[Congressional Record Volume 144, Number 120 (Friday, September 11, 1998)]
[Senate]
[Pages S10263-S10264]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      THE TRUTH IN EMPLOYMENT ACT

  Mr. KENNEDY. Mr. President, last night my Republican colleagues filed 
cloture on the so-called Truth in Employment Act. Supporters of this 
deceptively-titled bill claim that it is designed to bar a union 
organizing technique known as ``salting.'' Under that technique, union 
supporters seek a job at a non-union shop with the intention of 
persuading co-workers to join the union.
  I oppose this legislation, and I urge my colleagues to oppose 
cloture. I believe that salting, like other types of organizing 
activity, should be protected by the labor laws.
  Under the bill, employers could make employment decisions based on 
their subjective view of an employee's motivation. If an employer 
believed that a person was likely to try to organize a union, the 
employer would be free not to hire that person. If an employer 
unilaterally determined that an employee's interest in organizing co-
workers would interfere with her ability to do the job, the employer 
could refuse to hire her. If an employer rightly or wrongly decided 
that an employee might work together with colleagues to change 
conditions on the job, the employer could discharge or discipline the 
employee.
  Many may remember the movie ``Norma Rae,'' starring Sally Field. In 
that film, Norma Rae decided she had had enough of the abusive 
practices in her factory, so she worked with a labor union to organize 
her co-workers so they could stand up to these abuses together. But 
under this bill, Norma Rae could be fired.
  This bill would make mind-reading a protected right under the 
National Labor Relations Act. It would let employers deny work to 
employees based on a perception that they might try to organize a 
union. That perception is most likely to come from the employee's 
membership in a union. In effect, this bill would institutionalize the 
blacklist. That is unacceptable.
  Let us be clear what types of activity are protected under the labor 
laws, and what kinds of conduct would be left open for employer 
retaliation under this bill. Section 7 of the National Labor Relations 
Act protects employees' rights to organize, bargain collectively, and 
engage in other concerted activities for mutual aid or protection.
  If this bill became law, an employer could refuse to hire an employee 
based on a fear that she might band together with co-workers to push 
for an on-the-job child care center. The employer could claim that this 
activity was undertaken in furtherance of an organization other than 
the employer, be it a union or a women's rights organization. 
Therefore, the workers' conduct would not be protected, and the 
employer could discriminate or discharge at will.
  Under this bill, a firm could fire African-American workers who 
together sought Martin Luther King's birthday as a holiday. Once again, 
the employer could argue that the workers were acting in furtherance of 
a civil rights group's goals, and therefore were not protected by the 
National Labor Relations Act.
  Under this bill, a company could deny jobs to employees it believed 
might try to persuade others to support a political campaign, or get 
involved in a community group, or contribute to a church or synagogue. 
And, a firm could refuse to hire workers because they might join a 
union, or persuade others to do so.
  Most of us would agree that discrimination on the basis of race, or 
religion, or gender, or political belief--and many of us would also put 
sexual orientation on that list--is unacceptable in this society. The 
right to self-expression on these important issues flows from the First 
Amendment, and

[[Page S10264]]

has been protected by decades-old federal laws. The National Labor 
Relations Act places an employee's right to organize and bargain 
collectively on an equal footing with these other rights, and so it 
should.
  This bill would effectively repeal that right. It leaves employees in 
an intolerable position.
  In 1995, the National Labor Relations Board ordered nearly 7,500 
workers reinstated. Those workers had been fired unlawfully for union 
activity. Over 26,000 workers discharged for unionizing were awarded 
back pay. On average, workers waited four years from the date of the 
unlawful discharge before being awarded any relief. And, the Dunlop 
Commission on the Future of Worker-Management Relations found in 1994 
that union supporters were unlawfully fired in one out of every four 
union election campaigns.
  These figures demonstrate that workers who become active supporters 
of a union after they are hired run a substantial risk of being fired. 
Under this bill, if the employer thinks an employee might become active 
in a union, that worker never gets the job in the first place. This is 
not progress. Instead, it takes us back to the days when employees 
could be required to sign ``yellow dog contracts,'' promising never to 
join the union, in order to be hired.
  The Supreme Court has emphatically rejected this approach. In 1995, 
the Court unanimously ruled that union supporters are employees 
protected by the National Labor Relations Act when they apply for a 
job. In the Town & Country decision, the Court dismissed the employer's 
claim that union organizers are inherently untrustworthy because they 
owe their primary loyalty to the union. But that is precisely the 
premise underlying this bill.
  Current law gives employers many ways to advance their legitimate 
interests in an efficient and productive workforce--without undermining 
employees' rights to engage in concerted activity. For example, an 
employer can establish a policy barring its employees from all outside 
employment. The Sixth Circuit Court of Appeals held just a few months 
ago that such a policy can be applied against union organizers, so long 
as it is also applied neutrally to all other types of employment.
  Workers who neglect their job duties in order to organize other 
workers can be disciplined or discharged. The Fourth Circuit Court of 
Appeals has held that it is lawful for an employer to fire employees 
who fail to carry out their duties because they are trying to organize.
  Employers can lawfully discipline employees who fail to do the job 
they were hired to do, or disrupt the employer's operations, or engage 
in unlawful conduct. Employers can file charges with the National Labor 
Relations Board, or even the police, if the conduct is criminal. In 
short, employers have many tools available today to address the 
concerns that supposedly motivate this bill.
  Finally, I note that many of this legislation's proponents are also 
strong supporters of the so-called TEAM Act. TEAM Act supporters claim 
that bill is necessary in order to promote employee participation in 
the workplace. The present bill would permit employers to refuse to 
hire workers who band together in order to participate in the 
workplace.
  It is ironic that supporters claim to favor employee participation in 
the one context, but seek to squelch it in the other. The common thread 
appears to be employer domination. Participation is seen as desirable 
only if employers can control the ``team,'' and worker-controlled 
groups such as unions can be prohibited.
  This legislation poses a significant threat to employee rights that 
have been fundamental to our industrial democracy for over 60 years. 
Because the bill is dangerous as well as unnecessary, I must oppose it.
  I yield the floor.
  Mr. BREAUX addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. BREAUX. Mr. President, thank you.

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