C.F.R. » Title 29 » CHAPTER I—NATIONAL LABOR RELATIONS BOARD › PART 102—RULES AND REGULATIONS, SERIES 8 › Subpart D—Procedure Under Section 9(c) of the Act for the Determination of Questions Concerning Representation of Employees 2 and for Clarification of Bargaining Units and for Amendment of Certifications Under Section 9(b) of the Act

29 C.F.R. § 102.64

Conduct of hearing

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(a) The purpose of a hearing conducted under Section 9(c) of the Act is to determine if a question of representation exists. A question of representation exists if a proper petition has been filed concerning a unit appropriate for the purpose of collective bargaining or concerning a unit in which an individual or labor organization has been certified or is being currently recognized by the employer as the bargaining representative. Disputes concerning individuals' eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted. If, upon the record of the hearing, the Regional Director finds that a question of representation exists, the director shall direct an election to resolve the question.

(b) Hearings shall be conducted by a Hearing Officer and shall be open to the public unless otherwise ordered by the Hearing Officer. At any time, a Hearing Officer may be substituted for the Hearing Officer previously presiding. Subject to the provisions of § 102.66, it shall be the duty of the Hearing Officer to inquire fully into all matters and issues necessary to obtain a full and complete record upon which the Board or the Regional Director may discharge their duties under Section 9(c) of the Act.

(c) The hearing shall continue from day to day until completed unless the Regional Director concludes that extraordinary circumstances warrant otherwise. The Regional Director may, in the director's discretion, adjourn the hearing to a different place by announcement thereof at the hearing or by other appropriate notice.

[84 FR 69593, Dec. 18, 2019, as amended at 88 FR 58101, Aug. 25, 2023]
Notes of Decisions
Cited in 24 cases (5 in the last 5 years), 1964–2023 · leading case: Chamber of Com. of the United States of Am. v. Nat'l Labor Relations Bd., 118 F. Supp. 3d 171 (D.D.C. 2015).
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Chamber of Com. of the United States of Am. v. Nat'l Labor Relations Bd., 118 F. Supp. 3d 171 (D.D.C. 2015). · cites it 7× “” 29 C.F.R. § 102.64 (a). In accordance with that understanding, the new provision permits hearing officers and regional directors to decline to hear evidence on other issues — in particular, the eligibility of individual employees to vote — that do not bear directly on that…”
Associated Builders & Contractors of Texas, Inc. v. Nat'l Labor Relations Bd., 826 F.3d 215 (5th Cir. 2016). · cites it 4× “” 29 C.F.R. § 102.64 (a). 4 Employers are now required to submit a written “Statement of Position” that identifies any basis for contending that the proposed bargaining unit is inappropriate, any challenges to voter eligibility, and “all other issues the employer intends to…”
Fedex Home Delivery v. Nat'l Labor Relations Bd., 563 F.3d 492 (D.C. Cir. 2009). · cites it 4× “See 29 C.F.R. § 102.64 (a) ("It shall be the duty of the hearing officer to inquire fully into all matters and issues necessary to obtain a full and complete record .”
Nat'l Labor Relations Bd. v. Tito Contractors, Inc., 847 F.3d 724 (D.C. Cir. 2017). · cites it 6× “” 29 C.F.R. § 102.64 (b) (2013).5 In its petition to this Court, Tito challenges the offer-of-proof procedure used by the HO and endorsed by the Board.”
Nat'l Labor Relations Bd. v. Ara Servs., Inc., 717 F.2d 57 (3rd Cir. 1983). · cites it 2× ““It shall be the duty of the hearing officer to inquire fully into all matters and issues necessary to obtain a full and complete record upon which the Board or the regional director may discharge their duties under section 9(c) of the act.”
Nat'l Labor Relations Bd. v. Air Control Prods. of St. Petersburg, Inc., 335 F.2d 245 (5th Cir. 1964). · cites it 3× “§ 159 (c), 29 C.F.R. § 102.64 (a), and whose duties transcend those of a normal adjudicatory official.”
Am. Fed'n of Labor & Cong. of Indus. Organizations v. NLRB, 57 F.4th 1023 (D.C. Cir. 2023). · cites it 2× “See 29 C.F.R. § 102.64 . If the proposed unit would not be appropriate for the purpose of collective bargaining, the Regional Director dismisses the petition; if it would be appropriate, the Regional Director issues a decision and direction of election setting parameters like…”
Nat'l Labor Relations Bd. v. Ideal Laundry & Dry Cleaning Co., 330 F.2d 712 (10th Cir. 1964). · cites it 2× “After a § 9(c) hearing (apparently in accordance with 29 C.F.R., §§ 102.64 , 102.65, and 102.66), the Regional Director directed an election in a unit consisting of the laundry and dry cleaning production and maintenance employees, excluding, inter alia, salaried and…”
The Am. Bottling Co. v. NLRB, 992 F.3d 1129 (D.C. Cir. 2021). “” 29 C.F.R. § 102.64 (a); see also id. § 102.”
Alaska Commc'ns Sys. Holdings, Inc. v. NLRB, 6 F.4th 1291 (D.C. Cir. 2021). “” 29 C.F.R. § 102.64 (b) (2017). Here, the Company presented extensive evidence at the hearing about the two Alaska-based employees and their relationship with the rest of the Cable Systems Group.”
Constellation Brands, U.S. Operations, Inc. v. Nat'l Labor Relations Bd., 842 F.3d 784 (2d Cir. 2016). “”); *788 29 C.F.R. § 102.64 (2015) (describing the conduct of hearings before hearing officers); id.”
Salem Hosp. Corp. v. Nat'l Labor Relations Bd., 808 F.3d 59 (D.C. Cir. 2015). “” 29 C.F.R. § 102.64 (a). The hearing itself is “investigatory, intended to make a full record and nonadversarial.”
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