NLRB Elections: Ambush or Anticlimax?

Source: Jeffrey M. Hirsch, University of North Carolina School of Law, UNC Legal Studies Research Paper No. 2551118, January 15, 2015

From the abstract:
The basic procedures of the National Labor Relations Board’s election process has been largely stable for decades. That stability, however, camouflaged great dissatisfaction with the election process, particularly among unions. The primary criticism is that parties, especially employers, are able to delay elections and unduly coerce employees before casting their ballots. Many of these problems are out of the NLRB’s hands, as they result from statutory or judicial limits. But others were well within the Board’s control, particularly delays in holding elections and certifying the results, which can substantially reduce employees’ support for a union.

With these problems in mind, the NLRB engaged in a comprehensive rulemaking process to revise its election rules. Employers have strongly criticized the election rules, primarily because they reduce the amount of time to run and certify an election. According to these critics, the new “ambush” elections will infringe employers’ free speech interests and employees’ right to make an informed choice about unionization. In contrast, unions have reacted positively, although though many thought the rules did not go far enough.

In this symposium essay, I argue that the rules appear to be fairly modest. We should see quicker elections, but not to the degree that they can be characterized as “ambush.” Moreover, even with faster elections, it seems unlikely that unions’ fortunes will improve dramatically — the hurdles to unionization are far too great for improved election procedures to overcome. In short, the NLRB is to be commended for eliminating many sources of unnecessary delay, but the rules’ critics and supporters seem to be exaggerating their effect.