[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2085 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 2085

    To assist small businesses and labor organizations in defending 
  themselves against Government bureaucracy; to protect the right of 
     employers to have a hearing to present their case in certain 
  representation cases; and to prevent the use of the National Labor 
Relations Act for the purpose of disrupting or inflicting economic harm 
                             on employers.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 14, 1998

Mr. Hutchinson introduced the following bill; which was read twice and 
         referred to the Committee on Labor and Human Resources

_______________________________________________________________________

                                 A BILL


 
    To assist small businesses and labor organizations in defending 
  themselves against Government bureaucracy; to protect the right of 
     employers to have a hearing to present their case in certain 
  representation cases; and to prevent the use of the National Labor 
Relations Act for the purpose of disrupting or inflicting economic harm 
                             on employers.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fairness for Small Business and 
Employees Act of 1998''.

                      TITLE I--TRUTH IN EMPLOYMENT

SEC. 101. FINDINGS.

    Congress makes the following findings:
            (1) An atmosphere of trust and civility in labor-management 
        relationships is essential to a productive workplace and a 
        healthy economy.
            (2) The tactic of using professional union organizers and 
        agents to infiltrate a targeted employer's workplace, a 
        practice commonly referred to as ``salting'' has evolved into 
        an aggressive form of harassment not contemplated when the 
        National Labor Relations Act was enacted and threatens the 
        balance of rights which is fundamental to our system of 
        collective bargaining.
            (3) Increasingly, union organizers are seeking employment 
        with nonunion employers not because of a desire to work for 
        such employers but primarily to organize the employees of such 
        employers or to inflict economic harm specifically designed to 
        put nonunion competitors out of business, or to do both.
            (4) While no employer may discriminate against employees 
        based upon the views of employees concerning collective 
        bargaining, an employer should have the right to expect job 
        applicants to be primarily interested in utilizing the skills 
        of the applicants to further the goals of the business of the 
        employer.

SEC. 102. PURPOSES.

    The purposes of this title are--
            (1) to preserve the balance of rights between employers, 
        employees, and labor organizations which is fundamental to our 
        system of collective bargaining;
            (2) to preserve the rights of workers to organize, or 
        otherwise engage in concerted activities protected under the 
        National Labor Relations Act; and
            (3) to alleviate pressure on employers to hire individuals 
        who seek or gain employment in order to disrupt the workplace 
        of the employer or otherwise inflict economic harm designed to 
        put the employer out of business.

SEC. 103. PROTECTION OF EMPLOYER RIGHTS.

    Section 8(a) of the National Labor Relations Act (29 U.S.C. 158(a)) 
is amended by adding after paragraph (5) the following flush sentence:
``Nothing in this subsection shall be construed as requiring an 
employer to employ any person who is not a bona fide employee 
applicant, in that such person seeks or has sought employment with the 
employer with the primary purpose of furthering another employment or 
agency status: Provided, That this sentence shall not affect the rights 
and responsibilities under this Act of any employee who is or was a 
bona fide employee applicant, including the right to self-organization, 
to form, join, or assist labor organizations, to bargain collectively 
through representatives of their own choosing, and to engage in other 
concerted activities for the purpose of collective bargaining or other 
mutual aid or protection.''.

                         TITLE II--FAIR HEARING

SEC. 201. FINDINGS.

    Congress makes the following findings:
            (1) Bargaining unit determinations by their nature require 
        the type of fact-specific analysis that only case-by-case 
        adjudication allows.
            (2) The National Labor Relations Board has for decades held 
        hearings to determine the appropriateness of certifying a 
        single location bargaining unit.
            (3) The imprecision of a blanket rule limiting the factors 
        considered material to determining the appropriateness of a 
        single location bargaining unit detracts from the National 
        Labor Relations Act's goal of promoting stability in labor 
        relations.

SEC. 202. PURPOSE.

    The purpose of this title is to ensure that the National Labor 
Relations Board conducts a hearing process and specific analysis of 
whether or not a single location bargaining unit is appropriate, given 
all of the relevant facts and circumstances of a particular case.

SEC. 203. REPRESENTATIVES AND ELECTIONS.

