AMENDMENT, CLARIFICATION, AND DEAUTHORIZATION PETITIONS, FINAL OFFER

ELECTIONS AND WAGE-HOUR CERTIFICATIONS

115

11. AMENDMENT, CLARIFICATION, AND DEAUTHORIZATION 

PETITIONS, FINAL OFFER ELECTIONS AND 

WAGE-HOUR CERTIFICATIONS 

In our consideration of types of petitions in an earlier chapter, we described in bare outline the six types,

reserving for amplification in the individual chapters the variety of areas of law and procedure involved in 

the handling of certification petitions (RC), employer petitions (RM), and decertification petitions (RD). The 

remaining three types of petitions, however, are susceptible of treatment in a single chapter. These are 

petitions for amendment of certification (AC), petitions for clarification of unit (UC), and petitions for 

deauthorization of union security (UD). Also included in the chapter are final offer elections and wage-hour 

certifications.

11-100 Amendment of Certification (AC) 

355-8800 

385-2500 

Flowing from the Board’s express authority under Section 9(c)(1) to issue certifications is the implied

authority to amend them. Under Section 102.60(b) of the Board’s Rules and Regulations, Series 8, a party 

may file a petition to amend a certification to reflect changed circumstances, such as a merger or changes in 

the name or affiliation of the labor organization or in the site or location of the employer, where there is a 

unit covered by a certification and no question concerning representation exists. For amendment on a change

of location see South Coast Terminals, 221 NLRB 197 (1976). 

When the amendment amounts to nothing more than a mere change in name or location, the Board will

routinely grant the amendment. When, however, the amendment is sought to reflect a change brought about 

by an affiliation or merger with another labor organization, different considerations will apply. In merger or 

affiliation situations, the Board has historically required that two conditions be met before it would grant an

AC petition. First, there must have been a vote on the change that satisfied minimum due process and

second, there must have been a substantial continuity between the pre- and post-affiliation bargaining

representative. Hammond Publishers, 286 NLRB 49 (1987); Hamilton Tool Co., 190 NLRB 571 (1971). 

With respect to the first part of this test, the Board has yet to decide definitively what place “due

process” requirements have in the context of AC petitions. Hammond Publishers, supra at fn. 8; May

Department Stores Co., 289 NLRB 661 fn. 6 (1988). But see Western Commercial Transport, 288 NLRB 

214, 217 (1988). However, the Supreme Court held that a union is not required to permit nonmember 

bargaining unit employees to vote on the decision to merge or affiliate. NLRB v. Financial Institution 

Employees, 475 U.S. 192 (1986). In one unfair labor practice case, the Board held that the due-process 

requirements were met by providing the entire unit with an opportunity to vote. In doing so, the Board 

rejected the employer’s arguments that the entire membership of the union must be permitted to vote and 

that a majority of those eligible to vote rather than those voting is necessary. Minn-Dak Farmers 

Cooperative, 311 NLRB 942 (1993). Later in Allied Mechanical Services, 341 NLRB No. 141 (2004), the 

Board seemed to suggest that “due process” requires that union members be given an opportunity to vote. 

For recent decisions in which the Board found the affiliation procedure valid, see also Mike Basil 

Chevrolet, 331 NLRB 1044 (2000); Avante at Boca Raton, Inc., 334 NLRB 381 (2001); May Department 

Stores Co., supra; Bear Archery, 223 NLRB 1169 (1976); Hamilton Tool Co., supra. 

In the wake of Financial Institution Employees, supra, the Board was presented with a series of cases

raising the second part of its test—continuity. In Western Commercial Transport, supra, the Board rejected

an 8(a)(5) charge because the affiliation of the certified union with another union resulted in “a sufficiently

‘dramatic’ change in the identity of the bargaining representative to raise a question concerning

representation.” The Board found that the certified union lost its autonomy, that its officials had no major 

role in the organization, and that these officials were replaced by officials of the other labor organization.

