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Frequently Asked Questions - 2015 Representation Case Procedures

General

No.  The new rules will only apply to petitions filed on or after April 14, 2015.  The prior rules will apply to petitions filed before April 14, 2015.

Initial Processing

The petition will have a filing date of the date it was E-Filed, even if the E-Filing occurred after close of business.  In this regard, the petition will be treated like all other E-Filed documents that are due at the close of business in an NLRB office.  The hearing and Statement of Position due dates are not impacted by the use of the E-Filing date because the calculation of the hearing date and Statement of position due date are from the date of service of the Notice of Representation Hearing, not the filing of the petition.

No, a petition cannot be filed by email. A petition or a Statement of Position can be filed by E-Filing through the Board’s website, by facsimile, by mail, or in person at one of the NLRB’s regional offices.

No.  In accordance with §102.114(a) and (i) of the Board’s Rules, if the petition is E-Filed, the petitioner must serve the petition on the parties by electronic mail, overnight delivery service, facsimile transmission (with the permission of the party receiving the document), or by personal service no later than the next day.

Statement of Position

Section 102.66(d) states that if the employer fails to timely furnish the required lists of employees, the employer will be precluded from contesting the appropriateness of the proposed unit at any time and from contesting the eligibility or inclusion of any individuals at the pre-election hearing, including by presenting evidence or argument, or by cross-examination of witnesses.

No.  The Statement of Position must be filed by noon in the time zone specified in the Notice of Representation Hearing on the due date.  Although the E-Filing terms state that documents will be considered timely filed if the E-Filing receipt reflects that the entire document was received by the Agency’s E-Filing system before midnight local time on the due date, that does not apply because the final rule provides that the Statement of Position is due at a specific time of day and the purpose of the filing (preparation for the hearing the next business day) would not be well-served if the Statement of Position is filed later than noon.

Because intervention happens in a wide variety of circumstances, regional directors have discretion to follow the procedure that best facilitates development of the record in a particular case in deciding whether to require an intervenor to file a Statement of Position.

Notice of Petition for Election

If the employer customarily communicates with all the employees in the petitioned-for unit through electronic means, then the employer must distribute the Notice of Petition for Election electronically to the entire unit. If the employer customarily communicates with only some of the employees in the petitioned-for unit through electronic means, then the employer need only distribute the Notice of Petition for Election electronically to those employees.

Election Agreements

The employer’s designated representative will be notified by email and/or by facsimile (or overnight mail in the case where no email or facsimile contact information was provided).

Pre-Election Hearings

A pre-election hearing is required in all cases where the parties have not entered into an election agreement, but a full scale “evidentiary hearing” is not required in every case, only “an appropriate hearing.”  There may be times when there are no disputes which must be resolved and, therefore, an appropriate hearing does not require the introduction of extensive evidence.

The final rule requires that hearings continue from day to day until completed, unless the regional director determines that “extraordinary circumstances” warrant otherwise.

A party generally may not raise any issue, present any evidence relating to any issue, cross-examine any witness concerning any issue, or present argument concerning any issue that the party failed to raise in its Statement of Position or failed to place in dispute in response to another party’s Statement of Position or response.

Depending upon the significance and the reason for the omissions, at the regional director’s discretion, the employer may be prevented from contesting the appropriateness of the unit and from contesting the eligibility or inclusion of any individuals in the pre-election hearing. 

No, the final rule does not require the hearing officer to solicit offers of proof from the parties but, consistent with pre-existing practice, regional directors and hearing officers have discretion to require parties to submit offers of proof on disputed issues.

The final rule limits pre-election hearings to those issues that are relevant to a question concerning representation and makes clear that regional directors may exercise their discretion not to litigate disputes concerning individuals' eligibility to vote or inclusion in an appropriate unit at a pre-election hearing.  The rule also explains that a party will have the right to introduce evidence of significant facts that support the party’s contentions and are relevant to the existence of a question of representation.  Issues involving jurisdiction, labor organization status, the scope and appropriateness of the unit, expanding and contracting units, and bars to an election are all relevant to the existence of a question of representation and so must be decided by the regional director if they are contested.  Accordingly, those issues may be litigated in pre-election hearings if the parties place them in dispute and are able to point to facts that are legally significant to support their position on the contested issues.

