[House Report 106-967]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-967
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TRUTH IN EMPLOYMENT ACT OF 1999
_______
October 11, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodling, from the Committee on Education and the Workforce,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1441]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 1441) to amend section 8(a) of the
National Labor Relations Act, having considered the same,
report favorably thereon without amendment and recommend that
the bill do pass.
Purpose
The purpose of H.R. 1441, the Truth in Employment Act, is
to provide employers some measure of confidence that job
applicants are motivated by a desire to work for that
employer--not to promote the interests of another organization
bent on putting that company out of business. The legislation
protects the employer by making it clear that they are not
required to hire an applicant whose primary purpose is not to
work for the employer, and therefore is not a ``bona fide''
employee applicant. At the same time, the Act recognizes the
legitimate role for organized labor, and would not interfere
with legitimate union activities. Employees would continue to
enjoy their right to organize or engage in other concerted
activities protected under the National Labor Relations Act
(NLRA).
Committee Action
H.R. 1441, the Truth in Employment Act, was introduced by
Representative John Boehner on April 15, 1999. The bill was
marked-up in Full Committee on July 29, 1999, and ordered
favorably reported by roll call vote (yeas 21, nays 18, not
voting 10).
The Truth in Employment Act is similar to Title I of last
Congress' H.R. 3246, the Fairness for Small Business and
Employees Act of 1998, introduced by Representative Bill
Goodling on February 24, 1998. H.R. 3246 was marked-up in the
Employer-Employee Relations Subcommittee on February 26, 1998,
was marked-up in Full Committee on March 11, 1998, and ordered
reported favorably by roll call vote. H.R. 3246 passed the
House last Congress on March 26, 1998 by a 202 to 200 vote. Mr.
Boehner's H.R. 1441 of this Congress includes language from a
Goodling amendment added to Title I of H.R. 3246 last Congress
by a 398 to 0 vote, that makes clear nothing in the Truth in
Employment Act infringes on anyone's rights under the NLRA.
H.R. 1441 currently has 83 cosponsors. The bill was
addressed by the Employer-Employee Relations Subcommittee
during a field hearing on May 10, 1999 in Indianapolis,
Indiana, held jointly with the Senate Labor Committee's
Subcommittee on Employment, Safety and Training. Testimony was
heard from witnesses Mr. Harry C. Alford, president/CEO,
National Black Chamber of Commerce, Inc., Washington, DC; Mr.
Carl Shaffer, Indiana state organizer, International
Brotherhood of Electrical Workers, Walkerton, Indiana; Mr.
Charlie Farrell, president, C.R. Electric Company,
Indianapolis, Indiana; Mr. Neil Gath, attorney, Fillenwarth,
Dennerline, Groth & Towe, Indianapolis, Indiana; Mr. Randy
Truckenbrodt, president, Randall Industries, Inc., Elmhurst,
Illinois; and Mr. Larry Gordon, owner, G & N Fabrications,
Franklin, Indiana.
The Indianapolis field hearing in May 1999 was the sixth
hearing the Committee has held the past three Congresses on the
issue of salting and needed legislation. The Subcommittee on
Employer-Employee Relations held a hearing on H.R. 758 (the
``Truth in Employment Act'' of the 105th Congress) on February
5, 1998, during which testimony was received on the legislation
from Mr. Jay Krupin, partner, Krupin, Greenbaum & O'Brien,
Washington, DC; Mr. Thomas J. Cook, employee, Omega Electric
Construction Company, Williston, Vermont; Mr. Peter C. Rousos,
director of corporate human resources, Gaylord Entertainment
Company, Nashville, Tennessee, testifying on behalf of the U.S.
Chamber of Commerce; Mr. Peter R. Kraft, partner, Kraft &
Winger, Portland, Maine; and Mr. Patrick Parcell, member,
Boilermakers Local 169, Dearborn, Michigan, testifying on
behalf of the Building and Construction Trades Department, AFL-
CIO.
The Subcommittee on Employer-Employee Relations held a
hearing on H.R. 758, the Truth in Employment Act of 1996, on
October 9, 1997. Testimony was received on the legislation and
on the unions' ``salting'' technique from Steven R. Weinstein,
partner, Dunetz, Marcus, Brody & Weinstein, L.L.C., Livingston,
New Jersey; Charles Fletcher, vice president, industrial
relations and safety, Corey Delta Constructors, Benicia,
California; Larry Cohen, senior partner, Sherman, Dunn, Cohen,
Lifer & Yellig, Washington, DC, testifying on behalf of the
AFL-CIO; Don Mailman, owner, Bay Electric Co., Inc., South
Portland, Maine; and Maurice Baskin, partner, the Venable Law
Firm, Washington, DC, testifying on behalf of the Associated
Builders and Contractors.
The Committee on Economic and Educational Opportunities and
the Committee on Small Business held a joint field hearing on
April 12, 1996, in Overland Park, Kansas, on The Practice of
``Salting'' and its Impact on Small Business, and heard
testimony from Mr. Bill Love, president, SKC Electric, Inc.,
Lenexa, Kansas, accompanied by SKC Electric, Inc. employee, Mr.
