§10.2 Elections and Certification

• Library: Labor and Employment Law: Private Sector (OSBar) (2011 Ed.)

§10.2 ELECTIONS AND CERTIFICATION

For a union to be recognized as the employees' exclusive bargaining representative, a majority of the employees in the bargaining unit must designate the union as its representative. 29 USC §159(a).

§10.2-1 Voluntary Recognition

When the twin requirements of majority status and appropriate bargaining unit are met, the employer may voluntarily recognize the union. 29 USC §159(b). To obtain voluntary recognition, a union must present a demand for recognition to the employer, accompanied by evidence of majority support. An employer that recognizes a union when the union does not represent a majority of the employees within the unit violates §8(a)(2) of the National Labor Relations Act (NLRA) (29 USC §158(a)(2)) even if the employer and the union each believe, in good faith, that majority status exists. International Ladies' Garment Workers' Union v. NLRB, 366 US 731, 81 S Ct 1603, 6 L Ed2d 762 (1961).

Special recognition issues often arise in the construction industry. Under §8(f) of the NLRA (29 USC §158(f)), an employer in the construction industry may enter into a prehire agreement requiring union membership as a condition of employment (when allowed by state law), regardless of whether the union has majority support. Although such an agreement is binding during its term, it may be unilaterally repudiated when it expires. John Deklewa & Sons, 282 NLRB 1375 (1987). But see Stack Elec., Inc., 290 NLRB 575 (1988) (a prehire agreement under §8(f) can be repudiated during its term when the employee complement has dwindled on an expected permanent basis to fewer than two employees).

The question may arise whether a §8(f) agreement has been converted into a recognition agreement under §9(a) of the NLRA (29 USC §159(a)), thus affording the union greater statutory rights. In the absence of evidence of a recognition agreement, the National Labor Relations Board (NLRB) presumes that the parties have a §8(f) relationship. To establish voluntary recognition under §9(a), the NLRB requires evidence that the "union unequivocally demand[ed] recognition as the employees' §9(a) representative," and that the employer unequivocally accepted it as such. H.Y. Floors & Gameline Painting, Inc., 331 NLRB 304 (2000). On receipt of such an unequivocal request from a union, the employer may either demand a showing of majority support or choose to accept the union's claim of majority support on its face and recognize the union. H.Y. Floors & Gameline Painting, Inc., 331 NLRB at 304.

A recognition agreement or contract provision is independently sufficient to establish the union's §9(a) representation status when the language unequivocally states that

(1) the union requested recognition as the majority or Section 9(a) representative of the unit employees; (2) the employer recognized the union as the majority or Section 9(a) bargaining representative; and (3) the employer's recognition was based on the union's having shown, or having offered to show, evidence of its majority support.

Staunton Fuel & Material, Inc., 335 NLRB 717, 719-720 (2001).

If the language of the agreement is not independently dispositive, the NLRB considers relevant extrinsic evidence bearing on the parties' intent. Staunton Fuel & Material, Inc., 335 NLRB at 720 n 15.

There are thus two ways for the union to obtain §9(a) status: (1) winning an NLRB-conducted election, or (2) obtaining a voluntary recognition agreement under the Staunton Fuel case. Once a preexisting §8(f) agreement is converted into a §9(a) agreement, it acts as a contract bar, sufficient to bar a rival union petition, even if the parties do not negotiate a new contract after the §9(a) recognition. VFL Tech. Corp., 329 NLRB 458 (1999); Staunton Fuel & Material Inc., 335 NLRB at 719. However, an employer that voluntarily recognizes the union based on an offer to demonstrate majority support and subsequently discovers that the union did not have majority support may challenge the union's §9(a) status if it files a petition within six months of recognition. Casale Indus., 311 NLRB 951, 953 (1993); Staunton Fuel & Material, Inc., 335 NLRB at 719. If no challenge is made during that time, the employer can terminate its bargaining obligation only by showing that the union has, in fact, lost majority support. Staunton Fuel & Material, Inc., 335 NLRB at 719.

§10.2-2 Petition for Election

If the employer refuses to voluntarily recognize the union, the union may file a representation petition with the National Labor Relations Board regional director to determine if recognition under the National Labor Relations Act is warranted. 29 USC §159(c).

