An employee or group of employees, or any individual or labor organization acting in the employees’ behalf, may file a representation petition under Section 9(c)(1)(A) of the Act. The Board is required to investigate any such petition which alleges that a “substantial number’’ of the employees desire an election, whether it is for certification or decertification. The Board has adopted the administrative rule that 30 percent constitutes a “substantial number.’’ Statements of Procedure, Section 101.18(a). This 30-percent rule applies to all representation petitions filed by or in behalf of a group of employees.
The purpose of this requirement is to enable the Board to
determine whether or not the filing of a petition warrants the holding of an
election without the needless expenditure of Government time, efforts, and
funds. River City Elevator Co., 339 NLRB 616 (2003); Pike Co., 314 NLRB 691 (1994); S. H.
Kress Co.,
137 NLRB 1244, 1248 (1962); and O. D.
Jennings &
Co., 68 NLRB 516 (1946). The showing-of-interest requirement is based on
public policy and therefore may not be waived by the parties. Martin-Marietta Corp.,
139 NLRB 925 fn. 2 (1962). The administrative determination of a showing of
interest has no bearing on the issue of whether a representation question
exists.
The showing of interest is an administrative matter not subject to litigation. O. D. Jennings & Co., supra; River City Elevator Co., supra; General Dynamics Corp., 175 NLRB 1035 (1969); Allied Chemical Corp., 165 NLRB 235 (1967); and NLRB v. J. I. Case Co., 201 F.2d 597 (9th Cir. 1953).
Specific issues which pertain to the showing of interest are treated below.
A showing must be submitted within 48 hours of the filing of the petition, but in no event later than the last day a petition might timely be filed. Statements of Procedure, Section 101.17; Mallinckrodt Chemical Works, 200 NLRB 1 (1972). CHM section 11024.1. See also Excel Corp. (Excell II), 313 NLRB 588 (1993), where the Board on reconsideration of its earlier decision at 311 NLRB 710 (1993) (Excel I), refused to permit additional showing to be filed after the window period. The Board in Excel II characterized its decision in Excel I as “an ill-advised departure’’ from precedent and the Board’s Rules.
An exception to this rule, based on the special
circumstances involved, was made in Rappahannock
Sportswear
When the petitioner broadens its original unit to one that
is substantially larger and different from that originally petitioned for, the
broadened unit request is treated like a new petition and must be supported by
an adequate showing of interest. Centennial
Development
In Metal Sales Mfg., 310 NLRB 597 (1993), the Board permitted the late filing of an affidavit attesting to the dates the employees signed the showing of interest.
The most commonly submitted type of evidence of interest consists of cards on which employees apply for membership in the labor organization and/or authorize it to represent them.
Cards which were neither applications for membership nor
specific authorizations to represent, but merely asked the Board to conduct an
election, were held to suffice as evidence of interest when the cards stated
that the purpose of seeking an election was for the union to be certified. Potomac Electric
Other types of evidence of interest are also used,
particularly when intervention is sought. Thus, a current contract constitutes
evidence of interest. Brown-Ely
It is clear, of course, that a contract found in an unfair labor practice proceeding to have been executed in violation of Section 8(a)(2) of the Act may not serve as evidence of interest. Bowman Transportation, 120 NLRB 1147 fn. 7 (1958); see also Halben Chemical Co., 124 NLRB 1431 (1959).
In John Deklewa & Sons, 282 NLRB 1375 (1987), the Board announced new
unfair labor practice rules with respect to 8(f) prehire agreements in the
construction industry. The Board noted that the second proviso to Section 8(f)
provides that these agreements do not bar an election petition, and held that
during the term of an 8(f) agreement, no showing of interest is required for an
RM election petition filed by the signatory employer. The Board has decided to
apply the same rule to an RC petition filed by the signatory union during the
term of an 8(f) agreement or shortly after the expiration.
In Pike
For other construction industry issues see sections 9-211, 9-1000, 10-600–10-700, and 15-130.
Issues are sometimes raised as to whether an authorization designating one labor organization may serve as valid evidence of interest for another.
The general policy has been stated as follows: “The Board has always accepted showing-of-interest cards designating a Labor Organization affiliated with . . . the labor organization appearing on the ballot.’’ New Hotel Monteleone, 127 NLRB 1092, 1094 (1960) (see also cases in fn. 6 of this decision), and Monmouth Medical Center, 247 NLRB 508 (1980). Note, however that in Woods Quality Cabinetry Co., 340 NLRB No. 163 (2003), the Board set aside an election where the petitioner was incorrectly designated as an affiliate of the AFL–CIO.
