[Congressional Record Volume 144, Number 121 (Monday, September 14, 1998)]
[Senate]
[Pages S10304-S10309]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TRUTH IN EMPLOYMENT ACT
The PRESIDING OFFICER. Under the previous order, the hour of 5 p.m.
having arrived, there will now be 30 minutes for debate equally divided
in relation to S. 1981. The Senators from Arkansas and Massachusetts
control the time.
Mr. HUTCHINSON addressed the Chair.
The PRESIDING OFFICER. The distinguished Senator from Arkansas is
recognized.
Mr. HUTCHINSON. Thank you, Mr. President.
I think we have before us a bill that is very important and well
worth the time that we have taken debating it on the floor of the
Senate today. This bill deals with the unconscionable practice of some
labor unions today to send paid salts or unpaid salts into a business
under the guise of working for that employer but when the real intent
is to wreak economic damage and ultimately bring a business and
employer to his or her knees.
Salting is the calculated practice of placing trained union agents in
a nonunion workplace whose primary purpose is to harass, disrupt
company operations, apply economic pressure, increase operating and
legal costs, and ultimately put the company out of business.
Mr. President, the Truth in Employment Act simply inserts a provision
in the NLRA freeing an employer from the requirement of employing ``. .
. 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.'' In
other words, an employer is not required to hire an employee whose
primary--primary purpose--I emphasize, whose primary purpose in
applying for a job is not to work and benefit the company.
Participation in union activities or an in-house employee organizing
committee would not constitute employment or agency status. It simply
allows employers to not hire overt salts and to give employers recourse
against covert salts--those who would come in surreptitiously.
The bill also specifically protects the rights of bona fide employees
to self-organization, labor organization membership, and collective
bargaining.
Let me just take a moment to emphasize what this bill will not do,
because it has been so grossly mischaracterized by those who want to
see this practice continue in the American workplace.
No. 1, it does not undermine legitimate rights or protections.
Employers will gain no ability to discriminate against union membership
and activities or activities, or activities in other organizations. It
only seeks to stop the destructive practice of salting; that is all.
No. 2, it does not prevent union organizing or other types of
organizing, such as women advocacy groups or a day-care program in the
workplace. It does not prevent women and minorities from advocating
their rights. It does not change the definition of ``an employee'' and
what an employee is.
It does not overturn the decisions of the Supreme Court. It does not
overturn the decision of Town & Country Electric, Inc., which stated
that paid union organizers can fall within the literal, statutory
definition of ``employees.''
It does not create a system of blacklists. And it does not promote
mind reading or mind control, as some of my colleagues would suggest.
Salting is not a product of my imagination, it is a very great
reality in the workplace today.
Jack Allen, previously of Thomasville, GA, provided an account of his
experiences to Representative Allen Boyd of Florida, where he currently
is employed. Allen Electric was founded by his father in 1947. He
eventually took over the company.
Mr. Allen's family-owned business, passed down from his father,
eventually sank under the heavy financial weight of legal expenses--
expenses incurred because he tried to defend himself against fraudulent
discrimination charges by union salts.
Mr. President, this legislation will prevent others from suffering
the injuries that Mr. Allen suffered--the loss of his family company,
the loss of all his hard work, the loss of his reputation.
I think it is wrong for us, under current law, to compel employers to
hire someone who comes into the workplace with the goal of disrupting,
destroying, and eventually bankrupting their employer. That is wrong.
This is a modest piece of legislation that takes a small step in
restoring balance and fairness in employee-employer relations. I ask my
colleagues to support this motion to invoke cloture.
I reserve the remainder of my time and yield the floor.
Several Senators addressed the Chair.
Mr. KENNEDY. I yield my colleague 7 minutes.
Mr. WELLSTONE. I thank my colleague.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, I say to my good friend--he is a good
friend--Senator Hutchinson, I have looked through the language, and
under the section dealing with protection of employer rights--maybe
there should be another time my colleague should bring this bill to the
floor because this bill, in its present form, would allow an employer
not to hire someone who might simply have an interest in joining a
union. It is that ambiguous.
I say to my colleague that while this isn't his intention, it sort of
reminds me--you cannot have such broad language. It is sort of like the
days a long time ago--it is not the intention of my colleague from
Arkansas; and I think my colleague from Massachusetts would appreciate
this--where the Irish had a hard time getting jobs because people
assumed, ``They might very well come in there and organize a union.''
