NLRB Election Procedures - Processing The Petition

Processing The Petition

If the union has made this threshold showing of support, then the Board will attempt to work out an agreement between the parties for the scheduling of an election. The employer can, however, insist on a hearing to challenge the appropriateness of the unit or to raise other issues.

The NLRB will only hold an election in a unit that it finds to be appropriate. This issue may arise in different forms: as an example, if a union seeks to represent workers at one facility out of several that an employer operates in a particular locale, the Board will have to determine whether the single facility unit is an appropriate one. The same issue might arise within a single site: the union may seek to represent only one group of employees, such as truck drivers, while the employer may claim that the only appropriate unit is a wider one, such as truck drivers, shipping and receiving employees, and warehouse employees.

While the NLRB has developed detailed rules governing what units are appropriate in health care institutions, it takes a more ad hoc approach in other cases, relying on a collection of factors that the Board labels its “community of interest” standard. The Board typically favors broader units over smaller ones, particularly if the union is seeking the broader unit. If a rival union is petitioning for a smaller unit contained within the larger one sought by the petitioning union, as for example in the case in which one union seeks to represent a “wall to wall” unit of all production and maintenance employees in a unit, while another seeks to represent only the skilled trades employees in the maintenance department, the Board may either direct a “Globe” election, in which the craft employees are allowed to vote for inclusion or exclusion as a group in the larger unit, then offered a choice of voting for or against union representation in whatever unit they have voted for.

The Board may also need to determine if a particular individual may be included in the unit. Some individuals, such as independent contractors, supervisors, and agricultural employees, are not “employees” for purposes of the NLRA and may not be included in any unit. Other employees, such as guards, as defined in the Act, may not be included in the same unit as the employees they watch over or represented by the same union that represents those rank and file employees; the Board takes a similar approach toward “confidential employees”, who have special access to confidential employer information relating to the employer’s labor relations policies. Other employees, such as professional employees, may only be included in the same unit as non-professional employees if they are allowed to vote as a separate group for or against inclusion.

The Board also excludes temporary employees and, unless both employers agree, the employees of subcontractors and temporary agencies who work alongside the employees of the primary employer.

The employer must ordinarily raise these issues before the election is scheduled; it cannot later refuse to bargain on the theory that the unit is inappropriate on grounds it did not make in a timely manner. That rule does not, on the other hand, bar the employer from later challenging an individual employee’s ballot on the ground that he or she is not an employee within the meaning of the Act, as for example in the case of a supervisor.

The Board will also allow other unions that claim an interest in representing any or all of the employees in the unit to intervene at this time. If a union already represents any of these employees, then it will be made a party to the case without the need to make any showing of interest; in other cases the Board requires that an outside union produce at least a thirty percent showing of interest in order to argue for a different bargaining unit, a ten percent showing of interest to participate in any hearing, and a single authorization card if all the union seeks is to be included as a choice on the ballot.

The Board will not ordinarily hold an election if the employees in the unit are currently covered by a collective bargaining agreement. The Board will relax its “contract bar” rules, however, in those cases in which the agreement is for more than three years, in which case an election petition by an outside union filed after the third anniversary will be timely. The Board also permits petitions filed during a “window period”, a one month period beginning ninety days before the expiration of the old agreement and ending sixty days before expiration. The Board has developed a complex set of rules governing premature extensions of collective bargaining agreements to enforce its contract bar rule.

The Board is also barred by statute from holding an election in a unit if it has held a valid election in that unit in the last twelve months. This rule does not, however, prevent the Board from requiring a rerun election if it determines that the election was invalid, either because of the conduct of the parties or other reasons. The Board can also conduct an election in a larger unit than the earlier unit and allow employees who voted in the previous election to vote in the second one.

If the parties do not stipulate to an election, then the Regional Director of the NLRB will direct an election to be held. There is no automatic right to appeal from the Regional Director’s decision, although an aggrieved party can request the NLRB to review the Regional Director’s decision. Such requests for review are rarely granted; even when they are, the Board typically conducts the election as scheduled, impounding the ballots until the Board rules on the request for review.

The Board requires an employer to provide the petitioning union with an “Excelsior list,” which should contain the names and addresses of all unit employees, within ten days of the direction of an election.