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On August 26, the NAM filed an amicus brief urging the National Labor Relations Board to reject General Counsel Jennifer Abruzzo’s radical proposal to overturn longstanding and established precedent by awarding prospective, compensatory make-whole relief for the period when an employer refuses to bargain while challenging a union’s certification in court. The traditional remedy for cases where an employer unlawfully refuses to bargain with the chosen bargaining representative of its employees is a bargaining order whereby the NLRB commands the employer to stop its unlawful refusal and bargain with the representative. Over 50 years ago, in Ex-Cell-O Corp., the Board explicitly rejected make-whole relief—in that case raises for employees—as too speculative. The Board concluded that compelling employers “to accede to terms never mutually established by the parties” would violate the plain language of the National Labor Relations Act and Supreme Court precedent.

In this case, Arrmaz Prods. And Internat’l Chem. Workers Union, GC Abruzzo asked the Board to “make the bargaining unit employees whole for the lost opportunity to engage in collective bargaining” during the period when the employer refuses to bargain in order to test the union’s certification in the courts.” As the NAM’s brief explains, this inherently speculative and arbitrary remedy would chill the protected rights of every employer to petition a court to review certification of a union as the exclusive representative of the employer’s employees. Further, section 8(d) of the National Labor Relations Act flatly states that the obligation to bargain collectively “does not compel either party to agree to a proposal or require the making of a concession.” Here, the proposed make-whole remedy cannot be calculated without presuming an agreement that the Board is not entitled to presume or to compel. Employers and employees alike rely on the Board to maintain labor relations stability. Such reliance interests are severely undermined when longstanding and established precedents are overturned without adequate justification, as is threatened in this case.

On December 8, 2022, the Board held that respondent ArrMaz Products, Inc. violated the National Labor Relations Act by refusing "to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit." The Board did not address make-whole relief. The Board has severed this issue and plans to issue a supplemental decision regarding a make-whole remedy at a later date.

On March 21, 2022, the NAM filed an amicus brief urging the National Labor Relations Board to adhere to U.S. Supreme Court and Board precedent by preserving the validity of employment arbitration agreements. In Epic Systems v. Lewis, the Supreme Court held that the Federal Arbitration Act prevents the NLRB from challenging enforcement of arbitration agreements between employers and employees. Building on that holding, the NLRB ruled in 2020 that an arbitration agreement explicitly and prominently assures employees that their right to file charges with the Board does not interfere with employee rights under the National Labor Relations Act.

Despite this clear precedent, the current NLRB is seeking to abrogate its prior holdings and reconsider whether arbitration agreements interfere with employees’ right to file Board charges or otherwise access the Board’s processes. The NAM filed an amicus brief urging the Court to adhere to its current standard. Our brief highlights the Court’s holding in Epic Systems—that Congress does not alter the fundamental details of one statutory scheme (the FAA) through vague pronouncements in another (the NLRA). Any action by the Board to overrule its prior precedent and impose liability on an employer for enforcing its arbitration agreement would violate the FAA and lead to another confrontation with the Supreme Court. Many NAM members rely on lawful, voluntary arbitration agreements with their employees to reduce litigation costs and reach timely resolution of employment disputes through neutral fact finding and decision making, consistent with the FAA.

On March 7, the NAM filed an amicus brief with the National Labor Relations Board urging the Board to maintain its current standard for determining whether an employer’s facially neutral work rule violates the National Labor Relations Act. In this case, Stericycle, Inc. and Teamsters Local 628, an administrative law judge held that three of Stericycle’s work rules, including a rule that prohibits retaliation against employees who report discrimination or harassment or participate in a discrimination or harassment investigation, violated the NLRA. Work rules encompass a wide variety of policies and employee handbook provisions that advance and protect vitally important interests like attendance, scheduling and time off; non-harassment, non-discrimination, and DE&I; and workplace safety and operating procedures. In 2017, the NLRB adopted a standard for evaluating work rules that properly balances a rule’s potential impact on NLRA-protected rights with the rule’s legitimate justifications. The NLRB recently invited interested amici to file briefs regarding whether that standard should be retained or modified to a more employee-friendly standard.

