If the scope of the proposed bargaining unit is expanded to include even more employees, it will almost always make it more difficult for the union to carry a majority.
After the union organizing drive has "peaked"meaning that the union has secured the required number of signed employee authorization cardsa union representative will usually contact the employer to request recognition of the union's status as exclusive bargaining representative for the employees. The union representative may then offer to have the union's majority status verified through a "card check," which consists of nothing more than counting the number of authorization cards that have been signed by employees and verifying those employees' employment status.
The employer will typically reject the union representative's offer, insisting instead on an employee secret ballot election to determine whether or not a majority of employees really want union representation. If the card check is performed and the employer has agreed in advance to be bound by the results, and the union has a valid majority of signed authorization cards, the employer is legally obligated to recognize and bargain with the union. The right to a secret-ballot election among employees is lost.
Petitioning for an Election
If the union collects signed authorization cards from 30 percent of the employees, but not a majority, it may file a petition with the NLRB for a representation election. This 30 percent of employees is known as a "showing of interest." An employer may also file a petition when one or more individuals or labor organizations present a claim to be recognized as the exclusive employee bargaining agent. The NLRB is the "referee" during the union representation process, and the filing of this petition is the first step in invoking the NLRB's procedures.
A petition can be filed at any time if there is no incumbent union and there has been no prior union election in the past year. Under the NLRA, there cannot be more than one representation election for the same bargaining unit in a twelve-month period.
The petition is filed with the NLRB office for the region in which the employees are employed, where it is then docketed and assigned to an NLRB staff member for investigation. All interested parties are notified. A copy of the petition is sent to the employer, along with a poster informing employees of their statutory rights, which the employer is requested to post in the workplace.
Soon after the petition is filed, the NLRB contacts the employer and the union to identify any issues raised by the petition, such as the legitimacy of petition signatures, which employees to include in the proposed bargaining unit, and so forth. An informal conference follows, at which time a determination is made as to whether the union has an adequate showing of interest. Unions typically use authorization cards for this purpose and usually submit them with the election petition. In order to process the petition, the NLRB must verify that the union has presented cards from at least 30 percent of the employees in the proposed bargaining unit. The authorization cards and the employee signatures on them remain secret.
The employer must rely on the NLRB to properly count authorization cards and validate their authenticity. The NLRB's determination is a non-litigable matter, uncontestable by the employer or union. If there is evidence of signature forgeries or other abuses, the employer should present it to the NLRB office. Under no circumstances will the NLRB reveal to the employer the extent of the employees' support for the union, except to state that support is sufficient to proceed with a representation election. If the showing of interest is inadequate, the union is given extra time (usually 48 hours) to submit additional signed authorization cards, otherwise the petition is dismissed.
Setting the Terms of the Election
Representation elections are sometimes conducted pursuant to an agreement, known as a stipulation agreement, between the employer and the union, which expedites the scheduling of the election. If the parties are unable or unwilling to come to such an agreement, the NLRB schedules a hearing to determine, among other things, the scope and composition of the appropriate employee voting bloc, or bargaining unit. Typically, the NLRB will facilitate a conference with the two parties in an effort to help them reach a stipulation agreement.
At the conference, an NLRB agent attempts to narrow the issues to be reviewed. Employers sometimes dispute whether unionization is appropriate for the employees in question, and this dispute requires a separate hearing and delay. In addition, if the scope of the proposed bargaining unit is expanded to include even more employees, it will almost always make it more difficult for the union to carry a majority.
If the employer and union cannot resolve these issues voluntarily, the NLRB will conduct a hearing to resolve them. At the hearing, the employer may also challenge the eligibility of certain employees to vote, for example, supervisors and confidential (executive) employees. Managerial and confidential employees are not subject to unionization since a conflict of interest between them and regular hourly employees would arise.
Hearings are conducted by the NLRB to resolve any disputed issues between the union and the employer. The hearing officer is often the same NLRB agent who investigated the petition and conducted the showing-of-interest conference. He is responsible for developing the record upon which any election disputes will be resolved for use in the event of later court challenges to the election proceedings. The hearing officer neither writes the decision nor makes recommendations.
