31

3. INITIAL REPRESENTATION CASE PROCEDURES

Having considered the general authority of the Regional Directors of the Board under Section

3(b), pursuant to the 1959 amendments to the Act, we follow with a capsule summary of

representation case procedures as distinguished from substantive law, beginning with the filing of

the petition through the decision by the Regional Director or the Board. Sections 102.60 through 102.82 of the Boardís Rules and Regulations, and Sections 101.17

through 101.21 of the Statements of Procedure describe these procedural steps. They may also be

found, in greater detail, in the NLRB Casehandling Manual (CHM) (Part 2), Representation, secs. 11000 through 11284. 3-100 Filing of Petition and Notification

316-6700 et seq. 393-1000 et seq. 393-6007-1700 to 8700

When a petition is filed with the Regional Office, the petitioner receives a written

acknowledgement of the filing, and the employer and all other interested parties are given written

notification, including a description of the bargaining unit alleged to be appropriate and the name

of the Board agent to whom the case has been assigned. The types of petitions are discussed, infra, at chapter 4. The following are regarded as interested parties:

a. The petitioner;

b. The employer;

c. The owner of a leased department in a store;

d. Any individual or labor organization named in the petition as having an interest or as

being a party to a collective-bargaining contract, current or recently expired, covering any

of the employees involved;

e. Any labor organization which has notified the Regional Office by letter within the

prior 6 months that it represents the employees involved or is actively campaigning among

them; and

f. Any labor organization whose name appears as an interested party in any prior case

involving the same employees which was closed within recent years. An intervenor was held to have had notice of the petition prior to the date it executed a

Stipulated Election Agreement. Seven-Up/Royal Crown Bottling Cos., 323 NLRB 579 (1997). See section 9-550 for discussion of the period for filing a petition. 3-200 Submission of Showing of Interest

324-0100 et seq. 578-8075-6056

If the petitioner has not already done so, proof of interest should be submitted within 48 hours

after filing, but in no event later than the last day on which the petition may be timely filed. Note

that when a petition is filed involving the same employer who is a party in a pending 8(b)(7)

unfair labor practice charge, the petitioner is not required to allege that a claim has been made on

the employer or that the union represents a substantial number of employees. See CHM sections

11020ñ11035 and chapter 5, infra, for more complete information.
INITIAL REPRESENTATION CASE PROCEDURES

32

3-300 Information Requested of Parties

R/R 102.61(a) and (b)

378-2878

Employers are requested to submit commerce data, a list of employees in the proposed unit, and, when appropriate, information concerning striking employees eligible to vote under Section

9(c)(3). Employers are also advised that, should an election be agreed to or directed, a list of

names and addresses of the eligible voters must be filed with the Regional Director by the

employer within 7 days after the agreement or direction. This list (Excelsior list) is in addition to

the proposed unit list (see specific discussion at secs. 23-510 and 24-324, infra). All parties are requested to submit copies of any presently existing or recently expired

contracts covering any of the employees as well as pertinent correspondence, and to notify the

Board agent of any other interested parties entitled to be advised of the proceeding. (See CHM

sec.11009, for the contents of the initial letter to the employer in an RC case.)

3-400 Preliminary Investigation

393-6014

The Board agent assigned to the case examines the petition for sufficiency, determines the

adequacy of the showing of interest, and then contacts the parties and requests the submission of

all other pertinent data. (See CHM secs. 11010.1 and 11010.2, for the steps taken by the Board

agent in RC, RD, and RM cases, respectively.)

