Checklist: Preparing for a National Labor Relations Board representation hearing (USA)

Introduction

This checklist will assist in-house counsel and private practice lawyers with preparing an employer’s response to a National Labor Relations Board (NLRB) union representation hearing. This checklist is focused on union-initiated representation hearings.

This checklist covers:

1. Carrying out a preliminary review of the petition
2. Preparing for the representation hearing

The checklist is presented as a list of requirements that employers can check off as they are addressed. At the end of the document, there are explanatory notes corresponding to each requirement in the checklist.

This checklist can be used in conjunction with How-to guide: Overview of US employment law.

Step 1 – Carry out a preliminary review of the petition

Step 2 – Prepare for the representation hearing

Explanatory notes

Legal framework

The National Labor Relations Act (NLRA) (29 USC section 151, et seq) provides private sector employees with the right to engage in collective bargaining through representatives of their choosing. Employees, or a union or employee organization, can file a petition with the NLRB to have the NLRB conduct an election for appointment of a representative or change of a representative, thereby beginning representation proceedings. At least 30% of workers in the potential bargaining unit must sign the petition before an election will be ordered.

There are different types of petitions for the different types of situations listed below.

• RC petitions are filed by unions seeking to be appointed as the bargaining representative for a bargaining unit, or to challenge another union’s continued representation of a unit.
• RM petitions are most commonly filed by an employer who requests that a union be decertified because it has lost the requisite support.
• RD cases are filed by groups of employees seeking to decertify their union.

See, NLRB, Representation Cases.

The NLRB will seek an election agreement between the employer and the employee organization setting the date, time, and place for balloting, the ballot languages, the appropriate bargaining unit, and a method to determine who is eligible to vote. Once an agreement is reached, the parties authorize the NLRB regional director to conduct the election. If the employer and the employees’ representatives cannot reach an agreement regarding the key terms of election proceedings, the NLRB regional office will hold a representation hearing. This pre-election hearing decides any contested issues such as the date, time, and location of the election and the scope of the bargaining unit.

Union-initiated representation proceedings for certification as the bargaining representative for a unit, or for a change of representative, are the most common proceedings and the focus of this guide.

Key considerations

When preparing for an NLRB representation hearing employers should carefully review all documents received from the union as well as from the NLRB. Employers should consider potential challenges to the petition such as jurisdiction, time bars, the make-up of the proposed bargaining unit, voter eligibility, and the proposed date, time, and location of the election.

Employers should strike a balance between advocating for their preferred position and reaching a compromise, as reaching an agreement with the union carries less risk than continuing to a contested representation hearing.

Moving quickly is essential as a Final Rule that went into effect in 2023 requires pre-election hearings to open within 8 calendar days of the filing of a petition, as opposed to the previous rule allowing hearings to open within 14 business days.

Step 1 – Carry out a preliminary review of the petition

As this checklist is focused on RC petitions by unions seeking certification, the petitioner in this scenario will be the union.

1.1 Review petition and initial documents

Petitioners must provide all interested parties, which includes the employer, with:

• a copy of the petition;
• a blank statement of position form; and
• a description of procedures in certification and decertification cases.

These forms can be viewed on the NLRB website. Upon receipt of any petition, employers should review the petition and enclosures to ensure all required documents are included and familiarize themselves with the description of procedures.

1.2 Review the showing of interest information

In order to file a petition, a petitioner must provide to the NLRB a ‘showing of interest’ of 30% or more of the employees in the bargaining unit. The petitioner establishes the showing of interest through signed authorization cards or electronic signatures. The NLRB investigator will consider the sufficiency of the showing of interest. The validity of the showing may be challenged by the NLRB regional director or any party (5 CFR section 2422.10). Employers should note that the showing of interest itself filed by the employee organization may not be released to the employer; however, a statistical compilation that discloses the number of employees in the prospective unit, the number of signed authorization cards, and the percentage of employees in the unit who support the union may be released to the employer. See, Pac Molasses Co v NLRB Reg’l Office #15, 577 F2d 1172, 1176 (5th Cir 1978).

1.3 Evaluate whether the NLRB has jurisdiction

The NLRB has broad statutory jurisdiction under the NLRA. Its statutory power has been deemed to extend to all conduct that could be regulated under the Interstate Commerce Clause of the US Constitution, article I, section 8, clause 3 (NLRB v Fainblatt, 306 US 601–607 (1939)). The NLRB has limited the application of its jurisdiction to cases with a ‘substantial effect’ on commerce, which is determined by evaluating the volume and nature of an employer’s business.

The statutory jurisdiction of the NLRB (ie, the jurisdiction that is set out by the NLRA) can be challenged at any stage; however, discretionary jurisdiction (when the NLRB declines to exercise its jurisdiction because the effect of the dispute on commerce is not substantial) must be timely raised. See, Anchortank, Inc, 233 NLRB 295 fn 1 (1977).

1.4 Evaluate whether the petition is time-barred

A petition may be time-barred due to either a statutory time bar or a contract bar.

