Section 7 of the National Labor Relations Act establishes the right of employees “to bargain collectively through representatives of their own choosing . . . .” This single provision provides the legal basis for all union organizing activity. The ultimate goal of every organizing drive is employer recognition of the union as the exclusive bargaining representative of a defined portion of the employer’s work force. An employer may recognize a union voluntarily, which may occur deliberately or inadvertently, or by majority vote through a secret ballot. In this edition of the Labor Law Bulletin, we provide a brief overview of these processes.

An employer may unwittingly recognize the union as its employees’ de facto representative, in which case no election is required. This may occur if the employer (i) accepts the union’s presentation of authorization cards which represent the wishes of at least 51% of the employees to be represented, or (ii) otherwise deals with the union in a manner that tacitly suggests it views the union as its employees’ legitimate representative. In addition, through a so-called Gissel order, the National Labor Relations Board (“Board”) may compel the employer to bargain with the union if the employer responds to the organizing drive in a particularly unlawful manner which effectively precludes a fair election. Conduct rising to this level, known as "hallmark" violations, typically involves employer threats of retaliation through plant shutdowns, discharge, reassignment, demotion and the like.

The election process may be divided into four stages: (i) the solicitation period; (ii) the campaign period; (iii) the election; and (iv) the post-election period.

The solicitation period. The first step in the election process is the union's effort to solicit support. This may take many forms, including informal direct contact with employees, formal presentations to large groups of employees, picketing, leafletting and handbilling. During the solicitation period, the union generally may have access to (i) any portion of the employer’s premises to which the employer consents, (ii) public property, and (iii) private property to which the employer already allows access to other organizations for solicitating and the like.

Most employers are particularly concerned about picketing, which may be recognitional or informational. Recognitional picketing involves picketing for the purpose of gaining recognition from an employer as the exclusive bargaining agent of its employees. As soon as an uncertified union engages in recognitional picketing, the employer may demand an election. This may be a wise move, as the union may not have had sufficient time to convince employees that it presents an attractive alternative. The employer’s right to demand an election makes it especially important for the employer to identify recognitional picketing when it occurs. In the event of any picketing, the employer should obtain copies of all materials being distributed, photograph the pickets being used, and forward them to counsel immediately.

The campaign period. The filing of a representation petition with the Board, which may be done by either the union or the employer, triggers the election process. The employer may file at any time after one or more unions claim recognition as the exclusive bargaining representative of its employees. The union, on the other hand, may file only when it can demonstrate it has signed authorization cards from at least 30% of the employees it seeks to represent. Evidence of such support must accompany the petition or be presented within 48 hours of its filing. Absent unfair labor practice charges and bargaining unit disputes, the election is likely to be held within six to nine weeks after the petition is filed.

Once a representation petition is filed, the process enters the campaign period and the rules governing the conduct of the union and the employer tighten to ensure that nothing is done or said to prevent free choice in the election. Under the "laboratory conditions" doctrine, neither the employer nor the union may engage in any conduct that has a coercive influence on the election. In addition to threats, promises, and interrogations, conduct that may violate the doctrine and provide grounds to set aside the election includes electioneering at the polling place, speechmaking to captive audiences within 24 hours of the election, campaign misrepresentations, actions or representations by a party falsely suggesting that the Board supports one or the other's position, and interference with the election process by third-parties.

The "laboratory conditions" doctrine also generally prohibits the employer from changing the status quo in any significant way during the campaign period. This means, among other things, that an employer typically may not change employees' terms and conditions of employment, unless required by business necessity or where the employer can clearly show that the changes would have been made regardless of the organizing activity.

The employer may still communicate with employees during this process. It may listen to employee concerns and ask employees how they feel about unions in general, a particular union, or even certain substantive issues, provided it does so in a non-coercive, non-intimidating manner. It may also express opinions. For example, permissible statements include:

• That [the employer] has competitive pay and excellent benefits that a union would be hard pressed to beat.

• That the union can make all kinds of promises, but only [the employer] can deliver on them.

• That unions are a business and the cost of a union business agent is $50,000 a year and up (which union members pay for!).

• That the only sure thing about bringing the union in is that employees will have to pay union dues, without any assurance that they will get something for their money.

• That union representation gives employees a bargaining representative but not any additional right or entitlement to any particular work-related benefit.

