NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Oil Capitol
Sheet Metal, Inc. and Sheet Metal Workers
Local 270, Affiliated with Sheet Metal Workers International
May 31, 2007
DECISION AND ORDER
By Chairman Battista and
members Liebman, Schaumber, Kirsanow, and Walsh
On January 3, 2000,
Administrative Law Judge William N. Cates issued the attached bench decision.[1] The Respondent filed exceptions and a
supporting brief, the General Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply brief.
On June 14, 2000, the National Labor Relations Board issued an Order
remanding the proceeding to the judge for further consideration in light of FES (A Division of Thermo Power), 331
NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir.
2002).[2]
On July 31, 2000, the
judge issued the attached supplemental decision. The Respondent filed exceptions and a supporting
brief.
The National Labor
Relations Board has considered the decision, the supplemental decision, and the
record in light of the exceptions and briefs and has decided to affirm the
judge’s rulings, findings,[3]
and conclusions only to the extent consistent with this Decision and Order.
i. introduction
For the reasons set
out below, we find that the Respondent violated Section 8(a)(3) of the Act by
refusing to hire union organizer Michael Couch.
The traditional remedy for a refusal to hire violation includes a
backpay and instatement order. In a
compliance proceeding, the General Counsel bears the burden of proving, by a preponderance
of evidence on the record as a whole, the reasonableness of the gross backpay
amount claimed under this order. This
requires specification of the backpay period.[4] Over time, the Board has developed a rebuttable
presumption that the backpay period should continue indefinitely from the date
of the discrimination until a valid offer of reinstatement has been made. The
primary issue to be determined in this case is whether the same presumption
should apply where the discriminatee is a union organizer or “salt” like Couch.[5] Consistent with the concerns expressed in the
dissenting opinion of former Member Hurtgen in Ferguson Electric, 330
NLRB 514, 519–520 (2000), we hold that the General Counsel cannot rely on this
presumption to meet his burden of proving the reasonableness of a backpay period
claimed for a salt/discriminatee.
Permitting the General
Counsel to rely on a presumption of indefinite employment effectively requires
the respondent employer to produce evidence that the discriminatee would not
have worked for the entire backpay period claimed. This procedure is
appropriate as a matter of fact and policy in a refusal-to-hire case that does
not involve salts because job applicants normally seek employment for an
indefinite duration, the respondent employer is in the best position to
demonstrate that a given job would have ended or a given employee would have
been terminated at some date certain for nondiscriminatory reasons, and any
uncertainty as to how long an applicant, if hired, would have worked for a
respondent employer is primarily a product of the respondent’s unlawful
conduct.
Unlike other
applicants for employment, however, salts often do not seek employment for an
indefinite duration; rather, experience demonstrates that many salts remain or
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 General Counsel, evidence
readily available to them.
In sum, the
traditional presumption that the backpay period should run from the date of discrimination
until the respondent extends a valid offer of reinstatement loses force both as
a matter of fact and as a matter of policy in the context of a salting
campaign. Indeed, as discussed below,
rote application of the presumption has resulted in backpay awards that bear no
rational relationship to the period of time a salt would have remained employed
with a targeted nonunion employer. In
this context, the presumption has no validity 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,
and that the Board’s authority to command affirmative action is remedial, not
punitive.
Given the different
considerations applicable where the discriminatee is a union salt, we decline
to apply a presumption of indefinite employment and instead shall now require
the General Counsel, as part of his existing burden of proving a reasonable
gross backpay amount due, to present affirmative evidence that the
salt/discriminatee, if hired, would have worked for the employer for the
backpay period claimed in the General Counsel’s compliance specification. Such evidence may include, but is not limited
to, the salt/discriminatee’s personal circumstances, contemporaneous union
policies and practices with respect to salting campaigns, specific plans for
the targeted employer, instructions or agreements between the
salt/discriminatee and union concerning the anticipated duration of the
assignment, and historical data regarding the duration of employment of the
salt/discriminatee and other salts in similar salting campaigns. [6]
Our analysis also
affects the Board’s presumption that the salt/discriminatee, if hired at the
site where he applied, would have been transferred to other sites after the
project at the original site was completed.
Indeed, even if it is undisputed that the targeted nonunion employer’s
practice is to transfer employees from site to site, the General Counsel must
present affirmative evidence, as described above, that the salt/discriminatee would have
accepted the transfer.