Under the final rule, disputes over eligibility to vote or inclusion in an appropriate unit “ordinarily” need not be litigated or resolved before an election is conducted.  The rules do not define “ordinarily” or otherwise specify what percentage of employees involved in such issues is substantial enough to warrant pre-election litigation, but leave the determination in each case to the regional director.  However, it is clear under Board precedent that it would typically be appropriate for regional directors to exercise their discretion in favor of deferring litigation of eligibility/inclusion issues affecting up to 20 percent of unit employees.  The Board further explained that its election statistics indicate that in the majority of cases, deferred issues involving 20 percent or less of the unit would be unnecessary to litigate or decide in a post-election proceeding because they would not be determinative of the election’s result.  In those cases, these issues may be litigated, if necessary, in post-election proceedings.

Some eligibility or inclusion issues cannot be deferred to the post-election stage, even if the number of individuals in dispute is small, because that would be contrary to our statute, policies and/or case law.  For example, if a party contends that assertedly professional individuals are included in an otherwise appropriate unit of non-professional employees, that issue must be resolved before the election because professional employees must be given an opportunity to decide whether to be included in a non-professional unit, through a special balloting procedure during the election.

Generally, individual eligibility and inclusion issues concern: (1) whether individuals or groups of individuals, otherwise falling within the terms used to describe an appropriate unit, are nevertheless ineligible because they are excluded from the Act’s definition of "employee," and (2) whether individuals or groups of individuals fall within the terms used to describe the unit. For example, if the petition calls for a unit including ‘‘production and maintenance employees’’ and excluding ‘‘professional employees, guards and supervisors as defined in the Act,’’ then the following would all be eligibility or inclusion questions: (1) whether production foremen are supervisors; (2) whether production employee Jane Doe is a supervisor; (3) whether workers who perform quality control functions are production employees; and (4) whether Joe Smith is a production employee.   Other issues that may be deferred include managerial status and whether individuals are employed by their parent or spouse.

Not necessarily. In those circumstances, the burden of proof rests with the party seeking to contest the presumptively appropriate unit. If the party seeking to overcome that presumption presents evidence suggesting that the unit is not appropriate, the petitioning party may very well have to proffer evidence to rebut that showing and establish that the petitioned-for unit is, in fact, appropriate.

Under case law, the party seeking to exclude any individual as a supervisor has the burden of proof with respect to the exclusion.

The parties have never had an absolute right to have all eligibility or inclusion issues determined prior to an election. Although parties had the right to raise and litigate such issues, the Board and reviewing courts have made clear that those issues did not always have to be resolved by the regional director or the Board.  In fact, it was not unusual for the resolution of those issues to be deferred to the post-election stage by regional directors and/or the Board before the enactment of the Board’s revised rules. In practice, parties will continue to have to use their best judgment in deciding whether or not to use alleged supervisors in their campaigns (including gathering authorization cards) long before a regional director would be able to make an initial attempt to resolve their status following a pre-election hearing.

A party may request special permission to appeal from a hearing officer’s ruling to the regional director. Rulings made by or at the direction of the regional director may also be the subject of a special appeal, which a regional director, in his or her discretion, may choose to treat as a motion for reconsideration of the regional director’s ruling or direction. 

A request for special permission to appeal may not be filed with the Board, but any party may request that the Board review any action of a regional director that has been delegated to the regional director, except where the Board’s rules provide otherwise.  If a request for review is granted, the Board will review the hearing officer’s rulings and the regional director’s actions, regardless of whether or not a pre-election request for special permission to appeal has been filed.

Neither the filing, nor the grant of a request for special permission to appeal a ruling of the hearing officer will delay the hearing or postpone the election, unless otherwise ordered by the regional director or the Board.

No party will be prevented from raising an issue at a later time because it did not seek special permission to appeal.  The hearing officer’s rulings will be considered by the regional director when the director reviews the entire record.

At the close of hearing, parties will be permitted to make oral arguments on the record. Parties will be permitted to file post-hearing briefs only with special permission of the regional director. The regional director will specify the time for filing such briefs and may limit the subjects to be addressed.

Election Dates

Section 102.67(b) states that the regional director shall schedule the election for the earliest date practicable, consistent with the Board’s rules.  The final rule does not establish specific numerical time goals for processing representation petitions and/or conducting elections.

When an election will occur will vary from case to case, just as it did under the prior rules. Variables affecting the timing will include (as in the past): whether the parties are able to reach an election agreement; the scheduling of the pre-election hearing; the length of the hearing; the number and complexity of the issues the regional director must address in order to determine if there is a question of representation; and the regional director’s exercise of discretion, considering the preferences of the parties, in setting the election date. 

Two specific variables bearing on the timing of the election will be whether the voter list is provided in 2 days or at a later date (pursuant to the terms of an election agreement or the direction of election), and whether the non-employer parties entitled to the voter list waive their right to possession of the list for any or all of the 10-day period prior to the election. Although some of the revised rules will result in some reduction in the time required for conducting elections after a hearing, the impact of those changes on a particular case is unknown and unknowable at this time. Further, in about 90 percent of our representation cases, there is no pre-election hearing and elections are conducted under the terms of election agreements negotiated by the parties, which are informed, in part, by parties’ estimation of the time it would take to process the case if it went to a hearing.  It is therefore difficult to predict what impact the revised rules will have on the overall timing of elections.  We will not be able to fully assess the impact of the rule revisions until we have had some experience processing petitions under the final rule.

Blocking

Section 103.20 of the final rule requires that a party wishing to block processing of the petition must file a request to block and simultaneously file a written offer of proof in support of its unfair labor practice charge.  If the Region believes the charge precludes a question concerning representation and no request is filed, the Region may ask the Charging Party if they wish to request to block.  If so, the Charging Party should be informed that they must file a request to block and an offer of proof, including the names of witnesses who will testify in support of the charge and a summary of each witness’s anticipated testimony. In addition, the Charging Party must promptly make the witnesses available to the Region.

Request for Review

Requests for review procedures are set forth in §§102.67(c) and 102.69(c) of the final rule.

  • If the regional director issues a Direction and Order dismissing the petition, a request for review must be filed within 14 days after the decision issues.
  • If the regional director issues a Decision and Direction of Election, a request for review may be filed at any time following the regional director’s decision until 14 days after a final disposition of the proceeding by the regional director. A “final disposition” occurs when the regional director issues a certification of representative, a certification of results, a dismissal, or an order to open and count challenged ballots. If there are post-election objections or determinative challenged ballots, a party may combine a request for review of the Decision and Direction of Election with a request for review of the regional director’s resolution of objections and challenged ballots if the party has not previously requested review of the decision and direction of election.

Elections

In accordance with §102.67(b), in a directed election, the NLRB ordinarily will simultaneously transmit to the parties and their designated representatives the Notice of Election with the Decision and Direction of Election by email, facsimile or overnight mail (if neither an email address or facsimile number was provided).  In accordance with §102.62(e), the Notice of Election will be promptly transmitted to the parties after approval of an election agreement. Because the Notice of Election will be sent electronically and then printed by the employer, the Notice of Election will now appear on 8 ½ by 11 paper and will not be in color.

If the election agreement or the direction of election provides for individuals to vote subject to challenge, both the direction of election and the election notice will advise voters that some individuals will vote subject to challenge because their eligibility has not been determined and that their eligibility or inclusion will be resolved, if necessary, after the election.  The Notice usually will not name these employees, but rather will refer to their job titles, shifts, locations, or other descriptive factors.

Sections 102.62(e) and 102.67(k) require the employer to post the Notice of Election in conspicuous places in the workplace, including all places where notices to employees in the unit are customarily posted) at least three full working days (excluding Saturdays, Sundays and holidays) prior to 12:01 a.m. on the day of the election.  

