From SCDigest's On-Target E-Magazine
- April 23, 2014 -
Supply Chain News: NLRB Holds Hearings on Microwave Election Rules, while UAW Drops Volkswagen Vote Appeal
New Voting Changes Certain to Pass (Again), but Court Challenge Likely; Was UAW Afraid of a Second Loss?
SCDigest Editorial Staff
There were important news items out of the labor supply chain this month, starting with the National Labor Relations Board (NLRB) holding public hearings on a number of proposed changes to rules relative to union drives at companies, most notably those that would enable so-called "microwave" elections.
The two-day hearings and the opportunity for public comment are now over - all that is left is for the 5-member board to vote on the changes, which seem almost certain to pass. In fact, almost identical changes were approved by a similarly labor-supportive board in 2011, but were struck down the following year by a federal court, which said the NLRB lacked a quorum to hold the vote.
SCDigest Says: |
 |
Legal concerns such as those expressed by Davis of Jones Day are sure to lead to a lawsuit to overturn the rules, a process that is likely to take many months or even years. |
|
What Do You Say?
|
|
|
|
Basically the same set of rules were re-proposed in February of this year. The most important change would require a union election to be held within 10-21 days of the when labor organizers have acquired enough worker support to require such an election.
Opponents have used such terms as "microwave" or "ambush" elections to describe this process, which is believed to greatly favor unionization, as the union may carry some momentum from the just completed effort to force an election, and the company will have little time to mount a campaign to convince workers to vote No.
Other important rule changes from the NLRB include:
• Forcing companies to provide unionizers not only the names and mailing addresses of workers, but also now company email addresses and home phone numbers.
• Changing the process such that legal actions by a company challenging aspects of the vote can only be filed after the vote is completed, and that all such motions must be consolidated into a single appeal.
Opponents of the changes say that in effect, where a union would have months and even years to build support at a given work site before approaching the NLRB to supervise an election, an employer would have at most a few weeks to offer any responses. This rule change could especially hurt small businesses, which typically do not employ an on-going labor issues counsel.
But labor, of course, is highly supportive of the changes.
"We applaud the National Labor Relations Board for proposing these commonsense rules to reduce delay in the NLRB election process," said AFL-CIO President Richard Trumka.
On the other side, Doreen Davis, a labor and employment attorney with major law firm Jones Day, testified at the hearings that: "The NLRB's proposed rule changes are in excess of the board's rulemaking authority, are substantively unnecessary, and are contrary to the [National Labor Relations Act]. Moreover, the proposed rules evidence poor public policy and are likely to exacerbate, rather than alleviate, labor tension between employers and employees."
So how does that all net out? It seems nearly certain the NLRB will approve the proposed changes with little or no adjustment to the initial language, by a 3-2 vote along party lines. (The NLRB is required to be split that way along party lines, with the party of the president entitled to the 3-seat majority.)
However, legal concerns such as those expressed by Davis of Jones Day are sure to lead to a lawsuit to overturn the rules, a process that is likely to take many months or even years. It is certainly possible that the challenge could ultimately wind up in the Supreme Court.
A key initial question will be whether an appeals court will prohibit postponement of the rules until an appeals decision is reached.
Regardless, as the new rules will be approved by the NLRB pending a legal challenge, it is time for manufacturers and others with potential union exposure to start planning now.
(Manufacturing Article Continued Below)
|
With a labor-friendly majority at the NLRB, many thought the board might overturn the election and order a new vote. But in a surprising move this week, just as the NLRB was getting ready to start hearings on the UAW protest, the union dropping its appeal, saying that fighting the election through the NLRB could have dragged on for years.