    Section 9(c) of the National Labor Relations Act (29 U.S.C. 159(c)) 
is amended by adding at the end the following:
    ``(6) If a petition for an election requests the Board to certify a 
unit which includes the employees employed at one or more facilities of 
a multi-facility employer, and in the absence of an agreement by the 
parties (stipulation for certification upon consent election or 
agreement for consent election) regarding the appropriateness of the 
bargaining unit at issue for purposes of subsection (b), the Board 
shall provide for a hearing upon due notice to determine the 
appropriateness of the bargaining unit. In making its determination, 
the Board shall consider functional integration, centralized control, 
common skills, functions and working conditions, permanent and 
temporary employee interchange, geographical separation, local 
autonomy, the number of employees, bargaining history, and such other 
factors as the Board considers appropriate.''.

                       TITLE III--ATTORNEYS FEES

SEC. 301. FINDINGS AND PURPOSE.

    (a) Findings.--Congress makes the following findings:
            (1) Certain small businesses and labor organizations are at 
        a great disadvantage in terms of expertise and resources when 
        facing actions brought by the National Labor Relations Board.
            (2) The attempt to ``level the playing field'' for small 
        businesses and labor organizations by means of the Equal Access 
        to Justice Act has proven ineffective and has been 
        underutilized by these small entities in their actions before 
        the National Labor Relations Board.
            (3) The greater expertise and resources of the National 
        Labor Relations Board as compared with those of small 
        businesses and labor organizations necessitate a standard that 
        awards fees and costs to certain small entities when they 
        prevail against the National Labor Relations Board.
    (b) Purpose.--It is the purpose of this title--
            (1) to ensure that certain small businesses and labor 
        organizations will not be deterred from seeking review of, or 
        defending against, actions brought against them by the National 
        Labor Relations Board because of the expense involved in 
        securing vindication of their rights;
            (2) to reduce the disparity in resources and expertise 
        between certain small businesses and labor organizations and 
        the National Labor Relations Board; and
            (3) to make the National Labor Relations Board more 
        accountable for its enforcement actions against certain small 
        businesses and labor organizations by awarding fees and costs 
        to these entities when they prevail against the National Labor 
        Relations Board.

SEC. 302. AMENDMENT TO NATIONAL LABOR RELATIONS ACT.

    The National Labor Relations Act (29 U.S.C. 151 et seq.) is amended 
by adding at the end the following new section:

                 ``awards of attorneys' fees and costs

    ``Sec. 20. (a) Administrative Proceedings.--An employer who, or a 
labor organization that--
            ``(1) is the prevailing party in an adversary adjudication 
        conducted by the Board under this or any other Act, and
            ``(2) had not more than 100 employees and a net worth of 
        not more than $1,400,000 at the time the adversary adjudication 
        was initiated,
shall be awarded fees and other expenses as a prevailing party under 
section 504 of title 5, United States Code, in accordance with the 
provisions of that section, but without regard to whether the position 
of the Board was substantially justified or special circumstances make 
an award unjust. For purposes of this subsection, the term `adversary 
adjudication' has the meaning given that term in section 504(b)(1)(C) 
of title 5, United States Code.
    ``(b) Court Proceedings.--An employer who, or a labor organization 
that--
            ``(1) is the prevailing party in a civil action, including 
        proceedings for judicial review of agency action by the Board, 
        brought by or against the Board, and
            ``(2) had not more than 100 employees and a net worth of 
        not more than $1,400,000 at the time the civil action was 
        filed,
shall be awarded fees and other expenses as a prevailing party under 
section 2412(d) of title 28, United States Code, in accordance with the 
provisions of that section, but without regard to whether the position 
of the United States was substantially justified or special 
circumstances make an award unjust. Any appeal of a determination of 
fees pursuant to subsection (a) or this subsection shall be determined 
without regard to whether the position of the United States was 
substantially justified or special circumstances make an award 
unjust.''.

SEC. 303. APPLICABILITY.

    (a) Agency Proceedings.--Subsection (a) of section 20 of the 
National Labor Relations Act (as added by section 302) applies to 
agency proceedings commenced on or after the date of the enactment of 
this Act.
    (b) Court Proceedings.--Subsection (b) of section 20 of the 
National Labor Relations Act (as added by section 302) applies to civil 
actions commenced on or after the date of the enactment of this Act.
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