[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
UNION SALTING--ORGANIZING AGAINST SMALL BUSINESS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE, EMPOWERMENT & GOVERNMENT PROGRAMS
of the
COMMITTEE ON SMALL BUSINESS
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
WASHINGTON, DC, JUNE 21, 2005
__________
Serial No. 109-21
__________
Printed for the use of the Committee on Small Business
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
______
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COMMITTEE ON SMALL BUSINESS
DONALD A. MANZULLO, Illinois, Chairman
ROSCOE BARTLETT, Maryland, Vice NYDIA VELAZQUEZ, New York
Chairman JUANITA MILLENDER-McDONALD,
SUE KELLY, New York California
STEVE CHABOT, Ohio TOM UDALL, New Mexico
SAM GRAVES, Missouri DANIEL LIPINSKI, Illinois
TODD AKIN, Missouri ENI FALEOMAVAEGA, American Samoa
BILL SHUSTER, Pennsylvania DONNA CHRISTENSEN, Virgin Islands
MARILYN MUSGRAVE, Colorado DANNY DAVIS, Illinois
JEB BRADLEY, New Hampshire ED CASE, Hawaii
STEVE KING, Iowa MADELEINE BORDALLO, Guam
THADDEUS McCOTTER, Michigan RAUL GRIJALVA, Arizona
RIC KELLER, Florida MICHAEL MICHAUD, Maine
TED POE, Texas LINDA SANCHEZ, California
MICHAEL SODREL, Indiana JOHN BARROW, Georgia
JEFF FORTENBERRY, Nebraska MELISSA BEAN, Illinois
MICHAEL FITZPATRICK, Pennsylvania GWEN MOORE, Wisconsin
LYNN WESTMORELAND, Georgia
LOUIE GOHMERT, Texas
J. Matthew Szymanski, Chief of Staff
Phil Eskeland, Deputy Chief of Staff/Policy Director
Michael Day, Minority Staff Director
SUBCOMMITTEE ON WORKFORCE, EMPOWERMENT AND GOVERNMENT PROGRAMS
MARILYN MUSGRAVE, Colorado Chairman DANIEL LIPINSKI, Illinois
ROSCOE BARTLETT, Maryland TOM UDALL, New Mexico
BILL SHUSTER, Pennsylvania DANNY DAVIS, Illinois
MICHAEL FITZPATRICK, Pennsylvania RAUL GRIJALVA, Arizona
LYNN WESTMORELAND, Georgia MELISSA BEAN, Illinois
THADDEUS McCOTTER, Michigan GWEN MOORE, Wisconsin
JEB BRADLEY, New Hampshire
Joe Hartz, Professional Staff
(ii)
C O N T E N T S
----------
Witnesses
Page
King, Hon. Steve (IA-05), Congressman, U.S. House of
Representatives................................................ 4
Mix, Mr. Mark, President, National Right to Work Committee....... 6
Isaac, Mr. Ray, Isaac Heating & A/C, Inc......................... 8
Cohen, Mr. Laurence J., Sherman, Dunn, Cohen, Leifer & Yellig,
Building and Construction Trades Department, AFL-CIO........... 10
Aldi, Mr. Michael, Aldi Electric................................. 12
Drummond, Ms. Anita, Director of Legal and Regulatory Affairs,
Associated Builders and Contractors............................ 14
Avakian, Mr. Michael, General Counsel, Center on National Labor
Policy, Inc.................................................... 16
Appendix
Opening statements:
Musgrave, Hon. Marilyn....................................... 37
Prepared statements:
King, Hon. Steve (IA-05), Congressman, U.S. House of
Representatives............................................ 40
Mix, Mr. Mark, President, National Right to Work Committee... 44
Isaac, Mr. Ray, Isaac Heating & A/C, Inc..................... 48
Cohen, Mr. Laurence J., Sherman, Dunn, Cohen, Leifer &
Yellig, Building and Construction Trades Department, AFL-
CIO........................................................ 51
Aldi, Mr. Michael, Aldi Electric............................. 68
Drummond, Ms. Anita, Director of Legal and Regulatory
Affairs, Associated Builders and Contractors............... 71
Avakian, Mr. Michael, General Counsel, Center on National
Labor Policy, Inc.......................................... 76
Attachment:
Union Organization in the Construction Industry.............. 88
(iii)
UNION SALTING--ORGANIZING AGAINST SMALL BUSINESS
----------
TUESDAY, JUNE 21, 2005
House of Representatives
Committee on Small Business
Subcommittee on Workforce, Empowerment and Government
Programs
Washington, DC
The Subcommittee met, pursuant to call, at 10:05 a.m. in
Room 311, Cannon House Office Building, Hon. Marilyn N.
Musgrave, [Chairman of the Subcommittee] presiding.
Present: Representatives Musgrave, Lipinski, Westmoreland,
and Sanchez.
Chairwoman Musgrave. This meeting will come to order. Good
morning. Thank you all for being here today. I appreciate the
witnesses taking their valuable time in appearing before this
Subcommittee, and I offer special thanks to those of you who
traveled great distances to be with us. I appreciate your
effort.
Today's hearing is an opportunity for us to learn more
about what is happening to small businesses and their employees
throughout the United States when union officials direct
abusive organizing campaigns toward non-organized employees in
small businesses.
This practice is referred to as ``salting''. The term
``salting'' originated with the dishonest practice of placing
gold in a barren mine to convince potential investors that the
mine had potential.
Union salting is a practice directed by labor union bosses
aimed at deliberately inserting one of their members into a
non-union company. The union agent may or may not reveal their
intentions on the employment application, but have a strategy
for attack in either circumstance. The goal is normally to
achieve a closed, exclusive union shop or to destroy the
business.
Quite often small businesses are the favorite targets
because they have minimal resources to defend themselves
against the abusive practices.
Without disclosing union affiliation, the paid union
organizer typically aims to establish a wellspring of support
for the union effort within the company. Fellow employees often
do not know that their new co-worker is a paid union organizer.
The union-paid salt is often intentionally disruptive,
antagonistic, and combative with both the employer and fellow
employees during the organizing process.
Whether organization is successful or not, the agent
typically employs some of the following tactics: Sabotage of
equipment and work sites; deliberate work slow downs;
intentionally creating unsafe working conditions; and perhaps
the most crippling, filing frivolous unfair labor practice
complaints or discrimination charges against the employer with
the National Labor Relations Board, the Occupational Safety and
Health Administration, or the Equal Employment Opportunity
Commission.
The goal of salts that actually reveal their affiliation on
the application, but are not hired, is to immediately notify
union lawyers who, in turn, file suit against the company on
the grounds of discrimination. This happens irrespective of the
reason for non-employment.
Willfully deceiving an employer during the hiring process,
as part of a systematic agenda to harm a business, is a
deplorable tactic. I believe these acts should be exposed for
what they are--fraudulent practices.
The following statement was published in the newsletter of
the International Brotherhood of Electrical Workers, dated
March 1995: ``These [companies] know that when they are
targeted with stripping, salting and market recovery funds, it
is only a matter of time before their foundations begin to
crumble. The NLRB charges, the attorney fees, and the loss of
employees can lead to an unprofitable business.''
Salting is a practice rooted in dishonesty and deception.
Its focus is to make small businesses die the death of a
thousand cuts.
The brutal practice is extremely harmful to an employer
who, acting in good faith, wants to provide a service, make a
living, create jobs, and provide wages for families in his
community.
No small business owner should be threatened with
expensive, protracted legal fights if they do not break under
the pressure applied by union agents and ruinous lawsuits.
This hearing should reveal candid, real life experiences
from employers subjected to salting. Many others were also
invited to testify, but declined an invitation, out of fear
their businesses would be targeted for retribution by organized
labor.
In fairness, we also submitted a personal invitation to
John Sweeney, president of the largest labor organization in
the nation, the American Federation of Labor and Congress of
Industrial Organizations. He declined to appear.
In a few minutes, we will hear from our respected colleague
from Iowa, Representative Steve King. I consider him a friend
and appreciate his leadership on this issue. He is also a
member of the full Committee, so I extend to him the offer to
join us following his testimony.
Congressman King will be explaining the need for his
legislation, H.R. 1816, the ``Truth in Employment Act of
2005.''
While I will let Mr. King go into further detail, the bill
amends section 8[a] of the National Labor Relations Act to make
clear that an employer is not required to hire any person who
seeks a job in order to promote interests unrelated to those of
the employer.
I am proud to cosponsor his legislation and will work with
him in any way possible to ensure its passage in the House.
As I stated, I am very eager to hear today's testimony, but
before we get to Mr. King, I would like to yield to the
distinguished gentleman from Illinois, our Ranking Member, Mr.
Lipinski.
[Chairman Musgrave's opening statement may be found in the
appendix.]
Mr. Lipinski. Thank you, Madam Chairman.
I want to thank everyone for coming today to discuss this
important issue. As job creation continues to lag, we see the
toll that it is taking on many workers. Jobs are being shipped
overseas, wages are being slashed, and benefits such as health
care and retirements are vanishing, but we should not be
looking for an undeserving scapegoat for the country's economic
problems.
Despite the lagging economy, the American worker has never
been more productive. Unfortunately, the lack of job creation
is causing some to try to weaken important labor protections
rather than to focus on the real economic problems such as
rising energy and health insurance prices.
The reality is that a need does exist for unions to protect
and advocate for our nation's workers. Unions ensure that
Americans earn a decent wage and unions help deliver a
workforce committed to economic growth.
While some employers allow the opportunity to unionize,
there are others who construct barriers and engage in covert
campaigns to intimidate and dissuade workers from learning
about the benefits of union membership.
Therefore, the only way for these non-union workers to find
out about their rights and the working conditions to which they
are entitled is through the practice of salting.
Salting is about the empowerment of working people. It is a
practice that educates workers about what a union could do for
them. This practice is especially useful in industries such as
construction where workers are constantly moving from one job
and one contractor to another.
Salting is the most effective way for union organizers to
communicate with these workers. Unfortunately, there are a
number of misconceptions surrounding salting. Salting does not
disrupt the workplace. These individuals work hard to
contribute to the company's overall success, and the law
requires that no harm is done to the employer.
While we will hear some anecdotal stories today about
salting abuses, there is simply no evidence that salting hurts
small business. Many employers incorrectly believe that salting
will result in frivolous charges being filed by unions.
However, this is not the case.
Companies that follow the law actually benefit from
salting. Many times this practice uncovers massive violations
of workers' rights by employers attempting to gain unfair
advantages.
While most employers truly want to do what is best for
their employees, the reality is that there are bad players
trying to prohibit their workers from earning fair wages and
equal benefits. That is why unions are important and salting is
a vital tool.
Today, as we look at H.R. 1816, it is important to pay
close attention and recognize how this bill will change the
current status of workers' rights. I appreciate Representative
King's work, but I think that this bill is not the right bill.
H.R. 1816 affects the basic rights of workers to form and
join unions. Simply stated, this legislation allows an employer
to fire or refuse to hire workers if they seek employment in
order to organize on behalf of a union. This undermines the
intent of the original National Labor Relations Act, which was
enacted for the purpose of protecting the right of workers to
form and join unions.
