25548 Federal Register / Vol. 77, No. 83 / Monday, April 30, 2012 / Rules and Regulations 

1 76 FR 80140–45. When the Board last lost its 

quorum (in 2007), it was years—816 days to be 

precise—until the Board was reconstituted. This 

time it turned out that only six days passed until 

three more Board members were appointed, but as 

discussed in greater detail below, there was no way 

to anticipate this development. 

2These internal communications previously have 

been made public in connection with the pending 

litigation. 

NATIONAL LABOR RELATIONS 

BOARD 

29 CFR Parts 101 and 102 

RIN 3142—AA08 

Representation—Case Procedures 

AGENCY: National Labor Relations 

Board. 

ACTION: Final rule; separate concurring 

and dissenting statements. 

SUMMARY: On June 22, 2011, the 

National Labor Relations Board (the 

Board) issued a notice of proposed 

rulemaking proposing various 

amendments of its rules and regulations 

governing the filing and processing of 

petitions relating to the representation 

of employees for purposes of collective 

bargaining with their employer. 

Thereafter, on December 22, 2011, the 

National Labor Relations Board issued a 

final rule amending its regulations, 

taking effect on April 30, 2012. The final 

rule stated that any dissenting or 

concurring statements would be 

published separately in the Federal 

Register prior to the effective date of the 

rule. The purpose of this document is to 

publish the separate statements of 

Chairman Mark Gaston Pearce and 

Member Brian E. Hayes. Pursuant to the 

Board’s order providing for publication 

of the rule and the separate statements, 

neither statement constitutes part of the 

rule or modifies the rule or the Board’s 

approval of the rule in any way. 

DATES: The effective date of the rule is 

unchanged. The final rule, published 

December 22, 2011, at 76 FR 80138, will 

be effective on April 30, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Lester A. Heltzer, Executive Secretary, 

National Labor Relations Board, 1099 

14th Street NW., Washington, DC 20570, 

(202) 273–1067 (this is not a toll-free 

number), 1–866–315–6572 (TTY/TDD). 

SUPPLEMENTARY INFORMATION: The Final 

Rule issued on December 22, 2011, at 76 

FR 80138, stated that any dissenting or 

concurring statements would be 

published separately in the Federal 

Register prior to the effective date of the 

rule. The concurring statement of 

Chairman Mark Gaston Pearce and the 

dissenting statement of Member Brian E. 

Hayes. are as follows: 

Separate Concurring Statement by 

Chairman Pearce 

Chairman Pearce, concurring: 

Today the Board publishes these 

concurring and dissenting statements 

regarding the Board’s final rule 

concerning representation-case 

procedures, 76 FR 80138 (Dec. 22, 

2011). 

Much of the dissent is a close 

paraphrase of the Chamber of 

Commerce’s brief attacking this rule in 

federal court. See Chamber of 

Commerce, et al. v. NLRB, 11–2262, 

Docket 22 (D.D.C., brief filed Feb. 2, 

2012). Counsel for the Board has already 

refuted those arguments in its 

responsive brief in that litigation. Id. at 

Docket 29 (filed Feb. 28, 2012). In light 

of this history, little new is said at this 

point. 

However, for the convenience of 

readers who may not be familiar with 

that litigation, in this concurrence I will 

discuss the most salient flaws in the 

dissent. Primarily, this means 

recapitulating—often verbatim—the 

Board’s papers in the litigation. 

First, the rule provides an 

‘‘appropriate hearing’’ under Section 

9(c), and the argument to the contrary 

ignores the plain language, Supreme 

Court caselaw, and all the relevant 

legislative history. Next, the rule is also 

consistent with Section 3(b) of the Act, 

in letter and spirit, and preserves the 

opportunity to request a stay or appeal. 

The rulemaking process was fully 

consistent with all applicable legal 

requirements, and the Board gave the 

dissenter every opportunity to 

participate that was reasonably possible 

under the circumstances. Turning to the 

justification of the rule itself, the rule is 

not arbitrary and capricious. The Board 

considered and analyzed the relevant 

data, and the dissent’s arguments 

otherwise are premised on a 

misunderstanding of the purpose of the 

rule. Finally, I reject the dissent’s 

contentions that the public did not get 

a meaningful chance to comment on the 

issues in the rule because the rule is not 

a ‘‘logical outgrowth’’ of the proposal, 

and that employer speech rights are 

‘‘burdened’’ by the rule. 

Background 

On June 22, 2011, the Board issued a 

Notice of Proposed Rulemaking (NPRM) 

by a 3–1 vote, with Member Hayes 

dissenting. 76 FR 36812. The views of 

the public were sharply divided, with 

tens of thousands of comments in favor 

of the proposals and comparable 

numbers opposing them. Other 

comments agreed or disagreed only in 

part. The Board reviewed all of the 

comments and testimony, and 

considered and deliberated on the 

issues for months. During the comment 

period, then-Chairman Liebman’s term 

expired; the Board then faced the 

imminent end of the recess appointment 

of Member Becker and with it, the 

indefinite loss of a quorum.1

In light of this situation, on November 

30, 2011, the Board held a public 

meeting to deliberate and vote on how 

to proceed with the rulemaking. At the 

meeting, I put forward for consideration 

Resolution No. 2011–1, which adopted 

eight of the NPRM proposals—to be 

published in a final rule before Member 

Becker’s appointment ended—while 

deliberations continued for the rest of 

the proposals. 

At the meeting, all Board Members 

discussed the resolution in depth. The 

resolution passed by a vote of 2–1, with 

Member Hayes voting against it. 

Pursuant to the resolution, the final rule 

was prepared and circulated on 

December 9, with revisions circulated as 

they were made. In circulating the draft 

rule, I invited all Board members to 

participate in the deliberations. On 

December 14 and 15, the Board voted, 

again 2–1, on a final order instructing 

the Board Solicitor to publish the final 

rule upon approval by a majority of the 

Board. The order provided that a dissent 

or other personal statement could be 

published separately at a later date. 

Also on December 15, as Member 

Hayes had not yet circulated any 

dissent, my Chief Counsel sent an email 

asking what Member Hayes wished to 

do, and whether he would include any 

dissenting statement 

contemporaneously with the Final Rule. 

Member Hayes indicated that he could 

say whatever he needed to say in a 

single statement after the rule was 

published, and so would not be 

publishing a contemporaneous dissent.2

The rule was finalized shortly 

thereafter and published on December 

22, 2011. In general, the rule grants 

regional directors greater discretionary 

authority, while simplifying and 

consolidating Board review. The 

primary purpose of these changes is to 

increase procedural efficiency by 

eliminating unnecessary litigation. In 

addition, there may be some resulting 

improvements in the timeliness of 

Board proceedings. For example, a 

stipulated election can typically be held 

in close to half the time it takes to hold 

the election in a fully litigated case, and 

it is reasonably likely that eliminating 

unnecessary litigation may help close 


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3Public Resolution 44 (approved June 19, 1934, 

c. 677, 48 Stat. 1183), comprised the National 

Industrial Act’s enforcement machinery. 

4The language from Inland Empire quoted by the 

dissent does not answer the question in this matter. 

It is certainly true that the parties should have a 

‘‘full and adequate opportunity to present their 

objections before the * * * certification.’’ Inland 

Empire, 325 U.S. at 708. But this does not answer 

the question here, because the overwhelming 

majority of such objections literally cannot be 

litigated until after the election: ‘‘Objections relate 

to the working of the election mechanism and to the 

process of counting the ballots accurately and 

fairly.’’ Cf. NLRB v. A.J. Tower Co., 329 U.S. 324, 

334 & fn.7 (1946). 

Under the basic structure of Section 9(c), some 

issues must be litigated after the election (such as 

the fairness of the election campaign), and some 

issues must be litigated before the election (such as 

Continued 

this gap. 76 FR 80155, 80149. But, again, 

and as discussed in greater detail below, 

the uselessness of a certain litigation 

procedure is, by itself, sufficient reason 

to eliminate it, and the primary purpose 

of the rule is to remove the most 

obviously unnecessary steps in the 

representation-case process. 

Specifically, the former rules required 

litigation of individual eligibility issues 

that did not need to be decided before 

the election, and may in a given case not 

need to be decided at all. Id. at 80139– 

80140, 80164. This requirement was 

eliminated, and the regional offices can 

now control their own hearings to 

prevent litigation of any issue that need 

not be decided before the election. 

The former rules provided for preelection briefing on a fixed 7-day 

schedule after the hearing, even in 

simple cases where it was patently 

unnecessary. The new rule permits the 

regional office to choose between 

accepting briefing or hearing oral 

argument, and to determine the 

schedule and subject matter of any such 

briefing. Id. at 80140, 80170–71. 

After the direction of election, the 

former rules required the parties to file 

an immediate interlocutory request for 

discretionary Board review in order to 

preserve their rights. Id. at 80140; 

80172. The new rule eliminates this 

needless interlocutory interruption in 

most cases, permitting these issues to be 

raised instead at the conclusion of the 

regional proceeding. However, in 

‘‘extraordinary circumstances where it 

appears that the issue will otherwise 

evade review,’’ the Board will hear an 

immediate special appeal. Id. at 80162. 

The former rules suggested that the 

regional director should ‘‘normally’’ 

choose an election date at least 25 days 

(but no more than 30 days) after the 

direction of election. The express 

purpose of this waiting period was to 

give the Board an opportunity to rule on 

any interlocutory appeal that may be 

filed by a party, but even under the 

former rules, it did not serve this 

purpose: in many cases no appeal was 

filed, and, even where filed and granted, 

the election was usually held as 

scheduled while a ruling on the merits 

was pending. If the election is going to 

be held in any event, there is no reason 

to routinely wait 25 to 30 days for the 

election. The new rule gives the region 

broader discretion to select an 

appropriate election date. Id. at 80140, 

80173. 

Finally, the former rules generally 

provided for mandatory Board review of 

a ‘‘report and recommendation’’ by a 

hearing officer, without the benefit of 

any decision on the merits by the 

regional director. But the statute 

expressly contemplates discretionary 

Board review of decisions by the 

regional director, and the Board’s 

experience with discretionary review 

has proven that it is perfectly 

satisfactory. The new rule provides that 

as to determinative challenges and 

objections there will always be a 

regional director’s decision, with 

discretionary review by the Board. Id. at 

80142, 80159–61, 80173–74. 

I turn now to the specific points 

raised in the dissent. 

1. Contrary to the Dissent, the Rule 

Provides for an ‘‘Appropriate Hearing’’ 

The Board has correctly and 

repeatedly stated that the rule provides 

for an ‘‘appropriate hearing’’ consistent 

with Section 9(c) of the statute. That 

section clearly states that the purpose of 

the pre-election hearing is to determine 

whether there is a question of 

representation: 

[T]he Board shall investigate 

[representation] petition[s] and if it has 

reasonable cause to believe that a question of 

representation affecting commerce exists 

shall provide for an appropriate hearing upon 

due notice. * * * If the Board finds upon the 

record of such hearing that such a question 

of representation exists, it shall direct an 

election by secret ballot and shall certify the 

results thereof. 

29 U.S.C. 159(c). When is a hearing to 

be held? When there might be a 

‘‘question of representation.’’ And what 

must the Board decide on the record of 

the hearing? Whether ‘‘such a question 

of representation exists.’’ 

That seems plain enough to me. The 

focus of the hearing is the existence of 

a question of representation. Other 

matters, which do not implicate the 

essential issue, are within the sound 

discretion of the Board and regional 

director to decide whether to hear. 

The dissent is absolutely correct to 

state that ‘‘the reference [in Section 9(c)] 

to an ‘appropriate’ hearing connotes a 

relative, flexible standard.’’ As 

discussed below, the word 

‘‘appropriate’’ was carefully chosen by 

Congress to grant the Board very broad 

discretion. 

In the very next breath, however, the 

dissent concludes precisely the 

opposite, stating that ‘‘appropriate’’ 

means that the Board is required to 

hear—in each and every litigated case— 

evidence on a host of contested issues 

that do not need to be decided before 

the election. 

That is not flexibility. To require 

litigation of such issues would tie the 

Board’s hands, so that it could not 

adjust or control the issues litigated to 

fit the circumstances. By contrast, the 

Board’s rule is explicitly discretionary, 

and frees the Board to take evidence on 

the appropriate issues and at the 

appropriate time for the particular case. 

It is the dissent, not the Board, that is 

trying to transform the word 

‘‘appropriate’’ into an inflexible 

statutory limit on the form and contents 

of the hearing. 

The statute’s plain language should 

settle the matter. But, in case any doubt 

remained, the Supreme Court has 

already reviewed all the relevant 

legislative history and has expressly 

held that the whole point of the term 

‘‘an appropriate hearing’’ in the 1935 

Act is to ‘‘confer[] broad discretion upon 

the Board as to the hearing [required].’’ 

Inland Empire Council v. Millis, 325 

U.S. 697, 706–710 (1945). 

[U]nder Public Resolution 44, which 

preceded § 9(c), the right of judicial hearing 

was provided. The legislative reports cited 

above show that this resulted in preventing 

a single certification after nearly a year of the 

resolution’s operation and that one purpose 

of adopting the different provisions of the 

Wagner Act was to avoid these consequences. 

In doing so Congress accomplished its 

purpose not only by denying the right of 

judicial review at that stage but also by 

conferring broad discretion upon the Board 

as to the hearing which § 9(c) required before 

certification. 

325 U.S. at 708 (emphases added).3

Thus, the Board’s investigation is 

‘‘informal’’ and the language 

‘‘appropriate hearing’’ is broad and 

general, designed to give ‘‘great 

latitude’’ to the Board. Id. at 706–708. 

As the Supreme Court stated, the 

purpose of this ‘‘latitude’’ is to help the 

Board keep its process timely, efficient, 

and free of the unnecessary litigation 

that bogged down the former process. 

That is precisely what the new rule is 

designed to do. 

The dissent tries to twist Inland 

Empire to create an inflexible scheme 

for pre-election litigation of every issue, 

even if it will not be decided before the 

election.4 But the Supreme Court’s 


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the existence of a question of representation). The 

question here is what to do with the rest of the 

many and varied issues that can arise, which can 

be litigated either before or after the election. Inland 

Empire makes clear that the term ‘‘appropriate’’ is 

not designed to limit Board discretion on this issue. 

The dissent’s efforts to read it to mean the opposite 

are unavailing. 

Ever since Inland Empire, the courts have 

continued to take a very broad and accommodating 

view of what will satisfy the requirement of an 

‘‘appropriate’’ pre-election hearing. In Utica Mutual 

Ins. Co. v. Vincent, 375 F.2d 129, 133–34 (2d Cir. 

1967), for example, Judge Friendly followed the 

Supreme Court’s statement that the ‘‘appropriate’’ 

hearing was within Board discretion. As the court 

noted, due process concerns were overblown: ‘‘A 

representation hearing is simply a preliminary to an 

election which may or may not result in a 

certification; if it does, and the employer refuses to 

bargain, he is entitled to present in an unfair labor 

practice proceeding any material evidence he was 

prevented from introducing at a hearing under 

§ 9(c).’’ 

5For the same reason, none of the still later 

history cited by the dissent is relevant either. 

6The same is true of the law review articles 

quoted by the dissent, none of which suggest that 

Section 9(c) requires litigation of issues that will 

not be decided. See Steven E. Abraham, How the 

Taft-Hartley Act Hindered Unions, 12 Hofstra Labor 

Law Journal 1, 12 (1994); Craig Becker, Democracy 

in the Workplace: Union Representation Elections 

and Federal Labor Law, 77 Minn. L. Rev. 495, 516 

fn. 91, 519 fn. 102 (1993). 

7Pacific Greyhound Lines also illustrates the 

dangers of lengthy litigation. Petitions were filed in 

June 1938. About 144 days later, in October 1938, 

a decision and direction of election was issued, 

which was later amended, and the election was not 

completed until 204 days after the petition, in late 

December 1938. Id. at 120–22. That the Board in 

one case from the 1930s chose to permit such 

lengthy proceedings does not tie the hands of all 

future Boards; rather, as Inland Empire established, 

the ‘‘appropriate hearing’’ is within Board 

discretion. 

opinion is squarely aimed at achieving 

the opposite result: increased Board 

flexibility in controlling the litigation. 

In the quest to find some support for 

this inflexible view of ‘‘appropriate,’’ 

the dissent cites inapposite authority, 

including a statement by Senator Taft in 

1947 and an irrelevant Third Circuit 

case. Then, the dissent cites a trio of 

terse Board decisions that have already 

been extensively discussed in the 

Board’s final rule. These points are 

addressed in turn. 

First, the dissent relies upon a passing 

comment in a 1947 statement by Senator 

Taft about a failed amendment to the 

NLRA. 93 Cong. Rec. 6858, 6860 (June 

12, 1947). At the outset, it should be 

noted that such post-enactment history 

sheds no reliable light on the meaning 

of the word ‘‘appropriate’’ as used by 

Congress 12 years earlier. See Huffman 

v. OPM, 263 F.3d 1341, 1354 (Fed. Cir. 

2001) and cases discussed therein.5

But even assuming this statement was 

relevant, it has been badly 

misinterpreted by the dissent. The 

dissent views Senator Taft as endorsing 

the litigation of eligibility questions, 

regardless of whether they would need 

to be decided. However, in the crucial 

words relied upon by the dissent, what 

Senator Taft actually said was that the 

Board would ‘‘decide’’ voter eligibility. 

Senator Taft made no mention of 

litigation: 

[T]he function of hearings * * * [is] to 

determine whether an election may properly 

be held at the time; and if so, to decide 

questions of unit and eligibility to vote. 

Did Senator Taft mean that the Board 

must decide all questions of eligibility 

to vote before the election? Of course 

not. This would have been in conflict 

with the well-established challenge 

procedure for deciding voter eligibility 

post-election. The Supreme Court had 

expressly held—in 1946, the year before 

this statement was made—that the 

Board was allowed to wait to decide 

eligibility to vote via the challenge 

procedure. NLRB v. A.J. Tower Co., 329 

U.S. 324, 330–35. 

So what did Senator Taft mean? He 

was generally describing the ‘‘function,’’ 

not the requirements, of hearings, and 

did not mean to suggest that the Board 

must resolve all such issues pre-election 

in every case.6 And his mention of ‘‘unit 

and eligibility to vote’’ accurately 

reflected the reality that ‘‘[b]ecause the 

representation election is held only 

within the approved unit’’ (Local 1325, 

Retail Clerks Intern. Ass’n v. NLRB, 414 

F.2d 1194, 1199 (D.C. Cir. 1969)), the 

designation of an appropriate unit 

largely determines who will vote in the 

election. Indeed, the definition of the 

unit, together with other voting 

eligibility formulae (such as the payroll 

period for eligibility), necessarily 

identifies the core group of eligible 

voters. See, e.g., NLRB v. Hondo Drilling 

Company, 428 F.2d 943 (5th Cir. 1970). 

Accordingly, Senator Taft’s remarks are 

fully consistent with the new Rule. See 

76 FR 80165 n.116. 

Simply put, the dissent misinterprets 

Senator Taft. And, in any event, his 

statement—twelve years after the fact— 

sheds no reliable light on the intent of 

Congress in the Wagner Act. 

Regarding NLRB v. SW. Evans & Son, 

181 F.2d 427 (3d. Cir. 1950), the dissent 

claims that the ‘‘inescapable inference’’ 

is that the ‘‘appropriate hearing * * * 

must permit litigation of all contested 

issues of substance.’’ But, in fact, the 

Third Circuit expressly disclaimed any 

suggestion that it might be interpreting 

the ‘‘appropriate hearing’’ requirement 

of the statute, and relied explicitly and 

exclusively upon the language in the 

Board’s regulations themselves. The 

court stated: 

Moreover, we need not determine whether 

we are presented with a situation in which 

the statute may be said to control on the issue 

of a pre-election hearing. For, in our view, 

the solution to the problem presented is to 

be found in the Rules and Regulations of the 

Board. 

Id. at 429–30. Those rules required 

hearings on ‘‘substantial issues.’’ They 

did not and could not turn this standard 

into a statutory requirement of the 1935 

Act. 

The Board’s vacated decision Pacific 

Greyhound Lines, 22 NLRB 111, 123–24 

fn. 37 (1940), is also inapposite. 

Although the Board stated that the 

hearing ‘‘may’’ include many issues, 

this was not mandatory, and nothing in 

the decision suggests that the 1940 

Board viewed Section 9 as mandating 

litigation of every voter eligibility issue 

prior to the election. Indeed, the focus 

of the litigation was actually the 

appropriate unit, and the Board decided 

to defer decision on these unit questions 

in part until after the ballots were 

opened and counted. Id. at 121–23.7

In any event, the Board is allowed to 

change its mind—particularly about 

something as irrational as a reading of 

the statute that would imply a 

requirement to litigate issues that will 

not be decided. Which leads to the final 

point in this discussion: the 1990’s trio 

of Board cases, including BarreNational, regarding the pre-election 

hearing. Even assuming these cases 

rested upon the statute, rather than the 

regulations, the statutory analysis in 

these cases is non-existent. There is no 

meaningful discussion of the statutory 

language, no analysis of the legislative 

history or the plain language of Section 

9(c), and no explanation for why it 

would make sense to require litigation 

of issues that will not be decided—in 

short, nothing whatsoever to 

substantively support the supposed 

interpretation of the statute. The 

persuasiveness of the ‘‘analysis’’ in 

these cases has already been fully 

addressed by the final rule. 

The D.C. Circuit recently reiterated 

that ‘‘the APA allows an agency to adopt 

an interpretation of its governing statute 

that differs from a previous 

interpretation and that such a change is 

subject to no heightened scrutiny.’’ Air 

Trans. Ass’n of Am. v. NMB, 663 F.3d 

476, 484 (D.C. Cir. 2011) (citing FCC v. 

Fox Television Studios, Inc., 129 S.Ct. 

1800, 1810 (2009)). The court proceeded 

to find that ‘‘for purposes of APA 

review, the fact that the new rule 

reflects a change in policy matters not 

at all. [T]he [National Mediation] Board 

‘articulated a rational connection 

between the facts found and the choice 


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8Because the dissent straightforwardly borrows 

the Chamber’s arguments about North Manchester 

and the minority views in Barre-National, I would 

be remiss if I did not mention the shortcomings of 

these arguments already identified in the litigation. 

North Manchester is, at most, imprecise in its 

description of Barre-National, and there is 

absolutely no indication that North Manchester was 

intended to make any change to the rationale of 

Barre-National. See 328 NLRB 372, 372–73 (1999). 

Meanwhile, the view articulated in the concurrence 

and dissent of Barre-National demonstrates quite 

the opposite of Member Hayes’ claims that the 

majority holding rests on the statute. That the 

concurrence was forced to make this point 

separately supports, rather than undermines, the 

Board’s reading of Barre-National as resting on the 

regulations. The views of a minority of the Board 

about what the majority meant are not authoritative. 

9Contrary to the dissent’s reading, the stay 

language would not be ‘‘render[ed] meaningless’’ 

even if the rule completely prohibited stays (which 

it does not), because the statutory language is 

designed only to grant authority to the Board to 

routinely refuse to grant stays, and does not require 

the Board ever to exercise its power to issue 

specifically ordered stays. 

made.’ ’’ Id. (quoting City of Portland v. 

EPA, 507 F.3d 706, 713 (D.C. Cir. 2007). 

So, too, here, Barre-National is entirely 

irrelevant to whether the current 

statutory interpretation of the Board is 

reasonable.8

Aside from Inland Empire (which 

undermines the dissent), there is no 

meaningful analysis of the statutory text 

in any of the cases cited by the dissent. 

Thus, there is no support for the 

dissent’s interpretation of the statute. 

2. Contrary to the Dissent, the Rule Is 

Consistent With Section 3(B) of the Act 

The rule generally delays Board 

review until the conclusion of the 

regional proceeding. But, if a party 

wants immediate review or a stay, it can 

seek it, and it will be granted in 

extraordinary circumstances where the 

issue would otherwise evade review. 

This result is not all that different 

from current procedures, under which 

pre-election review is rarely sought and 

very rarely granted. When the Board 

does grant review, it usually does not 

issue a decision on the merits until after 

the election has been held; meanwhile, 

pre-election stays are so rare as to be 

almost mythical creatures. 

The rule’s approach is very similar to 

procedures in the subpoena context, 

which the Supreme Court has already 

approved. See NLRB v. Duval Jewelry 

Co. of Miami, Inc., 357 U.S. 1, 6–7 

(1958). The Court held: ‘‘One who is 

aggrieved by the ruling of the regional 

director or hearing officer can get the 

Board’s ruling. The fact that special 

permission of the Board is required for 

the appeal is not important.’’ The Court 

also noted that, even in meritorious 

special appeals, ‘‘where an immediate 

ruling by the Board on a motion to 

revoke is not required, the Board defers 

its ruling until the entire case is 

transferred to it in normal course.’’ Id. 

