TRUTH IN EMPLOYMENT ACT
(Senate - September 14, 1998)

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[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.

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