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The NAM filed an amicus brief urging the U.S. Court of Appeals for the D.C. Circuit to reverse the U.S. District Court for the District of Columbia's refusal to delay the deadline for filing the Revised EEO-1 Report “Component 2” pay data. The district court also should not have crafted its own remedy that ignored the significant deficiencies in the record. Component 2 creates an administrative burden for employers who will now be forced to bear the costs of complying with the requirements. The NAM’s brief argued that the EEOC had previously recognized that changes to EEO-1 require significant time and expense, the record showed questionable public benefits and the data should not be required until EEOC can preserve confidentiality.

The NAM filed an amicus brief in support of UPS in the first as-applied challenge of the ambush election rule. In 2014, the National Labor Relations Board (NLRB) issued the election rule, which elevated speed above due process and transparency. Shortly thereafter, because the Election Rule failed to balance other important policy objectives, the NAM brought a facial challenge to the rule in the U.S. District Court for the District of Columbia, which rejected the challenge based on its belief that the rule would be applied in a fair manner. A fair, transparent and thorough election process is important for manufacturing employees to be able to have an informed choice whether they want to be represented by a union. The NAM’s brief argues that this case serves as a prime example of how the rule has been applied to deny employers due process, such as by failing to resolve a voter eligibility issue before the election and denying an appropriate hearing. The D.C. Circuit held that there was no defect in the Board’s decision to certify the Union and consequently denied UPS’s petition for review.

The NAM filed an amicus brief in the D.C. Circuit supporting Browning-Ferris in its appeal from an adverse decision by the National Labor Relations Board (the Board) in a dispute regarding the legal standard that should apply when determining whether two or more companies are “joint employers” under federal labor law. The Board abandoned its longstanding legal standard for joint employer determinations, replacing it with a new standard that evaluated whether an entity exercised indirect control over the means or manner of the employees’ work and terms of employment, or whether the entity had the potential to exercise such control. If upheld, the new standard would unreasonably expand the companies deemed to be an individual’s employer and impose employment obligations and liabilities on those employers. The NAM’s brief argued that the longstanding “direct control” standard should remain the standard for determining joint employment and that the Board’s loosened standard subjected companies to unmerited liability, without providing the same benefits as the old rule. The D.C. Circuit upheld the Board’s consideration of “reserved right to control” and “indirect control” in the joint-employer inquiry but remanded the case to the NLRB for it to adequately define what constitutes control.

The NAM filed an amicus brief in support of an employer’s right to manage internal company investigations of employee misconduct. This case stemmed from a previous National Labor Relations Board (NLRB) decision where Banner Health Systems instructed employees to maintain confidentiality during ongoing investigations of employee misconduct. This issue is important to manufacturers because their business operations would be disrupted by employees discussing the details of a sensitive internal company investigation. The NAM’s brief argued that the NLRB’s ruling would burden employers by requiring them to justify the need for investigatory confidentiality at a point where such justification would be almost impossible. Although the decision is narrowly tailored, the outcome is a win for manufacturers as the court did not opine on the NLRB’s case-by-case approach to justify employer confidentiality.

The NAM filed an amicus brief in support of FedEx’s position that delivery service contractors working for FedEx were independent contractors, not employees of FedEx. The facts of this case were “materially indistinguishable” from a prior case where the U.S. Court of Appeals for the District of Columbia Circuit determined that a group of delivery service contractors were not FedEx employees, but were independent contractors under the National Labor Relations Act. This case is important as worker classification may have broad ramifications affecting the use of independent contractors and partnerships between manufacturers and commercial vehicle drivers are a key asset. The NAM’s brief explained that worker classification issues directly impact all segments of the economy and more directly, the trucking industry. In a win for manufacturers, the court ruled against the plaintiffs.