Here, too, special permission offers an 

avenue for requesting immediate 

review, but where immediate review is 

not required, the Board can simply 

address the issue upon completion of 

the regional office’s processing of the 

case. 

The dissent argues that the rule 

unlawfully eliminates a ‘‘right to 

request’’ a stay or Board review before 

the election. First, there is no such right 

in the statute. But even if there were, the 

rule plainly does not eliminate any such 

right. 

The dissent argues that Section 3(b) 

implicitly suggests a right to request 

review before the election because it 

mentions the possibility of stays. But, by 

its plain terms, the statute does not 

speak to when a request for review must 

be decided by the Board, and the ‘‘stay’’ 

language reflects a grant of discretion to 

the Board, not a limit. Section 3(b) states 

in relevant part: 

The Board is [] authorized to delegate to its 

regional directors its powers [] to determine 

[issues arising in representation 

proceedings], except that upon the filing of 

a request therefor with the Board by any 

interested person, the Board may review any 

action of a regional director delegated to him 

[], but such review shall not, unless 

specifically ordered by the Board, operate as 

a stay of any action taken by the regional 

director. 

29 U.S.C. 153(b). That the Board ‘‘may 

review’’ any action of a regional director 

does not mean that the Board must rule 

on requests for review at any particular 

point in time. Indeed, the Board 

sometimes decides such requests after 

the election. 76 FR 80168, 80172 (and 

cases cited therein). Nothing requires 

the Board to rule within a certain 

number of days of the regional director’s 

action, or imposes any other time limit 

on review. 

The ‘‘stay’’ language is not phrased as 

a limit on Board power. To the contrary, 

the language only clarifies that, 

whenever review is granted, either 

before or after the election, it will not 

automatically operate as a stay. The stay 

language of the statute expressly 

contemplates that the Board’s failure to 

rule on a request for review would have 

no impact on the progress of ongoing 

regional election proceeding.9 Nothing 

in the text of Section 3(b) prevents the 

regional director from continuing to 

process the election proceeding to 

completion while a request for review is 

pending. 

But, even assuming that the statute 

somehow required an immediate 

opportunity to request a stay or Board 

review, both the former rules and the 

current rules provide that opportunity, 

through the special-appeal procedure. In 

a sense, the request-for-review 

procedure was always beside the point 

here, because it applied to the direction 

of election, whereas the request for a 

special appeal was available for any of 

the multitude of other regional office 

decisions made before the election. 

So, if we assume that Section 3(b) 

required an immediate opportunity for 

review of ‘‘any action’’ of the region, it 

was always and only the special appeal 

that met that requirement. The dissent 

admits that special appeals are very 

rarely granted in current practice, and 

even admits that the special appeal will 

still exist under the rule. But, the 

dissent avers that this right to seek a 

stay and appeal is ‘‘entirely illusory’’ 

simply because it is granted under a 

‘‘severely narrow standard’’ in the rule. 

This argument lacks merit. 

Nothing in Section 3(b) even arguably 

speaks to the standard the Board is to 

apply in granting or denying review— 

whether pre-election or post-election. It 

says, again, that the Board ‘‘may’’ grant 

review, without imposing any limit on 

this discretion. As the Supreme Court 

has explained, ‘‘Congress has made a 

clear choice; and the fact that the Board 

has only discretionary review of the 

determination of the regional director 

creates no possible infirmity within the 

range of our imagination.’’ Magnesium 

Casting Co. v. NLRB, 401 U.S. 137, 142 

(1971). As the Board pointed out, 

‘‘extraordinary circumstances’’ is not 

the same as ‘‘no circumstances.’’ 76 FR 

80163. As a matter of common sense, 

pre-election review serves no purpose in 

the ordinary case, where final review is 

more than adequate. 

3. Contrary to the Dissent, the Board 

Followed an Appropriate Rulemaking 

Procedure, and the Dissenter Had 

Adequate Opportunities To Participate 

The dissent argues that the Board 

should not make rules without three 

affirmative votes, and that it should 

have waited 90 days for the dissent 

before publishing the rule. The dissent 

admits that these are discretionary 

choices, but contends that these choices 

were inadequately explained. However, 

under Vermont Yankee Nuclear Power 

Corp. v. Natural Res. Def. Council, Inc., 

435 U.S. 519 (1978), the procedure that 

the Board follows in rulemaking is 

subject to only the most narrow review, 

and little if any explanation of these 

procedural choices is necessary. In any 

event, the Board’s choices were fully 

explained: it makes no sense to require 

three affirmative votes for rulemaking, 


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10The dissent also cites two notices of proposed 

rulemaking that included a dissent, both published 

within the last year and a half, and both with 

Member Hayes as the lone dissenter. 

and the Board gave the dissenter every 

reasonable opportunity to participate 

under the circumstances. 

A. Rulemaking Procedure Is Within 

Board Discretion, and the Board Acted 

in Good Faith 

The dissent appears to acknowledge 

that the legal standard for overturning 

the rule on a ground like this is 

supplied by Vermont Yankee, but, by 

also arguing that the rulemaking 

procedure was ‘‘arbitrary and 

capricious,’’ the dissent misunderstands 

the nature of Vermont Yankee review. 

The ‘‘formulation of procedures [i]s 

basically to be left within the discretion 

of the agencies.’’ Vermont Yankee, 435 

U.S. at 524. Otherwise, ‘‘all the inherent 

advantages of informal rulemaking 

would be totally lost.’’ Id. at 546–47 

(rejecting ‘‘Monday morning 

quarterbacking’’); Nat’l Classification 

Committee v. United States, 765 F.2d 

1146, 1149–52 (D.C. Cir. 1985). 

Review under the arbitrary and 

capricious standard is not a loophole in 

this policy of extraordinary deference. 

To be sure, in some sense, arbitrary and 

capricious review ‘‘imposes a general 

‘procedural’ requirement of sorts by 

mandating that an agency take whatever 

steps it needs to provide an explanation 

that will enable the court to evaluate the 

agency’s rationale at the time of 

decision.’’ Pension Ben. Guaranty Corp. 

v. LTV Corp., 496 U.S. 633, 653–55 

(1990). 

But, so long as the rule itself is 

adequately explained, the courts cannot 

prescribe ‘‘specific procedural 

requirements that have no basis in the 

APA.’’ Id.; see Natural Res. Def. Council 

v. NRC, 216 F.3d 1180, 1189–91 (D.C. 

Cir. 2000); JEM Broadcasting Co. v. FCC, 

22 F.3d 320, 326–28 (D.C. Cir. 1994) 

(notice-and-comment rulemaking not 

required in agency’s promulgation of 

‘‘hard-look’’ rules intended to 

streamline license review process). 

Thus, it is irrelevant whether the agency 

explained its wholly discretionary 

choices about the procedure of 

rulemaking—that is not required by the 

APA. So long as the substance of this 

rule is adequately explained, it cannot 

be arbitrary and capricious. 

The Supreme Court has hinted that 

there might be a narrow exception for ‘‘a 

totally unjustified departure from well 

settled agency procedures of long 

standing,’’ but such an exception—if it 

exists—has been applied rarely if at all. 

Vermont Yankee, 435 U.S. at 542. And, 

as in this case, where there are reasons 

to distinguish prior traditions—such as 

the imminent loss of an agency 

quorum—there is no ‘‘totally 

unjustified’’ departure. See Consol. 

Alum. Corp. v. TVA, 462 F.Supp. 464, 

476 (M.D. Tenn. 1978). In the absence 

of extraordinary evidence of bad faith, 

the courts simply do not inquire into 

discretionary choices made regarding 

the rulemaking procedure. See Air 

Trans. Assoc. of Am., Inc. v. NMB, 663 

F.3d 476, 487–88 (D.C. Cir. 2011). 

Consider the contrast between the 

Board’s procedure here and a very 

recent example considered by the D.C. 

Circuit involving National Mediation 

Board rulemaking. 75 FR 26062. The 

NMB majority, according to a letter 

written by the dissenter to members of 

Congress, at first refused to allow her to 

publish a dissent, and then gave the 

dissenter precisely 24 hours in which to 

consider the proposed rule and prepare 

her dissent—which she did. See Air 

Trans. Assoc. of Am., Inc. v. NMB, 663 

F.3d at 487–88. If she had not met this 

timeline, the majority would have 

published without any opportunity for 

her to publicly express her views. Id. 

Little if any explanation was given by 

the majority for this choice. But the 

court refused even to open discovery on 

the issue because, although the letter 

‘‘reflects serious intra-agency discord’’ 

and the majority’s ‘‘treatment of their 

colleague fell well short of ideal,’’ it did 

not meet the standard of a ‘‘strong 

showing of bad faith or improper 

behavior’’ and therefore was not enough 

to permit further inquiry. Id. Here, the 

Board’s procedure was far more 

accommodating. If, as the D.C. Circuit 

held, the 24 hours provided by the NMB 

was enough, then the Board’s procedure 

in this rulemaking was more than 

adequate. Id. 

I have no desire to reexamine, in 

public, the internal details of the 

process leading up to the Board’s 

issuance of the final rule. It is enough 

to say that a fair-minded student of the 

existing public record can only 

conclude that Member Hayes was given 

ample opportunity to participate in the 

rulemaking process and that, by his own 

choosing and for his own reasons, he 

chose to opt out for as long as possible. 

There is clearly no legal requirement 

for three affirmative votes. The Supreme 

Court has held that a majority of the 

quorum is all the law requires. FTC v. 

Flotill Prods., Inc. 389 U.S. 179, 185 fn.9 

(1967). So, too, as the dissent appears to 

concede, no law requires the Board to 

wait for a dissent. 76 FR 80146 & fn.26; 

see Jeffrey S. Lubbers, The Potential of 

Rulemaking by the NLRB, 5 FIU L. Rev. 

411, 431 fn.102 (2010) (observing that 

‘‘APA does not address the possibility of 

dissents in agency rulemakings’’). 

Agencies can issue decisions without 

awaiting dissenting or other separate 

statements. See, e.g., S. Cal. Edison Co., 

124 FERC ¶ 61308, 2008 WL 4416776 at 

**8 (2008); Marshall J. Breger & Gary J. 

Edles, ‘‘Established by Practice: the 

Theory and Operation of Independent 

Federal Agencies,’’ 52 Admin. L. Rev. 

1111, 1248–49, 1256–57, 1262–63, 1288 

(2000) (noting that the Farm Credit 

Administration, the Federal Energy 

Regulatory Commission, the Federal 

Maritime Commission, and the Surface 

Transportation Board all allow this 

practice). 

B. The Board had Good Reason To Issue 

the Final Rule Without Waiting for a 

Dissent 

The dissent’s suggestion that the 

Board should nonetheless be bound by 

past agency practice is also bad policy. 

Internal agency procedure is subject to 

extraordinary deference for good reason. 

Administrative efficiency demands that 

agencies be permitted to adapt internal 

procedures based on the particular 

circumstances in which they find 

themselves. See FCC v. Pottsville 

Broadcasting Co., 309 U.S. 134 (1940). 

To transform very limited past agency 

experience into rigid internal 

procedural requirements would deprive 

the agency of the essential ability to 

adapt its procedures to the differing 

needs imposed by differing 

circumstances. 

The error of the dissent’s suggestion 

becomes even more obvious when the 

agency experience and procedure at 

issue here are examined. In arguing that 

the final rule should not have issued 

without a contemporaneous dissent, the 

dissent relies on an ‘‘unbroken 76-year 

practice.’’ That cited ‘‘practice’’ consists 

of just two final rules that included a 

dissent, issued in 1989 and 2011, 

respectively, and only one in which 

Member Hayes was not the dissenter.10

Board policy ES 01–01, upon which the 

dissent relies, is expressly limited to 

case adjudications, as evident in the 

terms ‘‘full Board or Panel cases’’ in the 

policy. See NLRB Executive Secretary’s 

Memorandum No. 01–1, Timely 

Circulation of Dissenting/Concurring 

Opinions (January 19, 2001). Thus, even 

if a well-established internal practice 

could bind an agency in some instances, 

this would not be such an occasion. 

It is also significant that the Board 

was facing unusual circumstances at the 

time that it ordered issuance of the rule 

with any dissent or concurrence to issue 

on a later date. The Supreme Court had 

recently ruled that the Board could not 

issue decisions without a quorum of at 


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11Order Contingently Delegating Authority to the 

General Counsel, 76 FR 69768 (Nov. 9, 2011); Order 

Contingently Delegating Authority to the Chairman, 

the General Counsel, and the Chief Administrative 

Law Judge, 76 FR 73719 (Nov. 29, 2011); Special 

Procedural Rules Governing Periods When the 

National Labor Relations Board Lacks a Quorum of 

Members, 76 FR 77699 (Dec. 14, 2011). 

12 76 FR 69768; 76 FR 73719. 

13 Id. 

14A fourth measure, adding a fifth section to 

Subpart X concerning representation cases, was not 

approved by Member Hayes. 76 FR 82131, 82132 

(Dec. 30, 2011). As recounted above in the 

‘‘Background’’ section, Member Hayes also voted 

against the order providing for publication of the 

final rule with separate dissenting and concurring 

statements to be published at a later date. 

15As previously explained, these internal Board 

communications were previously made public in 

connection with the litigation challenging the Rule. 

least three members in place, New 

Process Steel L.P. v. NLRB, U.S., 130 

S.Ct. 2635, 2639–42 (2010), and the 

appointment of one of the Board’s three 

members was set to expire at the end of 

the congressional session, no later than 

January 3, 2012, and possibly weeks 

earlier. The last time that the Board’s 

membership had fallen to two, it had 

taken over 27 months for additional 

members to be installed. The Board had 

expended significant resources in the 

rulemaking effort, resources that might 

very well have been wasted if the Board 

lost a quorum before the process 

reached fruition. Under these 

circumstances, it was perfectly 

reasonable for the Board to defer the 

publication of members’ personal 

statements, rather than delay issuance of 

the rule beyond the date when the 

Board would lose its quorum in order to 

permit those personal statements to be 

published simultaneously with the rule. 

We now know that the Board did lose 

its quorum, but only for a few days. 

Around noon on January 3, 2012, 

Member Becker’s appointment ended. 

On January 9, 2012, three new members 

were sworn in pursuant to recess 

appointments by the President, bringing 

the Board to full strength. 

The dissent argues—in hindsight— 

that these circumstances did not 

warrant any departure from procedures 

that would ordinarily have been 

followed. At the time, however, that was 

not how the Board, including Member 

Hayes, assessed the situation. In 

November and December 2011, the 

Board issued a series of orders and rules 

delegating some of the Board’s functions 

in the absence of a quorum and creating 

a new Subpart X of the Board’s Rules 

and Regulations contingently modifying 

some of the Board’s procedures.11 The 

orders recited that the Board 

‘‘anticipate[d] that in the near future it 

may, for a temporary period, have fewer 

than three Members of its full 

complement of five Members,’’ 

specifically citing the approaching end 

of Member Becker’s service.12 Each of 

these measures was deemed to be 

necessary in order to ‘‘assure that the 

Agency [would] be able to meet its 

obligations to the public to the greatest 

extent possible.’’ 13 And each of these 

measures was approved by all of the 

members of the Board, including 

Member Hayes.14

The dissent also asserts that the 

December 14 announcement of the 

President’s intention to nominate 

Sharon Block and Richard Griffin for 

seats on the Board was an indication 

that new member appointments were 

imminent. However, it ignores the facts 

that Terence Flynn’s nomination had 

been pending for almost a year at the 

time of his appointment, and that the 

only other recess appointments to the 

Board by President Obama, those of 

Craig Becker and myself, had been made 

more than eleven months after the 

announcement of intent to nominate. In 

short, there was every reason to believe 

that the Board would be without a 

quorum for a substantial period of time. 

Similar concerns were persuasive in 

Consolidated Aluminum, to give one 

example, where the TVA sped up its 

decision-making process because the 

resignation of one of its members 

threatened to deprive the agency of a 

quorum. 462 F.Supp. at 472. The court 

held that, even assuming that the TVA 

had deviated from a ‘‘well settled’’ 

tradition, the change was lawful for 

many reasons, including because the 

impending loss of a quorum was good 

reason to move quickly. Id. at 476. Thus, 

here, even if ES–01–1 were somehow 

binding and applicable to rulemaking 

(neither of which is true), departure is 

permitted on a ‘‘case-by-case basis’’ for 

‘‘good cause.’’ NLRB Executive 

Secretary’s Memorandum No. 01–1 at 2. 

The imminent loss of a quorum was 

good cause to give the dissenter 90 days 

to draft a dissent after publication of the 

rule, but before the effective date. 

Justice Ginsburg’s article cited by the 

dissent points out the value of 

dissenting opinions as a vehicle for the 

exchange of ideas among members of a 

collegial decision-making body. 

Dissents are not, however, the only such 

vehicle. Significantly, my colleague 

does not assert that he was in any way 

deprived of an opportunity to engage in 

a collegial decision-making process. 

The procedure followed here 

accommodated the concerns addressed 

in Justice Ginsburg’s article to the 

greatest extent possible while 

addressing the exigencies of the 

possibility of a loss of quorum. Indeed, 

the Supreme Court itself has issued a 

decision with dissent to follow when 

time constraints so required. SEC v. 

Chenery Corp., 332 U.S. 194, 209 (1947) 

(releasing the majority opinion before 

the dissent, and stating that dissent 

would follow because there was ‘‘not 

now opportunity for a response 

adequate to the issues raised * * * 

Accordingly, the detailed grounds for 

dissent will be filed in due course.’’). 

The dissenter has had ample 

opportunity to participate. My email to 

Member Hayes on December 9 was an 

open invitation to him to engage with 

his colleagues, and, if he so chose, draft 

a contemporaneous dissent. He had 

sufficient time to do so, and indeed 

could have drafted one dissent to 

accompany the rule, followed by the 

longer statement published today. He 

chose otherwise. On December 15th my 

Chief Counsel sent an email asking 

whether the dissenter wished to include 

any dissenting statement in the Final 

Rule. The dissenter indicated that he 

did not, because he could add a dissent 

at a later date, and could say whatever 

he needed to say in a single statement. 

It seems unfair to blame the Board for 

the loss of an opportunity that the 

dissenter deliberately chose not to 

take.15

Finally, the issues that are raised in 

Member Hayes’ statement today show 

that the Board was fully aware of his 

policy concerns about the rule when it 

issued the final rule, and so would 

likely have gained little from a written 

dissent. That a draft dissent could, in 

some cases, have some influence on the 

majority is therefore of little 

consequence here. 

The Board had good cause to move 

forward with the rule without waiting 

any longer. 

C. The Board Explained Why There Is 

No Reason To Require Three ‘‘Yes’’ 

Votes for Rulemaking 

The Board acted by a majority vote of 

the quorum, as authorized by statute. 

Requiring an additional, third ‘‘yes’’ 

vote makes no sense for rulemaking. 76 

FR 80145–46. The Board has a tradition 

of requiring a third vote to overturn 

precedent in adjudication, but the 

whole point of the tradition is to 

provide stability to an inherently 

unstable adjudicatory process for 

making rules of law. Id. This purpose 

flows directly from the fact that 

‘‘[u]nlike other federal agencies, the 

NLRB promulgates nearly all of its legal 

rules through adjudication rather than 

rulemaking.’’ Local Joint Exec. Bd. of 

Las Vegas v. NLRB, 657 F.3d 865, 872 


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16Responses concerning the procedural nature of 

the rule, and whether Barre-National was 

‘‘overruled,’’ are contained elsewhere in this 

statement. 

17See, e.g., 76 FR 80138; Explanation of Election 

Process Changes, available at http://www.nlrb.gov/ 

node/3608. 

(9th Cir. 2011); see also Samuel 

Estreicher, ‘‘Policy Oscillation at the 

National Labor Relations Board: A Plea 

for Rulemaking,’’ 37 Admin. L. Rev 163 

(1985) (explaining in detail how 

‘‘overruling’’ past cases through the 

rulemaking process would lead to 

greater certainty and consistency in the 

law). Thus, where the Board does utilize 

rulemaking, the basic purpose of the 

tradition is inapplicable. 

The dissent apparently maintains that 

notice-and-comment rulemaking does 

not give the rule any added stability 

over adjudication. In this view, the 

Board could mechanically and rapidly 

issue ‘‘another proposed rule revision, 

another notice-and-comment period, 

and a rationally justified rule.’’ This is 

a curious supposition, particularly 

when countless commentators on Board 

practice, Congressional encouragement 

of rulemaking generally, the collective 

administrative experience of the federal 

government, past Board experience with 

rulemaking, hints from the Supreme 

Court, and basic common sense 

uniformly suggest that rulemaking is 

more stable than adjudication. The 

Board’s decision here was reasonably 

explained.16

4. The Rule Was Adequately Explained 

The dissent denounces a caricature of 

the rule as arbitrary and capricious, 

while ignoring the reasoned explanation 

that the Board actually provided for the 

rule. The structure of the dissent’s 

argument appears to be as follows: (1) 

The sole purpose of the rule is to have 

faster representation proceedings; but 

(2) those proceedings are (generally) fast 

enough already; and, in any event, (3) 

the Board did not consider statistically 

whether each change in the rule will 

necessarily lead to faster proceedings. I 

will address the first two points in turn, 

then analyze the particular changes in 

the rule. 

From the outset, the dissent fails to 

come to terms with the actual rule’s 

principles of good administrative 

practice, focusing instead almost 

exclusively on how the rule will lessen 

delay. The dissent’s focus on delay and 

time leads it further and further from 

adequately grappling with the Board’s 

primary and clearly-articulated reason 

for propounding the rule: to ‘‘reduce 

unnecessary litigation.’’ 17 Unnecessary 

litigation, even when not accompanied 

by delay, can and should be eliminated. 

The dissent entirely misses this point. 

And so, the dissent wonders why the 

Board focuses on litigation, when there 

are other sources of delay. The answer 

is that this rule is primarily about 

reducing unnecessary litigation, with 

reducing delay as an important but 

collateral purpose. According to the 

dissent, the Board assumes that 

litigation always leads to undesirable 

delay. The Board does no such thing: It 

simply posits that litigation that is 

unnecessary is also undesirable. 

In focusing on time, the dissent 

pretends that the rule’s changes are 

designed solely to ensure a union’s 

rapid certification, thus implicitly 

suggesting that the rule’s purpose is 

improper. But the rule’s improved 

procedures apply equally to 

decertification elections, thus helping 

employees to get the election they 

desire, whether to certify or decertify a 

bargaining representative, without 

wading through litigation that is 

unnecessary and costly to the parties 

and the Board. That other changes to the 

procedure might provide additional 

benefits is good reason to pursue further 

rulemaking, but it is not good reason to 

invalidate this rule. 

The dissent then criticizes the Board 

for not adequately discussing the 

Board’s time target statistics. Yet what 

the dissent primarily offers in response 

is the simplistic assertion that because 

the agency is meeting its current time 

targets for representation case 

processing, there can be no reason to 

make any changes. This is a 

disconcerting stance, to say the least. As 

explained in both the NPRM (76 FR 

36813–14) and the final rule (76 FR 

80155), for decades the Board has 

continually strived to process 

representation cases more quickly and 

efficiently, and the targets have 

accordingly been adjusted downward 

over time. Under the dissent’s 

reasoning, in any given year when the 

agency was meeting its then-applicable 

time targets, the agency should have left 

well enough alone and should not have 

engaged in any analysis about how the 

process might be improved. 

In my view, there is nothing magical 

about the time targets now or those that 

existed decades ago. As stressed in the 

rule, the existing time targets reflect the 

limits imposed by the Board’s current 

rules. That the Board seeks to, and does, 

meet its current targets in most 

instances is commendable but irrelevant 

to whether additional improvements 

may be made by amending the rules. 76 

FR 80148. 

Nevertheless, even taking the 

dissent’s misguided focus on current 

time targets at face value, it is easy to 

see a justification for the rule’s efforts to 

make the process more timely. As the 

Board stressed, the changes in the rule 

focus on the subset of cases in which 

the parties do not enter into an election 

agreement and instead proceed to a preelection hearing. And, as further 

discussed in the rule, the median time 

to process those cases has ranged from 

64 to 70 days over the past five years. 

76 FR 80155. Yet, as the dissent points 

out, the agency currently strives to move 

representation cases from petition to 

election in a median of 42 days, far 

faster than it takes the agency to process 

litigated cases. The agency also attempts 

to process 90% of cases from petition to 

election within 56 days. But the gardenvariety litigated case misses even this 

generous goal. In short, under the 

current system of case processing, we 

have shown an inability to regularly 

move cases (whether in the context of 

initial certification or decertification) 

through the pre-election process within 

even the existing 56 day time target for 

the tail of our cases, unless we can 

somehow convince the parties not to 

exercise their right to litigate. This is not 

acceptable. The Board should be able to 

process litigated cases in a more timely 

fashion. As described below and in the 

final rule, some of the changes will in 

fact result in more timely processing of 

litigated cases. 

