Serial No. 106-38


Printed for the use of the Committee on Education

and the Workforce

Table of Contents *













Thursday, May 13, 1999

The subcommittee met, pursuant to notice, at 1:30 p.m., in Room 2175, Rayburn House Office Building, Hon. Cass Ballenger [Chairman of the Subcommittee] presiding.

Present: Representatives Ballenger, Barrett, Boehner, Isakson, Owens, Martinez, Woolsey, and Kucinich.

Staff present: Gary Visscher, Workforce Policy Counsel; Ashley Rehr, Professional Staff Member; Mark Rodgers, Workforce Policy Coordinator; Jason Ayeroff, Legislative Assistant; Robert Borden, Professional Staff Member; Rob Green, Professional Staff Member; Michael Reynard, Media Assistant; Deborah Samantar, Office Manager; Peter Rutledge, Senior Legislative Associate/Labor; Maria Cuprill, Legislative Associate/Labor; Marjan Ghafourpour, Staff Assistant/Labor; Brian Compangnone, Staff Assistant/Investigations; Cassandra Lentchner, Special Counsel/Investigations; Gregory Jefferson, Counsel/Investigations.


Chairman Ballenger. [presiding] A quorum being present, the Subcommittee on Workforce Protections will come to order. Really I am starting this early. Representative Owens is coming, but Congressman Barrett can't stay with us but a half hour and I am sure there is a vote coming up momentarily. So, let me go ahead and get my statement out of the way.

According to rule 12(b) of the committee rules, any oral statements at the beginning of the hearings are limited to the chairman and the ranking member. Therefore, if other members have opening statements, they will be included in the printed hearing record. This will allow us to hear from our witnesses sooner and to help members keep to their schedules. Without objection, all members' statements and witnesses' written testimony will be included in the hearing record.



Today's hearing will consider H.R. 1434, legislation that I introduced to allow employee safety committees and other forms of employee involvement in safety and health. This is not a new issue. For nearly a decade, both Democrats and Republicans have attempted to make sense of the conflict between the kind of meaningful employee involvement that is an important component of a safe workplace and the restrictions on employee involvement imposed by the National Labor Relations Act. Ever since the National Labor Relations Board issued its decision against employee involvement programs in the Electromation case in 1992, many employee involvement programs, including many safety committees and similar employee safety and health programs, have operated under the cloud that, if these programs are challenged, they will probably be held to be illegal.

Today, we will hear from one company whose program was challenged, EFCO Corporation, and we welcome Mr. Fuldner here. The NLRB ruled last December that EFCO had acted illegally because it allowed the employees too much involvement in safety and health. We put the key sentences from the NLRB, describing the really terrible thing that you did, over there on the poster.

It says, ``however, the respondent did not simply delegate the safety inspection or reporting duties to the safety committee. Rather, the committee's functions included reviewing safety rules and policies, and developing safety incentive programs, and most significantly, making proposals to management about such proposals and policies.''

In other words, EFCO's mistake was that you really tried to actually involve your employees and listen to their concerns and ideas. If EFCO had not allowed the employees to do anything more than report problems, that would have been okay. But since you actually tried to involve them in a meaningful way, to get their advice and expertise as to what works and what doesn't, you crossed the line.

Let me read a quote from the committee report filed by the Democrat majority in the 103rd Congress. ``In the committee's view, safety meetings conducted solely by management, suggestion boxes, managers' breakfasts, safety notices and newsletters, and employee surveys do not constitute meaningful employee participation because they do not allow for an ongoing, substantial dialogue with employees on safety and health matters.''

So hopefully, we will all agree that the current law, which allows suggestion boxes but does not allow meaningful discussion between employers and employees over safety policies and practices, is poor public policy.

The question, I suspect, that divides us is what to do about the situation. In the 103rd Congress, Democrats proposed to mandate safety committees with certain characteristics, and then to exempt those, and only those mandated safety committees from the National Labor Relations Act.

A better solution, it seems to me, would be simply to allow employee involvement in safety and health. We don't need to mandate employee involvement. Chances are that an employee involvement program instituted simply to satisfy a government regulation would not be very meaningful in any case. In fact, surveys have shown that most employers already have employee involvement programs. Despite the experience of companies like EFCO, most employers still are trying to find ways to keep their employee involvement programs going, and hoping that they don't get brought before the NLRB.

As if this country's legal prohibition on meaningful employee involvement were not sufficiently ridiculous on this issue, the Federal Government also speaks with a forked tongue. Even while the NLRB continues to prohibit meaningful employee participation in safety and health, OSHA has required employee involvement in past enforcement programs, and is now proposing to mandate it in new regulations.

The Department of Labor's irresponsibility on this issue is highlighted by the language used in two current rulemakings: the proposed safety and health program rule released last fall and OSHA's draft ergonomics standard released in February of this year. Both require employers to ensure that employees are involved in establishing, implementing, and evaluating the employer's safety programs. To do so, at least through the mechanism of a safety committee in a non-union workplace, would violate the NLRA. Yet, the Department of Labor offers employers no help regarding this conflict. When I pressed OSHA earlier this year about this conflict, the only response I received was that a very small employer would not have to have a safety committee, but could deal individually with each employee.

OSHA's response is of no practical usefulness to most companies and workplaces that are too large to operate a meaningful program without a committee of some type. Employers deserve more certainty and better guidance than that. I hope that today the Department of Labor, here represented by the Solicitor of Labor, will be more helpful and enlightening, and explain to us, if the department truly believes that employee involvement is important to safety and health, why employee safety committees like the one at EFCO should be illegal.

I now recognize the Ranking Member, Mr. Owens, for any opening statement that he wishes to make.

[The statement of Chairman Ballenger follows:]




Mr. Owens. Thank you, Mr. Chairman. In previous OSHA hearings, I have accused the Republican majority of conducting a guerilla war this year on the safety and health of workers. The bill before us today is not a minor ambush on the rights of workers; it is a full-force frontal assault on basic democratic values. This is an invasion from a new direction. The strategy is new. The invasion is new.

However, the issues raised by H.R. 1434 are not new to this committee. They are exactly the same issues that were raised by the TEAM Act. Remember the TEAM Act? There was no justification for the enactment of the TEAM Act, and there is no justification for the enactment of H.R. 1434.

Supporters of H.R. 1434 have tried to justify it on the same basis that supporters of the TEAM Act sought to justify that legislation. That was that the National Labor Relations Act somehow prohibits true employee involvement. In fact, the National Labor Relations Act exists to protect employee involvement.

Alternatively, supporters of H.R. 1434 contend that efforts by OSHA to implement minimal requirements for employee participation, as part of a safety and health program rule, place employers in a catch-22. If the employer complies with the OSHA rule, the employer will violate section 8(a)(2). This contention is patently false.

As the National Labor Relations board has made clear on more than several occasions, under both Democratic and Republican administrations, there are numerous forms of employee participation available to both union and non-union employers that do not violate section 8(a)(2). At the conclusion of my opening statement, I will seek to submit correspondence between Senator Kennedy and the General Counsel of the NLRB and correspondence between myself and the General Counsel to document just this point.

Section 8(a)(2) of the National Labor Relations Act embodies the fundamental principle that representatives should be exclusively responsible to those that they represent. H.R. 1434 stands for the proposition that employers should be able to choose and control who will speak for workers on matters in which the interest of the employer and the workers are inherently divergent, and sometimes at odds.

H.R. 1434 permits employers to design committees that claim to represent the interests of workers. Yet, under H.R. 1434, it is the employer who is empowered to select who is on the committee. It is the employer who dictates the issues that the committee may consider. It is the employer who determines the outcome of any decisions of the committee. And it is the employer who determines whether, and for how long, the committee may exist. Imagine if the person you were suing demanded the right to require that you hire the lawyer of their choice. Yet, in essence, that is the proposition that H.R. 1434 embodies.

To contend the enactment of H.R. 1434 is necessary for the empowerment of workers turns the truth on its head. To slightly paraphrase the great Senator from the State of New York, Robert Wagner, the author of the NLRA employee participation, ``becomes a sham when the employer sits on both sides of the table or pulls the strings behind the spokesman of those with whom he is dealing.''

Mr. Chairman, at this point, I ask you now to consent to insert into the record copies of correspondence between Senator Kennedy and the General Counsel and copies of correspondence between the General Counsel and myself concerning section 8(a)(2). Thank you, and I yield back the balance of my time.

[The statement of Mr. Owens follows:]



Chairman Ballenger. Without objection, that will be included.

[The information follows:]



Chairman Ballenger. As I told the gentlemen before we started, we thought we were going to have a vote coming up, and it is here. We will be back in about 10 or 15 minutes. If the vote goes well, we will be back in 10 minutes.




Chairman Ballenger. Sorry to keep you all waiting, but we were not sure whether we were going to have one vote or two votes. They said they were just going to voice vote the last, so we hung around just for a little bit to make sure.

Thank you Mr. Owens for your statement.

I will now introduce you to our panel of witnesses. Our first witness will be Mr. Henry Solano, Solicitor of the U.S. Department of Labor.

Next we will hear from Mr. Christopher Fuldner, President of EFCO Corporation, who will be testifying on behalf of the LPA.