We shall apply this
new evidentiary requirement in the present case and in all future cases where
the issue arises. Although this case involves
an unlawful refusal to hire a salt, the same analysis will also apply in cases
where the salt has been unlawfully discharged or laid off. Application of our holding may impact the instatement
order as well. If the General Counsel
fails to prove by affirmative evidence the reasonableness of a claim that the
backpay period should run indefinitely, then the salt/discriminatee is not entitled
to instatement (or reinstatement in discharge and layoff cases).
ii. issues
A. The Unlawful Refusal to Consider for Hire and to Hire Discriminatee Michael Couch
The complaint alleged
and the judge found that the Respondent violated Section 8(a)(3) by refusing to
consider and/or to hire applicant Couch, a paid union organizer. However, in his recommended remedy and Order,
the judge found only that the Respondent violated Section 8(a)(3) by refusing
to consider Couch for hire, leaving to compliance the issue of whether the
Respondent would have hired Couch but for its unlawful failure to consider him.
As noted above, after
the judge issued his bench decision in this case, the Board issued its decision
in
To establish a discriminatory refusal to hire, the General Counsel must, under the allocation of burdens set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), first show the following at the hearing on the merits: (1) that the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants. Once this is established, the burden will shift to the respondent to show that it would not have hired the applicants even in the absence of their union activity or affiliation.
Applying an FES analysis in his supplemental decision
after remand, the judge found that the Respondent “was actively seeking to hire
and hired sheet metal workers throughout all applicable times pertinent to this
case[,]” that Couch applied for a position and “was an experienced sheet metal
worker who had been an ‘outstanding’ apprentice for 4 years and was a journeyman
at his trade[,]” that his “qualifications were not challenged[,]” and that
“antiunion animus contributed to the [Respondent’s] decision to terminate its
interview with Couch and refuse to hire him.”[7] We agree with the judge that the General
Counsel therefore established, under the standard articulated in
The burden then
shifted to the Respondent to show that it would not have hired Couch even in
the absence of his union activity or affiliation. We agree with the judge that the Respondent
failed to meet this burden. In his bench
decision, the judge explicitly rejected Respondent’s contention that it
declined to hire Couch because of his allegedly quarrelsome and disruptive
behavior during the interview. Finding
that the Respondent presented no new arguments on remand, the judge held that
the Respondent violated Section 8(a)(3) by refusing to hire Couch. We agree with the judge and adopt his finding
of this violation.
Having found the
“refusal to hire” violation in his supplemental bench decision, the judge erred
by simply affirming the conclusions of law, remedy, and order set out in his
original bench decision, which left the refusal-to-hire issue to
compliance. Because the supplemental decision
resolved this issue, it was unnecessary to refer it to compliance. Accordingly, the judge should have amended
his original conclusions of law, remedy, and order to reflect his supplemental
finding. We shall therefore amend the
judge’s conclusions of law and issue a new Order. We shall also amend the judge’s recommended
remedy to include an instatement award and backpay for Couch for the period
that he would have worked but for the unlawful discrimination against him.[8]
B. Duration of the Backpay Period
In NLRB v. Town and Country Electric, Inc.,
the Supreme Court, noting the considerable deference accorded to the Board’s
interpretation of the Act, affirmed that the Board could lawfully construe the
Act’s definition of “employee” to include paid union organizers. 516 U.S. 85, 94–95, 98 (1995) (“We hold only
that the Board’s construction of the word ‘employee’ is lawful; that term does
not exclude paid union organizers.”). In
so doing, the Court explicitly stated that “[t]his is not to say that the law
treats paid union organizers like other company employees in every labor law context.”
Since Town and Country, the Board, with circuit
court approval, has continued to hold that salt/discriminatees, as employees
protected under the statute, are eligible for backpay. See, e.g., Ferguson Electric, supra, 330 NLRB at 515. We leave that principle undisturbed.[10] However, as in the precedent cited by the
Court, we find that the temporary nature of many salts’ employment warrants
different treatment in calculating the amount of backpay due in salting cases. In formulating an approach to address that
scenario, we are guided by well-established remedial principles. “A back pay order is a reparation order
designed to vindicate the public policy of the statute by making the employee
whole for losses suffered on account of an unfair labor practice.” Nathanson
v. NLRB, 344
In every compliance
proceeding, the General Counsel bears the burden of proving the gross amount of
backpay due.