A designation of a parent organization is a valid
designation of its affiliate. Thus, cards designating the AFL–CIO have been
held to be valid evidence of interest for an international union affiliated
with the AFL–CIO. Up-To-Date Laundry,
124 NLRB 247 (1959); see also McDonald
Corp.,
83 NLRB 427 fn. 2 (1949); General Shoe Corp., 113 NLRB 905, 905–906 (1955). Similarly, cards
designating an international have been accepted as valid evidence submitted by
one of its locals.
Two or more labor organizations may join together to file
a petition as joint petitioners or to intervene in a proceeding. Authorization
cards designating only one petitioner are sufficient to establish the interest
of joint petitioners, and it is immaterial whether the cards indicate a desire
for joint or individual representation.
“We are persuaded that when 30 percent of the employees in a bargaining
unit have indicated a desire to be represented by one or the other or two
unions, and the two unions then offer themselves as joint representatives of
the employees, the petitioning unions have demonstrated enough employee
interest in their attaining representative status to warrant holding an
election.’’
In such circumstances, the jointly acting labor organizations are jointly certified if successful in the election, and the employer may then insist that they, in fact, bargain jointly for the employees in question in a single unit. Mid-South Packers, supra. If testimony at the hearing indicates that in fact the joint petitioners intervened to represent groups of employees separately, the Board will dismiss the petition. Automatic Heating Co., 194 NLRB 1065 (1972); Suburban Newspaper Publications, 230 NLRB 1215 (1977).
For further discussion of joint representation see section 6-370, infra.
Evidence of interest consisting of authorizations from employees must, of course, bear the valid signatures of such employees. Signatures are presumed to be genuine unless there is some indication to the contrary.
An employee’s subjective state of mind in signing a union
card cannot negate the clear statement on the card that the signer is
designating the union as that employee’s bargaining agent.
Issues have arisen involving the validity of designations
because of alleged supervisory participation in securing the showing of
interest and allegations to that effect have been found meritorious where in
fact such participation existed. Thus, when a supervisor participated in
obtaining the signatures of all the employees whose cards were submitted as
evidence of interest, the petition was dismissed. Southeastern Newspapers,
129 NLRB 311 (1961). In that case, the employer’s
motion to dismiss was treated “as a request for administrative investigation of
the petitioner’s showing.’’ Cards signed at a meeting at which a supervisor
vigorously espoused the petitioner’s cause were not counted as valid evidence
of interest. Wolfe Metal
Products Corp., 119 NLRB 659 (1958). See also Desilu Productions, 106 NLRB 179 (1953). More recently, the Board has
characterized this policy as a “bright line rule” of excluding all cards
directly solicited by a supervisor. Dejana
Industries, 336 NLRB 1202 (2001).
In Catholic Community Services, 254 NLRB 763 (1981), the Board found no supervisory taint when supervisors and unit employees signed a letter endorsing the need for a union and an alleged supervisor sat at petitioner counsel’s table during the representation hearing. In a decertification proceeding, where the supervisor is a member of the bargaining unit and there is no showing that his/her solicitation of the showing of interest was at the behest of the employer, the Board will not find taint of the showing of interest. Los Alamitos Medical Center, 287 NLRB 415, 417 (1987).
In a case which the Regional Director referred to the Board for an administrative determination of a showing of interest, the Board found that the individual alleged to have participated in obtaining all the authorization cards was not a supervisor within the meaning of the Act “during the period in which the authorization cards were solicited,’’ and consequently his participation did not taint or otherwise cast a doubt on the uncoerced nature of the showing of interest. L. A. Benson Co., 154 NLRB 1371 (1965). See also Silver Spur Casino, 270 NLRB 1067 (1984).
See also sections 24-110 and 24-328 for discussion of supervisory solicitation of support for union as objectionable conduct.
A showing of interest is not subject to attack on the ground that the cards on which it is based have been revoked or withdrawn. “Such an attack,’’ said the Board, “has no bearing on the validity of the original showing but merely raises the question as to whether particular employees have changed their minds about union representation. That question can best be resolved on the basis of an election by secret ballot.’’ General Dynamics Corp., 175 NLRB 1035 (1969). See also Allied Chemical Corp., 165 NLRB 235 fn. 2 (1967); Vent Control, Inc., 126 NLRB 1134 (1960).
Cards signed for more than one labor organization may be counted in determining showing of interest. “There is no reason why employees, if they so desire, may not join more than one labor organization.’’ The election will determine which labor organization, if any, the employees wish to represent them. Brooklyn Gas Co., 110 NLRB 18, 20 (1955).
The general rule is that the individual authorization must be dated and must be current. A. Werman & Sons, 114 NLRB 629 (1956). The requirement for dating the showing may be accomplished by affidavit either submitted with the showing itself or timely filed thereafter. Dart Container Corp., 294 NLRB 798 (1989). See also Metal Sales Mfg., 310 NLRB 597 (1993), where the Board permitted the late filing of an affidavit attesting to the dates of the showing.
