NLRB Majority’s Decisions Render “Salts” A “Uniquely Disfavored Class of Discriminatees”

October 13, 2007 by Beeson Tayer & Bodine

The Republican Board majority has imposed a tough, new burden on unions seeking to prove that employers have unlawfully refused to hire union “salts.”

In Toering Electric Co, 351 NLRB No. 18 (September 29, 2007), the Board ruled that in any refusal-to-hire case where the employer puts at issue the applicant’s interest in actually working for the employer, the General Counsel must produce evidence demonstrating the applicant for employment was genuinely interested in seeking to establish an employment relationship with the employer.

This is an entirely new burden for proving violations in such cases, and reverses the Board’s presumption that any individual who submitted an application was entitled to the protection of the NLRA.

The Board majority reasoned that this new burden is necessary to deal with unions that have salts “submitting applications with no intention of seeking work but rather to generate meritless unfair labor practice charges.”

The Board gave little guidance as to how this new burden will actually be applied: “[T]he employer must put at issue the genuineness of the applicant’s interest through evidence that creates a reasonable question as to the applicant’s actual interest in going to work for the employer. In other words, while we will no longer conclusively presume that an applicant is entitled to protection as a statutory employee, neither will we presume, in the absence of contrary evidence, that an application for employment is anything other than what it purports to be.”

The dissent lamented the fact that the majority had reversed Board precedent even in the absence of a request to do so, and without the benefit of any briefing on the issue, and vigorously argued against what it called a “legalized form of hiring discrimination.”

The majority’s decision runs contrary to the basic principles of the NLRA, the dissent stated, as illustrated by a quote from a 1941 U.S. Supreme Court decision:

“Discrimination against union labor in the hiring of men is a dam to self organization at the source of supply. The effect of such discrimination is not confined to the actual denial of employment; it inevitably operates against the whole idea of the legitimacy of organization. In a word, it undermines the principle which … is recognized as basic to the attainment of industrial peace.”

The dissent further noted that the majority’s new standard is critically flawed because it fails to provide clear guidance with respect to determining an applicant’s genuine status and places an unfair burden on the General Counsel by allowing an employer to first raise the genuineness issue during the unfair labor practice hearing.

The Board majority’s decision in Toering compliments another salting decision issued earlier this year in Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (May 31, 2007). In that 3-2 decision, the majority announced new evidentiary standards for determining the duration of the backpay period when the discriminatee is a salt.

Prior to this decision, the Board applied a presumption in all discharge cases that the discriminatee would have stayed on the job through the date a valid reinstatement offer was made.

The Board now rules that this presumption will not apply in the case of salts. By so holding, the Board has effectively shifted the burden to the union to prove the salt would have continued working for the employer until a reinstatement offer was made.

The dissenting members pointed out that the majority’s new approach not only violates the wellestablished principle of resolving remedial uncertainties against the wrongdoer, but treats salts “as a uniquely disfavored class of discriminates.”

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