As noted above, the
Board has developed a rebuttable presumption in compliance proceedings that the
backpay period should extend indefinitely from the date of the discriminatory
discharge or refusal to hire until the respondent extends a valid job offer to
the discriminatee. This rebuttable
presumption effectively relieves the General Counsel of any affirmative evidentiary
burden with respect to the duration of the backpay period. See Diamond
Walnut Growers, Inc., 340 NLRB 1129, 1132 (2003). Such a presumption is reasonable in an
ordinary case because, in fact, most job applicants seek employment of an
indefinite duration. Moreover, because
the employer controls the job and is in
the best position to establish how long it would have retained the
discriminatee and whether it would have transferred him to subsequent jobs, it
is appropriate, as an evidentiary matter, to place the burden on the employer
to produce evidence showing whether or when the discriminatee’s employment
would have terminated for nondiscriminatory reasons. See, e.g., NLRB v. Mastro Plastics Corp., 354 F.2d 170, 176 (2d Cir. 1965),
cert. denied 384 U.S. 972 (1966) (“[T]he burden of going forward normally falls
on the party having knowledge of the facts involved.”) (citing
The facts and policies
supporting a presumption of continued employment do not apply with the same
force where the applicant is a union salt.
First, the Board’s experience demonstrates that union salts, unlike
other applicants, do not typically seek employment for an indefinite duration.[12] Rather, from the outset, the contemplated
relationship is one of a limited engagement, and, if hired, the salt remains
with the targeted employer only until the union’s defined objectives have been achieved or abandoned.[13] Therefore, a presumption of indefinite employment,
which can result in backpay awards spanning several years, strains common sense
in the context of salts and is inconsistent with the Supreme Court’s
instruction that the validity of administrative agency presumptions turns on
“the rationality between what is proved and what is inferred.” Republic
Aviation Corp. v. NLRB, 324
Second, unlike with
typical applicants, it is often the union’s objectives in the salting campaign
that dictate how long the salt remains.
Consequently, evidence as to how long the salt would have worked for the
salted employer in the absence of discrimination is not exclusively, or even
primarily, related to matters within the control of that employer. Rather, much of the pertinent evidence about
the likely duration of a salt’s employment is in the possession of the union,
as the campaign’s progenitor and director, and of the salt participant in this
campaign. Indeed, such evidence, which includes information relating
to the union’s organizing objectives, plans, anticipated deployment of
personnel, and employment histories of its salts in similar salting campaigns,
is not readily available to the respondent employer. It is therefore appropriate to place the
burden on the union and salt/discriminatee to produce, through the General Counsel,
evidence in their possession as to the reasonable duration of the backpay
period. See Mastro Plastics, 354 F.2d at 176.
Finally, application
of the presumption of indefinite employment to backpay determinations involving
salts has resulted in backpay awards that are more punitive than remedial.[14] The Board’s decision in Aneco, supra,
is illustrative. There, the Board
reversed the administrative law judge’s finding that the backpay period for a
paid union organizer should extend for only five weeks. The judge found that the salt would have quit
his job with the respondent once the union’s interests were served; that the
salt, after accepting the respondent’s remedial offer of a job in 1998, worked
for the respondent for only 5 weeks before leaving “during what he described as
an ‘unfair labor practice strike’”; and that the record contained no evidence
of a salt ever having worked for a targeted employer for anything close to the
five years for which backpay was sought.
Aneco, 333 NLRB at 695–697.
The Board reversed,
finding merit in the General Counsel’s contention that the judge’s finding was
“entirely speculative” and that
the respondent had failed to prove that a backpay period of nearly five years
was unreasonable.
