How-to guide: How to comply with union-certification election rules (USA)

Introduction

This guide will help in-house counsel, private practice lawyers and human resource professionals to understand and comply with the rules relating to union-certification elections.

This guide covers the following:

Procedure before a union-certification election
Elections and certification
Impacts of union certification on an employer

This guide can be read in conjunction with How-to guide: Overview of US employment law and Checklist: Preparing for a National Labor Relations Board representation hearing.

Section 1 – Procedure before a union-certification election

1.1 National Labor Relations Board jurisdiction

The National Labor Relations Act (NLRA), also referred to as the Wagner Act, gives most private-sector employees the right to organize and bargain collectively with their employers via labor unions. The NLRA largely pre-empts state law; however, it does not cover public-sector employees and explicitly excludes some categories of workers, such as agricultural workers, so state law remains relevant in these areas.

The National Labor Relations Board (NLRB) is an independent federal agency responsible for enforcing the NRLA. The NLRB has jurisdiction over employers whose operations affect interstate commerce and have annual sales or gross revenue that exceed industry-specific thresholds (see NLRB’s guidance on jurisdictional standards).

Employers can voluntarily recognize a labor union based on a showing that a majority of the employees want to be represented by it. Such voluntary recognition falls outside the NLRB process. Most unions, however, are established via union-certification elections. These elections are overseen and held by the NLRB.

Note that an employer will be required to recognize and bargain with a union without a formal vote or without the employer’s agreement if the union shows that a majority of the employees show support for the union (see Cemex Construction Materials Pacific LLC, NLRB, Case 28-CA-230115 (25 August 2023)).

1.2 Procedure for holding elections

A union-certification election begins with filing a petition for a secret ballot election with the regional NLRB office. The petitioner (the employees or the union) must show support from at least 30 percent of employees in the bargaining unit. Agents of the NLRB review the petition to ensure that the NLRB has jurisdiction, that the proposed union meets its requirements, and that there are no other impediments to an election, such as an existing labor contract with another union, or other recently held elections.

The NLRB will notify the employer that a petition has been filed. The NLRB will then work with the employer, union and other parties (eg, legal counsel, or community representatives) to determine the time, place, and manner of the election.

If an election agreement is reached, the parties authorize the NLRB to conduct the election on the agreed date. If the parties do not manage to reach an agreement, the NLRB’s regional director will hold a hearing with all interested parties (as described above) and may order an election and specify its conditions. A hearing may be required to address any number of issues. For example, the union may assert that all employees should be in one bargaining unit while the employer may argue that some employees should be excluded from the process or that there should be multiple bargaining units based on different office locations or type of work performed.

Once an agreement has been reached, the employer is required to post a Notice of Petition for Election. This must be done conspicuously and at any places customarily used to post notices to employees, including circulation of the notice electronically if applicable.

If there is already a recognized labor union, but a competing union successfully petitions for an election, a three-way election will be held. Such circumstances typically arise because the existing labor contract has, or is about to, expire, thereby providing the opportunity for a competing union to petition for an election.

Once the election date is set, the employer is required to provide an Election Voter List (also known as the ‘Excelsior List’) to the union organizers. This list must contain the names, job details and home addresses of all employees who are eligible to vote in the election. If available, personal email addresses and phone numbers must also be provided. Time is of the essence for providing the Excelsior List, as the NLRB recently rescinded a rule that gave employers five days to provide this information. Under the 2023 rule change, employers now have only two days to do so (see NLRB news update).

1.3 Campaigning: rights and restrictions

Even if they are strongly opposed to unionization, employers must be careful to avoid activities that could be deemed unfair labor practices (which are outlined in section 8 of the NLRA).

Employees’ activities are protected by the NLRB, including the right to campaign for unionization outside of their working time and in non-work areas. This includes before or after working hours and during breaks. Employees may distribute union literature in areas such as break rooms or parking lots. In addition, in accordance with NLRB guidance, if employers permit their employees to discuss matters that are not related to work during working time, they must also allow discussions about unions, as failing to do so would be discriminatory.

Employers also have a right to campaign against unionization. As section 8c of NLRA notes, expressing any views or opinions only constitutes an unfair labor practice under the NLRA where the expression contains a threat of reprisal or force or a promise of benefit. The abbreviation ‘TIPS’ can provide a helpful reminder for employers of what to avoid:

threats;
interrogation;
promises; and
surveillance.

