22. REPRESENTATION CASE PROCEDURES 

AFFECTING THE ELECTION 

We have seen that an election may be conducted pursuant to an agreement for consent 

election, stipulation for certification upon consent election, Regional Directors’ decision and

direction of election, Board’s decision and direction of election, or an expedited election under 

Section 8(b)(7)(C). The arrangements and voting procedure in all elections are the same. 

A summary of the normal procedures involving the election itself follows. In the interest of 

clarity, we list first the procedural steps seriatim without reference at this point to the substantive 

rulings which grow out of the procedural stages and usually are raised in objections cases. These

will be discussed in the chapter on Interference With the Conduct of Elections. 

See NLRB Casehandling Manual (CHM), sections 11300 through 11478, and the Board’s 

Rules and Regulations, Sections 102.69 and 102.70. This chapter is designed to provide a general 

overview of representation case procedures. The user of this manual should refer to the cited

provisions of CHM for guidance on specific procedural matters. 

22-101 The Election Date 

370-0700 

The selection of the time of an election is generally left to the discretion of the Regional

director. Manchester Knitted Fashions, 108 NLRB 1366 (1954), However, an election may not be 

held sooner than 10 days after the Regional Director has received the list of names and addresses 

of the eligible voters (see CHM sec. 11302.1). The rescheduling of an election is not in and of 

itself grounds for setting aside the election. Superior of Missouri, Inc., 338 NLRB 570 (2002). 

But see section 22-106, infra, concerning notice of election in cases of rescheduling. 

22-102 The Ballot 

370-3533-5000 

370-7000 

The ballots are furnished by the Agency. No one, other than a Board agent and the individual 

voter, is permitted to handle the ballots (see CHM sec. 11306). All elections are by secret ballot

(see Rules 102.69(a)). 

22-103 The Question and Choices on the Ballot 

The question on the ballot accords with the consent agreement or direction of election (see 

CHM sec. 11306.2). Where a self-determination election is held in which professionals are 

involved, see discussion in chapter 21 dealing with such elections. The choices on the ballot, like 

the question, accord with the agreement or direction. For the choices on the ballot in a selfdetermination election, see chapter 21. 

22-104 Withdrawal From the Ballot 

332-5000 

Whenever two or more labor organizations are included as choices in an election, either may 

on prompt request to and approval by the Regional Director have its name removed. In an RM or 

RD proceeding, timely written notice of such request must be given to all parties and to the 

Regional Director (see Rules 102.69(a)). See also chapter 8, Disclaimer of Interest and

Withdrawal of Petition. 

253
254 REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION

22-105 The Polling Place 

370-1400 

370-3567 

370-7033 

Elections are generally held on the employer’s premises in the absence of good cause to the 

contrary. The decision to conduct an election on or off the employers’ premises or by mail or 

manual ballot is within the discretion of the Regional Director. San Diego Gas & Electric, 325

NLRB 1143 (1998). If an election is held away from the employer’s premises, the initial 

suggestion of a place is normally made by the party proposing it, but final arrangements are made 

by the Board agent. The size of a polling place depends on the nature of the election, with the

number of voters and the length of the voting period being controlling factors. See CHM section

11316 et seq. and section 24-421. 

22-106 The Notice of Election 

370-2800 

A standard notice of election form (NLRB-707) is used to inform eligible voters of the

balloting details. The notice contains a sample ballot with the names of the parties inserted, a

description of the bargaining unit, the date, place, and hours of election, and a statement of 

employee rights under the Act. Other relevant details are inserted whenever that is necessary. 

Copies of the notice must be posted in conspicuous places by the employer at least 3 working 

days before the election. Rules 103.20. See also CHM section 11314 et seq. and section 24-423. 

In the case of rescheduled elections, the Board prefers that where applicable the notice state

that the election has been rescheduled for administrative reasons beyond the control of the parties. 

Builders Insulation, Inc., 338 NLRB 793 (2003). 

22-107 Voting Eligibility 

362-6708 

Voting eligibility is discussed in the chapter on that subject. The Excelsior rule is treated in

the chapter on Preelection Campaign Interference. For other significant details, see CHM section 

11312. 

22-108 Observers 

370-4900 

Each party is permitted to be represented at the polling place by an equal predesignated

number of observers, who are nonsupervisory employees of the employer. This privilege is 

extended to parties, not to nonparticipating unions, nor to alleged representatives of “no union” 

groups. (See CHM sec. 11310; Board’s Rules 102.69(a); and sec. 24-424.) 

22-109 Closing of the Polls 

370-9167-8800 

The polls should be declared closed at the scheduled time. All in the voting line at the time 

scheduled for closing should be permitted to vote. At the close of the election, each observer is

asked to sign the certification on the conduct of election. If a party had no observer, that fact is 

noted. (See CHM sec. 11324 and sec. 24-422.) 
REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION 255

22-110 Mail Ballots 

370-6300 

370-6375 

Voting in appropriate instances may be conducted by mail, in whole or in part. Mail balloting 

is used, if at all, in unusual circumstances, particularly where eligible voters are scattered either 

because of their duties or their work schedules or in situations where there is a strike, picketing, 

or lockout in progress. In these situations the Regional Director considers mail balloting taking 

into consideration the desires of the parties, the ability of voters to understand mail ballots, and

the efficient use of Board personnel. San Diego Gas & Electric, 325 NLRB 1143 (1998). See 

also Willamette Industries, 322 NLRB 1120 (1997); London’s Farm Dairy, 323 NLRB 1057 

(1997); and Reynolds Wheels International, 323 NLRB 1062 (1997). 

In mixed manual-mail elections, mail ballots are sent to those eligibles who cannot vote in

person. They are not sent to employees who, although eligible to vote, are ill or on vacation, or 

are members of the armed services. Mail ballots are not sent to employees in temporary layoff 

status unless all parties agree; if the parties do not agree, only the notice of election is mailed to 

such employees. CHM section 11336 et seq. 

For a discussion of eligibility in mail-ballot elections see Dredge Operators, 306 NLRB 924 

(1992). See also T & L Leasing, 318 NLRB 324 (1995), where the Board found that the Regional

Director is without authority absent special circumstances to vary the terms of a Stipulated

Election Agreement by conducting a mail ballot election. 

Ballots received after the due date but before the ballot count should be counted. Watkins 

Construction Co., 332 NLRB 828 (2000). 

For further discussion of mail ballots see section 24-427. 

The Board does not permit absentee ballots. Cedar Tree Press, Inc., 324 NLRB 26 (1997), 

enf. 169 F.3d 794 (3d Cir. 1999). In its early days, the Board allowed absentee ballot by military 

personnel, but it discontinued the practice in 1941. Wilson & Co., 37 NLRB 944 (1941). The

policy was reiterated in Atlantic Refinery Co., 106 NLRB 1268 (1953). 

22-111 Challenges 

370-5600 

Any observer has the right to challenge for cause. The Board agent must challenge anyone 

whose name is not on the eligibility list, and should challenge anyone the agent knows or has 

reason to believe is ineligible to vote. “The Board agent is not obligated to challenge a voter 

merely because this agent is aware of an eligibility dispute.” Solvent Services, 313 NLRB 645, 

646 (1994). The failure of the observor to make a timely and proper challenge is not a basis to set 

aside an election. Laidlaw Transit, Inc., 322 NLRB 895 (1997). See also Lakewood Engineering 

& Mfg. Co., 341 NLRB No. 101 (2004), for a summary of Board agent challenge ballot duties. 

Challenges are handled as they come up. The merit of the challenge should not be argued. 

Persons in job classifications specifically excluded by the decision and direction of election are

refused a ballot, even under challenge unless there have been changed circumstances. See Rules 

102.69(a); CHM section 11338 et seq. 

Generally postelection challenges are not permitted. The exception is where the party knows 

of the ineligibility, suppressed the facts, and would otherwise benefit from its actions. See 

Lakewood Engineering & Mfg., supra; Solvent Services, supra; and Atlantic Industrial

Constructors, Inc., 324 NLRB 355 (1997). 

A Board agent’s failure to challenge the ballot of a late arriving voter should be handled as an 

objection, not as a postelection challenge. Laidlaw Transit, Inc., 327 NLRB 315 (1998). 
256 REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION

22-112 The Count 

370-7700 

For the details of the counting of ballots, see CHM section 11340 et seq. 

22-113 The Tally of Ballots 

370-7737 

The tally of ballots is on Form NLRB-760. A sample tally of ballots is reproduced in CHM 

section 11340, together with instructions on how to prepare and serve it. 

22-114 Runoff Elections 

355-1167 

362-3375 

Where there are three or more choices on the ballot, and in the election none of the choices 

receives a majority of the valid votes cast, the results are deemed “inconclusive,” and the 

Regional Director conducts a runoff election between the choices on the original ballot receiving

the highest and the next highest number of votes. See CHM section 11350 and the examples 

contained therein. Note the “Exception” discussion to this policy. CHM section 11350.1, also

Rules 102.70. 

See also section 23-220. 

22-115 Resolution of Challenges 

370-7750 

393-7022 

393-7033 et seq. 

Challenges are investigated if made before the questioned ballots were dropped into the ballot 

box and must have been sufficient in number to affect the results of the election. Postelection

challenges are not permitted. NLRB v. Tower Co., 329 U.S. 324 (1946); and Poplar Living 

Center, 300 NLRB 888 (1990). There is a limited exception to this rule in situations where the 

party benefiting from its application knew of the ineligibility of the voter and supressed the facts.

Solvent Services, supra and Atlantic Industrial Constructors, Inc., supra. Although the Board 

requires specificity in challenges, it will accept as valid a challenge that is sufficient to raise the 

eligibility issue and deals with the duties that prompt the challenge. See Nichols House Nursing

Home, 332 NLRB 1428, 1429 fn. 6 (2000). 

The investigation is nonadversary, insofar as the Agency is concerned. The Regional Director 

has the authority to conduct a hearing or to have one conducted. Resolution of the challenges by

agreement is permitted. At the conclusion of the investigation, the Regional Director issues a 

report or decision, whichever is appropriate, setting forth fully the basis for the findings. A report 

is used where the election was held pursuant to a consent agreement or stipulation, and may be

used where the election has been directed. A supplemental decision may be used where the

election was directed by the Regional Director or by the Board. In a consent agreement, the report

contains a final determination. In a stipulation for certification, the Regional Director may either

issue a report containing a recommendation to the Board or issue a notice of hearing thereby 

transferring the case to the Board, or a combination of these. In directed elections, the Regional 

Director may either issue a supplemental decision containing a determination or a report 

containing recommendations and transferring the case to the Board. See Rules 102.69; CHM

section 11360 et seq. For a discussion of Agency guidelines for handling challenge ballots see 

Paprikas Fono, 273 NLRB 1326 (1984). 

Generally, a challenged ballot envelope cannot be opened until eligibility is determined. But 

there are very limited circumstances in which the Board may permit opening without such a
REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION 257

determination. Compare Ladies Garment Workers, 137 NLRB 1681 (1962); and Monarch 

Federal Savings & Loan, 236 NLRB 874 (1978). See also United Insurance Co. of America, 325 

NLRB 341 (1998). For further discussion of this procedure see section 24-426. 

Review of reports on challenged ballots is obtained by filing exceptions with the Board or by 

filing a request for review of the Regional Director has issued a supplemental decision within 14 

days of the issuance of the report. Rules 102.69 (c)(2); 102.69 (c)(4). The decision is final and

binding unless the Board grants a request for review. Provisions are made for decisions after

hearing on challenges (CHM sec. 11376), a count of overruled challenged ballots (CHM sec. 

11378), and for a revised tally of ballots (CHM sec. 11378.1). 

In Pine Shores, Inc., 321 NLRB 1437 (1996), third party misconduct was directed at those 

who opposed the Petitioner’s and the challenges were determinative. Consistent with its practice,

the Board resolved the challenges first, holding that it would only direct a new election if the 

Petitioner won the election. See also Skyline Builders, Inc., 340 NLRB No. 13 (2003). 

22-116 Objections to Election–Filing Requirements 

393-7011 

Generally, the validity of an election may be questioned by filing objections to the conduct of 

an election or to conduct affecting the results of an election. Both types are discussed seriatim at 

some length in the chapters which follow. Objections may have the effect of invalidating an 

election. If this occurs, the election may be “rerun” and the 1-year rule of Section 9(c)(3) will not 

run against the invalidated election. 