On appeal, the Fourth
Circuit refused to enforce the Board’s backpay award because it contravened the
principles that “a backpay order may only serve as a compensatory, make-whole
remedy, not a punitive sanction or deterrent,”[15]
and that “[a] backpay order is a means to restore the situation as nearly as
possible, to that which would have obtained but for the illegal
discrimination.”[16] The court deemed “indefensible” the Board’s
assumption that Cox would have worked for Aneco for 5 years, citing, as did the
judge below, Cox’s status as a paid union salt, the absence of any evidence of
other salts working for target employers for such prolonged periods, and the
fact that Cox only worked for the respondent for 5 weeks after accepting a
remedial job offer in 1998.[17]
For the reasons set
forth above, we find that the Board’s traditional presumption with respect to
the duration of the backpay period is suspect in the case of a union salt, and
we will no longer apply it. The same reasoning
also applies to transfers of a salt/discriminatee to future jobsites. There
is no reasonable basis for applying the Dean
General Contractors[18] presumption
that, absent a discriminatory discharge from a job, the discriminatee would
have been transferred to a new job after the first job ended.[19] After seeking to organize one jobsite, it
does not necessarily follow that the salt would have transferred to
another. As former Member Hurtgen observed,
even if the employer’s practice was to do so, the issue of whether the employee
would, in fact, have transferred may ultimately depend on whether the union
wished to organize the new site, which is a matter peculiarly within the
union’s knowledge.[20] Consequently, the General Counsel should bear the burden of producing
affirmative evidence as to whether the salt/discriminatee would have continued
working for the employer and transferred to a new jobsite.[21]
The instant case, like
Aneco, demonstrates the need for a more rational and balanced approach
in fashioning remedies in cases involving union salts. Under the Board’s traditional burden-shifting
scheme, the backpay period for Couch would presumptively cover more than eight
years. This would be true despite the fact that Couch is employed by the
In sum, where the
evidence establishes a discriminatee’s status as a union salt,[22]
we will no longer apply a presumption of indefinite employment. In such cases, the General Counsel must
present affirmative evidence to meet his burden of proving the reasonableness
of the claimed backpay period. Accordingly, we overrule the
Board decisions in Ferguson Electric, Aneco, and like cases to
the extent they are inconsistent with our new rule. We shall
apply this new evidentiary requirement in the present case and in all cases
where the discriminatee is a union salt.
In formulating our new rules, we have considered arguments raised by our
dissenting colleagues. For the following
reasons, we find these arguments lacking in merit.
Our colleagues contend
that the parties in this case have not requested reversal of the Board’s
existing backpay presumption as it applies to salts. However, it is the responsibility of the
Board to fashion a specific remedy for unlawful conduct, even if the parties
have not sought that remedy. This is
certainly not the first time the Board has modified its remedial practices in
the absence of exceptions or argument from parties in a case. See, e.g., Indian Hills Care Center, 321 NLRB 144 fn. 3 (1996). Further, and more specifically, in exercising
its remedial discretion, the Board is obligated to ensure that its remedies are
compensatory and not punitive, and to guard against windfall awards that bear
no reasonable relation to the injury sustained.
That is all we do here.
Similarly, our
colleagues say that we rely on the Board’s “purported experience” rather than
“empirical data” to support our views.[23] However, the presumption that the backpay
period should run until an offer of instatement or reinstatement is not itself
based on empirical data. Rather, it is
based on what the dissent views
as a universal policy-based evidentiary principle applicable to all backpay
cases that “the wrongdoer shall bear the risk of the uncertainty which
his own wrong has created.”[24] We reject the suggestion that our holding is
inconsistent with this principle. As
explained above, in a backpay case the General Counsel has the initial burden
of establishing the gross amount of backpay owed. To satisfy this burden, the General Counsel
must necessarily define the duration of the backpay period (see fn. 4 above). In nonsalting refusal-to-hire cases, the
General Counsel may reasonably rely on a presumption of indefinite employment
to meet this burden. In the case of salts, however, the presumption of indefinite employment must
yield to common sense and experience. By
definition, a salt seeks employment for the purpose of furthering a union’s
objectives, and the Board has long recognized that these objectives may impact
on an employee’s tenure. See supra fns.
9 and 12 and accompanying text. We
simply account for that purpose in determining the appropriate backpay
period. Under our holding here,
the General Counsel is still afforded a wide range of reasonableness in meeting
this burden, but he will no longer be able to substitute a presumption for
actual evidence with respect to proof of a matter that the wrongdoer’s action
has not obscured—i.e., how long the salt/discriminatee likely would have stayed
on the job in light of the union’s salting objectives.[25]
Since the General Counsel cannot rely upon a presumption in these cases,
he has the burden of going forward with the evidence in regard to the length of
the backpay period. In addition, as
noted above, he also has the burden of persuasion that the evidence supports
the backpay period set forth in the Compliance Specification. In this respect, the dissent mischaracterizes
our holding in this case when it states, in effect, that we are presuming that
the union should know in advance the
duration of its salting assignments or how long a campaign would last. We make no such presumptions. Nor do we presume that salts will leave
employment at some fixed point in time, known by the union in advance. On the contrary, and unlike our dissenting
colleagues, we reject any presumption
about the duration of a salt/discriminatee’s backpay period and leave it to the
General Counsel to adduce affirmative proof of the matter as part of his
existing burden to prove a reasonable gross backpay claim.[26]
With respect to the issues of instatement and reinstatement, since the
General Counsel has the burden of establishing the duration of the backpay
period, it follows that the General Counsel also has the burden of going
forward with the evidence that the discriminatee would still be employed by the
Respondent if he had not been the victim of discrimination. The General Counsel also has the burden of
persuasion in this regard. Accordingly,
while our order herein provides for instatement, the order is subject to defeasance
(as we stated above (see fn. 8)) if, at the compliance stage, the General Counsel
fails to carry this burden of persuasion.
