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The Board will set aside an election if a party to the election (or, in rare cases, a third party) commits objectionable conduct that may have affected the outcome. Unfair labor practices, such as those described in the app pages about interfering with employee rights and discriminating against employees because of their union activities, are objectionable. In addition, conduct that is not an unfair labor practice may invalidate an election if it impermissibly interferes with employees' ability to freely choose whether to be represented by a union or which union to designate as a representative. For example, the Board may set aside an election, even if you have not engaged in any unfair labor practices, if you

  • Make untruthful campaign statements using forged documents that leave employees unable to recognize election propaganda for what it is.
  • Alter an official Board document to make it look like the Board favors a particular election outcome.
  • Engage in excessive electioneering at or near the polls.
  • Engage in prolonged conversations with employees waiting in line to vote, regardless of the subject.
  • Keep a list of employees who have voted.
  • Make irrelevant, inflammatory, and sustained appeals to ethnic or racial prejudice.
  • Make an election speech on company time to a massed assembly of employees within 24 hours of the election.
  • Change your paycheck distribution process within 24 hours of the election.
  • Conduct a raffle within 24 hours of the election if eligibility to participate in the raffle is tied to voting or being at the election site on election day.
  • Fail to timely provide to the Regional Director a list of the names and addresses of employees eligible to vote in the election.
  • Participate in a union-organizing effort through prounion supervisory conduct, such as soliciting or requiring employees to sign authorization cards.
  • Fail to post the Board's notice of election at least 3 full working days before the day of the election.

On the other hand, there are many things you may do, as an employer, before as well as after a union is certified or voluntarily recognized as the representative of a unit of your employees. Some of those are listed under "you may" in the Section 8(a)(3) and 8(a)(5) screens. In addition, you may

  • Recognize a union that has uncoerced majority support. (Employers in the construction industry may contract with a union under Section 8(f) regardless of whether the union has majority support.)
  • Agree with a union to recognize it if and when it demonstrates majority status.
  • Agree with a union to maintain neutrality during the union organizing campaign, or choose not to so agree.
  • Refuse to recognize a union voluntarily.
  • File an election (RM) petition if a union asks for recognition.
  • Poll your employees to determine the truth of a union's claim of majority status, provided that you observe certain safeguards. You must not have engaged in unfair labor practices or otherwise created a coercive atmosphere. In addition, you must (1) communicate to employees that the purpose of the poll is to determine whether the union enjoys majority support (and that must, in truth, be your purpose); (2) give employees assurances against reprisal; and (3) conduct the poll by secret ballot.
  • Agree with a petitioning union to the terms of a Board-conducted representation election.
  • Refuse to agree to the terms of an election and dispute the union's election petition at a regional hearing.
  • Ask the Board to review the Regional Director's election decision.
  • Communicate your views about unions or a specific union to your employees, provided you make no threats or promises.
  • Predict the precise effects you believe unionization will have on your company, provided that the prediction is carefully phrased on the basis of objective fact to convey your belief as to demonstrably probable consequences beyond your control.
  • Exclude nonemployee union organizers from your property, unless your workplace is inaccessible and therefore puts your employees beyond the reach of reasonable union efforts to communicate with them, or you discriminate against the union. (What "discriminate against the union" means in this context has been variously defined.)
  • Continue unchanged a practice of soliciting grievances from employees during a union campaign if the practice was in place before the campaign began.
  • Maintain and enforce nondiscriminatory rules prohibiting employees from engaging in solicitation on working time, and from distributing literature on working time or in working areas. (Special rules apply to hospitals, retail stores, and casinos.)
  • Maintain a rule limiting access to your workplace by off-duty employees, if the rule (1) denies access only to the interior of the facility and outside working areas (if any); (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access for any purpose, not just for the purpose of engaging in union activity.
  • Maintain and enforce other rules for your employees, provided the rules do not reasonably tend to inhibit them from exercising their rights under the Act.
  • Restrict employee use of workplace communication media you own (such as bulletin boards, telephones, and digital devices), provided that you do not discriminate against union-related or other protected communications.
  • Solicit employees to appear in a campaign video if (1) the solicitation takes the form of a general announcement that discloses the purpose of the video and assures employees that participation is voluntary, nonparticipation will not result in reprisals, and participation will not result in rewards or benefits; (2) employees are not pressured to make the decision in the presence of a supervisor; (3) you engage in no other coercive conduct in connection with the announcement; (4) you have not created a coercive atmosphere by engaging in serious or pervasive unfair labor practices; and (5) you do not go beyond soliciting consent by seeking information concerning union matters or otherwise interfering with employees' rights under the Act.
  • Change employees' wages or benefits during a union campaign if you would have made the change had the union not been on the scene. (You may also postpone the change until after the election, provided that you make clear to employees that the change will occur whether or not they select the union, and that your sole purpose for postponing the change is to avoid any appearance of trying to influence the outcome of the election.)
  • Have an observer at the election (but not a supervisor).
  • Challenge, through your observer and for good cause, voters you believe to be ineligible.

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