The NAM filed an amicus brief in the U.S. Court of Appeals for the D.C. Circuit supporting Volkswagen in a collective bargaining dispute with the United Auto Workers (UAW). The UAW brought the complaint after Volkswagen opposed the creation of a micro-bargaining unit exclusively for maintenance employees; UAW argued that because maintenance employees “share a unique function” they are readily identifiable and therefore should be recognized as a bargaining unit. This litigation is important to manufacturers because micro-bargaining units disrupt highly integrated manufacturing operations. The NAM’s brief argued that the Specialty Healthcare case, which reversed 70 years of precedent and instated a new standard for determining a collective bargain unit, should not apply because that case is inconsistent with the statue and the legislative history. After the National Labor Relations Board (NLRB) issued a revised ruling in another case, the D.C. Circuit remanded this case back to the NLRB for reconsideration.

The NAM filed an amicus brief in a labor litigation lawsuit to oppose the Department of Labor’s (DOL) application of the Davis-Bacon Act, which requires “prevailing wages” for construction workers on public buildings or public works projects funded by the federal or D.C. government, to a private construction project. This is an appeal after DOL ruled that the City Center DC project was subject to the 1931 Davis-Bacon Act. If left unchecked, the DOL’s attempt to apply the Davis-Bacon Act to the private construction industry would have had a significant and potentially negative impact on private industry, the government and the economy. The NAM’s brief argued that DOL’s application of the Davis-Bacon Act to a private construction project was contrary to the language of the Act and that it was an unprecedented attempt to expand the scope of the Davis-Bacon Act into the private construction industry. The court applied common sense reasoning to reject DOL’s expansion of federal law.

The NAM filed an amicus brief supporting employers’ rights to protect sensitive communications between employees and an employer’s counsel. This case involves an in-house investigation of tips alleging potential False Claims Act violations where, although the company provided 100,000 pages of documents during the discovery phase, the trial judge ordered that 89 documents identified as privileged be disclosed. If upheld, this precedent will penalize companies for adopting internal compliance programs and force companies to either risk a waiver of attorney-client privilege or to forego legal advice. The NAM’s brief argued that 1) a communication with counsel should be protected provided that the predominant or primary purpose of the communication is for securing legal advice; and 2) if these communications were to lose their privilege solely because they were part of a compliance investigation, “required by regulatory law’” many regulatory programs would be frustrated. In 2014, the appellate court overruled the trial court’s decision and ruled that the communications were protected by the attorney-client privilege. The trial court again ruled against the privilege assertions, and the NAM filed a second amicus brief in 2015 supporting mandamus to the appellate court. In a win for manufacturers, the appellate court reversed the district court for a second time.

This case involves an employer who asked employees not to discuss their complaints about co-workers with others while an investigation was ongoing. The NLRB ruled that an employer violates employee union-organizing rights when it has such a blanket policy, and that employers must “first determine whether in any given investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.”

The NAM and other business groups submitted an amicus brief in support of the employer, stating that the NLRB was incorrect in its decision because the Board failed to take into account the challenges employers will now face when conducting an investigation. For example, with the Board’s decision an employer may not be able to uncover the entire story because employees will not come forward if they know the investigation is not confidential. Additionally, the amicus brief pointed out the Board ignored its previous decisions on investigations and overturned decades of its own precedent on the matter. The Board’s decision places an enormous burden on employers to justify the confidentiality of their investigations prior to interviewing all the witnesses or even assessing the situation.

The D.C. Circuit sent the case back to the NLRB. In June 2015, the NLRB again ruled the employer’s confidentially policy violated the NLRA, and Banner again appealed to the D.C. Circuit. The NAM also filed an amicus brief in the second appeal.

The NAM has won a major victory for manufacturers that we have been fighting for since 2011. This win came from the U.S. Court of Appeals for the D.C. Circuit, where we appealed a federal court ruling that upheld the NLRB's regulation that required employers to post in their workplaces a notice of the right of employees to organize into unions, bargain collectively, discuss wages, benefits and working conditions, jointly complain, strike and picket, or choose not to do any of these activities. For details on the district court proceedings, click here.

On 5/22/2012, the NAM filed a brief arguing 3 main issues. First, we challenged the fundamental authority of the Board to issue a posting rule at all. Congress never authorized notice-posting requirements, and rejected an express notice-posting amendment in the National Labor Relations Act (NLRA) while accepting notice-posting requirements in other labor laws.

Second, we again raised the argument that a mandate that private parties post government notices, without a clear statutory basis or compelling governmental interest, violates the First Amendment rights of employers as well as the balance of requirements spelled out in the NLRA.

