74308 Federal Register / Vol. 79, No. 240 / Monday, December 15, 2014 / Rules 

1The Board’s binding rules of procedure are 

found primarily in 29 CFR part 102, subpart C. 

Additional rules created by adjudication are found 

throughout the corpus of Board decisional law. See, 

NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 

770, 777, 779 (1969). 

2NLRB Casehandling Manual (Part Two) 

Representation Proceedings. The relevant sections 

of the Casehandling Manual are Sections 11000 

through 11886. Unless otherwise noted, all 

references to the Casehandling Manual are to the 

August 2007 edition, which predated the NPRMs. 

3A question of representation is often referred to 

as a ‘‘question concerning representation.’’ See, e.g., 

Casehandling Manual Section 11084. 

4The General Counsel administratively oversees 

the regional directors. 29 U.S.C. 153(d). 

5S. Rep. No. 752, at 225 (1945). 

6 In accordance with the discrete character of the 

matters addressed by each of the amendments 

listed, the Board hereby concludes that it would 

adopt each of these amendments individually, or in 

any combination, regardless of whether any of the 

other amendments were made, except as expressly 

noted in the more detailed discussion of the 

particular sections below. For this reason, the 

amendments are severable. 

NATIONAL LABOR RELATIONS 

BOARD 

29 CFR Parts 101, 102, and 103 

RIN 3142–AA08 

Representation—Case Procedures 

AGENCY: National Labor Relations 

Board. 

ACTION: Final rule. 

SUMMARY: The National Labor Relations 

Board (the Board) has decided to issue 

this final rule for the purpose of 

carrying out the provisions of the 

National Labor Relations Act which 

‘‘protect[ ] the exercise by workers of 

full freedom of association, selforganization, and designation of 

representatives of their own choosing, 

for the purpose of negotiating the terms 

and conditions of their employment or 

other mutual aid or protection.’’ While 

retaining the essentials of existing 

representation case procedures, these 

amendments remove unnecessary 

barriers to the fair and expeditious 

resolution of representation cases. They 

simplify representation-case procedures, 

codify best practices, and make them 

more transparent and uniform across 

regions. Duplicative and unnecessary 

litigation is eliminated. Unnecessary 

delay is reduced. Procedures for Board 

review are simplified. Rules about 

documents and communications are 

modernized in light of changing 

technology. In various ways, these 

amendments provide targeted solutions 

to discrete, specifically identified 

problems to enable the Board to better 

fulfill its duty to protect employees’ 

rights by fairly, efficiently, and 

expeditiously resolving questions of 

representation. 

DATES: This rule will be effective on 

April 14, 2015. 

FOR FURTHER INFORMATION CONTACT: Gary 

Shinners, Executive Secretary, National 

Labor Relations Board, 1099 14th Street 

NW., Washington, DC 20570, (202) 273– 

3737 (this is not a toll-free number), 1– 

866–315–6572 (TTY/TDD). 

SUPPLEMENTARY INFORMATION: 

I. Background on the Rulemaking 

The National Labor Relations Board 

administers the National Labor 

Relations Act, which, among other 

things, governs the formation of 

collective-bargaining relationships 

between employers and groups of 

employees in the private sector. Section 

7 of the Act, 29 U.S.C. 157, gives 

employees the right to bargain 

collectively through representatives of 

their own choosing and to refrain from 

such activity. 

When employees and their employer 

are unable to agree whether the 

employees should be represented for 

purposes of collective bargaining, 

Section 9 of the Act, 29 U.S.C. 159, 

gives the Board authority to resolve the 

question of representation. As explained 

in the NPRM, the Supreme Court has 

repeatedly recognized that ‘‘Congress 

has entrusted the Board with a wide 

degree of discretion in establishing the 

procedure and safeguards necessary to 

insure the fair and free choice of 

bargaining representatives by 

employees.’’ NLRB v. A.J. Tower Co., 

329 U.S. 324, 330 (1946). ‘‘The control 

of the election proceeding, and the 

determination of the steps necessary to 

conduct that election fairly were matters 

which Congress entrusted to the Board 

alone.’’ NLRB v. Waterman Steamship 

Co., 309 U.S. 206, 226 (1940); see also 

Southern Steamship Co. v. NLRB, 316 

U.S. 31, 37 (1942). 

Representation case procedures are 

set forth in the statute, in Board 

regulations, and in Board caselaw.1 In 

addition, the Board’s General Counsel 

has prepared a non-binding 

Casehandling Manual describing 

representation case procedures in 

detail.2

The Act itself sets forth only the basic 

steps for resolving a question of 

representation.3 These are as follows. 

First, a petition is filed by an employee, 

a labor organization, or an employer. 

Second, if there is reasonable cause, an 

appropriate hearing is held to determine 

whether a question of representation 

exists, unless the parties agree that an 

election should be conducted and agree 

concerning election details. Hearing 

officers are authorized to conduct preelection hearings, but may not make 

recommendations as to the result. Third, 

if there is a question of representation, 

an election by secret ballot is conducted 

in an appropriate unit. Fourth, the 

results of the election are certified. The 

statute also permits the Board to 

delegate its authority to NLRB regional 

directors. The statute provides that, 

upon request, the Board may review any 

action of the regional director; however, 

such requests do not stay regional 

proceedings unless specifically ordered 

by the Board. 

Underlying these basic provisions is 

the essential principle that 

representation cases should be resolved 

quickly and fairly. ‘‘[T]he Board must 

adopt policies and promulgate rules and 

regulations in order that employees’ 

votes may be recorded accurately, 

efficiently and speedily.’’ A.J. Tower 

Co., 329 U.S. at 331. Within the 

framework of the current rules—as 

discussed at length in the NPRM—the 

Board, the General Counsel 4 and the 

agency’s regional directors have sought 

to achieve efficient, fair, uniform, and 

timely resolution of representation 

cases. In part, the final rule codifies best 

practices developed over the years. This 

ensures greater uniformity and 

transparency. 

But the Board’s experience has also 

revealed problems—particularly in fully 

litigated cases—which cannot be solved 

without changing current practices and 

rules. For example, pre-election 

litigation has at times been disordered, 

hampered by surprise and frivolous 

disputes, and side-tracked by testimony 

about matters that need not be decided 

at that time. Additionally, the process 

for Board review of regional director 

actions has resulted in unnecessary 

delays. Moreover, some rules have 

become outdated as a result of changes 

in communications technology and 

practice. The final rule addresses these 

and other problems as discussed below. 

II. List of Amendments 

This list provides a concise statement 

of the various ways the final rule 

changes or codifies current practice, and 

the general reasoning in support. It is 

not ‘‘an elaborate analysis of [the] rules 

or of the detailed considerations upon 

which they are based;’’ rather, it ‘‘is 

designed to enable the public to obtain 

a general idea of the purpose of, and a 

statement of the basic justification for, 

the rules.’’ 5 As this list shows, the 

amendments provide targeted solutions 

to discrete, specifically identified 

problems.6 All of these matters are 


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discussed in greater detail below, along 

with responses to the comments. 

1. Representation petitions may be 

filed with the Board electronically. The 

prior rules required hard-copy or 

facsimile filing, which should not be 

necessary under contemporary litigation 

practice and technological 

advancements. 

2. Representation petitions (and 

related documents) must be served by 

the petitioner, which will afford the 

other parties the earliest possible notice 

of the petition. The Board’s prior rules 

did not require the petitioner to serve a 

copy of its petition on the other parties. 

3. At the same time the petition is 

filed with the Board, the petitioner must 

also provide evidence that employees 

support the petition (the ‘‘showing of 

interest’’). Petitioner must also provide 

the name and contact information of its 

representative. The prior rules gave the 

petitioner 48 hours after the petition to 

file the showing of interest. This delay 

is unnecessary. 

4. When a petition is filed, the 

employer must post and distribute to 

employees a Board notice about the 

petition and the potential for an election 

to follow. Under prior practice, such 

notice was voluntary (and less detailed). 

The employees will benefit from a 

uniform notice practice, which provides 

them, equally and at an earlier date, 

with meaningful information about the 

petition, the Board’s election procedures 

and their rights, and employers will 

benefit from more detailed Board 

guidance about compliance. 

5. The pre-election hearing will 

generally be scheduled to open 8 days 

from notice of the hearing. This largely 

codifies best practices in some regions, 

where hearings were routinely 

scheduled to open in 7 days to 10 days. 

However, practice was not uniform 

among regions, with some scheduling 

hearings for 10 to 12 days, and actually 

opening hearings in 13 to 15 days, or 

even longer. The rule brings all regions 

in line with best practices. 

6. The pre-election hearing will 

continue from day to day until 

completed, absent extraordinary 

circumstances. Prior practice did not 

address the standard for granting 

lengthy continuances, and sometimes 

continuances unnecessarily delayed the 

hearing. 

7. Non-petitioning parties are required 

to state a position responding to the 

petition in writing 1 day before the preelection hearing is set to open. The 

statement must identify the issues they 

wish to litigate before the election; 

litigation inconsistent with the 

statement will not be permitted. Timely 

amendments to the statement may be 

made on a showing of good cause. The 

employer must also provide a list of the 

names, shifts, work locations, and job 

classifications of the employees in the 

petitioned-for unit, and any other 

employees that it seeks to add to the 

unit. The statement must also identify 

the party’s representative for purposes 

of the proceeding. Prior practice 

requested parties to state positions and 

provide a list of employees and job 

classifications before the hearing, but 

did not require production of such 

information prior to the hearing. Prior 

best practices required parties to take 

positions on the issues orally at the 

hearing. But practice was not uniform, 

and in some cases hearing officers have 

permitted parties to remain silent on 

their position or to take shifting 

positions during the hearing, 

unnecessarily impeding the litigation. 

Finally, our experience has 

demonstrated that clear communication 

about the specific employees involved 

generally facilitates election agreements 

or results in more orderly litigation. 

8. At the start of the hearing, the 

petitioner is required to respond on the 

record to the issues raised by the other 

parties in their statements of position. 

Litigation inconsistent with the 

response will not be permitted. If there 

is a dispute between the parties, the 

hearing officer has discretion to ask 

each party to describe what evidence it 

has in support of its position, i.e., make 

an offer of proof. This codifies current 

best practices, ensuring greater 

uniformity and orderly litigation. 

9. The purpose of the pre-election 

hearing, to determine whether there is a 

‘‘question of representation,’’ 29 U.S.C. 

159, is clearly identified. Prior rules did 

not expressly state the purpose of the 

hearing and, as discussed in item ten 

below, sometimes litigation on collateral 

issues resulted in substantial waste of 

resources. 

10. Once the issues are presented, the 

regional director will decide which, if 

any, voter eligibility questions should 

be litigated before an election is held. 

These decisions will be made bearing in 

mind the purpose of the hearing. 

Generally, only evidence that is relevant 

to a question that will be decided may 

be introduced at the pre-election 

hearing. Prior rules required, e.g., 

litigation of any voter eligibility issues 

that any party wished to litigate, even if 

the regional director was not going to be 

deciding that question, and even if the 

particular voter eligibility question was 

not necessary to resolving the existence 

of a question of representation. This 

practice has resulted in unnecessary 

litigation. Once it is clear that an issue 

need not be decided, and will not be 

decided, no evidence need be 

introduced on the matter. 

11. The hearing will conclude with 

oral argument, and no written briefing 

will be permitted unless the regional 

director grants permission to file such a 

brief. Prior rules permitted parties to file 

briefs which were often unnecessary 

and delayed the regional director’s 

decision in many cases. 

12. The regional director must decide 

the matter, and may not sua sponte 

transfer it to the Board. The prior 

transfer procedure was little used, ill 

advised, and a source of delay; Board 

decisions are generally improved by 

obtaining the initial decision of the 

regional director. 

13. Absent waiver, a party may 

request Board review of action of a 

regional director delegated under 

Section 3(b) of the Act. Requests will 

only be granted for compelling reasons. 

Requests may be filed any time during 

the proceeding, or within 14 days after 

a final disposition of the case by the 

regional director. The prior rules 

included a variety of means for asking 

for Board review, including a ‘‘request 

for review’’ which only applied to the 

direction of election; a complex set of 

interlocking mechanisms for postelection review which varied depending 

upon the type of procedure chosen by 

the regional director or the form of 

election agreement; and a catchall 

‘‘special permission to appeal.’’ Review 

of the direction of the election had to be 

sought before the election, even though 

the vote itself might moot the appeal. 

The final rule improves the process for 

Board review by giving parties an option 

to wait and see whether election results 

will moot a request for review that prior 

rules required to be filed before the 

election, and recognizes that Board 

review is not necessary in most cases. 

This will best serve Congress’s purpose 

of ensuring that the regional director 

can promptly resolve disputes unless 

there is reason to interrupt proceedings 

in a particular case. 

14. A request for review will not 

operate as a stay unless specifically 

ordered by the Board. Stays and/or 

requests for expedited consideration 

will only be granted when necessary. 

The prior rules included an automatic 

stay of the count of ballots 

(‘‘impounding the ballots’’) in any case 

where a request was either granted or 

pending before the Board at the time of 

the election. A stay should not be 

routine, but should be an extraordinary 

form of relief. 

