The Representation Hearing

Transcription

1 [Errata Notice: The problem discussed below has been remedied in the 2011 Supplement to How to Take A Case Before the NLRB, which reprinted chapter 7 in its entirety, corrected and with additional updates. Individuals who have this supplement do not need to refer to this errata document. The footnotes to Chapter 7 of How to Take a Case Before the NLRB, Eighth Edition, are out of sequence due to a production error. Please substitute the following pages. Also, please note that now that the chapter has been corrected, entries in the Table of Cases for Chapter 7 in the main volume should be revised as follows: Croft Metals: Footnote entry 7:154 should be 7:2. Case names for footnote entries 7:3 through 7:153: add 1 to the footnote number noted, e.g., 7:19 should be 7:20. A revised case table with corrected entries for Chapter 7 only is posted on our Web site at NLRBwebtcases.pdf. We sincerely apologize for any inconvenience this error may have caused. Please contact BNA Books at or books@bna.com if you have any questions.] 7 The Representation Hearing I. Prehearing Procedures A. Notice of Hearing B. Request for Postponement C. Amendment of Notice of Hearing D. Prehearing Motions II. Conduct of the Hearing A. Nature of the Representation Hearing Role of the Hearing Officer Role of the Parties B. Sequence of the Hearing C. Motions Before the Hearing Officer Amendment or Withdrawal of Petition Motions to Intervene Applications for Subpoenas Postponements D. Presentation of Evidence Rules of Evidence Issues Excluded From Representation Hearing Stipulations at Hearing Witnesses Foreign Language Witnesses Exhibits III. Close of the Hearing A. Oral Argument and Briefs B. The Hearing Officer s Report

2 204 How to Take a Case Before the NLRB CH. 7. [Editor s Note: This chapter describes representation case practices and procedures generally followed by the regional offices. As the NLRB continues its efforts to expedite the processing of such cases, however, some regional offices may introduce variations. Readers should carefully review the description of such alternative procedures set forth in the Representation Cases Best Practices Report, General Counsel Memorandum 98-1 (Jan. 26, 1998), and in other supporting memoranda reprinted in Appendix H.] I. PREHEARING PROCEDURES A. Notice of Hearing The NLRB places high priority on the expeditious processing and resolution of representation cases. See NLRB Casehandling Manual Paragraph Toward that end, beside encouraging parties to enter into voluntary election agreements and to agree to early elections, the Board also serves either at the time a representation petition is filed or shortly thereafter a notice of hearing that sets the time and place of a hearing on the petition. 1 (See Exhibit 7 1.) In Croft Metals, Inc., 2 the Board held that parties to a representation case must receive at least five days notice of the hearing date, absent unusual circumstances or clear waiver by the parties. Because this time period is less than seven days, intermediate Saturdays, Sundays, and holidays are excluded in the computation. 3 Following the issuance of Croft Metals, the regions were advised that informal notices of hearing or letters advising of the possible need for a hearing do not meet the Croft Metals requirement, and that nothing short of a formal notice of hearing will suffice to give the parties proper notice of the hearing date. 4 The notice of hearing is accompanied by: a copy of the representation petition; a copy of National Labor Relations Board Form 4669 (see Exhibit 7 2), outlining the procedures for conducting the hearing and filing briefs; and a copy of NLRB Form 4338 (see Exhibit 7 3), a supplemental notice informing the parties that they may still dispose of the petition through an informal adjustment of the case, and outlining the requirements for obtaining a hearing postponement. Form 4338 also warns parties that no request for a 1 NLRB Rules and Regulations NLRB 688, 170 LRRM 1121 (2002). A number of regions automatically schedule the hearing date for the first business day that falls 10 calendar days after the petition s filing date. 3 NLRB Rules and Regulations (a). 4 Croft Metals, Inc., Opers.-Mgmt. Mem (Aug. 30, 2002). Operations- Management and General Counsel Memoranda are available at the NLRB Web site, under the tab Research, and then, Memos.

3 CH. 7.I.A. The Representation Hearing 205 Exhibit 7 1. Notice of Representation Hearing (Form NLRB-852)

4 206 How to Take a Case Before the NLRB CH. 7.I.A. Exhibit 7 2. Summary of Standard Procedures in Formal Hearings Held Before the National Labor Relations Board Pursuant to Petitions Filed Under Section 9 of the National Labor Relations Act (Form NLRB-4669)

5 CH. 7.I.A. The Representation Hearing 207 Exhibit 7 2. cont.

6 208 How to Take a Case Before the NLRB CH. 7.I.A. Exhibit 7 3. Supplemental Notice Regarding Settlements and Postponements of Representation Case Hearings (Form NLRB-4338)