In response to the specific questions posed by the Board, the NAM's brief argues that any evaluation of work rules, employment policies, and employee handbook provisions should consider both a rule’s potential “chilling” effect regarding NLRA-protected rights, as well as legitimate business justifications and the obligations imposed on employers by other laws. If the Board does modify the current standard, it should allow employers to implement standard disclaimer language in their rules, policies, or handbooks, that avoids an interpretation that would unlawfully interfere with protected rights under the NLRA. Further, rules requiring confidentiality in open workplace investigations, non-disparagement rules, and policies barring outside employment should continue to be deemed generally lawful.

Unfortunately, on August 2, 2023, the Board announced a new approach for determining whether an employer’s facially neutral work rule violates the NLRA. Under the Board’s new approach, "[i]f an employee could reasonably interpret a rule to restrict or prohibit Section 7 activity, the General Counsel has satisfied her burden and demonstrated that the rule is presumptively unlawful”" An employer can only "rebut the presumption by proving that the rule advances a legitimate and substantial business interests, and that the employer is unable to advance that interest with a more narrowly tailored rule." The Board remanded the case to the ALJ for further consideration in light of its new standard.

The NAM filed an amicus brief with the National Labor Relations Board (NLRB) urging the Board to rescind or modify the "contract bar doctrine." The doctrine dictates that once a collective bargaining agreement is executed, no representative elections are permitted for that bargaining unit for up to three years. Further, an employee may only file a decertification petition during a narrow (and confusing) 30-day period between 60 and 90 days before the end of the contract. The rule is not found in the National Labor Relations Act (NLRA), but rather is a creature of NLRB case law. Following invitation from the NLRB, the NAM filed a coalition amicus brief recommending that the Board rescind the doctrine because it interferes with the statutory right of employees to choose or refrain from choosing union representation. In the alternative, the Board should limit the duration of the bar period to just one year, instead of three years. Unfortunately, on April 21, 2021, the NLRB decided to retain its longstanding contract-bar doctrine.

The NAM filed an amicus brief with the National Labor Relations Board (NLRB) urging the Board to reconsider its standards for determining whether an employee's profane outbursts or offensive statements of a racial or sexual nature lose the protection of the National Labor Relations Act (NLRA). The NLRB invited interested amici to file briefs after prior Board decisions in which extremely profane or racially offensive language was judged not to lose the protection of the NLRA were met with frequent criticism. Those decisions were grossly out of touch with the realities of today's workplace and the interests of employers in ensuring workplaces are free from harassment, discrimination, and bullying. In response to the specific questions posed by the Board, the NAM's brief, filed November 12, 2019, argues that (1) there are instances of employee misconduct that are so egregious that they should automatically result in the forfeit of the NLRA's protection; (2) employers are not required to tolerate insubordination, particularly where racially or sexually charged language is used; (3) the "norms" of the workplace cannot be used as an excuse to protect harassment and incivility; (4) the Board should abandon the standard applied in prior cases to the extent it protects sexual or racially offensive language that would otherwise not be tolerated simply because it occurs in the context of picketing; and (5) the Board should afford great weight to civil rights and antidiscrimination laws, and the requirements they place on employers.

On July 21, 2020, the Board issued a decision holding that the Wright Line, 251 NLRB 1083 (1980) standard applies to abusive conduct cases. Under that standard, the NLRB "General Counsel must make an initial showing that (1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had animus against the Section 7 activity[.]" If the General Counsel meets her burden, "the burden of persuasion shifts to the employer to prove it would have taken the same action even in the absence of the Section 7 activity."

