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[House Report 106-967]
[From the U.S. Government Publishing Office]

106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     106-967

======================================================================

 
                    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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
        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\
---------------------------------------------------------------------------
    \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'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \10\ 116 S.Ct. 450 (1995).
    \11\ Id. at 457.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.

                                  
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