Chapter 4117-5 Petitions, Elections

4117-5-01 Petitions: who may file; purposes.

(A) A petition for election of an exclusive representative may be filed by an employee or group of employees or by any individual or employee organization acting in their behalf or by an employer who has been presented with a request for recognition.

(B) A petition supported by a showing of interest by at least thirty per cent of the employees in the unit stating a desire for representation by the employee organization for purposes of collective bargaining may be filed by an employee, group of employees, or employee organization acting in their behalf. The petition shall be known as a petition for representation election.

(C) A petition for representation election supported by a showing of interest by at least thirty per cent of the employees in the unit and alleging that the incumbent exclusive representative is no longer the representative of the majority of employees in the unit and alleging that at least thirty per cent of the employees in the unit wish to be represented by a rival employee organization may be filed by an employee or a group of employees or by any individual or employee organization.

(D) A petition supported by a showing of interest by at least fifty per cent of the employees in the unit alleging that the incumbent exclusive representative is no longer the representative of the majority of the employees in the unit and asserting that a majority of employees wish to have no exclusive representative for purposes of collective bargaining shall be known as a petition for decertification election and may be filed by any group of employees, or any individual acting in their behalf provided, however, that:

(1) An individual acting on behalf of employees seeking a decertification election must file with the petition verification in writing, signed by the employees, that the individual has been authorized by the employees to act as their agent in filing the decertification petition.

(2) No petition for decertification election as defined in this rule may be filed where the incumbent employee organization is deemed certified pursuant to division (A) of section 4 of Amended Substitute Senate Bill 133 of the 115th General Assembly.

(E) In the absence of a question of majority representation, a petition for clarification of an existing bargaining unit or a petition for amendment of certification may be filed by the exclusive representative or by the employer. The purposes of such petitions are:

(1) For amendment of certification, to alter the composition of the unit by adding, deleting, or changing terminology in the unit description;

(2) For clarification of a unit, to determine whether a particular employee or group of employees is included or excluded from the unit based upon the existing unit description and the duties of the employees in question.

(F) For a unit that is deemed certified pursuant to division (A) of section 4 of Amended Substitute Senate Bill 133 of the 115th General Assembly, a petition for unit clarification or amendment may be filed at any time. Unless a petition for amendment of such a unit is submitted by mutual request, the board will not consider amendment unless the petition is filed by the deemed-certified employee organization and is not opposed by the employer.

(G) When a petition to amend certification seeks the addition of a group of employees to the existing unit, such addition may be permitted only if the number of employees to be added is substantially smaller than the number of employees in the existing unit.

(H) A petition filed under this rule shall be signed and in writing. An original and one copy of the petition shall be filed with the board. A petition shall not be accepted for filing with the board unless it contains proof of service upon the other parties pursuant to paragraph (B) of rule 4117-1-02 of the Administrative Code. Petitions filed pursuant to paragraph (C) or (D) of this rule must be served upon both the incumbent employee organization and the employer.

R.C. 119.032 review dates: 06/29/2010 and 06/29/2015
Promulgated Under: 119.03
Statutory Authority: 4117.02(K)(8)
Rule Amplifies: 4117.02 , 4117.07 , Section 4 of the temporary language
of Am. Sub. S.B. 133, 115th General Assembly
Prior Effective Dates: 6-24-84; 5-26-84 (Emer.); 5-18-87; 11-9-87; 1-2-05.

4117-5-02 Contents of petitions.