We cannot go back to those days.
Or as I look at this piece of legislation, you have a situation where
maybe an employer would not hire a minority for fear that that
minority, based upon her past experience, might come into the workplace
and say to other people, ``Listen. We're not getting a fair shake.'' Or
the same thing can hold true with someone who has been active in the
National Organization for Women, and the argument might be, ``We don't
want to hire such a person because, again, they might engage in the
kind of activity that we would prohibit.''
Or you might get into a situation where you do not want to hire
someone--I think we have had that discussion before--who might come in
and, because of her background--she is an activist--``My gosh, she
might come in and start organizing with other women and say, `You know
what? We ought to be going to our employer and saying this ought to be
a more family-friendly workplace. We need good child care here.' ''
This is a piece of legislation which is so broad in its application
and so ambiguous, I say to my friend from Arkansas, that this is an
enormous step backward.
I only have a few minutes, and if I get more time we can go to
debate, but I just want to simply say that I think the direction we
ought to go in--because the truth about this Truth in Employment Act is
that it just takes us back decades. It is unacceptable.
I have a piece of legislation that I have introduced called the Fair
Labor Organizing Act. Let us talk about, What is the truth when it
comes to the imbalance of power between employers and employees right
now? If there is going to be a focus on how parents or a parent can do
their best by their kids--in which case, they do their best by our
country--then part of the focus is going to be on living-wage jobs.
That speaks to the right of people to organize and bargain
collectively, to earn a
[[Page S10305]]
decent living, and give their children the care they know their
children need and deserve. This piece of legislation goes exactly in
the opposite direction.
Now, the Fair Labor Organizing Act--and I would love to have support
from my colleague on this--says three or four things. It says, first of
all, let us talk about what is going on, the reality, the truth of what
is going on right now. It says, first of all, that when it comes to
organizing, companies do not get to give captive-audience speeches; the
employees, the workers, also are going to have a right to hear someone
from the union. Free flow of information.
The second thing it says is that companies--let's talk about the
truth. The truth is that, right now, there are too many companies that
hire union-busting consultants and illegally fire people. Some 10,000
people a year are illegally fired because they want to do nothing more
than join a union, have some power, bargain for a decent wage and do
well for their families. What the Fair Labor Organizing Act, which I
have introduced, says is that if a company does that, it is not going
to be profitable for them to do that any longer. They are going to pay
serious back pay. There are going to be serious fines on them.
The third thing we say in this legislation is that even if people are
lucky enough to be able to organize a union and aren't fired while they
are trying to do so, then all too often companies just stonewall and
refuse to sign a contract, in which case they will go to binding
arbitration, mediation.
I say to my colleague from Arkansas that if, in fact, we want to talk
about truth in employment, then we ought to deal with the truth of the
matter, which is right now we have egregious examples of people being
illegally fired, not able to organize, not able to bargain
collectively, and this legislation goes in exactly the opposite
direction.
This has very little to do with truth in employment. This has a whole
lot to do with basic first amendment rights. This has a whole lot to do
with giving those companies--I hope there are not too many, and I don't
think there are; unfortunately, there are more than I wish there would
be--a huge loophole whereby they simply don't have to hire somebody who
potentially might have an interest to join a union, or she calls on her
colleagues to join a union. It is unacceptable. You can't have a piece
of legislation passed with this kind of mandate. We can't give
companies a mandate not to hire women, not to hire minorities, not to
hire activists who might want to join a union or want other members to
join a union, not to hire men or women who want to fight for more child
care. That is what this legislation does. Bring back another piece of
legislation which doesn't have this kind of language and I will support
it. But tonight I come to the floor to say to my colleagues that there
should be an overwhelming vote against this piece of legislation.
How much time do I have left?
The PRESIDING OFFICER. The Senator has 20 seconds.
Mr. WELLSTONE. I yield the remainder of my time.
The PRESIDING OFFICER. The Senator from Massachusetts has 7 minutes
44 seconds, and the Senator from Arkansas has 10 minutes 30 seconds.
Mr. HUTCHINSON. Mr. President, I yield 4 minutes to the distinguished
assistant majority leader, Senator Nickles from Oklahoma.