Some examples of prohibited actions are outlined on the NLRB’s website, and include:

threatening employees with closing the workplace or a loss of benefits if they support a union;
photographing or videotaping employees engaged in peaceful union activities; and
denying off-duty employees’ access to outside non-work areas of the employer’s property unless business reasons justify doing so.

1.3.1 Captive-audience meetings

On November 13 2025, a significant decision was handed down by the National Labor Relations Board (NLRB) in the case of Amazon.com Services LLC. The decision effectively outlawed the long-standing practice of ‘captive-audience meetings’. These are mandatory gatherings orchestrated by employers where management articulates their perspectives and arguments against unionization to their employees. This landmark ruling directly overturns the precedent set by Babcock & Wilcox Co. 77 NLRB 577 (1948), which confirmed that employers may hold mandatory meetings during work hours to discuss union organizing.

The legal foundation for captive-audience meetings stemmed from the 1947 enactment of Section 8(c) of the National Labor Relations Act (NLRA). This provision was designed to safeguard employers' rights to freely communicate their views on labor unions without the threat of being accused of unfair labor practices. Following this legislative development, the NLRB's Babcock & Wilcox ruling established a legal framework allowing employers to compel employees to attend meetings where the employer presented its stance on unionization. This decision was often viewed as a delicate balancing act, aiming to accommodate employers' First Amendment rights to free speech while simultaneously protecting employees' rights to make informed and uncoerced decisions regarding union membership.

In a 3-1 vote, the NLRB in the Amazon.com Services LLC case reversed the Babcock & Wilcox precedent. The NLRB declared that captive-audience meetings are inherently coercive and thus violate employees' rights as enshrined in Section 8(a)(1) of the NLRA. The core of the NLRB's reasoning was that these mandatory meetings ‘have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 right to freely decide whether or not to unionize, including the right to decide whether, when, and how they will listen to and consider their employer’s views concerning that choice.’ In essence, the NLRB concluded that compelling employees to attend these anti-union presentations creates undue pressure, fosters an environment of potential fear and intimidation, and undermines the employees' fundamental right to choose whether or not to engage with the employer's anti-union messaging. The NLBR articulated three primary justifications for this conclusion:

Employees' right to choose engagement: the NLRA guarantees employees the right to decide whether or not to listen to an employer's communications regarding unionization during their working hours. Mandatory captive-audience meetings directly contravene this right by forcing employees into a potentially uncomfortable and coercive situation where they are compelled to receive and potentially internalize the employer's anti-union message, regardless of their personal inclination to do so.
Risk of employer surveillance: the NLRB highlighted that captive-audience meetings provide employers with an opportunity to observe and monitor employee behavior and reactions during the anti-union presentations. This observation could potentially allow employers to identify employees who may be supportive of unionization. The NLRB expressed concern that this identification could subsequently lead to discriminatory actions or adverse employment consequences directed towards pro-union workers, chilling the exercise of their Section 7 rights.
Implicit coercion through mandatory attendance: the very act of employers mandating attendance at these meetings, under the threat of disciplinary action or even termination for non-compliance, carries an implicit coercive message. Employees may reasonably perceive that there is a corresponding expectation to adopt the employer's anti-union stance to avoid potential negative repercussions, even if such consequences are not explicitly stated. The NLRB emphasized that the employer's power to compel attendance underscores the inherent economic power imbalance between employers and employees, which can inhibit employees from acting freely in exercising their rights under the NLRA.

While the Amazon.com Services LLC decision prohibits mandatory captive-audience meetings, it does establish a ‘safe harbor’ for employers who wish to express their views on unionization to their employees in a non-coercive manner. According to the NLRB's ruling, meetings concerning an employer's opinions on unions will not be considered a violation of the NLRA if the employer adheres to the following stringent conditions:

Advance notice of subject matter: the employer must provide employees with clear and timely advance notice that a meeting is scheduled and that the specific topic of the meeting will be the employer's views on unionization. This allows employees to make an informed decision about whether or not they wish to attend a meeting on this particular subject.
Explicitly voluntary attendance: the employer must unequivocally communicate to employees that attendance at the meeting is entirely voluntary and not a requirement of their employment. This means employees should feel free to choose not to attend without fear of any negative consequences.
Assurance against adverse consequences: the employer must explicitly assure employees that there will be no disciplinary actions, termination, or any other adverse employment consequences for choosing not to attend the meeting or for leaving the meeting before it concludes. This reinforces the voluntary nature of the meeting and alleviates potential concerns about retaliation.
No attendance records: the employer must guarantee that it will not keep any records of which employees attend the meeting, which employees do not attend, or which employees leave the meeting early. This further underscores the voluntary nature of the meeting and prevents any potential for tracking and potential discrimination based on attendance.