(A) A petition for a representation election, when filed by an employee or group of employees or an individual or employee organization acting in their behalf, shall contain:

(1) The name, address, and affiliation, if any, of the petitioner, and the name, address, and telephone number of its principal representative;

(2) The name, address and county of the employer;

(3) A description of the bargaining unit proposed by the petitioner specifying inclusions and exclusions and the approximate number of employees in the unit;

(4) The date of expiration of any current collective bargaining agreement covered by any employees in the proposed unit;

(5) The names and addresses of all other known employee organizations claiming to represent employees in the proposed unit;

(6) An allegation that at least thirty per cent of the employees in the proposed unit wish to be represented by the employee organization as the exclusive representative, together with evidence in support. Such evidence shall consist of:

(a) Original signed and dated statements, with each signature dated and signed not more than one year prior to the date of filing, including but not limited to cards and petitions, that clearly set forth the intent of the employee with respect to representation by the employee organization; provided, however, that at its discretion the board in the interest of fairness may waive the one-year time limitation; or

(b) Dues deduction authorizations or employer-verified dues deduction lists in effect as of the payroll period immediately preceding the filing of the petition for representation election; or

(c) Current cash dues receipts.

(7) Any other relevant facts.

(B) A petition for a representation election, when filed by an employer, shall contain: (1) The name, address, and county of the petitioner, and the name, address, and telephone number of its principal representative;

(2) The name, address, and affiliation, if any, of the employee organization that has requested recognition as an exclusive representative and the date the request was made

(3) A description of the bargaining unit for which representation has been requested, and, if different, a description of the bargaining unit proposed by the employer, and the approximate number of employees in the unit or units;

(4) The date of expiration of any collective bargaining agreement covering any employees in the proposed unit or units;

(5) The names and addresses of all other known employee organizations claiming to represent employees in the proposed unit or units;

(6) A concise statement by the employer of the basis for filing the petition; and

(7) Any other relevant facts.

(C) A petition for decertification election filed pursuant to division (A)(1) of section 4117.07 of the Revised Code shall contain:

(1) The name, address, and county of the petitioner, and the name, address, and telephone number of its principal representative;

(2) The name, address, and county of the employer involved;

(3) The name, address, and affiliation, if any, of the incumbent exclusive representative of the employees in the unit involved;

(4) A description of the bargaining unit and the approximate number of employees in said unit;

(5) A statement that the incumbent exclusive representative is no longer the representative of the majority of the employees in the unit, together with evidence that at least fifty per cent of the employees in the unit no longer wish to be represented by the exclusive representative, such evidence to consist of:

(a) Original signed and dated statements, with each signature dated and signed not more than one year prior to the date of filing, including but not limited to cards and petitions, that clearly set forth the intent of the employee with respect to representation by the employee organization; provided, however, that, at its discretion, the board in the interest of fairness may waive the one-year time limitation; or

(b) In the case of an individual who is filing on behalf of a group of employees, verification that the individual has been authorized by the employees to act as their agent in filing a petition for decertification election.

(6) The date of expiration of the collective bargaining agreement, if any, covering employees in the unit;

(7) The names and addresses of all other known employee organizations claiming to represent employees in the unit;

(8) Any other relevant facts.

(D) A petition for clarification of an existing bargaining unit or for amendment of the certification of an exclusive representative shall contain:

(1) The name, address, and county of the employer and of the exclusive representative, and the name, address, and telephone number of the petitioner's principal representative;

(2) A description of the present bargaining unit and the date of certification or recognition of the exclusive representative;

(3) The proposed clarification of the bargaining unit or the proposed amendment of the certification of the exclusive representative;

(4) A statement of the reasons why clarification or amendment is requested, including a statement explaining why there is no question of representation;

(5) The date of the expiration of the collective bargaining agreement, if any;

(6) Any other relevant facts.

R.C. 119.032 review dates: 06/29/2010 and 06/29/2015
Promulgated Under: 119.03
Statutory Authority: 4117.02(K)(8)
Rule Amplifies: 4117.02 , 4117.07
Prior Effective Dates: 5/26/84 (Emer.), 6/24/84, 5/18/87.

4117-5-03 Consent elections.

(A) At any time subsequent to the filing of a petition for representation or decertification election, the parties may enter into and file with the board a consent election agreement. The agreement shall include a waiver of hearing, a description of the unit, the proposed date(s), time(s), and place(s) of the election, and the date to be used to determine which employees shall be eligible to vote. The eligibility date shall, unless otherwise directed by the board or agreed to by the parties, be the payroll period ending just prior to the date on which the board approves the consent election agreement.

