As an individual worker, when forced to deal with your employer you will always be at a disadvantage. Whether it’s responding to a recent change in working conditions or trying to work up the courage to ask your boss for a raise, seeking concessions in such a one-sided relationship can be downright impossible or at the very least, risky and impractical. After all, you need the job, but they don’t need you, right?
But if you’re part of a collective bargaining unit (which may be a small union or a part of a larger one), your employer won’t be able to simply dismiss your issues - because they won’t just be your issues. Having the full weight of your coworkers with you is a powerful force - one that even the most belligerent managers will be forced to deal with. In this article, we’ll look at the first formal action you’ll need to take: petitioning for a union election.
Take Aim: Certification or Recognition
Technically speaking, there are two paths towards unionization:
- Voluntary Recognition (possible with 50% or greater support). It is possible (though very unlikely) for a company to voluntarily recognize a bargaining unit. This involves proving to the employer that a majority of eligible workers approve of unionization, usually via a “card check” or “majority sign-up” where workers show their support by signing authorization forms (“cards”) that state they wish to join or form a union.
- Secret Ballot Election & Certification (possible with at least 30% support). Far more common than voluntary recognition is the National Labor Relation Board’s certification process which culminates in a secret ballot election (detailed here). Though this process also uses authorization cards to show support for forming a bargaining unit.
It’s important to note that bargaining units that are voluntarily recognized are not certified by the NLRB. This can matter as the NLRB may treat certified units differently than those that were voluntarily recognized. For example, being voluntarily recognized may prevent a unit’s ability to become certified later (called the “voluntary recognition bar”).
You May File When Ready: The Certification of Representative Petition
Since voluntary recognition is so rare and has some potential downsides, let’s focus on what you’ll need to file a Certification of Representative (RC) Petition to request the NLRB begin the process of conducting an election.
First, there are three possible outcomes from filing an RC petition: 1) there is an NLRB-run secret ballot election; 2) the NLRB dismisses the petition (possibly because of an objection raised by the company, read below for how to prevent this); or 3) the union withdraws the petition. A union may do this if it becomes clear that the union doesn’t have enough support to win the election.
To file an RC petition, you’ll need:
- Proof of “substantial” support. You’ll need to have gathered enough signed authorization cards to prove that at least 30% of the proposed bargaining unit supports unionization (but remember that you’ll need majority support to actually win the election)
- A completed RC Form (Form NLRB-502 RC) along with:
- Statement of Position (without the “Questionnaire on Commerce” part) This form is used for a few purposes, but at this stage, you’ll use it to define the bargaining unit you think is most appropriate. It’s also a chance to alert the NLRB of any potential issues that could impact the planning or execution of an election.
- Certificate of Service This form proves that you’ve provided (“served”) all required information to all required parties and records relevant information if any questions arise later on in the process.
- The certification procedures While not a fillable form, this document describes key terms and gives the details on how the petition proceedings will be held.
Once you’ve got everything, it’s time to submit your paperwork to the NLRB. You can do this either through the NLRB’s e-file web application or at your region’s NLRB office. (Find your regional office)
Anatomy of an Authorization Card
Below is an example of a union authorization form (sometimes called an “election petition” or “union card”). All cards (physical or digital) need to contain text similar to the highlighted portion in the image below that clearly states your company’s name, your union’s name, and that the signee consents and agrees to be represented by the named unit if the election is successful. Your state may have additional or specific requirements for this text, so be sure to check.
When discussing this with coworkers, you should be clear that this is more than just a showing of support. This is a binding document. If the election is successful, the signee will not have an opportunity to revoke their support without cause.
The signee’s basic contact information is also required and may be used to verify their support in the event of any challenges to the election petition.
Defending Your Petition
If the first thing to know about an election petition is that a successful one will result in an NLRB-run election, the second thing to know is that your employer will likely challenge you and the process at every possible chance (and they will have many chances). These challenges often take the form of attacking the validity of the support for the bargaining unit or by asserting that workers somehow violated the NLRB’s guidelines.
To lodge an objection, a company will file a “Statement of Position” (one of its other purposes besides being a part of any RC petition) and will be expected to provide a description of their objection and a list of which workers the company believes should be either included or excluded from the proposed bargaining unit. It’s important that Statement of Positions are answered with a corresponding “Responsive Statement of Position” as soon as possible or else the objection could be accepted at face value.
One common challenge is that a bargaining unit is too small as currently defined. This could result in the RC being dismissed if its current support is less than required when calculated for a broader (and larger) possible bargaining unit. Or the company could take a different approach and claim that workers were persuaded unfairly by offers of special treatment should the petition succeed. Below are a few tips to help minimize the impact of challenges like these.
- Be honest with your coworkers. If you convince someone to sign an authorization card by telling them it’s only to hold an election (and not to also be a part of that bargaining unit if successful) that card might be rejected by the NLRB. (And for more info about how to speak with coworkers, check out our article “How to Talk to Your Coworkers about Unionizing”)
- Be timely. Authorization cards must be signed and dated within six months of when the union files its petition. Likewise, the NLRB expects any responses to objections (in the form of a Responsive Statement of Position). in a “timely” fashion. There’s no hard rule for this, so do your best to respond as quickly as you’re able.
- Don’t let the company help. Even genuine assistance from management or other non-eligible workers may taint the petition process.
- Don’t make offers or promise incentives for support. It’s a popular tactic to challenge petitions by claiming organizers forced, pressured, or bribed other workers for their support. Pay extra attention to this when gathering signed authorization forms.
- Spread out your support. The NLRB may not find a unit based in a single facility or single job function to be appropriate and as in the example above, may result in the bargaining unit having to scramble to make up a support shortfall.
- Know who can support you. Generally speaking, the NLRB favors broader bargaining units over smaller ones, but there are several limits specified by the National Labor Relations Act regarding which workers can be included in bargaining units. Beyond basic union eligibility, some workers might not be able to join your bargaining unit based on their specific job roles. This can include workers like guards who have to watch over other workers, or even non-supervisor workers who need to use confidential employer labor-related information in their normal work (usually called “confidential employees”).
- Hang tough. While they have many opportunities to oppose this process, employers must ordinarily raise procedural objections before the election is scheduled.
Moving Forward
Check out our guide on how the NLRB runs union elections to see what comes next after a successful RC petition. But what if you’re just not there yet?
Even under the best circumstances, organizing your fellow workers to help overthrow workplace power dynamics is no simple task (it certainly isn’t any easier than getting them to agree on pizza toppings).
But sometimes we need to be starting conversations, hearing concerns, and building consensus more than we need to be filing paperwork. If that’s where you are, don’t lose hope. Nothing would make your bosses happier if they heard you gave up fighting for dignity and recognition in your workplace. Wear a pro-union pin, spread news about union actions you see in the headlines and listen to what your coworkers are most worried about.
In short, throw as many pebbles as you can, because you never know which one will kick off the avalanche.
