(a)
Purpose. The purpose of this section is to ensure that in any election for a labor organization at a public employer, there is respect for the rights of individuals employed in non-supervisory positions at the public employer to have the opportunity to determine, free of intimidation and coercion, whether or not they choose to authorize a labor organization to be their collective bargaining representative.
(b)
Appropriate Group for Bargaining.
(i)
Generally. Employees must have a sufficient community of parallel interests to be an appropriate group for bargaining. “Parallel interests” shall be broadly construed. Employees with similar job duties, skills, and positions; who are part of a functionally integrated work environment; or who have common supervision shall be considered to have parallel interests.
(ii)
Specific Employees. Certain employees, given the specific nature of their work, such as security guards, serve in unique vocational roles and cannot be joined in an appropriate bargaining group with other employees.
(iii)
Exclusions. Supervisory, managerial, executive personnel, and “confidential” employees cannot be part of any bargaining group. Nor can employees who work less than four hours per week, temporary, seasonal, or on-call) employees be included in a bargaining unit. The terms in this paragraph to describe various employees (such as “supervisory,” “managerial,” or “confidential” employees), shall be construed consistently with the definitions applied to such terms under the National Labor Relations Act (“NLRA”).
(iv)
Labor Organization Notice of Employee Support to Management; Agreement or Arbitration.
(A)
Should a labor organization claim that 30% or more of a unit of employees supports labor organization representation, it shall so inform management, in writing, and demonstrate that the following conditions are met:
1.
That the group the labor organization seeks to represent is an appropriate one under the principles set forth in this subsection (b)(i)-(iii);
2.
That there is reliable evidence of individual employee support for labor organization representation; and
3.
That the number of employees expressing the desire to be represented by the labor organization within the proposed bargaining unit constitute 30% or more of the employees in that unit.
For the purpose of subsection (b)(iv)(A)(2) and subsection (c)(i), a printed document bearing the employee’s original signature, containing a clear and conspicuous statement that, by signing, the employee expresses a desire to be represented by the union for the express purposes of collective bargaining, shall be deemed “reliable evidence.”
(B)
If, within 21 days after management’s receipt of the labor organization’s written claim under subsection (b)(iv)(A), the parties are unable to agree that the conditions set forth in subsections (b)(iv)(A)(1)-(3) are met, the dispute shall be resolved by an Arbitrator chosen by the Election Official, provided that the Arbitrator shall be a member of the National Academy of Arbitrators. The Arbitrator shall apply the standards that would govern the identification of appropriate bargaining units under the NLRA. The Arbitrator shall hold such hearing as the Arbitrator deems necessary to resolve the dispute and shall issue a decision in writing, setting forth the rationale for the decision. The Arbitrator’s decision shall be final and binding on the parties.
(c)
Preliminary Conditions for Scheduling an Election by the Election Official. Upon agreement of management and a labor organization seeking an election or an Arbitrator decision establishing that the conditions of subsection (b)(iv)(A)(1)-(3) are met, the labor organization shall so notify the Election Official. Within five (5) days (excluding weekends and holidays) of receipt of said notice, the Election Official shall announce, in writing (by first class U.S. mail, electronic mail, or fax) to management and the labor organization that the following conditions are met:
(i)
That there is reliable evidence of individual employee support for labor organization representation; and
(ii)
That the number of employees expressing the desire to be represented by the labor organization within the bargaining unit at issue constitute 30% or more of the employees in that unit.
provided, however, that the Election Official’s obligation to issue such confirmation shall be stayed unless and until the labor organization provides the Election Official with a copy of a license (or provisional license) issued to the labor organization by the Gaming Commission which is in effect.
(d)
Scheduling the Election; Resolution of Eligible Employee Disputes; Notice of Rules.
(i)
Unless otherwise agreed to by management and the union, in the absence of an unresolved dispute over the composition of the bargaining unit, an election among eligible employees in the bargaining unit shall occur no later than the next regularly scheduled pay date, 2 months from the date that the Election Official issues confirmation under subsection (c).
