Improving the Administration of the National Labor Relations Act without Statutory Change

Source: Sam Estreicher, ABA Journal of Labor & Employment Law, Vol. 25 no. 1, Fall 2009

A great deal of discussion and controversy surrounds whether Congress will enact the proposed Employee Free Choice Act (EFCA), a measure that would establish union bargaining authority without elections and allow arbitrators to impose first-time collective bargaining agreements where the parties are unable to. Comparatively little attention is being paid to what can be done under existing law. Whether or not EFCA becomes law, attention needs to be drawn also to how the National Labor Relations Board (NLRB), the agency responsible for enforcing our labor law, can better organize its resources to minimize the serious problem of administrative delay in holding elections and seeking court injunctions, use forms of rulemaking and advisory opinions to give parties better notice, and opportunity to participate in the formulation, of legal chance, and recast existing approaches to give unions better access to the employee electorate once it is clear an election will be held and improve available remedies under existing law to deter employer violations. This paper develops an agenda for regulatory change at the NLRB.

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