Legislative News

NLRB Developments

Board Issues Final Rule on NLRA Posting Requirement

On August 25, the National Labor Relations Board (NLRB) issued its final rule to require that employers covered by the National Labor Relations Act (NLRA) post a new notice of labor rights. By Nov. 14, 2011, any NLRA-covered employer must display a poster in the workplace, plus post the notice on its intranet, if that’s where it normally displays workplace policies.

The original proposed rule was issued in December 2010. In comments submitted back in February and joined by 15 SHRM state councils and 13 chapters, SHRM suggested several changes to the proposed rulemaking and urged the Board to withdraw its proposal, arguing the agency lacked the statutory authority to issue such a requirement. One such change to the draft rulemaking ultimately adopted by the Board was SHRM’s recommendation that employers not be re-quired to distribute any posting notice via e-mail, voicemail, text messaging or related electronic communications.

Due to the questionable legal authority to require such a posting, challenges to the rule are likely. The NLRB revealed that it received 7,034 comments to the rule-the majority in opposition.

In the meantime, the NLRB has provided a question-and-answer page in an attempt to address issues about the final rule. If you have other questions on this rule, please contact SHRM’s Senior Government Affairs Policy Counsel, Nancy Hammer.

On Aug. 22, SHRM submitted comprehensive comments to the National Labor Relations Board in response to a proposed regulation that has earned the nickname "quick election," due to changes it would make to the process governing union representation elections.

SHRM’s comments were filed by the law firm of Jones Day and joined by the HR Policy Association, along with 32 SHRM chapters and 18 state councils. While still a proposal, the measure is expected by many to be finalized by the Board before the end of 2011.

Courtesy of Lehr Middlebrooks & Vreeland, P.C.

Conflict between the National Labor Relations Board and Congressional Republicans (primarily the House Oversight and Government Reform Committee and its chair, Darrell Issa (R-Cal.)) continues to escalate. Animosity between the two began in 2010, with President Obama's nomination of Craig Becker to the NLRB and his subsequent recess ap-pointment of Becker to serve on the Board after Becker failed to garner sufficient Senate support to be confirmed the old fashioned way. Becker, formerly General Counsel to the Ser-vice Employees International Union, opined in his prior career that employers should have no rights to express their views about unionization during the course of a union organizing campaign. The Obama NLRB has consistently moved closer to Becker's viewpoint. Examples include initiating litigation against Boeing for building a non-union facility in Charleston, South Carolina, which neither constituted a transfer of work nor caused the layoff of any Boeing union-represented em-ployee in Seattle. The House Oversight Committee conduct-ed hearings in Charleston, South Carolina, and forced NLRB General Counsel Lafe Solomon to testify at those hearings.

Continuing to fuel its regulatory revolution, the NLRB on June 21, 2011, proposed sweeping changes to union repre-sentation election rules and procedures (which could result in less than 10 days between the filing of a union petition and the date of an election), to reduce the amount of time employees have available to consider all of the facts and information necessary before making such a critical decision, and to limit employer rights regarding voter eligibility.

Issa requested documents from Solomon regarding the NLRB analysis and decision to issue a complaint against Boeing. Issa gave Solomon a deadline of Tuesday, July 26, 2011, at 5:00 p.m. In refusing to comply with Issa's request, Solomon wrote that, "It remains my belief that premature disclosure of the Boeing case file would severely impact the parties' due process rights and the Agency's legal process-es." The question now is whether Issa will take the next step of issuing a subpoena to Solomon and, if so, will Solomon provide the requested documents.

The time for public comment regarding the NLRB's pro-posed rules ends on August 22, 2011. Here is our pre-diction: The NLRB will move forward with issuing its rules, with very little change from what was originally proposed. The NLRB conducted hearings on July 18th and 19th, where several business advocates challenged the necessity of a change to the rules and described how smaller employers would be particularly harmed by the proposed quick election time limits. The NLRB let advocates have their say, but, at the end of the process, we expect the NLRB to state something to the effect that, "Although advocates on behalf of business and employer concerns were eloquent and provided several well-reasoned arguments in opposition to the rule, we conclude that they vastly overstate the potential harmful effects of the rule and, therefore, we believe that an ex-pedited process will more appropriately respect employ-ee free choice in deciding whether to become represent-ed."

As the rule-making process plays out, the question then is whether Issa will subpoena the records from the NLRB that Solomon has refused to provide. Labor is comforted by the fact of knowing that if the House pass-es legislation adverse to the NLRB, it may not pass the Senate, but if it does, President Obama will surely veto it. However, to the extent that the House Oversight Committee can dig and discover information that may be embarrassing and harmful to the NLRB in its handling of the Boeing case, that may become the most effective approach to place some limits on the NLRB.

Fall 2010 Hill Visit

The attached is a report by AL SHRM State Council Co-Legislative Director Juanita Phillips. Juanita is in charge of federal legislative affairs and I am in charge of state legislative affairs. I would also add a few other points of interest.