Richard Oberlechner; Mr. Greg Hoberock, vice president, HTH,
Co., Union, Missouri; Mr. Dave Meyer, vice president,
secretary, Meyer Brothers Building Co., Blue Springs, Missouri;
Mr. Robert Janowitz, esq., chair, labor and employment law,
Group Practice, Shook, Hardy & Bacon, Kansas City, Missouri;
Mr. William Creeden, director of organizing, International
Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers, Kansas City, Kansas; Mr. James K. Pease,
Jr., Attorney-at-law, Pease & Ruhley, Madison, Wisconsin; and
Mr. Lindell Lee, business manager, Local 124, International
Brotherhood of Electrical Workers, Kansas City, Kansas.
The Committee on Economic and Educational Opportunities'
Subcommittee on Oversight and Investigations held a Hearing on
Union Corporate Campaign Tactics, including the tactic of
``salting,'' on October 31, 1995. Testimony was heard from Dr.
Herbert R. Northrup, professor emeritus of management, The
Wharton School, University of Pennsylvania, Haverford,
Pennsylvania; Ms. Sharon Purdy, secretary/treasurer, Purdy
Electric, Inc., Columbus, Ohio; Mr. Barry Kindt, president,
SECCO, Inc., Camp Hill, Pennsylvania; Mr. John C. Gaylor,
president, Gaylor Electric Co., Carmel, Indiana; Mr. Michael
McCune, CEO, Contractors Labor Pool, Inc., Reno, Nevada; and
Professor Risa Lieberwitz, School of Industrial and Labor
Relations, Cornell University, Ithaca, New York.
The Subcommittee on Employer-Employee Relations held a
Hearing on the National Labor Relations Board (NLRB) Reform on
September 27, 1995, which included testimony on ``salting'' and
its impact, from Rosemary M. Collyer, former General Counsel,
NLRB, attorney-at-law, Crowell & Moring, Washington, DC;
Charles Craver, professor of law, George Washington University
Law School, Washington, DC; Larry K. Durham, president and CEO,
Durham Transportation, Inc., Austin, Texas; Mark R. Thierman,
attorney-at-law, Theirman Law Firm, San Francisco, California;
and David J. Tippeconnic, president and CEO, The UNO-VEN
Company, Arlington Heights, Illinois.
Summary
H.R. 1441, the Truth in Employment Act, simply says to
employers that they will not violate the National Labor
Relations Act if they do not hire someone who is not a ``bona
fide'' applicant. The legislation addresses the practice of
professional agents and union employees being sent into non-
union workplaces under the guise of seeking employment-commonly
known as ``salting.'' H.R. 1441 amends the NLRA to make clear
that an employer is not required to hire someone who is not a
``bona fide'' employee applicant, in that the applicant's
primary purpose in seeking the job is to further other
employment or agency status. Simply put, if someone is not at
least ``half'' motivated by a desire to be a genuine,
hardworking employee, the employer should not have to hire
them.
Committee Views
``Salting'' abuse is the placing of trained professional
organizers and agents in a non-union facility to harass or
disrupt company operations, apply economic pressure, increase
operating and legal costs, and ultimately put the company out
of business. The object of the union agents is accomplished
through filing, among other charges, unfair labor practice
charges with the National Labor Relations Board. As the six
hearings the Committee has held on this issue in the past three
Congresses has shown, ``salting'' is not merely an organizing
tool, but has become an instrument of economic destruction
aimed at non-union companies that often has nothing to do with
organizing.
As a former ``salt'' from Vermont testified before the
subcommittee:\1\
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\1\ Hearing on Legislation to Provide Fairness for Small Businesses
and Employees before the Subcommittee on Employer-Employee Relations of
the House Committee on Education and the Workforce, 105th Cong., 2nd
Sess., p. 72 (February 5, 1998)(Serial No. 105-72).
[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 has
petitioned the local union for the right to
collectively bargain with their employers. In fact, as
salting techniques become more openly hostile (with the
appearance of paid organizers who willfully undermine
the flow of productivity), most workers view these
activities as a threat to their ability to work. In a
country where free enterprise and independence is so
highly valued, I find these activities nothing more
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than legalized extortion.
A former NLRB field attorney testified that, from his
experience, ``salts have no intention of organizing a company
by convincing the co-workers that unions are a good thing for
them. Instead, once a salt enters the workplace, that
individual engages in a pattern of conduct to disrupt the
workplace; to gather information about the employer to feed to
the union; to disrupt projects; and ultimately to file charges
with the National Labor Relations Board.'' \2\ Another witness
quoted directly from the International Brotherhood of
Electrical Workers' organizing manual, which states that the
goal of the union salt is to ``threaten or actually apply the
economic pressure necessary to cause the employer to raise his
prices, scale back his business activities, leave the union's
jurisdiction, go out of business and so on.'' \3\
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\2\ Hearing on H.R. 758, the Truth in Employment Act of 1996,
before the Subcommittee on Employer-Employee Relations, 105th Cong.,
1st Sess., p. 6 (October 9, 1997) (Serial No. 105-52). See also, May
10, 1999 written testimony of Vincent T. Norwillo, labor counsel,
Tradesmen International, Inc., before a joint field hearing of the
House Subcommittee on Employer-Employee Relations and the Senate
Subcommittee on Employment, Safety and Training, Indianapolis, Indiana,
106th Cong., 1st Sess., p. 2 (``[M]odern day salting has nothing to do
with organizing. The `organizers' dispatched by salting coordinators to
merit shop business offices and job sites do not conduct traditional
campaigns. Rather, these perpetrators simply produce salting charges
alleging practically every conceivable violation of labor law without
ever producing as much as a single representation petition'').
