By: Frank L. Carrabba
Every time there is a change in Administrations in Washington, D.C., you can expect the new NLRB to reverse many decisions of the previously-appointed Board. The new Chair of the NLRB, Wilma B. Liebman, Democrat, dissented in numerous Bush-Board decisions from 2004 to 2007. In her recent testimony before a Congressional Subcommittee on December 13, 2007, she proudly described her background prior to being appointed to the NLRB as the Legal Counsel for both the Bricklayers and Allied Craftsmen and the International Brotherhood of Teamsters unions. Her dissenting opinions during her time on the Bush-Board, her opinions while on the Clinton-Board, and her legal background, tell you where her new appointment as Chair will lead the Obama-Board in the next few years.
This article will examine two (2) Bush-Board decisions that most certainly will be reversed early in the Obama-Board’s tenure. Both decisions relate to “salts”, union members who apply for employment at a non-union company. The first, and most important, is the decision in Toering Electric. It involves a concept that management-side labor and employment lawyers have been trying to convince the NLRB to recognize for years, that is, most “salts” in the construction industry, do not have a genuine interest in establishing a long-term employment relationship when applying for employment. In Toering, the Board finally recognized, (1) that some “salts” submitted applications with no intention of seeking work, but rather, to generate meritless unfair labor practice charges, and (2) such activity was not protected by the Act. Consequently, the Bush-Board held that once the General Counsel (GC) of the Board introduced evidence that an individual applied for employment, the burden shifted to the employer to show that there is a reasonable question as to the applicant’s actual desire in going to work for that employer. If the employer submitted such evidence, then the burden shifted back to the GC to prove that the applicant was genuinely interested in employment.
The dissent in Toering disagreed with majority’s rationale, stating that the aims of the 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.
The next case that will be overturned by the Obama Board involves new evidentiary standards for determining the duration of the backpay period when the discriminatee is a “salt”. Prior to the Board’s decision in Oil Capital Sheet Metal, Inc., in a case where there was a finding of an unlawful discharge or refusal to hire, the Board ordered that the remedy include the employer’s payment of backpay to the employee for the period from the unlawful act until the employer made a valid offer of reinstatement, (or instatement, in the case of an unlawful refusal to hire). In these circumstances, the Board applied two presumptions:
(1) If hired, the “salt” would have stayed on the job for an indefinite period, and
(2) If the job was a construction job, the employer would have transferred the employee to other job sites when the job from which he was discharged (or for which he should have been hired) came to an end.
In Oil Capital, the Bush-Board refused to follow these presumptions. The Board put the burden of proof on the Union to prove that the “salt” would not have left the job. It held that instatement to the job would not be ordered where the “salt” would have left the job prior to the Board’s decision.
In dissent, Members Liebman and Walsh stated that they would have continued to treat the “salts” as the Board treats all other employees who are subjected to discrimination, this is, require that the wrongdoer “bear the risk of uncertainty that which his own wrong has created”.
In conclusion, respondent contractors in NLRB proceedings must be aware that these cases will be reversed by the Obama-Board early in its tenure and must prepare accordingly. If you wish to obtain an article that discusses six (6) major cases of the Bush-Board that will be reversed by the Obama-Board, please contact Cheryl Bonner at the AGC Houston office.
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.