Manufacturers In The Courts: November 2011

A Publication of the National Association of Manufacturers
December, 2011

On December 19, a federal judge in Washington heard arguments by the NAM in our suit challenging a National Labor Relations Board rule requiring 6 million employers to post notices about employee rights to unionize. Our attorney, Peter Kirsanow, provided ample justification to show that the Board has overstepped its authority not only in issuing the posting requirement, but also in creating a new unfair labor practice and allowing the normal 6-month statute of limitations to be ignored in workplaces that don't have the notices. The rule is not slated to go into effect before January 31, 2012, and we hope to have a decision from the court before then.

This and other NAM cases with new developments are summarized below.

Decided Cases


Judges act on challenge to EPA Portland cement regulation. On December 9, a 3-judge panel in the U.S. Court of Appeals for the D.C. Circuit sent back to EPA its rule establishing national emissions standards for hazardous air pollutants (NESHAPs) for the Portland cement manufacturing industry. The rule, issued in 2010, involves interpretations of EPA duties and discretion that are relevant to NESHAPs for other industries, such as chemical plants, pulp and paper mills, steel pickling operations and wood furniture manufacturing. Of particular concern is EPA's pollutant-by-pollutant approach, which establishes emissions limits that cannot be met by any existing facility. The SSM Coalition, of which the NAM is a member, filed a brief in May highlighting the special problems inherent in sudden, unexpected failures of process equipment or pollution control technology, which EPA no longer recognizes as special circumstances that should fall outside of emissions standards for normal operations. Although the court remanded the rule to EPA for reconsideration on one issue, it rejected claims involving all the other issues raised in the case. Portland Cement Ass'n, Inc. v. EPA (D.C. Cir.).

Pending Cases


Environmental groups challenge EPA's decision not to reconsider ozone regulation in 2011. The EPA has been reconsidering whether to lower the limits on ozone emissions from stationary sources since early in 2010, and engaged in a lengthy reconsideration process. When it finally withdrew its proposed regulation, various groups sought court review of the decision. The Ozone NAAQS Litigation Group, of which the NAM is a member, moved to intervene in the case and filed on December 1 an opposition to efforts to coordinate or consolidate this case with Mississippi v. EPA , involving the 2008 ozone standard. Their efforts are premature, since an EPA motion to dismiss, if granted, would moot other issues in the case. American Lung Ass'n v. EPA (D.C. Cir.).

"Public trust" litigation over greenhouse gases moves to DC. A federal judge in California has ordered a lawsuit brought by various environmental plaintiffs against the federal government to be transferred to the District of Columbia for resolution. The suit seeks to force federal agencies to impose 6 percent across-the-board reductions in carbon dioxide emissions every year starting in 2013. The NAM has moved to intervene and has urged dismissal of the suit, highlighting the dramatic and devastating effects that the proposed judicial intervention would have on manufacturing processes and investments, production and transportation costs, global competitiveness, domestic job creation and the U.S. economy. Alec L. v. Jackson (D.D.C.).

Labor Law

Oral argument in NAM lawsuit against NLRB. On December 19, federal Judge Amy Jackson heard arguments from the NAM in our lawsuit challenging the National Labor Relations Board's final rule requiring all employers to post a notice of employees' rights. Our suit, joined by other organizations and supported by an amicus brief from House Education and Workforce Committee Chair John Kline (R-MN) and 35 other members of Congress, raises fundamental issues regarding the Board's authority to issue rules that are not in support of its powers to resolve charges and hold workplace elections. The judge was particularly concerned about the Board's decision that makes the failure to post the required notices an unfair labor practice, and allowing the Board to ignore the statute of limitations in such cases. At the end of the hearing, the judge urged the NLRB to further delay implementation of the rule until she can issue a decision in this litigation. For now, the rule is scheduled to go into effect on January 31, 2012. National Association of Manufacturers v. NLRB (D.D.C.).

Quentin Riegel
Vice President, Litigation & Deputy General Counsel
(202) 637-3058 "¢

National Association of Manufacturers
1331 Pennsylvania Avenue, NW Suite 600
Washington, DC 20004-1790

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