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Focus: Manufacturing

Feature Article from Our Supply Chain Trends and Issues Subject Area - See All

From SCDigest's On-Target E-Magazine

May 29, 2012

Supply Chain News: "Microwave" Unionization Process Shot Down by Federal Court for Now


Decision Cheered by Business Groups, but Victory on Technical Grounds Likely to be Short-Lived


SCDigest Editorial Staff

A controversial change in labor law that would have resulted in much faster unionization votes has been struck down by a federal court because the National Labor Relations Board (NLRB) did not have the required quorum to cast the vote.

SCDigest Says:


The victory for business could be short-lived, however, as the NLRB now has its full five members and a 3-2 Democrat majority.

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The new NLRB rules would have reduced the minimum amount of time for a vote and precluded a number of moves companies facing unionization campaigns to delay the time from when enough signatures are gathered to force a the vote to when the vote is actually held. Under the new rules, approved by the NLRB in December and which went into effect April 30th, such union votes could have been held in as little as 10-14 days after the proper number of signatures for a vote were required. Opponents of the bill call the process "microwave" or "ambush" elections because of the speed of the process.

The new rules were strongly opposed by most major business groups, from the Chamber of Commerce to the National Retail Federation and many others, and were challenged in a lawsuit by the Coalition for a Democratic Workplace, an umbrella group for business interests opposed to this and other pro-labor proposals. Businesses say the rapid-fire elections would not give them adequate time to make their arguments against the union move to its workers. Proponents of the change say companies often use a variety of delay tactics, such as legal challenges that the union did not follow processes correctly, to stave off the elections for months, such that often they never happen at all.

The current median time for when a vote is taken is 37 days for most elections and an average 101 days for those involving legal challenges filed by the business. Research by Bloomberg has found that when unions are able to force elections within 15 days of their demand for a vote, they are successful in unionizing the company 87% of the time, but when the employer is given five or six weeks to present the other side, unions succeed less than 60% of the time. So the stakes are high.

The ruling two weeks ago by federal judge James Boasberg in Washington DC did not deal with the merits of the change at all, but rather with the process by which the vote was taken. The law requires that there be three votes from the usual five-member board to have a quorum to issue new rules. But last year, the NLRB had two vacancies, and only two of the three remaining members (both Democrat appointees) showed up to vote in December.

The lone Republic board member, Brian Hayes, simply stayed away from the vote.

"Because no quorum ever existed for the vote in question, the court must hold that the challenged rule is invalid," Boarsberg, an Obama appointee, said in his opinion.

(Manufacturing article continued below)



Lynn Rhinehart, general counsel for the AFL-CIO, said the decision was "flat out wrong," adding that "The rules are much needed to update and streamline the election process, and we hope this procedural roadblock does not unduly delay their implementation."

The NLRB had pushed in part the idea since it was known which way Hayes would have voted, it was the same as if he was present for the actual vote.

NLRB Chairman Mark Pearce said the board was "determined to move forward," but had suspended implementation of the regulations while reviewing the court ruling. He said about 150 election petitions had been filed since April 30.

The victory for business could be short-lived, however, as the NLRB now has its full five members and a 3-2 Democrat majority. However, three of the five members were "recess appointments" made by president Obama in January and who have not been confirmed by the Senate, as is normally required. It is also possible for the Congress to nullify an agency rule.

The NRF said that "Organized labor is expected to use the new rules and other recent pro-union initiatives approved by the NLRB to target traditionally non-union industries like retail," in additional to manufacturing.

How do you see this playing out? Will the NLRB simply adopt these rules now that is has a complete number of board members? If so, will this lead to lots more successful unionization efforts or not? Let us know your thoughts at the Feedback section below.

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