Employers are Often Surprised Who Can Vote in Union Elections

Before a union election can occur, the National Labor Relations Board sets a voter eligibility cutoff date. Workers employed (or who have an expectation of returning to work) on that date can vote. But what happens when the election is delayed 7 months and the pool of voters, i.e. workforce, dramatically changes? The original cutoff date remains in effect.

In Tekweld Solutions, Inc., the workers had a March eligibility date for an April election. But the election did not occur until November. The result of the election was 21 votes in favor of union representation, 20 against the union, and 30 challenged votes because the voters’ names did not appear on the March eligibility list, since they were hired after the original eligibility cutoff date.

The Board refused to count the challenged votes and kept the original cutoff date for two reasons: (1) neither side said a new date should be used after the 7-month delay (bad lawyering for Tekweld); and (2) the Board sought to “minimize the possibility that hiring decisions will be made with an eye toward affecting the election’s outcome.” So Tekweld employees are now represented by a union that may have lost the election by a landslide.

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