The granting of a petition for an election is conditioned by Section 9(c)(1) of the Act on a finding that a question of representation exists. This depends first on whether the petition filed with the Board has a proper basis. The ultimate finding of the existence of a representation question hinges on considerations such as the qualifications of the proposed bargaining representative, whether an election is barred by a contract or a prior determination, the appropriateness of the proposed bargaining unit, and other factors. These are discussed under appropriate headings in chapters which follow. The general rules affecting the representation question are discussed here.
Normally, a question concerning representation is found to
exist when the union has made a demand for recognition which the employer has
refused. However, shortly after the adoption of the 1947 amendments to the Act,
the Board rejected a contention that Section 9(c)(1) of the amended Act made
such a demand and refusal mandatory prior to the filing of a petition. A prior
demand and refusal, it was decided, is not a jurisdictional prerequisite to
proceedings on the merits in a representation case. Advance Pattern
The demand for recognition need not be made in any
particular form. American Lawn
Mower
A petition may be entertained even though a union has been
voluntarily recognized as the employees’ bargaining agent, since only through
certification can the union secure whatever protection is afforded under
Section 8(b)(4) as well as the benefits of the administrative “one year rule’’
developed by the Board. General Box Co.,
82 NLRB 678 (1949); Pacific States Steel Corp., 121 NLRB 641 (1958); and Central Coat,
Apron, & Linen Service, 126 NLRB 958 (1960). See also Food &
Commercial Workers Local 1996 (Visiting Nurse Health Systems), 336 NLRB 421
(2001) (dismissing 8(b)(4) case when charged union
was certified). “Even recognition of and a current contract with a petitioning
union does not bar a petition for certification by that union.’’ General Dynamics
Corp., 148 NLRB 338 (1964); Duke Power Co.,
173 NLRB 240 (1969); and Empire Dental
Co., 219 NLRB 1043 (1975). Moreover, an employer, as well as a recognized
bargaining agent, is entitled to the benefits of certification under what has
become known as the General Box rule,
even though the employer has recognized the union for many years.
In adopting the General Box rule, the Board reasoned that the benefits of certification would provide greater protection to an already recognized union against raids of competing unions. For this reason, a petition filed by a recognized uncertified labor organization is treated by the Board as an exception to its contract-bar rules. Once a petition is filed under the General Box exception, it is viewed by the Board the same as any other petition that raises a question concerning representation. Thus, the contracting union’s contract cannot thereafter act as a bar, and other unions are permitted to intervene. Ottawa Machine Products Co., 120 NLRB 1133 (1958); Puerto Rico Cement Corp., 97 NLRB 382 (1951); and McGraw-Edison Co., 199 NLRB 1017 (1972).
When, however, it was found that the petitioner sought an
election for the precise purpose of bringing in the intervenor as bargaining
agent for the employees, not for the benefit of obtaining a certification, the
effect was to establish a purpose behind the filing of the petition other than
certification. In these circumstances, the Board concluded that there was no
basis for applying the General Box
exception to the petition and no reason for removing the contract between the
petitioner and the employer as a bar. McGraw-Edison
When, however, the unions involved were legitimate rivals
contesting for the right to represent the sought-after employees, the situation
was considered different and elections were directed, despite the fact that the
petitioner sought to withdraw its petition after intervention occurred. Jefferson City
Cabinet
Often the Board is confronted with requests that it consider the decision of an arbitrator or of another forum in determining whether there is a question concerning representation. Alternatively, parties will often ask that the Board stay its proceedings pending a decision by such a tribunal. As the paragraphs that follow reflect, the Board’s general policy is to refuse such requests. The existence of these proceedings, however, may have some bearing on whether there is a question concerning representation or on the processing of the “R’’ case.
The pursuit of representation rights through the grievance
arbitration machinery of a contract does not raise a question concerning
representation—and hence an RM petition will not lie—if the union is merely
seeking those rights as an accretion to the contract unit. Woolwich, Inc., 185 NLRB 783 (1970). In Woolwich,
the Board distinguished accretion from attempts to secure representation in a
separate bargaining unit. In the latter situation the demand for recognition
through the means of a grievance will raise a question concerning
representation. See also United Hospitals,
249 NLRB 562 (1980), and Valley Harvest
Distributing, 294 NLRB 1166 (1989). But if a union seeks to add a group
only as an accretion, and an arbitration award
improperly finds the accretion, the Board will consider the matter,
albeit usually in a UC rather than an RM context. Williams Transportation
The Board’s deferral policies enunciated in Collyer Insulated
Wire, 192 NLRB 837 (1971), and Dubo
Mfg.
Corp., 142 NLRB 431 (1963), in which the Board will either require
grievance arbitration (Collyer), or
stay its proceedings pending resolution of an existing grievance (Dubo), are not applicable to issues
which are representational. See Marion
Power
Shovel Co., 230 NLRB 576 (1977); Massachusetts
Electric Co., 248 NLRB 155 (1980); Super Value Stores, 283 NLRB 134 (1987); Williams Transportation Co., supra; and Tweedle
Litho, Inc., 337 NLRB 686 (2002).
The Board has indicated that it may permit representation questions to be resolved in an arbitration forum in circumstances arising out of neutrality agreements or after acquired clauses. Central Parking System, 335 NLRB 390 (2001). But see discussion of Shaw’s Supermarkets, 343 NLRB No. 105 (2004), infra at section 9-620.
The Board has also found that a union is estopped from utilizing the Board’s processes where it sought to use the benefits of its contract while seeking to avoid its arbitration provision to resolve a unit question. Verizon Information Systems, 335 NLRB 558 (2001). See also Tweedle Litho, supra. The Board may, however, hold postelection proceedings in abeyance pending determination of contractual grievance and arbitration procedures. In doing so the Board has stated that deferral would “avoid inconsistent outcomes and would respect the parties’ decision to resolve disputes through the arbitration machinery.” Morgan Services, Inc., 339 NLRB 463 (2003), and cases cited there.
See also sections 9-620, 12-500, and 23-113.
These agreements present two different issues for the Board. (1) Should it defer to a decision of a no-raid tribunal set up by labor organizations, and (2) should the Board stay its processes during the pendency of such procedures? As to the former, the Board has responded in the negative primarily because it will not defer the resolution of a question concerning representation to a private dispute resolution mechanism. See Cadmium & Nickle Plating, 124 NLRB 353 (1959); Jackson Engineering Co., 265 NLRB 1688, 1701 (1982); Anheuser-Busch, Inc., 246 NLRB 29 (1979); and Great Lakes Industries, 124 NLRB 353 (1959), and Weather Vane Outerwear Corp., 233 NLRB 414 (1977). See VFL Technology Corp., 329 NLRB 458 (1999), for a brief description of these proceedings and of a disclaimer arising out of one of them. The Board does authorize its Regional Directors to stay the processing of a representation petition for 30 days during the pendency of a no-raid proceeding. See CHM sections 11017–11019.
A petition is premature, and therefore raises no question
concerning representation, when the future scope and composition of the unit is
in substantial doubt.The petition will not be held in abeyance pending the
hiring of a representative and substantial employee complement. K-P Hydraulics Co., 219 NLRB 138 (1975);
However, in an industry in which projects are continually being started and completed at different times, and different employees may be hired for each job, the existence of a nucleus of employees who obtain continuous employment is sufficient for the holding of a representation election. S. K. Whitty & Co., 304 NLRB 776 (1991); Oklahoma Installation Co., 305 NLRB 812 (1991); Queen City Railroad Construction, 150 NLRB 1679 (1965); Dezcon, Inc., 295 NLRB 109 (1989); and Wilson & Dean Construction Co., 295 NLRB 484 (1989).
