Labor Unions

More Confusion Rather than Safer Workplaces

Today, the NAM filed supplemental comments to OSHA’s proposed rule publicizing injury and illness data of private employers. In January, the NAM’s Labor and Employment Policy team participated in a public hearing on this rule and from the outset, the NAM has opposed this rule for a few very simple reasons: 1) OSHA has the tools they need to improve workplace safety at their disposal already; 2) This data would be presented without context and could result in a serious misrepresentation of a particular company or industry; 3) This rule gets us no closer to the shared goal of a safer workplace. Nothing has changed to mitigate these concerns – improbably, the rule is getting worse

In August, OSHA reopened the rule posing several questions, without any actual regulatory text. What OSHA appears to be doing is adding new provisions to the rule as well as additional burdens and confusion to employers.

For example, if an employer has a stellar record for being injury and illness free for several months, the employer, to boost morale and to show the company’s safety record, may prominently post this for employees and customers to see.  Defying logic, however, supplements to the rule would a classify this type of posting as discouraging employees from reporting injuries and illnesses in the workplace. OSHA could therefore cite an employer for this.  Despite a reality devoid of data, scientific studies or research to back up OSHA’s assertion, they are moving forward in this misguided thinking.

OSHA should take time now to apply the fundamental question to its rule making process – does it make the workplace safer? Unfortunately, in this case it misses the mark.

Amanda Wood is Director of Employment Policy for the National Association of Manufacturers

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A Presidential Laboratory of Bad Ideas

This afternoon, President Obama is expected to sign yet another executive order and this one will create significant problems for businesses who wish to provide goods and or services to the federal government. According to reports, the order will require federal procurement officers to effectively act as enforcers of labor laws that even the Department of Labor itself has difficulty understanding, which is a dangerous game for our President to be playing with federal contracts. Effectively, the President is sanctioning a practice known as “blacklisting” companies from federal contracts due to even minor infractions of complex labor laws under the Fair Labor Standards Act. While true bad actors deserve consequences, there are already procedures in place to address those cases.

The Fair Labor Standards Act is a labyrinth of federal statute, regulations, guidance and case law that ensnares even the most cautious employers. It encompasses things like how employees are classified, overtime pay and recordkeeping requirements. All of these issues are fraught with landmines that even sophisticated employers can run into without knowing it. In fact, even the Department of Labor itself ran afoul of employee classification regulations recently and were forced to issue back-pay to a number of the nearly 2,000 of its employees who filed a grievance under the FLSA in 2010. Ironically, the very federal agency charged with enforcing the requirements would be blacklisted or put on a “contract avoidance list” under this new executive order.

Further complicating matters is the fact that the administration is in the process of regulatory rulemaking to change various aspects of the FLSA, which is certain to create violations out of what were once legal practices and bog employers down with additional litigation on matters that have already been largely ironed out in current law. In the end, there is already a process federal procurement officers can go through if there are contractors having trouble complying with the FLSA. Creating a “contract avoidance list” and dispatching a member of the Politburo to each agency to police the list seems unnecessary.

The President seems to be using the federal procurement process as his own little “laboratory” for bad ideas in labor policy and this one is bound to have some unintended consequences. We may not be there yet, but at some point businesses with federal contracts, or those thinking about bidding for them, may decide the additional hoops, hurdles and hassles just aren’t worth it anymore – particularly if they are a small to medium-sized business. There’s likely quite a bit to be concerned with in this executive order and we’ll be going through it very carefully. More to come on this one, I’m sure.

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NAM Backs Boeing after Misguided Decision by NLRB Judge

Individual cases before the National Labor Relations Board (NLRB) rarely get noticed by anyone other than labor or employment lawyers, but that doesn’t mean they aren’t worth watching. These decisions have broad implications for all employers, not just the one involved directly in the case.

Recently, an NLRB administrative law judge (ALJ) issued a decision that, if allowed to stand, would have significant implications for manufacturers and their intellectual property. The judge concluded that Boeing’s prohibition of cameras—a policy that has been in place for 35 years—constitutes an unfair labor practice because Boeing has no credible business need to protect its manufacturing process. Of course, as technology has developed, the rule has captured additional devices, and today smartphones fall under the ban.