The NLRB explicitly stated that this new standard will be applied prospectively only. This means that the ruling will not have retroactive effect and will not apply to situations or conduct that occurred prior to the Amazon.com Services LLC decision. This prospective application is intended to appropriately accommodate the reasonable reliance that employers may have previously placed on the now-overruled Babcock & Wilcox precedent.

Even prior to this NLRB ruling, a growing number of state legislatures had already taken action to restrict or prohibit captive-audience meetings to varying degrees. These state laws often focus on preventing retaliation against employees who refuse to attend meetings concerning a range of topics, including religion, politics, and unionization. States with such laws currently in effect or soon to be in effect include Alaska, California, Connecticut, Hawai’i, Illinois, Maine, Minnesota, New York, Oregon, Vermont, and Washington. This trend at the state level indicates a growing societal concern regarding the potential for coercion inherent in mandatory employer meetings on sensitive topics. Note, however, that enforcement of the California law has been stayed by an order of the US District Court for the Eastern District of California, which held that the law was pre-empted by federal labor law, and that it was also an unconstitutional restriction on speech. See California Chamber of Commerce v Bonta, No. 2:24-cv-03798-DJC (E.D. Cal. Sept. 30, 2025).

The Amazon.com Services LLC ruling, assuming it withstands potential legal challenges and future NLRB reversals, represents a significant shift in the federal government's stance on the permissible boundaries of employer-employee communications regarding unionization. While the decision is intended to bolster employee rights by protecting them from potential coercion and undue influence during union organizing campaigns, it also curtails employers' ability to directly convey their anti-union perspectives within the workplace setting. Moving forward, employers will need to carefully navigate the newly established rules governing employee communications related to unionization and, at least for the time being, ensure that any discussions or meetings on this topic strictly adhere to the conditions outlined in the Amazon.com Services LLC decision to remain compliant with federal labor law.

Section 2 – Elections and certification

Union elections are conducted by the NLRB. In-person voting (via manual elections) is the general rule. Each party is typically represented by observers to ensure that the election is conducted appropriately. Voters are asked to give their names and receive an anonymous ballot to fill out in a voting booth. If necessary, a specific procedure is available for separate ballots to be cast by individuals whose voting eligibility is challenged, and these votes are only counted if necessary to reach a final result.

Though in-person voting is strongly preferred, the covid-19 pandemic prompted the NLRB to outline under what circumstances voting by mail is possible. As explained in decisions issued in 2022 (Starbucks, 371 NLRB No. 154) and 2021 (Aspirus, 370 NLRB No. 45), NLRB regional directors have considerable discretion regarding voting method, but will not be found to have abused that discretion when directing a mail-ballot election where compelling considerations justify doing so.

When the election is over, the NLRB counts the ballots. The result is based on a majority of valid votes cast, not a majority of employees eligible to vote. If there are no objections to the vote count and the union has attained a majority, the NLRB will certify the union as the exclusive collective bargaining representative.

Objections are possible within five days of the vote count and must be filed with the regional director. Under 29 CFR, section 102.69 objections may be related to the conduct of the election or to conduct affecting the results of the election. The director’s decision on any objections can (unless agreed otherwise) be appealed to the NLRB in Washington, DC. Election results can be set aside, for example, if an employer’s actions created an ‘atmosphere of confusion or fear of reprisals.’

The NLRB has published a chart outlining the representation election process for quick reference.

Section 3 – Impacts of union certification on an employer

Once the NLRB certifies a union, the union benefits from an irrebuttable presumption (a conclusive presumption that cannot be rebutted by evidence) of majority status for one year. If a collective bargaining agreement is reached, that presumption continues during the agreement’s term, which can last up to three years.

