• TRADITIONAL LABOR LAW/NLRA - NLRB Relieves Employer Burden in "Salt" Cases
  • October 17, 2007
  • Law Firm: Holland & Knight LLP - Boston Office
  • A union “salt” is an individual sent by a union to work for a nonunion employer to either organize the company from within or provoke the company to commit an unfair labor practice. An employer violates the National Labor Relations Act (NLRA) by either refusing to hire or terminating an employee because he or she is a salt. In such cases, the National Labor Relations Board (NLRB) has long presumed that the salt would remain employed indefinitely and would be entitled to indefinite back pay. Accordingly, even though the union salt might not have intended to remain employed for any longer than necessary to achieve the union’s organizing goal, the employer had the burden of disproving the presumption of an indefinite period of back pay.

    The NLRB recently changed its approach to the calculation of back pay damages in “salting” cases and relieved employers of the burden of disproving indefinite employment. It thus shifted the burden to the union, through the Board’s General Counsel, to prove that the salt would have worked for the period for which back pay is sought. Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (May 31, 2007).

    In the Oil Capitol case, a union organizer had applied for a job with a contractor, but was not hired. The NLRB concluded that the employer had unlawfully refused to hire the union organizer because it knew he was a salt. Because the salt had suffered unlawful discrimination, he was entitled to back pay damages from the employer.

    Employment Period for Salts

    In determining the length of back pay, however, the Board noted that salts, unlike other applicants for employment, “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.” The Board further noted that “evidence about the likely duration of a salt’s employment is in the possession of the union” as well as the salt him or herself. Accordingly, the Board held, it would be most “appropriate to place the burden on the union and the salt/discriminatee” to prove the reasonableness of a claim of back pay. Evidence in support of a back pay claim might include evidence of the “salt’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 the 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.”

    What Is the Impact for Employers?

    Union organizers who apply for jobs as salts remain protected as employees under the NLRB. That has not changed, and employers must continue to treat salts as they would any other employee or applicant. But in cases where the Board has found a salt to have been unlawfully terminated or unlawfully denied employment, it is the salt/discriminatee that will bear the burden of establishing the likely duration of his or her employment for back pay calculations. This burden might act as a deterrent to salting, as it might require the union to reveal more than it would like in the form of organizing plans, union policies or tactics, and salting campaign strategies.