7 CH. 7.I.B. The Representation Hearing 209 postponement will be granted during the three days immediately preceding the date of hearing, except under the most extreme conditions. NLRB Form 4669, revised in 1992, addresses parties or witnesses who have a handicap within the meaning of Section 504 of the Rehabilitation Act of 1973, as amended, and need appropriate auxiliary aids. It also incorporates revisions flowing from changes in NLRB Rules and Regulations Sections and For example, requests for extensions for the filing of documents may be filed within three days of the due date, but only if based on circumstances not reasonably foreseeable in advance. 5 Service on parties must be accomplished by the same, or a more expeditious, method as used to file with the Board. 6 The Agency Web site ( lists documents that may be filed electronically, including requests for an extension of time to file documents; requests for postponement of a hearing; Excelsior lists; observer designations; disclaimers of interest; election objections; and representation case briefs. 7 Representation petitions, however, may not be filed electronically, but they may along with objections to elections, and requests for extensions of time to file documents be filed by fax. Other documents may be filed by fax with the advance permission of the receiving office. However, certain documents, including showings of interest in support of representation petitions, briefs, and requests for review of regional directors decisions, may not be filed by fax. 8 B. Request for Postponement NLRB Casehandling Manual Paragraph sets forth the general policy that cases set for hearing will be heard on the day set, and, once commenced, will continue on consecutive days until completed, absent the most compelling circumstances. In light of this policy, a party seeking a postponement must: 9 File a postponement request, at least three days before the scheduled hearing, except in emergency situations; Submit an original and two copies of the request in writing to the regional director (unless filed electronically); Set forth reasons for the request in detail; 5 NLRB Rules and Regulations (b). 6 Id (a). However, when filing with the Board is accomplished electronically or by hand, the parties must be notified of the filing by telephone and may be served by the close of the next business day. 7 Expansion of the General Counsel s Policy for Electronically Filing Casehandling Documents with Regional, Subregional or Resident Offices, Opers.-Mgmt. Mem (rev. Nov. 16, 2006). 8 NLRB Rules and Regulations (f) (g); see also ch. 25 herein. 9 NLRB Casehandling Manual

8 210 How to Take a Case Before the NLRB CH. 7.I.B. Suggest a specific alternative date for any rescheduled hearing; Obtain and set forth the positions of all other parties; and Serve copies of the request simultaneously on all other parties. Before ruling on a request for postponement of a hearing, the regional director usually waits until all parties have had an opportunity to submit their positions. 10 The director s ruling is served on all parties. (See Exhibit 7 4.) 11 C. Amendment of Notice of Hearing In addition to ruling on requests for postponements, the regional director also may amend the notice of hearing in other respects prior to the opening of the hearing. 12 The place or hour of the hearing may be changed, an amendment to the underlying petition may necessitate an amendment to the notice of hearing, or the representation proceeding may be consolidated with or severed from related pending cases. The regional director retains the authority to withdraw the notice of hearing entirely and, when appropriate, to dismiss the petition at any time up to the point that the case is transferred to the Board. The regional director may act on his or her own motion or at the request of one or more of the parties. 13 D. Prehearing Motions All motions made by the parties before the opening of the hearing must be filed with the regional director. 14 The motion should state briefly the action requested and the grounds for the request. For example, if the moving party desires to intervene, a statement of the grounds upon which the party claims an interest in the proceeding should be made. Copies of motions must be served immediately upon each of the parties. The regional director may rule on all prehearing motions and may serve a copy of the ruling upon each of the parties. The regional director has the option of referring some or all of the motions to the hearing officer assigned to the case. The regional director usually rules upon motions to amend the notice of hearing or to dismiss the petition, while the hearing officer rules upon most other motions If the petitioner, however, seeks a significant postponement (i.e., more than 10 calendar days), the regional director may deny the request and simply advise the petitioner to refile the petition at a later date. 11 NLRB Casehandling Manual NLRB Rules and Regulations ; NLRB Casehandling Manual NLRB Rules and Regulations ; NLRB Casehandling Manual NLRB Rules and Regulations (a); NLRB Casehandling Manual NLRB Casehandling Manual

9 CH. 7.I.D. The Representation Hearing 211 Exhibit 7 4. Order Rescheduling Hearing (Form NLRB-859)

10 212 How to Take a Case Before the NLRB CH. 7.I.D. The regional director s rulings on motions to revoke subpoenas become part of the hearing record only upon request of the aggrieved party, whereas all prehearing motions and rulings automatically become part of the record. 16 Unless expressly authorized by the Board s regulations, prehearing rulings by the regional director (other than dismissals of petitions) may not be appealed directly to the Board, but may be considered by the Board in connection with a request for review of the regional director s decision or at such time as the case is transferred to the Board for decision. 17 II. CONDUCT OF THE HEARING A. Nature of the Representation Hearing The purpose of the representation hearing is to gather factual information necessary for the regional director or the Board to rule upon a question concerning representation. 18 Theoretically, the hearing is investigative rather than adversarial in nature. 19 Hearings generally are conducted in the region where the election petition originates and, with rare exception, are public. An official reporter, who is retained by the Board s regional office, compiles a verbatim transcript, which constitutes the official record of the hearing. Copies may be purchased by the parties but must be ordered from the official reporter. A copy also is placed in the regional office formal file. Although the regional office s copy is available to parties and to the public, the regional director will not permit removal of the transcript from the office. All citations and references made in briefs and motions must refer to the official record. 1. Role of the Hearing Officer The officer presiding over the hearing normally is a Board attorney or field examiner from the region in which the hearing is held. The hearing officer is an agent of the regional director. 20 As the hearing is considered to be part of the investigation, the hearing 16 NLRB Rules and Regulations (c). 17 Id. Prehearing orders dismissing petitions may be appealed in accordance with the procedures set forth in Section of the Rules and Regulations. See NLRB Rules and Regulations (a). 18 In September 2003, the NLRB issued a revised Hearing Officer s Guide. A brief discussion of the Guide, together with the Table of Contents and Index, is provided in Appendix T. The Guide is also available at the NLRB Web site, under the tab Publications, and under the listing for Manuals. 19 NLRB Casehandling Manual 11181; NLRB Statements of Procedure ; see also Solar Int l Shipping Agency, Inc., 327 NLRB 369, 370 n.2, 160 LRRM 1081 (1998). 20 Rochester Metal Prods., 94 NLRB 1779, 28 LRRM 1289 (1951).

