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NAW News

Regulatory Agenda and Oversight

- April 2012

As we’ve noted in all our recent staff reports, the real threat facing business in the last three years – and certain to continue – has not been legislation, but regulation. The Obama Administration’s executive departments and agencies have moved aggressively to reverse the free market policies of the previous Administration, and have imposed burdensome, costly, time consuming and pro-union regulations on business at all levels and in all industries. Virtually all of the Federal Departments and agencies promulgated new rules and regulations, many of them spawned by the banking reform and health care reform bills passed by Congress in 2010.   

The most active—and those with the most immediate impact on the workplace – are OHSA, EBSA, W&D, OFCCP, FLSA, OLMS…the whole alphabet soup of regulatory agencies within the Department of Labor (DoL). And, even more threatening to business, the National Labor Relations Board (NLRB) is pursuing rare rule-making and an aggressive case law agenda. 

In response to the regulatory threat in the labor area, the Coalition for a Democratic Workplace – the business coalition organized to oppose card check legislation which NAW helps manage – re-defined its mission to focus on the regulations which threaten employers’ ability to manage their own places of business. As part of that reorganization, the coalition retained labor counsel to follow the regulatory agenda and coordinate the filing of comments and amicus briefs in response to agency rulemaking and eventually to take our case for regulatory restraint to court. 

We have challenged two NLRB rule-makings to date – “Ambush elections” and the notice posting.  We have filed amicus briefs in other cases, including the “Specialty Healthcare” case in which the Board paved the way for the creation of “micro” collective bargaining units.  These actions are all in addition to our multiple challenges to the legitimacy of the “recess” appointed Board members.  We anticipate at least one Labor Department Rule further facilitating union organizing that we would have to challenge in court. 

NAW and many of our member associations have lent their names to these briefs and comments, and we will continue to do so through the next year. 

The complete list of proposed regulations is far too long for inclusion in these reports, but you can access the Labor Department’s Spring 2011 Semi-Annual Agenda of Regulations here.

While the complete list is too long to cover in this report, a brief review of some of the most troubling of the on-going and proposed rule-makings and case decisions of DoL and the NLRB follows:

  • NLRB Rule requiring employers to post a Notice of Employee Rights Under the National Labor Relations Act:  CDW/NAM, the Chamber of Commerce, National Federation of Independent, Right to Work and others have challenged this rule in court in two jurisdictions.  We got an adverse ruling from the court in D.C. in the first case, which we immediately appealed, filing an emergency motion for an injunction to prohibit the Board from enforcing the Rule while the appeal is pending.  The challenge that was filed in a South Carolina court was decided this month in our favor, with the court declaring the NLRB’s Rule unlawful.  Shortly after the SC Court ruling, the U.S. Court of Appeals for the D.C. Circuit granted our motion for an injunction, thereby prohibiting the Board from enforcing the Rule on its April 30th deadline.  The Board has issued a statement acknowledging that their regional offices will not attempt to enforce the Rule.  The Court also set a schedule for briefs to be filed in the appeal and a September 12th date for oral argument in the case.  With that order and schedule, the earliest date on which the Rule could take effect would be October or November, and hopefully we will prevail in the appeal and the rule will be declared invalid for all jurisdictions.
  • NLRB “Ambush Elections” rule to speed up union organizing elections, curtail employer rights in the process and increase union membership:  CDW is also challenging this rule in court and other lawsuits may also be filed;
  • Office of Federal Contract Compliance Programs (OFCCP) is in the process of issuing new regulations requiring contractors to set affirmative action hiring goals for the disabled;
  • The NLRB has issued a number of decisions on the right of employees to comment negatively on their employers on Social Media as protected “concerted activity,” in response to which employers should review their social media policies – or implement one if needed (see separate Legal Update);
  • The NLRB continues to apply their “Specialty Healthcare” decision regarding what constitutes an appropriate collective bargaining unit to other companies and industries but this decision in now being challenged in Federal court;
  • We are still anticipating the release by the Department of Labor their Persuader Agreement rule, limiting the right and ability of employers to seek and obtain legal counsel during a union organizing campaign.