Objections must be filed within 7 days after the tally of ballots has been made available.

Service requirements are set out at section 102.114(a) of the Rules. See also Medtrans, 326 

NLRB 925 fn. 2 (1998). For other details, see CHM section 11392.1. Objections may be filed

only by the following: the employer involved, the petitioner, or any labor organization whose 

name appears on the ballot as a choice. They must contain a statement of the reasons therefor, 

couched in specific, as distinguished from conclusionary, terms. The party filing objections must 

furnish evidence sufficient to provide a prima facie case in support therefor before the Region is 

required to investigate the objections. Howard Johnson Co., 242 NLRB 1284 (1979. This 

includes a list of the witnesses and a brief description of the testimony of each. See CHM section 

11392, et seq. and Rules 102.69. See also Heartland of Martinsburg, 313 NLRB 655 (1994); and

Holladay Corp., 266 NLRB 621 (1983). This evidence must be filed within 7 days of filing

objections unless the Regional Director allows additional time. Craftmatic Comfort Mfg. Corp., 

299 NLRB 514 (1990); and Goody’s Family Clothing, 308 NLRB 181 (1992). 

In one unusual case, the Board accepted as objections, unfair labor practice charges that were

filed within 7 days of the election. The Board found that the employer acted consistent with an

intent to file objections. Avis Rent-A-Car, 324 NLRB 445 (1997). 

See section 24-100 et seq. for further discussion of objections procedures. 

22-117 Investigation of Objections 

393-7022 

As part of the investigation of a representation question, the investigation of objections is 

nonadversary, insofar as the Agency is concerned. Where the investigation reveals circumstances 

which were not alleged by the objecting party but which were or reasonably could have been

within its knowledge, the objections are overruled on procedural grounds. But if, in the Regional 

Director’s discretion, the additional circumstances reveal matters that are related to the alleged

objectionable conduct (Renco Electronics, 325 NLRB 1196 (1998)) or which raise substantial and 

material issues affecting the conduct of the election, this aspect is included in the report or 

decision. Rhone-Poulenc, Inc., 271 NLRB 1008 (1984); and Burns Security Services, 256 NLRB 

959 (1981). The Regional Director issues a report or supplemental decision, whichever is

appropriate, at the conclusion of the investigation. See CHM section 11394 et seq. 
258 REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION

22-118 Hearing on Objections 

393-7033 

Where an election was held either pursuant to an election agreement or direction of election, 

the Regional Director is authorized to conduct a hearing or to have one conducted if there are 

substantial and material factual issues. (Rules 102.6 9(d). See also Regal Dodge, 324 NLRB 665 

(1997). If a hearing is held pursuant to a stipulation for certification election, the Regional 

Director is permitted to direct a hearing subject to special permission to appeal. Rules 

102.69(i)(1); CHM section 11396.1. This preserves the right of any party to object. Special

permission to appeal should be requested promptly. Objections may be adjusted by voluntary 

agreement of the parties. 

Where, in the same case, there are dispositive challenges as well as objections, the hearing 

generally covers both aspects. If there are objections and unfair labor practice charges, both of 

which cover, in whole or in part, the same grounds, the practice, except in special circumstances,

generally is to consolidate both for hearing before an administrative law judge. Framed Picture 

Enterprise, 303 NLRB 722 (1991). Appropriate recommendations are then made in the decision 

and, except in the case of an election held pursuant to a consent-election agreement, the case is

transferred to the Board. Where a consent agreement is involved, the cases are severed and the 

representation case is transferred to the Regional Director for further processing. 

The objections/challenges hearing is conducted by a hearing officer or an administrative law 

judge. The Regional Director may assign an attorney as counsel for the Region at the hearing.

The functions and duties of the official conducting the hearing are spelled out in CHM section

11424.3, and that of counsel for the Region, if there is one, in CHM section 11424.4. Questions 

of postponements are handled in CHM section 11427, and hearing procedures are detailed in 

CHM section 11428 et seq. Where necessary the Board will provide interpreter services at 

Agency cost in representation hearings. George Joseph Orchard Siding, Inc., 325 NLRB 252

(1998). 

