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122 national lawyers guild reviewNLRB v. Town & Country Electric, 516 U.S. 85, 116 S.Ct. 450, 133 L.Ed.2d 371(1995), that “salts” who apply for work are by definition disloyal, and therefore notentitled to the protection of the Act if they did not intend to take the job if offered.Oil Capitol adopts a different rule for calculating salts’ backpay that would allowemployers to treat an unfair labor practice charge for firing a salt as if it were aparking ticket.9. Scott v. Stephen Dunn & Associates, 241 F.3d 652 (9th Cir. 2001).10. As Professor Weiler points out, reinstatement does not make the unlawfully vindictiveemployer any less hostile to that employee or the right to organize. Only 40percent of eligible workers take the offer of reinstatement; of those 80 percent aregone within five years. Weiler, supra note 4 at 1791-92. Any delay on the Board’spart only drives those numbers down further.11. And neither a Board order nor a court order can overcome the paradox at the heartof any Gissel order: if these employees are not resolute enough to face up to theemployer’s violations of the Act, then are they resolute enough to strike when theemployer bargains in bad faith? Weiler, supra note 4 at at 1794-95.12. See, Houston Division, Kroger Co., 219 NLRB 388 (1975).13. Adrienne E. Eaton and Jill Kriesky, Union Organizing Under Neutrality and CardCheck Agreements, 55 Industrial and Labor Relations Rev. 42, 51-52 (2001).Unions win approximately 50% of elections conducted by the NLRB, not countingthose campaigns that end without the filing of a petition. Id. at 55.14. According to one study, unions lose 2.5 percent of their support for every monthbetween the filing of a petition and the holding of an election solely as a consequenceof delay. Weiler, Promises to Keep, 96 Harv. L. Rev. at 1777. Unions face evenlonger delays following their election victories when employers file objections withthe NLRB and challenge union victories in the courts.15. Keller Plastics Eastern, Inc., 157 NLRB 583, 587 (1966).16. Linden Lumber v. NLRB,419 U.S. 301, 95 S.Ct. 429, 42 L.Ed.2d 465 (1974).17. ILGWU v. NLRB (Bernhard-Altmann Texas Corp.), 366 U.S. 731, 81 S.Ct. 1613,6 L.Ed.2d 762 (1961).16. Weiler, supra note 4 at 1811-16.17. Kate Bronfenbrenner’s research indicates, moreover, that employers are increasinglylaunching their opposition campaigns—and, judging from the Board’s records, theirunlawful tactics—before the union even files its petition. Bronfenbrenner, supranote 5 at 20-21.18. Weiler, supra note 4 at 1812.19. See, e.g., NLRA § 2(3) (statutory definition of employee excludes supervisors,farm workers, domestic workers and some relatives of the employer) § 9(b)(1)(professionals may only be included in a unit with non-professional employees ifallowed to vote separately for inclusion); § 9(b)(3) (guards may not be included inunit with non-guards or represented by a union that represents non-guards);20. NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348(1941).21. Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992).