University of Cincinnati Law Review
Any procedure requiring a “fair” election must honor the rights of both those who oppose and those who favor a union. The National Labor Relations Act (“Act”) is wholly neutral when it comes to that choice. Under the terms of the Act, employees have the right to form unions but also have the right to refrain from such activities. The National Labor Relations Board’s (“Board”) role in representation elections is to ascertain the employee's’ wishes concerning unionization, and not to influence that fundamental choice. The Board’s appearance of neutrality may be undermined through fraternization, the delegation of duties, and allegedly partisan statements or actions.
In Athbro Precision Engineering Corp., the Board stated that elections could be set aside whenever a Board agent's misconduct destroyed confidence in the election process or could be interpreted as impugning the Board's election standards. Yet, despite this decision, the Board has been reluctant to invalidate elections despite highly questionable associations between its agents and parties to representation elections. Thus, it has frequently been left to the circuit courts to uphold the Board’s earlier concern for maintaining the integrity of the Board’s election standards. As a result, it remains uncertain when and why the elections will be invalidated due to the appearance of Board partisanship.
Even in the face of these issues, there is a greater need to preserve faith in the sanctity of representation elections. Therefore, the Board and federal courts should move vigorously to nurture the Athbro standard and keep faith with the workers’ rightful expectations that their freedom of choice shall remain unfettered.
John W. Teeter, Jr., Keeping the Faith: The Problem of Apparent Bias in Labor Representation Elections, 58 U. Cin. L. Rev. 909 (1990).