11 CH. 7.II.A.1. The Representation Hearing 213 officer s function is to guide, direct, and control the presentation of evidence and to ensure a full, yet concise, record. 21 The hearing officer will also attempt to resolve or narrow issues before opening the record. 22 In the absence of agreement by the parties on the election issues, the region is required to conduct an appropriate hearing. 23 A party s right to insist on a hearing, however, is not unlimited, and the region is not required to hold a hearing on every issue requested. 24 In all cases, the hearing officer has the authority to call, examine, and cross-examine witnesses, and to request that documentary evidence be introduced into the record. 25 Indeed, the Board has ruled that it is not improper for a hearing officer to develop most of the evidence on a critical issue by examination of witnesses where the parties have failed to call their own witnesses. 26 The hearing officer has the power to limit the testimony to relevant issues. Thus, the hearing officer can halt the examination of witnesses, 27 refuse to permit a line of testimony that produces no evidence, 28 exclude irrelevant testimony and evidence, solicit factual stipulations, and permit a party to make an offer of proof. 29 Although leading questions may be asked of witnesses, the hearing officer may preclude such questioning where the practice is being abused. 30 The hearing officer is empowered 31 and required 32 to rule on all motions (except motions to dismiss the petition) referred by the regional director or made at the hearing. The hearing officer 21 NLRB Casehandling Manual 11181, 11185, ; Altamont Knitting Mills, Inc., 101 NLRB 525, 31 LRRM 1103 (1952). 22 NLRB Casehandling Manual 11180, ; see also id (discussing prehearing joint conferences). 23 Angelica Healthcare Servs. Group, Inc., 315 NLRB 1320, 148 LRRM 1130 (1995); Barre-Nat l, Inc., 316 NLRB 877, 148 LRRM 1281 (1995). 24 Mariah, Inc., 322 NLRB 586, 155 LRRM 1185 (1996) (noting that Angelica Healthcare Servs. Group and Barre-National, Inc. only require that an appropriate hearing be conducted and that the region not be stripped of its ability to determine issues of relevance and the scope of legitimate inquiry). Likewise, a party that refuses to take a position with respect to an issue and simply intends to adduce evidence on an issue may be prohibited from introducing such evidence at the representation hearing. Bennett Indus., 313 NLRB 1363, 146 LRRM 1145 (1994); see NLRB Casehandling Manual For a full delineation of the hearing officer s role, see NLRB Casehandling Manual United States Smelting, Refining & Mining Corp., 116 NLRB 661, 662, 38 LRRM 1314 (1956). 27 Ravenna Arsenal, Inc., 98 NLRB 1 n.1, 29 LRRM 1283 (1952). 28 Sears, Roebuck & Co., 112 NLRB 559 n.1, 36 LRRM 1060 (1955). 29 Mariah, Inc., 322 NLRB 586, 155 LRRM 1185 (1996); NLRB Casehandling Manual Altamont Knitting Mills, Inc., 101 NLRB 525, 31 LRRM 1103 (1952). 31 NLRB Rules and Regulations (a). 32 Father & Son Shoe Stores, Inc., 117 NLRB 1479, 40 LRRM 1032 (1957).

12 214 How to Take a Case Before the NLRB CH. 7.II.A.1. must refer any motion to dismiss the petition to the regional director or to the Board, as the case may be. 33 The hearing officer also has the discretion to postpone or adjourn the hearing to a later date or different venue, and may do so by oral announcement Role of the Parties Any party has the right to appear at a hearing in person or to be represented by counsel or other representatives. The Board does not prescribe rules of admission to practice before it or its hearing officers, and parties are not required to be represented by attorneys. 35 Misconduct of an aggravated character on the part of any attorney or other representative before the hearing officer is grounds for summary exclusion from the hearing and/or grounds for suspension or disbarment by the Board from further practice before it, after due notice and hearing. 36 See Chapter 26, Section III., concerning NLRB procedures for investigation of misconduct by attorneys or other representatives during a representation or unfair labor practice hearing and possible discipline for such misconduct. The parties are given full opportunity to present their respective positions and to present evidence in support of their respective contentions. Each party has the power to call, examine, and crossexamine witnesses. 37 Any party may file objections to the conduct of the hearing, including objections relating to the introduction of evidence. Such objections may be stated orally or in writing and will be part of the record. Further, participation in the hearing will not be viewed as a waiver of the objection. 38 B. Sequence of the Hearing Most hearings proceed in the following sequence: The hearing officer notes for the record the appearances on behalf of the parties. The hearing officer places in the record the so-called formal papers. These consist of the petition, the notice of hearing, any prehearing motions and the rulings thereon, and affidavits of service NLRB Rules and Regulations (a). 34 Id (b). 35 Id The Board has, however, established certain restrictions on the ability of former agency employees to participate in cases that were pending during the period of their employment. See id NLRB Rules and Regulations subpt. W, (d) (e). 37 Id (a). 38 Id (b). 39 NLRB Casehandling Manual