3-500 Dismissal or Withdrawal of Petition

393-6027 et seq. 393-6034 et seq. 393-6081

When it is readily apparent that no question concerning representation exists, the showing of

interest is inadequate, the unit sought is inappropriate, the petition is not timely filed, or the

petition does not meet the test of sufficiency for any other reason, the petitioner is requested to

withdraw the petition. If this is not done within a reasonable time, the petition is dismissed. (For

appeals from such dismissals, see CHM secs. 11100ñ11104.) See also section 8ñ200, supra. 3-600 Amendments to Petition

393-6021 et seq. The petitioner may add to or delete from the original or amended petition and, when this

occurs, all interested parties are notified of the changes. See section 9-520, infra, for additional

discussion of amending the petition. 3-700 Consent-Election Agreements

393-6054 et seq. Consent-election agreements obviate the necessity for a hearing. There are two types of

consent-election agreements: (1) Agreement for Consent Election (Form NLRB-651), (2)

Stipulated-Election Agreement and (3) Full Consent Agreement (Form NLRB-652). Under either, the parties agree that an election be conducted by the Regional Director. The basic difference

between the two is that under a consent agreement, questions which arise in connection with the

election at the postelection stage are determined by the Regional Director, but under a stipulated

agreement these questions are determined by the Board.
INITIAL REPRESENTATION CASE PROCEDURES

33

3-800 Notice of Hearing and Hearings

393-6068-2000

If the Regional Director has reason to believe that a question concerning representation

exists, and if an election agreement is not obtained, a notice of hearing is issued (Form NLRB- 852). In such circumstances a hearing is mandatory. Angelica Healthcare Services, 315 NLRB

1320 (1995). Compare, Mueller Energy Services, 323 NLRB 785 (1997), where the Regional

Director did not have reasonable cause and Premier Living Center, 331 NLRB 123 fn. 9 (2000)

(no hearing required in a UC case). All parties must receive at least 5 daysí notice of hearing. Croft Metals, Inc., 337 NLRB 688

(2002). A Regional Director may use a Notice to Show Cause procedure to assist in expediting a

representation case but that procedure cannot be a substitute for a hearing. Amerihealth

Inc./Amerihealth HMO, 326 NLRB 509 (1998). Ordinarily a hearing will be conducted even if the issue is one that the Board is reconsidering. But see Pratt Institute, 339 NLRB 971 (2003). 3-810 Nature and Objective

393-6068-0100

The hearing in a representation proceeding is a formal proceeding designed to elicit

information on the basis of which the Board or its agents can make a determination under Section

9 of the Act. The hearing is investigatory, not adversary. Parties have a right to present relevant

evidence on the issues presented by the petition and the Board has ruled that it was an error to

refuse the introduction of evidence in those circumstances. Barre National, Inc., 316 NLRB 877

(1995). In North Manchester Foundry, Inc., 328 NLRB 372 (1999), the Board held that it was

improper for a hearing officer to exclude testimony about a group of contested employees

because of the small size of the group. See section 3-840 on the obligation of parties to take

positions on issues. See section 22ñ118 (a) for a discussion of subpoenas in representation cases. 3-820 Hearing Officerís Responsibilities

393-6068 et seq. The hearing officer is an agent of the Board who has an affirmative obligation to develop a

full and complete record and may, if necessary to achieve this purpose, call and question

witnesses, cross-examine, and require the introduction of all relevant documents. See Mariah, Inc., 322 NLRB 586 fn. 1 (1996). Once on notice of a substantial issue, the Hearing Officer is

obliged to conduct inquiry. Pontiac Osteopathic Hospital, 327 NLRB 1172 (1999). The hearing

officer is, of course, required to be impartial in rulings and in conduct. For a discussion of

hearing officer discretion to seek enforcement of subpoenas see section 3ñ840. For discussion of

burdens of proof in representation cases see NLRB Hearing Officers Guide. 3-830 Intervention

393-2001-2083

The hearing officer considers all motions to intervene. Motions for intervention are denied if

filed by ìemployeesíí or ìemployeesí committeesíí not purporting to be labor organizations, or

by an organization which had been directed to be disestablished by a final Board order. Those

filed by labor organizations within the meaning of the Act, which show an interest in the

employees concerned, are granted. A party permitted intervention may thereafter participate fully

in the hearing, although the extent to which an intervenor may block stipulations depends on its

showing of interest. See also Peco, Inc., 204 NLRB 1036 (1973), in which employees opposed to

amendment were permitted to intervene in AC hearing. (For additional discussion on