The NAM filed an amicus brief to support Boeing’s request for the National Labor Relations Board (NLRB) to review its finding that a small group of employees constituted a unit appropriate for collective bargaining. The Boeing Company’s 787 Dreamliner manufacturing facility in South Carolina employs approximately 3,000 production and maintenance employees, who have twice voted against joining a union. The NLRB Regional Director directed the election for a subset of employees at the plant. If the Regional Director’s decision stands, manufacturers could have their workforces artificially fractured into smaller bargaining units in violation of the “community of interest” standard required in making bargaining unit determinations. The NAM’s amicus brief argues that the Regional Director improperly applied a standard that had been overturned and that the fragmented unit creates an artificial barrier that separates employees and departments and frustrates the ability to maintain stable labor relations. On September 9, 2019, the NLRB reversed the regional director's decision, concluding that he misapplied the governing test for whether a subset of employees can bargain separately from the larger workforce.

The NAM filed an amicus brief before the National Labor Relations Board (NLRB) in response to the NLRB’s request for input on whether to reconsider legal precedent that held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system for union communications. The NAM’s brief argues that employers should be allowed to safeguard their electronic communications for legitimate business interests, including to minimize distractions in the workplace, to prevent misuses of communications systems, to guard against data security vulnerabilities and to address other liabilities. On December 17, 2019, the NLRB agreed, and reinstated the right of an employer to restrict employee use of its email system as long as it does so on a nondiscriminatory basis.

The NAM filed an amicus brief urging the National Labor Relations Board (NLRB) to uphold specific, well-established recusal standards. This case involves the Service Employees International Union’s (SEIU) attempt to force two republican NLRB members to recuse themselves because their former law firms represented clients with similar issues as the issues in this case, even though neither NRLB member nor their former law firms served as counsel for any of the parties in this case. This “issue preclusion” standard advocated by the SEIU is an extraordinary departure from established recusal procedures, is irreconcilable with federal regulations and unmanageable as a practical matter. The NAM’s brief explains why prior recusal standards should be upheld to allow the NLRB to efficiently decide the many matters it confronts without fundamentally altering how it functions. On November 19, 2019, the NLRB issued its Ethics Recusal Report, which largely upholds the prior recusal standards advocated by the NAM and establishes a new filing obligation requiring all parties appearing before the Board to file an organizational disclosure statement. The report also adopts a written Board member disqualification protocol and determines that Board members can challenge the agency’s ethics official recusal determination and insist on participating in a particular case (though this, according to the report, should be very rare). On December 12, 2019, the Board denied the SEIU's recusal motion.

The NAM filed an amicus brief with the National Labor Relations Board arguing against treating lobbying as a core union function and significantly altering the current way employees exercise their rights to object to union dues expenditures for political activities. Mandatory union dues may be used only to support union activities germane to collective bargaining, contract administration and grievance adjustment, and may not be used for political speech that conflicts with the First Amendment rights of the union members who pay dues. This case is important because union dues should not be used to promote political causes to which employee's object. Our brief argued that lobbying is not a core union function, the Supreme Court has already decided the issue and employees should not be compelled to fund these political activities. The NLRB agreed, and on March 1, 2019, issued a decision holding that lobbying activities are not so related to the Union’s representational duties to employees as to justify the compelled financial support of those activities.

The NAM filed an amicus brief defending employers’ rights to implement and follow anti-discrimination and anti-harassment policies in an employment litigation suit. The litigation arose from Cooper Tire’s discharge of an employee for racist statements made by the employee while on a picket line. Manufacturers have a moral and legal obligation to ensure that employees are free of discrimination and harassment in the workplace. The NAM’s brief argued that 1) the National Labor Relations Act (NLRA) should not protect racist comments, regardless of where or when the comments are made; 2) the National Labor Relations Board (NLRB) cannot force employers to violate other federal statutes through its protection of racist speech used on a picket line; and 3) employers need to be able to rely on and apply their legitimate anti-discrimination and anti-harassment policies. Unfortunately, the NLRB held that although the employee’s “statements most certainly were racist, offensive and reprehensible,” they did not forfeit the protection of the NLRA.