Hearings are relatively informal. The NLRB generally looks to the employer to come forward with its witnesses first, and the union may also present evidence. All witnesses are subject to cross-examination by both parties as well as the hearing officer. After oral arguments and post-hearing briefs are submitted, the director of the regional NLRB office renders a decision on the issues presented. In cases where there are no clear legal precedents for a decision, the regional director may transfer the case to the NLRB in Washington to decide.
If either the employer or the union is aggrieved by the regional director's decision, it may request a review by the NLRB in Washington. Such a review, however, is rarely granted, and there is no further appeal if the NLRB denies the request. The decision may still be challenged in a subsequent unfair labor practice proceeding if the employer refuses to bargain with the union. This is known as "testing the certification."
The Excelsior List and the Representation Election
Once the terms of an election have been set, the NLRB directs the employer to submit to the regional director within a specified period of time (usually within seven days of the election) a list of the names and addresses of all eligible employee-voters. The regional director in turn hands over the list to the union. This list is known as the Excelsior List.
The Excelsior List is used by the union to communicate with all eligible voters, not just those who have signed authorization cards, and by the NLRB to check in voters when they arrive at the polls on election day.
The election itself is the culmination of the union organizing process and the various informational campaigns waged by the union and employer. It determines, by secret ballot, whether or not the union will become the exclusive representative of the employees, placing the employer under an obligation to bargain with the union.
Elections are normally conducted within 30 to 60 days after the parties agree to, or the NLRB directs, an election. The time and location of the election is determined by the NLRB, through consultation with the employer and union, with a view toward enhancing turnout and ensuring that all eligible voters have an opportunity to cast their ballots in an atmosphere free from either union or employer coercion.
Elections are frequently held at the employer's place of work on payday. If the proposed bargaining unit of voting employees is very large or works at more than one facility, multiple or split session elections may be arranged. Elections are generally manualthat is, voters physically come to the polling stationbut in certain special circumstances, the NLRB may allow mail ballots to be issued. Notices of election are posted at least three working days before the election is to be held.
To be eligible to vote, an employee must be employed at the time of the election as well as during the payroll period immediately preceding the date that the election was ordered by the NLRB (or agreed upon by the employer and union). Probationary employees, regular part-time employees, or laid-off employees (with a reasonable expectancy of re-employment), and employees in the military service are also eligible to vote. Temporary employees, students who work during their summer vacations, and other casual employees are ineligible. If there are economic strikers and/or permanent replacements, both groups have the right to vote in the election if the strike is less than one year old.
The company and the union are permitted to choose non-supervisory individuals to observe the election and assist the NLRB agent and report any irregularities. These observers may "challenge" the eligibility of an individual to vote during the election, especially if an individual who is not on the Excelsior List arrives to vote. Challenged votes are sealed and set aside for a later NLRB determination of the voters' eligibility.
If a majority of the valid votes cast are for union representation and challenged ballots are not determinative (i.e., if counting them as votes against the union would not alter the election's outcome), the NLRB will certify the union as the exclusive representative of all employees in the bargaining unit, even those who voted against the union. Either party, employer or union, may file objections to the election within seven days on the grounds that impermissible union or employer conduct tainted the election results such that they do not accurately reflect the employees' true choice. Types of impermissible employer conduct generally sufficient to overturn an election are described on page 37 under "Union Organizers' Access to Employer Premises." Unions generally enjoy greater latitude in their pre-election conduct, but they are also subject to certain restrictions.89
The NLRB will investigate all timely objections and determinative challenges to the election to discover which, if any, have merit. This investigation may also include a hearing, if factual issues are in dispute. The objections and challenges are resolved by reports issued by the NLRB regional director or the board's members in Washington. If the objections are found to be meritorious, the NLRB will direct that another election be held.
If election results are set aside because an employer's conduct is deemed to destroy the "laboratory conditions" necessary for employees to vote without fear of reprisal, the NLRB may issue a bargaining order rather than direct another election. For this to happen, the union must demonstrate in an unfair labor practice proceeding, through the use of authorization cards, that a majority of the employees would have voted for the union but for the employer's flagrant violations of the law.
If the election has been deemed valid, the NLRB issues either a certification of results (the union did not obtain a majority) or a certification of representation (the union did obtain a majority). Once the NLRB issues a certification of representation, the employer is obligated to bargain with the union.