Late Friday afternoon, the National Labor Relations Board announced it will conduct a public meeting on November 30th to allow the Board to vote on finalizing portions of a proposed regulation commonly referred to as the “ambush elections” rule. While short on details, it appears the Board will not compress the time frame between when a certification petition is filed and the actual election date, but it will proceed with provisions eviscerating employer’s legal rights.  An interesting side note about this is not only the timing of such an announcement- late in the afternoon on a Friday right before a major holiday- but, it is strangely curious the Board chose November 30th for the meeting, which just so happens to coincide with when the House is likely to take up legislation addressing the Board’s proposed rule on representation elections – an unlikely coincidence.

The offending provisions of the rule severely limit the legal options available to employers to challenge certain aspects of union representation elections. The most egregious part of the rule to be voted on would require an employer to declare, within seven days, all issues the employer intends to challenge.  If the employer does not state all challenges within the time frame, the employer will forever forfeit their right to bring it up at any later date. The rationale offered by the Board in stripping these basic rights away from employers will have the opposite effect than intended.

The Board claims it is trying to streamline the election process to reduce frivolous litigation from delaying representation elections. Despite offering no evidence of employers routinely using deleterious legal tactics to stall elections, the Board has deemed it necessary to “streamline” its procedures in order to solve a problem that doesn’t exist. What’s more, the non-existent problem is so serious the Board must circumvent its own protocols in order to address it. But, what’s a little protocol and precedent among friends, right?

Faced with losing the right to legal recourse if an issue isn’t stated at the beginning of the process, employers will be forced to litigate more in order to protect the very rights the Board is trying to limit or take away if they don’t exercise them.

Imagine the NFL requiring the visiting team to submit the plays they intend to run before the game. If the plays were not submitted the team couldn’t run them. Why would a coach submit anything less than the full playbook even with the knowledge that half or more of them would never be used? Wouldn’t it be malpractice to submit less? So too, will it be if these new rules are finalized by the NLRB -but, unlike the consequences in football, the result will be more costly and delay or stifle the creation of jobs – precisely the opposite effect the Board intends.

Today, Ford Motor Company and the United Auto Workers (UAW) have come to a tentative agreement that will result in thousands of quality manufacturing jobs at a critical time in our economy. Ford has stated they plan to add another 5,750 U.S. jobs in addition to the 7,000 they announced in January, which will in turn create a ripple effect of new jobs for other manufacturers and businesses throughout the supply chain. Many workers and their families will benefit from these additional jobs.

Both large and small manufacturers are essential to our economy and the recovery.  The United States is still the top manufacturing economy in the world and today’s announcement, which will create jobs, will make the manufacturing sector stronger.

Jay Timmons is president and CEO, National Association of Manufacturers.

On Saturday, the term of Wilma Liebman, Chairwoman of the National Labor Relations Board expired and she announced she was stepping down.  Board Member Mark Gaston Pearce has inherited the gavel, but don’t expect much change in the posture the board has taken in recent years.  Chairman Pearce’s term expires on August 27, 2013.

Wilma Liebman, initially appointed by President Clinton and reappointed by President Bush, is the third longest serving board member in the 76-year history of the board and we wish her well as she pursues other opportunities.  Yet, we remain concerned about the direction of the board and the impact it will continue to have on our tepid economic recovery.  In a recent survey of our members we found that nearly 69 percent believe the board’s complaint against Boeing and other actions, such as the proposed regulation implementing ambush union elections, have or will harm their efforts to create jobs – a critical component missing in our recovery.

In addition to the complaint and the proposed regulation, decisions have yet to be made on specific cases before the board which will alter the landscape of employee-employer relations for decades.  Three of the cases, if decided as broadly and dangerously as we expect, represent the most dramatic change in labor law in 50 years.  Perhaps, the most threatening of the three is Specialty Healthcare.

Specialty Healthcare, in which the board is determining what constitutes an appropriate bargaining unit, is a full-frontal assault on long-established law.  With this case, the board is not only trying to discern what is an appropriate bargaining unit within the healthcare setting, it is using the case to apply its interpretation economy-wide.  It is expected the board will reach the conclusion that the traditional doctrine of “community of interest” will no longer apply and allow the establishment of “micro-unions.” 

These micro-unions could be comprised of as few as two people and effectively cripple an employer’s ability to manage operations in an effective way.  Imagine trying to run a manufacturing facility with separate unions representing custodial staff, assemblers, fitters, fabricators, maintenance and others?  Each of those bargaining units would have the capacity to shut down production.  This isn’t a very efficient model and employers are justifiably worried about having such a model foisted upon them by an un-elected board.

At the end of the day, the expiration of Wilma Liebman’s term will do little to change the direction of the board, which is unfortunate.  So as the classic song Won’t Get Fooled Again by The Who concludes: “Meet the new boss, same as the old boss.” 

Joe Trauger is vice president of human resources policy, National Association of Manufacturers.