The NAM filed an amicus brief opposing the creation of a joint bargaining unit composed of employees employed solely by one of the entities that comprise a joint employer without the consent of both employers. In this case, a union filed a petition seeking to represent a “multi-employer” bargaining unit consisting of employees from Miller & Anderson and temporary employees from a staffing company. This matter is important to manufacturers because a bargaining model where one entity has no employment relationship with all bargaining unit employees creates conflicting interests that are disruptive to productive bargaining. The NAM’s brief argued that any bargaining unit seeking to include employees employed solely by one of the constituent entities that comprise a joint employer is, of necessity, a multi-employer unit, which requires consent of both employers. The National Labor Relations Board decided that the union was not required to obtain consent from both employers and that it would apply traditional community-of-interest factors to determine if such a joint union is appropriate.

The NAM filed an amicus brief with the National Labor Relations Board (NLRB) supporting an employer’s right to properly manage its workforce during employee demonstrations and to adequately safeguard its manufacturing processes. The plaintiffs alleged that Boeing violated the National Labor Relations Act (the Act) by videotaping employee marches within production facilities on four separate occasions and that Boeing violated the Act when it promulgated and maintained a procedure prohibiting use of employees’ personal camera-enabled devices on site without a valid camera permit approved by security. If upheld, this decision would have significantly infringed on an employer’s ability to safeguard proprietary materials and monitor employee safety. The NAM’s brief argued that 1) photographing or videotaping employees on company premises did not violate the Act because Boeing maintained legitimate reasons to observe the marches; and 2) similarly, the restriction of camera enabled devices on company property did not violate the Act because Boeing had a legitimate business need to protect its manufacturing process. The NLRB concluded that Boeing violated the Act by videotaping employee marches but lawfully maintained a no-camera rule that prohibited employees from using camera-enabled devices.

The NAM filed an amicus brief with the National Labor Relations Board 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 multiple bargaining agreements make it difficult to address employee concerns. The NAM’s brief argued that the application of the Specialty Healthcare doctrine, which reversed 70 years of precedent and instated a new standard for determining a collective bargain unit should not apply because the standard is inconsistent with the statute and the legislative history and that the decision in this case fails to even comply with the standard as set forth in Specialty Healthcare. The NLRB rejected Volkswagen’s request for review, but the case was appealed to the U.S. Court of Appeals for the D.C. Circuit, which remanded the case for reconsideration.

On April 30, 2014, the Board issued an order granting review of the Acting Regional Director’s Decision and Direction of Election of the current joint-employer standard as articulated in the Board’s decisions in TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation, 269 NLRB 324 (1984). “To establish joint employer status there must be a showing that the employer meaningfully affects matters relating to the employment relationship such as hiring, firing, discipline, supervision and direction.” In June 2014, the NAM’s Manufacturers’ Center for Legal Action (MCLA) submitted an amicus brief outlining key concerns of manufacturers in changing the definition of joint employer.

On August 27, 2015 in a 3-2 decision, the Board loosened the standard for determining joint employment under the National Labor Relations Act. For the past 30 years, the relevant joint employer inquiry was whether or not an entity exerts a direct and immediate degree of control over another business's employees and their essential terms and conditions of employment. Under the new standard, the Board evaluates whether an entity exercises indirect control over the means or manner of the employees' work and terms of employment, or whether the entity has the potential to exercise such control. This requires a very fact-specific case-by-case inquiry.

The NLRB’s actions challenge the way manufacturers are able to work in the United States, and the NAM continues to advocate and fight for manufacturers on this issue.

Browning-Ferris has appealed the Board's decision to the D.C. Circuit Court of Appeals. The NAM has joined that fight, which can be found here.

The NAM filed a letter with the National Labor Relations Board affirming support for Constellation Brands. The NAM’s letter asserted that the Regional Director ignored important factors which influenced unit determinations including the departmental lines drawn by Constellation. NAM members have a vital interest in the Board’s application of Specialty Healthcare in the manufacturing setting. The standard for bargaining-unit determinations applied by the Regional Director in this case, which is an inaccurate application of the already unlawful standard established by the Board in Specialty Healthcare is problematic in all industries covered by the National Labor Relations Act (“Act” or “NLRA”), 29 U.S.C. §§ 151-169 including manufacturing. The NAM letter further asked that the Board grant Constellation’s Request for Review and invite NAM and other interested parties to brief these issues as they relate to manufacturing/production facilities.

