NLRB: Less “Of the Earth”, More “In the Wound”
But to do it without being asked, in the headwind of a still-young Supreme Court decision protecting salts under the NLRA is pretty ballsy, you have to admit.
Salts, of course, are the much-maligned folks that seek employment at non-union shops for the express purposes of unionizing the company’s workforce. They have the protection of the NLRA, according to the Supreme Court (well, the old one at least), but now the Board has changed the burden of proof in cases where companies refused or fired a salt. From now on (if that phrase is ever applicable to the NLRB), if a salt is going to get back pay for a company’s refusal to give him a job, his union will have to prove that he was planning to stay after he was done, ahem, “seasoning”.
The salting process is typically thought of like this: the union assigns a salt to a particular company. The salt then applies to the company, who either hires him or turns him down. If the salt gets hired, he attempts to unionize the company’s workforce and then moves on to another company as assigned by the union. If the employer refuses to hire a salt, or fires him when they find out why he’s really there, the salt files a refusal-to-hire or unlawful discharge claim with the NLRB, bringing the company’s non-union stance into the fore.
It is deception at its greatest, as far as most non-union companies are concerned. But to the unions, salting may represent their only real chance to gain access to a closed shop.
So, here’s the situation – When an employee is fired, or wrongfully refused a job, he or she is entitled to backpay for the period starting at the employer’s unlawful act (the firing) and going until the act is remedied, usually by an offer of reinstatement. The presumption was that, if hired or retained, the employee would have continued working at the shop for an indefinite period of time. The burden is squarely on the employer’s shoulders to prove why that isn’t the case.
In ’95, the Supreme Court held that salts are protected employees under the NLRA. That means that refusing to hire one of them, or firing one of them, should carry the same consequences as any other employee, right? Here’s where we pick up our most recent Board decision, already in progress:
The Board, in Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118, decided that – for salts – the backpay presumption just doesn’t work. According to the Board, “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.”
The majority (it’s a 3-2 decision) admits that there are times where a union could leave a salt in his position after the salting campaign, but claims that it should be the union’s job to prove it – not the employer’s to prove the salt would leave.
What’s the problem with all of this? Well, according to the dissent, the biggest problem is that nobody asked the Board to reconsider the issue. So, in the face of a Supreme Court decision, and without prompting from any of the parties, the Board has turned 180 degrees in its treatments of salting campaigns. It’s telling that, in referencing the Supreme Court’s holding that salts are people too (to paraphrase a little), the majority makes it clear that SCOTUS displayed “considerable deference accorded to the Board’s interpretation of the Act”. I was trained in my labor law class to take this as a sign to the Circuits that they should reconsider the issue. Is the Board trying to fire a case up to the Supremes now that their ranks have shifted?
So, now here’s the question – is the change in policy justified? Given the nature of salting, isn’t it better to presume the employee is temporary? It is a pretty big burden on the employer to prove a negative, but they still have to do it in wrongful discharge cases of non-salt employees, so is that really a good justification for the change?
Oil Capitol – via Law Memo
HEADS UP: Wage Garnishment Changes
[ed. note: Any time we find something that might be of note to employers or practicioners we'll do our best to put it up here. We'd really like to have a catchy title to accompany all of these snippets, but the clever engine's not turning over for us today. If you've got a good label, title, etc. drop us a line. In the meantime...]
Heads up to Illinois employers – the State’s changing wage deduction rules.
The Governor’s getting a piece of proposed legislation on his desk this morning that would alter post-judgment enforcement. The changes notably include:
- Removing the judicial discretion in wage-deduction orders – deductions would automatically be the lesser of (a) 15% of the weekly gross income or (b) the amount of net income above 45 times the current minimum wage (which just went up to $7.50).
- Allowing judgment creditors the option of taking conditional judgments against employers who stop deducting wages without a valid excuse, but the bill would also require creditors to certify the remaining balance in garnishment proceedings before the employers are obligated to pay.
- Changing the employer fee from either $12 or 2% to just 2%. No option.
If the bill gets signed it will go into effect Jan. 1, 2008.
So it begins…
I have been trying all day to figure out how to appropriately open CE’s doors – what first post would really capture the purpose and importance of what we’re trying to do here, and I had come up with zero. Then the Chicago Tribune did all my work for me. 
Right on the front page of the Business section was this article. It details how the Senate’s energy bill (requiring all vehicles to average 35 miles per gallon by 2020) may be the final straw for a few key truck- and suv-manufacturing plants. According to the article, the current law has different requirements for cars than for trucks and suv’s.
The thing that struck me was that the UAW is supporting an alternative measure in the House that would raise the corporate average fuel-economy rating to 32-35 mpg by 2022. A little better, right? Wrong, say the workers at the plants that might close. They produce a product that currently gets 16 mpg. So even the plan their union supports wouldn’t keep them in their jobs.
The article outlines some workers and former workers – all of whom are supplementing their income. One guy installs solar panels, but says business is “kind of slow”. A retired employee is working at a food processing plant, where he makes $15/hour. “A far cry from the $27 that GM paid.”
With negotiations between the UAW and the Big 3 looming, does anyone think the issue of fuel economy will even have a minute’s worth of debate? Probably not. Plant closures are nothing new these days, and there are a lot of other issues that will take precedent at that table (retiree benefits, anyone?). So, what about this article makes it opener-worthy? Well, nothing – on it’s own.
It’s just that, for some reason, the Trib posts its almanac and obituaries in the inside pages of the Business section. So, right across the page, as I’m finishing the UAW article, tucked away on page 3, in tiny font, is the following:
ALMANAC, published July 5, 2007…
In 1935 President Franklin Roosevelt signed the National Labor Relations Act, which authorized labor to organize for the purpose of collective bargaining.
Hmm. It has been a long 72 years since the NLRA came into being. Now, the unions are finding themselves conceding hard-won benefits to their employers just to keep the businesses – and in the case of the UAW, the whole industry – afloat. It seems every modern movement, from globalization to universal healthcare to, apparently, environmentalism is affecting the Union’s (capital U) chance for survival as an effective way to do business. The future of the labor movement is unstable, and creative solutions are few and far between.
Is the movement in flux? Or is this the end of an experiment that began with that Almanac entry? Our best attempt at finding answers starts here, in the comments. See you there.
Chicago Tribune: M.P.G. bill could cost UAW jobs
Almanac – July 5, 2007
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