National Labor Relations Board Archives - Shopfloor

Unequal Justice Under Law: NAM Files Brief Challenging NLRB’s Permissive Discrimination

By | Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

On September 2, the Manufacturers’ Center for Legal Action filed an amicus brief in the U.S. Court of Appeals for the Eight Circuit challenging a National Labor Relations Board (NLRB) decision forcing Cooper Tire & Rubber Company (Cooper) to reinstate an employee who used racial epithets toward a replacement worker while the employee was on the picket line. The NLRB’s decision overturned an arbitration decision finding that Cooper dismissed its employee for good cause. This decision does not align with existing federal law, forces manufacturers to execute a policy that leaves them open to civil liability and requires businesses to tolerate behavior antithetical to American values.

The NLRB’s decision to reinstate an employee who used racist speech does not follow federal law by violating Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. These laws prohibit discrimination and harassment on grounds such as race and allow for an employer to fire an employee in violation. The work environment should encourage openness and understanding of all employee backgrounds. Forcing a company to condone racist behavior violates other workers’ rights to a hostile-free workplace. Ultimately, this decision by the NLRB significantly diminishes an employer’s ability to cultivate an inclusive work environment, which hurts workers, productivity and profit.

Not only does this decision negatively impact the working environment, but it also forces manufacturers to accept conduct, which leaves them open to liability. Under federal law, when a racial statement is made directly to an employee, an employer can be liable if it knows about the statement and fails to take proper action. If the NLRB’s erroneous decision is upheld, employers in many instances will be forced to allow discrimination to continue, instead of firing employees for racial harassment. This would, therefore, require employers to follow a pro-discriminatory policy, exposing them to possible litigation and allegations of cultivating a hostile workplace environment.

This NLRB decision challenges American progress on issues of race and diversity in both business and culture. Employers should not be required to condone racism in the workplace. We are hopeful that the Eighth Circuit will understand the importance of overturning this discriminatory NLRB decision, which not only negatively impacts the way we conduct business but also the way we conduct ourselves.

NAM Backs Boeing after Misguided Decision by NLRB Judge

By | Briefly Legal, Labor Unions, Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

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.

A Glimpse Through the Looking-Glass

By | Labor Unions | No Comments

Last week, arguments were made in the appeal of the U.S. District Court decision in NAM v. NLRB with respect to the notice posting requirement. You may recall, the District Court Judge ruled the NLRB had the authority to require all employers to post a notice in their workplaces despite no clear statutory language indicating as much and use an employers’ failure to post as evidence of an anti-union bias.

The NAM argued the National Labor Relations Act is clear, the legislative history of the Act bears out, and the case history supports our position. Yet, the Board insists the opposite – such is the tug-of-war we face with regulatory agencies recently, but during the arguments the lawyer representing the Board made two points I thought worthy of discussion.

During questioning from the three-judge panel, the Board’s attorney revealed what we have long suspected, but had been unable to confirm publicly until now. When asked whether the Board believes it has the power to compel all employers to do something, the answer was yes. Perhaps hinting at a concern about the implications of allowing the Board to proceed with regulatory actions not clearly articulated in the Act, the Board attorney was asked, what then is the Board prohibited from doing? What are the limits to the Board’s power? Answer given: none. Read More

South Carolina Governor Highlights Manufacturing

By | America's Business, General, Presidents Blog | No Comments

NAM President and CEO Jay Timmons is blogging from the Republican National Convention in Tampa this week.

The Republican National Convention kicked off in earnest last night.  The atmosphere in the Tampa Bay Times Forum was electric.

For me, the highlight of the evening was the speech of Nikki Haley, the governor of South Carolina.  The Palmetto State is a great place to manufacture, and the industry has had a significant, positive impact on the state’s economy.  As Governor Haley said, “We build things in the Palmetto State. We build planes. We build cars.”

But it’s not always easy. As the Governor pointed out in no uncertain terms, in recent years, the federal government has put up obstacles to growth in the state.

When the Boeing Company expanded into South Carolina, it was a great opportunity.  Boeing’s billion-dollar investment meant 1,000 new jobs, and it meant that the state would be at the forefront of aerospace innovation, building the new 787 Dreamliner aircraft.

The National Labor Relations Board, however, stepped in and said the investment violated our labor laws, an action that threatened to wipe out Boeing’s investment and the new jobs.  Ultimately, Boeing prevailed, and today the South Carolina facility is up and running.

