Capital Briefing: September 1, 2011

A Publication of the National Association of Manufacturers

September 1, 2011

Focus: NLRB Decisions Will Hamstring Employer and Employee Rights and Kill Jobs

The National Labor Relations Board (NLRB) issued several case decisions this week that will have far-reaching negative impacts on employees, employers and job creators. Manufacturers are discouraged by the agency's actions , which limit employees' rights to challenge the creation of a union in their workplace and demolish long-standing precedent by allowing as few as two people to form a union.

On Tuesday, August 30, the NLRB issued a 3-to-1 decision in Lamons Gasket Co . that overrules the 2007 Dana Corp. decision. Dana Corp . permitted employees or rival unions to challenge an employer's recognition of a union based on card check-as long as the challenge was supported by 30 percent of the employees in the bargaining unit and was filed within 45 days of employees being officially notified of the employer's voluntary recognition of a union.

With Lamons Gasket Co ., the Board ratifies the beliefs of its most controversial member, Craig Becker, that employees do not need and should not have the right to challenge the recognition of a union-even if a majority of employees do not want to be represented.

The NAM filed an amicus brief arguing that Dana Corp . should not be overruled. The brief states, "In nearly 25 percent of the 54 Dana elections conducted by the Board, employees exercising free choice voted to reject the employer's initial, voluntary recognition."

The Lamons Gasket Co . ruling, however, takes federal law back to pre- Dana Corp . precedent, barring an election petition for a "reasonable period" of time after an employer's voluntary recognition of a union based on a showing of a majority of employees. The Board defines this "reasonable period of time" as a range from "six months to one year, depending on the circumstances."

In another 3-to-1 decision in Specialty Healthcare and Rehabilitation Center of Mobile , the Board found that certified nursing assistants at a nursing home "may comprise an appropriate unit without including all other nonprofessional employees." The Board states that "where an employer argues that a proposed unit inappropriately excludes certain employees, the employer will be required to prove that the excluded employees share 'an overwhelming community of interest' with employees in the proposed unit."

On March 8, the Coalition for a Democratic Workplace, of which the NAM is a member, filed an amicus brief focusing on whether employees performing the same job at a single facility are presumptively appropriate as the bargaining unit.

The decision overturns a previous law established in the 1991 Board decision, Park Manor , which adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers and other non-acute health care facilities. As a result of Specialty Healthcare , employees at such facilities will now be subject to the same "community-of-interest" standard the Board has traditionally applied at other workplaces.

Specialty Healthcare represents the most dramatic change in labor law in 50 years. It means that as few as two people can comprise a collective bargaining unit, potentially disrupting workplaces, hindering job creation and putting jobs at risk. These "micro-unions" could cripple an employer's ability to manage operations in an effective way. They could result in a manufacturing facility with separate unions representing custodial staff, assemblers, fitters, fabricators, maintenance and others. Each of those bargaining units would have the capacity to shut down production. Employers are justifiably worried about having such a model foisted upon them by an unelected board.

"These decisions represent a sea change in employee-employer relations, and manufacturers are prepared to pursue all avenues to restore the balance between employees and employers in the workplace," said NAM President and CEO Jay Timmons. The NAM is committed to defending the rights of manufacturers and will continue to investigate what can be done to stop the NLRB's agenda through Congress and the judicial system. Details : Joe Trauger , (202) 637-3127.

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Top Story

Manufacturers Urge Administration to Approve Keystone Pipeline. The NAM is urging manufacturers to voice their support for final approval of the Keystone XL Pipeline and will send draft comments and testimony to members in the near future. On Friday, August 26, the U.S. State Department released its final Environmental Impact Statement (EIS) for the proposed pipeline. Keystone XL is a $7 billion expansion project that will connect Canadian crude oil-both from traditional deposits and oil sands-with refining centers in the United States. In addition to providing increased energy security for the United States, it will also create 20,000 manufacturing and construction jobs. Manufacturers were encouraged by the State Department's conclusion that the pipeline will have limited adverse environmental impacts. Before the State Department can issue the final permit, it must conduct public hearings and a comment period. The public hearings will take place in Texas, Kansas, Montana, Nebraska, South Dakota, Oklahoma and Washington, D.C. Details : Alicia Meads , (202) 637-3174 and Chip Yost , (202) 637-3175.

