UNION ORGANIZING CAMPAIGN STRATEGIES
June 26-29, 2002
Karl A. Fritton
ReedSmith LLP
Philadelphia, PA
John J. Peirano
Carpenter, Bennett & Morrissey
Newark, NJ
I.
II.
Introduction
A.
General Overview
B.
Hot Topics in Organizing
Pre-Petition
A.
B.
Why Employees Organize
1.
Employees organize for many reasons. Some do so for philosophical reasons. Others
because of issues which arise in the workplace. The issue may be as mundane as an
air conditioner in the faculty lounge or as significant as wage levels or fear of losing
jobs. Essentially, however, when employees believe that the employer is not
adequately addressing their concerns and grievances, they will seek outside
assistance.
2.
According to Jamie Horowitz of the American Federation of Teachers there has been
an increase in organizing on college campuses over the past five years. He claims, a
lot of that has to do with full-time faculty seeing threats from the increasing use of
part-time faculty, and part-time faculty saying “I can’t live on this wage, or I want
more job security.” A Labor Issues Get Attention on Campus, Levinson, Arlene, AP
Online, March 11, 2002. At the University of Michigan child care was an issue; at
the University of Illinois work load for graduate students was the issue. Id.
Some Common Issues Which Arise During Organizing Campaigns
1.
Authorization Cards
a.
In the first stage of a union organizing campaign, organizers generally attempt
to obtain signatures of employees on authorization cards. These cards provide
the union with the authority to represent the employee. A valid authorization
card must meet several requirements. The card must designate the union
seeking to represent the employees. The card may be a membership card,
NLRB v. Federbush Co., 121 F.2d 954 (2d Cir. 1941); an application for
membership, NLRB v. Valley Broadcasting Co., 189 F.2d 582 (6th Cir.
1951); a dues checkoff authorization, Lebanon Steel Foundry v. NLRB, 130
F.2d 404 (D.C. Cir.), cert. denied, 317 U.S. 659 (1942); or simply a card that
designates the union as the signer’s bargaining representative NLRB v. Stow
Mfg. Co., 217 F.2d 900 (2d Cir. 1954), cert. denied, 348 U.S. 964 (1955).
The union identification need not identify a specific local or international
union. NLRB v. Southbridge Sheet Metal Works, 380 F.2d 851 (1st Cir.
1967). The card must be dated; cards over a year old may deemed stale.
Setrafilm, Atlas Microfilming Dev., 267 NLRB 682 (1983), enf’d, 753 F.2d
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313 (3d Cir. 1985). The failure to date a card, however, can be cured through
a certification of the signer attesting to the date the card was executed. Metal
Sales Mfg., 310 NLRB 597 (1993).
2.
Solicitation and distribution issues
a.
Section 7 of the National Labor Relations Act (“Act”) provides in pertinent
part:
(i)
Employees shall have the right to form, join, or assist labor
organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection…
b.
The rights provided by Section 7 include the right to solicit union membership
and to discuss the terms and conditions of employment with other employees.
In Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803, n. 10 (1945), the
U.S. Supreme Court acknowledged that “working time is for work.” An
employer cannot, however, promulgate and enforce a rule prohibiting
solicitation by an employee outside working hours on the employer’s
property. The National Labor Relations Board (“Board”) has consistently
held that employees may exercise Section 7 rights during non-work time in
non-work areas. The Board will presume that restrictions on employee
solicitation during non-working time or distribution of literature
during non1
working time in non-working areas violates Section 8(a)(1) of the Act. Beth
Israel Hosp. v. NLRB, 437 U.S. 483, 491-92 (1978).
c.
With respect to no-solicitation rules, the Supreme Court has held that “[n]o
restriction may be placed on the employees’ right to discuss self-organization
among themselves unless the employer can demonstrate that a restriction is
necessary to maintain production or discipline.” NLRB v. Babcock & Wilcox
Co., 351 U.S. 105 (1956). A no-solicitation rule can violate the Act in two
ways. First, a no-solicitation rule that prohibits (or even implies that it
prohibits) solicitation by employees on non-work time, or in non-work areas
is per se invalid. Lafayette Park, 326 NLRB 824, 825 (1998), enf’d. 203 F.3d
52 (D.C. Cir. 1999). Second, an otherwise valid no-solicitation rule can
violate the Act if the rule is applied in a disparate manner against union
solicitation. NLRB v. St. Francis Healthcare Centre, 212 F.3d 945, 961 (6th
Cir. 2000), enf’g in relevant part, 325 NLRB 905 (1998). See also Reno
Hilton Resorts, 320 NLRB 197, 208 (1995) (prohibition of only pro-union
solicitation under otherwise valid no-solicitation policy found to violate the
Act).
d.
Failure to understand what is a non-work area has led otherwise valid nosolicitation rules to be considered unlawful. For example, in one instance,
while the employer’s no-solicitation policy was facially valid, the employer
enforced the rule by disciplining an employee for distributing union literature
in a hallway with a timeclock, bulletin board and vending machine. Because
the Board concluded that this was not a work area, the employer’s application
of its rule violated the Act. Valmont Industries, Inc. v. NLRB, 244 F.3d 454
(5th Cir. 2001) enf’g in part 328 NLRB No. 41 (April 30, 1999).
1
Section 8(a)(1) provides that it is an unfair labor practice for an employer “[t]o interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in section [7] of this title.”
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e.
Special rules apply with respect to hospitals. The Board has recognized that
because a hospital’s primary function is patient care, hospitals may be
justified in imposing somewhat more stringent prohibitions on solicitation
than are generally permitted. For example, a hospital may be warranted in
prohibiting solicitation even on non-working time in strictly patient care
areas, such as the patients’ rooms, operating rooms, and places where patients
receive treatment, such as x-ray and therapy areas. Solicitation at any time in
those areas might be unsettling to the patients, particularly those who are
seriously ill and thus need quiet and peace of mind.
(i)
St. John’s Hosp. & School of Nursing, Inc., 222 NLRB 1150 (1976).
In Beth Israel Hosp., supra, the hospital enforced a no-solicitation rule
so as to prohibit distribution of union literature in its cafeteria. The
employer, however, did not justify the rule as necessary to avoid
disruption of treatment. The cafeteria was a non-working area, and the
application of the rule to the cafeteria violated the Act. A year later,
the Supreme Court found another hospital’s application of its nosolicitation rule in the cafeteria, gift shop and lobbies on non-patient
floors violated the Act. NLRB v. Baptist Hosp., Inc., 442 U.S. 773
(1979).
(ii)
In the higher education setting, the hospital cases provide some
guidance. Institutions of higher education clearly should not be able to
argue that the entire campus, to which students have access, is a
working area. However, it would appear that certainly the classrooms
are working areas. Lobbies of buildings, any open areas between
buildings, or faculty lounges are likely not working areas.
(iii)
Although no-solicitation rules are a major source of problems in this
area, other policies should be considered. One such policy is the
harassment policy. In Adtranz, ABB Daimler-Benz Transportation,
N.A., Inc., 331 NLRB No. 40 (May 31, 2000), the Board found that
the employer’s policy against “abusive or threatening language to
anyone on Company premises” could be interpreted as barring lawful
union organizing. The D.C. Circuit rejected the Board’s finding.
Adtranz ABB Daimler-Bens. Transp., N.A. v. NLRB, 253 F.3d 19, 2526 (D.C. Cir. 2001). The Court noted that “[a]busive language can
constitute verbal harassment triggering liability under state or federal
law,” and “failure to maintain a workplace free of such language can
place an employer at significant financial risk.” Id. The court
concluded that “the Board’s position that the imposition of a broad
prophylactic rule against abusive and threatening language is unlawful
on its face is simply preposterous.” Id. at 28.
(iv)
Shortly after the D.C. Circuit’s opinion, the Board found that a rule
prohibiting “disrespectful” conduct towards others violated the Act.
Community Hospitals of Central California, 335 NLRB No. 87
(September 26, 2001). The Board concluded that this rule “is
significantly more likely to chill employees in the exercise of their
Section 7 rights than the rule at issue in Adtranz.” Slip Op. at 5.
(v)
Another policy which should be reviewed is any confidentiality policy.
In IRIS U.S.A., Inc., 336 NLRB No. 98 (November 9, 2001), the
employer’s handbook contained the following relevant provisions
concerning confidential information:
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(vi)
f.
(a)
All of the information, whether about IRIS, its customers,
suppliers or employees is strictly confidential . . . Any doubts
about confidentiality should be resolved in favor of
confidentiality . . . Each employer’s personnel records are
considered confidential and will normally be available only to
the named employee and senior management.
(b)
The handbook further provided that unauthorized disclosure of
any confidential information would result in discharge. The
Board concluded that this rule violated the Act. In exercising
Section 7 rights, employees frequently discuss wages, hours
and working conditions. This rule implied that such discussion
could lead to discipline. Given the rule’s extremely broad
reach, the Board concluded that it inhibited the employees’
Section 7 rights and thus violated the Act. See also Flamingo
Hilton-Laughlin, 330 NLRB No. 34 (November 30, 1999).
The Board applies a different presumption to non-employees.
Generally, an employer may bar non-employees from its property.
Sometimes employers have argued that employees working at one
facility were non-employees as to a separate facility. The Board
rejected this argument and concluded that offsite employees possess
Section 7 rights that entitle them to access to the outside, non-working
areas of the employer’s other facilities. First Healthcare Corp., 336
NLRB No. 62 (September 30, 2001). Similarly, the Board has held
that employees of a subcontractor who work regularly and exclusively
on the owner’s property have the right to solicit on the owner’s nonwork areas. New York, New York Hotel, 334 NLRB No. 87 (July 25,
2001).
Non-employees are held to a different standard than employees. The U.S.
Supreme Court has held that:
(i)
an employer may validly post his property against non-employee
distribution of union literature if reasonable efforts by the union
through other available channels of communication will enable it to
reach the employees with its message and if the employer’s notice
does not discriminate against the union by allowing other distribution.
NLRB v. Babcock & Wilcox, 351 U.S. at 112. (emphasis added).
g.
