Changing its previous stance, the National Labor Relations Board now rules 3-2 that in back pay penalties involving a union “salt,” it will no longer presume that employment would have continued indefinitely from the date of discrimination against the union organizer until a valid offer of reinstatement is made.

The case involves a refusal by an Oklahoma contractor to hire a paid union organizer. The company was found to have engaged in illegal discrimination based on antiunion animus, but in assessing the backpay penalty, the Board drew a distinction between job applicants normally seeking employment for an indefinite period and union salts, who only remain or intend to remain with the targeted employer until the union decides.

“Given the different considerations applicable where the discriminatee is a union salt, we decline to apply a presumption of indefinite employment and instead shall 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,” the Board holds. Oil Capitol Sheet Metal Inc.