[Congressional Record Volume 144, Number 14 (Tuesday, February 24, 1998)]
[Extensions of Remarks]
[Pages E195-E196]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page E195]]



         FAIRNESS FOR SMALL BUSINESS AND EMPLOYEES ACT OF 1998

                                 ______
                                 

                        HON. WILLIAM F. GOODLING

                            of pennsylvania

                    in the house of representatives

                       Tuesday, February 24, 1998

  Mr. GOODLING. Mr. Speaker, I rise today to introduce a bill which 
will help small businesses, small labor organizations, and employees, 
in their dealings with the large, aggressive, and burdensome 
bureaucracy known as the National Labor Relations Board.
  The Fairness for Small Business and Employees Act of 1998 (FSBEA), is 
a bill with four titles--each title a bill previously introduced last 
session--which will level the playing field for small entities and 
greatly assist employees waiting for justice from the Board. The Act 
will assist small businesses and labor organizations in defending 
themselves against government bureaucracy; ensure that employees 
entitled to reinstatement get their jobs back quickly; protect the 
right of employers to have a hearing to present their case in certain 
representation cases; and, prevent the use of the National Labor 
Relations Act for the purpose of disrupting or inflicting economic harm 
on employers.
  Let me say how appreciative I am of my friend, Rep. Harris Fawell, of 
Illinois, chairman of the Subcommittee on Employer-Employee Relations. 
Rep. Fawell is the author and sponsor of three of the bills 
incorporated into this legislation. He has for years done the heavy 
lifting on labor bills, and brings an unmatched expertise and 
enthusiasm to these issues. Today I introduce the Fairness for Small 
Business and Employees Act of 1998 with great gratitude to Rep. Fawell, 
and anticipation that he will bring his wisdom to bear as this bill 
moves through committee and to the floor of the House.
  Title I of the FSBEA addresses the problems employers face when 
victimized by ``salting'' activity--which includes disruption to the 
workplace, a decline in productivity and quality, and economic hardship 
on the company and employees who are legitimately working for the good 
of the company.
  ``Salting'' involves sending paid or unpaid professional union agents 
and union members into non-union workplaces under the guise of seeking 
employment. These agents often state openly that their purpose is to 
advance union objectives by organizing the employer's workforce. If an 
employer refuses to hire the union agents or members, the union files 
unfair labor practice charges.
  Alternatively, if the ``salts'' are hired by the employer, they often 
attempt to persuade bona fide employees of the company to sign cards 
supporting the union--indeed, that is their sole purpose in accepting 
employment. The union agents also often look for other reasons to file 
unfair labor practice charges, solely for purposes of imposing undue 
legal costs on the employer they are seeking to organize.
  Thus, under current law an employer must choose between two 
unpleasant options; either hire a union ``salt'' who is there to 
disrupt the workplace and file frivolous charges resulting in costly 
litigation, or deny the ``salt'' employment and risk being sued for 
discrimination under the NLRA.
  The committee has held numerous hearings on the most abusive aspects 
of union ``salting.'' Rep. Fawell introduced H.R. 758, the Truth in 
Employment Act, on February 13, 1997. He has refined that Act's 
language, and it is now Title I of the FSBEA.