Then we will hear from Mr. Joseph Holtshouser, who is the Project Manager for Environmental Health and Safety Regulatory Affairs at Goodyear Tire and Rubber Company. I would love to see you put that rather large title on a button. Mr. Holtshouser will be testifying on behalf of the National Association of Manufacturers.

Our fourth witness will be Mr. Frank Casey, a partner in the law firm of Morgan, Lewis, and Bockius, who will testify on behalf of the U.S. Chamber of Commerce.

And our final witness today will be Mr. Peter Ford, the Assistant General Counsel at the United Food and Commercial Workers International Union who will testify on behalf of the AFL-CIO.

Thank you all for being here today.

Before the witnesses begin, I would like to remind the members that they will be allowed to ask questions of witnesses after the entire panel has testified. In addition, committee rule No. 2 imposes a five-minute limit on all questions.

With that said, Mr. Solano, you may begin your testimony.



Mr. Solano. Mr. Chairman and members of the subcommittee, good afternoon. I am pleased to testify today on the current ability of employers and employees to work together on safety and health-related issues in the workplace. I have submitted a longer written statement for the record.

Over the years, OSHA has demonstrated its commitment to effective employee participation. OSHA's new draft proposed safety and health program rule contains an explicit requirement that employers involve their employees in the identification and resolution of workplace safety problems.

Current law, including the OSH Act and the National Labor Relations Act, is not, and I underscore, is not an obstacle to progress in this area. Today, employers and workers can, and they do, work together successfully in a wide variety of ways to improve safety and health in the workplace. Chairman Ballenger has recently introduced a bill, H.R. 1434, which would amend the OSH Act in order to place safety and health matters outside of the scope of section 8(a)(2) of the National Labor Relations Act.

That section reflects the basic principle of Federal labor law: that workers should be free to choose their own representatives in the workplace, without employer domination or interference. Because H.R. 1434 would overturn this principle, the Department of Labor strongly opposes the bill.

In its programs and rules, OSHA has long recognized the importance of obtaining employee participation. For instance, in OSHA's 1989 Voluntary Safety and Health Program Management Guidelines, two of the core elements to be used in the development of a comprehensive safety and health program are management commitment and employee participation. These two elements are also present in OSHA's Voluntary Protection Program, the VPP program, designed in 1982 to recognize employers who establish a comprehensive safety and health program.

As you know, on October 27, 1998, OSHA released a draft proposed safety and health program rule. The draft proposal is based on OSHA's voluntary guidelines for managing safety and health programs. It would require employers to set up a safety and health program to manage workplace safety and health to reduce injuries, illness, and fatalities by systematically achieving compliance with OSHA standards and the OSHA Act's General Duty Clause. The draft proposal identifies core elements of the safety and health program. The first is management leadership and, again, employee participation.

Under the draft rule, an employer's basic obligation with respect to employee participation is to provide opportunities for participation in establishing, implementing, and evaluating the program. I emphasize that the draft proposal does not mandate any particular method, such as employee committees, for ensuring employee participation. The draft identifies what employers must do. It does not tell them how they must do it.

OSHA's draft safety and health program rule acknowledges that employers must comply with the National Labor Relations Act in ensuring that employees have opportunities for participation in safety and health matters. That statement reflects a simple principle: OSHA regulations do not override the requirements of other Federal laws that apply in the workplace. In our view, the protections of the draft rule and the protections of the National Labor Relations Act, compliment each other.

When an employer takes steps to comply with OSHA's draft safety and health program rule, the protections of two provisions of the NLRA need to be observed. Where the labor union is entitled to serve as the exclusive representative of employees, an employer has a statutory duty to bargain collectively with the union, and only with the union, with respect to wages, hours, and other terms and conditions of employment. It is well established that safety and health matters are terms and conditions of employment. As a result, a unionized employer would commit an unfair labor practice if it acted unilaterally concerning safety and health matters, that is, acted without first bargaining with the union that represents its workers.

If OSHA adopted a safety and health program rule, the agency would expect unionized employers to comply with the NLRA by engaging in collective bargaining with the union before adopting employee participation measures to comply with OSHA's rule. In workplaces where employees are not represented by a union, the duty to bargain is not implicit. But employers still would be required to comply with section 8(a), which provides an unfair labor practice for employers who dominate or interfere with the formation or administration of any labor organization or contribute financially or otherwise support it. Section 8(a)(2) is designed to ensure that workers are represented by the organizations and that the individuals, not their employers, choose and control them.

Depending on the circumstances, section 8(a)(2) may be violated when an employer sets up employee committees. If the committee meets the statutory definition of a labor organization, which focuses on whether or not the organization exists to deal with the employer, and if the employer dominates or interferes with the formation and the administration of the committee, or contributes support to it, the NLRB may order the employer to disestablish the committee, assuming, of course, that an unfair labor practice charge has been filed and the NLRB's counsel filed a complaint.

A few of the cases decided by the board have involved employer-created safety and health committees. Most recently, the board issued its decision in EFCO. The EFCO decision was based on the board's ruling that the safety committee in question was a labor organization and that the employer dominated it. But in EFCO, the board also took particular attention to point out in its word, ``a significant portion of the purposes and functions of the safety committee would not contribute to the finding that it was a labor organization.'' And it said, ``the NLRA does not prevent an employer from encouraging its employees to express their ideas and to become aware of safety problems in their work. Moreover, an employer's delegation of safety duties, such as the reporting of safety hazards, the imparting of safety information or the planning of educational programs, by and of itself, does not constitute dealing.''

The EFCO decision did not break new legal ground. In earlier cases, for example, the 1993 decision in DuPont, the board announced the principle that it applied in the EFCO case. As the board observed in EFCO, its decisions have made clear that there are many ways in which employers can involve employees in safety and health matters, without raising concerns of violating section 8(a)(2).

There is nothing in the EFCO decision or any of the earlier NLRB decisions involving employer-dominated safety and health committees which raises a conflict between the OSHA's draft proposed safety and health program rule and the NLRA. Nothing in the draft requires employers to set up a committee of any sort. Again, the draft speaks in terms of employee participation, not employee committees. It should be clear that a committee is not necessary in order to do the things mentioned in the draft's description of opportunities for employee participation.

A committee is not necessary to do each of the following things under the draft rule: to regularly communicate with employees about work safety and health matters; to provide employees with access to information relevant to the employer's safety and health program; for employees to become involved in hazard identification and assessment, prioritizing hazards, training, and program evaluation; for employees to report job-related fatalities, injuries, illnesses, incidents, and for employees to make recommendations about appropriate ways to control those hazards; or further for an employer to provide prompt response to such reports.

I emphasize again, that employee committees are not required to do these things. They can all be accomplished successfully through methods that do not violate the NLRA. As OSHA continues to develop its safety and health program rule, it fully intends to provide employers and workers with the information they will need to comply with the rule successfully and lawfully.

Several types of employee participation have been upheld and described by and approved by the NLRB in the course of deciding its section 8(a)(2) cases. These include: brainstorming groups, information gathering committees, delegated management functions, safety conferences, and all-employee committees. My written statement describes all of these forms of employee participation in more detail.

In closing, I would like to address the bill recently introduced by Chairman Ballenger, H.R. 1434, which I understand may have been prompted by the NLRB's EFCO decision. While the bill would amend the Occupational Safety and Health Act, and not the National Labor Relations Act, it would effectively repeal section 8(a)(2) of the NLRA in the context of workplace safety and health.

In 1996, Congress passed broader but similar legislation, the Teamwork for Employees and Managers Act, the TEAM Act. The President vetoed that legislation. He explained that, rather than encouraging true workplace cooperation, the TEAM Act would abolish protections that ensure independent and democratic representation in the workplace.

While we share the chairman's interest in promoting employee participation in safety and health matters, the Department has the same concerns about H.R. 1434 that led President Clinton to veto the TEAM Act. The right of workers to choose their own representatives is no less important for safety and health than it is for wages, hours, pensions, and other terms and conditions of employment. That right does not interfere with employee involvement in safety and health. There is no evidence that section 8(a)(2) of the NLRA has prevented employees from participating in meaningful employee involvement mechanisms or has prevented them from participating in other ways in workplace safety issues.

Mr. Chairman and members of the subcommittee, thank you very much. I would be pleased, at the appropriate time, to answer your questions.

[The statement of follows:]



Chairman Ballenger. Mr. Owens, I hope you will recognize the fact that I am being generous to your side. Usually it is five minutes.


Mr. Solano. I apologize.


Chairman Ballenger. No problem at all.

Mr. Fuldner, you go right ahead.




Mr. Fuldner. Mr. Chairman and distinguished members of the subcommittee, I thank you for inviting me to testify before you this afternoon.

My name is Chris Fuldner, and I am the president of EFCO Corporation.


Chairman Ballenger. Mr. Fuldner, could you pull that microphone just a little bit closer to you?


Mr. Fuldner. Sure.

EFCO manufactures custom commercial windows, entry doors, storefronts, and curtain wall systems used in schools, office buildings, and other institutional buildings throughout the United States. My father and his partner started the company in 1953. We are a relatively small, privately held company employing 1800 employees, with plants in Monett, Missouri and Barnwell, South Carolina.

Today, I am testifying on behalf of the LPA, formerly the Labor Policy Association. LPA is a Washington, D.C.-based public policy advocacy organization of senior human resource executives. They represent over 250 corporations. LPA's purpose is to ensure that U.S. employment policy supports the competitive goals of its member companies and their employees.

