- January 2013
As we’ve noted in all our recent staff reports, the real threat facing business in the last four years – and certain to continue – has not been legislation, but regulation. The Obama Administration’s executive departments and agencies 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 (CDW) – the business coalition organized to oppose card check legislation which NAW helps manage – has focused exclusively and extensively on the regulations which threaten employers’ ability to manage their own places of business. To increase our effectiveness, 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 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 listing 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 and others successfully challenged in court and enforcement of the posting requirement enjoined;
- NLRB “Ambush Elections” rule to speed up union organizing elections, curtail employer rights in the process and increase union membership: CDW and others challenged in court, the court struck down the rule and the cases are currently on appeal;
- 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 several companies have challenged this decision in Federal court;
- We are still anticipating the release by the Department of Labor of their Persuader Agreement rule, limiting the right and ability of employers to seek and obtain legal counsel during a union organizing campaign.