\3\ Hearing on H.R. 758, the Truth in Employment Act of 1996,
before the Subcommittee on Employer-Employee Relations, 105th Cong.,
1st Sess., p. 108 (October 9, 1997)(Serial No. 105-52). See also,
Hearing on the National Labor Relations Board Reform, before the
Employer-Employee Relations Subcommittee of the House Committee on
Economic and Educational Opportunities, 104th Cong., 1st Sess., p. 44
(September 27, 1995) (Serial No. 104-44) (``The IBEW program is one
bent on the involuntary submission of innocent and law-abiding
employers to the union, or the employer's financial destruction. By
perverting the NLRB process in this manner, the IBEW is threatening two
of the core beliefs that this country treasures: freedom and the
entrepreneurial spirit''); Joint Hearing on the Practice of ``Salting''
and Its Impact on Small Business, before the Committee on Small
Business and the Committee on Economic and Educational Opportunities,
104th Cong., 2nd Sess., p. 20 (April 12, 1996) (Serial No. 104-71/104-
51) (labor attorney testifying that ``I think that salts differ
fundamentally from other employees. They are just temporarily there on
an assignment, a mission for the union. They are working for the union.
When they are done doing * * * what duties they have been given by the
union, they either return to the work for the unionized employers or
they are sent on to another salting assignment'').
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Hiding behind the shield of the National Labor Relations
Act, unions ``salt'' employers by sending agents into non-union
workplaces under the guise of seeking employment. These
``salts'' often try to harm their employers or deliberately
increase costs through various actions, including sabotage and
frivolous discrimination complaints with the NLRB. When unions
send ``salts'' into a workplace, 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 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.
As the U.S. Chamber of Commerce testified before the
subcommittee, ``In Louisiana [for example], Tri-Parish
Electric, a company with six employees, was forced out of
business as a result of a salting campaign and the frivolous
charges that ensued. Clearly, the drafters of the 1935 National
Labor Relations Act did not intend this result. The Act was not
intended as a device to circumvent the will of employees, to
strangle businesses into submission to further a union's
objectives, or to put nonunion employers out of business.'' \4\
One construction company testified that it had to spend more
than $600,000 in legal fees from one salting campaign, with an
average cost per charge of more than $8,500.\5\ One Indiana
employer that spent $80,000 in defending a ``salting'' charge
pointed out that ``it costs the union nothing to force the
company to incur tens of thousands of dollars in expenses
defending the union offensive,'' since the charges are handled
by the NLRB at taxpayer expense.\6\ Another, who ran a small
shop of five employees, testified he was dumbfounded to receive
salting charges from three applicants since he did not even
have any jobs available, and felt violated that his business
could so easily be put at financial risk.\7\ Beyond legal fees,
one employer testified, ``it would be impossible to put a
dollar amount on the pain and suffering caused by the stress of
the situation to a small company like ours who does not have
the funds to fight these charges.'' \8\
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\4\ Hearing on Legislation to Provide Fairness for Small Businesses
and Employees, before the Employer-Employee Relations Subcommittee of
the House Education and the Workforce Committee, 105th Cong., 2nd
Sess., p. 101 (February 5, 1998) (Serial No. 105-72).
\5\ Hearing on H.R. 758, the Truth in Employment Act of 1996,
before the Subcommittee on Employer-Employee Relations, 105th Cong.,
1st Sess., p. 8 (October 9, 1997) (Serial No. 105-52).
\6\ May 10, 1999 written testimony of Charles Farrell, C.R.
Electric, Inc., Indianapolis, Indiana, before a joint field hearing of
the House Subcommittee on Employer-Employee Relations and the Senate
Subcommittee on Employment, Safety and Training, Indianapolis, Indiana,
106th Cong., 1st Sess., p. 3.
\7\ May 10, 1999 written testimony of Larry Gordon, owner, G&N
Fabrications, Franklin, Indiana, before a joint field hearing of the
House Subcommittee on Employer-Employee Relations and the Senate
Subcommittee on Employment, Safety and Training, Indianapolis, Indiana,
106th Cong., 1st Sess., p. 2 (``It was not the law that saved me. The
law could have destroyed my livelihood and the livelihood of my
employees and their families. It was only my good luck that the
employee who I was trying to replace was able to return to work
immediately so I did not need to hire anyone'').
\8\ Hearing on Union Corporate Campaign Tactics, before the
Subcommittee on Oversight and Investigations of the House Committee on
Economic and Educational Opportunities, 104th Cong., 1st Sess., p. 88
(October 31, 1995) (Serial No. 104-45).
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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.
