NLRB Elections: Uncertainty and Certainty

Abstract

Statistics continue to show an increase in inconclusive NLRB elections, 1 an increase in the number of objections filed by employers, 2 and an increase in the number of public reports on objections and determinative challenges.' Whether one considers the figures alarming, interesting, or expected, they raise questions about the usefulness of elections for settling representation issues. Both the public and the labor-management community prefer elections as the means for deciding whether or not workers wish union representation. Indeed, the recent celebration of the twenty-five-millionth voter was shared by influential public and private leaders. Even the critics of the NLRB who condemn the Board's reliance upon authorization cards to establish majority relresentation extol the election process. In view of this apparent support, increased union and management dissatisfaction with elections certainly warrants concern.The utility of elections lies in final, definitive and unchallenged results; elections become useless when the results are challenged, uncertain, or rejected. Elections are intended to establish and stabilize representation, not to leave it unsettled and in dispute.This article focuses upon the functional aspect of NLRB elections, namely, deciding questions of representation. My major thesis is that definitive election results are needed to satisfy representational requirements. I seek to direct attention to the consequences of inconclusive elections, and to present a viewpoint from which to look at the increasing number of objections. There is here no exposition or analysis of decisions, no discussion of free speech, and no criticism of campaign tactics or electioneering. Primarily, I view the increasing number of inconclusive elections from the perspective of a participating administrator. For "data" I rely upon my quarter-century with the NLRB. During this period I have been involved directly in investigating, researching, and reporting some 550 cases of objections and challenges.