[Pages S4915-S4916]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

By Mr. HUTCHINSON:
S. 2085. 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 cases 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; to the Committee on Labor and Human Resources.

the fairness for small business and employees act of 1998

Mr. HUTCHINSON. Mr. President, I am pleased to introduce today an
important piece of legislation which would restore fairness to small
businesses and their employees in the nation's labor laws, and ensure
freedom of choice in the marketplace. ``The Fairness for Small Business
and Employees Act of 1998'' will achieve these goals, and improve
fairness in the National Labor Relations Board (NLRB) process.
Small businesses are facing a serious and devastating problem. They
are the targets of unethical attempts to manipulate the law in order to
injure or destroy the competition. We cannot allow any group with an
ulterior and destructive motive to use coercive governmental power just
to harass small businesses and their workers.
Frivolus charges cost companies significant time, money, and
resources to defend themselves against complaints that have no merit.
Small businesses, in particular, need these resources to secure more
work opportunities, invest in better equipment, and create more jobs.
The bill I am introducing today consists of three separate small
business bills, which I have previously introduced in the Senate: ``The
Truth in Employment Act,'' ``The Fair Hearing Act,'' and ``The Fair
Access to Indemnity and Reimbursement Act (FAIR) Act.''
The first provision, ``The Truth in Employment Act,'' remedies the
unscrupulous practice of ``salting'' by amending the National Labor
Relations Act (NLRA) to make clear that an employer is not required to
hire any person who seeks a job in order to promote interests unrelated
to those of the employer. I would point out that the language in no way
infringes upon any rights or protections otherwise accorded employees
under the NLRA, including the right to organize. This provision would
merely alleviate the legal pressures imposed upon employers to hire
individuals whose overriding purpose for seeking the job is to disrupt
the employer's workplace, or otherwise inflict economic harm designed
to put the employer out of business.
The second section, ``The Fair Hearing Act,'' would create a
statutory right to a hearing for the employer when there is a dispute
regarding the proper bargaining unit of a company with multiple
locations. While the NLRB proposal has been ``tabled'' for now, there
is still nothing in the law to assure fairness for employees.
The last provision, ``The Fair Access to Indemnity and Reimbursement
Act (FAIR) Act,'' would amend the NLRA to provide that a small business
or labor organization which prevails in an action against the NLRB will
automatically be allowed to recoup the attorneys' fees and expenses it
spends defending itself. Small employers often cannot afford the
qualified legal representation necessary to defend themselves against
NLRB charges.
Mr. President, it is time to stop the devastating impact of unfair
labor law enforcement on small businesses and their employees. Small
businesses are truly the backbone of our nation's economy. We must
curtail the anti-competitive attacks, and instead help these companies
devote time, money, and resources toward productivity, growth, and
providing new jobs.
I would urge my fellow Senators to join me in cosponsoring this
legislation, and work to pass ``The Fairness for Small Business and
Employees Act of 1998.'' The survival of America's small businesses
demand that we act.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 2085

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 ``Fairness for Small Business
and Employees Act of 1998''.
TITLE I--TRUTH IN EMPLOYMENT

SEC. 101. FINDINGS.

Congress makes the following findings:
(1) An atmosphere of trust and civility in labor-management
relationships is essential to a productive workplace and a
healthy economy.
(2) The tactic of using professional union organizers and
agents to infiltrate a targeted employer's workplace, a
practice commonly referred to as ``salting'' has evolved into
an aggressive form of harassment not contemplated when the
National Labor Relations Act was enacted and threatens the
balance of rights which is fundamental to our system of
collective 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 inflict economic harm specifically
designed to put nonunion competitors out of business, or to
do both.
(4) While no employer may discriminate against employees
based upon the views of employees concerning collective
bargaining, an employer should have the right to expect job
applicants to be primarily interested in utilizing the skills
of the applicants to further the goals of the business of the
employer.

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 bargaining;
(2) to preserve the rights of workers to organize, or
otherwise engage in concerted activities protected under the
National Labor Relations Act; and

[[Page S4916]]

(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 paragraph (5) the
following flush sentence:

``Nothing in this subsection shall be construed as requiring
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 status: 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, including the right to self-
organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.''.
TITLE II--FAIR HEARING

SEC. 201. FINDINGS.

Congress makes the following findings:
(1) Bargaining unit determinations by their nature 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 appropriateness 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 National
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 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. In making its
determination, the Board shall consider 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.''.
TITLE III--ATTORNEYS FEES

SEC. 301. FINDINGS AND PURPOSE.

(a) Findings.--Congress makes the following findings:
(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 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 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. 302. 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 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 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. 303. APPLICABILITY.

(a) Agency Proceedings.--Subsection (a) of section 20 of
the National Labor Relations Act (as added by section 302)
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 302)
applies to civil actions commenced on or after the date of
the enactment of this Act.

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