In a largely party-line vote, the Senate failed to overturn the National Labor Relations Board ambush elections rule. S.J. Res. 36, sponsored by Senator Mike Enzi (R-WY) was rejected by a vote of 45-54. Senator Lisa Murkowski (R-AK) was the only Republican to vote with the Democratic majority in opposition to the resolution.

Manufacturers are extremely disappointed by this vote and with good reason. The ambush elections rule eliminates employers’ ability to adequately prepare for a vote to unionize, denies employees the proper time to gain all the information needed to make such an important decision, and threatens to permanently damage workplace relations.

The ambush election rule, finalized by the NLRB last December, would compress the time from a petition for representation being filed and the actual election. It would also effectively strip employers of certain due process rights prior to the election. The rule is slated to take effect on Monday, April 30^th.

It is still possible the rule will be delayed if a motion for injunction is successful in federal court. The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed suit against the NLRB shortly before the rule was finalized. The NAM, a leading member of the Coalition for a Democratic Workplace, is supporting the suit and the motion for injunction. It is hoped a decision will be reached by the D.C. Circuit Court yet this week.

On Friday the Circuit Court in South Carolina has issued a ruling in a second lawsuit regarding the National Labor Relations Board (NLRB) posting notice rule. The Court ruled the NLRB does NOT have the authority to require all employers to post a notice in the workplace.

The NAM filed the first lawsuit against the posting notice regulation in DC Circuit Court presenting the same arguments, but the judge ruled the Board can require employers to post notices. The NAM and Coalition for a Democratic Workplace have appealed this ruling and requested postponing the effective date of the rule pending appeal.

The decision in the South Carolina suit means the Circuits are split and the chances for a delay in the effective date of the posting notice regulation have increased. The NAM has filed for an injunction to delay implementation before the effective date of April 30th. Previously we have gained two voluntary delays from the NLRB. We will continue to closely monitor the situation as the NAM appeal moves forward and the implementation date approaches.

Yesterday, I wrote about the NRLB’s Ambush Elections rule and how the Board is claiming it is necessary because nasty, mean employers are slowing things down for no good reason. Yet, the Board’s own data shows this not to be true – the Board has exceeded its median time goal for the past 11 years.

Further proving the rationale for the Ambush Elections rule requires some serious mental gymnastics, the Board has proudly exceeded its goal of conducting at least 85 percent of elections by voluntary agreement – for the past 11 years. The evidence, produced by the Board, speaks for itself. By continuing to pursue this misguided and unjustified rule, the NLRB is clearly not “ensuring against unjustified requirements” as stated by Administrator Sunstein’s memo referenced in my initial blog post. Through its actions, the Board is thumbing its proverbial nose at OIRA’s guidance.

All of this begs the question, what, or rather who, is really behind the Ambush Elections regulation? Generally, the answer can be found in whom it benefits most. Clearly, in this case, it’s Big Labor leadership. With fewer private-sector employees choosing to form or join a union, their livelihood is at stake. How better to shore up and solidify your position than changing the rules to make it nearly impossible to lose an election?

In the coming weeks, the Senate is likely to consider legislation to do away with the Ambush Elections rule. The NAM is supporting this effort and is encouraging our members to contact their Senators to ask them to vote in favor of the legislation.

In a blog post earlier this week, I wrote about the “cumulative effects” memo and National Labor Relations Board Chairman Mark Pearce’s comment about “keeping our eye on the prize.” One of the regulations recently issued by the NLRB would speed up the process for representation elections – we call it the “Ambush Elections” regulation.

The Ambush Elections rule was finalized late last year and is set to take effect on April 30. Apparently, the Board believes the regulation is necessary because an epidemic of employers stalling union elections by abusing their legal rights has broken out across the country. This, however, flies in the face of the Board’s own data.

Every year, the NLRB General Counsel is to publish a “Summary of Operations” report outlining the work of the Board over the previous fiscal year. This year’s report sheds light on the speciousness of the argument for hurriedly making the most significant changes to representation election procedure in 75 years. The report shows the median time for an election to be held is 38 days – the same it has been for three years and well below the Board’s own target of 42 days. In fact, the median time for elections has exceeded the 42-day goal for the last 11 years.