In Lechmere Inc. v. NLRB, 502 U.S. 527, 533 (1992), the Court reiterated
that “[a]s a rule, . . . an employer cannot be compelled to allow distribution of
union literature by non-employee organizers on his property.” Section 7
“does not protect non-employee union organizers except in the rare case
where the inaccessibility of employees makes ineffective the reasonable
attempts by non-employees to communicate with them through the usual
channels.” Id. at 537.
h.
There is, however, one significant caveat. “[A]n employer that denies a union
access to its property while regularly allowing other individuals, groups, and
organizations to use its premises for various activities unlawfully
discriminates against union solicitation.” Albertson’s, Inc., 332 NLRB No.
104, slip op. at 4 (October 31, 2000).
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(i)
In Albertson’s, the Respondent allowed various organizations to have
regular and frequent access to the immediate exterior of its stores to
solicit both employees and customers in fund-raising endeavors. As
the facts show, Salvation Army bellringers solicited donations for
about a month annually. In addition, youth and student groups, and
veterans groups engaged in the same activity for periods ranging from
a few days to a fortnight or an entire month. We find the solicitation
permitted by the Respondent in the immediate exterior of its store
exceeds the small number of isolated beneficent acts that the Board
regards as a narrow exception to an otherwise valid, nondiscriminatory
no-solicitation policy. Id.(citations omitted). See also Lucile Salter
Packard Children’s Hosp. v. NLRB, 97 F.3d 583, 589-590 (D.C. Cir.
1998) (upholding Board’s finding of discrimination where both
commercial and charitable solicitations were permitted); Price
Chopper, 325 NLRB 186, 188 (1997) enf’d. sub nom. Four B Corp. v.
NLRB, 163 F.3d 1177, 1184, fn. 6 (10th Cir. 1998) (finding
discrimination where Salvation Army and Shriners were allowed to
solicit contributions several times per week, a community group sold
tickets once for a pancake supper, and Cub Scouts sold mugs).
(ii)
Some Board precedent, however, has been rejected by several federal
courts. In fact, the Sixth Circuit reversed one of the decisions relied
upon by the Board in Albertson’s,
and the Fourth Circuit denied
2
enforcement of another In Sandusky Mall Co., the Board stated:
(a)
We are mindful that the United States Court of Appeals for the
Sixth Circuit, . . . has rejected the Board’s interpretation of
‘discrimination’ . . . holding that, post-Lechmere,
‘discrimination’ as used in Babcock & Wilcox, ‘means
favoring one union over another, or allowing employer-related
information while barring similar union-related information.’
We respectfully disagree with the Sixth Circuit’s conclusion
and adhere to our view that an employer that denies a union
access while regularly allowing nonunion organizations to
solicit and distribute on its property unlawfully discriminates...
329 NLRB No. 62 (1999), slip op. at 3. (citations omitted).
(iii)
The Sixth Circuit reversed. 242 F.3d 682 (6th Cir. 2001). In
Sandusky Mall Co., the property owner had permitted a variety of
charitable, civic, and even commercial organizations to enter the
property for solicitations, displays, and presentations. The owner did
not, however, permit any solicitation similar to the type attempted by
the union activists. The Court concluded that in order to find that the
no-solicitation rule was discriminatorily applied, the Board must find
that “comparable” conduct was permitted. The solicitations
previously permitted were not comparable, and therefore, the owner
did not violate the Act.
(iv)
In a second opinion relied upon by the Board in Albertson’s, Be-Lo
Stores, 318 NLRB 1 (1995), enf. denied in relevant part 126 F.3d 268
(4th Cir. 1997), the court rejected the Board’s finding that the
2
Although the Board relied upon these decisions in Albertson’s, a union organizing dispute, the underlying
facts of Sandusky Mall Co. and Be-Lo Stores, do not concern union organizing.
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employer discriminatorily enforced its no-solicitation rule. The record
reflected that over the course of one year at thirty different locations:
(a)
that Muslims selling oils and incense were present on a “pretty
constant” basis in front of Store 232 and were present on a
“regular” basis in front of Store 236. Further, an “occasional”
Jehovah’s Witness distributed the Watchtower magazine at
Store 148 and on one occasion a local Lion Club solicited at
that store. Also, Lyndon LaRouche followers on a “couple of
occasions” handed out literature at Stores 28 and 120. In
addition, a person sold a cookbook inside Store 102 and
“occasionally” individuals sold Girl Scout cookies and greeting
cards inside Store 232.
Id. at 284-85.
(v)
The Seventh Circuit, came to a similar conclusion in 6 West Ltd.
Corp. v. NLRB, 237 F.3d 767 (7th Cir. 2001). The court rejected the
Board’s finding that the employer had violated the Act by prohibiting
union solicitation:
(a)
We are of the opinion that solicitations for girl scout cookies,
Christmas ornaments, hand-painted bottles, and the other
examples listed by the ALJ certainly cannot, under any
circumstances, be compared to union solicitation as support for
the ALJ’s determination that the restaurant engaged in a
discriminatory application of its non-solicitation policy. . . . A
restaurant in the United States of America should be free to
prohibit solicitations on the premises that interfere with or
bother employees or customers, and allow those solicitations
which neither interfere with nor bother employees or
customers.
Id. at 780. (footnote omitted).
3.
(vi)
The Board has found that minor and periodic solicitations, even for
charity, will require the employer to open its property. The Courts of
Appeal, however, permit greater numbers of solicitations, and have
questioned whether certain solicitations, such as charitable ones, could
be permitted. For many colleges and universities, which permit a
broad range of solicitation, such distinctions may not be important.
Those institutions that wish to enforce their no-solicitation rule,
however, must review the solicitations previously permitted, and
examine the case law for the federal circuit in which they are located.
(vii)
Finally, the Board has concluded that in order to exclude nonemployee organizers, the employer must have a legally enforceable
property right. Wild Oats Markets, Inc., 336 NLRB No. 14
(September 28, 2001). An employer may exclude non-employee
organizers only if the state law provides a right to exclude individuals
from the employer’s property. Glendale Associates, Ltd., 335 NLRB
No. 8 (August 23, 2001).
Use of e-mail, meeting rooms and other facilities and equipment.
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a.
Employees, and under certain circumstances, non-employees, are permitted to
discuss union organizing on the employer’s premises. An issue which often
arises is what employer resources can they utilize while exercising Section 7
rights? For example, once an employer allows employees to place literature
in a break area, it cannot selectively censor union-related literature. MidMountain Foods, Inc. v. NLRB, 269 F.3d 1075 (D.C. Cir. 2001).
b.
The U.S. Supreme Court found that an “employer is not obliged voluntarily
and without any request to offer the use of his facilities and the time of his
employees for pro-union solicitation.” NLRB v. United Steelworkers, 357
U.S. 357, 363 (1958). The union is not entitled to use a particular channel of
communication simply because the employer uses it. Id. at 364. It is
important to recognize the distinction between employees and non-employees.
Employees are permitted to solicit during non-working time in non-work
areas; non-employees may, under appropriate circumstances, be excluded. In
fact, permitting a union to use the employer’s facilities when it does not
represent the employees could lead to a violation of the Act. See NLRB v.
Clark, 176 F.2d 341 (3d Cir. 1949), enf’g 78 NLRB 34 (1948) (employer
violated Act when it allowed union that did not represent its employees use of
its supplies, telephone and facilities). In situations where a rival union files a
petition for election, the employer must permit the rival union the same access
it provides to the incumbent union. Raley’s, Inc. v. NLRB, 703 F.2d 410 (9th
Cir. 1983) (employer violated Act by permitting incumbent union, but not
rival union to utilize employer bulletin boards).
c.
Bulletin boards often are an issue. While an employer may restrict the use of
bulletin boards to official company notices, if that restriction is disparately
enforced, the Board will find a violation of the Act. Con-Way Central
Express, 333 NLRB No. 128 (April 20, 2001).
d.
A more recent issue is the use of electronic mail (“e-mail”). In one decision,
the Board concluded that an employer violated the Act by discriminatorily
enforcing its e-mail policy. E.I. du Pont de Neumours & Co., 322 NLRB 893
(1993). In that matter, the employer permitted employees to use the e-mail to
distribute a wide variety of material on many subjects, but prohibited
employees from using e-mail to distribute any union literature. The Board
concluded that “[b]y discriminatorily prohibiting bargaining unit employees
from using the electronic mail system for distributing union literature and
notices, the Company has violated Section 8(a)(1).” Id. at 897.
e.
The Board has not yet addressed whether an e-mail policy, regardless of
application, can violate the Act. The Board’s General Counsel, however, has
issued several advisory memorandum that provide some guidance. In Pratt &
Whitney, 26 AMR 95 (¶ 36022 1998), the General Counsel addressed
whether an employer’s e-mail policy was facially unlawful because it
completely prohibited any use of the employer’s computer resources for nonwork related messages. The General Counsel found that the employees spent
most of their working time on computers. Therefore the computer system
constituted a “work area” within the meaning of Republic Aviation. Once the
General Counsel so found, he concluded that “the Employer may not prohibit
messages that constitute solicitation.” Therefore, the employer’s rule was
overbroad. See also PPG Industries, 38 AMR 284 (¶ 38051 2000)
(prohibition against use of e-mail “in any manner contrary to company
policy” was unlawfully broad policy that could be interpreted as barring
lawful union activity); TU Electric, 37 AMR 156 (¶ 37028 1999) (e-mail
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policy overly broad because it prohibited employees from soliciting “on
company property.”)
4.
Picketing and handbilling
a.
In some instances, unions
will utilize picketing or handbilling in an attempt to
3
achieve recognition. An employer cannot treat union picketers and
handbillers differently than others. Employees are permitted to handbill and
picket in non-work areas during non-work time. Santa Fe Hotel, Inc, 331
NLRB No. 88 (July 12, 2000).
b.
As to non-employee union organizers, the employer must first establish it has
a property right under state law to exclude outsiders from its property. UCSF
Stanford HealthCare, 335 NRLB No. 42 (August 27, 2001); Glendale
Associates, Ltd., 335 NLRB No. 8 (August 23, 2001). Once the employer
establishes a legitimate property right, the employer cannot exclude them
discriminatorily. Albertson’s, supra. In the higher education context, it will
be difficult for institutions to exclude non-employee union organizers. For
institutions with areas open to the public, it is not uncommon to see any
number of organizations soliciting membership or distributing literature. In
such an open atmosphere, the school would violate the Act if it excluded
union organizers.
c.
