Business Law Chapter 13 Decertification The Bargaining Agent Employee Group Employees

Chapter 13

THE UNIONIZATION PROCESS

INTRODUCTION

In the preceding chapter, we discussed briefly the National Labor Relations Board’s (NLRB) administrative

structure and procedures in representation cases. In this chapter, we consider in greater detail the mechanisms

created by the Board for determining whether and how a union, for purposes of collective bargaining, will

represent a company’s employees.

CHAPTER OUTLINE

1. Exclusive Bargaining Representative

1. Employees’ Choice of Bargaining Agent

1. Although the most common method of determining the employees’ choice of a

bargaining representative is to hold a secret ballot election, the NLRA does not

require such procedures.

2. Employers confronted by a union claiming to have the support of a majority of

*Voluntary recognition is an employer agreeing to recognize a union with majority support as the

exclusive bargaining agent for the workers in the bargaining unit, without holding a certification election.

a) For a voluntary recognition, the employer is obligated to recognize and

under Section 9(c)(1)(A). Any employee, group of employees, or labor

organization can file such a petition seeking a representation election or a

decertification election on behalf of the employees as a whole.

1. At least 30 percent of the employee group must support the election request

*Forty-eight-hour rule is an NLRB requirement that a party filing a petition for a representation election must

provide evidence to support the petition within 48 hours of the filing.

4. A Board agent is then assigned to investigation, among other things, if

representation is appropriate and if representation already exists.

*Consent election is an election conducted by the regional office giving the regional director final authority

over any disputes.

THE WORKING LAW:

NLRB Issues Final Rule to Modernize Representation-Case Procedures

The National Labor Relations Board adopted a final rule amending its representation-case procedures to

modernize and streamline the process for resolving representation disputes, which took effect on April 14,

2015.

2. Rules that Bar Holding an Election

1. The philosophy of the NLRB and the courts is that a Board-sponsored election is a

1. The contract bar rule* has two exceptions.

1. The “open–season” exception is a window during which a rival

union can offer its challenge by filing an election petition.

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 13

*Contract bar rule is a written labor contract bars an election during the life of the bargaining agreement,

subject to the “open–season” exception.

3. Defining the Appropriate Bargaining Unit*

1. The bargaining unit is the basic constituency of the labor union; it is the group of

*Bargaining unit is a group of employees being represented by a union.

1. The bargaining unit should encompass all employees who share a

community of interests regarding working conditions. It should not be so

broad as to include divergent or antagonistic interests. Nor should it

submerge the interests of a small yet well-defined group of employees within

the larger unit.

4. Section 9(b) of the NLRA does set forth guidelines to determine what an

appropriate bargaining unit is. Section 9(b) states that the goal in defining a

bargaining unit is to “assure the employees the fullest freedom in exercising

the right guaranteed by this Act.” Section 9(b) also contains the following

five provisions:

1. The options open to the Board in determining a bargaining unit

includes an employer-wide unit, a craft unit, a single-plant unit, or

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5. A unit including non-guard or non-security employees cannot

include plant guards or security personnel; conversely, a union

6. The extent to which employees have already been organized at the

time of the filing of the election petition is not to be controlling of

the Board’s definition of the appropriate bargaining unit.

1. In addition to these guidelines, the Board has created other factors to

consider.

1. The community of interest of included employees concerning

wages, hours, working conditions, the nature of duties performed,

and the skills, training, or qualifications required;

4. Similarity of the unit to the employer’s administrative or territorial

divisions, the functional integration of the company’s operations,

and the frequency of employee interchange and;

5. The desires of the employees concerning the bargaining unit, such

as might be determined through a secret ballot among workers

CASE 13.1 BUCKHORN, INC. AND INTERNATIONAL UNION OF INDUSTRIAL

AND INDEPENDENT WORKERS

343 NLRB 201 (Sept. 30, 2004)

Background: On December 4, 2003, the Acting Regional Director for Region 25 issued a Decision and

Direction of Election in the above-entitled proceeding in which he found appropriate the petitioned-for unit

of all maintenance employees employed by the Employer at its Bluffton, Indiana facility. Thereafter, the

Employer filed a timely request for review of the Acting Regional Director’s decision. The Employer

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The maintenance employees that the union seeks to represent occupy one of five job classifications: skilled

maintenance, set-up maintenance, tooling associate, tooling technician, and nozzle prep/build associate.

