The National Labor Relations Board (NLRB) has been making a case that representation elections need to be put on a faster track. When the Board originally published their “ambush elections” proposed rule, their notion of an ideal timeframe between when a petition for certification and the actual election worked out to 10-14 days. Of course, employers were concerned about such a compressed schedule for a number of practical reasons, but it also violates a fundamental sense of fairness most Americans hold with regard to elections.

While the final rule did not truncate the election time period as much as the proposed rule, it does shorten it to somewhere in the neighborhood of 20-24 days according to some experts. Employers remain concerned about the timing of these elections, because they often are not aware an organizing campaign is going on until they receive notice the petition has been filed. At that point, the employer has some tough choices to make and different rules to follow about how and what they can communicate to their employees. In short, they have serious ground to cover in order to catch up – meanwhile, the clock is ticking.

As we anxiously await the NLRB General Counsel’s Summary of Operations report for fiscal year 2011 – which according to my research results has not been issued later than February 4^th in the last ten years – I thought it would be good to go over some historical data about representation elections and paint a picture to show what’s really going on and why employers believe the Board’s ambush elections rule is a solution in search of a problem.

Over the ten-year period from 2001-2010, an average of 2,356 elections were petitioned for each year. Of that number, 89.9 percent of the petitions were agreed to by both parties. The median time it took from the time the petition was filed to the date of the election was 38.9 days. Finally, 93.8 percent were completed within 56 days – though in full disclosure I could not find data for 2001, so this number is really a nine-year average, but the yearly percentages for an election to be completed in 56 days ranged from a low of 91 percent in 2002 to a high of 95.5 percent in 2009. A chart is included below to illustrate these numbers.

What I believe the numbers show is a vast majority of petitions and elections are handled in a timely fashion – rendering the need to ‘fast track’ election unnecessary. It appears the cases taking longer than 56 days are outliers and we can reasonably infer they represent more complex cases in which there are questions about who is eligible to vote, the make-up of the collective bargaining unit or some other complication – all of which should be resolved prior to the election being held. Employees deserve to have the information they need in order to make an important decision like joining a union and employers deserve to know the rules before the results of the contest have been decided.

The Indiana legislature completed passage on and Gov. Mitch Daniels immediately signed into law “right to work” legislation yesterday. The move by the state’s leaders makes Indiana the 23rd state in the nation and the first in the heartland to adopt right to work. Such measures forbid forced union membership and/or the payment of union dues or fees as a requirement of employment.

Indiana proponents of right-to-work argue that open shops will help attract new business investment and their jobs, a major political selling point after three straight years of high unemployment nationally. Governor Daniels stated, “This law won’t be a magic answer, but we’ll be far better off with it.”

Manufacturers were well represented on Capitol Hill today as NAM Executive Committee member and Chair of the Small and Medium Manufacturers Group Kellie Johnson, President of Ace Clearwater Enterprises, testified on behalf of small businesses and manufacturers.

Kellie Johnson, NAM Board Member, testifies before the House Ed & Workforce Committee

The House Committee on Education & Workforce held their first hearing of 2012 entitled, “Expanding Opportunities for Job Creation”. Ms. Johnson was chosen to testify because of her insight into state initiatives for job creation, the effects of federal policies on job creation, and the challenges facing small businesses within the current economic environment.

While in front of the powerful House committee, Ms. Johnson highlighted the ways in which federal regulations burden small and medium manufacturers differently than their larger counterparts, specifically citing recent decisions and regulations from the National Labor Relations Board (NLRB), Occupational Safety and Health Administration (OSHA), and the Environmental Protection Agency (EPA).

She hammered home the point by stating, “The uncertainty of our regulatory and economic environments makes it almost impossible for short or long-term business growth, especially for a capital intensive industry like manufacturing. To be compliant with the newest regulations and rules takes time away from running the day-to-day operations of a business. Resources are constantly rerouted away from customers, resulting in lower productivity and lower customer satisfaction.”

Additionally, Ms. Johnson took the opportunity to speak about the impediments to job creation arising from regulatory overreach from the viewpoint of a small manufacturer was a chance to emphasize the importance of manufacturing to economic growth. To read her full testimony click here.

The Chairman of the National Labor Relations Board, Mark Pearce, made comments to reporters this week outlining several issues he would like to address in the coming year through rule making now that he has been bestowed three new members by recess appointment. Among the issues he would like to push via regulatory fiat are:

-          Requiring employers to furnish unions their employees’ personal email and phone numbers

-          Further compressing the time for representation elections

-          Expanding the use of electronic filings

Pearce goes on to share his ideas of the NLRB being a “household word” for everyone. An interesting goal to be certain, but the Chairman appears to have overlooked that the NLRB is in fact a four-letter word – if you want to characterize it as a word at all. At any rate, the four-letter word most Americans want to be more familiar with is spelled J-O-B-S.