Third, if the penalties for failing to post the required notice were themselves unlawful, the judge should have thrown out the entire regulation, because the NLRB did not intend for the posting requirement to stand on its own without enforcement teeth. The posting requirement was not severable from the enforcement provisions, and the entire regulation should fall.

We later filed a reply brief arguing that the NLRB failed to establish any statutory authority for the posting requirement. The Board had no authority to impose affirmative duties on employers who are charged with violations of the NLRA. The rule also violated the statutory provision which prohibits the Board from regulating expression that “contains no threat of reprisal or force or promise of benefit,” and violated employers’ First Amendment rights by forcing employers to communicate an unwanted editorial judgment to their employees.

On May 7, 2013, the D.C. Circuit agreed and overturned the NLRB regulation. It found that the rule's requirement that employers post a Government message requires an act of speech, and Section 8(c) of the Labor Management Relations Act declares that speech "shall not constitute or be evidence of an unfair labor practice under the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit." Thus the rule itself violates Section 8(c) because it makes an employer's failure to post the Board's notice an unfair labor practice.

It also ruled that the Board could not consider noncompliance with the rule to be evidence of antiunion animus, since that is also an unfair labor practice based on protected speech. Finally, the court ruled that the Board did not have the authority to amend the statute of limitations for filing unfair labor practice charges. Unless Congress intended the statute of limitations to include exceptions, the NLRB cannot create them years after the law was enacted.

Because all three means of enforcing the Board's posting requirement were invalid, the court ruled that the posting requirement itself was invalid, because the NLRB would never have promulgated it in the first place without ways to enforce it. The Board did not want just voluntary compliance.

A concurring opinion from 2 of the 3 judges found that the Board did not have authority under Section 6 of the NLRA to issue the rule because the posting requirement was not necessary to carry out the Board's responsibilities. It may only issue regulations that are necessary to carry out its responsibilities. The law does not impose an obligation on employers to educate its employees on labor relations law. In addition, the NLRB was set up to handle complaints that are filed by others, not promulgate rules that are "so aggressively prophylactic as the posting rule."

On 7/22/13, the NLRB asked the full complement of judges on the D.C. Circuit to rehear this case. The NAM filed a brief in opposition, arguing that the Board failed to identify any conflict between the court's ruling and any other court decision that would warrant further review. We also noted that a majority of the panel that decided the case also ruled that the Board exceeded its statutory authority on other grounds which independently preclude enforcement of the poster rule. On Sept. 4, the court declined to rehear the case. The NLRB had 90 days to appeal to the Supreme Court, but it declined to do so. The D.C. Circuit's ruling is now final.

The NLRB has appealed a decision of a federal judge who ruled that it did not have a quorum when it promulgated its “ambush election” rule in 2011. The Coalition for a Democratic Workplace, of which the NAM is a leading member, challenged the rule. Click here for a summary of the proceedings in the trial court.

The NLRB filed its main brief on Nov. 16, and the Chamber and CDW filed their brief on Dec. 31, 2012. Oral arguments were scheduled before Judges Henderson, Brown and Kavanaugh, but the arguments were postponed and the case was held in abeyance pending resolution of the Noel Canning decision on whether the recess appointments to the Board were constitutional.

In December of 2013, the NLRB voluntarily dismissed its appeal in Chamber of Commerce v. NLRB, the case in which the U.S. District Court for the District of Columbia found the Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011.

On 11/2/01, the D.C. Circuit ruled that the NLRB acts legally when it requires that employees in non-union workplaces be given the right to have a co-worker or other individual with them during an investigatory interview by an employer. Section 7 of the National Labor Relations Act protects the right of an employee to engage in concerted activities for the purpose of mutual aid or protection, and having a co-worker present during an investigatory interview is justifiable to ensure that the employer "does not initiate or continue a practice of imposing punishment unjustly." However, the court refused to apply the NLRB's revised interpretation retroactively in this case. It will be applied in future cases.

The NAM and other groups filed an amicus brief on 5/15/01 objecting to the extension of so-called Weingarten rights of union employees to non-union workers, arguing that an individual non-union employee's representative does not represent the interests of the entire workplace.

