formal comments to the Board's proposed rule. - SEIU

incorporates this requirement and makes it the norm for most representation hearings absent “special”
circumstances.
For consistency, however, we suggest that the phrase “special circumstances” be replaced by
“extraordinary circumstances” to note that any postponement of the commencement of the hearing
requires the same degree of exceptionality as does deviation from the voter list requirements of
102.62(d) and 102.67(j), or a break in continuous days of a hearing as provided in 102.64(c).
In many Regions, under current practices, the parties proceed under the presumption that the
hearing date set forth in the initial notice of hearing will not be the actual date of hearing; i.e. that it will
inevitably be extended upon request. In order for the intent of the proposed rule to be effectuated, the
parties must proceed on the presumption that the hearing date set forth in the initial notice will be the
actual date of hearing. The way to accomplish this necessary change in expectations is to replace
“special circumstances” with “extraordinary circumstances.” This would emphasize that extensions
should only be given in circumstances that go well beyond prosaic scheduling issues or the workloads of
party representatives.
We believe that seven days is a reasonable period for the parties to prepare for a representation
case hearing. First, under refonns instituted by former General Counsel Fred Feinstein, holding
hearings promptly, within 14 days after the petition was filed, became an agency best practice.
84 The
change from 14 days to 7 days will not materially affect employers’ ability to prepare their cases,
especially in light of the compelling policy reasons, set forth in Part I, to expedite the pre-hearing
process. Moreover, as discussed earlier in Part I, employers are well-aware of union organizing
campaigns long before a petition is filed. The image of the blindsided employer caught unaware by an
election petition is simply apocryphal. This is especially the case when the union makes a demand for
recognition under 9(c)(1)(A).
Some representation hearings currently proceed within seven days as a non-adversarial fact
finding process marked by cooperation between the parties. The issues joined are seldom legally
complex. Most preparation for a representation case invokes a review of the job duties of employees,
and the preparation of witnesses to explain those duties. In many cases, the Board’s proposed rule
limiting the presentation of evidence concerning disputes involving less than 20% of the unit will
alleviate the need for most witness preparation. The substantial majority of unit placement issues invoke
fewer than 20% of the employees in a proposed unit; whether that threshold will be approached will
often be readily apparent to the parties.
Office of the General Counsel Memorandum GC 96-2 (February 23, 1996); Office of the General Counsel
Memorandum GC 98-1 (January 26, 1998) (Representation Cases Best Practices Report) at 3.
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