Fetishizing the Electoral Process: The NLRB's Problematic Embrace of Electoral Formalism

This paper addresses the issue of employee free choice in the union representation context, focusing on the current debate at the National Labor Relations Board regarding voluntary recognition. In a voluntary recognition process, also known as card-check, an employer recognizes the union as the employees' exclusive bargaining agent if the majority of employees sign cards authorizing the union to bargain for them, rather than relying on a Board-supervised election process. Currently, an employer may sign a card-check agreement with a union, agreeing to recognize the union upon a majority showing of signed cards. First, this paper describes the two broad categories of methods used in labor law to identify employee free choice: formalism and realism. Second, the paper provides a brief history of the methods used to identify a union's majority support, identifying the political tensions that shaped those methods. Third, the paper discusses the current debate over representation recognition issues. The paper analyzes the Board's historical and current methods for recognizing a union and critiques the anti- and pro-union arguments on the voluntary recognition issue. The paper then uses the anti- and pro-union arguments to discuss the shortcomings of the current methods of union recognition. Finally, the paper demonstrates the systemic issues inherent in the current recognition methods and proposes some potential reforms that will begin to rectify these problems.