H.R. 1441 would protect the employer by making it clear
that an employer is not required to hire any person who is not
a ``bona fide'' employee applicant. The legislation states that
someone is not a ``bona fide'' applicant if such person ``seeks
or sought employment with the employer with the primary purpose
of furthering other employment or agency status.'' Simply put,
it is the Committee's view that if someone wants a job, but at
least 50 percent of their intent is not to work for the
employer, then they should not get the job and the employer has
not committed an unfair labor practice if they refuse to hire
the person.
As drafted, the Truth in Employment Act is very narrow
legislation simply removing from the protection of Section 8(a)
of the NLRA a person who seeks a job without at least 50
percent motivation to work for the employer. At the same time,
the legislation recognizes the legitimate role for organized
labor, and it would not interfere with legitimate union
activities. H.R. 1441 has a proviso making clear that it does
not affect the rights and responsibilities available under the
NLRA to anyone, provided they are a bona fide employee
applicant. Employees and bona fide applicants will continue to
enjoy their right to organize or engage in other concerted
activities under the NLRA, and, employers will still be
prohibited from discriminating against employees on the basis
of union membership or union activism.
The legislation sets up a test that the NLRB general
counsel must utilize before allowing a Section 8 ``salting''
charge to go forward. The test involves examining the intent of
the individual who is seeking employment. So long as the
``primary purpose'' of the individual is not to further
employment or agency status with someone other than the
employer with whom the individual is applying, then they are a
``bona fide'' employee applicant and the charge should not be
dismissed by the general counsel because of H.R. 1441. In
testifying against the legislation, an active ``salt'' told the
subcommittee, ``I do good work. I work hard,'' and that he is
``a worker who knew his rights, did a good job, and urged other
workers to organize and unionize.'' \9\ The legislation is not
meant to impact individuals such as this, who are clearly at
least half motivated to be a good employee.
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\9\ Hearing to Provide Fairness for Small Businesses and Employees,
before the Employer-Employee Relations Subcommittee of the Education
and the Workforce Committee, 105th Cong., 2nd Sess., pp. 82-83
(February 5, 1998) (Serial No. 105-72).
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It has been alleged by some throughout the course of the
many hearings on ``salting'' that this legislation overturns
the Supreme Court's decision in NLRB v. Town & Country
Electric, Inc.\10\ However, H.R. 1441 in fact reinforces the
narrow holding of Town & Country. The Court held only that paid
union organizers can fall within the literal statutory
definition of ``employee'' contained in Section 2(3) of the
NLRA.\11\ The Court did not address any other legal issues, but
the effect of the decision is to uphold policies of the NLRB
which subject employers to unwarranted union harassment and
frivolous complaints.
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\10\ 116 S.Ct. 450 (1995).
\11\ Id. at 457.
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The Truth in Employment Act does not change the definition
of ``employee'' or ``employee applicant'' under the NLRA, it
simply would change the Board's enforcement of Section 8
``salting'' cases by declaring that employers may refuse to
hire individuals who are not at least half motivated to work
for the employer. So long as even a paid union organizer is at
least 50 percent motivated to work for the employer, he or she
cannot be refused a job pursuant to H.R. 1441. As Maury Baskin,
general counsel for Associated Builders and Contractors,
testified before the subcommittee, the legislation ``does not
seek to overrule the Supreme Court's Town & Country case. It
would return enforcement of the Act to a policy consistent with
the Lechmere case.'' \12\
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\12\ Hearing on H.R. 758, the Truth in Employment Act of 1996,
before the Employer-Employee Relations Subcommittee, 105th Cong., 2nd
Sess., p. 14 (October 9, 1997) (Serial No. 105-52). In Lechmere, Inc.
v. NLRB, 502 U.S. 527 (1992), the Supreme Court held that outside union
representatives can be denied access to an employer's workplace, and
reaffirmed that Section 7 of the NLRA was intended to protect the
rights of bona fide employees, not outside union organizers.
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Thus, H.R. 1441 establishes a test that does not seek to
overrule Town & Country and does not infringe upon the
legitimate rights of bona fide employees and employee
applicants to organize on behalf of unions in the workplace.
Indeed, the Supreme Court's holding that an individual can be
the servant of two masters at the same time is similarly left
untouched.\13\ In fact, it is the acknowledgment that an
applicant may in fact be split in motivation between an
employer and a union that gives rise to the need for examining
an applicant's motivation--a ``primary purpose'' test that the
NLRB general counsel and courts will apply. The test is
intended to apply to the motivation of the individual at the
time he or she attempted to secure employment.
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\13\ The Court cited Restatement (Second) of Agency, Section 226,
at 498, for the proposition that a ``person may be the servant of two
masters * * * at one time as to one act, if the service to one does not
involve abandonment of the service to the other.'' Id., at 456.
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The focus of the Truth in Employment Act is not on the
individual's mere support for unionization, but on the
individual's furtherance of employment or agency status with
someone other than the employer with whom the individual is
seeking a job. The term ``employment or agency status'' is
intended to refer to the common law definitions of employee or
agency status, as the Supreme Court and the NLRB have
repeatedly construed these terms over the course of decades. As
the Court noted in Town & Country, the ordinary definition of
``employee'' refers to ``a person in the service of another
under any contract of hire, express or implied, oral or
written, where the employer has the power or right to control
and direct the employee in the material details of how work is
to be performed.'' \14\ Similarly, an ``agent'' is well defined
by common law and NLRB decisions as ``one who agrees to act
subject to a principal's control.'' \15\
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\14\ 116 S.Ct. at 454.
