Capital Briefing: March 8, 2012

A Publication of the National Association of Manufacturers
Capital Briefing

March 8, 2012


NAM Appeals NLRB Poster Rule Decision . Manufacturers were disappointed on Friday, March 2, when the U.S. District Court issued a split decision regarding the NAM’s lawsuit against the National Labor Relations Board’s (NLRB) “posting requirement” rule.

The NAM’s lawsuit asks the NLRB to set aside promulgation of the rule and alleges that the Board has overstepped its statutory authority and ignored congressional intent.

The court ruled that while the NLRB has the authority to issue the rule, it does not have the authority to “make a blanket advance determination that a failure to post (the notice) will always constitute an unfair labor practice.”

The NAM was the first to sue the NLRB over the legality of the 194-page rule, which would increase regulation on employers by requiring all businesses to hang a notice informing employees of their rights to form and join a union and to strike. The rule is slated to take effect on April 30.

“The facts in this case and the law are on the side of manufacturers, and we believe today’s decision is fundamentally flawed ,” said NAM President and CEO Jay Timmons. “At the heart of this challenge are the Board’s blatant overstepping of its statutory authority and its potential to create hostile work environments where no conflict exists.”

On Monday, March 5, the NAM and the Coalition for a Democratic Workplace (CDW), of which the NAM is a member, announced that the organizations appealed the court’s ruling.

“Manufacturers will appeal this decision on the numerous grounds available in order to reverse this unfair rule. The Board has grossly overstepped its authority, and the NAM will enter every arena necessary, including the courts, to protect manufacturers and rein in this rogue agency,” said Timmons in a statement .

In addition to the appeal, the NAM has filed for an injunction to prevent the posting notice from going into effect before the appellate court’s decision on the district court’s ruling.

Manufacturers remain hopeful that the rule will be revoked and that they can shift their focus back to economic growth and job creation. The NAM has made it clear that the NLRB’s poster rule is just one more burdensome regulation coming out of Washington. As the voice for 12 million men and women who make things in America, the NAM will continue to fight this rule and encourages manufacturers to speak out in the coming months for a fairer and more thoughtful NLRB.

Details: Amanda Wood , (202) 637-3128 and Joe Trauger , (202) 637-3127.

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Hot Topic

Senate Transportation Bill Moves Forward with Key Manufacturing Amendments . The Senate reached a long-awaited agreement to move its transportation bill, Moving Ahead Progress for the 21st Century (S. 1813), this week. Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) hammered out the details late on Wednesday, March 7, and agreed upon 30 amendments that will be under consideration on Thursday, March 8. Final legislation could be concluded next week. In the House, Republican leaders are now pressing ahead with their four-and-a-half year version of a surface transportation authorization following several days of behind-the-scenes twists and turns concerning the future direction of the legislation. In a move to achieve needed support, Republicans have returned to financing the Mass Transit Account from the Highway Trust Fund.

Details: Robyn Boerstling , (202) 637-3178.

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Energy and Resources Policy

Energy Amendments to Transportation Bill Will Benefit Manufacturers . Late Wednesday, March 7, the Senate reached agreement on a package of non-germane amendments to the transportation reauthorization bill. The NAM supports several of the amendments, specifically Sen. Susan Collins’ (R-ME) amendment on Boiler MACT, Sen. David Vitter’s (R-LA) amendment on the Outer Continental Shelf (OCS) and Sen. John Hoeven’s (R-ND) Keystone XL pipeline amendment. All three will benefit manufacturers and our nation’s economy.

The Boiler MACT amendment is essential to prevent the implementation of the Environmental Protection Agency’s (EPA) unachievable and overly burdensome Boiler MACT suite of rules. The language will provide the EPA with the time necessary to redraft the rules as well as extend the compliance time frame from three years to five years. The NAM, along with 113 other stakeholders, sent a letter of support for the inclusion of Sen. Collins’ amendment to the transportation bill and continues to advocate for its passage.

Sen. Vitter’s and Sen. Hoeven’s amendments both aim to increase U.S. access to affordable energy by supporting the development of sources closer to home. Manufacturers have continued to push for the approval of the Keystone XL pipeline project over the last six months, despite strong opposition from the Administration. The pipeline would create 20,000 jobs in the next two years alone and give the U.S. access to reliable and affordable energy. The NAM has strongly supported the pipeline from the beginning and key voted Sen. Hoeven’s amendment. Sen. Vitter’s amendment would significantly expand the OCS areas available for environmentally safe oil/gas development. As energy prices rise, it is becoming more evident that the U.S. needs greater access to both onshore and offshore domestic sources of energy. Manufacturers use one-third of our nation’s energy, making affordable energy a necessity to maintaining and creating jobs. The NAM key voted the amendment to urge support for greater access to offshore areas for development.

Additionally, the NAM sent a key vote letter of opposition to Sen. Ron Wyden’s (D-OR) amendment, which would prohibit the export of any crude oil, or petroleum products derived by crude oil, transported by the Keystone pipeline. Sen. Wyden’s amendment would needlessly impose government dictates on the business operations of the pipeline. The NAM supports the development of markets with minimal government intervention and therefore does not support this attempt to unnecessarily involve the U.S. government in business decisions.

Votes on the amendments included in the package are expected on Thursday, March 8.

Details: Chip Yost , (202) 637-3175 and Alicia Meads , (202) 637-3174.

