Bloomberg Law
Sept. 20, 2019, 10:33 AM

Limited Options for Unions When Labor Board Nixes Election Win

Robert Iafolla
Robert Iafolla

The International Association of Machinists is contemplating a lawsuit to appeal a recent National Labor Relations Board decision that nixed the union’s election win to represent a group of technicians at a Boeing Co. facility in South Carolina, the union’s top lawyer told Bloomberg Law.

To succeed, the Machinists would have to convince a court to apply a narrow exception that permits judicial review of the NLRB’s rulings in representation cases.

The case highlights an apparent structural disparity in federal labor law. Employers routinely follow a well-trod path to challenge union election victories in court. But unions have only a few rarely used, long-shot options to get in court when employers like Boeing prevail in representation cases.

The National Labor Relations Act doesn’t provide for direct judicial review of NLRB decisions on whether to allow elections or certify union wins. Other decisions arising from representation proceedings also aren’t appealable, such as those on the scope of a bargaining unit, whether certain workers are supervisors and thus ineligible to vote, and if objections to election conduct have merit.

Lawmakers were concerned with judicial review of union representation decisions interrupting the collective bargaining process, according to the legislative history leading to the passage of the NLRA in 1935. But Congress did allow for NLRB rulings in unfair labor practice cases—where an employer or union action allegedly violated federal labor law—to be appealed straight to federal circuit courts. Employers have used that workaround to challenge elections when their workers chose union representation.

Employers can obtain judicial review after a union election win by refusing to bargain. That creates an unfair labor practice case that can serve as a vehicle to appeal the underlying representational decision. The U.S. Supreme Court blessed that approach in its 1940 ruling in AFL v. NLRB.

Companies regularly appeal representation cases in court with these unfair labor practice cases despite the deferential standard that courts apply when reviewing NLRB decisions. For example, companies unsuccessfully challenged the now-defunct Obama-era standard for approving smaller bargaining units within a company’s workforce in at least eight different circuits.

‘Time Works Against a Union’

Employers trying to stop unionization have strong incentives to litigate these cases, labor law observers said.

Processing these unfair labor practice cases at the board and then litigating appeals in court can take years, putting off bargaining on an initial contract and weakening worker support for the union, they said.

“Time is the enemy of the union,” said Michael Duff, a labor law professor at the University of Wyoming and a former NLRB attorney. “Anything that takes time works against a union.”

In addition to granting employers a means to delay, the asymmetry in the ability to appeal also “creates a one-way ratchet on the law,” said AFL-CIO General Counsel Craig Becker.

Employers have a greater opportunity to influence the courts through representation case appeals than unions, said Becker, an NLRB member during the Obama administration. Moreover, winning at the U.S. Court of Appeals for the District of Columbia Circuit—which is always an option for appealing NLRB decisions—creates pro-employer case law that any company can take advantage of, he said.

Nevertheless, organized labor has considerable latitude in choosing the timing and scope of union elections, and winning representational rights at a facility is a “big deal,” said Marshall Babson, a former NLRB member who represents employers for Seyfarth Shaw.

While there appears to be a lack of equivalency on the ability to seek court review of representation decisions, a union and an employer aren’t on an equal plane with respect to an employer’s business enterprise, Babson said.

Creating Route for Union Appeal

Unions do have a way to appeal election defeats in court.

After a loss, they can picket their employer in the hopes of drawing an unfair labor practice charge for “recognitional picketing” within a year of a valid vote, and use that as a vehicle to get into court, labor law observers said.

“That almost never happens,” said Martin Malin, a law professor and co-director of the Institute for Law and the Workplace at Chicago-Kent College of Law.

For one thing, unions must rely on employers to file charges rather than ignore the picketing or tamp down those protests through indirect means, observers said. That’s something employers don’t have to worry about when they manufacture cases to challenge union election victories.

“There’s no incentive for employers to file charges for recognitional picketing,” said Anne Lofaso, a labor law professor at West Virginia University and a former NLRB attorney. “Unions have every incentive to file charges if employers refuse to bargain. The whole purpose of winning a union election is to bargain.”

But that long-shot option isn’t available to the Machinists because it didn’t lose its election at the Boeing facility. A subset of about 175 technicians at the facility voted for union representation. The NLRB invalidated that on the grounds that the unit wasn’t appropriate under its test for smaller groups within the overall workforce.

Narrow Kyne Exception

Instead, the Machinists may ask a federal court to hear its appeal by invoking the Supreme Court’s 1958 ruling in Leedom v. Kyne. That decision allowed a district court to consider an NLRB ruling on an appropriate bargaining unit. The court reasoned the case wasn’t just reviewing a decision, but instead “one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition of the Act.”

“We are contemplating a claim based on the fact that the board order is flatly inconsistent with labor law,” said to Mark Schneider, the Machinists’ general counsel.

Any bid to obtain court review via Kyne faces very long odds, according to legal observers. “The Kyne exception is a narrow one,” the Supreme Court said in its Boire v. Greyhound, a 1964 ruling that some observers say has nearly narrowed the exception out of existence.

Imbalances, Proposed Reform

Federal labor law includes other imbalances beyond the opportunity for judicial review of representational cases.

For instance, the NLRA makes it mandatory for NLRB regional directors to seek a court injunction against unions if there’s evidence they engaged in unlawful picketing. But asking a court for an injunction against employers or unions for any unfair labor practices while a case is being litigated is optional.

Legislation to reform labor law that Democrats introduced in May wouldn’t eliminate the disparity on appealing representation cases, although it would reduce the amount of delay involved when employers challenge union election victories.

The proposal calls for the NLRB to issue an order requiring employers to bargain with unions that prevail in elections. Employers could appeal those orders in court, but they wouldn’t have to go through the process of manufacturing unfair labor practice cases to get there.

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Karl Hardy at; Terence Hyland at