In any event, the rule relies upon 

statistical evidence where appropriate. 

For example, in deciding to move the 

request for review process from before 

to after the election, the rule relies, in 

part, on data showing that in recent 

years review was granted pursuant to 

less than 12% of requests and that less 

than 5% of regional directors’ decisions 

were reversed. 76 FR 80172 fn. 140. 

Notably, the dissent fails to 

meaningfully engage these statistics and 

instead offers a handful of cases that 

demonstrate only the uncontroversial 

proposition that the issues raised via 

requests for review are not always 

meritless. The ironies here are twofold. 

First, this is exactly what the dissent 

accuses the Board of: ‘‘shooting ducks in 

a barrel’’ through anecdotal 

identification of individual 

representation cases rather than 

identifying problematic patterns. 

Second, as discussed below, the cases 

picked by the dissent run directly 

counter to the dissent’s assertion that 

eliminating the pre-election request for 

review will lead to unnecessary 

elections. For in each of the cited cases, 

by the time that the Board judged the 

regional director’s decision to be in 

error, the election had already been run. 

In sum, the dissent’s focus on delay 

blinds it to every other principle of good 


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18See Office of the General Counsel, NLRB, Guide 

for Hearing Officers in NLRB Representation and 

Section 10(K) Proceedings, at General Counsel’s 

Statement, Forward, 1, 6, 34 (Sept. 2003). 

19The dissent apparently interprets ‘‘special 

permission’’ as crafting a narrow substantive limit 

on Board review. This issue was not specifically 

addressed in the rule, and will be subject to 

interpretation. That said, it is unclear why the 

dissenter feels that special permission would be 

interpreted so narrowly. The term implies no 

Continued 

administrative practice. With that in 

mind, let us consider each of the 

changes discussed by the dissent, and 

show how the rule truly does eliminate 

needless litigation. 

A. Evidence About Challenged Voters Is 

Irrelevant at the Pre-Election Hearing 

The dissent correctly points out that 

pre-election hearings are often short 

under current rules. The dissent’s 

conclusion, however, that there is 

therefore no reason to exclude irrelevant 

evidence simply does not follow. 

Courts routinely refuse irrelevant 

evidence, see Fed. R. Evid. 401(b) 

(evidence must be ‘‘of consequence in 

determining the action’’); Wood v. State 

of Alaska, 957 F. 2d 1544, 1550 (9th Cir. 

1992) (holding that there is no 

constitutional right to present irrelevant 

evidence), as do agencies, even in the 

far more rigorous APA adjudications, 5 

U.S.C. 556(d) (‘‘[T]he agency as a matter 

of policy shall provide for the exclusion 

of irrelevant, immaterial, or unduly 

repetitious evidence.’’). 

In representation cases, the Board and 

the General Counsel have long 

maintained that it is important to avoid 

a cluttered record at the pre-election 

hearing. Guidance documents are 

emphatic on this point. For example, 

consider the NLRB Hearing Officer’s 

Guide: 18

The hearing officer must ensure that the 

* * * record is free of cumulative or 

irrelevant testimony.’’ ‘‘The hearing officer 

has the authority to seek stipulations, confine 

the taking of evidence to relevant disputed 

issues and exclude irrelevant and cumulative 

material.’’ (emphasis added) ‘‘The hearing 

officer’s role is to guide, direct and control 

the presentation of evidence at the hearing 

* * * While the record must be complete, it 

is also the duty of the hearing officer to keep 

the record as short as is commensurate with 

its being complete.’’ (emphasis added) ‘‘The 

hearing officer should guide, direct and 

control the hearing, excluding irrelevant and 

cumulative material and not allowing the 

record to be cluttered with evidence 

submitted ‘for what it’s worth.’ ’’ ‘‘Exhibits 

are not admissible unless relevant and 

material, even though no party objects to 

their receipt. Even if no party objects to an 

exhibit, the hearing officer should inquire 

about the relevancy of the document and 

what it is intended to show. The hearing 

officer can exercise his or her discretion and 

determine whether the documents are 

material and relevant to the issues for 

hearing.’’ (emphasis added). 

The Board’s interest here is in keeping 

‘‘the record as short as is commensurate 

with its being complete’’ on the relevant 

questions. Id. at 1. That is 

unquestionably a legitimate rationale, 

and advanced statistical analysis is 

simply not necessary to support it. 

This legitimate goal of administrative 

economy includes prohibiting litigation 

of issues that should instead be resolved 

through the challenge procedure. For 

example, the hearing officer routinely 

excludes evidence about the eligibility 

to vote of striking employees: ‘‘Voting 

eligibility of strikers and strike 

replacements are not generally litigated 

at a pre-election hearing. They are more 

commonly disposed of through 

challenged ballot procedures.’’ Id. at 20. 

As the Board noted in Mariah, Inc., 322 

NLRB 586, fn.1 (1996) (citations 

omitted): 

It is beyond cavil that the role of the 

hearing officer is to ensure a record that is 

both complete and concise. Here, the hearing 

officer, consistent with this duty, exercised 

her authority to exclude irrelevant evidence 

and to permit the Employer to make an offer 

of proof. Our consideration of that offer 

establishes the correctness of the hearing 

officer’s decision to exclude the testimony. 

Thus, with particular respect to the issue of 

strikers, we note the Board’s decision in 

Universal Mfg. Co., 197 NLRB 618 (1972) 

[that] the issue of striker eligibility is best left 

to a postelection proceeding. 

See 76 FR 80166 (citing Mariah). The 

amendments call for using precisely the 

same approach with other voter 

eligibility questions that will be 

resolved by challenge. 

This is not just delaying litigation. 

Any post-election settlement, any 

mooted issue, is a clear and unqualified 

gain in efficiency—one less issue to 

litigate. There is no need to engage in 

speculation about the quantum of such 

gains. The answer is not clearly 

knowable: any statistics from current 

Board practice on this point will be cast 

into doubt by the fact that litigation 

costs will play into the post-election 

settlement calculus. And the dissent 

concedes that at least ‘‘some issues will 

indeed be mooted.’’ Nothing more is 

needed to justify the rule. The better 

question, for which there is no clear 

answer, is why did the Board ever 

embrace such useless litigation? It is 

Barre-National that is unjustified, not 

the Board’s rule. 

Aside from the timing issue, the bulk 

of the dissent on this point is aimed at 

the supposed benefits of identifying or 

deciding voter eligibility issues before 

the election. This is simply irrelevant 

here. There is every reason to believe 

that the regional offices will continue to 

try to identify and settle voter eligibility 

disputes sooner rather than later, if 

possible. The dissent discusses the 

‘‘discretionary case-by-case practice’’ of 

figuring out what issues will be decided 

pre-election, and that practice is entirely 

unchanged by this rule. 

The only issue here is whether those 

unresolved issues will nevertheless be 

litigated. There is no reason that they 

should be. For these reasons, the 

Board’s evidentiary rule is adequately 

explained. 

B. Written Briefing Is Not Required for 

Simple, Straightforward Cases 

The Supreme Court has permitted 

administrative agencies a great deal of 

flexibility to choose between oral 

argument and written briefing. Compare 

Mathews v. Eldridge, 424 U.S. 319, 345 

(1976) (written submission without oral 

hearing); with Goss v. Lopez, 419 U.S. 

565, 581–82 (1974) (oral hearing 

without written submission). Although 

adjudication under the APA requires 

briefing, 5 U.S.C. 557(c), Congress 

specifically exempted Board 

representation cases from these 

provisions because of the ‘‘simplicity of 

the issues, the great number of cases, 

and the exceptional need for 

expedition.’’ Senate Committee on the 

Judiciary, comparative print on revision 

of S. 7, 79th Cong., 1st Sess. 7 (1945) 

(discussing 5 U.S.C. 554(a)(6)). 

These very concerns motivate this 

amendment. 76 FR 80170–71. Although 

some cases are sufficiently complex that 

briefing is helpful, in others the issues 

are quite simple and oral argument is 

sufficient. Here, the Board authorized 

the hearing officer to choose whether to 

have full briefing, partial briefing, or 

oral argument, so that the hearing officer 

can ask for briefing only when it would 

be helpful in a given case. In addition, 

the parties retain the right to file briefs 

requesting Board review of the regional 

director’s decision, so the parties will 

still have an adequate opportunity to 

present their arguments to the Board in 

writing. 

Again, in focusing only on time, the 

dissent does not account for good 

administrative practice. It is 

indisputable that briefing is of little 

help, at least in some cases. The 

dissent’s own reference to the drafting 

guide demonstrates that briefs are often 

of so little help that the drafting begins 

before the briefs arrive. And so there is 

no reason to prohibit hearing officers 

from taking oral argument or limited 

briefing in such cases.19 There is no 


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particular standard, and in fact means different 

things in different contexts in the Board’s 

regulations. For example, special permission to 

appeal to the regional director from decisions of the 

hearing officer is not subject to the same standard 

as special permission to appeal to the Board. Rather 

than speculating on the standard to be applied, I 

will simply focus on the fact that the purpose and 

text of the rule are designed to give hearing officers, 

in consultation with regional management, the 

authority to make, as the dissent terms it, a ‘‘real 

case-by-case evaluation’’ of the helpfulness of 

briefs. 

20The dissent argues that some issues are not 

mooted, but that does not account for the 

inefficiency of protective interlocutory litigation. 

Before the election, the parties simply do not know 

what the electoral margin will be, and an issue 

involving just one voter must be appealed to the 

Board just to avoid the possibility that that vote will 

make the difference. This is an entirely unnecessary 

burden. 

The dissent also argues that some cases will not 

involve post-election objections, thus ‘‘giv[ing] the 

lie to my colleagues’ characterization of the preelection request for review as interlocutory.’’ But 

simply because some parties do not choose to 

exercise their right to file objections, that does not 

convert an appeal in the middle of a proceeding 

into an appeal of a final judgment. 21Former § 102.67(b) and (d) provided that 

parties could file a request for review within 14 

days following a decision and direction of election, 

and that a statement in opposition to any such 

request could be filed as late as 21 days following 

a decision and direction of election. Thus, given the 

instruction in former § 101.21(d) that regional 

directors should normally schedule an election 

between the 25th and 30th day following the 

decision and direction of election, the Board could 

be left with as little as 4 days between full briefing 

concerning the request for the review and the 

election itself. 

reason to put the Board and the parties 

to the expense and trouble of briefs 

when oral argument would suffice. That 

is a sufficient rationale for the rule. 

In addition, there quite clearly is a 

delay caused by accepting briefs. 

Because the briefs are due in seven 

days, briefing, by itself, essentially 

guarantees that the decision will take at 

least a week from the hearing to be 

issued. No statistics are necessary on 

that point; it is a clear feature of the 

former rules: By simply insisting on 

briefs, the parties effectively have the 

power to prevent the decision and 

direction of election from issuing in the 

week or so after the hearing. In 

sufficiently straightforward cases, 

therefore, under the revised rules 

decisions may now issue more 

promptly. 

The dissent says that the Board is 

‘‘totally dismissive of the potential 

value of post-hearing briefs.’’ Not so. 

The Board simply feels that the 

potential value of post-hearing briefs 

depends on the particular litigation, and 

therefore regional personnel are in the 

best position to weigh, in each 

particular case, the relative benefits and 

costs of oral argument, briefing, partial 

briefing, etc. under the particular 

circumstances. The rule puts the power 

to make that decision in their capable 

hands. The rule eliminates the one-sizefits-all approach in favor of flexibility to 

tailor the briefing to the case. 

C. It Is Reasonable for the Board To 

Hear All the Issues in a Single PostElection Review Proceeding. 

Interlocutory Review Is Disfavored, and 

It Is Appropriate To Limit It to Issues 

That Would Otherwise Evade Review 

The dissent is incorrect to claim that 

the request for review was eliminated in 

order to eliminate the ‘‘companion’’ 

time constraints on the election. Again, 

by focusing solely on timing the dissent 

fails to appreciate the administrative 

process improvement that drives the 

change. 

The final judgment rule is 

omnipresent in administrative and 

judicial procedure for good reason: as 

Justice Story stated, ‘‘causes should not 

come up here in fragments, upon 

successive appeals. It would occasion 

very great delays, and oppressive 

expenses.’’ Canter v. Am. Ins. Co., 28 

U.S. 307, 318 (1830); 76 FR 80163, 

80172. The old rules were inconsistent 

with this practice, requiring 

interlocutory review to avoid waiver. It 

is perfectly reasonable, therefore, to 

limit interlocutory Board action to 

issues that ‘‘would otherwise evade 

review.’’ See Cohen v. Beneficial 

Industrial Loan Corp., 337 U.S. 541, 

546–47 (1949); cf. Duval Jewelry, 357 

U.S. at 6 (‘‘[W]here an immediate ruling 

by the Board on a motion to revoke is 

not required, the Board defers its ruling 

until the entire case is transferred to it 

in normal course.’’). The amendments 

merely apply a commonsense final 

judgment rule to election proceedings, 

consolidating review after the regional 

proceedings have been completed. 

In fact, the parties generally gain 

nothing from pre-election review. If the 

election was improper, the Board can 

simply invalidate the results, and, 

where appropriate, order the election to 

be rerun properly. This is the only 

remedy for post-election objections, and 

it is fully adequate in this context, as 

well. The Board reasonably concluded 

that, in most cases, post-election review 

is the more efficient method for 

addressing the matter, rather than to 

preemptively disrupt the process on the 

off-chance that the regional director 

might have erred. 76 FR 80172 fn.140 

(discussing the low reversal rate). 

It is important to point out that the 

new procedure for Board review is as 

generous as the old. Indeed, the former 

procedure was more burdensome to the 

parties in that unless a request for 

review was filed within two weeks of 

the direction of election, the issues 

would be forever waived. See former 

§ 102.67(b) (requiring the request within 

14 days). So the parties were burdened 

with the obligation to engage in 

protective interlocutory litigation to 

preserve issues that could ultimately be 

mooted out. Under the new rules, 

failure to seek pre-election special 

permission to appeal will not result in 

waiver. 76 FR 80162.20

The dissent contends that denial of an 

interlocutory request for review at least 

provides ‘‘finality’’ to the regional 

director’s direction of election. The 

same could be said for every single 

interlocutory ruling. And yet no one 

maintains that the Board should hear an 

immediate appeal from every single act 

of the regional office. The Board should 

have discretion to say, ‘‘this issue does 

not require our immediate attention, we 

will deal with it later,’’ rather than being 

forced to issue a truly final decision on 

the matter immediately or risk 

sabotaging the smooth functioning of 

the regional process. In any event, court 

review always remains available, and so 

even the Board’s decision cannot be said 

to be truly final. 

The Board addressed the matter of the 

supposed ‘‘unnecessary elections’’ in its 

rule, and none of the examples cited by 

the dissent prove its point. In each, the 

regional office had already held the 

election when the Board decision was 

made. Truly, the risk of unnecessary 

elections is about the same under the 

former rules as the new rules, because 

it is—understandably—exceedingly rare 

for the Board to (1) fully consider the 

papers, (2) grant review, and (3) publish 

a final decision reversing the regional 

director, all in the slim window typical 

between the filing of briefs and the 

election.21

Thus, the request for review breaks up 

the regional proceeding, and for no 

purpose. This is sufficient justification 

for the rule. 

D. The Regional Director Is in the Best 

Position To Decide an Appropriate 

Election Date 

The regional director determines the 

election date—this is not new. But the 

former rules had included—as a general, 

non-binding guideline—a 

recommendation that ‘‘normally’’ 

regional directors should hold the vote 

within a five-day window 25 to 30 days 

after the pre-election decision, thereby 

creating at least a 25-day wait between 

the direction of the election and the 

election itself. 76 FR 80172. The former 

rules expressly stated that the purpose 

of this guideline was ‘‘to permit the 


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22Nor is there any merit to the dissent’s 

accusation that the majority has failed to rationalize 

the rule’s standard of review for post-election 

litigation. The rule does not change the Board’s 

standards for considering post-election requests for 

review of regional director decisions. It appears that 

the dissent fails to appreciate that under the rule, 

the Board will be applying a discretionary standard 

of review to regional directors’ disposition of 

exceptions to hearing officers’ factual findings 

following post-election hearings, not to the hearing 

officers’ factual findings themselves. See 76 FR 

80173–74. Although perhaps not the normal course 

under the former rules, this procedural option 

existed prior to the final rule, and when utilized, 

the Board applied exactly the same standard of 

review. See former § 102.69(c)(4) (providing that if 

a regional director chose to issue a decision 

disposing of election objections or determinative 

challenges, parties would subsequently have the 

same rights to request review by the Board as exist 

under the pre-election request for review standards 

in former § 102.67); see also 76 FR 80174, quoting 

Casehandling Manual section 11366.2; 

Casehandling Manual section 11396.2. It is 

unquestionably rational for the Board to continue 

to utilize the same standard of review that it 

currently applies to pre-election requests for review 

and post-election requests for review, when they 

arise. 

23They were preferred to consent agreements for 

that reason, but that preference has nothing to do 

with the choice between stipulation and full 

litigation, where there is no meaningful difference 

in post-election Board review. 

24See also Casehandling Manual 11084.3 (‘‘As a 

general rule, the Regional Director should decline 

to approve an election agreement where it is known 

that more than 10 percent of the voters will be 

challenged, but this guideline may be exceeded if 

the Regional Director deems it advisable to do so.’’). 

Board to rule on any [interlocutory] 

request for review which may be filed,’’ 

after the regional director’s direction of 

election. Former 29 CFR 101.21(d). 

But, even under the former rules, the 

window did not serve its stated 

purpose. It applied regardless of 

whether a request was filed. 

Furthermore, because a request for 

review does not operate as a stay unless 

specifically ordered by the Board, 

elections were usually conducted as 

scheduled after 25 days even if the 

Board had not ruled on a request to 

review. For these reasons, the 

amendments independently eliminate 

this recommended window (without 

respect to the availability of a preelection request for review). 

This basic analysis was seldom 

criticized in the comments. In fact, there 

was ‘‘near consensus that this [25-day] 

period serves little purpose.’’ 76 FR 

80173. Moreover, enlarging the regional 

director’s discretion to set the election 

date makes sense because the regional 

director is most familiar with the case, 

the area, the industry, and the parties, 

and is in the best position to know what 

election date to choose. Cf. Vermont 

Yankee, 435 U.S. at 525. Should an 

inappropriate election date be chosen in 

a particular case, the Board will be able 

to revisit that decision and re-run that 

election. 

The dissent ignores all this. Without 

confronting the Board’s stated 

justification for the rule, it views the 

issue as wholly subsumed within the 

change to the Board review procedure. 

However, the dissent does tentatively 

offer two alternative reasons to keep the 

recommended window: (1) ‘‘there could 

well be both an agency administrative 

justification for at least some postdecisional time to arrange the details of 

election,’’ and (2) ‘‘in at least some 

instances it will be critically important 

to provide some post-decisional time for 

employers to exercise their free speech 

rights. * * *’’ 

But these claims miss the mark. The 

regional director has discretion to 

choose an appropriate election date. 

Will 25 to 30 days define the only 

appropriate choice in each case? 

Certainly not. The dissent acknowledges 

that these interests will vary, and may 

only apply in ‘‘at least some’’ cases. 

Again, the better solution is to move 

away from the one-size-fits-all approach 

of the former rules, so that flexibility is 

available to deal sensibly with the ‘‘at 

least some’’ cases that merit it. 

E. It Makes Sense for Regional Directors 

To Decide Objections and Challenges, 

and Certiorari-Like Review by the Board 

Is a Reasonable and Efficient Way To 

Oversee the Regions 

In Magnesium Casting, the Supreme 

Court held that under the Act, the Board 

may engage in discretionary review of 

regional directors’ decisions. The 

dissent considers it ‘‘pretentious’’ and 

an ‘‘abdication’’ of responsibility for the 

Board to do precisely what Congress 

contemplated, and exercise 

discretionary review. I disagree. 

Congress entrusted the Board with the 

ultimate authority over labor policy, 

subject only to very limited review in 

the courts. We should not try to do more 

than we reasonably can, or thinly spread 

too much of our limited attention to 

cases that raise no substantial issues. 

Certainly, we should not be micromanaging regional directors. 

The Board has recognized this in the 

context of unit determinations in 

directions of election, which have been 

only discretionarily reviewed for 

decades. And there have been no 

problems of the sort predicted by the 

dissent. No dearth of opportunities for 

clarification or dissent, no breakdown in 

uniformity of law and policy, no citing 

regional precedent, no swell in test-ofcertification cases. 

The rule merely applies precisely the 

same standard to post-election review.22

The dissent does not explain why these 

fears should have any special salience 

in the post-election context that they 

have never had pre-election. 

Consider the stipulation rate, for 

example. Under the current rules, 

except in the rare cases of regional 

director decisions, both stipulated and 

litigated cases are most often subject to 

mandatory review. Stipulations are not 

being signed by parties in order to 

secure Board review.23 Under the new 

rules, again, the Board will apply the 

same standard for review regardless of 

whether a stipulation is entered into. 

And so, again, the choice between 

stipulation and litigation remains 

entirely unrelated to the availability of 

post-election review. 

In sum, the amendments are 

adequately explained and reasonably 

address the problems presented. They 

are within the sound discretion of the 

Board to regulate its own procedures. 

5. Other Points 

A. The Opportunity To Comment 

The dissent complains that the final 

rule is not a ‘‘logical outgrowth’’ of the 

June proposed rule. The ‘‘logical 

outgrowth’’ test is a creature of the 

notice-and-comment requirement. It is 

satisfied if the public had a meaningful 

opportunity to comment on the issues 

raised by the final rule. 

The crux of the dissent’s argument is 

that, without the proposed ‘‘20% rule,’’ 

the regional director will defer decision 

on more voter eligibility issues, a 

consequence that the comments were 

not able to meaningfully address. This 

is plainly not true, both because it 

mischaracterizes the rule, and because 

there was an opportunity to comment 

on this point. In any event, the question 

is irrelevant because notice and 

comment is not required for these 

procedural rules. 

First, as the dissent posits elsewhere, 

under current practice, ‘‘[u]sually, the 

number of such challenges does not 

exceed about 10–12% of the unit.’’ 24

And, because the proposed 20% rule 

has not been adopted at this time, the 

new rule does not change the current 

practice with respect to regional director 

discretion to defer deciding individual 

eligibility questions. Rather the rule 

contemplates that litigation will be 

permitted only of issues that will be 

decided prior to the election. The 

dissent’s fear that the rule will result in 

massive and disproportionate numbers 

of challenges is, quite simply, not 


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25See, e.g., Testimony of Peter Leff, General 

Counsel for the Graphic Communications 

Conference of the International Brotherhood of 

Teamsters; United Food & Commercial Workers 

International Union; U.S. Chamber of Commerce; 

National Association of Manufacturers; Coalition 

for a Democratic Workplace. 

26 Initially, it should be noted that this argument 

is in tension with the dissent’s vehemently 

expressed doubts that the rule will result in a more 

timely process. If the stipulation rate drops 

dramatically and elections are dragged out, as the 

dissent contends, how can the rule be said to limit 

speech? In any event, whether faster or not, 

elections conducted under the new rule will not 

violate the First Amendment. 

27Both Chamber of Commerce v. Brown, 554 U.S. 

60 (2008), and Citizens United v. Federal Election 

Commission, 130 S.Ct. 876 (2010), involved 

regulation of campaign spending, not campaign 

time. The dissent’s application of those cases to the 

resource of time would also have some very strange 

consequences. For example, many comments 

argued that it was unfair to hold elections too 

quickly because unions enjoy an intrinsic advantage 

in that they can organize in secret before the 

petition is filed. If the dissent’s analysis of Citizens 

United were accepted, then it would be 

unconstitutional for the Board to deliberately 

prolong the campaign in order to give the employer 

a leg up in the campaign. After all, the ability to 

organize in secret is an ‘‘advantage’’ that the unions 

lawfully have in the ‘‘open marketplace of ideas 

protected by the First Amendment.’’ To 

compensatorily grant employers additional time in 

order to equalize the playing field would be 

granting special privileges to employer speech 

through an unlawful ‘‘anti-distortion theory.’’ 

Suffice to say, I am doubtful that any such 

analysis is meaningful in this context. Time is not, 

in fact, literally money: Some concrete election date 

must be chosen in every case. 

grounded in the rule, and is rank 

speculation. 