\15\ Restatement (Second) of Agency, Section 226, Comment a (1957).
See also, Cambridge Wire Cloth Co., Inc., 256 NLRB 1135, 1139 (1981)
(mere participation in union activities such as card solicitation or
organizing committee does not constitute one an agent of a union).
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Thus, only individuals who fall within these narrow
categories due to a union's control over their activities could
be denied employment by an employer, and only if they seek or
sought employment with the ``primary purpose'' of furthering
their union employment or agency status.
Regarding the standard of proof involved in determining an
individual's motivation under H.R. 1441, the test that the NLRB
general counsel and courts would apply is not a new one. In
Wright Line, Inc.,\16\ the NLRB established a uniform method of
proving discriminatory motivation, in the context of Section
8(a)(3) of the NLRA. The Board has held that an employer will
not be found to have violated the NLRA if the employer's action
towards an employee would have occurred even in the absence of
protected conduct. Under Wright Line, the general counsel bears
the burden of establishing a prima facie case that an
employee's ``protected activity'' was a substantial or
motivating factor for an employer's adverse action. The
employer can rebut this showing, however, by demonstrating that
it would have taken the same action against the employee even
in the absence of the protected conduct.\17\
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\16\ 251 NLRB 1083 (1980), enforced 662 F.2d 899 (1st Cir. 1981),
cert. denied, 455 U.S. 989 (1982).
\17\ 662 F.2d at 905.
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Under the Truth in Employment Act, the act of seeking
employment with the ``primary purpose'' of furthering another
employment or agency status would not be ``protected activity''
under the NLRA. Therefore, the general counsel would bear the
burden as part of his prima facie case of showing that the
employee applicant on whose behalf the charge of discrimination
has been filed is not a person who has sought employment with
such a primary purpose--that the applicant would have sought
the job even in the absence of his or her salting activity. In
the event the general counsel does make out a prima facie case
with the necessary element that the applicant still would have
sought the job, the employer would still be entitled to rebut
the prima facie case with contrary evidence.
Conclusion
Forcing employers to hire union business agents or
employees, who are primarily intent on disrupting or even
destroying employers' businesses, does not serve the interests
of bona fide employees under the NLRA and hurts the
competitiveness of small businesses. H.R. 1441 does not
prohibit organizers from getting jobs. The legislation simply
removes an incentive to use the NLRA as a weapon against an
employer by persons who have little interest in employment. All
the legislation does is give the employer some comfort that it
is hiring someone who really wants to work for the employer. As
long as the ``salt'' is applying to do a good job for the
employer, H.R. 1441 does nothing but protect the employee
applicant, and the employer who has a right to have a workforce
that is going to work for the good of the company. The Truth in
Employment Act returns a sense of balance to the NLRA that is
being undermined by the Board's current policies.
Section-by-Section Analysis
Section 1
Contains the Short Title, ``Truth in Employment Act of
1999.''
Section 2
Establishes the findings of the Committee related to the
necessity of a healthy atmosphere of trust and civility in
labor-management relations, the prevalence of ``salting''
tactics, and an employer's right to expect job applicants to be
primarily interested in working for that employer.
Section 3
Provides that the purpose of H.R. 1441 is to preserve the
balance of rights under the NLRA and to alleviate pressure on
employers to hire individuals who seek or gain employment to
disrupt the workplace or inflict economic harm to put the
employer out of business.
Section 4
Amends the National Labor Relations Act to provide that
nothing in the NLRA shall require an employer to hire someone
who is not a ``bona fide'' employee applicant, in that such a
person seeks or sought employment with the primary purpose of
furthering other employment or agency status. Also provides
that this section does not affect any rights and
responsibilities of any employee so long as they are or were a
``bona fide'' employee applicant.
Explanation of Amendments
The bill was reported without Amendment.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. This bill protects employers by making it clear that
they are not required to hire an applicant whose primary
purpose is not to work for the employer, and therefore is not a
``bona fide'' employee applicant. The bill does not prevent
legislative branch employees from receiving the benefits of
this legislation.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. This bill protects the employer by making it clear
that they are not required to hire an applicant whose primary
purpose is not to work for the employer, and therefore is not a
``bona fide'' employee applicant. As such, the bill does not
contain any unfunded mandates.
Roll Call Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendments offered to the measure or matter the
total number of votes for and against and the names of the
Members voting for and against.
Correspondence
Congress of the United States,
House of Representatives,
July 29, 1999.
Hon. William F. Goodling,
Chairman, Committee on Education & the Workforce,
Rayburn House Office Building, Washington, DC.
Dear Mr. Chairman, On today's Roll Call Vote #1 regarding
reporting H.R. 1441 to the House floor, I was unavoidably
detained. Had I been present, I would have voted aye.
I would appreciate this letter being inserted into the
Committee's report. Thank you for your attention to this
matter.
Sincerely,
John A. Boehner.
------
Congress of the United States,
House of Representatives,
Washington, DC, August 3, 1999.
