In December 2017, the Office of the General Counsel issued Memorandum OM 18-05. This memorandum followed the Board’s decision in PCC Structurals, Inc., 365 NLRB No. 160 (Dec. 15, 2017), which overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011) and reinstated the traditional community-of-interest standard for determining the appropriateness of a proposed bargaining unit.  The memorandum directs Regions to apply the Board’s new analysis outlined in PCC “at all stages of case processing in currently active cases” and provides the following procedural guidance to ensure that the traditional community-of-interest standard is applied consistently moving forward.

The memorandum first directs Regions to “routinely afford the parties to an R case an opportunity to argue that the PCC decision has now rendered a recently consented, stipulated or directed bargaining unit inappropriate in a currently active case.”  This is true regardless of whether the case is in a pre-election or post-election posture.  If the opportunity to revisit a unit determination is not requested by a party, the memorandum instructs Regions to issue a Notice to Show Cause directing the parties to show, with specificity, why the stipulated or direct bargaining unit is inappropriate under PCC.  The memorandum attaches model notices to show cause both for cases where the unit was determined by stipulated or consent agreement and by decision and direction of election.

Next, the memorandum emphasizes the wide range of discretion afforded to Regional Directors in handling representation cases and encourages the use of that discretion to delay hearings where necessary to fully engage in the fact intensive community-of-interest analysis. Regional Directors have the discretion to set the hearing beyond the eighth day after service of the notice of hearing in cases involving unusually complex issues.  The memorandum recognizes that a case involving the PCC community-of-interest analysis would qualify as an unusually complex issue and might require additional time to ascertain the appropriate unit and prepare evidence for hearing.  The memorandum also acknowledged the Regional Director’s discretion in setting an election date for the “earliest date practicable” and described the PCC decision as a “substantial change in law” which might require additional time to set an election date.

Finally, the memorandum provides guidance on how to streamline hearings in light of the PCC decision.  It directs Hearing Officers to explore detailed stipulations of fact in an effort to avoid lengthy testimony.  It further provides the following guidance on the level of detail that must be included in Statements of Position (“SOP”) if a proposed unit is challenged:

[I]f a party contends as part of its SOP that the proposed unit is not appropriate, the party will be required to state the basis for its contention that the proposed unit is inappropriate, and state the classifications, locations, or employee groupings that must be added to or excluded from the proposed unit to make it an appropriate unit. Mere claims or rote citations to PCC will not be sufficient.  Rather, parties should be strongly encouraged to provide in the SOP specific details in order to warrant consideration for hearing.  For example, where community-of-interest factors are at issue, such as in a PCC scenario, the Regional Director should advise the parties to include in their SOP a specific description of those factors, along with the evidence which will be provided in support.  As part of their SOP, the parties must also identify any other individuals whose eligibility they intend to challenge at the pre-election hearing and the basis for such contention.  It is equally imperative that the petitioner be prepared to respond at hearing with specificity to each issue that is raised in the SOP.