(ii)
Within 5 days of receipt of the Election Official’s announcement under subsection (c), management shall prepare a list of all eligible employees in the subject bargaining unit in alphabetical order, along with each employee’s address and title, and provide a copy (via first class U.S. mail, electronically or via fax) to the labor organization. “Eligible employees” shall include anyone hired and actually working as of the payroll period immediately preceding the labor organization’s 30% minimum showing of interest submitted to the Election Committee. The labor organization shall immediately identify any disputes it may have with regard to the list (such as omissions, incorrect inclusions), and the parties shall try to resolve differences through agreement. Disagreements shall be resolved by expedited arbitration provided for in subsection (h), and the 2 month pre-election period shall not commence until after resolution of all bargaining unit disputes. The Arbitrator may extend the eligibility hire date to ensure that no employee is improperly enfranchised or disenfranchised.
Management shall provide the labor organization with timely updates of said list through to the date of the election to the extent there are any changes to the list.
(iii)
Notice of Meeting and Ground Rules. Within 10 days (excluding weekends and holidays) after the scheduling of an election, management shall:
(A)
Post and distribute notices to those employees within the bargaining unit who are eligible to vote, setting forth information about the date, time, and place of the election, the purpose of the election, and the employees’ rights to be educated on the benefits and deficits of labor organization representation. These election notices shall be facially neutral and not espouse a position for or against labor organization representation and shall be in substantially the following form:
“ANNOUNCEMENT OF UNION REPRESENTATION ELECTION | |
Under Tribal Law employees have the right to organize and join a union. The laws of the Tribe recognize that, if at least thirty percent of the eligible workers in an appropriate bargaining unit reliably express interest in being represented by a Union, then everyone in the unit shall have the right to participate in a secret ballot election to vote on whether they want Union representation. The outcome of the election will be determined by a simple majority. | |
The [name of union] have met the thirty percent requirement in the [name of public employer] and [describe eligible employees] will be eligible to vote in a secret ballot election scheduled for __________. Employees who are eligible to vote will be receiving individual notices of their right to participate. | |
Whether to have union representation or not is a question which should be studied carefully by employees prior to voting. The [name public employer] and the [name of union] will abide by the following rules to make sure that employees have access to complete, accurate information prior to the election. Employees will be truthfully advised about: | |
• | What good faith collective bargaining means and what obligations it requires of the [name of public employer] and the Union. |
• | Typical, current labor agreement provisions and how such provisions may or may not affect the quality of the working lives of employees. |
• | The reasons employees generally vote for and against union representation based on constructive, fair analysis of factual information. |
• | Typical requirements of union membership. |
The Tribal Council has appointed an independent Election Official to conduct a fair election, and [name of public employer] and the union have arranged for an independent arbitration process to resolve any disputes or issues that arise. | |
There will be a meeting on __________ to discuss Ground Rules covering the pre-election process. At this meeting, rules on employees’ rights will be described in greater detail. | |
Employees have the right to either support or reject union representation without being subjected to any kind of harassment, intimidation or unwelcome solicitation. Employees cannot be punished or rewarded based on whether they are for or against having a union.” | |
(B)
Hold a meeting with the bargaining unit employees to cover ground rules set forth in section (e). The meeting shall not include any kind of campaigning or solicitation, but shall inform employees as to the process, and rules against coercion, discrimination and harassment as set forth in section (e).
(iv)
Seven (7) days before the election, management shall send notices to those employees eligible to vote, setting forth information about the date, time, and place of the election, and the purpose of the election. This reminder notice shall also be posted on any employee bulletin board. Said election notices shall be facially neutral and not espouse a position for or against labor organization representation and shall be in substantially the same form as the notice set forth in subsection (d)(iii)(A).
(e)
Election Rules Regarding Campaign, Communications, and Conduct.
(i)
Application of Unfair Labor Practice Provision. To preserve employee freedom of choice, management and the labor organization are prohibited from engaging in unfair labor practices, as defined in section 27.03.07 that would undermine the validity of the bargaining agent election.
(ii)
Misconduct by Employees.
(A)
Employee Solicitation and Discussions. The public employer may enforce its existing rules limiting solicitation and prohibit any unwelcome solicitation.