Hon. William Goodling,
Committee on Education and Workforce,
Rayburn HOB, Washington, DC.
Dear Mr. Chairman, On roll call vote number one, regarding
reporting H.R. 1441 to the House floor, I was unavoidably
detained due to legislative duties. Had I been present, I would
have voted aye.
I would appreciate this letter being inserted into the
Committee's report. Thank you for your attention to this
matter.
Sincerely,
Howard P. ``Buck'' McKeon.
------
Congress of the United States,
House of Representatives,
Washington, DC, September 21, 1999.
Hon. Bill Goodling,
Chairman, The Education and the Workforce Committee,
Rayburn House Office Building, Washington, DC.
Dear Chairman Goodling: Due to a conflict in my legislative
responsibilities, I was unavoidably detained from voting during
the July 29, 1999 full committee mark-up of H.R. 1441, the
Truth in Employment Act of 1999. Please accept my apologies for
my absence during this important roll call vote.
Had I been present during this mark-up, I would have voted
``aye'' in favor of final passage of the Truth in Employment
Act of 1999. I would appreciate if this letter could be
inserted in the committee report for public record.
Thank you for attention to this matter.
Sincerely,
Lindsey O. Graham.
------
Congress of the United States,
House of Representatives,
Washington, DC, September 21, 1999.
Chairman William F. Goodling,
Committee on Education and the Workforce,
Rayburn HOB, Washington, DC.
Dear Chairman Goodling: Due to my legislative duties, I was
unable to vote on reporting H.R. 1441 out of the Committee on
Education and the Workforce on July 29, 1999. Had I been
present, I would have voted aye.
I would appreciate your assistance in placing this letter
of explanation in the relevant section of the record.
Thank you for your assistance in this matter.
Sincerely,
Mark E. Souder.
------
Congress of the United States,
House of Representatives,
Washington, DC, September 27, 1999.
Bill Goodling, Chairman,
House Education and the Workforce Committee,
Rayburn House Office Building, Washington, DC.
Dear Chairman Goodling: Due to a conflict in my legislative
responsibilities I was unavoidably detained from voting during
the Committee on Education and the Workforce's consideration of
Roll Call Vote number 1, the motion to report favorably the
bill H.R. 1441, the ``Truth in Employment Act'', to the House
of Representatives.
Had I been present I would have voted ``aye''. I would
appreciate this letter being included in the Committee Report
to accompany this bill. Thank you for your attention to this
matter.
Sincerely,
Charlie Norwood.
------
Congress of the United States,
House of Representatives,
September 21, 1999.
Hon. William F. Goodling,
Chairman, House Education and the Workforce Committee,
Rayburn House Office Building.
Dear Mr. Chairman, Due to other legislative
responsibilities, I was unable to be present for the House
Education and Workforce Committee vote on H.R. 1441, the Truth
in Employment Act of 1999. Had I been present I would have
voted in the affirmative. Please include this in the full
committee report. Thank you.
Sincerely,
Matt Salmon.
------
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the body of this report.
New Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the House of Representatives and section 308(a) of the
Congressional Budget Act of 1974 and with respect to
requirements of 3(c)(3) of rule XIII of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for H.R. 1441 from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 2, 1999.
Hon. William F. Goodling,
Chairman, Committee on Education and the Workforce,
U.S. House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1441, the Truth in
Employment Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christina
Hawley Sadoti.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
congressional budget office cost estimate
H.R. 1441--Truth in Employment Act of 1999
H.R. 1441 would amend the National Labor Relations Act
(NLRA) to make it easier for employers to deny employment to
applicants who are not bona fide employee applicants. This
provision would allow employers to refuse to hire union
organizers who seek jobs with the intention of organizing
workers--a practice known as salting. Current law prohibits
employers from discriminating against prospective employees
based on their union membership status. About half of the
unfair labor practice charges against employers that are
brought to the National Labor Relations Board (NLRB) involve
unfair hiring allegations. A fraction of these cases deal with
salting. While enactment of H.R. 1441 could affect the number
of future unfair hiring allegations, CBO cannot predict whether
they would increase or decrease. In any case, any budgetary
impact due to a change in caseloads would be subject to the
annual appropriations process. Because the bill would not
affect direct spending or receipts, pay-as-you-go procedures
would not apply.
H.R. 1441 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act of 1995
and would impose no costs on state, local, or tribal
governments.
This estimate was prepared by Christina Hawley Sadoti
(federal cost), Susan Sieg (impact on state, local, and tribal
governments), and Ralph Smith (impact on the private sector).
This estimate was approved by Paul N. Van de Water,
Assistant Director for Budget Analysis.
Statement of Oversight Findings of the Committee on Government Reform
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
Committee has received no report of oversight findings and
recommendations from the Committee on Government Reform on the
subject of H.R. 1441.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
Article I, section 8, clause 3, which grants Congress the power
to regulate commerce with foreign nations, among the several
States, and with the Indian tribes.
Committee Estimate
Clauses 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 1441. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
SECTION 8 OF THE NATIONAL LABOR RELATIONS ACT
unfair labor practices
Sec. 8. (a) It shall be an unfair labor practice for an
employer--
(1) * * *
* * * * * * *
(5) to refuse to bargain collectively with the
representatives of his employees, subject to the
provisions of section 9(a).
