A Publication of the National Association of Manufacturers
The National Labor Relations Board made big news for manufacturers yesterday when it released several case decisions involving card-check union recognition procedures and defining the universe of employees that can be counted as a bargaining unit.
Unfortunately, the news was not good. By 3-1 majorities (including the participation of the former chairman of the NLRB, whose term expired the day after these decisions were finalized), the Board's decisions (1) encourage unions to organize small units within a workplace, (2) make it extremely difficult for employers to include other workers with similar jobs in those units, (3) prohibit employees from challenging a union that is recognized pursuant to card-check authorizations for a minimum of 6 months and a maximum of 4 years, and (4) eliminate official Board notices to employees of their right to change their minds about union representation.
Summaries of these and other cases in which the NAM is participating follow.
NAM supports EPA's delay of boiler and incinerator rules. When EPA issued its controversial boiler and incinerator rules in March, the NAM and other groups challenged them in court. In May, EPA found that the public did not have a sufficient opportunity to comment on certain parts of the rules, and that multiple, diverse industries would need to begin to make irreversible compliance investments soon. It therefore postponed the effective date of the rules until it completes a reconsideration process, or until judicial review is complete. The Sierra Club sued EPA over this decision in July, and the NAM and other business groups moved to intervene in the suit to defend EPA's delay during the reconsideration process. Changes to the incinerator rule will be proposed in September and changes to the boiler rule will be proposed in November. Sierra Club v. EPA (D.C. Cir.).
Ozone challenge on hold. Despite efforts by an NAM coalition to resolve our legal challenge of EPA's 2008 ozone regulation, the U.S. Court of Appeals for the District of Columbia ruled this month that the case will continue to be held in abeyance while EPA is reconsidering the regulation. The NAM filed comments last year on the new proposal, and EPA said it planned to act "shortly." Expect further litigation on the old limit, the new limit, or both. On August 10, the NAM filed an Opposition to the Motion for Order Directing EPA to Complete Reconsideration. Mississippi v. EPA (D.C. Cir.).
Challenging EPA's disapproval of Texas State Implementation Plan (SIP) because of greenhouse gases. The NAM is part of the SIP/FIP Advocacy Group, which comprises various national trade associations challenging EPA's efforts to require states to implement its greenhouse gas stationary source regulatory requirements. This suit was filed July 5 in response to EPA's decision, published May 3, 2011, partially disapproving Texas' implementation plan for regulating pollution. EPA rejected part of the Texas plan because it did not address how it would apply to pollutants that become "subject to regulation" in the future, such as greenhouse gases. Because it rejected the Texas plan, EPA moved to implement federal regulation of greenhouse gas emissions in Texas. The State of Texas and other parties also filed suit against EPA, and our case has been consolidated with those. Preliminary proceedings are under way. SIP/FIP Advocacy Group v. EPA (D.C. Cir.).
Does the time clock start in the locker room? That's the issue in a case now on appeal to the Seventh Circuit in the context of a collective bargaining agreement that excluded clothes-changing activities from the work day. Unfortunately, the trial judge left open the possibility that clothes changing could be a principal activity that starts the compensable work day. The NAM filed an amicus brief on 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 for unbargained-for wages relating to clothes-changing activities. The 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. We concluded that, in a time of economic crisis, courts should not be making it more expensive for employers to maintain their present workforces. Sandifer v. United States Steel Corp. (7th Cir.).
If you recognize the value of the NAM's work in the courts for your company or your industry, please consider making a contribution to our Appellate Litigation Program. In today's economy, voluntary contributions are needed more than ever. A contribution form for your convenience may be found here. Thank you.
Check out the NAM's Manufacturing Law Center at www.nam.org/law
Copyright © 2011 National Association of Manufacturers