The Board Chairman promises to anyone paying attention that, “We keep our eye on the prize.” Pray tell, Mr. Chairman, what prize are you talking about? Jobs are the prize Americans want, not the aggrandizement of a federal agency and a stacked deck in favor of organized labor.

Over the last year the NLRB has exhibited an astonishing overreach of their authority, ignored Congressional intent, and created potentially hostile work environments where none existed. The ambush elections rule, the decision in the Specialty Healthcare case, and the now-resolved complaint against the Boeing Company each had chilling effects across the manufacturing sector and overall economic growth. The NAM sued the NLRB to prevent the implementation of the “poster rule,” yet another example of a Board that has taken on an improper activist role.

Unfortunately, it looks like the President has given a green light to the NLRB to continue its activist agenda.  Yesterday President Obama announced that he will recess-appoint Sharon Block, Terence Flynn and Richard Griffin to the Board.

Perhaps Sharon Block and Richard Griffin will prove themselves to be fair arbiters of labor policy though, given their history of working for labor unions, it would seem they will bring a similar bias to the job.  The Administration has short-circuited the process, however, and they will assume their posts without the necessary scrutiny to ensure that there are no conflicts of interest – financial or otherwise. Given the impact of the Board’s decisions on jobs and our economy, these appointments warrant a thorough examination in order to avoid increasing the Board’s bias against employers and creating even greater overregulation.

The NAM will actively consider all options available to ensure that these nominations receive the deliberation and scrutiny that they deserve.

At the end of 2011 it’s apparent that our economic recovery has been modest at best. A robust economy can be difficult to achieve under even the best circumstances, but it is made even more difficult when faced with a hostile environment for private enterprise. Manufacturers should be freed from unnecessarily burdensome regulations if they are to lead the economy. Efforts to foster economic growth and job creation have been stymied by an avalanche of overregulation from government agencies. A year-end review of the regulatory action taken by government agencies tells a sad story – one that manufacturers hope will reverse itself in the coming year.

This year alone we saw the National Labor Relations Board (NLRB), the Environmental Protection Agency (EPA), the Department of Transportation (DOT), and other agencies place more obstacles in the way of job creation and insert themselves further into the day to day decisions of manufacturers. Here are just a few examples:

2011 was a banner year for overreach for the NLRB, including the ambush elections rule, the decision in the Specialty Healthcare case, and the now-resolved complaint against the Boeing Company. These actions from the board have the potential to create disruptive and adversarial relationships between employers and employees - a result that simply isn’t conducive to growth. The NAM is currently suing the NLRB to prevent the implementation of the poster rule, a rule that has been delayed repeatedly after requests by the judge to allow time for a decision in the case. An NAM survey about the NLRB’s agenda revealed that nearly 70 percent of respondents said the NLRB’s actions will hurt job creation.

The EPA has put forth new rules and regulations that come with high price tags and puts hundreds of thousands of jobs at risk.  The costly and harmful Boiler MACT regulations checks in at $14.5 billion and threatens approximately 230,000 jobs. Sadly, it seems that the EPA may have outdone themselves with the Utility MACT rule – one of the most expensive regulations in EPA history –would have a draconian effect on power plants across the nation. According to the EPA’s own analysis, the Utility MACT regulation could cost more than $100 billion in the coming years and destroy an average of 183,000 jobs per year for the next decade.

The DOT pulled the rug out from under manufacturers that built their logistical operations based on the current trucking hours of service rule and have invested heavily in compliance since their implementation. Released just last week, the revised final rule will have a negative impact on manufacturers’ supply chains, distribution operations and productivity. To change these rules and limit the flexibility of manufacturers without sufficient reasoning is a mistake and will impede the ability of manufacturers to invest, grow and create jobs.

For manufacturers, a year living under the yoke of this overregulation is a year of living dangerously – hopefully Washington will come to its senses before it’s too late.

Earlier this afternoon the National Labor Relations Board (NLRB) announced it will be delaying the posting requirement rule until April 30, 2012. This move was made as a result of the lawsuit filed by the National Association of Manufacturers on the validity of the rule.

Earlier this week oral arguments were made in federal court in Washington on the case. The delay is positive news for manufacturers and the effort to rein in the NLRB’s aggressive agenda.