The public employer may restrict employees from discussing labor organization matters in public areas where the focus of employees is customer service. When a bargaining unit at the Point Casino is at issue, said “public areas” shall include gaming areas, reception areas, restaurants, bars, as well as aisles and corridors in proximity to such places, but shall not include restrooms, and parking areas, provided however that employees shall be entitled to discuss labor organization matters in restrooms, and parking areas during off duty time, such as breaks, meal times, and before and after work.
The public employer shall not restrict employees from discussing labor organization matters in non-public areas (such as employee lunch or break rooms) as well as parking lots, and rest rooms while on duty unless such discussions interfere with employees’ work.
(B)
Unwelcome Conversations and Harassment. An employee’s request to one or more co-workers to desist from soliciting them or talking to them about the labor organization must be honored. Persistence by someone who ignores a clearly articulated request to stop talking about the labor organization may be subject to any disciplinary rules of the public employer governing harassment.
(C)
Intentionally Misleading Other Employees. Employees who recklessly or consciously disseminate inaccurate, misleading, or false information may be subject to discipline by the public employer for such behavior under any policies of the public employer.
Subject to subsection (h), a pattern or recurrence of such behavior may constitute grounds for delaying a vote until remedial measures have been taken, or, if discovered after the balloting, such conduct may be grounds for setting aside the election results, depending upon an Arbitrator’s findings regarding the impact of such conduct on a sufficient number of employees eligible to vote in the election.
(f)
Elections.
(i)
Voting Time and Place. The secret ballot election should be arranged by the Election Official so that eligible employees have ample time to participate. Due consideration shall be given to employees’ varied work schedules. Polling shall occur in a convenient place for employees to vote.
(ii)
No Solicitation on Election Day. There shall be no “campaigning” on election day, provided, however, that employees may be reminded to vote.
(iii)
Role of Election Official. The Election Official shall manage the voting process and count the ballots.
(iv)
Voter Eligibility List. Management and the labor organization shall have an ongoing obligation throughout the 2 month pre-election interval to immediately raise and try to resolve, through agreement, questions about the eligibility of any voting employee prior to the election. On the day of the vote, if management or the labor organization believes an individual on the list is not eligible to vote, such individual’s ballot shall be marked as “challenged” by the Election official unless, the Election official determines that the basis for the challenge was reasonably discernible prior to the time that the challenge is made.
Anyone who is not on the list who attempts to vote shall automatically have their ballot marked as “challenged” by the Election Official.
(v)
Observers. Two non-supervisory employees who are part of the bargaining group that is the subject of the election shall act as Observers, on a volunteer and unpaid basis, to help the Election Official conduct the secret ballot voting process. Management and the labor organization shall each select one Observer per shift (the same Observer may be assigned to one, two, or all three shifts). Such individuals should be familiar with the employees eligible to vote to assure the proper distribution of ballots to only eligible participating employees. There shall be no solicitation or campaigning of any kind by Observers. For an election involving employees at the Point Casino, Observers shall have a current, official Casino identification card, allowing them to be present within the Casino.
(vi)
Polling Place and Process. The Election official shall ensure that the voting process is orderly, with limited talking in the balloting area, that managerial and supervisory personnel of the public employer not be permitted to be in or near polling places, that no employee vote by absentee ballot, and that there is no loitering or mingling at the polling location before or after voting.
(vii)
Ballots.
(A)
Form. Ballots shall be simple and plainly worded. Employees shall be told not to sign or mark ballots, but to check off their preferences relative to labor organization representation with a “√” or an “x” in the designated box next to their choice, in substantially the following form.
Do you want to be represented by the [name of union] for purposes of collective bargaining? | |
Please mark your choice in the appropriate box. | |
YES □ | NO □ |
(B)
Challenged Ballots. A challenged ballot shall be placed in a envelope and sealed, with the employee’s name written on the outside of the envelope, and then placed in the ballot box by the Election Official.
