How to Prepare for Union Representation Elections
Author: Jed L. Marcus, Bressler, Amery & Ross, P.C.
The National Labor Relations Act (NLRA) protects the rights of an employee to organize and form a union in order to address issues regarding wages, hours, and working conditions. An employee, even in the absence of a union, also has the right to engage in concerted activity acting on behalf of co-workers or interacting with others for the legitimate furtherance of their common interests. An employee who works together with others to try and organize a union (or engage in other concerted activity) is protected from an employer's unlawful retaliation. This means that an employer may not discipline or terminate an employee because he or she wants a union.
A union organizer seeking to organize and represent employees in a workplace will initiate a campaign to gain enough support within a collective bargaining unit to be certified as the employees' representative. If the union obtains authorization cards from at least 30 percent of eligible employees in the workplace, the National Labor Relations Board (NLRB) will order a secret ballot election. Eligible employees are those employees who generally share the same types of common concerns and conditions of employment, and perform the same types of jobs. In order for the union to win the election, it must get the votes of 50 percent plus one of the all the employees who actually vote in the election.
The NLRB's election procedures make constant awareness on the part of employers, HR and supervisors an absolute necessity. These procedures are designed to expedite and accelerate the holding of elections after a union files an election petition, causing some commentators to refer to them as "quickie" or "ambush" elections. Unions may take many months to collect union authorization cards and develop support, then file a petition and leave little time for the employer to mount an effective counter-campaign before the election.
An employer should focus on year-round union avoidance efforts, rather than rely on anti-union campaigns that begin after the filing of a representation petition. This is not easy because the NLRB has created many rules about what each side can and cannot say or do during a union campaign. As a result, it is vitally important that the employer, HR and supervisors review these rules on an on-going basis and understand them so that they can conduct a campaign in a successful and lawful manner. An otherwise victorious employer who violates these rules runs the risk that the NLRB will overturn the results of the election.