Section 8(b)(7)(C) of the Act prohibits picketing for the purpose of
recognition when no petition for an election had been filed “within a
reasonable period of time not to exceed thirty days from the commencement
of such picketing.” Section 8(b)(7)(C) continues that once the petition is
filed, the Board shall proceed with the petition in a expedited fashion, without
regard for the provisions set forth in Section 9(c)(1). Even if there are
legitimate reasons for the picketing, if recognition is one of the union’s
objectives, Section 8(b)(7)(C) applies. Local 282, IBT, 332 NLRB No. 82
(October 30, 2000). Section 8(b)(7)(C), however, does not prohibit
informational picketing- “picketing that truthfully advises the public,
including consumers, that an employer does not employ members of, or have
a contract with a union.” New Otani Hotel & Garden, 331 NLRB No. 159
(August 24, 2000).
Employer’s Preliminary Campaign
C.
1.
D.
Section 8(c) permits the expression of any view, argument or opinion concerning
union organization provided such expression contains no threat of reprisal or force or
promise of benefit. Once an employer becomes aware of an organizing campaign,
there are two philosophies concerning the exercise of its Section 8(c) right to freedom
of expression. One holds that the employer should discuss the legal consequences of
signing authorization cards, for example explaining that the employee’s execution of
the card will authorize the union to represent him or her without an election. The
other philosophy holds that the employer should do nothing, reasoning that if the
employer reacts to the union’s campaign, the union has already proven it can make
the employer react.
Demand for Recognition
3
This section addresses only picketing and handbilling for the purpose of attempting to achieve recognition.
Different rules apply to different types of picketing and handbilling, and this section may not be applicable to other types
of union activities.
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III.
1.
At some point, a union may approach the employer and demand recognition. An
employer is not legally required to recognize and bargain with the union based solely
upon a demand for recognition. Rather, the employer may require the union to
petition the Board for an election that will determine the union’s status. Linden
Lumber Div. v. NLRB, 419 U.S. 301 (1974). The employer, however, may be
required to recognize the union if it independently verified the majority support of the
union by such procedures as employee polls, Struksnes Constr. Co., 165 NLRB 1062
(1967), surveys, Sullivan Elec. Co., 199 NLRB 809 (1972), enf’d 479 F.2d 1270 (6th
Cir. 1973), or third-party examination of authorization cards, Amay’s Bakery &
Noodle Co., 227 NLRB 214 (1976). Supervisors must be aware of their obligations
when they are presented with authorization cards, as their actions can bind the
employer to recognize the union without an election.
2.
If the employer voluntarily recognizes the union, the employer is bound by its
agreement. Verizon Information Systems, 335 NLRB No. 44 (2001). Recently,
unions have requested that employers participate in non-Board elections. In these
elections, the parties can set different ground rules for the election, such as how the
pre-election campaign is conducted. An employer is not required to submit to a nonBoard election, but if it does, the Board will generally require it to proceed with that
election and will bind the parties to its results. Id.; Lexington House, 328 NLRB No.
124 (1999).
3.
There is one other exception to the general rule that the employer can demand an
election. When the employer denies recognition of the union and commits a serious,
or a series of unfair labor practices that make it unlikely that the Board can conduct a
fair election, the Board may direct the employer to bargain with the union. NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969).
The Petition
A.
Public v. Private Distinction
1.
Collective Bargaining Rights-Generally
a.
In the United States, employees at private companies and universities are
governed by one set of federal laws (the NLRA), which are administered by
the National Labor Relations Board (NLRB); public employees (like TAs and
RAs at state universities) are governed by individual state labor laws,
administered by state labor boards. Each state has different laws about who
can unionize, what kinds of dues and fees they can charge, etc.
b.
States with Collective Bargaining Laws For All Public Employees
(i)
c.
States with Collective Bargaining Granted Through Executive Order for
Public Employees
(i)
d.
Alaska, California, Connecticut, Delaware, Florida, Hawaii, Illinois,
Iowa, Maine, Massachusetts, Michigan, Minnesota, Montana,
Nebraska, New Hampshire, New Jersey, New Mexico, New York,
Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Vermont,
Washington, and Wisconsin.
Indiana, Kansas, and Maryland.
States with No Collective Bargaining Law
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(i)
2.
Alabama, Arizona, Arkansas, Colorado, Georgia, Idaho, Kentucky,
Louisiana, Mississippi, Missouri, Nevada, North Carolina, North
Dakota, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia,
West Virginia, Wyoming.
Collective Bargaining Rights-Higher Education Institutions
a.
The collective bargaining rights of graduate employees at public universities
(as governed by individual state labor laws) can be divided into five
categories.
(i)
States in which graduate employees are explicitly eligible for
collective bargaining under the law:
(a)
(ii)
States in which university employees are eligible under the law, but in
which the eligibility of graduate student employees is uncertain:
(a)
(iii)
C.
Washington (legislation is currently pending).
States in which all university employees are excluded from collective
bargaining rights:
(a)
B.
Ohio.
States in which K-12 and two-year college faculties are eligible, but in
which all university level employees are excluded:
(a)
(v)
Alaska, Connecticut, Delaware, Hawaii, Maine, Montana,
Nebraska, New Hampshire, New Mexico, Rhode Island, South
Dakota, Vermont.
States in which university employees are eligible, but in which
graduate student employees and part-time faculty are explicitly
excluded:
(a)
(iv)
California, Florida, Illinois, Iowa, Kansas, Massachusetts,
Michigan, Minnesota, New Jersey, New York, Oregon,
Pennsylvania, Wisconsin.
Alabama, Arizona, Arkansas, Colorado, Georgia, Idaho,
Indiana, Kentucky, Louisiana, Maryland, Mississippi,
Missouri, Nevada, North Carolina, North Dakota, Oklahoma,
South Carolina, Tennessee, Texas, Utah, Virginia, Wyoming.
Appropriate Showing of Interest – Authorization Cards
1.
A union desiring to be certified as the collective bargaining representative files a
petition describing the bargaining unit alleged to be appropriate. Section 9(c)(1)(A)
of the Act provides that the petition must be supported by a “substantial number” of
employees. NLRB Rules and Regulations and Statement of Procedure, Series 8,
§101.18. The evidence of support, which is usually in the form of signed and dated
authorization cards, must accompany the petition.
2.
The Board, by rule defines “substantial” to mean at least 30 percent. NLRB Rules
and Regulations and Statements of Procedures, Series 8, § 101.18.
Appropriate Bargaining Units - Hearing vs. Stipulation
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1.
D.
A bargaining unit is a grouping of two or more employees aggregated for purposes of
collective bargaining. The size and composition of the bargaining unit are often the
subject of dispute between a union and an employer, because these decisions can
determine whether the union is entitled to representative status. When the parties
agree to the size and composition of the bargaining unit they may stipulate as such.
However, when the parties to a representation proceeding disagree, the NLRB
determines whether the unit of employees in which the petitioner seeks an election is
an “appropriate unit” for collective bargaining. In resolving the unit issue, the
Board’s primary concern is to group together only employees who have substantial
mutual interests in wages, hours, and other conditions of employment (“communityof-interest criteria”)
Composition of Bargaining Units
1.
Relevant Definitions Under the Act
a.
“Employee” as defined in Section 2(3)
(i)
b.
“Supervisor” as defined in Section 2(11)
(i)
2.
The term "employee" shall include any employee, and shall be limited
to the employees of a particular employer…and shall include any
individual whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of any unfair
labor practice, and who has not obtained any other regular and
substantially equivalent employment, but shall not include any
individual employed as an agricultural laborer, or in the domestic
service of any family or person at this home, or any individual
employed by his parent or spouse, or any individual having the status
of an independent contractor, or any individual employed as a
supervisor, or any individual employed by an employer subject to the
Railway Labor Act [45 U.S.C.A. SS 151 et seq.], as amended from
time to time, or by any other person who is not an employer as herein
defined.
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
responsible to direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Managerial and Supervisory Employees-Generally
a.
The bargaining unit can include only persons who are “employees” within the
meaning of the Act. The Act excludes certain individuals, such as agricultural
laborers, independent contractors, supervisors, and persons in managerial
positions, from the meaning of “employees.” None of these individuals can
be included in a bargaining unit established by the Board.
b.
Supervisor
(i)
The Act expressly insists that a supervisor (1) have authority (2) to use
independent judgment (3) in performing such supervisory functions
(4) in the interest of management. NLRB v. Security Guard Serv., 384
F.2d 143 (5th Cir. 1967). The Board may also consider so-called
National Association of College and University Attorneys
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“secondary indicia” in determining whether a particular individual is a
“supervisor” within the meaning of the Act. These secondary factors
include whether the individual: (1) is considered a supervisor in the
view of fellow workers, and in the individual’s own view; (2) attends
management meetings; (3) receives a higher wage rate than fellow
workers; and (4) has substantially different benefits from fellow
employees.
c.
Managers
(i)
d.
3.
Confidential Employees
(i)
In addition, the Board, as a matter of policy, excludes from bargaining
units employees who act in a confidential capacity to an employer’s
labor relations officials.
(ii)
Confidential employees are persons “who assist and act in a
confidential capacity to persons who formulate, determine and
effectuate management policies in the field of labor relations.” B.F.
Goodrich Co., 115 NLRB 722 (1956); NLRB v. Henricks County
Rural Electric Membership Corp., 454 U.S. 170 (1981).
Professional vs. Nonprofessional Bargaining Units in Institutions of Higher
Education
a.
4.
Unlike supervisors, managerial employees, who may have no
supervisory functions, are not explicitly excluded from the protection
of the Act. Managerial employees are defined as employees who
“formulate and effectuate management policies by expressing and
making operative the decisions of their employer, and those who have
discretion in the performance of their jobs independent of their
employer’s established policy.” General Dynamics Corp., Convair
Div., 213 NLRB 851 (1794).
There are two types of bargaining units in the university and college setting:
(1) nonprofessional units composed of administrative, maintenance, and other
support staff; and (2) professional units composed of faculty members.
Nonprofessional unit determinations are made by applying the normal
community-of-interest criteria and are not addressed in this presentation.
Livingstone College, 290 NLRB 304 (1988).
Professional Bargaining Units in Institutions of Higher Education
a.
