New Representation Case Procedures
If a substantial number of disputed individuals or groups of individuals are voted subject to challenge, and the union wins the election with these challenged votes not being determinative, how will we resolve these individuals’ unit placement?
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.
Will the challenge procedure be used when the number of employees at issue is 10% or less, but the issue is one of unit scope rather than eligibility?
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.
Who has burden of proving objections or challenges in post-election proceedings?
The party lodging the objection or challenging the voter’s eligibility.
How soon after a petition is filed will the region conduct a pre-election hearing, if the parties do not reach an election agreement?
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
What impact will the new rule have on cases that are pending when the rule become effective on April 30, 2012?
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.
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