  Title I would amend Section 8(a) of the NLRA to make clear than an 
employer is not required to hire any person who is not a ``bona fide'' 
employee applicant, in that ``such person seeks or has sought 
employment with the employer with the primary purpose of furthering 
another employment or agency status.'' It is common sense that an 
employer should not have to hire someone whose true intention is not to 
work for the employer. Title I sets up a test that would require a 
determination of the applicant's ``primary purpose.'' If the 
applicant's motivation is at least 50 percent to work for the employer, 
they are a ``bona fide'' applicant under Title I and enjoy full rights 
and protections of the NLRA. This legislation will help restore the 
balance of rights that ``salting'' upsets, and that is fundamental to 
our system of labor-management relations.
  Title II of the FSBEA is formerly H.R. 1595, the Fair Hearing Act, 
introduced by Rep. Fawell on May 14, 1997. Title II would require the 
NLRB to conduct hearings to determine when it is appropriate to certify 
a single location bargaining unit in cases where a labor organization 
attempts to organize employees at one or more facilities of a multi-
facility employer.
  This title is a response to the NLRB's attempt to impose a ``one-
size-fits-all'' rule for determining the appropriateness of single 
location bargaining units. The Board's proposed rule ignores many 
factors relevant to a bargaining unit's appropriateness, and is a rigid 
test that ignores realities of the workplace, and undermines the 
ability of employers to develop flexible solutions to the needs and 
demands of their workforces. Congress has attached riders to 
appropriations bills the past two years to prevent the Board from 
spending any money to impose such a rule, but Title II is necessary to 
ensure that a specific analysis is conducted of whether or not a single 
location unit is appropriate, given the facts and circumstances of a 
particular case. The NLRB wisely decided last week to withdraw its 
proposed rule, but Title II will permanently protect the employer's 
right to a fair hearing, and give employers assurance that the Board 
will not resurrect its proposed rule.
  A hearing process--as the Board has conducted for decades--will allow 
a more complete examination of the comprehensive approach to human 
resource policies and procedures pursued by many employers today that 
may influence the bargaining unit determination.
  Title III of the FSBEA is formerly H.R. 1598, the Justice on Time 
Act, which I introduced on May 14, 1997. Title III ensures that the 
NLRB resolves in a timely manner all unfair labor practice complaints 
alleging that an employee has been unlawfully discharged to encourage 
or discourage membership in a labor organization. The legislation 
amends Section 10(m) of the NLRA to make clear that the Board must 
dispose of the case not later than 365 days after the filing of the 
unfair labor practice charge. The legislation provides an exception for 
cases involving ``extreme complexity.''
  Title III recognizes that the lives of employees and their families, 
wondering whether and when they will get their jobs back, are hanging 
in the balance during the long delays associated with the NLRB's 
processing of unfair labor practice charges. It also recognizes that 
the discharge of an employee who engages in union activity has 
a particularly chilling effect on the willingness of fellow employees 
to support a labor organization or to participate in the types of 
concerted activity protected by the NLRA.

  The median time for the NLRB to issue a decision on all unfair labor 
practice cases in fiscal year 1996 was 591 days and has generally been 
well more than 500 days since 1982. This length of time is a disservice 
to the hard-working men and women who seek relief from the Board, and 
Title III sends a strong message that the NLRA can provide effective 
and swift justice.
  Title IV is formerly H.R. 2449, the Fair Access to Indemnity and 
Reimbursement (FAIR) Act, which Rep. Fawell introduced on September 10, 
1997. Title IV amends the NLRA to provide that a small employer which 
prevails in an action against the NLRB will automatically be allowed to 
recoup the attorney's fees and expenses it spent defending against the 
unworthy action.
  Title IV would apply to an employer (including a labor organization) 
which has not more than 100 employees and a net worth of not more than 
$1.4 million. These limits represent a mere 20 percent of the current 
500 employee/$7 million net worth eligibility limits for employers 
under the Equal Access to Justice Act (EAJA), a bill passed with strong 
bipartisan support in 1980 to provide small businesses with an 
effective means to fight against abusive and unwarranted intrusions by 
federal agencies. The EAJA--the vehicle by which employers prevailing 
against the Board must currently try to recover attorney's fees and 
costs--has proven ineffective and is not often utilized against the 
NLRB.
  A government agency the size of the NLRB--well-staffed, with numerous 
lawyers--should more carefully evaluate the merits of a case before 
bringing a complaint against a small business, which is ill-equipped to 
defend itself against an opponent with such superior expertise and 
resources. Furthermore, small employers have been victimized by 
relatively frivolous lawsuits by the Board, but have been unable to 
fight the case to its conclusion based on the merits due to lack of 
resources, and have had to settle the case. Title IV would at least 
provide some protection for a small

[[Page E196]]

employer or union which feels strongly that its case merits full 
consideration. If the Board brings a losing case against a ``little 
guy,'' it should pay the attorney's fees and expenses the company or 
labor organization had to spend to defend itself.
  As a package, these four titles will greatly level the playing field 
for small companies and unions as they deal with the NLRB; will make 
sure that employees can depend on the Board for quick justice; will 
protect a multi-location employers' current ability to have a hearing 
to look at all relevant factors in determining the appropriateness of a 
single location bargaining unit; and will help prevent the NLRA from 
being used to inflict economic damage on employers.

                          ____________________