As recently as 1995, the U.S. Supreme Court ruled
unanimously to uphold the practice of salting. We should not
attempt to weaken processes that are critical in helping
working families to access fair wages, health benefits and
workplace protection.
By promoting workers' interests through collective
bargaining, the National Labor Relations Act has been one of
the most effective anti-poverty program in our country's
history; In my district, it has allowed thousands of hard-
working men and women to provide for their families and achieve
the American dream.
This proposal is a step back from that commitment. We
should be standing in support of working families, not pursuing
initiatives that erode their quality of life.
I look forward to hearing the testimony here today, but I
believe that this bill would not be good. It would harm the
unions which are very important and have been important for
many years in helping to provide good working conditions and
allowing many workers to reach up into the middle class of this
country.
Thank you.
Chairwoman Musgrave. Thank you, Mr. Lipinski.
Again, we are honored to have Representative Steve King
from the 5th District of Iowa with us today. Thank you for
being here. We will adhere to the time constraints just to keep
on schedule. I thank you for coming. And again, after you are
done with your testimony, we would be honored if you would join
us up here.
Thank you, Mr. King.
STATEMENT OF THE HONORABLE STEVE KING (IA-05), CONGRESSMAN,
U.S. HOUSE OF REPRESENTATIVES
Mr. King. Thank you, Madam Chairman, and I appreciate you
holding this hearing today and the opportunity to be here to
testify, and I will accept your offer to join on the panel
afterwards to participate and listen to the rest of the
testimony here this morning.
I also wish to associate with your remarks, your opening
remarks, with regard to Truth in Employment Act, H.R. 1816. The
presentation that you made very much mirrors the presentation
that I hope to make this morning, but I would like to just
deviate a little bit from maybe what is normal routine, and
since this is a very short and brief bill, simply just to read
the bill into the record because that is what we are
considering here today, and it does amend section 8[a], and
this would be exactly the quote of the bill.
``Nothing in this subsection shall be construed as
requiring an employer to employ any person who seeks or who has
sought employment with the employer in furtherance of other
employment or agency status.''
That is the bill, and so what it says is is that we are not
going to require an employer to put somebody on their payroll
that is working for other interests against the interests of
the employer.
I would point out that the strength and the competitiveness
of American, The Ranking Member, the gentleman from Illinois
remarks with regard to competitiveness, I think, are
appropriate here. But the strength of a nation is the
competitiveness of its workforce and its people, and we do have
productive workers in this country. That is why we have the
largest--one of the big reasons why we have the largest economy
in the world.
But we have to always be working to be more competitive,
and when an employer is required to hire someone who is
representing another agency or another interest, and
specifically a union, and they are there for the specific
purpose of putting pressure on that company to organize for a
union, and I have been in that environment, and I have watched
some of the pressure that has been brought to bear.
I am an employer too, and I have made out payroll every
week for over 1,400 consecutive weeks, and to start a business,
a highly capital-intensive business without any capital, and
make that all work, you are stretched thin most of the time
anyway. Small businesses in particular are stretched thin in
this country in the load of regulation, taxes, all those
burdens are harder on small businesses than they are on big
business.
When you inject into that a union salting process that puts
that employer in a position where they are looking at the
actions of one or more employees out there in your industrial
plant or your construction company or whatever it might be, and
you start to see things go wrong, and maybe the oil did not get
changed, maybe a machine did not get greased, maybe the floor
does not get mopped up, all of these little things that can be
explained away sometimes are intentional.
Sometimes you can look back into the history of that
employee and recognize their pattern, where they have come
from. The grape vine will feed you a lot of that information,
and find out I have got an employee here that does not have my
best interests in mind.
When you hire them and you pay them on the payroll by the
hour with wages and benefits, their job is to help you make
money. And if they are there making money from another agency
for the very purposes of organizing a company to become union,
then that is a subversive tactic.
If we have barriers in place that prevent an employer from
eliminating an employee who one can draw a reasonable
conclusion that they are there as subversive tactics and not to
further the best interests of that company, this government
should not be standing in the way of a legitimate decision by
an employer.
By the way, employers are interested in making money, and
many of them run union operations and merit shop operations,
and many companies are out there double-breasted. They see the
merits of both sides, and I have always been one who defended
the right of the worker to organize. I hate to think what it
would be like in this country if you would back up to the
beginning of the previous century if employees had not been
able to organize. We needed that, in some degree we need that
today. But it is a right in this country to market your
services.
If you want to package them up and mark them as a union,
fine. Be competitive that way. But if you want to undermine and
subvert and take businesses out of business for the purposes of
organizing a union within a merit shop company, or maybe just
eliminating the competition for a union shop company, these
things are wrong, they are immoral, they are unethical, they
should be against the law, and certainly there should not be a
federal statute in the way that puts an employer in a condition
where they are subject to these kind of suits that are brought
forward that bog them down, that burden them with their
capital, and keep them from focusing on this thing that we all
agree on is competitiveness.
We need to be promoting better and better competitiveness
in this country. This bill, Truth in Employment Act, H.R. 1816,
I believe does that, and that is why I brought this forward,
and I appreciate the cosponsorship on your part, Madam Chair,
and a number of others on this bill.
Thank you.
[Congressman King's statement may be found in the
appendix.]
Chairwoman Musgrave. You have a few minutes left, so I am
disappointed that you did not use your entire time. No, I want
to thank you for adhering to the time constraint and for your
testimony today. Thank you. Come join us.
At this time I call up the second panel, if you would come
to the microphones, please. Sometimes we have a hard time
hearing in the back of the room. So when the second panel
speaks, if you will pull the microphone toward you.
The first witness we will hear from today is Mr. Mark Mix,
and he is the National Right to Work Committee President. Thank
you for being here with us.
STATEMENT OF MARK MIX, NATIONAL RIGHT TO WORK COMMITTEE
Mr. Mix. Madam Chairman, thank you so much for the
opportunity to testify on an issue that is increasingly growing
in awareness. The Congressional Record on this issue is
growing, and this is part of the process of continuing to grow
that record.
Congressman Lipinski reflected in his opening statement
that the theory of salting is one that makes sense, but it is
the practical reality of it that is concerning to those of us
who have watched this practice grow with alarming frequency.
And the record that has been created so far, and there will be
testimony that reflects that this issue has come up again and
again in various congresses. The record indicates that
notwithstanding the fact that there are statements on the
record that say no one is hurt by this, we are going to hear
from some people today, and this Congress has heard from people
in the past whose businesses and livelihoods have been
dramatically affected by the practice of salting.
Madam Chairman, I thank you for the opportunity to speak on
behalf of the 2.2 million members of the National Right to Work
Committee, dedicated to fighting compulsory unionism across
America.
With this in mind, the National Right to Work Committee
wholeheartedly supports H.R. 1816, the Truth in Employment Act,
and commends Representative Steve King and the bill's 22
cosponsors for shedding light once again on this important
issue.
When a small growing company seeks to hire new employees,
union officials identify that business as a target to expand
their forced-unionism empire.
Union officials coordinate a stream of job applicants, both
overtly and covertly, who identify themselves in one manner,
either overtly as union organizers, or covertly, who will try
to get a job to, frankly, unionize a small company.
Union officials call this salting, and it is an appropriate
metaphor because salting, in context is preparing food, makes
it unappetizing. Salting is a great metaphor. This process
makes doing business unappetizing to many of those people,
employees and small employers who are caught in this catch-22.
If the employer hires the union salts, who are actually
paid union organizers, union officials institute quick-snap
elections trying for card check recognition. Then if they
cannot get that, they work to intimidate employers through job
actions and intimidate employees through threats and slow downs
on the job that make life miserable for both employees and
employers.
If the employer does not hire the union-appointed
applicant, the union plants go straight to filing unfair labor
practice charges with the National Labor Relations Board, and
other agencies, to make life very difficult for the employer,
and in a sense their employees.
Let me just divert here for a second because as we talk
about this in the context of the small business, these small
business men and women employ employees who, if they want, are
protected by the National Labor Relations Act to organize and
to unionize.
But oftentimes these small companies are doing business,
and it takes a paid union organizer coming into the plant to
start this process going forward. The idea that some workers
are not aware of their rights under the law I think is not
really accurate in the sense of their ability to exercise their
rights. The legal protections that exist under the National
Labor Relations Act to protect workers who want to legitimately
unionize and aid in collective bargaining and mutual
association for their betterment.
This concept of salting by definition is controversial and
one of intimidation, and I think I will insert into the record
some quotes from a union organizing magazine and pamphlets that
indicate that.
The problem is salting is currently sanctioned by law,
unfortunately, thanks to a ruling by the NLRB and the Supreme
Court. Federal law should not force anyone to hire union salts
whose goal is to put them out of business, or force the
unwanted union representation on their current employees.
Big labor salting hurts all Americans. This kind of forced
unionism can cost employees their jobs, and cause businesses to
close their doors.
I would refer to some testimony that was delivered last
year in this same Subcommittee. An IBEW, Electrical Brotherhood
of Electrical Workers pamphlet describes salting this way: ``It
is infiltration, confrontation, litigation, disruption, and
hopefully annihilation of all non-union contractors.''
Salting is kind of--as I mentioned--a ``got-you'' type of
unionizing tactic, and if you look at some of the quotes of
some of the highest officials in organized labor, I think you
can see how they view this particular practice.
In fact, one of the--again another IBEW pamphlet, union
officials accede to the fact that these are noble pleas for
workplace fairness openly admit as much that ``These
companies,'' explains the IBEW in its organizing manual, ``know
that when they are targeted with stripping, salting, and market
recovery funds, it is only a mater of time before their
foundations begin to crumble. The NLRB charges, the attorney's
fees, and the loss of employees can lead to an unprofitable
business.''
Tom McNutt, the International Vice President of the United
Food and Commercial Workers, has stated, ``If we can't organize
them, the best thing to do is to erode their business as much
as possible.''
Richard Trumka, the AFL-CIO Secretary-Treasurer, does not
mince words either. He says, ``If the unions attack the
company's weak points and threatens its strength, he maintains
the employer will not be able to conduct business as usual
because it is consumed with defending itself against the union.
It is the death of a thousand cuts rather than a single blow.''
I think these quotes accurately reflect the views of how
salting is actually used in reality, and I think that is what
we are here to talk about, and we will hear some more about
that.
I wholeheartedly endorse Congressman King's bill, and I
hope that the Congress will continue this debate and move this
bill to the floor for passage.
Thank you, Madam Chairman.
[Mr. Mix's statement may be found in the appendix.]
Chairwoman Musgrave. Thank you, Mr. Mix.
Now we will hear from Ray Isaac. Thank you, Mr. Isaac, for
coming.
STATEMENT OF RAY ISAAC, ISAAC HEATING & A/C INC.
Mr. Isaac. Thank you. Chairman Musgrave and members of the
Subcommittee.
