Establishment of Bargaining Rights Without an NLRB Election

Those who have become accustomed to keep one ear cocked for the five-part harmony relentlessly ground out by the mimeograph machines at NLRB headquarters on Pennsylvania Avenue-those whom one may call professional Board-watchers-have doubtless noticed how fashions come and go in the subjects of NLRB litigation. It is as if the interest of litigants as easily wanes as does that of the reader of opinions, for there is a fairly regular succession of themes, each to be developed for a time until, as though by common consent, attention swings toward a different problem entirely. The wave of the present, I believe most would agree, is the question of establishment of bargaining rights without an election. The Board has entertained a strikingly increasing number of cases involving union attempts to secure representative status other than through success in a Labor Board election, and Congressmen, judges, commentators and practitioners have each contributed to the medley of the “card check.” Because the subject is currently so fashionable, I would like to forego the historical narrative ordinarily expected of professors and introduce the relevant legal issues with an overview of the current Board position, which in my view has changed perceptibly during the past year.