The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
Mr. NICKLES. Mr. President, first, I wish to compliment my colleague
from Arkansas for bringing this bill to the floor. I urge my colleagues
to vote in favor of it. In response to my colleague from Minnesota, I
think he should read the legislation. In reading the legislation, the
protection of employer rights, section 8(a) of the NLRA is amended on
line 22 to read:
Nothing in this subsection shall be construed as requiring
an employer to employ 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: Provided,
That this sentence shall not affect the rights and
responsibilities under this Act of any employee who is or was
a bona fide employee applicant, including the right to self-
organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining. . . .
Mr. President, under the legislation my colleague from Arkansas has,
an employee can come in, and if they want to help organize or
participate in the collective bargaining process, they can do so. But
they have to have the primary purpose of employment, of working with
the employer. It can't be to circumvent and say, no, we want to work
full time for the union, even to the destruction of the company.
Unfortunately, that happens today to some companies that might be
nonunion. The organizers who are trying to unionize the company
sometimes say, ``We would rather destroy that company if they are not
going to be union.'' I will read you one comment that was in the
International Brotherhood of Electrical Workers' organizing document on
how to use salting techniques:
Phase 3 is infiltration, confrontation, litigation,
disruption, and annihilation of all nonunion contractors. If
we cannot get inside and organize, then we must disrupt the
operations of the nonunion contractor.
That is a quote. I understand they have now taken that out of their
organizational manual. But, in essence, they want to infiltrate and do
everything they can to disrupt, and that means filing untold numbers of
unfair labor practices. That means filing untold numbers of OSHA
complaints, and any other thing to disrupt the company and make them an
unsuccessful organization. Unfortunately that happens.
I have a letter from one of my small companies in Oklahoma, dated May
29, 1998. He is telling a story and talking about filing false and
incorrect reports with the NLRB:
We hired an attorney to represent us in these proceedings.
Each time, we had proof, and sometimes outside witnesses, to
prove our side of the story.
It goes on and on and on and talks about harassment. So I compliment
my colleague from Arkansas. I think he is exactly right. I urge my
colleagues to vote in favor of this bill.
Mr. President, I have two editorials. One is dated June 8 of this
year, from the Daily Oklahoman, entitled ``Salt, Not Light.'' It
repeats the real essence of this legislation, why it is needed. Also, I
have one that was in today's Washington Times, entitled ``Pass the Salt
Reform.'' It is dated Monday, September 14.
I ask unanimous consent to have these printed in the Record.
There being no objection, the articles were ordered to be printed in
the Record, as follows:
[From the Daily Oklahoman, June 8, 1998]
Salt, Not Light
At a recent congressional hearing the owner of a non-union
electrical contracting firm explained that his company had
been hit by 85 unfair-labor-practice complaints since 1985,
all dismissed as frivolous.
One came from a worker who'd been fired for refusing to
wear his hard hat on his head. ``He would strap it to his
knee and then dare us to fire him because he said our policy
stated only that he had to wear the hard hat--it (the
employee manual) didn't say where he had to wear it,'' said
John Gaylor of Carmel, Ind.
The worker was a ``union salt'' sent to harass a non-union
business. Gaylor's firm is a favorite target of the
International Brotherhood of Electrical Workers (IBEW). He
budgets $250,000 a year to fight frivolous complaints.
``Union salting'' is a serious problem for small
businesses. Union members are sent to disrupt productivity.
According to the IBEW's organizing manual, the idea is to
``threaten or actually apply the economic pressure necessary
to cause the employer to . . . raise his prices, to recoup
additional costs, scale back his business activities, leave
the union's jurisdiction, go out of business and so on.''
It's big labor's version of guerrilla warfare, and it
should be stopped. In March the U.S. House passed a bill to
free employers from having to hire anyone who seeks a job to
pursue interests unrelated to their own. The bill would
require the National Labor Relations Board (NLRB) to decide
complaints related to union membership within a year. It
would mandate reimbursement for attorneys fees and other
costs if NLRB sues a small company and loses.
The Senate should follow the House's lead. Congress also
should reject Bill Clinton's nomination (AFL-CIO lawyer
Laurence Cohen) to be the NLRB's general counsel. Cohen is
the father of union salting and as such is the wrong choice
for the NLRB, which is supposed to be a non-partisan arbiler
in labor-management conflicts.
____
[From the Washington Times, Sept. 14, 1998]
Pass the Salt Reform
The story goes that a small Dallas electrical company of
about 30 employees won a
[[Page S10306]]
bid for work on a school construction project and ran an ad
inviting workers to apply. When a local electricians' union
responded to the ad, as Rep. Sam Johnson described the
incident in debate earlier this year, their hiring blew the
company's fuse.
