Capital Briefing: December 22, 2011

The NAM continued its fight against the overreaching National Labor Relations Board (NLRB) on Monday, December 19, presenting oral arguments in its lawsuit against the “posting requirement” rule the agency issued in August.

Following the hearing, Judge Amy Berman Jackson encouraged NLRB attorneys to delay implementation of the rule until the court reaches an opinion. The rule is scheduled to take effect on January 31, 2012.

The 194-page posting requirement rule would increase regulation on employers by forcing them to hang a poster informing employees of their rights to organize and strike. The lawsuit, which is pending in the U.S. District Court for the District of Columbia, asks the NLRB to set aside promulgation of the rule and alleges that the Board has overstepped its statutory authority and ignored congressional intent.

Other trade groups have followed the NAM’s lead in challenging the NLRB in the courts. In addition, House Education and Workforce Committee Chair John Kline (R-MN) and 35 other members of Congress have filed an amicus brief with the federal court in support of the NAM’s lawsuit.

The NAM has been at the forefront of challenging the NLRB on several issues and has long advocated for a fairer NLRB.

“The NAM is a strong supporter for a common-sense, thoughtful NLRB—but the policies offered by the current Board have been anything but,” said NAM President and CEO Jay Timmons. “We hope the court will take the first step in rebuking the NLRB’s overreach and fostering a positive environment for manufacturers and their employees.”

An NAM survey of manufacturers shows that nearly 70 percent say the NLRB’s actions would make it harder for them to create jobs. And the poster rule is just one example of the NLRB’s activist agenda. The agency’s “ambush election” rule would give employers as few as 10 days to communicate with their employees between the time they learn that a union is trying to organize the workforce and the election, and its decision in the Specialty Healthcare case would allow union organizers to set up multiple small bargaining units, or “micro-unions,” in the workplace.

These actions by the NLRB compound the uncertainty coming out of Washington. Manufacturers need policies that will encourage growth and drive investment. An overreaching NLRB is not the answer. Americans need jobs, not restrictive rules and regulations.

The NAM remains committed to defending the rights of manufacturers and their employees and fighting changes to our labor law system that undermine employer-employee relations and hinder economic growth and job creation. Details: Amanda Wood, (202) 637-3128 and Joe Trauger, (202) 637-3127.

{Back to top}

NLRB Finalizes Activist Ambush Election Rule. On Wednesday, December 21, the National Labor Relations Board (NLRB) finalized its “ambush election” rule, originally proposed in June. A copy of the final rule can be found here. The Coalition for a Democratic Workplace, of which the NAM is a leading member, immediately filed a legal challenge to this rule in federal court in Washington, D.C. As anticipated, the final rule, which will go into effect on April 30, 2012, is similar to what the Board discussed in a public meeting on November 30. While scaled down from the original rule, the final rule remains harmful to employers. Specifically, the rule would alter what types of pre-election hearings can be held (such as who is eligible to vote in an election) and what types of appeals can be filed prior to an election. If certain matters can be discussed only after an election is held, these matters will often become moot, leaving the employer with no voice to be heard prior to election. The rule also appears to shorten the time between a petition for certification being filed and the election being held. If most pre-election matters are deferred until after the election, the election itself could take place in a very quick time frame. The NAM is exploring all options available to challenge this rule. Details: Amanda Wood, (202) 637-3128 and Joe Trauger, (202) 637-3127.

{Back to top}