[Pages S1073-S1075]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

By Mr. HUTCHINSON:
S. 1684. 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;
to the Committee on Labor and Human Resources.

the fair access to indemnity and reimbursement act

By Mr. HUTCHINSON:
S. 1685. A bill to amend the National Labor Relations Act to require
the National Labor Relations Board to resolve unfair labor practice
complaints in a timely manner; to the Committee on Labor and Human
Resources.

the justice on time act of 1998

By Mr. HUTCHINSON (for himself, Mr. DeWine, and Mr. Mack):
S. 1686. A bill to amend the National Labor Relations Act to
determine the appropriateness of certain bargaining units in the
absence of a stipulation or consent; to the Committee on Labor and
Human Resources.

the fair hearing act

Mr. HUTCHINSON. Mr. President, our economy is doing well. Over 13
million new jobs have been created in the last 5 years and unemployment
is at a 24-year low. The engine behind this growth is America's
entrepreneurs. Last year, over 840,000 new small businesses were
started in this country adding to the 22 million small businesses
already in existence in the United States.

Not only are new jobs being created at an astounding rate, but job
satisfaction levels are on the rise as well. While these statistics are
good news for America, they are a bitter pill for America's labor
unions. Because of the strong employment conditions, unions are finding
it increasingly difficult to identify workplaces that feel they need
labor representation. In short, union membership is in a free-fall.
Last month, the Bureau of Labor Statistics reported that unions lost
159,000 members in 1997 alone. Union membership has declined from 14.5
percent of the work force to 14.1 percent this year. This drop in
membership is hitting the unions where it hurts most, their
pocketbooks. Unfortunately, rather than fighting back with legitimate,
honest organizing tactics, unions are lashing out against America's
merit shop employers with tactics aimed at undermining their very
existence.
Mr. President, I am always reluctant to propose legislation that
interferes in

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private matters, particularly matters that deal with contractual
relationships between employers and employees. However, in this case,
the Federal Government, through the National Labor Relations Board, is
a coconspirator in this union attack on small businesses.
For example, Little Rock Electrical Contractors, which is a merit
shop contractor in my home State that hires both union and nonunion
labor, has found itself on the barrel end of several unfair labor cases
filed by workers the company has no record of ever even having hired or
even interviewed.
Last year, George Smith of Little Rock Electrical Contractors
testified before the Senate Labor and Human Resources Committee, on
which I serve, that they often settle these meritless cases simply
because of the cost of litigating them through the NLRB and the courts,
which is a very, very expensive process indeed.
Mr. Smith said that his business cannot compete against the flood of
cases that are filed against them and which are being litigated by
Government lawyers working for the NLRB. Rather than fight, they simply
pay. In the end, this not only hurts the employer but it hurts
employees and consumers who bear the brunt of this cost in lower wages
and in higher prices.
Mr. President, unfortunately, this case is not unique. Both the House
and Senate Labor Committees have been flooded with testimony showing
similar efforts by unions across the country to harass and intimidate
employers whose employees have chosen not to organize. Interestingly,
this practice, which is known as ``salting,'' rarely, if ever, results
in a formal petition to organize. In fact, the true nature and intent
of salting was best explained by Mr. Gene Ellis, an IBEW organizer, who
wrote in the Maine Labor Record the following words. And I quote:

We've had members get monetary awards in the thousands of
dollars just for applying for a job, just a couple hours of
effort. At this writing, I'm pleased to announce that five of
our members will be sharing in $32,000 of BE&K's profits. All
for just filling out an application.

On February 13, 1997, I introduced legislation that addresses the
issue of salting. This legislation--called the Truth In Employment Act
of 1997--would allow employers to reject an applicant that has no
intention of actually working for the company but is instead solely
interested in disrupting the workplace and harassing their employer and
fellow employees.
Today, I am introducing three new bills which seek to further protect
small businesses from stern and intimidating union practices by forcing
Government bureaucrats to seriously evaluate the actions they take
against America's small businesses and requiring that the NLRB
expeditiously resolve cases that are brought before it.