Mr. Chairman, whoever said that two-headed dragons only exist in myths and fairy tales has never dealt with the agencies that enforce Federal labor law. OSHA's proposed program rule requiring effective and substantial employee involvement in employer's safety and health program runs headlong into the NLRB's interpretations of section 8(a)(2) of the National Labor Relations Act. The NLRB believes and has ruled that effective and substantial employee involvement is illegal. EFCO was bitten by the NLRB head of the dragon when we were ordered to dismantle our employee safety committee. Now, the other head may take a bite if OSHA's proposed rule goes into effect. Without a white knight, such as H.R. 1434, there is no way to comply with both requirements. They are mutually exclusive, and will make every non-union business in this country a violator of one act or the other. Such a choice, which of the dragon's head gets the feast?

For a better understanding of EFCO's predicament, let me provide a short history of our use of employee involvement. In 1977, I started assisting my father in the management of the company. At that time, he was working 16-hour days and struggling to keep up as he tried to manage all aspects of the corporation. Instead of relying solely on traditional hierarchical management structure, I delegated tasks to the lowest possible levels in each department in order to streamline management, to foster employee productivity, efficiency and creativity.

The goal was to make our employees partners in the company, in order to become as competitive as possible. This philosophy led the company to implement profit-sharing and employee stock option plans, and other sophisticated employee involvement plans to further link employee contributions to the company's success.

EFCO started its employee involvement program to further improve employee job satisfaction and to assist management in making important policy decisions. The company ultimately created four different committees: the safety committee, the employee suggestion screening committee, the employee benefit committee, and the employee policy review committee. Last December, the NLRB found that all components except the employee suggestion screening committee were illegal, under the National Labor Relations Act. That decision is attached to my testimony.

Our safety committee provides a perfect example of the conflict OSHA is creating with its program rule. I think you will agree that its purpose and function were exactly what the proposed OSHA rule envisions.

The EFCO safety committee was originally created in 1988 for the purpose of finding and correcting potential safety hazards in and around the factory floor. This committee actively pursued this purpose for several years before falling dormant. Then, in 1992, the safety committee was reestablished with an expanded purpose to involve all employees in resolving safety programs, to help the company meet OSHA requirements, to review and suggest new safety policies, and, most importantly, to encourage and facilitate employee input.

This new group was instrumental in developing many new safety policies and rules. For example, they developed rules for wearing steel-toed safety shoes and back braces. The committee identified areas of high heat and suggested new equipment and procedures to protect their fellow workers. These suggestions were adopted and implemented. Emergency action plans, weekly walk throughs to spot potential safety hazards, general safety training programs, accident reviews, safety incentive programs, specialized training for dealing with specific hazards, and a number of other programs were also the product of this committee.

All this resulted from the pursuit of the committee's stated purpose and function. The committee defined that purpose on November 4, 1993. One, assist in developing and adopting a safety program. Two, identify unsafe work practices and conditions. Three, assist in developing safety training programs. Four, assist open communication regarding new policies, programs, and safety solutions. Five, make plant safety inspections. Six, write up safety rule violators. Seven, meet monthly. Eight, select a safety coordinator to organize and run the meetings and select a secretary to keep the minutes. Nine, use the safety director to assist the committee and to act as an advisor.

And I ask, doesn't this directly address and respond to OSHA's proposed rule that states, ``the employer must provide the employees with opportunities for involvement in establishing, implementing, and evaluating the employer's safety and health program.'' The management and employee partners at EFCO believe it does, and we would like to expand and improve this concept for the benefit of all at EFCO.

Why, then, does the NLRB think such a successful and beneficial committee is illegal and must cease and desist? The root of the problem lies in section 8(a)(2) of the National Labor Relations Act which prohibits a company from dominating a labor organization that deals with management concerning wages, benefits, and working conditions. The test as it was applied to EFCO was a two step process.

First, the question asked was, whether or not, the committee constituted a labor organization. The NLRB, in our case, found that the safety committee was a group of employees that dealt with the management concerning working conditions and was, therefore, a labor organization.

The second question asked was whether or not EFCO dominated the organization. We were found to have dominated the committee because we created the committee, allowed them to meet on company time, provided pencils, papers, and a meeting room, and suggested some topics for discussion. Pretty serious offenses, wouldn't you say?

Apparently, the NLRB thought so and feared this committee might really be a sham union. Though I think that whole concept is ridiculous, and so remote a threat to unions, as to be nonexistent. The NLRB, with blinders on and with no regard for any other issues, ordered EFCO to disband the safety committee. I might add, it took the NLRB over 3 years to render their decision on our original appeal of the ALJ's ruling, and the legal proceedings aren't over yet. EFCO recently appealed the NLRB's decision to the Fourth Circuit Court of Appeals, and that could take another two years to reach a decision.

The process of fighting the NLRB has already cost my company over $100,000, and that is probably only half, in legal fees, lost employee work time, and lost productivity. In addition, I have spent, personally, countless hours overseeing this case. Despite all of this, I believe the issue is important enough to warrant an appeal.

Without any doubt, the NLRB's interpretation of section 8(a)(2) is a serious threat to employee involvement programs exactly like the type OSHA wants to mandate. It is a sham to think that we can have involvement without some logical organization. Committees, teams, task groups, or whatever subset of employees you come up with, can work and work well, but none can say they do not deal with working conditions. So, from our experience to date, any organization is vulnerable to prosecution by the NLRB.

I understand that those who oppose changing section 8(a)(2) suggest that employers who legitimately involve their employees in workplace decision making need not worry about the conflict with the law because statistics show that very few cases are brought by the NLRB against such employers. We are one of those statistics, however. All I can tell other employers is that good intentions are no excuse, and if you are involving your employees, you are only safe as long as there is no one that wants you to stop involving them. If there is, all they have to do is go to the nearest NLRB office and file a charge and force you back into a command-and-control type workplace.

I have already been branded on the Senate floor by Senators Harkin and Kennedy as some sort of criminal, because I oppressed my employees through employee involvement teams. With that type of emotional hysteria present at the highest levels of government, the need for protection from prosecution by the NLRB is essential. Or, alternatively, OSHA must drop its employee involvement requirements.

In conclusion, it is our express belief that in order to fully and clearly resolve the conflicting requirements of section 8(a)(2) in the proposed OSHA rule, a safe harbor for America's non-union businesses needs to be established. H.R. 1434 provides such protection. The question is simple, what is the real sham? Do we do our utmost to protect 89 percent of America's workforce from injury, or do we worry about an exaggerated and contrived concern for sham unions. I would urge you to pass H.R. 1434 and thank you.

[The statement of Mr. Fuldner follows:]




Chairman Ballenger. Thank you, Mr. Fuldner.

Mr. Holtshouser you may begin.





Mr. Holtshouser. Thank you. Good afternoon. My name is Joe Holtshouser. I am the Manager of Environmental Health and Safety Regulatory Affairs for the Goodyear Tire and Rubber Company. I have 25 years experience in the safety and health field, in industries such as drug manufacturing, petroleum recovery, insurance, commodity chemicals manufacturing, and rubber and polymer manufacturing.

The Goodyear Tire and Rubber Company, headquartered in Akron, Ohio since 1898, manufactures and markets tires, belts, hoses, and other rubber products for the transportation industry in various industrial and consumer markets. It also manufactures rubber-related chemicals for various applications, and provides auto repair and other services at retail and commercial outlets. Goodyear employs more than 95,000 associates and operates 80 plants worldwide. Goodyear is the last American-based major tire company. This is due to the major consolidations in the tire industry over the past 15 years that have resulted in the ownership of our former American competitors by foreign interests.

I am testifying today on behalf of the National Association of Manufacturers' 14,000 member companies in support of Chairman Ballenger's legislation, H.R. 1434, a bill that would lessen current restrictions of the National Labor Relations Act so that employers could work more closely with their employees in providing safe and healthful workplaces.

The Goodyear Tire and Rubber Company has 38,800 domestic associates, 20,300 of whom are represented by a union. Goodyear operates 36 manufacturing facilities in the United States, of which 20 are union and 16 are non-union. Our largest represented union is the United Steel Workers of America.

When I joined The Goodyear Tire and Rubber Company in 1979, I witnessed firsthand the consolidation of the tire industry and its effect on our operations. During the 1980's, competition from our rivals became very intense. We were scrambling to increase market share and our investments were focused on increasing production capacity and upgrading the technology base of our manufacturing facilities.

Our safety and health systems were management driven. We designed programs at the corporate level, distributed them to the plants, trained our safety managers in how the systems should work and then audited them for results. Our focus was tactical, not strategic. We targeted reducing lost-time accidents, identifying unsafe conditions and making sure we were in compliance with OSHA standards and regulations. In 1979, our total incident rate for injuries and illnesses was above 20. Our lost workday injury and illness rate was in double digits.

The investments in our facilities strained our resources and left Goodyear vulnerable. In 1986, Sir James Goldsmith, a European-based investor, subjected us to a hostile takeover attempt. We fought off the takeover but the effects were devastating. In 1979, we had 155,000 associates employed by Goodyear. By 1990, we were forced to downsize to 90,000. Our safety systems were still in place and we had successfully reduced our total incident rate below 20, but we were still in double-digit territory. We needed a new approach.