Questions have arisen, however, as to what is meant by
“current.’’ Thus, it has been held that cards dated more than a year prior to
the filing of the petition were sufficiently current. Carey Mfg. Co.,
69 NLRB 224 fn. 4 (1946); see also Northern
Trust
Under certain circumstances, labor organizations are permitted to intervene after the close of the hearing. However, they must meet the requirements for an intervenor’s showing of interest as of the time of the hearing in the case. Gary Steel Products Corp., 127 NLRB 1170 fn. 3 (1960); see also Transcontinental Bus System, 119 NLRB 1840 fn. 3 (1958); United Boat Service Corp., 55 NLRB 671 (1944). See also Crown Nursing Home Associates, 299 NLRB 512 (1990).
As already indicated, a showing of 30 percent of the
employees in the appropriate unit is normally required of a petitioner. Pearl Packing
Co., 116 NLRB 1489, 1489–1490 (1957); see also S. H. Kress &
The Board has rejected contentions that a larger showing
of interest should be required when the petitioner has previously lost several
elections. Sheffield Corp., 134 NLRB 1101 fn. 4 (1962); Barber-Colman
A showing of interest of less than 30 percent was found to be adequate in which (1) the petitioner had represented most of the classifications in the requested unit for 20 years; (2) its last contract had contained a valid union-security provision requiring the employees to become and remain members; and (3) the Board, in refusing to resolve the unit issues pursuant to a motion for clarification, had already advised the petitioner that it would entertain a petition for certification. FWD Corp., 138 NLRB 386 (1962) (see also cases cited in fn. 3 of this decision).
Board practice does not require a new showing of interest in the case of expanding units. Avondale Shipyards, 174 NLRB 73 (1969).
No evidence of interest is required when the labor
organization seeks to add employees to an existing certified unit as an
accretion to such unit. Kennametal, Inc.,
132 NLRB 194 fn. 4 (1961). In Duke Power
A change in ownership of the employer during the organizing campaign does not require a new showing of interest. New Laxton Coal Co., 134 NLRB 927 (1961).
Despite the statutory provision noted above requiring that the petition be supported by a substantial number of employees, Section 8(b)(7)(C) of the Act provides that, when a petition is filed in conjunction with an unfair labor practice charge alleging a violation of this section, the Board shall direct an election in the appropriate unit without regard to the absence of a showing of substantial interest. Accordingly, in these circumstances, no showing of interest is required.
See section 7-150 for further information.
On the other hand, Section 9(e)(1) of the Act establishes a specific 30-percent requirement in support of petitions to rescind a labor organization’s authority to enter into collective-bargaining contracts requiring membership in the union as a condition of employment, as set forth in Section 8(a)(3) of the Act.
When the petition is filed by an employer, pursuant to Section 9(c)(1)(B) of the Act, no evidence of representation on the part of the labor organization claiming a majority is required. Felton Oil Co., 78 NLRB 1033, 1035–1036 (1948). This is true of any intervenor claiming to represent a majority of the employees in the unit involved in the petition. See also General Electric Co., 89 NLRB 726, 726–727 (1950). It is also true even if the employer seeks to withdraw its petition but a union claiming to represent a majority in the unit desires an election. International Aluminum Corp., 117 NLRB 1221 (1957).
See also discussions of 8(f) agreements under section 5-210 in this chapter, supra.
Administratively, the Board has adopted the following policies with respect to the showing of interest of intervenors:
(a) If an intervenor has less than a 10-percent showing of interest and the other parties are willing to consent to an election, the consent-election agreement is approved, and the intervenor has the right to appear as a choice on the ballot.
(b) If an intervenor has more than a 10-percent showing and is unwilling to consent to an election, even though the other parties are willing, a consent-election agreement will not be approved, and the matter must go to hearing (unless dismissal is required by some other factor).
(c) “Intervention’’ based on more than 30-percent showing amounts to a cross-petition which permits the union to seek a unit differing in substance from that of the original peitition.
An intervenor seeking a unit different from that sought by the petitioner must make a petitioner’s showing of interest in the unit it seeks. Great Atlantic & Pacific Tea Co., 130 NLRB 226, 226–227 (1961).
When the petitioner sought an election in a single unit of
employees in two departments and the intervenor sought to represent the
employees in separate departmental units, but the intervenor had failed to make
the necessary 30-percent showing among the employees in either department, the
Board did not direct elections in separate units, but placed the intervenor’s
name on the ballot in the overall unit since it had made some showing of
interest among the employees sought. Southern
Radio
& Television Equipment Co., 107 NLRB 216, 216–217 (1954). When
intervention was sought for the purpose of securing a separate election in a
craft unit, severing it from an existing larger unit, the union was required to
make a 30-percent showing of interest in the craft unit. Boeing Airplane
If the petitioner lacks a sufficient interest in a unit found
appropriate, but an intervenor possesses a petitioner’s interest and wishes to
proceed to an election, the petition will not be dismissed, nor will a
withdrawal request be granted, but the intervenor will be treated as a
cross-petitioner. Borden
In Crown Nursing Home Associates, 299 NLRB 512 (1990), the Board held that an intervenor has the right to make an additional showing of interest when the original petitioner sought to withdraw because another incumbent union had served a contract. The additional showing was required to be submitted timely but was not required to predate the execution of the contract.
