II

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.

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 ‘‘Fairness for Small

5 Business and Employees Act of 1998’’.
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1 TITLE I—TRUTH IN

2 EMPLOYMENT

3 SEC. 101. FINDINGS.

4 Congress makes the following findings:

5 (1) An atmosphere of trust and civility in labor6 management relationships is essential to a produc7 tive workplace and a healthy economy.

8 (2) The tactic of using professional union orga9 nizers and agents to infiltrate a targeted employer’s

10 workplace, a practice commonly referred to as ‘‘salt11 ing’’ has evolved into an aggressive form of harass12 ment not contemplated when the National Labor Re13 lations Act was enacted and threatens the balance of

14 rights which is fundamental to our system of collec15 tive bargaining.

16 (3) Increasingly, union organizers are seeking

17 employment with nonunion employers not because of

18 a desire to work for such employers but primarily to

19 organize the employees of such employers or to in20 flict economic harm specifically designed to put non21 union competitors out of business, or to do both.

22 (4) While no employer may discriminate against

23 employees based upon the views of employees con24 cerning collective bargaining, an employer should

25 have the right to expect job applicants to be pri-
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1 marily interested in utilizing the skills of the appli2 cants to further the goals of the business of the em3 ployer.

4 SEC. 102. PURPOSES.

5 The purposes of this title are—

6 (1) to preserve the balance of rights between

7 employers, employees, and labor organizations which

8 is fundamental to our system of collective bargain9 ing;

10 (2) to preserve the rights of workers to orga11 nize, or otherwise engage in concerted activities pro12 tected under the National Labor Relations Act; and

13 (3) to alleviate pressure on employers to hire

14 individuals who seek or gain employment in order to

15 disrupt the workplace of the employer or otherwise

16 inflict economic harm designed to put the employer

17 out of business.

18 SEC. 103. PROTECTION OF EMPLOYER RIGHTS.

19 Section 8(a) of the National Labor Relations Act (29

20 U.S.C. 158(a)) is amended by adding after paragraph (5)

21 the following flush sentence:

22 ‘‘Nothing in this subsection shall be construed as requir23 ing an employer to employ any person who is not a bona

24 fide employee applicant, in that such person seeks or has

25 sought employment with the employer with the primary
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1 purpose of furthering another employment or agency sta2 tus: Provided, That this sentence shall not affect the

3 rights and responsibilities under this Act of any employee

4 who is or was a bona fide employee applicant, including

5 the right to self-organization, to form, join, or assist labor

6 organizations, to bargain collectively through representa7 tives of their own choosing, and to engage in other con8 certed activities for the purpose of collective bargaining

9 or other mutual aid or protection.’’.

10 TITLE II—FAIR HEARING

11 SEC. 201. FINDINGS.

12 Congress makes the following findings:

13 (1) Bargaining unit determinations by their na14 ture require the type of fact-specific analysis that

15 only case-by-case adjudication allows.

16 (2) The National Labor Relations Board has

17 for decades held hearings to determine the appro18 priateness of certifying a single location bargaining

19 unit.

20 (3) The imprecision of a blanket rule limiting

21 the factors considered material to determining the

22 appropriateness of a single location bargaining unit

23 detracts from the National Labor Relations Act’s

24 goal of promoting stability in labor relations.
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1 SEC. 202. PURPOSE.

2 The purpose of this title is to ensure that the Na3 tional Labor Relations Board conducts a hearing process

4 and specific analysis of whether or not a single location

5 bargaining unit is appropriate, given all of the relevant

6 facts and circumstances of a particular case.

7 SEC. 203. REPRESENTATIVES AND ELECTIONS.

8 Section 9(c) of the National Labor Relations Act (29

9 U.S.C. 159(c)) is amended by adding at the end the fol10 lowing:

11 ‘‘(6) If a petition for an election requests the Board

12 to certify a unit which includes the employees employed

13 at one or more facilities of a multi-facility employer, and

14 in the absence of an agreement by the parties (stipulation

15 for certification upon consent election or agreement for

16 consent election) regarding the appropriateness of the bar17 gaining unit at issue for purposes of subsection (b), the

18 Board shall provide for a hearing upon due notice to deter19 mine the appropriateness of the bargaining unit. In mak20 ing its determination, the Board shall consider functional

21 integration, centralized control, common skills, functions

22 and working conditions, permanent and temporary em23 ployee interchange, geographical separation, local auton24 omy, the number of employees, bargaining history, and

25 such other factors as the Board considers appropriate.’’.
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1 TITLE III—ATTORNEYS FEES

2 SEC. 301. FINDINGS AND PURPOSE.

3 (a) FINDINGS.—Congress makes the following find4 ings:

5 (1) Certain small businesses and labor organi6 zations are at a great disadvantage in terms of ex7 pertise and resources when facing actions brought by

8 the National Labor Relations Board.

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.

15 (3) The greater expertise and resources of the

16 National Labor Relations Board as compared with

17 those of small businesses and labor organizations ne18 cessitate a standard that awards fees and costs to

19 certain small entities when they prevail against the

20 National Labor Relations Board.

21 (b) PURPOSE.—It is the purpose of this title—

22 (1) to ensure that certain small businesses and

23 labor organizations will not be deterred from seeking

24 review of, or defending against, actions brought

25 against them by the National Labor Relations Board
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1 because of the expense involved in securing vindica2 tion of their rights;

3 (2) to reduce the disparity in resources and ex4 pertise between certain small businesses and labor

5 organizations and the National Labor Relations

6 Board; and

7 (3) to make the National Labor Relations

8 Board more accountable for its enforcement actions

9 against certain small businesses and labor organiza10 tions by awarding fees and costs to these entities

11 when they prevail against the National Labor Rela12 tions Board.

13 SEC. 302. AMENDMENT TO NATIONAL LABOR RELATIONS

14 ACT.

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

16 et seq.) is amended by adding at the end the following

17 new section:

18 ‘‘AWARDS OF ATTORNEYS’ FEES AND COSTS

19 ‘‘SEC. 20. (a) ADMINISTRATIVE PROCEEDINGS.—An

20 employer who, or a labor organization that—

21 ‘‘(1) is the prevailing party in an adversary ad22 judication conducted by the Board under this or any

23 other Act, and

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

25 net worth of not more than $1,400,000 at the time

26 the adversary adjudication was initiated,
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1 shall be awarded fees and other expenses as a prevailing

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

3 in accordance with the provisions of that section, but with4 out regard to whether the position of the Board was sub5 stantially justified or special circumstances make an

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

7 ‘adversary adjudication’ has the meaning given that term

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

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

10 labor organization that—

11 ‘‘(1) is the prevailing party in a civil action, in12 cluding proceedings for judicial review of agency ac13 tion by the Board, brought by or against the Board,

14 and

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

16 net worth of not more than $1,400,000 at the time

17 the civil action was filed,

18 shall be awarded fees and other expenses as a prevailing

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

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

21 but without regard to whether the position of the United

22 States was substantially justified or special circumstances

23 make an award unjust. Any appeal of a determination of

24 fees pursuant to subsection (a) or this subsection shall be

25 determined without regard to whether the position of the
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1 United States was substantially justified or special cir2 cumstances make an award unjust.’’.

3 SEC. 303. APPLICABILITY.

4 (a) AGENCY PROCEEDINGS.—Subsection (a) of sec5 tion 20 of the National Labor Relations Act (as added

6 by section 302) applies to agency proceedings commenced

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

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

9 20 of the National Labor Relations Act (as added by sec10 tion 302) applies to civil actions commenced on or after

11 the date of the enactment of this Act.

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