Difficult questions arise concerning the appropriateness and composition of a
professional unit. Professional employees such as faculty and deans may be
ineligible for inclusion in a unit due to their status as managers or supervisors.
C. W. Post Center of Long Island University, 189 NLRB 904 (1971).
(i)
The Supreme Court's decision in NLRB v. Yeshiva University, 444
U.S. 672, 100 S.Ct. 856 (1980), requires that a detailed factual inquiry
be made to determine whether the policy-making and decision-making
authority of the ordinary faculty member is sufficient to warrant
exclusion of the entire full-time faculty from a professional unit as
managerial employees. See also University of Great Falls, 325 NLRB
3 (1997); College of Osteopathic Medicine & Surgery, 265 NLRB 295
(1982); St. Thomas University, Inc., 298 NLRB 280 (1990) (faculty
members were not indispensable to formulation and implementation of
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academic policy so as to warrant exclusion from bargaining unit);
Lewis & Clark College, 300 NLRB 155 (1990) (faculty members who
exercised substantial, independent authority over academic matters
qualified as managerial employees).
5.
(ii)
In Yeshiva the Second Circuit rejected the NLRB's assertion of
jurisdiction over the University's faculty members. It found that the
NLRB was not warranted in finding that all full-time faculty members
were neither supervisors within §2(11) of the NLRA nor managerial
employees under NLRB policy.
(iii)
Applying Yeshiva, the Board evaluates the decision-making authority
and input of an institution's faculty in general, and the various levels of
faculty positions in particular, in order to determine which faculty
members, if any, are nonmanagerial. See College of Osteopathic Med.
& Surgery, 265 NLRB 295 (1982).
(iv)
The Board has determined the supervisory and/or managerial status of
faculty members by examining their duties and responsibilities in
governing academic and administrative matters including faculty
hiring, tenure, sabbaticals, termination, and promotion, See Lewis
Univ., 265 NLRB 1239 (1982), enforcement denied, 765 F.2d 616 (7th
Cir. 1985).
(v)
In general, the Board will find faculty members to be managerial
where they have direct authority over academic affairs and significant
influence upon the hiring, promotion, and tenure of faculty members,
notwithstanding that a president or the Board of Trustees may have
ultimate authority over such matters. Elmira College, 309 NLRB 842
(1992); Lewis & Clark College, 300 NLRB 155 (1990); American Int'l
College, 282 NLRB 189 (1986); Trustees of Boston Univ., 281 NLRB
798 (1986), petition for review denied sub nom. AAUP v. NLRB, 835
F.2d 399 (1st Cir. 1987); University of New Haven, 267 NLRB 939
(1983); College of Osteopathic Med. & Surgery, 265 NLRB 295
(1982); Duquesne Univ. of the Holy Ghost, 261 NLRB 587 (1982).
(vi)
In the absence of such authority, the Board finds faculty members not
to be managerial employees. See University of Great Falls, 325 NLRB
83 (1997) (faculty did not participate in course scheduling, approving
students for graduation, and approving course substitutions); St.
Thomas Univ., 298 NLRB 280 (1990) (faculty did not have control
over curriculum or participate in decision to establish law school);
Marymount College of Va., 280 NLRB 486 (1986) (program
coordinators and librarians lacked significant managerial or
supervisory authority); Kendall Sch. Of Design, 279 NLRB 281
(1986), modified, 866 F.2d 157 (6th Cir. 1989) (faculty could not make
independent decisions regarding curriculum; administration tightly
controlled committee membership, agendas, and final products; no
systematic mechanism for ascertaining faculty views).
Scope of Professional Bargaining Units in Institutions of Higher Education
a.
By Campus
(i)
Multicampus Bargaining Units
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(a)
Universities with more than one campus raise issues
concerning single-campus versus multiple-campus units. In
general, the scope of the unit is determined under generally
applicable criteria, and either a campus or collegewide unit is
presumptively appropriate. University of Hartford, 295 NLRB
797 (1989); Livingstone College, 290 NLRB 304 (1988).
(b)
In Fairleigh Dickinson Univ., 205 NLRB 673 (1973), the
Board approved an institutionwide, multicampus bargaining
unit where there was:
(c)
b.
(1)
integration and centralization of administrative
functions between campuses;
(2)
some campus interchange between faculty members;
(3)
a university senate that included representatives from
all campuses;
(4)
similarity of wages, hours, and working conditions for
faculty members at all campuses; and
(5)
a petitioner that was seeking a universitywide unit.
(6)
See Fairleigh Dickinson Univ., 205 NLRB 673 (1973);
cf. Tulane Univ., 195 NLRB 329 (1972) (Board rejects
petitioner's request for main campus nonprofessional
unit; unit must include university's three other facilities
located within a 40-mile radius of the main campus);
Cornell Univ., 183 NLRB 329 (1970) (statewide unit of
nonprofessional employees held to be only appropriate
unit, even though university operated facility in New
York City some 280 miles away from rural upstate
New York campus and union sought separate unit for
New York City facility).
However, in Long Island Univ. (Brooklyn Ctr.), 189 NLRB
909 (1971), the Board found appropriate two separate units for
two of a university's three campuses where separate units had
been sought by the petitioner and the employer did not object
to separate units.
By Job Classification
(i)
Department Chairpersons
(a)
Following the decision in Yeshiva, the Board has excluded the
heads of a department from the faculty unit on the ground that
they not only effectively reviewed the performance of faculty
members, they also hired, supervised, and fired nonunit
clericals and other university employees. Trustees of Boston
Univ., 281 NLRB 798 (1986), aff'd sub nom. Boston Univ.
Chapter, AAUP v. NLRB, 835 F.2d 399 (1st Cir. 1987). But
see Florida Mem'l College, 263, NLRB 1248 (1982)
(department heads included in unit where supervision of
nonunit employees was minimal).
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(ii)
(iii)
(iv)
Administrative Officials
(a)
Ordinarily, administrative officials – including deans, assistant
and associate deans, admission directors, and registrars – are
excluded from a faculty bargaining unit as supervisory
employees. In most cases administrative officials such as deans
are excluded by stipulation. See, e.g., Syracuse Univ., 204
NLRB 641 (1973); University of Detroit, 193 NLRB 566
(1971). Cf. University of Great Falls, 325 NLRB 83 (1997)
(finding deans to be managerial employees).
(b)
In some cases, however, the Board has included in the faculty
bargaining unit assistant or associate deans whose primary duty
is to teach. University of Miami, 214 NLRB 634 (1974).
(c)
Moreover, a separate unit of nonacademic administrative
officials is appropriate when that group merely implements
decisions established by higher authority. See, e.g., Loretto
Heights College, 205 NLRB 1134 (1973).
Coaches
(a)
Athletic coaches whose academic credentials are comparable
to other faculty members and whose duties include teaching
are held to be professionals and are included in faculty units.
Rensselaer Polytechnic Inst., 218 NLRB 1435 (1975);
Manhattan College, 195 NLRB 66 (1972) (teaching duties
related to extracurricular activities, not classroom teaching for
college credit).
(b)
However, coaching positions that do not require advanced
degrees or teaching are deemed nonprofessional and are
excluded from faculty bargaining units. University of Miami,
213 NLRB 634 (1974).
Visiting Faculty
(a)
(v)
The Board has excluded visiting faculty members from faculty
bargaining units because they usually have no expectation of
permanent employment by the institution at which they are
teaching as visitors. Goddard College, 215 NLRB 457 (1975)
(visiting faculty excluded even though they had full-time
teaching loads and were entitled to full participation in
governance, including voting privileges); see Trustees of
Boston Univ., 228 NLRB 1008 (1977), enforced, 575 F.2d 301
(1st Cir. 1978).
Part-time Faculty
(a)
The NLRB had initially permitted part-time employees in the
same bargaining unit with full-time faculty. However, in New
York University (I), 205 NLRB 4 (1973), the Board decided to
exclude all part-time faculty members from the faculty unit.
(b)
Specifically, the Board relied upon the “substantial”
differences usually found between full-time and part-time
faculty, including:
National Association of College and University Attorneys
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(vi)
differences in compensation;
(2)
lack of participation by part-time faculty in university
governance;
(3)
the unavailability of tenure for part-time faculty;
(4)
differences in working conditions.
Librarians
(a)
c.
(1)
Librarians are normally includable in a faculty bargaining unit
since they "possess a sufficient community of interest to be
included in the unit, as a closely allied professional group
whose ultimate function, aiding and furthering the educational
and scholarly goals of the University, converges with that of
the faculty, though pursued through different means and in a
different manner." 265 NLRB 1221 (1982). See also NLRB v.
New Sch. for Soc. Research, Parsons Sch. of Design Div., 793
F.2d 503 (2d Cir. 1986), denying enforcement on other
grounds to 275 NLRB 173 (1985) (court approved Board’s
finding that unit of part-time instructors was appropriate).
Medical Residents/Students
(i)
(ii)
Private Sector
(a)
In Samaritan Health Services, Inc., 238 NLRB 629 (1978), the
Board included medical technologist students and pharmacy
interns in the hospital employee unit by stipulation of the
parties.
(b)
In Boston Medical Center Corp., 330 NLRB No.30 (1999), the
Board overruled Cedars-Sinai Medical Center, 223 NLRB 25,
reh'g denied, 224 NLRB 626 (1976), as clarified in St. Claire's
Hospital & Health Center, 229 NLRB 1000 (1977), which held
that medical interns, residents, and fellows were not entitled to
collective-bargaining rights as a matter of statutory policy.
(c)
The Board in Boston Medical Center held that such persons
were employees under §2(3), notwithstanding the fact that they
were also students.
(d)
More specifically, the Board rejected its longstanding “primary
purpose” test, which narrowly examined the motive for which
one worked, and instead created a “compensated services” test,
which focuses on whether a person “works for another in
return for financial or other compensation.” Id. Consequently,
the Boston Medical Center case established the framework by
which other groups of students based their collective
bargaining efforts.
