[Congressional Record Volume 145, Number 78 (Thursday, May 27, 1999)]
[Senate]
[Page S6311]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HUTCHINSON:
  S. 1158. 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; to the 
Committee on Health, Education, Labor, and Pensions.


             FAIR ACCESS TO INDEMNITY AND REIMBURSEMENT ACT

 Mr. HUTCHINSON. Mr. President, it is my honor today to 
introduce the ``Fair Access to Indemnity and Reimbursement Act'' (the 
``FAIR Act''), which will amend the National Labor Relations Act and 
the Occupational Safety and Health Act to provide that a small employer 
prevailing against either agency will be automatically entitled to 
recover the attorney's fees and expenses it incurred to defend itself.
  The FAIR Act is necessary because the National Labor Relations Board 
(``NLRB'') and Occupational Safety and Health Agency (``OSHA'') are two 
aggressive, well-funded agencies which share a ``find and fine'' 
philosophy. The destructive consequences that small businesses suffer 
as a result of these agencies' ``find and fine'' approach are magnified 
by the abuse of ``salting'' or the placement of paid union organizers 
and their agents in non-union workplaces for the sole purpose of 
disrupting the workforce. ``Salting abuse'' occurs when ``salts'' 
create labor law violations or workplace hazards and then file 
frivolous claims with the NLRB or OSHA. Businesses are then often 
forced to spend thousands and sometimes hundreds of thousands of 
dollars to defend themselves against NLRB or OSHA as these agencies 
vigorously prosecute these frivolous claims. Accordingly, many 
businesses, when faced with the cost of a successful defense, make a 
bottom-line decision to settle these frivolous claims rather than going 
out of business or laying off employees in order to finance costly 
litigation.
  The ``FAIR Act'' will allow these employers to defend themselves 
rather than settling, and, more importantly, it will force the NLRB or 
OSHA to ensure that the claims they pursue are worthy of their efforts. 
The FAIR Act will accomplish this by allowing employers with up to 100 
employees and a net worth of up to $7,000,000 to recover their 
attorneys fees and litigation expense directly from the NLRB or OSHA, 
regardless of whether those agencies' decision to pursue the case was 
``substantially justified'' or ``special circumstances'' make an award 
of attorneys fees unjust. Thus, the Congressional intent behind the 
broadly supported, bi-partisan ``Equal Access to Justice Act'' 
(``EAJA'') to ``level the playing field'' for small businesses will 
finally be realized.
  The ``FAIR Act'' is solid legislation; it is a common sense attempt 
to give small businesses the means to defend themselves against unfair 
actions. Accordingly, I ask my colleagues for their cooperation and 
assistance as I work to ensure that the ``FAIR Act'' is enacted into 
law.
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