Thursday, October 4, 2007

The NLRB Cuts Back on Salt(ing)

Nlrb_2 The wave of 3-2 NLRB decisions continues. This time, in Toering Elec. Co., 351 N.L.R.B. No. 18 (Sept. 29, 2007), the Board concluded that an applicant for a job is not protected by Section 8(a)(3) unless the applicant is “genuinely interested” in obtaining the job. The majority’s primary concern are salts who apply for jobs in the hopes of provoking litigation. 

At issue is Section 2(3)’s definition of “employee,” because all employees are protected by Section 8(a)(3)’s prohibition against discrimination. In concluding that only those applicants who are genuinely interested in obtaining a job meet the definition of employee, the majority stated that salts who lack this interest do not have the economic relationship with the employer that the NLRA was intended to protect: 

There is no economic aspect, actual or anticipated, to [these salts’] relationship with the employer. Neither in the present nor in the future do they “depend upon the Employer, even in part, for their livelihood or for the improvement of their economic standards. They do not work [or intend to work] for hire and thus the Act’s concern with balancing the bargaining power between employer and employees does not extend to them.” [WBAI Pacifica Foundation.] Thus, job applicants who lack a genuine interest in seeking an employment relationship are not employees within the meaning of Section 2(3). 

The majority sought further support for this interpretation from Section 10(c)’s policy against punitive damages and other “windfalls.” Such a policy "supports holding that only those job applicants who were actually deprived of employment opportunities" by discrimination is protected by the NLRA. The majority also emphasized that the General Counsel had the burden of proving genuine interest. 

The dissent (you don’t need me to tell you who they are) argued that the majority is in conflict with both the NLRA, as well as NLRB and Supreme Court precedent. For example, the Board’s FES decision specifically rejected Member Brame’s argument that the General Counsel should have to show that job applicants had a bona fide interest in employment. Moreover, the Supreme Court’s “Town & Country decision also makes clear that unless a salting campaign is accompanied by acts of violence, sabotage, or other unlawful or indefensible conduct, there is no basis for claiming that it is statutorily unprotected—much less that salts, as a class, are not statutory employees.” The dissent also rejected the majority’s worry that salts may be disloyal to the employer, arguing that that concern may be addressed on a case-by-case basis and doesn’t warrant a presumption that all salts would be disloyal. 

I suppose I shouldn’t be surprised, but I’m dumbfounded by this decision. The majority’s new burden for all refusal to hire cases is a far bigger stick than is needed to address its hostility to union salting campaigns—campaigns that the Supreme Court, appellate courts, and past Boards had all approved. The majority’s defense of its new burden simply falls apart in light of the broad interpretation that Section 2(3) has long enjoyed. I have a lot of problems with most of the Board’s numerous reversals in the past few months, but this one seems especially indefensible. 

-JH

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Comments

I agree with Jeff, but I won't assume that it will have the practical impact that might at first blush be expected. When a decision is this far out of whack, Regional personnel will go out of their way to find a useful construction. For example, more attention may now be paid to the salt's intuitive answer to this question (developed in response to some conservative ALJs' additional [fanciful] requirement that an applicant be "bona fide"): he does have a genuine interest in employment - he genuinely wants to be hired in order to organize the employer's employees. In any event, it will be interesting to see what will happen if the Board does shut this down. I know many salts and the one thing I can say is that they are very, very aggressive and are not going anywhere. I'm always reminded of Holmes's dissent in Vegelahn - this is an eternal conflict. This will just push them to develop a new strategy.

Posted by: Michael Duff | Oct 4, 2007 8:39:30 PM

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