Second, it is perfectly appropriate to 

adopt only some of the proposals. As 

the Supreme Court recently explained 

in Coke, a proposed rule is ‘‘simply a 

proposal,’’ meaning that the agency is 

‘‘considering the matter,’’ and thus its 

decision not to adopt part of the 

proposal is ‘‘reasonably foreseeable’’ 

and a logical outgrowth. Long Island 

Care at Home, Ltd. v. Coke, 551 U.S. 

158, 175 (2007) (emphasis in original). 

Indeed, here, many commenters 

obviously foresaw that only parts of the 

rule might be adopted, and some urged 

the Board to use a different percentage 

or to eliminate the 20% rule 

altogether.25 Clearly, the issue was 

reasonably presented by the proposal. 

Finally, this is a procedural rule, and 

no opportunity to comment was 

required. The courts cannot impose the 

logical outgrowth test on the Board 

simply because it voluntarily undertook 

to provide an opportunity to comment 

on a proposal. The fact that the agency 

chose to engage in notice and comment 

‘‘does not carry the necessary 

implication that the agency felt it was 

required to do so.’’ United States v. Fla. 

E. Coast R.R. Co., 410 U.S. 224, 236 fn.6 

(1973). None of the Board’s prior 

election rules were substantive—even 

when they made dramatic changes—so 

what is different here? In fact, this is in 

many ways a textbook procedural rule: 

Rules of evidence, the manner of 

arguing (oral vs. written), the timing of 

Board review, etc. ‘‘[A] judgment about 

procedural efficiency * * * cannot 

convert a procedural rule into a 

substantive one.’’ Public Citizen v. Dep’t 

of State, 276 F.3d 634, 641 (D.C. Cir. 

2002). 

For these reasons, the Board was not 

required to hold a new round of public 

comment to consider the November 

30th resolution adopting parts of the 

proposed rule. 

B. Employer Speech 

At the end of the dissent, a First 

Amendment argument is thrown in. The 

central thrust of this argument appears 

to be that the secret purpose of timely 

elections is to unfairly tilt the campaign 

in favor of unions by quashing the 

opportunity for meaningful employer 

speech. This argument is puzzling for 

two reasons.26

First, it is not the purpose of the 

amendments to limit speech, but to 

limit unnecessary litigation. To the 

extent litigation results in delay that 

incidentally provides extra 

opportunities for speech, the Board fully 

considered the effect of the amendments 

and validly found the rules consistent 

with the policies of the Act and 

Constitution. All parties remain free to 

engage in as much or as little campaign 

speech as they desire. The content of 

such speech, of course, is entirely 

unregulated by these amendments. 

To the extent the amendments 

eliminate delay, they do not do so 

unfairly. Time is a resource that is 

inherently equal for everyone: A day, a 

week, a month, is the same amount of 

time whether you are a union or 

employer. However long the time from 

petition to election, it is the same for 

both parties. 

The Board’s analysis does not play 

favorites between the parties. As the 

rule explains, if 10 days has always 

been enough for the union to campaign 

with the Excelsior list, then even 10 

days from the petition would be enough 

for the employer (who needs no such 

list of employees) to campaign, too.27

76 FR 80156 fn.79. And employers 

remain free to say whatever they want 

whenever they want (within established 

legal limits), regardless of whether an 

election petition is pending. 

The dissent mischaracterizes the 

discussion of employer speech in the 

rule. The rule does not discuss these 

employer speech opportunities in order 

to prove that faster elections would have 

some ‘‘antidistortion’’ effect—indeed, 

the Board expressly disclaimed that 

purpose—but to prove that even a very 

fast election would not deprive 

employers of a meaningful opportunity 

to speak. 76 FR 80148–50 (‘‘The Board, 

having carefully considered these 

pointedly contrasting comments, adopts 

neither position.’’). 

Second, the dissent’s argument is 

predicated on a basic misunderstanding 

of representation proceedings. Indeed, 

under the dissent’s analysis, the entirety 

of Section 9 would have to be 

invalidated as unconstitutional in 

violation of the First Amendment. 

After all, the very purpose the dissent 

criticizes here was expressly embraced 

by Congress in the NLRA. ‘‘[U]nless an 

election can promptly be held to 

determine the choice of representation, 

[the union] runs the risk of impairment 

of strength by attrition and delay while 

the case is dragging on through the 

courts, or else is forced to call a strike 

to achieve recognition by its own 

economic power. Such strikes have been 

called when election orders of the 

National Labor Relations Board have 

been held up by court review.’’ H. Rep. 

No. 1147, 74th Cong., 1st Sess., 

pp. 6–7. 

If it would be unconstitutional for the 

Board to have considered the 

impairment of union strength caused by 

delay, then the Supreme Court in Inland 

Empire would not have cited this 

legislative history with such unqualified 

approval, nor would it have upheld the 

appropriate hearing of the Board in that 

case. Congress had foremost in its mind 

the intention to make representation 

proceedings more efficient so that 

elections could be held in a timely 

manner, with the ultimate goal of 

promoting collective bargaining and 

furthering the flow of commerce. 

This should be reiterated: To avoid 

strikes and economic damage, Congress 

wanted to give unions an opportunity to 

prove their strength by peaceful means 

while it was at its height and without 

delay. Why? So that unions would not 

be forced into using their moment of 

strength destructively out of fear that 

delay would erode their power. 

Again, to address this by crafting fair 

and timely representation procedures is 

a purpose that has been—repeatedly and 

expressly—approved by the Supreme 

Court in A.J. Tower, Inland Empire, 

Magnesium Casting, and countless other 

cases. Elsewhere, the dissent itself 

appears to agree with this purpose as 

well, stating that ‘‘the efficient and 

expeditious exercise of our statutory 


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28The Rule was published in the Federal Register 

on December 22, 2011. 76 FR 80138. 

29 76 FR 36812. 

30Chamber of Commerce v. NLRB, No. 11–2262 

(D.D.C. filed Dec. 20, 2011). 

31E.g., Specialty Healthcare and Rehabilitation 

Center of Mobile, 357 NLRB No. 83 (2011). 

32Fact Sheet, National Labor Relations Board, 

‘‘Explanation of [R]esolution’’ at http:// 

www.nlrb.gov/publications/rules-regulations/ 

notice-proposed-rulemaking/proposedamendments-nlrb-election-rules-an. 

33 I discuss internal Board deliberations only to 

the extent that they have already been disclosed by 

the Acting General Counsel to parties in the current 

district court litigation challenging the Rule. 

mandate is an appropriate and 

important goal that is central to our 

mission.’’ The about-face here, to argue 

that any effort at efficient and 

expeditious representation procedure is 

unconstitutional, remains unexplained. 

As the D.C. Circuit recognized in a 

related context, ‘‘the force of the First 

Amendment * * * var[ies] with 

context,’’ particularly in the sphere of 

labor relations. US Airways, Inc. v. 

NMB, 177 F.3d 985, 991 (D.C. Cir. 1999) 

(emphasis in original); see also UAW– 

Labor Employment & Training Corp. v. 

Chao, 325 F.3d 360, 365 (D.C. Cir. 2003) 

(noting that free speech rights are 

‘‘sharply constrained in the labor 

context’’). The dissent runs roughshod 

over this principle and instead would 

twist the First Amendment into a strict 

limit on any constraint—implicit, 

explicit, or incidental—on the time 

given for employer speech before the 

employees make their choice. This 

impermissibly elevates employer speech 

interests above both industrial peace 

and ‘‘the equal rights of the employees 

to associate freely.’’ NLRB v. Gissel 

Packing Co., 395 U.S. 575, 617 (1969). 

To the extent that the rule removes 

unnecessary obstacles to the ‘‘efficient, 

fair, uniform, and timely resolution of 

representation cases,’’ 76 FR 80138, a 

modest reduction in the time between a 

petition and an election may result in 

some cases. To argue that this violates 

the Constitution is to ignore Gissel’s 

teaching that ‘‘the rights of employers to 

express their anti-union views must be 

balanced with the rights of employees to 

collectively bargain.’’ US Airways, 177 

F.3d at 991 (applying Gissel). Indeed, 

the D.C. Circuit has instructed that 

‘‘[n]ot only is a ‘balancing’ required, the 

NLRB calibrates the scales.’’ Id. The 

Board’s judgment here was reasonable. 

For all of these reasons, I continue to 

agree with the Board’s final rule. 

Separate Dissenting Statement by 

Member Hayes 

Member Hayes, dissenting. 

Acting with imperious disdain for 

process, two members of what should be 

a five-member Board summarily 

concluded their own rulemaking 

deliberations on December 16, 2011, by 

adopting and issuing a rule overruling 

precedent and substantially revising 

longstanding Board election 

procedures.28 The Rule contains some 

elements of the proposal made public in 

a June 22, 2011, Notice of Proposed 

Rulemaking (NPRM),29 and reserves all 

others for further consideration. It 

eliminates the right to seek pre-election 

review of a regional director’s decision 

and direction of election. It alters the 

role of the hearing officer in deciding 

what evidence may be introduced in a 

pre-election hearing. It generally 

prohibits the filing of briefs after a preelection hearing. It eliminates the 

automatic right to seek Board review in 

post-election disputes, a right 

previously included in stipulated 

election agreements overwhelmingly 

favored by most parties to an election. 

Finally, the adopted Rule, founded on 

an impermissible interpretation of the 

Act, essentially eliminates the preelection right to litigate all issues not 

deemed relevant to the question of 

representation. In this respect, the Rule 

significantly departs from the NPRM, 

which would at least have permitted 

pre-election litigation of genuine and 

material issues about the eligibility or 

unit placement of individuals who 

would constitute 20 percent or more of 

a bargaining unit. 

Like a game show contestant with a 

parting gift, I was granted the 

opportunity to issue a post-deliberative 

‘‘personal statement’’ of my views 

concerning the Rule, even as its validity 

is being contested in a Federal district 

court.30 I do so now. 

It is my personal view, shared by 

many of the thousands of commenters to 

the NPRM, that my colleagues’ Rule 

contravenes the Act and the 

Constitution. In whole and in several 

parts, in substance and in the process 

used to adopt it, it also reflects arbitrary 

and capricious decisionmaking that 

requires invalidation on judicial review. 

Finally, as with recent adjudicatory 

actions,31 this rulemaking action 

represents an abdication of the Board’s 

representation case duties and reflects a 

compulsive effort by my colleagues to 

favor union organization over all 

opposition, no matter its legitimacy or 

statutory protection. Accordingly, I 

dissent. 

I. Background 

As described by my colleagues, 

publication of the NPRM was followed 

by a public hearing and a notice-andcomment period concluding on 

September 4, 2011. Before that, 

Chairman Liebman’s term expired, 

leaving the Board with three sitting 

Members: newly-appointed Chairman 

Pearce, Member Becker, and myself. 

In November, acknowledging that 

time was dwindling in which to issue a 

Rule before the potential loss of a Board 

quorum upon the expiration of Member 

Becker’s recess appointment, Chairman 

Pearce announced his intention to put 

forth a resolution to proceed on a 

proposed ‘‘scaled-back’’ rule.’’ 32

Accordingly, on November 30, 

Chairman Pearce, Member Becker, and I 

attended a public Board meeting to 

discuss and vote on the Chairman’s 

proposed ‘‘Board Resolution No. 2011– 

1,’’ which provided for the drafting, 

circulation and publication of a final 

rule containing eight elements from the 

original NPRM. The Resolution also 

provided that no final rule ‘‘shall be 

published until it has been circulated 

among the members of the Board and 

approved by a majority of the Board.’’ I 

voted against the Resolution, and my 

colleagues voted to approve it. 

In the late afternoon of Friday, 

December 9, a draft of the Rule, 

consisting of 180 pages, was circulated 

by email to me and others by the 

Chairman.33 A revised draft was 

circulated early in the next week, 

followed on December 14 by a draft 

order from the Chairman directing that 

the Solicitor publish a Final Rule 

immediately upon its approval by a 

Board majority. The Order also provided 

for subsequent publication in the 

Federal Register of the statement of any 

dissenting Board Member then 

serving—obviously meaning me—if a 

draft of the dissent was circulated no 

less than 30 days prior to the April 30, 

2012, effective date of the Rule. 

Provision was also made for publication 

of a concurring statement, with the 

qualification that any separate dissent or 

concurrence ‘‘shall represent the 

personal statement of the Member and 

shall in no way alter the Board’s 

approval of the final rule or the final 

rule itself.’’ 

Chairman Pearce and Member Becker 

approved a revised version of the Order 

on December 14. I voted against it in an 

email on December 15, noting in 

addition to my other reasons for 

opposition that the President had just 

announced two Board member 

nominations and that a third 

nomination was also pending. My email 

stated ‘‘With the prospect of a full Board 

to address these proposed rule changes, 

I believe there is even less justification 

for proceeding on a divided 2–1 basis.’’ 


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34Not surprisingly, having had months to 

participate in the preparation and revision of the 

draft rule before I ever saw it, the Chairman has 

nevertheless taken the self-created opportunity to 

issue a concurring opinion responding to this 

dissent. By the Chairman’s own declaration, joined 

by Member Becker, this post hoc opinion cannot 

vary from or supplement the Rule and its 

justification, as issued on December 16. I therefore 

find little need to respond directly to his numerous 

mischaracterizations of my arguments and actions 

in this proceeding. 

35As a result of a subsequent settlement 

agreement, the Board vacated the Decision and 

Order. See Pacific Greyhound Lines, 30 NLRB 439 

(1941). The case nevertheless retains its 

precedential value and illustrates the Board’s 

comprehensive approach to a hearing on election 

issues. See Caterpillar Inc., 332 NLRB 1116, 1116– 

1117 (2000)(Board decision vacated pursuant to a 

settlement may be cited as controlling precedent 

with respect to the legal analysis therein). 

The draft Rule was further revised on 

December 15 and 16, then approved by 

the Chairman and Member Becker and 

issued on the later date without further 

action by me.34

II. The Rule Is Invalid Under Chevron 

Step One 

My colleagues assert that the Rule is 

authorized by Section 6 of the Act, that 

it is a reasoned interpretation of 

Sections 9 and 3 of the Act, and that as 

such it is entitled to substantial 

deference under Chevron USA Inc. v. 

Nat’l Resources Defense Council, Inc., 

467 U.S. 837 (1984). I have no quarrel 

with the general proposition that the 

Board has express authority under 

Section 6 of the Act to make rules 

governing the conduct of representation 

elections. However, the rulemaking 

authority granted to the Board is not 

unlimited. It must be exercised in a 

manner consistent with the Act. 

American Hospital Ass’n v. NLRB, 499 

U.S. 606 (1991) (rules enacted through 

the Board’s rulemaking authority must 

not conflict with the Act). 

Under step one of the Chevron 

analysis, a reviewing court first asks 

whether Congress has directly 

addressed the issue covered by agency 

action. Chevron, 467 U.S. at 842–43. If 

so, the court, and of course the Board, 

must give effect to Congress’ intent. Id. 

In determining whether Congress has 

addressed the issue, the court employs 

traditional tools of statutory 

construction, including a review of 

legislative history. Id. at 843 n.9. Here, 

this inquiry leads inevitably to the 

conclusion that the Rule directly and 

substantially contravenes Congress’ 

intent. 

A. An Appropriate Pre-Election 

Evidentiary Hearing Under Section 9 

Must Generally Include Litigation of 

Genuine and Material Unit Placement, 

Exclusion, and Eligibility Issues 

Since its inception, the Act has 

provided for an ‘‘appropriate hearing’’ 

as part of the investigatory process 

attendant to Board elections. While the 

original and revised versions of the Act 

do not explicitly define what constitutes 

an ‘‘appropriate hearing,’’ the text of the 

Act, its legislative history, and prior 

Board and court interpretations 

demonstrate that an ‘‘appropriate 

hearing’’ should encompass all relevant 

election issues—including individual 

eligibility and unit placement issues— 

not just whether a ‘‘question of 

representation’’ exists. At least since the 

Taft-Hartley amendments in 1947, it is 

clear as well that Congress intended that 

the appropriate evidentiary hearing 

must be held before the election. 

Accordingly, the Rule’s interpretation of 

the statute is impermissible under step 

one of the Chevron analysis and the 

Rule is invalid. 

* * * * * 

Section 9(c) of the Wagner Act 

provided: 

Whenever a question affecting commerce 

arises concerning the representation of 

employees, the Board may investigate such 

controversy and certify to the parties, in 

writing, the name or names of the 

representatives that have been designated or 

selected. In any such investigation, the Board 

shall provide for an appropriate hearing upon 

due notice, either in conjunction with a 

proceeding under section 10 or otherwise, 

and may take a secret ballot of employees, or 

utilize any other suitable method to ascertain 

such representatives. 

Although ‘‘appropriate hearing’’ was 

not explicitly defined, the natural 

reading is that it was intended to be part 

of the investigation of the electoral 

controversy and was not limited to the 

issue of whether an election should be 

held. Instead, the reference to an 

‘‘appropriate’’ hearing connotes a 

relative, flexible standard, not rigid or 

limited as to the number and kind of 

issues to be litigated. Considered in the 

converse, the statutory language can 

certainly not be interpreted as dictating 

that litigation of unit eligibility and 

inclusion/exclusion issue is 

inappropriate. 

Further, Congress generally saw the 

development of a complete evidentiary 

record in hearings pertaining to election 

issues as necessary due process 

protection for the parties. See, e.g., S. 

Rep. 74–573, at 14 (May 1, 1935), 

reprinted in 2 Legislative History of the 

NLRA, 1935, at 2314 (the ‘‘entire 

election procedure becomes part of the 

record’’ which provides a ‘‘guarantee 

against arbitrary action by the Board’’); 

H.R. Rep. 74–1147, at 23 (June 10, 

1935), reprinted in 2 Legislative History 

of the NLRA, 1935, at 3073 (‘‘The 

[appropriate] hearing required to be 

held in any investigation provides an 

appropriate safeguard and opportunity 

to be heard.’’). Consistent with this 

intent, the conduct of election hearings 

under the Wagner Act established a 

practice of developing a complete 

record in a nonadversarial proceeding 

on all pertinent issues which the Board 

must decide relevant to the conduct of 

the election. See e.g., Pacific Greyhound 

Lines, 22 NLRB 111, 123–124 fn. 37 

(1940) (‘‘The wide latitude such a 

hearing possibly may take is illustrated 

by the nature and number of issues with 

which the parties herein themselves 

were concerned and which were 

considered and decided by the Board in 

the Representation Proceedings.’’).35

Indeed, prior to the Taft-Hartley Act, 

questions about an ‘‘appropriate 

hearing’’ dealt with whether it needed 

to be held before an election, not 

whether, if held pre-election, litigation 

of unit inclusion and eligibility should 

generally be foreclosed. In Inland 

Empire Dist. Council v. Millis, 325 U.S. 

697 (1945), the Court concluded that, 

although the Wagner Act did not require 

the Board to hold a hearing before 

conducting an election (or that it even 

hold any election), if an election were 

to be conducted, the Board was required 

to hold an ‘‘appropriate hearing’’ as part 

of any investigation under Section 9(c). 

Id. at 706–707. 

The Court explained that the statutory 

purpose of Section 9(c) is ‘‘to provide 

for a hearing in which interested parties 

shall have full and adequate 

opportunity to present their objections 

before the Board concludes its 

investigation and makes its effective 

determination by the order of 

certification.’’ Id. at 708. The Court 

concluded that the ‘‘appropriate 

hearing’’ requirement was met because, 

in a post-election hearing, the Board 

permitted evidence to be introduced on 

all issues—including the effects of a 

union’s contractual relationships with 

the employer, voting eligibility of 

employees in the armed forces, 

exclusion of certain groups of 

employees, and the appropriate payroll 

date for voting eligibility. 

Following Inland Empire, the Board 

amended its Rules and Regulations in 

1945, and initiated a process of 

conducting some elections prior to any 

hearing ‘‘in cases which present no 

substantial issues.’’ Article III, Section 3 

of the Board’s Rules and Regulations (as 

amended, effective November 27, 1945). 

These pre-hearing elections were a 

specific target of the 1947 Taft-Hartley 

amendments, which eliminated the 

Board’s option of holding them and 


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made the ‘‘appropriate hearing’’ 

mandatory before the election. To this 

end, Section 9(c)(1) provides that: 

Whenever a petition shall have been filed, 

in accordance with such regulations as may 

be prescribed by the Board * * * the Board 

shall investigate such petition and if it has 

reasonable cause to believe that a question of 

representation affecting commerce exists 

shall provide for an appropriate hearing 

upon due notice. Such hearing may be 

conducted by an officer or employee of the 

regional office, who shall not make any 

recommendations with respect thereto. If the 

Board finds upon the record of such hearing 

that such a question of representation exists, 

it shall direct an election by secret ballot and 

shall certify the results thereto. (emphasis 

added). 

Section 9(c)(4), also added in 1947, 

further provides that 

Nothing in this section shall be construed 

to prohibit the waiving of hearings by 

stipulation for the purpose of a consent 

election in conformity with regulations and 

rules of decision of the Board. 

Even those critical of the Taft-Hartley 

Act changes acknowledge that an 

‘‘appropriate hearing’’ before the 

election is now mandatory. ‘‘Section 

9(c)(1) and Section 9(c)(4) of the TaftHartley Act, read in conjunction, require 

that an election hearing be held before 

the election takes place.’’ Steven E. 

Abraham, How the Taft-Hartley Act 

Hindered Unions, 12 Hofstra Labor Law 

Journal 1, 12 (1994) (arguing for 

amending certain Taft-Hartley Act 

provisions considered to have 

contributed to the declining 

unionization rate). ‘‘[T]he Board cannot 

run an election without first holding a 

hearing unless the parties consent 

* * *.’’ Craig Becker, Democracy in the 

Workplace: Union Representation 

Elections and Federal Labor Law, 77 

Minn. L. Rev. 495, 519 fn. 102 (1993) 

(‘‘Prior to the Taft-Hartley Act, the 

Board could postpone the hearing until 

after the election * * *. The TaftHartley Act stripped the Board of its 

discretion to conduct such ‘pre-hearing 

elections.’ ’’) (internal citations omitted). 

While the amendments mandated that 

‘‘the hearing must invariably precede 

the election, neither the language of the 

statute nor the committee reports 

indicated that any change in its nature 

was intended.’’ Utica Mutual Ins. Co. v. 

Vincent, 375 F.2d 129, 133–34 (2d Cir. 

1967). See also Becker, supra, at 516 fn. 

91 (describing Board procedures after 

the Taft-Hartley amendments: ‘‘If the 

Board finds that the petition creates a 

‘question of representation,’ it must 

hold a hearing * * * [where] the Board 

determines whether the unit * * * is 

appropriate * * *. [and] * * * also 

resolves individual eligibility 

questions.’’) (internal citations omitted) 

The ordinary and natural meaning of 

Sections 9(c)(1) and (4) is that once a 

regional director determines that there 

is reasonable cause to believe a question 

concerning representation exists, a 

hearing must be held on all issues 

relevant to the conduct of an election 

unless waived. Of course, confirmation 

of the regional director’s preliminary 

determination that a question 

concerning representation existed is a 

necessary predicate to a post-hearing 

direction of election, but if Congress had 

intended that the mandatory 

‘‘appropriate hearing’’ be limited to 

litigation of that question, it failed to say 

so. 

The failure of Congress to impose that 

express limitation must be considered 

in light of the prior consistent 

interpretation by the Board and courts 

that an ‘‘appropriate hearing’’ under the 

Wagner Act required the Board to 

provide the parties an opportunity to 

raise and present evidence on all issues 

relevant to the election. As a matter of 

statutory interpretation, Congress is 

presumed to be aware of administrative 

or judicial interpretation of a statute’s 

language, and if it amends the statute 

without changing that language, then 

Congress presumably intended to adopt 

that administrative interpretation. 

Lorillard v. Pons, 434 U.S. 575, 581 

(1978). See also NLRB v. Gullett Gin Co., 

340 U.S. 361, 365–366 (1951) (by 

adopting Taft-Hartley amendments 

‘‘without pertinent modification’’ of 

provision at issue ‘‘Congress accepted 

the construction [of that provision] by 

the Board and approved by the 

courts.’’). Nothing in the Taft-Hartley 

amendments to Section 9 changed the 

meaning of ‘‘appropriate hearing,’’ thus 

indicating Congress’ intent to adopt that 

settled meaning of ‘‘appropriate 

hearing’’ but now requiring that it must 

be held before the election. 

