Labor

Policy Accomplishments for 2011

National Labor Relations Board (NLRB)

• Continued to block Senate confirmation of Craig Becker to become a member of the NLRB. While the Chamber does not typically oppose nominations to the NLRB, Becker’s prolific writings about labor law strongly suggested that his views were outside the mainstream. Although he was later given a recess appointment to NLRB, which did not require Senate confirmation, this appointment will not last beyond 2011 and is much shorter than the five-year term he was nominated to. Also engaged in a successful campaign to raise awareness of NLRB issues on Capitol Hill, laying the groundwork for potential legislative action to rein in the agency.
• Changes to NLRB Ambush Notice of Proposed Rulemaking (NPRM). In response to comments submitted by the Chamber, as well as coalition comments to which the Chamber joined in, the NLRB did not proceed with some of the more onerous provisions of its NPRM regarding Representation Case Procedures (i.e., the Ambush election rule). For example, the rule will not contain the 7-day period for a pre-election hearing, the required statement of position, and the requirement that employers provide union officials with employee phone numbers and email addresses.
• Changes to NLRB Final Poster Regulation; Delay In Implementation. On August 30, 2011, the NLRB published its final rule requiring employers to post a notice of employee rights under the National Labor Relations Act (NLRA). While the Chamber remains opposed to the final rule, some modest improvements were made in response to our comments. For example, the rule accepts the Chamber’s suggestion that employers should not be required to distribute the notice by email, voice mail, fax, Twitter, and in similar ways. In addition, the effective date of the regulation has been delayed (and may be further delayed) as a result of legal challenges by the Chamber and others to the rule.
• Boeing bill.  On September 15, 2011, the House passed the Protecting Jobs From Government Interference Act (H.R. 2587). Often referred to as the Boeing Bill, H.R. 2587 would prohibit the NLRB from ordering an employer to close, relocate, or transfer employment as a remedy for an unfair labor practice. The Chamber worked at length with House Education and Workforce committee staff in drafting the bill and lobbied extensively for its passage.
• Ambush/Specialty bill. On November 30, 2011, the House voted in favor of H.R. 3094, the Workforce Democracy and Fairness Act. H.R. 3094 addresses the issues created by the board’s “ambush” election rule, as well as its decision in Specialty Healthcare (the micro union case). The Chamber worked at length with Education and Workforce staff in drafting the bill and lobbied extensively for its passage.
• Appropriations. The Chamber worked extensively with staff members of the Labor HHS Appropriations Subcommittee on appropriate funding limitation targets relating to the NLRB and Department of Labor (DOL) FY 2012 budgets. While the subcommittee’s draft bill included numerous important funding limitations, such as limiting the NLRB’s “ambush” election rule and decision in Specialty Healthcare, due to disagreements among Republicans on funding levels, only a few of these provisions survived in legislation signed into law by the president. Among those signed into law is a provision forbidding NLRB to conduct union elections electronically and a provision forbidding DOL from moving forward with OSHA’s MSD recordkeeping regulation designed to highlight and track ergonomic injuries. In addition, an accompanying statement included a direction to OSHA to submit a report to the appropriations committees describing how the agency has assessed employer record-keeping accuracy based on the recordkeeping National Emphasis Program that has been under way since October 2009.

Equal Employment Opportunity

• The Chamber successfully advocated for significant changes to rules proposed by the Equal Employment Opportunity Commission (EEOC) implementing the Americans with Disabilities Act (ADA) Amendments Act of 2008. The proposed regulations departed from the 2008 compromise legislation in several key respects. Almost all of the Chamber’s concerns were addressed by the final regulations, albeit not necessarily in the way we would have preferred. Nevertheless, the final regulations are consistent with the legislative compromise.

OSHA

• Compelled OSHA to withdraw its proposal to force employers to implement expensive noise protection equipment and other measures, even though employers are providing adequate protection through the use of personal protective equipment. An independent economic analysis estimated that the proposal would have cost employers more than $1 billion. 
• Caused OSHA to withdraw regulation from OMB review that would require employers to record musculoskeletal disorders (MSDs), the injuries associated with ergonomics, in a separate column on the OSHA record-keeping log. The final regulation was undergoing review at OMB when OSHA withdrew it, claiming that more small business input was needed. The regulation was based on a flawed and uncertain definition of MSDs.

Flight and Duty Time Regulations

• The Chamber was highly critical of the Federal Aviation Administration’s (FAA’s) one-size-fits-all approach proposed for regulating flight duty time in all sectors of the airline industry. These efforts resulted in the FAA making significant concessions by exempting cargo airlines from the new regulation.

Workforce Freedom Initiative - State Law Reforms

• Arizona: Helped secure passage of two bills amending Arizona law—a paycheck protection bill requiring a worker’s written consent before taking payroll deductions for political contributions and a bill upgrading the state’s harassment statute to deter trespassing and other union corporate campaign tactics. The paycheck protection law was challenged in federal court, and the judge struck down the law based on First Amendment violations. The Arizona attorney general has not said if he will appeal the decision. The Arizona Legislature is expected to reintroduce and pass a new paycheck protection bill in 2012, amending the previous bill to address the constitutional issues.
• Tennessee: Supported two successful labor bills. One bars maintenance of membership clauses in union collective bargaining agreements. Such clauses prohibit workers from withdrawing from union membership during the life of the contract. Another ends union exemption from the state’s violence in the workplace law, which covers assault, stalking, and intimidation.
• Michigan: Strongly supported the successful passage of the Fair and Open Competition in Governmental Construction Act, which prohibits the use of Project Labor Agreements (PLAs) on state or local government construction contracts and bans PLA-style restrictions on state or local government grants, awards of tax credits, or tax abatements. Four labor reform bills have been introduced in the House and are scheduled for a vote when the Legislature returns in 2012. The bills make changes to laws related to paycheck protection, mass picketing, replacement workers, and illegal strikes.
• California: Successfully lobbied for the governor’s veto of legislation that would have allowed the state’s agricultural workers to be organized under card check procedures.

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