Elections the Union Way

Local 802 Legal Corner

Volume CIV, No. 10October, 2004

Harvey S. Mars, Esq.
Local 802 Counsel
Law Office of Harvey S. Mars LLC

With all the fanfare and controversy surrounding the Democratic and Republican conventions, and the upcoming presidential election, I thought that it would be a good idea to devote this month’s article to union representational elections.

Just how is it that a union is chosen to represent a particular group of employees?

Sometimes, an employer (an enlightened employer, that is) will voluntarily agree to recognize a union as the chosen bargaining representative of its employees upon presentation of proof (usually signed union authorization cards) that a majority of its employees desire the union to represent them. Unfortunately, this is the exception rather than the norm.

Most frequently the process of choosing a bargaining representative requires the conduct of a formal representation election either by the National Labor Relations Board or its state counterpart, if the employer does not have revenue above a specific level.

For the sake of simplicity, I will focus here on NLRB procedures.

The election process is commenced by the filing of a representational election petition. This petition is known as an RC petition if the party filing it is the labor organization seeking representation status.

Accompanying the petition must be valid union authorization cards from at least 30 percent of the employees seeking representation. Since the election requires a majority vote, it’s always best to file with more than 50 percent. (I always try for 80 percent or more.)

Once the petition is filed, the labor board schedules a conference to determine whether the union and the employer can agree on conducting an election. This often entails considerable effort, since most employers will use whatever legal maneuvering they can to prevent or stall the election.

Most common is the employer’s contention that the group of employees seeking the election do not share a “community of interest.”

The community of interest standard requires that there be some common connection among employees. For instance, employees share a community of interest if they have the same hours of employment, work in the same location or share common work rules and supervision.

If the parties cannot agree on the proper bargaining unit, then a formal hearing is required. The outcome of the hearing before the board will determine if the unit of employees seeking representation is an appropriate one.

Labor board hearings are often time-consuming and intense.

Hearings are conducted by hearing officers who are often fledgling attorneys. Additionally, the hearing officers do not write the decisions, so there is often a lapse of time after the close of the hearing and submission of post-hearing briefs and the ultimate decision.

Of course, the board’s decision can be appealed, further delaying the conduct of an election

Employers often use the prospect of a contested hearing as leverage to compel a union to limit the size of its unit (or sometimes even to increase the unit so that bargaining becomes a practical impossibility).

Since time is of the essence, to prevent retaliation and loss of interest by employees, pressure is often great to compromise, even to the detriment of the proposed bargaining unit.

Finally, assuming a timely election is obtained and the union is successful in attaining certification, certification can still be challenged after the election, further delaying the time it takes to get to the bargaining table.

Once at the table, of course, the dynamics often remain the same between employer and the union since their only obligation is to bargain in good faith — not to come to an agreement.

Contrast these draconian procedures to those used in our governmental elections. While the process can often be manipulated — witness our last presidential election — there are no procedures which can stop or forestall an election or eliminate the electorate. For this reason NLRB elections are decidedly undemocratic.

Labor reform is desperately required if the labor movement is to be revitalized.

This is, in fact, the point where reformation of Labor Board procedures and the upcoming governmental election intersect. In order for the NLRB procedures to change, new legislative initiatives must occur.