How does a union get chosen to represent workers in a bargaining unit?
A union election takes place when the union files a petition with the National Labor Relations Board (NLRB). The Board then conducts a secret election in the workplace, the outcome of which determines whether or not the workers will be represented by the union.
A union may represent only workers who form an appropriate bargaining unit. A bargaining unit is a group of employees who do similar types of work and have common concerns about wages, hours, and working conditions. A bargaining unit generally won't combine professional with nonprofessional employees, nor will it contain workers with significantly different job duties, skills, or working conditions. If the employer claims that a particular bargaining unit is inappropriate (a strategy employers often use to challenge a successful representation election), the NLRB will also consider what the workers themselves want.
Bargaining units are little democracies, in which the majority rules and the minority must comply. For example, if you work in an office and more than half of the people who work there vote to be represented by a union, the entire office is likely to be designated as a bargaining unit. You will be represented by that union. Even if you do not want to be.
Authorization and Election
In order to represent a bargaining unit in negotiations with the company, a union must have the support of a majority of the workers in the unit. The union usually demonstrates this support by asking workers to sign authorization cares: forms that workers complete and sign to indicate that they want the union to represent them in their dealings with the employer.
If the union gets support from the majority of workers in the unit, it will probably ask the company to recognize the union voluntarily. If the company decides to do this (and it has good reason to believe that the union's majority support is genuine), the company and the union can immediately begin negotiating a collective bargaining agreement.
But most companies choose not to recognize a union voluntarily. Perhaps the company doubts the signatures on the authorization cards are authentic or suspects that the union coerced workers into signing. Or maybe the company just wants to do whatever it can to keep a union out of its workplace for as long as possible. For whatever reason, the company may refuse to recognize the union. In that case, the union will likely file a petition with the NLRB, asking it to hold an election.
The NLRB will then conduct a secret election in the workplace to determine whether workers really support the union. Before the election, the union and the employer can engage in a pro- or anti-union campaign. If the union receives a majority of the votes cast, the NLRB will certify it as the bargaining representative of the unit. Note that the union only has to get a majority of those workers who vote, not a majority of all the workers in a unit. This means turnout in secret elections can play a major role in the outcome.
In April 2012, new rules go into effect that are intended to streamline the elections process. Among other things, these things would speed up the election timetable by limiting the types of challenges employers can raise before the election is held. These rules have been quite controversial; learn more in our legal update on these new NLRB election rules.
Challenging an Election
Often, everyone accepts the outcome of a representation election. However, either the company or the union may object to the election results. Usually, one side will claim that the other unfairly influenced the outcome of the election. For example, if the union incites workers to violence or offers special privileges to workers who vote for the union, the NLRB might set aside a union victor. Similarly, if the company threatens to fire workers who vote for the union or promises to give benefits to workers who oppose the union, the NLRB might void the election results -- and could even declare the union to have won by default.
The union or the employer can also challenge the conduct of the election itself. Just as in a government election, legal rules restrict what can be posted near the voting booth. And the NLRB generally prohibits both unions and employers from making campaign speeches to groups of employees on company time within 24 hours of the election.
To learn more, see Nolo's section on Labor Unions.