IB
Union Calendar No. 259
105TH CONGRESS
2D SESSION
H. R. 3246
[Report No. 105–453]
To assist small businesses and labor organizations in defending themselves
against government bureaucracy; to ensure that employees entitled to
reinstatement get their jobs back quickly; to protect the right of employ-
ers 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 HOUSE OF REPRESENTATIVES
FEBRUARY 24, 1998
Mr. GOODLING (for himself, Mr. FAWELL, and Mr. TALENT) introduced the
following bill; which was referred to the Committee on Education and the
Workforce
MARCH 18, 1998
Additional 
sponsors: 
Mr. 
CUNNINGHAM, 
Mr. 
KNOLLENBERG, 
Mr.
SNOWBARGER, Mr. HEFLEY, Mr. MCINTOSH, Mr. PAUL, Mr. STUMP, Mr.
WELDON of Florida, Mr. BALLENGER, Mr. BARRETT of Nebraska, Mr.
HOEKSTRA, Mr. MCKEON, Mr. SAM JOHNSON of Texas, Mr. RIGGS, Mr.
GRAHAM, Mr. SOUDER, Mr. NORWOOD, Mr. BOB SCHAFFER of Colorado,
Mr. PETERSON of Pennsylvania, Mr. UPTON, Mr. HILLEARY, Mr. SCAR-
BOROUGH, Mr. ENSIGN, Mr. HALL of Texas, Mr. WATKINS, Mr. DEAL
of Georgia, and Mr. STENHOLM
MARCH 18, 1998
Committed to the Committee of the Whole House on the State of the Union
and ordered to be printed
A BILL
To assist small businesses and labor organizations in defend-
ing themselves against government bureaucracy; to en-
sure that employees entitled to reinstatement get their
jobs back quickly; to protect the right of employers to
have a hearing to present their case in certain represen-
tation cases; and to prevent the use of the National
Labor Relations Act for the purpose of disrupting or
inflicting economic harm on employers.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Fairness for Small
Business and Employees Act of 1998’’.
TITLE I—TRUTH IN
EMPLOYMENT
SEC. 101. FINDINGS.
Congress finds that:
(1) An atmosphere of trust and civility in labor-
management relationships is essential to a produc-
tive workplace and a healthy economy.
(2) The tactic of using professional union orga-
nizers and agents to infiltrate a targeted employer’s
workplace, a practice commonly referred to as ‘‘salt-
ing’’ has evolved into an aggressive form of harass-
ment not contemplated when the National Labor Re-
lations Act was enacted and threatens the balance of
rights which is fundamental to our system of collec-
tive bargaining.
(3) Increasingly, union organizers are seeking
employment with nonunion employers not because of
a desire to work for such employers but primarily to
organize the employees of such employers or to in-
flict economic harm specifically designed to put non-
union competitors out of business, or to do both.
(4) While no employer may discriminate against
employees based upon the views of employees con-
cerning collective bargaining, an employer should
have the right to expect job applicants to be pri-
marily interested in utilizing the skills of the appli-
cants to further the goals of the business of the em-
ployer.
SEC. 102. PURPOSES.
The purposes of this title are—
(1) to preserve the balance of rights between
employers, employees, and labor organizations which
is fundamental to our system of collective bargain-
ing;
(2) to preserve the rights of workers to orga-
nize, or otherwise engage in concerted activities pro-
tected under the National Labor Relations Act; and
(3) to alleviate pressure on employers to hire
individuals who seek or gain employment in order to
disrupt the workplace of the employer or otherwise
inflict economic harm designed to put the employer
out of business.
SEC. 103. PROTECTION OF EMPLOYER RIGHTS.
Section 8(a) of the National Labor Relations Act (29
U.S.C. 158(a)) is amended by adding after and below
paragraph (5) the following:
‘‘Nothing in this subsection shall be construed as requir-
ing an employer to employ any person who is not a bona
fide employee applicant, in that such person seeks or has
sought employment with the employer with the primary
purpose of furthering another employment or agency sta-
tus: Provided, That this sentence shall not affect the rights
and responsibilities under this Act of any employee who
is or was a bona fide employee applicant.’’.