In reaching this conclusion, we find unpersuasive our dissenting
colleagues’ position that the
Board may order instatement or reinstatement at a time when, in the absence of
any unlawful discrimination, the discriminatee would have ceased working for
the employer. As our colleagues note, the Act’s remedial purpose
with respect to employees who have been unlawfully discharged or denied employment
is “to restore the situation, as nearly as possible, to that which would have obtained
but for the illegal discrimination.”[27] As a result, circumstances that terminate the
running of the backpay period also extinguish the employer’s obligation to
instate or reinstate the discriminate.”[28] For example, if a discriminatee is unlawfully
refused hire on a construction project, and that project is subsequently
completed and all employees are discharged (rather than transferred to a new
project), the discriminatee’s backpay period would cease as of the date on
which the employees were discharged. The
employee’s right to instatement would terminate on the same date. This outcome results because the discriminatee,
if not unlawfully denied hire, nevertheless would have been discharged at the
project’s end along with the other employees, and his pay would have ceased at
that point. Because the employer’s obligation
is simply to restore the discriminatee to the position he would have occupied
but for the discrimination, no basis would exist to order instatement. Similarly, if a discriminatee would have terminated
his employment with the employer when a salting campaign was completed (either
successfully or not), there would be no basis upon which to order instatement
or reinstatement to the employer’s employ at a later time. Consequently, the duration of the backpay
period is inextricably linked factually with the remedies of instatement and
reinstatement. See, e.g., McKee Electric Co., 349 NLRB No. 46,
slip op. at 4 (2007) (Board “leaves to compliance the determination of whether
the time-limited nature of the Bakersfield project would have resulted in the
discriminatees being laid off for lack of work at some point in time, thereby
rendering instatement inappropriate and tolling backpay.”). To the extent that the dissent argues that instatement
is appropriate even after backpay has been tolled, we find no warrant for this
unprecedented remedy.
Finally, and contrary to the argument of the dissent, we have no
hostility to the practice of salting.
Salts are statutory employees and, as this case illustrates, may not be
denied employment for discriminatory reasons.
Further, like all discriminatees, they are entitled to backpay. Our only point is that the General Counsel
has the burden of proving the length of the backpay period.
C. The Alleged Interrogation
The judge found that
the Respondent violated Section 8(a)(1) by interrogating employee-applicant and
paid union organizer Michael London about his union sympathies. For the following reasons, we reverse.
The Respondent, a
sheet metal contractor, is located in
The next day,
The judge found that
Odom’s June 5 question to
The determination of
whether a question is coercive must take into account all of the surrounding
circumstances.[30] The full circumstances are set forth
above. In reviewing
D. Statement that Respondent Is Nonunion Does Not Evidence Anti-Union Animus
We also find, again
contrary to the judge, that DeRycke’s May 28 statement to
Amended Remedy
Having found that the
Respondent discriminatorily refused to consider discriminatee Couch for hire
and to hire him, Respondent must make Couch whole for its unlawful conduct
against him. The duration of the backpay
period shall be determined in accordance with the new evidentiary requirement
that we have set out above. Backpay
shall be computed in accordance with F.W.
Woolworth Co., 90 NLRB 289 (1950), and interest shall be computed in
accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987).
Amended Conclusions of Law
1. Respondent is an employer engaged in commerce
and in an industry affecting commerce within the meaning of Sec. 2(2), (6), and
(7) of the Act.
2. Sheet Metal Workers Local 270, affiliated
with Sheet Metal Workers International Union, AFL–CIO, is a labor organization
within the meaning of Section 2(5) of the Act.[32]
3. Respondent violated Section 8(a)(3) and (1)
of the Act by refusing to consider for hire and by refusing to hire applicant
and paid union organizer Michael Couch.
