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Controversial Labor Reversals Overshadow Idle Congress

Originally published: 10.01.11 by Charlie McCrudden


2011: Light on legislation, rich in regulatory activities.

This column is intended to provide news and analysis for HVACR contractors from ACCA’s perspective just across the Potomac River from what’s happening in Washington, D.C. I’ve always tried to focus on issues that fly under the radar of the general news media. In most years, those issues would be about policy and spending decisions affecting the industry. But 2011 isn’t most years, and the divided Congress has failed to pass any major energy, tax, or other small-business policy initiatives into law this year. Most of what’s happening is not coming from the Legislative branch. Instead, the HVACR industry and its players have been keeping a close eye on the regulatory agencies that are part of the Executive branch. Don’t for a minute think there’s not a lot of politics when it comes to the rules and regulations that come out of the Dept. of Energy, OSHA, or the EPA. President Obama, as the leader of the federal government, appoints thousands of workers to the federal agencies to carry out his agenda on behalf of his constituency. Recent actions by two federal agencies, the National Labor Relations Board (NLRB) and the Dept. of Labor, have raised eyebrows because of a perceived tilting toward the labor-union agenda. New ‘Labor Poster’ Required If you own a business and have an email account, you’ve probably received dozens of emails alerting you

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that you need a new “labor poster” because in August, the NLRB finalized a rulemaking that requires most private-sector employers to notify employees of their rights to organize and bargain collectively under the National Labor Relations Act (NLRA). The NLRB has a long-standing policy of not asserting its jurisdiction over very small employers with annual volumes of business too small to have more than a slight effect on interstate commerce. The NLRB’s general jurisdictional standards are industry-specific; and under the retail standard, which applies to employers in home construction, the NLRB will not “take” jurisdiction over any such employer that has a gross annual volume of business of less than $500,000. For businesses within the NLRB jurisdiction, failure to post the notice could be used as evidence in an unfairlabor practices case. Other than a brief mention that employees have the right to refrain from union activities, there is no mention of a right to decertify a union that is in place or how to do so. Organizations representing business interests raised objections to this rule from the day it was proposed back in December 2010. While other federal labor laws include employee notification requirements (the lunch room “labor law posters” that detail minimum wage, Family and Medical Leave Act, etc.), the NLRA as passed by Congress in 1935 and amended several times since has never required notification. Business groups are furious over this new poster requirement. Many have joined a lawsuit recently filed by the National Association of Manufacturers to block the new rule before it goes into effect in November. The suit alleges that the notice is little more than government- mandated advertisements for unions and an infringement on an employer’s private property rights. The suit asserts that the NLRB does not have authority under the NLRA to promulgate a rule requiring placement of the poster in a private business. One reason business groups are so upset is that some conclude that if management unknowingly provides incorrect answers to an employee’s inquiry regarding the notice, that could also constitute an unfair labor practice actionable by the NLRB. Despite the legal challenge, under the new rule, the two-page notice must be in place by Nov. 14, 2011, even if there is no union in that workplace. Proposed Rules Change Elections, Disclosures While the employer-notification rule was finalized in August, another rule still under consideration by the NLRB would accelerate union elections, and one proposed by the Dept. of Labor would change the rules governing management’s activities leading up to a union election. These are also straight off the union wish list. The “Ambush Election” rule would change the election procedures to shorten time between when employees file a petition and the union certification election. The change could mean that union elections occur within 10 days of the petition, instead of the average 38 days. The “Persuader” Rule would significantly curtail what an employer could do or say to its employees between the time of the petition and the union election. The proposed changes mean employers would have to disclose information about any advice provided by law firms, consultants, or trade associations, and the cost to provide that information. Combined, these proposed rules would dramatically decrease the time employers have to speak with their employees about union representation, potentially shortening the entire unionelection process. The rules would effectively block small businesses from obtaining legal and other advice about how to talk to employees during a union-organizing drive. And they may discourage attorneys willing to assist employers because both the client and counsel would have to disclose vast amounts of private financial and other data. Again, business groups in Washington feel these proposals unfairly tip the scale toward union organizers and leave employees without enough information or time to make a real decision in a real election. Rulings Raise Concerns But it’s not just the proposed rules coming from the Obama NLRB that are concerning to a lot of businesses; it’s also the precedent administrative rulings on specific complaints. The most notorious case is the recent action by the NLRB General Counsel accusing aerospace giant Boeing of violating the rights of its employees in Washington state by locating a new aircraft factory in South Carolina. As a remedy, the NLRB is seeking to have Boeing move the jobs to Washington, after the company invested more than $1 billion and hired new workers. A decision by an administrative law judge on this case is expected later this year, followed by a final review by the NLRB. The House of Representatives weighed in on the Boeing case on Sept. 15 when it voted 238-186 in favor of H.R. 2587, the Protecting Jobs from Government Interference Act. Introduced by Rep. Tim Scott of South Carolina, H.R. 2587 prohibits the NLRB from ordering any employer to relocate, shut down, or transfer a business under any circumstance. The fate of the legislation is uncertain in the Senate where Senate Majority Leader Harry Reid (D-Nev.) controls which proposals make it to the floor for a vote. In another case before the NLRB, known around labor law circles as Specialty Healthcare, the NLRB scrapped decades of precedent and adopted a new definition of “employee unit” when determining which employees can join together and vote in a union election. One tactic used by unions to recruit workers is to go after smaller groups of similar employees within a larger workplace, such as cashiers in a retail setting, in order to organize the workforce in batches. The Specialty Healthcare ruling would mean fewer employees would be needed to establish a union in a workplace, and an employer could end up with multiple separate units at one site, forcing them to negotiate a different contract with each union. Unknowns As The Year Ends Finally, one open case before the NLRB that hasn’t received much attention is already causing some employers to change their policies toward allowing charitable organizations to solicit on their premises. The NLRB is considering a new definition for when an employer who provides access to its workplace for charitable organizations and other solicitations has to provide equal access to union solicitations. The line of thinking goes that if a grocery store can allow the Salvation Army to collect donations in the parking lot, then union organizers should have the same access for boycotts or handbilling. The Roundy’s case involves a Midwestern grocery store chain that prohibited the Milwaukee Building and Construction Trades Council, AFL– CIO, from distributing handbills at their stores. If the NLRB lowers the bar so that any solicitation triggers a union right of access, it’s expected that most employers would change their policies in response, and prohibit an employee’s solicitation for things such as sports fundraisers or even Girl Scout cookies. The one wild card in all of this is the make up of the NLRB itself. The Board is made up of five members, but two seats are currently vacant. The Board is able to hear and rule on cases because only three votes are necessary for a quorum. But in December, one of the current Board members, Craig Becker, will have to step down. Becker was a recess appointment by President Obama, and as such, his term expires at the end of the year. That means the Board will be without a quorum at the beginning of 2012, and its caseload will be in limbo. n Charles McCrudden is Vice President/ Government Relations for the Air Conditioning Contractors of America, www.acca.org. He can be reached at charlie.mccrudden@acca.org. 


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