13 CH. 7.II.C. The Representation Hearing 215 Factual agreements on such matters as the status of the labor organization or the operations of the company are then placed in the record by stipulation. No set order exists for presentation of evidence. However, the NLRB Casehandling Manual Paragraph specifies that, in most cases, the employer should proceed first so as to provide an overview of its operations and more efficiently develop the record. Other parties then produce direct testimony. Witnesses called by any party are subject to cross-examination. The same procedure is followed on other contested issues. At the conclusion of the hearing, the parties are entitled, upon request, to engage in oral argument or to file briefs. 40 C. Motions Before the Hearing Officer All motions made at the hearing must be made in writing or stated on the record. 41 If in writing, an original and two copies must be filed, and served immediately upon each of the other parties. 42 The motion should state briefly the relief sought and the grounds for such motion. The hearing officer must rule on every motion filed at the hearing or referred by the regional director, except a motion to dismiss. 43 A motion to dismiss, which may be oral or in writing, 44 must be referred to the regional director or the Board. The hearing officer s rulings may be made orally on the record or in writing. 45 If in writing, a copy will be served on each party. All motions, rulings, and orders become part of the record, except rulings on motions to revoke subpoenas. 46 The petition to revoke a subpoena, any answer filed, and a ruling thereon become part of the record only upon specific request of the aggrieved party. 47 All rulings by the hearing officer ultimately are considered when the regional director or the Board reviews the entire record. In limited instances, rulings by the hearing officer may be appealed during 40 NLRB Rules and Regulations (d). 41 Id (a); NLRB Casehandling Manual NLRB Rules and Regulations (a); NLRB Casehandling Manual NLRB Rules and Regulations (a). The NLRB Casehandling Manual provides that motions to transfer the case to the Board or for oral argument before the regional director or the Board likewise should be referred to the regional director. NLRB Casehandling Manual (b). 44 Valley Concrete Co., 88 NLRB 519, 25 LRRM 1354 (1950). 45 NLRB Rules and Regulations (a); NLRB Casehandling Manual (a). 46 NLRB Rules and Regulations (c). 47 Id (c), (c).

14 216 How to Take a Case Before the NLRB CH. 7.II.C. the hearing by special permission of the regional director. 48 A written request for special permission to appeal the hearing officer s ruling, along with a copy of the appeal itself, should be filed with the regional director and should state the reasons why special permission should be granted and the grounds relied upon. Copies of the request for special permission and the appeal are served on all other parties, who are afforded an opportunity to respond in writing. If the regional director grants the request for special permission, the appeal is reviewed on its merits Amendment or Withdrawal of Petition During the hearing, a petitioner may move to amend or withdraw the petition. 50 The rules for withdrawing petitions before the hearing apply also to requests filed at the hearing. (See Chapter 6, Section II.A.) The Board s settled policy is to allow the parties to litigate all issues raised by an amendment to the petition that have not been previously fully litigated. 51 A petition amended during the hearing does not constitute a new petition where the amendment merely particularizes the composition of the unit; 52 the categories of employees involved in the amended petition are covered in the original petition; 53 or the petition is amended so as to seek, in the alternative, separate units rather than the single unit originally delineated. 54 Where the petition is amended during the hearing to embrace a substantially larger unit, however, the Board has held that the petitioner must submit an enhanced showing of interest. 55 If no party is prejudiced and no valid collective bargaining agreement is executed by the company and another union between the time of filing the original petition and the amendment, the amended petition will not be dismissed NLRB Casehandling Manual The same limited appeal right exists with respect to the Board in cases where the regional director already has transferred the case to the Board. Id. 49 Id. 50 NLRB Casehandling Manual (amendment), (withdrawal). 51 De Laval Separator Co., 97 NLRB 544, 29 LRRM 1124 (1951). 52 Blatz Brewing Co., 94 NLRB 1277, 28 LRRM 1182 (1951); see also Atlantic Richfield Co., 208 NLRB 142, 85 LRRM 1222 (1974) (holding that an amendment adding several hundred employees to the unit and deleting a like amount of other employees was within the hearing officer s discretion). 53 Rauland Corp., 97 NLRB 1333, 29 LRRM 1258 (1952). 54 Crossett Paper Mills, 98 NLRB 542, 29 LRRM 1396 (1952). 55 Carbide & Carbon Chems. Corp., 88 NLRB 437, 25 LRRM 1341 (1950). 56 Cohn Goldwater Mfg. Co., 103 NLRB 399, 31 LRRM 1531 (1953); see also Hyster Co., 72 NLRB 937, 19 LRRM 1238 (1947).