4. Respondent has not otherwise violated the
Act.
ORDER
The National Labor
Relations Board orders that the Respondent, Oil Capitol Sheet Metal, Inc.,
1. Cease and desist from
(a) Disparately requiring employee-applicants to
prepare written answers to essay questions as a condition of the application
process.
(b) Refusing to consider for hire
employee-applicants because of their union sympathies and/or to discourage
employees in these activities.
(c) Refusing to hire employee-applicants because
of their union sympathies and/or to discourage employees in these activities.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order,
offer to Michael Couch employment in the job for which he applied or, if such
job no longer exists, in a substantially equivalent position, without prejudice
to Couch’s seniority or any other rights or privileges to which he would have
been entitled if he had not been discriminated against.
(b) Make Michael Couch whole, with interest, for
any loss of earnings and other benefits suffered as a result of the discrimination
against him in the manner set forth in the amended remedy section of this
Decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to its unlawful refusal to consider Couch for hire
or to hire him, and within 3 days thereafter notify him in writing that this
has been done and that the refusal to consider for hire or to hire Couch will
not be used against him in any way.
(d) Preserve and, within 14 days of a request, or
such additional time as the Regional Director may allow for good cause shown,
provide at a reasonable place designated by the Board or its agents, all
payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Within 14 days after service by the Region,
post at its facility in
(f) Within 21 days after service by the Region,
file with the Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the Respondent has
taken to comply.
Dated,
Robert J. Battista, Chairman
Peter C. Schaumber, Member
Peter N. Kirsanow, Member
(seal) National
Labor Relations Board
Member Liebman and Member Walsh, dissenting in part.
In reversing the burden of proof with respect to remedial
issues involving salts, the majority overturns Board precedent endorsed by two
appellate courts and rejected by none.
Today’s change in the law is made without any party having raised the
issue, without the benefit of briefing, and without a sound legal or empirical
basis. Indeed, the majority concedes
that the Board’s prior rule—which required the employer to show that the
backpay period should be reduced for salts, as for other victims of unlawful
discrimination—was “within the Board’s discretion.” The majority’s new approach, in contrast, not
only violates the well-established principle of resolving remedial
uncertainties against the wrongdoer, but also treats salts as a uniquely
disfavored class of discriminatees, notwithstanding the Supreme Court’s ruling
that salts are protected employees under the National Labor Relations Act. NLRB v.
Town & Country Electric, Inc., 516
I.
The Board’s traditional approach to the issues presented here applies equally to all victims of unlawful discrimination under the Act. As we will explain, carving out special, less favorable rules for salts is unwarranted.
The purpose of the backpay remedy is “to vindicate the public policy of the [Act] by making the employees whole for losses suffered on account of an unfair labor practice.”2 To make “whole” in this sense is “to restore the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination.”3
Accordingly, the remedial backpay period for employees victimized by discrimination is presumed to run from the date of violation until the employer extends an offer of instatement or reinstatement. This rule was established, as noted with approval by the Supreme Court, in the Board’s first reported case.4 To ensure that the statutory priority of making discriminatees whole is met, the employer has the burden of showing that a backpay period should be truncated or that backpay should be otherwise reduced from the full amount accrued.5 With respect to the construction industry, the Board has presumed, absent an employer’s showing to the contrary, that a discriminatee would not only have worked through completion of the project from which he was unlawfully barred, but then would have transferred to the employer’s succeeding worksites.6
In backpay cases, it is fundamental that the Board resolves
factual uncertainties as to backpay against the wrongdoing employer.7
This approach is hardly unique to the Board. As the Supreme Court has explained, in a
decision often-quoted by the Board, the “most elementary conceptions of justice
and public policy require that the wrongdoer shall bear the risk of the uncertainty
which his own wrong has created.” Bigelow v. RKO Radio Pictures, 327
Until today, these judicially endorsed principles were
applicable to backpay cases involving salts.9 It could not be otherwise, given the Supreme
Court’s confirmation in Town &
Country Electric, supra, that salts are protected employees within the
meaning of the Act.10 “Since
paid union organizers have been held to be employees under the Act, it is
appropriate that their rights as employees be meaningfully enforced and discrimination
against them be meaningfully deterred through backpay awards when they are
unlawfully kept from entering a workforce.”
