"Union Representation Elections: Law and Reality": The Authors Respond to the Critics

Abstract

In Union Representation Elections. Law and Reality (hereinafter Law and Reality without cross-reference), we examined the desirability of continued National Labor Relations Board (NLRB) regulation of pre-election campaigning. Our central finding, based upon a study of thirty-one elections, and interviews with over 1000 employees, was that unlawful campaigning has no greater effect on employee voting behavior in a union representation election than does lawful campaigning. Hence, we recommended that the Board should no longer attempt to distinguish between lawful and unlawful campaigning; that the results of an election, once conducted, should be final; and that speech should be wholly free that the Board should neither set aside elections nor find unfair labor practices based on oral or written communications by an employer or a union. In place of Board regulation of pre-election campaigning, we suggested that each party be given the opportunity to respond to the campaigning of the other a form of private regulation. Since the employer can presently hold meetings of employees on working time and premises, we recommended that the union be given a similar opportunity when the employer exercises this right. Finally, we recommended the use of quicker and more effective remedies than are presently available when an employer engages in retaliatory actions against union supporters, particularly during a union organizing campaign. These recommendations, and the findings on which they were based, have met with a mixed reaction in the various forums in