Portfolio 41-4th: Practice and Procedure before the NLRB

I. The Statute
A. History
B. Employer Unfair Labor Practices
C. Union Unfair Labor Practices

II. Structure of the National Labor Relations Board
A. National Labor Relations Board
B. General Counsel's Office
C. Regional Offices
D. Division of Administrative Law Judges
E. Communicating With The National Labor Relations Board

III. Board Jurisdiction
A. Employers Covered by the Act
1. Advisory opinions
2. Declaratory orders
B. Employees Covered by the Act

IV. Representation Proceedings
A. Types of Petitions
B. Certification Cases
1. Who may file questions of representation
2. How a question of representation is raised
a. Demand and refusal of recognition
b. Sufficiency of the demand
c. Timeliness of the demand
3. Form of the petition
a. Content requirements
b. Showing of interest
4. Notice to the employer
5. Employer response
6. Prehearing investigation
a. Questions concerning representation
b. Determination of an appropriate unit
c. Disclaimers of interest
d. Proof of majority status
(1). Showing of interest
(2). Objective considerations
e. Bars to elections
(1). Election year rule
(2). Certification year rule
(3). Voluntary recognition
(4). Contract bar rules
f. Eligible voters
(1). An employee under Section 2(3) of the Act
(2). Employment prior to the election
(3). Employment on the date of election
g. Withdrawal of the petition
h. Dismissal of the petition
(1). Reasons for dismissal
(2). Appeal of the dismissal
C. Types of Elections
1. Consent elections
2. Severance elections
3. Professional employee elections
4. Residual elections
D. The Representation Hearing
1. Notice of the hearing
2. Postponements
3. Blocking charges
4. Prehearing motions
5. Subpoenas
6. Conduct of the hearing
a. The hearing officer
b. Appearances; intervention
c. Presentation of evidence; witnesses
d. Close of the hearing
7. The Director's decision
8. Request for review
a. Content of the request
b. Grounds for granting review
c. Statement opposing review
9. Board review; requirements for briefs
10. Amicus briefs
11. Motions for reconsideration, rehearing, or to reopen the record
E. Elections
1. Introduction
2. Date, location, and hours of the election
a. Date of the election
b. Location of the election
c. Hours of the election
3. The Excelsior rule
4. Notice of the election
5. Campaign conduct
a. Campaign misrepresentations
b. “Captive audience” speeches
6. Preelection conferences
7. Election procedures
a. The mechanics of voting
b. Party observers
c. Electioneering
d. Challenges
e. Counting the ballots
f. Preparation and service of the tally
g. Runoff and rerun elections
F. Resolution of Challenges
1. Investigation
2. Hearings
3. Report or decision of the Director; review process
a. Directed elections
b. Consent election agreements
c. Stipulated election agreements
G. Objections to Elections
1. Who may file objections
2. When to file objections
3. What to file
4. Investigation of objections
5. Right to a hearing on objections
a. Directed elections
b. Consent election agreements
c. Stipulated election agreements
d. Requests for an extension of time
H. Post-certification Proceedings
1. Certification
2. Correction or amendment to certification
3. Revocation of certification
4. Judicial review of Board certification decisions
I. Decertification Election Procedures
J. Deauthorization Election Procedures
K. Unit Clarification Proceedings

V. Unfair Labor Practice Proceedings
A. Filing of the Charge
1. Who may file
2. Where to file
3. What to file
4. When to file
5. Notice to the charged party
6. Right to counsel; notice of appearance
7. Amendment of the charge
B. Investigation
1. Scope of the investigation
a. Jurisdiction and timeliness
b. Gathering relevant information
2. Regional Office decisions
3. Appeals to the General Counsel
C. Settlement Agreements
1. Informal settlement agreements
2. Formal settlement agreements
3. Notice of employee rights
4. Non-Board settlements
D. The Complaint
1. Amendment of the complaint
2. Consolidation of charges or complaints
3. Answer
4. Section 10(j) emergency relief
5. Prehearing motions
6. Prehearing applications for depositions
7. Prehearing applications for subpoenas
E. The Hearing
1. Pretrial conference
2. Formal papers
3. Trial motions
4. Presentation of evidence
a. Rules of evidence
b. Stipulations
c. Witnesses
(1). Sequestration of witnesses
(2). Payment of fees
(3). Hostile witnesses
(4). Pretrial statements
d. Exhibits
(1). Introduction of exhibits
(2). Rejected exhibits
e. Appeals from the ALJ's ruling
f. Depositions
g. Subpoenas
h. Petition to revoke a subpoena
5. Oral argument
6. Briefs filed with the ALJ
7. Correcting the transcript
F. Posthearing
1. The ALJ's decision
2. Filing of exceptions
3. Filing of briefs
4. Answering briefs and cross-exceptions
5. Requests for oral argument
6. Posthearing motions
7. Reopening of the record
G. The Board's Decision
1. Reconsideration of the decision
2. Compliance with the decision
3. Enforcement or review of the Board's decision; time for filing
H. Compliance Proceedings
1. Compliance specifications
2. Answer to compliance specifications
3. Compliance hearing procedures
I. Awards of Fees and Other Expenses

VI. Jurisdictional Dispute Cases
A. Introduction
B. Notice of the Hearing
C. Effect of an Agreement
D. The Hearing
E. Board Determination of the Dispute
F. Issuance of the Complaint
G. The Board Decision
H. Judicial Review