§ 941. Unit determination, certification, and representation

(a) The Board shall determine issues of unit determination, certification, and representation in accordance with this chapter.

(b) No bargaining unit or collective bargaining representative shall be recognized by the employer until the Board has determined the appropriate unit to be represented and has formally certified its determination.

(c)(1) A petition may be filed with the Board, in accordance with procedures prescribed by the Board by an employee or group of employees, or any individual or employee organization purporting to act on their behalf, alleging by filing a petition or petitions bearing signatures of not less than 30 percent of the employees that they wish to form a bargaining unit and be represented for collective bargaining, or that the individual or employee organization currently certified as the bargaining agent is no longer supported by at least 51 percent of the employees in the bargaining unit, or that they are now included in an approved bargaining unit and wish to form a separate bargaining unit under Board criteria for purposes of collective bargaining. The employee, group of employees, individual, or employee organization that files the petition, shall, at the same time that the petition is filed with the Board, provide a copy of the petition to the employer and, if appropriate, the current bargaining agent.

(2)(A)(i) An employer shall, not more than seven business days after receiving a copy of the petition, file any objections to the appropriateness of the proposed bargaining unit and raise any other unit determination issues with the Board and provide a copy of the filing to the employee, group of employees, individual, or employee organization that filed the petition.

(ii) A hearing shall be held before the Board pursuant to subdivision (d)(1)(B) of this section in the event the employer challenges the appropriateness of the proposed bargaining unit, provided that a hearing shall not be held if the parties stipulate to the composition of the appropriate bargaining unit and resolve any other unit determination issues before the hearing.

(iii) The Board may endeavor to informally mediate any dispute regarding the appropriateness of the proposed bargaining unit prior to the hearing.

(B)(i) Within five business days after receiving a copy of the petition, the employer shall file with the Board and the employee or group of employees, or the individual or employee organization purporting to act on their behalf, a list of the names and job titles of the employees in the proposed bargaining unit. To the extent possible, the list of employees shall be in alphabetical order by last name and provided in electronic format.

(ii) An employee or group of employees, or any person purporting to act on their behalf, that is seeking to demonstrate that the current bargaining agent is no longer supported by at least 51 percent of the employees in the bargaining unit shall not be entitled to obtain a list of the employees in the bargaining unit from the employer pursuant to this subdivision (c)(2)(B), but may obtain a list pursuant to subdivision (e)(3) of this section after the Board has investigated its petition and determined that a secret ballot election shall be conducted.

(iii) The list shall be kept confidential and shall be exempt from copying and inspection under the Public Records Act.

(d) The Board, a Board member, or a person or persons designated by the Board shall investigate the petition and do one of the following:

(1) Determine that the petition has made a sufficient showing of interest pursuant to subdivision (c)(1) of this section.

(2)(A) If it finds reasonable cause to believe that a question of unit determination or representation exists, the Board shall schedule a hearing to be held before the Board not more than ten business days after the petition was filed with the Board.

(B) Once scheduled, the date of the hearing shall not be subject to change except as provided pursuant to subdivision (e)(4) of this section.

(C) Hearing procedure and notification of the results of the hearing shall be in accordance with rules adopted by the Board, except that the parties shall only be permitted to submit posthearing briefs within not more than five business days after the hearing if the parties mutually agree to do so or if the Board requests that the parties submit posthearing briefs.

(D) The Board shall issue its decision as soon as practicable and, in any event, not more than five business days after the hearing or the submission of any posthearing briefs.

(3) If the Board finds an absence of substantive evidence, it shall dismiss the petition.

(e)(1) Whenever, on the basis of a petition pursuant to subdivision (d)(1) of this section or a hearing pursuant to subdivision (d)(2) of this section, the Board finds substantial interest among employees in forming a bargaining unit or being represented for purposes of collective bargaining, a secret ballot election shall be conducted by the Board not more than 23 business days after the petition is filed with the Board except as otherwise provided pursuant to subdivision (4) of this subsection.

(2) The election shall be conducted so that it shows separately the wishes of the employees in the voting group involved as to the determination of the collective bargaining unit, including the right not to be organized. The collective bargaining unit or collective bargaining representative shall be recognized and certified by the Board upon a majority vote of the employees voting.

(3)(A) The employer shall file with the Board and the other parties a list of the employees in the bargaining unit within two business days after the Board determines that a secret ballot election shall be conducted.

(B) The list shall include, as appropriate, each employee’s name, work location, shift, job classification, and contact information. As used in this subdivision (3), “contact information” includes an employee’s home address, personal e-mail address, and home and personal cellular telephone numbers to the extent that the employer is in possession of such information.