TITLE II—FAIR HEARING
SEC. 201. FINDINGS.
The Congress finds the following:
(1) Bargaining unit determinations by their na-
ture require the type of fact-specific analysis that
only case-by-case adjudication allows.
(2) The National Labor Relations Board has
for decades held hearings to determine the appro-
priateness of certifying a single location bargaining
unit.
(3) The imprecision of a blanket rule limiting
the factors considered material to determining the
appropriateness of a single location bargaining unit
detracts from the National Labor Relations Act’s
goal of promoting stability in labor relations.
SEC. 202. PURPOSE.
The purpose of this title is to ensure that the Na-
tional Labor Relations Board conducts a hearing process
and specific analysis of whether or not a single location
bargaining unit is appropriate, given all of the relevant
facts and circumstances of a particular case.
SEC. 203. REPRESENTATIVES AND ELECTIONS.
Section 9(c) of the National Labor Relations Act (29
U.S.C. 159(c)) is amended by adding at the end the fol-
lowing:
‘‘(6) If a petition for an election requests the Board
to certify a unit which includes the employees employed
at one or more facilities of a multi-facility employer, and
in the absence of an agreement by the parties (stipulation
for certification upon consent election or agreement for
consent election) regarding the appropriateness of the bar-
gaining unit at issue for purposes of subsection (b), the
Board shall provide for a hearing upon due notice to deter-
mine the appropriateness of the bargaining unit. In mak-
ing its determination, the Board shall consider functional
integration, centralized control, common skills, functions
and working conditions, permanent and temporary em-
ployee interchange, geographical separation, local auton-
omy, the number of employees, bargaining history, and
such other factors as the Board considers appropriate.’’.
TITLE III—JUSTICE ON TIME
SEC. 301. FINDINGS.
The Congress finds the following:
(1) An employee has a right under the National
Labor Relations Act to be free from discrimination
with regard to hire or tenure of employment or any
term or condition of employment to encourage or
discourage membership in any labor organization.
The Congress, the National Labor Relations Board,
and the courts have recognized that the discharge of
an employee to encourage or discourage union mem-
bership has a particularly chilling effect on the exer-
cise of rights provided under section 7.
(2) Although an employee who has been dis-
charged because of support or lack of support for a
labor organization has a right to be reinstated to the
previously held position with backpay, reinstatement
is often ordered months and even years after the ini-
SEC. 303. TIMELY RESOLUTION.
Section 10(m) of the National Labor Relations Act
is amended by adding at the end the following new sen-
tence: ‘‘Whenever a complaint is issued as provided in sub-
section (b) upon a charge that any person has engaged
in or is engaging in an unfair labor practice within the
meaning of subsection (a)(3) or (b)(2) of section 8 involv-
ing an unlawful discharge, the Board shall state its find-
ings of fact and issue and cause to be served on such per-
son an order requiring such person to cease and desist
from such unfair labor practice and to take such affirma-
tive action, including reinstatement of an employee with
or without backpay, as will effectuate the policies of this
Act, or shall state its findings of fact and issue an order
dismissing the said complaint, not later than 365 days
after the filing of the unfair labor practice charge with
the Board except in cases of extreme complexity. The
Board shall submit a report annually to the Committee
on Education and the Workforce of the House of Rep-
resentatives and the Committee on Labor and Human Re-
sources of the Senate regarding any cases pending for
more than 1 year, including an explanation of the factors
contributing to such a delay and recommendations for
prompt resolution of such cases.’’.
SEC. 304. REGULATIONS.
The Board may issue such regulations as are nec-
essary to carry out the purposes of this title.
TITLE IV—ATTORNEYS FEES
SEC. 401. FINDINGS AND PURPOSE.