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Trade Policy

Legislation Levels the Playing Field for Manufacturers . This week, Congress passed NAM-supported legislation clarifying that the Department of Commerce (DOC) has the authority to apply U.S. countervailing duty statutes to imports from non-market economies such as China and Vietnam. This fixed a court decision that, in the absence of legislation, would have forced the DOC to discontinue applying countervailing duties to non-market economies, leaving manufacturers exposed to subsidized imports from China. The Senate approved the legislation by unanimous consent on Monday, March 5, and the House passed the legislation on Tuesday, March 6, by a vote of 370-39. The NAM figured very prominently in the campaign for the vote, with the House Ways and Means Committee posting the NAM’s statement of support on its website and widely promoting the NAM’s key vote letter . The legislation is a major win for manufacturers in terms of removing foreign government distortions and ensuring trade takes place on a market-oriented basis.  

Details: Frank Vargo , (202) 637-3144. 

SEC Indicates More Flexible Conflict Minerals Rule to Come . Securities and Exchange Commission (SEC) Chair Mary Shapiro testified on Tuesday, March 6, before the House Appropriations Subcommittee on Financial Services and General Government. She stated that the conflict minerals rule “will have a phase-in, but I don’t know for how long” to allow due diligence mechanisms to be developed and put in place. This has been a key NAM objective. Shapiro said that the SEC “will try to give latitude and flexibility in some areas” for companies to be able to comply. She did not indicate a specific date when the rule will be completed. This is an important development and an indication that the SEC is trying to take a reasonable approach to implementing the law.

Details: Steve Jacobs , (202) 637-3142.

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Tax Technology and Domestic Economic Policy

NAM Continues to Push for Pension Funding Stabilization . Many companies are finding that artificially low interest rates are significantly increasing the amount they are required to contribute to their pension plans. Since last fall, the NAM has been working with an informal coalition of business associations to educate Congress about the impact of low interest on companies’ pension plan obligations and to obtain adequate funding relief. A provision to ease pension funding obligations on companies that sponsor pension plans is part of the transportation bill pending in the Senate. Under this proposal, plan liabilities would continue to be tied to corporate bond segment rates and, beginning in 2012, any segment rate must be within 15 percent of the average of such segment rates for the 10-year period preceding the current year for purposes of the minimum funding rules. While this relief is a step in the right direction, many companies would not benefit. The business coalition is advocating for a proposal that would require rates to be within 10 percent of the 25-year average of interest rates. We continue to work to improve the proposal currently included in the Senate highway bill.

Details: Carolyn Lee , (202) 637-3079.

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Manufacturers In The Courts

NAM Victory in Employee Benefits Case . The sale of a business raises numerous issues about whether the buyer assumes the obligations of the previous owner, such as union agreements or employee benefits. The Third Circuit ruled last week that a manufacturer did not have an obligation to provide permanent job separation benefits to employees who lost their jobs several years after their company was acquired by that company. The NAM had filed an amicus brief urging the court to recognize that the Employee Retirement Income Security Act (ERISA) encourages plan sponsors to adopt employee benefit plans voluntarily and with flexibility, and to uphold the express terms of a plan that did not include the benefits claimed. The court’s ruling will help restrain this kind of high-stakes litigation. See Shaver v. Siemens Corp . (3d Cir.).

Details: Quentin Riegel , (202) 637-3058.

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NAM in the News

NAM President and CEO Discusses Energy and Jobs at CERA Week Conference . NAM President and CEO Jay Timmons highlighted the critical role of affordable and reliable energy to manufacturing competitiveness, economic growth and job creation at Cambridge Energy Research Associates' (CERA) annual executive conference, CERA Week 2012, in Houston, Texas, on Tuesday, March 6. During his Strategic Session Panel on “Energy and the Economy–The Impact of Energy Investment on Employment,” Timmons emphasized the need for an “all-of-the above” energy strategy that taps all of America’s abundant resources. CERA Week draws more than 2,200 top global energy executives and leading members of the policy, financial and technology communities from 55 countries and is widely recognized as the world’s premier energy conference.

Details: Laura Narvaiz , (202) 637-3104.

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Upcoming Events

NAM Board Chair to Keynote 2012 IndustryWeek Best Plants Conference . NAM Board Chair Mary Andringa will give the opening keynote address, “Let Us Lead: Overcoming the Challenges of Manufacturing in the U.S.,” at the 2012 IndustryWeek Best Plants Conference, April 23-25, 2012, in Indianapolis, Ind. Senior executives from NAM member companies will also be featured. Click here to register!

Details: Laura Narvaiz , (202) 637-3104.

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Get Involved

Every Vote Counts! Check out the NAM Election Center . Now is the time to encourage employees to learn the importance of exercising their right to vote. Visit the NAM Election Center for voter and employer tools, weekly insider analysis and more!

Details: Erik Rosedahl , (202) 637-3054.

NAM’s 2012 Public Affairs Conference: Register Today! Register now for the NAM's 2012 Public Affairs Conference, April 1-3, at the Turnberry Isle Miami in Aventura, Fla. This premier event is a key opportunity for manufacturing leaders to emphasize their priorities on regulations, energy and labor issues in this critical election year. Come prepared to hear valuable perspectives from leaders in the industry and share your own suggestions as we collaborate on a plan for action. Click here for more information and to register.

Details: Dana Hartwig , (202) 637-3116.

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Member Benefits

Save Big by Enrolling Today in the NAM’s FedEx Program . With the combined versatility of FedEx Express® and FedEx Ground®, you have the option of time-definite service to 220 countries and territories around the world or day-definite, cost-effective service to the U.S. and Canada. As a member of the NAM, you get discounts of up to 24 percent on select shipping services and up to 70 percent on FedEx Freight. Enroll today by calling (877) 831-2597 or by going to using passcode PAMSR6 . Enrollment is free, and there are no minimum shipping requirements.

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Questions or comments? Please contact Clare James Johnson at .

President and CEO: Jay Timmons
Senior Vice President, Policy and Government Relations: Aric Newhouse
Senior Vice President, Communications: Erin Streeter


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