On behalf of the Air Conditioning Contractors of America,
ACCA, I wanted to thank you for the providing me the
opportunity to testify today on this very critical issue to
small business.
In addition to being a member of ACCA, I am president of
Isaac Heating & Air Conditioning based in Rochester, New York.
We are a 60-year-old, third generation heating and air
conditioning business started by my grandfather. We have over
150 employees working for the company. We provide residential,
commercial industrial heating, ventilation and air conditioning
refrigeration service to customers throughout Rochester and the
surrounding area.
In addition, I am serving a one-year term as secretary in
ACCA's Board of Directors.
In running my business, I face many complex issues and
challenges ranging from the industry labor shortages to
complying with federal government regulatory requirements. In
addition to these issues, I also have to contend with an
abusive practice from labor unions, known as salting, that
threatens to disrupt my business, as well as others in this and
other industries.
Salting is a term to describe a union member who obtains,
or attempts to obtain, employment from a non-union contractor.
Once employed, the union member, or salt, attempts to educate
non-union employees about their rights, including the right to
organize.
While I have felt that union salting was not a very honest
way for a union to infiltrate a unsuspecting business, I could
see how salting could be viewed as a legitimate organizing tool
by the unions.
You can see the systematic approach that unions take to
control jurisdictions to make sure that all construction work
is done by union workers. These procedures have taken many
forms to include salting, controlling manpower in a
geographical area, and applying economic pressure to the
customers of a non-union contractor.
I would like to submit for the record, as already has been
done, a manual from the International Brotherhood of Electrical
Workers that provides extensive information on how to union
organize, including a discussion of salting and other
organizing tactics.
Recently, however, instead of educating non-union employees
on their rights, union salting has become nothing more than an
overt and glorified tool of harassment and intimidation
designed to antagonize the non-union business. The salt enters
into employment with the contractors with the purpose of making
allegations of unfair labor practices under the National Labor
Relations Act. In many cases these allegations are proven false
but require the non-union contractor to spend financial
resources defending themselves from these false accusations.
Instead of educating workers, the goal of the union is to
inflict economic loss and non-union employers about using the
NLRB as a shield against these practices.
In my experience, another tool that is equally prevalent is
the practice by a particular union to send in applicants who
are underqualified, unprofessional, and in some cases even
appear to be intoxicated personally by myself. This game of cat
and mouse is played by construction unions all across the
country, and it is a game that can cost honest, hard-working
small businesses countless hours and hundreds of thousands of
dollars to play this game with unions.
The unions are allowed to behave with disingenuous
intentions when sending a union salt to obtain employment with
a non-union contractor. Unfortunately, the small businesses are
expected to respond to these applicants with genuine business
reasons for not hiring them.
In my experience, many times the union does not even wait
for a response on the status of an employment application from
the business before filing an unfair labor practice charge
claiming union animus.
In most cases these charges are dismissed as frivolous, yet
the action of filing frivolous claims against contractors
before the NLRB uses up precious federal time and resources
that could be better used to pursue bona fide claims against
truly egregious labor law violations.
My industry is currently undergoing a tremendous labor
shortage, and we have to work hard to find qualified workers to
meet the demands of my customers. Because of this intense
competition for qualified workers, we must competitively
compensate our technicians, otherwise they will and can seek
employment with another company.
I also feel it is important to compensate employees for
quality work and not have to follow a predetermined time
schedule or other job classifications that a union requires.
In today's economy and the employment realities of my
industry, this activity is counterproductive to the stimulation
of the workforce.
In some cases, honest small businesses are caught in the
quagmire. Instead of hiring genuine valid applicants honestly
seeking gainful employment, they spend significant time and
money addressing union harassment. Defending your small
business against a ULP charge can be expensive for a small
business whereas the NLRB covers the cost for the union salt
that files a charge.
Many small businesses subsequently find themselves taking
the safest route possible to avoid litigation. They hire no
one. This disruptive behavior is the last thing our economy
needs. In my opinion, salting has become peppering.
Thank you for your attention and the opportunity to present
our views before your Subcommittee.
[Mr. Isaac's statement may be found in the appendix.]
Chairwoman Musgrave. Thank you, Mr. Isaac.
Our next witness is Mr. Larry Cohen. Welcome to the
Committee.
Sir, could I ask you to pull the microphone up. It is so
hard to hear in this room.
Mr. Cohen. Yes, is that better?
Chairwoman Musgrave. Yes. Thank you.
STATEMENT OF LAURENCE J. COHEN, SHERMAN, DUNN, COHEN, LEIFER &
YELLIG
Mr. Cohen. Thank you, Chairman Musgrave, and Ranking Member
Lipinski, for allowing me to present the views of the Building
Trades Department of the AFL-CIO.
My name is Laurence Cohen. I am a member of the Washington
law firm of Sherman, Dunn, Cohen, Leifer & Yellig, which is
general counsel to the Building Trades Department.
The department is comprised of 15 national and
international unions, representing over a million workers in
the construction industry. And I ask that the written statement
of Buildings Trades Department President Edward Sullivan be
admitted in the record.
Chairwoman Musgrave. Without objection
Mr. Cohen. We have witnessed attempts in the last five
congresses to do what this bill seeks to do; that is, allow
employers to discriminate against union organizers and
supporters with impunity. Those bills went nowhere, nor should
this.
Our position, Madam Chairman, is simply this: Salting is
about organizing, organizing construction workers and
construction employers, and construction unions use skilled
workers, salts, as organizers, tell them to do their work
properly and to organize only within the law.
They engage in the type of activity that Congress, a
unanimous Supreme Court, and the National Labor Relations Board
have recognized as being a fundamental right under the NLRA.
Contractors do not, as they often claim, lose control of
their jobs as a result of a salting campaign because a salt,
like any other employee, is subject to the employer's
direction, should do his work in a satisfactory manner, and
obey all lawful work rules.
What is really at stake here is whether employers should be
allowed to discriminate against the employees on the basis of
their union activity.
Now, let me address a fallacy I have heard about this bill;
namely, that it would not take away any legitimate rights that
employees now have.
That is wrong. The United States Supreme Court has held
unanimously that salts as union organizers are entitled to the
protections of the NLRA and cannot be discriminated against.
This bill would end those rights, and effectively hang a sign
in every non-union shop saying union supporters need not apply.
Under current law, legally the situation of a salt is no
different from that of an employee who is already on the job
and who decides to support a union to improve his or her
working conditions.
Those who resist organizing in the construction industry
claim, as you have heard, that unions seek to drive up
employers' costs. Well, there are two answers to that.
First, the goal of all organizing is to eliminate unfair
competition based on substandard wages and working conditions.
If a non-union employer is paying substandard wages, and is
organized, and a resulting collective bargaining agreement
reached, he may have to pay the higher wages in that agreement.
Second, many non-union contractors gain an unfair
competitive advantage by violating various laws. And when they
save money by violating wage and hour laws or by failing to
comply with prevailing wage requirements, as I might add Mr.
Isaac was found by the New York Commission of Labor last year,
or with OSHA requirements designed to protect the health and
safety of employees, it is fair to expose them.
Those who violate worker protective laws victimize not only
their employees, but legitimate contractors, union and non-
union, who abide by the law.
The same employers claim that union organizers will produce
an inferior work product or engage in sabotage on the job, and
that they are helpless when that occurs.
If any of those acts take place, contrary to the
instruction salts receive, employers are not without a remedy.
The Supreme Court said this in its Town and Country decision,
``A company faced with unlawful or possibly unlawful activity
can discipline or dismiss the worker, file a complaint with the
board, or notify law enforcement authorities.''
Finally, there is the claim about the frivolous unfair
labor practice charges. We have demonstrated in our written
statement that the NLRB statistics do not support that, and the
most common response to salting by unions is the commission by
contractors of unfair labor practices. When that occurs we will
certainly file charges.
It is interesting that the ABC itself told its members how
to avoid legal problems resulting from salting. In a 1995 tape,
the message was comply with the law, do not discriminate, do
not interrogate or threaten, and if you union activists are the
most qualified applicants, hire them. In most cases, however,
that very sound advice is disregarded.
Let me repeat, Madam Chairman, our object is to organize
and salts serve that purpose by seeking to convince their
fellow workers of the benefits of joining a union.
I would like very briefly to mention that you are going to
hear a very sad story from Mr. Aldi, but it should be noted
that just 10 days ago an administrative law judge of the NLRB
found him guilty of multiple violations of the National Labor
Relations Act, including five unlawful discharges; that he was
found in an earlier case through unlawfully repudiated a
collective bargaining agreement; and that he is being sued by
the Secretary of Labor for, I quote, ``willful and--
Chairwoman Musgrave. Your time has expired.
Mr. Cohen. ``--repeated violations of the Fair Labor
Standards Act.''
Thank you, Madam Chairman.
[Mr. Cohen's statement may be found in the appendix on
behalf of Mr. Edward Sullivan.]
Chairwoman Musgrave. Our next witness, Mr. Michael Aldi.
Thank you.
STATEMENT OF MICHAEL ALDI, ALDI ELECTRIC
Mr. Aldi. Madam Chairwoman, members of the Subcommittee.
Chairwoman Musgrave. Could I ask you also to pull the
microphone a little closer?
Mr. Aldi. Turn it on.
Chairwoman Musgrave. Thank you.
Mr. Aldi. Madam Chairwoman, members of the Subcommittee,
thank you for the opportunity to share with you today my story
about the devastating effects of union salting has on me.
My name is Michael Aldi, Jr. and I am a victim of a union
salting campaign. I was the owner and president of a medium-
sized electrical contracting company, Aldi Electric, Inc., in
upstate New York. Aldi Electric was established in 1989, and
was incorporated in July of 1997.
I am the product of divorced parents and I was raised on
welfare by my single mother, and with five other brothers and
sisters. I was a welfare-to-work success story, building my
American dream, or so I thought.
With only $2,000 in my pockets and many long hours of work,
I built a company that had yearly sales of over $1 million in
2001. In retrospect, my success in the electrical contracting
business would be my downfall. Soon, my business would gain the
attention of the International Brotherhood of Electrical
Workers, or the IBEW for short.
In 1997, Aldi Electric had its first taste of union salting
and sabotage. You see, through a competitive bidding process, I
was awarded the contract to wire a new Revco Pharmacy in
Niskayuna, New York. During this project, it was discovered
that concrete was poured into a conduit 30 feet in the air. The
cost to correct this deliberate sabotage was over $5,000.
The suspected saboteur was eventually laid off due to lack
of work, leaving the IBEW to file unfair labor practice charges
with the National Labor Relations Board. This case is still
open and has cost well over $10,000 in legal fees to defend.
In 2000, I hired an employee to work as a foreman to manage
various jobs. This foreman/employee quit within only three
months of being hired, without notice, in the middle of a large
job. After he left it was discovered that he had taken company
tools and equipment. Additionally, I found many hidden mistakes
this employee made while I was acting as foreman that would
cost the company $6,000 to repair.
This same employee then filed false allegations with the
New York State Department of Labor, which the company decided
to settle for $800 rather than face an expensive legal battle.