During the 1980's, our plants began introducing new management systems. Now the focus was more strategic, customer-oriented and quality driven. We had a well-educated, diverse and hard working employee base, but our culture limited their contributions. If we were to survive and prosper, our culture had to change to allow for greater participation by our associates in the way our workplaces were operated. For our safety and health performance to improve, we had to embrace safety and health concepts as values and incorporate those values into our plant operating systems. Workplace conditions, the work performed and worker safety behavior had to be treated equally in order to improve our results.

For many years, Goodyear has operated with safety committees or teams in both our union and non-union plants. Their structures are different because of the requirements of the NLRA, and the interpretations of the Act by the National Labor Relations Board in its rulings. I am told there are no regulations promulgated by the board to provide guidance in these matters, and that employers are left to interpret the Act themselves or rely on the board's often ambiguous rulings.

In our union plants, we have joint labor-management safety committees, within the union structure, that discuss and resolve safety and health issues. It is my understanding that these may be considered labor organizations under the law, and that our managers cannot dominate or interfere with the activities of these committees. The hourly members of the committees are chosen by the union leadership and serve at their discretion. The safety committees discuss safety-related conditions in our plants and propose, review and evaluate workplace safety and health policies, practices and procedures. There are frequent back-and-forth discussions of safety issues with management, but these activities are separate from those that are within the union's bargaining authority.

In our non-union plants, we have teams that are formed for various purposes such as productivity, efficiency, quality, scheduling, logistics, maintenance, safety and health, ergonomics and behavioral-safety. The members of these teams are all volunteers who serve for various terms. The members do no represent any other associates or group of associates and, because of the various NLRB interpretations concerning labor organizations, they cannot make any proposals that require back-and-forth discussions with management.

The safety team meetings are for the purpose of sharing ideas and conducting brainstorming sessions that will result in actions that improve the health and safety of our plants. The team interactions cannot have the appearance of dealing with management and therefore, we are restricted from getting the full value of their knowledge and experience.

The Occupational Safety and Health Administration has encouraged safety committees and teams. For example, in OSHA's 1989 Voluntary Safety and Health Program Management Guidelines, significant employee involvement in safety and health was identified as one of four essential components of effective safety and health management. More recently, OSHA encouraged, and proposed to mandate, employee involvement in safety programs in its draft proposed regulations for comprehensive health and safety programs and ergonomics. It is hard to understand why one branch of our federal government would require such systems to be implemented, while another federal authority would discourage them and even find them to be illegal.

Through our safety committees and our safety teams, we have been able to reduce our overall total incident rate, and our lost workday injury illness rate is now below 5. But I think we can do better, particularly in our non-union plants. That is why we support H.R. 1434. This legislation does not open up section 8(a)(2) of the NLRA, nor does it affect any area of employee involvement other than safety and health.

The associates of our non-union facilities should have the same abilities to propose, review, and evaluate workplace safety and health policies, practices and procedures, just as our associates in our unionized plants. They should have the same ability to focus their efforts to reduce injuries and illnesses without the fear of running afoul of the NLRB's interpretations of labor law. We believe that the health and safety of all of our associates is a major value in our culture, and that any provision that would allow our plants to operate with greater flexibility in this effort would be an improvement for Goodyear, other NAM-member companies and our country.

Thank you Mr. Chairman. I will be glad to answer any questions at the appropriate time.

[The statement of Mr. Holtshouser follows:]




Chairman Ballenger. Thank you, Mr. Holtshouser.

Mr. Casey, you may begin.



Mr. Casey. Thank you, Mr. Chairman and members of the subcommittee. I am grateful for the chance to be here today to speak in support of H.R. 1434. I have already got a written statement in the record, so I will try to briefly hit just a couple of basic themes.

First, in reviewing H.R. 1434, we should remember, those of us who practice occupational safety and health and management in labor and employment law ought to remember, that we are dealing with a matter that involves workplace safety and health.

I have had the chance over the years to read and be present for_


Chairman Ballenger. Could you pull your mike over a little bit?


Mr. Casey. I apologize.


Chairman Ballenger. That is my hearing aid. Everybody else probably heard you pretty well.


Mr. Casey. I have had the chance over the years to read and be present for presentations, seminars put on by OSHA, the Assistant Secretaries for OSHA, and high-ranking members of OSHA. One theme that is constantly repeated is that the nation and the federal government has no greater priority than to make sure that when men and women leave their homes and kiss their loved ones in the morning, they return from the workplace at night in the same health and safety that they left in the morning.

Some might regard that as sort of an emotional, perhaps even trite, speech. I have often thought it was not. I think the reason that over the years it always plays so well before any audience is that everybody agrees that one of the highest priorities for the nation and the federal government is ensuring and promoting workplace safety and health. So I think we ought to start from the position in reviewing H.R. 1434, that it involves one of our highest priorities, something that we are in the business of promoting.

I think from that position we come to the second point, which is that everybody involved in occupational safety and health agrees, that the fullest most extensive employee participation is essential for the promotion of effective workplace safety and health work programs. Nobody disputes that. I don't think anyone in organized labor, in OSHA, in the industrial hygiene community, in the employer community, there is no debate on that point. That you cannot have effective workable safety and health programs without extensive employee involvement.

Now, there has been some suggestion already today, I think by Mr. Solano, eloquently, that the law, in section 8(a)(2), permits certain types of brainstorming session, exchanges of pure information, suggestion box, et cetera. But what OSHA and state plan OSHA agencies have encouraged, and even required, over the past decade have been the types of employee participation that go well beyond that. I would note that if you simply review the OSHA compliance directive that is mandatory, and I quote from it in my written statement, the process safety management standard talks about actual dialogue and two way exchanges between the employer and its workforce. It also talks about actual recommendations on compliance with the process safety management standard, which management then responds to. We are not talking just about suggestion boxes, individual suggestions, or pure exchanges of information.

If I might note one more example, OSHA says that a construction industry employer, because of the high hazards of that industry, cannot participate in the highest level of its voluntary protection program, unless it has an existing joint management employee safety committee, or the equivalent of a safety committee. So we are not talking just about suggestion boxes or pure exchanges of information when we are talking about what OSHA has promoted, encouraged, and indeed even required in the standards, initiatives, and programs that it has issued over the past 10 years or more.

So let us come to the last point. The suggestion, I guess, is that it is abundantly clear that section 8(a)(2) of the National Labor Relations Act does not preclude or discourage or act as a deterrent to legitimate employee participation in workplace safety and health programs. I would suggest, Mr. Chairman and members of the subcommittee, that it is not at all clear that this is the case. Why is that so?

Well, as the debates around previous proposals in the area of section 8(a)(2) have noted, it was very clear to everyone what Congress was after when the predecessor of section 8(a)(2) went in to the act of the 1930's. Everybody knows about the evils of certain types of company dominated unions in the 1930's. But we are now in the 1990's about to pass into the new millennium and it is not at all clear how section 8(a)(2), as interpreted by the board in the last 10 years, applies to workplace safety and health programs. Particularly if you are getting into the area of the most pervasive, the most thorough workplace safety and health programs, involving actual recommendations by employees.

I would note, just to start with, that when Senator Kennedy and Congressman Ford made proposals in the 102nd and 103rd Congresses for joint safety committees, despite all of the protections and procedures involved in those bills supported by the administration and the AFL-CIO, it was still thought necessary to include language that made it clear that the joint committees were not labor organizations.

I have had the opportunity over the past few years, since Electromation, to read lots of seminar pieces, white papers, monographs from management and union labor lawyers about how one would interpret those decisions in the safety area. And I must say, I am almost always struck by how conservative and constrained the advice is from lawyers about what an employer can safely do in the workplace safety and health program area.

Let me just give a practical example. Suppose I get a phone call from a client, an employer, that says they are about to make a major change in a process covered by the process safety management standard and intend to call together a group of employees, 10 or 12, representing a broad section of this department. And I would like to get from them advice, suggestions, and ultimately recommendations about how to revise a process of piping valves that involve a highly hazardous chemical. After all, they are the ones that know this department the best, they are the ones who know the process the best, and they are the ones that will ultimately be exposed to the risk of a hazardous release. I want to get an actual recommendation from them about how we go about making this change.''

Now, I would suggest that that is exactly what the process safety management standard in the OSHA compliance directives say that an employer ought to do. But if one reads Electromation, DuPont and EFCO, when an employer calls together a group of employees to get recommendations on a mandatory topic of bargaining to its safety, and the employer then responds either by word or deed and rejects or accepts their proposal, that employer is in danger of a section 8(a)(2) violation.

It is a very murky area of the law, fraught with a lot of ambiguity, which gets me to my last point. Again, the nation and the federal government is in the business of promoting the fullest and most extensive employee participation in workplace safety and health programs. And it seems to me the problem with the ambiguity in the section 8(a)(2) case law, to use a lawyer's term, is that the burden has been placed in the wrong place.

We shouldn't be here talking about whether an employer and its employees can navigate the vagaries of 8(a)(2) case law and figure out some way, if you are willing to accept some risk for effective employee participation. We should make it clear that there is no deterrent, no legal risk in having full employee participation in workplace safety and health.

And for that reason, Mr. Chairman and members, I think that H.R. 1434 does a real service to the furtherance of workplace safety and health in the United States. Thank you.