Similarly, when an employer often hired extra employees
during its peak business season but operated continuously on a year-round basis
with a substantial complement of year-round employees, the Board held that the
business was “cyclical in nature, rather than the kind of seasonal business
which requires postponement of the election until the employee complement is at
its peak.’’ Baugh Chemical
Co., 150 NLRB 1034 (1961); Mark Farmer
A question concerning representation found by the Board
continues to exist after a successor employer has taken over the enterprise
when there has been no change in any essential attribute of the employment
relationship.
Petitions filed under the circumstances described in the first proviso to Section 8(b)(7)(C) of the Act are specifically exempt from the requirements of Section 9(c)(1). Section 8(b)(7)(C) provides that it is an unfair labor practice for a union to picket an employer for the purpose of forcing it to recognize or bargain with an uncertifled union, or forcing employees to select the union as their collective-bargaining representative, unless a petition is filed under Section 9(c) within 30 days of the commencement of the picketing. Under the first proviso to Section 8(b)(7)(C), when a petition is filed in these circumstances, the Board directs an election in the appropriate unit without regard to the provision of Section 9(c)(1) or the absence of a showing of interest on the part of the union. See Rules 102.77; Statements of Procedure, Sections 101.22 to 101.25 and CHM sections 10244.3 and 11312.1k.
The basic ground rules and conditions necessary to trigger the 8(b)(7)(C) expedited election machinery are spelled out in C. A. Blinne Construction Co., 135 NLRB 1153 (1963). Thus, as indicated by the Board, Section 8(b)(7)(C) represents a compromise between a union’s picketing rights and an employer’s right not to be subject to blackmail picketing. Unless shortened by a union’s resort to violence, see Eastern Camera Corp., 141 NLRB 991 (1963), 30 days was defined as a reasonable period, absent a petition being filed, for the union to exercise its rights. Picketing beyond 30 days is an unfair labor practice. The filing of a petition stays the 30-day limitation and picketing may continue during processing of the petition.
As the Board made clear in Blinne, however, a union cannot file a petition, engage in recognitional picketing, and obtain an expedited election unless an 8(b)(7)(C) charge is filed. A union cannot, of course, file an 8(b)(7)(C) charge against itself. Blinne, supra at 1157 fn. 10.
In short, the expedited election procedure represents a compromise which seeks to balance competing rights. This compromise extends an option to an employer faced with recognition or organization picketing. Thus, upon the commencement of such picketing, an employer may file an 8(b)(7)(C) charge.
By the plain language of the first proviso to Section
8(b)(7)(C), the expedited election procedure is available only when a timely petition if filed, i.e., no more than 30 days
after the start of picketing for an 8(b)(7)(C) object. Petitions filed after 30 days are processed under normal
“R” case procedures and do not serve as a defense to 8(b)(7)(C) picketing which
has exceeded 30 days. See Crown Cafeteria,
135 NLRB 1153, 1185 fn. 4 (1962);
Although a question of representation may be brought to the Board’s attention by the filing of an employer petition, the question is raised only by an affirmative claim of one or more labor organizations asserting representation of a majority of employees in an appropriate unit. Amperex Electric Corp., 109 NLRB 353, 354 (1954). Thus, a finding of a representation question is predicated on a union claim of representative status. Westinghouse Electric Corp., 129 NLRB 846 (1961); Bowman Transportation, 142 NLRB 1093 (1963).