Tomorrow, we’ll look at another reason the Board’s argument for the Ambush Elections regulation is bogus.

A couple weeks ago, Cass Sunstein, the Administrator of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB), issued a memo to all heads of executive departments and agencies to consider the cumulative effects of regulations “to ensure against unjustified, redundant, or excessive requirements; and ultimately to increase the net benefits of regulations.”

The NAM agrees with Administrator Sunstein that administrations of any stripe need to understand the compounding effects regulations have on business and commerce. Yet, the message doesn’t seem to be resonating with anyone over at the National Labor Relations Board (NLRB).

When taken in the context of regulations already issued by the Board, and comments from Chairman Mark Pearce, one has to wonder whether they believe the guidance just doesn’t apply to them. The aforementioned comments from the Chairman, were the subject of a blog post here back in February. During his interview with the Associated Press, Chairman Pearce noted the Board was steadfast in “keeping our eye on the prize.”

While I have yet to hear a plausible explanation for what the Chairman meant by “prize,” one can fairly surmise he meant making it easier for unions to organize and win elections. With this in mind, it appears the NLRB interprets Administrator Sunstein’s words to mean it is sufficient if only one party or side enjoys “the net benefits of regulations.”

The Patient Protection and Affordable Care Act had a rough week. Both the Supreme Court and Congress looked several facets of the law enacted two years ago after considerable controversy.

The Supreme Court focused on the individual mandate, examining its constitutionality and whether it can be separated from the rest of the law. A ruling on the mandate as well as a ruling on provisions regarding Medicaid expansion and the fine associated with the individual mandate is due in June.  If the individual mandate is found to be unconstitutional and not severable from the rest of the law, the entire law could be struck down. As of today, no one appears to have a backup plan should the entire law be stricken.

On Thursday, the Ways and Means Health Subcommittee held a hearing on the repeal of the employer and individual mandate portion of the health care law. The employer mandate provides that certain employers provide health insurance or pay a penalty. H.R. 1744 by Reps. Charles Boustany (R-La.), Pat Tiberi (R-Ohio) and John Barrow (D-Ga.), which the NAM strongly supports, would repeal that requirement. A mark-up is not scheduled on bill but The Manufacturers continue to push for support.

The Independent Payment Advisory Board (IPAB) was created by Congress during the healthcare reform debate two years ago. As we approach the second year under the Patient Protection and Affordable Care Act (PPACA), the House of Representatives is poised to pass legislation to do away with what was a bad idea disguised as reform.

As conceived, IPAB is a 15-member board charged with the responsibility of making adjustments to Medicare reimbursements, thereby relieving Congress of this messy chore. Congress created a politically useful foil in the board which has the ability to unilaterally make changes to reimbursements unless or until Congress comes up with reductions equaling the amount proffered by the IPAB. Knowing the current environment would not lend itself to such an agreement, Congress effectively abdicates its role in managing the program or reforming it to improve its financial outlook. From the view of manufacturers, this is concerning both as employers who pay for the healthcare of their employees, and as innovators of advanced medical treatments.

All employers should be concerned about IPAB, because it is through this board that Medicare reimbursements will be squeezed, coverage decisions will be questioned or overturned, and cost of providing coverage to their employees will increase due to cost-shifting. Cost-shifting is increasing the price paid by one customer to give a different customer a lower rate. This happens all the time in private commerce, but the unique thing about this situation, which is a problem in the healthcare system already, is the government is not really a customer – with Medicare it is essentially a monopsony. This allows the federal government to set the price it will pay with no regard to what effect it has on the non-Medicare market. In short, Medicare lowers reimbursement and healthcare providers demand more from private payers, which drives up costs for everyone else.

Manufacturers of devices, biologics and pharmaceuticals are innovators of life-saving and life-improving cures and treatments. If left unchecked IPAB will likely threaten access to advanced medical technologies. By limiting access to new therapies, private-sector innovation can stagnate because it is a disincentive to research and development. Clearly, this not a desirable outcome – one Congress can prevent by passing legislation to repeal IPAB this week.