Boeing has good reason to be cautious about allowing unfettered photographic access to its shop floor. For one, its competitors and some foreign governments would love to get their hands on Boeing’s proprietary information. The ALJ would make that easy for corporate spies—just go to an employee’s Facebook page and study photos from inside Boeing. In addition, many of Boeing’s products are subject to strict export controls. Making photos of these products or processes public could violate federal law.

The NLRB’s decision puts Boeing in a tough spot, creating a problem where none existed. And, besides, NLRB lawyers shouldn’t be in the business of creating new rights for employees in the first place.

Because of the dangerous precedent this case could set for future disputes before the NLRB, the NAM filed a brief highlighting this overreach and the impact it would have on businesses, particularly manufacturers. For more information about the case, click here.

Patrick Forrest is Vice President and Deputy General Counsel at the NAM. He also serves as part of the Manufacturers’ Center for Legal Action, the leading voice of manufacturers in the courts. To read more about the Manufacturers’ Center for Legal Action, please click here.
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Ambush is Coming

Today the National Labor Relations Board convened a two-day public hearing on its proposed “ambush election” rule, noticed earlier this year to demonstrate its supposed commitment to transparency and fair review.  This is the recycled rule—previously rejected by a Federal Appeals’ Court—which would shorten the timeframe, to as few as 10-14 days, in which a union election can take place after a petition is filed.  The rule would also prohibit certain challenges employers can currently make prior to the election and would also allow the union to receive employees’ private information, such as personal email addresses and home addresses and telephone numbers. It’s patently obvious that this rule is an attempt to stack the deck in favor of the radical agenda we’ve seen out of the NLRB for several years now. While this may be just a “show hearing” for the Board, manufacturers are taking this opportunity to again raise our voice in dissent – because ambush elections are as damaging as they sound.

The NAM will present on two topics tomorrow and stress that by “compressing the timeframe for a representation election, the proposed rules would eviscerate the right of employees to make an informed exercise of their rights, as well as impair the employers’ rights to communicate their position to employees.” The rule would also “chill the free, uninhibited, robust debate regarding the issue of unionization contemplated by Congress enacting the NLRA.”  The NAM will also point that requiring employers provide certain confidential information, such as personal email addresses, telephone numbers, home addresses, and work shift information will “provide a wealth of information rendering employees vulnerable to harassment or worse. Providing such information without safeguards exposes both the employee and employer to risk.”

While the idea of having this public hearing on its face would fit the definition of an open and transparent government rulemaking process, the hearing itself is more reminiscent of other public “hearings,” which have been held lately. Hearings where only one side is permitted to ask questions and presenters are limited to a mere five minutes to present one particular aspect of the proposed rule, rather than the rule as a whole.  In the end, it is hard to believe this hearing is anything more than checking the transparency box for the Board.  The reality is, employers should be preparing for an ambush election – and the Board should prepare for a fight.

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House Committee Fights Back Against Ambush Elections

The “Ambush Election” rule is back and the National Labor Relations Board just closed the comment period. In a demonstration of how quickly they want this rule in effect, they’re beginning their hearing on the rule tomorrow. Now, this isn’t shocking, given the overreach and radical agenda of the NLRB has been a top concern for manufacturers for several years. The NAM has looked to push back against that overreach in all areas – we’ve been successful in the courts – and legislative solutions are an important aspect of this fight.

We know that the “ambush election” rule will change the way union elections are held, speeding up the process to the detriment of employers and employees – an unnecessary step when the vast majority of all union elections are held in a timely manner. The NAM greatly appreciates the leadership of the House Education and Workforce Committee and their efforts to stem the tide of this overreach. Chairman John Kline has put forth a bill that would protect against the harmfully short timelines of “ambush elections.” Rep. Phil Roe’s bill steps up to defend against the forced disclosure of private information about employee and their families.

Both bills were passed out of committee today – an important step in combating the damage that “ambush elections” would have on labor relations and the fairness of union elections.

