Certification Proceeding

An administrative hearing before the NATIONAL LABOR RELATIONS BOARD (NLRB), pursuant to the federal WAGNER ACT (29 U.S.C.A. § 151 et seq. [1935]) to determine whether a group of employees is an appropriate bargaining unit, and if so, to decide whether a particular union should be declared its bargaining agent.

Employers and employees frequently negotiate and agree upon the terms and conditions of employment through COLLECTIVE BARGAINING, in which a representative of a particular group of employees presents the employees' demands to the employer so that a mutually advantageous accord can be reached. Before such bargaining can occur, it must be decided what group of employees will be served by the representative who will legally bind the group by his or her acceptance or rejection of the employer's terms. Once the group—the bargaining unit—is established the identity of its representative must be determined. Employers often willingly recognize a cohesive, homogeneous group of employees as a bargaining unit, thus acknowledging a particular union that claims to be its representative or bargaining agent. Disputes occasionally arise, however, over (1) the control of the union by the employer, thereby conflicting with the union's position as a representative of the employees; (2) the failure of a majority of the unit to select the union; (3) the wrongful action of a union that has usurped the rightful status of another union as the bargaining agent of the unit; and (4) situations in which the employer refuses to recognize the unit or its union.

A certification proceeding is the statutorily prescribed method of resolving such difficulties. The NLRB investigates a petition filed by the employees concerning a union acting in behalf of the employees, which the employer refuses to recognize or a petition by an employer who has received a claim of representation by the union. The NLRB holds a nonadversarial fact-finding hearing to determine whether a valid question concerning representation exists. The hearing officer forwards the transcript containing evidence to the regional director of the NLRB. The regional director can dismiss the petition or decide to hold a secret ballot election for the bargaining agent and certify the result. Prior to the election, the director determines which employees are within the unit for purposes of voter eligibility. The NLRB will review a regional director's decision only if a statutorily determined, compelling reason exists, for instance, if his or her decision on a substantial issue of fact is clearly erroneous and adversely affects the rights of one party. An NLRB certification proceeding decision is subject to JUDICIAL REVIEW only if there is evidence of ABUSE OF DISCRETION. The court of appeals, as a rule, defers to the NLRB because of its presumed expertise in the labor area. An aggrieved employer dissatisfied with a certification proceeding can obtain review by refusing to bargain with the agent, thereby committing an UNFAIR LABOR PRACTICE. Such a practice would probably result in an unfair labor practice proceeding and the final order that is made by the NLRB in such an action is reviewable by the court of appeals.