Eric Cantor

The big story brewing in Washington is the Congressional push-back against the rogue NLRB.  Members of both houses are working up proposed legislation to prevent recent NLRB actions or proposed actions, such as implementing quickie elections, forcing employers to put up a poster telling employees how to organize, and preventing employers from opening their businesses where they please (as in the Boeing case).

In a memo sent to House Republicans, House Majority Leader Eric Cantor (R-Va.) stated,

“This summer, the NLRB issued a notice of proposed rulemaking that could significantly alter current union representation election procedures, giving both employers and employees little time to react to union formations in the future. The result will increase labor costs and uncertainty for nearly all private employers in the U.S.”

We mentioned earlier this month that Rep. Benjamin Quayle (R-AZ) introduced a bill to repeal the rule requiring employers to post a new federal notice of an employee’s right to organize, which is scheduled to go into effect on Nov. 14th.  The Employee Workplace Freedom Act would rescind this rule.

Several business groups are also adding their weight to the contest, in the form of legal action. The U.S. Chamber of Commerce filed a new lawsuit against the new posting rule, claiming the NLRB failed to perform an Initial Regulatory Flexibility Analysis before seeking public comment on the rule. The Chamber disagrees with the NLRB’s statement that the rule “would not have a substantial economic impact on a substantial number of small entities.” If you listened to our webinar on the topic, you heard just how ludicrous was the boards estimate of financial impact on businesses.

Getting to the heart of the matter, the Chamber suit claims,

“The NLRB lacks the statutory authority to impose any of these requirements. Neither section 6 of the NLRA, nor any other provision of the NLRA, grants the NLRB the authority to require employers to post such a notification, to create and promulgate a new unfair labor practice where an employer covered under the NLRA fails to post a Notice, or to toll the statute of limitations.”

Joe Trauger, vice president of human resources policy for the National Association of Manufacturers, said this of his organization’s similar suit against the board’s posting rule, “We oppose many of the board’s other decisions, but this is the case and the fact pattern that was ripe for legal challenge at this time.”  The National Federation of Independent Businesses added to the stack with a suit of their own.

Amidst all of the angst provoked by the posting rule and the attack against Boeing, the DOL proposed changes to the persuader reporting rules actually have a greater potential for negative impact on employers, effectively muzzling them from exercising their free speech rights. Recent additional analysis of the proposal suggests that temporary workers hired to work during a strike might also fall liable to the rule, meaning they would have to report all of their personal information to the DOL, which would become public record and available to unions. If you don’t think the unions would use this as a “hit list” for intimidation and threats against such workers, see the recent action by the Laborers in the northwest.