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Frequently Asked Questions - New Representation Case Procedures

 

The rule will be applied to those cases filed on or after April 30, 2012, but not to cases that were filed before April 30, 2012.  This was not specifically addressed by the Board, but is a presumptively appropriate and more easily administered means for enforcing the revised rule, rather than changing rules in the middle of a pending proceeding.

The revised rules affect the processing of RD, RD, and RM petitions.  An RC petition is filed by a labor organization seeking to represent employees.  An RD petition is filed by a person seeking to decertify a current bargaining representative.  An RM petition is filed by an employer seeking to determine if a labor organization should be recognized as the representative of its employees.  The revised rules do not affect the processing of UC (unit clarification), UD (union deauthorization), AC (amendment of certification) or WH (certification of representative under the FLSA) petitions.

The revised rules adopted by the Board do not specify how soon the pre-election hearing should be held.  Currently, most Regions issue the Notice of Representation Hearing (NOH) on the day the petition is filed and schedule the initial hearing for 7 to 10 days after the petition is filed.  In the interest of having uniform and predictable representation case processes throughout the field, the Acting General Counsel has adopted the practice of some regions to normally issue the NOH on the day the petition is filed, and schedule the hearing 7 days (or 5 working days) from the date of issuance of the NOH.  This satisfies the Board’s holding in Croft Metals, Inc., 337 NLRB 688 (2002), which requires that parties in representation cases must receive notice of hearing not less than 5 days prior to hearing, excluding intervening weekends and holidays.  It also will give regions some flexibility to address postponement requests, consistent with outstanding instructions that hearings be conducted within 14 days from the date of filing, absent extraordinary circumstances

 

Under current standards specified in Form NLRB-4339, a request to postpone a hearing will not be granted unless good and sufficient grounds are shown.  Requests for postponement of the hearing to a date more than 14 days after the petition was filed will normally not be granted absent extraordinary circumstances.  Approval of a postponement request may be conditioned upon the parties’ agreement to participate in a conference; not seek extensions of time for filing of briefs, if allowed; and/or enter into stipulations on matters not in dispute.

 

The Board’s revised rules do not establish new time goals for processing representation petitions and/or conducting elections.  In fact, the Board specifically stated that how fast 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 a pre-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.

Although some of the revised rules may result in some reduction in the time required for conducting elections after a hearing, primarily where the issues raised are straightforward and routine, in about 90% of our representation cases there is no pre-election hearing and elections are conducted under the terms of a stipulated election agreement negotiated by the parties.  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 that impact until we have had some experience processing petitions under the revised rules.    

 

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.

Yes, that is possible. Board agents are encouraged to discuss election arrangements with the parties at the earliest possible time. We will send out the election notices as soon as the parties agree on the election arrangements or, if no agreement is reached, when the regional director determines it is appropriate to do so. We will encourage the parties to post and distribute the election notices upon receipt.

 

Since the eligibility list is used in the election, it is unlikely that an election would be scheduled the day the list is due because the list might not be received before the election begins. It is possible, however, that the election could be scheduled the day after the list is due.
 

 

The Board’s revised rules limit pre-election hearings to those issues that are relevant to a question concerning representation and make clear that hearing officers, in consultation with regional management, should exercise their authority to limit the presentation of evidence to matters which are both relevant to a question concerning representation and about which the parties have taken a position.  Issues affecting jurisdiction, labor organization status, scope of and appropriateness of the unit, and bars to an election will be litigated in the pre election hearing.   

 

If you decline to take a position on a presumptively appropriate unit, you may be precluded from presenting evidence relevant to the determination of an appropriate unit.  If the unit is not presumptively appropriate, the record will have to contain sufficient evidence to establish whether the petitioned unit is appropriate. 

 

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 unit is, in fact, appropriate.    

 

Under Board case law, the party seeking to exclude any individual based on exclusions allowed under the statute or the Board’s policies, including supervisors, managerial employees, confidential employees, independent contractors and agricultural workers, has the burden of proof with respect to the exclusion.  However, depending on the number of individuals whose supervisory status is at issue, the introduction of evidence as to supervisory status might be deferred. 

 

Under the Board’s revised rules, 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 did not define “ordinarily” or otherwise specify the number of eligibility issues substantial enough to warrant pre-election litigation.  The Acting General Counsel has decided to use the current guideline that applies to negotiated stipulation agreements and gives regional directors discretion to defer the resolution of up to 10% of the unit to the post-election stage.  Regional directors will continue to have discretion to exceed that 10% threshold, where appropriate. 

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 individuals included in an otherwise appropriate unit are 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. Sonotone Corp., 90 NLRB 1236 (1950). 

 

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 employees’’ and excluding the typical ‘‘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.

 

As the Board noted in its revised rules, 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 had 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.  Even if the regional director and/or the Board decided eligibility or inclusion issues, those determinations were not final and were subject to be appealed to the Board or challenged in court.  Moreover, the Board’s resolution of those issues was usually made just a few days before the election or after the election and thus, near the end or after the election campaign period.