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Energy & Resources Policy

Sign the NAM's Letter to Delay the EPA's Overreaching Boiler MACT Regulations . This July, the EPA Regulatory Relief Act of 2011 (H.R. 2250/S. 1392) was introduced in the House and Senate. The bill would give the Environmental Protection Agency (EPA) the direction it needs to rewrite the Boiler MACT rules in a way that protects both jobs and the environment and would reduce the uncertainty manufacturers face. It would: 1) stay the Boiler MACT rules; 2) give the EPA at least 15 months to revise the rules; 3) provide at least five years for facilities to comply; 4) direct the EPA to adopt the 2000 commercial and industrial solid waste incineration (CISWI) definitions; and 5) set MACT limits based on what boilers can actually achieve across a range of conditions. Despite some improvements to the initially proposed Boiler MACT rules, the final rule remains unachievable for real-world boilers and will cost manufacturers over $14 billion. Please click here to sign onto this letter of support for H.R. 2250 and S. 1392. The deadline is Friday, September 2 . For more information, visit www.NoNewRegs.org . Details : Alicia Meads , (202) 637-3174 and Mahta Mahdavi , (202) 637-3176.

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Infrastructure, Legal & Regulatory Policy

President Calls for Quick Bipartisan Action on Key Transportation Extensions. Following an address on Wednesday, August 31, President Obama called for Congress to pass extensions of the surface transportation authorization that expires on September 30 and the Federal Aviation Administration (FAA) authorization that expires on September 16. Manufacturers welcome President Obama's engagement and agree that Congress must pass both extensions. These critical national infrastructure programs require certainty and adequate funding levels to ensure the safety of the public, economic growth and jobs. The President also announced that federal agencies will be tasked to expedite environmental and permitting reviews of high-priority infrastructure projects that will create and sustain jobs now. House Transportation and Infrastructure Committee Chairman John Mica (R-FL) responded that Republicans will work with the President and Democrats but added caveats that he will agree to one additional highway program extension and must consult with his leadership before moving forward on a 22nd FAA extension. Details : Robyn Boerstling , (202) 637-3178.

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Manufacturers in the Courts

Does the Time Clock Start in the Locker Room? A case now on appeal to the Seventh Circuit considers a collective bargaining agreement that excluded clothes-changing activities from the work day. Unfortunately, the trial judge left open the possibility that changing clothes could be a principal activity that starts the compensable work day. The NAM filed an amicus brief on Monday, August 29, showing how Congress has repeatedly emphasized the sanctity of the collective bargaining process, and that it adopted the Portal-to-Portal Act to rein in litigation that was forcing employers to pay wages they had not bargained for relating to clothes-changing activities. The Portal-to-Portal Act was enacted in part to keep the Department of Labor from stepping in and changing expectations, potentially resulting in the award of many years of back pay. The NAM concluded that, in a time of economic crisis, courts should not be making it more expensive for employers to maintain their present workforces. See Sandifer v. United States Steel Corp. (7th Cir.). Details : Quentin Riegel , (202) 637-3058.

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Get Involved

Call Your Lawmakers Before They Return to Washington. Congress returns to Washington next week following its August recess, and lawmakers must immediately get to work to put the country back on track. It is not too late to contact them and make your voice heard. Taking the first step is simple: visit the NAM's August Recess Action Center to search by zip code and address and find your elected officials' office phone numbers. When you call, tell your members of Congress how inaction on free trade agreements, regulatory overreach and tax reform will affect your company and your family. Tell them that Manufacturing Means Jobs! Please take a few moments today to call your elected officials and urge them to help create an environment that allows manufacturers in America to compete in the global marketplace and create jobs. Details : Colleen Vivori , (202) 637-3116.

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Questions or comments? Please contact Clare James Johnson at cjohnson@nam.org .


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