The NAM and 194 other national, state and local business organizations filed a brief at the NLRB as part of the Coalition for a Democratic Workplace in a case involving access by nonemployee union members to private property for purposes of handbilling. The case arose when union agents engaged in handbilling in front of 26 of the company's stores. The NLRB allowed the picketing where the company did not have a sufficient property interest, but asked for input from the public about 2 other stores where Roundy's property rights were arguably stronger.

The NAM/industry amicus brief argues that the company may allow some handbillers, such as charitable solicitors, but may exclude others from its property. The company should have the right to exclude individuals whose handbilling advocates a boycott or otherwise is detrimental to the company. A company must have some degree of control over the messages it conveys to its customers on its private property, and the courts have upheld this principle. Our brief urged the Board to stop requiring employers to allow nonemployee union agents to trespass on private property for the purpose of harming the employer's business under any circumstances. If any limitation on a company's right to exclude handbillers is allowed, it should recognize the difference between handbillers that are engaged in beneficent activities and those that are engaged in harmful activities.

Pursuant to the Notice and Invitation to File Briefs issued by the National Labor Relations Board on February 7, 2014, the NAM submitted an amicus brief in Babcock & Wilcox Constr. Co.. The Board asked that parties and interested amici to address whether the Board should adhere to, modify, or abandon its long-established standards for post-arbitral, pre-arbitral, and post-grievance settlement deferral for charges that raise claims under Sections 8(a)(1) and (3) of the National Labor Relations Act, but which are also susceptible to resolution through the employer’s and union’s grievance arbitration process.

On 3/25/2014 the NAM filed its brief arguing that the well-established, court-approved deferral standards that the Board has long used should remain in place without modification. Existing Board standards accommodate the clear preference under the Act for arbitral and other private resolution of disputes, while also protecting employee statutory rights. Further, current standards allow for the fair and efficient resolution of workplace disputes where existing collective bargaining relationships provide for a working arbitral mechanism, and conserve increasingly scarce public and private resources.

The NAM and our association allies filed an amicus brief with the NLRB arguing that the Board should not create an exception for employer owned email from the longstanding rule that employees generally have no right to use employer-owned property, equipment, or materials for purposes of Section 7 organizing activities, as long as the employer’s restrictions on such usage are not discriminatory. There is no discrimination in keeping the use of employer email systems restricted to legitimate business purposes and there are many alternatives available for these communications.

On December 11, 2014 the NLRB issued a decision the Purple Communications, Inc case. The 3-2 decision overturns the 2007 Register Guard case, and holds that employees now may use email for union-related communications during nonworking time. The NAM filed a brief with the NLRB arguing against this possible outcome.

The NLRB’s Specialty Healthcare decision favoring micro-unions has led to numerous cases involving the definition of a bargaining unit. In Macy’s Inc., the Board’s regional director decided that employees of the fragrance and cosmetic departments at Macy’s could form their own union. The regional director found that the small group of employees was an appropriate unit because they were readily identifiable as a group and shared a community of interest. Moreover, the burden to show that the small unit is inappropriate is on the employer, who would have to demonstrate that a larger unit shares an overwhelming community of interest with the smaller unit. Interestingly, the previous year, the union unsuccessfully tried to organize a wall-to-wall unit in the entire store.

The NAM filed an amicus brief urging the Board to overturn the regional director’s decision. The Board’s policy conflicts with the rights of employees who do not want to form a union by allowing them to be gerrymandered out of the bargaining unit. In effect, if the majority of employees in a facility do not favor forming a bargaining unit, they can be relegated to a minority status when a union selects a gerrymandered unit where it has majority support. The NAM argued that the burden should be shifted to the union to initially demonstrate that the a proposed smaller bargaining unit is constituted on factors other than union support and that the employees are readily identifiable as a group.

