NAW Joins Two Amicus Briefs on Labor Issues

Jade West, Senior Vice President-Government Relations
National Association of Wholesaler-Distributors

NAW joins amicus brief on FLSA overtime rule:

As you may recall, NAW was a plaintiff in one of the cases that successfully challenged the Obama Labor Department’s overtime rule radically changing the “white collar exemption” provisions.  A Federal Court in Texas issued a preliminary injunction against the rule in November 2016, and granted our motion for summary judgment in August, 2017.  The Obama Administration appealed the preliminary injunction to the 5th Circuit, but the Trump Administration subsequently asked that the appeal be dismissed.  Late last year the Trump Administration asked the court to put the case on hold for an unspecified amount of time while the Department of Labor proceeds with a new rule-making (now scheduled for early next year).

While the various motions in court were proceeding, a group of Chipotle workers sued the company for failing to comply with the new overtime rule, even though the courts had issued an injunction barring the rule from taking effect.  The Chipotle workers argued that the injunction applied only to the Labor Department and not to private parties, and therefore Chipotle had to comply with the rule.  Chipotle disagreed and filed a motion in court to hold the suing workers in contempt.  In March of this year the judge ruled in the case and sanctioned both the plaintiffs (the Chipotle workers) and their attorneys.  The Chipotle workers are appealing that decision, and we have joined a business amicus brief supporting Chipotle.

While the legal arguments made by the workers – that the injunction against the rule applied only to the Department of Labor and not to private parties – is invalid at best, it’s obviously critically important that the court reaffirm that the injunction against enforcement of the rule applies to private businesses as well as to the Department of Labor.

Click here to read our amicus brief.


NAW joins amicus brief on “micro bargaining unit” issue:

As you know, the Obama National Labor Relations Board (NLRB) issued numerous rulings changing the way collective bargaining units are determined.  Specifically, starting with their 2011 “Specialty Health Care” decision, they have approved “micro bargaining units” allowing unions to organize a small fraction of the workforce in a business, as opposed to the more rational “wall to wall” unit including all workers.

Last month, a NLRB Regional Director approved a bargaining unit of 178 workers at Boeing’s Charleston, South Carolina plant – out of a total workforce of 3,000.  This particular “micro unit” clearly makes the case that the micro unit standard needs to be changed:  last year in a union certification election, 74% of the Boeing workers at that Charleston facility voted against union representation, and this micro bargaining unit allows the Machinists Union to get a foothold at the company despite that overwhelming vote against the union.

Boeing has appealed the regional director’s decision to the full NLRB, and NAW has signed onto an amicus brief supporting Boeing’s appeal.  The Trump-appointed NLRB began the process of reversing the micro-bargaining unit standard last year, and is expected to continue to reestablish the pre-Specialty standard as it hears additional cases; the Boeing case provides them another opportunity.

Click here to read our amicus brief.

Many thanks.

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