Public Sector
(a)
State statutes which have been held to permit collective
bargaining by medical residents generally circumscribe the
topics which are subject to bargaining, the use of economic
National Association of College and University Attorneys
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pressure, or both. See, e.g., Regents of the University of
Michigan v. ERC, 204 N.W. 2d 218, 224 (Mich. 1973)
(holding salary is a bargainable issue because it was a matter of
“terms and conditions of employment,” whereas not working
in the pathology department because the work is “distasteful”
is within the “education realm”); Regents of The University of
California v. PERB, 41 Cal. 3d 601, 715 P.2d 590 (Cal. 1986)
(scope of negotiations governed by particular provisions of
state labor relations law). Compare Philadelphia Assn. of
Interns and Residents v. Albert Einstein Medical Center, 369
A.2d 711 (Pa. 1976) (residents are students and thus not
employees for purposes of state labor relations law).
d.
Graduate Students
(i)
(ii)
In New York University, 332 NLRB 111 (2000), the Board followed
its analysis in Boston Medical Center and held that a university's
graduate assistants (teaching assistants, graduate assistants, and
research assistants) are employees within the meaning of §2(3).
(a)
In New York University, the Board found that graduate
teaching assistants are employees because their work is not a
requirement for completing their graduate degrees.
(b)
Therefore, because the students perform the work for
compensation, they are “employees” under the Act.
Other Recent Decisions Regarding Graduate Students
(a)
(b)
Trustees Columbia Univ., NLRB, No. 2-RC-22358 2/22/02.
(1)
Columbia has asked the full Board to review and
reverse a decision the Board made in New York
University, which the Regional Director relied upon in
ordering an election among Columbia graduate and
undergraduate teaching assistants.
(2)
Columbia is asking the Board to find that the NYU
decision should not be applied to Columbia and seeks
to distinguish the case “because teaching and research
are required to graduate with a doctorate at Columbia,”
unlike they were in NYU.
Brown Univ. and United Auto Workers, NLRB, No. 1-RC21368 11/16/01.
(1)
The Regional Director ordered an election to determine
whether Teaching Assistants at Brown University wish
to be represented by United Auto Workers, even though
many Teaching Assistants were required to teach as
part of their graduate curriculum.
(2)
In ordering the election, the Regional Director stated:
i)
“merely because the Board stated in NYU that
the lack of academic credit for graduate
assistant work ‘highlighted’ the fact that this
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work was not solely in pursuit of education, it
does not follow that the absence of this factor
produces the opposite result, such that receiving
academic credit for this service automatically
makes a graduate student a non-employee.”
IV.
(c)
Temple University's Board of Trustees voted to recognize the
Temple University Graduate Students Association as the
bargaining representative for some 550 Temple graduate
teaching assistants, ending more than two years of legal
wrangling over the union's organizing efforts.
(d)
Governor Gary Locke (D) of Washington State signed a bill
allowing teaching and research assistants at the University of
Washington to bargain collectively.
Election Details
A.
Excelsior List
1.
B.
Once an election has been set by the Board, the employer is required to provide the
union with a list of names and addresses of employees in the proposed unit. This list
is referred to as the Excelsior List. Excelsior Underwear, 156 NLRB 1236 (1966).
The list must be filed with the Board’s Regional Director within seven days of an
election agreement or after the election has been directed by the Regional Director.
The list must contain the full first and last name and the addresses of all eligible
voters. The Regional Director then forwards the list to all parties involved in the
election. The employer’s failure to timely file the Excelsior list can be grounds for
setting aside the subsequent election. See e.g. Rockwell Mfg. Co., 201 NLRB 356
(1973). The Board does not, however, mechanically apply this rule. Minor errors in
the compilation of the list may not result in the election being set aside, if the
employer acts in good faith and is not grossly negligent. Lobster House, 186 NLRB
148 (1970). For example, in Telonic Instruments, 173 NLRB 588 (1969), the
omissions consisted of four out of one hundred and eleven eligible voters, and the
employer immediately informed the Regional Director and the union upon realizing
the omissions. The Board found substantial compliance with the rule.
Mail Ballots
1.
The Board generally prefers to conduct manual elections. The Board has recognized,
however, that in certain circumstances, manual elections may not be practical. In
such situations, the Board conducts mail ballot elections. While not favored, mail
ballots can be used when they “would enhance the opportunities for all to vote.” San
Diego Gas and Electric, 325 NLRB 1143 (1998). The Board’s Casehandling Manual
sets forth the standard for determining when to use mail ballots:
a.
The Regional Director should use his/her discretion in deciding which type of
election to conduct, taking into consideration at least the following situations
that normally suggest the propriety of using mail ballots:
(i)
where eligible voters are “scattered” because of their job duties over a
wide geographic area;
(ii)
where eligible voters are “scattered” in the sense that their work
schedules vary significantly, so that they are not present at a common
location at common times; and
National Association of College and University Attorneys
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(iii)
2.
where there is a strike, a lockout or picketing in progress.
Employees may be deemed to be “scattered” where they work in different geographic
areas, work in the same areas but travel on the road, work different shifts, or work
combinations of full-time and part-time schedules. If any of the foregoing situations
exist, the Regional Director should also consider the desires of all the parties, the
likely ability of voters to read and understand mail ballots and the availability of
addresses for employees.
NLRB Casehandling Manual § 11301.2, citing San Diego Gas and Electric.
C.
V.
3.
The Board’s procedure for conducting a mail ballot election is set forth in the Board’s
Casehandling Manual § 11336. The employer provides the Board with a list of
eligible voters. The Board provides a notice of election, copies of which should be
posted at conspicuous places on the employer’s premises, and, if any, at the
employer’s scattered bases of operation. The notice should inform the voters of when
the ballots will be mailed, and what to do if they do not receive one by a certain date.
4.
The Regional Office then mails a voter kit to each voter. All potential voters, even
those whose eligibility is in dispute, receive a kit. The kit includes instructions on
how to complete the ballot, as well as the actual ballot. The voter must follow the
directions to complete and return the ballot. The Board will not count ballots that are
not properly completed. See Thompson Roofing, Inc., 291 NLRB 742 (1988) (ballots
that are returned in envelopes with no signatures or with names printed rather than
signed should be voided); Mission Industries, 283 NLRB 1027 (1987) (mail ballot
returned without identification stub not counted); Northwest Packing Co., 65 NLRB
890 (1946) (unsigned ballot not counted); But see Kerrville Bus Co., 257 NRLB 176
(1981) (ballots received after the deadline, but before the ballots were counted, will
usually be counted).
Time, Date and Place of Manual Election
1.
The majority of Board elections are manual elections. In these elections, a Board
agent will create a polling place at a specified time, date and location, where eligible
voters will cast ballots. The date, place and hours of an election are usually based
upon the parties’ voluntary agreement. If the parties cannot come to an agreement,
the Regional Director will set the date, place and hours of the election.
2.
The date of the election generally will be within thirty days of the decision or
agreement to conduct an election. In setting the date for the election, the Board will
consider the employer’s operational needs and the desirability of facilitating full voter
participation. To this end, the Board will attempt to find a day when the most
employees are likely to be at work and which will not be disruptive to the employer’s
operations. The election can take place over the course of more than one day.
3.
Elections are usually conducted on the employer’s premises. Circumstances may,
however, require that the election be held off premises. For example, if striking
employees are involved in the election, San Diego Gas & Electric, 325 NLRB 1143
(1998) or if the employer has committed numerous or especially egregious unfair
labor practices. When appropriate, multiple polling locations can be utilized. The
hours of election should be adequate to permit all voters to vote. Thus, the hours may
span the period of two shifts or any other timeframe necessary to accommodate the
voters.
Campaign
National Association of College and University Attorneys
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A.
B.
C.
Deciding Upon the University’s Philosophy.
1.
Many non-union employers articulate a “union free” policy in their employee
handbook.
2.
Unionized employers may state that while they deal with a union for certain
employees, they prefer to remain non-union for other segments of their operations,
e.g. faculty.
3.
Once card signing starts or a petition is filed, the Employer needs to make a
conscious decision on what position it will take with respect to the Union:
a.
Actively resist it;
b.
Neutrality or benign neglect;
c.
Embrace it and voluntarily recognize the Union based on a majority of the
employees in an appropriate unit signing authorization cards.
Selecting a Spokesperson
1.
In the event the University decides to actively campaign in favor of staying nonunion, the campaign needs to have a “point person” who will be the University’s
spokesperson on all major communications regarding the issues.
2.
Managers and Supervisors need to be educated about the University’s position on all
the issues so that they may properly present the University’s position during their day
to day dealings with employees.
3.
The University is responsible for the acts and statements of its managers and
supervisors so they need to be educated about what they can and cannot do during a
campaign.
Supervisory Do’s and Don’ts
1.
What Supervisors Can’t Do During a Union Organizing Campaign
a.
During a union campaign, faculty members and administrators cannot make
statements, which contain a threat of reprisal or promise of benefit to
discourage union membership or activity. See e.g., Yale University, 330
NLRB 28 (1999).
b.
Faculty members and administrators cannot threaten or make any threats to
discourage union activity, union membership, signing a union card, or voting
for the union. See e.g., Yale University, 330 NLRB 28 (1999). For example,
in Yale University, the Board held that the following types of statements were
prima facie unlawful:
(i)
Statements by members of the French Department faculty concerning
the inappropriateness of the union model in the academic setting, and
the loss of teaching appointments in the Spring semester.
(ii)
Statements by the French Department Director of Graduate Studies
made at a December 14, 1995, meeting concerning the grade strike
and the inappropriateness of unions in the academic setting.
National Association of College and University Attorneys
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c.
2.
(iii)
Statements made in a memo from members of the French Department
to graduate students with present or future teaching assignments,
including the comment that the "[f]ailure to perform any aspect of a
graduate teaching assignment-e.g. meeting all classes, grading and
returning all papers, holding regular office hours, submitting final
grades, etc. - would (1) be a de facto dereliction of professional duties
to our students . . . and (2) constitute behavior unacceptable anywhere
in the profession" that could negatively affect evaluations and
jeopardize future teaching assignments.
(iv)
Statements made by a professor during a meeting concerning the
imprudence of a graduate student work stoppage and the negative
consequences that could flow from it.
(v)
While the University ultimately settled the Yale University case before
they had a chance to defend these prima facie violations, they
nonetheless illustrate how careful an employer must be in commenting
to employees regarding their union activity. Simply put, the line
between an unlawful threat and a legal, objective declaration is very
grey.
