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Union Calendar No. 220

106TH CONGRESS

1ST SESSION H. R. 1987

[Report No. 106–385]

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

OCTOBER 14, 1999

Additional sponsors: Mr. BALLENGER, Mr. BOEHNER, Mr. HOEKSTRA, Mr.

GREENWOOD, Mr. GRAHAM, Mr. NORWOOD, Mr. SCHAFFER, Mr. DEAL

of Georgia, Mr. HILLEARY, Mr. SALMON, Mr. TANCREDO, Mr. DEMINT,

Mr. GOODE, Mr. WICKER, Mr. COOKSEY, Mr. BARTLETT of Maryland,

Mr. GANSKE, Mr. TALENT, Mr. MCINTOSH, Mr. CAMPBELL, Mr. SAM

JOHNSON of Texas, Mr. SOUDER, Mr. UPTON, Mr. MCKEON, Mr. BARRETT of Nebraska, Ms. PRYCE of Ohio, Mr. FLETCHER, Mr.

NETHERCUTT, Mr. HAYES, Mr. WELDON of Florida, Mr. GARY MILLER

of California, Mr. MANZULLO, Mr. VITTER, Mr. WATTS of Oklahoma,

Mr. COBLE, Mr. ADERHOLT, Mr. CUNNINGHAM, Mr. BUYER, Mr. BLUNT,

Mr. CANNON, Mr. HUTCHINSON, Mr. DREIER, Mr. BONILLA, Mrs.

FOWLER, Mr. KUYKENDALL, Mr. CALVERT, Mr. HOBSON, Mr.

HAYWORTH, Mr. ISAKSON, Mrs. NORTHUP, Mr. HERGER, Mr. HEFLEY,

Mr. ROGAN, Mr. BURTON of Indiana, Mr. PICKERING, Mr. KNOLLENBERG, Mr. PETERSON of Pennsylvania, Mr. LARGENT, Mr. HILL of Montana, Mr. GOSS, Mr. DUNCAN, Mr. DELAY, and Mr. ARMEY

OCTOBER 14, 1999

Reported with an amendment, committed to the Committee of the Whole

House on the State of the Union, and ordered to be printed
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[Strike out all after the enacting clause and insert the part printed in italic]

[For text of introduced bill, see copy of bill as introduced on May 27, 1999]

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’’.

6 SEC. 2. FINDINGS AND PURPOSE.

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

8 findings:

9 (1) Certain small businesses and labor organiza10 tions are at a great disadvantage in terms of expertise

11 and resources when facing actions brought by the Na12 tional Labor Relations Board or by the Occupational

13 Safety and Health Administration.

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

15 small businesses and labor organizations by means of

16 the Equal Access to Justice Act has proven ineffective

17 and has been underutilized by these small entities in
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1 their actions before the National Labor Relations

2 Board and before the Occupational Safety and Health

3 Review Commission.

4 (3) The greater expertise and resources of the Na5 tional Labor Relations Board and the Occupational

6 Safety and Health Administration as compared with

7 those of small businesses and labor organizations ne8 cessitate a standard that awards fees and costs to cer9 tain small entities when they prevail against the Na10 tional Labor Relations Board or against the Occupa11 tional Safety and Health Administration.

12 (b) PURPOSE.—It is the purpose of this Act—

13 (1) to ensure that certain small businesses and

14 labor organizations will not be deterred from seeking

15 review of, or defending against, actions brought

16 against them by the National Labor Relations Board

17 or by the Occupational Safety and Health Adminis18 tration because of the expense involved in securing

19 vindication of their rights;

20 (2) to reduce the disparity in resources and ex21 pertise between certain small businesses and labor or22 ganizations and the National Labor Relations Board

23 and the Occupational Safety and Health Administra24 tion; and
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1 (3) to make the National Labor Relations Board

2 and the Occupational Safety and Health Administra3 tion more accountable for their enforcement actions

4 against certain small businesses and labor organiza5 tions by awarding fees and costs to these entities

6 when they prevail against the National Labor Rela7 tions Board or in proceedings before the Occupational

8 Safety and Health Review Commission.

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

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

11 following) is amended by adding at the end the following

12 new section:

13 ‘‘AWARDS OF ATTORNEYS’ FEES AND COSTS

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

15 employer who, or labor organization that—

16 ‘‘(1) is the prevailing party in an adversary ad17 judication conducted by the Board under this or any

18 other Act; and

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

20 worth of not more than $7,000,000 at the time the ad21 versary adjudication was initiated,

22 shall be awarded fees and other expenses as a prevailing

23 party under section 504 of title 5, United States Code, in

24 accordance with the provisions of that section, but without

25 regard to whether the position of the Board was substan26 tially justified or special circumstances make an award un-
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1 just. For purposes of this subsection, the term ‘adversary

2 adjudication’ has the meaning given that term in section

3 504(b)(1)(C) of title 5, United States Code.

