[Congressional Record Volume 144, Number 16 (Thursday, February 26, 1998)]
[Senate]
[Pages S1073-S1075]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HUTCHINSON:
  S. 1684. A bill to allow the recovery of attorneys' fees and costs by 
certain employers and labor organizations who are prevailing parties in 
proceedings brought against them by the National Labor Relations Board; 
to the Committee on Labor and Human Resources.


           the fair access to indemnity and reimbursement act

      By Mr. HUTCHINSON:
  S. 1685. A bill to amend the National Labor Relations Act to require 
the National Labor Relations Board to resolve unfair labor practice 
complaints in a timely manner; to the Committee on Labor and Human 
Resources.


                    the justice on time act of 1998

      By Mr. HUTCHINSON (for himself, Mr. DeWine, and Mr. Mack):
  S. 1686. A bill to amend the National Labor Relations Act to 
determine the appropriateness of certain bargaining units in the 
absence of a stipulation or consent; to the Committee on Labor and 
Human Resources.


                          the fair hearing act

  Mr. HUTCHINSON. Mr. President, our economy is doing well. Over 13 
million new jobs have been created in the last 5 years and unemployment 
is at a 24-year low. The engine behind this growth is America's 
entrepreneurs. Last year, over 840,000 new small businesses were 
started in this country adding to the 22 million small businesses 
already in existence in the United States.

  Not only are new jobs being created at an astounding rate, but job 
satisfaction levels are on the rise as well. While these statistics are 
good news for America, they are a bitter pill for America's labor 
unions. Because of the strong employment conditions, unions are finding 
it increasingly difficult to identify workplaces that feel they need 
labor representation. In short, union membership is in a free-fall.
  Last month, the Bureau of Labor Statistics reported that unions lost 
159,000 members in 1997 alone. Union membership has declined from 14.5 
percent of the work force to 14.1 percent this year. This drop in 
membership is hitting the unions where it hurts most, their 
pocketbooks. Unfortunately, rather than fighting back with legitimate, 
honest organizing tactics, unions are lashing out against America's 
merit shop employers with tactics aimed at undermining their very 
existence.
  Mr. President, I am always reluctant to propose legislation that 
interferes in

[[Page S1074]]

private matters, particularly matters that deal with contractual 
relationships between employers and employees. However, in this case, 
the Federal Government, through the National Labor Relations Board, is 
a coconspirator in this union attack on small businesses.
  For example, Little Rock Electrical Contractors, which is a merit 
shop contractor in my home State that hires both union and nonunion 
labor, has found itself on the barrel end of several unfair labor cases 
filed by workers the company has no record of ever even having hired or 
even interviewed.
  Last year, George Smith of Little Rock Electrical Contractors 
testified before the Senate Labor and Human Resources Committee, on 
which I serve, that they often settle these meritless cases simply 
because of the cost of litigating them through the NLRB and the courts, 
which is a very, very expensive process indeed.
  Mr. Smith said that his business cannot compete against the flood of 
cases that are filed against them and which are being litigated by 
Government lawyers working for the NLRB. Rather than fight, they simply 
pay. In the end, this not only hurts the employer but it hurts 
employees and consumers who bear the brunt of this cost in lower wages 
and in higher prices.
  Mr. President, unfortunately, this case is not unique. Both the House 
and Senate Labor Committees have been flooded with testimony showing 
similar efforts by unions across the country to harass and intimidate 
employers whose employees have chosen not to organize. Interestingly, 
this practice, which is known as ``salting,'' rarely, if ever, results 
in a formal petition to organize. In fact, the true nature and intent 
of salting was best explained by Mr. Gene Ellis, an IBEW organizer, who 
wrote in the Maine Labor Record the following words. And I quote:

       We've had members get monetary awards in the thousands of 
     dollars just for applying for a job, just a couple hours of 
     effort. At this writing, I'm pleased to announce that five of 
     our members will be sharing in $32,000 of BE&K's profits. All 
     for just filling out an application.

  On February 13, 1997, I introduced legislation that addresses the 
issue of salting. This legislation--called the Truth In Employment Act 
of 1997--would allow employers to reject an applicant that has no 
intention of actually working for the company but is instead solely 
interested in disrupting the workplace and harassing their employer and 
fellow employees.
  Today, I am introducing three new bills which seek to further protect 
small businesses from stern and intimidating union practices by forcing 
Government bureaucrats to seriously evaluate the actions they take 
against America's small businesses and requiring that the NLRB 
expeditiously resolve cases that are brought before it.