15 CH. 7.II.C.2. The Representation Hearing Motions to Intervene Hearing officers also may be required to rule upon motions to intervene filed by labor organizations seeking to participate in a representation proceeding commenced by a different labor organization, employer, individual, or group of employees. Although the statute does not provide any standards or procedures regarding intervention, the NLRB Rules and Regulations state that intervention may be granted to any person having an interest in the proceeding to such extent and upon such terms as [the regional director or hearing officer] may deem proper. 57 If intervention is granted, the intervenor becomes a party to the proceeding. 58 The regional director often refers prehearing motions to intervene to the hearing officer. Motions made at the hearing may be written or stated orally on the record. In each instance, the normal requirements for filing motions apply, including a statement of the reason why the motion should be granted. 59 If the motion for intervention is filed after the case is transferred to the Board, it must be filed in writing with the Board in Washington, D.C. 60 Requests for intervention will be granted only to persons able to demonstrate an interest in the representation proceeding. The required interest may be demonstrated in a variety of ways. First, a union that is party to an existing or recently expired contract covering the employees in the requested unit may intervene. 61 Second, a union that has been certified or is the currently recognized representative of the employees involved has a sufficient interest in the proceeding to justify intervention. 62 Third, a union that submits some timely showing of interest among the employees in the unit, such as a signed petition or authorization cards, may be permitted to intervene. 63 When the motion to intervene is based upon signed authorization cards or other expressions of employee interest, the degree to which the intervenor will be permitted to participate in the proceedings 57 NLRB Rules and Regulations (b). Labor organizations that cannot be certified as the representative of unit employees may not intervene in the representation proceeding. University of Chi., 272 NLRB 873, 117 LRRM 1377 (1984) (not permitting a union to intervene where Section 9(b)(3) precluded it from representing a guard unit). 58 NLRB Rules and Regulations (b). 59 Id (a); NLRB Casehandling Manual NLRB Rules and Regulations (a); Northeastern Univ., 218 NLRB 247, 89 LRRM 1862 (1975). 61 NLRB Casehandling Manual ; Peabody Coal Co., 197 NLRB 1231, 81 LRRM 1156 (1972); Penn-Keystone Realty Corp., 191 NLRB 800, 77 LRRM 1600 (1971). 62 FWD Corp., 138 NLRB 386, 51 LRRM 1042 (1962). 63 NLRB Casehandling Manual 11023,

16 218 How to Take a Case Before the NLRB CH. 7.II.C.2. depends upon the extent of the demonstrated employee support. A participating intervenor is one that submits a showing of interest from less than 10 percent of employees in the requested unit. Indeed, a single authorization card is a sufficient basis upon which to grant participating intervention. 64 Participating intervenors may appear on the ballot and may participate fully in the hearing, but may not block a consent election. 65 If a 10 percent or greater showing of interest is submitted, full intervention status is granted and the intervening union may block a consent election in addition to appearing on the ballot and participating in the hearing. 66 (See also Chapter 5, Section III.B.3. 6.) In the absence of a 30 percent showing of interest, a participating or full intervenor may appear on the ballot for an election in the unit specified in the petition, but may not request its own unit. An intervening union can both oppose the unit sought by the petitioner and seek its own unit if its showing of interest includes at least 30 percent of the employees in the latter unit. 67 For example, an intervenor must submit at least a 30 percent showing in the craft unit if it seeks to sever a craft unit from the petitioner s industrial unit, 68 or a 30 percent showing in a unit that is substantially larger than that sought by the petitioner. 69 Accordingly, if the issue of an appreciably different unit is raised by an intervenor that has at least a 30 percent showing in its desired unit; it need not file a separate petition for that unit. 70 Where an intervening union is party to a consent election agreement and the petitioning union withdraws from that agreement, the intervenor must submit a showing of at least 30 percent before an election will be conducted. 71 Similarly, an intervenor must have a showing of at least 30 percent to oppose withdrawal of a petition, unless the petition was filed by an employer. 72 Where the petition was filed by an employer and the employer seeks withdrawal, the intervenor may obtain the election originally sought without submitting any showing of interest See Manhattan Coll., 195 NLRB 65, 79 LRRM 1253 (1972). 65 NLRB Casehandling Manual , Consent election agreements are discussed in ch. 6, secs. III.A. B., herein. 66 NLRB Casehandling Manual Salvation Army, Inc., 225 NLRB 406, 93 LRRM 1085 (1976); NLRB Casehandling Manual Boeing Airplane Co., 86 NLRB 368, 24 LRRM 1624 (1949). 69 Electric Auto-Lite Co., 87 NLRB 129, 25 LRRM 1079 (1949). 70 Tennessee Coach Co., 88 NLRB 253, 25 LRRM 1321 (1950); Tin Processing Corp., 80 NLRB 1369, 23 LRRM 1253 (1948). 71 Dierks Paper Co., 120 NLRB 290, 41 LRRM 1490 (1958); NLRB Casehandling Manual (b). 72 International Aluminum Corp., 117 NLRB 1221, 39 LRRM 1407 (1957). 73 Id.; NLRB Casehandling Manual

17 CH. 7.II.C.2. The Representation Hearing 219 As a general rule, the showing of interest must be submitted along with the motion to intervene or within 48 hours of its filing. 74 In the absence of any such evidence of employee support, the labor organization is deemed to have no standing in the case. The Board has, however, avoided application of an inflexible rule and has developed a series of exceptions. Thus, if the intervenor s showing of interest is submitted after the 48-hour period, but before a consent election agreement is approved or before the hearing has ended, intervention may be permitted. 75 If the intervenor has been notified of the 48-hour rule, but nevertheless fails to submit its showing until after a consent election agreement has been approved or until after the hearing has ended, it will not be permitted to participate in the case. 76 Its name may be added to the ballot in an election, however, if the parties to the election agreement agree to permit issue. 77 In situations where the interest of a labor organization does not become apparent until after a consent election agreement is approved or until after the close of the hearing, a delayed motion to intervene will be granted to the extent that the showing of interest submitted in support of the motion predates the approval of the agreement or the close of the hearing. 78 If the showing of interest postdates approval of a consent election agreement, the intervenor nevertheless may appear on the ballot if the parties to the agreement consent. 79 The discussion thus far has focused on unions that seek to intervene for purposes of appearing on the ballot. In some instances, however, unions may wish to intervene solely to comment on the appropriateness of the requested bargaining unit, such as when the intervening union represents other employees in the plant or other plants of the employer, or when it has a substantial number of collective bargaining agreements in the industry involved. Intervention in such cases may be sought simply to ensure that the parties do not agree to a bargaining unit that includes employees already represented by the intervenor, or to disavow any interest in the unit requested by the petitioner. Such motions generally are granted. 80 Intervention will not be granted, however, to employee or employer committees that do not purport to be labor 74 NLRB Casehandling Manual Id (a)(1). 76 Union Coll., 247 NLRB 531, 103 LRRM 1196 (1980); Consolidated Fibres, Inc., 205 NLRB 557, 84 LRRM 1020 (1973); NLRB Casehandling Manual (a)(2). 77 NLRB Casehandling Manual (a)(2). 78 Id (b). This is true even if it is necessary to revoke approval of an election agreement or to reopen a hearing. 79 Id. 80 Id ,