The NAM joined in an amicus brief urging the D.C. Circuit to reverse a recent 2 to 1 NLRB ruling. The ruling required the new owner of a company to bargain with the union that represented the employees of the company before it was sold, in spite of the fact that a majority of the employees signed a petition to decertify the union as their representative. The decision undermines employee freedom of choice, forcing upon them an artificial and unwanted relationship which could give rise to industrial strife and tension. The NAM, joining with the Master Printers of America, the Center on National Labor Policy, Inc., and Associated Builders and Contractors, Inc., argues that the National Labor Relations Act gives an employer the right not to recognize a union when it has a good faith doubt that the union represents a majority of its employees.

On 10/15/99, the NAM filed a brief supporting the NLRB’s decision allowing a company to lock out employees who engage in inside-game tactics. The D.C. Circuit ruled 5/9/00 to uphold the company’s lockout.

Union employees use "inside game" tactics to win bargaining-table concessions, slowing down the work pace, refusing to work overtime, asking for minute instructions from supervisors, filing mass charges with government agencies, calling in sick, or otherwise impeding or disrupting operations without actually going on strike. By taking the strike inside, union employees continue to be paid. The company in this case faced this situation and locked them out.

The U.S. Court of Appeals for the D.C. Circuit affirmed an NLRB decision in favor of the company, Central Illinois Public Service Co. (CIPSCO). The court and the Board allow companies to lock out such employees, as a legitimate countervailing economic weapon. According to the court, lockouts are not "inherently destructive of employee rights," and the employer had a "legitimate and substantial business justification" for the lockout. A lockout is a reasonable tool to help bring about a resolution of collective bargaining negotiations, and there was no evidence of anti-union animus on the part of the employer.

The NAM filed an amicus brief opposing an expansion of employer liability for companies that share control over certain employees. In this case, the National Labor Relations Board (NLRB) departed from precedent and imposed new “indirect” control factors into its analysis of CNN’s status as a joint employer, which could challenge traditional business relationships and expose manufacturers to additional liability. The NAM’s brief argued that the new control factors would create a standard that would impose significant burdens and uncertainties in business relationships. In a win for manufacturers, the court noted that the NLRB had not explained how CNN satisfied the traditional “direct and immediate” test for determining joint-employer status and remanded the case.

On 10/15/99, the NAM filed a brief supporting the NLRB’s decision allowing a company to lock out employees who engage in inside-game tactics. The D.C. Circuit ruled 5/9/00 to uphold the company’s lockout.

Union employees use "inside game" tactics to win bargaining-table concessions, slowing down the work pace, refusing to work overtime, asking for minute instructions from supervisors, filing mass charges with government agencies, calling in sick, or otherwise impeding or disrupting operations without actually going on strike. By taking the strike inside, union employees continue to be paid. The company in this case faced this situation and locked them out.

The U.S. Court of Appeals for the D.C. Circuit affirmed an NLRB decision in favor of the company, Central Illinois Public Service Co. (CIPSCO). The court and the Board allow companies to lock out such employees, as a legitimate countervailing economic weapon. According to the court, lockouts are not "inherently destructive of employee rights," and the employer had a "legitimate and substantial business justification" for the lockout. A lockout is a reasonable tool to help bring about a resolution of collective bargaining negotiations, and there was no evidence of anti-union animus on the part of the employer.

On 11/2/01, the D.C. Circuit ruled that the NLRB acts legally when it requires that employees in non-union workplaces be given the right to have a co-worker or other individual with them during an investigatory interview by an employer. Section 7 of the National Labor Relations Act protects the right of an employee to engage in concerted activities for the purpose of mutual aid or protection, and having a co-worker present during an investigatory interview is justifiable to ensure that the employer "does not initiate or continue a practice of imposing punishment unjustly." However, the court refused to apply the NLRB's revised interpretation retroactively in this case. It will be applied in future cases.

The NAM and other groups filed an amicus brief on 5/15/01 objecting to the extension of so-called Weingarten rights of union employees to non-union workers, arguing that an individual non-union employee's representative does not represent the interests of the entire workplace.

