Among the NLRB's chief responsibilities is the holding of elections to permit employees to vote whether they wish to be represented by a particular labor union.
The Board also treats cards as invalid if they were obtained with illegal assistance from the employer: for example, if the employer gave the petitioning union access to its facility that it did not permit other unions or other organizations to have, or if it made threats or promises that coerced employees into signing these cards.
If the union has made this threshold showing of support, then the Board will attempt to work out an agreement between the parties for the scheduling of an election.
While the NLRB has developed detailed rules governing what units are appropriate in health care institutions, it takes a more ad hoc approach in other cases, relying on a collection of factors that the Board labels its "community of interest" standard.
The employer must ordinarily raise these issues before the election is scheduled; it cannot later refuse to bargain on the theory that the unit is inappropriate on grounds it did not make in a timely manner.
The Board will not ordinarily hold an election if the employees in the unit are currently covered by a collective bargaining agreement.
The Board requires an employer to provide the petitioning union with an "Excelsior list," which should contain the names and addresses of all unit employees, within seven days of the direction of an election.
The Board will suspend the processing of an election petition if a "blocking charge" is filed, that is an unfair labor practice charge that, on its face, alleges unlawful conduct that, if true, might interfere with employees' ability to make a free and uncoerced choice of representative, reflecting the fundamental rights defined in NLRA section 7.
[3] The line between mere expression of opinion and interference or threat is a difficult one to draw with any precision and has given rise to thousands of NLRB decisions on the subject.
The NLRB considers a number of factors in deciding whether a particular tactic by an employer or a union destroyed the "Laboratory Conditions"[1] that it has tried to maintain in election campaigns of this sort.
Midland[3] National Life Insurance Co. is a current holding that reflects the Board's oscillations along White House political lines.
In this 1982 case, the Board decided that the election standards were not lowered to a level that "...impaired the free and informed atmosphere requisite to an untrammeled expression of choice by the employees."
Later the Board "refined its standard" in Liberal Market[4] refusing to consider the truth or falsity of campaign propaganda, but measured the degree to which employees' free choice was impacted by misleading information.
The next refinement of the standard occurred in 1962, when, in Hollywood Ceramics,[5] the Board required the "misrepresentation or campaign trickery to involve (1) a substantial departure from the truth, (2)at a time which prevents the other party […] from making an effective reply, so that the misrepresentation, which (3) deliberate or not, may (4) reasonably be expected to have a (5) significant impact on the election."
Fifteen years later, in Shopping Kart Food Market, Inc.,[6] a new administration brought in a board that effectively overruled Hollywood Ceramics, stating that it would "recognize and rely on the employees as mature individuals who are capable of recognizing campaign propaganda for what it is and discounting it" and effectively negating the possibility of policing campaigns.
Observers may challenge the ballots of employees when one side or the other claims are not members of the bargaining unit or not eligible to vote for any other reason.
The ostensible purpose of this denial of direct judicial review is to expedite the determination of questions concerning union representation.
An employer that wants to challenge the Board's certification of a union in court must engage in what is referred to as a "technical refusal to bargain" in order to draw an unfair labor practice charge against it under Section 8(a)(5) of the Act.
However, because the General Counsel of the NLRB rarely seeks injunctive relief in cases of this sort, an employer that wants to take the risk of liability and believes it can withstand a strike can delay bargaining with a union for years after it has won the election.
Unions can also seek judicial review of unfavorable election results by picketing for recognition in the hope of drawing a charge under Section 8(b)(7) of the Act.
There is a narrow exception to this general rule under which a party to a representation case can seek injunctive relief directly in the federal courts to prevent the NLRB from holding an election in defiance of an express statutory limitation, e.g., failing to hold a separate self-determination election for professional employees.
The Board has identified a number of "hallmark" violations, such as threats to close the operation made by an authoritative member of management and disseminated widely through the workforce, that will support a Gissel order.
Decertification can also occur if the employer received substantial evidence that the union no longer has the support of a majority of the bargaining unit.
The Federal Labor Relations Authority may strip a union of its right to represent workers, as it happened in the 1981 air traffic controllers strike.
The Board will not, on the other hand, modify the clear language of a collective bargaining agreement or the parties' established practice that either includes or excludes such employees.