3.1 Bargaining requirement

After certification, the employer and the union must begin bargaining towards a labor contract. Under the NLRA (29 USC section 159(a)), the employer must recognize a certified union as the exclusive bargaining agent for employees in the respective bargaining unit and bargain in good faith with it. Any failure to bargain with the union is considered an unfair labor practice. The bargaining requirement applies to mandatory subjects, such as wages, hours and working conditions. Including permissive subjects, such as defining the bargaining unit, selection of a bargaining representative, and internal union affairs (eg, union elections and meetings), is optional.

The NLRB notes that the duty to bargain with the union ‘encompasses many obligations’, and lists multiple examples, warning that these ‘barely scratch the surface’ (see NLRB guidance: Bargaining in good faith with employees' union representative). Examples provided by the NLRB of how an employer might fail to bargain collectively as required by section 8(d) of the NLRA include:

failing to bargain in good faith;
failing to meet with the union at reasonable times and reasonable intervals;
refusing to furnish, or unreasonably delaying the furnishing of, certain information requested by the union; and
polling represented employees on their support for the incumbent union without a good-faith, reasonable uncertainty that the union still enjoys majority support.

3.2 Union dues

Whether or not all employees are obliged to join a certified union is the subject of considerable debate, and states approach the issue in different ways. At the federal level, the NLRA allows employers and unions to enter into union-security agreements, which oblige employees in a specific unit to become members and pay union dues and fees (within a certain time period). See 29 USC section 158(a)(3) and NLRB guidance.

Under what is known as a ‘Beck right’, however, employees who do not wish to be represented by a union can limit their payments to those that cover collective bargaining and contract administration. In addition, around half of all states actually prohibit union-security agreements and in these ‘right-to-work’ states, employees are not required to pay dues even if they benefit from collective representation (see the National Conference of State Legislatures’ right-to-work resources). In an unusual development, Michigan repealed its right-to-work law in early 2023.

Even when required or permitted, collecting union dues can be a burdensome process for unions. As a result, many collective bargaining agreements include ‘dues-checkoff provisions’, which oblige employers to deduct such dues from pay checks and remit them to the union.

3.3 Decertification

Employees’ support of their union may wane over time. After a union has been certified for one year, employees can file a petition for decertification if they can collect signatures in support from 30 per cent of workers in the specific bargaining unit at issue. However, where the union has reached a collective-bargaining agreement with the employer, this is only possible after three years or after the collective-bargaining agreement expires, or during a specific window about four to three months before expiry. As with certification, the majority of votes decide the issue of decertification.

Employers should tread carefully if they receive signals that some employees are unhappy with a union. In particular, employers should avoid encouraging decertification, or providing assistance to those seeking to decertify a union. This is because such behavior may very well amount to an unfair labor practice under the NLRA. Specifically, the law prohibits ‘initiating, soliciting employees to sign, or lending more than minimal support to or approval of a decertification or union-disaffection petition.’ Permitted activities are especially limited during the initiation and petition stages, while employers do have the right to campaign during the election stage. See 29 USC sections 157, 158(a)(1).

The NLRB has issued various decisions that deem employer activity that appears quite innocuous as problematic – such as, for example, typing a petition for the employees or doing so on the employer’s letterhead, or providing transportation to the NLRB’s regional office in connection with a decertification election. The NLRB is considering a proposed rule (87 FR 66890) that would reinstate the possibility for unions to block a decertification election merely by alleging unlawful conduct by the employer. The possibility to do this was removed in a 2020 amendment introduced in response to employer claims that such charges were often being frivolously made to delay elections.

Additional resources

US Department of Labor, Employer.gov (compliance assistance resources)
US Department of Labor, Worker.gov (information on workers’ rights)
National Labor Relations Board, Manuals on NLRB cases

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How-to guide: How to comply with union-certification election rules (USA)

Introduction

Section 1 – Procedure before a union-certification election

1.1 National Labor Relations Board jurisdiction

1.2 Procedure for holding elections

1.3 Campaigning: rights and restrictions

1.3.1 Captive-audience meetings

Section 2 – Elections and certification

Section 3 – Impacts of union certification on an employer

3.1 Bargaining requirement

3.2 Union dues

3.3 Decertification

Additional resources

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