Section 102.61(a)(8) of the National Labor Relations Board’s rules requires that a certification petition “shall contain a statement that the employer declines to recognize the petitioner as the representative within the meaning of Section 9(a) of the Act or that the labor organization is currently recognized but desires certification under the Act.” The NLRB’s standard form petition (Form NLRB 502(RC)) provides a space (block 7) for a description of a union’s bargaining demand and an employer’s response.

A union recently failed to allege that it had made any demand for voluntary recognition. Undeterred, the NLRB’s Regional Director did not dismiss the petition despite the “shall contain” language in the rule. The union prevailed in the election and the employer filed a post-election request for the Board’s review of the Regional Director’s decision.

The Board held that compliance with rule 102.61 is not mandatory, which begs the question whether other rules that also contain the word “shall” are mandatory? If so, how are employers ever to know when they must, or may, follow a rule?