I

106TH CONGRESS

1ST SESSION H. R. 1987

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 or by the Occupational Safety and Health Administration.

IN THE HOUSE OF REPRESENTATIVES

MAY 27, 1999

Mr. GOODLING introduced the following bill; which was referred to the

Committee on Education and the Workforce

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 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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1 SEC. 2. FINDINGS AND PURPOSE.

2 (a) FINDINGS.—The Congress makes the following

3 findings:

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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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 and following) is amended by adding at the end the fol24 lowing new section:
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1 ‘‘AWARDS OF ATTORNEYS’ FEES AND COSTS

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

3 employer 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
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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. Any appeal of a determination of

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

11 determined without regard to whether the position of the

12 United States was substantially justified or special cir13 cumstances make an award unjust.’’.

14 SEC. 4. APPLICABILITY OF NLRA AMENDMENT.

15 (a) AGENCY PROCEEDINGS.—Subsection (a) of sec16 tion 20 of the National Labor Relations Act, as added by

17 section 3 of this Act, applies to agency proceedings com18 menced on or after the date of the enactment of this Act.

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

20 20 of the National Labor Relations Act, as added by sec21 tion 3 of this Act, applies to civil actions commenced on

22 or after the date of the enactment of this Act.
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1 SEC. 5. AMENDMENT TO OCCUPATIONAL SAFETY AND

2 HEALTH ACT.

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

4 651 and following) is amended by inserting after section

5 12 at the end the following new section:

6 ‘‘AWARDS OF ATTORNEYS’ FEES AND COSTS

7 ‘‘SEC. 12A. (a) ADMINISTRATIVE PROCEEDINGS.—

8 An employer who—

9 ‘‘(1) is the prevailing party in an adversary ad10 judication before the Occupational Safety and

11 Health Review Commission under this or any other

12 Act, and

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

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

15 the adversary adjudication was initiated,

16 shall be awarded fees and other expenses as a prevailing

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

18 in accordance with the provisions of that section, but with19 out regard to whether the position of the Secretary of

20 Labor was substantially justified or special circumstances

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

22 the term ‘adversary adjudication’ has the meaning given

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

24 Code.

25 ‘‘(b) COURT PROCEEDINGS.—An employer who—
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1 ‘‘(1) is the prevailing party in a civil action, in2 cluding proceedings for judicial review of an action

3 by the Occupational Safety and Health Review Com4 mission, brought by or against the Secretary or the

5 Commission, and

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

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

8 the civil action was filed,

9 shall be awarded fees and other expenses as a prevailing

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

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

12 but without regard to whether the position of the United

13 States was substantially justified or special circumstances

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

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

16 determined without regard to whether the position of the

17 United States was substantially justified or special cir18 cumstances make an award unjust.’’.

19 SEC. 6. APPLICABILITY OF OSHA AMENDMENT.

20 (a) AGENCY PROCEEDINGS.—Subsection (a) of sec21 tion 12A of the Occupational Safety and Health Act, as

22 added by section 5 of this Act, applies to agency pro23 ceedings commenced on or after the date of the enactment

24 of this Act.
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1 (b) COURT PROCEEDINGS.—Subsection (b) of section

2 12A of the Occupational Safety and Health Act, as added

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

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

Æ