1.4.1 Statutory time bar

By statute, an election cannot be held if a valid election has been held in the preceding 12-month period for the same bargaining unit (29 USC section 159(c)(3)). A petition may be filed 60 days or fewer before the end of the 12-month period for an election to be held after the end of the 12-month period.

The time restriction does not apply to elections for a different, or larger bargaining unit. NLRB guidance provides the following example:

[I]f all the production and maintenance employees in Company A, including draftsmen in the company’s engineering office, are included in a collective-bargaining unit, an election among all the employees in the unit would bar another election among all the employees in the unit for 12 months. Similarly, an election among the draftsmen only would bar another election among the draftsmen for 12 months. However, an election among the draftsmen would not bar a later election during the 12-month period among all the production and maintenance employees including the draftsmen.

For more information see, Basic Guide to the National Labor Relations Act.

1.4.2 Contract-bar doctrine

Under NLRB rules, the existence of a valid contract between an employer and the employees’ bargaining agent for a period of three years or fewer bars an election for the contract’s term. Contracts for more than three years bar an election during the first three years the contract is in effect. In 2021, the NLRB considered changes but ultimately, reaffirmed the contract bar, (Mountaire Farms, Inc, 370 NLRB No 110 (2021)).

Example: 
Training Rehabilitation & Development Institute (TRDI), 28-UC-311104 (Regional Election Decision) provides an example of the contract-bar doctrione. The case involved Training Rehabilitation & Development Institute, Inc. (Employer), an El Paso contractor, and the International Union of Operating Engineers, Local 351 (Union), after the Union filed a Unit Clarification Petition seeking to include Lead Custodians/Janitor Supervisors in the existing bargaining unit. The Employer opposed the petition, arguing the positions were excluded supervisory roles. The Regional Director dismissed the petition on two grounds: first, it was untimely due to the contract bar doctrine, as the petition was filed midterm of a collective bargaining agreement (CBA) that historically excluded these roles, and the Union failed to show any substantial change in the employees' duties since their 2020 reclassification, consistent with precedent like Union Electric Co. and Kaiser Foundation Hospitals; second, the Janitor Supervisors were found to be statutory supervisors under Section 2(11) of the NLRA because they exercised independent judgment when directing, assigning, transferring, and disciplining employees, aligning with standards set in cases such as Oakwood Healthcare, Inc. and DirecTV, confirming their proper exclusion from the unit. The Regional Director dismissed the Union's Petition because it was untimely due to the contract bar and because the Janitor Supervisors were found to be statutory supervisors under NLRA Section 2(11), making them properly excluded from the bargaining unit.

1.5 Establish whether the bargaining unit is the appropriate unit

The scope and composition of a bargaining unit is a key issue for employers and unions as it impacts the parties’ bargaining power. As such the bargaining unit is often contested.

An appropriate bargaining unit is a group of employees that share a community of interest and can reasonably be grouped together for collective bargaining purposes. An appropriate unit groups together employees with ‘a substantial mutual interest in wages, hours, and other conditions of employment,’ (The Boeing Company, 368 NLRB No 67 (2019)).

In evaluating the propriety of a challenged bargaining unit, the NLRB applies a three-part test under which it considers whether the petitioned-for unit: 

• shares an internal community of interest; 

• is readily identifiable as a group based on job classifications, departments, functions, work locations, skills, or similar factors; and 

• is sufficiently distinct. If a party contends that the petitioned-for unit is not sufficiently distinct - ie, that the smallest appropriate unit contains additional employees - then the Board will apply its community-of-interest factors to determine whether there is an ‘overwhelming community of interest’ between the petitioned-for and excluded employees, such that there is no rational basis for the exclusion.

See, American Steel Constuction,372 NLRB No. 23 (2022). 

In evaluating whether community of interests exists, the NLRB considers:

[W]hether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the Employer’s other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised.

(The Boeing Company, 368 NLRB No 67 (2019) and PCC Structurals, Inc, 365 NLRB No 160 (2017)).

1.6 Consider potential voter eligibility issues

Only employees in the bargaining unit are eligible to vote in a representation election. Supervisors (ie, someone who may exercise independent judgment in making decisions ‘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’ (see, 29 USC section 152), persons in managerial positions, and independent contractors are not eligible to vote. The NLRA also excludes certain other types of individuals such as agricultural laborers (see, 29 USC sec 152(3)). It is useful for employers to review employees and contractors that work in the petitioned-for bargaining unit to ensure only eligible voters are included.

1.7 Review NLRB correspondence and post notices

The NLRB’s regional office will investigate the petition. If the regional director determines that the petition is not properly supported, it may request that the petitioner withdraw the petition, or will itself dismiss the petition. If the regional office finds the petition is properly supported, it will send the parties a notice of hearing.

Within two business days of service of the notice of hearing, employers must provide notice of the petition for representation to employees in the bargaining unit by posting the NLRB notice of petition for election in conspicuous locations, including every place where notices to employees are usually posted. If employers regularly communicate with employees in the proposed unit through email, they must also email a copy of the notice of petition for election to those employees (see, 29 CFR section 102.63(a)(2)).