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 or other mutual aid or protection.
* * * * * * *
MINORITY VIEWS
h.r. 1441 would repeal the primary purpose of the national labor
relations act (nlra)
Under the guise of ``The Truth in Employment Act of 1999'',
H.R. 1441 represents major assault on the National Labor
Relations Act (NLRA). H.R. 1441 declares that ``job applicants
who ``seek employment * * * with the primary purpose of
furthering another employment or agency status'' fall outside
of a newly-created class of ``bona fide employee
applicant[s],'' and gives employers license to refuse to hire
them. In doing so, H.R. 1441 denies employment to those union
supporters who seek jobs at non-union worksites, solely because
they may exercise their right to engage in collective action.
None of the measures contained in this bill is new, and as
we discuss below, they have already failed to withstand the
scrutiny of the NLRB, the courts, and the Congress.
Nonetheless, the Committee, along party lines, has decided to
report out a bill that threatens the right of employees to opt
for collective representation free of employer interference. As
such, H.R. 1441 reverses over 65 years of Congressional policy
promoting workplace freedom of association ``as an instrument
of peace rather than of strife.'' NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. 1, 34 (1937).
h.r. 1441 would undermine the rights of employees to engage in union
organizing and discredit the nlra's principle of free choice
The NLRA recognizes the ``fundamental right'' of employees
``to select representatives of their own choosing for
collective bargaining * * * without restraint or coercion by
their employer.'' Jones & Laughlin, 301 U.S. at 33. Indeed,
``such collective action would be a mockery if representation
were made futile by interference with freedom of choice.'' Id.
at 34. Yet this is precisely what H.R. 1441 would accomplish,
by creating a new class of job applicants who are not entitled
to a job solely by virtue of their support for collective
representation; prohibiting workers from exercising their
statutory ``initiative * * * [to] select[] an appropriate
[bargaining] unit'' in any case in which they petition for an
election (American Hospital Ass'n v. NLRB, 499 U.S. 606
(1991)).
H.R. 1441 would permit employers to discharge or refuse to
hire any employee who sought or obtained employment in order to
promote union organization. It would, for the first time since
the enactment of the Wagner Act in 1935, permit employers to
discharge and refuse to hire employees because they intended to
engage in union organizing. It would thus seriously undermine a
fundamental purpose of the National Labor Relations Act--to
protect the right of employees to organize and bargain
collectively.
H.R. 1441 is intended to end the practice of ``salting,''
where by union members seek employment from nonunion employers
to organize their employees. Salting is an organizing tactic
that has been in use for many decades in many different
industries. E.g. Baltimore Steamship Packet Co., 120 NLRB 1521,
1533 (1958); Elias Bros. Big Boy, Inc., 139 NLRB 1158, 1164-65
(1962); Sears Roebuck & Co., 170 NLRB 533, 533, 535 n.3 (1968).
In recent years, its use in the construction industry has
become widespread--not because the tactic is new--but to a
large extent because recent legal developments have rendered
other types of organizing in that industry less effective or
more difficult.
In the construction industry, organizing has always been a
difficult undertaking. Because jobs are short-lived and work is
intermittent, it is nearly impossible for unions to engage in
that type of organizing common in other industries involving
lengthy campaigns culminating in an NLRB representation
election. Because of these difficulties, Congress enacted
Section 8(f) of the NLRA in 1959, permitting unions and
employers in the construction industry to enter into prehire
collective bargaining agreements (agreements entered into
before the union demonstrates majority support or even before
any employees are hired). Recent developments, however, have
made prehire agreements less valuable as a means of organizing
nonunion employers. In John Deklewa & Sons., 282 NLRB 1375
(1987), enf'd, 843 F.2d 770 (3d Cir. 1988), the Board held that
an employer could terminate a prehire bargaining relationship
when the prehire agreement expires, unless the union had either
won an NLRB election or obtained voluntary recognition based on
a showing of majority support. After Deklewa, it became
apparent that the key to organizing in the construction
industry was reaching the employees of nonunion contractors
whose demonstrated support the union needed to establish
permanent bargaining relationships.
That task became far more difficult, however, after the
Supreme Court decided Lechmere, Inc., v. NLRB, 502 U.S. 527
(1992), holding that non-employee organizers had no right of
access to an employer's property and that employers could
invoke state trespass laws to exclude union organizers from
their property. Thus Deklewa made access to non-union employees
critical to union organizing and Lechmere denied that access to
non-employees. In response to these developments unions in the
construction industry have turned to ``salting''--using union
members as volunteer organizers who seek employment with
nonunion employers to organize their fellow employees during
non-working time.
Those who participate in salting programs apply for jobs
with nonunion contractors to explain to unorganized employees
the benefits of union organization and persuade them to support
the union's efforts to obtain recognition and a collective
bargaining agreement from their employer. The efforts to obtain
recognition may include a representation election, a
recognitional strike, an unfair labor practice strike (if the
employer commits unfair labor practices), or other lawful
tactics, all of which are traditional means of obtaining
recognition that have heretofore been protected by the NLRA.