[The statement of Mr. Casey follows:]


Chairman Ballenger. Thank you, Mr. Casey.


Mr. Ford, you may begin.



Mr. Ford. Good afternoon, Mr. Chairman and members of the subcommittee. Thank you for the opportunity to participate in today's hearing on H.R. 1434, which would amend the OSHAct to permit employers to deal with employees in any capacity concerning a broad array of workplace safety and health issues, "notwithstanding section 8(a)(2) of the National Labor Relations Act''.

The AFL-CIO opposes H.R. 1434 because it would unnecessarily eliminate section 8(a)(2)'s protections in the safety and health context. Section 8(a)(2) makes it unlawful for an employer to dominate, interfere with the formation of or administration of, or otherwise improperly support any labor organization, which is defined in section 2(5) of the National Labor Relations Act.

An earlier statute had given workers the right to organize and bargain collectively through representatives of their own choosing. But it didn't prohibit employer involvement in labor organizations. And as a result, literally thousands of employers immediately created company-controlled unions and employee committees that lead to the passage of the National Labor Relations Act in 1935. Section 8(a)(2) was intended to put a stop to that practice.

8(a)(2) stands for a very basic proposition; employer-dominated labor organizations are inherently illegitimate and inimical to the exercise of workers full freedom of association. Both unionized and non-unionized employees should have a voice in the workplace, and it should be their own authentic voice, advanced by true, genuine and independent representatives, which they select.

There still remains a strong need for section 8(a)(2)'s prohibition against employer dominated unions. There are numerous NLRB court decisions, some of which, I have sighted in my written statement, that demonstrate that there are still some employers who continue to utilize sham labor organizations to inhibit employees efforts to unionize or to undermine collective bargaining representatives.

Now, while the AFL-CIO opposes H.R. 1434, I note that its president, John Sweeney, has made clear that organized labor's goal is to work in partnership with management to help employers compete in the global economy. And in many industries and workplaces, unions are working with employers to transform the labor management relationship. In the safety and health context, unions and employers have implemented effective safety and health programs, which give workers a real voice in eliminating workplace hazards.

My own union, United Food and Commercial Workers, has entered into a partnership agreement with ConAgra through OSHA's VPP program, which is helping to improve safety conditions at some of that employer's plants.

Many business groups claim that employee involvement is critical to their survival and growth of the American economy. While, they also claim that in non-union workplaces such involvement in safety and health matters is prohibited under current law. These groups argue that H.R. 1434 is necessary for non-union employees to participate in safety and health issues. They have seized on OSHA's announced intention to require employee involvement is part of the safety and health program rule and argue to meet this requirement they must violate section 8(a)(2) of the NRLA. So their solution is to carve out a safe harbor for employers from 8(a)(2) and to persuade OSHA to abandon the safety and health program rule.

Current case law makes it absolutely clear that the arguments of the proponents of H.R. 1434 are based on a flawed premise. The labor board's decisions point out a number of ways that an employers may lawfully involve its employees in safety and health issues. Many of these decisions are sighted in my written testimony and also, I believe, in Solicitor Solano's testimony. And they demonstrate that many types of employee involvement structures are not labor organizations, and therefore, not implicate section 8(a)(2). I will just give a few very brief examples.

You have an employee group that is created to perform managerial functions, including the safety area, such as a committee of the hull, a committee upon which an employer delegates decision making powers. That is not a labor organization.

Employee involvement structures that include all employees, such as an open meeting for all employees to voice their concerns to the company, or work teams, where each employee participates on an individual basis, rather than in a representative capacity representing other workers. Those are not labor organizations.

In any situation where the employee group does not deal with the employer it is not a labor organization. There has already been some talk about suggestion boxes, brainstorming groups, and so forth. Those are just a few of the many examples.

What an employer can't do is dominate, interfere with, or otherwise unlawfully support an employee committee or other labor organization by, for example, creating a committee of employees to deal with it, concerning safety and health issues.

And that gets us to the real agenda driving many of the proponents of H.R. 1434. While some business groups claim that they want to empower employees to make decisions on the job, the last thing they want is a workforce that is genuinely empowered to deal with management on an equal footing in addressing workplace safety and health matters.

When the AFL-CIO, several years ago, sought legislation that promoted such an approach by requiring safety and health committees with employee selective representatives, business groups vehemently opposed it. These groups want employee participation, but they want it on their own terms and under their control. And that is why they want to gut section 8(a)(2). By eliminating section 8(a)(2)'s protections, H.R. 1434 would allow employer dominated organizations to represent workers concerning vitally important safety and health issues. This is quite ironic given the legislation's stated purpose of promoting employee involvement.

We feel that H.R. 1434 is unnecessary. Current law permits a wide range of employee involvement structures in a non-union workplace. This legislation would erode the fundamental principle of employee free choice upon which the National Labor Relations Act was founded, by giving employers control over their employee's participation in safety and health matters, while doing nothing to promote safety and health. The committee should reject this backdoor effort to repeal section 8(a)(2). Thank you.

[The statement of Mr. Ford follows:]



Chairman Ballenger. Thank you, Mr. Ford.

Congressman Boehner has got to go to his office, so he will be first.


Mr. Boehner. Thank you, Mr. Chairman. I appreciate all of the witnesses coming in and sharing with us their testimony on these worker safety teams.

Mr. Solano, OSHA has claimed that there is no conflict between employee involvement and Federal labor laws. If that is the case, then legally why does the draft safety and health program standard, along with several other standards and guidelines, specifically mention the restrictions in the National Labor Relations Act? Would it not be clear if there were an exemption for safety teams at the very least?


Mr. Solano. I don't think it is a problem in the rule to say that the rule must compliment and be coexistent with other federal laws. So, that is not a conflict or a problem, it is just restatement of what is abundant and clear. That does not suggest that there is a need to create an exemption when there is no conflict and there is no demonstrated inability to comply with both provisions.


Mr. Boehner. You don't think that is a conflict, to say that we ought to have worker involvement, but not worker safety teams?


Mr. Solano. No, I don't.


Mr. Boehner. Making sure that anything we say in here in this act doesn't violate that National Labor Relations Act, that is not a conflict?


Mr. Solano. I am very comfortable in saying that one can comply with the draft rule and not be in violation of the National Labor Relations Act. Yes.


Mr. Boehner. Mr. Casey, Mr. Solano and Mr. Ford both indicated that an employer could legally involve employees through some type of rotational basis. I guess every employee takes an equal turn at serving on the safety committee. Is it clear that such a rotational system would be legal? Practical?


Mr. Casey. I am not sure. I think that is a two-part question. The first part, as I tried to suggest in my oral testimony and in my written testimony, it is not at all clear that any sort of committee is lawful under section 8(a)(2). I think that was the reason that even the AFL-CIO and administration supported bills in the 103rd Congress that had an explicit carve-out of 8(a)(2), accompanied to them.

But, if you look at the case law, it is fact-driven, case by case, heavily circumstantial. I don't think anyone can say with assurance that a committee that makes recommendations or proposals to management, which is what I think a safety committee ought to do, is a labor organization if management turns around and responds to those proposals, to use the words of the case law, by word or deed, that is dealing with a mandatory topic of bargaining safety.

Now the question is whether the employer dominated? The language in the cases is equally murky there. Ultimately, of course, the employer can accept or reject suggestions, so that is veto power. If either a management or union-side lawyer reads the E.I. DuPont case, that might be enough, along with financial support for employer domination. That is the reason I would suggest why all of the written advice available in public on the board's 8(a)(2) cases is so conservative, because nobody knows exactly how a specific set of facts will be viewed by the board in the future.


Mr. Boehner. Mr. Casey, would you care to comment on the point that I made to Mr. Solano about the conflict in the draft standard?


Mr. Casey. I think there is obviously a conflict, and not just in this standard. There has been a potential conflict for at least a decade between what OSHA encourages, requests, and ultimately requires. For example, the illustration I tried to give. If a statutory employer goes to a group of employees and asks for recommendations on a change covered by the process safety management standard, as I read the OSHA compliance directive is required, that group of employees makes a recommendation on how to conduct that change, and management responds to it. Again, as I read the compliance directive, all of those are required and an employer will be cited if it doesn't do it. If you fail to react, you then juxtapose that against the 8(a)(2) case law and you may be in violation if the charge is filed with the NLRB. That is why I think you need to clarify the law.


Mr. Boehner. Thank you, Mr. Casey. Mr. Chairman, I just might add, on my own, that having been a small employer, such as yourself, involving employees in health and safety issues, as well other employee empowerment issues, is really where American business is moving today. It is one of the reasons why we continue to gain productivity and have the strong economy that we have.

As I listen to Mr. Ford, I have got to tell you that as I sat here I began to ponder the situation that you find yourself in. In 20 years from now, you may have a union, but you are not likely to have anyone to represent. The workforce of the 1990's and the workplace of the 1990's are far different than the workplace of the 1930's. And if we don't do something about changing workplace laws and employment laws, we are going to continue to drive more and more jobs and more and more manufacturing, especially, out of this country, to the detriment of working men and women in our country.

I yield back, Mr. Chairman.


Chairman Ballenger. Thank you, sir. Mr. Owens.


