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New Representation Case Procedures

Is it possible that an election could be held the day the election eligibility (Excelsior) list is due?


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.

In an election directed by the regional director after a hearing, can the notice of election be posted during the time when the employer is preparing the election eligibility (Excelsior) list?

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.

What types of petitions are affected by the revised rules?

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.

On what basis will the request for a postponement of the pre-election hearing be granted or denied, and for what length of time?


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.

Is a pre-election hearing required under Section 9(c) in all cases regardless of whether material facts are in dispute?


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.

What issues will typically be litigated in a pre-election hearing?


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.   

Do I have to take a position as to the appropriateness of the petitioned-for unit?


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. 

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.    


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