(B) If the board approves the consent election agreement, the board shall conduct an election. A consent election shall be conducted in the same manner as an election directed as a result of a hearing, and all questions arising in connection with the conduct or results of a consent election shall be processed in accordance with procedures set forth in Chapter 4117-5 of the Administrative Code.

(C) Dates, times, and places of the election will be determined by the board with due consideration given to the proposals of the parties.

R.C. 119.032 review dates: 06/29/2010 and 06/29/2015
Promulgated Under: 119.03
Statutory Authority: 4117.02(K)(8)
Rule Amplifies: 4117.02 , 4117.07
Prior Effective Dates: 6-24-84; 5-26-84 (Emer.); 5-18-87; 1-2-05.

4117-5-04 Investigation of petitions.

(A) Subsequent to the filing of a petition for a representation or decertification election, the board shall conduct an investigation to determine if there is reasonable cause to believe that a question of representation exists. If the board determines that there is not reasonable cause to believe that a question of representation exists, it shall dismiss the petition and notify all parties.

(B) Subsequent to the filing of a petition for clarification or amendment, the board shall conduct an investigation to determine whether there is evidence to support the petition. After investigation or hearing, the board may order clarification or amendment, as the case may be, or may dismiss the petition. The board shall notify all parties of the disposition of the petition.

(C) Ten days after the service of a petition for representation or decertification election on the employer, the employer must file with the board and serve upon the other parties an alphabetized, numbered payroll list of all employees employed in the proposed unit as of the pay period ending just prior to the filing of the petition. With the list, the employer must provide proof of service upon the other parties pursuant to paragraph (B) of rule 4117-1-02 of the Administrative Code. The board may require an employer to provide such other information as it deems necessary to conduct a thorough investigation pursuant to division (A) of section 4117.07 of the Revised Code and to this rule.

(D) Subsequent to the filing of a petition for representation or decertification election, the employer shall post a board-provided notice notifying employees that a petition has been filed and setting forth the rights of employees under Chapter 4117. of the Revised Code. Such notice shall be placed in conspicuous locations where employees will be reasonably apprised of the contents. The employer shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by other material. Immediately upon posting the notice, the employer shall submit to the board a certification of posting verifying the date and places of posting together with a copy of the notice.

(E) Intervention for the purpose of this rule shall be in accordance with paragraph (B) of rule 4117-1-07 of the Administrative Code.

R.C. 119.032 review dates: 06/29/2010 and 06/29/2015
Promulgated Under: 119.03
Statutory Authority: 4117.02(K)(8)
Rule Amplifies: 4117.02 , 4117.07
Prior Effective Dates: 5/26/84 (Emer.), 6/24/84, 5/18/87.

4117-5-05 Hearing on questions of representation.

(A) If the board determines that there is reasonable cause to believe that a question or questions of representation requiring a hearing exist, the board shall issue to the parties a notice of hearing. Immediately upon receipt, an employer shall post such notice in a conspicuous place where employees will be reasonably apprised of its contents. The notice shall remain posted until the hearing is concluded. The employer shall take reasonable steps to ensure that such notices are not altered, defaced or covered by other materials.

(B) The board, a board member, or an administrative law judge will conduct a hearing to determine whether a question of representation exists. In a written prehearing statement, each party shall state all issues to be raised at the hearing. Parties failing to submit a prehearing statement may be denied the opportunity to present evidence at the hearing.

(C) If the board finds upon the record of the hearing that a question of representation exists, it shall direct an election in accordance with section 4117.07 of the Revised Code and Chapter 4117-5 of the Administrative Code. If the board finds that a question of representation does not exist, it shall dismiss the petition and notify all parties.