The skilled maintenance employees report directly to the maintenance supervisor. The other maintenance

employees report to the production supervisor.

Issue: Is a separate maintenance unit an appropriate unit for bargaining? Or is the only appropriate unit a

combination of maintenance and production employees?

ANSWERS TO CASE QUESTIONS

1. As pointed out in the case discussion above, the nature of the round-the-clock, 24/7 production

process throws maintenance and production workers together on a regular basis; except for the top

five maintenance people, salaries and benefits were relatively similar; maintenance people did

2. The answers are “yes” and “no” as has been pointed out above. The 24/7 nature of the operation

3. As we have seen, the Board opts for an integrated unit, despite the fact that traditional Board lore has

preferred a separate unit of maintenance employees. In addition to the factors already recited, you

may want to have your students discuss the changing nature of American manufacturing in the global

competition of today. In a real sense there is a third workforce operating on his employer’s shop floor,

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2. Craft Unit Severance

1. The NLRB decision Mallinckrodt Chemical Works is the leading

pronouncement on when to certify a craft bargaining unit representing

employees who were previously included in a larger bargaining unit. The

NLRB’s decision in this case indicated that it will look to the following

factors:

1. If the proposed craft unit consists of skilled crafts workers

performing functions on a non-repetitive basis, or if it is a

functionally distinct department;

1. Bargaining Unit Definition in the Health Care Industry

1. The 1974 amendments to the NLRA extended NLRB jurisdiction over

nonprofit health-care institutions.

NLRB to establish bargaining units through its rule-making authority.

4. Voter Eligibility

1. Along with determining the appropriate bargaining unit, it must also be determined

which employees are eligible to vote. Factors to be considered are whether an

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2. In general, when the election has been directed (or agreed to, for consent elections),

the Board establishes an eligibility date—that is, the date by which an employee must

be on the employer’s payroll in order to be eligible to vote.

*Unfair labor practice strike is a strike to protest employer unfair practices.

5. Economic strikes* are strikes over economic issues, such as grievances or a new

contract.

*Economic strike is a strike over economic issues such as a grievance or a new contract.

6. Economic strikers can be permanently replaced by the employer.

1. Economic strikers who have not been permanently replaced may

vote in any election during the strike, but economic strikers who

2. The employees hired to replace economic strikers may vote if they

are permanent replacements—that is, if the employer intends to

2. Representation Elections

1. Within seven days after the regional director approves a consent election or directs that an

election be held, the employer must file an election eligibility list with the regional office. This

2. Defining Laboratory Conditions*

3. Defining Captive-Audience Speeches *

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 13

*Captive-audience speech is a meeting or speech held by the employer during working hours and which

employees are required to attend.

1. Actions by the employer, union, and even third parties can violate the laboratory

*Twenty-four-hour silent period is the twenty-four-hour period prior to the representation election, during

which the parties must refrain from formal campaign meetings.

3. If either party believes the election laboratory conditions were violated, that party

*Decertification petition is a petition stating that a current bargaining representative no longer has the support

of a majority of the employees in the bargaining unit.

2. An employer is not permitted to file a decertification petition; the Board will dismiss

*Union shop clause is a clause in an agreement requiring that all present and future members of a bargaining

unit to be union members.

5. Acquiring Representation Rights Through Unfair Labor Practice Proceedings

6.

1. Unfair labor practice charges filed with the Board while representation proceedings

are pending may invoke the Board’s blocking charge policy.

CASE 13.2 NATIONAL STEEL SUPPLY, INC. AND INTERNATIONAL BROTHERHOOD OF

TRADE UNIONS, LOCAL 713

344 NLRB No. 121, 2005 WL 1564867 (N.L.R.B.) (2005)

Facts: In response to unfair labor practice charges filed by the union, Local 713, the Administrative Law

Judge (ALJ) held that the employer had committed unfair labor practices during a union organizing

campaign by unlawfully interrogating employees, discharging an employee because of his union activities,

and unlawfully discharging and refusing to reinstate the twenty-seven employees (out of a bargaining unit

of thirty-one employees) who engaged in a strike to protest the employer’s illegal actions. The ALJ also

recommended that the NLRB issue a bargaining order under Gissel Packing as a remedy for the unfair labor

practices committed by the employer. The employer then sought review of the ALJ decision by the NLRB.

Issue: Is a bargaining order the appropriate remedy in light of the unfair labor practices committed by the

employer here?