  First, I am introducing the Fair Access to Indemnity and 
Reimbursement Act. The FAIR Act will provide small businesses the 
incentive they need to fight back against meritless claims brought 
against them with the assistance of the NLRB and its team of lawyers.
  Simply put, the FAIR Act will allow small businesses to recoup the 
attorney's fees and expenses it spends defending itself should they 
prevail. So if a charge is brought against them, and they defend 
themselves and prevail, they will receive their attorney's fees. This 
will put some disincentive into the current practice of filing 
absolutely meritless cases in the hopes that they will tie up and 
disrupt the workplace and eventually destroy the employer. It ensures 
that those with modest means, the small company, the small business man 
or woman, will be able to fight frivolous actions brought before the 
NLRB--making the agency's bureaucrats closely consider each and every 
case before they initiate litigation.
  Mr. President, passage of the FAIR Act would be welcome news to small 
businesses across America. In particular, John Gaylor of Gaylor 
Electric from Indiana, who budgets $200,000 each year to combat 
frivolous labor charges brought against him, would finally be able to 
recoup a large portion of these annual costs and would be able to 
reinvest this money into his business and into the welfare of his 
employees.
  Mr. President, the second bill that I am introducing is the Justice 
on Time Act. This legislation eliminates another obstacle small 
business must cross before they can consider fighting meritless cases 
brought before the NLRB. It currently takes the National Labor 
Relations Board an average of 546 days--546 days--to process unfair 
labor claims. This delay compounds the back pay rewards that businesses 
must pay if they are found to be in violation of the National Labor 
Relations Act.
  Furthermore, it delays the reinstatement of employees who are in 
limbo waiting to learn if they will get their jobs back. The Justice on 
Time Act is reasonable legislation that will force the NLRB to resolve 
unfair labor cases involving the dismissal of an employee within 1 
year. And 1 year ought to be long enough.
  Finally, Mr. President, I am introducing the Fair Hearing Act which 
will require the NLRB to conduct a hearing to determine the appropriate 
bargaining unit in cases where labor organizations attempt to organize 
employees at one or more facilities of a multifacility employer.
  The NLRB, at the behest I believe of organized labor, has recently 
considered regulations that would end the NLRB's decade-long practice 
of resolving disputes over what constitutes an appropriate bargaining 
unit in an open hearing. While the NLRB recently pulled its proposed 
rule ending the use of hearings, and replacing it with a fairly broad 
set of ``union favoring'' criteria, the Fair Hearing Act would ensure 
that this practice is never again jeopardized by bureaucrats at the 
National Labor Relations Board.
  Mr. President, these three bills simply seek to level the playing 
field on which organized labor and small employers compete. The 
strength of this country rests on the freedom of individuals to pursue 
their dreams, to pursue their ideas and risk their capital to open and 
operate a small business. With a level playing field, these dreams can 
continue to be met and can continue to be realized.
  The three bills that I am introducing today will help ensure that the 
efforts of small business men and women across this country are not 
hindered by intrusive and misused Government regulations. I ask my 
colleagues for their consideration and support of this legislation.
  Mr. President, I ask unanimous consent that the texts of the bills be 
printed in the Record.
  There being no objection, the bills were ordered to be printed in the 
Record, as follows:

                                S. 1684

       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.--The Congress finds as follows:
       (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 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 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. 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:


                 ``awards of attorneys' fees and costs

       ``Sec. 20. (a) Administrative Proceedings.--An employer 
     who, or a labor organization that--

[[Page S1075]]

       ``(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. 4. APPLICABILITY.

       (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.
                                                                    ____


                                S. 1685

       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 ``Justice on Time Act of 
     1998''.

     SEC. 2. FINDINGS.

       The Congress finds the following:
       (1) An employee has a right under the National Labor 
     Relations Act (29 U.S.C. 151 et seq.) to be free from 
     discrimination with regard to hire or tenure of employment or 
     any term or condition of employment to encourage or 
     discourage membership in any labor organization. The 
     Congress, the National Labor Relations Board, and the courts 
     have recognized that the discharge of an employee to 
     encourage or discourage union membership has a particularly 
     chilling effect on the exercise of rights provided under 
     section 7 of such Act.
       (2) Although an employee who has been discharged because of 
     support or lack of support for a labor organization has a 
     right to be reinstated to the previously held position with 
     backpay, reinstatement is often ordered months and even years 
     after the initial discharge due to the lengthy delays in the 
     processing of unfair labor practice charges by the National 
     Labor Relations Board and to the several layers of appeal 
     under the National Labor Relations Act.
       (3) In order to minimize the chilling effect on the 
     exercise of rights provided under section 7 of the National 
     Labor Relations Act (29 U.S.C. 157) caused by an unlawful 
     discharge and to maximize the effectiveness of the remedies 
     for unlawful discrimination under the National Labor 
     Relations Act, the National Labor Relations Board should 
     endeavor to resolve in a timely manner all unfair labor 
     practice complaints alleging that an employee has been 
     unlawfully discharged to encourage or discourage membership 
     in a labor organization.
       (4) Expeditious resolution of such complaints would benefit 
     all parties not only by ensuring swift justice, but also by 
     reducing the costs of litigation and backpay awards.

     SEC. 3. PURPOSE.

       The purpose of this Act is to ensure that the National 
     Labor Relations Board resolves in a timely manner all unfair 
     labor practice complaints alleging that an employee has been 
     unlawfully discharged to encourage or discourage membership 
     in a labor organization.

     SEC. 4. TIMELY RESOLUTION.

       Section 10(m) of the National Labor Relations Act (29 
     U.S.C. 160) is amended by adding at the end the following: 
     ``Whenever a complaint is issued as provided in subsection 
     (b) upon a charge that any person has engaged in or is 
     engaging in an unfair labor practice within the meaning of 
     subsection (a)(3) or (b)(2) of section 8 involving an 
     unlawful discharge, the Board shall state its findings of 
     fact and issue and cause to be served on such person an order 
     requiring such person to cease and desist from such unfair 
     labor practice and to take such affirmative action, including 
     reinstatement of an employee with or without backpay, as will 
     effectuate the policies of this Act, or shall state its 
     findings of fact and issue an order dismissing the said 
     complaint, not later than 365 days after the filing of the 
     unfair labor practice charge with the Board.''.

     SEC. 5. REGULATIONS.

       The National Labor Relation Board may issue such 
     regulations as are necessary to carry out the purposes of 
     this Act.
                                                                    ____


                                S. 1686

       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 Hearing Act''.

     SEC. 2. 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. The Board shall 
     consider factors, including 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.''.
                                 ______