(D) If the board determines from the investigation that there is a question of majority representation requiring an election and that there are no other disputed issues, the board may direct an election without a hearing.

R.C. 119.032 review dates: 06/29/2010 and 06/29/2015
Promulgated Under: 119.03
Statutory Authority: 4117.02(K)(8)
Rule Amplifies: 4117.02 , 4117.07
Prior Effective Dates: 6-24-84; 5-26-84 (Emer.); 5-18-87; 10-19-87; 1-2-05.

4117-5-06 Notice of election; access to employees.

(A) Whenever an election is to be conducted, the board shall issue and serve upon the parties a notice of election which shall contain the following information:

(1) A description of the bargaining unit;

(2) The dates, times, and places where the election will be conducted;

(3) The date that will be utilized to determine voter eligibility;

(4) A sample ballot.

(B) Within three days of receipt, and in no event less than ten days before the election, the employer shall post copies of the notice of election at each facility in conspicuous locations where employees will be reasonably apprised of the election. The copies of the notice of election shall remain posted until the balloting has been completed. The employer shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by other materials.

(C) Failure to file with the board a written objection to the form or content of the notice of election not later than three days prior to the commencement of the election shall constitute a waiver of the objection if the objecting party knew of the defect prior to the election, or through the exercise of reasonable diligence should have known.

(D) To ensure a free atmosphere for the development of opinions and the dissemination of information and ideas for and against representation for purposes of collective bargaining, no party should be given advantage over any other party in gaining access to employees during organizational or campaign activity. Issues as to whether fair access was available shall be determined on the facts of each case through election objection procedures set forth in rule 4117-5-10 of the Administrative Code or unfair labor practice procedures set forth in sections 4117.11 and 4117.12 of the Revised Code.

(E) During organizational or campaign activity, the employer or employee organization(s) may hold meetings to discuss representation or election issues, but attendance must be voluntary and available to all employees in the proposed or determined unit. An employer who holds such a meeting during work time must provide the employee organization(s) with equal access to all employees in the proposed or determined unit during work time.

R.C. 119.032 review dates: 06/29/2010 and 06/29/2015
Promulgated Under: 119.03
Statutory Authority: 4117.02(K)(8)
Rule Amplifies: 4117.02 , 4117.07
Prior Effective Dates: 5/26/84 (Emer.), 6/24/84, 5/18/87.

4117-5-07 Election eligibility lists.

(A) After the board directs an election, the employer shall file with the board and serve upon each party to the election an alphabetized, numbered election eligibility list containing the names and home addresses of all eligible voters. Unless otherwise directed by the board, the eligibility list must be filed and served by the earlier of these two dates:

(1) Ten days after the board issues the direction of election; or

(2) Ten days prior to the commencement of the election.

(B) The board may require the employer to arrange the list according to polling sites or in any other manner that it deems appropriate.

(C) Failure to object in writing to the board to the form or content of the election eligibility list prior to the commencement of an election shall constitute a waiver of the objection if the objecting party knew of the defect prior to the election, or through the exercise of reasonable diligence should have known.

(D) At any time prior to or during the pre-election conference, the parties may jointly agree in writing to additions to or deletions from the eligibility list.

(E) If the employer fails to timely file a proper eligibility list, the board may, at its discretion, compile a list from any sources available to it.

R.C. 119.032 review dates: 06/29/2010 and 06/29/2015
Promulgated Under: 119.03
Statutory Authority: 4117.02(K)(8)
Rule Amplifies: RC 4117.02 , 4117.07
Prior Effective Dates: 6-24-84; 5-26-84 (Emer.); 5-18-87; 1-2-05.

4117-5-08 Election procedure.

The board or its agent shall conduct all representation elections. All elections shall be by secret ballot cast and, at the board's discretion, shall be conducted by mail or electronically or in person. Proxy ballots shall not be allowed. Upon the filing of a petition and a sufficient showing of interest, the board or its agent will schedule a pre-election conference. No later than five days before the pre-election conference, the employer shall provide to the board a list of all eligible voters with their home addresses. The board will promptly provide the list to the employee organizations that are parties to the election.