The NAM joined in an amicus brief urging the D.C. Circuit to reverse a recent 2 to 1 NLRB ruling. The ruling required the new owner of a company to bargain with the union that represented the employees of the company before it was sold, in spite of the fact that a majority of the employees signed a petition to decertify the union as their representative. The decision undermines employee freedom of choice, forcing upon them an artificial and unwanted relationship which could give rise to industrial strife and tension. The NAM, joining with the Master Printers of America, the Center on National Labor Policy, Inc., and Associated Builders and Contractors, Inc., argues that the National Labor Relations Act gives an employer the right not to recognize a union when it has a good faith doubt that the union represents a majority of its employees.

The NAM has won a major victory for manufacturers that we have been fighting for since 2011. This win came from the U.S. Court of Appeals for the D.C. Circuit, where we appealed a federal court ruling that upheld the NLRB's regulation that required employers to post in their workplaces a notice of the right of employees to organize into unions, bargain collectively, discuss wages, benefits and working conditions, jointly complain, strike and picket, or choose not to do any of these activities. For details on the district court proceedings, click here.

On 5/22/2012, the NAM filed a brief arguing 3 main issues. First, we challenged the fundamental authority of the Board to issue a posting rule at all. Congress never authorized notice-posting requirements, and rejected an express notice-posting amendment in the National Labor Relations Act (NLRA) while accepting notice-posting requirements in other labor laws.

Second, we again raised the argument that a mandate that private parties post government notices, without a clear statutory basis or compelling governmental interest, violates the First Amendment rights of employers as well as the balance of requirements spelled out in the NLRA.

Third, if the penalties for failing to post the required notice were themselves unlawful, the judge should have thrown out the entire regulation, because the NLRB did not intend for the posting requirement to stand on its own without enforcement teeth. The posting requirement was not severable from the enforcement provisions, and the entire regulation should fall.

We later filed a reply brief arguing that the NLRB failed to establish any statutory authority for the posting requirement. The Board had no authority to impose affirmative duties on employers who are charged with violations of the NLRA. The rule also violated the statutory provision which prohibits the Board from regulating expression that “contains no threat of reprisal or force or promise of benefit,” and violated employers’ First Amendment rights by forcing employers to communicate an unwanted editorial judgment to their employees.

On May 7, 2013, the D.C. Circuit agreed and overturned the NLRB regulation. It found that the rule's requirement that employers post a Government message requires an act of speech, and Section 8(c) of the Labor Management Relations Act declares that speech "shall not constitute or be evidence of an unfair labor practice under the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit." Thus the rule itself violates Section 8(c) because it makes an employer's failure to post the Board's notice an unfair labor practice.

It also ruled that the Board could not consider noncompliance with the rule to be evidence of antiunion animus, since that is also an unfair labor practice based on protected speech. Finally, the court ruled that the Board did not have the authority to amend the statute of limitations for filing unfair labor practice charges. Unless Congress intended the statute of limitations to include exceptions, the NLRB cannot create them years after the law was enacted.

Because all three means of enforcing the Board's posting requirement were invalid, the court ruled that the posting requirement itself was invalid, because the NLRB would never have promulgated it in the first place without ways to enforce it. The Board did not want just voluntary compliance.

A concurring opinion from 2 of the 3 judges found that the Board did not have authority under Section 6 of the NLRA to issue the rule because the posting requirement was not necessary to carry out the Board's responsibilities. It may only issue regulations that are necessary to carry out its responsibilities. The law does not impose an obligation on employers to educate its employees on labor relations law. In addition, the NLRB was set up to handle complaints that are filed by others, not promulgate rules that are "so aggressively prophylactic as the posting rule."

On 7/22/13, the NLRB asked the full complement of judges on the D.C. Circuit to rehear this case. The NAM filed a brief in opposition, arguing that the Board failed to identify any conflict between the court's ruling and any other court decision that would warrant further review. We also noted that a majority of the panel that decided the case also ruled that the Board exceeded its statutory authority on other grounds which independently preclude enforcement of the poster rule. On Sept. 4, the court declined to rehear the case. The NLRB had 90 days to appeal to the Supreme Court, but it declined to do so. The D.C. Circuit's ruling is now final.