Union conduct sufficient to constitute an affirmative
claim for recognition may take many forms. It may, for example, be picketing (Bergen Knitting
Mills, 122 NLRB 801, 802 (1959)), and Rusty
Scupper,
215 NLRB 201 (1974), including picketing for an 8(f) agreement, Elec-Comm, Inc.,
298 NLRB 605, 706 fn. 5 (1990), or a demand for a new contract (Mastic Tile
Corp., 122 NLRB 1528 (1959)). Such picketing is to be distinguished from a
mere request that an employer sign an 8(f) agreement. In
In New Otani Hotel & Garden, 331 NLRB 1078
(2000), the Board found that picketing and boycotts,
accompanied by requests for a neutrality card check agreement do not
constitute a demand for recognition and thus do not warrant processing an RM
petion. Accord: Brylane, L.P., 338 NLRB 538 (2002). Where however such a demand
is accompanied by evidence of a current organizing campaign, the Board will
find a recognitional objective. Rapera,
Inc., 333 NLRB 1287 (2001).
A work assignment dispute does not, however, raise a
question concerning representation A. S.
Abell
In Windee’s Metal Industries, 309 NLRB 1074 (1992), the Board found that the informational picketing there did not amount to a “claim to be recognized’’ and reaffirmed the longstanding position that Section 9(c)(1)(B) requires evidence of a “present demand for recognition’’ in order to process the RM petition. The Board described the legislative history of Section 9(c)(1)(B) and the history of its interpretation by the Board. Additionally, the Board distinguished the facts in Windee’s from those cases in which the union engages in postdisclaimer picketing together with a present demand for recognition. In this latter circumstance, the Board will process the RM petition. (See also sec. 8-100, Disclaimer.)
For related discussion, see section 9-620.
When an employer petitions the Board for an election as a
means of questioning the continued majority status of a previously certified
incumbent union, it must, in addition to showing the union’s claim for
continued recognition, demonstrate a basis for seeking an election. Prior to its decision in Levitz Furniture
Co., 333 NLRB 717 (2001), the Board required that the employer show “by
objective considerations that it has some reasonable grounds for believing that
the union has lost its majority status.’’ U.S.
Gypsum Co., 157 NLRB 652, 656 (1966). This was known as the U.S. Gypsum rule and before its
promulgation, an employer-petitioner under Section 9(c)(1)(B) had to show only
that the union had claimed representative status in the unit and that the
employer had questioned it. In Levitz, the Board lowered the standard
for filing an RM petition in these circumstances to a “good-faith uncertainty”
that a majority of the unit employees continue to support the union. In doing so, the Board abandoned the unitary
standard that it had applied for withdrawal of recognition, filing RM petitions
and polling. See
In practice, the question of “good-faith uncertainty” is treated as an administrative determination of the Regional Director, and is therefore not litigated at the hearing. The thrust of such determination is whether the employer is uncertain of the union’s majority status, and not whether such status is in question. See Levitz, slip op. at 11–12 and CHM section 11042.
In Levitz, the Board noted two cases in which it had not found good-faith uncertainty. See Henry Bierce Co., 328 NLRB 646, 650 (1999), enfd. in relevant part 234 F.3d 1268 (6th Cir. 2000), and Scepter Ingot Castings, Inc., 331 NLRB 1509 (2000).
Once an incumbent union has accepted a contract offer, the employer cannot challenge its majority status by filing an RM petition even though a RD or rival RC petition could be filed assuming acceptance would not otherwise be precluded by the Board’s control bar standards (chapter 9). Auciello Iron Workers, 317 NLRB 364, 374 (1995).
The subject of accretion is more fully discussed in
section 12-500, infra. A merger of two groups of employees may in certain
circumstances raise a question concerning representation. When one of the two
groups is represented and the other is not, the issue of whether there is an
accretion will depend on traditional community-of-interest matters and on
whether the represented group is larger than the unrepresented group. See Central Soya
Accretion analysis is inapplicable when the unit is fully described, i.e., defined by the work performed. See The Sun, 329 NLRB 854 (1999); Archer Daniels Midland Co., 333 NLRB 673 (2001); Premcor, Inc., 333 NLRB 1365 (2001); and Developmental Disabilities Institute, 334 NLRB 1166 (2001). In Premcor, the Board summarized its position:
Once it is established that a new classification is performing the same basic functions as a unit classification historically had performed, the new classification is properly viewed as remaining in the unit rather than being added to the unit by accretion. Accordingly, an accretion analysis in these circumstances is inapplicable.
