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Transparency—A One Way Street

Yesterday, OSHA convened the first day of a three-week public hearing on the proposed silica rule, which would reduce the permissible exposure limit (PEL) when working with crystalline silica (or sand).  The proposed rule has been over a decade in the making, consists of over a thousand pages of rule text and economic impact.  And, although the comment period came to a close last month, OSHA announced it would have a public hearing for stakeholders to present information and question one another. Equally important, the hearing was supposed to provide stakeholders an opportunity to question OSHA and the data it presented as its justification for the rule.

One would think this is what an open and transparent government is all about, right? Well, not exactly.  It became abundantly clear from the first couple hours of this hearing that the openness and transparency of this government comes only when it is convenient for them and is often a one way street—only open for travel by the stakeholder.

Notwithstanding the volumes of material OSHA has put in the public record, the agency allotted itself only two-and-a-half hours to take questions from stakeholders and experts.  In fact, each inquirer was given a mere five minutes to question the validity of the data used to justify the rule change.  At one point, the OSHA panel even declined the judge’s direct request to work through lunch so as to not answer questions.  You would think with three weeks for the hearing and if the rule change is indeed on solid ground, OSHA could have withstood more than a few dozen questions. Maybe the rule really isn’t as strongly supported after all?    The farce of this hearing process is one that is likened to a one-way mirror in an interrogation room—only one side is really subject to questioning and they are not permitted to have knowledge of what the full story looks like.

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Silica Rule Unnecessary and Based on Outdated Data

Yesterday, the NAM filed its comments in response to the Occupational Health and Safety Administration’s (OSHA) proposed rule, which would cut the permissible exposure limit (PEL) to respirable crystalline silica (or sand) in half from its current level.  To breakdown what this means is if you took a basic sugar packet and then dispersed it into a building that is the length of a football field and 13 feet high—this would be the amount of sand we are talking about.

Particularly noteworthy in this rulemaking is that OSHA has been working on the rule for well over a decade, starting back in 2003 with the Small Business Review Panel, and then using data points from the 2002-2007 timeframe to justify OSHA’s cost analysis. It is, therefore no wonder OSHA’s cost estimate of $656 million and industry’s of $5 billion are so far apart. Yet, OSHA gave the public only 157 days to read and analyze well over 1,500 pages and gain an understanding of whether a lower PEL and implementing engineering controls were even feasible for companies who work with silica every day.

One thing is for sure, the NAM has serious concerns with lowering the current PEL and what that will mean for manufacturers and questions whether the rule is necessary, the methodologies relied upon are valid and process has been fair.

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SBA Agrees Extension of Time for Silica Comments is Necessary

The business community is not the only stakeholder concerned about the short 90-day deadline to comment on OSHA’s proposed silica rule.  Just yesterday, the Small Business Administration’s Office of Advocacy sent a letter recommending OSHA extend the public comment period on the silica rule by 90 days. The recommendations mirror the NAM’s, as well as others in the business community, request several weeks ago.  The NAM request was reported on shortly after it was filed and was viewed as a stalling tactic by some in the labor community – a bold accusation considering the agency dumped 1400 pages of economic analysis on the public that’s incomplete, muddled and downright delusional. The one office within the Administration that’s charged with protecting and advocating for small business agrees with the NAM position that there ought to be more time to consider the ramifications of the proposed rule.

The Administration has considered this proposal for ten years, beginning in 2003 with a small business panel review.  It therefore, borders on the ridiculous to give all stakeholders, and especially small business entities, a mere 90 days to meaningfully comment on the hundreds upon hundreds of pages of information that was finally unleashed a month ago. The rule was held up by the Administration itself at the Office of Information and Regulatory Affairs before any business groups or the public were allowed to see it. Does OSHA want to receive meaningful and robust comments, or is it simply trying to achieve something – anything? The silica rule is complex and has far-reaching effects up and down the supply chain. It will increase costs of raw materials, production and consumption. At least one office within the federal government thinks that’s worth having a serious look at before marching headlong into yet another debacle.

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Ask an Expert: What’s the deal with the NLRB?

When the Senate confirmed nominees to the National Labor Relations Board (NLRB) late last month, it marked the first time that all five seats had been filled since 2003. It also marked a turning point in labor policy. Recently, decisions rested with an unbalanced configuration that almost never had a dissenting view. That did not seem right. After all, the NLRB is an extension of a government founded on the belief that tyranny of the majority is just as undemocratic as dictatorial rule.