The substantial changes in size (136-employee unit affiliated with 8500-member organization), organization
AMENDMENT, CLARIFICATION, AND DEAUTHORIZATION PETITIONS, FINAL OFFER

ELECTIONS AND WAGE-HOUR CERTIFICATIONS

116 

structure and administration diminished the rights of the membership to such an extent as to warrant a

fundamental change in the character of the certified union. See also Mike Basil Chevrolet, supra; Avante at 

Boca Raton, Inc., supra; Garlock Equipment Co., 288 NLRB 247 (1988), and Chas. S. Winner, Inc., 289 

NLRB 62 (1988). Cf. Sioux City Foundry, 323 NLRB 1071 (1997), enfd. 154 F.3d 832 (8th Cir. 1998); CPS 

Chemical Co., 324 NLRB 1021 (1997); Seattle-First National Bank, 290 NLRB 571 (1988), where there 

was no change in officers as a result of the affiliation; News/Sun-Sentinel Co., 290 NLRB 1171 (1988); 

National Posters, 289 NLRB 468 (1988); and Minn-Dak Farmers Cooperative, supra. For an analysis of the 

continuity question in the context of a trusteeship, see Quality Inn Waikiki, 297 NLRB 497 (1989). See also 

Potters Medical Center, 289 NLRB 201 (1988), involving the merger of international unions; City Wide

Insulation, 307 NLRB 1 (1992); and Service America Corp., 307 NLRB 57 (1992). 

An amendment of certification, which is granted only where there is continuity of representation, is not 

affected by the Board’s normal contract-bar rules. Hamilton Tool Co., supra at 573. However, in some 

circumstances, an amendment of certification will be denied. In one case, the Board stated it would, in 

effect, be subverting the policies of the Act by certifying a union through an AC proceeding which less than 

a year before had been rejected by a majority of the employees. Williamson Co., 244 NLRB 953, 955

(1979); Bunker Hill Co., 197 NLRB 334 (1972). Bedford Gear & Machine Products, 150 NLRB 1 (1964);

Gulf Oil Corp., 109 NLRB 861 (1954); United Hydraulics Corp., 205 NLRB 62 (1973). 

When an RC petition has been filed and the Board finds no question concerning representation but

rather a problem that can be resolved by clarification or amendment of certification, it may on its own 

initiative clarify or amend the existing certification. Pacific Coast Shipbuilders Assn., 157 NLRB 384 

(1966); 220 Television, Inc., 172 NLRB 1304 (1968). 

If an AC petition clearly presents a question concerning representation, it must be dismissed, even in the

absence of objections by any of the parties, because an amendment of certification is not intended to change 

the representative itself. Uniroyal, Inc., 194 NLRB 268 (1972); Missouri Beef Packers, 175 NLRB 1100

(1969). 

Note that petition for amendment of certification may be filed only for a unit covered by a certification 

while a petition for clarification of a bargaining unit may be filed either where the bargaining representative 

has a certification or is recognized by the employer under a contract but not pursuant to a certification. 

The requirements and procedures for both of these types of petitions are set out in Sections 102.61(d) 

(clarification) and 102.61(e) (amendment) of the Rules and Regulations. CHM sections 11490–11498 and 

Section 101.17 of the Statements of Procedure. See also MCA Distribution Corp., 288 NLRB 1173 (1988), 

infra. 

11-200 Clarification of Certification (UC) 

Generally 

316-3301-5000 

355-7700 

385-7501 et seq. 

The Board’s express authority under Section 9(c)(1) to issue certifications carries with it the implied

authority to police such certifications and to clarify them as a means of effectuating the policies of the Act. 

Thus, under Section 102.60(b) of the Board’s Rules and Regulations, Series 8, a party may file a petition for 

clarification of a bargaining unit where there is a certified or currently recognized bargaining representative 

and no question concerning representation exists. (See also Sec. 101.17 of the Statements of Procedure.) As 

noted above the procedures for UC and AC petitions are described at CHM sections 11490–11498. These 

procedures provide resolution of these issues by administrative investigation or by hearing as appropriate. 

Note that when the Regional Director utilizes the former, a failure to cooperate may preclude an opportunity

for a hearing to appeal MCA Distribution Corp., supra. 