The union members, he said, ``staged small strikes by
leaving the job for three or four hours but returning just
before they could be replaced. They also sabotaged the
electrical work and went on to file close to 50 grievances
against the company, eventually driving it out of business.''
What the company didn't know was that it had hired
``salts,'' union members sprinkled into non-union companies
with the goal not of organizing them along union lines but of
sabotaging them financially. It's an increasingly popular way
for Big Labor to beat non-union firms with which it can't
compete.
As one former salt testified, ``Salting has become a method
to stifle competition in the marketplace, steal away
employees and to inflict financial harm on the competition.
Salting has been practiced in Vermont for over six years, yet
not a single group of open-shop electrical workers have
petitioned the local union for the right to collectively
bargain with their employers.''
What makes this practice particularly effective is, first,
that as of now it is perfectly legal and, second, salts can
win even when they lose simply by running up a company's
legal bills with frivolous charges filed with the National
Labor Relations Board, the Occupational Safety and Health
Administration and other federal agencies. Among the
casualties to date: a Carmel, Ind., firm that faced 96
charges, all of them dismissed, but has run up $250,000 in
legal bills trying to defend itself; a Cape Elizabeth, Maine,
company that faced 14 charges, all dismissed after spending
$100,000 in legal bills; a Clearfield, Pa., firm faced with
as many as 20 charges, all but one dismissed, but a $75,000
legal bill plus lost time that eventually forced it out of
business after 38 years.
Companies faced with this kind of extortion fear they can't
afford to win. Given the choice of pyrrhic financial victory
or paying off the salts and settling the case for less, many
choose to settle.
A more cynical exploitation of ``worker rights'' is hard to
imagine, but it has been hard to reform existing law. By just
a two-vote margin along party lines earlier this year, the
House of Representatives approved reform amid much clucking
about the Republican Party's anti-worker tendencies.
Today, the Senate is scheduled to take up the matter with a
vote to shut off debate on the issue. The focus of the debate
is legislation introduced by Arkansas Sen. Tim Hutchinson
that attempts both to protect the right to organize and to
prevent its abuse. The bill specifies that any bona fide job
applicant, union or non-union, is entitled to all the rights
and responsibilities that go with the job (i.e., to join a
union, to bargain collectively and so on). But if the
applicant has sought employment with the primary purpose of
promoting the agenda of some other organization or business,
a company is not required to employ him. Put another way, if
the applicant would not have sought the job but for his union
mission, then he is a salt not entitled to the usual worker
rights.
By passing such a law, the Senate would protect not just
companies but taxpayers whose money covers the cost of agency
hearings and other administration that results from union
salting. Workers might have a better opportunity to air
legitimate grievances, too. It's time to put union on a low-
sodium legislative diet. It's time to pass the salt reform.
Mr. KENNEDY. Mr. President, as I understand it, we have 7 minutes.
The PRESIDING OFFICER. The Senator from Massachusetts has 7 minutes
41 seconds.
Mr. KENNEDY. Mr. President, I yield myself 4 minutes.
First, let's remind ourselves of what this legislation is all about.
Its purpose is to say to American workers who are qualified for a job
that they will be denied employment if they have an intent to try to
organize co-workers in nonworking areas and during nonworking hours.
Very clearly, you can't have it both ways. You can't say we are
really not trying to overturn the Town and Country case. All you have
to do is look at what the testimony was before our committee. Every
single person who supports this bill wants to reverse that case.
Second is the idea that these workers are going in to destroy the
company. What good does it do to organize if they are there to destroy
it? That makes no sense. The claim makes no sense.
Mr. President, it is very clear what the court holdings are. First of
all, if a company doesn't want to hire individuals who are paid by a
union to organize the workforce, which has been a protected right for
over 60 years, all the company has to do is set a blanket rule barring
all other employment. That solves the problem--do it for those who are
paid by the union, and for those who are going to be moonlighting. That
solves the problem. We don't need legislation, Mr. President--they can
do that today.
Mr. President, the court decisions also make plain that you can fire
any employee who neglects their duties. If workers are disruptive on
the jobsite, current law allows them to be fired.
Supporters claim that these workers won't do their jobs, but instead
will file phony charges with government agencies. But the law allows
companies to recover attorney's fees if an unjustified charge is
pursued.