The legislative history of the TaftHartley Act confirms that Congress 

intended that the ‘‘appropriate hearing’’ 

be held before the election and that it 

continue to address all pertinent 

election issues. Some versions of the 

Taft-Hartley legislation included 

proposals permitting the Board’s 

continuation of its prehearing elections 

procedures; Congress plainly rejected 

those proposals. After the House and 

Senate initially passed different 

versions of the legislation, the 

conference committee was appointed to 

resolve the differences, including in 

Section 9(c)(4). At the ‘‘insistence’’ of 

the House conferees, the resulting 

conference report recommended 

deleting the authority to conduct 

prehearing elections included in the 

Senate version of the legislation. 93 

Cong. Rec. 6601 (June 5, 1947) 

(conference report) reprinted in 2 

Legislative History of the LMRA, 1947, at 

1542. Both the House and the Senate 

adopted the conference report 

recommendation to delete the 

prehearing election option, thereby 

making ‘‘appropriate hearings’’ 

mandatory before an election in all 

cases. 93 Cong. Rec. 6549 (June 4, 1947) 

(House agreed to conference report) 

reprinted in1 Legislative History of the 

LMRA, 1947, at 899–900; 93 Cong. Rec. 

6695 (June 6, 1947) (Senate agreed to 

conference report) reprinted in 2 

Legislative History of the LMRA, 1947, at 

1620–1621. 

In his analysis of the Act’s provisions 

in the Congressional Record, Senator 

Taft explained the reason for changing 

Section 9(c)(4) and confirmed that 

Congress intended to preserve the 

Board’s interpretation of an 

‘‘appropriate hearing’’: 

The conferees dropped from [Section 

9(c)(4)] a provision authorizing prehearing 

elections. That omission has brought forth 

the charge that we have thereby greatly 

impeded the Board in its disposition of 

representation matters. We have not changed 

the words of existing law providing a hearing 

in every case unless waived by stipulation of 

the parties. It is the function of hearings in 

representation cases to determine whether an 

election may properly be held at the time; 

and if so, to decide questions of unit and 

eligibility to vote. During the last year the 

Board has tried out a device of holding the 

election first and then providing the hearing 

to which the parties were entitled by law. 

Since its use has been confined to an 

inconsequential percentage of cases, and 

more often than not a subsequent hearing 

was still necessary and because the House 

conferees strenuously objected to its 

continuance it was omitted from the bill. 93 

Cong. Rec. 7002 (June12, 1947), reprinted in 

2 Legislative History of the LMRA, 1947, at 

1625. (emphasis added) 

My colleagues attempt to minimize 

the significance of Senator Taft’s 

statements as those of a single Senator 

made after the ‘‘dispositive vote’’ on the 

Taft-Hartley legislation. 76 FR 80165 

fn.116. Although they were made after 

the initial Senate vote and passage of 

the legislation, Senator Taft’s statements 

preceded further Senate debate and the 

crucial votes in the Senate and House to 

override President Truman’s veto. 93 

Cong. Rec. 7504 (June 20, 1947) 

reprinted in 1 Legislative History of the 

LMRA, 1947 at 922; 93 Cong. Rec. S– 

7692 (June 23, 1947), reprinted in 2 

Legislative History of the LMRA, 1947 at 

1656–1657. Moreover, Senator Taft’s 

statements were not merely those of a 

single Senator. As the legislation’s 


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36 I note the blatant inconsistency between my 

colleagues’ reliance, at 76 FR 80160, on the 

statement of Senator Goldwater, a single legislator, 

in support of their interpretation of the 1959 Sec. 

3(b) amendments, and their dismissal, at 76 FR 

80165 fn. 116., of the statement of Senator Taft as 

insignificant to the interpretation of Sec. 9(c)(1). 

37See H.R. Rep. 86–741, at 24–25 (July 30, 1959), 

reprinted in 1 Legislative History of the LMRDA, 

1959, at 782–83. See S. Rep. 86–10, at 3 (January 

28,1959), reprinted in 1 Legislative History of the 

LMRDA, 1959 at 82 (included in President 

Eisenhower’s initial ‘‘20-point program’’). See also 

S. 1555, 86th Cong. § 705 (bill passed by the Senate 

on April 25, 1959), reprinted in 1 Legislative History 

of the LMRDA, 1959, at 581. 

38Senator Goldwater similarly described the new 

provision authorizing delegation of the Board’s 

election powers to regional directors as a 

Conference Committee substitution adopted 

because of opposition by other conferees to any 

change in pre-election hearing procedure. 105 Cong. 

Rec. A8522 (October 2, 1959), reprinted in 2 

Legislative History of the LMRDA, 1959 at 1856. 

principal Senate sponsor and Chairman 

of the Senate’s Labor and Public Welfare 

Committee, Senator Taft had been 

instrumental in securing passage of the 

Act. His statements were to ‘‘make clear 

the legislative intent,’’ 93 Cong. Rec. 

7000, reprinted in 2 Legislative History 

of the LMRA, 1947, at 1622, that a preelection hearing that includes all 

election issues was mandatory. 93 Cong. 

Reg. 7002, reprinted in 2 Legislative 

History of the LMRA, 1947, at 1625. 

Senator Taft’s analysis of the legislation 

is authoritative and compelling 

evidence of Congress’s intent.36

The import of the Taft-Hartley 

amendments for determining the scope 

of an ‘‘appropriate hearing,’’ and 

whether it had to be held before the 

election, was discussed in NLRB v. SW. 

Evans & Son, 181 F.2d 427 (3d Cir. 

1950). Although decided after the 

amendments had gone into effect, the 

case concerned the Board’s pre-TaftHartley rule permitting a pre-hearing 

election ‘‘in cases which present no 

substantial issues.’’ Id. at 430 

Preliminarily, the court observed that 

‘‘the instant problem [whether a preelection hearing is required] is hardly 

apt to recur, since the [Taft-Hartley Act] 

now makes mandatory a pre-election 

hearing.’’ Id. at 429. The court then 

concluded that issues related to ‘‘unit, 

eligibility to vote, and timeliness of the 

election’’ raised by the employer were 

‘‘substantial issues’’ that the employer 

was entitled to litigate in a pre-election 

hearing under the extant rule. Id. at 

430–31. The inescapable inference from 

the court’s opinion is that under the 

amended Section 9(c)(1), an appropriate 

hearing, which now must take place 

before the election, must permit 

litigation of all contested issues of 

substance, not just those necessary to 

confirm a preliminary investigatory 

determination that a question of 

representation exists. 

In 1959, Congress amended Section 

3(b) of the Act to provide for Board 

delegation of its Section 9 

representation case duties to regional 

directors in an effort to address a serious 

casehandling backlog at the Board level. 

During this legislative process, there 

were numerous unsuccessful proposals 

to revive the pre-hearing election that 

the Taft-Hartley Act eliminated.37

Instead, as further discussed in the 

following section, Congress resolved 

upon the delegation language, with an 

express reservation of the right of 

parties to file pre-election requests for 

review of a regional director’s posthearing direction of election. The final 

language of Section 3(b), as an 

alternative to the pre-hearing elections 

proposals, was explained by 

Representative Barden, Chairman of the 

House Committee on Education and 

Labor in the Conference Report: 

There is one addition and that is this. The 

conferees adopted a provision that there 

should be some consideration given to 

expediting the handling of some of the 

representation cases. Therefore, the Board is 

authorized, but not commanded, to delegate 

to the regional directors certain powers 

which it has under section 9 of the act. Upon 

an appeal to the Board by any interested 

party the Board would have the authority to 

review and stay any action of a regional 

director, delegated to him under section 9. 

But the hearings have not been dispensed 

with. There is not any such thing as 

reinstating authority or procedure for a 

quicky election. Some were disturbed over 

that and the possibility of that is out. The 

right to a formal hearing before an election 

can be directed is preserved without 

limitation or qualification. 105 Cong. Rec. 

16629 (September 4, 1959), reprinted in 2 

Legislative History of the LMRDA, 1959 at 

1714 (emphasis added), describing H.R. Rep. 

86–1147, at 1 (September 3, 1959), reprinted 

in 1 Legislative History of the LMRDA, 1959, 

at 934 (conference report).38

Thus, the amendment to Section 3(b) 

did not expressly or implicitly alter the 

scope of the pre-election ‘‘appropriate 

hearing’’ required to be held on 

contested issues. In 1961, when the 

Board amended its Rules and 

Regulations to delegate its powers 

pursuant to Section 3(b)’s authorization, 

the amended rules likewise remained 

consistent with the traditional broad 

view of an ‘‘appropriate hearing.’’ 

Section 101.20(c) stated, in relevant 

part: ‘‘The hearing, which is 

nonadversary in character, is part of the 

investigation in which the primary 

interest of the Board’s agents is to insure 

the record contains as full a statement 

of the pertinent facts as may be 

necessary for determination of the case. 

The parties are afforded full opportunity 

to present their respective positions and 

to produce the significant facts in 

support of their contentions.’’ Section 

102.66(a) stated, in relevant part: ‘‘Any 

party shall have the right to appear at 

any hearing in person, by counsel, or by 

other representative, and any party and 

the hearing officer shall have power to 

call, examine, and cross-examine 

witnesses and to introduce into the 

record documentary and other 

evidence.’’ Section 102.64(a) stated, in 

relevant part: ‘‘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.’’ 

Were there any doubt remaining about 

the required scope of a mandatory 

appropriate pre-election hearing—and 

there should have been none—it was 

put to rest in trio of Board decisions in 

the 1990s. First, the Board held in 

Angelica Healthcare Services Group, 

315 NLRB 1320 (1995), that an acting 

regional director erred by denying a 

union a hearing on a contested contract 

bar issue before directing a 

decertification election to be held. The 

Board remanded the case for a hearing, 

but found no need to decide in advance 

‘‘the type of hearing that would be 

necessary to satisfy the Act’s 

‘appropriate hearing’ ’’ requirement. Id. 

at 1321 fn.6. 

The question left unanswered in 

Angelica Healthcare was addressed in 

Barre-National, 316 NLRB 877 (1995). 

The regional director in that case 

precluded the employer from presenting 

evidence at a pre-election hearing about 

the supervisory status of a group of 

employees constituting 8 to 9 percent of 

the potential unit. Instead, the regional 

director only permitted the employer to 

make an offer of proof, then directed an 

election at which the disputed 

employees were allowed to vote subject 

to challenge. Resolution of their alleged 

supervisory status was deferred to the 

post-election challenge procedure. The 

Board held that the regional director 

erred by refusing to allow the employer 

to present the evidence of supervisory 

status and, therefore, the pre-election 

hearing ‘‘did not meet the requirements 

of the Act and the Board’s Rules and 

Statements of Procedure.’’ Id. at 878. It 

thereby confirmed the longstanding 

statutory interpretation and Board 

practice requiring that an appropriate 

pre-election hearing must include full 

evidentiary litigation of contested 

issues, including those related to unit 


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39At the same time, the Board confirmed the 

longstanding practice of deferring to the postelection stage a decision on issues involving the 

voting eligibility of a minimal number of 

individuals. 316 NLRB at 878 fn. 9. 40See Barre-National, 316 NRLB at 880 (Member 

Stephens, concurring) (‘‘[I]n my view, the statute— 

even apart from our implementing rules and 

regulations—entitles parties to preelection 

testimonial hearings’’); and (Member Cohen, 

dissenting) (‘‘My colleagues concede, as they must, 

that the Regional Director violated the procedures 

of the Act, as well as the Rules of the Board, by not 

permitting the Employer to adduce evidence on the 

issue of supervisory status’’). 

41 328 NRLB at 372–373. 

42Representative Barden clarified that the 

legislative intent was that ‘‘the regional directors in 

making any decisions or rulings pursuant to a 

delegation permitted by that section would be 

subject to and bound by [established Board] 

precedents and rules and regulation [and that] 

* * * an appeal to the Board is provided to prevent 

and/or remedy any abuse of discretion or departure 

from Board precedent or Board rules and 

regulations by the regional directors.’’ 105 Cong. 

Rec. A8061 (September 4, 1959) reprinted in 2 

Legislative History of the LMRDA, 1959, at 1812. 

See also Representative Kearns (‘‘To make certain 

Board policy is followed by regional directors, 

provision is made for appeal to the Board.’’) 105 

Cong. Rec. A4307–4308 (May 21,1959) reprinted in 

2 Legislative History of the LMRDA, 1959, at 1749– 

1750. 

43Although the Rule ostensibly provides the 

possibility for an appeal by ‘‘special permission’’ in 

an ‘‘extraordinary’’ situation, that possibility is 

entirely illusory. The ‘‘new, narrower standard’’ my 

colleagues impose limits ‘‘special permission’’ to 

‘‘extraordinary circumstances where it appears that 

the issue will otherwise evade review.’’ 76 FR 

80162(emphasis added). This severely narrow 

standard offers no meaningful alternative to seek 

review that compensates for the Final Rule’s 

elimination of Sec. 3(b)’s right to seek pre-election 

Board review. See, e.g., 76 FR 80141 (‘‘the Board 

has decided * * * to eliminate the parties’ right to 

file a pre-election request for review of a regional 

director’s decision and direction of election, and 

instead to defer all requests for Board review until 

after the election’’); 76 FR 80172 (final rule 

‘‘adopts’’ proposals ‘‘to eliminate the preelection 

request-for-review procedure’’). 

44As stated below, I find that the Rule’s 

elimination of pre-election requests for review is 

also impermissibly arbitrary and capricious. 

45There is no support for the view that the 

elimination of a party’s right to seek pre-election 

review ‘‘carr[ies] out 3(b)’s instruction that Board 

review shall not * * * operate as a stay unless 

specifically ordered by the Board.’’ On the contrary, 

as set forth above, this language in 3(b) that, 

‘‘review shall not * * * operate as a stay’’ will be 

rendered meaningless by the Final Rule’s 

elimination of the right to pre-election review. 

inclusion/exclusion and voter 

eligibility.39

In attempting to reconcile the Board’s 

rationale in Barre-National with the 

new Rule’s direction that pre-election 

hearing litigation should be limited to 

issues concerning whether a question 

concerning representation exists, my 

colleagues mischaracterize the Board’s 

holding as resting only on the hearing 

requirements in Section 102.66(a) and 

101.20(c) of the existing regulations, not 

the Act itself, because of the Board’s use 

of the conjunctive ‘‘and’’ rather than 

‘‘or’’. 76 FR 80165. They assert that their 

revision of Section 102.66(a) and the 

elimination of Section 101.20(c) thus 

‘‘removes the basis for the Board’s 

holding in Barre-National’’ and that 

they will ‘‘no longer follow BarreNational.’’ 76 FR 80164, 80165. 

The majority’s reliance on the use of 

‘‘and,’’ rather than ‘‘or’’ in support of a 

claim that the Rule does not overrule 

Barre-National is semantic nonsense, 

and disingenuous to boot. Clearly and 

expressly, the Board relied on the 

requirements of Section 9(c)(1) of the 

Act and its implementation in the cited 

Rules in concluding that the regional 

director in Barre-National denied the 

employer a full pre-election evidentiary 

hearing on a unit inclusion/exclusion 

issue to which it was entitled. As the 

concurring and partial dissenting 

opinions make clear, the root source of 

that entitlement is the Act, not the 

implementing Rules.40 A Board panel 

confirmed this view in North 

Manchester Foundry, Inc, 328 NRLB 372 

(1999). The hearing officer, affirmed by 

the regional director, precluded 

litigation of contested unit placement 

issues, deferring any litigation and 

decision to post-election challenge and 

objection procedures. Relying on BarreNational’s holding that such a limitation 

on litigation at the pre-election hearing 

‘‘did not meet the requirements of the 

Act or of the Board’s Rules and 

Statements of Procedure,’’ the Board 

remanded the proceeding to the regional 

director to reopen the hearing for the 

required presentation of evidence on 

disputed unit placement issues.41

Manifestly, the decisions in Angelica 

Healthcare, Barre-National, and North 

Manchester Foundry, despite resting in 

part on the Board’s implementing 

regulations, all explicitly rely on the 

requirement in Section 9(c)(1) that an 

appropriate pre-election hearing must 

include full litigation of all legitimate 

contested election issues. Just as 

manifestly, my colleagues’ Rule limiting 

pre-election litigation to issues relevant 

to questions concerning representation, 

leaving all else to the post-election stage 

of proceedings, overrules this precedent 

and flies in the face of the statutory 

language, legislative history, and 

decades of consistent Board practice 

and precedent. The Rule’s restriction is 

an impermissible interpretation of the 

Act. 

B. Elimination of Pre-Election Requests 

for Review Cannot Be Reconciled With 

the Language and Intent of Section 3(b) 

The Board is * * * authorized to delegate 

to its regional directors its powers under 

section 9 to determine the unit appropriate 

for the purpose of collective bargaining, to 

investigate and provide for hearings, and 

determine whether a question of 

representation exists, and to direct an 

election or take a secret ballot under 

subsection (c) or (e) of section 9 and certify 

the results thereof, except that upon the filing 

of a request therefore with the Board by any 

interested person, the Board may review any 

action of a regional director delegated to him 

under this paragraph, but such a review shall 

not, unless specifically ordered by the Board, 

operate as a stay of any action taken by the 

regional director. 

As set forth above, Section 3(b) of the 

Act permits the Board to ‘‘delegate to its 

regional directors’’ the Board’s authority 

in representation cases, but is 

conditioned on the right of ‘‘any 

interested person’’ to seek Board review 

and a potential Board-ordered ‘‘stay’’ of 

‘‘any action.’’ The inclusion in Section 

3(b) of a potential Board ‘‘stay of any 

action’’ by the regional directors shows 

that Congress clearly intended that a 

party have the right to seek pre-election 

Board review following a hearing 

because it clearly preserved the right to 

request a Board ordered ‘‘stay’’ of the 

election. This was viewed as a necessary 

check on the exercise of delegated 

powers.42 See, e.g., Avon Prods., 262 

NLRB 46, at 48 fn.8 (1982) (explaining 

that the Board should have stayed the 

election following the employer’s 

request for review of unit inclusion of 

a large number of employees). 

The statutory provision permitting the 

stay of an election will have no meaning 

if, as the Rule provides, a party is no 

longer able to obtain pre-election Board 

review of a regional director’s direction 

of election. Obviously, the Board cannot 

stay an election if, as the Rule provides, 

the right to seek review is foreclosed 

until after the election.43 Section 3(b) 

contemplates that the Board, in some 

cases, will exercise its discretion to 

order a stay of a direction of election 

where there are unresolved questions 

that could affect the results of the 

election. For purposes of a Chevron step 

one analysis, it does not matter whether 

the Board has rarely exercised this 

discretion or whether, in the absence of 

express statutory language, it is rational 

to permit pre-election requests for 

review.44 The Rule impermissibly 

contravenes the Act by failing to give 

meaningful effect to an express term of 

Section 3(b). It is invalid to eliminate a 

party’s right to seek pre-election review 

(and a potential ‘‘stay’’ of the election) 

simply because such requests are often 

denied.45

In sum, the Rule contravenes decades 

of Board practice consistent with the 

plain meaning of the language of the Act 

and Congressional intent manifested in 


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46My colleagues, of course, may not rely on 

precedent holding that an administrative agency is 

‘‘not estopped from changing a view [it] believes to 

have been grounded upon a mistaken legal 

interpretation.’’ Good Samaritan Hosp. v. Shalala, 

508 U.S. 402, 417 (1993). That authority is good 

only so long as the new interpretation ‘‘is otherwise 

legally permissible and is adequately explained.’’ 

Chem. Waste Mgmt., Inc. v. EPA, 873 F.2d 1477, 

1481 (D.C. Cir. 1989). The Rule is neither. 

Moreover, where as here, the rule overturns the 

Board’s 65 year-old interpretation, little if any 

deference is due. ‘‘An agency interpretation of a 

relevant provision which conflicts with the 

agency’s earlier interpretation is ‘entitled to 

considerably less deference’ than a consistently 

held agency view.’’ INS v. Cardoza-Fonseca, 480 

U.S. 421, 447 n. 30 (1987) (quoting Watt v. Alaska, 

451 U.S. 259, 273 (1981)). 

47Allentown Mack Sales and Service, Inc. v. 

NLRB, 522 U.S. 359, 374 (1998). 

48 5 U.S.C. 706(2)(A). 

49As the D.C. Circuit has observed, inquiry at the 

second step of Chevron, i.e., whether an agency has 

made a permissible statutory interpretation, 

overlaps with the APA’s ‘‘arbitrary and capricious 

standard.’’ See Shays v. FEC. 414 F.3d 76, at 96– 

97 (2005), and cases cited there. 

50NLRB General Counsel Memorandum 11–03, 

‘‘Summary of Operations Fiscal Year 2010’’ at 

‘‘Introduction’’ (Jan. 10, 2011), available at http:// 

www.nlrb.gov/publications/general-counsel-memos. 

51NLRB General Counsel Memorandum 12–03, 

‘‘Summary of Operations Fiscal Year 2011’’ at 

‘‘Introduction’’ (Mar. 3, 2012), available at http:// 

www.nlrb.gov/publications/general-counsel-memos. 

52There is, of course, an exception to this 

presumption. That is the contrary presumption of 

legitimacy in litigation of union unfair labor 

practice charges that support the Board’s current 

blocking charge policy, with resultant delays of 

months or even years. 

53 John Logan, Erin Johansson, & Ryan Lamare, 

‘‘New Data: NLRB Process Fails to Ensure A Fair 

Vote’’ (June 2011), http://laborcenter.berkeley.edu/ 

laborlaw/NLRB_Process_June2011.pdf.; Kate 

Bronfenbrenner & Dorian Warren, ‘‘The Empirical 

Case for Streamlining the NLRB Certification 

Process: The Role of Date of Unfair Labor Practice 

Occurrence’’ (2011), http://iserp.columbia.edu/ 

sites/default/files/working_papers/ 

working_paper_cover_2011-final.pdf.; and Kate 

Bronfenbrenner, ‘‘No Holds Barred: The 

Intensification of Employer Opposition to 

Organizing’’ (May 20, 2009), http://www.epi.org/ 

page/-/pdf/bp235.pdf?nocdn=1; My colleagues 

tiptoe to the edge of endorsing these studies, but 

claim not to do so. They nevertheless clearly do 

share with the authors the presumption that 

employer representation case litigation is 

presumptively illegitimate, or an unnecessary 

impediment to elections, while union unfair labor 

practice charges are presumptively legitimate and, 

as such, an accurate reflection of unlawful 

employer interference with elections. The latter 

presumption informs and, alone, irreparably flaws 

the authors’ studies. 

legislative history.46 The Rule cannot be 

upheld under Chevron step one because 

it represents an impermissible 

limitation on the intended scope of an 

‘‘appropriate hearing’’ that, since 

enactment of the Taft-Hartley Act, must 

be held prior to an election on all 

genuine and material contested issues. It 

is likewise contrary to Congressional 

intent that delegation to regional 

directors of duties in representation 

matters be conditioned on the right of 

parties to seek pre-election review by 

the Board of a regional director’s action 

and to obtain an order from the Board 

staying an election while reviewing 

such action. 

III. The Rule Is Arbitrary and 

Capricious 

The Administrative Procedure Act, which 

governs the proceedings of administrative 

agencies and related judicial review, 

establishes a scheme of ‘‘reasoned 

decisionmaking.’’ * * * Not only must an 

agency’s decreed result be within the scope 

of its lawful authority, but the process by 

which it reaches that result must be logical 

and rational. Courts enforce this principle 

with regularity when they set aside agency 

regulations which, though well within the 

agencies’ scope of authority, are not 

supported by the reasons that the agencies 

adduce.47

Even if one were to find that Congress 

has not directly addressed issues in 

Section 9 and Section 3(b) of the Act in 

a manner contrary to the Rule’s electoral 

revisions, the Rule in general and in 

several particulars still does not warrant 

deference under the Administrative 

Procedure Act (APA) 48 or Chevron step 

two 49 because the Rule is ‘‘arbitrary or 

capricious.’’ United States v. Mead 

Corp., 533 U.S. 218, 227 (2001). See also 

American Hosp. Ass’n, 499 U.S. at 618– 

20 (applying arbitrary and capricious 

standard in its consideration of the 

Board’s rule on acute care hospital 

bargaining units). ‘‘Normally, an agency 

rule would be arbitrary and capricious 

if the agency has relied on factors which 

Congress has not intended it to 

consider, entirely failed to consider an 

important aspect of the problem, offered 

an explanation for its decision that runs 

counter to the evidence before the 

agency, or is so implausible that it could 

not be ascribed to a difference in view 

or the product of agency expertise.’’ 

Motor Vehicle Mfrs. Ass’n of the United 

States, Inc. v. State Farm Mut. 

Automobile. Ins. Co., 463 U.S. 29, 43 

(1983). The Rule is arbitrary under 

multiple counts of the State Farm test. 

A. What delay does the rule rationally 

address? 