(a) FINDINGS.—The Congress finds as follows:
(1) Certain small businesses and labor organi-
zations are at a great disadvantage in terms of ex-
pertise and resources when facing actions brought by
the National Labor Relations Board.
(2) The attempt to ‘‘level the playing field’’ for
small businesses and labor organizations by means
of the Equal Access to Justice Act has proven inef-
fective and has been underutilized by these small en-
tities in their actions before the National Labor Re-
lations Board.
(3) The greater expertise and resources of the
National Labor Relations Board as compared with
those of small businesses and labor organizations ne-
cessitate a standard that awards fees and costs to
certain small entities when they prevail against the
National Labor Relations Board.
(b) PURPOSE.—It is the purpose of this title—
(1) to ensure that certain small businesses and
labor organizations will not be deterred from seeking
review of, or defending against, actions brought
against them by the National Labor Relations Board
because of the expense involved in securing vindica-
tion of their rights;
(2) to reduce the disparity in resources and ex-
pertise between certain small businesses and labor
organizations and the National Labor Relations
Board; and
(3) to make the National Labor Relations
Board more accountable for its enforcement actions
against certain small businesses and labor organiza-
tions by awarding fees and costs to these entities
when they prevail against the National Labor Rela-
tions Board.
SEC. 402. AMENDMENT TO NATIONAL LABOR RELATIONS
ACT.
The National Labor Relations Act (29 U.S.C. 151
and following) is amended by adding at the end the follow-
ing new section:
‘‘AWARDS OF ATTORNEYS’ FEES AND COSTS
‘‘SEC. 20. (a) ADMINISTRATIVE PROCEEDINGS.—An
employer who, or a labor organization that—
‘‘(1) is the prevailing party in an adversary ad-
judication conducted by the Board under this or any
other Act, and
‘‘(2) had not more than 100 employees and a
net worth of not more than $1,400,000 at the time
the adversary adjudication was initiated,
shall be awarded fees and other expenses as a prevailing
party under section 504 of title 5, United States Code,
in accordance with the provisions of that section, but with-
out regard to whether the position of the Board was sub-
stantially justified or special circumstances make an
award unjust. For purposes of this subsection, the term
‘adversary adjudication’ has the meaning given that term
in section 504(b)(1)(C) of title 5, United States Code.
‘‘(b) COURT PROCEEDINGS.—An employer who, or a
labor organization that—
‘‘(1) is the prevailing party in a civil action, in-
cluding proceedings for judicial review of agency ac-
tion by the Board, brought by or against the Board,
and
‘‘(2) had not more than 100 employees and a
net worth of not more than $1,400,000 at the time
the civil action was filed,
shall be awarded fees and other expenses as a prevailing
party under section 2412(d) of title 28, United States
Code, in accordance with the provisions of that section,
but without regard to whether the position of the United
States was substantially justified or special circumstances
make an award unjust. Any appeal of a determination of
fees pursuant to subsection (a) or this subsection shall be
determined without regard to whether the position of the
United States was substantially justified or special cir-
cumstances make an award unjust.’’.
SEC. 403. APPLICABILITY.
(a) AGENCY PROCEEDINGS.—Subsection (a) of sec-
tion 20 of the National Labor Relations Act, as added by
section 402 of this Act, applies to agency proceedings com-
menced on or after the date of the enactment of this Act.
(b) COURT PROCEEDINGS.—Subsection (b) of section
20 of the National Labor Relations Act, as added by sec-
tion 402 of this Act, applies to civil actions commenced
on or after the date of the enactment of this Act.
Union Calendar No. 259
105TH CONGRESS
2D SESSION
H. R. 3246
[Report No. 105–453]
A BILL
To assist small businesses and labor organizations
in defending themselves against government bu-
reaucracy; to ensure that employees entitled to
reinstatement get their jobs back quickly; to pro-
tect 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 Re-
lations Act for the purpose of disrupting or in-
flicting economic harm on employers.
MARCH 18, 1998
Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed