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.