Although the National Association of Manufacturers does not tend to agree with NLRB on a lot of its more recent opinions, we welcome a fully-staffed board ready to engage in the kind of robust debate of the issues that should take place before making decisions that impact our labor law system. Dissenting opinions are an important part of litigation. They often help to clarify a ruling, even when the overall outcome leaves something to be desired. A dissenting opinion could become the basis for why a law should change or why a previous ruling should be overturned.

Completing the NLRB roster brings the agency’s legitimacy back into play. Manufacturers are hopeful that the board’s members will avoid partisan politics as they carefully weigh all the options and opinions at hand. Our democracy depends on a healthy dose of dissent to properly function. So does our labor law system.

Amanda Wood is the director of employment policy for the National Association of Manufacturers.

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Summer Surprise—The 2013 Spring Regulatory Agenda Finally Released

“I’m just glad we don’t know what’s going to happen.” – Said no one ever.

Uncertainty is a bad thing. This can be universally agreed upon – and manufacturers have been in limbo for months waiting for the Department of Labor to announce its regulation agenda. Unfortunately, with the oddly timed summer release of its “Spring 2013 Unified Regulatory Agenda” — a forecast of the Administration’s timetable on when certain regulations will be proposed or finalized, manufacturers are still on hold.  We were hopeful that, given the delays, manufacturers would see improvements to the agenda – not retreads and delays of bad policy that will hurt economic growth. Sadly, that isn’t the case. Timetables have slipped further into the future, creating more uncertainty for employers who are not sure what to expect, when to expect it and what the impact financially will be.

Examples of rules being further kicked down the road within the world of labor and employment are OSHA’s Injury Illness Prevention Program (I2P2), OSHA’s Silica Rule, and the Persuader Rule.  According to previous agendas, I2P2 should have been in the notice and comment period by now, yet OSHA has yet to convene a small business panel to review a draft rule and now, the notice of proposed rule-making is scheduled for January.

We have been anticipating OSHA’s silica rule since the rule went to OMB for review in February of 2011.  We are told we can expect something “anytime,” but what does that really mean?  The industries affected by this rule continue to wait and are unable to accurately plan.

The Persuader Rule’s comment period closed in the fall of 2011 and according to the last Agenda, we should have seen a final rule in April, but again, employers must wait until November (or longer) to see if they way in which they have received from their lawyers or consultants for decades will now be radically altered and ultimately disclosed to the Department of Labor and the public.

These are just a few examples of what DOL and other agencies have on their agendas, but no matter what the proposed regulation is, the fact is employers are still in limbo as to what they are facing in the future when it comes to changing how they do business and at what cost.

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U.S. Supreme Court Next Stop for NLRB Recess Appointees

This afternoon, the Administration petitioned the Supreme Court to take up the case regarding the recess appointments to the National Labor Relations Board (NLRB) in the Noel Canning case.  On January 25 the U.S. Circuit Court of Appeals for the D.C. Circuit definitively decided these appointments, made on January 4, 2012, were unconstitutional, thus bringing the NLRB down to one member and lacking a quorum to issue case decisions or issue rules.  Despite the strong and clear opinion by the D.C. Circuit, the NLRB continues to flaunt the Court’s ruling with two invalid recess appointees and only one member confirmed by the Senate. This situation is leaving those in the labor community to wonder if the cases being decided are valid and have to be followed.

It was expected the Administration would seek to have clarity and final say on this issue; however, it is curious that in a quick read of the petition, the Administration argues that the appointments are valid based on decades of precedent established by former Presidents, cites the British House of Commons Parliamentary practice from 1772, the Articles of Confederation from 1781 and the Constitutional Convention of 1787. It will now be up to the Supreme Court to settle this dispute once and for all.

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Comp Time Legislation Introduced

Today, Congresswoman Martha Roby (R-AL) proposed creating more opportunities for a flexible workplace by introducing the “Working Families Flexibility Act.” The bill is simple and would provide private sector employees the same opportunity as their public sector counterparts – the ability to receive compensation time off rather than pay for the overtime hours they work.

Currently, if you work for a public sector entity, you can choose whether you would like to receive overtime pay or comp time, but surprisingly, if you work for a private company the law prohibits you from having this choice.  It seems that in this day and age when households are largely comprised of two parents who work full-time, it is only fair for all employees to have the option to receive a few hours of time to attend to needs outside of the workplace, whether it be to attend a child’s soccer game or parent-teacher conference, or to take an elderly parent to do their errands.

