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.

Will You Stand with Us to Reform Regulation?

By | Presidents Blog, Shopfloor Main | No Comments

35,000. That’s the cost of federal regulations endured by a small manufacturer with fewer than 50 employees—per year, per employee!

I think we can all agree: this isn’t the way our regulatory system should work. It is time for real reform.

That’s why the National Association of Manufacturers, in partnership with the Small Business & Entrepreneurship Council, is launching a project called Rethink Red Tape to bring the regulatory issue to life for lawmakers in Washington and provide real momentum for reform.

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Regulations are important, but the constant churn of new and misguided rules leads to regulations that are counterproductive, contradictory and next to impossible to understand. That’s especially hard for small business owners who don’t have the resources to keep pace with new regulations and absorb their higher costs.

Layers of excessive regulations hurt manufacturers’ ability to invest in new innovations, and our entire economy suffers as a result.

To correct this and enable American manufacturers and small businesses to grow and create jobs, regulatory reform has to be a bipartisan priority. Transparency, accountability and honest evaluations of small business costs need to be part of our government’s regulatory calculus. Too often, this is the exception and not the rule.

Through Rethink Red Tape, we’re working to change that, but we need your help to make this work. We need you to stand with us.

Rethink Red Tape will bring personal viewpoints and real-life stories to the conversation to explain the impact regulations have on small firms and the hours and opportunities manufacturers lose because of them.

As our program grows, we’ll identify and advance bipartisan solutions that will change the way regulations are written and give small businesses a stronger voice in the process.

Join us at www.RethinkRedTape.com and on Facebook and Twitter.

The Ambush-Specialty Ambush

By | Labor Unions | No Comments

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

You have been AMBUSHED – by the NLRB

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

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

President Supports NLRB’s Ambush Election Rule

By | Human Resources, Labor Unions | No Comments

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

A Fight Worth Having

By | Human Resources, Manufacturers’ Center for Legal Action | No Comments

Unless or until it’s stopped, the National Labor Relations Board regulation that denies employees time to consider whether to join a union by putting union elections on an inappropriately fast track will go into effect on April 14th. This is troubling to manufacturers because there is scant evidence anywhere that the union election process needs to be sped up at all and the regulation would force employers to turn over closely guarded personal information such as an employee’s cell phone number and work schedule. Read More

NAM Files Brief to Overturn NLRB Decision on Technical Refusal to Bargain

By | Manufacturers’ Center for Legal Action | No Comments

In the wake of the 2011 Specialty Healthcare decision by the National Labor Relations Board (NLRB), the country has seen a proliferation of so-called “micro-units” instead of the traditional “wall-to-wall” bargaining units. The change in the test for determining the appropriate size of a bargaining unit has led to the creation of these smaller micro-units even when every other factor, especially common sense, points in the opposite direction. Read More

NLRB Loses in the Fifth Circuit, But the Controversy Continues

By | Manufacturers’ Center for Legal Action | No Comments

For reasons not entirely clear to legal experts, the NLRB opted to not appeal a Fifth Circuit ruling in D.R. Horton, Inc. v. NLRB reversing their stance that a company cannot require its employees to consent to mandatory arbitration and class action waivers.  The Fifth Circuit is not alone; other federal and state courts have also disfavored the NLRB’s viewpoint.  Despite this trend and although the NLRB allowed the deadline to pass without requesting certiorari, attorneys involved in the controversial issue expect the that the agency will not change its position.

When the case entered federal court, the NAM filed an amicus brief. on June 6, 2012 arguing that prohibiting mandatory arbitration and class action waivers upon employment will increase costs for companies and result in unnecessary litigation.  Furthermore, the NAM challenged the NLRB’s authority to regulate individual contracts dealing with rights not covered by the National Labor Relations Act.  The court agreed and determined that the NLRB’s decision went beyond its statutory authority.

As the landscape now stands, companies will likely prevail in federal court on the issue, but will still battle the NLRB at the agency level.  It is possible that the NLRB refused to appeal the case to the high court because it feared an adverse ruling.  If this clash between agency and federal court continues, the Supreme Court will likely have to review the issue.  The NAM will continue to weigh in on this issue and take whatever steps appropriate to prohibit the NLRB from stepping outside its statutory authority.

Ryan Sims is a Law Clerk for the Manufacturing Center for Legal Action

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.

Ask an Expert: What’s the deal with the NLRB?

By | Labor Unions | No Comments

When the Senate confirmed nominees to the National Labor Relations Board (NLRB) late last month, it marked the first time that all five seats had been filled since 2003. It also marked a turning point in labor policy. Recently, decisions rested with an unbalanced configuration that almost never had a dissenting view. That did not seem right. After all, the NLRB is an extension of a government founded on the belief that tyranny of the majority is just as undemocratic as dictatorial rule.

Although the National Association of Manufacturers does not tend to agree with NLRB on a lot of its more recent opinions, we welcome a fully-staffed board ready to engage in the kind of robust debate of the issues that should take place before making decisions that impact our labor law system. Dissenting opinions are an important part of litigation. They often help to clarify a ruling, even when the overall outcome leaves something to be desired. A dissenting opinion could become the basis for why a law should change or why a previous ruling should be overturned.

Completing the NLRB roster brings the agency’s legitimacy back into play. Manufacturers are hopeful that the board’s members will avoid partisan politics as they carefully weigh all the options and opinions at hand. Our democracy depends on a healthy dose of dissent to properly function. So does our labor law system.

Amanda Wood is the director of employment policy for the National Association of Manufacturers.