15. Elections will no longer be 

automatically stayed in anticipation of 

requests for review. The prior rules 

generally required the election which 


emcdonald on DSK67QTVN1PROD with RULES2
74310 Federal Register / Vol. 79, No. 240 / Monday, December 15, 2014 / Rules 

7See R. Alexander Acosta, Rebuilding the Board: 

An Argument for Structural Change, over Policy 

Prescriptions, at the NLRB, 5 FIU L. Rev. 347, 351– 

52 (2010); Merton C. Bernstein, The NLRB’s 

Adjudication-Rule Making Dilemma Under the 

Administrative Procedure Act, 79 Yale L.J. 571, 

589–90, 593–98 (1970); Samuel Estreicher, Policy 

Oscillation at the Labor Board: A Plea for 

Rulemaking, 37 Admin. L. Rev. 163, 170 (1985); 

Jeffrey S. Lubbers, The Potential of Rulemaking by 

the NLRB, 5 FIU L. Rev. 411, 414–17, 435 (Spring 

2010); Kenneth Kahn, The NLRB and Higher 

Education: The Failure of Policymaking Through 

Adjudication, 21 UCLA L. Rev. 63, 84 (1973); 

Charles J. Morris, The NLRB in the Dog House—Can 

an Old Board Learn New Tricks?, 24 San Diego L. 

Rev. 9, 27–42 (1987); Cornelius Peck, The 

Atrophied Rulemaking Powers of the National 

Labor Relations Board, 70 Yale L.J. 729, 730–34 

(1961); Cornelius J. Peck, A Critique of the National 

Labor Relations Board’s Performance in Policy 

Formulation: Adjudication and Rule-Making, 117 

U. Pa. L. Rev. 254, 260, 269–72 (1968); David L. 

Shapiro, The Choice of Rulemaking or Adjudication 

in the Development of Administrative Policy, 78 

Harv. L. Rev. 921, 922 (1965); Carl S. Silverman, 

The Case for the National Labor Relations Board’s 

Use of Rulemaking in Asserting Jurisdiction, 25 Lab. 

L.J. 607 (1974); and Berton B. Subrin, Conserving 

Energy at the Labor Board: The Case for Making 

Rules on Collective Bargaining Units, 32 Lab. L.J. 

105 (1981); see also NLRB v. Bell Aerospace Co., 

416 U.S. 267, 295 (1974); NLRB v. Wyman-Gordon 

Co., 394 U.S. 759, 764, 770, 777, 779, 783 n.2 

(1969). The Portland Cement Association (PCA) 

contends, as it did in another recent Board 

rulemaking, that the Board should place these and 

other law review articles discussed in the NPRM 

online for the public to read for free on 

regulations.gov. Just as the Board replied in that 

prior rulemaking, 76 FR 54014, the Board has 

placed these articles in the hard copy docket, but 

has not uploaded these articles to the electronic 

docket because such an action could violate 

copyright laws. It should also be noted that these 

materials are generally available in libraries. 

followed a Decision and Direction of 

Election to be held between 25 and 30 

days after the direction of election. The 

stated purpose of this requirement was 

to permit requests for review to be ruled 

on by the Board in the interim. This 

delay served little purpose, as few 

requests were filed, and only a very 

small fraction of these requests were 

granted. Even where a request was 

granted, the 25–30 day waiting period in 

the prior rules did nothing to prevent 

unnecessary elections as the vote was 

generally held as scheduled 

notwithstanding the grant of the request. 

16. The regional director will 

ordinarily specify in the direction of 

election the election details, such as the 

date, time, place, and type of election 

and the payroll period for eligibility. 

Parties will take positions on these 

matters in writing in the statement of 

position and on the record before the 

close of the hearing. Under prior 

practice, election details were typically 

addressed after the direction of election 

was issued, which required further 

consultation about matters that could 

easily have been resolved earlier. 

17. The long-standing instruction 

from the Casehandling Manual that the 

regional director will set the election for 

the earliest date practicable is codified. 

The statute was designed by Congress to 

encourage expeditious elections, and 

the rules require the regional director to 

schedule the election in a manner 

consistent with the statute. 

18. The regional director will 

ordinarily transmit the notice of election 

at the same time as the direction of 

election. Both may be transmitted 

electronically. Previously, the notice 

was transmitted by mail after the 

direction of election. 

19. If the employer customarily 

communicates with its employees 

electronically, it must distribute all 

election notices to employees 

electronically, in addition to posting 

paper notices at the workplace. Prior 

rules required only paper notices. This 

change recognizes that modern 

technology has transformed many 

workplaces into virtual environments 

where paper notices are less effective. 

20. Within 2 business days of the 

direction of election, employers must 

electronically transmit to the other 

parties and the regional director a list of 

employees with contact information, 

including more modern forms of contact 

information such as personal email 

addresses and phone numbers if the 

employer has such contact information 

in its possession. The list should also 

include shifts, job classifications, and 

work locations. The list may only be 

used for certain purposes. Prior caselaw 

gave employers 7 days to produce a list 

of names and home addresses and send 

it to the Board, which then served the 

list on the parties. In addition to 

simplifying and expediting service by 

cutting out the middle man, the 

amendments update the rules to 

leverage the ways in which modern 

technology has transformed 

communications, recordkeeping and 

record transmission. For instance, the 

changes make information that is 

routinely maintained in electronic form 

more quickly available to the parties. 

Recognizing the potential sensitivity of 

the information, however, the rules also 

restrict its use in order to guard against 

potential abuse. 

21. When a charge is filed alleging the 

commission of unfair labor practices 

that could compromise the fairness of 

the election, the regional director has 

discretion to delay (or ‘‘block’’) the 

election until the issue can be resolved. 

Any party seeking to block the election 

must simultaneously file an offer of 

proof and promptly make witnesses 

available. This rule largely codifies what 

had been best practice while adding an 

offer-of-proof requirement that will 

expedite investigation and help weed 

out meritless or abusive blocking 

charges. 

22. After the election, parties have 7 

days to file both objections and offers of 

proof in support. Objections, but not 

offers, must be served by the objector on 

other parties. Prior rules gave 7 days for 

objections but 14 days for evidence in 

support of the objections. The change is 

made because unsupported objections 

should not be filed, and 7 days is 

typically adequate for the parties to 

marshal their evidence. 

23. If necessary, a post-election 

hearing on challenges and/or objections 

will be scheduled to open 21 days after 

the tally of ballots or as soon as 

practicable thereafter. Prior rules set no 

timeline for opening the hearing, and 

this rule will give adequate time for the 

region to weed out unsupported and 

frivolous objections while making the 

process more transparent and uniform. 

24. In every case, the regional director 

will be required to issue a final 

decision. Where applicable, the regional 

director’s decision will be subject to 

requests for review under the procedure 

described in item 13 above. The prior 

rules were unduly complex, and 

frequently did not involve a final 

regional director decision. Regional 

directors can and should issue final 

decisions because they are delegated 

authority to do so pursuant to Section 

3(b) and the Board’s rules, and are in the 

best position to initially assess the facts. 

Where necessary, Board decisions on 

review are improved by first obtaining 

the final decision of the regional 

director. 

25. Finally, the rule eliminates a 

number of redundancies and 

consolidates and reorganizes the 

regulations so that they may be more 

easily understood. 

III. The Rulemaking Process 

As the NPRM explains, the Board has 

amended its representation case 

procedures repeatedly over the years as 

part of a continuing effort to improve 

the process and eliminate unnecessary 

delays. Indeed, the Board has amended 

its representation case procedures more 

than three dozen times without prior 

notice or request for public comment. 

In fact, the Board has seldom acted 

through notice-and-comment 

rulemaking on any subject. The Board 

typically makes substantive policy 

determinations in the course of 

adjudication rather than through 

rulemaking, although this practice has 

occasionally drawn the ire of academic 

commentators and the courts.7

The Board has thus asked for public 

comments on few proposed rules of any 

kind. A review of prior Board 


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8 In the rulemaking proceedings that resulted in 

adoption of rules defining appropriate units in 

acute care hospitals, the Board directed an 

administrative law judge to hold a series of public 

hearings to take evidence concerning the proposed 

rules, but no Board members participated in the 

hearings. 

9The rule is primarily procedural as defined in 

5 U.S.C. 553(b)(B), and therefore exempt from 

notice and comment. To the extent portions of the 

rule are substantive—for example, relating to 

information in the voter lists—these changes could 

have been made by adjudication, which is also 

exempt from notice and comment. Wyman Gordon, 

supra. 

10See, e.g., joint comment of HR Policy 

Association and Society for Human Resource 

Management (collectively, SHRM); Greater Easley 

Chamber of Commerce; Georgia Association of 

Manufacturers (GAM). 

11The preamble to the final rule uses the roman 

numeral II to signify that a cited comment was 

received during the second notice and comment 

period in 2014. Comments cited without the roman 

numeral II were received during the first notice and 

comment period in 2011. 

rulemaking procedures reveals that, 

until this proceeding commenced, the 

Board had not held a public hearing 

attended by all Board members for at 

least half a century.8

A. Procedural History of This Rule 

On June 22, 2011, the Board issued a 

Notice of Proposed Rulemaking. The 

Notice provided 60 days for comments 

and 14 additional days for reply 

comments. The Board issued press 

releases about the proposals and placed 

summaries, answers to frequently asked 

questions, and other more detailed 

information on its Web site 

(www.nlrb.gov). The Board held a public 

hearing during the comment period, on 

July 18 and 19, 2011, where the Board 

members heard commentary and asked 

questions of the speakers. 

On November 30, 2011, the Board 

members engaged in public 

deliberations and a vote about whether 

to draft and issue a final rule, and, on 

December 22, 2011, a final rule issued. 

76 FR 80138. A Federal court later held 

that the Board had lacked a quorum in 

issuing the final rule. See Chamber of 

Commerce of the U.S. v. NLRB, 879 F. 

Supp. 2d 18, 28–30 (D.D.C. May 14, 

2012). However, because the court did 

not reach the merits, the court also 

‘‘emphasize[d] that its ruling need not 

necessarily spell the end of the final 

rule for all time * * *. [N]othing 

appears to prevent a properly 

constituted quorum of the Board from 

voting to adopt the rule if it has the 

desire to do so.’’ 

The Board then issued a proposed 

rule on February 6, 2014 under the same 

docket number as the prior NPRM and 

containing the same proposals. 79 FR 

7318 et seq. The Board again issued 

press releases and placed supporting 

documents on its Web site. This was ‘‘in 

essence, a reissuance of the proposed 

rule of June 22, 2011.’’ Id. The purpose 

of this NPRM was to give a properly 

constituted quorum of the Board a 

‘‘legally appropriate, administratively 

efficient, and demonstrably fair process 

for considering all the issues and 

comments raised in the prior 

proceeding, while giving an opportunity 

for any additional commentary.’’ Id. at 

7335. 

The Board provided 60 additional 

days for the submission of any new 

comments, and 7 days for replies. The 

Board advised commenters that it was 

not necessary to ‘‘resubmit any 

comment or repeat any argument that 

has already been made.’’ Id. at 7319. 

During the reply period, on April 10 and 

11, 2014, the Board held another public 

hearing, at which the Board members 

again heard commentary and asked 

questions of the speakers. 

In sum, the Board has accepted 

comments on these proposals for a total 

of 141 days, and held a total of 4 days 

of oral hearings with live questioning by 

Board members. Tens of thousands of 

people have submitted comments on the 

proposals, and Board members have 

heard over one thousand transcript 

pages of oral commentary. 

The sole purpose of these procedures 

was to give the Board the benefit of the 

views of the public. To be clear, none 

of this process was required by law: The 

Board has never engaged in notice and 

comment rulemaking on representation 

case procedures, and all of the proposed 

changes could have been made without 

notice and comment—in part by 

adjudication, and in part by simply 

promulgating a final rule.9

Nonetheless, a number of comments 

have criticized the Board’s process, both 

in 2011 and again in 2014. At bottom, 

the claim is that the process was 

inadequate to meaningfully engage with 

the public, and that the Board already 

had its mind made up. We disagree. 

1. Advanced NPRMs and Consultation 

Under E.O. 13563 

The 2011 comment of the Chamber of 

Commerce of the United States of 

America (the Chamber) provides a 

representative example of criticism of 

the 2011 pre-NPRM process. The 

Chamber believes that the Board missed 

‘‘an opportunity to explore whether a 

consensus could have been reached’’ on 

the rule among stakeholder groups 

through forums such as the American 

Bar Association’s Labor and 

Employment Law Section. The Chamber 

concedes that stakeholders ‘‘have 

widely divergent views,’’ but argues that 

a consensus on at least some changes 

might have been reached. The Chamber 

suggests that the Board should 

withdraw the NPRM and publish a more 

open-ended Advanced Notice of 

Proposed Rulemaking. 