The Board described the purpose of unit clarification proceedings in Union Electric Co., 217 NLRB 

666, 667 (1975): 
AMENDMENT, CLARIFICATION, AND DEAUTHORIZATION PETITIONS, FINAL OFFER

ELECTIONS AND WAGE-HOUR CERTIFICATIONS

117

Unit clarification, as the term itself implies, is appropriate for resolving ambiguities concerning the unit 

placement of individuals who, for example, come within a newly established classification of disputed

unit placement or, within an existing classification which has undergone recent, substantial changes in 

the duties and responsibilities of the employees in it so as to create a real doubt as to whether the 

individuals in such classification continue to fall within the category—excluded or included—that they 

occupied in the past. Clarification is not appropriate, however, for upsetting an agreement of a union 

and employer or an established practice of such parties concerning the unit placement of various 

individuals, even if the agreement was entered into by one of the parties for what it claims to be

mistaken reasons or the practice has become established by acquiescence and not express consent. 

See also E. I. Du Pont de Nemours, Inc., 341 NLRB No. 82 (2004); Developmental Disabilities 

Institute, 334 NLRB 1166 (2001); and Robert Wood Johnson University Hospital, 328 NLRB 912 (1999),

quoting from United Parcel Service, 303 NLRB 326, 327 (1991). 

The limitations on accretion . . . require neither that the union have acquiesced in the historical

exclusion of a group of employees from an existing unit, nor that the excluded group have some

common job-related characteristic distinct from unit employees. It is the fact of historical exclusion

that is determinative. 

In Al J. Schneider & Associates, 227 NLRB 1305 (1977), the Board dismissed a UC petition filed by the 

employer which presented the same unit question presented in an 8(a)(5) unfair labor practice case. In doing

so, the Board stated that a unit placement issue is not presented when “the petition seeks a declaration by the

Board; in advance of a disposition of the 8(a)(5) charges. The Schneider decision must, however, be read in 

conjunction with Exception 3 of the Blocking Charge rule. Thus, a Regional Director can secure Board

approval to process a representation case first, including a UC petition, in which its resolution will resolve 

significant common issues. More recently, the Board indicated strong support for the use of UC proceedings 

to resolve unit scope as well as unit placement issues, particularly when the use of these proceedings will be 

more expeditious and will obviate the need for unfair labor practice proceedings. Armco Steel Co., 312 

NLRB 257 (1993). 

When an RC petition has been filed and the Board finds no question concerning representation but

rather a problem that can be resolved by clarification or amendment of certification, it may on its own 

initiative clarify or amend the existing certification. Pacific Coast Shipbuilders Assn., 157 NLRB 384 

(1966); 220 Television, Inc., 172 NLRB 1304 (1968). 

In order to have a valid UC petition, there must be employees in the classifications sought to be added. 

See Coca-Cola Bottling Co., 310 NLRB 844 (1993). Similarly, work assignment disputes are not

appropriate for a UC proceeding. Coatings Application Co., 307 NLRB 806 (1992); compare Steelworkers

Local 392 (BP Minerals), 293 NLRB 913 (1989). 

The Board will determine the status of disputed employees even though they belong to a unit

represented by an uncertified union because national labor policy requires it to take all positive action 

available to eliminate industrial strife and encourage collective bargaining. Furthermore, it would be a 

needless expense for both the parties and the Government to compel an election where there is no serious 

doubt of the union’s majority position. Firemen & Oilers, 145 NLRB 1521 (1964); Seaway Food Town, 171 

NLRB 729 (1968); Alaska Steamship Co., 172 NLRB 1200 fn. 8 (1968); Manitowoc Shipbuilding, 191 

NLRB 786 (1971); Peerless Publications, 190 NLRB 658 (1971). 

The Board will not entertain a unit clarification petition seeking to accrete a historically excluded 

classification into the unit, unless the classification has undergone recent, substantial changes. Bethlehem 

Steel Corp., 329 NLRB 243, 244 (1999). Accord: Kaiser Foundation Hospitals, 337 NLRB 1061 (2002), 

holding that the Board’s decision in M.B. Sturgis, Inc., 331 NLRB 1298 (2000), was not intended to reverse 

this longstanding Board doctrine, and temporary employees who are jointly employed are not excepted from 

this principle. Further, absent recent substantial changes, the Board will not entertain such a petition, 

regardless of when in the bargaining cycle the petition is filed, even if there has been a change in the 

Board’s decisional law. Caesar’s Palace, 209 NLRB 950 (1974). See also Premcor, Inc., 333 NLRB 1365

(2001), discussed infra at section 11-220. 
AMENDMENT, CLARIFICATION, AND DEAUTHORIZATION PETITIONS, FINAL OFFER

ELECTIONS AND WAGE-HOUR CERTIFICATIONS

118 

In The Sun, 329 NLRB 854, 859 (1999), a divided Board set out the test for deciding UC cases 

involving units defined by the work performed. 