Mr. President, we have to look at what is the issue. The issue is
fundamental. It is whether we in this country are going to permit
workers who have the ability to do the job, and who are performing
their job--whether we are going to muzzle them, to blacklist them and
say under no circumstances can they go out there and try to persuade
workers to join a union.
If the company finds out that they are going to be organizing a
union, they can go ahead and fire them. That is what this language
says--go out there and fire them right away.
Mr. President, this applies not just to those individuals who hold an
employment status with a union, but those who hold an ``agency
status.'' What in the world does that mean? I will tell you what it
means. That means, for example, of the 100 top CEOs in the restaurant
industry, there isn't a single woman--not one, not a single woman. Do
you understand that--in the restaurant industry, of the top 100 CEOs,
none is a woman? So workers go in and say, ``We want to break the glass
ceiling in the restaurant industry.'' Under this bill, the employer can
say ``Oh, no. Oh, no. You have another thought in mind. You may need
this job. You may want this job. You may do it very well. But if you
intend to try to do something about equal pay for women, try to do
something about a child care program, try to do something to break the
glass ceiling, oh, no. Oh, no.'' These workers can be fired by the
employer as well.
This is a continuation of the effort that we have seen in the last 3
years to attack working families' income, and the rights of working
families to represent themselves and try to persuade individuals to be
part of their union. If they don't choose to be, so be it. If they do
choose to be, so be it as well. But you are denying them that
opportunity to choose.
Mr. President, we have to ask ourselves now on a Monday night why we
are debating this particular issue when we have a Patients' Bill of
Rights ready to go. We could be debating those issues which are of such
basic, fundamental importance and significance to families in this
country.
I withhold the rest of my time.
Mr. HUTCHINSON addressed the Chair.
The PRESIDING OFFICER. The Senator from Arkansas is recognized.
Mr. HUTCHINSON. Mr. President, it is a little frustrating for me
because there could be nothing more unambiguous than the language in
this bill. As often as somebody wants to get up and yell and scream and
have a tirade about this being disruptive of workers' and union
members' rights and the rights to organize, if you simply read the
bill, it says unambiguously and very forthrightly that there is nothing
in this bill that will interfere with ``. . . a bona fide employee
applicant, including the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through
representation of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection.''
Mr. KENNEDY. Will the Senator yield on my time? Who is going to make
that decision? The employer is going to make that decision.
The PRESIDING OFFICER. The Senator from Arkansas has the time.
Mr. HUTCHINSON. I will be glad to yield for a question, not a speech.
Mr. KENNEDY. Who is going to make the decision?
Mr. HUTCHINSON. The NLRB will make the decision, because the employee
has the right to file that complaint and go to the NLRB. But the burden
of proof will be different. It will be the NLRB attorney who certifies
that he was a bona fide employee applicant and not someone who went in
for the purpose of destroying that company.
[[Page S10307]]
I would like to yield 3 minutes to my distinguished colleague from
Colorado.
The PRESIDING OFFICER. The distinguished Senator from Colorado is
recognized.
Mr. ALLARD. Mr. President, I thank the Senator for yielding.
Mr. President, I am rising in support of Senate bill 1981, the Truth
in Employment Act.
I agree with my colleague from Arkansas that we do protect the right
of employees to organize under the National Labor Relations Act. The
problem is that we have small businesses out here that are being
harassed and their businesses are being disrupted. I want to take a
minute to explain to you or relate an incident that happened in Denver,
CO. It is a real life story of what happened.
This businessman, who happened to be an electrical contractor, saw a
van pull up in front of his business. Seven union organizers jumped out
of the van, ran into his office, and they applied for a job with the
business. They had their videotape running. When all was said and done,
he hired some of them and put them to work. When all was said and done,
when all the harassment was done, and all of the later procedure and
everything, there was a considerable amount of cost to the company in
management time as well as actual dollars. It ended up that there were
approximately 19 frivolous and sometimes false charges with the
National Labor Relations Board. Each one of those charges was
eventually dropped. However, the company had already dedicated 500
management hours to deal with problems created by these salting workers
and suffered financial losses of more than $1 million.
This is not workers' rights, this is going out and harassing your
competition. It is going out and disrupting another company that is
trying to compete in the fair marketplace. It doesn't have anything to
do with jobs. What it ends up doing is costing the consumer. You and I,
as consumers of electricity, will have to pay more electrical rates
because of this type of activity that increases the cost of providing
the services that consumers end up utilizing.
