{"id":2899,"date":"2022-03-08T06:00:00","date_gmt":"2022-03-08T06:00:00","guid":{"rendered":"https:\/\/uniontrack.com\/blog\/?p=2899"},"modified":"2022-04-11T20:03:30","modified_gmt":"2022-04-11T20:03:30","slug":"nlrb-certification-process","status":"publish","type":"post","link":"https:\/\/uniontrack.com\/blog\/nlrb-certification-process","title":{"rendered":"After the Union Vote: Understanding the NLRB Certification Process"},"content":{"rendered":"\n

Ken Green
CEO & Founder
UnionTrack<\/a><\/p>\n\n\n\n

Private-sector workers have the federally-protected right to form or join a union in the workplace, and public-sector workers’ right to organize is determined at the state level. But that doesn\u2019t mean employers support them in doing so.<\/p>\n\n\n\n

In fact, most employers will do everything they can to undermine the workers\u2019 efforts to unionize, notes Randy Hardy<\/a>, an organizer with the International Union, Security, Police and Fire Professionals of America (SPFPA). They will push back at every step in the unionization process to stop the unionization of their workplace. Those union-busting campaigns can continue even after the votes in an NLRB election are in.<\/p>\n\n\n\n

That\u2019s because the results must be certified, and there is leeway in the certification process for either side to delay the decision and possibly even overturn the results.<\/p>\n\n\n\n

What Does It Mean To Have Union Election Results Certified?<\/h2>\n\n\n\n

Obtaining union representation is almost, but not quite, as straightforward as winning the union election. While a simple majority of eligible workers voting in favor of union representation equates to a victory, there is another step that could derail the unionization effort.<\/p>\n\n\n\n

No matter which side wins the vote, the National Labor Relations Board (NLRB) must certify the election results.<\/p>\n\n\n\n

If the workers approve the union, this means the Board formally recognizes the union as the exclusive collective bargaining representative of the unit of workers. If the workers win the election and the results are certified, the employer is obligated to start negotiating in good faith with the union.<\/p>\n\n\n\n

While this can be done quickly, objections and challenges can delay the certification process and, therefore, the negotiations for a first contract.<\/p>\n\n\n\n

\"business<\/figure>\n\n\n\n

What are Potential Challenges to Certification?<\/h2>\n\n\n\n

Either side has the opportunity to challenge or object to the results of a union election within seven days of the votes being counted. The most commonly cited issues with union elections are fraudulent or invalid ballots and election interference. If those concerns are valid and have the potential to change the outcome of the election, the Board will withhold certification until the disputes are resolved.<\/p>\n\n\n\n

Ballot Challenges<\/h3>\n\n\n\n

Once a union election has been set, employers must provide union organizers with a list (known as an Excelsior List<\/a>) of employees who are eligible to vote and their home addresses. This not only ensures that unions have the opportunity to make their case to workers but also that the vote is fair. With the Excelsior List, the Board is able to confirm that those who voted in the election are actually eligible to do so.<\/p>\n\n\n\n

These lists are often the target for ballot challenges for reasons such as tampering and voter eligibility. While these can be valid reasons for wanting a review of ballots, such challenges can also be used to intentionally delay the certification.<\/p>\n\n\n\n

This was the case for nurses at Longmont United Hospital in Longmont, Colorado, as their employer held up the certification of their successful election to join the National Nurses Organizing Committee\/National Nurses United (NNOC\/NNU) over six challenged ballots. The vote was in July, but the dispute wasn\u2019t resolved until December, delaying the start of negotiations.<\/p>\n\n\n\n

\u201cLongmont United must respect the NLRB decision for the remaining ballots to be counted,\u201d Stephanie Chrisley<\/a>, ICU RN, said in response to the NLRB\u2019s decision to open the final challenged ballots. \u201cOur election was five months ago, and this delay is a blatant attempt to avoid negotiating with us.\u201d<\/p>\n\n\n\n

Election Conduct Objections<\/h3>\n\n\n\n

It\u2019s also common for the losing side to file objections against the other party for election misconduct. Such objections either challenge conduct affecting the election results or the conduct of the election itself to the extent that the results do not reflect the true choice of employees, according to a seminal piece by Robert P. Hunter, former senior fellow in labor policy at the Mackinac Center for Public Policy<\/a>.<\/p>\n\n\n\n

Once the written objections are submitted to the NLRB, the Board investigates the claims to determine which ones have merit. If any are meritorious, the NLRB will require another election to be held, notes Hunter.<\/p>\n\n\n\n

That\u2019s exactly what happened with the Bessemer, Alabama Amazon warehouse vote<\/a> in 2021. After the vote failed, the Retail, Wholesale and Department Store Union (RWDSU) filed legal challenges to the election claiming the anti-union campaign by Amazon was designed to \u201cintimidate and manipulate\u201d voters and thus interfered in a free and fair election.<\/p>\n\n\n\n

\u201cAmazon\u2019s behavior during the election cannot be ignored and our union will seek remedy to each and every improper action Amazon took,\u201d wrote RDWSU President Stuart Appelbaum<\/a> in a statement at the time.<\/p>\n\n\n\n

The NLRB ruled in favor of the union and ordered a new election.<\/p>\n\n\n\n

It\u2019s a similar story to what is happening for workers at some Starbucks locations around the country. This started near Buffalo, New York, when workers at three locations voted to join Starbucks Workers United<\/a> in late 2021. One location successfully voted to organize, becoming the first such Starbucks location in the country.<\/p>\n\n\n\n

In the two other locations, the union filed objections against the outcome of elections at the Hamburg and Cheektowaga locations stating the company engaged in a \u201cshock and awe campaign\u201d to defeat the vote. \u201cEmployees were subjected to a massive campaign of overwhelming psychological force from the moment they publicly expressed the desire to form a union,\u201d the union wrote in a statement after the votes.<\/p>\n\n\n\n

In January, the NLRB certified<\/a> the vote at the Cheektowaga location, making it the second unionized Starbucks in the country. Since then, union advocacy has picked up within Starbucks stores:<\/p>\n\n\n\n