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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 thirty 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 fifty percent plus one of the all the employees who actually votes in the election.

The NLRB's election procedures issued in 2015 make constant awareness on the part of employers, HR and supervisors an absolute necessity because these procedures greatly accelerate the time for elections after a union files an election petition. These rules make it more difficult for an employer to mount an effective campaign before the election. In fact, commentators have referred to these procedures as creating "quickie" or "ambush" elections because unions may take many months to collect union authorization cards and develop support, file its petition, and then leave the employer with little or no time to campaign.

In December, 2019, new rules for conducting union representation elections were issued to replace the so-called "ambush" or "quickie" election rules and provide more time for employers to comply with pre-election requirements and to engage in efforts to maintain a union-free workplace. Some of the rules, scheduled to become effective May 31, 2020, were enjoined by a federal court order. The NLRB is appealing the ruling and has implemented the rules that were unaffected by the court's order.

An employer should focus on year-round anti-union avoidance programs, 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 understand these rules on an on-going basis so that they can conduct a campaign in a successful yet lawful manner. An otherwise victorious employer who violates these rules runs the risk that the NLRB will overturn the results of the election.