The NAM staff is currently reviewing the final rule on Affordable Health Insurance Exchanges released by HHS yesterday. This guidance will have an impact on manufacturers with 100 or fewer employees throughout the country.

Today’s final rule addresses: the establishment and operation of an Exchange; health insurance plans qualified to participate in an Exchange; determinations of an individual’s eligibility to enroll in Exchange health plans and in insurance affordability programs; enrollment in health plans through Exchanges; and, employer eligibility for and participation in the Small Business Health Options Program – the proper implementation of which is important to many small businesses.

Manufacturers weighed in during the comment period making the case for increased flexibility. Although there is much more to be seen in this 643 page rule, what we have reviewed thus far leaves us cautiously optimistic. It seems to provide the opportunity for competition in the marketplace – a critical aspect for success in any area.

In the coming weeks there will be areas for further comment and the NAM will engage its members to determine if there remains a need to weigh in again.

Today is March 1, and the public has yet to see the National Labor Relations Board General Counsel’s report on the Board’s activities for fiscal year 2011. Over the last ten years, the latest the report has been released was February 4th. Fiscal year 2012 began on October 1, 2011 and is nearly at its half-way point. Yet, the NLRB General Counsel has not let us know how the Board performed the year before.

The report contains very useful and insightful information about what the Board has done over the last year from unfair labor practice enforcement to how long it takes to hold a representation election. I posted a chart in February showing the length of time it takes to conduct an election from the time a petition is filed over the last ten years – an average that’s been going down, but you wouldn’t know that from looking at the NLRB agenda. We’re to believe there is urgency to shortening the time frame even more through circumventing employer’s rights and denying workers the opportunity to hear both sides of the discussion over whether to join a union.

In 2010, the last year data is available, the median number of days it took from the time a petition was filed to the actual election was 38 days. The median goal for the Board has been 42 days for quite some time now. For the last three years, 95 percent of union elections were held within 56 days of the petition being filed.

My point in bringing this up is twofold. First, there doesn’t appear to be a problem with union certification elections taking too long. Indeed, the Board has met its median-day goal of 42 days every year for the previous decade and a 91-95 percent completion rate within 56 days over the same period is remarkable. Second, and perhaps more importantly, we haven’t seen the General Counsel’s operations report. The fiscal year is nearly half over, yet we’ve not heard from the Acting General Counsel – why?

Today, Senator Mike Enzi (R-WY) and Congressman Phil Gingrey (R-GA) introduced resolutions of disapproval (S.J. Res 36 and H.J. Res 103) of the National Labor Relations Board (NLRB) ambush elections rule.

The rule, finalized in December of 2011, would effectively strip employers of certain legal rights in cases where a petition for representation election has been filed. The rule also compresses the time between the petition and the election by eliminating the 25-day grace period resulting in elections being held in as few as 20-25 days.

Senator Enzi and Congressman Gingrey are invoking Congress’ right to review regulations issued by the federal government under the Congressional Review Act. The Act allows Congress to vote up or down on a final rule and is a privileged motion – meaning it cannot be filibustered and only needs a simple majority in each Chamber.

It is not just Congress who is upset about the NLRB’s ambush election rule.  The Coalition for a Democratic Workplace, consisting of several businesses business organizations and which the NAM is a leading member, immediately filed a lawsuit in federal court challenging this rule.

From the beginning, the NAM has taken the position that changing the rules of representation elections is not needed and will not only curtail employer rights of free speech, but it will also deprive employees of the information they need to make an important decision about whether to join a union.  In fact, President John F. Kennedy would agree with the NAM.  Then Senator Kennedy, when commenting on the 1959 amendments to the National Labor Relations Act (the Act), stated “there should be at least a 30-day interval between the request for an election and the holding of the election.”  Indeed, Senator Kennedy went on to oppose an amendment to the Act requiring less than 30 days for an election to take place.  Absent any evidence there is a problem with the current process, it seems that Board believes then Senator Kennedy, Members of the House and Senate, and the business community are all wrong.