The employer is also required to distribute the notice electronically to unit employees if it customarily communicates with employees in the unit electronically, either by email, by posting on an employer intranet site, or both.  If the employer customarily communicates with only some of the unit employees electronically, the employer is only required to electronically distribute the notice of election to that subset of the unit.

Voter List

Under the final rule, the employer must file the voter list with the Region and serve the voter list on the parties. The NLRB will no longer serve the voter list (previously referred to as the “Excelsior list” or the “eligibility list”).

To be timely filed and served, the list must be received by the regional director and the parties within two business days after approval of the election agreement or the direction of election unless a longer time was specified in the agreement or the direction.

The list must contain the names, addresses, job classifications, work locations, and shifts of the employees eligible to vote, and must also include personal email addresses and personal cell phone and telephone numbers of the employees eligible to vote to the extent the employer has them.

If the Stipulated Election Agreement or Decision and Direction of Election provide for certain voters to vote challenged ballots, the names and other information specified above must be provided in a separate section of the voter list.

Section 102.67(l) provides that employers must provide a voter list or lists in an electronic format approved by the General Counsel. The General Counsel has decided that, for ease of use of the data by the parties entitled to the list before the election, the lists must be filed in common, everyday electronic file formats that can be searched and sorted. Unless otherwise agreed to by the parties, the list must be provided in a table in a Microsoft Word file (.doc or docx) or a file that is compatible with Microsoft Word (.doc or docx). The first column of the list must begin with each employee’s last name and the list must be alphabetized (overall or by department) by last name. Because the list will be used during the election, the font size of the list must be the equivalent of Times New Roman 10 or larger. That font does not need to be used but the font must be that size or larger.

The Board stated that it is presumptively appropriate for the employer to produce multiple versions of the list where the data required is kept in separate databases or files so long as all of the lists link the information to the same employees, using the same names, in the same order and are provided within the allotted time. If the employer provides multiple lists, the list used at the election will be the list containing the employees’ job classifications.

It depends.  If the employer customarily communicates with employees in the unit by emailing them messages, it will need to email employees the Notice of Election.  Similarly, if the employer customarily communicates with its employees by posting messages on an intranet site, it will need to post the Notice there as well.

The petitioner will be given 2 business days to provide a sufficient showing of interest in the unit found appropriate.  The employer will not be required to serve the voter list until a sufficient showing of interest is submitted to the Region.  The employer will instead be required to provide the voter list within 2 business days of notification that the showing of interest is sufficient.

Section 102.67(b) provides that the decision and direction of election ordinarily will specify election details such as the type, date(s), time(s), and locations(s) of the election, and the eligibility period.  However, a regional director has discretion to contact the parties to ascertain their positions regarding the election details if the director ultimately chooses to direct an election in a unit that is materially different from that proposed by either party at the hearing.

Voter List Use

The rule specifically provides that parties shall not use the list for purposes other than the representation proceeding, Board proceedings arising from it and related matters.  For instance, parties may use the personal contact information included in the list to campaign and communicate with employees about the election, to investigate eligibility issues and/or objections, and to prepare for a post-election hearing on determinative challenges and/or objections or a unit clarification proceeding over unresolved eligibility or inclusion issues that were not determinative of the results of the election.  Parties may also use this information to investigate and prepare for a hearing on unfair labor practice charges involving the employer’s employees filed before or after the election.  If post-election objections are filed, a union (or decertification petitioner) can use the list to maintain their support and campaign for votes on any rerun election that may be held.  Some examples of misuse of the list are (1) selling the list to telemarketers, (2) providing it to a political campaign, or (3) using the list to harass, coerce, or rob employees.

How can a party bring to the region’s attention an allegation of misuse of personal contact information included in the voter list?

A party alleging misuse of personal contact information included in the voter list may decide to file objections to the election or an unfair labor practice charge.  A party may also seek to have an attorney or other representative disciplined for engaging in misconduct by failing to abide by the Board’s rule concerning the use of this information (See §102.177 of the Board’s Rules).