Mr. Owens. Mr. Holtshouser, among other provisions, section 8(a)(2) prohibits employers from financially underwriting unions. Is it your contention that Goodyear should be able to financially underwrite union activities, thereby potentially compromising the independence of the union, so long as those activities bear some nexus to safety and health? And is that nexus to safety and health sort of unlimited in your view? Does the number of hours an employee works have an impact on safety and health? Does absenteeism have an impact on safety and health? Do health and safety performance bonuses help improve safety and health?


Mr. Holtshouser. I am sorry, Mr. Owens, you asked me so many questions, there. If you could just kind of go back and ask me one at a time? That was a real boatload.


Mr. Owens. Well, there are two parts really. First, are you contending that it is all right to underwrite union activities, as long as those activities bear some relationship to safety and health? Then I asked you, what is the definition of the relationship to safety and health? All of the other things that I mentioned, can they be construed to have a relationship to safety and health?


Mr. Holtshouser. Well, I believe that they ought to be able to provide the support that any of the safety committees need to conduct their activities. I think that they should be able to do that, and to do it for safety and health purposes. These committees that meet, particularly early in the union plants, that is all they discuss, because anything else belongs to the authority of the bargaining unit, not to the safety committee. I think that the company should be able to provide that kind of support.

Secondly, yes, I think it is important for those other types of incentives. My personal opinion as a safety and health professional is that whatever you can do to provide an incentive and to provide support for employees and for manufacturers benefits safety and health.


Mr. Owens. So, the full range of activities that are covered by collective bargaining could be put under safety and health?


Mr. Holtshouser. No. Just those areas that pertain to safety and health issues, which would include a review of policies, practices, procedures, review of proposals from employees that would help reduce injuries and illnesses in a workplace. I think that those are legitimate areas where manufacturers and employees should be allowed give-and-take on those issues without running over and tripping over their requirements.


Mr. Owens. Mr. Fuldner, do you seriously contend that the NLRB ruled that you dominated the safety committee on the basis that you allowed it to meet on company property and provided paper and pens, and that is what domination meant?


Mr. Fuldner. Those were certainly some of the questions that I was asked when the ALJ was investigating.


Mr. Owens. I can't hear you, sir.


Mr. Fuldner. I am sorry. Those were certainly some of the questions that I was asked by the ALJ when he was holding hearings concerning these issues.


Mr. Owens. You came away with the impression that domination meant providing space to meet on company property and paper and pens, and nothing else?


Mr. Fuldner. No. There were other items that were involved in domination. The fact that we initially selected the committee from volunteers, they held that to be an act of domination.


Mr. Owens. All the volunteers were selected or you selected from among the volunteers?


Mr. Fuldner. We selected from the volunteers, but once the committee was formed, we told the committee that they were free to select their own members. After that, that management would not be involved in the rotation or selection of future members, or if they wanted to increase the size of their committee, they were free to do that at that time, as well.


Mr. Owens. Mr. Ford, would you care to comment on the question of whether the NLRB ruled that they have dominated the situation merely by providing a place to meet and paper and pens?


Mr. Ford. Yes. Thank you, Congressman Owens. As I read the NLRB's decisions, that providing facilities, providing materials is not per se domination, or anything like that. I think that the key, when you are looking at a domination question, is whether the employee group that has been set up, I mean, is it bona fide? Was it set up or established by the employer or was it set up and established by itself? Some of the cases talk about where the committee, or employee group, is genuine, an employer doesn't violate the law by providing things like paper, pencils, or meeting rooms.


Mr. Owens. Mr. Fuldner, the NLRB ruled on 8(a)(2) allegations involving four committees at EFCO. What was the ruling of the board with regard to the employee suggestion screening committee?


Mr. Fuldner. The NLRB did not deem that committee to be illegal because it did not deal with any issues whatsoever, other than to pass the suggestion to the appropriate management individual.


Mr. Owens. Isn't it true that if the safety committee had been structured in the same manner as the suggestion committee, it too would have been lawful?


Mr. Fuldner. That may be a possibility, but at that point in time there was no true interaction between members of the committee and management. The problem that EFCO has in this case is what I think Mr. Ford said about managerial committees being legal. However, how do you distinguish when dealing with issues such as whether the board became managerial in nature because the committee was given managerial duties, exactly as if I would have given a vice president the same assignment to go out and set up, investigate, and analyze these programs, and then come back to me and say, ``here is my recommendation.'' That is no different than what this committee has done.


Mr. Owens. You admit that you give the power and you take it and they report back to you. That is what I wanted to know.

Mr. Casey, you stated that employees as well as employers should be full participants in safety and health programs. Do you seriously contend that workers are full participants when an employer can choose who will speak for the workers, the subjects on which the person is permitted to speak, whether and when that person can speak at all, and the outcome of any decision of the group that is led to represent workers?


Mr. Casey. Well, Congressman Owens, if you are talking about_


Mr. Owens. That of domination versus full participation.


Mr. Casey. The problem is that the facts that you just elicited may be an example of hard facts making bad law. It is not in the least bit clear that one needs all of those facts to establish employer domination. As I read, for example, the DuPont case, the one that came out yesterday, after Electromation, involved the safety committee at DuPont. The greatest emphasis the board placed was on the fact that management retained a veto power. In other words, they could dead-lock or veto the decisions of the committee. In fact, that was true of the joint committee in the Kennedy and Ford bills.


Mr. Owens. Well, my time is up, but doesn't H.R. 1434 permit all of the things that I just said? An employer can choose who speaks, what person is permitted to speak, where and when the person can speak, and the outcome of the decisions group?


Mr. Casey. I don't read it that way at all, Congressman Owens. None of those things have ever been found necessary to create an 8(a)(2) violation.


Mr. Owens. Thank you.


Chairman Ballenger. Mr. Casey, we have been talking about 8(a)(2), and Mr. Owens brought up the idea that maybe if there is a union there, that it requires safety to be negotiated. Doesn't 8(a)(5) give unions; I mean, we haven't changed anything about the union's ability.


Mr. Casey. Correct. I was tempted, but at least some etiquette restrained me, perhaps my mother's upbringing. There was a question a little while ago that I think begged for exactly that response. The language of the bill simply says, ``notwithstanding section 8(a)(2) of the NLRA,'' which, frankly, is in effect not dissimilar to the language that was in the Kennedy and Ford bills. It does not exclude sections 8(d) or 8(a)(5) of the National Labor Relations Act. The employer, as I read it, would still retain the full obligation to bargain about mandatory topics with the representative.


Chairman Ballenger. That is what I thought.

Mr. Solano, I am going to ask your view, and then have Mr. Casey react to it also. You were working at the Labor Department in 1994?


Mr. Solano. I was the United States Attorney for the District of Colorado in 1994, sir.


Chairman Ballenger. Well, in 1994, the Clinton administration endorsed the Ford bill that we talked about, and they specifically made the statement that all of the things that are in our bill here were necessary. And it was a Democrat-sponsored, labor-sponsored bill. What is your reaction to that?


Mr. Solano. I don't know whether you are accurately reflecting the record or not, since I don't have personal knowledge. I can't respond.


Chairman Ballenger. Well, let me ask Mr. Casey, since you obviously have already talked about it. Did it not say in Kennedy and Ford's bill, two non-Republicans if I ever met them, wasn't there a reaction on their part in writing their bill?


Mr. Casey. Yes there was Mr. Chairman. As I recall there was. Everyone pointed out, I think when the bill was first introduced in the 102nd Congress, in Title 2, I think sections 201 and 202, a very extensive joint committee under the bill. It required the representatives be elected, equal numbers for management and labor, et cetera.

But as the bill appeared in 103rd Congress, obviously, everyone found necessary to put language in that expressly said that this committee was not a labor organization for purposes of section 25, and therefore, section 8(A)(2) of the National Labor Relations Act. Obviously, it had none of the evils that Congressman Owens pointed out.

But, nonetheless, people found it necessary to make sure that no one would regard this as a violation of the law. The example, then, you extrapolate from that is not a joint committee required by OSHA to get into VPP, and you are in the construction industry, set up the same way? Without some change in the law, it seems to me that both Republicans and Democrats, management and labor, have essentially conceded, by the whole process of debate in 103rd Congress, that we need some change to make it clear that we do not have a section 8(A)(2) violation.


Chairman Ballenger. That is the point, and I hope Mr. Solano will remember that, since he was not there when it was the Democrats' idea.


Mr. Solano. Well, I would just comment if I might Mr. Chairman, that the central issue would be a structure that does not permit domination and does not, in fact, take away from workers the right to choose their representative. And as long as those matters are_


Chairman Ballenger. I don't think that the safety and health committee is what they were talking about.

Let me ask you another question. If we are talking about safety and health committees being proper for unionized shops, because they are not being dominated, does that mean that the safety and health of the other 84 percent of workers in the country are not represented? You don't have to represent, obviously, the monstrously large majority of people that are working in the rest of the country, because they don't need safety and health committees?


Mr. Solano. Well, that is not what I am saying. What I am saying is that safety and health is important, and one need not dominate or violate the National Labor Relations Act in order to effectuate that very fundamental and important proposition in any workplace, whether it is unionized or non-unionized.


Chairman Ballenger. That means they can't have safety and health committees, because you all won't let them, right?