(A) For elections by mail ballot, a notice and ballot materials shall be mailed by the board or its agent to each eligible employee and any employee that a party to the election claims to be an eligible voter. No less than fourteen days shall be provided between the date on which ballot materials are mailed and the deadline for return of the ballots.

(1) Where more than one employee organization is a party in the election, the incumbent shall have first choice as to the position of the employee organization's name on the ballot. For nonincumbent employee organizations, choices as to ballot position shall be made in the order in which the employee organizations filed.

(2) Any party to the election or an agent of the board may challenge for good cause the eligibility of any person to participate in the election. Prior to the counting of the ballots in a mail-ballot election, the parties may, by written mutual agreement and with the consent of the agent of the board, resolve the challenge to the eligibility of a person to participate in the election. If the unresolved, challenged ballots are sufficient in number to affect the results of the election, the challenging party shall file with the board affidavits and any other data in support of its challenge within ten days of the election.

(3) The agent of the board shall place mail ballots returned to the board in a ballot box kept in a secured location within the board's offices. After the deadline for the return of ballots has transpired, the ballot box shall be sealed until the designated date and time set by the agent of the board for the ballot count.

(4) Upon the date and time set for the counting of the ballots, the agent shall count the ballots at the designated time at the board's offices. Each party may be present through its designated representatives at the counting of ballots. Upon completion of the count, a written tally of ballots shall be supplied to each party.

(B) If the board determines that the circumstances of a particular case indicate that an on-site election would be more efficient or appropriate than a mail-ballot election, a notice shall be posted at appropriate locations. Ballot materials shall be brought to polling sites by an agent of the board. Absentee ballots shall not be allowed.

(1) Where more than one employee organization is a party in the election, the incumbent shall have first choice as to the position of the employee organization's name on the ballot for an on-site election. For nonincumbent employee organizations, choices as to ballot position shall be made in the order in which the employee organizations filed.

(2) In an on-site election, each party to the election may be represented by an equal number of observers at each polling site. The selection and number of observers shall be subject to the approval of the board chairperson or board agent. Observers may be bargaining-unit employees who shall be nonsupervisory, nonmanagement employees of the employer. No later than ten days prior to the election, each party shall file with the board and shall serve upon the other parties a list of those individuals whom the party intends to use as observers or alternate observers, unless for good cause shown, a shorter time period is required. The employer shall release employee observers without loss of pay from their regular job assignments to enable them to serve as observers.

(3) No person shall be permitted to come within twenty-five feet of the entrance to any polling site from the time of opening to the time of closing of the polls, except for voters who are engaged in the actual process of voting, agents of the board, and election observers. The entrance to the polling site shall be determined solely by the agent of the board who conducts the election. Distribution or posting of campaign literature within twenty-five feet of the entrance of any polling site during polling hours is prohibited.

(4) An observer for any party to the election or an agent of the board may challenge for good cause the eligibility of any person to participate in the election. Prior to the counting of ballots, the parties may, by written mutual agreement and with the consent of the agent of the board, resolve the challenge to any challenged ballot. If the unresolved, challenged ballots are sufficient in number to affect the results of the election, the challenging party shall file with the board affidavits and any other data in support of its challenge within ten days of the election.

(5) Upon conclusion of the voting, the agent of the board shall count the ballots, allowing observers and other representatives of the parties to the election to be present. Upon completion of the count, a written tally of ballots shall be supplied to each party. In elections where the ballot box must be transported by the board agent to another site for the tally, observers and representatives of each party may be present at the sealing of the ballot box by the board agent.

R.C. 119.032 review dates: 06/29/2010 and 06/29/2015
Promulgated Under: 119.03
Statutory Authority: 4117.02(K)(8)
Rule Amplifies: 4117.02 , 4117.07
Prior Effective Dates: 5/26/84 (Emer.), 6/24/84, 5/18/87.