For a discussion of the authority of the hearing officer to consider unalleged conduct see,

Precision Products Group, 319 NLRB 640 (1995). Compare Pacific Beach Hotel, 342 NLRB No. 

30 (2004), distinquishing Precision Products Group.

The hearing procedure calls for a report on objections and/or challenges. The order directing

a hearing specifies, as a rule, that, within 14 days of the issuance of the report, any party may file

exceptions with the Board or with the Regional Director. See CHM section 11434. 

Occasionally, a refusal-to-bargain case based on a certification will be remanded to the Board 

by the court of appeals for the purpose of holding a hearing on a representation case issue. For a 

discussion of the approriate procedure in such a case, see Salem Village I, Inc., 263 NLRB 704 

(1982). 

a. Subpoenas 

Subpoenas are available to the parties subject to the standards set out in Rules 102.66(c). 

They are available from the Regional Director or the hearing officer. Upon proper motion they

may be revoked. In at least one case, the board approved the hearing officer’s refusal to supply a 

subpoena. Millsboro Nursing & Rehabilitation Center, 327 NLRB 879 fn. 2 (1999). See Best 

Western City View Motor Inn, 325 NLRB 1186 (1998), and 327 NLRB 468 (1999), for a 

discussion of service and enforcement of “R” case hearing subpoenas. In Associated Rubber Co.,

332 NLRB 1588 (2000), a divided panel affirmed the decision of the hearing officer not to 

require enforcement of the subpoena. 

In Marian Manor for the Aged, 333 NLRB 1084 (2001), the Board affirmed a hearing officer 

who refused to seek enforcement of a subpoena in a preelection hearing. In doing so the Board 

found the evidence sought was relevant and necessary but noted that there was no showing that 

the information could not be obtained from the employer’s own employees and that preelection 
REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION 259

hearings are investigatory, do not permit credibility resolutions, and require expeditious handling. 

Accord: Skyline Builders, Inc., 340 NLRB No. 13 (2003). 

b. Board agent testimony 

Parties seeking the testimony of a Board agent in a representation case hearing must request 

General Counsel approval for the testimony. See Rules 102.118. See Millsboro Nursing &

Rehabilitation Center, supra, fn. 2 and the cases cited there for discussion of the Board policies

with respect to requests for such testimony.

c. Witness statements 

Under the Board’s Rules (Sec. 102.118(b)(1)), parties to a postelection hearing may request 

copies of witness statements for purposes of cross-examinaiton. These statements must be 

returned by the end of the hearing. See Wal-Mart Stores, 339 NLRB 64 (2003), an unfair labor

practice case.

22-119 The Decision 

393-7077 

A decision is made by the Board, or the Regional Director, whichever is appropriate, after 

having considered the hearing officer’s or administrative law judge’s report on objections and/or 

challenges and the exceptions thereto. 

While the matter is pending, and after briefs are filed, a party may call the Board’s attention 

to cases that have come to the parties’ attention after filing a brief. Reliant Energy, 339 NLRB 66 

(2003). 

The Board’s decision may sustain or overrule the objections, in whole or in part. If the 

objections are sustained in any part, the original election is set aside, and the direction of a

“rerun” election provides for a new election to be held at such time as the Regional Director

deems appropriate. The “eligibility period” is customarily the latest completed payroll period 

preceding the issuance of the notice of rerun election. See CHM section 11436. 

22-120 Rerun Elections 

355-1133 

393-7077-6050 

A rerun election is conducted when the original election is a nullity by virtue of its results or

because it is set aside either by the Regional Director or by the Board. Neither the passage of time

nor employee turnover between the time of the first and a rerun election are sufficient basis to 

withhold direction of a rerun election. Sheraton Hotel Waterbury, 316 NLRB 238 (1995); and 

Vemco, Inc., 315 NLRB 200 (1994), or to require a new showing of interest. River City Elevator

Co., 339 NLRB 616 (2003). 