Faculty members and administrators cannot interrogate the employee about:
(i)
his/her or any other employee’s union activity;
(ii)
his/her or any other employee’s opinion of the union;
(iii)
how s/he or any other employees intends to vote;
(iv)
his/her or any other employee’s membership in the union;
(v)
his/her or any other employee’s signing of a union card; and
(vi)
about confidential union matters, such as union meeting, who
attended, etc.
d.
Faculty members and administrators cannot promise or make any promises of
a benefit in return for the employee’s not joining the union, voting against the
union, not signing a card or not engaging in union activity.
e.
Faculty members and administrators cannot spy on the union.
What Supervisors Can Say and Do During a Union Organizing Campaign
a.
During a union organizing campaign, management’s broad right of free
speech permits supervisors to share significant amounts of information in the
following categories:
(i)
the right to take and communicate a position as a company;
(ii)
the right of supervisors to share their personal opinion;
(iii)
the right to share factual information regarding;
(a)
the law;
(b)
the union organizing process;
National Association of College and University Attorneys
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D.
unions in general;
(d)
any union in particular; and
(e)
the right to share any personal experiences you or others have
had with unions there are many things a supervisor can say and
do.
Unfair Labor Practices of Employers and Board Remedies
1.
The unfair labor practices of employers are listed in Section 8(a) of the Act.
2.
Section 8(a)(1) – Interference with Section 7 Rights
a.
3.
4.
Remedies for employer discrimination violating Section 8(a)(3) and (4) are
tailored to the particular kind of discrimination involved. In the typical
discrimination case, where an employee is discharged for union activity or
discriminated against because of charges or testimony under the Act, the
Board normally ordered reinstatement of the employee, with back pay, and
issues a cease-and desist order proscribing similar conduct in the future. See
e.g., Alaska Pulp Corp., 326 NLRB 522 (1998).
Section 8(a)(4) – Discrimination for Board Activity
a.
6.
Where the company has dominated the union, the usual order is
diseastablishment of the Union. See e.g., Neptune Meter Co. v. NLRB, 158
F.2d 448 (2d Cir. 1946), cert. denied, 333 U.S. 826 (1948).
Section 8(a)(3) - Discrimination Against Employees
a.
5.
Where the employer has committed violations of Section 8(a)(1), the Board
will normally issue a cease-and-desist order. In general, the order will
proscribe the conduct found to be unlawful in the specific case. In addition, it
will require that the employer cease and desist from violating the Act “in any
like related manner.”
Section 8(a)(2) – Domination or Illegal Assistance and Support of a Labor
Organization
a.
General remedies for Section 8(a)(4) violations – see above.
Section 8(a)(5) – Refusal to Bargain in Good Faith
a.
E.
(c)
The usual remedy for an employer’s refusal to bargain in violation of Section
8(a)(5) is an order (1) to case and desist from refusing to bargain, and (2)
upon request, to bargain collectively regarding rates of pay, wages, hours, and
other conditions of employment. See e.g., Power Inc., 311 NLRB 599,
enforced, 40 F.3d 409 (D.C. Cir. 1994).
Campaign Tactics
1.
Timing
a.
The Employer needs to decide whether it will actively campaign against card
signing before any petition is filed. Some employers do not have this option
because they are unaware that signing is even occurring.
National Association of College and University Attorneys
22
2.
3.
F.
b.
Once the petition is filed, the election would ordinarily be held within 45 days
unless it is delayed due to a hearing over the scope or composition of the
bargaining unit.
c.
Once an election date is set, the Employer who wants to campaign in favor of
union free status needs to plot out on a weekly basis, the messages it wants to
communicate to the voters, both in writing and in person, with respect to the
issues.
Issues Commonly Addressed During Union Campaigns
a.
Union membership: what it means to sign a card; union dues and assessments.
b.
The realities of collective bargaining: topics which are negotiable, how long it
takes to get a first contract, if one is ever reached; no duty on the part of the
Employer to agree to any proposal which it does not believe it is in the best
interest of the institution; a risk that something the employees currently enjoy
will be lost in negotiations.
c.
If impasse reached in negotiations, Unions only real option is to strike.
Consequences of striking: no pay of benefits, no unemployment, risk of
permanent replacement.
d.
Track record of Union: success/failure at other institutions; strike record of
union; financial weaknesses or other improprieties.
Method of Communication
a.
Written materials.
b.
Group meetings.
c.
One on one meetings.
d.
Videos and other third party materials
e.
24 hour work captive audience speech: Employer may not speak to assembled
group of employees about union issues within 24 hours before the election.
Employers usually use this opportunity to give a speech, on paid time, the day
before and at least 24 hours before the polls open to wrap up the campaign
and hit on its major themes.
Dealing With The Election
1.
At the election, each party may be represented by an equal number of observers who
may be present at the polling place. The Board will attempt to accommodate each
party’s right to be represented at the election, but the right to an observer is not
absolute. Inland Waters Pollution Control, Inc., 306 NRLB 342, 243 (1992). There
are some restrictions on who may be an observer. Family Serv. Agency, San
Francisco, 331 NLRB No. 103 (2000) (supervisor cannot be observer). The observer
should be an employee of the employer, but may be a union official employed by the
employer.
2.
The names of the proposed observers should be submitted with sufficient time to
allow the Board to determine that they are eligible. The observers are provided
National Association of College and University Attorneys
23
detailed, written instructions. These instructions require the observer to act as a
checker and watcher of the voters, assist in identification of voters, challenge voters
and ballots and to otherwise assist the Board agent conducting the election. The
observers may keep a list of names of voters they intend to challenge, but cannot keep
a list of who has or has not voted. Observers are prohibited from electioneering while
serving as observers.
G.
H.
Challenged Ballots
1.
During the course of the voting, a voter’s eligibility may be challenged. Only the
Board agent or an observer may challenge a voter’s eligibility. Failure to challenge
the voter’s eligibility before the ballot is cast will preclude later challenge. The
challenges may be due to a number of reasons: the voter allegedly is a supervisor, is
no longer employed by the employer or is not a part of the proposed bargaining unit.
Discharged employees who believe they have been unlawfully terminated may vote
subject to challenge. Alabaster Lime Co., 190 NLRB 396 (1971).
2.
Observers may challenge any voter for cause, stating the grounds for the challenge at
the time the challenge is made. NLRB Casehandling Manual § 11338.2. The Board
agent must challenge a voter whose name is not on the eligibility list, who has been
permitted to vote subject to challenge or who the Board agent knows, or has reason to
believe, is ineligible to vote. The Board agent will not make challenges on behalf of
a party that has an observer present. Id.
3.
At the end of the election, the challenged ballots are segregated. Only if after the
remaining ballots are counted, the challenged ballots are sufficient in number to be
determinative of the election will they be considered. Determination is made during
the course of a hearing if the Regional Director determines that the challenges raise
substantial and material factual issues. 29 CFR § 102.69(d). The Regional Director,
however, can dispose of challenges that do not raise such factual issues without a
hearing. If the Regional Director is able to dispose of sufficient challenges so that the
remaining challenges are no longer determinative, the Board will not conduct a
hearing. Id.
Certification
1.
VI.
The final stage in the election process is the certification. The certification is issued
after the election results are finalized and any objections filed are settled or resolved
by the Regional Director. 29 CFR § 102.69(b). There are two types of certifications:
Certification of representative, issued when a majority of votes were cast in favor of
representation by a labor organization, and Certification of results of election, issued
after a tie election or when less than a majority of the votes cast in the election were
cast in favor of representation. The union must receive a majority of votes cast, not a
majority of the employees in the unit that is determinative. R.C.A. Mfg. Co., 2
NLRB 159 (1936); Lemco Constr., Inc., 283 NLRB 459 (1987).
Post Election
A.
Objections
1.
Objections to the election are made after the election has concluded. These
objections must be filed by the close of business on the seventh day after a tally of
ballots has issued. 29 CFR § 102.69(a). There are two types of objections a party
may file, those that relate to the manner in which the election was conducted, and
those that relate to conduct which allegedly affected the results of the election. Id.
The objections must include a short, specific statement of the underlying reasons for
them. Id. Within seven days of filing the objections the objecting party must submit
National Association of College and University Attorneys
24
evidence in support of the objections. If the objecting party does not submit
sufficient evidence to establish a prima facie case in support of the objections, or if
the objections, if true, are not sufficient to set aside the election, the Regional
Director may overrule them. NLRB Casehandling Manual § 11392.6.
2.
If timely objections have been filed with sufficient evidence to support those
objections, the Regional Director will then process them, along with any remaining
challenges. The Regional Director will first proceed with an investigation of the
evidence. After the investigation, the Regional Director will make a determination,
either ruling on the objections and challenges, or directing that additional evidence be
taken on some or all of the issues at a hearing. Id. at §§ 11361.1; 11391.1. A hearing
will be held when the objections or challenges raise substantial and material factual
issues. 29 CFR § 102.69(d). Hearings are also conducted if credibility
determinations are needed. If there are related unfair labor practice charges filed,
they may be consolidated into a single hearing. Id. at § 102.33(a)(2). The hearings
are investigatory, rather than adversarial. NLRB Casehandling Manual § 11422.
After the close of the hearing, a report will be issued containing credibility
resolutions, findings of fact and recommendations concerning the disposition of each
issue. Id. at § 11430.
3.
Objections relate to actions taken during the critical period, the time from the filing of
the representation petition to the end of the election. Goodyear Tire & Rubber Co.,
138 NLRB 453 (1962). During this period of time, the Board seeks to maintain
Laboratory conditions for the election, creating an atmosphere that will permit the
voters to exercise their free choice without undue interference or coercion. General
Shoe Corp., 77 NLRB 124 (1948).
4.
Some actions by either party can be the basis for objections Misrepresentations of
fact or misleading campaign statements are not the basis for objections. Midland
Nat’l Live Ins. Co., 263 NLRB 127 (1982); National League of Professional Baseball
Clubs, 330 NLRB No. 112 (2000). The Board will set aside an election where a party
used a forged document, which would render the voters unable to recognize it as
propaganda, or create the impression that the Board endorsed one of the parties.