The Chamber cites Executive Order 

13563 Section 2(c) (‘‘Improving 

Regulation and Regulatory Review’’), 76 

FR 51735, as support. Section 2(c) of the 

Executive Order states that ‘‘[b]efore 

issuing a proposed regulation, each 

agency, where feasible and appropriate, 

shall seek the views of those who are 

likely to be affected * * *.’’ Id. In the 

NPRM, the Board explained the 

decision to issue a set of specific 

proposals, rather than a more openended Advanced NPRM, by stating that 

‘‘public participation would be more 

orderly and meaningful if it was based 

on * * * specific proposals.’’ 76 FR 

36829. The Chamber incorrectly 

suggests the Board conceded that it 

violated the Executive Order, and 

questions whether the comment process 

actually was more orderly or 

meaningful. Some other comments 

suggest that the Board should have 

engaged in negotiated rulemaking, or 

that the pre-NPRM process was 

insufficiently transparent.10

These arguments were repeated by the 

Chamber and a number of other 

commenters in 2014, most notably the 

American Hospital Association (AHA 

II) 11 and their counsel at the public 

hearing, (Testimony of Curt Kirschner 

II) who contended that the Board should 

have issued an Advanced NPRM or 

consulted with stakeholders before 

reissuing the NPRM in February 2014. 

An agency generally has discretion 

over its pre-NPRM procedures, 

including whether to use advanced 

NPRMs, negotiated rulemaking, or other 

pre-NPRM consultation. See Vermont 

Yankee Nuclear Power Corp. v. Natural 

Resources Defense Council, 435 U.S. 

519, 543–44 (1978). Moreover, as 

recognized by the AHA, the Board is not 

directly subject to Executive Order 

13563, nor is its language pertaining to 

pre-NPRM procedures mandatory in any 

event. 

As explained in both NPRMs, in this 

instance, the Board concluded that 

beginning the process of public 

comment by issuing NPRMs would be 

the most effective method of 

proceeding. The Board continues to 

believe that following the notice-andcomment procedures set forth in the 

Administrative Procedure Act (APA)— 

and thereby giving formal notice of 

specific proposals to all members of the 

public at the same time in the Federal 

Register and permitting all members of 


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12See, e.g., Chamber II; International Franchising 

Association (IFA) II; AHA II. Along the same lines, 

some argued that the Board should have clarified 

the proposals in light of questions raised in the 

2011 comments. See, e.g., Association of the 

Nonwoven Fabrics Industry (INDA) II. 

13See, e.g., Association of Equipment 

Manufacturers (AEM) II; INDA II. 

14See, e.g., Senator Lamar Alexander and 17 

Republican Senators (Senator Alexander and 

Republican Senators) II. 

15After each public hearing in 2011 and 2014, the 

transcripts containing each speaker’s testimony 

the public to comment on those 

proposals through the same procedures 

and during the same time periods—was 

the fairest and soundest method of 

proceeding. 

The contents of the comments 

themselves have also demonstrated the 

doubtfulness of the Chamber’s 

suggestion that a broad consensus might 

have been reached through a different 

process. As the Chamber concedes, the 

labor-management bar is polarized on 

many of the relevant issues. Given the 

degree of polarization reflected at both 

the public hearings and in the 

comments—notwithstanding the 3 

intervening years for members of the bar 

to consider and consult on possible 

improvements—consensus seems 

unlikely. 

Nor would an Advanced NPRM have 

been an improvement on the present 

process. Indeed, in this proceeding the 

Board has already benefited from 

something similar to the iterative 

commenting process of an Advanced 

NPRM. From the 2011 hearing, to the 

2011 comment period, to the 2011 reply 

period, to the 2014 comment period, to 

the 2014 hearing and reply period, the 

commenters have had the opportunity 

to consider and respond to each other’s 

views on many occasions. And, in 

contrast to the typical Advanced NPRM, 

the specificity of the proposals in the 

NPRM encouraged many commenters to 

focus on important details. With the 

benefit of this repeated cross analysis 

and close attention to detail, the Board 

has modified its proposals in a number 

of significant respects in this final rule. 

We see no merit in the speculative 

retrospective claim that something 

better might have been achieved by 

another process. 

In sum, the Board’s pre-NPRM 

process was lawful and appropriate. 

2. The 2014 NPRM 

A variety of inconsistent claims were 

made by commenters about the 

significance of the Board’s reissuing the 

NPRM in 2014. Some argued that the 

Board should have considered the 2011 

comments before reissuing the NPRM.12

By contrast, some said that the Board 

had considered and implicitly rejected 

the 2011 comments, and that this 

rejection required re-submitting the 

same comments again, or that it 

suggested that a final rule identical to 

the NPRM was a fait accompli.13 Some 

faulted the Board for not addressing the 

prior final rule of December of 2011.14

These arguments are misplaced, and 

many are predicated on an 

unsupportable and mistaken 

interpretation of the NPRM. In early 

2014, the recently appointed and 

confirmed Board members had a choice 

to make. Significant public effort had 

been expended in commenting on a 

proposed rule that—according to one 

court—the Board had not yet lawfully 

acted on. Thus, the questions posed by 

the NPRM remained unanswered by the 

Board. As years had passed since the 

comment period had closed, the new 

Board members were interested to know 

whether the public had anything further 

to say about the proposals. 

That is why the Board reissued the 

NPRM and reopened the comment 

period. This process allowed the new 

Board members an opportunity to 

consider new comments and old 

comments together in a single 

proceeding. 

This is reasonable. To consider and 

analyze all the material submitted in the 

2011 final rule—without considering 

whether anyone’s views might have 

changed in the intervening years—and 

only then issuing a new proposed rule, 

would have been substantially less 

efficient. Where possible, it is far better, 

in the Board’s judgment, to respond to 

the comments once, rather than twice. 

The 2014 NPRM reflected absolutely 

no Board judgment about the 2011 

comments. As the Board explained in 

the NPRM, the purpose was simply to 

re-raise, not resolve, the questions posed 

and to allow the Board to make its 

decisions about the final rule in light of 

all the comments received. 

The AHA claimed that the Board was 

‘‘hiding the ball from the public 

regarding its current views of what 

should be changed, in light of the 

comments previously received and its 

analysis of those comments. The 

implication of the Board’s reissuance of 

the same NPRM is that the public 

comment process is, from the Board’s 

perspective, largely perfunctory.’’ AHA 

II. 

This statement misses the point. 

There was no ball to hide. The Board 

reissued the NPRM because it wanted to 

hear yet again from the public before 

forming its views. This manifests a 

greater respect for the public comment 

process. As Member Hirozawa said in 

responding to this point at the public 

hearing: 

Curt, if it makes you feel any better, we 

don’t know where we’re headed, either. 

There are a lot of difficult decisions that are 

going to have to be made, a lot of questions 

where there are significant considerations on 

both sides, and there will be a lot of 

discussion among the members during the 

coming period of time * * *. But in terms of 

the views of the public, I think that I speak 

for all five of the members here that we all 

consider them very important and [an] 

essential part of this process. 

A similar point applies to the Board’s 

consideration of the December 2011 

final rule. Of course, the court held that 

the rule itself is a legal nullity; without 

the requisite vote (in the court’s 

analysis), the Board never took action. 

Although the various statements 

associated with that publication are 

important, and represent the carefully 

considered views of three individual 

Board members (two of whom are no 

longer on the Board), it would be 

strange, to say the least, if the Board 

were somehow bound to consider and 

respond to this non-action before it 

could issue a proposed rule. Indeed, 

although the Board has considered those 

views in issuing the present final rule, 

their function here is persuasive, not 

authoritative. 

In sum, the Board’s decision to 

consider the 2011 comments, 2011 

hearing testimony, 2011 final rule, and 

2012 Board Member statements, 

together and at the same time as the 

2014 comments and 2014 hearing 

testimony, is not only a reasonable 

manner of proceeding, but clearly the 

fairest and most efficient manner of 

proceeding given the procedural posture 

of this matter as it stood in early 2014. 

3. The Length, Timing, and Location of 

the Hearings 

In 2011, the Board members held a 2- 

day public hearing in Washington, DC, 

approximately halfway through the 

initial comment period, i.e., about 1 

month after publication of the NPRM 

and 1 month before the initial comment 

period closed. All Board members heard 

5-minute statements from speakers 

representing diverse organizations and 

groups, and then actively questioned the 

speakers for an additional period of 

time. This hearing was not legally 

required. 

Then, in 2014, the Board members 

held another 2-day public hearing in 

Washington, DC, in the week after the 

close of the 2014 initial comment 

period, i.e., during the reply period.15


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along with any Board questioning of the speaker 

were made part of the record of the rulemaking. 

Any such testimony discussed in this final rule is 

cited as follows: ‘‘Testimony of [name of speaker] 

on behalf of [name or organization, if any].’’ As with 

the written comments, the roman numeral II follows 

testimony citations from the 2014 comment period. 

16As one scholar noted, the hospital unit 

rulemaking could be described as ‘‘procedural 

overkill,’’ see Mark H. Grunewald, The NLRB’s First 

Rulemaking: An Exercise in Pragmatism, 41 Duke 

L. J. 274, 319 (1991). 

17 In light of the extensive process provided in 

2014, comments arguing that the 2011 process was 

‘‘rushed’’ or gave ‘‘an inadequate opportunity for 

stakeholders to address the merits of the rules’’ are 

no longer salient. See National Association of 

Manufacturers (NAM). The parties have had a total 

of 141 days to comment on both NPRMs, (74 with 

respect to the 2011 NPRM and 67 for the 2014 

NPRM), and to consider the proposals and data in 

submitting their comments. Some have published 

law review articles in the interim, and it is quite 

clear that the topics have remained relevant 

questions of public concern during this period. See 

Joseph P. Mastrosimone, Limiting Information in 

the Information Age: The NLRB’s Misguided 

Attempt to Squelch Employer Speech, 52 Washburn 

L. J. 473, 501–06 (2013). 

18 In each of its reply comments, the Chamber 

also complained that the reply period was too short 

to read and respond to all of the comments. But the 

purpose of the reply period was not to afford 

interested parties an opportunity to read and reply 

to all of the comments submitted, but to provide an 

opportunity to read the most significant comments 

and respond to the arguments raised in them. This 

the Chamber and others did quite successfully. For 

example, in 2011 the Service Employees 

International Union (SEIU) cited and replied to over 

twenty unique, detailed, and lengthy comments 

submitted by other parties. Others, such as the 

Association of Corporate Counsel (ACC), took the 

opportunity to focus on elaborating one particular 

issue of special importance. Both approaches were 

quite helpful, and served the purpose for which the 

Board afforded the reply period. 

A lengthy additional reply period in this context 

would have served little purpose, particularly after 

a post-comment hearing in which the parties and 

the Board had the opportunity to engage with and 

reply to the comments in great detail. All of which 

is in addition to the fact that neither the APA nor 

any other law requires any opportunity to reply to 

public comments. 

The Board first solicited requests to 

speak, and instructed requesters to 

clearly identify the particular proposed 

changes and issues they wished to 

address, and to summarize the 

statements they wished to make. This 

process enabled the Board to schedule 

the speakers addressing similar issues to 

speak in adjacent time slots. Everyone 

who requested to speak was given an 

opportunity to address the Board, and, 

as time allowed, those who wished to 

speak about multiple issues were given 

an opportunity to address the Board 

more than once. 

The AHA compares this proceeding to 

the hospital unit rulemaking and 

essentially argues that the Board should 

have held 14 days of hearings instead of 

4. AHA II. 

Agencies are not bound to use the 

same procedures in every rulemaking 

proceeding. Otherwise, agencies could 

neither learn from experience, e.g., what 

rulemaking procedures are helpful and 

what procedures are simply wasteful, 

nor adopt procedures suited to the 

precise question at stake.16 This 

learning process is shown in the 

changing nature of the hearings used by 

the Board from the hospital rulemaking, 

to the 2011 hearing, to the 2014 hearing. 

At each phase the hearing process 

became more meaningful and efficient. 

This point was recognized by counsel 

for the AHA itself, who ‘‘commend[ed] 

the Board on this public hearing 

process,’’ particularly in comparison to 

the 2011 hearing, and described the 

exchange with Board members as 

‘‘gratifying,’’ ‘‘valuable,’’ and 

‘‘productive.’’ Kirschner II. The Board 

agrees. The 5 minutes that speakers 

were given on each issue was 

supplemented by substantial time for 

questioning and the opportunity for 

written comments. Some speakers gave 

2,000 words or more of well-informed 

testimony during their allotted time. 

The Board found that the speakers 

provided informed, thorough, and 

thoughtful analysis, and the back-andforth dialogue with the Board members 

demonstrated the familiarity of the 

speakers with the proposals. Again, 

there was no such dialogue with Board 

members in the hospital rulemaking 

hearings—regardless of their length— 

simply because the Board members did 

not participate in those hearings.17

The Board believes that the hearings 

exceeded the requirements of the APA 

and were fair, appropriate, and useful. 

Holding the hearings in Washington, 

DC, was appropriate because many of 

the Board’s major stakeholders are 

either headquartered in Washington or 

are represented by counsel in the city or 

who frequently appear in the city. 

Both hearings were properly noticed 

and appropriately timed. The two 

hearings served two different functions. 

The first hearing was scheduled halfway through the first comment period. 

This gave the public time to develop 

their positions before the hearing, while 

also allowing the public to get a preview 

of the arguments at issue, so that written 

comments could be framed more 

responsively. The subsequent written 

comments were more informed, 

thoughtful, and technically 

sophisticated as a result, and many 

commenters in 2011, such as the 

Chamber, took the opportunity to cite 

extensively from the hearing transcripts 

for support and to respond to arguments 

made at the hearing. The Board believes 

the chosen sequence—the hearing 

followed by the close of the initial 

comment period and then the reply 

period—produced more meaningful 

public comments in 2011. 

