New Representation Case Procedures
Does the petitioning party have to put on testimony and offer documents if it petitions for a presumptively appropriate unit under Board law?
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.
When can eligibility or inclusion issues be litigated in the pre-election hearing and when will they be deferred?
What are the kinds of individual eligibility or inclusion questions that need not be litigated at the pre-election hearing?
Isn’t the refusal of the Board to resolve supervisory status before the election going to inhibit employer rights to campaign against the union because they will not be in a position to determine who their supervisors are?
Why should the Board focus on the small percentage of cases that are not resolved by agreement of the parties and isn’t this a backdoor way to speed up elections?
What is the impact of the Board’s decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), on how hearings will be conducted?
If a hearing officer makes an obvious mistake in his or her ruling regarding critical evidence at the hearing, do I have a right to take a special appeal to the regional director? To the Board?
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.
If the regional director grants my request for special permission to appeal a ruling of the hearing officer, will the election be postponed?
If the Board grants my request for special permission to appeal a ruling of the hearing to the regional director, will the election be postponed or the ballots be impounded?
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.