The National Association of Manufacturers (NAM) applauds Congressman Francis Rooney (R-FL) for introducing the Current Employee Representation Act, H.R. 4327, which would give employees the choice to reconsider union representation should less than 50 percent of the current unit members are employed. Under current law, an employer has to file a petition when it is believed the current union does not have support from the majority of the employees in the bargaining unit. The employees then have to file for a decertification of the union. Rooney’s bill will put the power in the hands of the current employees by giving them the choice to be represented by the union who was chosen by a different group of employees. Employees will no longer have to live with the decisions made by their predecessors. Employees also want to continue with the union representation, but again, this will be of their choosing under Rooney’s bill. The NAM looks forward to this legislation moving forward and welcomes the change the bill will bring to union representation and empowering the current employee base.
In 2015, the National Labor Relations Board, in the Browning-Ferris Industries case decision, overturned 30 years of case precedent by redefining a joint employer. Previously, businesses could meet the definition of an “employer” if they had “direct and immediate” control over another’s work. Now, a business owner who has “potential” or even “reserved control” over the practices of another business and its employees could be considered a “joint employer.” This change means businesses may now be liable for the contents of a collective-bargaining agreement they did not negotiate, employee overtime issues they did not cause and other employment practices.
This new definition affects more than 770,000 employers nationwide across multiple sectors and impacts every manufacturer that contracts for performed work with an outside entity. Manufacturers that contract out for any product or service with another company could find themselves mired in unexpected issues that arise from that company’s conduct.
The decision has already had a chilling effect on manufacturers’ ability and willingness to hire outside entities they would normally hire for specific expertise and services in differing fields. This hampers productivity and leads to increased overall costs. It also injects risk into the use of innovative and flexible workforce designs that manufacturers may use to cope with uneven production levels or market uncertainties.
The House will take up H.R. 3441, the Save Local Business Act, a bipartisan bill introduced by Congressman Bradley Byrne (R-AL), which will restore the previous standard by amending the National Labor Relations Act to define that a person may be considered a joint employer in relation to an employee only if such person directly, actually and immediately exercises significant control over the essential terms and conditions of employment. Due to the importance of this legislation to manufacturers, the NAM will be key-voting this measure. We are hopeful the Senate will do its part next and take up this important measure so that manufacturers and others can focus on job creation and running businesses, rather than trying to navigate the complicated labor policy landscape.
This week, the administration hit federal contractors with a mandate it failed to achieve through congressional action—paid sick leave. This, unfortunately, seems to be the pattern, with a minimum wage mandate as well as the anticipated blacklisting regulation and guidance due out in April. When the administration is unsuccessful with Congress, it turns to the broad authority over federal contractors and pushes mandates onto the backs of those companies that produce essential products and services for the federal government.
For many years, the Healthy Families Act has come up as a proposal when both Democrats and Republicans have controlled Congress and has been repeatedly rejected. The concept has not, as the other side would have you think, been rejected because employers do not want to give their employees time off to care for themselves or their family. Read More
If anyone had a question about how the National Labor Relations Board decision on Specialty Healthcare and the recent implementation of the Ambush Election regulation would play out, we got an answer today. Today the NLRB released a decision on four cases involving Nestle Waters. The company has gone from having no petitions filed on April 13, to four petitions in four facilities filed in California on April 15. The petitioned bargaining units were contested to the Regional Director and ruled on today, May 5th. The elections in each of the four petitioned units will occur on Friday – this Friday, May 8th, just three weeks after the employer received the petitions. Read More
Despite our best efforts and after a four year battle, the National Labor Relations Board (NLRB)’s “Ambush Election” rule will go into effect today, Tuesday, April 14th.
This rule shortens the time frame before a union election robbing employees of the ability to gather the facts they need to make an informed decision and infringes in employee privacy requiring them to supply home addresses, telephone numbers, emails, work locations, shifts and job classifications. Read More
It comes as no surprise that, today, the President vetoed Congress’ disapproval of the National Labor Relations Board’s (NLRB) “Ambush” Election Rule, finalized by the Board late last year and which goes into effect on April 14.
In the Memorandum accompanying the pocket veto (a veto occurring while Congress is adjourned), the President states that Congress’s Resolution of Disapproval would “block modest, but overdue reforms to simplify and streamline private sector union elections.” The word “streamline,” in the Merriam-Webster Dictionary, means “to make simpler or more efficient.” However, when looking at the NLRB’s own data, I am confused as to what needs to be “made simpler or more efficient.” Currently, in over 95 percent of election petitions filed, a union election is held in 60 days or less. That is two months, which when you compare to our political campaign cycles, is merely a blink of an eye. So what exactly needs to be streamlined with this process? Read More
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
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.
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.
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.