The secret ballot. The Board typically does not become involved in the organizing/election process unless contacted by one of the parties, in which case the Board acts as a referee with the authority to monitor the process, resolve disputes brought to its attention, and oversee the election. The Board's involvement in processing the representation petition typically consists of determining (i) whether the Board has jurisdiction, (ii) whether the 30% interest threshold has been satisfied, and (iii) the scope and composition of the appropriate bargaining unit. Thereafter, the Board oversees the secret ballot process and addresses post-election challenges.

If the Board has jurisdiction, it typically will attempt to get the union and employer to agree to a "consent" election, which may take place within 60 days of the petition’s filing. The parties often do not agree to a consent election and instead proceed with a representation hearing, the purpose of which is to determine the appropriate bargaining unit. At bottom, the unit analysis involves determining whether the interests of certain employees are sufficiently alike to justify joint representation. This is critical because the bargaining unit defines the pool of eligible voters.

After making bargaining unit determinations, the Board’s Regional Director issues a Direction of Election, which identifies the date, time and location of the election. The election typically is held within 30 days of the Direction. The Board also provides the employer with copies of the Board's official Notice of Election. The employer must post the Notice in conspicuous places at least three full work days before the election. Failure to do so may be grounds for later challenging the election. The employer or the union may object to some aspect of the Direction of Election. Objections must be raised within 10 days of the date the Direction is issued.

The employer must provide the Board with a list of eligible employees and their home addresses within seven days of the Direction of Election or the approval of the consent agreement. This list, known as the Excelsior List, is then turned over to the union for the express purpose of contacting employees prior to balloting. It also is used by the Board to validate votes later cast in the election.

The election itself typically occurs on the employer's premises and, with the employer's permission, during work hours. If the employer objects, however, the election may be held at another site and on the employees' own time. The election is conducted by a representative of the Board’s regional office. It typically involves the construction of a makeshift ballot box which the voter enters to secretly cast a vote. Under some circumstances, votes may be cast by mail. The ballot itself is a simple form provided by the Board which contains spaces for voting union or no union. Subject to certain limitations, the union and the employer may have observers present at the polling location. Each party is entitled to the same number of observers and the number is determined by the Board. The employer's observers may not be supervisory employees. Employees eligible to vote may be observers. Typically, a pre-election conference is held where many of these logistical issues are addressed.

At the time of the election, there may be unresolved issues regarding the eligibility of one or more persons to vote. Generally, only those employees who are actually employed on the date of the election may vote. In addition, they must have been employed in the appropriate bargaining unit at the end of the payroll period immediately preceding the date the Regional Director identifies as the eligibility date. Recently laid off employees with a reasonable expectation of recall, employees on leave of absence, including sick leave and maternity leave, and regular part-time employees performing bargaining unit work are generally eligible to vote as well. When a voter’s eligibility is challenged, the typical practice is to permit the disputed ballot to be cast, impound it, and consider it only if necessary to determine the election’s outcome.

After the polls are closed, the regional office tabulates the ballots in the presence of observers and notifies each party of the results. To prevail, the union must receive a majority of the votes that are cast.

Post-election procedure. After the election, either party may challenge specific ballots or the entire process. Challenges must be filed with, and received by, the Board's Regional Director within seven days of the date of the election. This rule is strictly enforced. The Board has rejected objections bearing timely postmarks but that were not received until after the seven-day period. Once properly filed, the challenging party is provided an additional seven days to file evidence in support of the challenge.

Conduct may be challenged through post-election objection proceedings only if the conduct arose within a certain period of time. The conduct generally must have occurred between the date the representation petition was filed and the date of the election. Using the petition filing date as the cut-off for post-election objections is intended to bar challenges considered too remote in time to have influenced the election. However, the cut-off date is not absolute. Pre-petition conduct may be considered to the extent it sheds light on the significance or effect of post-petition conduct. Further, pre-petition conduct may itself be the basis for electoral remedial action where it is so severe that, despite its temporal remoteness, it may have affected the election. As such, the pre-petition cut-off date is a guideline, not an inflexible rule.

If an objection is sustained, a new election typically is ordered, and the process begins anew. The employer may also be required to post a Lufkin notice, which is a document explaining why the initial election was set aside. Under rare circumstances, the Board may find the employee’s actions so objectionable that it sets aside the election results and enters a Gissel order requiring the employer to recognize and bargain with the union even though the employer won the election.