NLRB Procedure in ULP and Representation Cases

ULP Cases

1. The charge. File charge with regional office w/in 180 days of the alleged ulp.

2. The investigation. Charge is investigated by agent of the General Counsel (GC).

3. Assessment of merits. Regional Director (RD), as agent for the GC, decides whether to issue a complaint.

4(a). No complaint. If the RD declines to issue a complaint, the charging party's sole recourse is to appeal to the GC in Washington. Charging party has no independent right to maintain the action and cannot challenge the GC's decision not to issue a complaint absent very rare circumstances.

4(b). Proceed with complaint. If a complaint issues, the regional office will draft a complaint and serve it on the respondent. The GC, not the charging party, is the named party against the respondent. The case will then be assigned a hearing date before an Administrative Law Judge.

5. Preliminary injunction. In certain cases, the GC may ask the federal district court to issue a preliminary injunction against the respondent in order to freeze the status quo during the pendency of the board proceeding. See Section 10(e). In certain ulp cases alleging unlawful union picketing (e.g., secondary boycotts), the GC must ask the federal court for a preliminary injunction. See Section 10(l).

6. The hearing. The hearing before the ALJ resembles a bench trial in federal district court, and operates in lieu of such a trial.

7. ALJ's decision. Following the hearing the parties will submit written briefs. The ALJ will issue a written opinion making recommended findings and conclusions.

8. Appeal to the Board. The parties may appeal the recommended decision to the 5-member Board in Washington, which will then issue a final decision and order.. The Board will defer to the ALJ's credibility findings when based on witnesses' demeanor.

9. Judicial Review and Enforcement. The case may then proceed to the U.S. Court of Appeals. If the respondent loses, the respondent may file a petition for review or, since the Boards orders are not self enforcing, the Board may file a petition (or cross-petition) for enforcement of its order.

10. Standard of review. The circuit courts will defer to the Board's factual findings if they are supported by "substantial evidence" in the record. As for issues of law or mixed questions of fact or law involving judgments about labor policy, the courts will often defer to the Board so long as the Board's judgment is rational. Courts tend to be less deferential when the issue of law involves a strict question of legislative intent that does not turn on any special expertise in labor matters.

11. Rulemaking v. Adjudication. An administrative agency, such as the NLRB, administers its statute and sets policy in one of two ways. It acts like a quasi legislature and issues rules of general applicability, or it acts like a court and resolves concrete controversies between 2 parties. In the admin. law context, the former is called rulemaking and the latter is called adjudication. The NLRB relies almost exclusively on adjudication. It uses that method not just to resolve the controversy before it, but to interpret the statute and apply policies that also will govern in future cases.

Representation Cases

1. Union demand for recognition. Employer may voluntarily accept union's demand and recognize the union, but the employer need not do so. If the employer extends voluntary recognition, the employer is as bound as if the union had won an election. If the employer refuses recognition, the Union can seek an election from the NLRB.

2. Petition. A union that wants an election must file a petition with the Board at a Regional Office. The union's petition must be supported by a showing of interest (evidenced typically by signed union cards) from at least 30% of the employees in the proposed bargaining unit. An employer also can file a petition in response to a union demand for recognition. Employees can file a petition if they are represented by a union but no longer wish to be. This is called a decertification petition.

3. Prerequisites for election. The board will schedule an election if it is satisfied that the following conditions have been met: 1) the employer is subject to the Board's jurisdiction; 2)the union is indeed a "labor organization" as defined by the Act; 3) the union seeks to represent employees in an "appropriate bargaining unit"; 4) there are no "bars" to conducting an election.

4. Election bars. The board will not conduct an election if the employees are already represented by a union and are covered by a collective bargaining agreement that has not expired (contract bar), or if the incumbent union won certification within the last year (certification year bar), or if the incument was voluntarily recognized within the last year (recognition bar). The Board also will not conduct an election if less than one year has lapsed since the last election involving the same employees.

5. Stipulations and Consent Elections. If the employer stipulates that the prerequisites are met, the region will schedule an election within a few weeks.

6. A hearing. If the employer refuses to stipulate on any one of the prerequisites (such as the appropriateness of the bargaining unit), the region will conduct a hearing. The hearing is not about wrongdoing. A regional employee (not an ALJ) presides as hearing officer. The union and the employer are parties.

7. RD decision. Based on the hearing, Regional Director will issue a report deciding whether to direct an election.

8. Appeal to Board. Either party may appeal the RD's decision to the full Board. The appeal will usually stay the election. The Board's decision is final. The Act does not permit any direct judicial review of Board decisions in representation cases.

9. The campaign. The parties will campaign up until the date of the election.

10. The election. A board agent will conduct the election, usually at the employer's premises during the workday. The union must obtain a majority of the votes cast in order to be certified as bargaining representative.

11. Post-election objections. Following the election, a party can file objections complaining of misconduct that tainted the results. Usually the misconduct will involve behavior that is a ULP under Section 8. The Board also has authority to set aside an election based on behavior that may have affected the results but which was not an ULP. The Board gets this authority from Section 9, under which the Board oversees the election process. Conduct that would be sufficient to set aside an election but would not constitute a ULP is simply referred to as objectionable conduct.

12. Certification of results. Once the results are final, the Board will either certify the union as the employees' bargaining representative, or certify the results in favor of the employer.

13. No direct judicial review. The Act provides no direct judicial review of Board certifications in representation cases. But employers who lose elections and who believe the Board committed error somewhere in the representation case (e.g. in its unit determination or in overruling an objection) can seek review of the certification indirectly. How?