Nor does the accretion doctrine apply where the employee
group sought to be accreted may separately constitute an appropriate bargaining
unit. Passavant
As noted above, the subject of accretions is more fully discussed at section 12-500. In addition, see discussions of accretion in section 12-600 and in chapter 21.
In NLRB v. Financial Institution, Employees, 475 U.S. 192 (1986), the Supreme Court set forth the standards for determining whether a change in the affiliation status of a certified union raises a question concerning representation. Chapter 11, section 100, infra, fully discusses the Board’s AC petition procedures and policies. Briefly, however, an affiliation will raise a representation question where there is not a substantial continuity between the pre- and postaffiliation union. See Hammond Publishers, 286 NLRB 49 (1987); Western Commercial Transport, 288 NLRB 214 (1988); City Wide Insulation, 307 NLRB 1 (1992); Service America Corp., 307 NLRB 57 (1992); Mike Basil Chevrolet, 331 NLRB 1044 (2000); Avante at Boca Raton, Inc., 334 NLRB 381 (2001); and chapter 11, section 100, infra.
An employer who agrees not to file an RM petition during the life of an 8(f) agreement will be held to its agreement and the Board will not process the petition. Northern Pacific Sealcoating, 309 NLRB 759 (1992). (See also sec. 9-600.)
To raise a valid question concerning representation, a
decertification petition need not be filed by an employee of the employer. Bernson Silk
Mills, 106 NLRB 826 (1953). However, this does not mean that a supervisor
may file a decertification petition. To permit supervisors to act as employee
representatives would defeat one of the purposes of the Act, which was to draw
a clear line of demarcation between supervisory representatives of management
and employees because of the possibility of conflicts in allegiance if
supervisors were permitted to participate in union activities with employees. Clyde J.
Merris, 77 NLRB 1375 (1948). However, when the petitioner becomes a
supervisor after the filing of the petition, the proceedings are not abated. Weyerhaeuser Timber
Thus, while ordinarily the Board does not allow the
litigation of the issue of “employer instigation of, or assistance in, the
filing of the decertification petition’’ in the representation proceeding (Union Mfg. Co.,
123 NLRB 1633 (1959)), a petition filed by one of the employer’s supervisors
cannot raise a valid question and, as a result, the issue of supervisory status
has to be determined in the decertification proceeding, if raised. Modern Hard
Chrome Service
A confidential employee may not file a decertification petition even if the employee is included in the unit. Star Brush Mfg. Co., 100 NLRB 679 (1951).
In Pan American Airways, 188 NLRB 121 (1971), the incumbent union contended that a decertification petition should not be processed because the petitioner had misled the employees into supporting the petition by holding out the prospect of a big wage increase if they would decertify the union and support the Teamsters. A question concerning representation was found, however, although the Board noted parenthetically that the Teamsters withdrew from the case after the hearing, sought no place on the ballot, and would be precluded from obtaining an election for a 12-month period after the election directed in this decision. See also Ray Brooks v. NLRB, 348 U.S. 96 (1954).
Related to the issue of who may file a decertification petition is the question of who may withdraw a petition. In Transportation Maintenence Services, 328 NLRB 691 (1999), a divided Board permitted withdrawal of the petition after the election was held, and the ballots impounded but before any counting of ballots.
See 10–800 for discussion of blocking charge rules and
decertification petitions.