(viii)
Counting the Vote. After the final polling period ends, management and the labor organization shall confer with the Election Official to determine if there are any challenged ballots and whether any of the challenged ballots can be resolved. Any challenged ballot which remains challenged shall be saved and set aside without being counted. The Election Official shall then proceed with counting the votes. The Election Official shall open the ballot box and mingle the votes. The Election Official shall open each individual ballot, read it aloud, and then place it into stacks of “Yes” and “No” ballots.
After each ballot is opened and properly stacked, the Election Official shall count all properly marked ballots, keeping track of the tally. Election Observers shall be present throughout this process. Representatives of the parties may also be present.
If the number of the challenged ballots could affect the outcome of the vote, the eligibility of all challenged ballots shall be determined through the Dispute Resolution procedures under subsection (h).
(ix)
Official Tally. Upon the completion of the tally, the Election Official shall deliver to management and the labor organization an official tally, certified under oath, indicating the number of votes for each choice. Delivery may be made by hand, electronic mail, first class U.S. mail, or fax.
(x)
Objections; Dispute Resolution. Management and the labor organization shall have seven (7) days following the completion of voting to file any objection or claim of violation of the provisions of this section. Such notices shall set forth, in detail, the factual basis for the objection or claim and shall be delivered in writing to the Election Official with copies to the other party.
Should the Election Official receive such a written objection or claim, the Election Official shall direct the parties to proceed to dispute resolution under subsection (h)(iii). Said directive shall be sent to the public employer and the labor organization by U.S. first class mail, electronic mail, or fax.
(g)
Election Results.
(i)
If the labor organization achieves a simple majority in the election, management and the labor organization shall proceed to engage in collective bargaining in accordance with this Title, provided that no election shall be considered valid unless it is by secret ballot vote of a majority of the employees in a bargaining unit in accordance with the provisions of this Chapter.
(ii)
If the labor organization fails to achieve a simple majority in the election, the results shall be treated as a choice for no labor organization representation for the subject bargaining unit for a period of twelve months. During this twelve month period, the labor organization shall not engage in “solicitation” or “organizing” relative to the subject bargaining unit. The terms “solicitation” and “organizing” shall be construed consistently with the definitions of those terms under the NLRA. Any such solicitation or organizing may be subject to an action for injunctive relief by the public employer in the Community Court.
(h)
Dispute Resolution.
(i)
Generally. Any alleged violation or dispute involving any aspect of this section, including but not limited to the inclusion or exclusion of particular employees from the subject bargaining unit as well as violations of subsection (e) or subsection (f) may be set forth by a party in a written demand for arbitration, setting forth the facts alleged an the specific provision of this section at issue. If the parties are unable to resolve the dispute within 7 days of service of any such demand, they shall proceed to resolve their dispute before an Arbitrator, drawn from the National Academy of Arbitrators. If the parties are unable to agree upon an arbitrator, they shall so inform the Election Official, who shall then choose the arbitrator from the National Academy of Arbitrators.
(ii)
Disputes Arising Under Subsection (e) Before Scheduled Vote; Notice; Good Faith Effort to Resolve.
(A)
Should either management or the labor organization become aware of perceived or potential violation prior to the election, they shall notify the other, in writing (via electronic mail or fax and via U.S. first class mail), of the charge and the basis for the charge. Management and the labor organization shall then make a good faith effort to resolve the alleged violation. This good faith effort shall include providing one another with unprivileged information relevant to the charge that is requested by the other.
(B)
If such good faith efforts do not result in resolution of the charge, the objecting party may provide a copy of the charge to the Arbitrator, simultaneously serving the other party, and ask the Arbitrator to immediately convene a conference call to discuss the charge and (a) in what manner it can promptly be resolved without disturbing the election timetable (such as mediation, expedited proceedings; hearing via conference call; written submission; in-person meeting or other mutually agreeable format; with the Arbitrator’s decision to be announced within 24 hours of the conclusion of hearing; and (b) whether the circumstances the charge merit postponing the election until such time as the charge is resolved by the Arbitrator or whether the election should proceed with the Arbitrator authorized to issue the appropriate remedy after the election has been conducted. The determination of the Arbitrator, as to how the charge will be addressed and whether it will delay the election, shall be made within 24 hours of the conference, and shall be final and binding.
