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Proposed Improvements: NLRB Representation Case Procedures

The National Labor Relations Board’s (NLRB) proposed amendments to its rules and regulations governing representation case procedures are intended to modernize current Board procedures and streamline the processes governing representation elections.  Specifically, the proposal will help to reduce unnecessary litigation, increase transparency and update the Board’s rules to reflect modern communications technology. 

Background on Representation Case Procedures:

Representation cases are initiated by employees, unions and employers petitioning the NLRB to conduct elections to determine if employees wish to be represented for purposes of collective bargaining with their employer.  The Board will investigate petitions to determine if an election can be conducted and will direct an election, if appropriate.

In some instances, parties will agree on the voting unit and other issues.  If parties do not agree, the Board’s regional offices conduct a pre-election hearing to determine if an election can be conducted; the Board also supervises the election itself and, if necessary, conducts a post-election hearing to resolve challenges to voters’ eligibility or objections to the conduct of the election or conduct affecting the results of the election.  Parties currently can seek Board review of Regional determinations both pre- and post-election; Board review of pre-election issues is discretionary.      

Proposed Reforms

Modernizing Board Procedures

Electronic Filing/Communications – Election petitions and voter lists may be filed or transmitted electronically rather than by mail.  NLRB regional offices could deliver notices and documents electronically rather than by mail, and could directly notify employees by email about an election.

Voter Lists – A list of eligible voters would include phone numbers and email addresses (when available). 

Streamlining Board Procedure to Reduce Unnecessary Litigation

Eligibility Litigation – Litigation of eligibility issues raised by the parties involving less than 20 percent of the bargaining unit would be deferred until after the election.  In many cases, the eligibility issues will be mooted by the election results, so no litigation will be needed even after the election.

Identifying Disputed Issues – The parties would be required to state their positions no later than the start of the pre-election hearing in order to ensure that hearings are limited to resolving genuine disputes.  

Review of Pre-election Rulings – The parties would be permitted to seek review of all Regional Director rulings through a single, post-election request, if the election results have not made those rulings moot. 

Review of Post-election Disputes - The Board will have the discretion to deny review of post-election rulings – the same discretion now exercised concerning pre-election rulings. 

Increasing Transparency & Standardizing Board Process

Compliance Assistance – Parties would receive a description of NLRB representation case procedures, with rights and obligations, as well as a ‘statement of position form’, which will help parties to identify the issues they may want to raise at the pre-election hearing.  The Regional Director may permit parties to complete the form at the hearing with the assistance of the hearing officer.  

Scheduling of Hearings – The Regional Director would set a pre-election hearing to begin seven days after a hearing notice is served (absent special circumstances) and a post-election hearing 14 days after the tally of ballots (or as soon thereafter as practicable). 

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