NLRB v. Ferguson Electric Co., Inc.,
242 F.3d 426, 436 (2d Cir. 2001). As the
The principle that the party who has acted unlawfully should bear the burden of producing evidence for the purpose of limiting its damages has as much force in a case involving salts as in any other.
Tualatin Electric, Inc. v. NLRB, 253 F.3d 714, 718 (D.C. Cir. 2001). No appellate court has rejected this reasoning.11
II.
The majority necessarily concedes that the Board’s current approach is a “policy choice within the Board’s statutory discretion.” No party has asked the Board to reconsider the law in this area, and no briefing on the question has been sought.12 Nevertheless, according to the majority, this is “the primary issue to be decided in the case,” and a “different policy choice” is in order. As we will explain, that choice is deeply flawed, and not surprisingly, given the process by which it is reached.
The majority rejects the traditional “presumption of indefinite employment,” including the presumption that “the salt/discriminatee, if hired at the site where he applied, would have been transferred to other sites after the project at the original site was completed.” Under the majority’s new approach, the “General Counsel must present affirmative evidence to meet his burden of proving the reasonableness of the claimed backpay period,” i.e., the General Counsel “has the burden of going forward with the evidence in regard to the length of the backpay period” and bears the “burden of persuasion that the evidence supports the backpay period set forth in the Compliance Specification.” In short, to be eligible for backpay, the salt and his union (on whom the evidentiary burden falls as a practical matter) must be able to prove exactly how long the salt would have worked for the employer had the employer hired him or not fired him.
And this fundamental reallocation of evidentiary burdens applies not just to backpay, but also to the issue of instatement or reinstatement: whether the salt who was discriminated against must now be hired or rehired. Under the majority’s new approach, the General Counsel bears the burdens of production and of persuasion to show that the salt “would still be employed by the Respondent if he had not been the victim of discrimination.”13
These new rules apply to all “salts,” whom the majority defines as “those individuals, paid or unpaid, who apply for work with a nonunion employer in furtherance of a salting campaign.” The majority defines “salting” 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.”
III.
The majority’s approach is based on three propositions, which taken together wrongly place the burden of uncertainty on the victims of discrimination:
(a) that salts do not typically seek employment for an indefinite duration, but rather remain with the targeted employer “only until the union’s defined objectives have been achieved or abandoned”;
(b) that, consequently, “much of the pertinent evidence about the likely duration of a salt’s employment is in the possession of the union . . . and of the salt”; and
(c) that “application of the presumption of indefinite employment involving salts has resulted in backpay awards that are more punitive than remedial.”
As we now show, each of those ostensible justifications for the majority’s approach is dubious at best, even assuming that unions control the employment of salts (a debatable assumption, at least for unpaid salts).14
A.
The majority—citing the Board’s purported experience, but not evidence in the record, scholarly studies, or other empirical data—asserts that salts do not seek employment for an indefinite duration, but only for a finite period, presumably known in advance by the union.15
However, the “experience” cited by the majority shows only that some salts, like many other employees, work for an employer for a relatively brief period of time.16 And this experience is confined to four specific cases, which provide no evidence warranting a general shift in allocating the burden of proof. None of the four cases stands for the legal proposition that the Board’s established approach is unsound. None cites any evidence that salts usually, let alone uniformly, quit at the end of every organizing campaign, or that unions typically know in advance how long a particular campaign will last.17
In fact, salting campaigns vary dramatically in duration. Some campaigns last for years,18 while others terminate more quickly.19 Moreover, in some instances, salts are simply assigned to work for an employer without any time frame or campaign commitment, to make what individual progress they can in generating union support or in connection with area standards picketing. See, e.g., Tualatin Electric, supra, 331 NLRB at fn.1.20 It is therefore unreasonable to presume that salts will leave employment at some fixed point in time, known by the union in advance.
There is correspondingly no basis for the majority’s departure from Dean General, supra, and for assuming that a salt, upon completion of the employer’s current construction project, would not have transferred to one of the employer’s other projects. Rather, it seems considerably more likely that in many, if not most, salting campaigns in the construction industry, the union’s organizing target is the employer, not merely one of the employer’s worksites. Absent specific evidence to the contrary, then, it seems more likely than not that the union would have wanted the salt to follow the employer to a new worksite. A rank-and-file salt who needs continued employment would be even more likely to accept a transfer, given the option, than a paid staff organizer.
B.
