Regional Director May Rerun Election Where Objections Are Uncontested, Must Use Specific Language in Notice of Rerun Election: NLRB | Practical Law

Regional Director May Rerun Election Where Objections Are Uncontested, Must Use Specific Language in Notice of Rerun Election: NLRB | Practical Law

In Dynamic Concepts, Inc., the NLRB held that where a party accused of engaging in objectionable conduct affecting a NLRB union representation election waives a hearing on that misconduct and enters a stipulation with the NLRB agreeing that the election should be rerun, the NLRB Regional Director may schedule a rerun election without the objecting party's agreement but must use the new rerun election notice template in Notice of Rerun Election.

Regional Director May Rerun Election Where Objections Are Uncontested, Must Use Specific Language in Notice of Rerun Election: NLRB

by Practical Law Labor & Employment
Published on 26 Jul 2022 • USA (National/Federal)
In Dynamic Concepts, Inc., the NLRB held that where a party accused of engaging in objectionable conduct affecting a NLRB union representation election waives a hearing on that misconduct and enters a stipulation with the NLRB agreeing that the election should be rerun, the NLRB Regional Director may schedule a rerun election without the objecting party's agreement but must use the new rerun election notice template in Notice of Rerun Election.
In Dynamic Concepts, Inc., the panel (Board) in charge of the NLRB's election functions held that where a party accused of engaging in objectionable conduct affecting a NLRB union representation election waives a hearing on that misconduct and enters a stipulation with the NLRB agreeing that the election should be rerun, the NLRB Regional Director:
  • May:
    • set aside the results of the original election without a hearing on those election objections; and
    • direct a rerun election based on that responding party's (in this case, the employer) stipulation even if the objecting party (here the union) refuses to join in the stipulation.
  • Must:
    • schedule the rerun election for an appropriate time when the circumstances permit the free choice of a bargaining representative;
    • advise employees of the rerun election based on such a unilateral stipulation, using a notice supplying details about the reasons for the rerun election; and
    • use the Board's new rerun election notice template for this circumstance.
(371 N.L.R.B. No. 117 (July 22, 2022).)
The practical implications of this decision are that the Board:
  • Authorizes NLRB Regional Directors to dispose of prospective litigation on election objections where the party accused of election misconduct foregoes litigation on those objections and agrees to a rerun election.
  • Requires NLRB Regional Directors to use the following template notice, to make employees aware of the alleged election misconduct and agreement on a rerun election:
"The election conducted on [DATE] has been set aside. The [OBJECTING PARTY] has alleged that the [OTHER PARTY OR PARTIES, SUCH AS THIRD PARTIES OR THE NLRB] interfered with the employees' exercise of a free and reasoned choice in the election by [DESCRIPTION OF ALLEGED OBJECTIONABLE CONDUCT, WITH LEVEL OF SPECIFICITY LEFT TO THE REGIONAL DIRECTOR'S DISCRETION]. The [OTHER PARTY OR PARTIES] does not contest the [OBJECTING PARTY'S] election objection(s) and agrees that a new election is warranted. Therefore, a new election will be held in accordance with the terms of this notice of election. All eligible voters should understand that they National Labor Relations Act, as amended, gives them the right to cast their ballots as they see fit and protects them in the exercise of this right, free from interference by any of the parties."