N.Y. Labor Law § 705: Representatives and elections

§ 705. Representatives and elections. 1. Representatives designated by

the board after a showing of majority interest or selected for the

purposes of collective bargaining by the majority of the employees in a

unit appropriate for such purposes or by the majority of the employees

voting in an election conducted pursuant to this section shall be the

exclusive representatives of all the employees in the appropriate unit

for the purposes of collective bargaining in respect to rates of pay,

wages, hours of employment, or other conditions of employment: Provided,

that employees, directly or through representatives, shall have the

right at any time to present grievances to their employer.

The board shall designate a representative for purposes of collective

bargaining when such representative demonstrates a showing of majority

interest by employees in the unit. In cases where the parties to a

dispute are without agreement on the means to ascertain the choice, if

any, of employee organization as their representative, the board shall

ascertain such employees' choice of employee organization, on the basis

of dues deduction authorization and other evidence, or if necessary by

conducting an election. In the event that either party provides to the

board, prior to the designation of a representative, clear and

convincing evidence that the dues deduction authorizations, and other

evidence upon which the board would otherwise rely to ascertain the

employees' choice of representative, are fraudulent or were obtained

through coercion, the board shall promptly thereafter conduct an

election. The board shall also investigate and consider a party's

allegations that the dues deduction authorizations and other evidences

submitted in support of a designation of representative without an

election were subsequently changed, altered, withdrawn or withheld as a

result of employer fraud, coercion or any other unfair employer labor

practice as defined in section seven hundred four of this article. If

the board determines that a representative would have had a majority

interest but for the employer's fraud, coercion or unfair labor

practice, it shall designate the representative without the conduct of

an election.

1-a. If the choice available to the employees in a negotiating unit is

limited to selecting or rejecting a single employee organization, that

choice shall be ascertained by the board on the basis of dues deduction

authorizations instead of by an election. In such case, the employee

organization involved will be certified without an election if a

majority of the employees within the unit have executed a showing dues

deductions authorizations.

1-b. The board shall determine whether any supervisory employee shall

be excluded from any negotiating unit that includes rank-and-file farm

laborers; provided, however, that nothing in this subdivision shall be

construed to limit or prohibit any supervisory employee from organizing

a separate negotiating unit.

2. The board shall decide in each case whether, in order to insure to

employees the full benefit of their right to self-organization, to

collective bargaining and otherwise to effectuate the policies of this

article, the unit appropriate for the purposes of collective bargaining

shall be the employer unit, multiple employer unit, craft unit, plant

unit, or any other unit; provided, however, that in any case where the

majority of employees of a particular craft, or in the case of a

non-profitmaking hospital or residential care center where the majority

of employees of a particular profession or craft, shall so decide the

board shall designate such profession or craft as a unit appropriate for

the purpose of collective bargaining.

3. Whenever it is alleged by an employee or his representative, or by

an employer or his representative, that there is a question or

controversy concerning the representation of employees, the board shall

investigate such question or controversy and certify in writing to all

persons concerned the name or names of the representatives who have been

designated or selected. In any such investigation the board shall

provide for an appropriate hearing upon due notice, either in conjuction

with a proceeding under section seven hundred six or otherwise, and may

conduct an election by secret ballot of employees, or use any other

suitable method to ascertain such representatives (either before or

after the aforesaid hearing), provided, however, that the board shall

not have authority to investigate or determine any question or

controversy between individuals or groups within the same labor

organization nor between labor organizations affiliated with the same

parent labor organization concerning the internal affairs of any labor

organization but nothing contained in this proviso shall be deemed to

preclude the board from investigating and determining which, if any, of

affiliated groups or labor organizations have been designated or

selected by employees as their representatives for the purposes of

collective bargaining within the meaning of this article.

4. The board shall have power to determine who may participate in the

election and to establish the rules governing any such election:

Provided, that no election need be directed by the board solely because

of the request of an employer or of employees prompted thereto by their

employer, nor shall any individuals employed only for the duration of a

strike or lockout be eligible to vote in such election; and provided

further, that no such election shall be conducted under the employer's

supervision, or, except as may be required by the board, on the

employer's property, during working hours, or with his participation or

assistance.

5. If at an election conducted pursuant to this section three or more

nominees for exclusive collective bargaining representatives appear on

the ballot and no one of them receives a majority of the votes cast at

the election, the two nominees who received the highest number of votes

shall appear on the ballot of a second election to be conducted

hereunder, and the one receiving a majority of the votes cast at the

second election shall be the exclusive representative of all the

employees in such unit for the purpose of collective bargaining in

respect to rates of pay, wages, hours of employment, or other conditions

of employment.

6. A labor organization nominated as the representative of employees

shall be listed by name on the ballots authorized by subdivision three

of this section. In any investigation conducted by the board pursuant to

this section the board may make a finding as to whether any committee,

employee representation plan, or association of employees involved is a

company union, and if any such committee, employee representation plan,

or association of employees be found to be a company union, it shall not

be listed on the ballots, certified or otherwise recognized as eligible

to be the representative of employees under this article.