After the settlement was reached, I discovered that this former
employee had been on the union payroll the entire time he had
been working for me.
The most extensive and egregious acts of union salting
against my company were perpetrated by the IBEW Local 236 from
the years 2002 to 2004. These acts would eventually ruin my
business and force me into bankruptcy.
Toward the end of 2001, a childhood acquaintance of mine
approach me asking for a job. He expressed to me that he had a
falling out with the IBEW Local 236 due to the way that he had
been treated. Needing his skill sets, and knowing that he was a
union electrician, I hired him to work as a foreman to run job.
Unknown to me at the time though IBEW Local 236 did not have
any work in the area.
Since this childhood acquaintance did not want to travel
out of the area, a representative from the IBEW Local 236 gave
him an ultimatum. Either salt Aldi Electric or go on
unemployment. I found this out after I had fired him. During
his tenure at my company, he was constantly making mistakes
that would cost thousands of dollars and numerous man hours to
repair, so I thought they were honest mistakes.
In July of 2003, I caught this childhood acquaintance
stealing electric materials and equipment and personal
equipment from my home. After firing him, several employees
approached me to tell me what this former employee had been
doing all along.
Employees stated that they had seen him stealing materials
and equipment from job site, sabotaging work, padding his and
other time sheets, and forcing other employees to pad their
time sheets. He also threatened other employees with violence
and black balling within the electrical trade if they disclosed
his activities. He communicated false statements to customers
driving a wedge between the company and its customers, and he
bragged to other employees that he was helping IBEW bring Aldi
down.
In addition, on the advice of this childhood acquaintance,
I hired his mother as an office manager to help his family.
During her four-month tenure at Aldi Electric, she helped her
son salting campaign by sabotaging company payroll records,
altering employee payroll records, and destroying company
equipment sign-out sheets. This helped cover thefts of her son
and other union salts, mismanaged company office practices and
equipment, and succeeded in alienating additional customers by
being rude on the phone with them When the internal sabotage
was brought to my attention by a newly hired bookkeeper, the
office manager was subsequent fired.
Also during 2003, I hired two additional employees to work
as foremen. Eventually, both of these foremen were caught
sabotaging jobs, stealing equipment, and padding time sheets
and were suspected of arson that burned down an Aldi Electric
equipment trailer out of town. They also threatened a builder
not to pay Aldi Electric or they would face union problems of
their own. This led the builder to withholding over $30,000 in
payments due.
Several weeks after terminating these union salts,
additional employees left the company out of fear of union
retaliation and ended up joining the IBEW. This left Aldi
Electric extremely short staffed.
So we sought to hire new employees.
Chairwoman Musgrave. Your time has expired. Thank you.
Mr. Aldi. Thank you.
[Mr. Aldi's statement may be found in the appendix.]
Chairwoman Musgrave. Our next witness is Ms. Anita
Drummond. Thank you for coming to the Committee today.
STATEMENT OF ANITA DRUMMOND, DIRECTOR OF LEGAL AND REGULATORY
AFFAIRS, ASSOCIATED BUILDERS AND CONTRACTORS
Ms. Drummond. Thank you, Madam Chairwoman.
I am Anita Drummond with the Associated Builders and
Contractors.
I want to just point out a few things in regards to some of
the comments that have been made earlier.
One of the most significant things in the construction
industry is that union membership has continually plummeted in
recent years. It is now down to less than 15 percent of all
construction workers are in a union.
Now, you would indicate that maybe because of economic
times and the struggles that that is why union membership is
down. They are, in fact, struggling to recapture their market
share.
However, construction, opposed to other goods-producing
industries, is booming. We have put in place construction of
over $1 trillion worth of construction in 2004. That is double
what it was ten years ago. Construction is booming. We expect
to create 1 million new jobs in the next 10 years in addition
to the 7 million employees we currently have, and the 2 million
people that choose to be self-employed in the construction
industry.
Therefore, unions naturally are struggling to capture
market share, and part of that is union organizing tactics.
The traditional use of salting is in fact organizing, and
as Mr. Cohen pointed out, in a lawful activity it is an
employee that is in compliance with the laws, is working under
the work practices of that employer, and working to campaign
the non-union employees about the benefits of a union.
But that is not how it always goes down. Importantly, in
the struggle to recapture market share, union workers often are
sent in, union organizers, to shut down companies. There was a
reference to the legal fees of being 10,000. I can easily think
of small companies, and that would be under the Small Business
Administration's definition, those with less than $7 million on
annual receipts, going through a compliance hearing can easily
be $100,000.
Well, obviously, the rational would be, well, if they had
to go through a compliance hearing, the must have obviously
been in violation. But I believe that Mr. Aldi's description is
exactly the kind of stories we hear.
As a result of the Town and Country case in 1995, a prima
facie case was established that if an employer knows that you
are union, you can go in wearing your union label, you can
indicate it on your application, there is a prima facie case
that if you do not hire that person you must be discriminating
against them.
There has been a tremendous patchwork of case law in the
past 10 years that leaves very little guidance for a good
employer to follow that assures that they are not
discriminating, yet are picking the best qualified candidates.
Some of the things as openings. Is there actual opening? In
the Modern Electric case, in 1998, there was no proof there was
an opening. Yet failure to hire a union organizer that, you
know, identified themselves, was a prima facie case of
discrimination.
If there is no necessary match, meaning we do not have an
opening for an electrician or a qualified electrician at this
time, then that should not--that should not establish a prima
facie case of discrimination, but it does.
The timing, we have put our applications in. We have
flooded you with applications six months ago. Now you have
openings. You should call us. Do you necessarily fill all of
the paperwork properly as required by our employment practices?
And it has to be both policy and practices of the employer.
They cannot discriminate in their practice. That is not
necessarily the way the chips fall in these cases.
Probably the most egregious things is hiding the fact that
you are a union organizers or putting bad references or
incomplete work history, and the Wright Electric case is one of
the most egregious examples of that.
Just yesterday the U.S. Supreme Court failed to grant a
petition for certiorari on that matter where we have a case
where an employee lied on the application, and when it was
discovered after the employee was hired, they were not in fact
qualified to work, that company is now being subjected to
actually a civil lawsuit in the state. But it is that type of
practice that continues to go on.
The legal activity of organizing, going into a workplace,
being qualified, there is a job opening, being hired, and doing
the job of convincing employees, whether it is in their best
interest to organize, is it a legitimate right under the law
for someone who is salting.
However, the law has continued to shield individuals that
go into a workplace in order to shut down a workplace. If you
are looking at $100,000 in legal fees and you have less than $7
million in annual receipts, that is essentially consumed your
entire profit margin, and more, and actually reduces your
ability to gainfully employ folks.
Thank you very much, and I appreciate your time.
[Ms. Drummond's statement may be found in the appendix.]
Chairwoman Musgrave. Thank you for your testimony and
adhering to our time constraints.
Our final witness is Mr. Michael Avakian. Thank you very
much for coming before us today.
STATEMENT OF MICHAEL AVAKIAN, GENERAL COUNSEL, CENTER ON
NATIONAL LABOR POLICY, INC.
Mr. Avakian. Thank you, Madam Chairman.
I am going to provide some summary comments based upon the
testimony that I have already submitted, that statement, that
is,
As general counsel for the Center on National Labor Policy,
which is a nonprofit legal foundation, I take a different type
of view on legislation because we had a request to testify, and
based upon about 30 years of experience in the labor relations
field, including representing small businesses and employees in
the entire area of law, we have found that many of the problems
dealing with salting that the bill that is pending before the
House right now is intending to answer goes directly to the
heart of a problem that began with the Town and Country
decision, which we all can admit that the labor act now is said
to provide protections to union organizers who enter the
workforce through surreptitious means, maybe through regular
means as well, but get into the workforce and start to do
organizing.
I would observe, first, that the issues dealing with this
problem are focused primarily in the construction industry
because within the construction industry there is an exception
for organizing without an employee vote. Section 8[f] of the
labor act permits employees, or employers and labor
organizations in the construction industry to enter into
collective bargaining agreements notwithstanding the wishes of
the employees.
Now, having said that, the way we have heard the unions and
labor organizations are attempting to organize is by getting
into the workplace and organizing workers.
Well, that sounds like a correct approach to begin with,
but the case law does not bear it out. What happens with these
persons that enter the workplace either through normal means, a
hiring procedure, or through a surreptitious means, which Ms.
Drummond just outlined, which could be applications that are
incomplete.
I have had cases where--in representing small employers--
the applications are actually filled out in advance by union
organizers, submitted with references, omissions and so forth,
which are incomplete and inaccurate, but still those lead to
NLRB proceedings that require the small employer to vindicate
and show that these people just are not credible in their
application process.
Retirees are submitting applications. If they take a job,
they lose their union retirement. So it does not make sense
that a lot of people who are trying to become salts do become
salt, or will become effective workers.
Upon entering the workplace, what do we see? Do we see
effective, good, skilled workmanship, helping the employer and
all the employees to have a successful business where they all
can take away from the hard work that they accomplish with
continued jobs, and growth in the business?
No, we do not see that. We do not see the focus being on
organizing other employees. The focus is on doing things to
trip up the employer who is probably not as--especially in
small business, is not as adept and knowledgeable of labor
laws, to engage in unfair labor practice activity.
The end result is, in the cases I have been involved with,
which have been numerous, and you could easily request
information from the National Labor Relations Board, is how
many of these types of cases get settled, and what do those
settlements look like?
They are basically payoffs. The union organizer agrees,
okay, I will stop doing it if you give me a cash money, or I
will agree to leave the company if you give me $5,000. They are
essentially extortion payments which end up as part of the
problem with this particular type of salting.
If it could be, as Mr. Cohen indicated, purely an effort to
organize workers, focused on activities of demonstrating the
benefits of collective bargaining before work, after work, on
lunch breaks, and on other breaks, that would be one thing. But
the activities are focused on activities intending to put
economic pressure on the employer to sign the workers over to
the labor organization, and then collect dues and other things
from the employees.
So that has been our experience, and I think if you were to
take a look at the case law and just on its face just look at
the fact patterns that have occurred, and how the labor board
has split hairs and said, okay, the salters are allegedly
engaged in section 7 activity, which is protected activity, but
the burden of proof is now on the employer to show and
demonstrate clear business reasons why they took certain
actions.
The labor board council has a tendency to overlook certain
aspects of litigation. One is the statute, section 10[b], says
the Federal Rules of Evidence should apply to do these types of
hearings, NLRB hearings.
One of the rules, 201[c] under the rules of evidence, says
that persons cannot get paid for their testimony. If they are
getting paid for their testimony, then their testimony is not
going to be admitted.
Well, these salts are getting paid for testimony. They are
actually getting paid for testimony, or developing fact
patterns that they will then testify before the labor board on.
There are also cases where employees are actually getting
paid and receive payments, and one of the cases is Brandt
Construction Company, which is cited in my statement, in which
some of the salters--
Chairwoman Musgrave. Your time has expired.
Mr. Avakian. Oh, I am sorry.