The majority asserts that, for remedial purposes, unions and salts have superior access to the evidence relevant to the duration of a salt’s employment. That proposition, too, is factually unsupported, as well as legally irrelevant.
The essential point here is that the employer’s unlawful conduct has created an uncertainty that can be only imperfectly resolved, if at all. It should be obvious that an employer’s refusal to hire a salt, or the decision to fire or lay off a salt, means that we likely will never know how the union’s salting campaign would have proceeded had the employer obeyed the law. Perhaps if salts had been hired or retained, the union’s campaign would have quickly succeeded and the union-staff salts, at least, moved on. Perhaps the campaign would have failed sooner rather than later. Or perhaps a definitive outcome would have taken a long time to become clear.21
Presumably, the union does not, and cannot, make all of its tactical decisions, including the duration of its salting assignments, in advance. The union therefore cannot know, let alone prove, how long a campaign would have lasted, or how long the salt would have stayed to participate in it, if the employer had not acted unlawfully.22
Equally important, the union itself has not created any of the uncertainty. The uncertainty of a salt’s backpay period is the result of the employer’s misconduct, not the union’s lawful activity. Thus, the majority’s assertion that “much of [that] uncertainty” is “attributable to the union” is simply wrong as both a factual and legal matter. Under the Board’s traditional approach to remedies, in this area and in others, uncertainty is attributed to the wrongdoer.23
This case, then, does not involve a situation where evidentiary rules are based, or should be based, primarily on factors unrelated to one party’s legal culpability. In upholding the rule of Dean General Contractors as applied to salts, the District of Columbia Circuit not only acknowledged the Board’s view that the employer had superior access to evidence as to the issue of transfer to later worksites, but also approved the Board’s adherence to its traditional uncertainty rationale. Tualatin Electric, supra, 253 F.3d at 718.24
C.
Finally, the majority is mistaken in characterizing the Board’s established approach as “punitive.” That view has no foundation, either in the cases the majority cites or elsewhere. Indeed, the majority’s own admission that the established approach is “within the Board’s statutory discretion” —as the District of Columbia Circuit and the Second Circuit have held—negates any contention that that approach is impermissibly punitive.
Every employer found to have violated the Act could argue that being required to show that the remedial backpay period should be shortened places it at a disadvantage and is consequently “punitive.” But that argument was rejected by the Board and the courts long ago, and for the reason common to all culpable respondents: the uncertainty was created by the employer’s own unlawful misconduct.
That an employer has chosen to violate the rights of
salts, rather than of other discriminatees, should make no difference so long
as salting is properly regarded as protected activity under the Act. The majority cites the undisputed rule that a
remedial Board order cannot be “merely speculative.” By the same token, however, the Board and the
courts have recognized that all backpay awards are necessarily “approximations.”25
And backpay itself—specifically authorized by Section 10(c) of the Act—is
not a penalty, but a make-whole remedy.
See NLRB v. Strong, 393
There is nothing punitive about the Board’s established approach with respect to remedies in salting cases. As in other cases of unlawful discrimination, the respondent employer has the right to present evidence to reduce its backpay liability to salts. Such evidence can pertain to interim earnings, whether a salt would have transferred to another site, or to whether the salt would have quit at any point in time. Allocating the burden of proof to the employer on those matters is not a penalty, but [simply] a matter of equity.27 Nor, insofar as this evidentiary rule ultimately has a deterrent effect on unlawful discrimination by ensuring that discriminatees are made whole, is that a reason to reject it. Contrary to the majority’s implication, seeking deterrence is a proper use of the Act’s remedial authority.28
IV.
The majority’s new approach, then, is based on shaky factual and legal foundations. But even if this were not the case, the new approach would still be flawed in several important respects: (a) failing to provide clear guidance with respect to determining a discriminatee’s status as a salt; (b) failing to recognize the difference between paid and unpaid salts; and (c) reaching beyond the issue of backpay for salts to the question of whether they must be instated or reinstated to the workplace. We address each problem in turn.
A.
To begin, by creating more restrictive evidentiary rules applicable only to salts, the majority invites litigation about the status of discriminatees in every case: Are they salts or not? (The Act, of course, makes no such categorical distinction, as the Supreme Court’s Town & Country Electric decision established.) The attractive prospect of truncating the backpay period and precluding instatement or reinstatement of salts will give every employer respondent in a Board proceeding a powerful incentive to characterize discriminatees as “salts.”29