[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 1158 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                S. 1158

To allow the recovery of attorney's fees and costs by certain employers 
   and labor organizations who are prevailing parties in proceedings 
 brought against them by the National Labor Relations Board or by the 
             Occupational Safety and Health Administration.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 27, 1999

Mr. Hutchinson introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
To allow the recovery of attorney's fees and costs by certain employers 
   and labor organizations who are prevailing parties in proceedings 
 brought against them by the National Labor Relations Board or by the 
             Occupational Safety and Health Administration.

    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 ``Fair Access to Indemnity and 
Reimbursement Act''.

SEC. 2. 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 or 
        by the Occupational Safety and Health Administration.
            (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 and before the Occupational 
        Safety and Health Review Commission.
            (3) The greater expertise and resources of the National 
        Labor Relations Board and the Occupational Safety and Health 
        Administration 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 or against the Occupational 
        Safety and Health Administration.
    (b) Purpose.--It is the purpose of this Act--
            (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 or by the Occupational Safety and Health 
        Administration 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 the Occupational Safety 
        and Health Administration; and
            (3) to make the National Labor Relations Board and the 
        Occupational Safety and Health Administration more accountable 
        for their 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 or in proceedings before the Occupational Safety and 
        Health Review Commission.

SEC. 3. 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:

``SEC. 20. AWARDS OF ATTORNEYS' FEES AND COSTS.

    ``(a) Administrative Proceedings.--An employer who, or 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 $7,000,000 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 $7,000,000 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.
    ``(c) Appeals.--Any appeal of a determination of fees pursuant to 
subsection (a) or (b) shall be determined without regard to whether the 
position of the United States was substantially justified or special 
circumstances make an award unjust.''.

SEC. 4. APPLICABILITY OF NLRA AMENDMENT.

    (a) Agency Proceedings.--Subsection (a) of section 20 of the 
National Labor Relations Act, as added by section 3 of this Act, 
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 3 of this Act, 
applies to civil actions commenced on or after the date of the 
enactment of this Act.

SEC. 5. AMENDMENT TO OCCUPATIONAL SAFETY AND HEALTH ACT.

    The Occupational Safety and Health Act (29 U.S.C. 651 et seq.) is 
amended by inserting after section 12 the following:

``SEC. 12A. AWARDS OF ATTORNEYS' FEES AND COSTS. 

    ``(a) Administrative Proceedings.--An employer who--
            ``(1) is the prevailing party in an adversary adjudication 
        before the Occupational Safety and Health Review Commission 
        under this or any other Act, and
            ``(2) had not more than 100 employees and a net worth of 
        not more than $7,000,000 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 Secretary of Labor 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--
            ``(1) is the prevailing party in a civil action, including 
        proceedings for judicial review of an action by the 
        Occupational Safety and Health Review Commission, brought by or 
        against the Secretary or the Commission, and
            ``(2) had not more than 100 employees and a net worth of 
        not more than $7,000,000 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.
    ``(c) Appeals.--Any appeal of a determination of fees pursuant to 
subsection (a) or (b) shall be determined without regard to whether the 
position of the United States was substantially justified or special 
circumstances make an award unjust.''.

SEC. 6. APPLICABILITY OF OSHA AMENDMENT.

    (a) Agency Proceedings.--Subsection (a) of section 12A of the 
Occupational Safety and Health Act, as added by section 5 of this Act, 
applies to agency proceedings commenced on or after the date of 
enactment of this Act.
    (b) Court Proceedings.--Subsection (b) of section 12A of the 
Occupational Safety and Health Act, as added by section 5 of this Act, 
applies to civil actions commenced on or after the date of enactment of 
this Act.
                                 <all>