Accordingly, we shall apply the following standard in unit clarification proceedings involving 

bargaining units defined by the work performed: If the new employees perform job functions similar to

those performed by unit employees, as defined in the unit description, we will presume that the new

employees should be added to the unit, unless the unit functions they perform are merely incidental to 

their primary work functions or are otherwise an insignificant part of their work. Once the above 

standard has been met, the party seeking to exclude the employees has the burden to show that the new 

group is sufficiently dissimilar from the unit employees so that the existing unit, including the new 

group, is no longer appropriate. [Footnote omitted.]

In doing so the Board also summarized the standards for UC determinations in traditionally described 

units. Compare Archer Daniels Midland Co., 333 NLRB 673 (2001). 

11-210 Timing of UC Petition 

A unit may be clarified in the middle of a contract term where the procedure is invoked to determine the 

unit placement of employees performing a new operation. Crown Cork & Seal Co., 203 NLRB 171 (1973); 

Alaska Steamship Co., supra. It may also be clarified in midterm where the contract specifically excluded a 

group, such as supervisors, and there is a dispute as to the supervisory status of certain classifications of 

employees. Western Colorado Power Co., 190 NLRB 564 (1971). 

The Board refuses to clarify in midterm, however, when the objective is to change the composition of a 

contractually agreed-upon unit by the exclusion or inclusion of employees. To grant the petition at such a 

time would be disruptive of a bargaining relationship voluntarily entered into by the parties when they 

executed the existing contract. Edison Sault Electric Co., 313 NLRB 753 (1994), and Arthur C. Logan

Memorial Hospital, 231 NLRB 778 (1977). San Jose Mercury & San Jose News, 200 NLRB 105 (1973); 

Credit Union National Assn., 199 NLRB 682 (1972); and Wallace-Murray Corp., 192 NLRB 1090 (1971). 

In Edison Sault Electric, supra, the Board extended this policy to a situation in which the parties have agreed 

to a contract but have not yet signed the agreement. 

The Board has an exception to its midterm prohibition against processing UC petitions where the matter

is also being considered in the grievance arbitration procedure. In those circumstances, the Board holds “that

processing of the employer’s petition to confirm the historical exclusion of the disputed position is necessary 

to prevent the enforcement of a contradictory arbitration award.” Ziegler, Inc., 333 NLRB 949 (2001), and 

Williams Transportation Co., 233 NLRB 837 (1977). The Board will, however, clarify the unit where the 

petition is filed shortly before expiration of the contract. Shop Rite Foods, 247 NLRB 883 (1980), and

University of Dubuque, 289 NLRB 349 (1988). A petition will also be entertained shortly after a contract is 

executed when the parties could not reach agreement or a disputed classification and the UC petitioner did 

not abandon its position in exchange for contract concessions. St. Francis Hospital, 282 NLRB 950 (1987), 

and cases cited therein. Similarly, a petition will be processed when the Board finds that the parties never

recognized the disputed classification as part of the unit. Parker Jewish Geriatric Institute, 304 NLRB 153

(1990). 

For an interesting series of discussions on the timing of a UC petition see the three Bethlehem Steel

cases decided the same day; Bethlehem Steel Corp., 329 NLRB 241 (1999);, Bethlehem Steel Corp., 329 

NLRB 243 (1999); and Bethlehem Steel Corp., 329 NLRB 245 (1999). 