However, not all issues of eligibility or inclusion will be deferred to the post election stage under the Board’s revised rules.  There may be circumstances where the regional director may allow litigation over eligibility or inclusion issues even if the number of employees affected is less than 10% of the unit.  If the number exceeds the 10% threshold, those issues will normally be addressed at the pre-election stage. 

Hearing officers will also continue to explore stipulations on all issues, including those that may ordinarily not be litigated at the pre-election stage.  Nothing precludes the parties from discussing the facts relevant to supervisory status and reaching an agreement with respect to whether or not certain individuals are supervisors. Finally, the Board noted that in virtually every case, even where there is uncertainty concerning the supervisory status of individual employees, the employer nevertheless has in its employ managers and supervisors whose status is not disputed and is undisputable.  An employer may certainly choose to use those acknowledged supervisors to articulate its views during the campaign. 

 

The Board’s focus was on reducing unnecessary litigation and needless delay, in the interest of better fulfilling its duty to expeditiously resolve questions concerning representation.  It emphasized that its revised rules are part of a historical and continuing process of improving the efficiency of representation processes and that each element of the final rule was intended to correct a specific and systemic problem that posed an obstacle to the prompt resolution of questions concerning representation.  In the Board’s view, these problems affected not only contested cases, but also those cases in which the parties entered into agreements, because the possibility of time consuming and unnecessary litigation could be used to gain strategic advantage in every case.   

 

In Specialty Healthcare, the Board set forth the analytical framework to be applied where a party contends that the smallest appropriate bargaining unit must include additional employees or job classifications beyond those in the petitioned-for unit.  The Board stated that it would first assess whether the petitioned-for employees are “readily identifiable as a group (based on job classifications, departments, functions, work locations, skills or similar factors),” and would then apply traditional community-of-interest principles to determine if the petitioned-for unit is appropriate.  If the petitioner satisfies that standard, the burden is on the party challenging the unit to demonstrate that the additional employees it seeks to include share “an overwhelming community of interest with the petitioned-for employees,” such that there “is no legitimate basis upon which to exclude certain employees from” the larger unit because the traditional community-of-interest factors “overlap almost completely.”

The time in which representation case transcripts are delivered to the Regions has not changed. Generally, those transcripts must be delivered within three calendar days after the hearing closes.  

 

You may request special permission to appeal from that ruling to the regional director.

You may also request to file for special permission to appeal from the regional director’s ruling to the Board, but this special appeal will only be considered by the Board under “extraordinary circumstances” when it appears that the “issue will otherwise evade review.”  This narrower standard is not applicable to requests for special permission to appeal rulings of the Hearing Officer to the regional director.

The hearing officer’s rulings will be reviewed by the regional director and ultimately, the Board, if a request for review is granted, regardless of whether or not a pre-election request for special permission to appeal has been filed with the regional director or Board.  

 

In most cases, the request for special permission to appeal the hearing officer’s ruling will be made and ruled upon by the regional director before the hearing closes and a decision and direction of election issues, which would obviously obviate the need for a stay.  However, if the request is made and/or ruled upon after the hearing closes, the regional director may order that the record be reopened to take evidence excluded by the hearing officer, and may grant a stay, either on his or her own initiative or upon request, under appropriate circumstances.

 

Not necessarily.  Parties may request a stay or that the ballots be impounded, but special appeals will not automatically stay the election or require ballots to be impounded unless specifically so ordered by Board.

 

Under the revised rules, the hearing officer’s role is to ensure both a complete record on to issues relevant to the existence of a question concerning representation and a record that is not burdened with evidence about issues that do not need to be decided by the regional director.  Consistent with these twin objectives, the hearing officer, in consultation with regional management, may preclude the introduction of evidence on individual eligibility and inclusion issues that do not need to be decided prior to the election in order for the regional director and the Board to discharge their duties under Section 9(c). 

 

This is a situation that has arisen under the Board’s current procedures, and the parties have often resolved these issues themselves in negotiations.  Alternatively, a party may file a unit clarification petition in order to resolve any outstanding unit placement issues.

 

The regional director, in addressing whether a question concerning representation exists, must determine the appropriate unit in which an election might be directed.  A necessary element of this process will be determining the scope of the unit; that is, whether the unit will involve single or multiple facilities or employers.  The challenge procedure will not be used in addressing unit scope issues, but may be used in certain circumstances to defer to the post-election process individuals’ eligibility or inclusion in the unit, if necessary.

 

Parties may file post-election briefs only by special permission of the hearing officer, who will make that decision in consultation with regional management.  If a brief is allowed, the hearing officer will determine when it will be filed and what subjects will be addressed in the brief.  It is anticipated that post-hearing briefs will not be allowed in most cases.  However, a party may file a brief, memorandum of points and authorities, or other legal arguments with the hearing officer before the hearing closes, if it wishes to do so.  Regardless, parties do have a right to present oral argument at the close of the hearing.  And parties may file a brief in support of their request for review of the director’s decision and direction of the election if the election results have not rendered the issues moot.

 

The party lodging the objection or challenging the voter’s eligibility.

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