My colleagues repeatedly assert in 

both the NPRM and the Rule that their 

purpose is to address the problems of 

‘‘delay’’ and ‘‘unnecessary litigation’’ in 

election case processing. As a general 

matter, who could quarrel with such a 

proposition? Further, anecdotal 

identification of representation cases 

which took too long to bring to 

conclusion is about as difficult as 

shooting ducks in a barrel. Yet my 

colleagues never meaningfully define 

the purported systemic problems they 

seek to address. Neither do they set 

forth any rational measures or standards 

by which one might understand the 

contours of the problems, much less 

evaluate whether their Rule is 

reasonably drawn to correct them. 

Instead, they reason in reverse, 

pronouncing solutions first, then 

identifying affected procedures as 

problems. 

The Rule nominally addresses two 

types of delay: Delay from the time of 

the petition to an election, and delay 

from the time of an election until 

certification of results or representative. 

Notwithstanding the Acting General 

Counsel’s characterization of the 

agency’s performance as 

‘‘outstanding’’ 50 and ‘‘excellent’’ 51

when measured by current agency 

median time targets, my colleagues 

implicitly find that the targets for these 

stages are too long. They never quite say 

why. Instead, they simply contend that 

it will take less time to process cases 

with their procedural revisions. 

Implicit in their analysis, however, is 

the conviction that the primary 

contributor to delay is litigation, either 

in pre-election hearings, filing of briefs, 

pre-election requests for review, or 

nondiscretionary Board review of postelection contested issues. Eliminate this, 

they say, and the problem of delay is 

significantly lessened, subject of course 

to their further review of the remaining 

reserved proposals in the NPRM. 

In sum, my colleagues view litigation 

as the devil’s work, and the devil 

presumably works for those who oppose 

a rapid electoral process ending in a 

union’s certification as employees’ 

bargaining representative.52 Not only 

does litigation cause delay per se, 

regardless of the merits of issues raised 

or their importance to the parties and 

employee voters, but it is susceptible to 

abuse. Further, at least prior to an 

election, delay from litigation affords 

more time for employers to go on an 

unfair labor practice rampage to 

eliminate union support as well as its 

union supporters, according to some 

commenters to the rulemaking, 

including pro-union authors of some 

highly questionable academic 

‘‘studies.’’ 53

It cannot be disputed that the efficient 

and expeditious exercise of our 

statutory mandate is an appropriate and 

important goal that is central to our 

mission. But labeling litigation as a 

generic and principal cause of 

undefined delay and abuse, warranting 

immediate remediation over all other 

possible causes of delay, is an 


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54 FCC v. Fox Television Stations, Inc., 556 U.S. 

502, 129 S.Ct. 1800, 1813 (2009). 

55 General Counsel Memorandum 12–03, supra at 

Introduction and p.2–3. 

impermissibly arbitrary way of meeting 

that goal. 

B. Failure To Consider the Board’s Own 

Statistical Evidence 

‘‘There are some propositions for 

which scant empirical evidence can be 

marshaled,’’ 54 but that is certainly not 

the case in this rulemaking venture. The 

Board has access to a vast and detailed 

wealth of representation casehandling 

information that can readily be obtained 

through its own records. ‘‘[T]he agency 

must examine the relevant data and 

articulate a satisfactory explanation for 

its action including a ‘rational 

connection between the facts found and 

the choice made.’ ’’ State Farm, 463 U.S. 

at 43 (quoting Burlington Truck Lines v. 

United States, 371 U.S. 156, 168 (1962)). 

See also Business Roundtable et al v. 

SE.C., 647 F.3d 1144 (D.C. Cir., 2011) 

(finding SEC acted arbitrarily and 

capriciously by relying on insufficient 

empirical data supporting its rule and 

by completely discounting contrary 

studies). No such effort was made here, 

evincing an arbitrary disregard for 

identifying the real problem areas in 

representation case processing. 

First, there is the matter of the 

Agency’s official performance goals. I 

find perplexing my colleagues’ 

indifference to these published goals 

and statistical evidence of whether the 

Board meets or exceeds them. These are, 

after all, the reported standards by 

which we annually ask Congress and 

the public to evaluate how well we are 

doing our job of processing election 

petitions. They are also the measures by 

which the performance of senior agency 

managers is evaluated. In any case, in 

the absence of any standard or measure 

presented by my colleagues to replace 

the Agency’s published goals as 

measures of efficiency, these measures 

would seem to be the rational starting 

point for an assessment of what cases 

took too long to process. 

According to information in the 

Acting General Counsel’s recent 

summary of operations for Fiscal Year 

(FY) 2011: 55

—The Board closed 84.7% of all 

representation cases within 100 days, 

just short of the performance goal of 

85%. 

—The Regions conducted 1,423 initial 

representation elections, of which 

89.0% were held pursuant to 

agreement of the parties. In FY 2010, 

1,790 initial elections were held, with 

a 92.1% election agreement rate. The 

target election agreement rate is 85% 

of elections. 

—The median time to proceed to an 

election from the filing of a petition 

was 38 days, the same rate achieved 

in FY 2010, and well below the target 

median of 42 days. 

—91.7% of all initial representation 

elections were conducted within 56 

days of the filing of the petition, 

above the target rate of 90%. In FY 

2010, 95.1% of elections were 

conducted within 56 days. 

—Regional directors issued 203 preelection decisions in contested 

representation cases after hearing in a 

median of 33 days from the filing of 

the petition, well below the target 

median of 45 days. In FY 2010, 

regional directors issued 185 preelection decisions in a median time of 

37 days. 

—In 45 cases, post-election objections 

and/or challenges were filed requiring 

the conduct of an investigative 

hearing. Decisions or Supplemental 

Reports were issued in those cases in 

a median of 62 days. The goal is a 

median of 80 days. 

—Post-election objections and/or 

challenges that could be resolved 

without a hearing were filed in 70 

cases. Decisions or Supplemental 

Reports in those cases issued in a 

median of 21 days. The goal is a 32- 

day median. 

The foregoing statistics fail to disclose 

any widespread problem of delay in 

election case processing. They do invite 

inquiry into the approximately 15% of 

cases that took more than 100 days to 

close and the approximately 8% of 

those that took more than 56 days to 

move from petition to election. My 

colleagues made no such investigation. 

Commenter Samuel Estreicher did. 

Referring to a study of Board 

casehandling statistics for 2008, he said 

It is not clear, however, that the median 

[time from petition to election] can be 

significantly reduced without the agency also 

addressing the ‘‘long tail’’ of the 

distribution—the fact that in 2008, for 

example, 251 of 2024 (or 12.43% of) elections 

were held more than 56 days after the filing 

of the petition. The causes of delay in these 

cases warrant further study. There may well 

be a substantial overlap between these cases 

and the 284 petitions that were ‘‘blocked’’ in 

2008 (pursuant to the Board’s ‘‘blocking 

charge’’ policy) where the median time in 

2008 between petition and election was 139 

days compared to 38 days overall. 

My colleagues’ response to Professor 

Estreicher was effectively to say they 

would get to that study of blocking 

charges later, if at all, but the Rule’s 

revisions should come first. They give a 

similar response to suggestions that the 

Board could effectively and 

immediately attack representation case 

delay, without any rule revisions, by 

cleaning its own house. Indeed, my 

review of the Board’s internal 

computerized case information system 

indicated that on the date of the Rule’s 

publication there were at least 20 

election cases that had been pending 

before the Board for more than 100 days. 

The Board, not any systemic flaw in 

extant rules, is responsible for this 

clearly unacceptable delay. 

Nevertheless, rather than focusing on 

deciding these cases, my colleagues 

choose their Rule-first approach. They 

rationalize that the reduction of cases 

reaching the Board as a result of the 

Rule will give them more time to attend 

to such matters. I address that 

embarrassing rationale in a subsequent 

section. 

I asked members of my staff to 

conduct a study of the Board’s internal 

computerized case tracking information 

system maintained by the Acting 

General Counsel’s personnel in order to 

ascertain the details of cases that took 

longer than the 56/100 day time targets 

to process. The results of that study, 

which is instructive even if concededly 

not exhaustive, indicate that the Rule 

may do little to speed up overall 

election case processing. 

The staff study confirmed Professor 

Estreicher’s observation that when cases 

take longer than 100 days to process, 

much of the ‘‘delay’’ can be attributed 

to the effects of post-election case 

processing, blocking charges, or delays 

in case deliberations by the Board itself. 

There is little evidence that, as a 

systemic matter, conducting preelection hearings, permitting the filing 

of post-hearing briefs, and processing 

pre-election requests for review 

unreasonably delayed an election or the 

ultimate conclusion of cases. In some 

cases where there was arguable delay 

prior to the election, explanations for 

this had nothing to do with the hearing 

and its aftermath. Instead, the additional 

time before an election resulted from a 

post-hearing scheduling agreement by 

the parties or the need to accommodate 

a seasonal workforce pattern of 

employment. 

The aforementioned statistical 

studies, as limited as they may be, are 

some evidence that my colleagues’ Rule 

is misdirected if intended to achieve 

greater efficiency in representation 

election casehandling. But the more 

salient point underscoring the arbitrary 

nature of the Rule’s substance is that my 

colleagues have made no effort 

themselves to examine such data and to 

establish a ‘‘rational connection 


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56Burlington Truck Lines, supra, 371 U.S. at 168. 

57 In 2008, 1579 elections were held pursuant to 

stipulation, while only 75 consent elections were 

held. NLRB Annual Report FY 2008. In 2009, 1370 

elections were held pursuant to stipulation, while 

only 41 consent elections were held. NLRB Annual 

Report FY 2009. 

58Even in the absence of an election agreement, 

the Rule eliminates the automatic right of review in 

cases where a regional director makes the 

discretionary choice of issuing a report and 

recommendations on post-election issues. 

59 76 FR 80161. 

60See Bennett Industries, Inc., 313 NLRB 1363 

(1994). 

61 In FY 2010, 43% of cases that went to a preelection hearing (68 of 158) closed in more than 100 

days; in FY 2009, 45% (57 of 127), and 51% (78 

of 152) in FY 2008. 

62 76 FR 80141. 

63My colleagues define mootness relative to a 

particular election. Of course, the failure to resolve 

a ‘‘mooted’’ issue may well contribute to what 

would be unnecessary uncertainty, litigation, and 

delay in the processing of a rerun election or an 

election following a new union campaign. The more 

individuals whose status is left in limbo by the 

Rule’s revisions, the greater is the likelihood of this 

happening. 

between the facts found and the choice 

made.’’ 56

C. The Pre-Election Rule Revisions 

1. Stipulated Election Agreements 

In recent years, about 90% or more of 

representation elections were 

expeditiously held pursuant to election 

agreements. The stipulated election 

agreement was by far the preferred 

alternative to the consent agreement.57

The stipulated agreement resolved all 

pre-election disputes but preserved the 

automatic right to Board review of a 

regional director or hearing officer’s 

disposition of post-election challenges 

and objections. The Rule now 

eliminates that right, substituting for 

mandatory review a discretionary 

request for review procedure that 

currently exists for the disposition of 

pre-election issues.58 Without any 

empirical support, my colleagues 

contend that this will have no deterrent 

effect on the percentage of pre-election 

agreements. 

This is a classic case of ‘‘if it ain’t 

broke, don’t fix it.’’ It seems natural that 

parties would negotiate resolution of 

known pre-election issues but at the 

same time assure the possibility of 

highest agency review of unforeseen 

election conduct and eligibility issues 

that arise during the critical election 

period. It also seems natural that the 

willingness of parties to compromise on 

pre-election issues would be adversely 

affected by the elimination of the right 

to agree to mandatory post-election 

Board review. Not so, claim my 

colleagues. In deciding whether to enter 

into an election agreement, parties will 

still prefer one that preserves even a 

limited right of Board review over one 

that provides for final disposition of 

post-election issues at the regional 

level.59 In all other respects, they 

contend, parties will continue to 

consider the same factors previously 

considered when deciding whether to 

enter into an election agreement at all. 

Of course, my colleagues could be 

wrong, and it was their rulemaking 

responsibility to give more than cursory 

thought, if that, to this possibility. The 

assurance of mandatory, as opposed to 

discretionary, Board review of challenge 

and objections issues could be a prime 

consideration to some employers in 

agreeing to forego what otherwise must 

be litigated pre-election issues, even 

under the Rule’s limitations, and, 

perhaps more importantly, to resolve 

most eligibility and unit placement 

issues prior to an election rather than 

litigate them post-election as 

determinative challenges. If the 

percentage of election agreements 

diminishes by even a few points as a 

result of this changed calculus, the 

consequent increase in pre- and postelection litigation will almost certainly 

wipe out what little actual redress of 

perceived delay is effected by the Rule’s 

implementation. 

My colleagues’ willingness to 

undertake such speculative risk without 

adequate consideration of its potential 

adverse consequences is at least 

partially explained by their apparent 

agreement with commenters who 

contend that employers use the election 

agreement process to extort 

unwarranted concessions from unions, 

who capitulate in order to avoid the 

delay attendant to litigation of disputed 

issues. Again, this view is based on the 

presumption that employers could not 

really have legitimate issues to raise in 

litigation. If there are legitimate 

disputes, and I dare to say this can be 

the case, then the process of negotiating 

an election agreement in which an 

employer waives such litigation rights 

in exchange for concessions about unit 

scope, unit placement, or election 

details, seems to fairly resemble the 

give-and-take bargaining that would 

ensue after a petitioning union wins an 

election and is certified. 

In sum, apart from other reasons, 

discussed below, I find the Rule’s 

elimination of mandatory Board review 

of post-election disputes to be arbitrary 

and capricious. The resultant 

elimination of a highly-favored process 

that encouraged the negotiated 

resolution of all pre-election issues is 

not only wholly unsubstantiated but 

also contrary to the purpose for which 

the Rule is purportedly drawn. 

2. Pre-Election Hearings 

As previously discussed, the Rule’s 

limitation of issues that can be litigated 

in a pre-election hearing is 

impermissibly contrary to the language 

and Congressional intent for Section 

9(c)(1). Even if the Board had the 

discretion to impose this limitation, it 

has failed to offer a rational justification 

for doing so. 

Obviously, the length of the hearing 

itself is not a significant problem. Even 

under current rules permitting litigation 

of disputed issues other than those 

relevant to whether a question 

concerning representation exists, the 

average hearing lasts one day and few 

last more than two. Further, while 

hearing officers must currently create a 

complete record, they clearly have had 

the ability under existing procedures to 

limit the introduction of evidence on 

issues where a party bears the burden of 

proof and fails to take a position.60

My colleagues are essentially 

concerned with the time it takes to get 

to a hearing and the time it takes to get 

from a hearing to an election. 

Accordingly, they seek to limit the 

number of pre-election hearings by 

limiting the issues that can be litigated, 

and they eliminate the pre-election 

review process and the attendant 

recommended 25-day waiting period 

prior to the election. 

Although it can take longer to get to 

an election when the Board conducts a 

pre-election hearing, an initial question 

is how much longer? My staff’s review 

of agency statistics indicates that more 

than half of the pre-election hearing 

cases are closed within 100 days of the 

petition, thus meeting the agency 

performance goals.61 Also, in recent 

years, the median days from petition to 

election in cases with pre-election 

hearings is about 64 days, just 8 days 

above the agency performance goal for 

elections where no hearing is held. 

Nevertheless, my colleagues repeat as 

a mantra the claim that their revisions 

will alleviate unnecessary litigation and 

delay because ‘‘the issues in dispute in 

such litigation are often rendered moot 

by the election results or resolved by the 

parties post-election.’’ 62

Once again, my colleagues offer no 

empirical support whatsoever for a 

stated premise, in this instance the 

premise that the now-deferred issues are 

often rendered moot.63 One would 

think, at the very least, that they would 

want to examine case statistics from 

recent years to get an idea of what issues 

would still have to be litigated preelection and what issues that will now 

be deferred would still have to be 


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64 181 F.2d at 431. 65 76 FR 80141. 66 76 FR 80185. 67 In fact, the Agency’s internal training program 

expressly instructs decision-writers to begin 

drafting pre-election regional directors’ decisions 

before the briefs arrive. See NLRB Professional 

Development Program Module 5: Drafting Regional 

Director Pre-Election Decisions, last updated May 

23, 2004, Participants Guide and Instructors Guide. 

litigated in the post-election hearing. It 

seems logical that some issues will 

indeed be mooted by the election 

outcome. It seems just as logical that 

some issues will survive, particularly in 

light of the strong possibility that the 

deferral of unit eligibility and placement 

issues without limitation for the number 

of individuals involved will greatly 

increase the number of elections with a 

determinative number of challenged 

ballots. If so, then the Rule only 

backloads litigation, with no real 

shortening of the time to process a 

representation case from petition to 

closing. 

In any event, balanced against any 

potential net gain in the time for 

election case processing is the need to 

resolve many, if not most, disputed 

election issues sooner rather than later. 

In other words, even if litigation means 

an election will be held at a later time, 

is the delay reasonably necessary and 

could it even expedite final resolution 

of the election process? See, e.g., 

Excelsior Underwear, Inc., 156 NLRB 

1236, 1243 (1966), reasoning the early 

identification of ‘‘bona fide disputes 

between employer and union over 

voting eligibility’’ may avoid resorting 

to ‘‘the formal and time-consuming 

challenge procedures.’’ 

My colleagues may not think so, but 

there are employees, employers, and 

unions who believe that there is value 

in the early resolution of individual 

issues that do not bear on whether an 

election should be held at all. In 

particular, employees quite reasonably 

would like to know if they are eligible 

to vote and will be part of a bargaining 

unit that the union seeks to represent. 

Telling them they can cast a challenged 

ballot, with their eligibility possibly to 

be resolved later, is hardly an 

inducement to participate in the 

electoral process. Further, individuals 

whose status as supervisors is disputed 

would reasonably like to have that issue 

resolved before an election, as would 

their employer and the participating 

union. It is unbecomingly blase ́ of my 

colleagues to state that, because 

resolution of this issue would in any 

event not undo the effect of antecedent 

actions taken in the election campaign, 

there is no problem with postponing 

such resolution until after the election, 

if then. They are aware, I believe, that 

an employer can lawfully discharge or 

discipline a statutory supervisor for 

engaging in union activity, even if the 

individual mistakenly believed he was 

an employee, or was told so by the 

union. 

My colleagues also rely on the 

traditional Board practice of deferring 

final decision on some individual 

eligibility and unit status issues until 

after an election. They describe the 

Board’s practice as ‘‘regular’’ and 

‘‘frequently’’ used, but once again make 

no effort to provide statistical support 

for this characterization. It is certainly 

true that over the years, an informal 

guideline has evolved in Board law and 

practice that permits the holding of 

elections in appropriate circumstances 

when it remains unclear whether a 

small number of voters belong in the 

voting unit by permitting the disputed 

individuals to vote under challenge. 

Usually, the number of such challenges 

does not exceed about 10–12% of the 

unit. See, e.g., Silver Cross Hospital, 350 

NLRB 114, 116 fn. 10 (2007) (the Board 

permitted two employees, which was 

about 11% of the unit, to vote under 

challenge.) This practice is not, 

however, per se. It merely informs the 

Board’s consideration of individual 

cases when difficult issues or 

insufficient record evidence would 

otherwise tie up processing the case for 

some time. The Board considers 

whether there is a cognizable possibility 

that votes cast by a small percentage of 

a voting unit will make no difference in 

the outcome of the election, and the 

parties may have a final outcome 

regarding the question concerning 

representation sooner. This is not done 

without thought or without recognition 

of the risk that failing to resolve 

disputes before the election may lead to 

more litigation. By this discretionary 

case-by-case practice, the Board has 

recognized practical exceptions to its 

established standards of litigating and 

resolving all disputes before an election, 

including voter eligibility and unit 

placement questions. 

The fact that the Board has deferred 

some pre-election issues for a limited 

number of individuals in an 

indeterminate number of cases hardly 

justifies doing so axiomatically for an 

unlimited number of individuals. 

Although decided under the pre-Taft 

Hartley ‘‘substantial issue’’ rule for preelection hearings, the court’s opinion in 

SW. Evans & Son speaks directly and 

critically to my colleagues’ rationale for 

doing so. 

It is a simple matter, from the vantage 

point of hindsight, to determine the 

substantiality of issues raised, as the 

petitioner suggests, on the basis of election 

results which, fortuitously, may be such as 

could remain unaffected by the ultimate 

conclusion of those issues. But the problem 

of substantiality, in our view, is one to be 

determined prospectively. Indeed, were it 

otherwise, the very purpose of the 

amendment to the Rules and Regulations, to 

avoid delay, would be annulled. We are of 

the opinion that the respondent here raised 

substantial issues and under the Rules and 

Regulations of the Board it was entitled to a 

pre-election hearing.64

3. Post-Hearing Briefs 

Under current rules, parties are 

afforded the opportunity to file posthearing briefs within seven days after 

the pre-election hearing, or later with 

special permission. Whether or not 

required as a matter of minimum due 

process, the right to file post-hearing 

briefs has become an established Board 

practice. Yet, my colleagues now claim 

that this practice ‘‘often delays issuance 

of the regional director’s decision and 

direction of election, thereby delaying 

resolution of the question of 

representation even when the issue or 

issues in dispute can be accurately and 

fairly resolved without briefing.’’ 

(emphasis added) 65 Accordingly, the 

Rule generally prohibits the filing of 

post-hearing briefs, except in the event 

of the hearing officer’s ‘‘special 

permission.’’ 66

I need not belabor this issue. Recall 

that the Acting General Counsel’s 

annual summary for FY 2011 stated that 

regional directors issued 203 preelection decisions in contested 

representation cases after hearing in a 

median of 33 days from the filing of the 

petition, well below the target median of 

45 days. Nevertheless, my colleagues 

once again proceed on a factually 

unsubstantiated premise that a 

particular, long-established feature of 

Board pre-election procedure ‘‘often’’ 

delays the issuance of a regional 

director’s decision. Is there any 

comment in the record by a regional 

director, past or present, to this effect? 

Is there any apparent reason why, in 

cases where the issues litigated are 

straightforward and few, a regional 

director or regional staff could not 

commence the drafting of a decision 

prior to receipt of briefs? 67 For that 

matter, is there any comment in the 

record that parties routinely submit 

briefs in such simple cases? 

On the other hand, my colleagues are 

totally dismissive of the potential value 

of post-hearing briefs in narrowing 

factual disputes, defining issues, and 

possibly creating grounds for settlement 

that would obviate the need for a 

regional director’s decision and 

expedite the electoral process. Even if 

there is no settlement, is there any 


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68 It is quite clear to me, as it will be to regional 

personnel, that a hearing officer’s discretion to grant 

motions to file briefs is severely limited by the 

‘‘special permission’’ language. Notably, my 

colleagues gave no apparent consideration to the 

alternative of a broad discretionary standard that 

would enable a hearing officer to make a real caseby-case evaluation of whether a post-hearing brief 

would benefit the regional director’s 

decisionmaking. 

69 Indeed, my colleagues state that the 

‘‘temptation to use the threat of unnecessary 

litigation to gain * * * strategic advantage is 

heightened by * * * the right to take up to seven 

days to file a post-hearing brief * * *.’’ 

70This not unlikely circumstance gives the lie to 

my colleagues’ characterization of the pre-election 

request for review as interlocutory. 

71As previously discussed, the right to petition 

for that rare stay is statutorily mandated. 

72 76 FR 80159. 

73 76 FR 80160. 

74 In any event, the delegation was primarily, if 

not exclusively concerned with permitting regional 

directors to make unit determinations prior to an 

election. See Magnesium Casting Co. v. NLRB, 401 

U.S. 137, at 138, 141 (1971). See also Meyer Dairy, 

Inc. v. NLRB, 429 F.2d 697 (10th Cir. 1970) (the 

‘‘section 3(b) amendment delegated to the Regional 

Directors the Board’s powers to make unit 

determinations in representation proceedings 

* * *.’’). 

75Twenty-Fourth Annual Report of the National 

Labor Relations Board for Fiscal Year Ended June 

30, 1959, Appendix A—Tables 1 and 3. 

76 GC Memorandum 12–03, supra at p. 2. 

record support for my colleagues’ view 

that post-hearing briefs are apparently 

so worthless that they should only be 

allowed in the rare case where a hearing 

officer gives special permission? 68

It is obvious that my colleagues’ real 

objective in generally eliminating the 

filing of post-hearing briefs has no 

rational relationship to whether such a 

practice unreasonably delays the 

electoral process. They are simply 

shortening the pre-election timeline 

wherever they can, without any real 

consideration of the merits of the 

practice eliminated.69

4. Pre-Election Requests for Review 

I have previously discussed why the 

elimination of pre-election requests for 

review is impermissibly contrary to 

Section 3(b) of the Act and 

Congressional intent. The same action is 

indefensibly arbitrary and capricious. 

