Federal Law > Unions > Union Election Campaigns

Union Election Campaigns

 
After a union has compiled over 30 percent of authorization cards validly signed by employees in a proposed unit requesting the union's representation, the union will often turn those cards over to the National Labor Relations Board, along with a petition seeking a representation election. The contents of the petition include the following:
a. Name and address of the party filing

b. Name and address of employer's establishment

c. Description of the unit (group of employees) proposed as appropriate

d. Approximate number of employees involved in the unit; and

e. Upon receiving such a petition, the Board will screen the petition to determine whether there is a sufficient "showing of interest" among the employees for the union. A showing of interest is established by the union tendering authorization cards totaling at least 30% of the employees in the proposed unit.

The Board has changed some of its rules regarding processing election petitions. Those changes are effective April 14, 2015. For more information about those changes, go to https://www.nlrb.gov/what-we-do/conduct-elections

If an employer has questions about the validity of the authorization cards submitted by the union, the employer may not immediately raise this issue before the NLRB or in the courts. The employer's only recourse at this early stage is to refuse to voluntarily recognize the union's claim of majority status.

Appropriate bargaining unit. The term "appropriate bargaining unit" is a word of art in labor law. A bargaining unit is that group of employees who select a single agent to represent their interests in collective bargaining. The initial claim for an appropriate unit comes from the union. The union will typically decide what group of employees are deemed as appropriate based upon the union's perception of which group of employees will most likely vote for the union. In turn, the employer will attempt to define the appropriate unit in such a way as to secure necessary votes to prevent the union from being elected.

In the absence of an agreement between the union and the employer, the NLRB will determine, through a hearing, what is an appropriate unit. The unit does not have to be "the most appropriate". Rather, it simply needs to be appropriate based upon the Board's determination of whether the employees share a "community of interest". Among the factors examined to determine whether a "community of interest" exists between the employees are the following:

a. Wages and compensation
b. Benefits
c. Hours of work
d. Supervision
e. Qualification, training and skills
f. Job responsibilities
g. Contact with other employees
h. Extent of integration of work functions with other employees
i. History of collective bargaining
j. Job functions
k. Desire of employees to be excluded or included in a particular unit.

Exclusions from units. There are some limitations upon which employees may be included in an appropriate unit. The Board will generally not include professionals in a bargaining unit with non-professionals, nor will the Board allow security guards to be members of a unit with other employees.

Certain employees are also excluded or included in the unit depending upon the amount of time they have worked for the employer and the extent of their community of interests with other employees. As an example, a regular part-time employee who has a substantial and continuing interest in the wages, hours and working conditions with other employees in the unit will be permitted to vote in the election. A casual employee, on the other hand, is excluded by the NLRB as not having sufficient similarities in the terms and conditions of employment with regular employees.

Similarly, an employee who has been laid off and has no reasonable expectation of returning to regular employment in the foreseeable future will be excluded from voting whereas other employees on lay off likely to return may be permitted to vote. The NLRB also excludes confidential employees based upon the concern that they have sensitive information pertaining to the management policies and labor relations of the employer. In addition, individuals with family ties to the employer may also be excluded by virtue of their familial relationship.

Conducting the election campaign. Once the Board has determined the appropriate unit, the NLRB will set an election date for a secret ballot election. The date is typically 30 to 45 days after a decision on the appropriate unit. During that time, both the union and the employer are permitted to "campaign" to persuade eligible unit employees to vote for or against the union. The campaign which is conducted is not unlike a typical political campaign.

In engaging in the campaign process, the first step which an employer needs to take is to identify the critical issues upon which the election is likely to turn. The employer is permitted to campaign vigorously in favor of its position concerning the union organizational effort. Indeed, the National Labor Relations Act and the courts have supported the principal of "free speech" to the extent it permits an employer to offer its candid opinions concerning the desirability of having a union at the employer's place of business. Nonetheless, there are a number of campaign guidelines which an employer must carefully observe during an election campaign.

"Laboratory" conditions. In an effort to provide workers with the opportunity to make a reasoned decision concerning election of a bargaining representative, the Board has ruled that the period 24 hours before the actual election is conducted must be preserved as laboratory conditions. Laboratory conditions allow the workers to formulate their decisions on the union without undue pressure or extraordinary campaigning by the employer. The NLRB has said that the employer violates Section 8 (a)(1) of the National Labor Relations Act if it engages in ". . . conduct that creates an atmosphere which renders improbable a free choice. . ." for a representation proceeding.1
As an example, the Board has held that "captive" employer speeches to employees within the 24-hour period before the election violates the "laboratory" conditions rule. By requiring employees to attend, the Board reasoned that the employer has forced a captive audience at the last minute in an effort to temporarily sway employee sentiments before they walk into the polling booth. If the Board determines that the laboratory conditions have been spoiled by an employer, the Board can impose remedies ranging from setting the results of the election aside and holding a new election to imposing a bargaining relationship upon the employer if the employer has engaged in egregious unfair labor practices during the campaign process.

