General Counsel’s New Procedures for Bargaining Unit Determinations Will Impact Pending Representation Cases

By Nelson Cary and Lauren Sanders

On the heels of the NLRB’s recent decision changing the approach to determining whether a proposed bargaining unit is appropriate, the NLRB General Counsel issued a memorandum explaining how regional offices around the country should apply that decision to pending election cases.   As we discussed on this blog last week, the NLRB’s recent decision in PCC Structurals returned to the traditional test for determining the appropriateness of a proposed bargaining unit.  That test considers multiple factors, including but not limited to whether the included employees have distinct skills and training and are separately supervised.

The General Counsel’s memorandum, issued last Friday, provides instructions to regional offices around the country in the wake of the NLRB’s decision. One of the most significant directives in the memorandum is for the regional office to consider a party’s request to withdraw from an election agreement or reconsider a unit determination decision in a currently active case.  Thus, an employer could argue that a bargaining unit is no longer appropriate under the traditional test — even if an election has already been held.  Where no party makes a request, the Region should issue a Notice to Show Cause that directs any party to show cause, with specific information, why the bargaining unit is inappropriate pursuant to the traditional community of interest factors.

Additionally, the General Counsel’s memorandum explained that when there are questions about the appropriateness of a bargaining unit:

• the hearing may be held more than eight days after the parties receive notice of the hearing;
• the hearing may be postponed;
• the Statement of Position’s due date may be delayed for up to two days upon the necessary showing from a party; and
• the Regional Director may change the date for the election to make it an appropriate date in the circumstances of the case.

The General Counsel finally noted that employers should address the appropriateness of the proposed bargaining units in their Statements of Position. These are required under the NLRB’s election rule published just over three years ago.  Specifically, employers should explain the classifications, locations, and employee groupings that must be added to or excluded from the proposed units.  Employers should also be ready to address any issue raised by the union about the units.

For the labor professional, this is a very significant development, and requires prompt attention and consideration. If a representation case is currently pending in which a stipulated or directed election is scheduled or has been conducted, the General Counsel’s memorandum means that consideration should be given to whether the bargaining unit question should be revisited.