Employees engaged in salting (salts) also file unfair labor
practice charges, if the employer commits an unfair labor
practice, file complaints with OSHA, if the employer violates
applicable safety regulations, and notify the appropriate
authorities of any other observed unlawful activities.
Employers have never before been permitted to discharge
employees because they had reported, or might report, unlawful
conduct by the employer.
Salts understand, when they apply for work, that they will
be expected to fulfill the employer's legitimate expectations.
Because union organizers do not want to give nonunion
contractors an excuse to discharge them, and because they need
to earn the respect of their coworkers, they are encouraged to
be exemplary employees, to work efficiently and obey the
employer's lawful work rules. The employer is free to
promulgate work rules which all employees, including salts,
must follow. Union activity can lawfully be prohibited in
working areas during working times. Employees engaged in
salting who do not comply with such rules or who are
insubordinate or incompetent can be lawfully discharged on the
same basis as other employees.
Nevertheless, some employers who have been the object of
salting campaigns have complained about what they contend is
the unfairness of salting. Many of the employer witnesses who
appeared before the committee to complain about salting had
themselves committed a number of serious unfair labor
practices. One employer witness, for example appeared on behalf
of a company called Nordic Electric to complain about salting.
Prior to his appearance, however, the NLRB had issued a
complaint against Nordic and an Administrative Law Judge had
found that Nordic had discharged and refused to hire employees
because of their support for the union, unlawfully interrogated
employees and even threatened employees with violence. Nordic
Electric, Inc., NLRB Case No. 22-CA-20530. Another employer
witness was a vice president of a company called Corey Delta,
Inc. Prior to his appearance, the NLRB had issued a complaint
against Corey Delta alleging that the company had committed
numerous unfair labor practices. Among other things, it was
alleged that Corey Delta had discharged 45 employees for
engaging in union activities such as wearing union buttons, had
unlawfully interrogated employees, told employees that the
company's no-solicitation rule applied only to union
activities, stated that the company intended to avoid hiring
union members, and told employees that the company would
``close its doors'' before it would ``go union.'' The witness
himself was alleged to have promulgated an unlawful no-
solicitation rule. See also the employers' unlawful responses
to salting in H.B. Zachry Co., 319 NLRB 967 (1995), enforced in
pertinent part, 127 F.3d 1300 (11th Cir. 1997) and Tulatin
Electric, Inc., 319 NLRB 1237 (1995).\1\
---------------------------------------------------------------------------
\1\ In Tualatin, union organizers had been admonished by their
union to ``work as hard for a nonunion contractor as they would for a
union contractor,'' to ``try to make a favorable impression,'' and in
particular not to engage in ``sabotage * * * lying, stealing cheating,
[or] obtaining information unlawfully.'' Nevertheless, the employer
responded to the salting campaign by ``referring to [the union] as
organized crime trying to put him out of business and attempted ``to
eliminate wherever possible any personnel that were affiliated with the
union.'' 319 NLRB at 1239.
---------------------------------------------------------------------------
It is apparent that those employers who object to salting
do not object to any inherent unfairness of the practice;
rather, they object to the fact that the law permits their
employees to organize and prohibits them from discharging those
employees who would, or might, promote union organizing among
their employees. Accordingly, what is at stake is not whether
employers should be allowed to run their own work places in
accord with neutral rules designed to assure productivity and
discipline. What is at stake is whether employers should be
allowed to discriminate on the basis of suspected union
membership and organizing activity. Congress settled that issue
in 1935, and the law on that issue should not be changed now.
H.R. 1441 would, unquestionably, destroy the right to
organize in the construction industry. It would permit
employers to refuse to hire any applicants who were suspected
of being union supporters and discharge any employees who
attempted to promote union organizing. Those applicants who
were, or had been, union members could, and would, be
``blacklisted'' by nonunion contractors. In short, H.R. 1441
would return construction industry employees to their status
prior to the enactment of the Wagner Act, when union membership
frequently cost employees their jobs.
The right of employees to engage in salting has been
upheld, not only by the National Labor Relations Board, but
also by the United States Supreme Court, which in NLRB v. Town
& Country Electric, Inc., 116 S. Ct. 450 (1995), unanimously
held that the NLRA protects those engaged in salting. In the
decision, Justice Breyer, writing for the unanimous Supreme
Court stated:
Can a worker be a company's `employee' * * * if at the same
time, a union pays that worker to help the union organize the
company? We agree with the National Labor Relations Board that
the answer is yes.
* * * * * * *
The employer has no legal right to require that, as part of
his or her service to the company, a worker refrain from
engaging in protected activity, 116 S. Ct. 450.
That principle, which has been a cornerstone of labor
relations for several decades, would be undone by H.R. 1441.
William L. Clay.
Dale E. Kildee.
Donald M. Payne.
Robert E. Andrews.
Robert C. Scott.
Carlos Romero-Barcelo.
John F. Tierney.
Loretta Sanchez.
Dennis J. Kucinich.
Rush Holt.
George Miller.
Major R. Owens.
Tim Roemer.
Lynn Woolsey.
Chaka Fattah.
Carolyn McCarthy.
Ron Kind.
Harold E. Ford, Jr.
David Wu.