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 negoti-
ate and agree upon the terms and conditions of
employment through COLLECTIVE BARGAIN-
ING, 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 repre-
sentative 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 recog-
nize a cohesive, homogeneous group of employ-
ees as a bargaining unit, thus acknowledging a
particular union that claims to be its representa-
tive 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 evi-
dence 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 deter-
mined, 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 pro-
ceeding decision is subject to JUDICIAL REVIEW
only if there is evidence of ABUSE OF DISCRE-
TION. The court of appeals, as a rule, defers to
the NLRB because of its presumed expertise in
the labor area. An aggrieved employer dissatis-
fied with a certification proceeding can obtain
review by refusing to bargain with the agent,
thereby committing an UNFAIR LABOR PRAC-
TICE. 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.
CROSS-REFERENCES
Labor Law; Labor Union.