This action is part and parcel of the 

backloading of representation case 

issues also mandated by the Rule’s 

deferral of litigation of unit eligibility 

and placement issues, and it warrants 

the same criticisms. My colleagues again 

parrot the factually unsubstantiated 

claim that contested issues will ‘‘often’’ 

be mooted by the election results. If not, 

they say, rather than bifurcating the 

resolution of all contested issues in a 

representation case, final resolution of 

litigated pre-election issues can still 

wait and be decided in a single 

proceeding with post-election issues. Of 

course, the supposed bifurcation would 

only occur if there are post-election 

issues other than those for which a 

request for review will now be 

deferred.70

My colleagues also denigrate the preelection request for review process as 

essentially useless, given how rarely the 

Board grants review, in which case a 

decision generally issues after the 

election, and even more rarely that it 

stays an election.71 They miss the point 

that in those cases where review is 

denied, the Board action provides 

finality. They also fail to acknowledge 

that in cases where a regional director 

improperly directs an election and 

review would otherwise be granted, the 

Rule will result in such elections being 

run unnecessarily, See, e.g., Sanctuary 

At Mcauley Employer, Cases 7–RC– 

23402, et. al (April 8, 2011) (granting the 

employer’s request for review of the 

regional director’s direction of election 

which raised a substantial issue with 

respect to whether the unit managers 

were statutory supervisors); State Bar of 

New Mexico, 346 NLRB 674 (2006) (the 

Board determined that the employer, the 

State Bar of New Mexico, is exempt 

from the Boards jurisdiction, reversed 

the regional director’s direction of 

election and dismissed the petition); In 

re Canal Carting, Inc., 339 NLRB 969 

(2003) (the Board granted the 

employer’s request for review of the 

regional director’s direction of election, 

finding a contract bar to the union’s 

petition). It is illogical to go forward 

with an election if the regional director 

erred in finding a question concerning 

representation. Thus, whether or not the 

Board grants review, the pre-election 

request for review promotes efficiency 

by ensuring that the regional director 

has properly ruled on the existence of 

a question concerning representation, as 

well as on other issues under current 

pre-election procedure. 

This is all of little matter to my 

colleagues. Their primary purpose in 

eliminating the pre-election request for 

review is to eliminate the companion 

recommended minimum 25-day waiting 

period for scheduling an election after a 

regional director’s decision and 

direction of election. In their view, this 

delay is unwarranted because the 

request for review is unnecessary, and 

they reject any suggestion that there 

might be alternate justifications for a 

post-decisional waiting period. 

Inasmuch as I believe the pre-election 

request for review process is mandated 

by the Act and has substantial value in 

bringing final resolution to litigated 

issues as quickly as possible, and that 

my colleagues have failed to articulate 

a rational basis for its elimination, I 

need not posit an alternative 

justification for the process. However, I 

think there could well be both an 

agency administrative justification for at 

least some post-decisional time to 

arrange the details of election. More 

importantly, as discussed below, I 

believe that in at least some instances it 

will be critically important to provide 

some post-decisional time for employers 

to exercise their free speech rights to 

communicate their view on 

unionization to employees 

D. The Post-Election Rule Revision 

One justification for my colleagues’ 

elimination of nondiscretionary Board 

review of post-election challenge and 

objections issues is jaw-droppingly 

pretentious. They claim that ‘‘[t]he final 

rule will enable the Board to separate 

the wheat from the chaff, and to devote 

its limited time to cases of particular 

importance.’’ 72 Shortly thereafter, my 

colleagues reason that ‘‘the 

discretionary review provided for in the 

final rule parallels that used by the 

Supreme Court to ensure uniformity 

among the circuit courts of appeals.’’ 73

I am afraid that my colleagues take their 

analogy to the Supreme Court’s 

discretionary review far too literally. 

The Board is an administrative agency, 

and the Board members comprise the 

only forum for internal administrative 

review of regional actions. However 

mundane the supposed chaff of cases 

may seem to them, it is our duty to 

provide employees and parties in those 

cases the same decisional attention, 

guidance, and care as in ‘‘cases of 

particular importance.’’ 

Beyond that, how in common sense 

can my colleagues maintain that the 

Board has such limited time as to 

warrant departing from the current 

nondiscretionary review practice? This 

is not 1959, when Congress enacted 

Section 3(b)’s delegation authority to 

address the Board’s undisputed inability 

to handle its pending caseload.74 In 

1959, there were 9,347 representation 

case filings, 8,840 case closings, and 

2,230 cases pending at the end of the 

year. The Board itself decided 1880 

cases.75

In Fiscal Year 2011, 2,634 

representation case petitions were filed 

in the regions, a decrease of 11.2% from 

2,969 in FY 2010. In addition, the 

Board’s pending caseload is at a nearhistorical low.76 According to statistics 

compiled by the Board’s Executive 

Secretary, as of January 3, 2012, there 

were 137 pending unfair labor practice 


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77My colleagues mistakenly rely on Stretch-Tex, 

118 NLRB 1359 (1956), for the proposition that the 

Board’s review of a hearing officer’s factual findings 

is, in general, ‘‘highly deferential.’’ 76 FR 811059. 

The standard referred to, as in the unfair labor 

counterpart case of Standard Dry Wall Products, 91 

NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951), 

is limited to contested credibility findings. 

Otherwise, the de novo review standard applies. Id. 

at 545. 

78See, e.g., Sweetwater Paperboard and United, 

357 NLRB No. 142 (2011); Go Ahead North 

America, LLC, 357 NLRB No. 18 (2011); Rivers 

Casino, 356 NLRB No. 142. (2011); Trustees of 

Columbia University, 350 NLRB 574 (2007); 

Madison Square Garden CT, LLC, 350 NLRB 117 

(2007); In re Woods Quality Cabinetry Co. 340 

NLRB 1355 (2003); Manhattan Crowne Plaza, 341 

NLRB 619 (2004). 

79See, e.g., Automatic Fire Systems, 357 NLRB 

No. 190 (2012); Enterprise Leasing CompanySoutheast, LLC, 357 NLRB No. 159 (2011). 

80See, e.g., FJ Foodservice Employer, Case 21– 

RC–21310 (December 30, 2011) 2011 WL 6936395; 

Mastec DirectTV Employer, 356 NLRB No. 110 

(2011); American Medical Response, 356 NLRB No. 

42 (2010). 

81The majority cites to Mental Health 

Association, Inc., 356 NLRB No. 151 (2011), as an 

example of a case which did not require Board 

review because it involved the application of settled 

precedent. However, the Board modified the 

hearing officer’s findings because it disagreed with 

part of the hearing officer’s analysis and found it 

unnecessary to rely on another part. Id. at slip op. 

1, fn. 4 

82 I note that my critique of this aspect of the Rule 

has nothing to do with the expertise and 

competence of regional directors and hearing 

officers, for whom I have great respect. However, as 

with administrative law judges deciding unfair 

labor practice cases, expert and accomplished 

persons sitting in review of the same or similar set 

of facts can reach different conclusions of law. It is 

the Board’s responsibility to reconcile those 

differences. 

83E.g., Rental Uniform Service, Inc., 330 NLRB 

334, 336 fn.10 (1999), citing S.H. Kress & Co., 212 

NLRB 132 fn. 1 (1974). 

84Olenhouse v. Commodity Credit Corp., 42 F.3d 

1560, 1575 (10th Cir. 1994), quoting from State 

Farm, 463 U.S. at 50. 

85Allentown Mack, 522 U.S. at 374. 

86 I adhere to the view expressed in my dissent 

to the NPRM, and echoed by many commenters, 

that there were numerous procedural deficiencies 

in the overall rulemaking process that collectively 

evidence an arbitrary process inappropriate to the 

scale of proposed revision in election procedures. 

See 76 FR 36829–36830. However, in this dissent, 

I find it necessary to rely only on those arbitrary 

processes attendant to the published Rule from the 

time of its initial November 2011 proposal to its 

final approval by Chairman Pearce and Member 

Becker on December 16. 

cases and 31 pending representation 

cases. That caseload is not likely to 

increase in light of the dramatic decline 

in regional intake. In these 

circumstances, I think it is clear that the 

Board has time and staff enough to 

handle both the wheat and chaff of postelection issues raised before us under 

the existing practice of mandatory 

review. 

There is the additional problem of my 

colleagues’ failure to rationalize the 

significant difference between the 

existing rule and the new Rule as to the 

review standard imposed for postelection issue litigation. Under the 

practice of mandatory review, the Board 

would engage in de novo review of the 

entire record with respect to factual 

findings, other than credibility findings, 

of the decision maker below.77 Under 

the Rule’s discretionary review 

standard, the Board will only grant 

review of regional factual finding based 

on a showing that the finding was 

clearly erroneous and prejudicial. This 

standard is not often likely to be met. 

My colleagues assert that the change 

in review standards is of little 

consequence because the Board affirms 

the majority of post-election decisions 

made at the regional level. This may be 

true as to decisional outcome, but there 

have been numerous Board decisions 

reversing the hearing officer’s or 

regional director’s findings in postelection cases.78 Also, in many cases, 

even if the Board has affirmed the 

decision below, it has modified or 

clarified the supporting findings.79

There also have been many cases in 

which a Board member or members 

dissent to the factual findings below.80

The Rule’s discretionary review 

standard affords far less opportunity for 

reversal, clarification, or dissent with 

respect to such findings and their 

application to the controlling legal 

principles.81

The aforementioned Board decisions 

focusing on factual findings may not be 

of much import as to major legal issues, 

but they are of great significance in 

assuring the public and reviewing 

courts that the law is being uniformly 

and consistently applied. While the 

Board may delegate representation case 

duties under Section 3(b), it cannot 

abdicate its administrative 

responsibility as principal overseer of 

the exercise of those duties. That is 

exactly what it has done through the 

Rule’s substitution of a post-election 

discretionary review process for a 

mandatory review process. 

Discretionary Board review under a 

clearly erroneous and prejudicial 

standard greatly increases the 

possibility that individual regions will 

reach different nonreviewable results in 

factually identical or similar 

circumstances.82 This decisional 

balkanization will introduce uncertainty 

and lack of uniformity in representation 

case law. It will effectively create a 

system in which parties have to litigate 

issues in light of regional precedent, in 

spite of the well-established Board 

doctrine that regional directors’ 

decisions do not have precedential 

value.83 It is particularly concerning 

that the Board will now be deciding few 

appeals involving election misconduct 

because the issues raised in such 

appeals go to the essence of employee 

free choice, and narrow factual 

distinctions have often made the 

difference in determining whether 

specific conduct has had an 

objectionable effect on that choice. 

Finally, I note that the elimination of 

mandatory post-election Board review, 

coupled with the deferral of many 

issues to the post-election phase of 

proceeding, may well cause an increase 

in ‘‘test of certification’’ cases for 

employers denied discretionary review 

by the Board of issues that previously 

would entail mandatory de novo review. 

Whether or not any employer would be 

successful in securing judicial reversal 

of a regional director’s decision is 

beside the point. Any test-ofcertification delays final resolution of 

the representation procedure, and that 

delay can sometimes be substantial. 

E. The Chairman and Member Becker 

Arbitrarily Departed From Well Settled 

Board Procedure in Promulgating the 

Rule 

‘‘Because the arbitrary and capricious 

standard focuses on the rationality of an 

agency’s decisionmaking process rather 

than on the rationality of the actual 

decision, ‘[i]t is well-established that an 

agency’s action must be upheld, if at all, 

on the basis articulated by the agency 

itself.’ ’’ 84 ‘‘Not only must an agency’s 

decreed result be within the scope of its 

lawful authority, but the process by 

which it reaches that result must be 

logical and rational.’’ 85 In proceedings 

leading to adoption and issuance of the 

Rule, my colleagues abruptly departed 

from established Board decisonmaking 

practices and policies.86

1. Departure from practice of not 

overruling precedent without the 

affirmative vote of at least three Board 

members. 

At least since the mid-1980s, it has 

been Board practice that the power to 

overrule precedent will be exercised 

only by the affirmative vote of three 

members of the Board. See, e.g., 

Hacienda Resort Hotel & Casino, 355 

NLRB No. 154 (2010); DaimlerChrysler 

Corp., 344 NLRB 1324 fn. 1 (2005); 

International Transportation Service 

Inc., 344 NLRB 279, 279 fn. 2 (2005); 

Tradesmen International, 338 NLRB 460 

(2002); Temple Security, 337 NLRB 372, 

373 fn. 7 (2001); G.H. Bass Caribbean, 

Inc., 306 NLRB 823, 833 fn. 2 (1992); 

Atlantic Interstate Messengers, Inc. 274 

NLRB 1144 fn. 3 (1985); and Redway 

Carriers, Inc., 274 NLRB 1359 fn. 4 

(1985). This practice provides some 

degree of stability, predictability, and 

credibility in our agency 


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87 I borrow this phrase from Jonathan Remy Nash, 

‘‘The Majority that Wasn’t: Stare Decisis, Majority 

Rule, and the Mischief of Quorum Requirements’’ 

(August 11, 2008). U of Chicago, Public Law 

Working Paper No. 227. Available at SSRN: 

http://ssrn.com/abstract=1217876 or http:// 

dx.doi.org/10.2139/ssrn.1217876. 88 In the 27 years of this practice, my colleagues 

cite only two 1997 cases where two members of a 

three-member Board did not adhere to it. 89That is, in fact, what happened. See Local Joint 

Exec. Bd. of Las Vegas v. NLRB, 657 F.3d at 870– 

876. 90 I emphasize here that I am addressing an 

internal action requirement, not a statutory quorum 

requirement. I leave to others the question whether 

issuance of the rule runs afoul of the Board’s 

quorum requirement, as discussed and defined by 

the Supreme Court in New Process Steel L.P. v. 

NLRB, 560 U.S. __, 130 S.Ct. 2635, 2639–42 (2010). 91 76 FR 80138, 80146. 

92ACUS, Recommendation 91–5, Facilitating the 

Use of Rulemaking by the National Labor Relations 

Board (adopted June 14, 1991), 56 FR 33851 (July 

24, 1991). 

93Of course, according to my colleagues’ 

reasoning, any subsequent rule revision of their 

Rule would be procedural and would be exempt 

from the APA notice-and-comment requirement. 

decisionmaking, even as Board 

membership changes and political 

winds shift accordingly. Individuals 

reliant on Board law are at least assured 

that the law will not be changed by a 

‘‘minority majority’’ 87 consisting of 

only two members of the 

congressionally intended full body of 

five. 

The three-affirmative-vote 

requirement has been consistently 

followed by both Republican and 

Democrat Board Members. See Ryan 

Iron Works, Inc., 345 NLRB 893, 895 fn. 

13 (2005) (Republicans), and Ingram 

Barge, Co., 336 NLRB 1259, 1259 fn. 1 

(2001) (Democrats).88 Circuit courts 

have acknowledged the Board’s practice 

as a reasonable institutional means of 

ensuring the stability of Board 

decisions. See Local Joint Exec. Bd. of 

Las Vegas v. NLRB, 657 F.3d 865, 872 

(9th Cir. 2011); Progressive Electric, Inc. 

v. NLRB, 453 F.3d 538, 552 (D.C. Cir. 

2006); and International Transportation 

Service, Inc. v. NLRB, 449 F.3d 160, 165 

(D.C. Cir. 2006). Chairman Pearce and I 

both adhered to the practice in 

Hacienda Resort Hotel & Casino, supra, 

notwithstanding our acute awareness 

that the reviewing Ninth Circuit might 

disagree with the resultant Board 

decision that was based on extant 

precedent.89

In publishing the Rule, my colleagues 

readily acknowledge that they have 

failed to follow this established practice. 

As discussed below, none of the three 

arguments made in their defense 

provides a reasoned explanation for 

their action. Accordingly, the Rule is 

invalidly based on an arbitrary and 

capricious process.90

My colleagues first contend that they 

were not required to adhere to the threeaffirmative-vote practice in this 

rulemaking proceeding because the Rule 

is ‘‘purely procedural’’ and thus does 

‘‘not implicate the sorts of reliance 

interests that underlie the Board’s 

practice.’’ 91 They further contend that, 

inasmuch as the Rule is procedural, it 

is exempt from the APA’s notice-andcomment rulemaking requirements. 

Putting aside the question whether, 

having chosen to engage in informal 

notice-and-comment rulemaking under 

the APA, my colleagues can even claim 

that the Rule is purely procedural, I find 

they have not provided a rational 

explanation for this claim. A procedural 

rule is ‘‘one that does not itself ‘alter the 

rights or interests of parties, although it 

may alter the manner in which the 

parties present themselves or their 

viewpoints to the agency.’ ’’ Chamber of 

Commerce of the United States v. 

United States Department of Labor, 174 

F.3d 206, 211 (D.C. Cir. 1999). A 

substantive rule, in contrast, ‘‘has a 

‘substantial impact’ upon private parties 

and ‘puts a stamp of [agency] approval 

or disapproval on a given type of 

behavior.’ ’’ Id. Courts have found that 

this ‘‘distinction is often difficult to 

apply as even a purely procedural rule 

can affect the substantive outcome of an 

agency proceeding.’’ Id. Because of this 

difficulty, courts apply the notice-andcomment exemption set forth in Section 

553(b)(3)(A) of the APA ‘‘with an eye 

toward balancing the need for public 

participation in agency decisionmaking 

with the agency’s competing interest in 

‘retaining latitude in organizing its 

internal operations.’ ’’ Id. ‘‘[T]he 

question whether a rule is substantive or 

procedural for the purposes of § 553b is 

functional, not formal. That is why 

[courts] examine how the rule affects 

not only the ‘rights’ of aggrieved parties, 

but their ‘interests’ as well. Id. at 212,, 

citing Batterton v. Marshall, 648 F.2d 

694, 707 (D.C. Cir. 1980). 

The Rule here affects every party 

subject to the Board’s jurisdiction in 

representation cases and alters the 

Board’s representation case procedures 

in a sweeping manner. It substantially 

limits the right to a pre-election hearing, 

eliminates the right to pre-election 

Board review of a regional director’s 

direction of election, eliminates the 

right to automatic Board review of postelection issues, changes the standard for 

Board review of many contested 

electoral issues, and substantially 

impacts the rights of employees and 

employers to engage in communications 

about election issues prior to the 

election. These changes represent more 

than ‘‘incidental inconveniences.’’ 

Chamber of Commerce, 174 F.3d at 211– 

212. They clearly affect the rights and 

interests of parties subject to the Board’s 

representation case procedures and thus 

are of a substantive, not procedural, 

nature. 

Accordingly, not only is the Rule 

substantive in impact, it also does 

implicate the same reliance interests 

that underlie the adjudicatory practice 

requiring three affirmative votes for 

change. Although not dispositive, I 

suggest that the filing of over 60,000 

comments, pro and con, in response to 

the NPRM supports the conclusion that 

the Rule is something more than a 

modest procedural revision. The public 

perception is that something more is at 

stake here. 

My colleagues next contend that they 

are not bound by the three-affirmativevote practice because the concern for 

‘‘stability of legal rules’’ that it 

addresses only applies in case 

adjudication, not rulemaking 

proceedings. In doing so, they note that 

the Administrative Conference of the 

United States (ACUS) has cited the 

greater stability inherent in notice and 

comment rulemaking in recommending 

its increased use by the Board.92

My colleagues fail to explain, 

however, how departing from the 

Board’s established practice to permit a 

minority majority to conclude a 

sweeping, substantive rulemaking 

initiative does not raise concerns about 

the stability of Board law. Indeed, 

nothing in the ACUS recommendation 

suggests that rulemaking by the Board 

can or should be carried out on the vote 

of just two Board members or that the 

Board, when engaged in informal 

notice-and-comment rulemaking, 

should apply different voting practices 

than it does when engaged in 

rulemaking through case adjudication. 

Assuming, arguendo, that a rule 

adopted pursuant to informal noticeand-comment rulemaking is likely to be 

more permanent than an adjudicated 

rule, that would seem to provide greater 

reason to require the affirmative votes of 

three Board members for such an 

undertaking. On the other hand, I 

venture that the product of rulemaking 

is now not much less vulnerable to 

reversal than an adjudicated rule as a 

consequence of change in Board 

membership and policy preference. All 

that is required is another proposed rule 

revision, another notice-and-comment 

period, and a rationally justified final 

rule.93 My colleagues have now 

established that such action may be 

undertaken with the approval of only 

two of three sitting Board members, and 

so they cast doubt on the stability of the 

very Rule they endorse. Their 


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94See, e.g., 2 Sisters Food Group, 357 NLRB No. 

168 (2011). In a decision issued only one week after 

publication of the Rule, Chairman Pearce and 

Member Becker articulated guidelines for exercise 

of a regional director’s discretion to determine 

whether to hold an election away from an 

employer’s premises, substantially increasing the 

likelihood that an election will be held off premise 

whenever a petitioning union objects to an on-site 

election. Id., slip op. at 4–8. Moreover, Member 

Becker’s partial dissent advocated overruling 

precedent to hold that an employer cannot compel 

employee attendance in a captive audience meeting 

about unionization at any time during the critical 

pre-election period. Id. slip op. at 10–14. It requires 

no great prescience to surmise that this issue will 

soon be revisited. 

95 76 FR 36812, 36829. 

96 76 FR 54006, 54037 (Aug. 30, 2011). 

97 75 FR 80410, 80415 (Dec. 22, 2010). 

98 54 FR 16336, 16347 (Apr. 21, 1989). 

99 76 FR 80107. 

reservation for further consideration of 

other elements of the NPRM just makes 

the state of representation case law even 

more uncertain, as does their 

simultaneous adjudicatory assault on 

extant law.94 As a result, any way one 

looks at it, my colleagues have failed to 

provide a reasoned explanation for 

departing from the agency’s threeaffirmative-vote practice. 

Lastly, my colleagues contend that 

they were not required to adhere to the 

three-affirmative-vote practice because 

the Rule does not overrule any Board 

decisions. In my view, the policy 

supporting this practice mandates its 

application to the revision of rules that 

have a substantive effect on the interests 

of those involved in representation case 

proceedings regardless of whether the 

revision overrules specific case 

precedent. However, even a cursory 

review of the Rule establishes that my 

colleagues misrepresent its effect on 

precedent as well. 

In both Barre-National, Inc. and North 

Manchester Foundry, Inc., discussed 

supra, the Board reversed regional 

director actions that denied employers 

the opportunity to present evidence on 

eligibility issues. As previously stated, 

my colleagues’ defense of the Rule’s 

narrow interpretation of Section 9(c)(1) 

misleadingly suggests that these cases 

are not to the contrary. The Rule clearly 

overrules this precedent. 

2. Departure From Board Process With 

Respect to Dissenting Board Members 

As stated in the Background section of 

this statement, the Rule was issued 

pursuant to the votes of Chairman 

Pearce and Member Becker on 

November 30 to proceed with drafting a 

final rule, and votes by the same two 

Board Members on December 15 to 

direct the Solicitor to issue the Final 

Rule upon its approval by a majority. I 

voted against each action. On December 

16, my colleagues modified and 

approved the Rule. Without further 

action by me, the Rule issued and was 

forwarded by the Solicitor for 

publication in the Federal Register. 

This marked the first known instance in 

Board history in which Board members 

intentionally refused to provide a 

colleague a reasonable period of time in 

which to prepare and issue a dissenting 

statement simultaneously with the 

controlling decisional document. 

My colleagues utterly fail to justify 

their ad hoc action. As an initial matter, 

they assert that nothing in law 

compelled them to wait to issue the 

Rule until after I had an opportunity to 

review and prepare my dissent to it. 

Indeed, I can cite to no statute or case 

expressly holding that they were 

required to do so. This does not, 

however, answer the question whether 

their action should be considered 

arbitrary and capricious. 

As an initial matter, my colleagues 

ignore the importance of dissents in 

society, law, and federal administrative 

practice. In this regard, dissent is a 

bedrock principle of our democracy and 

has become deeply engrained in 

American culture. See Lee v. Weisman, 

505 U.S. 577, 607 (1992) (Justice 

Blackmun concurring) (‘‘Democracy 

requires the nourishment of dialog and 

dissent’’); see also Johnson v. Raemisch, 

557 F.Supp. 964, 969–970 (2008), citing 

Cass Sunstein, Why Societies Need 

Dissent 210–212 (2003) (‘‘Dissents have 

contributed to American democracy by 

forcing the majority to articulate 

justifications for widespread practices 

and by exposing the weaknesses of long 

held beliefs’’). 

Specific to law, dissents are a useful 

tool in effecting well-reasoned legal 

decisions. Indeed, Supreme Court 

Justice Ruth Bader Ginsburg has stated 

that dissents are important because they 

can ‘‘lead the author of the majority 

opinion to refine and clarify her initial 

circulation’’ and may be persuasive 

enough to ‘‘attract the votes necessary to 

become the opinion of the Court.’’ See 

Hon. Ruth Bader Ginsburg, The Role of 

Dissenting Opinions, 95 Minn.L.Rev. 1, 

4 (2010). My experience as a Board 

Member confirms Justice Ginsburg’s 

observation. On numerous occasions, 

circulated dissents have prompted 

substantial revision of prior draft 

majority opinions, and in some 

instances an initial dissent ultimately 

became the Board’s final decision. 

