Regulatory Agenda and Oversight
- September 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.
While the complete list of regulations 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, with a report on CDW legal action where appropriate:
- 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 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. The separate challenge that was filed in a South Carolina court was decided in April in our favor, with the court declaring the NLRB’s Rule unlawful. After the SC Court ruling, the U.S. Court of Appeals for the D.C. Circuit granted our motion for an injunction, prohibiting the Board from enforcing its April 30th deadline. Our case will be argued before the DC Circuit on September 11th and a decision is likely before the end of the year. Even if we lose in the DC Circuit, the Board will not be able to require employers to post the notice until and unless the Fourth Circuit in the Chamber's case rules in the Board’s favor, and we do not expect that ruling until late spring or early summer next year. If CDW and/or the Chamber win, that could be the end of this process because Supreme Court review is not automatic, and the Board may not pursue the case further.
- NLRB “Ambush Elections” rule to speed up union organizing elections, curtail employer rights in the process and increase union membership: CDW and others challenged this rule in court immediately after the Board voted on it, hoping for court action before the scheduled April 30th effective date. On April 26th the NLRB Acting General Counsel released a guidance memo to regional Board offices implementing the rule. On April 27th, CDW filed a motion with the court asking for an order to stay the implementation of the rule, a motion we were not confident would prevail. On May 14th the court struck down the rule on procedural grounds (specifically that a quorum had not voted on the rule because one of the sitting Board members had not voted). The Board suspended implementation of the rule, then filed a motion asking the court to amend its judgment in the case. The court denied the Board’s motion, and on August 7th the Board appealed to the DC Circuit the district court decision striking down the rule as well as the lower court's rejection of the Board's motion for reconsideration. The DC Circuit has yet to set a briefing schedule. As a result, the earliest we would expect a ruling from the DC Circuit is late Spring/Summer 2013.
- 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. CDW has filed several amicus briefs in cases challenging application of the Specialty standard. For example, we are filing an amicus brief in Huntington Ingalls Inc. v. NLRB, which is on appeal from the Board to the Fourth Circuit. In this case the Board applied the Specialty standard to find that an appropriate unit consisting solely to a small subset of technical employees working in the Radiological Control department of the Employer’s Newport News Shipbuilding facility. Member Hayes dissented, finding the unit "excludes thousands of other technical employees working at the same facility. In spite of departmental homogeneity, this fragmented technical employee unit is clearly inappropriate, particularly in light of the high degree of functional integration of their duties with those of other technical employees in this defense contractor Employer’s workforce." The CDW amicus brief is due on October 17.
- 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.