Decision: Yes. The NLRB here held that the violations were sufficiently outrageous and pervasive to

5. Other Bargaining Order Remedy Issues

1. In Conair Corp. v. NLRB, the U.S. Court of Appeals for the D.C. Circuit held

that it was inappropriate for the Board to issue a bargaining order where the

6. Employer Response to Union Recognition Demands

1. In Linden Lumber Div., Summer & Co. v. NLRB, the U.S. Supreme Court

held that an employer who receives a request for voluntary recognition from

2. If the employer does engage in unfair labor practices after receiving the

union’s request for recognition, the union is free to seek a Gissel-type

bargaining order from the NLRB as a remedy.

ETHICAL DILEMMA

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EMPLOYEE UNION SUPPORT: TO SURVEY OR NOT TO SURVEY?

You are the human resource manager at Southwestco, a small manufacturing company. The office clerical

and technical employees at Southwestco are not unionized, but the production employees are. You have

QUESTION:

The Ethical Dilemma deals with the issue of whether the employer should recognize the union based on its

claim of majority support. As indicated by the Linden Lumber case, as long as the employer does not commit

any unfair labor practices, and does not have independent knowledge of the union’s majority support, the

employer has no legal obligation to recognize the union. Arguments for recognition are that it would avoid

a lengthy and costly legal process, and would set a positive tone to the relationship with the union.

Arguments against recognition are that there is no legal requirement to do so, and that recognition could be

a violation of S.8(a)(2) if the union did not actually have majority support.

ANSWERS TO END OF CHAPTER PROBLEMS

QUESTIONS

2. The appropriate bargaining unit is the group of employees for whom the union acquires

representation rights; it is the union’s basic constituency. The Board defines the appropriate

3. The contract bar rule is a NLRB policy that holds that the Board will not accept a petition seeking a

representation election for a unit of employees who are presently covered by a valid collective

agreement. The exceptions to the contract bar rule allow a petition to be filed during the “window”

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 13

4. Economic strikers are eligible to vote in a representation election, even if they have been

permanently replaced by the employer, for 12 months from the start of the strike, provided they have

not found other substantially equivalent, full-time employment. If they have not been replaced, the

5. An employer must recognize a union requesting voluntary recognition when the employer has

CASE PROBLEMS

6. The NLRB held that the union was not defunct because of its willingness to continue to represent

the employees; there was no evidence that the union was called upon and failed to act on the

7. The Court refused to enforce the Board’s order, and held that the incidents prior to the election

8. The union could argue that the employees who are relatives of the employer have a different interest

from the other employees and are likely to be aligned with management. The employer can argue

9. The jurisdictional issue to be addressed is whether the NLRB can claim jurisdiction over employers

in a U.S. trust territory⎯are they within the NLRA? The Board held that the trust islands were

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10. The Board must first consider whether the professional employees, by majority vote, agree to be

included with nonprofessional employees in the same unit. The Board also needs to consider the

similarity of working conditions (“community of interests”) for the professional, service, and

11. The Board needed to consider the degree of independent authority exercised by the nurses in order

to determine whether they are managerial or professional. In order to be managerial, the employees

12. The Board ordered that a new election be held. The multilingual ballots were held to be severely

defective⎯the flaws in translation and the difficulty in reading the ballots undermined the election.

13. The Board will regard a ballot with a mark in only one box, despite some irregularity, as a clear

14. The Fifth Circuit dismissed the challenge and enforced the Board’s order that the employer

15. The Sixth Circuit held that the union petition was not a poll; therefore, the dismissal of the objections

HYPOTHETICAL SCENARIOS

16. The parking lot attendants are guards within the meaning of Section 9(b)(3). They perform the

typical functions of security personnel. Therefore, they should be in a separate bargaining unit. The

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17. The union has violated the NLRB election conditions. The union’s reduction of initiation fees was

not permissible even though the waiver was available to all employees; it was still conditioned

18. In order for the workers to get the NLRB to hold a decertification election, they must file a

decertification petition under Section 9(c)(1) of the act, asserting that “the individual or labor

19. It is possible that student’s responses may vary on this question. The NLRB may want to sever

glassblowers from the production bargaining unit because the glassblowers do not share a

community of interests in regards to wages, skills, training, and qualifications. They work in a

20. Unlike representation elections and decertification elections, which are determined by a majority

of the votes actually cast, deauthorization elections require that a majority of the members in the