intervention, see sec. 5ñ640, infra.)
INITIAL REPRESENTATION CASE PROCEDURES

34

3-840 Conduct of Hearing

393-6068-6067-1700 through 8300

393-6075

Evidence is received either in the form of sworn oral testimony or stipulations. Examination

and cross-examination of witnesses are permitted and parties are expected to take positions on the

matters raised at the hearing. See Seattle Opera Assn., 323 NLRB 641 (1997); and Mariah, Inc., 322 NLRB 586 fn. 1 (1996). Failure to do so may limit the partyís right to present evidence or to

utilize the challenge procedure on the disputed classification if there is a presumption in the law

with respect to that classification. Bennett Industries, 313 NLRB 1363 (1994). But in Allen

Health Care Services, 332 NLRB 1308 (2000), the Board distinguished Bennett Industries on a

unit issue where there was no presumption with respect to that unit. In those circumstances, the

Board directed that the hearing officer take testimony necessary for the Board to make a unit

determination. In doing so, the Board noted its obligation under Section 9(b) to ìdecide in each

case. . . the unit appropriate.î

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 employerís own employees and that preelection

hearings are investigatory, do not permit credibility resolutions and require expeditious handling. Where foreign language witnesses are required for the hearing, the Board secures the

interpreter and pays the costs. Solar International Shipping Agency, 327 NLRB 369 (1998). Compare George Joseph Orchard Siding, 325 NLRB 252 (1998), for unfair labor practice

hearing policy. Sequestration does not apply in pre-election representation cases. Fall River Savings Bank, 246 NLRB 831 fn. 4 (1979). A petitioner is permitted to amend the petition during the hearing to reflect any changes in

position after hearing the testimony. The other parties are likewise permitted to reflect changes in

position. Withdrawal requests are also considered. Opportunity for oral argument is given to any

party requesting it. The hearing officer refers to the Regional Director or to the Board for ruling

all motions to dismiss, to transfer the case to the Board, or for oral argument before the Regional

Director or the Board. 3-850 Hearing Officerís Report

393-7055

The hearing officer, after the close of the hearing, submits a brief report to the Regional

Director, or to the Board in cases in which an order transferring the case to the Board has been

issued prior to the preparation of the report. 3-860 Briefs

393-7066-2000 through 9000

Section 102.67(a) of the Boardís Rules and Regulations provides that any party desiring to

submit a brief to the Regional Director shall file an original and one copy thereof within 7 days

after the close of the hearing, with the proviso that, before the close of the hearing and for good

cause, the hearing officer may grant an extension of time not to exceed an additional 14 days. Requests for additional time, not made to the hearing officer, must be made to the Regional

Director in writing. CHM section 11244.2, notes that ìAuthority to grant extensions of time to

file briefs is discretionary with the hearing officer,íí and not automatic.
INITIAL REPRESENTATION CASE PROCEDURES

35

3-870 Posthearing Matters Prior to Decision

393-6068-7000

393-6068-6067-(3300)

393-6054-0100 through 8200

The transcript of the hearing may be corrected, if necessary. If the matter is pending before

the Board and an unfair labor practice charge is filed, the Board is notified of the filing. All

motions, or answers to motions, filed after the close of the hearing are filed directly with the

Regional Director, or if before the Board with the latter. A consent-election agreement may be

entered even after hearing. (For withdrawal of petitions or disclaimer of interest, see chapter 8, infra.)

3-880 Regional Directorís or Board Decision and Request for Review

393-6081-2000 et seq. 393-6081-6000 et seq. The Regional Director or, if the case is transferred to the Board in Washington, the Board

may dismiss a petition, remand it for further hearing, or direct an election. 393-7077-4000 et seq. Sections 102.67(b) and (c) provides for requests for review of Regional Directorís decisions. Where a party is challenging a Regional Director's factual findings, its request for review should

be accompanied by documentary evidence. Aramark Sports & Entertainment Services, 327

