As a neutral third party familiar with collective bargaining matters and representation election procedures, I am periodically contracted to conduct employer pollings, to ascertain whether or not a majority of its employees continue to desire union representation. The first time I was asked to conduct a polling, I was obligated as a neutral to satisfy myself that polling is not illegal or otherwise improper in New Mexico as a general matter. As is common, there was no New Mexico case law on point. However, the federal courts and the National Labor Relations Board (NLRB) have reviewed the matter in a number of cases, and I will outline the results of my research here.
Basic overview of law
As a starting point, it must be recognized that the Board and courts have long recognized a presumption of continuing majority support. See Auciello v. Iron Works v. NLRB, 517 US 718 (1996), and Levitz Furniture Corp., 333 NLRB 717, 720 n. 17 (2001). The purpose of the presumption is to promote stability in labor relations. The presumption is irrebuttable during the term of a collective bargaining agreement (CBA), and rebuttable after the CBA expires.
If the union does not enjoy continuing majority support, the employer may be able to seek de-certification, or simply withdraw recognition under the National Labor Relations Act (NLRA). Sometimes, however, these stark actions could be perceived as alienating or antagonistic, as noted by the US Supreme Court in Allentown Mack Sales and Services v. NLRB, 522 US 359, 365 (1998). In that case, the Court suggested, an employer may prefer to first poll its employees for a more graceful or politic entre to severing the relationship.
It is well established that polling is also permissible. However, the NLRB believes employer polling is also "potentially 'disruptive' to established bargaining relationships and 'unsettling' to employees, and so has chosen to limit severely the circumstances under which it may be conducted." See Allentown, 522 US at 364, citing Texas Petrochemicals Corp., 296 NLRB 1057 (1989).
The wrinkle or dispute today is the exact nature of that limitation. Today, to unilaterally withdraw recognition, the employer must demonstrate actual loss of majority support. See Levitz. However, this represented a big shift in law, which previously required only an objectively based, good faith reasonable doubt as to majority support. See Celanese Corp., 95 NLRB 664 (1951).
Prior to Levitz, moreover, unilateral withdrawn of recognition and polling shared a “unitary standard,” and both were allowed where the employer has a "reasonable doubt, based objective considerations, as to the incumbent Union's contended majority status," provided the results of the polling are not relied on to supply the necessary "good-faith reasonable doubt." Allentown at 364. Additionally, the Court in Allentown rejected the Board’s reasoning that “doubt” means actual and certain disbelief. Rather, it held that “doubt” reflects “uncertain, tentative or provisional disbelief. Allentown at 367.
In Levitz, however, the Board expressed a preference for Board-conducted elections, and eased the standard for employer-filed petitions to “objectively based, reasonable “uncertainty” as to majority support, while tightening up the standard for unilateral withdrawal of recognition, to actual loss of majority support. Although Levitz expressly did not change the standard for employer pollings, the shift in law has created an uncertainty for parties.
The final requirement for pollings is that they be well noticed, non-coercive and include procedural safeguards. Grenada Stamping and Assembly, Inc., 351 NLRB 1152 (2007), Texas Petrochemicals, supra, and Stuksnes Construction Co., 165 NLRB 1062 (1967). Specifically, any polling must adhere to the following safeguards:
- the union must be provided reasonable advance notice of the time and place of the polling;
- the polling must be done for the purpose of ascertaining continuing majority support;
- that purpose must be communicated to the employees;
- there must be assurances given against reprisals;
- employees must be polled by secret ballot; and
- the employer must not engage in unfair labor practices or otherwise create a coercive environment
Because of the presumption in favor of Board conducted elections, the employer bears the burden of demonstrating all procedural safeguards have been met. Grenada Stamping at 1176, citing Montgomery Ward & Co., 210 NLRB 717, 724-725 (1974).
Dispute regarding whether employer polling allowed under PEBA
As discussed, the potential legality of an employer polling under the NLRA is well established, and there is no express provision in either PEBA or Public Employee Labor Relations Board (PELRB) case law prohibiting employer pollings under New Mexico law. Nonetheless, some union advocates have urged to me or the PELRB, see e.g., Cases 121-10 and 122-10, NEA v. Dulce Schools, that such pollings should be illegal under New Mexico law.
Generally, PEBA has been interpreted by the PELRB to be consistent with the NLRA, even in the many instances where PEBA speaks in broad strokes and the NLRA provides much more detail. See, e.g., PELRB Practice Manual at 19. The exception, of course, would be where there is either an actual conflict, or where the differences in language reflect a different public policy, such as one specially related to or affected by public sector conditions.
However, here, the statutory grounds for authorizing employer pollings are not based on any provision in the NLRA that is distinct from the New Mexico Public Employee Bargaining Act (PEBA). Specifically, contrary to what may be suggested by union advocates, the authority for employer pollings does not lie in NLRA provisions permitting employers to file de-certification petitions, which PEBA does not share.
Rather, the statutory grounds are the prohibition on domination of or interference with unions. It is a wide spread and axiomatic labor principle that an employer cannot recognize a union that does not have majority support, and that to do so would amount to the establishment of a "company union" in violation of the prohibition on interference with or domination of a union. Indeed, it could be argued that unilateral withdrawal is a functional necessity in a scheme, such as PEBA, where the employer lacks a statutory mechanism to petition the Board for a majority support election when continued majority support is in reasonable, good faith doubt
Improper for a 3rd party poll supervisor to look into the merits of the poll
In conducting polls, I have from time to time been challenged as to whether the employer in fact had objectively based reasonable good faith doubt as to a loss of majority support.
In a polling case, the Agency at issue will:
look at all evidence and decide the matter on a case-by-case basis. Some examples of the types of evidence that the employer may present to establish “uncertainty” include anti-union petitions signed by unit employees, firsthand statements by employees concerning personal opposition to an incumbent union, employees’ verified statements concerning other employees’ anti-union sentiments, and employees’ statements expressing dissatisfaction with the union’s performance as bargaining representatives. In contrast, evidence that only one employee made an anti-8nion statement; that newly hired employees failed to join the union; that some employees failed to authorize dues checkoff; and that the union failed to file grievances, appoint a steward, or submit a tentative agreement to employees for ratification may be insufficient to demonstrate a good faith uncertainty.
Ultimately, however, it would be improper for me to engage in that analysis, as a contracted pole supervisor. I do not represent the employer’s interests and am not serving as its legal counsel. (Indeed, I am prohibited from doing so, as a result of my service on numerous state and regional arbitration panels.) Nor I am a serving as a hearing examiner on behalf of the PELRB or other duly constituted labor board, in such a situation. Accordingly, I take any employer assertions concerning its good faith uncertainty at face value, and leave merits determinations to the labor board in the event a prohibited practice is filed on the matter.
If you require independent polling services, or have any labor or employment matters that you would like to resolve privately through a knowledgeable and experienced arbitrator or mediator, please feel free to contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