In 2014, of course, all of the 2011 

comments were available for the public 

to engage, as was the transcript of the 

2011 hearing. Thus the second hearing 

served a different purpose, and was 

therefore scheduled at a different time. 

By scheduling the hearing after the close 

of the comment period, but during the 

reply period, the Board members were 

able to engage with the speakers deeply 

and in detail on the substance of both 

their 2011 and 2014 comments, while 

giving time for speakers who wished to 

supplement or clarify their remarks after 

the hearing the ability to do so with 

additional written comments to the 

record. 

In sum, the Board believes that the 

four days of public hearings, attended 

by all Board members, was highly 

valuable, was of an appropriate length, 

and was held at appropriate times and 

in appropriate locations. 

4. The Length and Timing of the 

Comment Periods 

The Board provided an initial 

comment period of 60 days beginning 

June 22, 2011, followed by a reply 

comment period of 14 days that ended 

on September 6, 2011. The Board then 

provided an additional comment period 

of 60 days beginning February 6, 2014, 

followed by a reply comment period of 

7 days that ended on April 14, 2014. 

The APA provides no minimum 

comment period, and many agencies, 

including the Board in some recent 

rulemaking proceedings, have afforded 

comment periods of only 30 days. The 

agency has discretion to provide still 

shorter periods, and is simply 

‘‘encouraged to provide an appropriate 

explanation for doing so.’’ 

Administrative Conference of the 

United States (ACUS), Recommendation 

2011–2 at 3 (June 16, 2011). 

Yet, in 2011, many commenters 

criticized the length of the comment 

period. The Council on Labor Law 

Equality (COLLE) described the NLRB’s 

comment period as ‘‘the bare-minimum 

60-day[s],’’ and SHRM characterized the 

comment period as ‘‘hurried, abridged 

and clandestine.’’ 

It would be reasonable to expect that 

these arguments would not be repeated 

in 2014, considering that the public had 

a cumulative total of 141 days in which 

to submit comments. Yet they were from 

time to time, most notably by the 

Chamber II, AHA II, and NAM II.18

Although the desire for additional 

time to gather support and develop 

arguments is understandable, agencies 

must set some end to the comment 


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19See, e.g., Testimony of Harold Weinrich on 

behalf of Jackson Lewis LLP; ACC; American 

Trucking Associations II. 

period: ‘‘Agencies should set comment 

periods that consider the competing 

interests of promoting optimal public 

participation while ensuring that the 

rulemaking is conducted efficiently.’’ 

ACUS 2011–2 at 3. 

The Montana Chamber of 

Commerce—though opposing the rule— 

stated that the NPRM provided ‘‘a very 

reasonable time frame to allow ample 

comments and statements from all 

interested parties, whether they are 

supportive of these sweeping changes or 

not.’’ And a supportive comment noted 

that the Board was providing far more 

time for comments than required by 

law. Chairman Tom Harkin of the 

Senate Committee on Health, Education, 

Labor and Pensions, Senior Democratic 

Member George Miller of the House 

Committee on Education and the 

Workforce, and Democratic Senators 

and Members of the House of 

Representatives (Chairman Harkin, 

Senior Member Miller and 

Congressional Democrats) at 5. 

The tens of thousands of comments 

submitted and the depth of analysis 

they provided are ample testament to 

the adequacy of the opportunities for 

public participation in the rulemaking 

process. 

5. Post-Rulemaking Procedures and 

Review 

One comment urges the Board to 

‘‘incorporate[] plans for retrospective 

review’’ into the rule pursuant to 

Executive Orders 13,563 and 13,579. 

Sofie E. Miller. Executive Order 13,563, 

however, is directed to executive branch 

agencies, not independent agencies, 

which are only encouraged, by 

Executive Order 13,579, to comply with 

Executive Order 13,563. Moreover, both 

of the aforementioned Executive Orders 

apply only to ‘‘significant’’ regulatory 

actions, as defined by Section 3(f) of 

E.O. 12,866. This rulemaking does not 

fall into any of the definitions of a 

‘‘significant regulatory action’’ set forth 

in Section 3(f). Nevertheless, the Board 

developed and disseminated a 

preliminary plan for retrospective 

review of significant regulations in May 

2011 (http://www.whitehouse.gov/files/

documents/2011-regulatory-actionplans/NationalLaborRelationsBoard

PreliminaryRegulatoryReformPlan.pdf). 

In addition, the Board will continue its 

longstanding practice of incrementally 

evaluating and improving its processes 

going forward. 

IV. Comments on General Issues 

Before turning to comments on 

specific provisions of the final rule, the 

Board addresses a number of general 

issues: (a) the Board’s rulemaking 

authority; (b) the need to amend the 

regulations generally; (c) the 

opportunity for free debate under the 

regulations; and (d) the effects on 

employee representation and the 

economy. 

A. Board Authority To Promulgate 

Representation-Case Procedure Rules 

Congress delegated both general and 

specific rulemaking authority to the 

Board. Generally, Section 6 of the 

National Labor Relations Act, 29 U.S.C. 

156, provides that the Board ‘‘shall have 

authority from time to time to make, 

amend, and rescind, in the manner 

prescribed by the Administrative 

Procedure Act * * * such rules and 

regulations as may be necessary to carry 

out the provisions of this Act.’’ In 

addition, Section 9(c), 29 U.S.C. 

159(c)(1), specifically contemplates 

rules concerning representation case 

procedures, stating that elections will be 

held ‘‘in accordance with such 

regulations as may be prescribed by the 

Board.’’ 

The Board’s well-established 

rulemaking authority is recognized by 

comments both opposing and 

supporting the proposed rule. For 

example, NAM states that ‘‘it is 

undisputed that the Board has the 

authority to promulgate rules and 

regulations,’’ and the American 

Federation of Labor and Congress of 

Industrial Organizations (AFL–CIO) 

states that ‘‘[t]he NLRB has specific and 

express statutory authority to engage in 

rule-making to regulate its election 

process.’’ 

The Supreme Court unanimously held 

in American Hospital Association v. 

NLRB, 499 U.S. 606, 609–10 (1991), that 

the Act authorizes the Board to adopt 

both substantive and procedural rules 

governing representation case 

proceedings. The Board’s rules are 

entitled to deference. See Chevron 

U.S.A. Inc. v. Natural Res. Def. Council, 

Inc., 467 U.S. 837, 843–44 (1984); NLRB 

v. A.J. Tower Co., 329 U.S. 324, 330 

(1946). Representation case procedures 

are uniquely within the Board’s 

expertise and discretion, and Congress 

has made clear that the Board’s control 

of those procedures is exclusive and 

complete. See NLRB v. Bell Aerospace 

Co., 416 U.S. 267, 290 n.21 (1974); AFL 

v. NLRB, 308 U.S. 401, 409 (1940). ‘‘The 

control of the election proceeding, and 

the determination of the steps necessary 

to conduct that election fairly were 

matters which Congress entrusted to the 

Board alone.’’ NLRB v. Waterman S.S. 

Corp., 309 U.S. 206, 226 (1940); see also 

Magnesium Casting Co. v. NLRB, 401 

U.S. 137, 142 (1971). 

In A.J. Tower, 329 U.S. at 330, the 

Supreme Court noted that ‘‘Congress has 

entrusted the Board with a wide degree 

of discretion in establishing the 

procedure and safeguards necessary to 

insure the fair and free choice of 

bargaining representative by 

employees.’’ The Act enshrines a 

democratic framework for employee 

choice and, within that framework, 

charges the Board to ‘‘promulgate rules 

and regulations in order that employees’ 

votes may be recorded accurately, 

efficiently and speedily.’’ Id. at 331 

(emphasis added). ‘‘[T]he determination 

of whether a majority in fact voted for 

the union must be made in accordance 

with such formal rules of procedure as 

the Board may find necessary to adopt 

in the sound exercise of its discretion.’’ 

Id. at 333. As the Eleventh Circuit 

stated: 

We draw two lessons from A.J. Tower: (1) 

The Board, as an administrative agency, has 

general administrative concerns that 

transcend those of the litigants in a specific 

proceeding; and, (2) the Board can, indeed 

must, weigh these other interests in 

formulating its election standards designed to 

effectuate majority rule. In A.J. Tower, the 

Court recognized ballot secrecy, certainty and 

finality of election results, and minimizing 

dilatory claims as three such competing 

interests. 

Certainteed Corp. v. NLRB, 714 F.2d 

1042, 1053 (11th Cir. 1983). As 

explained above, the final rule is based 

upon just such concerns. Some 

comments allege that the Board lacks 

authority to issue these rules.19 As 

discussed, the Supreme Court’s 

interpretation of Section 6 clearly 

forecloses this argument. 

The Board also received dueling 

comments from two different groups of 

members of Congress on this topic: One 

group claimed that the changes would 

‘‘fundamentally alter the balance of 

employee, employer and union rights 

that Congress so carefully crafted and 

that only Congress can change;’’ the 

other group claimed that the changes are 

‘‘commonsense and balanced’’ and ‘‘a 

positive step toward fixing a broken 

system’’ and are consistent with ‘‘the 

NLRB[’s] broad authority under the 

NLRA to promulgate election 

regulations.’’ Compare Senator 

Alexander and Republican Senators; 

with Chairman Harkin, Senior Member 

Miller and Congressional Democrats. 

The Act delegated to the Board the 

authority to craft its procedures in a 

manner that, in the Board’s expert 

judgment, will best serve the purposes 

of the Act. Various members of Congress 


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20See also SHRM; Klein, Dub & Holleb (Klein) II. 

21This point was also advanced by the AHA; 

American Council on Education (ACE); COLLE; 

CDW; Associated Oregon Industries; National 

Marine Manufacturers Association (NMMA); The 

Bluegrass Institute; and the Chamber. 

may have divergent views, but Article I 

of the Constitution prescribes the 

method that Congress must use to enact 

its policies, and the Act as written gives 

the Board broad authority in this area. 

Here the Board is acting pursuant to its 

clear regulatory authority to change its 

own representation case procedures in a 

manner that will better serve the 

purposes and text of the Act—a question 

about which the Board remains the 

congressionally delegated expert 

authority. 

In sum, the Board clearly has 

authority to amend its election rules. 

B. The Need for the Final Rule 

The Board’s experience demonstrates 

that although the fundamentals are 

sound, many of the technical details of 

representation case procedures suffer 

from a variety of deficiencies. Especially 

as to contested cases, current 

procedures result in duplicative, 

unnecessary and costly litigation. 

Simplifying, streamlining and, in some 

cases, bolstering these procedures will 

reduce unnecessary barriers to the fair 

and expeditious resolution of 

representation disputes and result in 

more fair and accurate elections. The 

rule also codifies best practices to 

ensure that our procedures are more 

transparent and uniform across regions. 

Changes to the representation case 

procedures are also necessary to update 

and modernize the Board’s processes in 

order to gain the advantages of and 

make effective use of new technology, 

especially affecting communications 

and document retrieval and 

transmission. These changes will 

enhance the ability of the Board to 

fulfill its statutory mission. 

Some comments received in response 

to the Board’s NPRM argue that the 

Board failed to present sufficient 

justification for the proposed 

amendments. For example, SHRM 

asserts that the Board ‘‘failed to 

articulate a legitimate justification for 

the significant changes set forth in the 

NPRM’’ and that the proposed 

amendments are therefore arbitrary and 

capricious.20 Numerous comments 

contend generally that there is no need 

for revision of the Board’s 

representation procedures because, as 

argued by NAM, there is no evidence 

contradicting the Board’s own data 

showing that the present time frames for 

processing representation cases are 

among the most expeditious in the 

Board’s history, and further that the 

Board currently meets its own internal 

time targets for processing 

representation cases.21 As one speaker 

stated ‘‘the Board is just looking to solve 

a problem that doesn’t exist’’ and ‘‘the 

NPRM has failed to identify a single 

problem to which the proposed solution 

is responsive.’’ Testimony of Kara 

Maciel on behalf of National Grocers 

Association (NGA) II. See also 

Testimony of Ross Freidman on behalf 

of CDW II (‘‘the proposed rules are in 

large part a solution in search of a 

problem’’). 

These arguments appear to rest on a 

number of mistaken assumptions. (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 changes do not identify or address 

the true sources of delay. We will 

address each of these assumptions in 

turn. 

1. The Amendments Address Efficiency, 

Fair and Accurate Voting, Transparency, 

Uniformity, and Adapting to New 

Technology; Speed Is Not the Sole or 

Principal Purpose 

First, the focus on speed fails to 

consider all the reasons for which the 

various amendments are being made. 

Many of the changes have little to do 

with the timing of procedures. Indeed, 

there is no single problem that this rule 

addresses: Rather, as summarized in the 

list of changes above, there are a host of 

discrete problems addressed by a host of 

discrete amendments. We will amplify 

the particular rationale for each change 

in the discussion of specific sections 

below. However, in light of the common 

misconception that the rule is focused 

on speed, we will briefly describe other 

important principles of sound 

administration at issue. 

Efficiency: The importance of 

efficiency should be self-evident. If a 

particular procedure serves no purpose, 

or is unduly complex or wasteful, that 

is reason enough to change it, regardless 

of whether it also causes delay. Thus, 

for example, rules that permit 

unnecessary litigation, circuitous 

service of documents and mandatory 

interlocutory appeals are plainly 

inefficient and should be changed. 

