By: Frank L. Carrabba
Several months ago, I wrote an article for this magazine entitled “NLRB Decisions Likely to be Overturned by the Obama-Board”. My prediction apparently is going to come true a little sooner than I previously thought it would. The Board is now at full strength, after having had only two Board members for approximately 27 months. Currently on the NLRB are Chair Wilma B. Liebman, Democrat, Craig Becker, Democrat, Mark G. Pearce, Democrat, Peter Schaumber, Republican and Brian Hayes, Republican. The three Democrats have all represented unions exclusively as lawyers.
Now, why do I think the reversal of certain Bush-Board decisions will be sooner than I originally thought? The answer involves cases I currently have on appeal at the NLRB in Washington, D.C. where I represent several electrical contractors. Among other things, these cases present issues in the area of “salting” law in the construction industry as it currently stands at the Board. Remember, “salting” is the union practice of having a union member apply for work at a non-union company in order to organize the employees into a union, and/or to file unfair labor practice charges at the NLRB.
On May 24, 2010, the International Brotherhood of Electrical Workers (IBEW) filed a Motion with the Board requesting that the Board seek briefs from the parties and interested amici on the issue as to whether the current Board should reverse the Bush-Board decisions in Toering Electric, Inc., Oil Capitol Sheet Metal, Inc., and Contractor Services, Inc. Of course, the IBEW argues that it intends to take the position that all three decisions should be overturned.
Before I get into a discussion of these cases, let’s first talk about NLRB case law involving an alleged refusal-to-hire violation by contractors. In FES, a Division of Thermo Power, the Board set forth what evidence the parties are required to present to prove a violation of the law in a refusal-to-hire case. First, the General Counsel (GC) of the NLRB (the prosecutor) must show (1) that the employer was hiring or had concrete plans to hire, (2) that the applicant had the training or experience relevant to the job opening, and (3) that anti-union animus contributed to the employer’s refusal to hire. Once the GC of the Board has presented evidence on the above requirements, then the employer could show that it did not violate the law by proving that it would not have hired the applicant in the absence of his/her union activity.
In the Bush-Board’s 3-2 decision in Toering Electric, a divided NLRB modified the FES framework for refusal-to-hire cases. The Board majority in Toering Electric pointed out that “submitting applications with no intention of seeking work but rather to generate meritless unfair labor practice charges is not protected activity”. As a result, the Board imposed on the NLRB GC the burden of proving that the alleged discriminatee was genuinely interested in seeking to establish an employment relationship. The Board explained that there were two components to this requirement:
(1) there was an application for employment, and (2) the application reflected a genuine interest in becoming employed by the employer. As to the first component, the General Counsel must introduce evidence that the individual applied for employment with the employer or that someone authorized by that individual did so on his or her behalf. …. As to the second component (genuine interest in becoming employed), the employer must put at issue the genuineness of the applicant’s interest through evidence that creates a reasonable question as to the applicant’s actual interest in going to work for the employer. In other words, while we will no longer conclusively presume that an applicant is entitled to protection as a statutory employee, neither will we presume, in the absence of contrary evidence, that an application for employment is anything other than what it purports to be.
The dissent in Toering Electric, written in part by new Chair Wilma Liebman, states that the Board-majority “legalizes hiring discrimination in some, perhaps many, cases involving salts, by requiring the General Counsel to prove that a job applicant was “genuinely interested in seeking to establish an employment relationship”. The dissent pointed out that the case should properly have been decided under the framework established by the NLRB in FES. According to the dissent, the aims of the National Labor Relations Act are furthered by finding unlawful an employer’s refusal to hire an applicant because of his union affiliation, even where it cannot be established that an applicant would have accepted a job if offered. Accordingly, expect the new Obama-Board, headed by Wilma Liebman, to reverse the Bush-Board decision in Toering Electric, and return to the analytical framework set up by the NLRB in FES.
The other two Bush-Board decisions that the IBEW expects to reverse involve compliance backpay issues. If the Board proves that an employer has discriminated against an applicant or an employee because of their union activity or union support, it proceeds to enforcing its remedies for such a violation. The Bush-Board decisions in Oil Capitol Sheet Metal and Contractor Services, Inc. both concern the Board’s remedial process as it relates to backpay owed to a discriminatee.
Prior to the Bush-Board’s 3-2 decision in Oil Capitol, the remedy for an unlawful discharge or refusal to hire included the company’s payment of backpay to the employee or applicant for the period from the unlawful act until the employer made a valid offer of reinstatement, or instatement in the case of a refusal to hire. The NLRB applied a presumption that, if hired, the “salt” would have stayed on the job for an indefinite period. If the job was a construction job, the Board applied a further presumption that the contractor would have transferred the employee to other jobsites when the job from which he was discharged, or for which he should have been hired, came to an end.
The three Republican Bush-Board majority declined to continue to apply these presumptions. According to the majority, there may be instances where the union will permit a member to work for the employer for an indefinite period. However, there would be other occasions where “salts” when hired, would stay on the job until they have succeeded in their effort, or were unsuccessful at some point, and then the union would send the “salt” to seek to organize the employees of another nonunion company. In either event, the majority felt that the union was in a better position to explain its intentions, and therefore, the burden to establish the facts should be on the union, and not on the employer, to prove the contrary.
Again leading the dissent in Oil Capitol, Chair Liebman would have continued the above-noted presumptions, stating that “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”.
The last Bush-Board case the IBEW included in its recent Motion to the NLRB that it wants overturned is Contractor Services, Inc. As noted above, this is also a backpay remedy case. In this case, the discriminatee was a paid union organizer who the Board found “did not exercise reasonable diligence in searching for interim employment during his backpay period”. Under Board law, interim employment earnings are subtracted from a discriminatee’s gross backpay amount to arrive at the net backpay figure owed by the discriminating employer.
In Contractor Services, the Board in a three-member panel decision, found that the paid union organizer failed to mitigate his loss of earnings during the backpay period because he limited his job search to nonunion employers, when he could have found employment through the union’s hiring hall with union employers. Accordingly, the Bush-Board concluded that the paid union organizer discriminatee failed to make the required effort to obtain interim employment from union contractors that would reduce the gross backpay amount.
As a contractor, you should be aware of these upcoming changes in NLRB law. If faced with a decision that may be the subject of an NLRB charge of discrimination, you should evaluate your fact situation as if it will be scrutinized under new law set by the Obama-Board.
FRANK L. CARRABBA
Frank Carrabba has been engaged in the practice of labor and employment law for over thirty-seven (37) years. He represents employers exclusively in all areas of labor and employment law, including alleged employment discrimination, NLRB charges against employers, union organizing campaigns, Davis Bacon Act related issues, alleged wrongful terminations and wage and hour issues.
His first trial resulted in a U.S. Supreme Court decision. He began his career at the NLRB in Washington, D.C. in 1971.
He is board certified in labor and employment law by the Texas Board of Legal Specialization. He has been a member of the Employment Practices Committee of the AGC Houston Chapter for many years and has twice edited the Labor Relations Guide and the Open Shop Field Supervisor’s Handbook for the Chapter.