Too often pieces of legislation consist of hundreds, or even thousands of pages of complex text, so it is refreshing to have something straightforward and logical.  Just because you work for a private company you shouldn’t be prohibited from receiving the same workplace flexibilities you would have if you worked for a local or state government entity. After all, what’s good for the goose is good for the gander – right?

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All Sides Are Needed for a Fully Functioning NLRB

As discussed prior to the holiday season, the National Labor Relations Board (NLRB) went from four members to three, when Member Brian Hayes’ term expired on December 16.  While the Board still has the requisite three members to maintain their quorum, so the agency can continue to function by issuing case decisions and rules, one has to wonder whether these decisions and/or rules will be thoughtful and well-rounded with these remaining three members.  After all, the three current members are all of one school of thought and one political party.  Although in the past few weeks the Board has issued case decisions still containing the lone alternative legal approach articulated by Brian Hayes through his dissents, those will soon become a thing of the past. We soon will no longer receive the benefit of hearing all sides of an argument, a benefit which is crucial for a fully functioning and respected NLRB.

As some of have mentioned, historically it has been rare for the Board to issue case decisions or rules when only three members are sitting and they are all of one political persuasion.  This is particularly noteworthy and something the Administration should be aware of if they wish for the agency to be a considered a fair arbiter in the labor law sphere.  This is not about Republicans versus Democrats, but rather, it is about issuing well-rounded decisions which take into account all facets of an issue.  Waiting for a minority member to be appointed and confirmed before issuing decisions would assure due process and integrity in the NLRB.  It is vital to have another opinion heard, but as we have seen time and time again with the NLRB, under this Administration, deep-rooted precedent and tradition are often ignored or overturned.

This is true with the current Board, as they have announced business will continue as usual, despite there being no voice of opposition.  How can employers, or the public as a whole, believe in a fair labor process from this Board when differing view will never see the light of day until someone from the opposing party is appointed to fill Member Hayes’ vacant position?  The only way for there to be any trust in the process and for the system to be taken seriously, is to have a fully functioning NLRB, which not just a one-sided opinion, but opinions and rules with alternative reasoning and rationale.

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And Then There Were Three

On Sunday, Brian Hayes’ term on the National Labor Relations Board expired.  Hayes was the lone Republican appointee to the Board and his dissenting opinions offered insightful thought and reasoning to cases before the Board.  Member Hayes’ dissents are more often in line with the business community and often helped shape employers’ views on labor law.  After Sunday, however, this minority voice will not be heard as the Board goes to only three members, all of which are aligned to carry out big labor’s agenda.  Dissent and diversity of opinion will be absent, but big labor’s voice will certainly be heard loud and clear through the Board.

It is not likely the President will rush to appoint a Republican Member to the Board anytime soon, and so the Board can simply churn out opinions and issue rules constructed by the behind-the-scenes influence of the unions.  Although hearing only one side of labor issues will be welcomed by some, people should keep in mind there are two sides to every story and the legal system, whether at the highest court in the land or at an administrative board, works best when the other side is heard through a dissenting opinion.  Unfortunately, this will be lost at the Board and lost to employers, where there is most impact.

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NLRB Handed Another Legal Defeat on Ambush Elections

Late Friday, the NLRB suffered yet another legal defeat when the U.S. District Court denied the Board’s Motion for the Court to reconsider its June decision invalidating the ambush election rule. The NAM, as a leading member of the Coalition for a Democratic Workplace, is participating in this suit filed by the CDW and US Chamber of Commerce.

As a reminder, under the Supreme Court ruling on New Process Steel, the Board needs to have a quorum of three members in order to issue case decisions or issue new rules. As such, the U.S. District Court ruled the Board lacked the necessary quorum when the final vote on the much-maligned ambush election rule was taken.  After the initial ruling in May, the Board suddenly argued that Member Brian Hayes was in fact present to vote on the final ambush election rule, new information that had never been brought forth before. 

Surprisingly, according to the Board, this routine administrative information was apparently not readily available and not presented in any of the briefs presented to the Court prior to its May ruling. Judge Boasberg, however, stated on Friday, “the Board has neither adequately explained why it could not have presented this evidence at the summary-judgment stage, nor established that the Court’s contrary finding was ‘clear error.’” 

Now we will have to wait to see if the Board decides to appeal this ruling to the Circuit Court of Appeals, or whether the Board will now re-vote the ambush rule with the four- Member Board.  In either case, however, we will stand ready to question the Board’s attempts to alter well-established procedure and practice to pursue its own alternative agenda.

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