Fair and Accurate Voting: This 

rationale gets to the heart of Section 9, 

and is always under consideration in 

any revision of representation case 

procedures. Here, for example, the 

Board provides employees with notice 

of the petition for election sooner in the 

process, and provides more detailed, 

meaningful notices about the unit at 

issue, and the voting itself, throughout 

the process. The notices are also 

transmitted more effectively. As 

explained further below, the 

amendments provide a better process for 

identifying voters properly subject to 

challenge, which should reduce the 

number of ballots improperly 

commingled with unit ballots by 

oversight, or improperly challenged out 

of ignorance. These changes will all 

provide better guarantees of a fair voting 

process. 

Transparency and Uniformity: 

Transparency allows the public to 

understand the process and uniformity 

allows the parties to form reasonable 

expectations. These two related 

principles also ensure that the 

protection of statutory rights does not 

vary arbitrarily from case to case or 

region to region. Again, these basic 

procedural principles should be beyond 

cavil. Cf. Dorsey v. United States, 132 S. 

Ct. 2321, 2326 (2012) (written 

sentencing guidelines ‘‘increase 

transparency [and] uniformity’’). These 

are adequate reasons to ensure that 

Board best practices are written into the 

regulations where appropriate, even if 

they do not address delay. Thus, for 

example, describing the best-practices 

hearing date in the rules will promote 

uniformity and transparency. 

Changed Technology: Society changes 

rapidly, and new technology can 

quickly make old rules obsolete. Of 

particular relevance here, 

communications technologies 

developed in the last half-century have 

changed the way litigation, workplace 

relationships, and representation 

campaigns function. As the Supreme 

Court has stated in another context, ‘‘the 

responsibility to adapt the Act to 

changing patterns of industrial life is 

entrusted to the Board,’’ and we would 

be remiss in leaving unchanged 

procedures which are predicated on outof-date facts or assumptions, even where 

there is no consequent delay. NLRB v. 

J. Weingarten, Inc., 420 U.S. 251, 266 

(1975). Thus, for example, providing for 

electronic documents, filing, and 

transmission as well as updating the 

forms of employee contact information 

are important adaptations to changed 

technological circumstances. In 

addition, the Board is mindful that 

changes in technology have also raised 

concerns about privacy, and the final 

rule addresses those concerns. 

In sum, timeliness is one of many 

reasons proffered for the amendments; 

some changes clearly reduce 

unnecessary delays; for other changes, 

timeliness is only a collateral benefit 

and by no means a primary purpose; 


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22Senate Committee on the Judiciary, 

comparative print on revision of S. 7, 79th Cong., 

1st Sess. 7 (1945). It is for this reason that 5 U.S.C. 

554(a)(6) specifically exempts representation cases 

from even the minimal requirements of the APA. 

23 Various legislative efforts to impose particular 

timelines on Board elections have failed repeatedly 

over the decades. See, e.g., 124 Cong. Rec. 7652– 

54 (1978) (side-by-side comparison of House and 

Senate versions of one proposal, accompanied by 

analysis and criticism by Senator Jesse Helms); 

‘‘National Labor Relations Fair Elections Act’’ H.R. 

4800 (1990), 101st Cong, 2d Session; H.R. 503, 

102nd Cong., 1st Session (1991); H.R. 689, 103rd 

Cong., 1st Session (1993); ‘‘Labor Relations 

Representative Amendment Act’’ S. 1529, 103rd 

Cong., 1st Session (1993); S. 778, 104th Cong., 1st 

Session (1995). 

24The importance of prompt resolutions of 

questions of representation is heightened by their 

perishable nature. ‘‘[U]nlike court judgments, [they] 

do not bind the parties for all time.’’ Manhattan 

Center Studios, Inc., 357 NLRB No. 139, slip op. at 

5 (2011). ‘‘In the absence of employer unfair labor 

practices, a Board certification of a representative 

will bar a new election for only 1 year if no contract 

is agreed to, and for no more than an additional 3 

years if an agreement is reached.’’ Id. 

25Some have claimed that the Board has a secret 

mission ‘‘to restrict, as far as possible, the 

participation of employers in the union organizing 

campaign and representation election process.’’ 

E.g., COLLE II at 4–5. No credible evidence has ever 

been mustered in support of this claim by any of 

its proponents, and the Board expressly affirms that 

limiting debate is not a reason for any of the 

amendments. 

26See John Logan, Ph.D., Erin Johansson, M.P.P., 

and Ryan Lamare, Ph.D. (summarizing their study, 

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

Vote,’’). See also SEIU; National Employment Law 

Project (NELP); and Senior Member George Miller 

and Democratic Members of the U.S. House of 

Representatives Committee on Education and the 

Workforce (Senior Member Miller and Democratic 

House Members) (citing Logan, Johanson, and 

Lamare study). 

27See, e.g., Northeastern University, 261 NLRB 

1001, 1002 (1982), enforced, 707 F.2d 15 (1st Cir. 

1983). 

28Tropicana Products, Inc., 122 NLRB 121, 123 

(1958). 

29Pt. 2, Representation Proceedings, Section 

11000. 

30The amendments the Board has chosen to 

adopt represent a continuation of this incremental 

process, rather than a radical departure from Board 

practice as asserted by, for example, the Coalition 

for a Democratic Workplace (CDW) and Associated 

Builders and Contractors (ABC). ABC II asserts that 

the proposals are far more radical than the Board 

admits, but their contention is stated as ipse dixit 

and remains unsupported. See also AHA II 

(proposed rules are a ‘‘very radical departure’’ from 

December 2011 final rule). 

and sometimes it plays no role 

whatsoever. The need for the rule 

cannot be assessed without grappling 

with these specific, articulated reasons 

underlying each of the amendments. 

2. The Board Can and Should Address 

Delays in the Current Rules 

The second premise is also flawed: 

Nothing in the statute, the General 

Counsel’s current time targets, or any 

other source establishes that current 

procedures are ‘‘fast enough.’’ 

Section 9 is animated by the essential 

principle that representation cases 

should be resolved quickly and fairly. 

‘‘[T]he Board must adopt policies and 

promulgate rules and regulations in 

order that employees’ votes may be 

recorded accurately, efficiently and 

speedily.’’ NLRB v. A.J. Tower Co., 329 

U.S. 324, 331 (1946). As the Supreme 

Court noted, discussing Section 9(d), the 

policy in favor of speedy representation 

procedures ‘‘was reaffirmed in 1947, at 

the time that the Taft-Hartley 

amendments were under 

consideration.’’ Boire v. Greyhound 

Corp., 376 U.S. 473, 479 (1964). Senator 

Taft stated that the Act should not 

‘‘permit dilatory tactics in 

representation proceedings.’’ Id. In 

discussing the APA, Congress again 

exempted representation cases because 

of the ‘‘exceptional need for 

expedition.’’ 22 Finally, the purpose of 

Congress in 1959 in permitting 

delegation of representation case 

proceedings to regional directors under 

Section 3(b) was to ‘‘ ‘speed the work of 

the Board.’ ’’ Magnesium Casting Co. v. 

NLRB, 401 U.S. 137, 141–142 (quoting 

legislative history). Congress did not 

define any ‘‘time targets’’ for elections; 

indeed, in fashioning the LMRDA, 

Congress considered and expressly 

rejected a proposed amendment to the 

statute which would have imposed a 30- 

day minimum speed limit on the time 

from petition to election.23

In short, every time Congress has 

amended laws governing representation 

cases, it has reaffirmed the importance 

of speed. This is essential both to the 

effectuation of Section 7 rights of 

employees, and to the preservation of 

labor peace.24

The timeliness concerns of Congress 

in 1935, 1947 and 1959 remain salient 

today, as the comments show. Unduly 

lengthy campaigns cause voter 

participation to drop. Testimony of 

Glenn Rothner II; Testimony of 

Gabrielle Semel on behalf of CWA II. 

‘‘[D]elay can create a sense of futility 

among workers.’’ Testimony of Brian 

Petruska on behalf of Laborer’s 

International Union of North America 

Mid-Atlantic Regional Organizing 

Coalition (LIUNA MAROC) II; see also 

Testimony of Jody Mauller on behalf of 

the International Brotherhood of 

Boilermakers (IBB) II. As one employee 

testified at the hearing, significant delay 

in the NLRB’s process causes employees 

to think that there is nothing the 

government can do to protect them. 

Testimony of Donna Miller II. This is 

precisely what Congress was worried 

about: that employees would think the 

NLRA’s procedures were ineffectual and 

be tempted to take disruptive action 

instead. Boire, supra. The purpose of the 

Act is to protect with Federal power the 

free exercise of Section 7 and Section 9 

rights. In one organizer’s experience, 

most workers want elections faster than 

current procedures permit regardless of 

where the workers stand on the union. 

Testimony of Martin Hernandez on 

behalf of UFCW II. 

To be clear, the problems caused by 

delay have nothing to do with employer 

speech.25 As discussed infra, the statute 

encourages free debate, and neither 

Congress nor the Board in this 

rulemaking has cited limiting debate as 

a reason for speed. It is not the speech, 

but the delay itself which causes the ills 

identified by Congress and the Board. 

Nor is the problem with delay related to 

unfair labor practices. Though many 

commenters and academics have argued 

that lengthy campaigns encourage unfair 

labor practices,26 this is not a reason 

that either Congress or the Board have 

cited in amending representation 

procedures in pursuit of timely 

elections and it does not underlie the 

final rule. 

As shown, delay itself is the problem 

this rule addresses—not employer 

speech or unfair labor practices—and 

eliminating unnecessary delay is 

therefore unquestionably a valid reason 

to amend these regulations. In 

recognition of this fundamental 

principle, the Board has noted ‘‘the 

Act’s policy of expeditiously resolving 

questions concerning representation.’’ 27

‘‘In . . . representation proceedings 

under Section 9,’’ the Board has 

observed, ‘‘time is of the essence if 

Board processes are to be effective.’’ 28

Indeed, the Board’s Casehandling 

Manual stresses that ‘‘[t]he expeditious 

processing of petitions filed pursuant to 

the Act represents one of the most 

significant aspects of the Agency’s 

operations.’’ 29

Many comments argue that current 

procedures are fast enough because they 

meet the Board’s time targets. The 

reliance on current time targets is 

mistaken. For decades the Board has 

continually strived to process 

representation cases more 

expeditiously, and the targets have 

accordingly been adjusted downward 

over time. 79 FR 7319–20.30 Under the 

commenters’ 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. This is clearly wrong. Past 

improvements do not and should not 


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31See, e.g., Assisted Living Foundation of 

America (ALFA); COLLE; SHRM; Seyfarth Shaw. 

preclude the Board’s consideration and 

adoption of further improvements. 

The Chamber responds by claiming 

‘‘[t]he Board cannot set goals regarding 

acceptable times for elections and then, 

without justification, disregard those 

benchmarks. Presumably some rational 

approach has been taken to develop the 

benchmarks over the years.’’ Chamber II. 

There is a rational approach: the 

General Counsel sets benchmarks by 

trying to figure out what would be 

possible—in spite of structural delays 

identified under the rules—if the 

regions did their very best work. Thus, 

meeting those benchmarks shows only 

that the regions are doing the best they 

can in spite of the rules, not that the 

rules are incapable of improvement. 

That the Board seeks to, and does, meet 

those targets in most instances is 

irrelevant to whether additional 

improvements should be made by 

amending the rules. 

In addition to the time targets, some 

commenters point to a number of other 

extrinsic facts which they claim are 

‘‘strong evidence that the present system 

works fairly for all parties.’’ Testimony 

of Arnold Perl on behalf of the 

Tennessee Chamber of Commerce (TN 

Chamber) II. For example, they cite the 

rate of union success in elections as 

evidence that the current procedures are 

fair and not in need of revision. 

Associated General Contractors of 

America (AGC); Skripko II. From the 

Board’s perspective, this argument is 

close to tautological. The purpose of the 

election is to find out what the 

employees want; if we knew this a 

priori, the election would be 

unnecessary. Whether the union win 

rate is 75% or 25% tells us nothing 

about whether the elections were fair. 

Either result might accurately reflect the 

employees’ free choice. The results are 

therefore unhelpful in determining 

whether representation case procedures 

are fulfilling their statutory purpose as 

fully and efficiently as possible. On that 

question, we must look to the 

procedures themselves, and to the 

policies and purposes of the statute. 

Many comments acknowledge that the 

expeditious resolution of questions of 

representation is a central purpose of 

the Act, but argue that the Board did not 

consider other statutory policies in 

proposing the amendments.31 In fact, 

the Board did do so, both in proposing 

amendments to its rules in the NPRM 

and in issuing this final rule. As 

discussed, the Board considered the 

statute as a whole, as well as the various 

policies underlying its enactment and 

amendment. Specifically, the Board 

considered the statutory requirement 

that the pre-election hearing be an 

‘‘appropriate hearing’’ and the parties’ 

constitutional, statutory, and regulatory 

rights in relation to the hearing. As 

explained in detail below, the final rule 

makes the hearing more, not less, 

‘‘appropriate’’ to its statutory purpose. 

The final rule also fully respects the 

procedural rights of the parties. In fact, 

it permits the parties to fully exercise 

their procedural rights more efficiently 

and with less burden and expense. The 

final rule promotes a more informed 

electorate by providing an improved 

process for informing the unit about 

election procedures, the appropriate 

unit for bargaining and the voting 

procedure for individuals who may 

properly vote subject to challenge. 

