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When can eligibility or inclusion issues be litigated in the pre-election hearing and when will they 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). 

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