Manufacturers are starting to face a multitude of small unionized bargaining units, making management of the workplace much more difficult and harming their ability to compete. This is the fifth case since Specialty Healthcare in which the NAM has sought to change the Board’s policy and encourage the proper definition of bargaining units in manufacturing facilities.

A small group of women’s shoe salespeople were handed a decision by an NLRB regional director that allowed them to hold a vote to unionize. The employer appealed, arguing that their group should include many more store employees that have common workplace interests.

The NAM and other business groups filed a brief 6/13/12 arguing that the NLRB’s recent decision in the Specialty Healthcare case improperly allows this kind of micro-union to be formed, and puts an unreasonable burden on employers to show that a large group is more appropriate. The regional director had ruled that the employees at the store may serve different functions and thus vary in skills to the point that they qualify to form multiple unions. The NAM argued that Congress intended that each case be determined on its own, rather than having the NLRB impose a blanket determination for all cases that a proposed group is valid unless the employer can show otherwise.

The brief noted that all employees have a statutorily protected “right to refrain from” unionizing activities, and micro-unions prevent those employees from exercising the right to reject a union.

Furthermore, the Board abused its power by adopting its new standard in the Specialty Healthcare case when it should have gone through formal notice-and-comment rulemaking procedures.

Finally, it is bad policy to favor micro-unions, because they prevent employees from performing varying job functions, thus inhibiting employee skill development. They also lead to “endless multiple negotiations, conflicting union demands and contract obligations, and burdensome administrative duties.” Micro-unions may foster disruptive employee and union rivalry, as well as situations where one small group of employees could shut down an entire location.

This case involves how to define a bargaining unit at a company. The United Steelworkers attempted to organize and represent a group of certified nursing assistants at a nursing home, while the employer contended that the appropriate unit includes all nonprofessional service and maintenance employees. The NLRB’s regional director ruled for the union. When issues like this are appealed, the NLRB decides them on a case-by-case basis, and it asked for input on how to determine the appropriate employees to include in each bargaining unit. In nursing homes and other nonacute health care facilities, the Board considers “community of interests” factors and background information about the workplace in determining the bargaining unit, and it asked for the views of interested parties on this question, not only for nursing homes but also for all industries. It planned to issue rules governing appropriate units via this litigation, rather than by a rulemaking process.

The Coalition for a Democratic Workplace, of which the NAM is a member, filed an amicus brief March 8, 2011, focusing on the Board’s broader question of whether employees performing the “same job at a single facility is presumptively appropriate” as the bargaining unit. Our brief urged the Board not to tackle this question in the context of the nursing home case, but if it did, to continue to use the “community of interest” test that has guided employers and labor organizations for decades. If the Board were to adopt a standard that allows very small bargaining units, employers would be burdened with negotiating and administering a number of different contracts covering only a few of its employees. The Board should not attempt to establish a comprehensive approach to bargaining unit designations by adjudicating a nursing home dispute; rather, it should use the rulemaking process with public hearings.

In addition, the proliferation of units limits the rights of employees by creating barriers in the workplace, creating the risk of balkanizing the workforce and making employee advancement more difficult. A bargaining unit should include employees who have a community of interest that is sufficiently distinct from those excluded from the unit.

On August 30, 2011, the Board released a 3-1 ruling that the group of certified nursing assistants was the appropriate bargaining unit, and did not need to include all other nonprofessional service and maintenance employees of the workplace. It did so by applying a community-of-interest approach, adding that the burden is on the employer to prove that employees not included in the group seeking recognition "share an overwhelming community of interest with the included employees." This means that the factors used in determining whether members of groups share a community of interest must "overlap almost completely." The majority adopted this formulation to provide employers and employees with a clear standard to reduce litigation and produce more predictable and consistent results.