Unlawful employer election conduct. Often, immediately after an employer learns of a union organizational effort, the employer becomes very angry toward members of the workforce. Instead of carefully planning a rational and dispassionate campaign against the union, sometimes employers react hastily and take actions which violate the law. As an example, an employer may not take disciplinary action against particular employees simply because they are supportive of the union. Sometimes, employers will attempt to discharge the most visible union supporters in an effort to "chill" the desire for the union. Such actions by the employer constitute an 8 (a)(3) unfair labor practice. While an employer may not specifically discipline an employee as a result of the individual's union sentiments, an employer is permitted to discipline an employee for violation of company workrules and standards. The critical issue is the employer's motivation in formulating the decision to impose the discipline.

"Do's and Don'ts" in union campaigns. While there are a myriad of separate rules pertaining to the propriety of employer conduct during a union election campaign, the following list represents some of the major do's and don'ts for an employer involved in an election campaign:

Impermissible employer actions.

1. Defacing Board documents in such a way to suggest that the Board endorses a particular choice.2

2. Appeals to racial prejudice.

3. Misrepresentation concerning NLRB election processes.

4. Electioneering at the polls, interfering with an employees right to free choice.

5. Violence or threats of violence to prevent employees from voting.

6. Disciplining or threatening to discipline employees engaging in union activities during non-working time in non-working areas.

7. Threatening that the plant or department will be closed, moved or discontinued if the union is selected.

8. Promising employees rewards such as wage increases or benefit increases if the employees vote against the union.

9. Interrogating employees about their union sentiments and union activities.

10. Surveillance of employees in an effort to determine their union sentiments and activities.

11. Making house calls to employees to discuss their feelings about the union or calling individual employees into an office as captives to discuss union related issues.

12. Imposing discipline on employees who solicit or talk for the union during non-working time.

13. Limiting employees' rights to wear union buttons or insignias supportive of the union.

14. Changing conditions of employment after union organization activities become known, such as lowering wages or benefits, or granting increases as an inducement to vote against the union.

15. Telling employees that if the union wins, the company will refuse to bargain with the union or that the employees will be forced to go on strike if the union wins the election.

A quick and easy "rule of thumb" for employers in election campaigns is to avoid any conduct or statements which tend to (a) create the impression of spying or surveillance or (b) which threatens employees or (c) which promises benefits depending upon how employees vote in the union election.

Permissible employer actions. Despite the restrictions on management's right to engage in aggressive unilateral action, there are a number of permissible types of statements and actions which an employer can lawfully take in a union campaign, such as the following:

1. Remind the employees that the law guarantees their right to refrain from assisting or joining a union.

2. Informing employees of the disadvantages of belonging to unions such as the possibility of strikes, union fines, union assessments, serving on picket lines, union dues, and initiation fees, all of which come out of their pay.

3. Informing employees that no union can guarantee jobs or job security.

4. Reminding employees of the benefits they now enjoy and reminding them that they got these without a union and do not need a union to keep them or improve them.

5. Inform employees that no union can guarantee anything: The process of collective bargaining is one of "give and take" by both parties and the employer is not forced to agree to anything that it believes is not in the best interests of its business.

6. Inform employees that the union will step between employees and the employer on issues concerning wages, hours and working conditions, and the employer would prefer to continue to discuss these issues directly with employees.

7. Inform employees that even though they have signed a union card, this does not obligate them to vote for the union.

8. Inform employees of any untrue or misleading statements made by the union.

9. Inform employees about requirements in the union's constitution and bylaws which permit assessments and fines against union members.

10. Inform employees of the company's right to operate during a strike, including through the use of subcontractors or strike replacements, if necessary.

An employer must live with the legal restrictions on its statements and conduct during an election campaign. However, the company must, nonetheless, be aggressive in communicating its position about the union. The worst mistake an employer can make during an election campaign is to give the employees the impression that a union is "no big deal". Employees need to understand the company's position on the unionization question and they need to understand the negative aspects of union representation.



SOURCES
  1. General Shoe Corporation, 77 NLRB 124, 21 LRRM 1337 (1948).

  2. Allied Electric Products, Inc., 109 NLRB 1270, 34 LRRM 1538 (1954).
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