Alteration of an official Board document may result in the Board setting aside the
election. For example, distribution of copies of the official ballot with a highlighted
“NO” box resulted in the Board setting aside the election. Building Leasing Corp.,
239 NLRB 13 (1978). In Kwik Care v. NLRB, 82 F.3d 1122 (D.C. Cir. 1996),
however, the Board did not set aside the election when in a mail ballot election, the
union mailed propaganda that included sample ballots marked “YES” because the
Notice of Election sent to the voters provided that Any markings that you see on any
sample ballot . . . have been made by someone other than the . . . Board. Parties may
make allegations against each other, so long as the allegations do not impugn the
Board’s neutrality. Riveredge Hospital, 264 NRLB 1094 (1982). However,
distribution of a Board complaint against the employer with the paragraphs
concerning the time and place of the hearing, the employer’s right to answer the
complaint and the effect of failing to answer the allegations deleted was found to
interfere with the election. Ona Corp., 235 NLRB 595 (1978).
5.
Another source of objections is activity around the polling area. Once the polls open,
and employees are waiting on line, electioneering is improper. Milchem, Inc., 170
NLRB 362 (1968). Supervisors or union representatives stationed in or around the
polling area may cause the election to be set aside. Nathan Katz Realty, LLC v.
NLRB, 251 F.3d 981, (D.C. Cir. 2001). The Board has, however, not automatically
set aside elections because of supervisors or union representatives being present in
the vicinity of the polling area. Station Operators, 307 NLRB 263 (1992); Roney
Plaza Mgmt Corp., 310 NLRB 441 (1993) (supervisors congregating 25 feet from
entrance to polling area did not taint election, because their duties normally took them
National Association of College and University Attorneys
25
to that area and they neither spoke to any employees nor approached polling area).
As stated previously, observers cannot maintain a list of who has voted. Cross Pointe
Paper Corp., 330 NLRB No. 101 (2000). Finally, all parties are prohibited from
making election speeches to massed assemblies of employees in the 24-hour period
before the election. Peerless Plywood, 107 NLRB 427 (1953).
B.
6.
Certain employer conduct can lead to the Board setting aside the election. For
example, assembling individual or small groups of employees at places that are the
focal point of the employer’s authority to campaign against the union can amount to
election interference. Three Oaks, 178 NLRB 534 (1969). Management visits to the
employees’ homes to urge them to vote against the union are grounds for setting aside
the election. F.N. Calderwood, Inc., 124 NLRB 1211 (1959). Failure to provide the
Excelsior list on a timely basis can result in the election being set aside. Special
Citizens Futures Unlimited, 331 NLRB No. 19 (2000). Raffles conducted within 24
hours of the polling period interfere with the election. Atlantic Limousine, 331
NLRB No. 134 (2000).
7.
Similarly, there is specific union conduct, which may interfere with the election.
Generally, the union can promise the employees benefits. However, certain
promises, such as priority for job referrals, will interfere with the election. Alyeska
Pipeline Service Co., 261 NLRB 125 (1982). If the union actually provides the
benefits, rather than simply promising them, the election will be set aside. Wagner
Elec. Corp., 174 NRLB 244 (1967) (gift of life insurance coverage to prospective
voters). The Board and the Courts have divided on how extensive the benefit must be
to interfere with the election. See Comcast Cablevision v. NLRB, 232 F.3d 490 (6th
Cir. 2000) (court refused to enforce bargaining order where union made promise of
free trip to Chicago); Freund Baking Co. v. NLRB, 165 F.3d 928 (D.C. Cir. 1999)
(court refused to enforce bargaining order when union sponsored lawsuit on behalf of
eligible voters); Maremount Corp. v. NLRB, 177 F.3d 573 (6th Cir. 1999) (union
may distribute inexpensive campaign propaganda such as t-shirts). The union cannot
promise to waive the union’s initiation fee for employees who support the union, but
can promise to waive the fee for all employees, regardless of their support. Gulf
Caribe Maritime, Inc., 330 NLRB No. 120 (2000). The union may poll the
employees concerning their views of the union, so long as the polling is not coercive
in nature. NLRB v. Gormac Custom Mfg., Inc., 190 F.3d 742 (6th Cir. 1999).
Unfair Labor Practices
1.
C.
As stated above, along with the objections to an election that a party may file, a party
may also file an unfair labor practice charge (“ULP”) alleging that the conduct of one
of the parties to the election constituted a violation of the Act. See Sections 8(a) and
(b). ULPs include actions outside, as well as during, the critical period of the
election. Not all actions that can support an objection to the election will support a
ULP. If a ULP is filed by the union prior to the filing of a petition for representation,
or prior to a rerun election being conducted, the Board will not proceed to the election
until the ULP is resolved. This is commonly referred to as a Blocking charge. NLRB
Casehandling Manual §§ 11730-11734. If the Board concludes that a party
committed a ULP, the Board will issue the appropriate remedy, which in severe
cases, a bargaining order without an election.
Runoffs and Reruns
1.
If the objections or challenges to are sufficient to require a new election, a rerun
election will be conducted as soon as possible by the Regional Director. However,
the rerun election may be delayed if an outstanding unfair labor practice charge has
not been resolved. For the most part, the same procedures outlined above are utilized
in a rerun election. There are, however, some differences.
National Association of College and University Attorneys
26
2.
The first difference is found in the Notice of Election. The Notice may contain
language explaining why the prior election was set aside. NLRB Casehandling
Manual § 11452.3. The Regional Director usually permits this language to be
included, but is not required to do so. The second difference is the list of eligible
voters. The group of employees permitted to vote would remain the same; however,
an updated payroll period may be used for determining eligibility. Id. § 11452.2.
The payroll period for eligibility will be the latest payroll period preceding the date of
the notice of rerun election. Id.
3.
In other instances, a runoff election may be appropriate. Section 9(c)(3) of the Act
provides in pertinent part:
a.
4.
D.
This situation occurs when there are three or more choices on the ballot (i.e., choice
between two unions and no union) and no single choice receives a majority of votes
cast. A runoff will be held between the two choices receiving the highest number of
votes. For example, if out of the 23 votes cast, Union A received 11, Union B
received 11 and neither received 1, a runoff would be conducted between Union A
and Union B. Runoffs are held as soon as possible after the first election, but not
before the time for filing of objections has expired. Timely objections will stay the
runoff election until the Board properly disposes of those objections. Id. §§ 11350.3,
11350.5. The same employees eligible to vote in the first election will vote in the
second election, and new names cannot be added to the voting list. Id. § 11350.5.
One Year Rule
1.
VII.
In any election where none of the choices on the ballot receives a majority, a
run-off shall be conducted, the ballot providing for a selection between the
two choices receiving the largest and second largest number of valid votes
cast in the election.
Once the Board issues a certification, it is considered final for a reasonable period of
time, usually a year. The Board believes this is necessary to foster collective
bargaining and stabilize industrial relations. Absent unusual circumstances, an
employer must recognize a union for an entire Certification year even if the employer
has evidence the union lost its majority status. Brooks v. NLRB, 348 U.S. 96 (1954).
Moreover, the employer cannot announce that based upon evidence received during
the certification year, the employer intends to withdraw recognition from the union at
the end of that year. Chelsea Indus., Inc., 331 NLRB No. 184 (August 31, 2000).
The Board has extended the union’s presumption of majority status beyond one year
after certification in cases where the employer’s misconduct denied the union the fair
opportunity to bargain during the initial year. Mar-Jac Poultry Co., 136 NLRB 785
(1962).
Election Mechanics
A.
Observers
1.
At the election, each party may be represented by an equal number of observers who
can be present at the polling place. The Board will attempt to accommodate each
party’s right to be represented at the election, but the right to an observer is not
absolute. Inland Waters Pollution Control, Inc., 306 NRLB 342, 243 (1992). There
are some restrictions on who may be an observer. Family Serv. Agency, San
Francisco, 331 NLRB No. 103 (2000) (supervisor cannot be observer). The observer
should be an employee of the employer, but can be a union official employed by the
employer.
National Association of College and University Attorneys
27
2.
B.
C.
The names of the proposed observers should be submitted with sufficient time to
allow the Board to determine that they are eligible. The observers are provided
detailed, written instructions. These instructions require the observer to act as a
checker and watcher of the voters, assist in identification of voters, challenge voters
and ballots and to otherwise assist the Board agent conducting the election. The
observers may keep a list of names of voters they intend to challenge, but cannot keep
a list of who has or has not voted. Observers are prohibited from electioneering while
serving as observers.
Challenged Ballots
1.
During the course of the voting, a voters’ eligibility may be challenged. Only the
Board agent or an observer may challenge a voter’s eligibility. Failure to challenge
the voter’ eligibility before the ballot is cast will preclude later challenge. The
challenges may be due to a number of reasons. For example, the voter allegedly is a
supervisor, is no longer employed by the employer or is not a part of the proposed
bargaining unit. Discharged employees who believe they have been unlawfully
terminated may vote subject to challenge. Alabaster Lime Co., 190 NLRB 396
(1971).
2.
Observers may challenge any voter for cause, stating the grounds for the challenge at
the time the challenge is made. NLRB Casehandling Manual &11338.2. The Board
agent must challenge a voter whose name is not on the eligibility list, who has been
permitted to vote subject to challenge or who the Board agent knows, or has reason to
believe, is ineligible to vote. The Board agent will not make challenges on behalf of
a party that has an observer present. Id.
3.
At the end of the election, the challenged ballots are segregated. Only if after the
remaining ballots are counted, the challenged ballots are sufficient in number to be
determinative of the election will they be considered. Determination is made during
the course of a hearing if the Regional Director determines that the challenges raise
“substantial and material” factual issues. 29 CFR § 102.69(d). The Regional
Director, however, can dispose of challenges that do not raise such factual issues
without a hearing. If the Regional Director is able to dispose of sufficient challenges
so that the remaining challenges are no longer determinative, the Board will not
conduct a hearing. Id.
Certification
1.
The final stage in the election process is the certification. The certification is issued
after the election results are finalized. 29 CFR § 102.69(b). There are two types of
certifications: Certification of representative, issued when a majority of votes were
cast in favor of representation by a labor organization, and Certification of results of
election, issued after a tie election or when less than a majority of the votes cast in the
election were cast in favor of representation. The union must receive a majority of
votes cast, not a majority of the employees in the unit that is determinative. R.C.A.
Mfg. Co., 2 NLRB 159 (1936); Lemco Constr., Inc., 283 NLRB 459 (1987).