The timing and conditions for a rerun election are described in CHM section 11452. The 

standard notice of election, where modified to explain why the original election was set aside, is

found in CHM section 11452.3. The voting procedures are the same, as are the count, tally, and 

other details, except that the tally indicates that the election was a rerun. There can be no “runoff” 

(see sec. 22-114 above) of a runoff or severance election, although otherwise the results of a rerun 

may call for a runoff (see CHM sec. 11456). The usual objections procedures apply. 

Ordinarily, information not provided prior to the decision is not considered. See Gannett 

Satellite Information Network, 330 NLRB 315 (1999). 

The Board will not permit a new party to intervene and appear on the ballot in a rerun or 

runoff election. Waste Management of New York, 326 NLRB 1126 (1998). 

See also section 23-230. 
260 REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION

22-121 The Certification 

393-7077-2060 

393-7077-6067 

393-7077-6083 

If a union receives a majority of the valid votes cast, a certification of representative is issued.

If not, a certification of results is issued. A certification issued by the Regional Director has the 

same force and effect as one issued by the Board. In all cases of elections conducted pursuant to a 

consent agreement, the certification is issued by the Regional Director. CHM section 11470. 

Where an election is conducted pursuant to a stipulation for certification of election, the 

Regional Director issues the certification where no objections are filed and challenges are not

determinative of the results; the Board issues the certification where objections are filed or 

challenges are determinative. For an exception to the latter, see CHM section 11472.2(b). 

Where an election is directed by the Regional Director or Board, the certification is issued by 

the Regional Director where no objections are filed and challenges are not determinative. Where 

objections are filed or the challenges are determinative, a certification may be issued by the

Regional Director based on the administrative investigation or hearing, or by the Board after

consideration of the Regional Director’s report or the report of a hearing officer or administrative

law judge. See CHM section 11470, et seq. 

22-122 Expedited Elections Under Section 8(b)(7)(C) 

355-5500 

578-8050-6000 

578-8075-6000 

Under Section 8(b)(7)(C) the Board is required to conduct expedited elections when a petition 

is on file and the union is engaging in 8(b)(7)(C) picketing for less than 30 days. The rationale, as 

well as the basic ground rules and conditions necessary to trigger the 8(b)(7)(C) expedited

election machinery, are spelled out in C. A. Blinne Construction Co., 135 NLRB 1153 (1963).

Thus, as indicated by the Board, Section (8)(b)(7)(C) represents a compromise between a union’s

picketing rights and an employer’s right not to be subject to blackmail picketing. Unless 

shortened by a union’s resort to violence, see Eastern Camera Corp., 141 NLRB 991 (1963), 30 

days was defined as a reasonable period, absent a petition being filed, for the union to exercise its 

rights. Picketing beyond 30 days is an unfair labor practice. the filing of a petition stays a 30-day 

limitation and picketing may continue during processing of the petition. 

As the Board made clear in Blinne, however, a union cannot file a petition, engage in

recognitional picketing, and obtain an expedited election unless a 8(b)(7)(C) charge is filed. A

union cannot, of course, file an 8(b)(7)(C) charge against itself. Blinne, supra at 1157 fn. 10. 

In short, the expedited election procedure represents a compromise which seeks to balance 

competing rights. This compromise extends an option to an employer faced with recognition or

organizational picketing. Thus, on the commencement of such picketing, an employer may file an 

8(b)(7)(C) charge and an RM petition, thereby setting in motion the proviso’s expedited election 

machinery. Or, an employer may, if it prefers, endure 30 days of picketing and then seek 

injunctive relief by filing an 8(b)(7)(C) charge. 

By the plain language of the first proviso to Section 8(b)(7)(C), the expedited election 

procedure is available only where a timely petition is filed, i.e., no more than 30 days after the 

start of picketing for an 8(b)(7)(C) object. Neither a showing of interest nor an Excelsior list is 

required for an expedited election. Excelsior Underwear, 156 NLRB 1236, 1242 fn. 14 (1966). 

Petitions filed after 30 days are processed under normal “R” case procedures and do not serve 

as a defense to 8(b)(7)(C) picketing which has exceeded 30 days. See Crown Cafeteria, 135 

NLRB 1153, 1185 fn. 4 (1962); and Moore Laminating, 137 NLRB 729, 732 fn. 6 (1962). 
REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION 261