n a recent article, the National Labor Relations Board (“NLRB”) reported that during the first six months of 2022, union representation petitions filed at the NLRB increased 57%—up to 1,174 from 748 during the first half of 2021. (See https://www.nlrb.gov/news-outreach/news-story/union-election-petitions-increase-57-in-first-half-of-fiscal-year-2022). The NLRB also reported that in 2021, 52% of petitions filed resulted in a victory for the union as compared to only 46% in 2020. (https://www.nlrb.gov/reports/nlrb-case-activity-reports/representation-cases/intake/representation-petitions-rc).
How is the Election Outcome Decided?
A majority of votes decides the outcome. Since the outcome of an election is governed by a majority of valid votes counted, participation is important. If employees do not participate, employees who do participate make the decision. During an election, parties often agree on the voting unit and other issues. However, if parties do not agree, the NLRB regional office holds a pre-election hearing in an effort to resolve disputed issues.
Post-election proceedings can also be held to address a wide variety of issues including voter eligibility and election conduct. Parties are entitled to seek NLRB review of regional determinations before and after the election depending on the nature of the issue and timing.
If a union wins a simple majority of votes cast, the union represents the entire group. In most instances the NLRB will then certify the outcome and the union will officially represent the employees for purposes of negotiating wages, hours, and working conditions. An employer acts at its peril in changing wages, hours, or working conditions without bargaining with the union if the employees are represented by a union. A union which loses an election must wait a year to come back for another election.
How Can Management Prepare for Organizing Efforts?
Union activity is reaching new heights as demonstrated by the widely publicized petitions filed by employees of Amazon, Starbucks and Apple. Organizing activity is expanding beyond traditional strongholds like manufacturing, construction, and mining, into new industries. This surge may be attributed to advances in technology, the change in Administration and/or current social and cultural values that place a high emphasis on employee rights. Management should be prepared to act promptly upon learning of an organizing drive to ensure protection of their organization and employees in a manner consistent with both company goals and applicable law. Every employer should think about its goals in relation to union activity and representation.