Step 2 – Preparing for the representation hearing

2.1 Advise managers and proceed cautiously with changes

Employers can be subject to liability for discrimination, retaliation, unfair labor practices, and other claims if they interfere with their employees’ right to collectively bargain. Although this risk exists at all times, it becomes particularly acute when a union is in the process of petitioning for recognition.

Once employers became aware of a potential or actual petition, they should proceed cautiously to avoid liability for interference with their employees’ collective bargaining rights. Employers should reiterate their employees’ collective bargaining rights to supervisors and provide guidance regarding a supervisor’s actions as the representation process proceeds.

Supervisors should be reminded of improper conduct such as threatening or incentivizing employees if they do or do not vote a certain way in the elections. They should also be told to direct any inquiries from the NLRB to the employer’s counsel and not try to independently respond to such inquiries.

To the extent possible, employers should avoid any changes to the terms and conditions of the proposed bargaining group’s terms of employment – on a collective or individual level. Even when well-intentioned, such actions can be perceived as improper when taken in response to unionizing efforts.

2.2 Complete commerce questionnaire

In most cases, the NLRB will request that employers complete a commerce questionnaire, Form NLRB-5081. The form asks questions regarding the employer’s business to help the NLRB evaluate jurisdiction. Questions focus on the employer’s line of business and revenue.

2.3 Prepare and serve a statement of position

In response to the petition, employers must prepare and serve a statement of position along with a list of employees in the proposed bargaining unit (see, 29 CFR section 102.63(b)(1)).

The statement of position must include any challenges the employer intends to assert at the representation hearing including:

• jurisdictional issues;
• appropriateness of the bargaining unit;
• individuals whose voter eligibility the employer plans to challenge;
• time-bar challenges;
• other election bars, such as election-related misconduct by the employees’ representative;
• election date and time; and
• election location.

Raising all contested issues in the statement of position is crucial. Failure to raise an issue in the statement of position usually waives the issue. Notable exceptions include statutory jurisdiction, which can be raised at any time, and challenges to specific employees’ voting eligibility which can be raised in the challenge procedure during the election.

2.4 Prepare and serve the employee list

The employee list is a preliminary list of employees in the proposed bargaining unit including each employee’s full name, position, work location, shifts, and job classifications. Employers should carefully review correspondence from the NLRB which includes specific instructions for the formatting of the list.

Employers that are challenging the propriety of a proposed bargaining unit must also provide a separate list of all employees it contends should be added in order for the unit to be an appropriate bargaining unit. For each person on the proposed list the employer must also provide the employee’s full name, position, work location, shifts, and job classifications.

2.5 Prepare for the union’s responses

Pursuant to amendments that went into effect in 2023, the union will respond orally to the employer’s statement of position at the start of the pre-election hearing. Employers should anticipate what the union’s position will be and be prepared to respond.

2.6 Consider agreement with the union

The NLRB strongly encourages and attempts to broker agreements between the employer and the union. In most cases, reaching an agreement on some or all issues is in the employer’s best interests because it allows the employer to have some control in the process.

Pursuant to 29 CFR section 102.62, there are three types of agreements that may be reached and these are listed below.

• Consent agreement – under a consent agreement, the parties agree to waive the representation hearing, move forward with the election, and allow the regional director to resolve any post-election disputes that arise. The parties must also agree on the description of the appropriate bargaining unit, the election time and place, and the payroll period used to determine voter eligibility. The regional director’s determinations under a consent agreement are final
• Full consent agreement – under a full consent agreement, the parties agree that the regional director’s decisions regarding pre- and post-election issues will be final. Under this form of agreement, a pre-election representation hearing is still held.
• Stipulated election agreement – under a stipulated election agreement, the parties agree to waive the representation hearing, move forward with the election, and allow the regional director to resolve any post-election disputes that arise. As with a consent agreement, the parties must also agree on the description of the appropriate bargaining unit, the election time and place, and the payroll period used to determine voter eligibility. Unlike a consent agreement, the parties to a stipulated election agreement can seek review by the NLRB of the regional director’s determinations.

A stipulated agreement is generally preferable for employers because the ability to seek review by the NLRB (as opposed a final decision from the regional director only) is retained. Agreement can occur at any time up until the hearing so working towards agreement should occur concurrently with submitting responses and preparing for the hearing.

2.7 Assemble evidence on disputed issues

Employers must assemble evidence on disputed issues in preparation for the hearing. Common supportive evidence includes job descriptions, descriptions of different work locations, and evidence of the nature of the employer.

Additional resources

US National Labor Relations Board, Basic Guide to the National Labor Relations Act
US National Labor Relations Board, Frequently Asked Questions - NLRB
US National Labor Relations Board, Representation Case Procedures
US National Labor Relations Board, NLRB Representation Case-Procedures Fact Sheet 

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