Even the possibility that the employer eventually would have to rehire the employee wasn't much of a deterrent, because by the time reinstatement occurred the union movement would probably fizzle, and in any event the employer would quickly find an excuse to fire the employee again.  This case continues down the same path.  Without a meaningful remedy, there's no meaningful right.

The case is Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (May 31, 2007).

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