The National Labor Relations Act creates a set of presumptively appropriate bargaining units encompassing "the employer unit, craft unit, plant unit, or subdivision thereof." If the employees choose to define a bargaining unit in a way that is "appropriate," their decision will be upheld by the Board. This means that small bargaining units will be allowed as long as members in that unit share a community of interest, and the majority even stated that a unit is not "inappropriate simply because it is small."

NLRB Member Hayes dissented, arguing that the decision "fundamentally changes the standard for determining whether a petitioned-for unit is appropriate in any industry subject to the Board's jurisdiction," and warning about proliferation of bargaining units. He said that the majority's community-of-interest test effectively gives controlling weight to whatever unit a union has been able to organize. Rather, he would require a showing that a group's interests "are sufficiently distinct from those of other employees to warrant the establishment of a separate unit." Thus, the decision "encourages unions to engage in incremental organizing in the smallest units possible." He concluded by saying that the majority's opinion in this case and their proposed snap elections and limited Board review means that unions will organize in units as small as possible and it will be "virtually impossible for an employer to oppose the organizing effect either by campaign persuasion or through Board litigation."

The rule created in this case was overturned in December 2017 in a case called PCC Structurals, Inc.

Forty-one associations joined the NAM in an amicus brief submitted to the National Labor Relations Board in response to the Board's request for advice on its 2007 decision in the Dana Corp. case. There, the Board ruled 3 to 2 that employees must have 45 days after their employer recognizes a union based on card-check authorizations to file a petition to decertify the union or to support an election petition from another union. The Board underscored the preferred method of having a secret election to determine the majority status of a union. The majority found that card-check procedures are much less reliable as indicators of employee free choice on union representation than secret elections.

The current Board reversed that ruling. On August 30, it ruled 3-1 that only a small percentage of card-signing union authorizations are ultimately overturned with a secret ballot, calling those cases "buyer's remorse." It also held that requiring employers to post a notice informing employees of their right to seek a decertification election after a card-check procedure "actually placed the Board's thumb decidedly on one side of what should be a neutral scale" by requiring a notice of only two of their many rights under the law.

Our amicus brief argued that Dana should not be overruled. Individual free choice regarding whether to be represented at all by a third party is a necessary precondition to any collective negotiation. "In nearly 25 percent of the 54 Dana elections conducted by the Board, employees exercising free choice voted to reject the employer’s initial, voluntary recognition."

We also argued that without a card-check review process in the form of a secret election, "employees are left . . . with the likelihood of peer pressure and/or coercion, lack of information, no measurement of unit-wide employee sentiment at the same point in time, and no assurance that the alleged, resulting majority is an accurate reflection of free choice."

One member of the NLRB dissented from the Lamons Gasket ruling. He said that the majority's decision was "a purely ideological policy choice, lacking any real empirical support and uninformed by agency expertise." He said that the law only imposes an election bar after a valid Board election, not after a voluntary recognition of a union by an employer. He also pointed out that there is no doubt but that a Board-supervised election "provides a more reliable basis for determining employee sentiment than an informal card designation procedure where group pressures may induce an otherwise recalcitrant employee, to go along with his fellow workers." A reversal rate of 25% against the incumbent recognized union is "substantial and supports the need for retention of a notice requirement and brief open period."

The NAM is also a member of the Coalition for a Democratic Workplace, which filed a separate brief.

The NAM and 18 other associations filed a brief at the National Labor Relations Board urging the Board to allow secret ballot elections when there is doubt about whether the employees actually authorized a union to represent them. The cases arose where the companies had agreed to neutrality agreements with the UAW, whereby the companies would not communicate information to employees, or lawfully express views, arguments and opinions which the union perceived as critical of the union. The union then obtained signatures from a majority of the employees authorizing them to represent the employees, but the validity of that majority was subsequently challenged. This neutrality agreement/card-check procedure has proven significantly more effective for union organizing than other methods.

The NAM argued that in this situation the NLRB's procedures should allow for a secret ballot to accurately and definitively determine whether the union enjoys majority support, rather than require employees to have to wait until a contract is negotiated and run its course before being allowed to have an election. The NAM joined with Associated Builders and Contractors, the National Restaurant Association, Printing Industries of America, the Society of Human Resource Managers, and 14 NAM-member employer association groups around the country in the brief.

