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Ken Turchi
IU Maurer School of Law

Last modified: Monday, July 11, 2011

NLRB election procedure 'broken,' says IU Maurer School of Law expert in Congressional testimony

July 11, 2011

BLOOMINGTON, Ind. -- The National Labor Relations Board's procedures for conducting union elections are broken and need to be overhauled, an IU Maurer School of Law professor and labor economics expert told a U.S. House committee on July 7.

Kenneth Dau-Schmidt

Kenneth Dau-Schmidt

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Testifying before the House Committee on Education and the Workforce, Professor Kenneth G. Dau-Schmidt said that the current procedures "do not meet modern judicial and administrative standards, and they allow unscrupulous employers to control the election process through delay and intimidation.

"The purpose of the board's election procedures is to allow workers who want to vote on whether to form a union to be able to do so in a timely and economic manner," Dau-Schmidt added. "Yet even in the best of circumstances, when both sides undertake a good-faith effort to make the process work, the board's procedures work against this goal. Current procedures include needless delay and the reliance on outmoded, costly and time-consuming methods for resolving issues, producing evidence, accomplishing service, and engaging in effective communication."

Dau-Schmidt cited a study showing how the current procedures result in unnecessary election delays. According to the study, most petitions to hold a union representation election proceed to a vote when both parties have consented. When the election is contested, however, workers wait an average of 124 days. Some elections have been delayed for more than 13 years.

"Of course employers should be given an opportunity to raise valid concerns and objections, but the problem with the current process is that it gives too many opportunities for abusive, unlimited delay and allows the parties to raise an ever larger set of concerns," he testified. "Rather than resolving the conflict, this practice expands it.

"In too many cases, unscrupulous employers and the 'union avoidance' firms they employ use NLRB process to intentionally delay the election process and give them time to intimidate employees into voting against the union through illegal unfair labor practices," said Dau-Schmidt.

Dau-Schmidt endorsed the NLRB's proposed changes, which include allowing e-mail and other forms of electronic communication among the parties; faster submission of voter eligibility lists; prompt and predictable scheduling of pre-election hearings; and a single, post-election appeals process.

"The proposed changes will streamline and simplify the existing process, avoiding unnecessary cost and delay for employees, employers and the American taxpayer," he concluded.

Dau-Schmidt is the Willard and Margaret Carr Professor of Labor and Employment Law at the Indiana University Maurer School of Law. He is available to comment on the NLRB's proposal, and can be reached at 812-855-0697, or at