NLRA Representation Case Checklist

Pre-Petition Checklist

• Handbook/policy NLRA compliance reviews
• Develop labor contingency plan
  • Third-party actions
  • Employee concerted activities
• Train management
• Establish legal response team
• Identify 2(11) supervisors*
• Assess unit issues and create helpful evidence to support optimal unit
• Prepare template request for extension for hearing and filing statement of position
• Prepare template statements of position
• List of exhibits
• Offers of proof
• Possible witnesses

* From the NLRA or the Act; 29 U.S.C. Definitions Section 2 (11) The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Post-Petition Checklist

• Send letter requesting extension of time for hearing and for filing statement of position
  • May postpone “up to 2 business days” for party showing “special circumstances”
  • May postpone for “more than 2 business days” for party showing “extraordinary circumstances”
• Consider checking showing of interest
• Post and distribute Notice of Petition for Election (must be posted within 2 business days after service of Notice of Hearing. Failure to post and distribute is basis for objections)
  • Post at conspicuous places
  • Distribute electronically to employees if you customarily communicate with employees electronically
• Evaluate possibility of favorable stipulated election agreement (not consent election agreements)
• Identify, subpoena and prepare witnesses for hearing
• File petitions to revoke union’s subpoenas (within 5 days of service)
• Prepare proffers of evidence
• File Statement of Position (typically must be filed and served by noon on the day before the hearing - i.e.7th day following service of Notice of Hearing.)
  • State whether you agree that Board has jurisdiction
  • Provide commerce information
  • State if petitioned unit is appropriate and, if not, why?
  • State the employee classifications, locations and other employee groupings that must be added or excluded from the proposed unit
  • Identify any individuals whose eligibility to vote you intend to contest, and reason for each
  • Raise any election bar
  • State the length of the payroll period for employees in the proposed unit and most recent payroll ending date
  • State your position on the type, dates, times and locations for the election and the eligibility period
  • Describe any other issues you intend to raise at hearing
  • Provide alphabetized list of the full names, work locations, shifts and job classifications of all employees in the petitioned unit
  • Provide a separate list of the full names, work locations, shifts and job classifications of all employees you contend must be added to make it an appropriate unit
  • Indicate the employees you contend must be excluded from the petitioned unit to make it an appropriate unit
  • File Certificate of Service

Note: Employee lists must be in an electronic format, approved by the General Counsel unless you certify that you do not possess the capacity to produce the list in electronic form.

The Pre-Election Hearing

Expect hearing to be set 8 days from date of service of notice ( excluding intervening Federal holidays, but if the 8th day is a weekend or holiday, hearing will be set for next business day)

• Hearing will continue day to day, absent NLRB Regional Director concluding “extraordinary circumstances” warrant otherwise
• Statement of Position is entered in record
• Union must respond on record to each issue raised in the statement prior to introduction of further evidence
• Anticipate amendments to the petition and responses (only Regional Director has authority to permit amendment - not the Hearing Officer)
• Present proffers on record
• Preserve subpoena rulings on record (party aggrieved must request that rulings on motions to revoke subpoenas become part of record)
• Preserve all issues for appeal (must be contained in statement of position and all required lists)
• Consider taking special appeal of hearing officer’s rulings (no waiver by failure to raise)
  • Request to Regional Director for special permission to appeal from a ruling of the hearing officer, together with the appeal from the ruling, shall be filed promptly, in writing, and state the reasons 6special permission should be granted and the grounds relied upon for appeal, and movant must serve other parties
• Oral closing
• Request special permission from Regional Director to file written brief
• Provide name, address, email address, fax number and phone number of your on-site representative, to whom the Regional Director can send the Notice of Election

Decision Directing Election

• Evaluate motion for reconsideration or rehearing within 14 days after service of decision (not required top reserve appeal)
• File request for review within 14 days of final disposition of proceeding by Regional Director; move for extraordinary relief

Voter Eligibility List

• Must be filed and served (i.e. received) within 2 business days of issuance of direction of election or approval of election agreement. Failure to timely file is basis for objections.
• Must contain full names, work locations, shifts, job classifications and contact information, including home addresses, available personal email addresses, and available home and personal cellular numbers of all eligible voters
• Must include, in a separate section of that list, the same information for those who will be permitted to vote subject to challenge
• The list of names must be alphabetized (overall or by department) and be in an electronic format approved by the General Counsel (unless employer certifies that it does not possess capability)
• Certificate of service must be filed with Region
• Notice of Election any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with 7the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Notice Of Election

• Region will send by email, facsimile or overnight mail
• You must post in conspicuous places and distribute to employees electronically (if you customarily communicate with employees electronically). Failure to post or distribute is basis for objections.
• Notice must be posted and distributed at least three full working days prior to 12.01 a.m. on the date the election begins. Working day means an entire 24 hour period, excluding Saturdays, Sundays and holidays.

Post-Election

• Objections must be filed within 7 days of tally of ballots
• Objections should contain short statement of reasons for each and written offer of proof
• Objections - but not offer of proof - must be served on parties