In February 2009, President Obama appointed long-time Board member Wilma Liebman as Chairperson of the National Labor Relations Board (NLRB). As a member of the Bush-era Board under former Chairperson Robert Battista, Ms. Liebman dissented from most of the critical pro-employer decisions issued under the Battista Board. Analysis of Liebman's dissenting opinions provides a legal roadmap – charting the likely course the Liebman Board will take if it is able to reconsider the issues addressed in these critical decisions.

Ford and Harrison's NLRB UPDATE is a 10-part series, analyzing critical decisions issued by the Bush-appointed Battista Board that likely will be overturned in the next few years if reconsidered by the Obama-appointed Liebman Board.

NLRB UPDATE PART VI: LIEBMAN BOARD MAY EXPAND PROTECTIONS AFFORDED TO UNION SALTS

Overview

In 2007, the Bush-appointed Battista Board issued a pair of decisions that significantly curtailed potential "salting abuses" by union organizers. First, in Oil Capitol Sheet Metal, Inc., 349 N.L.R.B. 1348 (2007), the Battista Board adopted a new evidentiary standard for establishing the duration of the backpay period in salting discrimination cases – eliminating the presumption of "indefinite employment" and requiring that the alleged discriminatee present affirmative evidence that he or she would have worked for the employer for the backpay period claimed. Second, in Toering Electric Company, 351 N.L.R.B. 225 (2007), the Board held that an applicant who is not "genuinely interested" in an employment relationship with the employer is not entitled to statutory protection against discrimination based on his or her union activities.