(C) To the extent possible, the list of employees shall be in alphabetical order by last name and provided in electronic format.

(D) The list shall be:

(i) kept confidential by the Board and all of the parties; and

(ii) shall be exempt from copying and inspection under the Public Records Act.

(E) Failure to file the list within the time required pursuant to subdivision (A) of this subdivision (3) may be grounds for the Board to set aside the results of the election if an objection is filed within the time required pursuant to the Board’s rules.

(4) The Board may, upon the request of any party or on its own motion, extend any time period set forth in this subsection or in subsections (c) and (d) of this section for good cause, provided that the election shall be conducted, or, in the event of a mail ballot election, that ballots are mailed to the employees, within not more than 60 calendar days after the date the petition is filed pursuant to subsection (c) of this section. The Board may further extend the time to conduct the election by not more than 30 additional calendar days upon the mutual agreement of the parties or if it determines that extraordinary circumstances have made such an extension necessary.

(f) In determining the appropriateness of a collective bargaining unit, the Board shall take into consideration but not be limited to the following criteria:

(1) The authority of governmental officials at the unit level to take positive action on matters subject to negotiation.

(2) The similarity or divergence of the interests, needs, and general conditions of employment of the employees to be represented. The Board may, in its discretion, require that a separate vote be taken among any particular class or type of employees within a proposed unit to determine specifically if the class or type wishes to be included.

(3) Whether over-fragmentation of units among State employees will result from certification to a degree that is likely to produce an adverse effect either on effective representation of State employees generally, or upon the efficient operation of State government.

(g)(1) In determining the representation of State employees in a collective bargaining unit, the Board shall conduct a secret ballot of the employees within the time period set forth in subdivision (e)(1) of this section, unless the time to conduct the election is extended pursuant to subdivision (e)(4) of this section, and certify the results to the interested parties and to the State employer. The original ballot shall be so prepared as to permit a vote against representation by anyone named on the ballot. No representative will be certified with less than a majority of the votes cast by employees in the bargaining unit.

(2) If in such election none of the choices receive a majority of the votes cast, a runoff election shall be conducted, the ballot providing for a selection between two choices receiving the largest and second largest number of valid votes cast in the original election.

(3) The Board’s certification of the results of any election shall be conclusive as to findings unless reviewed under proceedings instituted for the prevention of prohibited practices in section 965 of this title.

(h) A representative chosen by secret ballot for the purposes of collective bargaining by a majority of the votes cast shall be the exclusive representative of all the employees in such unit for a minimum of one year. Such representative shall be eligible for reelection.

(i) The Board, by rule, shall prescribe a uniform procedure for the resolution of employee grievances submitted through the collective bargaining machinery. If the collective bargaining agreement does not provide that binding arbitration will be the final step of the negotiated grievance procedure pursuant to section 926 of this chapter, the final step of the negotiated grievance procedure, if required, shall be a hearing and final determination by the Board. Grievance hearings conducted by the Board shall be informal and not subject to the rules of pleading procedure, and evidence of the courts of the State. Any employee or group of employees included in a duly certified bargaining unit may be represented before the Board by its bargaining representative’s counsel or designated executive staff employees or by any individual the Board may permit at its discretion.

(j) Any individual employee or group of employees shall have the right at any time to present complaints to their employer informally, and to have such complaints considered in good faith with or without the intervention of the bargaining representative. Adjustments shall not be inconsistent with the terms of a collective bargaining contract or agreement then in effect. All such complaints shall be considered and a decision formulated and the complainant informed thereof within 15 days of presentment.

(k) Nothing in this chapter requires an individual to seek the assistance of his or her collective bargaining unit or its representative(s) in any grievance proceeding. He or she may represent himself or herself or be represented by counsel of his or her own choice or may avail himself or herself of the unit representative in grievance proceedings.

(l) [Repealed.] (Added 1969, No. 113, § 1; amended 1971, No. 193 (Adj. Sess.), §§ 9-11, eff. April 3, 1972; 1973, No. 176 (Adj. Sess.), §§ 1-4; 1975, No. 52; 1977, No. 109, §§ 10, 33(e), eff. July 3, 1977; 1993, No. 227 (Adj. Sess.), § 30; 2013, No. 37, § 4; 2015, No. 35, § 4, eff. May 26, 2015; 2019, No. 180 (Adj. Sess.), § 1, eff. Jan. 1, 2021.)