On Sept. 29, 2007, the NLRB agreed by a vote of 3 to 2. It ruled that employees must have 45 days after their employer recognizes a union based on card-check authorizations to file a petition to decertify the union or to support an election petition from another union. The Board underscored the preferred method of having a secret election to determine the majority status of a union. The majority found that card-check procedures are much less reliable as indicators of employee free choice on union representation than secret elections. To have an election, an employee petition must be supported by 30% or more of the unit employees eligible to vote. The new rule will be applied prospectively only, so the decertification petitions involving the two companies in this case were dismissed.

IBEW, Wal-Mart Stores, Inc. & IBM Corp. The NAM and other business groups urged the NLRB to reinstitute its position prior to the Epilepsy Foundation case (2000) that non-union employees do not have statutory right to have a third-party representative with them during an investigatory interview by their employer. On 6/15/04, the NLRB agreed. Because employers are subject to increasing legal obligations regarding employment discrimination, financial fraud and heightened security concerns, the Board found sufficient justification for adopting a policy that gives greater weight to the employer's right to conduct investigations than to an employee's right to have a co-worker present during a confidential interview. We were concerned that third party presence in such investigations will hinder getting at the truth and maintaining confidentiality. Employers are under substantial legal and moral pressure to fully and adequately address sexual or racial discrimination, financial malfeasance, simple theft or violence, job-impairing drug use, or terrorism and other homeland security issues. The NAM joined with the EEAC, Associated Builders & Contractors, the U.S. Chamber of Commerce, the Society for Human Resource Management and the International Mass Retail Association in the amicus brief in this case.

The NAM and 4 other business groups 6/28/02 urged the NLRB to sue California to enjoin the enforcement of that state’s Assembly Bill 1889, which is now law and is being enforced. We feel strongly that the National Labor Relations Act preempts the law, which pervasively regulates the labor relations activities of private sector recipients of state funds, lessors of state property, and anyone else doing business with California. It prohibits employers from using state funds and state property for a wide variety of otherwise legitimate labor relations activities, while allowing union-friendly activities such as recognizing a union without a secret ballot representation election. Before the NLRB could act, a federal court enjoined the provisions at issue. The 9th Circuit affirmed on 4/2/04 in a case captioned Chamber of Commerce v. Lockyear.

The NAM joined the U.S. Chamber of Commerce in filing a brief 5/18/98 opposing an NLRB proposal that would require elections whenever employees want to decertify their union as their authorized collective bargaining representative. In Chelsea, the Board ruled that an employer may not rely on signatures from a majority of workers to decertify a union, if the signatures were received during the first year of the union's representation of the employees. In Levitz, the Board ruled that an employer may not withdraw recognition from a union unless the union "has actually lost the support of the majority of the bargaining unit employees." It also ruled that an employer needs uncertainty, but not disbelief, as to a union's continuing majority status in order to seek a Board-conducted election by its employees. Also filed under as UFCW v. Levitz Furniture Co.

The NAM joined the U.S. Chamber of Commerce in filing a brief 5/18/98 opposing an NLRB proposal that would require elections whenever employees want to decertify their union as their authorized collective bargaining representative. In Chelsea, the Board ruled that an employer may not rely on signatures from a majority of workers to decertify a union, if the signatures were received during the first year of the union's representation of the employees. In Levitz, the Board ruled that an employer may not withdraw recognition from a union unless the union "has actually lost the support of the majority of the bargaining unit employees." It also ruled that an employer needs uncertainty, but not disbelief, as to a union's continuing majority status in order to seek a Board-conducted election by its employees.

The NAM urged that NLRB Chairman Gould be recused from participating in this case because of his public pronouncements in opposition to legal precedents permitting employers to hire permanent replacements for economic strikers. A decision in this case on 9/30/99 made the recusal motion moot, since Chairman Gould was no longer on the Board