NLRB Election Procedures - Legal Challenges To The Results

Legal Challenges To The Results

While the Board will hear a party’s appeal from a decision rejecting its objections to an election, there is no right to judicial review of the NLRB’s decision. The ostensible purpose of this denial of direct judicial review is to expedite the determination of questions concerning union representation.

In practice, however, the lack of judicial review often produces the opposite result. An employer that wants to challenge the Board’s certification of a union in court must engage in what is referred to as a “technical refusal to bargain” in order to draw an unfair labor practice charge against it under Section 8(a)(5) of the Act. The General Counsel of the NLRB will typically file an unfair labor practice complaint against it for refusing to bargain, at which point the employer can then raise the same objections to the election that it raised earlier as a defense to the unfair labor practice charges against it. While the Board will almost always reject these objections on the ground that they have already been ruled upon, this enables the employer to raise these objections in the appellate court proceedings concerning the Board’s decision in the unfair labor practice case.

The employer runs certain risks in engaging in a technical refusal to bargain; among other things, it may be liable to employees if it makes changes in their terms and conditions of employment without bargaining with the union. However, because the General Counsel of the NLRB rarely seeks injunctive relief in cases of this sort, an employer that wants to take the risk of liability and believes it can withstand a strike can delay bargaining with a union for years after it has won the election.

Unions can also seek judicial review of unfavorable election results by picketing for recognition in the hope of drawing a charge under Section 8(b)(7) of the Act.

There is a narrow exception to this general rule under which a party to a representation case can seek injunctive relief directly in the federal courts to prevent the NLRB from holding an election in defiance of an express statutory limitation, e.g., failing to hold a separate self-determination election for professional employees. These cases are exceptionally infrequent.