18 220 How to Take a Case Before the NLRB CH. 7.II.C.2. organizations, or to organizations that the Board has determined to be company-dominated and therefore disestablished Applications for Subpoenas Subpoenas are available to any party. The two basic types of subpoenas are: (1) subpoena ad testificandum, which requires the party served to appear for the sole purpose of giving testimony (see Exhibits 7 5 and 7 5a), and (2) subpoena duces tecum, which requires the party served to appear both to give testimony and to present documents named in the subpoena (see Exhibits 7 6 and 7 6a). The forms have been updated to include a morning or afternoon time for testifying, and are available in either English or Spanish. Either may be obtained by filing a written application with the regional director, if made before the opening of the hearing, or with the hearing officer at the hearing. 82 The application need not name either the witness or the documents sought. Also, notice of such application need not be communicated to the other parties. 83 The regional director or the hearing officer must furnish the subpoenas requested. 84 However, when a party requests and receives a large number of subpoenas, the party may anticipate that the Board agent will make contact to ensure that the party s intention to subpoena multiple witnesses does not conflict with the need for a concise and complete record, and that the scheduling of witnesses necessary to the hearing reasonably accommodates the employer s need to avoid disruption of its operations. 85 The NLRB s position is that, absent extraordinary circumstances, the regions should not limit the number of subpoenas provided to a party prior to a representation hearing. A region may contact a party that requests a substantial number of subpoenas to ascertain the actual number of witnesses the party anticipates calling and/or any issues expected to arise during the hearing. However, generally a region should not deny or delay the issuance of the requested subpoenas merely because the request is substantial. Parties who abuse the subpoena privilege may be subject to discipline by the Board. 86 Noting the concern over delays in issuing subpoenas to parties in preelection representation cases, the NLRB Division of Operations- Management has instructed the regions to provide subpoenas sufficiently in advance of the hearing so as to allow parties ample 81 Id. 82 NLRB Rules and Regulations (c); NLRB Casehandling Manual Procedures for acquiring subpoenas in preparation for or during unfair labor practice hearings are reasonably similar. See ch. 15, sec. III.F., and ch. 16, sec. IV.D NLRB Rules and Regulations (c). 84 Id.; NLRB Casehandling Manual NLRB Casehandling Manual See NLRB Rules and Regulations subpt. W,

19 CH. 7.II.C.3. The Representation Hearing 221 Exhibit 7 5. Subpoena Ad Testificandum (Form NLRB-32)

20 222 How to Take a Case Before the NLRB CH. 7.II.C.3. Exhibit 7 5. cont.

21 CH. 7.II.C.3. The Representation Hearing 223 Exhibit 7 5a. Spanish Version of Subpoena Ad Testificandum (Form NLRB-32(SP))

22 224 How to Take a Case Before the NLRB CH. 7.II.C.3. Exhibit 7 5a. cont.

23 CH. 7.II.C.3. The Representation Hearing 225 Exhibit 7 6. Subpoena Duces Tecum (Form NLRB-31)

24 226 How to Take a Case Before the NLRB CH. 7.II.C.3. Exhibit 7 6. cont.

25 CH. 7.II.C.3. The Representation Hearing 227 Exhibit 7 6a. Spanish Version of Subpoena Duces Tecum (Form NLRB-31(SP))

26 228 How to Take a Case Before the NLRB CH. 7.II.C.3. Exhibit 7 6a. cont.

27 CH. 7.II.C.3. The Representation Hearing 229 time to serve subpoenas and to permit those served with subpoenas sufficient time to avail themselves of the full five-day period, pursuant to Section (c) of the Board s Rules and Regulations, for filing a petition to revoke. To that end, regions are authorized to issue subpoenas once parties are informed of the hearing date, even if a formal notice of hearing has not yet issued. 87 Regions also have been instructed that, when a party requests blank subpoenas, the date of hearing should be entered with the additional language or any adjourned or rescheduled date, thus avoiding any potential issue about whether subpoenas will need to be reissued if the hearing is rescheduled. 88 If a subpoenaed individual does not intend to comply, a petition to revoke must be filed with the regional director within five working days from the date of service. The petition to revoke must be made in writing, but may be filed electronically. 89 Upon receipt of such a petition, the regional director or hearing officer will give immediate notice to the party upon whose request the subpoena was issued. 90 The regional director or hearing officer may revoke the subpoena for a variety of reasons. A subpoena is most often revoked because it seeks evidence that does not relate to any matter under investigation or does not describe with sufficient particularity the evidence sought. 91 The Board, however, may also revoke a subpoena when the issuing party fails to show that it cannot obtain the substantial equivalent of the information requested by other means. 92 The regional director or hearing officer must provide reasons for the ruling. 93 Questions pertaining to the adequacy of the subpoena or to the relevancy of the information requested are reviewed not upon issuance of the subpoena, but upon a petition to revoke. Failure of a 87 Timely Issuance of Subpoenas in Representation Cases, Opers.-Mgmt. Mem (Apr. 10, 2002), found in Appendix H. 88 Representation Case Best Practice Subpoenas, Opers.-Mgmt. Mem (June 28, 1999). 89 Expansion of the General Counsel s Policy for Electronically Filing Casehandling Documents with Regional, Subregional or Resident Offices, Opers.-Mgmt. Mem (rev. Nov. 16, 2006). 90 NLRB Rules and Regulations (c). Petitions to revoke must be received by the regional director within the five-day period, not simply placed in the mail. Id (b)(4). 91 For a decision finding sufficient grounds to grant a petition to revoke a subpoena, see Brink s Inc., 281 NLRB 468, 123 LRRM 1146 (1986). 92 Marion Manor for the Aged & Infirm, Inc., 333 NLRB 1084, 172 LRRM 1493 (2001) (revoking the employer s subpoena for the union s surveys regarding the employees supervisory status because the employer could have received equivalent information by interviewing its employees or by cross-examining them at the representation hearing). 93 Id.

