8.2 Union organizing and representation elections

Union organizing and representation elections are crucial processes in labor relations. They allow employees to collectively negotiate with employers, while employers face restrictions on interfering. The process involves obtaining authorization cards, determining bargaining units, and potentially holding elections.

The National Labor Relations Act guarantees employees' right to organize, while employers are prohibited from interfering. Union authorization cards demonstrate support, and bargaining unit determination establishes the group represented. Representation elections, conducted by the NLRB, decide if a union becomes the exclusive bargaining representative.

Union organizing process

• The union organizing process is a crucial aspect of labor relations, enabling employees to collectively negotiate with their employer
• Employees have the right to organize and join unions, while employers face restrictions on interfering with this process
• The organizing process involves obtaining union authorization cards, determining the appropriate bargaining unit, and potentially holding a representation election

Employees' right to organize

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• Guaranteed under the National Labor Relations Act (NLRA)
• Protects concerted activities for mutual aid or protection
• Includes discussing terms and conditions of employment
• Allows employees to join or assist labor organizations

Employer restrictions

• Prohibited from interfering with, restraining, or coercing employees in exercising their rights
• Cannot discriminate against employees based on union support or activities
• Restricted from providing assistance or support to unions
• Must remain neutral during the organizing process

Union authorization cards

• Used to demonstrate employee support for union representation
• Typically state that the employee wishes to be represented by the union for collective bargaining purposes
• Signed by employees in the proposed bargaining unit
• If a majority of employees sign cards, the union may request voluntary recognition or file a petition for a representation election

Bargaining unit determination

• The group of employees that would be represented by the union for collective bargaining
• Should be a community of interest among employees (similar job duties, working conditions, and supervision)
• May include all employees or a subset (craft unit, departmental unit)
• Determined by agreement between the employer and union or by the NLRB in case of a dispute

Representation election procedures

• When a union has obtained a sufficient showing of interest, it may file a petition with the NLRB to hold a secret ballot election
• The NLRB investigates the petition, determines the appropriate bargaining unit, and sets the election date
• Both the employer and the union can campaign to persuade employees to vote for or against union representation
• The outcome of the election determines whether the union is certified as the exclusive bargaining representative

Filing petition with NLRB

• Union files a petition with the regional office of the NLRB
• Must allege that a substantial number of employees wish to be represented for collective bargaining
• Petition includes a description of the proposed bargaining unit
• Employer is notified of the petition and may challenge the appropriateness of the unit

Showing of interest requirement

• Union must provide evidence that at least 30% of employees in the proposed unit support the petition
• Typically demonstrated through signed authorization cards or a petition
• Not a vote, but rather a preliminary showing to warrant an election
• Failure to meet the requirement results in dismissal of the petition

NLRB investigation and hearing

• NLRB investigates the petition to determine if there is a question concerning representation
• May involve obtaining information from the employer (list of employees, job classifications)
• If parties disagree on the appropriateness of the unit, a hearing may be held
• Hearing officer takes evidence and makes a recommendation to the regional director

Pre-election campaign rules

• Employer and union can communicate with employees to influence their vote
• Employer must provide the union with a list of eligible voters (Excelsior list)
• Campaign materials must not contain threats, promises, or coercion
• Certain conduct (captive audience meetings, inflammatory appeals) may be objectionable

Secret ballot election

• Conducted by the NLRB on the employer's premises
• Employees vote by secret ballot for or against union representation
• Observers from both sides may be present to challenge eligibility and monitor the process
• NLRB agents count the ballots and announce the results

Outcome and certification

• If a majority of votes are cast in favor of the union, it is certified as the exclusive bargaining representative
• If the union loses, it may not seek another election for at least one year
• Objections to the conduct of the election may be filed, potentially resulting in a rerun election
• Certification requires the employer to bargain in good faith with the union