2.
Once the Board issues a certification, it is considered final for a reasonable period of
time, usually a year. The Board believes this is necessary to foster collective
bargaining and stabilize industrial relations. Absent unusual circumstances, an
National Association of College and University Attorneys
28
employer must recognize a union for an entire “certification year” even if the
employer has evidence the union lost its majority status. Brooks v. NLRB, 348 U.S.
96 (1954). Moreover, the employer cannot announce that based upon evidence
received during the certification year, the employer intends to withdraw recognition
from the union at the end of that year. Chelsea Indus., Inc., 331 NLRB No. 184
(August 31, 2000). The Board has extended the union’s presumption of majority
status beyond one year after certification in cases where the employer’s misconduct
denied the union the fair opportunity to bargain during the initial year. Mar-Jac
Poultry Co., 136 NLRB 785 (1962).
VIII.
Post Election
A.
Objections
1.
Objections to the election are made after the election has concluded. These
objections must be filed by the close of business on the seventh day after a tally of
ballots has issued. 29 CFR § 102.69(a). Under the Board’s rules, the date of filing is
the date the document is actually received by the Board. Id. at § 112. The Board will
accept facsimile transmissions of unfair labor practice charges, petitions in
representation proceedings, objections to elections and requests for extensions of
time. Id. at § 114(f). Other documents cannot be filed by facsimile without the
express permission of the Board. Id. There are two types of objections a party may
file, those that relate to the manner in which the election was conducted, and those
that relate to conduct which allegedly affected the results of the election. Id. The
objections must include a short, specific statement of the underlying reasons for them.
Id. Within seven days of filing the objections the objecting party must submit
evidence in support of the objections. If the objecting party does not submit
sufficient evidence to establish a prima facie case in support of the objections, or if
the objections, if true, are not sufficient to set aside the election, the Regional
Director may overrule them. NLRB Casehandling Manual § 11392.6.
2.
If timely objections have been filed with sufficient evidence to support those
objections, the Regional Director will proceed with an investigation of the evidence.
After the investigation, the Regional Director will make a determination, either ruling
on the objections, or directing that additional evidence be taken on some or all of the
issues at a hearing. Id. at §§ 11361.1; 11391.1. A hearing will be held when the
objections raise “substantial and material” factual issues. 29 CFR § 102.69(d). The
hearings theoretically are investigatory, rather than adversarial in nature. NLRB
Casehandling Manual § 11422. After the close of the hearing, a report will be issued
containing findings of fact and recommendations concerning the disposition of each
issue. Id. at 11430.
3.
Objections must relate to actions taken during the “critical period,” that is, time
between the filing of the representation petition and the election itself. Goodyear Tire
& Rubber Co., 138 NLRB 453 (1962). During this period of time, the Board seeks to
maintain “laboratory conditions” for the election, creating an atmosphere that will
permit the voters to exercise their free choice without undue interference or coercion.
General Shoe Corp., 77 NLRB 124 (1948).
4.
Actions by either party can be the basis for objections. Generally, action by an
employer such as threatening employees because they support a union or promising
employees that these concerns will be remedied if they vote against the union will be
deemed sufficient to warrant overturning an election. Advising employees of the
consequences of a strike, without any implication that strikes are inevitable, generally
will not be sufficient. Nor will truthfully advising employees that in the context of
National Association of College and University Attorneys
29
collective bargaining they could lose some benefits. Currently, misrepresentations of
fact or misleading campaign statements are not the basis for objections. Midland
Nat’l Live Ins. Co. , 263 NLRB 127 (1982); National League of Professional
Baseball Clubs, 330 NLRB No. 112 (2000). There are numerous other actions which
may arise during any organizational campaign. You should carefully consider
whether such actions may tend to interfere with a free and/or election under existing
law.
5.
Similarly, there is specific union conduct which may interfere with the election. For
example, certain promises, such as priority for job referrals, will interfere with the
election. Alyeska Pipeline Service Co., 261 NLRB 125 (1982). If the union actually
provides the benefits, rather than simply promising them, the election may be set
aside. Wagner Elec. Corp., 174 NRLB 244 (1967) (gift of life insurance coverage to
prospective voters). The Board and the Courts have divided on how extensive the
benefit must be to interfere with the election. See Comcast Cablevision v. NLRB,
232 F.3d 490 (6th Cir. 2000) (court refused to enforce bargaining order where union
made promise of free trip to Chicago); Freund Baking Co. v. NLRB, 165 F.3d 928
(D.C. Cir. 1999) (court refused to enforce bargaining order when union sponsored
lawsuit on behalf of eligible voters); Maremount Corp. v. NLRB, 177 F.3d 573 (6th
Cir. 1999) (union may distribute inexpensive campaign propaganda such as t-shirts).
The union cannot promise to waive the union’s initiation fee for employees who
support the union, but can promise to waive the fee for all employees, regardless of
their support. Gulf Caribe Maritime, Inc., 330 NLRB No. 120 (2000). The union
may poll the employees concerning their views of the union, so long as the polling is
not coercive in nature. NLRB v. Gormac Custom Mfg., Inc., 190 F.3d 742 (6th Cir.
1999).
6.
The Board will set aside an election where a party used a forged document which
would render the voters unable to recognize it as propaganda, or create the impression
that the Board endorsed one of the parties. Alteration of an official Board document
may result in the Board setting aside the election. For example, distribution of copies
of the official ballot with a highlighted “NO” box resulted in the Board setting aside
the election. Building Leasing Corp., 239 NLRB 13 (1978). In Kwik Care v. NLRB,
82 F.3d 1122 (D.C. Cir. 1996), however, the Board did not set aside the election
when in a mail ballot election, the union mailed propaganda that included sample
ballots marked “YES” because the Notice of Election sent to the voters provided that
“any markings that you see on any sample ballot . . . have been made by someone
other than the . . . Board.” Parties may make allegations against each other, so long
as the allegations do not impugn the Board’s neutrality. Riveredge Hospital, 264
NRLB 1094 (1982). However, distribution of a Board complaint against the
employer with the paragraphs concerning the time and place of the hearing, the
employer’s right to answer the complaint and the effect of failing to answer the
allegations deleted was found to interfere with the election. Ona Corp., 235 NLRB
595 (1978).
7.
Another source of objections is activity around the polling area. Once the polls open,
and employees are waiting on line, electioneering is improper. Milchem, Inc., 170
NLRB 362 (1968). Supervisors or union representatives stationed in or around the
polling area may cause the election to be set aside. Nathan Katz Realty, LLC v.
NLRB, 251 F.3d 981, (D.C. Cir. 2001). The Board has, however, not automatically
set aside elections because of supervisors or union representatives being present in
the vicinity of the polling area. Station Operators, 307 NLRB 263 (1992); Roney
Plaza Mgmt Corp., 310 NLRB 441 (1993) (supervisors congregating 25 feet from
entrance to polling area did not taint election, because their duties normally took them
to that area and they neither spoke to any employees nor approached polling area).
As stated previously, observers cannot maintain a list of who has voted. Cross Pointe
Paper Corp., 330 NLRB No. 101 (2000).
National Association of College and University Attorneys
30
8.
B.
Unfair Labor Practices
1.
C.
Another activity which will result in the election being set aside is a violation of the
“24-hour rule.” All parties are prohibited from making election speeches to massed
assemblies of employees in the 24-hour period before the election. Peerless
Plywood, 107 NLRB 427 (1953).
As stated above, along with the objections to an election that a party may file, a party
may also file an unfair labor practice charge (“ULP”) alleging that the conduct of one
of the parties to the election constituted a violation of the Act. See Sections 8(a) and
(b). ULPs include actions outside, as well as during, the critical period of the
election. Not all actions that can support an objection to the election will support a
ULP. If a ULP is filed by the union prior to the filing of a petition for representation,
or prior to a rerun election being conducted, the Board will not proceed to the election
until the ULP is resolved although in certain circumstances a party can request that
the election proceed. This is commonly referred to as a “blocking charge.” NLRB
Casehandling Manual &&11730-11734. If the Board concludes that a party
committed a ULP, the Board will issue the appropriate remedy, which in severe
cases, a bargaining order without an election.
Runoffs and Reruns
1.
If the objections or challenges to are sufficient to require a new election, a rerun
election will be conducted as soon as possible by the Regional Director. However,
the rerun election may be delayed if an outstanding unfair labor practice charge has
not been resolved. For the most part, the same procedures outlined above are utilized
in a rerun election. There are, however, some differences.
2.
The first difference is found in the Notice of Election. The Notice may contain
language explaining why the prior election was set aside. NLRB Casehandling
Manual § 11452.3. The Regional Director usually permits this language to be
included, but is not required to do so. The second difference is the list of eligible
voters. The group of employees permitted to vote will remain the same, however, an
updated payroll period may be used for determining eligibility. Id. § 11452.2. The
payroll period for eligibility will be the latest payroll period preceding the date of the
notice of rerun election. Id.
3.
In other instances, a runoff election may be appropriate. Section 9(c)(3) of the Act
provides in pertinent part:
a.
In any election where none of the choices on the ballot receives a majority, a
run-off shall be conducted, the ballot providing for a selection between the
two choices receiving the largest and second largest number of valid votes
cast in the election.
4.
This situation occurs when there are three or more choices on the ballot (i.e., choice
between two unions or no union) and no single choice receives a majority of votes
cast. A runoff will be held between the two choices receiving the highest number of
votes. For example, if out of the 23 votes cast, Union A received 11, Union B
received 11 and neither received 1, a runoff would be conducted between Union A
and Union B.
5.
Runoffs are held as soon as possible after the first election, but not before the time for
filing of objections has expired. Timely objections will stay the runoff election until
the Board properly disposes of those objections. Id. §§ 11350.3, 11350.5. The same
employees eligible to vote in the first election will vote in the second election, and
new names cannot be added to the voting list. Id. § 11350.5.
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D.
One Year Rule
1.
29 U.S.C. § 159(e)(2) provides:
a.
2.
No election shall be conducted pursuant to this subsection in any bargaining
unit or any subdivision within which, in the preceding twelve-month period, a
valid election shall have been held.
Thus, once an election is completed, a second election cannot be conducted for one
year. The Act does not, however, prohibit continued union organizing during that
year.
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