There has been a lot of hype about the so-called NLRB ambush election rules. These are, of course, the NLRB’s take on fixing what it deemed a broken secret ballot election scheme, one allegedly marred by employers gaming the system to delay a secret ballot election. Of the many new rules issued by the NLRB, one requires the parties to a representation petition to file a Statement of Position identifying all issues for hearing. By identifying issues the Board hoped to avoid unnecessary hearings. The Board felt this issue was so important that it adopted harsh consequences if such issues were not raised in the Statement of Position. Under NLRB Rules and Regulations Section 102.66(d), a party failing to timely file a Statement of Position “shall be precluded from raising any issue, presenting any evidence relating to any issue, cross-examining any witness concerning any issue, and presenting any argument with respect to any issue not filed in a timely Statement of Position .. .”. In other words, if the issue wasn’t raised in a timely fashion it shouldn’t be considered. This is known as issue preclusion.

In one of the first applications of the rule the NLRB concluded that the rule applied to prevent a union facing a decertification petition from litigating an issue it had not timely raised. The NLRB then promptly found a way to consider the issue anyway and dismissed the petition. In Brunswick Bowling Products LLC, 364 NLRB No. 96 (August 25, 2016), an employee filed a decertification petition seeking a vote on whether to continue union representation. The NLRB promptly sent out a notice of the required Statement of Position. The union filed the Statement of Position identifying an issue that the petition was barred by the “contract bar” principle (which holds that a currently effective collective bargaining agreement precludes the filing of a decertification petition except for the 90 to 60-day period prior to the expiration), but approximately 3 hours and 20 minutes after the deadline. The union then tried to raise the issue at the hearing and the employer objected, citing Rule 102.66(d). The hearing officer nonetheless accepted the evidence and argument. In issuing her decision, the Regional Director considered the evidence and dismissed the employee’s petition.

On appeal, the NLRB ruled that the Regional Director erred in accepting and considering the evidence. The NLRB ruled that 102.66(d) does not require a showing of prejudice by a party. The Board majority also noted that the union had not sought an extension of time to file its Statement of Position.

Nevertheless, the NLRB majority concluded that dismissal of the decertification petition was proper, explaining:

The contract bar issue was raised by the Petitioner [the employee] on the face of the petition, which stated that there was a current collective bargaining agreement covering the unit. The Regional Office then obtained a copy of the contract in the course of its prehearing investigation. The Petitioner and the Employer further confirmed the existence of the contract before the opening of the hearing when they signed a stipulation to that effect.

The Board majority concluded that these facts were sufficient evidence of contract bar.

Member Miscimarra concurred in part and dissented in part to the decision, noting that the Board’s decision was an important clarification of the election rules:

Although the Election Rule can be read to state otherwise, the Board in today’s decision rightly places substance over form. We uphold the Regional Director’s decision to reach and decide an outcome-determinative issue, even though the party in whose favor the Regional Director ruled failed to timely serve its Statement of Position in conformity with the Election Rule.

While Member Miscimarra concurred in the result he continued to dissent to the election rules themselves, as he has done from the beginning.

While the fact of the existing contract was known, it seems quite a stretch to extrapolate this fact to one where the contract bar issue was “raised” by the petitioner, an employee, who simply filled out the NLRB’s representation form. Employees are often not versed in labor law and one doubts whether a very technical issue like “contract bar” would have been in the petitioner’s mind.

This case is very important because it does provide bright line guidance about issue preclusion. Most petitions filed are representation petitions, where a union is seeking to represent the employees. So employers need to be extra careful about raising all issues in the Statement of Position in a timely fashion or be precluded from asserting them.