28 230 How to Take a Case Before the NLRB CH. 7.II.C.3. party to file a timely petition to revoke a subpoena may bar the party from making a subsequent attack on that subpoena, thereby compelling production of the desired data. The petition to revoke a subpoena, any answer filed thereto, and the regional director s or hearing officer s ruling on the petition become part of the record only upon request of the aggrieved party. 94 For discussion of subpoena enforcement, see Chapter 21, Section III. 4. Postponements When a hearing is scheduled, the regional director notifies the parties of the hearing date in writing. The notice states that postponements will not be granted unless the request is in writing, sets forth the grounds for postponement in detail, provides alternate dates for any rescheduled hearing, sets forth the positions of all parties, and is simultaneously served on all other parties. Moreover, the notice warns that a postponement will not be granted during the three days preceding the date of the hearing [e]xcept under the most extreme conditions. 95 Many reasons may render a postponement desirable or necessary during the course of a hearing. For example, the hearing may be recessed to allow the parties to negotiate a consent agreement, 96 to allow the petitioner to withdraw the petition, 97 or to permit one of the parties to issue or have the region enforce a subpoena. 98 If the parties reach a consent agreement or file a withdrawal request, the hearing will be adjourned indefinitely pending approval by the regional director. With regard to subpoenas, if the hearing officer believes that the testimony or the documentary evidence sought to be acquired through the subpoena is relevant and no other expeditious means of acquiring the information exist, a reasonable adjournment will be granted. 99 The parties also may seek postponements to allow new counsel to become familiar with the case or to acquire additional relevant evidence not immediately available. When considering such requests, the hearing officer balances the basis for the request and the need for a complete record against the fact that the parties were advised before the hearing that it would run on consecutive days until completion and that postponement requests would be granted only under the most compelling circumstances NLRB Rules and Regulations (c), (c). 95 Supplemental Notice Regarding Settlements and Postponements of Representation Case Hearings, Form NLRB-4338 (Exhibit 7-3). 96 NLRB Casehandling Manual Id Id Id , Id ,

29 CH. 7.II.D.2. The Representation Hearing 231 The hearing officer may seek to accommodate the parties interests in other ways. If the postponement is requested to acquire additional evidence, for example, the hearing officer may adjourn the proceedings to a more convenient location or may seek a stipulation. 101 If the new information is necessary, the hearing officer also may permit the closing of the hearing, subject to the introduction of a later-acquired exhibit. 102 Postponements will be to a date certain, with provision for the hearing to continue on consecutive days thereafter until completed. 103 However, postponements due to election agreements, withdrawal requests, and subpoena enforcement may be indefinite. In the latter instance, a hearing will be resumed upon issuance of an order from the hearing officer to the parties, which will be made a part of the record. D. Presentation of Evidence 1. Rules of Evidence Theoretically, representation hearings are nonadversarial, investigatory proceedings. The issues, however, often are vigorously contested. The Act does not set forth rules of evidence to be used in representation proceedings. The Board, through its Rules and Regulations, states that the rules of evidence prevailing in the courts shall not be controlling. 104 Thus, hearing officers may overrule objections that raise technicalities concerning the presentation of evidence. 105 Furthermore, it has been held that the provisions of the Administrative Procedure Act do not apply to the conduct of representation hearings Issues Excluded From Representation Hearing The Board, through its decisions, has developed rules with respect to the types of evidence that will not be permitted to be introduced at representation hearings. Some areas in which testimony will not be received in the representation hearing are: 101 Id NLRB Casehandling Manual (specifying that this procedure is ordinarily to be avoided). 103 Id NLRB Rules and Regulations (a). 105 See Jerome E. Mundy Co., 116 NLRB 1487, 39 LRRM 1019 (1956). Sequestration of witnesses rule does not apply in representation cases. Fall River Sav. Bank, 246 NLRB 831 n.4, 102 LRRM 1667 (1979). 106 Operating Eng rs Local 148 v. Operating Eng rs Local 2, 173 F.2d 557, 23 LRRM 2517 (8th Cir. 1949). Once the hearing opens, however, ex parte communications by interested persons with the regional director, the Board, or members of their staffs are prohibited. NLRB Rules and Regulations (a).