Similarly, the Board considered 

employees’ statutory right under Section 

7 to ‘‘bargain collectively through 

representatives of their own choosing’’ 

and ‘‘to refrain from any or all such 

activities.’’ 29 U.S.C. 157. As explained 

in detail below, the amendments 

adopted in the final rule do not 

establish inflexible time deadlines or 

mandate that elections be conducted in 

a set number of days after the filing of 

a petition. Further, the amendments 

honor free speech rights; they do not in 

any manner alter existing regulation of 

parties’ campaign conduct or restrict 

freedom of speech. In this connection, 

the Board has carefully considered the 

possibility that the amendments might 

reduce the time between the filing of the 

petition and the election so as to 

threaten the communication, 

association, and deliberation needed by 

employees in order to truly exercise 

freedom of choice. It has concluded the 

amendments pose no such risk, as more 

fully explained below. 

In sum, the Board is charged by 

Congress with eliminating unnecessary 

delays, and nothing about the current 

process suggests that it is ‘‘fast enough’’ 

such that no further improvements are 

justifiable. 

3. The Amendments Which Are 

Intended To Address Delay Will in Fact 

Do So 

Finally, the commenters are also 

mistaken in claiming that the Board has 

not identified the subset of cases where 

unnecessary delay is prevalent, and has 

not designed rules responsive to the 

particular delays identified. Again, 

many of the changes address other 

purposes, but where delay is at issue, 

the Board clearly identifies problems, 

and the amendments supply sensible 

and reasonable solutions. Most of the 

changes apply to only a very small 

subset of Board cases, and those cases 

are the very ones most likely to suffer 

inordinate delays. 

For example, it is quite clear from the 

Board’s statistics that fully litigated 

cases—that is, cases in which the parties 

are unable to stipulate about preelection issues—generally take almost 

twice as long to get to an election. The 

median for all cases is 38 days, whereas 

the median for this particular subset of 

cases is closer to 70 in most years. 

Clearly, these cases suffer a delay in the 

time it takes to hold elections. 

The Board has identified the primary 

sources of this delay, and the 

amendments address them. Under 

current rules a delay of 25 to 30 days is 

automatically imposed between the 

direction of election and the election. 

There can be absolutely no question that 

eliminating this waiting period 

addresses a very significant source of 

delay that is unique to this subset of 

demonstrably slower cases. 

Other changes to pre-election 

litigation—such as the 8 to 10 day 

hearing opening, the standard for 

continuance, the provision of oral 

argument rather than briefing, the date 

to provide voter lists, etc.—will also 

address less substantial sources of delay 

in this same small subset of cases. And 

it is important to bear in mind that 

many of these changes are aimed at 

other goals, such as efficiency, 

uniformity, and adapting to modern 

technology, and that timeliness is often 

only a collateral benefit. 

Other comments acknowledge that the 

Board’s procedures have been subject to 

misuse in some cases, but suggest that 

such cases were rare and do not form an 

adequate basis for the Board’s proposals. 

The National Retail Federation (NRF) 

and Printing Industries of America, Inc. 

(PIA), for example, suggest that the rules 

should be amended only to address the 

more egregious cases. Relatedly, many 

comments cite the high rate of voluntary 

election agreements (reached in over 90 

percent of cases), which obviate the 

need for pre-election hearings, as 

evidence that the representation case 

procedures are working well in the 

overwhelming majority of cases. 

In a way, this argument accords with 

the Board’s own sense of the final rule: 

many of the amendments are minor 

changes to the procedure used in the 

small subset of litigated cases where the 

problem of delay is demonstrably more 

severe. The lack of greater ambitions 

does not mean that the rule is 

unjustified; rather it means that the 

amendments provide targeted solutions 

to specifically identified problems. 

In addition, as discussed below, it 

must be noted that changes to litigation 


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32As another example, consider the new 

Statement of Position requirement, which assists 

both parties in making more informed decisions 

about stipulations. Knowing the issues in dispute 

will help the parties reach agreement. 33See American Federation of Teachers (AFT); 

International Brotherhood of Electrical Workers 

(IBEW); LIUNA. 

34Comments by the United Food and Commercial 

Workers International Union (UFCW), LIUNA, AFT, 

NELP, and Retired Field Examiner Michael D. 

Pearson all point to the impact of that specter of 

unnecessary litigation on negotiations of preelection agreements. 

35See, e.g., NAM; PIA. 

36See, e.g., AHA; PIA; SHRM; Chamber; CDW; 

Professor Samuel Estreicher. 

37These same principles have been applied to 

administrative action. See, e.g., United Hosp. v. 

Thompson, 383 F.3d 728, 733 (8th Cir. 2008) (the 

equal protection clause does not require the 

government to attack every aspect of the problem 

or refrain from regulating at all); Great American 

Houseboat Co. v. U.S., 780 F.2d 741, 749 (9th Cir. 

1986) (same). The AHA acknowledges this fact, but 

states that ‘‘[w]hile this is true, the fact that the 

Board is declining to revise one of the biggest 

hurdles to timely elections [blocking charge policy], 

and at the same time proposing extensive revisions 

to other aspects of the process that have not proven 

to hold up elections . . . leaves the Board open to 

questions about its motives in issuing the NPRM.’’ 

AHA II at 27. Of course, the Board is revising its 

blocking charge policy, and it is unclear why AHA 

was under the impression that this matter would 

not be addressed when the Board specifically 

proposed a number of potential options in the 

NPRM and invited comments. And the claim that 

the other changes do not address delay is equally 

faulty because, as previously stated, many of the 

changes have nothing to do with delay, while those 

that are intended to address delay are in fact related 

to proven sources of delay. 

38The Board declines to adopt a suggestion by 

one commenter, which urged that the election be 

held within 15 days of the final voter list. See 

Testimony of Hernandez on behalf of UFCW II. 

Likewise, the Board declines to set the election date 

to be the same day the petition is filed, as another 

commenter urged. See Testimony of Thomas 

Meiklejohn II. The Board also rejects a suggestion 

by the dissent to impose 60 days as a maximum 

period before holding the election. 

39See Casehandling Manual Section 11302.1. 

40See, e.g., SHRM; Sheppard, Mullin, Richter & 

Hampton LLP (Sheppard Mullin); and the National 

Retail Federation (NRF). 

41See, e.g., National Grocer’s Association (NGA); 

Waste Connections; ALFA. 

procedures can be significant in framing 

the circumstances for entering 

stipulations in all cases.32 Under the 

former rules, the regional director 

lacked discretion to limit the 

presentation of evidence to that relevant 

to the existence of a question of 

representation. Thus, the possibility of 

using unnecessary litigation to gain 

strategic advantage existed in every 

case. That specter, sometimes 

articulated as an express threat 

according to some comments,33 had the 

effect of detrimentally affecting 

negotiations of pre-election 

agreements.34

Finally, many comments argue that 

the proposed amendments did not 

address the most serious causes of delay 

in Board proceedings. Some comments 

point to delay in the Board’s own 

adjudication of cases.35 Other comments 

point to the Board’s blocking charge 

policy.36

The Board is aware that, in too many 

instances, it has taken too long to decide 

both representation and unfair labor 

practice cases. This was a problem in 

1959 when Section 3(b) was enacted, 

and, though the situation is much 

improved, it remains a problem today. 

Part of this problem is being addressed 

by the amendments—namely, by 

codifying the text of Section 3(b), and by 

the requirement that regional directors 

issue a final decision on the hearing 

officer’s post-election recommendations. 

Giving the Board an authoritative and 

well-reasoned regional director’s 

decision to consider whenever an 

appeal is taken will enhance the Board’s 

decision-making on appeals and permit 

it to deny them where appropriate. To 

the extent that purely internal Board 

inefficiencies create additional 

unnecessary delays, these are not 

enshrined in the current rules and 

therefore need not be addressed by 

rulemaking. 

As for the Board’s blocking charge 

policy, the NPRM specifically asked for 

comments on various proposed 

revisions. As discussed below, the 

Board received extensive commentary, 

particularly in 2014, regarding this 

matter, and has decided to make 

changes which will address delay by 

expediting decision-making on blocking 

charges. 

Of course, an administrative agency, 

like a legislative body, is not required to 

address all procedural or substantive 

problems at the same time. It need not 

‘‘choose between attacking every aspect 

of a problem or not attacking the 

problem at all.’’ Dandridge v. Williams, 

397 U.S. 471, 487 (1970). Rather, the 

Board ‘‘may select one phase of one 

field and apply a remedy there, 

neglecting the others.’’ FCC v. Beach 

Communications, 508 U.S. 307, 316 

(1993) (quoting Williamson v. Lee 

Optical of Okla., Inc., 348 U.S. 483, 489 

(1955)). ‘‘[T]he reform may take one step 

at a time.’’ Id.37

In short, as to those aspects of the 

final rule where the Board has based its 

amendments on limiting delays, it has 

in fact identified the delay at issue 

specifically, and has crafted 

amendments rationally designed to 

address the delay. 

C. The Opportunity for Free Speech and 

Debate 

Many comments filed by employers 

and employer organizations argue that 

the proposed rule changes in the NPRM 

would drastically shorten the time 

between the filing of petitions and 

elections and thereby effectively reduce 

employers’ opportunity to communicate 

with their employees concerning 

whether they should choose to be 

represented for purposes of collective 

bargaining. These comments make both 

legal and policy arguments based on 

that claim. The Board also considered 

the matter extensively at the public 

hearing in 2014, asking questions and 

taking approximately 175 transcript 

pages of testimony on this specific issue 

from a wide variety of speakers with 

different views. 

The Board has concluded that the 

final rule will facilitate employees’ free 

choice of representative while 

advancing the statutory objective of 

promptly resolving questions of 

representation, and will not impinge on 

anyone’s free speech rights or any 

statutory mandate or policy. The 

amendments do not establish any rigid 

timeline for the conduct of the election 

itself. Indeed, the Board rejects requests 

that we set minimum or maximum time 

limits in which all elections must 

occur.38 The election date will continue 

to vary from case to case. In selecting 

the election date under the rules, the 

regional director will continue to 

consider, among other factors,39 the 

desires of the parties, which may 

include their opportunity for 

meaningful speech about the election. 

1. NLRA Section 8(c) and the First 

Amendment 

Many employer comments contend 

that the rule changes reflected in the 

NPRM would be inconsistent with 

Section 8(c) of the Act 40 and the First 

Amendment.41 But neither the proposed 

rule nor the final rule imposes any 

restrictions on the speech of any party. 

Section 8(c) of the Act provides: 

The expressing of any views, argument, or 

opinion, or the dissemination thereof, 

whether in written, printed, graphic, or 

visual form, shall not constitute or be 

evidence of an unfair labor practice under 

any of the provisions of this Act, if such 

expression contains no threat of reprisal or 

force or promise of benefit. 

29 U.S.C. 158(c). On its face, Section 

8(c)’s stated purpose is to prevent 

speech from ‘‘constitut[ing] or be[ing] 

evidence of an unfair labor practice.’’ 

Accordingly, the Board has repeatedly 

held that Section 8(c) applies only in 

unfair labor practice and not in 

representation proceedings. See, e.g., 

Hahn Property Management Corp., 263 

NLRB 586, 586 (1982); Rosewood Mfg. 

Co., Inc., 263 NLRB 420, 420 (1982); 

Dal-Tex Optical Co., Inc., 137 NLRB 


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42Thomas v. Collins, 323 U.S. 516, 537–38 

(1945). 

43See, e.g., AEM II; INDA II; Knife River II. 

44 In this regard, the Board agrees with comments 

stating that the rule does not restrict, let alone 

prohibit, any form of expression or any particular 

message. See LIUNA MAROC II; AFL–CIO Reply II. 

45Some comments draw comparisons to political 

elections, which typically occur at regularly set 

intervals, but the Board does not find these 

comparisons to be apt. See Joseph P. Mastrosimone, 

Limiting Information in the Information Age: The 

NLRB’s Misguided Attempt to Squelch Employer 

Speech, 52 Washburn L. J. 473, 501–06 (2013); U.S. 

Poultry & Egg Association, the National Chicken 

Council, and the National Turkey Federation (U.S. 

Poultry) II. Although they share certain common 

features, such as the secret ballot, political elections 

and representation elections are still quite different. 

Most notably, as discussed above, Congress has 

consistently expressed a clear purpose of limiting 

obstructions to commerce by holding union 

organizing elections quickly, Boire v. Greyhound 

Corp., 376 U.S. 473, 478 (1964) (quoting legislative 

history)—a consideration which is unique to 

elections held in the labor relations context. 

Another significant difference is the existence of an 

employment relationship between the electorate 

and one of the parties to the representation case 

proceeding; this changes the election in countless 

ways, from the various parties’ relative ease of 

access to the electorate, to the reasonable 

implications which can be drawn from employerspecific conduct—none of which finds any parallel 

in modern political elections. The Board therefore 

declines to borrow campaign timing principles from 

the political election context wholesale. 

46See Chamber; COLLE; SHRM; Seyfarth Shaw; 

Sheppard Mullin; Baker & McKenzie; John Deere 

Water; PIA; Senator Alexander and Republican 

Senators II; Diamond Transportation; Testimony of 

Peter Kirsanow on behalf of NAM II. 

