Final Rule:
Representation-Case Procedures
The National Labor Relations Board’s (NLRB) Final Rule
governing representation-case procedures is designed to remove unnecessary
barriers to the fair and expeditious resolution of representation
questions. The Final Rule will streamline Board procedures, increase
transparency and uniformity across regions, eliminate or reduce unnecessary
litigation, duplication and delay, and update the Board’s rules on documents
and communications in light of modern communications technology. The
amendments provide targeted solutions to discrete, specifically identified
problems to enable the Board to better fulfill its duty to protect employees’
rights by fairly, accurately and expeditiously resolving questions of
representation.
Background on
Representation-Case Procedures
Representation petitions are filed by employees, unions
and employers seeking to have the NLRB conduct an election to determine if
employees wish to be represented for purposes of collective bargaining with
their employer. The Board will investigate these petitions to determine
if an election should be conducted and will direct an election, if
appropriate.
In most instances, parties agree on the voting unit and
other issues. If parties do not agree, the NLRB’s regional office holds a
pre-election hearing to determine whether an election should be
conducted. The NLRB’s regional office conducts the election and, if
necessary, holds a post-election hearing to resolve challenges to voters’
eligibility and objections to the conduct of the election or conduct affecting
the results of the election. Parties can seek Board review of regional
determinations made before and after the election.
Modernizing Board
Procedures
Electronic
Filing/Communications – Parties may file documents, such as petitions,
electronically, rather than by fax or mail. Parties and the NLRB’s
regional offices can transmit documents electronically, rather than using
slower or more expensive forms of communications, such as mail or express
delivery services.
Election Voter
List – The employer must include available personal email
addresses and phone numbers of voters on the voter list in order to permit
non-employer parties to communicate with prospective voters about the upcoming
election using modern forms of communication.
Streamlining Board Procedure and Reducing Unnecessary
Litigation
Identifying
Disputed Issues – The non-petitioning parties will be required
to respond to the petition and state their positions generally the day before
the pre-election hearing opens. The petitioner will be required to
respond to the issues raised by the non-petitioning parties at the opening of
the hearing. Litigation inconsistent with the positions taken by the
parties will generally not be allowed.
Litigation of
Eligibility and Inclusion Issues – Generally, only issues
necessary to determine whether an election should be conducted will be
litigated in a pre-election hearing. A regional director may defer
litigation of eligibility and inclusion issues affecting a small percentage of
the appropriate voting unit to the post-election stage if those issues do not
have to be resolved in order to determine if an election should be held.
In many cases, those issues will not need to be litigated because they have no
impact on the results of the election.
Post Hearing
Oral Argument and Briefs – All parties will be provided with an
opportunity for oral argument before the close of the hearing. Written
briefs will be allowed only if the regional director determines they are
necessary.
Review of
Regional Director Rulings – The parties may seek review of all
regional representation-case rulings through a single post-election request, if
the election results have not made those rulings moot. The election will
no longer be stayed after the regional director issues a decision and direction
of election, in the absence of an order from the Board.
Review Standard for Post-election Issues – The
Board will have the discretion to deny review of regional director
post-election rulings, under the same standard that has governed Board review
of regional director pre-election rulings for many years.
Increasing
Transparency and Standardizing Board Process
Earlier and
more complete information to the parties – When the petitioner
files its petition, it will be required to simultaneously serve a copy of the
petition, along with a more detailed Agency description of representation case
procedures and an Agency Statement of Position form, on all parties identified
in its petition in order to provide them with the earliest possible notice of
the filing of the petition and Board procedures for processing those
petitions. NLRB regional offices will serve a Notice of Hearing and a
Notice of Petition for Election (along with a copy of the petition, description
of representation case procedures and the Statement of Position form) on all
parties. The non-petitioning parties will be required to respond to
the petition (generally the day before the hearing opens) by filing with the
regional director and serving on the other parties a Statement of Position
identifying the issues they have with the petition. As part of its
Statement of Position, the employer will be required to provide all other
parties with a list of prospective voters, their job classifications, shifts
and work locations.
Earlier and
more complete information to employees - The employer is
required to post a Notice of Petition for Election containing more detailed
information on the filing of the petition and employee rights within two
business days of the region’s service of the petition. The Notice of
Election will provide prospective voters with more detailed information about
the election and the voting process.
Scheduling of
Hearings – Except in cases presenting unusually complex issues,
pre-election hearings will generally be set to open 8 days after a hearing
notice is served on the parties. Post-election hearings will generally
open 14 days after objections are filed.
The following table provides a side-by-side comparison of
current and New procedures:
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Current procedures
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New procedures
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Parties cannot
electronically file election petitions. Parties and NLRB regional
offices do not electronically transmit certain representation case documents.
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Election petitions,
election notices and voter lists can be transmitted electronically.
NLRB regional offices can deliver notices and documents electronically,
rather than by mail.
|
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The parties and prospective
voters receive limited information.
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Parties will receive a more
detailed description of the Agency’s representation case procedures, as well
as a Statement of Position form, when served with the petition. The
Statement of Position will help parties identify the issues they may want to
raise at the pre-election hearing. A Notice of Petition for Election,
which will be served with the Notice of Hearing, will provide employees and
the employer with information about the petition and their rights and
obligations. The Notice of Election will provide prospective voters
with more detailed information about the voting process.
|
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The parties cannot predict
when a pre- or post-election hearing will be held because practices vary by
Region.
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The Regional Director will
generally set a pre-election hearing to begin 8 days after a hearing notice
is served and a post-election hearing 14 days after the filing of
objections.
|
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There is no mechanism for
requiring parties to identify issues in dispute.
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Non petitioning parties are
required to identify any issues they have with the petition, in their
Statements of Positions, generally one business day before the pre-election
hearing opens. The petitioner will be required to respond to any issue
raised by the non petitioning parties in their Statements of Positions at the
beginning of the hearing. Litigation inconsistent with these positions
will generally not be allowed.
|
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The employer is not
required to share a list of prospective voters with the NLRB’s regional
office or the other parties until after the regional director directs an
election or approves an election agreement.
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As part of its Statement of
Position, the employer must provide a list of prospective voters with their
job classifications, shifts and work locations, to the NLRB’s regional office
and the other parties, generally one business day before the pre-election
hearing opens. This will help the parties narrow the issues in dispute at the
hearing or enter into an election agreement.
|
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Parties may insist on
litigating voter eligibility and inclusion issues that do not have to be
resolved in order to determine whether an election should be held.
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The purpose of the
pre-election hearing is clearly defined and parties will generally litigate
only those issues that are necessary to determine whether it is appropriate
to conduct an election. Litigation of a small number of eligibility and
inclusion issues that do not have to be decided before the election may be
deferred to the post-election stage. Those issues will often be mooted
by the election results.
|
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Parties may file a
brief within 7 days of the closing of the pre-election hearing, with
permissive extensions of 14 days or more.
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Parties will be provided
with an opportunity to argue orally before the close of the hearing and
written briefs will be allowed only if the regional director determines they
are necessary.
|
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Parties waive their right
to challenge the regional director’s pre-election decision if they do not
file a request for review before the election. This requires parties to
appeal issues that may be rendered moot by the election results.
|
Parties may wait to see
whether the election results have made the need to file a request for review
of the regional director’s pre-election decision unnecessary and they do not
waive their right to seek review of that decision if they decide to file
their request after the election.
|
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Elections are delayed 25-30
days to allow the Board to consider any request for review of the regional
director’s decision that may be filed. This is so even though such
requests are rarely filed, even more rarely granted and almost never result
in a stay of the election.
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There will be no automatic
stay of an election.
|
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The Board is required to
review every aspect of most post-election disputes, regardless of whether any
party has objected to it.
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The Board is not required
to review aspects of post-election regional decisions as to which no party
has raised an issue, and may deny review consistent with the discretion it
has long exercised in reviewing pre-election rulings.
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The voter list
provided to non-employer parties to enable them to communicate with voters
about the election includes only names and home addresses. The employer must
submit the list within 7 days of the approval of an election agreement or the
regional director’s decision directing an election.
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The voter list will also
include personal phone numbers and email addresses (if available to the
employer). The employer must submit the list within 2 business days of
the regional director’s approval of an election agreement or decision
directing an election.
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Links and Documents
- Read the News Release
- Fact Sheet (in pdf)
- Comparison Table (in pdf)
- Read the Final Rule in the Federal Register (public inspection version) (link is external)
- Read the Dissent
- Read the Response to the Dissent
- View a Redline Version of the Proposed Amendments
Source: NLRB.gov
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