30 232 How to Take a Case Before the NLRB CH. 7.II.D.2. The adequacy of the showing of interest; 107 Allegations that authorization cards were procured by misrepresentation or coercion, 108 that they have been revoked, 109 that they are stale, 110 or that supervisors influenced or participated in the union s acquisition of a showing of interest; 111 The manner, method, or procedure employed by the region in evaluating the showing of interest or in determining whether an employer petition is supported by objective considerations ; 112 Alleged commission of unfair labor practices by one of the parties, unless such matters are material to the issue of whether a question concerning representation exists; 113 The meaning of a contract s provisions, where the contract s language is clear and unambiguous; 114 The practices of the contracting parties under union security or checkoff clauses, regardless of the contract s ambiguity; 115 The eligibility of employees for union membership; 116 The extent to which economic strikers have been replaced; 117 The issue of whether the union maintains discriminatory membership policies; 118 Alleged union violation of federal statutes Neighborhood Legal Servs., Inc., 236 NLRB 1269, 98 LRRM 1414 (1978); NLRB Casehandling Manual American Beauty Baking Co., 198 NLRB 327, 81 LRRM 1228 (1972); Standard Cigar Co., 117 NLRB 852, 39 LRRM 1332 (1957). If evidence of fraud is to be introduced, the party seeking its introduction should bring it to the attention of the regional director within five working days of the administrative investigation. The hearing should not be interrupted. NLRB Casehandling Manual ; see ch. 5, sec. III.B General Dynamics Corp., 175 NLRB 1035, 71 LRRM 1116 (1969). 110 Cleveland Cliffs Iron Co., 117 NLRB 668, 39 LRRM 1319 (1957). 111 Adelphi Univ., 195 NLRB 639, 79 LRRM 1545 (1972); Southeastern Rubber Mfg. Co., 173 NLRB 797, 69 LRRM 1434 (1968); NLRB Casehandling Manual Milwaukee Indep. Meat Packers Ass n, 223 NLRB 922, 92 LRRM 1138 (1976). 113 Foothill Elec. Corp., 120 NLRB 1350, 42 LRRM 1184 (1958); NLRB Casehandling Manual Reading Hardware Corp., 85 NLRB 610, 24 LRRM 1446 (1949); see also Knife River Coal Mining Co., 96 NLRB 1, 28 LRRM 1474 (1951). 115 Paragon Prods. Corp., 134 NLRB 662, 49 LRRM 1160 (1961). 116 Northern Redwood Lumber Co., 88 NLRB 272, 25 LRRM 1307 (1950). 117 Eastern Camera & Photo Corp., 140 NLRB 569, 52 LRRM 1068 (1963). 118 Handy Andy, 228 NLRB 447, 94 LRRM 1354 (1977). 119 S.H. Kress & Co., 212 NLRB 132, 86 LRRM 1508 (1974); Petrie Stores Corp., 212 NLRB 130, 86 LRRM 1509 (1974).

31 CH. 7.II.D.3. The Representation Hearing 233 The NLRB General Counsel has instructed field personnel that evidence concerning an employee s immigration status should not be permitted during a representation hearing. The party raising the issue, however, may be permitted to present a succinct offer of proof. 120 Although evidence pertaining to the scope and composition of the requested bargaining unit is appropriate, evidence with respect to a substantially different bargaining unit sought by a union will not be received, absent an adequate showing of interest in that alternative unit. 3. Stipulations at Hearing From time to time in the course of the hearing either on or off the record the hearing officer may try to obtain all-party stipulations. These are factual agreements about issues pertinent to the hearing, undertaken to narrow the contested issues and to shorten the hearing. 121 The regional director or the Board cannot be bound by any stipulation that is inconsistent with the statute or Board policy. Thus, contrary to all-party stipulations, the Board has excluded guards 122 and supervisors 123 from agreed-upon units. Likewise, the parties stipulations that an employer is engaged in commerce within the meaning of the Act and that the Board should exercise jurisdiction are not binding. The Board may still determine whether assertion of jurisdiction would be contrary to its policy. 124 Although the language of a stipulated unit may not in all respects be that usually employed by the Board, the regional director or the Board will decline to disturb the agreed-upon description as long as it does not violate Board policy. 125 The Board has ruled, however, that stipulated units, even though not contrary to law or policy, do not establish Board policy with respect to unit composition. 126 When entering into stipulations covering the composition of a unit, parties should make certain that they are acquainted with the duties of the employees who are to be included in or excluded from the unit. Referring to its well-established policy of honoring concessions made in the interest of expeditious handling of representation cases, 127 the regional director or Board will refuse to reopen 120 Procedures and Remedies for Discriminatees Who May Be Undocumented Aliens After Hoffman Compounds, Inc., Gen. Couns. Mem (July 19, 2002). See ch. 18, sec. I.D.6. for discussion about back pay for undocumented employees. 121 See generally NLRB Casehandling Manual Colonial Shirt Corp., 114 NLRB 1214, 37 LRRM 1136 (1959). 123 Central Cigar & Tobacco Co., 112 NLRB 1094, 36 LRRM 1151 (1955). 124 East Newark Realty Corp., 115 NLRB 483, 37 LRRM 1328 (1956). Jurisdictional requirements are discussed in ch. 3, herein. 125 Buckley Southland Oil, 210 NLRB 1060, 86 LRRM 1340 (1974). 126 Eavey Co., 115 NLRB 1779, 38 LRRM 1177 (1956). 127 New York Shipping Ass n, 109 NLRB 1075, , 34 LRRM 1492 (1954).