From
The KDDK Advantage - August 2007
NLRB Ruling on Union
“Salting”
Gives Employers Relief
On
May 31, the National Labor Relations Board (NLRB), in
Oil Capital Sheet Metal, Inc., provided employers some
relief in “salting” cases by announcing a new evidentiary
standard for determining the period of backpay.
“Salting” is the term
used when a Union asks an organizer to apply for employment
with a target company with the intent to organize (unionize) that company.
Often the “salt” will campaign for the union both during
the job interview and while
employed.
This practice can create
a conflict because an employer who terminates or refuses
to hire a “salt” based on his or her union activity violates the National
Labor Relations Act.
As a result, the employer is ordered by the NLRB to pay backwages based on
the period of time it is presumed the “salt” would have worked for the company
if
placed, or kept on its payroll.
Prior to the new ruling,
the NLRB applied the presumption that the “salt” would
have worked for the company for an indefinite period
of time, and it
was the
employer’s burden to prove otherwise.
But with its recent decision
the NLRB has switched the burden of proof and now requires
the Union to provide evidence that supports the period
of time
it claims
the “salt” would have been employed.
The NLRB came to this
decision by reasoning that the very purpose of a “salt”
is to attempt to organize a non-union company and that
after
some
period
of time, whether the “salt” is unsuccessful or successful at doing
that, the Union
often
sends the “salt” to the next non-union company.
It was concluded that
regardless of the outcome of the “salt’s” efforts, the
Union is in a better position than the employer to prove
the “salt’s”
projected
duration of employment for the purpose of determining back pay the
company might owe.
Because the NLRB’s ruling
was based on a close 3 to 2 decision, it is likely the
case will be appealed to the Federal Court, making
it possible
this
ruling will be overturned.
Jake
Fulcher speaks
often on topics related to labor and employment law.
His practices
areas
are labor & employment law and litigation and trial
services. Jake can be reached at jfulcher@kddk.com or
at 812-423-3183.
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