47See NGA; Retail Industry Leaders Association 

(RILA); Society of Independent Gasoline Marketers 

of America (SIGMA); Ranking Member Michael B. 

Enzi of the U.S. Senate Committee on Health, 

Education, Labor & Pensions, and Republican 

Senators (Ranking Member Enzi and Republican 

Senators); National Meat Association; NAM II. 

48This is not to suggest, of course, that employers 

are required to engage in any campaign speech at 

all, or to contest evidence of majority status; 

employers are free to decide whether to express 

their views on unionization—pro or con or 

neutral—if done without threat of reprisal or force 

of promise of benefit. See Linden Lumber Div., 

Summer & Co. v. NLRB, 419 U.S. 301, 310 (1974); 

cf. Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d at 956– 

59 (discussing the employer’s right to remain 

silent). See also NLRB v. Creative Food Design LTD., 

852 F.2d 1295, 1297, 1299 (D.C. Cir. 1988) (‘‘an 

employer’s voluntary recognition of a majority 

union also remains ‘a favored element of national 

labor policy.’ ’’) (citation omitted). 

1782, 1787 fn. 11 (1962). Because the 

final rule, which addresses 

representation case procedures, does not 

in any way permit the Board to use 

speech or its dissemination as evidence 

of an unfair labor practice, the literal 

language of Section 8(c) is not 

implicated. Compare Nat’l Ass’n of 

Mfrs. v. NLRB, 717 F.3d 947, 956 (D.C. 

Cir. 2013) (invalidating Board rule that 

required employers to permanently post 

a prescribed notice of employee rights 

‘‘upon pain of being held to have 

committed an unfair labor practice’’), 

with id. at 959 n.19 (concluding that a 

Board rule requiring employers to post 

an election notice immediately before a 

representation election ‘‘does not 

implicate § 8(c)’’ because violation of 

that rule does not carry the prospect of 

unfair labor practice liability). 

Nor does the final rule run afoul of 

the First Amendment. Aside from the 

accurate statement that speech about 

unions is protected by the First 

Amendment,42 the comments do not 

appear to argue (except in the most 

abbreviated fashion) 43 that the 

proposed amendments would violate 

the First Amendment. In any event, 

neither the proposed nor the final rule 

restricts speech. The rule does not 

eliminate the opportunity for the parties 

to campaign before an election, nor does 

it impose any restrictions on campaign 

speech. As under the current rules, 

employers remain free to express their 

views on unionization, both before and 

after the petition is filed, so long as they 

refrain from threats, coercion, or 

objectionable interference.44 As the 

Supreme Court stated in 1941, ‘‘The 

employer . . . is as free now as ever to 

take any side it may choose on this 

controversial issue.’’ NLRB v. Virginia 

Electric & Power Co., 314 U.S. 469, 477 

(1941). Likewise, the rule does not 

impose any new limitations on union 

speech. Accordingly, the Board’s effort 

to simplify and streamline the 

representation case process does not 

infringe the speech rights of any party. 

The comments do not contend that 

employers will be prevented from 

expressing their opinions on 

unionization, but only that, because 

there may be less time between petition 

and election in some cases, employers 

will have fewer opportunities to express 

their opinions before the Board 

concludes its investigation under 

Section 9. 29 U.S.C. 159. The Board 

recognizes that ‘‘[t]he First Amendment 

protects the right of every citizen to 

‘reach the minds of willing listeners and 

to do so there must be opportunity to 

win their attention.’ ’’ Heffron v. Int’l 

Soc. for Krishna Consciousness, Inc., 

452 U.S. 640, 655 (1981) (quoting 

Kovacs v. Cooper, 336 U.S. 77, 87 (1949) 

(plurality opinion)). But the rule does 

not violate this constitutional principle 

because employers will continue to 

have ample meaningful opportunities to 

express their views both before and after 

a petition is filed, as discussed below.45

2. The Final Rule Accords With the 

Statutory Policy in Favor of Free Debate 

Although it is clear that the proposed 

amendments implicate neither the First 

Amendment nor the literal language of 

Section 8(c) of the Act, many comments 

nevertheless suggest that the 

amendments would leave employers 

with too little time to effectively inform 

their employees about the choice 

whether to be represented by a union.46

They contend that the consequences of 

a union vote are long-lasting and could 

significantly affect employees’ 

livelihoods and careers, and therefore 

ensuring that employees have sufficient 

time to hear from all sides is critical to 

the statutory objective of ensuring 

employee free choice.47 Comments in 

favor of the amendments contend, on 

the other hand, that employers can and 

do communicate their views on unions 

to employees even before a petition has 

been filed and will continue to have 

sufficient time to do so after filing under 

the proposed amendment. 

There is a clear statutory policy in 

favor of free debate and these 

amendments recognize, and are fully 

consistent with that policy. 

a. Chamber of Commerce v. Brown 

The Supreme Court recognized in 

Chamber of Commerce v. Brown, 554 

U.S. 60 (2008), that the enactment of 

Section 8(c) embodies a general 

‘‘congressional intent to encourage free 

debate on issues dividing labor and 

management.’’ Id. at 67 (quoting Linn v. 

Plant Guard Workers, 383 U.S. 53, 62 

(1966) (a defamation case)). The Court 

further recognized that such debate 

contemplates advocacy by both labor 

and management, noting that the 

inclusion in Section 7 of the right to 

refrain from joining a union ‘‘implies an 

underlying right to receive information 

opposing unionization.’’ Id. at 68.48 The 

Court relied on these features of the Act 

to invalidate, on preemption grounds, a 

California law that prohibited the use of 

state funds to encourage or discourage 

employees from seeking union 

representation. As the Court found, 

‘‘California’s policy judgment that 

partisan employer speech necessarily 

‘interfere[s] with an employee’s choice 

about whether to join or to be 

represented by a labor union’ ’’ was in 

direct conflict with national labor policy 

as reflected by the foregoing provisions 

of the Act. Id. at 69. 

As recognized by the Court in Brown 

the Act encourages free debate by 

employers, labor organizations and 

employees during representation 

proceedings. But ultimately, it is up to 

employees to evaluate the campaign 

information with which they are 

presented, as Board precedent 

recognizes. See Alto Plastics Mfg. Corp., 

136 NLRB 850, 851 (1962) (‘‘[T]he 

employees may select a ‘good’ labor 

organization, a ‘bad’ labor organization, 

or no labor organization, it being 


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49 In this way time is fundamentally different 

from other speech resources; by necessity, the 

government must impose some kind of cap on time. 

Money, by contrast, is a speech resource with no 

such inherent cap. This distinction must be taken 

into account in reading cases such as McCutcheon 

v. FEC, 134 S.Ct. 1434, 1441 (2014); Citizens United 

v. Federal Election Commission, 130 S.Ct. 876, 898 

(2010); Chamber of Commerce v. Brown, 554 U.S. 

60 (2008), which involve regulation of campaign 

spending. Compare NGA II (eliding this distinction 

in relying on McCutcheon) with Testimony of 

Thomas Meiklejohn on behalf of Livingston, Adler, 

Pulda, Meiklejohn & Kelly II (discussing this 

distinction). 

50NLRB v. A.J. Tower Co., 329 U.S. 324, 331 

(1946). 

51See, e.g., Chamber; CDW; National ReadyMixed Concrete Association (NRMCA); Greater 

Raleigh Chamber of Commerce; Landmark Legal 

Foundation; Vigilant; Food Marketing Institute 

(FMI) II; Klein II. 

52NGA; National Meat Association. See also 

Spartan Motors, Inc.; Cook Illinois Corporation; 

Arizona Hospital and Healthcare Association; 

Constangy, Brooks & Smith, LLP (Constangy); 

Sheppard Mullin; Ranking Member Enzi and 

Republican Senators; Specialty Steel Industry of 

North America; International Foodservice 

Distributors Association; NAM; Chamber; 

NRTWLDF; Chairman John Kline of the House 

Committee on Education and the Workforce, and 

Chairman Phil Roe of the House Subcommittee on 

Health, Education, Labor and Pensions (Chairmen 

Kline and Roe) II. 

53COLLE acknowledges this in its comment. 

54See, e.g., Ryder Truck Rental, 341 NLRB 761, 

765 n.9, 767 (2004) (petition filed in December; in 

November, employer invited employees to report 

any harassment by union), enforced, 401 F.3d 815 

(7th Cir. 2005); Dlubak Corp., 307 NLRB 1138, 

1141, 1147 (1992) (threats and discriminatory 

discharges occurred October 5–13; petition filed 

October 24), enforced mem., 5 F.3d 1488 (3d Cir. 

1993); Spring City Knitting Co., 285 NLRB 426, 431, 

444, 448–49, 450 (1987) (unfair labor practices 

occurred March 1, 14, and 29; petition filed May 3); 

Well-Bred Loaf, Inc., 280 NLRB 306, 311–16 (1986) 

(threats, interrogation, and unlawful discharges 

occurred August 22 and 23, at a time when union 

activity was already common knowledge; petition 

filed October 6); Dilling Mechanical Contractors, 

318 NLRB 1140, 1141, 1144, 1155 (1995) (union 

informed employer of campaign on January 4, but 

employer had threatened employees with discharge 

in December if they engaged in union activity), 

enforced, 107 F.3d 521 (7th Cir. 1997), cert. denied 

522 U.S. 862 (1997). 

55The study was based on a random sample of 

1000 elections during the period 1999 through 2003 

presupposed that employees will 

intelligently exercise their right to select 

their bargaining representative’’); Handy 

Andy, Inc., 228 NLRB 447, 456 (1977) 

(declining to withhold certification from 

unions with records of discriminatory 

practices); Midland Nat’l Life Ins. Co., 

263 NLRB 127, 131–32 (1982) (relaxing 

the Board’s misrepresentation standard 

on the ground that more reliance on the 

vigorous campaigning by the parties 

would reduce dilatory post-election 

litigation). These decisions confirm that 

the Act presupposes that all parties to 

a representation proceeding will have a 

meaningful opportunity to speak. 

But a meaningful opportunity to 

speak does not mean an unlimited 

opportunity to speak. As in the First 

Amendment context, there is no 

fundamental right for parties to 

‘‘publicize their views ‘whenever and 

however and wherever they please.’ ’’ 

Wood v. Moss, 134 S. Ct. 2056, 2066 

(2014). 

The election must be held sometime; 

therefore, the resource of time to 

campaign is an inherently limited one.49

This is particularly significant where, as 

discussed above, the Act also embodies 

a very strong countervailing policy in 

favor of holding elections ‘‘efficiently 

and speedily.’’ 50 In short, the Board is 

not required to wait for the parties to 

exhaust all opportunities for speech 

before holding an election, so long as 

the opportunity they have is a 

meaningful one. 

As discussed below, the Board 

concludes that these amendments will 

not deprive employers of a meaningful 

opportunity to participate in election 

campaigns. Many employers are aware 

of the campaign before the petition is 

filed, and begin communicating at that 

time. Indeed, many employers speak to 

employees about unions in the absence 

of any particular campaign, and will 

have laid the foundation for effective 

campaign speech well in advance. 

Finally, and most significantly, even 

where no pre-petition speech 

whatsoever takes place, these 

amendments will not eliminate the 

opportunity for meaningful speech, 

which will continue to be ample even 

after the petition is filed. 

b. Employer Pre-Petition Knowledge 

Numerous comments contend that 

any shortening of the time period 

between the petition and election will 

be detrimental to employers because 

employers are often unaware that an 

organizing campaign is underway until 

the petition is filed.51 These comments 

contend that the union will have had a 

head start in the campaign because it 

will, necessarily, have already obtained 

authorization cards from at least 30 

percent of employees in the petitionedfor unit, and will have been able to 

delay filing the petition for whatever 

amount of time it believed was 

advantageous in order to communicate 

with employees.52 For example, the 

Chamber comments that union petitions 

‘‘catch[] many if not most employers off 

guard and ill-prepared to immediately 

respond * * *.’’ The Board was 

presented with no reliable empirical 

evidence, however, suggesting that 

employers are frequently unaware of an 

organizing drive before the filing of a 

petition.53 Indeed, the available 

evidence suggests the contrary. 

The Supreme Court’s decision in 

NLRB v. Gissel Packing Co., 395 U.S. 

575, 620 (1969), which upheld the 

Board’s authority to order an employer 

to bargain with a union that had not 

been certified as the result of an 

election, is relevant to this issue. In 

Gissel, the employers argued that the 

Board could not order an employer to 

bargain with the union, even when the 

union’s majority support was 

demonstrated through employees’ 

authorization cards and the employer’s 

unfair labor practices had made a free 

and fair election impossible, because a 

union could solicit such cards before 

the employer had an adequate 

opportunity to communicate with 

employees. The Court rejected this 

argument: 

The employers argue that their employees 

cannot make an informed choice because the 

card drive will be over before the employer 

has had a chance to present his side of the 

unionization issues. Normally, however, the 

union will inform the employer of its 

organization drive early in order to subject 

the employer to the unfair labor practice 

provisions of the Act; the union must be able 

to show the employer’s awareness of the 

drive in order to prove that his 

contemporaneous conduct constituted unfair 

labor practices on which a bargaining order 

can be based if the drive is ultimately 

successful. See, e.g., Hunt Oil Co., 157 NLRB 

282 (1966); Don Swart Trucking Co., 154 

NLRB 1345 (1965). Thus, in all of the cases 

here but [one,] the employer, whether 

informed by the union or not, was aware of 

the union’s organizing drive almost at the 

outset and began its antiunion campaign at 

that time; and even in the [one] case, where 

the recognition demand came about a week 

after the solicitation began, the employer was 

able to deliver a speech before the union 

obtained a majority. 

