The Union Election Is Done: What Are the Next Steps?
Union Organizing Article Series 01/28/19 Fred Gants and Tyler J. Roth
The union organizing campaign is complete, the election was held, and you’ve just received the results. Now what?
In the first three articles of this five-part series, we discussed ways to prevent organizing and what to do if faced with a union petition. This fourth article continues our union organizing series by discussing what happens after a union election.
Elections to certify (or decertify) a union as the exclusive bargaining representative are decided by a majority of the votes cast. An election is not final, however, until it is certified by a representative from the National Labor Relations Board (Board). After the votes are counted, the losing party may file objections with the Board to set aside the election. If timely objections are filed, or if a party challenged the eligibility of voters and those challenged ballots would affect the election results, the Board withholds certification until such disputes are resolved.
When the Employer Prevails
First, if you won your election, congratulations! However, you should be prepared to defend your victory by demonstrating that all pre-election and election conduct was permissible and preserved the employees’ freedom of choice in the event the union files objections.
You should also thank the employees and continue to look at ways to improve terms and conditions of employment. If you won by a small margin, your efforts to improve the workplace should be even more concentrated because the union may file a new petition as soon as one year after the election results are certified. During that time period, you will want to take action to deter the union from trying again to organize your company.
Considerations in Challenging the Election
On the other side of the coin, an employer that has lost an election and wishes to challenge the results must file its objections within seven days of the vote count. Specifically, the employer must submit written objections, which include the reasons for challenging the election, and an “offer of proof” in support of the objections, including the names of witnesses and a short description of their testimony.
Objections may challenge the conduct affecting the election results or the election conduct itself. However, in general, election results will be set aside only if conduct by the employer or the union tainted the election’s “laboratory conditions” by creating an atmosphere of confusion or fear of reprisals and thus interfered with the employees’ freedom of choice. After the objections are filed, the Board’s regional director reviews them and decides whether or not a hearing is necessary because the written objections raise substantial and material factual issues.
If the Board chooses to set a hearing on the written objections, both parties will have an opportunity to present evidence to a hearing officer. In determining whether conduct has unlawfully affected the election, the Board looks at the totality of circumstances, including the number of voting employees, the margin of defeat, and the effect of the misconduct on employee free will.
In order to meet the tight deadline in the objections process, it is important that employers begin gathering the facts and information to support their objections even before the votes are counted. During the campaign, the employer should be identifying any issues that might support an assertion that the result should be overturned. If such issues are identified, notes should be taken regarding who has information of the issue and what that information is so it can easily be used to create the materials necessary to create the required offer of proof.
Ultimately, the Board will either certify the election results if the objections are overruled, or, if it concludes that the objections have merit and affected the election results, it will set aside the election and order a re-run election. In the event that the objections are overruled, the employer will then need to bargain with the union - which is the subject of our next article.
Employers should carefully monitor both pre-election and election activity. Employers which have won an election should continue to be positive in their proactive approach in employee relations. On the other hand, given the tight deadlines for objecting to election results, employers should be proactive in identifying issues during the campaign.
If you have questions regarding what to do if an election petition is filed or next steps following the results of such an election, please call your local Quarles & Brady attorney or contact: