Capitol Hill

A favorable outcome

One of NRCA's top priorities during the past year has been to defend the roofing industry against the avalanche of new regulations being issued by the federal government. This past spring, NRCA achieved a pair of significant victories in this effort by pursuing legal challenges to burdensome regulations issued by the National Labor Relations Board (NLRB).

Opposing regulations

After losing a Democratic majority in the House of Representatives during the 2010 elections, the Obama administration turned to the regulatory arena to pursue one of its key priorities—make it easier for workers to join unions. In 2011, NLRB issued two regulations designed to help achieve this objective.

The first regulation would require all employers subject to the National Labor Relations Act to post a notice in the workplace informing employees of their rights under federal labor laws. The second regulation would make technical changes in union representation procedures that would greatly reduce the time frame for union elections.

NRCA represents union, open-shop and dual-shop employers and supports policies that maintain an equitable balance between labor and management. NRCA opposed both NLRB regulations because the new rules would favor labor unions at the expense of employers. In response to NLRB's proposals, NRCA and hundreds of business groups filed comments outlining the case against them.

In the case of the employee rights posting requirement, NRCA questions whether NLRB has the statutory authority to impose the requirement. If NLRB is allowed to issue a regulation imposing new requirements on employers without clear legal authority, this would serve as a terrible precedent and could lead to other requirements that go beyond Congress' intent. Additionally, NRCA believes the contents of the notice specified by NLRB in its regulation are biased and incomplete in a way that favors unions over employers.

Regarding the regulation to change union election procedures, NRCA fears this will erode employers' due-process rights by reducing the time frame for union elections to as few as 10 to 14 days from filing a petition. According to NLRB data, the average time for completing elections now is 31 days, and 90 percent of elections occur within 56 days. The current time frame allows for ample dialogue between employers and employees about the complex issues at stake with respect to collective bargaining. Accelerating the election process is a diminution of employers' basic rights and will deprive employees of their opportunities to make fully informed decisions regarding union representation.

Despite overwhelming opposition from NRCA and other business organizations in the Coalition for a Democratic Workplace (CDW), NLRB finalized both regulations in 2011. They were scheduled to become effective April 30.

Sense of relief

With a gridlocked Congress unable to enact legislation to block or modify these regulations, the last line of defense was the courts. NRCA and CDW turned to the judicial branch and filed separate lawsuits challenging the regulations. Relief finally came this past spring.

On April 17, a federal court issued an injunction blocking NLRB from enforcing its notice posting regulation. CDW requested the injunction after the court ruled in March that NLRB has the authority to issue the regulation but invalidated most of its enforcement mechanisms. NLRB and CDW appealed this mixed ruling. The court issued the injunction in recognition of these pending appeals and also in response to a separate court decision in South Carolina on April 13, which held NLRB does not have the authority to issue the regulation. The appeal of the ruling on the CDW lawsuit is not expected to be ruled on until late this year, and the regulation is on hold indefinitely and may never become effective.

On May 14, another federal court ruled on a lawsuit filed by the CDW challenging NLRB's changes to union election procedures. The court invalidated the regulation after determining NLRB did not have a quorum present when it voted to approve the regulation. In this ruling, the judge said NLRB's failure to establish a quorum was an attempt to evade "a limit on the agency's power to act" and "would render [NLRB's] three-member quorum requirement meaningless."

Although these court rulings may not be the final word about these regulations, clearly they are significant victories for NRCA in the effort to rein in an out-of-control federal agency. NRCA will continue working on several fronts, whether through congressional oversight or litigation, to defend the roofing industry against excessive government regulations.

Duane L. Musser is NRCA's vice president of government relations.


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