The NLRB continues to move forward with an concerning agenda that will hurt manufacturers competitiveness. From the complaint against Boeing, to the Ambush Elections rule, the posting requirement and the Specialty Healthcare case the NLRB is creating an uncertain environment for job creators and needs to held accountable.

Last night, President Obama announced his picks for the two Democratic vacancies to the National Labor Relations Board. You may recall, Member Craig Becker’s recess appointment expires on December 31, which will reduce Board membership down to two and render the Board incapable of issuing case decisions or new rules. The five-member board is comprised of three seats for the party of the President and two seats for the opposition. The President nominated Terence Flynn in January to fill the open seat for the opposition.

The President’s nominees are Sharon Block, Deputy Assistant Secretary for Congressional Affairs a the Department of Labor and Richard Griffin, General Counsel for the International Union of Operating Engineers (IUOE) and serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee.

The NAM is certainly interested in learning more about the backgrounds of these nominees and will be updating our members on what we find out. At first blush, it is concerning the President has tapped yet another union general counsel for membership to the NLRB, but we will reserve judgment until we learn more about the positions and temperament of Mr. Griffin. This process has just begun and Ms. Block and Mr. Griffin have not submitted any paperwork to the Senate yet. In fact, they don’t appear to have been vetted in any meaningful way to this point.

There is some chatter about the possibility of recess appointments being attempted by President Obama to get nominees seated on the Board, but if the House stays in session, as Leadership has indicated they intend, it would be questionable whether the recess appointments could hold up under constitutional scrutiny. This holiday season is shaping up to be one to remember – stay tuned.

Late in August, the National Labor Relations Board (NLRB) finalized a rule that would require all employers subject to the National Labor Relations Act (NLRA) to post a notice in their workplaces outlining rights to organize. On September 8, the NAM filed suit against the Board claiming the NLRA does not give them the authority to require all employers to do anything. On Saturday afternoon, December 2, the Board sent a memo to their regional offices instructing them to prepare an outreach campaign to inform businesses of the requirement to post notices in their workplace on or before January 31, 2012.

While the Board has claimed, and continues to do so, the delay in the effective date of the rule has nothing to do with the litigation, and everything to do with wanting to conduct more extensive outreach, the facts and the truth demonstrate otherwise.

Upon filing the suit, the NAM requested the Board delay the effective date until such time as the matter could be decided by the courts – the Board declined to delay. At a status conference with the Court, Judge Jackson inquired whether the Board would delay the effective date of the Rule in order to give the Court sufficient time to consider the arguments in the case and make a ruling. The Board wisely agreed to delay and formally announced the effective date would be moved from November 14, 2011 to January 31, 2012. In the announcement, no mention of the lawsuit was acknowledged. In the December 2 memo there was no mention of the lawsuit either, despite the fact the Board could lose the case, rendering the January 31 effective date, null and void.

It’s understandable that the Board would not want to admit they’ve over-reached by issuing the rule, but their actions are akin to a beat-cop waving pedestrians by an escalating fight yelling, “Move along, nothing to see here.” A federal agency claiming authority it doesn’t have and acting as though there’s nothing wrong with it may be comical in theater, but it’s a potential catastrophe in practice. That’s why the NAM filed the suit against the NLRB to prevent an agency from acting outside the law and also why the NAM sent a letter to the Board today indicating our displeasure with how they’ve proceeded.

Oral arguments are on Monday, December 19 in federal court and a decision is expected before the new effective date of January 31. Since this is the time we all begin thinking about our resolutions for the new year, perhaps the Board can resolve itself to act in a more even-handed manner and follow the law.

This morning, National Labor Relations Board Acting General Counsel, Lafe Solomon, announced the Board is withdrawing its complaint against Boeing Company. Seemingly, this action resolves a matter that generated a great deal of controversy.

The NLRB filed its complaint on April 20^th and the National Association of Manufacturers immediately raised the issue as to whether the Board can or should be trying to dictate where a business can locate and whom they can hire. Effectively what the Board was trying to do was shut down a brand new facility constructed at great expense and would have eliminated over 1,000 high-paying jobs in South Carolina.

While the complaint against Boeing Company has been retracted, the NAM remains concerned about the Board’s actions and what it means to manufacturers and employers across the country. The complaint set a bad precedent – one that could have a ripple effect across our economy.  Indeed, nearly 70 percent of manufacturers indicated in a poll that the Board’s actions, on this and other important matters, will or may negatively impact their decisions to expand or hire. It’s also worth questioning whether situations like this will be used again to influence contract negotiations – something we will be keeping a watchful eye on.