A former member of the National Labor Relations Board today reaffirmed the NLRB’s authority to punish companies that close facilities, eliminate jobs and relocate to escape union contracts, but said the board’s recent complaint against Boeing does not fall under that “runaway shops” category under federal labor law.

Cleveland attorney Peter Kirsanow, who served as a Republican appointee on the NLRB in 2006-2007, addressed the board’s actions in a blogger briefing call this afternoon sponsored by the National Association of Manufacturers.

On April 20, the NLRB’s acting general counsel, Lafe Solomon, filed a complaint against The Boeing Company, accusing it of commiting an unfair labor practice by building new production facilities for the 787 Dreamliner in South Carolina instead of the Puget Sound region. As a remedy, Solomon seeks to force Boeing to build production facilities in Washington State, even though the company has already invested an estimated $2 billion in South Carolina and hired 1,000 employees.

Kirsanow explained that in typical “runaway shop” cases, an employer decides not to bargain with a union about the company’s decision to move from an existing unionized location to a non-union one: “In such a circumstance, if the employer failed to bargain with the union where labor costs were a consideration, then he has committed an unfair labor practice. And there IS a restoration remedy, that is, the board has the right and ability to order the employer to resume or return to the status quo and continue bargaining with the union.”

But Boeing’s construction of a new production line in North Charleston, S.C., did not transfer existing union jobs or move equipment from Washington, Kirsanow said. In fact, the International Association of Machinists and Aerospace Workers have added some 2,000 union jobs in the Puget Sound area.  Kirsanow continued: (continue reading…)

Gov. Nikki Haley (R-SC) writes in The Wall Street Journal, “Obama’s Silence on Boeing is Unacceptable,” calling on the President to comment publicly on the National Labor Relation Board’s complaint against Boeing for locating additional 787 Dreamliner production in South Carolina instead of Washington state.

While silence in this case can be assumed to mean consent, President Obama’s silence is not acceptable—not to me, and certainly not to the millions of South Carolinians who are rightly aghast at the thought of the greatest economic development success our state has seen in decades being ripped away by federal bureaucrats who appear to be little more than union puppets.

This is not just a South Carolina issue, and President Obama owes the people of our country a response. If they get away with this government-dictated economic larceny, the unions won’t stop in our state.

The nation deserves an explanation as to why the president’s appointees are doing the machinist union’s dirty work on the backs of the businesses and workers of South Carolina.

Members of the White House press corps have yet to ask spokesman Jay Carney about the issue.

Elsewhere…

• The Hill, “Pawlenty criticizes Obama over labor board’s Boeing lawsuit“
• Point of Law, “Richard Epstein on labor law, the ‘menace’ of the NLRB, and Boeing“
• Bloomberg, “U.S. Labor Board Urged by States to Drop Boeing Complaint“

Organized labor, which opposes bilateral trade agreements due to the mistaken belief that they cause trade deficits and costs jobs, has been opposed to having the Obama Administration send the U.S. – Colombia trade agreement to the Hill for a vote. They have successfully delayed the agreement for over four years, costing American exports and jobs.

Organized labor’s opposition has harmed the very workers they purport to be protecting. In fact, labor’s opposition has imposed a tax on American workers of $2.4 billion dollars in lost wages and benefits. That’s how much American workers have had to pay for labor’s misguided view of the Colombian agreement.

The International Trade Commission estimates the Colombian agreement would generate at least $1.1 billion in new U.S. exports annually. The Commerce Department estimates that each $1 billion of exports supports about 6,700 U.S. jobs, so $1.1 billion of exports supports 7,370 jobs. Most of these jobs would be in manufacturing, where the average employee earns $75,500 annually. That works out to $550 million dollars in lost wages and benefits per year, for the four years and four months since the agreement was signed by both governments – a total penalty so far on American workers of $2.4 billion.

This cost on American workers is being imposed in the erroneous belief that these agreements are bad for U.S. jobs. In fact, the record shows that the United States sells more manufactured goods to our trade agreement partners than we buy from them. U.S. manufacturing has shown a trade surplus with our bilateral trading partners for three straight years, cumulating to nearly $70 billion. During that same time, U.S. manufactured goods trade with countries that have NOT entered into trade agreements was in deficit by roughly $1.3 trillion.

Colombian companies have had duty-free access to the U.S. market for years, and will gain hardly any new access. But U.S. companies now have to pay an effective average 15 percent in duties and other import taxes to sell to Colombia. The trade agreement will take that down to zero, yielding substantial new export and job opportunities, and giving American workers the same access to the Colombian market that Colombia already has in the U.S. market.

Colombia’s duty-free access has not resulted in a flood of manufactured goods exports to the United States. In fact, two-thirds of what Colombia sells us is oil, and we need oil from secure sources in our hemisphere. There is every reason for the Administration to move rapidly in sending the Colombian agreement to Congress for a vote. The votes are there for passage. All that remains is to send the agreement up for a vote – and end the $46 million a month that further delay is costing America’s workers.

 Frank Vargo is the NAM vice president for international economic affairs.