It is true, as my colleagues state, that 

the APA does not require permitting 

dissents to promulgated rules. It is also 

true that the APA does not prohibit or 

expressly endorse prohibition of 

dissent. Consistent with the above, 

dissents are common in the federal 

administrative decisionmaking 

processes. See, e.g., United States Dept. 

of Homeland Security, Transportation 

Security Administration and AFGE, 65 

FLRA 242 (2010) (Member Beck 

dissenting); and Chambers v. Dept. of 

the Interior, 103 MSPR 375 (2006) 

(Member Sapin dissenting). And, in 

recent years, dissents have become a 

widely accepted practice in federal 

agency rulemaking proceedings. See 

Position Limits for Futures and Swaps, 

76 FR 71626, 71699, 71700 (Nov. 18, 

2011) (to be codified at 17 CFR part 151) 

(Commissioners Jill Sommers and Scott 

O’Malia dissenting); Demand Response 

Compensation in Organized Wholesale 

Energy Markets, 76 FR 16658, 16679 

(March 15, 2011) (to be codified at 18 

CFR part 35) (Commissioner Philip D. 

Moeller dissenting); Representation 

Election Procedure, 75 FR 26062, 26083 

(May 11, 2010) (codified at 29 CFR part 

1202, 1206) (Chairman Elizabeth 

Dougherty dissenting); and Marketbased Rates for Wholesale Sales of 

Electric Energy, Capacity, and Ancillary 

Services by Public Utilities, 72 FR 

39904, 40046 (July 20, 2007) (codified at 

18 CFR part 35) (Commissioner Philip 

D. Moeller dissenting). Thus, while my 

colleagues may not have been legally 

required to accommodate my dissenting 

opinion in this matter, by failing to do 

so they removed an important 

component from the decisionmaking 

process and acted inconsistently with 

good federal administrative practice. 

More to the point, my colleagues fail 

to identify a single instance in which 

the Board has for any reason issued a 

rule by adjudication or rulemaking 

without permitting prior circulation and 

simultaneous publication of a dissent. 

As they note, I previously dissented to 

the NPRM in this rulemaking,95 and I 

dissented to both the Final Rule 96 and 

the Notice of Proposed Rulemaking 97 in 

the recent employee rights noticeposting rulemaking proceeding. There 

was also a dissent by Member Johansen 

to the Final Rule on appropriate 

bargaining units in the health care 

industry.98 In other words, while the 

number of major Board rulemaking 

proceedings has been few, there has 

been a simultaneous dissent in every 

one. 

My colleagues suggest that there is no 

imperative to permit dissent because 

notice-and-comment rulemaking, as 

opposed to case adjudication, is, ‘‘in 

effect, a dialogue between the 

administrative agency and the public— 

not an intramural debate between or 

among agency officials.’’ 99 They also 


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100See, e.g., Specialty Healthcare, supra; Lamons 

Gasket, 357 NLRB No. 72 (2011); UGL UNICCO 

Service Co., 357 NLRB No. 76 (2011). 

101 76 FR 80146 fn. 25. I note that for this same 

reason, the Chairman and Member Becker 

summarily proposed and approved a December 9 

emergency memorandum that effectively suspended 

ES 01–01 in several adjudicatory proceedings by 

providing for issuance of decisions approved by 

them on and after December 16 with any dissent by 

me to follow. As it happened, there was no need 

to invoke this procedure in any of the subject cases. 

The Chairman notes that I joined in approving 

several contingent rules to assure the maintenance 

of administrative routines, to the extent legally 

permissible, in the event the Board lost its quorum. 

The Chairman was fully aware at the time that these 

actions did not in any way imply that I endorsed 

the idea that a pending loss of quorum justified the 

suspension of customary decisional practices in 

contemplation of a major change in Board law and 

procedure, and it is unfortunate that he now 

suggests otherwise. 

102Chamber of Commerce of the United States v. 

SEC, 443 F.3d 890, 908 (DC Cir. 2006). 

Consolidated Alum. Corp. v. TVA, 462 F.Supp. 

464, 476 (M.D. Tenn. 1978), is not to the contrary. 

In Consolidated, the court held that TVA’s 

deviation from its well-settled traditions regarding 

rate adjustments was not ‘‘totally unjustified’’ 

because the impending loss of a quorum was a good 

reason to make a decision. But the court did not 

rely solely on the pending loss of a quorum as in 

finding the agency action was not arbitrary and 

capricious. Instead, the court found that the 

agency’s action before its loss of a quorum was 

necessary for the agency to avoid a violation both 

of its statutory requirements and its covenants with 

the holders of its bonds. See id. at 476. The Board 

confronted no similar potential for statutory or 

contractual violations here. 

103New Process Steel L.P. v. NLRB, U.S., 130 S.Ct. 

at 2639–42 (2010). 

suggest that my participation in events 

prior to issuance of the Rule has been 

sufficient for purposes of expressing my 

view. With all due respect, that is utter 

nonsense, and my colleagues would say 

the same were they in my position. In 

adjudicated cases of major import, many 

of which involve adoption of rules in 

representation cases, the Board 

frequently invites and gets public 

comment well beyond the position 

statements of the particular parties 

involved.100 I have never heard it 

suggested that this diminishes or defeats 

the right of a Board member to circulate 

a written dissent in advance of a final 

published decision and to have that 

dissent published simultaneously. Nor 

have I heard it said, for instance, that a 

Board member’s participation in an oral 

argument obviates the need to 

accommodate a subsequent dissent by 

that member. 

At least facially, my colleagues 

articulate a credible concern that an 

individual Board member not be 

allowed to veto a rule or adjudicated 

decision by inaction or delay. I agree. 

That is why the Board has since 2001 

operated under ES Memo 01–01, a 

Board-approved procedural order 

concerning the ‘‘Timely Circulation of 

Dissenting/Concurring Opinions.’’ ES 

Memo 01–01 provides for issuance of a 

Board decision in an adjudicated case 

without a dissent if 90 days have passed 

following the majority approval of a 

draft without action by the remaining 

Board Member or Members. 

Obviously, application of that order in 

this proceeding would have precluded 

issuance of the Rule until 90 days after 

its December 16, 2011, approval. Once 

again, however, my colleagues rely on 

the distinction without difference that 

this is a rulemaking proceeding to 

which ES Memo 01–01 does not 

expressly apply, as opposed to the 

Board’s frequent rulemaking in 

adjudicatory proceedings, to which it 

clearly does apply. In the alternative, 

they suggest that ES Memo 01–01 is 

satisfied by my opportunity to circulate 

a post-issuance statement, which they 

have already declared in the December 

15 Order to be a personal statement 

‘‘and shall in no way alter the Board’s 

approval of the final rule or the final 

rule itself.’’ I think not. 

Nevertheless, suppose there were no 

ES Memo 01–01, only an unbroken 76- 

year practice in all published decisions 

and notice-and-comment rules giving no 

indication whatsoever that the Board 

has ever denied an individual member 

the reasonable opportunity to 

participate in the deliberative process 

by circulating a dissent prior to final 

action and to have that dissent 

published simultaneously. By what 

rational standard can my colleagues 

deny me that opportunity on delay 

grounds, where the nearly 200 page 

draft of the Rule was circulated in the 

late afternoon of Friday December 9 and 

approved for final issuance by my 

colleagues five working days later? 

This brings me to my colleagues’ final 

defense of their action. That is, they say 

they were entitled to issue the Rule out 

of apprehension that the rulemaking 

process would be indefinitely delayed 

or even derailed, not as any 

consequence of my action, but solely 

because Member Becker’s term was 

about to expire. As they stated in the 

Rule, echoing earlier statements by the 

Chairman prior to and at the November 

30 open meeting, ‘‘The Board’s decision 

in this regard is informed by the 

possibility that after Member Becker’s 

service ends at the end of the current 

congressional session, no later than 

January 3, 2012, the Board will be 

reduced to two Members, and under the 

Supreme Court’s recent New Process 

decision, supra, may be unable to act on 

the proposed rule for a considerable 

period of time.’’ 101

As I noted in voting against the 

December 15 order, the apprehension 

expressed about a prolonged disruption 

of Board operations was somewhat 

allayed by the President’s December 14 

announcement of the intent to nominate 

two new Board members, Richard 

Griffin and Sharon Block. As it came to 

pass, they and pending nominee 

Terence Flynn received recess 

appointments on January 4, 2012. Even 

were that not the case, vacancies and 

turnover in agency membership do not 

generally qualify as a rational 

justification for departure from agency 

processes. In a case on point, the DC 

Circuit rejected the impending 

termination of a Securities and 

Exchange Commissioner’s term as a 

ground for excusing compliance with 

APA notice-and-comment requirements. 

The court distinguished from truly 

exigent or emergency circumstances 

‘‘the not uncommon circumstance 

facing commissions when their 

membership changes during the course 

of a rulemaking, which may involve 

appeals and remands and thus extend 

for a period of years. Although the 

Commission’s membership would 

change after June 30, 2005, and the even 

division among the remaining 

Commissioners could delay further 

action on the Rule, which the 

Commission considered necessary to 

redress ‘a serious breakdown in 

management controls,’ * * * the risk of 

such delay is hardly atypical and does 

not satisfy the narrow exception.’’ 102

Further, my colleagues’ determination 

to proceed with issuance of the Rule 

sharply contrasts with the practice of 

past Boards confronting the same 

situation. During the course of a 

rulemaking initiative in the mid-1990s, 

the Board considered the possibility of 

issuing a proposed Rule prior to the 

departure of one member, with 

dissenting opinions to follow, but 

ultimately decided to adhere to 

traditional agency decisionmaking 

practices. See William B. Gould IV, 

Labored Relations 85–88 (2000). 

Again in December 2007, a fivemember Board with a three-member 

Republican appointee majority faced the 

imminent expiration of the terms of 

Chairman Battista and Members Walsh 

and Kirsanow. As is well known, an 

attempt was made to provide for 

continued post-expiration 

decisionmaking by then-Members 

Liebman and Schaumber. That attempt 

was ultimately invalidated over two 

years later by the Supreme Court’s New 

Process decision.103 Even had the Court 

ruled differently, however, it was 

understood by all that the two 


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104 Vermont Yankee Nuclear Power Corp. v. 

Natural Res. Def. Council, Inc., 435 U.S. 519, 542 

(1978). 

105As previously stated, my colleagues err in 

claiming that the Rule is purely procedural and not 

subject to the APA’s notice-and-comment 

requirements. 

106See generally, Philip M. Kannan, The Logical 

Outgrowth Doctrine in Rulemaking, 48 Admin. L. 

Rev. 213 (1996). 

107 I emphasize that I find no need in the 

following analysis to rely on Sec. 8(c) of the Act. 

108See also Thomas v. Collins, 323 U.S. 516, 537– 

538 (1944) (‘‘employers’ attempts to persuade to 

action with respect to joining or not joining unions 

are within the First Amendment’s guaranty.’’). 

109The majority claims that the Rule does not 

necessarily shorten the time between the petition 

and the election because it does not establish any 

rigid timelines. Really? In that case, there is no 

point at all to the pre-hearing elements of their 

Rule, the express purpose of which is to ‘‘directly 

speed Board processing of representation cases.’’ 76 

FR 80150. 

remaining Board members would only 

be able decide those routine cases in 

which they agreed on the disposition of 

all issues under extant precedent. In 

December 2007, there were cases of 

significance pending in which a 

majority had approved a consensus 

draft, but expected dissents were not 

finalized. Unlike Chairman Pearce and 

Member Becker, the choice was made 

not to issue decisions in those 

circumstances, even at the risk of 

prolonged delay or a different ultimate 

outcome. 

* * * * * 

Thus, not a single one of my 

colleagues’ asserted reasons for abruptly 

departing from long-established Board 

procedural practices holds water here. 

Their actions in issuing the Rule and in 

approving the November 30 and 

December 15 orders were ‘‘a totally 

unjustified departure from well settled 

agency procedures of long standing.’’ 104

As such, they were arbitrary and 

capricious, requiring that the Rule be 

invalidated. 

IV. The Rule Limiting a Pre-Election 

Evidentiary Hearing Is Not a Logical 

Outgrowth of the Notice of Proposed 

Rulemaking 

In at least one critical respect, the 

Rule is also invalid because it differs too 

sharply from the proposed rule. The 

NPRM proposed revised rules that 

would have permitted litigation in preelection hearings of individual 

eligibility and unit inclusion issues 

affecting 20 percent or more of the 

potential bargaining unit. The adopted 

Rule is far more restrictive, effectively 

eliminating the right to litigate all issues 

not deemed relevant to the question of 

representation. 

In order for the required notice to be 

deemed adequate in notice-andcomment rulemaking under the APA, a 

final rule must relate back to the 

proposed rule published in the Federal 

Register.105 To determine whether an 

agency has met these requirements, 

courts will consider whether the final 

rule is a ‘‘logical outgrowth’’ of the 

proposed rule. Shell Oil Co. v. EPA, 950 

F.2d 741, 747, 750–51 (D.C. Cir. 1992) 

(en banc).106 Although foreseeable 

differences between a proposed rule and 

a final rule will not normally cause 

notice to be deemed insufficient, the 

final rule is invalid if deviation from the 

proposal is too sharp. See Small Refiner 

Lead Phase-Down Task Force v. EPA, 

705 F.2d 506, 547 (D.C. Cir. 1983); 

American Federation of Labor v. 

Donovan, 757 F.2d 330, 338–339 (D.C. 

Cir. 1985); and Northwest Tissue Center 

v. Shalala, 1 F.3d 522, 528 fn. 7 (7th Cir. 

1993). 

Here, the majority’s final rule on preelection evidentiary hearings is not a 

logical outgrowth of the proposed rule. 

For reasons previously stated, the 

proposed rule was invalid under a 

Chevron step one analysis because of its 

impermissibly restrictive interpretation 

of what Section 9 requires. Any public 

concern about notice of this restrictive 

interpretation might reasonably be 

subdued by the express indication in 

the proposed rule that, in practical 

effect, the change from the current 

Board procedural norm would be to 

increase from 10 to 20 percent the 

number of individuals whose eligibility 

issues would be deferred to postelection litigation. However, the NPRM 

gave the public no notice of the 

possibility that any and all unit 

inclusion and voter eligibility issues 

would generally be deferred. 

Consequently, when my colleagues 

determined to make this change, it was 

incumbent upon them to follow a 

supplemental notice-and-comment 

procedure. 

The majority’s claim that it has 

deferred the 20% issue to another day 

is disingenuous and misleading. 

Moreover, their suggestion that the 

regional directors’ discretion in this area 

remains unchanged is absurd. Quite 

simply, the Rule to go into effect 

nationwide on April 30 does not retain 

the 20% language, while it explicitly 

overrules the prior discretionary 

practice of deferring unit inclusion and 

eligibility involving up to 10% of a unit. 

Even if not intended, the change from 

the NPRM to the adopted Rule 

constitutes a bait and switch. The public 

is not expected to extrapolate from the 

Agency’s published proposals its 

unspoken thoughts or guess what the 

agency really means. Shell Oil Co., 950 

F.2d at 751. The public has not had a 

meaningful opportunity to comment, 

and the Board has not had a meaningful 

opportunity to consider this necessary 

input. Consequently, this aspect of the 

Rule is invalid for the further reason of 

the failure to comply with the APA’s 

notice and comment requirements. 

V. The Rule Impermissibly Burdens 

First Amendment Free Speech 

Rights 107

An employer’s right to engage in free 

speech in the labor relations context has 

long been recognized by the Supreme 

Court. See NLRB v. Virginia Electric & 

Power Co., 314 U.S. 469, 477–479 (1941) 

(nothing in the Act prohibits employers 

from expressing their views about 

unions).108 This right only has meaning 

if there is a realistic opportunity for the 

employer to speak to employees about 

the choice of representation, when that 

choice has been defined by the filing of 

an election petition. Furthermore, and 

of paramount importance in assessing 

the Rule’s validity under the First 

Amendment, government regulations 

cannot, absent compelling 

circumstances, be drawn to redress 

perceived distortions in the debate 

about unionization. That is effectively 

what the Rule does, and I firmly believe 

that is what my colleagues intend it to 

do, notwithstanding their denials. 

As previously stated, the point of 

limiting pre-election hearings and 

eliminating post-hearing briefs, preelection requests for review, and the 

customary post-decisional waiting 

period is not rationally related to 

systemic problems of procedural delay. 

It is transparently and rationally related 

to shortening by three weeks or more 

the time from the filing of a petition, 

when support for unionization is often 

at its peak, to the day of the election.109

The record in this proceeding is replete 

with claims and counterclaims about 

when an employer learns about a 

unionization campaign and, if so 

inclined, begins to oppose it. I readily 

concede than many employers know 

about a campaign long before a petition 

is filed, and that some employers make 

their opposition to unions quite clear 

before there even is a campaign. On the 

other hand, it seems that my colleagues 

do concede there are some employers 

who only learn of the unionization 

effort when notified of a petition’s 

filing, and that prior to then they have 

attended to business operations without 

expressing to their employees any views 

about the merits of unionization. As 


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110 76 FR 80153–80155. 111 76 FR 80155. But see 2 Sisters Food Group, 

discussed infra at fn.66. 

112 130 S.Ct. at 913. 

113See Chamber of Commerce v. Brown, 554 U.S. 

60, 68 (2008). 

114 ‘‘The NLRB has policed a narrow zone of 

speech to ensure free and fair elections under the 

aegis of § 9 of the NLRA, 29 U.S.C. 159. Whatever 

the NLRB’s regulatory authority within special 

settings such as imminent elections, however, 

Congress has clearly denied it the authority to 

regulate the broader category of noncoercive speech 

* * *’’ Brown, 554 U.S. at 74. 

long as this possibility exists, and in the 

absence of any objective measure in our 

record of its frequency, the Board is 

required to consider it in evaluating the 

consequences of a rule in which at least 

some employers will have less time than 

previously to communicate with their 

employees about the unionization 

campaign. 

What consideration do my colleagues 

provide in this regard? Feigning a 

neutral attitude towards the electoral 

outcome, they emphasize their belief 

that employers always have the upper 

hand in campaign communications.110

My colleagues and pro-union 

commenters depict an employer on the 

day a petition is filed as sophisticated 

and fully knowledgeable about labor 

unions, collective-bargaining, and 

election procedures. For those sorry few 

who are caught unaware and 

unprepared, labor consultants and 

counsel will seek them out to offer their 

services. In any event, through daily 

contact with employees in the 

workplace, and with the opportunity to 

engage in such lawful activities as 

captive audience speeches, any 

employer can quickly and effectively 

present the case against unionization. 

As if that were not enough to tip the 

balance against unions, because 

elections are generally held on an 

employer’s premises, the employer has 

the great advantage of a ‘‘last word’’ 

with employees just before they vote.111

In sum, it does not really concern my 

colleagues that the Rule should limit the 

time in which an employer can exercise 

First Amendment rights of free speech 

about unionization because any such 

effect permissibly redresses an unfair 

balance of power between unions and 

employers in the battle for employee 

support. The problem with this position 

is that it runs directly counter to the 

Supreme Court’s decision in Citizens 

United v. Federal Election Commission, 

130 S.Ct. 876 (2010). The Court there 

held that the government cannot 

prohibit independent expenditures in 

support of a political candidate based 

on the source’s corporate identity.112

Relevant to this proceeding, the Court 

explicitly overruled Austin v. Michigan 

Chamber of Commerce, 494 U.S. 652 

(1990), and rejected the ‘‘anti-distortion 

theory’’ in Austin that corporate 

spending limitations could be premised 

on preventing ‘‘corporations from 

obtaining an unfair advantage in the 

political marketplace by using resources 

amassed in the economic marketplace.’’ 

Citizens United, 130 S.Ct. at 904 

(citations omitted). The Court reasoned 

that First Amendment protections 

cannot turn on a speaker’s financial 

ability and that Austin ‘‘interferes with 

the ‘open marketplace’ of ideas 

protected by the First Amendment.’’ Id. 

at 907, citing New York State Bd. of 

Elections v. Lopez Torres, 552 U.S. 196, 

208 (2008). In short, ‘‘the concept that 

government may restrict the speech of 

some elements of our society in order to 

enhance the relative voice of others is 

wholly foreign to the First 

Amendment.’’ Id. at 904, quoting 

Buckley v. Valeo, 424 U.S. 1, 48–49 

(1976). 

My colleagues’ Rule has the same 

impermissible ‘‘anti-distortion’’ purpose 

applied to the ‘‘uninhibited, robust and 

wide-open debate in labor disputes’’ 

that is an essential part of Federal labor 

policy.113 By limiting the time for 

employer speech, they seek to enhance 

the relative voice of a union and its 

proponents. The Rule far transcends any 

Board election speech regulation that 

would fall within the ‘‘narrow zone’’ 

deemed permissible by the Brown 

Court.114 Further, given the 

discriminatory purpose and effect of the 

Rule, which fall more heavily on 

employers than unions, it cannot be 

justified as a reasonable and neutral 

time, place, and manner limitation of 

speech. The Rule is clearly contrary to 

the First Amendment. 

V. Conclusion 

The current, longstanding Board 

representation case procedure, now 

doomed to imminent and radical 

revision absent judicial intervention, 

has worked well for most election 

participants. It could be better. The 

ideal objective would be to have a 

system in which no representation case 

takes longer from start to finish than 

reasonably necessary, by objective 

standards, (1) to provide participants an 

opportunity to resolve legitimate 

disputes, (2) to provide a meaningful 

opportunity during the critical preelection period for proponents and 

opponents of unionization to exercise 

their free speech rights, and (3) to assure 

adequate Board involvement in 

oversight of duties delegated to the 

regional directors. I would 

enthusiastically support and participate 

in a broad-based agency and public 

effort to carefully review and selectively 

reform our electoral procedure to meet 

this objective. That is not what has 

happened in this rulemaking. 

Stripped of considerable legalistic 

dross, my colleagues’ Rule belies an 

entirely different, single-minded 

purpose. They believe that unions 

should be winning more representation 

elections, and they revise the Board’s 

electoral procedures to accomplish that 

end. Their effort contravenes the Act, 

lacks the requisite rational justification, 

and infringes on First Amendment 

rights. That is reason enough as a matter 

of law for the Rule to be invalidated. 


srobinson on DSK4SPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 83 / Monday, April 30, 2012 / Rules and Regulations 25575 

115 It is no coincidence that a 2000 article by two 

union lawyers criticized the so-called Clinton Board 

for acting only within ‘‘the increasingly confined 

(indeed, relatively insignificant) doctrinal terrain on 

which the conflict over U.S. labor policy is 

enacted,’’ even as Congress complained that actions 

by that Board and the General Counsel veered too 

far from the elusive standard of neutrality. Jonathan 

P. Hiatt and Craig Becker, Drift and Division on the 

Clinton NLRB, 16 Lab. Law. 103 (2000). The authors 

of that article contended that far more radical and 

fundamental changes in Board law were necessary 

to revive the interest of American workers in 

unionization. 

From the agency perspective, there is 

further reason to object. With this Rule, 

the recent adjudicatory overruling of 

related representation case law, and the 

prospect of further change both in the 

reserved elements of the NPRM and in 

pending representation cases, my 

colleagues have deviated so far beyond 

the norm of partisan shifts in agency 

policymaking as to imperil the Board’s 

legitimacy in the eyes of the Congress 

that created it and in eyes of a 

substantial portion of the public that it 

serves.115 To an increasing number of 

persons outside and inside this 

venerable agency, it now appears to be 

directed by a myopic conviction that all 

law and procedure must be channeled 

to assuring the prize of workforce 

unionization, no matter how 

incompatible that conviction may be 

with the Taft-Hartley Act, or the reality 

that less than 10 percent of private 

sector employees have chosen 

collective-bargaining representation. 

With this Rule, I fervently believe that 

my colleagues imperil the Board’s 

future, and as such, they may in the end 

do far more to damage the interests they 

promote than to further them. 

I now dissent from the Rule. 

Notwithstanding judicial doctrines of 

deference to agency action, it should be 

invalidated. Even if not, it would 

behoove the current Board to rescind 

the Rule and start over in search of 

electoral revisions that would really 

address what can reasonably be defined 

as systemic delay. 

Signed in Washington, DC, on April 23, 

2012. 

Mark Gaston Pearce, 

Chairman. 

[FR Doc. 2012–10263 Filed 4–26–12; 4:15 pm] 

BILLING CODE 7545–01–P 


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