The NLRB has appealed a decision of a federal judge who ruled that it did not have a quorum when it promulgated its “ambush election” rule in 2011. The Coalition for a Democratic Workplace, of which the NAM is a leading member, challenged the rule. Click here for a summary of the proceedings in the trial court.

The NLRB filed its main brief on Nov. 16, and the Chamber and CDW filed their brief on Dec. 31, 2012. Oral arguments were scheduled before Judges Henderson, Brown and Kavanaugh, but the arguments were postponed and the case was held in abeyance pending resolution of the Noel Canning decision on whether the recess appointments to the Board were constitutional.

In December of 2013, the NLRB voluntarily dismissed its appeal in Chamber of Commerce v. NLRB, the case in which the U.S. District Court for the District of Columbia found the Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011.

This case involves an employer who asked employees not to discuss their complaints about co-workers with others while an investigation was ongoing. The NLRB ruled that an employer violates employee union-organizing rights when it has such a blanket policy, and that employers must “first determine whether in any given investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.”

The NAM and other business groups submitted an amicus brief in support of the employer, stating that the NLRB was incorrect in its decision because the Board failed to take into account the challenges employers will now face when conducting an investigation. For example, with the Board’s decision an employer may not be able to uncover the entire story because employees will not come forward if they know the investigation is not confidential. Additionally, the amicus brief pointed out the Board ignored its previous decisions on investigations and overturned decades of its own precedent on the matter. The Board’s decision places an enormous burden on employers to justify the confidentiality of their investigations prior to interviewing all the witnesses or even assessing the situation.

The D.C. Circuit sent the case back to the NLRB. In June 2015, the NLRB again ruled the employer’s confidentially policy violated the NLRA, and Banner again appealed to the D.C. Circuit. The NAM also filed an amicus brief in the second appeal.

The NAM filed an amicus brief in a labor litigation lawsuit to oppose the Department of Labor’s (DOL) application of the Davis-Bacon Act, which requires “prevailing wages” for construction workers on public buildings or public works projects funded by the federal or D.C. government, to a private construction project. This is an appeal after DOL ruled that the City Center DC project was subject to the 1931 Davis-Bacon Act. If left unchecked, the DOL’s attempt to apply the Davis-Bacon Act to the private construction industry would have had a significant and potentially negative impact on private industry, the government and the economy. The NAM’s brief argued that DOL’s application of the Davis-Bacon Act to a private construction project was contrary to the language of the Act and that it was an unprecedented attempt to expand the scope of the Davis-Bacon Act into the private construction industry. The court applied common sense reasoning to reject DOL’s expansion of federal law.

The NAM filed an amicus brief supporting employers’ rights to protect sensitive communications between employees and an employer’s counsel. This case involves an in-house investigation of tips alleging potential False Claims Act violations where, although the company provided 100,000 pages of documents during the discovery phase, the trial judge ordered that 89 documents identified as privileged be disclosed. If upheld, this precedent will penalize companies for adopting internal compliance programs and force companies to either risk a waiver of attorney-client privilege or to forego legal advice. The NAM’s brief argued that 1) a communication with counsel should be protected provided that the predominant or primary purpose of the communication is for securing legal advice; and 2) if these communications were to lose their privilege solely because they were part of a compliance investigation, “required by regulatory law’” many regulatory programs would be frustrated. In 2014, the appellate court overruled the trial court’s decision and ruled that the communications were protected by the attorney-client privilege. The trial court again ruled against the privilege assertions, and the NAM filed a second amicus brief in 2015 supporting mandamus to the appellate court. In a win for manufacturers, the appellate court reversed the district court for a second time.

The NAM filed an amicus brief in support of an employer’s right to manage internal company investigations of employee misconduct. This case stemmed from a previous National Labor Relations Board (NLRB) decision where Banner Health Systems instructed employees to maintain confidentiality during ongoing investigations of employee misconduct. This issue is important to manufacturers because their business operations would be disrupted by employees discussing the details of a sensitive internal company investigation. The NAM’s brief argued that the NLRB’s ruling would burden employers by requiring them to justify the need for investigatory confidentiality at a point where such justification would be almost impossible. Although the decision is narrowly tailored, the outcome is a win for manufacturers as the court did not opine on the NLRB’s case-by-case approach to justify employer confidentiality.