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

5 labor organization that—

6 ‘‘(1) is the prevailing party in a civil action, in7 cluding proceedings for judicial review of agency ac8 tion by the Board, brought by or against the Board,

9 and

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

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

12 civil action was filed,

13 shall be awarded fees and other expenses as a prevailing

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

15 in accordance with the provisions of that section, but with16 out regard to whether the position of the United States was

17 substantially justified or special circumstances make an

18 award unjust. Any appeal of a determination of fees pursu19 ant to subsection (a) or this subsection shall be determined

20 without regard to whether the position of the United States

21 was substantially justified or special circumstances make

22 an award unjust.’’.

23 SEC. 4. APPLICABILITY OF NLRA AMENDMENT.

24 (a) AGENCY PROCEEDINGS.—Subsection (a) of section

25 20 of the National Labor Relations Act, as added by section
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1 3 of this Act, applies to agency proceedings commenced on

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

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

4 20 of the National Labor Relations Act, as added by section

5 3 of this Act, applies to civil actions commenced on or after

6 the date of the enactment of this Act.

7 SEC. 5. AMENDMENT TO OCCUPATIONAL SAFETY AND

8 HEALTH ACT.

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

10 651 and following) is amended by inserting after section

11 12 at the end the following new section:

12 ‘‘AWARDS OF ATTORNEYS’ FEES AND COSTS

13 ‘‘SEC. 12A. (a) ADMINISTRATIVE PROCEEDINGS.—An

14 employer who—

15 ‘‘(1) is the prevailing party in an adversary ad16 judication before the Occupational Safety and Health

17 Review Commission under this or any other Act, and

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

19 worth of not more than $7,000,000 at the time the ad20 versary adjudication was initiated,

21 shall be awarded from the Secretary of Labor fees and other

22 expenses as a prevailing party under section 504 of title

23 5, United States Code, in accordance with the provisions

24 of that section, but without regard to whether the position

25 of the Secretary of Labor was substantially justified or spe26 cial circumstances make an award unjust. For purposes of
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1 this subsection, the term ‘adversary adjudication’ has the

2 meaning given that term in section 504(b)(1)(C) of title 5,

3 United States Code.

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

5 ‘‘(1) is the prevailing party in a civil action, in6 cluding proceedings for judicial review of an action

7 by the Occupational Safety and Health Review Com8 mission, brought by or against the Secretary or the

9 Commission, and

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

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

12 civil action was filed,

13 shall be awarded from the Secretary of Labor fees and other

14 expenses as a prevailing party under section 2412(d) of title

15 28, United States Code, in accordance with the provisions

16 of that section, but without regard to whether the position

17 of the United States was substantially justified or special

18 circumstances make an award unjust. Any appeal of a de19 termination of fees pursuant to subsection (a) or this sub20 section shall be determined without regard to whether the

21 position of the United States was substantially justified or

22 special circumstances make an award unjust.’’.

23 SEC. 6. APPLICABILITY OF OSHA AMENDMENT.

24 (a) AGENCY PROCEEDINGS.—Subsection (a) of section

25 12A of the Occupational Safety and Health Act, as added
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1 by section 5 of this Act, applies to agency proceedings com2 menced on or after the date of the enactment of this Act.

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

4 12A of the Occupational Safety and Health Act, as added

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

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

Union Calendar No. 220

106TH CONGRESS

1ST SESSION H. R. 1987

[Report No. 106–385]

A BILL

To allow the recovery of attorneys’ fees and costs

by certain employers and labor organizations whoare prevailing parties in proceedings broughtagainst them by the National Labor RelationsBoard or by the Occupational Safety and HealthAdministration.

OCTOBER 14, 1999

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union,

and ordered to be printed