§10.2-2(a) Who May File

§10.2-2(a)(1) Labor Organizations

A labor organization seeking certification as the majority representative may file a petition (an RC petition) with the regional director of the National Labor Relations Board (NLRB), which adequately describes the bargaining unit claimed to be appropriate under the National Labor Relations Act (NLRA) and that is supported by a substantial number of employees. To have substantial support, a petition must be supported by at least 30% of the employees within the bargaining unit. 29 CFR §101.18(a). Evidence of substantial support is usually presented in the form of signed and dated authorization cards, which are submitted when the petition is filed or within 48 hours thereafter. 29 CFR §101.17. The contents of a petition for certification of a labor organization are set forth in 29 CFR §102.61.

PRACTICE TIP: A petition is normally supported by authorization cards signed by over 50% of the employees because the union expects some falloff during the ensuing election campaign (signing an authorization card does not obligate the employee to vote for the union in the election).

An internal investigation by the regional director into the adequacy of the petition and the showing of interest follows. 29 CFR §101.18. The regional director conducts its investigation to ascertain the following:

(1) "[W]hether the employer's operations affect commerce within the meaning of the [NLRA]";

(2) Whether the unit of employees sought for the purposes of collective bargaining is appropriate and whether there is, in fact, "a bona fide question concerning representation" within the meaning of the NLRA;

(3) Whether the election would effectuate the policies of the NLRA and reflect a free choice of employees in the bargaining unit; and

(4) Whether the labor organization seeking recognition has made a sufficient showing of interest. 29 CFR §101.18(a).

In verifying the authenticity of the authorization cards presented by the labor organization, the regional director does not allow the employer access to the cards. Madeira Nursing Center v. NLRB Region No. 9, 615 F2d 728, 730 (6th Cir 1980). (The verification is usually done by comparing the cards to an employee list and, if requested, comparing signatures to W-2 statements.)

NOTE: In an unfair labor practice hearing when the employer is alleged to have violated §8(a)(5) of the NLRA (29 USC §158(a)(5)) by refusing to voluntarily recognize a union with a card majority, the employer is allowed access to the authorization cards and can contest their validity. Cumberland Shoe Corp., 144 NLRB 1268, 1269 (1963); NLRB v. Gissel Packing Co., 395 US 575, 584, 89 S Ct 1918, 23 L Ed2d 547 (1969).

The regional director's internal decision concerning the adequacy of the showing of interest is not subject to collateral attack at a hearing by any party. Yorktowne Hotel, 126 NLRB 344 (1960).

Even though an employer has already voluntarily recognized a union, the union may file an RC petition to obtain the benefits of an NLRB certification. General Box Co., 82 NLRB 678 (1949).

§10.2-2(a)(2) Individuals

A petition for certification may be filed not only by a labor organization, but also by individual employees or a group of employees or by any individual acting on these employees' behalf. 29 USC §159(c)(1)(A). The National Labor Relations Board (NLRB) rules concerning questions of representation apply irrespective of the identity of the party filing the petition for certification. 29 USC §159(c)(2). Individuals may file decertification petitions or deauthorization petitions as well. A decertification petition (an RD petition) seeks certification that the union no longer represents a majority of employees in the bargaining unit. See National Labor Relations Board Casehandling Manual II, §11002.1(a) (2007) (available at < www.nlrb.gov/sites/default/files/documents/44/chm2.pdf >). A deauthorization petition (a UD petition) seeks rescission of the union's ability to enter into a union shop agreement with the employer. See Casehandling Manual II, supra, §11500. As with RC petitions (certification of representative—see §10.2-2(a)(1)), an RD or UD petition must be supported by 30% of the employees in the bargaining unit. See 29 CFR §§101.26-101.27. However, to win a deauthorization election, those wishing to rescind the union's authority to agree to a union shop provision must obtain a majority vote, as measured by the number of eligible voters in the bargaining unit, and not merely a majority of the ballots cast (as in all other NLRB-conducted elections). Casehandling Manual II, supra, §11512.

§10.2-2(a)(3) Employers

An employer can file a representation petition (an RM petition) under the National Labor Relations Act (NLRA) in two situations. First, an employer may file a petition if one or more unions have presented a claim to the employer to be recognized. To be deemed sufficient, the employer's petition, in addition to other matters, must contain an allegation that one or more unions have claimed recognition as the majority bargaining representative. 29 CFR §102.61(b)(3). To constitute a claim for recognition, more than mere campaigning on the part of the labor organization is required. Electro Metallurgical Co. (Ashtabula, Ohio), 72 NLRB 1396, 1399 (1947). In New Otani Hotel &...