Chairwoman Musgrave. Perhaps in a question asked of you you
may be able to elaborate on that. Thank you so very much.
Mr. Avakian. Thank you, Madam Chairman.
[Mr. Avakian's statement may be found in the appendix.]
Chairwoman Musgrave. I appreciate all the witnesses'
testimony. I would like to recognize Mr. Westmoreland, if you
have questions, sir.
Mr. Westmoreland. Yes, I do.
Mr. Cohen, you are a brave man to be down here by yourself.
But are you familiar with the literature that Mr. Mix and Mr.
Isaac quoted from, the IBEW literature that talked about what
to do with these salts, or what salts should do when they got
in the company
Mr. Cohen. If the piece of literature to which he referred
is what I think it is, it was written by someone who has not
been employed by the IBEW for 10 years, and whose approach to
salting was disavowed even before he was forced to leave.
We certainly do not subscribe to that philosophy. It does
not serve the purpose of trying to gain union workers and
union--new union employers.
Mr. Westmoreland. I believe--are you familiar with this
manual?
Mr. Cohen. I cannot see it, sir.
Mr. Westmoreland. Okay. It is called ``The Union
Organization in the Construction Industry,'' and it says
Brotherhood of--International Brotherhood of Electrical
Workers. It has got their official trademark
Mr. Cohen. That may be the same document.
Mr. Westmoreland. I believe it is, yes. And it looks
official document, that it was put out by the union itself.
On the other hand, you have got ABC, which you quoted as in
a video that they sent to their members, asking their members
to abide by the law, and to hire a salt if they were equally
qualified or better qualified to try to go along with the
spirit of the law.
It sounds to me like that from just listening to all of the
testimony that the union, or at least the IBEW in the pamphlet
that they have got here, their intent is to use the law that is
there for disruption and to put these non-union companies out
of business, whereas the people who are actually in the
business, such as ABC and the people that they represent, are
trying to get their members to actually abide by the spirit of
the law.
Do you have any comment on that
Mr. Cohen. Well, all I can do, Mr. Westmoreland, is repeat
what I just said. That the view of the IBEW today is
diametrically opposed to what appears on those pages, and that
the author of those pages is long gone.
I would also say that while the advice on the ABC video was
very sound, it is certainly honored far more in the breach than
in the observance. Most non-union contractors as soon as a salt
shows up immediately begin engaging in discrimination in either
refusal to hire, or if one is a covert salt, and that is, he
does not advertise that he is from a union, fired when his
union affiliation is discovered on the job.
Mr. Westmoreland. And one last question and comment if I
could. Well, I do not know if you represent the IBEW or not or
any of your--
Mr. Cohen. We do.
Mr. Westmoreland. Okay. Then you know, you might want to
give them some good legal advice, and to get their official
symbol or recognition, I guess, of giving this some credibility
off of that if they do not agree with it, but certainly I am in
business for myself. And if my name was on something I did not
agree with, I would certainly want it off of that.
Then I guess my last question to you is this: Do you
believe there is any place in labor for non-union companies
Mr. Cohen. I think that ultimately is a matter of choice
for the employees of any particular contractor. We would
obviously, representing the unionized sector of the
construction industry, like to see as many union contractors as
possible. That is the whole point of organizing.
But as to any given contractor, only that contractor's
employees can make that choice, which is one reason we are on
the job trying to proselytize.
Mr. Westmoreland. But it should be a choice that they make
on their own free will without anybody having to be subjected
to undue pressures?
Mr. Cohen. By anyone.
Mr. Westmoreland. Thank you, sir. Thank you, ma'am.
Chairwoman Musgrave. Thank you, Mr. Westmoreland.
Mr. Lipinski, do you have questions?
Mr. Lipinski. Thank you, Madam Chairman.
First of all, starting out Mr. Mix had stated at the
beginning about salting being bad for food. Actually, I think a
lot of people like salt put on their food. It is a problem for
a lot of us actually.
In regard to unions themselves, though, Ms. Drummond stated
that--along the lines that union organizing is usually the
purpose for salting, and Mr. Isaac had mentioned that usually
what the salts do, they want to educate workers about their
rights, and Mr. Mix, you had talked about in theory salting,
you know, is not bad.
My question, Mr. Mix, is do you think that--is the union
necessarily--does a union necessarily work against the
interests of an employer? Is it necessarily an adversarial
relationship? And does the presence of a union mean that they
are going to be anti-business?
Because none of us want to be--none of us up here want to
be anti-business. I do not want to be anti-business. But do you
think a union is necessarily anti-business?
Mr. Mix. I do not think so. I think the context in which I
approach this issue, and I appreciate the question, is in the
context of employee rights.
You know, it is interesting that in these companies, the
employees of these companies mentioned, had no interest in
unionization or had not shown any until someone, an agent
provocateur, if you will, had to be paid to show up and
infiltrate the company, either overtly or covertly.
Now, I think, as I mentioned in my testimony, the rights to
protect individual workers in their exercise of section 7
rights under the National Labor Relations Act are steadfast.
The question is do workers really want these unions, and do
they--can their jobs exist after an employer spends a half a
million dollars on legal fees? Can we increase their wages?
If a worker has an individual choice, free of coercion to
choose an organization, we are all for that. But I think there
is definite coercion, and the stories we are hearing in this
record are created by salting.
Mr. Lipinski. Do you think that workers definitely know
what their rights are? Do you think that they automatically
know? Where do they get this information from? Do you think
that-- yes, well, that is simply the question. Where do they
get this information if that is the idea of salting? You said,
in theory, salting is good.
Mr. Mix. Well, I think the testimony of Mr. Cohen and the
testimony we have read in the record in the hearings previously
have indicated that in theory salting is an idea where workers
get informed of their section 7 rights, their right to
organize.
You know, a worker can go to the NLRB website or to a union
hiring hall to find out what their rights are. Those rights are
available to them and understanding those rights.
It is when those rights are violated by compulsory unionism
agreements and forced unionism, and the coercion that we are
seeing in the testimony of those that have experienced salting
is where we get the problem.
Mr. Lipinski. Now you are bringing in forced or compulsory
unionism. Where are you talking about that coming in?
Mr. Mix. Well, I think just a couple weeks ago the National
Labor Relations Board ruled in a case regarding 14 nurses in
Missouri that because they did not pay their dues they would be
fired. If that is not compulsory unionism, I do not know what
it is.
Under the National Labor Relations Act, workers can be
fired for failure to pay dues as a condition of employment.
Mr. Lipinski. Is it not required that there is a vote
before there is a union?
Mr. Mix. If you want to use the idea of democracy to
forfeit basic rights that should not be subject to a vote, I
guess you could say that indeed they would.
But is it appropriate that a worker has to give up their
rights to negotiate and to contract with an employer of their
rights of employment to a union official that they neither
wanted, voted for, or asked for? I do not think so, and 80
percent of Americans do not believe that either.
Mr. Lipinski. Mr. Cohen, what do you feel about that
Mr. Cohen. Well, the Congress decided first in 1935 and
then changed the law slightly in 1947, that it is perfectly
lawful for a union and an employer, which are parties to a
collective bargaining agreement, to have a union security
clause in that agreement that says that after a certain number
of days of employment, those who are represented by the union,
members and non-members alike, must pay either membership dues
or an agency fee in order to support their collective
bargaining representative, and that principle made sense then,
it makes sense today.
Mr. Lipinski. One more quick question, Mr. Mix, although it
is probably not an easy answer. It seems that we are talking
about not salting but other things that occur, other things
that are not legal right now, sabotage for example. Is that not
what we are really trying to aim at, and that we should be aim
at ending? Not necessarily salting to educate workers, but
stopping these other problems that sometimes do occur?
Mr. Mix. I would hope so, Congressman, and I think the fact
is in reality that is what we are seeing, that these salting
campaigns manifest themselves into.
The record on this of the people that have testified
before, both the small business owners and those workers that
are affected by this, indicate that, for example, in Illinois,
Operating Engineers Local 150 salting of Randall Industries.
In 23 years of operation, there was not one act of
vandalism. As soon as the salting campaign started, things
happened that cost this particular employer and his workers,
jobs, and legal fees that could have been used for improved
wages, et cetera.
I would agree that we should get to the heart of it and say
you have got to stop it. But when a salt comes in with a video
camera rolling, a union hat on, and 16 of them come into apply
for a job that perhaps does not exist according to testimony
from the ABC, and then they have this prima facie evidence that
you have discriminated because they are union members, and they
are in there saying we are going to organize you, boy, that is
pretty tough to take as a small businessman. I think the
employees that work for those small businesses are really hurt
by that.
Chairwoman Musgrave. Time has expired. Thank you. We may
come back for another round if you would like.
Mr. King, do you have questions?
Mr. King. Thank you, Madam Chair. I do, and in five minutes
I am going to try to talk to four of you if I can pull this
off.
First of all, Mr. Mix, you started with a sequence of
salting, and I believe the first word you used was
``infiltration''?
Mr. Mix. Yeah, this quote, and I think Congressman
Westmoreland had this up there, it is--let me just go back here
real quick and I do it. ``Infiltration, confrontation,
litigation, disruption, and hopefully annihilation of non-union
contractors.''
Mr. King. That is what I wanted to hear. Thank you.
And then I will go to Mr. Isaac, a couple of questions for
you, Mr. Isaac.
The first one is Mr. Cohen made some remarks about your
record as an employer. I want to make sure you have an
opportunity to respond to that, and then I want to follow up
with, as part of that response, could you give this panel some
idea of about how many different incidents of salting type that
you have experienced? And I do not mean just the number of
employees that might have showed up, but the number of actions
that have been committed in a cover fashion within your company
that you suspect.
Mr. Isaac. All right, I will try to leave you some time for
your other four people.
Real quick, the one willful violation that we had the
recent violation was a Department of Labor, New York State
Department of Labor adjustment on a prevailing wage job where
the municipalities in the towns were equally at fault in that
they did not bid the jobs out properly.
I should mention that one of the wage adjustments for one
of our employees was $1.76, the majority of which was benefit
adjustments; not that we denied benefits to any of our
employees, but there was a difference between what our benefit
value is that they gave credit for and what the union
prevailing rate, which I do not know where they get prevailing
rates from because it is the result of a collective bargaining
agreement, but the difference between those was the
adjustments. So that is one willful.
There was actually eight different locations, and they saw
that there was no intentional willful act there, so they
condensed it down to one willful violation. So I appreciate the
opportunity to clarify that.
In our organization's, salting--there were several stages.
The original salting activity was only the beginning. We
suspect, we do not even know who it was, but we suspect that a
salt got into our location, and they educated our workers on
what the union could do for them, and they got a large portion
of our workers to go with them.
You know what? Shame on us. We did not educate them
properly on what we felt was the benefits of being in a merit
shop, and maybe we were not providing them with everything they
should have been getting. You know, sometimes after sixty years
you become a little complacent. So shame on us. There was an
education there.
That went to an election. We won the election. It got
thrown out on a technicality. Two other elections were
scheduled, and then continually postponed because of ULP
charges in a whole other area of, you know, situations that
were all subsequently withdrawn after the NLRB told them that
there was no cause for action.