First, I am introducing the Fair Access to Indemnity and
Reimbursement Act. The FAIR Act will provide small businesses the
incentive they need to fight back against meritless claims brought
against them with the assistance of the NLRB and its team of lawyers.
Simply put, the FAIR Act will allow small businesses to recoup the
attorney's fees and expenses it spends defending itself should they
prevail. So if a charge is brought against them, and they defend
themselves and prevail, they will receive their attorney's fees. This
will put some disincentive into the current practice of filing
absolutely meritless cases in the hopes that they will tie up and
disrupt the workplace and eventually destroy the employer. It ensures
that those with modest means, the small company, the small business man
or woman, will be able to fight frivolous actions brought before the
NLRB--making the agency's bureaucrats closely consider each and every
case before they initiate litigation.
Mr. President, passage of the FAIR Act would be welcome news to small
businesses across America. In particular, John Gaylor of Gaylor
Electric from Indiana, who budgets $200,000 each year to combat
frivolous labor charges brought against him, would finally be able to
recoup a large portion of these annual costs and would be able to
reinvest this money into his business and into the welfare of his
employees.
Mr. President, the second bill that I am introducing is the Justice
on Time Act. This legislation eliminates another obstacle small
business must cross before they can consider fighting meritless cases
brought before the NLRB. It currently takes the National Labor
Relations Board an average of 546 days--546 days--to process unfair
labor claims. This delay compounds the back pay rewards that businesses
must pay if they are found to be in violation of the National Labor
Relations Act.
Furthermore, it delays the reinstatement of employees who are in
limbo waiting to learn if they will get their jobs back. The Justice on
Time Act is reasonable legislation that will force the NLRB to resolve
unfair labor cases involving the dismissal of an employee within 1
year. And 1 year ought to be long enough.
Finally, Mr. President, I am introducing the Fair Hearing Act which
will require the NLRB to conduct a hearing to determine the appropriate
bargaining unit in cases where labor organizations attempt to organize
employees at one or more facilities of a multifacility employer.
The NLRB, at the behest I believe of organized labor, has recently
considered regulations that would end the NLRB's decade-long practice
of resolving disputes over what constitutes an appropriate bargaining
unit in an open hearing. While the NLRB recently pulled its proposed
rule ending the use of hearings, and replacing it with a fairly broad
set of ``union favoring'' criteria, the Fair Hearing Act would ensure
that this practice is never again jeopardized by bureaucrats at the
National Labor Relations Board.
Mr. President, these three bills simply seek to level the playing
field on which organized labor and small employers compete. The
strength of this country rests on the freedom of individuals to pursue
their dreams, to pursue their ideas and risk their capital to open and
operate a small business. With a level playing field, these dreams can
continue to be met and can continue to be realized.
The three bills that I am introducing today will help ensure that the
efforts of small business men and women across this country are not
hindered by intrusive and misused Government regulations. I ask my
colleagues for their consideration and support of this legislation.
Mr. President, I ask unanimous consent that the texts of the bills be
printed in the Record.
There being no objection, the bills were ordered to be printed in the
Record, as follows:

S. 1684

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Fair Access to Indemnity and
Reimbursement Act''.

SEC. 2. FINDINGS AND PURPOSE.

(a) Findings.--The Congress finds as follows:
(1) Certain small businesses and labor organizations are at
a great disadvantage in terms of expertise 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 ineffective and has been
underutilized by these small entities in their actions before
the National Labor Relations Board.
(3) The greater expertise and resources of the National
Labor Relations Board as compared with those of small
businesses and labor organizations necessitate 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 Act--
(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 vindication of their rights;
(2) to reduce the disparity in resources and expertise
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 organizations by awarding fees and costs
to these entities when they prevail against the National
Labor Relations Board.

SEC. 3. AMENDMENT TO NATIONAL LABOR RELATIONS ACT.

The National Labor Relations Act (29 U.S.C. 151 et seq.) is
amended by adding at the end the following:

``awards of attorneys' fees and costs

``Sec. 20. (a) Administrative Proceedings.--An employer
who, or a labor organization that--

[[Page S1075]]

``(1) is the prevailing party in an adversary adjudication
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 without
regard to whether the position of the Board was substantially
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, including
proceedings for judicial review of agency action 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 circumstances make an
award unjust.''.

SEC. 4. APPLICABILITY.

(a) Agency Proceedings.--Subsection (a) of section 20 of
the National Labor Relations Act, as added by section 3 of
this Act, applies to agency proceedings commenced 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 section 3 of this
Act, applies to civil actions commenced on or after the date
of the enactment of this Act.
____

S. 1685

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Justice on Time Act of
1998''.

SEC. 2. FINDINGS.

The Congress finds the following:
(1) An employee has a right under the National Labor
Relations Act (29 U.S.C. 151 et seq.) 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 membership has a particularly
chilling effect on the exercise of rights provided under
section 7 of such Act.
(2) Although an employee who has been discharged 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 initial discharge due to the lengthy delays in the
processing of unfair labor practice charges by the National
Labor Relations Board and to the several layers of appeal
under the National Labor Relations Act.
(3) In order to minimize the chilling effect on the
exercise of rights provided under section 7 of the National
Labor Relations Act (29 U.S.C. 157) caused by an unlawful
discharge and to maximize the effectiveness of the remedies
for unlawful discrimination under the National Labor
Relations Act, the National Labor Relations Board should
endeavor to resolve in a timely manner all unfair labor
practice complaints alleging that an employee has been
unlawfully discharged to encourage or discourage membership
in a labor organization.
(4) Expeditious resolution of such complaints would benefit
all parties not only by ensuring swift justice, but also by
reducing the costs of litigation and backpay awards.

SEC. 3. PURPOSE.

The purpose of this Act is to ensure that the National
Labor Relations Board resolves in a timely manner all unfair
labor practice complaints alleging that an employee has been
unlawfully discharged to encourage or discourage membership
in a labor organization.

SEC. 4. TIMELY RESOLUTION.

Section 10(m) of the National Labor Relations Act (29
U.S.C. 160) is amended by adding at the end the following:
``Whenever a complaint is issued as provided in subsection
(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 involving an
unlawful discharge, the Board shall state its findings of
fact and issue and cause to be served on such person an order
requiring such person to cease and desist from such unfair
labor practice and to take such affirmative 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.''.

SEC. 5. REGULATIONS.

The National Labor Relation Board may issue such
regulations as are necessary to carry out the purposes of
this Act.
____

S. 1686

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Fair Hearing Act''.

SEC. 2. 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 following:
``(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 bargaining
unit at issue for purposes of subsection (b), the Board shall
provide for a hearing upon due notice to determine the
appropriateness of the bargaining unit. The Board shall
consider factors, including functional integration,
centralized control, common skills, functions and working
conditions, permanent and temporary employee interchange,
geographical separation, local autonomy, the number of
employees, bargaining history, and such other factors as the
Board considers appropriate.''.
______