In two cases, the Board continued its practice of permitting the processing of a UC petition midterm 

where it is necessary to resolve a dispute that the parties have been unable to resolve. See Kirkhill Rubber 

Co., 306 NLRB 559 (1992), petition processed during certification year where employees voted without

challenge, but disagree as to their placement, and the parties cannot resolve the dispute. Compare Firestone 

Tire Co., 185 NLRB 63 (1970), distinguished by the Board in Kirkhill. The second case is Baltimore Sun 

Co., 296 NLRB 1023 (1989), where the petitioner reserved “the right to go to the Board” in the collectivebargaining negotiations. And see Brookdale Hospital Medical Center, 313 NLRB 592 fn. 3 (1993). 
AMENDMENT, CLARIFICATION, AND DEAUTHORIZATION PETITIONS, FINAL OFFER

ELECTIONS AND WAGE-HOUR CERTIFICATIONS

119

When a group or classification of employees sought to be added to a unit existed at the time the unit was 

certified, and these employees had no opportunity to participate in the selection of the bargaining 

representative, their unit placement raises a question concerning representation and a petition to amend or 

clarify will be dismissed. Gould-National Batteries, Inc., 157 NLRB 679 (1966); Bendix Corp., 168 NLRB 

371 (1968); AMF Inc., 193 NLRB 1113 (1971); International Silver Co., 203 NLRB 221 (1973). See also 

Kaiser Foundation Hospitals, 337 NLRB 1061 (2002). The same rule applies where the disputed jobs were 

in existence at the time of the certification; they were excluded from the certified unit as inappropriate; and 

the record shows no recent changes in the jobs that would make them appropriate for inclusion. Mountain 

States Telephone Co., 175 NLRB 553 (1969); Lufkin Foundry & Machine Co., 174 NLRB 556 (1969); 

National Can Corp., 170 NLRB 926 (1968); Sterilon Corp., 147 NLRB 219 (1964). See also Williams 

Transportation Co., 233 NLRB 837 (1977). Similarly, when the employees have not been included in the 

unit for some time and the union has made no attempt to include the position of the unit, the Board may find

that the position is historically outside the unit and that the union has waived its right to a UC proceeding. 

Sunar Hauserman, 273 NLRB 1176 (1984), and Plough, Inc., 203 NLRB 818 (1973). Accord: ATS

Acquisition Corp., 321 NLRB 712 (1996), and Robert Wood Johnson University Hospital, supra. 

11-220 Accretion v. Question Concerning Representation

When the Board finds the disputed employees an accretion to the unit represented by petitioner, it will 

clarify the certification to so indicate. International Harvester Co., 187 NLRB 739 (1971); Monsanto

Research Corp., 195 NLRB 336 (1972); Printing Industry of Seattle, 202 NLRB 558 (1973). 

If, on the other hand, the disputed employees do not constitute an accretion to the unit represented by 

petitioner, the correct procedure to determine the issue of their inclusion is not a UC petition, but a petition 

pursuant to Section 9(c) of the Act seeking an election. Coca-Cola Bottling Co., supra. Westinghouse 

Electric Corp., 173 NLRB 310 (1969); Brockton Taunton Gas Co., 178 NLRB 404 (1969); Roper Corp.,

186 NLRB 437 (1970); and Bradford-Robinson Printing Co., 193 NLRB 928 (1971). But see Armco Steel 

Co., 312 NLRB 257 (1993), where the Board indicated a willingness to utilize UC proceedings to determine 

unit scope and even majority issues as part of a Gitano analysis (see sec. 12-600, infra). Accord:

Steelworkers Local 7912 (U.S. Tsubaki), 338 NLRB 29 (2002). 

Note that when the disputed employees constitute an accretion to the unit represented by the intervenor, 

a UC petition filed by another union is dismissed and no question concerning representation is raised. U.S.

Steel Corp., 187 NLRB 522 (1971). 

A claim of accretion does not generally raise a question concerning representation sufficient to support

filing of an RM petition. Woolwich, Inc., 185 NLRB 783 (1970). 

A UC petition was dismissed where the Board concluded that an election was the appropriate means of

testing the propriety of merging several different units represented by several different unions, none of 

which claimed to represent all the employees involved. LTV Aerospace Corp., 170 NLRB 200 (1973). 

As with other representation matters, the Board will not defer a UC petition to an arbitration’s decision, 

Magna Corp., 261 NLRB 104, 105 fn. 2 (1982), and cases cited therein. 