I think this is a good bill. I am rising in support of it. I urge my
colleagues to support this. I think my colleague from Arkansas is doing
the right thing. I believe that we are protecting the rights of
employees. What we are doing is eliminating the harassment and the
unnecessary cost to the employer.
I yield the remainder of my time.
Mrs. BOXER. Mr. President, I oppose the bill before us--S. 1981--
because it would ban a perfectly legal and protected activity which was
upheld in 1995 by a unanimous Supreme Court decision. The bill would
ban ``salting,'' which occurs when efforts are made by union supporters
to gain employment with nonunion employers to organize their fellow
employees during non-working hours.
This bill, I believe, is an attack on the working men and women of
this country who choose to exercise their legal rights. For the first
time since the enactment of the National Labor Relations Act (NLRA),
employers could refuse to hire workers or could terminate workers who
sought or obtained employment because they intended to engage in
organizing activities.
Although the proponents of S. 1981 contend the bill merely prevents
employers from being forced to hire union organizers, the actual impact
of this bill would be significantly broader. For example, under S.
1981, employers could refuse to hire pro-union applicants even if they
were not paid union organizers. In addition, an employer could deny
employment to an applicant whose goal was to further ``another
employment or agency status.'' Agency status, however, is not defined.
What does it mean? Since it is not defined, it could include any number
of things, including the ability of women to try to organize for an on-
site day care center.
The proponents of S. 1981 also contend the bill is necessary in order
to prevent workers from gaining employment for the purpose of
destroying an employer's business. I agree, of course, that an employer
should not be forced to hire a worker who seeks employment with the
intention or purpose of destroying the employer's business. In fact,
however, employers already have tools at their disposal to deal with
employees who are disrupting an employer's business or who are not
properly carrying out their job responsibilities. Such workers can be
disciplined or even discharged.
S. 1981 goes far beyond that. It says that any worker who applies for
a position and has the intention of organizing a union can be denied
employment even if that worker has no relationship with a union.
The NLRA currently prohibits the discharge of employees who attempt
to organize. Nothing in S. 1981 ensures that this protection will
continue. This is important because if S. 1981 were enacted, an
employer could claim that a recently hired employee who had begun to
speak to fellow workers about the need for a union had applied for the
job with that purpose, giving the employer the legal right to fire such
an employee.
The right to organize is a basic freedom guaranteed to our American
workers and I strongly support it. S. 1981, unfortunately, does not. It
would diminish the rights of America's workers, and weaken the
protections in the NLRA for them. It is anti-worker and anti-union, and
it should be defeated.
Mr. BOND. Mr. President, I urge my colleagues to vote for cloture so
that the Senate may proceed to consideration of S. 1981, The Truth In
Employment Act. As an original cosponsor of the bill, I applaud Senator
Hutchinson for his efforts to restore balance to our federal labor
laws. S. 1981 would prohibit the controversial practice of some unions
called ``salting,'' while maintaining the right of all workers to
choose whether or not to be represented by a union.
``Salting'' is a controversial tactic that typically involves a union
instructing its agents to apply for jobs with non-union employers. If
these agents, or ``salts,'' are not hired, then the union immediately
files unfair labor practice charges with the National Labor Relations
Board (NLRB) alleging discriminatory hiring. If the salt is hired, he
or she attempts to convince the other employees to join the union,
tries to generate unfair labor practices, and initiates complaints with
other federal agencies like OSHA and EPA. Some unions have made it
clear that if organizing is unsuccessful, then the goal is to drive
non-union companies out of business to lessen competition for unionized
businesses.
S. 1981 would amend the National Labor Relations Act (NLRA) to ensure
that no employer is required to hire an applicant or retain an employee
whose primary purpose is to disrupt the workplace through harassment,
increased costs, and frivolous complaints at the direction of a union
or other employer. Last Congress, the Committee on Small Business
received testimony on salting and the use of such campaigns by some
unions to harass and intimidate non-union employers and employees.