What has happened now and the reason I say salting has
become peppering, it is an overt, outward harassment of our
company by the unions. They walk in. Individuals that have been
forbidden from entering our premises by the NLRB, the two union
organizers of our local unions, the Sheet Metal Workers and the
United Association, are not allowed on our property. This is by
the NLRB, an agency that is there to protect them, told them do
not come on our property because of their reprehensible
behavior.
Furthermore, in the last case, and I will summarize it
here, the last case of this organizing where what everybody has
said is what happens. They come in en masse. They do not follow
the proper hiring procedures. They fill out mass applications.
They cannot even take the time to type in my name. They have to
scratch out ``Dear Sir,'' and write ``Ray'' at the top, and
fill in their name on a blank. You cannot even read the resume,
and then they file a ULP charge saying you did not hire them.
I do not care who they are. Union member, the best
qualified person in the world, if that is the first impression
that I am getting from this individual when they come in is
that type of an impression, I am not going to hire them
regardless of who they are affiliated with. It is improper and
it is not professional, and they have been informed of that
time and time again. They willfully deny or refuse to abide by
our hiring procedures that every other employee that comes in
abides by.
What happened in the last case, and this is Case CA-22791
of the National Labor Relations Board, where they told us we
did not have to even consider for employment two organizers for
the two local unions, the last comment that was written down
here by Sandra Dunbar, the regional director, was ``Finally
with respect to the named alleged discrimnees,'' and she named
the people, ``further proceedings would not be warranted
inasmuch as you failed to present any evidence about them
during the investigation.''
What is a better term for harassment than something that
you just throw out there. You throw as much against the wall,
and see what sticks, and they do not even back it up with
anything. No supporting documentation.
We encountered tens of thousands of dollars over months to
defend ourselves against something that our union counterparts
would not even supply any information on. And if it is hearsay,
it is hearsay, but I have talked to the regional, or to the
investigator. He said this was the last straw, and she informed
the unions that no longer were they going to, you know,
consider this type of activity.
So it is an outward--it has gone - that is why I say, it
is--salting is one thing. I can see that.
Chairwoman Musgrave. The time has expired.
Mr. Isaac. But once you get to peppering--I am sorry. I did
not leave you enough time, but you know.
Chairwoman Musgrave. We will do another round.
Mr. King. I will stick around for the next round. Thank
you.
Chairwoman Musgrave. We have been joined by Ms. Sanchez, a
member of the full Committee. Do you have questions?
Ms. Sanchez. Thank you.
Mr. Isaac, do you think that an avenue of recourse for
people to try to assert or protect their rights should be
thrown out because of some abuse by a small minority of people?
Mr. Isaac. Well, I guess ``some abuse'' would be the term
that I would question. What is some abuse?
In my experience, it has been that 100 percent. There was
one instance of the covert salting, and for six years now this
game is being played.
Ms. Sanchez. Have you ever heard of employers who have
employed harassment tactics against their employees--
Mr. Isaac. Yes.
Ms. Sanchez. --to keep them from joining the union?
Mr. Isaac. They are both sides, both sides, I agree with
you.
Ms. Sanchez. Okay. And you did mention in your response to
one of the questions that, you know, certain cases were thrown
out by the NLRB; is that not correct?
Mr. Isaac. All of the cases were thrown out.
Ms. Sanchez. Okay. So in fact the NLRB was doing their job
then, in other words, because they threw out cases that had no
merit; is that correct?
Mr. Isaac. Yes.
Ms. Sanchez. Okay, thank you.
I want to get to the issue, Mr. Mix, of educating workers
and salts who educate workers. It is my understanding they do
it on non-company time, otherwise they can be let go; is that
not correct?
Mr. Mix. I am not sure. There may be someone else who can
answer that question. But it seems to me in the record that has
been reflected on this particular issue as how this salting
takes place--
Ms. Sanchez. So the answer is you do not know whether they
can take company time to educate workers?
Mr. Mix. I would say that they are supposed to do it off
company time, correct.
Ms. Sanchez. Okay. Mr. Cohen, can you edify us on that?
Mr. Cohen. Yes. Employers can legitimately enforce rules
that organizing be done on non-work time, breaks, lunch time,
prior to beginning work and so on.
Ms. Sanchez. And salts--
Mr. Cohen. And salts are instructed to do that organizing
only on non-work time.
Ms. Sanchez. And so if a salt is in fact using company time
to try to talk to employees about unionization, they can be
fired for that; is that not correct
Mr. Cohen. If they violate those company rules, absolutely.
Ms. Sanchez. Okay, thank you.
I want to get to the issue, Mr. Mix, about people
representing dual interests or employees coming in to a work
site and trying to educate workers about, you know, potential
better wages. If I am not mistaken, Mr. Isaac said that
sometimes employers do get complacent, and sometimes they are
not giving employees everything that they should be receiving.
And so tell me what the harm in educating workers about
potential for higher wages or better fringe benefits?
Mr. Mix. No harm.
Ms. Sanchez. Okay, thank you.
I am interested in the fact that this panel is comprised of
folks from the air conditioning and plumbing industry, and what
seem to be sort of the construction industries.
Mr. Mix, do you think that there is a lesser right to
organize in these industries than other industries?
Mr. Mix. Absolutely not. Section 7 of the National Labor
Relations Act protects workers equally in their exercise of
their bargaining rights. It is when they violate those laws is
when the issues comes, and we have heard testimony of the
salting campaigns, the intimidation in fact, as Mr. Isaac just
said, I mean, these cases were filed. He had spent 10 to 20
thousand dollars to defend himself, and every single case was
dismissed without merit.
We have cases on the record in the hearing, if you will
look back in hearings previous, where employers have been had
to spend 10, 20,000, up to a half a million dollars in legal
fees to defend against unfair labor practice charges that at
the end of the day had no merit where those people that filed
the unfair labor practice charges have the taxpayers to pay for
the cost to defend the litigation on the case. That is an
outrage.
Ms. Sanchez. I would disagree with you on that point, but I
would say that, again, you know, because there is in some cases
abuse, correct me if I am wrong, but we are a democratic
society, we do have a court system, we do have a system set up
in place to throw out unmeritorious claims.
Mr. Mix. That is right. And absolutely. Using that court
system to leverage employers and their employees is outrageous,
and maybe possibly we can amend the bill to apply the Equal
Access to Justice provisions where if, if the NLRB loses these
cases, and these cases are withdrawn, there may be some
compensation or remuneration to those who have had to defend
themselves against these frivolous charges.
Ms. Sanchez. I am willing to look into that, but I want you
to keep an open mind about not destroying the process simply
because there are a few problems with it. That seems to be the
overwhelming, and perhaps your experience--in your experiences
perhaps that has been the case. But what I am saying is keep a
broader perspective that that may not be the case in all cases,
and that in fact salting may do a real service to employees in
terms of creating better working conditions for them, and
better wages.
Mr. Mix. I would suggest that--I would suggest those unions
that exercise these salting tactics with the mindset that we
have written into the record here that Congressman Westmoreland
represented in the IBEW document are the ones that are abusing
and using the process, and making--
Ms. Sanchez. And again, I can understand your point, but my
point is also, you know, because there is a problem with
something you do not scrap the entire thing. I think salting
can be a valuable tool. I think it can be helpful for
employees, and I think sometimes it can help move employers
along in terms of shaking them out of their complacency, and
perhaps doing the right thing by workers, and we will have to
disagree on the rest.
Thank you. I yield back my time.
Chairwoman Musgrave. Thank you. Mr. Westmoreland, do you
have questions?
Mr. Westmoreland. Yes, ma'am.
Mr. Isaac, even though these complaints were thrown out,
does it still not cost you time and money to defend these
things, whether they are thrown out or not, and cannot just be
used as a harassment tactic?
Mr. Isaac. Oh, by all means. They call it economic
pressure. It is outlined in their own operating procedures.
Mr. Westmoreland. Thank you.
Ms. Drummond, have any policies ever been recognized as
legitimate reasons not to hire a salt? Are there any legitimate
reasons out there not to?
I know that your video suggests that they give them all
benefit of the doubt.
Ms. Drummond. As I indicated in my oral testimony, there
has been a patchwork of case law which makes it very difficult
for an employer that is trying to do the right thing to follow
which--which is the latest flavor of the law.
Most recently, there has been a case where an employer has
done an economic analysis of all employees, and determined that
if an employee was making a certain wage prior to being hired
that was significantly higher than that which he is paying, let
us say 30 or 40 percent, that that employee has a history of
not staying on the job.
If you are looking at a legitimate application for union
organizers, they can easily make $80,000 a year, and even a
front-line electrician is not necessarily going to make that.
So that policy has been recognized where the employer had to
come back with extensive economic analysis of that policy.
The other policy that has more recently been recognized is
a strict referral system where unless they absolutely have no
applicants that are referrals, that has been a policy where it
has been both the policy and the practice.
Mr. Westmoreland. Thank you.
Mr. Mix, I know that some people may see some benefit to a
salt. I just wanted to ask you if they are educating the
workers on wages and benefits, I wonder if the workers ever ask
them why they are working there. I mean, if the wages and
benefits are so much better somewhere else, why would they be
working there?
And also, what kind of money--I know there was an $80,000,
but what kind of money are these salts paid by the union? And
if you do not know that, I would like to ask that to Mr. Cohen
to see if he knows what an average salary would be paid.
Mr. Mix. Congressman, I am sorry. I cannot answer that
question as far as what their payroll might be for these folks.
Mr. Westmoreland. Mr. Cohen, do you have any ideas?
Mr. Cohen. I cannot answer it either as a generalization. I
can tell you two things though; that far more salts are
volunteers, unemployed workers, than are paid organizers. And
my understanding is that when salts are paid they are either
paid the difference between the union contract rate and the
non-union contractor's rate which is invariably lower. They are
paid the difference so that that employee does not suffer, or
will be paid only for the non-work time that is devoted to
organizing over and above what he is getting from the
contractor; one of those two.
Mr. Westmoreland. So let me understand this. The person who
is not able to get a job that is unemployed by the union goes
into a shop where people are working to tell them the benefits
of being in the union
Mr. Cohen. Nicely done.
Mr. Westmoreland. Thank you
Mr. Cohen. However, what he will be explaining are the
union wages, the benefit package, et cetera. At any given
moment there may be unemployment in a given area, perhaps just
in a given trade. But the purpose is to get as many workers and
many--even if a union is unsuccessful in organizing a
contractor, they may convince some employees of the benefits
who will leave that employer and sign up with the union hiring
hall in order to stand in line to get the benefits when he is
referred out.
Mr. Westmoreland. Well, I think there is a lot of truth in
the book that says you cannot serve two masters. Thank you.
Chairwoman Musgrave. Mr. Lipinski?
Mr. Lipinski. Thank you.
Go back to Mr. Mix. Do you think this will--do you believe
this bill would essentially overturn Town and Country?