The general rule is that the bargaining unit in which the
decertification election is held must be coextensive with the certified or
recognized unit. Campbell Soup Co.,
111 NLRB 234 (1955); W. T. Grant Co.,
179 NLRB 670 (1969); Bell &
Howell Airline Service Co., 185 NLRB 67 (1970); WAPI-TV-AM-FM, 198 NLRB 342 (1972); and Mo’s West,
283 NLRB 130 (1989). Mindful of the fact that Congress made no provision for
the decertification of part of a certified or recognized unit, the existing
unit normally is the appropriate unit in decertification cases. Stated
differently, a merger of units normally has the effect of destroying the
separate identity of the prior units. White-Westinghouse Corp.,
229 NLRB 667, 672 (1977). Accord: Albertson’s,
Inc., 307 NLRB 338 (1992). Compare West
Thus, when the employer, with the union’s acquiescence,
recognized and contracted with single-plant units rather than the previously
certified multiplant unit, and the Board found the single-plant unit
appropriate, a decertification election was ordered in the single-plant unit
sought. Clohecy Collision,
176 NLRB 616 (1969). And, conversely, when the long, continuous pattern of
bargaining between the union and the employer had brought about an effective
merger of the individually certified units into a multiplant contractual unit, the
Board dismissed a petition for a decertification election in one of the
originally certified units. General Electric
Co., 180 NLRB 1094 (1970); Gibbs &
Cox, Inc., 280 NLRB 953 (1986); Green-Wood
Cemetery,
280 NLRB 1359 (1986); and Wisconsin Bell,
283 NLRB 1165 (1987). See also Duke Power
In Albertson’s Inc., 273 NLRB 286 (1984), the Board directed an election in a single store unit where the employer had withdrawn from multiemployer bargaining where it had bargained on a multistore basis. The Board held that on withdrawal, the considerations for grouping the employer’s eight stores no longer existed and as the most recent agreement was for a multiemployer unit, a unit that the Board would not have found appropriate in an initial unit determination, a decertification petition will be processed as to a single store appropriate unit. Yet see Arrow Uniform Rental, 300 NLRB 246 (1990), which limited Albertson’s to a situation in which the employer’s multilocation grouping in the multiemployer unit was not one which the Board would have certified.
When a new store was recognized by the employer as an accretion to the existing multistore unit but the Board, in the absence of evidence showing that the new store had been effectively merged into the existing unit, found it to be a separate appropriate unit, a decertification petition was entertained in that single store unit. Food Fair Stores, 204 NLRB 75 (1973).
When the union is the currently recognized majority
representative of a mixed unit of guards and nonguards, the general rule would,
in effect, constitute an acceptance of the appropriateness of the mixed unit, a
position contrary to Section 9(b)(3) of the Act which prohibits the Board from
deciding that a unit of guards and nonguards is appropriate. This statutory
requirement thus necessitates an exception to the general rule. In such
circumstances, a unit limited to guards constitutes the appropriate unit in the
decertification election. Fisher-New Center
A mixed unit of professional and nonprofessional employers
presents a somewhat related problem. In such a case the Board will not direct a
decertification election among the professional employees if they have
previously voted for inclusion in the overall unit Westinghouse Electric
Corp., 115 NLRB 530 (1956). When the professional employees have not had
such an opportunity, the Board will make an exception to the general rule and
direct a decertification election among the professionals.
As a victory in a decertification election would entitle
the union to a recertification as bargaining representative, and as the Board
is without jurisdiction to include agricultural
laborers or supervisors in such a
unit, the status of individuals who may belong to those categories must be
determined. Their exclusion from the unit, which is
required by the Act, is not construed to constitute a change in the unit.
Section 9(c)(1) of the Act provides that the
decertification process may be invoked not only when a labor organization has
been certified, but also when an uncertified organization is being currently
recognized as the bargaining representative. Lee-Mark Metal
Mfg. Co., 85 NLRB 1299 (1949);
In situations in which the courts have rejected the Board’s bargaining order in a Gissel case (NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)) and the Board is therefore now considering the representation case, it has consistently rejected employer contentions that the petition should be dismissed because of the long delay and/or because of employee turnover. Sheraton Hotel Waterbury, 316 NLRB 238 (1995).