So one denies that unions have the legal right to organize non-union
workers. The problem arises when a union directs its members and
business agents to gain access to a workplace not only to organize, but
to harass. In the situations I have heard about in Missouri and around
the country, salting campaigns involve abuse of the NLRB's procedures
in an effort to put small companies out of business. For instance, over
a two-year period, the NLRB at the instigation of the unions filed 48
unfair labor practice charges against a small construction contractor
in Missouri. Although 47 of the charges were later thrown out by NLRB
and one settled for a few hundred dollars, the employer was forced to
incur $150,000 in legal fees to mount its defense. During this period,
the union never sought a representational election so that employees
could vote for or against joining the union. Salting campaigns can also
include destruction of property, tampering with equipment, and general
harassment of the non-union workforce by the union salts applying to
the companies with the intention of disrupting the workplace or
producing NLRB charges.
As Chairman of the Committee on Small Business, I am sensitive to the
concerns raised by small businesses about the effects our laws and
regulations have on their ability to operate. S. 1981 provides a common
sense solution to a nonsensical situation. While I support the right of
workers to organize, S. 1981 would restore the balance intended between
the rights of workers and of employers. Under S. 1981, only employees
and applicants seeking work
[[Page S10308]]
in good faith would be entitled to the protections provided under the
NLRA. In 1995, the Supreme Court ruled that current law does not
distinguish union salts from employees engaged in traditional
organizing activities protected under the NLRA. S. 1981 does not
overturn the Court's decision, but would amend the law to recognize the
distinction between salting activities to cause economic harm to the
employer versus legitimate organizing. S. 1981 retains the prohibition
on employers' discriminating against bona fide employee applicants
exercising their protected rights under the NLRA. I believe S. 1981
would restore the balance intended.
On March 26, 1998, language identical to S. 1981 passed the House of
Representatives as part of H.R. 3246, the Fairness for Small Business
and Employees Act of 1998. While the House bill passed by a narrow 202-
200 vote, it is time the Senate gave full and careful consideration to
this issue. I urge my colleagues to join me in voting for cloture.
Mr. FEINGOLD. Mr. President, I rise in strong opposition to S. 1981,
the so-called ``Truth in Employment Act'' and urge my colleagues to do
so as well.
Mr. President, this legislation is an affront to the American worker.
It opens the door to abuse of good workers and unfair job termination.
This measure would undermine a worker's right to organize, to seek
better working conditions, to work to reduce racial tension, and to
seek higher wages and better benefits. This measure seeks to undermine
and penalize most every action an employee might take to improve the
lot of workers.
In a unanimous 1995 decision, NLRB versus Town and Country, the
United Sattes Supreme Court held that a ``union organizer is an
employee, with all the protections of the National Labor Relations Act
(NLRA), if acting as a union organizer does not involve abandonment of
his or her service to the employer.'' This legislation makes a mockery
of the Court's decision by requiring that workers be, what it calls,
``bona fide'' job applicants and by subjecting workers to an outrageous
test of motivation as a condition of enjoying the protection of the
NLRA rights. This bill provides a legal shield to employers who refuse
to hire applicants who are union members or who have worked for an
organized employers.
Mr. President, its not my intention to stand here telling the
business community of this country that they do not have the right to
terminate union employees for cause or that they must hire only
applicants who claim a union affiliation. In my eyes, anyone who does
not produce quality work product or who consistently ignores the rules
of the workplace should face the threat of termination. Along those
lines, any applicant who does not have the skills or experience to
perform a job well should not be hired and the law today does not
require that any unqualified person even be considered for a job. Mr.
President, that's just common sense--that's just fair. This bill, the
deceivingly named ``Truth in Employment Act,'' is not fair.
Mr. President, since being elected to the Congress, the Senate
majority has used every possible opportunity to attack worker rights.
They have used a variety of vehicles, ranging from their anti-overtime
bills, to repeated efforts to water down OSHA requirements, to their
opposition to an increase in the minimum wage or any expansion of the
Family Medical Leave Act. This latest measure is just the latest in a
long history of anti-worker legislation presented to us by the majority
party.
This bill is blatantly anti-union, anti-worker and anti-American. I
urge my colleagues to stand up for the ordinary American workers in
their state. I urge my colleagues to vote ``no'' on this harmful
measure.
Mr. HUTCHINSON. Mr. President, might I inquire as to the amount of
time on each side?
The PRESIDING OFFICER. The Senator from Arkansas has 2 minutes, 59
seconds; the Senator from Massachusetts has 2 minutes, 31 seconds.
Mr. KENNEDY. Mr. President, we hope that this motion for cloture will
not be passed. This is a very fundamental issue; that is, whether we
are going to permit employers to get into the minds of potential
employees who are qualified to do the job. If applicants are not
qualified to do the job, they are not hired. It is not necessary to
hire them.