Mr. Mix. I think that allowing an employer to make a
distinction from folks that storm his or her place of business
with video cameras and signs and posters, and applications that
say we are here to do one thing, to organize your business--
Mr. Lipinski. So would that be yes?
Mr. Mix. I would say that if that is the context, then I
would say it ought to be.
Mr. Lipinski. So you definitely want to get rid of it. The
focus here is they should not be allowed to salt.
Mr. Cohen, why is salting important? Why is it not possible
that workers can learn in other ways about the benefits of
unions? Why do you think salting is necessary
Mr. Cohen. It would be wonderful if they could, but as a
matter of practicality I do not think there are many non-union
employees who even know there is an NLRB website to go check,
and most of them either do not know there is a union or
certainly if they are working for a non-union contractor, are
not likely to go to the union hiring hall to get information. I
wish they would.
One of the reason that salting is necessary in the
construction industry in particular is because so many jobs are
of short duration. Work is intermittent. Employees go back and
forth to different jobs through the hiring hall. And as a
result of a Supreme Court decision in 1992, the Leachmere case,
non-employee organizers are not allowed on employer's private
property, and as a result, the practice of having employee
organizers has gained popularity since that decision.
Mr. Lipinski. Okay. Well, Mr. Mix or anyone else on the
panel, would you favor--if the problem because they are
employees and because they are employees and they can sabotage,
they can do other things that employees can do, would you favor
changing the law to allow non-employee individuals to go on a
work site to organize?
Mr. Aldi. In fact, I would. My name is Michael Aldi again,
and I was a former union member myself of the IBEW. I know many
salts and I know that they are part of the--they are victimized
also in this, because usually salts are the guys that are laid
off by union contractors that are not the best guys in the
union, and they get laid off, and have to support their
families. So they are forced by union organizers to go against
their grain and sabotage jobs and to weaken non-union
contractors to either put them out of business or get them to
sign a collective bargaining agreement.
Mr. Lipinski. So you would--
Mr. Aldi. But we would be more than happy to have
education. We would be more than happy to post the--like we
post wages, minimum wage standards and OSHA standards. I would
love to post it on my wall, let my employees read it. That
right there educates.
How do people get educated about the minimum wage laws? We
post it. And we can post these requirements.
Also, when I went to school--
Mr. Lipinski. What about--
Mr. Aldi. --I learned about unions.
Mr. Lipinski. --allowing non-union employees onto the work
site?
Mr. Aldi. During break hours and during the lunch time
coming and discussing with employees their benefits and their
legal rights, I see no problem in it myself at all.
Mr. Mix. One thing I might suggest is why is it not that
they would knock on doors and go door to door after hours and
talk with workers?
I mean, organized labor in this country collects about $19
billion a year in revenue. Unfortunately, what most--
Mr. Lipinski. Wait.
Mr. Mix. --most workers see--
Mr. Lipinski. You are talking about knocking on random
doors to do this because--
Mr. Mix. Who knows?
Mr. Lipinski. --they cannot get the information who is
working in a place.
Mr. Mix. Some of the techniques they use like getting
license plates, and using friends to get license plate
information, and following people home and video taping are
things that I would be very, very concerned about.
But you know, they spend 19--the raised $19 billion a year
in revenue. The only thing that I think American workers see
now from organized labor is their campaign slogans and their
political activity.
I would suggest that if they are interested--truly
interested in representing workers--
Mr. Lipinski. Do you think--
Mr. Mix. --they would spend some of their resources on this
type of educational campaign.
Mr. Lipinski. --this is different from businesses. This is
somehow--there is an uneven playing field between unions and
businesses?
Mr. Mix. I am sorry?
Mr. Lipinski. Do you believe that the unions have more
power than businesses? Somehow there is an uneven playing
field. You were talking about all this money, and
advertisements, et cetera.
Mr. Isaac. Congressman, I could probably address that real
quick. The businesses are do not call lists. The union
organizers have the cell phone numbers of company-provided cell
phones of all of our employees, and just recently, within the
last month and a half, called each one of them individually
while on working hours on their cell phones.
Chairwoman Musgrave. Time has expired.
Mr. Cohen, I have a question, some interesting questions
from my friends on the other side of the aisle here.
Are there any salts that are bad apples?
Mr. Cohen. I am sure there are. However, they are a
distinct minority compared to the number of law violators by
contractors where the NLRB volumes are replete with cases
finding unlawful discharges, unlawful refuses to hire and so
on.
Chairwoman Musgrave. What should we do with salts that are
bad apples? What should happen to them?
Mr. Cohen. If we are talking about what some of these
witnesses have referred to this morning of deliberate sabotage,
number one, fire them; and number two, if they have really done
that, have them prosecuted. No responsible union wants to have
their salt do what we are hearing of some of these allegations.
Chairwoman Musgrave. What should we do about the cost that
these individuals such as they men before us have incurred
today?
You know, it has been said that this is anecdotal. How does
that feel to you, Mr. Aldi? Do you feel like your story is
unique?
Mr. Aldi. No, I know for a fact my story is not unique. I
know of 10 other electrical contractors in my area who have
been put out of business in the past, and now just drive around
in one truck doing electrical work on their own because they
cannot find jobs anywhere else, like myself. I have been black
balled from the industry completely because no contractor wants
to touch me out of fear of union reprisals.
And even applying for a job as an electrical inspector in
the State of New York, they have refused to give me a job due
to the--they do not want the IBEW contractors to black ball
their company from using them as an inspection agency.
But I do not feel there is a fair playing field here. I had
fired union salts for sabotaging work, coming to me, stealing
equipment, laughing at me, about me to my face with witnesses
present, and I have spent over $60,000 in legal fees to defend
against allegations with National Labor Relations Board that I
fired them for legitimate union organizing activities.
Everybody says it is not--you know, then it is on for me to
prove the NLRB wrong. It is my auspice to prove that they
committed these crimes or that they broke the law.
I had one employee arrested, and the prosecutor prosecuted
the case. They did not put on a good defense. The police
refused to investigate the crime after I reported it. So it
went to the jury, which found reasonable doubt because of no
police investigation was the reason.
But I had other employees that stole equipment where
district attorneys in other counties says this is a union
matter, take it up in the civil courts. We want nothing to do
with it. We are not going to prosecute anything.
So to say that we can just report crimes to the police is
wrong, and the cost of going through litigation--the decision
by the NLRB was--had came about because all the electric--
through cost of litigation, through cost of repairing union
sabotage, spent over $100,000 in repairing union sabotage over
the past two years has gone bankrupt, and did not mount a
defense at this NLRB hearing. We had nobody there in defense.
Only partial statements from our witnesses were put into
evidence. And when you hear one side of the story, it is pretty
easy to get a win.
Hopefully that in the future I will have my day in court
over this, and I have plenty of evidence and proof and
witnesses to prove the NLRB wrong in their decision.
And furthermore, I would like to add that Don Raum, the
business agent, the elected business agent of IBEW Local 236
had a--we had a private meeting at his office where he had
indicated to me that he was going to make all electrical
contractors in his collective bargaining area either union or
put them all out of business, and he was going to use whatever
means necessary he had at his disposal. That was directly to
me, and that is my statement. You can believe it or not.
Also, I have proof that some of these employees were
brought during working hours down to the union hall on their
way out to a job on payroll and forced to sign union cards. Two
of them signed them under duress, being told that they were
going to get their butts kicked because the other guys wanted
the union. If you do not give us the union, we want a little
bit higher pay, a little bit better benefits, or we are going
to kick your butt if you do not sign these things.
They signed them all with all these people around them,
intimidating them. You had union organizers there saying, oh,
it does not really mean anything. It is just to give you a vote
and everything like that. And I spent thousands of dollars in
defending against the vote that eventually was withdrawn by the
IBEW because they had no cause for the vote.
Chairwoman Musgrave. Okay, the red light is telling us that
the time has expired.
Mr. Aldi. Right. Exactly.
Chairwoman Musgrave. Ms. Sanchez.
Ms. Sanchez. Mr. Aldi, I am not suggesting that forcing
people to sign union cards under duress is a good idea, but
there is an election that follows that process, is there not?
Mr. Aldi. Well, we hope there is an election but--
Ms. Sanchez. And the election would be secret ballot
election, so that employees would not--nobody would know
whether they voted to have the union represent them or not?
Mr. Aldi. Hopefully.
Ms. Sanchez. Okay, thank you.
Also, I am a little startled by your comments that salts
are forced by their unions and that they are victims of this
process as well.
Mr. Cohen's testimony was that the large majority of salts
are volunteer, unpaid workers that choose to go into workplaces
and try to educate workers about their rights. So how does that
make them a victim?
Mr. Aldi. Well, like I said, I was a former union employee
myself. I know some people who have done salting against other
companies, and I have talked to some of the people that have
salted my company and have actually gotten out of the union
since their salting activities.
Ms. Sanchez. But you feel the were coerced into doing it?
Mr. Aldi. Yes. Well, Ann Marie Taknikas was told that she
had--that she was out of work, and that if she wanted to stay
with the union, because she had been laid off several times
from union employers who were--I don't know, either lack of
work or whatever the reason, but that the union, if you want to
stay a union member, you will go salt these different--
Ms. Sanchez. My understanding--
Mr. Aldi. --agencies, and then they gave them a list of
things to do.
Ms. Sanchez. My understanding is that so long as you pay
your union dues you remain a union member in good standing.
Mr. Aldi. Yeah, you can remain a union member, but if you
want any work, you had better do what the union boss tells you
to do.
Ms. Sanchez. But do not hiring halls have a book that
people have to sign and jobs go according to who is next on the
list?
Mr. Aldi. Our local jumps the names all the time.
Ms. Sanchez. Well, I would suggest that that is probably
not a normal procedure or normal practice. Most union halls
that I know that have hiring halls have a book that members
have to sign, and they--
Mr. Aldi. Yes, they do.
Ms. Sanchez. --go in strict order depending who is next on
the list.
Mr. Aldi. Yes, they do, but--
Ms. Sanchez. Mr. Cohen, is that your experience
Mr. Cohen. Yes. And if names are jumped without a
legitimate reason, it is a violation of the act.
I would just have to caution the Committee once again, with
all due respect to Mr. Aldi, that if I may be humorous for a
moment, his testimony has to be taken with a large grain of
salt--
Ms. Sanchez. No pun intended
Mr. Cohen. --in view of the fact that he has been found
guilty in an earlier case where he was represented by counsel,
and that even though he did not defend himself in this case,
the reasons asserted for the discharges were found to be
protectual by the administrative law judge.
Ms. Sanchez. Thank you.
Another quick question for Mr. Mix, and Mr. Cohen, and then
I would like to go back to Mr. Aldi before my time expires.
But it is my understanding that if union members want to
contribute to political action funds, they have to do so
voluntarily. Their dues cannot summarily be used by the union
for political campaigns; is that correct, Mr. Cohen
Mr. Cohen. It is.
Ms. Sanchez. Thank you.
Mr. Aldi, with respect to educating workers about their
rights, have you ever been on a non-union construction site
where prevailing wage law information was posted for the
benefit of non-union workers?