Mr. Solano. That means that they cannot have safety and health committees that are labor organizations or committees dominated by the employer. The examples of EFCO, specifically, in the decision show what domination can encompass.


Chairman Ballenger. Mr. Fuldner, I want to read you something. This is the NLRB reporting what was wrong with your committee.

It says that the respondent, which is you, did not simply delegate safety and inspection duties to the safety committee. Rather, the committee's function included reviewing safety rules and policies, developing safety incentive programs, and most significantly, making proposals to management about such policies and programs, including proposals respecting employee compensation.'' In short, this safety committee was an integral part of the bilateral process, and that is the reason they threw yours out.

Now, what in the world is a safety committee suppose to do, if it is not going to do that?


Mr. Fuldner. Well, that is what I thought the safety committee was supposed to do, and I think that is exactly what the proposed OSHA rule asked us to do. It asked us to make our employees partners with management in promoting safety for everybody.

Safety is good business. Good safety cuts cost; it adds to the bottom line; it makes a lot of sense. So there is very little incentive for a manager, or somebody such as myself, to try to pull a fast one over the employees and do something that is going to be ineffective in promoting safety on the shop floor. It does not pay. It does not make sense. It is a disincentive.


Chairman Ballenger. Let me interrupt just a second, if I may. We will break for another vote after my last question.

Mr. Holtshouser, you have both union and non-union workers, and you have probably made the effort to have something similar as far as your health and safety is concerned. And I think Mr. Fuldner would be the first one, and I am another, that believes nobody pays any attention to the fact that workmen's compensation, that you pay, which costs an operating firm money to operate because you have to carry it on your employees. It would be interesting, and I don't know whether anybody keeps statistics like this, but because your non-union employees are not allowed to have safety committees, do you have a different workmen's compensation rate in covering people that don't have safety committees as compared to those who do have safety committees?


Mr. Holtshouser. I don't know.


Chairman Ballenger. That is an interesting question. Mr. Martinez, do you want to_


Mr. Martinez. Sure. Let me make this very simple, as simple as I can because some people like to complicate things beyond reason.

Mr. Solano, I am a non-union shop and I want to have a safety committee. I go out to the employees and I say that I would like to make the situation in this facility safer for my employees. I have that kind of a conscience. I say, ``so you, the employees, get together and select the people you want to serve on that safety committee.'' Would I be in violation of the labor law?


Mr. Solano. No, sir.


Mr. Martinez. Absolutely, and this is all poppycock, what these people are saying.

Mr. Fuldner, I would not challenge your motives. I have looked over your record and I believe that your efforts might very well be genuine. I have not spoken to your employees. So I am going to give you the benefit of the doubt. However, not all employers would be concerned about their employees as you might be. Some would be more concerned about profit. That is a fact of real life.

So, let us look at your situation, which was a little more involved than you led us to believe in your testimony. First, you created the committee. Second, you chose the membership for it. Third, you established the goals. Fourth, you determined the structure and the function. And in doing this, you assigned your chief financial officer to decide who was on at least on one of those committees.

Your chief financial officer has that responsibility that you have. The bottom line is likely going to be for him to pick the employees. Do you think you will pick independent thinkers? I don't know. He has to answer to you so he may or he may not. In addition, to your controller serves as the liaison between the committee and yourself. Now, you don't see the conflict there, but if you sat on a city council, or you sat on any political body, I guarantee you there would be a conflict and you would be charged with such. Your controller, what side is he going to fall down on? He works for you. He is the controller of your company?

Again, I am not going to question your motives and all of your managers' motives. However, I can see, even if you can't see, where another employer other than yourself might be so inclined to do devious things that this kind of a setup would open the door wide, and that is what the Labor Department is worried about. That is what we are worried about. We are not worried whether you create legitimate employee safety organizations, or anything else, to try to have your employees making a decision.

I was in business before I came here to Congress. I ran a business for 28 years, and I always consulted with my employees. So I can understand where that can be beneficial to a company. But, I always had the veto power over what they decided. If what they decided was too expensive for me to do, I would just tell them flat out that it is too expensive. I can't afford it so find another way. But, you see, I had ultimate control, and that is what we are talking about here in this conflict.

When the Labor Department ruled against you, it ruled against you because there were too many instances where there could be a definite conflict.


Chairman Ballenger. May I respond to that? I don't want to interrupt anybody, but we have less than five minutes on this vote. I will come back real quickly at least and give you a chance to answer whatever that question was. I was spending so much time trying to figure out how much time we had left, that I did not even hear the question. We'll be back in a minute.



Chairman Ballenger. Mr. Fuldner, I missed the question, but if you could give the answer I might figure out what the question was.



Mr. Fuldner. Well, thank you very much, Congressman. I would be happy to give an answer.

I think that Congressman Martinez was criticizing us because our CFO was involved with one of our committees. Our CFO was never a member of any committee and had no vote in any of the committees that we had. He was invited on several occasions by the Benefits Review Committee to come in and advise the committee on costs of various programs that they were looking at, that they thought might be of benefit to the employees in general, and at some later time might make a recommendation to the Management Committee. So I just wanted to set that record straight.

As far as his statements concerning the fact that I dominated the committees because ultimately I had the right to agree with their recommendations or to veto their recommendations, I would say that is true. Corporations, companies of our size, and I think Mr. Martinez even admitted that when he was the boss, he had to make decisions either up or down. Yet, if I would veto a recommendation by a committee or suggest that they go back and review it because it was too expensive, I would get accused of dominating that committee. That is what has happened in our case and that is where the NLRB came from.

I think it is very confusing when we are actually dealing with an organization if we have given them the same managerial authority that I would give a vice president to look at the benefits package, for example, and have him come back and make those same recommendations to me about what program he thinks would be appropriate. Whether I would accept it or veto it, it is the same function. It is the same thing happening. What we are told by the NLRB, and I think it is written right there on the board, is that the level of managerial authority given those committees is illegal. Where is the line and when do we step over it?

That is why I think this bill is necessary to eliminate that confusion. Despite the ruling of the NLRB, despite listening to Mr. Solano and Mr. Ford, I still do not understand where that line is and what the distinction is. I cannot confidently go forward today and design an employee involvement program that I could be assured would meet the requirements of the OSH Act and not violate section 8(A)(2) of the NLRA.


Chairman Ballenger. Thank you, Mr. Fuldner.

Mr. Isakson is with us now.


Mr. Isakson. Gentlemen, I apologize that I missed the testimony, but I have been listening to the chairman's questions and some of the members.

I need to ask a question of Mr. Solano. As I understand it, H.R. 1434 would allow a company that is not represented by a union to have employee participation in making safety recommendations to the company. Is that correct?


Mr. Solano. It would allow the employer to choose the vehicle within which to engage in creating safety and health program compliance.


Mr. Isakson. And the Department is opposed to that?


Mr. Solano. We are opposed because there is no need for the bill, because current law allows, both under the National Labor Relations Act and under the OSH Act, and under the proposed rule of employee participation. H.R. 1434 would remove the right, the freedom, and the protection that employees have to choose their own representatives. There is no need to remove that right and that ability on behalf of employees in order to be successful in safety and health activities.

In fact, the testimony from Mr. Holtshouser appears to me to demonstrate that in both their union and non-union plants, they have been very successful in reducing total injury rate and lost workdays. They are doing that right now in compliance with section 8(A), the OSH Act, and the current rules of OSHA. So, they demonstrate that it can be done. So, there is no need for H.R. 1434 to be adopted.


Mr. Isakson. So the issue is not whether or not they can participate, it is whether or not management can select who participates. Is that correct?


Mr. Solano. Whether or not they can, in participating or creating a committee, dominate the committee if the committee is to deal with particularized prescribed areas. If the company would delegate down to the employees the creation of the committee, the composition of the committee, and that employee created committee works on the issues that are of concern to management and makes proposals, that would not be a violation of section 8(A). It would still allow there to be a committee, if the employer chose to do so, in order to fulfill the responsibilities under all three provisions.


Mr. Isakson. One further question, Mr. Chairman.

Let me give you a real example. I am new here. I just ran a company for 22 years. If I had a situation, which is not hypothetical, where I felt that it was important to get recommendations from my employees with regard to a safety question, and I asked individuals involved in the activities that I wanted input to make recommendations to me, then that would be illegal? But if I ask them to appoint a group of people to make recommendations to me, this would not be illegal. Is that correct?


Mr. Solano. As you posed that question, neither would be illegal, because you are directly asking the employees for their individual input about safety issues, concerns, and rectification. So the first premise that you raised is not a violation of section 8(A), because you are not empowering any employee to represent not only their own individual views, but rather the views of other employees.


Mr. Isakson. Would you describe for me, in that instance I described, what would have made that request illegal?


Mr. Solano. If you would have created a committee and selected from the employees the composition of that committee, and directed what they could or could not have worked on, that would have been employer domination in that effort. In fact, if you created a committee of all employees, that would not create a problem if they selected it. But if you chose the members, that is the part that becomes prohibited under the section 8(A).


Mr. Isakson. Out of interest in following that up, Mr. Casey, do you have any comments one way or another on that scenario and Mr. Solano's response?


Mr. Casey. I do, Mr. Congressman. I think Mr. Solano carefully rephrased the Representative's question. His answer suggested that all of your employees, if you were an employer, individually put forth suggestions. Now in the modern, high-tech workforce, I think if you are talking about real legitimate effective safety and health, that makes no sense at all.