· Although this visit wasn’t quite as exciting as our last visit, you may recall we were there when the Healthcare Bill passed, we were there when the vote for adjourning until after the mid-term elections was held. This vote was important because many people wanted a vote on whether or not to extend the “Bush tax cuts” or at least some part of them. As you may know, the vote was tied after some Democrats changed their vote from yes to no. Speaker of the House Nancy Pelosi stepped in a cast the deciding vote for adjournment.

· As Juanita mentioned we had a little more conversation than normal since we were only talking about one item. The topic of the 1099 provision in the Healthcare Bill came up several times. As you may remember, the bill changes the law to require businesses to file 1099’s for any goods purchased for $600 or more for the year. This would be a hardship for many businesses and there is a strong sentiment on both sides of the aisle to either repeal it or modify it. However, attempts to do so were defeated in the House. The potential revenue taken out of a bill must be replaced and they can’t agree on how to replace the lost revenue.

· There were many discussions about the lame duck session and most of our MOC thought that the only thing that will be passed is budgetary and tax items. One Congressman though that we will see EFCA again during lame duck.

· One note on the lame duck session was made by Rep. Aderholt. Three senators will be seated right after the election instead of in January. Those three states are Illinois, Delaware and West Virginia. Those seats were filled by appointment due to President Obama and Vice President Biden’s election and the death of Sen. Byrd in West Virginia.

Pam Werstler, SPHR

SHRM Seeks Changes to Grandfather Clause Rule…

The Society for Human Resource Management (SHRM) on Aug. 16, 2010, submitted comments to the U.S. Department of Labor on an interim final rule for group health plans relating to status as a grandfathered health plan under the Patient Protection and Affordable Care Act (PPACA), calling for greater flexibility. The rule was issued by the U.S. departments of Health and Human Services, Labor and the Treasury.

SHRM expressed its concern that the narrow scope of the rule in effect makes the grandfather rule of the PPACA “a short transition rule rather than allowing the current coverage to remain in place indefinitely as the legislative language intends.”

While technically the regulations let an employer maintain the coverage in existence as of March 23, 2010, the agencies’ interpretation of the PPACA’s language “goes too far, making it unlikely that existing coverage can be maintained for very long,” SHRM wrote.

From the US Chamber of Commerce….

Blanche Lincoln, the Arkansas senator this week became the first Democrat to endorse a GOP bill repealing a new tax filing requirement for the nation's businesses.

The controversial mandate — contained in the new health reform bill — forces businesses, non-profits and government offices to file 1099 forms when goods purchased from any one business over the course of the year exceed $600. The previous filing requirement applied only to services topping that amount.

Behind the U.S. Chamber of Commerce, the business community is fighting tooth and nail to kill the mandate, which takes effect in 2012. On Thursday, Lincoln joined their push, signing onto legislation, sponsored by Sen. Mike Johanns (R-Neb.), that simply repeals the requirement.

The bill is S7538… Small Business Paperwork Mandate Elimination Act.

March 2010 Hill Visit

TVC-SHRM Member:

I just returned from the Alabama SHRM State Council Hill Visit to DC; we visited our Members of Congress on Thursday. This was the most exciting Hill visit I have attended, although we only saw 3 of our 9 MOC. We didn’t really expect to see very many due to the healthcare bills. We did, however, see our local Congressman Robert Aderholt. I must say he has seen us every time I have been there. I can understand why Parker Griffith didn’t see us; his resolution for an up or down vote on the healthcare bill was being voted on while we were in his office. We all stopped talking about the issues we were there to talk about and started watching CSPAN. It was like watching a sports event; we were focused on who would score next.

Our topics of discussion were healthcare reform and Section 127, which is the section of the Internal Revenue Code that allows an individual to deduct $5,250 from employer reimbursements from education expenses from their taxes. The law expires (sunsets) at the end of this year. We asked that the amount be increased and that it be made permanent. The law was enacted in 1978 and has been renewed 8 times.

All of our members said they were opposed to HR3590 and HR4872 (the reconciliation bill) and all 7 of our Congressmen voted against it. SHRM has gone on record as saying they can’t support the bill but has not said they oppose the bill. The reason is because there is a significant number of SHRM members who support the bill so they don’t want to alienate those members. That is why they sent out emails to all SHRM members with 3 different letters for members to support, oppose or not support the bill(s).

On Friday we went to the House Gallery and watched a little bit of the healthcare debate until they switched to recognition of some author. That was boring, so we left. On Saturday we found ourselves in the middle of the Tea Party Rally. There were thousands of people there and they just kept coming. It was announced that there were 25,000 people there. I don’t have any idea how many people were there but it reminded me of a rock concert. The energy was very much like that too. We heard Parker Griffith speak briefly against the healthcare bill during the rally. I have pictures of him speaking.

There are several states that have pending legislation to “opt out” of the healthcare bill; Alabama is one of them. I will research the bill number and give you all an update.

Pam Werstler, SPHR

Members of Congress

State Representatives:

http://www.legislature.state.al.us/house/representatives/houseroster_alpha.html

State Senators:

http://www.legislature.state.al.us/senate/senators/senateroster_alpha.html

US Representatives:

http://www.house.gov/house/MemberWWW_by_State.shtml#al

US Senators:

http://www.senate.gov/general/contact_information/senators_cfm.cfm?State=AL

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