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January 16, 2010
Should You Agree to a Stipulated Election Agreement?

In a BLR webinar titled "Unions: Best Practices for Resisting Union Drives and Activities in Your Workplace," Maria Anastas, Esq., outlined what happens after you are contacted by the National Labor Relations Board (NLRB) to advise that a union has filed an election petition.

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Once a union files an election petition, the labor board will fax it to the employer, often immediately. If you receive a fax from the labor board containing an election petition, you should know it is likely that a majority of your employees have already signed union authorization cards; do not assume it was only the minimum required 30 percent of employees.

After sending the fax, the labor board will contact you to confirm receipt. They will ask whether you can agree to an election, and whether you will agree to enter into what is called a stipulated election agreement. A stipulated election agreement resolves, by voluntary agreement, voter eligibility issues, date, time(s) and location of the election.

Your answer to that question depends on what the union put on the petition. For example, if the union has requested a bargaining unit that contains some groups or individuals you do not think should be in there, such as supervisors, you have the right to tell the labor board you are not going to sign a stipulated election agreement.

If you do not agree to the stipulated election agreement, the labor board will contact the union and explain your contention. In our example, if the union concedes to remove the objectionable group – the supervisors – from the bargaining unit, then the employer could decide to proceed with the stipulated election agreement. If you decide to do that, your election will be held 42 days from the date the election petition was filed.

If the employer’s contentions cannot be easily resolved with the union, then the labor board will schedule a representation hearing, and that hearing will put off the election date. In our example, this could happen if the union disagrees that any member of their proposed bargaining unit is actually a supervisor.

Definition of Supervisor: Why it Matters During a Union Campaign

Most employers do enter into the stipulated election agreement. They do this partially because they are able to resolve voter eligibility issues with the union, but also to avoid the expense of a hearing. However, some employers will always try for a hearing, simply because they do not want an election in 42 days; they will argue and intentionally raise an issue they know the union will not agree to.

Maria Anastas, Esq., a partner in the San Francisco office of law firm Ogletree, Deakins, Nash, Smoak & Stewart, PC., handles union organizing drives and corporate campaigns, collective bargaining and arbitration, and proceedings before the National Labor Relations Board. She can be contacted at maria.anastas@ogletreedeakins.com.

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