See also section 3-830, supra.
In all cases, the showing of interest must relate to the
bargaining unit involved. Esso Standard
Oil
It is apparent that the computation as to the showing of
interest must be made at some certain date or dates. Normally, this is as of
the date the petition was filed, or the showing may be computed from the
payroll period immediately preceding the filing of the petition.
When the unit found appropriate differs from that sought
and a new check of the showing of interest is necessary, the
In seasonal industries, the showing of interest may be
made as of the time of filing the petition, even though the number of employees
at such time is only a small percentage of the complement at the seasonal
peak. J. J. Crosetti
Unusual circumstances occasionally require a different policy. Thus, when the petition was prematurely filed (in a nonseasonal industry) and a later election was directed, a current showing of interest was required. Mrs. Tucker’s Products, 106 NLRB 533, 535 (1953). When the petitioner had been found in an unfair labor practice proceeding to have received employer assistance in violation of Section 8(a) (2), an adequate showing of interest had to be made with cards obtained after the petitioner’s illegal status as the representative of the employees had been “effectively cut off.’’ Halben Chemical Co., 124 NLRB 1431 (1959). See also Bowman Transportation, 120 NLRB 1147, 1150 fn. 7 (1958); and Share Group, Inc., 323 NLRB 704 (1997).
In Gaylord Bag
“An integral and essential element of the Board’s showing-of-interest rule is the nonlitigability of a petitioner’s evidence as to such interest. The Board reserves to itself the function of investigating such claims, and in its investigation it endeavors to keep the identity of the employees involved secret from the employer and other participating labor organizations. . . . The Board’s requirement that petitions be supported by a 30-percent showing of interest gives rise to no special obligation or right on the part of employers.’’ S. H. Kress & Co., 137 NLRB 1244, 1248–1249 (1962).
In keeping with these policies, a hearing officer is
barred by the Board’s Rules and Regulations from producing the evidence of
interest. Plains Cooperative Oil Mill,
123 NLRB 1709, 1711 (1959), and the Board refused to supply cards in response
to a subpoena.
When a party contends that a showing of interest was
obtained by fraud, duress, or coercion, the proper procedure is to submit to
the Regional Director any proof it might have. Perdue Farms, Inc., 328 NLRB 909 (1999); and Pearl Packing Co., supra.
See also Columbia Records,
125 NLRB 1161 (1960); and Waste Management of New York, 323 NLRB 590
(1997). Such conduct may also be considered as
objectionable. See St. Peter More-4, 327 NLRB 878 (1999), and Millsboro Nursing & Rehabilitation Center, 327 NLRB 879 (1999). Similarly, any attack on the genuineness of
signatures should be made by submitting available evidence to the Regional
Director within 5 days after the close of the hearing.
When evidence is submitted to the Regional Director which gives reasonable cause for believing that the showing of interest may have been invalidated by fraud or otherwise, an administrative investigation will be made. See, for example, Perdue Farms, supra; Globe Iron Foundry, 112 NLRB 1200 (1955); Georgia Kraft Co., supra. However, an administrative investigation will not be made unless the allegations of invalidity are accompanied by supporting evidence. Goldblatt Bros., 118 NLRB 643 fn. 1 (1957). Thus, affidavits by more than 70 percent of the unit to the effect that the affiants had not authorized the petitioner to represent them warranted an administrative investigation. Globe Iron Foundry, supra. Compare General Shoe Corp., 114 NLRB 381, 382–383 (1956), in which such denials were from less than 70 percent of the unit.
A request for a check of the showing to determine its quantative sufficiency must be made timely, viz. “only at or around the petition is filed” Community Affairs, Inc., 326 NLRB 311 (1998).
The above administrative procedures parallel, but do not impinge on, the general rule that the Board normally refuses to receive evidence in representation cases that signatures on cards were unlawfully obtained or were otherwise invalid or fraudulent, but that such issues may be litigated, on appropriate charges and a complaint, in an unfair labor practice proceeding. Dale’s Super Valu, 181 NLRB 698 (1970). See also Radio Corp. of America, 89 NLRB 699 fn. 5 (1950); White River Lumber Co., 88 NLRB 158 fn. 3 (1950); Clarostat Mfg. Co., 88 NLRB 723 fn. 2 (1950).