Unfair labor practices during organizing

• Both employers and unions can commit unfair labor practices (ULPs) during the organizing process
• ULPs are violations of the rights guaranteed under the NLRA and can result in remedial action by the NLRB
• Common ULPs include employer interference and discrimination, as well as union coercion and misconduct

Employer interference and restraint

• Threatening employees with adverse consequences for supporting the union (job loss, closure)
• Interrogating employees about their union activities or sympathies
• Promising benefits or improvements to discourage union support
• Engaging in surveillance of union meetings or activities

Discriminatory actions against organizers

• Discharging, disciplining, or refusing to hire employees based on their union support or activities
• Transferring or reassigning union supporters to less desirable positions or shifts
• Treating union supporters differently in terms of work assignments, overtime, or other conditions
• Closing a facility or relocating operations to avoid unionization

Union coercion and misconduct

• Threatening or intimidating employees to sign authorization cards or support the union
• Making false promises or misrepresentations about the benefits of unionization
• Engaging in violence, vandalism, or other disruptive tactics during the campaign
• Offering bribes or other inducements to secure employee support

Remedies for violations

• NLRB can issue a complaint and hold a hearing on alleged ULPs
• If a violation is found, the Board may order the offending party to cease and desist
• Remedies may include reinstatement and back pay for discharged employees, posting of notices, and other make-whole relief
• In cases of egregious or repeated violations, the Board may issue a bargaining order or other extraordinary remedies

Bargaining orders and voluntary recognition

• In some cases, a union may be recognized as the bargaining representative without a secret ballot election
• This can occur through a bargaining order issued by the NLRB or through voluntary recognition by the employer
• These alternative paths to recognition are based on a showing of majority support through authorization cards or other means

Gissel bargaining orders

• Named after the Supreme Court case NLRB v. Gissel Packing Co.
• Issued by the NLRB when an employer's ULPs have made a fair election unlikely
• Requires the employer to bargain with the union based on a card majority
• Typically reserved for cases of serious and pervasive violations

Voluntary recognition agreements

• Employer agrees to recognize the union based on a showing of majority support through authorization cards
• Parties may sign a recognition agreement setting forth the terms of the bargaining relationship
• Voluntary recognition may be challenged by employees or a rival union within a certain period

Card check neutrality agreements

• Negotiated between a union and an employer before the organizing campaign begins
• Employer agrees to remain neutral and recognize the union if a majority of employees sign authorization cards
• May include provisions for access to the workplace, employee lists, and dispute resolution
• Designed to avoid the adversarial nature of a traditional election campaign

Decertification and withdrawal of recognition

• Just as a union can be certified as the bargaining representative, it can also be decertified or have recognition withdrawn
• Decertification is typically initiated by employees who no longer wish to be represented by the union
• Withdrawal of recognition is an action taken by the employer based on evidence that the union has lost majority support

Employee-initiated decertification

• Employees may file a decertification petition with the NLRB
• Must be supported by at least 30% of employees in the bargaining unit
• Election is held to determine if a majority still wish to be represented by the union
• If the union loses, it is decertified and no longer represents the employees

Employer-initiated withdrawal

• Employer may withdraw recognition if it has objective evidence that the union has lost majority support
• Evidence may include employee petitions, statements, or other reliable indicators
• Must be based on a good faith doubt, not a desire to avoid bargaining
• Union may challenge the withdrawal and file ULP charges

Contract bar rule and exceptions

• A valid collective bargaining agreement (CBA) typically bars a decertification petition or withdrawal of recognition
• The contract bar is in effect for the term of the CBA, up to a maximum of three years
• Exceptions exist for the 30-day window period before the CBA expires and for contracts with illegal provisions
• The contract bar promotes stability in bargaining relationships

Impact on collective bargaining

• Decertification or withdrawal of recognition terminates the bargaining relationship
• Employer is no longer obligated to bargain with the union or adhere to the terms of the CBA
• Employees lose the protections and benefits negotiated by the union
• A decertified union may seek to reorganize the bargaining unit after a one-year waiting period