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NLRB - National Labor Relations Board |
Oil
Capitol Sheet Metal, Inc.
Case 17–CA–19714
May 31, 2007
DECISION
AND ORDER
By
Chairman Battista and members Liebman, Schaumber, Kirsanow, and Walsh
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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, 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 The majority’s definition of “salt,” in turn, suggests that determining a discriminatee’s status will not always be simple.30 B. Next, the majority errs in treating paid salts and unpaid salts the same. For the reasons already suggested, this failure to distinguish between the two groups is arbitrary. A union might well treat paid staff organizers and unpaid rank-and-file members differently with respect to their participation in salting campaigns. More important, a rank-and-file member, who cannot rely on the union for continuing income, is presumably much less likely to be under the control of the union with respect to the duration of his employment with a nonunion employer.31 C. Finally, and most remarkably, the majority applies its new approach not only to the issue of backpay, where it predictably will reduce monetary relief, but also to the separate question of instatement and reinstatement, where it may foreclose a remedy altogether. Instatement and reinstatement
are basic statutory remedies, essential to fully redress discrimination in
hiring and firing, as the Supreme Court made clear more than 65 years ago.
Phelps Dodge, supra, 313 This obvious point is, if
anything, more important, not
less, in the case of salts, who seek employment precisely in order to
organize their fellow workers. Under
the majority’s approach, a salt might never be granted access to the
workplace, even in the absence of any lawful reason for excluding him from
employment. As the Notably, the majority extends that approach not only to refusal-to-hire cases like this one, but also to cases involving salts who are unlawfully terminated. Terminating a salt will likely be even more coercive than refusing to hire him, because more employees will learn of a coworker’s termination than would learn of an unknown applicant’s rejection. And, in cases involving a discriminatory discharge or layoff, the majority threatens to frustrate even restoring the status quo. iv. The majority’s decision abruptly reverses decades of judicially approved precedent. Disregarding the facts of this case and relying on legally incorrect pronouncements regarding our remedial authority, the majority replaces sound law with arbitrary rules that run contrary to the fundamental policies of the National Labor Relations Act. We have little doubt that the majority’s decision is grounded in hostility to the practice of salting and to unions’ increasingly successful use of salting as an organizing tool in the wake of the Supreme Court’s decision in Town & Country Electric. But that practice is—at least for now—protected by the statute. That employers who discriminate against salts are exposed to liability is no reason for the Board to retreat from enforcing the law. We cannot join that step backwards and so endorse what amounts to the Board’s own discrimination against salts.
Dated, |