Governor Haley told this story well last night and offered an incisive perspective about the consequences of government overreach and its impact on a state and its citizens

I’m looking forward to hearing more about manufacturing from the speakers tonight.  In the meantime, the NAM continues to ensure manufacturing remains on everyone’s radar in Tampa.

This morning, I had a conversation with Sen. Ron Johnson of Wisconsin, who was a manufacturer before coming to the Senate in 2011.  We talked about the devastating impact the fiscal abyss would have on the economy and about the need for Congress to act quickly to avert this threat.

The fiscal abyss is a common theme in Tampa. The issue has come up repeatedly in my conversations with members of the press and media, and given the dire predictions that inaction by Congress could plunge the nation back into a recession, it’s no surprise why.

Keystone Pipeline Hearing in House

By | Energy, Infrastructure | No Comments

A pipeline intended to transport oil from Canada through the middle of the United States must first run through Washington.  That’s the unfortunate reality that is holding up construction of the Keystone XL pipeline.

The pipeline will create jobs–thousands of them–and add billions to the economy, yet it continues to get tangled in red tape.  Optimism that the Administration would approve the pipeline by the end of this year has turned to frustration after President Obama announced a decision would wait until 2013.

This project has waited long enough.  When TransCanada (the company building the pipeline) filed for its permit, it expected a wait of about 23 months.  Now, it’s looking at a delay that could exceed 50 months.

That’s one of the points that will be made by TransCanada at a House Energy and Commerce subcommittee hearing on the pipeline today. Other witnesses include representatives from organized labor, which also backs the project. You can watch the hearing here.

And earlier this year the House passed legislation that would force the President to make a decision by November 1.  It’s too late for that obviously, but Congress continues to press on.  A bill in the Senate would require a decision in 60 days–there’s more on that legislation in a post below.

The upside of this project is enormous–jobs, energy security, billions contributed to the U.S. economy.  So why wait?

Specialty Healthcare Micro-Unions a Reality

By | Health Care, Labor Unions | No Comments

On August 27th, the National Labor Relations Board (NLRB) issued a decision in a case known as “Specialty Healthcare.” The specifics of the case relate to whether certain healthcare providers can exclude other similarly situated providers when forming a collective bargaining unit. The NAM has been concerned from the outset that the case would effectively eviscerate what has been known as the “community of interest doctrine.” So, why should employers care?

The reason the community of interest doctrine is important is without it, the NLRB is paving the way for what’s known as micro-unions. Micro-unions are unions with as few as two people forming a unit for collective bargaining. Imagine a restaurant where dishwashers, prep-cooks, fry-cooks, grill-cooks, wait staff, and bartenders all form their own collective bargaining units and are represented by different unions. Specialty Healthcare essentially allows such a hypothetical to materialize. How long would this restaurant be able to function and stay in business?

The public and business community were told the Specialty Healthcare decision wasn’t a big deal so we shouldn’t worry about it. Nothing to see here, they said.

On October 19th, the NLRB ruled on its first case invoking the new precedent created by the Specialty decision. The case, First Aviation Services, involves a company of 110 employees in which a group of 34 were allowed to form their own bargaining unit despite sharing a community of interest with all but two of the other workers in the same facility. The NLRB promptly denied the employer’s attempt to appeal the ruling of the regional director. The regional director used Specialty Healthcare as its rationale for granting the employee’s request to organize a unit of 34 employees and the full Board denied the employer’s request to review the regional director’s reasoning. While the decision is only two months old, it has already provided the road map for organizers to divide and conquer. The decision is clearly going to have far-reaching implications for decades unless it is over-turned.

Manufacturers File Injunction in Case Against the NLRB

By | Labor Unions | No Comments

Manufacturers are frustrated by recent actions taken by the National Labor Relations Board that will have far reaching effects on employees, employers and job creators.  Among these, is a Final Rule issued in late August requiring employers to post a notice advising employees of their rights under the National Labor Relations Act. 

From the outset, the NAM has questioned the Board’s authority under the National Labor Relations Act to compel all employers to do anything. On September 8, the NAM filed a lawsuit against the NLRB in U.S. District Court stating the law does not permit the Board to issue such a rule.  The rule would require all employers to post the notice on or before November 14. The NAM strongly believes the Board has overstepped its legal authority in issuing this rule and the overreach must be challenged.

