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Recast Midwest Piping Doctrine - The Case for Judicial Acceptance

NCJ Number
Labor Law Journal Volume: 36 Issue: 1 Dated: (January 1985) Pages: 14-27
S Estreicher; S Telsey
Date Published
14 pages
This article surveys the justification for the Midwest Piping doctrine and discusses the National Labor Relations Board's (NLRB) difficulties in administering the National Labor Relations Act.
The Midwest Piping doctrine attempts to protect the NLRB's election machinery and to safeguard employee choice by requiring the employer in rival union situations to withhold voluntary recognition of one of the union contestants. The NLRB held that the employer violated the act by recognizing and contracting with one union when he knew that a question concerning representation (QCR) of the employees existed. Over the years, however, the NLRB has progressively minimized the QCR requirement and has followed a different policy in situations where a rival union challenged an incumbent union. The NLRB's justification for the doctrine rests on its assumption that employees view union recognition as an expression of employer preference and are less willing than they might have been to support a union that the employer seems to disfavor. A second related purpose of the doctrine is to prevent the employer from distorting employee decisionmaking through control of the timing of his recognition in a rival union context. This doctrine has not fared well in court, primarily because of the determination of when a QCR exists and the treatment of the bargaining hiatus problem. In two related cases, Buckner Nursing Home and RCA Del Caribe, the NLRB narrowed the scope of the doctrine but did not completely overrule its policy of employer neutrality. This modification represents a reasonable balance between the different statutory goals. Included are 87 notes.


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