Union Organizing and NLRB Representation Election Procedures

1
Union Organizing and NLRB Representation Election
Procedures

• Certification is the immediate union goal
• Ultimately, the union hopes to enroll new members
• A contract will have to be negotiated
• Meaning of certification
• Exclusive bargaining agent status for union,
  I.e., it wins the right to exclusive
  representation
• Duty to bargain in good faith on mandatory
  subjects
• Fair representation obligation -- must represent
  all bargaining unit members in a fair and
  impartial manner

2
Three Certification Methods

• NLRB-conducted secret ballot election
• Voluntary recognition by employer
• NLRB will certify if evidence shows majority
  status, e.g., via an authorization card check
• ERs often refuse such, preferring to conduct a
  counter-organizing campaign
• Bargaining Order (Gissel Doctrine)
• If ER misconduct prevents a fair election
• Seen as extreme measure by NLRB and avoided if
  possible

3
The Representation Election Process

• Petition for election
• From union or EEs
• From ER if union claims majority and requests
  recognition
• Substantial show of interest needed (30)
• Co. notified, Excelsior list requested
• NLRB tries to establish consent election (only
  about 5 of elections)

• Questions for the NLRB
• Is this an appropriate bargaining unit (ABU)?
• NLRB jurisdiction?
• Substantial interest (30)?
• Legal barriers re past or present union activity
• Election bar (1 yr.)
• Contract bar (3 yrs.)
• Is the union a qualified representative?

4
ABU DeterminationImportance and Occupational
Rules

• Importance
• Who gets to vote?
• Who will be affected?
• Much strategizing and maneuvering goes on because
  the outcome may be strongly affected
• Special rules on occupations
• Professionals can only be included with
  nonprofessionals if professionals vote for it as
  a group
• Craft workers cant be denied severance simply
  because of past inclusion
• Guards cant be in same unit as other EEs
• Supervisors excluded since T-H -- not EEs for
  NLRA/LMRA purposes
• Confidential employees excluded (e.g., an HR
  clerk)

5
ABU DeterminationPurpose and Operational Criteria

• General purpose to assure employees the
  fullest freedom in exercising the rights
  guaranteed by this Act to establish a unit
  which maximizes community of interest among EEs
• Operational criteria
• Interests of both EEs and ERs are considered
• History of CB in this and similar units
• Transfers among EEs
• Geography and proximity of workplaces
• ER organizational structure, especially common
  supervision
• Similarity of work
• EE sentiment or extent organized, but this
  cant be the deciding factor

6
Certification Elections

• Voter eligibility
• Usually payroll at election, but other rules may
  be appropriate
• In construction, for example, eligibility often
  based on hours worked in the area prior to
  election
• NRLB election processing and related matters
• Usually prompt, 80 held within 45 days of
  petition but some take years!
• Participation is usually high (90 or better)
• Runoffs if no initial majority (with multi-union
  elections)
• Objections may be filed within 5 days (fairly
  common)
• Some notable trends and results
• Initially high union win rates (75) in long-term
  decline, but have stabilized near 50, increased
  slightly in recent years (51 in 1998)
• Election volume dropped dramatically in early
  1980s -- a more focused effort, more reliance on
  non-NLRB procedures (e.g., card checks)
• More union success in smaller, female, and white
  collar units, but only gaining rights for small
  fraction of unorganized workers (about .1-.2)

7
Decertification Elections

• EEs or their reps may file, not ERs (normally)
• This is supposed to be about EE choice
• ERs still have free speech" rights once underway
• ER should consider possible adverse consequences
  of supporting decertification drive A worse
  alternative, hard feelings?
• Reasons
• Poor service by the union (consistent with small
  unit predominance)
• Union cant win a contract with ER (1/4 to 1/3 of
  certifications)
• Better treatment by ER -- ER sees the light
  after union win
• Striker replacements often dont want a union
  (common scenario)
• Trends and significance
• 15-25 of all representation elections, stable
  now after rising steadily
• Unions lose about 2/3 to 3/4 of decerts.
• Mainly a small unit phenomenon, not a huge impact
  on union density

8
Campaign Conduct and NRLB Rules and Doctrines on
Campaign Conduct

• Laboratory conditions doctrine An ideal. No
  contamination of the election so that its results
  reflect true, untainted employee desires
• The reality Lots of potentially coercive,
  intimidating, etc. conduct occurs in the context
  of representation elections
• ULPs are up four-fold since the 1960s, at the
  same time that election activity, where most ULPs
  occur, has declined
• Employer ULPs average about 2 per election
• Roughly 1-in-10 nonunion workers who support
  unions are fired for union activities during
  organizing campaigns
• Parties focus more on persuasion than truth
  (surprise?)

9
Campaign ConductGeneral Issues

• When should the election be set aside, rerun,
  and/or cancelled in favor of a bargaining order?
• Set aside and rerun When misconduct has tainted
  an election and possibly had a substantial
  impact, but a fair election is still thought
  possible with appropriate corrections (e.g.,
  cease and desist)
• Bargaining (Gissel) order When misconduct has
  made a fair election impossible and theres
  evidence of majority support for union at some
  point
• What conduct is the NLRB concerned about?
• ULPs -- definitely
• Lies, half-truths, etc. -- not since 1982 Midland
  Insurance decision (note three reversals in NLRB
  policy in a span of about five years!)
• Considers the totality of conduct (that is,
  words and behaviors in context) -- casual remark
  in one instance may be a ULP in another. Legal
  behaviors can add up to violations in extreme
  instances

10
Campaign ConductSome Specific Areas of Concern

• Captive Audiences ERs have a clear advantage
  (83 vs. 36 attending meetings during campaigns)
• Not within 24 hours before election (on ER
  premises and time)
• Similarly,circumstances may call for union access
  to ER property (if no real alternatives)
• Polling by ER limited

• No solicitation rules ER property rights
  balanced with EE free speech rights. Bans must
• Be general
• Distinquish verbal and written forms
• Be based on disruptive effects on production
• Distinguish work time from work hours

11
Do Campaigns Matter?

• Early analysis by Getman et al. (1976) said no
  (81 of voters seemed unaffected by campaigns),
  but more careful analysis of their data and other
  studies show substantial effects for both legal
  and illegal campaign activities
• Most elections are fairly close. Changing a
  small number of votes can change the outcome
• One recent study suggests that the type of
  campaigns run by unions are even more influential
  than employer campaigns
• Delays are created by ERs for strategic purposes.
  ER controls the status quo, momentum of the
  drive dissipates, and perceptions that the union
  can change things (be instrumental) erode

12
Organizing, The Board, and the NLRA Assessment

• Interestingly, the NLRA and NLRB were once hailed
  as a model of successful government regulation
• Now, its problems are more often cited
• Ineffectiveness in countering strategic delays,
  and Congressional partisanship has slowed the
  NLRBs procedures further
• Increased partisanship in appointments and
  decisions, especially under Reagan (NLRBNow
  Largely Representing Business? Hangman view)
• Ineffective remedies Back-pay with interest
  helps, but can it really make whole for the
  damage done (e.g., momentum do reinstated EEs
  stay)?
• Lack of penalties and enforcement Past
  violators are more likely to violate the NLRA
  again -- what did they learn?
• Some union busting consultants say an NLRB
  notice serves as a hunting license to let workers
  know how far the ER will go to stop unions