Leiser Construction, LLC

National Labor Relations Board - Unpublished Board Decisions

Jul 21, 2010

17-CA-023177 (N.L.R.B. Jul. 21, 2010)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
LEISER CONSTRUCTION, LLC
AND Case 17-CA-23177
IRON WORKERS LOCAL UNION NO. 10,
A/W INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTUAL, ORNAMENTAL &
REINFORCING IRON WORKERS, AFL-CIO
ORDER
The Charging Party's Request for Review of the General Counsel's decision
affirming the Regional Director's compliance determination is denied. The Charging
Party argues, inter alia, that (1) Oil Capitol Sheet Metal, Inc.1 was wrongly decided; (2)
retroactive application of Oil Capitol will result in manifest injustice; (3) Oil Capitol
should not be applied to this proceeding because the discriminatees were not "salts";
and (4) the Region did not properly apply Oil Capitol principles.

1 349 NLRB 1348 (2007), pet. for review dismissed 561 F.3d 497 (D.C. Cir. 2009). In
Oil Capitol, the Board held that “the traditional presumption that [a discriminatee’s]
backpay period should run from the date of discrimination until the respondent extends
a valid offer of reinstatement” no longer applies where the discriminate is a union salt.
349 NLRB at 1349. The Board accordingly held that it would “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.” Id. The Board also held that an instatement order for a
salt/discriminatee would be subject to defeasance if, at the compliance stage, the
General Counsel “fails to prove by affirmative evidence the reasonableness of a claim
that the backpay period should run indefinitely … .” Id.
2
We decline to address at this time the Charging Party’s argument that Oil Capitol
was wrongly decided.2 Further, we find that the Charging Party has failed to show that
retroactive application of Oil Capitol will result in “manifest injustice” and that the
discriminatees were not “salts.”3 Accordingly, we find that the Regional Director
correctly applied Oil Capitol to this proceeding.4
We additionally find that the Regional Director properly applied Oil Capitol
principles in limiting the backpay period for discriminatees Michael Bright and Richard
Christopherson to 2 weeks . The Region’s investigation showed that their prior
employment as salts had been short-term. Indeed, none of the discriminatees’ 11 prior
instances of employment as salts lasted longer than 1 month. Moreover, without other
evidence to refute the historical data demonstrating the consistently short duration of
the discriminatees’ employment under similar circumstances, the Region could not
affirmatively prove that the discriminatees would have continued employment with the
Employer beyond a short period of time. We therefore find, with respect to Bright and
Christopherson, that, absent other relevant evidence, utilizing the average duration of
their employment in prior salting efforts was an appropriate methodology for determining

2 For this reason, we also deny the Charging Party’s Motion for Briefing and/or
Consolidation, requesting the Board to consolidate this case with other cases which
also seek to have the Board overturn its decision in Oil Capitol.
3 Under Board law, salts are “individuals, paid or unpaid, who apply for work with a
nonunion employer in furtherance of a salting campaign.” Oil Capitol, 349 NLRB at
1348 fn. 5. A salting campaign, in turn, is defined as a campaign in which a union
sends its member(s) to an unorganized job site “to obtain employment and then
organize the employees.” Tualatin Electric, 312 NLRB 129, 130 fn. 3 (1993), enfd. 84
F.3d 1202 (9th Cir. 1996).
4 Chairman Liebman, who dissented in Oil Capitol, concurs in the denial of the
Charging Party’s Request for Review. While Chairman Liebman believes that claims of
manifest injustice resulting from retroactive application of a new legal rule should be
considered on a case-by-case basis, she agrees that the Charging Party has not shown
manifest injustice here.
3
their backpay because it provided the best estimate of how long they would have
remained on the job with the Employer.5 We further find, with respect to discriminatee
David Coleman, that an estimate was not required because the Region had actual
evidence of how long he was employed by the Employer. We therefore agree that in
these circumstances, the Regional Director did not err in applying Oil Capitol.
Accordingly, we conclude that the Charging Party has failed to establish a
sufficient basis for reversing the Regional Director's compliance determination.
Dated, Washington, D.C., July 21, 2010.
WILMA B. LIEBMAN, CHAIRMAN
CRAIG BECKER, MEMBER
MARK GASTON PEARCE, MEMBER

5 In calculating the average duration of Bright’s and Christopherson’s prior employment,
the Regional Director included two instances in which they were discharged, allegedly
for discriminatory reasons. Were we to assume arguendo that these allegations are
true, we would then logically find that the Regional Director improperly included these
involuntary termination dates in calculating how long the employees would have chosen
to remain at work for the Respondent. Nor should the unlawful actions of other
employers serve to limit the liability of the Respondent for its unlawful acts.
Nonetheless, we find that the Regional Director’s inclusion of these two foreshortened
periods of employment here was harmless error because it did not substantially affect
his determination of the appropriate backpay periods for Bright and Christopherson.