NLRB 47 (1998). The filing of such a request or the grant of review does not, ìunless otherwise

ordered by the Board,íí operate as a stay of any action taken or directed by the Regional Director

and the Regional Director may schedule and conduct the election. In that event, the voters whose

eligibility is being questioned in the request for review will be challenged and their ballots

impounded. The Second Circuit has held that in some circumstances a substantial change in the

bargaining unit by the Board on review may affect the validity of the election. See Hamilton Test

Systems v. NLRB, 743 F.2d 136 (2d Cir. 1984); NLRB v. Lorimar Productions, 771 F.2d 1294

(9th Cir. 1985); and NLRB v. Parson School of Design, 793 F.2d 503 (2d Cir. 1986). All three

cases are discussed by the Board in Toledo Hospital, 315 NLRB 594 (1994); and Morgan Manor

Nursing & Rehabilitation Center, 319 NLRB 552 (1995). The Board has held that its Sonotone

procedures (infra at sec. 21-400) for professional and nonprofessional elections are not implicated

by these court rulings. Pratt & Whitney, 327 NLRB 1213 (1999). See also Northeast Iowa

Telephone Co., 341 NLRB No. 97 (2004), in which a divided Board distinguished these cases

from the ìvote and impound procedures of the Board.î

In those situations in which the Board, on review, decides to vote the contested classification

or person under challenge, any ensuing certification will note that the position is neither included

nor excluded. Orson E. Pontiac-GMC Trucks, Inc., 328 NLRB 688 (1999). In a variation of this issue, the Board ordered a new election when it determined on review of

the Regional Directorís decision that the Director had incorrectly found that two healthcare

institutions were a single employer. Because an election had already been held on the premise

that the companies were a single employer, the Board found that the ballot misidentified the

employer and the unit and therefore a second election was warranted. Mercy General Partners, 331 NLRB 783 (2000). A Board decision will ordinarily apply ìto all pending cases in whatever stage.î Aramark

School Services, 337 NLRB 1063 (2002). For discussion of the finality of Regional Directors decisions and the effect of the absence of

a Board majority to reverse a Regional Directorís decision see section 2ñ400.
INITIAL REPRESENTATION CASE PROCEDURES

36

* * * *

This section of the procedures summarizes the initial stages of a representation proceeding. The precise language of the Boardís Rules and Regulations and Statements of Procedure should

be consulted at all times in relation to specific procedural provisions and, for greater detail, it is

important to follow the steps described in the CHM. 3-900 Review of Representation Decisions

3-910 Judicial ReviewóGenerally

A Board order in a representation case is not a final order and is therefore, not subject to

judicial review directly. AF of L v. NLRB, 308 U.S. 401 (1940). Indeed, the Board retains

jurisdiction over the representation case even where a related unfair labor practice case is pending

in the Court. Freund Baking Co., 330 NLRB 17 fn. 3 (1999). Where, however, the contention is that the Boardís decision in the representation case is in

excess of its delegated power and is contrary to a specific prohibition of the Act, a party can

obtain district court review of the Boardís decision. Leedom v. Kyne, 358 U.S. 184 (1958). The

Court has held that this exception to the general rule of nonreviewability is a ìnarrow one,íí Boire

v. Greyhound Corp., 376 U.S. 473 (1964). In test of certification proceedings, the Board

generally rejects ancillary defenses where it is clear that the employer would not honor the

certification in any event. See, e.g., People Care, Inc., 314 NLRB 1188 fn. 2 (1994), rejecting an

employer defense that the union was dilatory in seeking bargaining. For a discussion of Court jurisdiction over the representation case see Freund Baking Co., 330 NLRB 17 fn. 3 (1999). 3-911 Review by Employers

An employer who is dissatisfied with an adverse representation decision by the Board can

obtain review of the decision only by refusing to bargain if and when the union is certified. The

defense to that refusal to bargain would then be that the certification was improperly issued. The

Board does not permit relitigation of the representation issue in the refusal to bargain case. Sec. 102.67(f) of the Board Rules, Shadow Broadcast Service, 323 NLRB 1002 (1997); and FPA