4117-5-09 Determining results of election.

(A) In order to prevail in an election, a choice must receive more than fifty per cent of the number equal to the total valid ballots cast, provided, however, that in any representation election in which the choices are an employee organization and "no representative," and the resulting vote is equally divided, it will be determined that "no representative" has prevailed; provided, further, that in a decertification election in which the resulting vote is equally divided between the incumbent representative and "no representative," it will be determined that the incumbent has prevailed.

(B) When an election in which the ballot provided for three or more choices results in no choice receiving a majority of the valid ballots cast, the board shall direct a runoff election. The ballot in a runoff election shall provide for selection between the two choices receiving the highest and the second highest number of votes in the first election. Only employees who were eligible to vote in the first election and who remain eligible on the date of the runoff election shall be eligible to vote in the runoff election, unless the board directs otherwise.

(C) In a runoff election between two employee organizations where the results of the runoff election are equally divided between the employee organizations, the incumbent prevails.

R.C. 119.032 review dates: 06/29/2010 and 06/29/2015
Promulgated Under: 119.03
Statutory Authority: 4117.02(K)(8)
Rule Amplifies: 4117.02 , 4117.07
Prior Effective Dates: 5/26/84 (Emer.), 6/24/84, 5/18/87.

4117-5-10 Post-election objections; determination of challenges.

(A) Within ten days after service of the tally of ballots, any party may file with the board objections relating to the conduct of the election or conduct affecting the results of the election. Such objections shall contain a brief statement of the reasons therefor and shall be accompanied by data, including but not limited to affidavits, in support of the allegations in the objections. Objections without supporting data may be dismissed by the board. Responses to any post-election objections may be filed with the board within ten days after service of the objections.

(B) If post-election objections are filed or if challenged ballots are sufficient in number to affect the results of the election, the board shall investigate such objections or challenges. Position statements on challenged ballots must be filed within ten days of the service of the tally of ballots. The board shall issue a directive resolving relevant issues based upon the investigation; provided, however, that disputed issues of material fact may be determined upon an evidential hearing. The board may dismiss the post-election objections or challenges, direct the counting of some or all of the challenged ballots, or where warranted, set aside the previous election and direct another election. Should another election be directed by the board, it shall be conducted pursuant to the procedures set forth in Chapter 4117-5 of the Administrative Code. Only employees who were eligible to vote in the first election and who remain eligible on the date of the rerun election shall be eligible to vote in the rerun election, unless the board directs otherwise.

(C) Objections shall not be accepted for filing with the board unless they contain proof of service pursuant to paragraph (B) of rule 4117-1-02 of the Administrative Code.

R.C. 119.032 review dates: 08/31/2010 and 08/31/2015
Promulgated Under: 119.03
Statutory Authority: 4117.02
Rule Amplifies: 4117.02 , 4117.07
Prior Effective Dates: 3/26/84, 6/24/84, 5/18/87

4117-5-11 Certification of the results of the election.

(A) After resolution of challenges and objections, unless another election is to be held, the board shall issue to the parties a certification in accordance with the results of the election.

(B) The board may also certify an employee organization as an exclusive representative if it determines that a free and untrammeled election cannot be conducted because of the employer's unfair labor practices and that at one time the employee organization had the support of the majority of the employees in the unit.

(C) Certification is effective and the employee organization assumes its official status as the exclusive representative on the date that the board votes to certify the election results. Certification shall constitute a bar to a petition for a representation election for a period of one year from the date on which the board votes. The one-year period may be tolled by litigation, bad faith bargaining, or other equitable reasons.

R.C. 119.032 review dates: 06/29/2010 and 06/29/2015
Promulgated Under: 119.03
Statutory Authority: 4117.02(K)(8)
Rule Amplifies: 4117.02 , 4117.07
Prior Effective Dates: 5/26/84 (Emer.), 6/24/84, 5/18/87.