While Section 9(b)(1) does not require the Board to render inappropriate a mixed unit of professional 

and nonprofessional employees established voluntarily by the parties, it does preclude the Board from 

creating on its own initiative a new unit composed of both professionals and nonprofessionals without a selfdetermination election. Thus, when the employer and union have already established and maintained a 

bargaining unit encompassing both elements, they may continue to maintain their bargaining relationship, 

and the Board will process a UC petition without first affording the professional members of the unit a selfdetermination election. A. O. Smith Corp., 166 NLRB 845 (1967); International Telephone Corp., 159 

NLRB 1757, 1762 (1966). See Retail Clerks Local 324 (Vincent Drugs), 144 NLRB 1247, 1251 (1963); but 

see Wells Fargo Corp., 270 NLRB 787, 788 fn. 6 (1984), questioning Vincent Drugs. When, however, the

UC petition seeks to add professional employees to the unit without a separate election, the petition will be 

dismissed. Gibbs & Cox, Inc., 168 NLRB 220 (1968); Lockheed Aircraft Corp., 155 NLRB 702, 713 (1965). 
AMENDMENT, CLARIFICATION, AND DEAUTHORIZATION PETITIONS, FINAL OFFER

ELECTIONS AND WAGE-HOUR CERTIFICATIONS

120 

In Brink’s Inc., 272 NLRB 868 (1984), the Board was confronted with a UC proceeding involving a unit 

of guards represented by a nonguard union. The Board dismissed the petition as to do otherwise would 

“place an unduly narrow interpretation on the legislative intent” of Section 9(b)(3) of the Act.

In Libbey-Owens-Ford Glass Co., 169 NLRB 126 (1968), the Board ordered an election in a UC 

proceeding. There, the petitioner was seeking to use the UC procedures to absorb into an existing certified

multiplant unit represented by it separately existing single-plant units also represented by it. The Board,

finding that either an employerwide unit or separate plant units would be appropriate and that there was no 

actual question concerning representation because employer did not dispute the union’s representative status

at any of the plants, held that the disputed employees should be given the opportunity to express their 

wishes. A later case involving the same employer, union, and issues, however, held differently. The decision

in Libbey-Owens-Ford Glass Co., 189 NLRB 869 (1971), was written by the dissenters in the first case and

relied on the reasoning of that dissent. They held that unit scope, not representation, was in issue, and that

there was no statutory authority for permitting employees to decide, “in a representational vacuum,” which

contract unit they wished. See also PPG Industries, 180 NLRB 477 (1969). 

The creation of a new operation and a new unit typically raises a question concerning representation

between the unions representing the formerly separate bargaining units, especially when neither group of

affected employees is sufficiently predominate to determine exclusive bargaining status. F.H.E. Services,

Inc., 338 NLRB 1095 (2003), relying on National Carloading Corp., 167 NLRB 801 (1967).When a 

provision intended in fact as a formula for determining eligibility in an election has been inadvertently

included in the unit description, the Board will clarify the unit description by eliminating the eligibility 

provision. Detective Intelligence Service, 177 NLRB 69 (1969). 

When appropriate, the Board will treat an RC petition as a motion to clarify or amend a certification. 

Compare 220 Television, Inc., 172 NLRB 1304 (1968); U. S. Pipe Co., 223 NLRB 1443 (1976). 

If a new classification is performing the same basic function as the unit employees have historically 

performed, the new classification is properly“viewed as remaining in the unit rather than being added to the

unit by accretion.” Premcor, Inc., 338 NLRB 1365 (2001). See also Developmental Disabilities Institute, 

334 NLRB 1166 (2001). 

For further discussion of accretions, see section 12-500. 

11-300 Deauthorization Petition (UD) 

324-4060-5000 

347-4040-3301-7500 

362-3385 

Under Section 9(e), the Board is empowered to take a secret ballot of the employees in a bargaining unit 

covered by an agreement between their employer and a labor organization, made pursuant to Section 8(a)(3), 

upon the filing with the Board of a petition by 30 percent or more of the employees in the unit alleging their 

desire that the authority for the union-security provision be rescinded. The Board certifies the result of such

balloting to the labor organization and to the employer. A UD petition may not be filed by a supervisor.

