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Exclusive Bargaining Representatives National Labor Relations Act National Labor Relations Board Overly Broad Confidentiality Provisions Policies Against Union Insignia Practical Considerations for Employers Protected Activities Representation & Elections Process
Other Petitions & Elections Strikes and Picketing Unfair Labor Practices of Employers Unfair Labor Practices of Unions
Unfair Labor Practice Charges Union Organizing Tactics Unions Home HR Knowledge Central Home
Representation and Election Process
The most common method employees can use to select a bargaining representative is a secret ballot representation election conducted by the regional director when a petition has been filed requesting one. Alternatively, a union may achieve the status of exclusive bargaining representative through voluntary recognition by an employer through a “card check” process. Representation and election questions require consultation with experienced labor counsel. Consult with counsel immediately if you suspect union organizing activities.
The governing law for selecting a bargaining representative is found primarily in section 9 of theNLRA. Selection (or de-selection) can occur by three related processes:
In 2011, the NLRB proposed major changes to its election procedures in order to expedite the representation and election process. These changes were often referred to as the “ambush election” rule. The NLRB adopted the proposed changes and the final rule went into effect on April 30, 2012. However, in May 2012, a federal district court for the District of Columbia held that the NLRB lacked the authority to issue the rule because it was not adopted by a quorum of the NLRB Members.
On December 9, 2013, the NLRB agreed to voluntarily dismiss its appeal — effectively rendering the Board's “ambush election” rules dead. Since this dismissal, however, the Board has re-proposed these rules.
Until the Board re-issues revised election rules, elections will continue to proceed under the old rules. The upshot for employers is that although the “ambush election” rule is not currently effective, nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.
As an alternative to the NLRB’s election process, a union may achieve recognition through voluntary recognition by an employer or through a private election process agreed on by the employer and the union. This typically occurs if the union pressures the employer into such an agreement through a corporate campaign (as described below). These agreements typically involve a “card check” process in which employees sign authorization forms or “cards” stating that they wish to be represented by the union. If more than 50 percent of the employees sign an authorization card requesting a union, the employer can voluntarily choose to waive the secret ballot election process and just recognize the union.
For more information regarding election procedures, visit the NLRB’s website.
The governing law for selecting a bargaining representative is found primarily in section 9 of theNLRA. Selection (or de-selection) can occur by three related processes:
- Employees can file a petition or a union can do so on their behalf, known as an “RC” petition (Certification of Representative)
- An employer can file a petition, known as an “RM” petition (Employer Petition)
- Employees or someone acting on their behalf may file a petition that questions the continued representative status of a current bargaining representative, known as an “RD” petition (Decertification)
- The filing of a petition by a union typically follows an intense period of organizing activity by professional union organizers with the support of employees. Furthermore, an employer’s conduct during this period is subject to a complex set of rules, any violation of which can result in negative consequences, including:
- Unfair labor practice charges
- Nullification of subsequent results
- An order to bargain with a union without an election or despite the union’s loss of an election
In 2011, the NLRB proposed major changes to its election procedures in order to expedite the representation and election process. These changes were often referred to as the “ambush election” rule. The NLRB adopted the proposed changes and the final rule went into effect on April 30, 2012. However, in May 2012, a federal district court for the District of Columbia held that the NLRB lacked the authority to issue the rule because it was not adopted by a quorum of the NLRB Members.
On December 9, 2013, the NLRB agreed to voluntarily dismiss its appeal — effectively rendering the Board's “ambush election” rules dead. Since this dismissal, however, the Board has re-proposed these rules.
Until the Board re-issues revised election rules, elections will continue to proceed under the old rules. The upshot for employers is that although the “ambush election” rule is not currently effective, nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.
As an alternative to the NLRB’s election process, a union may achieve recognition through voluntary recognition by an employer or through a private election process agreed on by the employer and the union. This typically occurs if the union pressures the employer into such an agreement through a corporate campaign (as described below). These agreements typically involve a “card check” process in which employees sign authorization forms or “cards” stating that they wish to be represented by the union. If more than 50 percent of the employees sign an authorization card requesting a union, the employer can voluntarily choose to waive the secret ballot election process and just recognize the union.
For more information regarding election procedures, visit the NLRB’s website.