The effective date of November 14 is fast approaching and there is no guarantee the court will rule on the case prior to the rule going into effect.  As a result, the NAM filed a motion for preliminary injunction with the Court yesterday.  The NAM is asking the Court to prevent the rule from taking effect until it decides on the lawsuit. 

If the NAM motion is successful, the November 14 date would be pushed to a date to be determined.  The NAM believes a preliminary injunction is the prudent decision in this circumstance to avoid the potential for confusion about whether employers need to comply and when. 

The NAM has stressed the point over and over again that the level of uncertainty in our regulatory environment is stifling job creation and economic growth. The NLRB clearly cannot see the negative effects its rulings and rulemaking have on employers and employees, but more troubling is the fact that the Board is asserting powers it doesn’t possess and circumventing Congress’ jurisdiction and oversight. Read More

Tribune Review Editorial Pushes Back Against the NLRB

By | Labor Unions | No Comments

Today the Pittsburgh Tribune Review ran an editorial discussing the recent actions of the National Labor Relations Board (NLRB) and the lawsuit the National Association of Manufacturers has filed to stop the Board from moving forward with the posting requirement rule.

The piece backs up the recent actions of the NAM and other business groups pushing back against the NLRB interfering in the basic business decisions of companies.

Here is a brief excerpt from the Tribune Review editorial:

And with the National Federation of Independent Business, the manufacturers group has launched an ad campaign urging Congress to stem the NLRB’s meddling in where businesses choose to operate. This, in response to the board’s crusade against Boeing’s decision to build a new jetliner factory in right-to-work South Carolina.

The business groups’ timing couldn’t be more apropos. As President Obama shifts into overdrive urging businesses to hire, they’ve responded with a clarion call of their own for Mr. Obama and his NLRB enforcers: “Get off our backs!”

Former NLRB Attorney Believes NLRB is Overreaching

By | Labor Unions, Regulations | 2 Comments

This morning the House Education and Workforce Committee held a hearing that focused on many of the recent actions of the National Labor Relations Board (NLRB). The hearing was titled “Culture of Union Favoritism: Recent Actions of the National Labor Relation’s Board.”

One of the witnesses was Curtis L. Mac who served as a regional director for the NLRB for five years and also served as an NLRB attorney in Cleveland. In his testimony Mr. Mack makes it clear in his testimony that he believes the recent actions by the NLRB interfere with employers’ rights to communicate with employees:

I believe theserules and decisions come at the expense of employees and emasculate Section 7 of the Act. They will interfere with employees’ rights to decide for themselves whether to join a union or refrain from joining or supporting a union. These actions will also interfere with employers’ rights to communicate with their employees regarding unionization issues. In short, the only beneficiaries of these new rules and decisions are unions.

In the conclusion of his testimony Mr. Mack states that he believes the recent decisions by the NLRB on the Specialty Healthcare case and Lemons Gasket Co case is the board’s attempt to implement the Employee Free Choice Act, which Congress rejected:

I believe that Specialty Healthcare, Lemons Gasket Co. and the proposed rules are the Board’s response to the failure of the Employee Free Choice Act. That proposal would have by passed secret ballot elections and required employers to recognize a union 14 on the basis of cards signed by employees publically. Congressappropriately refused to deny American workers their right to a secret ballot, but the Board’s proposals and decision seems to be an attempt to salvage the heart of EFCA.

House Previews Regulatory Rollback Agenda

By | Economy, Regulations | 2 Comments

Congress remains in recess until after Labor Day, but today House majority leadership sheds some light on its upcoming agenda.  A key part of that agenda: rolling back regulations that are hurting job growth.

The House plans to hold one vote a week to repeal harmful regulations.  First up is a vote on the Protecting Jobs From Government Interference Act (H.R. 2587), which will prevent the National Labor Relations Board from dictating where an employer can do business. (Votes on other pieces of the NLRB’s agenda are possible later in the year.)

Also, on the docket are the various MACT rules—Boiler MACT, Utility MACT and Cement MACT.  These environmental regulations will hit manufacturers with huge compliance costs and hurt U.S. competitiveness.

The United States is already an expensive place to do business—18 percent more expensive than other industrialized nations—and new regulations will only make it more so.