II

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Fair Access to Indem5 nity and Reimbursement Act’’.
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•S 1158 IS

1 SEC. 2. FINDINGS AND PURPOSE.

2 (a) FINDINGS.—Congress makes the following find3 ings:

4 (1) Certain small businesses and labor organi5 zations are at a great disadvantage in terms of ex6 pertise and resources when facing actions brought by

7 the National Labor Relations Board or by the Occu8 pational Safety and Health Administration.

9 (2) The attempt to ‘‘level the playing field’’ for

10 small businesses and labor organizations by means

11 of the Equal Access to Justice Act has proven inef12 fective and has been underutilized by these small en13 tities in their actions before the National Labor Re14 lations Board and before the Occupational Safety

15 and Health Review Commission.

16 (3) The greater expertise and resources of the

17 National Labor Relations Board and the Occupa18 tional Safety and Health Administration as com19 pared with those of small businesses and labor orga20 nizations necessitate a standard that awards fees

21 and costs to certain small entities when they prevail

22 against the National Labor Relations Board or

23 against the Occupational Safety and Health Admin24 istration.

25 (b) PURPOSE.—It is the purpose of this Act—
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•S 1158 IS

1 (1) to ensure that certain small businesses and

2 labor organizations will not be deterred from seeking

3 review of, or defending against, actions brought

4 against them by the National Labor Relations Board

5 or by the Occupational Safety and Health Adminis6 tration because of the expense involved in securing

7 vindication of their rights;

8 (2) to reduce the disparity in resources and ex9 pertise between certain small businesses and labor

10 organizations and the National Labor Relations

11 Board and the Occupational Safety and Health Ad12 ministration; and

13 (3) to make the National Labor Relations

14 Board and the Occupational Safety and Health Ad15 ministration more accountable for their enforcement

16 actions against certain small businesses and labor

17 organizations by awarding fees and costs to these

18 entities when they prevail against the National

19 Labor Relations Board or in proceedings before the

20 Occupational Safety and Health Review Commission.

21 SEC. 3. AMENDMENT TO NATIONAL LABOR RELATIONS ACT.

22 The National Labor Relations Act (29 U.S.C. 151

23 et seq.) is amended by adding at the end the following:
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•S 1158 IS

1 ‘‘SEC. 20. AWARDS OF ATTORNEYS’ FEES AND COSTS.

2 ‘‘(a) ADMINISTRATIVE PROCEEDINGS.—An employer

3 who, or labor organization that—

4 ‘‘(1) is the prevailing party in an adversary ad5 judication conducted by the Board under this or any

6 other Act; and

7 ‘‘(2) had not more than 100 employees and a

8 net worth of not more than $7,000,000 at the time

9 the adversary adjudication was initiated,

10 shall be awarded fees and other expenses as a prevailing

11 party under section 504 of title 5, United States Code,

12 in accordance with the provisions of that section, but with13 out regard to whether the position of the Board was sub14 stantially justified or special circumstances make an

15 award unjust. For purposes of this subsection, the term

16 ‘adversary adjudication’ has the meaning given that term

17 in section 504(b)(1)(C) of title 5, United States Code.

18 ‘‘(b) COURT PROCEEDINGS.—An employer who, or a

19 labor organization that—

20 ‘‘(1) is the prevailing party in a civil action, in21 cluding proceedings for judicial review of agency ac22 tion by the Board, brought by or against the Board,

23 and

24 ‘‘(2) had not more than 100 employees and a

25 net worth of not more than $7,000,000 at the time

26 the civil action was filed,
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•S 1158 IS

1 shall be awarded fees and other expenses as a prevailing

2 party under section 2412(d) of title 28, United States

3 Code, in accordance with the provisions of that section,

4 but without regard to whether the position of the United

5 States was substantially justified or special circumstances

6 make an award unjust.

7 ‘‘(c) APPEALS.—Any appeal of a determination of

8 fees pursuant to subsection (a) or (b) shall be determined

9 without regard to whether the position of the United

10 States was substantially justified or special circumstances

11 make an award unjust.’’.

12 SEC. 4. APPLICABILITY OF NLRA AMENDMENT.

13 (a) AGENCY PROCEEDINGS.—Subsection (a) of sec14 tion 20 of the National Labor Relations Act, as added by

15 section 3 of this Act, applies to agency proceedings com16 menced on or after the date of the enactment of this Act.

17 (b) COURT PROCEEDINGS.—Subsection (b) of section

18 20 of the National Labor Relations Act, as added by sec19 tion 3 of this Act, applies to civil actions commenced on

20 or after the date of the enactment of this Act.

21 SEC. 5. AMENDMENT TO OCCUPATIONAL SAFETY AND

22 HEALTH ACT.

23 The Occupational Safety and Health Act (29 U.S.C.

24 651 et seq.) is amended by inserting after section 12 the

25 following:
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•S 1158 IS

1 ‘‘SEC. 12A. AWARDS OF ATTORNEYS’ FEES AND COSTS.

2 ‘‘(a) ADMINISTRATIVE PROCEEDINGS.—An employer

3 who—

4 ‘‘(1) is the prevailing party in an adversary ad5 judication before the Occupational Safety and

6 Health Review Commission under this or any other

7 Act, and

8 ‘‘(2) had not more than 100 employees and a

9 net worth of not more than $7,000,000 at the time

10 the adversary adjudication was initiated,

11 shall be awarded fees and other expenses as a prevailing

12 party under section 504 of title 5, United States Code,

13 in accordance with the provisions of that section, but with14 out regard to whether the position of the Secretary of

15 Labor was substantially justified or special circumstances

16 make an award unjust. For purposes of this subsection,

17 the term ‘adversary adjudication’ has the meaning given

18 that term in section 504(b)(1)(C) of title 5, United States

19 Code.

20 ‘‘(b) COURT PROCEEDINGS.—An employer who—

21 ‘‘(1) is the prevailing party in a civil action, in22 cluding proceedings for judicial review of an action

23 by the Occupational Safety and Health Review Com24 mission, brought by or against the Secretary or the

25 Commission, and
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•S 1158 IS

1 ‘‘(2) had not more than 100 employees and a

2 net worth of not more than $7,000,000 at the time

3 the civil action was filed,

4 shall be awarded fees and other expenses as a prevailing

5 party under section 2412(d) of title 28, United States

6 Code, in accordance with the provisions of that section,

7 but without regard to whether the position of the United

8 States was substantially justified or special circumstances

9 make an award unjust.

10 ‘‘(c) APPEALS.—Any appeal of a determination of

11 fees pursuant to subsection (a) or (b) shall be determined

12 without regard to whether the position of the United

13 States was substantially justified or special circumstances

14 make an award unjust.’’.

15 SEC. 6. APPLICABILITY OF OSHA AMENDMENT.

16 (a) AGENCY PROCEEDINGS.—Subsection (a) of sec17 tion 12A of the Occupational Safety and Health Act, as

18 added by section 5 of this Act, applies to agency pro19 ceedings commenced on or after the date of enactment of

20 this Act.

21 (b) COURT PROCEEDINGS.—Subsection (b) of section

22 12A of the Occupational Safety and Health Act, as added

23 by section 5 of this Act, applies to civil actions commenced

24 on or after the date of enactment of this Act.

Æ