Medical Management, 331 NLRB 936 (2000). In those circumstances, the court will review the

representation issue in the court of appeals proceeding to enforce the Board order. Failure to

request review will bar a party from raising the issue in a subsequent challenge to the

certification. Nursing Center at Vineland Concrete, 318 NLRB 337 (1995). Similarily, in the

absence of newly discovered evidence, an employer may not challenge a certification on the

ground of supervisory status of unit members if it failed to raise the issue in the representation

case. See Premier Living Center, 331 NLRB 123 (2000), where the Board likened that effort to a

post election challenge. See also International Maintenance Corp., 337 NLRB 705 (2002), where the Board did not address a contention that the unit had increased by a factor of 10 because

it was not raised as an exception. In an unfair labor practice case, the Respondent is required to notify the Board of its intention

to preserve the issues that it raised in the underlying unfair labor practice case. Some courts have

disagreed with the Board as to how much notification is required. See Nathan Katz Realty v. NLRB 251 F.3d 981 (D.C. Cir. 2001). In Food & Commercial Workers Local 1996 (Visiting Nurse Health System), 336 NLRB 421

(2001), a divided Board found that a certified union could engage in secondary activity against a

neutral that was doing business with the employer who was refusing to honor the certification. See also section 7ñ120. 3-912 Review by Unions

A union, on the other hand, has to utilize an even more indirect method of obtaining review if

it is dissatisfied with an adverse decision of the Board in a representation case. Thus, a union
INITIAL REPRESENTATION CASE PROCEDURES

37

would have to engage in allegedly unlawful 8(b)(7)(B) picketing where it believes the Board has

incorrectly certified the results of an election (a union loss) because of the erroneous

representation case decision. Oakland G. R. Kinney Co., 136 NLRB 335 (1962); Kansas Color

Press, 158 NLRB 1332 (1966); and American Bread Co., 170 NLRB 91 (1968). 3-920 Litigation of Unfair Labor Practice Issues in Representation Cases

The Board is occasionally confronted with a contention that it should review an unfair labor

practice decision of the General Counsel in a representation case. Stated simply, the general rule

has since the earliest days of Section 3(d) of the Act been that the Board will not permit the

litigation of unfair labor practices in representation proceedings. Times Square Stores Corp., 79

NLRB 361 (1948). See also Texas Meat Packers, 130 NLRB 279 (1961); Cooper Supply Co., 120 NLRB 1023 (1958); and Capitol Records, 118 NLRB 598 (1957); and Virginia Concrete

Corp., 338 NLRB 1182 (2003). But in All County Electric Co., 332 NLRB 863 (2000), a divided

Board permitted the litigation of alter ego status in a representation case. In doing so the Board

majority distinguished Texas Meat Packers, which held that issues of motivation for a layoff

should not be litigated in representation cases. In Cooper Supply, the issue was one of striker eligibility to vote in an election. The General

Counsel had refused to find bad-faith bargaining charge which the union contended resulted in an

unfair labor practice strike which in turn, it was argued, made the strikers eligible to vote. The

Board refused to consider the unionís contention solely because the General Counsel had refused

to issue an 8(a)(5) complaint as to the bargaining. However, the fact that an unfair labor practice

charge concerning the same conduct has been dismissed does not require pro forma overruling of

the objection because they are not tested by the same criteria. ADIA Personnel Services, 322

NLRB 994 (1997). Where, however, a party is charged with an unfair labor practice, the Board will consider that

partyís contention that the General Counsel incorrectly dismissed an unfair labor practice charge

which the party relies on as its defense to the General Counselís prosecution. See Warwick

Caterers, 269 NLRB 482 (1984). For a related discussion of the relationship between unfair labor practice decisions of the General

Counsel and objections to an election see discussion at section 24-312. 3ñ930 Effect of Violence on a Board Certification

In ìextraordinaryî circumstances of union violence, the Board may decline to enforce a

certification or to give a normal bargaining order remedy. See Overnite Transportation Co., 333

NLRB 472 (2001). See also Laura Modes Co., 144 NLRB 1592 (1963), and section 6ñ380, infra.