Talk about some of the more complex OSHA standards like the process safety management standard. If you are talking about changing a complex process, you want to get legitimate employee input. It seems to me that the way to go about it would not be to ask for 2,500 individual index cards in a plant of 2500 employees, some of which know something and some who know nothing. The way to go about it would be to get a consensus from the employees who know about the particular process. And once you do that, you solicit recommendations or proposals from a group of employees and you reject or accept them.

Even if you accept them, that is legally problematic, as you read the current cases, and it does not matter whether you have picked the group of employees or the workforce elected that group of employees. Indeed, the election by that group of employees establishes that they are somehow acting in a representative status, which may make it even more illegally problematic under current tort.


Mr. Isakson. Mr. Chairman, I know the red light is on, but I just want to give you an example in a business of what I am trying to get to. My particular situation, a couple of years ago, was that I implemented a drug-free workplace program within the company out of the issue of safety and to get input beyond the legal requirements of what you can and can't do from the employees. And I used, primarily for the input that I solicited, my human resources people. Specifically because they would be dealing with the drug-free workplace implementation, and also because I didn't necessarily want to take a vote on a drug-free workplace amongst all the employees. So, if I selected the people primarily in human resources to make that input, I am trying to determine if that, under this application of what the Department is saying, would have been illegal. And I take it that it would have been because I would have been controlling who I asked and limiting the subject. Is that correct?


Mr. Casey. Are you asking me?


Mr. Isakson. Yes, sir.


Mr. Casey. I think that is not necessarily the reason why it would have been illegal. It is enough to have a labor organization, which is what really triggers the start of the problem under section 8(a)(2). It is enough if the employer, in this case you as the person who owns or runs the business, is actually dealing with a mandatory topic, and safety would certainly be a mandatory topic with employees or group of employees. It doesn't matter whether you select them or you ask the rank-and-file to elect them or you ask a third party, the mayor of your city, to nominate the 10 employees you are going to deal with. Once you start dealing with them, which is a much broader term then bargaining or negotiating, over a mandatory topic, you have got at least the first prong of the problem under section 8(a)(2).

I am here speaking today on behalf of the U.S. Chamber of Commerce, which includes a lot of small, medium, and large employers. From an employer's standpoint, I think a point that is being missed here in this section 8(a)(2) case is exactly the one that Mr. Martinez raised. The employer, under the Occupational Safety and Health Act, always has the last say. The law says so.

There are many different models of occupational safety and health laws throughout the industrialized world. The United States chose a model that places the ultimate responsibility on the employer, as Mr. Solano's statement says. That can't be delegated, unlike a lot of other things like wages, hours, and benefits. If you want to have interest arbitration or a committee that decides that, you can do it. In the United States, the employer always has to be the place where the buck stops on safety. You always have to exercise a veto power over a committee or a work group or a team's recommendations. So, the way the 8(a)(2) case law reads now, you necessarily have a problem of employer domination, because the employer ultimately has to exercise a veto right.


Mr. Ford. Mr. Chairman, my I briefly comment?


Chairman Ballenger. Sure, go ahead. Pull the mike over to yourself.


Mr. Ford. Congressman Isakson, if I understood your question or your situation, what you did was ask questions of your human resource personnel on this issue of drug place safety. I would respectfully disagree with Mr. Casey that there could be any sort of 8(a)(2) violation or problem with doing that. The human resources persons would be part of management, and management conferring among itself would not under any conceivable circumstances, that I can see, constitute or raise significant risk of an 8(a)(2) violation.


Chairman Ballenger. Mr. Martinez, do you have anything before we stop?


Mr. Martinez. Yes. Let me reiterate to try to make it simple. In Mr. Isakson's case, he would not be in violation. But instead of me, let Mr. Solano answer. In fact, if I were an employer and had a plant facility large enough to have a human resource group, it would be a part of management. I would go to the human resource group and say that I want to have a drug-free workplace, and I want their opinion on how we should establish that and how to go about it. Would I be in violation of the law?


Mr. Solano. No, and it could happen several ways. One is that it would be a part of management deliberating with itself. Now, the employer could also choose to ask employees individually, and it doesn't have to ask every employee in the plant, specifically what their views are on drug safety. Then collect all of those views, and the employer then determines what policy it wants to establish.

The second way is if there was an effort to select a small group to represent for the purposes of weighing proposals on behalf of the rest of the workers, that is where you run afoul of section 8(a)(2). Except in the situation when you are not dealing with a pattern of dealing. In other words, you haven't created a committee. So you, as an employer, could take one particular issue to individual employees through a process and not have violated section 8(a) for two different reasons.


Mr. Martinez. That was going to be my next question. In other words, if I created a standing committee that I would be negotiating with at all times, and I selected all of those members of that committee for the sole purpose of negotiating things with that committee for the rest of the employees, now would I be in violation?


Mr. Solano. That, in fact, would be a situation where you have created a labor organization under the first prong of the 8(a) analysis, and you would be dealing with them, which is the concern under that establishment of a labor organization. Then, because you selected and managed the agenda, you may have even counted all of the votes. That is the part that is domination, which is prohibited. But you can do the functional equivalent without implicating and needing management to dominate or control the receipt of very valuable information and suggestions in order to fulfill a very worthwhile goal.


Mr. Martinez. Now let me go just a little bit farther, because I think Mr. Casey is mixing apples and oranges or comparing apples and oranges. If in fact I have the veto power because I am the employer, I could veto whatever that committee recommends. But if that committee then decided that there are safety violations in the company and the owners could veto their suggestions, could they go to OSHA and file a complaint? These are safety violations, and then his veto power wouldn't be worth anything, and he would be in the same problem that he had in violation of the 8(a) point.


Mr. Solano. Employees or anyone at any time can file a complaint about conditions. I don't know that it would be helpful to join the process within which to take meaningful corrective activities with the ultimate authority. The point is, management always has the right to make the decision of what to accept or not. There are many different ways to solicit proposals so that you either do not create a labor organization under the act or you do not, as management, dominate the function of a committee, if you are going to use a committee in order to achieve the end goal.


Mr. Martinez. My point is that they are worried about the wrong thing. If they are really concerned about safety measures, they shouldn't care which employees are part of that committee. The employees themselves will probably select the people that they feel are most astute to address those issues with management or to articulate them with management.

I have been on both sides of the coin. I was an employee for many years and I got fed up with an employer telling me what to do and how to do it, when I figured I was smarter then he was and his decisions were wrong and ultimately cost them money. Because I wanted to be my own boss and have other people that I told what to do, and I wanted to be responsible for those decisions where. If I am investing the money and I lose the money fine, but when I invest the money I want to make money, too. So I want those ultimate decisions. So I have been on both sides, and I understand how it works.

But the point is that, if I am really concerned about my employees, I don't care who they select because when I was working in a shop, whether it was union or non-union, any time we had a disagreement with management, whether it was union or non-union, the employees would get together and they would generally select somebody that they thought was the most articulate to represent their case to the employers. So that is a perfectly natural thing to do. And I would think that as an employer they would want that, because the same person that is going to be articulate enough to make their arguments is also going to be astute enough to understand the other side of the coin and the arguments that the management makes to them about why they can't do something. And then he has the responsibility to go back and tell the employees why they can or can't. That really resolves itself into a solution-finding team, not the kind of law we are trying to pass now.

Because, the last and final thing is that now, under the current law, you can organize safety committees. You have to do it in a certain way, but under this bill would you be able to organize those committees with employees making decisions?


Mr. Solano. Sure. With H.R. 1434, the composition of the committee could be, and would be permitted to be, under the sole and exclusive control of the employer. So that the employer could choose whichever employees that employer_


Chairman Ballenger. Isn't that true now?


Mr. Solano. No. The current protections allow for, if you are going to use a_


Chairman Ballenger. You can do it now, but you can't discuss certain things.


Mr. Solano. There are certain ways within which you can proceed without violating section 8(a).


Chairman Ballenger. And we don't touch the union. So we leave that alone, right?


Mr. Solano. The union is protected under all three provisions that we have been talking about. There is just a separate vehicle within which to, for management and labor to_


Chairman Ballenger. Right. That is one point I was trying to bring up.


Mr. Solano. _resolve the structure, composition, and function of any committee.


Chairman Ballenger. Right. But I still say 84 percent of the people in the country can't have what 16 percent are allowed to have. I don't understand how it is rational to say it is unfair for them to have the same rights.

Mr. Fuldner, knowing that your employees have participated in the operation of your company by profit sharing and stock ownership, and so forth, did they cheer when you lost?


Mr. Fuldner. No, sir. They were very confused. Our employees own 25 percent of the company and they don't understand why they can't talk to me.


Chairman Ballenger. I think that is a real good answer.


Mr. Owens. Mr. Chairman?

I just want to ask unanimous consent to submit an opening statement by Mr. Kucinich for the record.


Chairman Ballenger. Sure. Without objection.


[The statement of Mr. Kucinich follows:]




Chairman Ballenger. Well, I want to thank everybody here for your valuable testimony. We very much appreciate your taking time to come up here and testify.

If there is no further business, the committee is adjourned.


[Whereupon, at 3:49 p.m., the subcommittee was adjourned.]