This morning the Department of Labor’s Bureau of Labor Statistics released new figures for union membership rates in 2010. Their figures show that union membership continued its downward trend as the number of union members dropped to 14.7 million, down from 15.3 million in 2009. The overall “rate” of unionization also declined as only 11.9 percent of all workers were members of a labor union in 2010.

Last year’s figures showed that for the first time more union members were employed by government in the public sector than by private sector employers. This dynamic continued in 2010 as 52 percent of all union members were public sector employees.

So what does this mean?

• It’s clear that fewer and fewer American workers feel the need to join labor unions. These figures help to explain why labor leaders have been so adamant in their efforts to change U.S. labor law in order to give union organizers greater influence. In previous years these efforts were marked by union support for legislation like “card check” but union leaders and their allies in Washington are now more focused on using executive branch actions like regulations and NLRB cases to change the rules.
• In recent years, we’ve seen Big Labor turn increasingly leftward, promoting a “progressive” political and social agenda that has little do with jobs creation and economic growth. By and large, that’s a result of the public sector unions and their leadership trained in government and politics, not on the factory floor. The continuing rise in public sector unions means that fewer union leaders will be engaged with the private sector (manufacturing) economy, which ultimately pays for all the government union jobs. Union leaders have been seeking numerous opportunities to expand the size of government – which would ultimately lead to more public sector employees, which in turn would boost union members.

Policymakers should focus their efforts on developing policies that enable employers to create jobs, rather than seeking ways to prop up union membership by changing U.S. labor laws.

America’s high-skilled manufacturing workforce is one of the most important contributors to our economy, producing 1/8 of the  nation’s GDP. Through their hard work, manufacturing workers in the U.S. make over 1/5 of all things made on the planet. This dynamic workforce includes employees who are represented by labor unions and those that are not.‪

This week marks the start of the 112th Congress, and the Committee that has jurisdiction over issues facing American workers begins with a new name – the Committee on Education and Workforce. Government institutions including cabinet agencies and Congressional Committees often change names to reflect changing dynamics and priorities: the Department of War is now the Department of Defense, the House Committee on Banking and Currency is now the House Committee on Financial Services, etc.‪

It is fitting the House Committee with jurisdiction over issues facing American workers will have a new name – the House Committee on Education and Workforce. It is true that historically that Committee had been named the Committee on Education and Labor, with the exception of brief periods of time when it was referred to differently.

This latest renaming indicates that the Chairman of the Committee, Rep. John Kline (R-MN), intends to focus on all workers in the economy and not just the 12.3 percent of American workers (and only 7.2 percent of private sector workers) who are members of labor unions.

The National Labor Relations Board (NLRB) today released a notice of proposed rulemaking that would require employers to post a notice to employees informing them of their rights under the National Labor Relations Act. Such a concept follows the recent move by the Obama Administration to require a similar posting for the employees for federal contractors.

In its proposal, the Board indicated that a majority believes that “many employees protected by the NLRA are unaware of their rights.” Brian Hayes, the lone Republican who serves on the Board, dissented from the proposal, arguing that the Board lacks the authority to impose such a requirement on employers. Hayes contends NLRB can only require such a posting after a finding of an unfair labor practice by an employer.

However, this notice for proposed rulemaking goes beyond just requiring employers to post a poster in their workplace, as they are required to do under other employment laws like the Family and Medical Leave Act and the Fair Labor Standards Act. Should this proposal be enacted as drafted, employers who communicate with their employees through web and e-mail would also be required to transmit this new posting of employee rights electronically.

We’ve long been troubled by and have predicted the NLRB’s intention to reinterpret U.S. labor law outside of Congress’ purview in order to expand union membership. Today’s announcement is certainly evidence that the board is well under way.

Union bosses are spending a fortune this election cycle to support candidates who have pledged to advance the “union agenda,” which contains many proposals that would be devastating to the economy. However, the media reports, this same level of enthusiasm just isn’t shared by the union members whom the union leaders claim to represent. There is growing sentiment that President Obama and Congressional Democrats have not delivered for working families and have not done enough to revive the economy. Well, in many ways we agree. Many of the proposals that have come out of Congress have actually hindered economic growth, such as: allowing the EPA to run roughshod with its regulations, passing the Ledbetter Bill and expanding government – but not controlling costs – through the health care legislation

Union leadership has already shown itself out of touch with what union members want: Above all, it’s jobs. Officials with Big Labor have waged a full-scale battle in support of the jobs-killing Employee Free Choice Act, when most union families disagreed with the provisions of the bill, specifically the effective elimination of secret ballots. At the recent “One Nation” rally, union leaders associated their organizations not with the working man or woman, but with the hard-core political left on issues involving social policy and support for the military.

Here at the National Association of Manufacturers we’ve encouraged candidates and Members of Congress from all parties to rally together for a strategy to support manufacturing jobs – something employers and employees both can get behind. We hope that this election day will serve as a wake up call for union leaders and policy makers alike: We need to work together to strengthen our economy and develop policies that help employers create and retain jobs.