Mr. Aldi. Yes, many times.
Ms. Sanchez. And were employees actually explained what the
prevailing wage laws were and what peoples' benefits were?
Mr. Aldi. Yes.
Ms. Sanchez. I find that astonishing given that I used to
patrol work sites to see if the prevailing wages were being
paid, and at none of the several hundreds or even possibly
thousands of job sites that I ever visited did I ever see a
prevailing wage schedule posted on a construction work site for
the classifications of workers that were doing work. That is
just my personal account.
Is the information that you saw posted, was that posted in
several languages in the event that there were employees there
that did not speak English fluently?
Mr. Aldi. Well, in my experience, I have seen it posted in
Spanish also.
Ms. Sanchez. Okay, Mr. Isaac, have you seen prevailing wage
law information posted on construction sites for all employees
to see, and in multiple language in case there were employees
that did not speak the language fluently?
Mr. Isaac. I do not get on job sites as often as I used to.
I am sorry.
Ms. Sanchez. Okay. Well, my experience has been--
Mr. Isaac. On prevailing rate jobs, I guess I should
clarify?
Ms. Sanchez. Yes, on prevailing rate jobs.
Mr. Isaac. Well, you probably would not see that because
even the municipalities do not know that they are supposed to
be bidding it out at prevailing rates.
Ms. Sanchez. Okay. Mr. Cohen, is it not a function of
prevailing wage law that the prevailing law wage schedules have
to be posted on construction sites
Mr. Cohen. They are certainly supposed to be.
Ms. Sanchez. And in your experience have they always been
posted on these site?
Mr. Cohen. No.
Ms. Sanchez. Have they been posted in multiple languages in
the ones where they were posted for workers who may not speak
English fluently?
Mr. Cohen. I really cannot answer that from personal
experience, Congresswoman.
Ms. Sanchez. Thank you. I yield back.
Chairwoman Musgrave. Thank you.
Mr. King?
Mr. King. Thank you, Madam Chair.
First of all, I would point out to this panel, this
Subcommittee and the panel of witnesses, I have spent my life
in the construction business, and we do a number of prevailing
wage scale jobs, and we have always had all the postings up
that were required by law, and we make it a matter of standard
practice, we do it one of two ways.
One of them is we build a poster board, I mean, a plyboard
sign and we will post all of those notices up there on that
sign, and we will put plexiglass up over the top of that and we
will seal it up so that the rain does not bother it. Or else we
put it inside the job trailer where the employees are coming
and going all the time. We make that information available.
I had some questions, and I hope I get to them, but I also
want to point out something that happens, and I can think of a
case where we are a union shop operations, and we started a
prevailing wage job, it was a large sewer lagoon project. My
first employee, I sent him up there to just simply go in and
bush hog the weeds off, and they we were hauling equipment in
that day. When we got everybody on the job site, we would
typically then have a construction meeting. It would be a
safety meeting. It would be a meeting to layout all of the wage
scale and all of the rules that we would follow by that job.
Before I got there some of my employees arrived, and there
is the federal government misrepresenting my company policy and
their wage scale, and telling my employees that I could be
subject to--if I remember right--a $50,000 fine and maybe up to
15 years in jail, and allege that I was violating federal laws,
which undermined my relationship with my employees. That was
just a small thing in comparison to what at least two of the
gentlemen sitting here in this panel have talked about today.
And this undermining that goes on is something that--this
adversarial relationship between labor and management, I want
to associate myself with the remarks of Mr. Westmoreland when
he said you cannot serve to masters.
If someone comes onto my job and I am paying them the best
wage that I can afford to pay them, giving them the best
benefits I can afford to pay them because I want to keep highly
qualified employees so we can be more competitive in the
marketplace, and he is being paid by somebody else, even if it
is that little sliver or that little extra for break, little
extra for lunchtime, little after hours time, he is serving two
masters. He is undermining you.
It brings to mind a little anecdote that flipped up in my
head here, and that is, I remember when I was a senior in high
school we had a coach come in who was an MP in the marines, a
drill instructor. He was just back from Vietnam. This was 1967.
He decided he was going to make about 50 of us seniors in high
school learn how to march. And we decided we will be doing that
soon enough, and so we are going to figure out how he cannot
force us to march.
And so when he would say left, some of us would go right,
some of us would keep going forward, and some would stop and
some would turn left. And every time he issued an order some of
us would go in the opposite direction. You know, you could
never really tell who really knew what was going on, and who
understood and who was doing it on purpose.
This went on for several weeks, and he was a pretty
determined DI. You know what those guys are like. And he took
some of us down on the mat and rubbed us around on the mat. But
in the end we did not learn to march.
And in the end Mr. Isaac nor Mr. Aldi can force those union
salts to do the job and do an hour's worth of work for an
hour's worth of pay if they are determined to undermine the
profitability of the company. It is impossible.
And as a matter of meeting all the requirements and going
and file your claim, and vindicate yourself before the NLRB,
and come up with some profit with a company that is its
proficiencies have been slowed down because the people that are
serving another master, all of these rules and all of these
hoops to jump through here are actually it is ludicrous to
think that we can write enough rules.
So I would pose this question, and it comes this when. When
your survival of your company is at stake, and it is, then
whether or not the law allows an employer to remove someone
whom you are convinced as an employer has not the best
interests of your company in mind, but the interests of the
union or his own self-interests in mind, either to destroy the
competition or create a union environment?
Then I would pose my question to Mr. Cohen, and that would
be, how can you blame an employer for firing a union salt
Mr. Cohen. For firing him or hiring him?
Mr. King. If that employer has gone through this scenario
that I have described, how could you blame an employer for
firing a union salt whether or not it complied with the letter
of the law when you keep into consideration that the very
survival of that person's live's work is at stake?
Mr. Cohen. Well, I think the key is whether it is within
the letter of the law, Congressman. If the law is broken by the
discharge, then it is not acceptable.
And I would like to answer your two master's argument by
quoting from the NLRB decision in Town and Country, affirmed by
a unanimous Supreme Court, ``The statute's premise is at war
with the idea that loyalty to a union is incompatible with an
employee's duty to the employer.''
And later, ``The statute is founded on the belief that an
employee may legitimately give allegiance to both a union and
an employer.''
Mr. King. I would call that a flawed premise, but thank
you, Mr. Cohen. Thank you, Madam Chair. I yield back.
Chairwoman Musgrave. Thank you, Mr. King.
I am going to ask the final question today of Mr. Mix. Mr.
Cohen, in his testimony said that salting is about organizing,
and we had some excellent questioning by Ms. Sanchez with a
very different viewpoint than I have, but could you please
respond to salting is about organizing?
Mr. Mix. Well, I would think that is probably absolutely
accurate in the sense that organized labor has come to a point
in their livelihoods where they are no longer organizing
workers the traditional way.
I think in the statistics, and the record would reflect the
NLRB's report for 2004, I think 90,000 workers were organized
through conventional NLRB means. The other 400,000 workers were
organized through top-down organizing campaigns, these types of
corporate campaigns that are designed just like salting, to put
pressure on employers to finally give in and say we give up, we
can no longer afford to defend ourselves against this campaign
of salting, or this campaign of death by a thousand cuts, as
Richard Trumka put it, you know, in the quote I gave you in my
testimony.
I think what it is it is organizing but it is aggressive
organizing in the sense that they come to a point where their
political agenda and their government activity and all the
things that they are doing have lost sight of what their actual
role was.
You know, Samuel Gompers said it best in 1918, when he
addressed the AFL for the last time, he said, ``Workers of
America adhere to voluntary institutions. Anything contrary to
that is a menace to their rights,'' and he understand it.
And prior, if you go back into the history before the
Wagner Act, there were many members of organized labor that
said when we get this compulsion it is going to be the death of
our organization. It is a cancer inside unions where they use
legal privilege of government to force these types of campaigns
on workers and small businessmen who can barely defend
themselves with the limited resources they have, and it is a
war of attrition, and I would suggest to you that we need to
find ways to again protect workers' rights to join unions. It
is clearly stated in the National Labor Relations Act, but
these types of activities are reprehensible and I think we
could bring in a whole another panel of workers and small
business people that would say exactly the same thing, and
story after story could be told.
Chairwoman Musgrave. Thank you. Mr. Avakian, could you
respond to that, please?
Pull the microphone a little closer if you could.
Mr. Avakian. Okay. I think Mr. Mix has got it right. The
history of the labor act, and we have heard the statement about
how one cannot serve two masters.
In this particular case where we are dealing with salting,
we are talking about activities which are essentially of recent
vintage, in the last 15 years, maybe 20 years maximum as the
salting programs go. But we have union personnel who are
entering a workplace, usually under false pretenses, engaging
in activities, and these activities are not just organizational
in nature, they are also designed to disrupt the employer's
operations, to harass him, to cause deep pain through the cost
of litigation and so forth, and those are the costs which are
not associated with normal organizing that we normally would
see.
There is no problems with unions having organizers outside
the gates. When the employees leave work, they meet with them,
meet them off-site at bars or restaurants, or visit them at
their homes. Those are all legitimate activities.
Here we have an activity which is designed on its face to
do those same sorts of functions, but in actuality do not.
There is no organizer at any of the cases that I--numerous
cases that I have been involved in dealing with salting and
litigation with the labor board and in the federal courts in
which those salts only do activities on breaks, and after hours
and so forth. They are doing it all day long. They are
protesting all day long. They are engaging in conversations
with employees, other employees who they are trying to
proselytize on the job site all day long, and these employees
are also fed up with that type of activity, and they cannot be
violent. They cannot do activities against these particular
person.
But the whole point is it is a campaign not to organize the
employees. It is a campaign to harass the employer to engage in
top-down organizing, just to either surrender to the union or
to go out of business, and those are fundamentally what the
case law demonstrates to us. It has nothing to do with the
historic, deep-seated interest in trying to organize the
workplace, which is in section 1 of the statute. It has to do--
rather, it has all to do with power. It all has to do with
control, and to either force the workers through these types of
activities, to cave into the unions in order to avoid any
further disruptions, or for the employer and his employees to
go out of business.
I think that is the fundamental question, and I think the
statute--the bill as proposed will answer that question by
making it very clear if you are an 80,000 or 90,000 dollar a
year union organizer, and you are going in working part time,
the mere fact that you can find something legitimate that you
are doing to cover and disguise these adverse activities will
not save you when the labor board--from an employer's
discharge, and the labor board will not save you, or will not
be able to save you when that happens, and that is what this
statute is going to allow to occur.
Chairwoman Musgrave. Thank you very much. I would like to
thank all of the witnesses. The time has expired, Mr. Aldi. I
apologize. I would like to thank you all for coming today,
particularly those of you who have the stories to tell that
have made you very vulnerable when you have appeared before
this Committee today.
I would also like to acknowledge there were others who
wanted to come and testify that did not do so out of fear. So
thank you, members, and thank you, witnesses, today.
This meeting is adjourned.
[Whereupon, at 11:50 a.m., the Subcommittee was adjourned.]
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