This legislation permits any employer to say to any worker who comes
into the shop, who is interested in trying to describe the benefits of
a union, whether it be higher wages or child care facilities--to be
able to say, ``No, we are not going to hire you.'' You know what is
going to happen then. It is a decision that will be made by the
employer. That decision then goes to the NLRB. Three years go by, and
then the case comes to trial. What was in the mind of that particular
employee? There is not any evidence of disruptive activities. The law
gives employers many ways to police those. The fact of the matter is,
the workers are trying to convince other workers to join the union, and
not be disruptive--to demonstrate that there is a better opportunity
for them by working through the company rather than being disruptive.
That is why we have scores of letters to indicate that this is
something that is constructive and productive. This involves a very
basic and fundamental issue, and that is whether, in our country, which
has benefited so much from the development of collective bargaining, we
are going to deny workers the chance to be able to gather together to
represent their interests to improve the lives of their families.
Mr. President, I oppose this legislation and I urge my colleagues to
oppose cloture on this motion.
Mr. HUTCHINSON addressed the Chair.
The PRESIDING OFFICER. The distinguished Senator from Arkansas is
recognized.
Mr. HUTCHINSON. Mr. President, we likewise have scores of letters
that have been submitted for the Record--small companies that are being
destroyed by the terrible practice of salts. We have literally tens of
thousands of names that have come in on petitions saying please pass
something to protect small employers.
The Senator from Massachusetts has questioned the logic. Why would
somebody go in to destroy a company? Why not organize the company? That
is the whole point. These are companies that have not been willing to
organize, or they could not get the support among the employees of that
company to organize. So in desperation they go in not to organize, not
to legitimately persuade employees to join a union and to collectively
bargain, but to economically ruin and devastate the viability of a
small company. Why are we compelling employers to hire people who do
not want to work but want to destroy their company?
Imagine that salt who comes home at the end of the day, hired by the
labor union to go in and economically destroy by filing frivolous
complaints, to file OSHA complaints, or cause OSHA complaints, at the
end of the day facing their wife who says, ``Honey, how did your day
go?'' ``My day went great. I went out and helped to destroy the
livelihood of my employer''--the American dream of what he has worked
for for a lifetime. Imagine the employer going home at the end of the
day, a small businessman, and his spouse says, ``How did your day go?''
``Oh, great. I spent my day in court trying to defend myself against
frivolous complaints that have been filed.''
It is not good for the employee or the employer. Many salts have come
out of it and have said, ``I will not be involved in that kind of
practice any more.''
I ask my colleagues this simple question, because I think it is
simply an issue of common sense. Would you hire someone in your office,
would you hire someone for your staff, who came in with the conscious,
primary purpose of undermining everything you are working for--every
legislative goal, every legislative agenda, every project in your
State--and they are coming in for the purpose of undermining your role
as a U.S. Senator? Would you hire that person? I think the obvious,
commonsense answer--and the answer that we employ every day when we
interview applicants--is no, we wouldn't do that. And yet, we are
compelling small businessmen and women across this country to hire
those who, they know in their heart when they come in, are going to
disrupt the workplace and undermine the economic viability of the
business and ultimately destroy them.
This legislation is modest. It is appropriate. I ask my colleagues to
invoke cloture so that we can pass this
[[Page S10309]]
bill for the benefit of small business men and women across this
country.
Mr. KENNEDY. Mr. President, I understand that I have 32 seconds
remaining?
The PRESIDING OFFICER. The Senator is correct.
Mr. KENNEDY. Mr. President, this issue was considered by the Supreme
Court of the United States with a number of Justices that were
nominated by Republican Presidents, and it was decided 9 to 0--not 7-2,
not 8-1, 9 to 0--to sustain the arguments that we have presented here
this afternoon. The Senator wants to overturn that decision here this
afternoon, and I hope that we will not do so.
The PRESIDING OFFICER. The time under the control of the Senator has
expired.
Mr. HUTCHINSON. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 20 seconds remaining.
Mr. HUTCHINSON. This legislation does not overturn that Supreme Court
decision, as I know. That court decision involved the issue of whether
you could be a paid union employee and be a bona fide employee for
another company, and you can't. This doesn't deal with that. This deals
with the destructive practice of going in with the primary purpose of
not organizing but destroying the employer.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. HUTCHINSON. Mr. President, I observe the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HUTCHINSON. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________