The mutual requirement on management and the labor organization to assert known allegations in the most timely manner is intended to: (a) reduce any adverse impact of a violation at the soonest time; (b) minimize the chances of the conduct being repeated; and (c) determine whether the election should take place as scheduled. Failure to raise an allegation in a reasonably timely manner may be treated by the Election Official or an appointed arbitrator as a waiver.
(iii)
Disputes Arising After Vote; Good Faith Resolution of Disputes. Should either management or the labor organization assert an objection or claim under subsection (f)(x), the parties shall confer and attempt, in good faith, to resolve the objection or claim. Should the parties fail to resolve an alleged violation, the charging party may invoke Arbitration in accordance with subsection (h)(ii)(B) to resolve the party’s claim.
(iv)
Power and Discretion of Arbitrator; Written Decisions; Sanctions.
(A)
Subject to the subsection (h)(iv)(B), and unless otherwise provided herein, the Arbitrator shall be empowered to impose such remedial measures as the Arbitrator deems would resolve any dispute or fully ameliorate the impact of any conduct in violation of this section, ordering remedies typically available under persuasive public sector labor relations law or in the context of NLRA proceedings.
(B)
Standards for “Major” and “Minor” Violations. The distinction between a “major” and a “minor” violation shall be based upon the standards that would normally govern campaign activities and speech under the NLRA, but only to the extent that such standards are consistent with this Title and any other laws of the Tribe.
(C)
Violation by Management; Sanctions.
(1)
If the Arbitrator finds a “major violation” of subsection (e) or subsection (f) by management, the Arbitrator’s remedy may include requiring the public employer to consent to recognize the labor organization as bargaining agent for the employees of the bargaining unit involved in the election, based on a majority percentage of cards that are signed by eligible employees (minimum of 50% of the employees eligible to vote plus 1). To the extent the labor organization has less than the required cards to justify recognition, the labor organization shall have twenty-one (21) days from the date of the Arbitrator’s decision to attain sufficient additional cards to warrant recognition. Management shall remain strictly neutral with respect to any such card-signing campaign. The Election Official shall conduct a supplemental card check by confirming the eligibility of each employee who signs a card, and, if a majority of valid cards are obtained, certify the results.
(2)
If the Arbitrator finds a “minor violation” of subsection (e) or subsection (f) by management, the Arbitrator may reschedule the vote and/or order such other remedy as fairness and justice requires; provided however, that multiple “minor violations” may constitute grounds for the Arbitrator to find a “major violation.”
(3)
The Arbitrator shall only require the card check remedy set forth above if such remedy is consistent with persuasive public sector labor relations law or in accordance with the U.S. Supreme Court’s decision N.L.R.B. v. Gissel Packing Co., 396 U.S. 804 (1969) and its progeny.
(D)
Violation by Labor Organization; Sanctions.
(1)
If the Arbitrator finds a “major violation” of subsection (e) or subsection (f) by the labor organization, the labor organization shall abstain from all activities and actions of any kind to promote the organization of a labor organization, or otherwise seek representation of any employees at the public employer, for a period of twelve (12) months after the election. To the extent any improper “campaigning” of any kind occurs, this representational bar may be extended by an additional six (6) months per violation upon a finding of such additional improper conduct by the Arbitrator.
(2)
If the Arbitrator finds a “minor violation” of subsection (e) or subsection (f) by the labor organization, the Arbitrator may reschedule the vote and/or order such other remedy as fairness and justice requires; provided however, that multiple “minor violations” may constitute grounds for the Arbitrator to find a “major violation”.
(3)
The Arbitrator’s discretion in establishing a remedy for labor organization misconduct shall be guided by persuasive public sector labor relations law or principles followed by the NLRB.
(E)
The decision of the Arbitrator shall be in writing and issued as soon as possible following the close of a hearing, and, in any event, no more than 14 days following such hearing.
(F)
Allegations shall be provable by a preponderance of the evidence, and the rules of evidence applicable to trials in the Community Court shall apply.
(G)
The Arbitrator’s decision shall be final and binding on the public employer and the labor organization.
(Res. 11-A-015, 3/8/2011)