The NLRB's Election Rule

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

The NLRB has issued a Final Rule making some relatively minor changes to its procedures in union election cases. These are limited, commonsense changes that will improve the current procedures for running union elections. The improvements will come primarily from reducing (some) delay and improving information flow to workers – improvements that are badly needed.

Under the new rule, the NLRB regional director responsible for an election will decide “which, if any, voter eligibility questions should be litigated before an election is held.” This marks a shift from prior practice under which voter eligibility questions had to be litigated prior to the election – even if they weren’t relevant to the question of whether an election should be held – a practice that the Board correctly determined often produced unnecessary litigation and delay. The new rules also make a sensible change to the voter list employers provide during elections. Whereas, previously, the list included only employee names and home addresses, lists will now include phone numbers and email addresses (where available). Since the purpose of voter lists is ensuring that employees are able to hear all sides of the debate over unionization – including the union side – it makes good sense to give unions information that will enable them actually to contact employees. Plus, many employees would probably far prefer to get a phone call or an email from a union organizer than a home visit.

A good summary of the Rule is available here. It is worth looking at what the Board has actually done because there are already signs of overheated reaction. As The Hill notes in its coverage, some business groups have “coined terms ‘ambush’ and ‘quickie’ elections to express their frustration with the rule.”   The Rule simply does not effect enough of a departure from the status quo to merit such reaction. I’m also afraid that some of the reporting on the Rule may contribute to this disproportionate response. For example, in a piece headlined NLRB boosts unions’ organizing leverage, PoliticoPro reporter Brian Mahoney called the Rule “the most significant policy change ever undertaken by the Obama administration to strengthen the power of labor unions.” If this is, in fact, the most significant thing the Obama administration has done to strengthen unions, that is simply a sad commentary on what the administration has done for unions. It is no indication that the Rule contains that much to get excited (or dejected) about.

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