Rose Metal Products, 289 NLRB 1153 (1988). 

In F. W. Woolworth Co., 107 NLRB 671 (1954), the Board held that the 30 percent or more of 

employees who may make the request are employees from the bargaining unit covered by the contract, not

just those from the group obligated to become union members by reason of the contract. 

There must be a union-security clause in the contract in order to have a UD election. Wakefield’s Deep

Sea Trawlers, 115 NLRB 1024 (1956). 

When employees previously certified by the Board or recognized by the employer as separate units 

have, in effect, been merged into single unit and comprise the bargaining unit covered by the existing unionsecurity agreement, a petition for a UD election in only two of the original separate units was dismissed. 

Hall-Scott, Inc., 120 NLRB 1364 (1958). See also S. B. Rest. of Huntington, Inc., 223 NLRB 1445 (1976). 

Romac Containers, Inc., 190 NLRB 238 (1971), held that students who were summer employees but 

had joined the union were eligible to vote in a deauthorization election. Individuals who spend “a great 
AMENDMENT, CLARIFICATION, AND DEAUTHORIZATION PETITIONS, FINAL OFFER

ELECTIONS AND WAGE-HOUR CERTIFICATIONS

121

majority of their time providing exempt public school bus services” were permitted to vote in a UD election 

because “in a union deauthorization election the Board does not define the bargaining unit.” Illinois School 

Bus Co., 231 NLRB 1 (1977). 

The Board will give effect to a state election proceeding held within 1 year of a UD petition being filed.

Asamera Oil (U.S.), Inc., 251 NLRB 684 (1980). 

A majority of eligible voters must vote for deauthorization in order for the proposition to prevail and in 

one case the Board found that employer conduct to encourage voter turnout was “particularly significant” in

determining that the conduct (changes in paycheck procedures) was objectionable. United Cerebral Palsey

Assoc. of Niagara County, 327 NLRB 40 (1998). 

For a discussion of the effect of a threat not to represent the unit in the event the union is deauthorized,

see Chicago Truck Drivers Local 101 (Bake-Line Products), 329 NLRB 247 (1999), and Trump Taj Mahal 

Casino, 329 NLRB 256 (1999). 

The timeliness of a UD petition is determined under NLRA law, not State law (Colorado Peace Act).

See Albertson's/Max Food Warehouse, 329 NLRB 410 (1999), reversing City Markets, 216 NLRB 1020

(1983). 

11-400 Final Offer Elections (CHM sec. 11520) 

355-9500 

Section 206 et seq. of the Act describes the procedures in which the President can seek an injunction 

against a strike or lockout which imperils the national health or safety. Such an injunction can continue for

80 days. After the first 60 days a Board of Inquiry appointed by the President reports on the status of 

negotiations including the “employer’s last offer of settlement.” Within 15 days thereof the Board conducts 

a secret-ballot election among the employees on the question of “whether they wish to accept the final offer 

of settlement of their employer.” Within 5 days of the election, the Board certifies the result to the Attorney

General. 

11-500 Certificate of Representative Under FLSA (CHM sec. 11540) 

This little used procedure is authorized by Section 7(b) of the Fair Labor Standards Act. The procedure 

calls for the Board to certify that a union is a “bona fide” representative of the employees of a given unit. 

Once certified, the union and the employer may as part of their collective bargaining vary somewhat the

overtime provisions of the FLSA. This procedure is applicable to public employees’ units as well as units in 

the private sector. 

11-600 Revocation of Certification 

A certification must be honored for a reasonable period, ordinarily 1 year, in the absence of “unusual

circumstances.” NLRB v. Ray Brooks, 348 U.S. 96, 98 (1954). There are three situations in which the Board

has found unusual circumstances: (1) a defunct union (sec. 9-420); (2) a schism (sec. 9-410); or (3) a radical

fluctuation in the size of the bargaining unit within a short time. Id. 

An employer who is confronted with what it believes is such a situation must petition the Board for 

revocation of the certification. “Unusual circumstances” is not a valid defense in a refusal-to-bargain case.

Id at 103. See also KI (USA) Corp., 310 NLRB 1233 fn. 1 (1993). 
122

122