The NAM filed an amicus brief in support of FedEx’s position that delivery service contractors working for FedEx were independent contractors, not employees of FedEx. The facts of this case were “materially indistinguishable” from a prior case where the U.S. Court of Appeals for the District of Columbia Circuit determined that a group of delivery service contractors were not FedEx employees, but were independent contractors under the National Labor Relations Act. This case is important as worker classification may have broad ramifications affecting the use of independent contractors and partnerships between manufacturers and commercial vehicle drivers are a key asset. The NAM’s brief explained that worker classification issues directly impact all segments of the economy and more directly, the trucking industry. In a win for manufacturers, the court ruled against the plaintiffs.

The NAM filed an amicus brief in the U.S. Court of Appeals for the D.C. Circuit supporting Volkswagen in a collective bargaining dispute with the United Auto Workers (UAW). The UAW brought the complaint after Volkswagen opposed the creation of a micro-bargaining unit exclusively for maintenance employees; UAW argued that because maintenance employees “share a unique function” they are readily identifiable and therefore should be recognized as a bargaining unit. This litigation is important to manufacturers because micro-bargaining units disrupt highly integrated manufacturing operations. The NAM’s brief argued that the Specialty Healthcare case, which reversed 70 years of precedent and instated a new standard for determining a collective bargain unit, should not apply because that case is inconsistent with the statue and the legislative history. After the National Labor Relations Board (NLRB) issued a revised ruling in another case, the D.C. Circuit remanded this case back to the NLRB for reconsideration.

The NAM filed an amicus brief in the D.C. Circuit supporting Browning-Ferris in its appeal from an adverse decision by the National Labor Relations Board (the Board) in a dispute regarding the legal standard that should apply when determining whether two or more companies are “joint employers” under federal labor law. The Board abandoned its longstanding legal standard for joint employer determinations, replacing it with a new standard that evaluated whether an entity exercised indirect control over the means or manner of the employees’ work and terms of employment, or whether the entity had the potential to exercise such control. If upheld, the new standard would unreasonably expand the companies deemed to be an individual’s employer and impose employment obligations and liabilities on those employers. The NAM’s brief argued that the longstanding “direct control” standard should remain the standard for determining joint employment and that the Board’s loosened standard subjected companies to unmerited liability, without providing the same benefits as the old rule. The D.C. Circuit upheld the Board’s consideration of “reserved right to control” and “indirect control” in the joint-employer inquiry but remanded the case to the NLRB for it to adequately define what constitutes control.

The NAM filed an amicus brief in support of UPS in the first as-applied challenge of the ambush election rule. In 2014, the National Labor Relations Board (NLRB) issued the election rule, which elevated speed above due process and transparency. Shortly thereafter, because the Election Rule failed to balance other important policy objectives, the NAM brought a facial challenge to the rule in the U.S. District Court for the District of Columbia, which rejected the challenge based on its belief that the rule would be applied in a fair manner. A fair, transparent and thorough election process is important for manufacturing employees to be able to have an informed choice whether they want to be represented by a union. The NAM’s brief argues that this case serves as a prime example of how the rule has been applied to deny employers due process, such as by failing to resolve a voter eligibility issue before the election and denying an appropriate hearing. The D.C. Circuit held that there was no defect in the Board’s decision to certify the Union and consequently denied UPS’s petition for review.

The NAM filed an amicus brief urging the U.S. Court of Appeals for the D.C. Circuit to reverse the U.S. District Court for the District of Columbia's refusal to delay the deadline for filing the Revised EEO-1 Report “Component 2” pay data. The district court also should not have crafted its own remedy that ignored the significant deficiencies in the record. Component 2 creates an administrative burden for employers who will now be forced to bear the costs of complying with the requirements. The NAM’s brief argued that the EEOC had previously recognized that changes to EEO-1 require significant time and expense, the record showed questionable public benefits and the data should not be required until EEOC can preserve confidentiality.