The Board believes that case by case adjudication is the appropriate way to consider circumstances in which a remedial order is appropriate so that it can tailor its order to the specific misuse and ensure that the remedy it imposes is effective.  The Board was unwilling to conclude that any particular remedy, such as setting aside the election, suspending or disbarring a representative from practice before the Agency and/or imposing other sanctions, or finding an unfair labor practice and seeking injunctive relief, would be appropriate in all cases, regardless of the circumstances involved in each case.

Post-Election

Parties have 7 days after the tally of ballots has been prepared to file both objections and an offer of proof in support of those objections with the regional director.  Requests for an extension of time to file this offer of proof will be granted by the regional director upon a showing of good cause.  Under prior rules, parties had 14 days from the preparation of the tally of ballots to submit an offer of proof in support of objections. 

The objecting party will also now be required to serve a copy of its objections, but not its offer of proof, on all parties at the same time that its objections are filed with the regional director, and a certificate of such service must be included with its objections.  The regional director will transmit a copy of the objections, but not the offer of proof, to all other parties.

Objections may be filed electronically.

Post-election hearings on challenges and/or objections will normally open 21 days after the preparation of the tally of ballots or as soon as practicable thereafter, unless the parties agree to an earlier date.  Prior rules established no set time for opening post election hearings.  The hearing officer will continue the hearing from day to day until completed unless the regional director concludes that extraordinary circumstances warrant otherwise.      

After a post-election hearing, the hearing officer will prepare a report that will contain his or her recommendations to the regional director on the disposition of objections and/or challenges.  Under prior rules, those recommendations were usually made to the Board, rather than to the regional director.  Any party may, within 14 days from the date of the issuance of this report, file with the regional director exceptions to that report and a brief, if desired.  A party opposing those exceptions may file an answering brief within 7 days from the last due date for filing exceptions or within any additional time allowed by the regional director.  A copy of that answering brief must be immediately served on all other parties and a statement of service must be filed with the regional director. 

The decision of the regional director will be final unless a request for review is granted.  All appeals from a regional director’s post-election decision will be discretionary, consistent with the standard of review now applied in reviewing pre-election decisions made by a regional director.  In other words, a party seeking review from a regional director’s post-election decision must identify a compelling reason for Board review, just as the current rules require a party to do when seeking Board review of a regional director’s pre-election decision. Under prior rules, parties had a right to file exceptions from the hearing officer’s report with the Board, in all cases in which the hearing officer’s recommendations were made to the Board.   

Parties may consolidate their request for review from a regional director’s post-election decision with their request for review of a regional director’s pre-election decision, if they have not previously requested review of that decision.

Hearing officers presiding over post-election hearings are charged with making factual findings, credibility resolutions and recommendations as to the ultimate disposition of the case.  Although the Board decided not to impose a mandatory offer of proof procedure in post-election hearings, hearing officers in post-election hearings will continue to retain discretion to require parties to make an offer of proof and may rule on such offers without having to consult with the regional director.  Post-hearing briefs will continue to be filed only upon special permission of the hearing officer and within the time and addressing the subjects permitted by the hearing officer.

UD, UC, AC and WH Cases

The final rule allows the UC petition to be E-Filed, but does not require the UC petition to be served on the other parties.  If a hearing is held in a UC case, briefs may only be filed with the regional director’s permission.

  1. The final rule allows a UD petition to be E-Filed, but does not require the UD petition to be served on the other parties.
  2. The final rule provides that the petition form must include a place to designate the petitioner’s representative for service of documents and the petitioner’s preferences on election details.
  3. The final rule requires that the showing of interest to support the UD petition be filed simultaneously with the petition.  The original of the E-Filed or faxed showing of interest must be submitted to the region 2 business days from the filing of the petition. 
  4. The voter list in a UD case must contain the same information as in RC, RD, and RM cases and be provided in 2 business days from approval of the election agreement or direction of election, unless otherwise specified in the agreement or direction of election.
  5. The employer must post the Notice of Election in conspicuous places, including all places where notices to employees in the unit are customarily posted and must distribute the Notice of Election electronically, if the employer customarily communicates with employees in the unit electronically.

The only change the final rule makes is to allow the E-Filing of these petitions.

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