The National Labor Relations Board (NLRB) and the United States Senate have recently delivered a “one-two” punch to organized labor. The first set back for unions was a pro-employer decision by the NLRB that may discourage the use of “salts” by labor unions to infiltrate and organize workers. In 1995, the Supreme Court ruled that an employer cannot reject an applicant solely because he or she is a “salt” encouraged or paid by a union to seek employment for the purpose of organizing the workforce. If an employer was found guilty of discriminating against the “salt,” the NLRB calculated an employer’s back pay liability from the date the salt was rejected until the NLRB issued a final ruling. This usually meant an employer faced years of back pay and interest exposure.

The Board recently rejected this approach and determined that any back pay calculation should assume the salt was seeking employment for a specific purpose with a limited duration. Instead of requiring an employer to prove the rejected applicant was not seeking indefinite employment, the NLRB concluded that the union and the salt “are in the best position” to prove how long the applicant would have worked.

Union organizing efforts suffered a second setback with the Senate’s recent vote on the Employee Free Choice Act (“card check” bill). Organized labor’s top legislative priority was designed to grant a union bargaining rights, without a secret ballot election, if a majority of employees signed union cards. The legislation passed the House 241-185 in March, but labor’s supporters could garner only 51 votes in the Senate on a vote for cloture (which requires 60 votes), thereby preventing the bill from moving to the Senate floor for an up-or-down vote.

Although President Bush had promised to veto the Employee Free Choice Act, the bill’s ultimate fate is uncertain because the leading Democratic candidates for President support the legislation. Stay tuned for organized labor’s inevitable annual push to change the union organizing process to the detriment of employees and their employers.