Elections for county office have a long history in this Commonwealth, but elections among public-sector workers on the question of whether to form a union for collective bargaining are a relatively more recent phenomenon, resulting from the enactment in 1970 of the Public Employee Relations Act (also known as Act 195) that gave most county employees the right to unionize. As more county governments are faced with unionization efforts, it is important to understand the process by which union representation occurs in Pennsylvania. This article will review the Act 195 petition and election process, and describe the Pennsylvania Labor Relations Board’s rules for conducting elections. We will also explain the basic "do’s" and "don’ts" (mostly "don’ts") that management must know once a representation petition has been filed with the PLRB, including status quo obligations and the "T.I.P.S." restrictions on pre-election activities.
In most cases, the election process begins when one or more employees (or the union that is organizing the workforce) send a written notice to the county commissioners1 asking whether the county will consent to a union election. The notice must identify who would be in the proposed bargaining unit and must assert that thirty percent (30%) or more of the employees in the proposed bargaining unit desire to be represented for collective bargaining purposes by a designated representative.
If the county consents to the election, then the county must notify the union organizers within ten (10) days of its receipt of the consent request that it consents to the election, in which case the union organizers and the county file a joint petition for an election with the PLRB. [The proposed union and the county may jointly petition the PLRB for recognition of the union if a majority of the employees in the proposed bargaining unit support a union and the county agrees, but that does not involve an election.] If the county does not consent to the election, then the union organizers can file an election petition with the PLRB. The election petition must contain certain information, including: a statement that thirty percent (30%) or more of the employees in the proposed bargaining unit desire representation and how the union organizers ascertained that support; the county’s budget submission date; a description and factual statement of the proposed bargaining unit with the general classifications of those positions to be included, and those excluded; and, the name of the proposed union and its national/state affiliation, if any.
The PLRB exclusively determines whether the union organizers have evidence of the minimum 30% threshold to hold an election; the county does not get to review or even challenge that claim of support. The Board also examines whether the proposed bargaining unit is appropriate under Act 195 (for example, that it does not include management employees) and, if it is, then the PLRB will direct the county to furnish to it a list of the names and addresses of the employees in the proposed bargaining unit (what is known as an "Excelsior" list), which can be given to the union organizers, presumably so they can communicate with those employees.
Although the parties can suggest a date, time and location for the election when they jointly petition the Board, it is the PLRB that ultimately decides the date, time and location for the election. Voting is by secret ballot. The election is either held at an on-site location or is done through mailed ballots. The ballot’s arrangement depends on how the election petition was filed. If only one proposed union has been identified, then the ballot will ask whether the employees wish to be represented for purposes of collective bargaining by that union, and will also contain a box for "no representation." An election petition, however, can identify more than one union, so long as more than one percent (1%) of the employees in the proposed bargaining unit supports that union. When that happens, the union that filed the petition gets first ballot position, with the remaining unions listed on the ballot in order of how they were docketed by the Board, along with a box for "no representation." When multiple unions (for example, the Teamsters or AFSMCE) are fighting to represent a proposed bargaining union, each union must show that at least ten percent (10%) of the proposed bargaining unit’s employees support it in order for that union to be able to directly participate in the election process.
For an on-site election, the PLRB representative designates the polling area and no electioneering may take place within the polling area. Each participating party is entitled to have one poll watcher (more if the parties agree), and that poll watcher ordinarily should be a person who is an employee in the proposed collective bargaining unit. An employer, however, may choose a nonsupervisory or other "appropriate person" to serve as its poll watcher if it cannot find an eligible voter to serve.
In order for an employee who is within the proposed bargaining unit to be eligible to vote, that employee must: (1) have been employed in the payroll period immediately prior to the Board’s issuance of an election order; and, (2) be employed on the date of the election. Each party (and the Board) can challenge a voter’s eligibility. A person(s) whose eligibility is challenged will be allowed to vote, but the ballot(s) will be kept in a separately-marked envelope and will not be counted until: (1) the disputed ballots are deemed necessary to count because they could affect the outcome of the election; and, (2) the eligibility dispute is resolved by the Board. Each party is permitted to observe the opening/counting of the ballots and the tally of the election result.
The proposed bargaining unit representative must receive a majority of the ballots cast in its favor in order for the Board to certify the union. When no option receives a majority, the Board conducts a runoff election between the two options that received the most votes in the first election.
If a party violates the Board’s rules for conducting an election, such behavior constitutes an unfair labor practice. In some cases, a party may file an unfair labor practice charge prior to the election which alleges that the other party has engaged in conduct that will prevent a free and fair election. This is known as a "blocking" charge because that party asks the Board to block further election proceedings until the unfair practice charge is resolved. Post-election, a party who seeks to set aside an election result based on an alleged unfair labor practice must file a charge with the Board within five working days of the vote count.
The prospect of unfair labor practices charges being filed in connection with a union election underscores the importance of following the "T.I.P.S." acronym once the election process is underway. "T.I.P.S." describes the general prohibitions that apply to employer conduct. An employer should not: Threaten; Interfere; Promise; or Surveil. The rule against threatening is fairly obvious. An employer cannot interfere in the union’s organization activities. And unlike what happens in political elections, an employer cannot promise anything to the workforce in exchange for an anti-union vote. The prohibition on surveillance means that an employer cannot, for example, ask an employee how she will vote in the election. These general principles have been applied to a range of behaviors through various PLRB (and NLRB) decisions, so it is important to consult with your labor counsel to get more comprehensive guidance about what communications and interactions you may (and may not) have with your employees when a union election is pending.
The initiation of the election process also triggers the employer’s obligation to maintain the status quo of the terms and conditions of employment, including wages and benefits. This obligation to maintain the status quo continues if the union wins the election and is therefore certified by the Board as the employees’ exclusive bargaining representative, which means, for example, that an employer cannot unilaterally increase wages during the period when the first collective bargaining agreement is being negotiated.
A favorable election result does not guarantee that a union will be the exclusive bargaining unit representative forever, but it is guaranteed to remain in place for a least one year following certification by the Board. After one year, a petition to decertify the union can be filed with the PLRB by either a group of employees or by the employer. A decertification petition filed by an employee group must assert that at least thirty percent (30%) of the bargaining unit support the decertification petition. A decertification petition filed by the employer must contain a "factual statement indicating a good faith doubt of the majority status of the public employee representative." Both employee and employer-initiated decertification petitions have other requirements and, when done in accordance with the Board’s rules, result in an election in which the union may be removed as the employee’s collective bargaining representative.
Union elections, like political elections, can be fraught with drama, but familiarity with these rules and timely consultation with your labor counsel can help your county successfully navigate through the election process.