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Ambush Election Comment Period Closes

Today, the comment period closes for the National Labor Relations Board (NLRB) proposed regulation on representation elections – or as we’ve come to call it, the Ambush Election Reg. The NAM has filed extensive comments opposing the regulation, which you can find here.

The NLRB’s proposed regulation fundamentally alters the way union elections are conducted by shortening the time between when a petition for election is filed and the actual election takes place. This time is critical to the process, because an employer is often unaware an organizing campaign was underway until the petition is filed. Under the proposed regulation, employers would have as few as 10-14 days from the day the petition is filed to the election taking place. In that short amount of time the employer must turn over employee contact information, draft a legal position about the election process and proposed collective bargaining unit or forever lose the right to bring it up, and determine how to communicate with its employees in a manner compliant with the National Labor Relations Act. All this would have to happen after retaining proper legal counsel in the event the employer doesn’t have in-house counsel.

The NAM’s comments take issue with virtually all aspects of the proposed regulation, but the central question the Board needs to answer – and so far has refused to answer – is why the change is needed at all. Why is it necessary to strip employers of their rights under the NLRA? Why is it necessary to require employers to disclose private employee information, including what days and times they work? Why is it necessary to fast-forward elections when the Board has met or exceeded its goals for over a decade? These are important questions the NLRB should answer before finalizing regulations that represent the most significant change to the election procedure in 50 years.

The NLRB will be holding a hearing on the proposed changes later this week – a scant three days from the comment deadline. It appears the Board majority really wants to hear and consider what the public has to say about the changes they’re asking for – three days to contemplate thousands of comments is reasonable, right? After all, that’s nearly a third of the time an employer would have before an election. I guess we shouldn’t be surprised, they are trying to institutionalize the ambush right?

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NAM Testifies on OSHA Silica Proposal

Today, the NAM testified before an Administrative Law Judge and a panel of OSHA officials on the agency’s proposal to lower the permissible exposure limit to respirable crystalline silica. Joe Trauger, Vice President of Human Resources Policy and Amanda Wood, Director of Employment and Labor, spoke on behalf of manufacturers in all sectors. Their testimony, which you can find here, highlighted some of the difficulties manufacturers will face with the new standard.

In particular, concerns were raised about whether employers will have certainty they are complying with the new lower exposure limit given challenges with testing technologies and inherent error rates with any in-field testing regime. Also of note, is the feasibility of employing engineering controls to limit the risk of exposure. OSHA has estimated the new regulation would cost roughly $640 million for industry to adopt, but business estimates range up to ten times higher.

OSHA’s hearing on the new silica standard is set to conclude on April 4. The NAM has filed formal written comments, submitted its testimony today and will file post-hearing comments with the agency on this proposal. A final rule is expected next year.

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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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The Promise of Using a Pen and a Phone is Alive and Well

During the State of the Union, President Obama promised to use his pen to enact policy changes, but despite that promise, today’s action to change overtime pay came as a surprise. It was never on a list of regulations or rules that might come out, an agenda – this almost seems to have been done on a political whim. Regardless, bad policy is bad policy no matter how carefully it may have been considered – and today’s announcement is bad news for manufacturers looking to grow, invest and create jobs. In a Presidential Memorandum, the Secretary of Labor is directed to alter the current rules in which an employee is to receive overtime pay as set forth under the Fair Labor Standards Act (FLSA).  The current rules for overtime pay lay out a test based on a threshold weekly salary (currently set at $455/week), as well as whether an employee may perform duties in a certain job category (management, supervisory), which then would exempt the employee from overtime pay.  While we have yet to see the details of the proposal, it is inevitable that these new rules will create more costs for employers, rather than help create more jobs.

This move by the Administration should not be surprising, however, since the President has said he would do what he can on his own to raise wages. He has already raised the minimum wage for federal contractors, but if Congress remains relatively the same, it is unlikely a minimum wage bill will pass in its current form. What the Administration fails to realize, however, is that changing the rules for overtime pay, will not achieve the end game of creating more jobs.  In fact these new rules will have the opposite effect since employers will have to pull resources away from new jobs.  Although we lack any specificity on this latest set of bad ideas, we know from the outset that the new rules will only create more hurdles for growth and job creation.

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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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