Id. at 603. The Supreme Court has thus 

recognized that the concern expressed 

in the comments ‘‘normally’’ does not 

arise even when there is no election and 

the organizing effort does not proceed 

beyond the signing of authorization 

cards. What was true at the time of 

Gissel is still true today. 

There is substantial evidence on this 

point in the rulemaking record. See 

Testimony, Ole Hermanson on behalf of 

AFT II, Gabrielle Semel on behalf of 

CWA II, Thomas Meiklejohn on behalf 

of Livingston, Adler, Pulda, Meiklejohn 

& Kelly II, Maneesh Sharma on behalf of 

AFL–CIO II. In some cases, the 

employer’s knowledge of the campaign 

is apparent from the fact that the 

employer committed unfair labor 

practices targeting employees’ 

organizing activity before the filing of 

the petition.54 This is the basis for an 

empirical study conducted by Professors 

Kate Bronfenbrenner and Dorian Warren 

(and submitted with their comment).55


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in units with 50 or more eligible voters and a survey 

of 562 campaigns from that sample. See 

Bronfenbrenner & Warren, supra at 2. An updated 

version of the study was discussed by Professor 

Bronfenbrenner in her 2014 hearing testimony. 

56The Chamber in particular makes this point, 

and complains that the 2011 final rule did not 

respond to the Chamber’s criticism. Chamber II. 

However, again, the Board is not relying on any 

evidence of increased ULPs during a lengthy 

campaign, or in any way suggesting that settled 

charges are meritorious. The essential point is that 

the case files themselves show that there was 

evidence that the employer knew about the 

campaign before the petition was filed. 

Other comments argue that the study shows that 

only about 50–60% of employers have prepetition 

knowledge. This is a misunderstanding of the 

study. The study does not survey a statistical 

sample of campaigns generally, and ask whether the 

employer had prepetition knowledge; the study 

surveys campaigns which resulted in ULP charges, 

and asks whether the ULP occurred before a 

petition had been filed. Assuming that employers 

do not commit ULPs at the earliest possible 

moment, the fact that about half of ULPs surveyed 

occurred after petition filing does not prove the 

negative, i.e., that the employers in those cases 

lacked prepetition knowledge. 

Thus the Board recognizes that neither the 

surveyed universe nor the 50–60% rates observed 

reflect the broader realities of union organizing 

campaigns. (The rates very likely are substantially 

higher.) The study merely provides some measure 

of empirical confirmation of the Board’s qualitative 

conclusion, based on its own experience, that 

employers are very often aware of the organizing 

campaign before the petition is filed. Indeed, the 

study’s focus on employer’s with bargaining units 

larger than the Board’s historical medians drives 

home this point. For the Board has long presumed 

that in smaller workplaces, employers are even 

more likely to be aware of union organizing activity 

among their employees. See, e.g., Wiese Plow 

Welding Co., 123 NLRB 616, 618 (1959). 

57The Chamber criticizes the statistical rigor and 

ambiguity of the AFL–CIO’s survey. Chamber II 

reply. It is quite true, as the Chamber notes, that it 

is unclear how many campaigns in total are 

represented in this answer, and that, for a variety 

of reasons, it would not be methodologically sound 

to draw rigorous statistical inferences. A speaker 

representing the AFL–CIO conceded as much at the 

hearing. That is not, however, the purpose for 

which the survey was taken or submitted, and that 

is not the purpose for which the Board is citing it. 

Rather, the ‘‘survey’’ is nothing more than a 

summary of ‘‘what practitioners are reporting that 

they are experiencing.’’ Testimony of Sharma on 

behalf of AFL–CIO II. In this way, it is like a 

compilation of comments from experienced labor 

attorneys, sharing the varieties of their experiences 

with Board procedures. 

58See, e.g., Lucky Cab Co., 360 NLRB No. 43, slip 

op. at 1 (Feb. 20, 2014) (Union filed petition on 

March 30th, but informed the employer of its 

organizing activity on February 25th. Board also 

finds that employer already knew of the organizing 

drive for months before notice was given.); 

Flamingo Hilton-Laughlin, 324 NLRB 72, 76 (1997) 

(union informed employer of campaign and 

committee members on January 26 and filed 

petition on March 26), enf. granted in part, denied 

in part 148 F.3d 1166 (D.C. Cir. 1998); Keco 

Industries, 306 NLRB 15, 16 (1992) (union informed 

employer of campaign in January and filed petition 

on October 31); Mariposa Press, 273 NLRB 528, 533 

(1984) (union informed employer of campaign on 

September 25 and filed petition on October 6); 

Comet Corp., 261 NLRB 1414, 1418, 1422 (1982) 

(union informed employer of campaign and 

committee members on July 23 and filed petition 

on August 23); Quebecor Group, Inc., 258 NLRB 

961, 964 (1981) (union informed employer of 

campaign on November 17 and filed petition on 

November 28). 

59See comments of John Logan, Ph.D., Erin 

Johansson, M.P.P., and Ryan Lamare, Ph.D.; Center 

for American Progress Action Fund; LIUNA 

MAROC II; Testimony of Hermanson on behalf of 

AFT II; Testimony of Semel on behalf of CWA II. 

60Fox Rothschild LLP; National Mining 

Association; NRF. 

The study concluded that in 47 percent 

of cases involving serious unfair labor 

practice allegations against employers 

that resulted in a settlement or a Board 

finding that the law was violated, the 

alleged unlawful conduct occurred 

before the petition was filed; in 60 

percent of cases involving allegations of 

interrogation and harassment, the 

conduct occurred before the petition; 

and in 54 percent of cases involving 

allegations of threats and other coercive 

statements, the conduct occurred before 

the petition. Professor Warren testified 

at the 2011 public hearing that the 

researchers’ review of the files in these 

cases indicated that the conduct 

resulting in the charge, whether it was 

actually unlawful or not, evidenced the 

employer’s knowledge of the organizing 

campaign. Critics of the study contend 

that it inappropriately focuses on mere 

allegations of misconduct and that the 

category of ‘‘charges won’’ 

inappropriately includes settlements.56

The importance of the study’s findings 

for present purposes, however, does not 

rest on whether or not the charges had 

merit, but rather on the fact that they 

were filed based on pre-petition conduct 

and that available information in the 

case files suggests the employer had prepetition knowledge of the organizing 

campaign. The study’s findings in that 

regard are consistent with the Board’s 

experience, and no contrary study was 

presented to the Board. 

In addition, the AFL–CIO surveyed 57 

union-side labor lawyers, and asked 

whether ‘‘[i]n the organizing drives you 

have been involved in that resulted in 

a petition for an election, was the 

employer aware of the organizing before 

the petition was filed?’’ The vast 

majority—41 attorneys—gave an 

unqualified ‘‘yes’’ in answer to this 

question (9 answered ‘‘no’’ and 7 gave 

some answer other than yes or no).57

AFL–CIO II. Though this does not show 

with quantitative precision how often 

employers know about the campaign, it 

does cast doubt on the Chambers’ 

unsupported statement that ‘‘many if 

not most’’ employers are surprised by 

the petition. 

Board precedent is also replete with 

cases in which there was clear evidence 

that the employer was aware of the 

organizing campaign well before the 

petition was filed. In many cases, 

unions give the employer formal notice 

of the campaign before filing the 

petition, either by demanding 

recognition or by providing the 

employer with a list of employees on 

the organizing committee.58 There are 

many pragmatic reasons for this 

common practice, which were 

explained in some detail by one speaker 

at the hearing: ‘‘[First,] the union, in 

order to build strength, has to * * * 

build up the confidence among the 

employees that they can join together to 

speak up for themselves. And then, in 

order to get that message to the larger 

group of employees, there has to be 

some committee, some group of people 

who are willing to go public, have their 

faces on campaign literature and have 

their names disclosed as the people who 

are willing to lead the campaign. Once 

that happens, the employer knows there 

is something going on. The second 

reason for this is quite simply that if you 

end up in litigation where somebody 

was discriminated against because of 

their union activity, you want to be able 

to show that [the employer knew about 

their union activity.] If it’s been 

concealed you have a much, much 

harder time proving that. And then the 

third reason is because it doesn’t work 

to keep it secret * * *. [W]ord gets to 

the employer.’’ Testimony of 

Meiklejohn on behalf of Livingston, 

Adler, Pulda, Meiklejohn & Kelly II. 

Finally, the evidence on the record on 

this point is also consistent with the 

Board’s own experience and expertise in 

processing representation petitions and 

unfair labor practice cases. 

c. General Employer Communications 

About Unionization 

The foregoing authority casts doubt 

on the contention that ‘‘many if not 

most’’ employers are unaware of an 

organizing drive prior to the filing of a 

petition. But even in the absence of an 

active organizing campaign, employers 

in nonunionized workplaces may and 

often do communicate their general 

views about unionization to both new 

hires and existing employees.59 Some 

comments suggest that, prior to 

receiving a petition, employers pay little 

attention to the issue of union 

representation, and that general efforts 

to inform and persuade employees 

about unionization in the absence of a 

petition would be time-consuming and 

expensive.60 Although some employers 

may choose not to discuss unionization 

until a petition is filed, the Board’s 

experience suggests that other 

employers do discuss unionization with 

their employees beforehand, often as 

soon as they are hired. For example, 


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61See, e.g., U-Haul Co. of California, 347 NLRB 

375, 378 (2006) (employee handbook, distributed to 

all new employees, included a section entitled, 

‘‘What about Unions?’’; the section stated the 

employer’s preference to be union-free and asserted 

that employees do not need a union or outside third 

party to resolve workplace issues); SNE Enterprises, 

347 NLRB 472, 473 (2006) (employee handbook 

stated, ‘‘The Company believes a union is not 

necessary and not in the best interest of either the 

Company or its Team Members.’’), enforced, 257 

Fed.Appx. 642 (4th Cir. 2007); Overnite 

Transportation Co., 343 NLRB 1431, 1455 (2004) 

(employee handbook stated: ‘‘It is important for you 

to know that the Company values union-free 

working conditions. We believe that true job 

security can come only from you and the 

management of this company working together in 

harmony to produce a quality product. A union-free 

environment allows this kind of teamwork to 

develop.’’); MEMC Electronic Materials, Inc., 342 

NLRB 1172, 1188 (2004) (employee handbook 

stated that remaining ‘‘union-free’’ is an objective 

of the company); Noah’s New York Bagels, 324 

NLRB 266, 272 (1997) (section of employee 

handbook entitled ‘‘Unions’’ states: ‘‘At Noah’s 

Bagels we believe that unions are not necessary. We 

believe this for many reasons[.] First, there is no 

reason why you should have to pay union initiation 

fees, union dues, and union assessments for what 

you already have. . . . Second, there is no reason 

why you or your family should fear loss of income 

or job because of strikes or other union-dictated 

activity. Third, we believe that the best way to 

achieve results is to work and communicate directly 

with each other without the interference of third 

parties or unions. . . . The Federal government 

gives employees the right to organize and join 

unions. It also gives employees the right to say ’no’ 

to union organizers and not join unions. Remember, 

a union authorization card is a power of attorney 

which gives a union the right to speak and act for 

you. If you should be asked to sign a union 

authorization card, we are asking you to say ‘no.’’’); 

American Wire Products, 313 NLRB 989, 994 (1994) 

(employee handbook states, ‘‘Our Company is a 

non-union organization and it is our desire that we 

always will be’’; the same section also requests 

employees to direct union-related questions to a 

supervisor); Heck’s, Inc., 293 NLRB 1111, 1114 

(1989) (employee handbook’s ‘‘Union Policy’’ read: 

‘‘As a Company, we recognize the right of each 

individual Employee, their freedom of choice, their 

individuality and their needs as a worker and a 

fellow human being. For these reasons and others, 

we do not want any of our Employees to be 

represented by a Union. . . . When you thoroughly 

understand Heck’s liberal benefit programs, the 

desire to assist you in your job progress and 

willingness to discuss your job-related problems, 

you surely will agree there is no need for a union 

or any other paid intermediary to stand between 

you and your company.’’) Thus, employees may be 

well aware of their employer’s views regarding 

unions even before any campaign begins. 

62See SHRM; COLLE; NAM; Seyfarth Shaw; 

ALFA; Testimony of Arnold Perl on behalf of TN 

Chamber of Commerce. 

63See Testimony of Darrin Murray on behalf of 

SEIU II. In contrast to this point, which is 

unassailable, the AFL–CIO contends that, based 

upon a study by Getman and Goldberg, the 

employees’ votes are determined almost entirely by 

preexisting attitudes toward working conditions, 

rather than by campaign speech. AFL–CIO Reply II. 

Regardless of the empirical reality of this claim, 

which we strongly doubt, the Act itself is premised 

on a contrary assumption, as discussed above. The 

supposed ineffectiveness of employer speech in 

persuading voters cannot be cited as reason to 

restrict that speech, and we expressly decline to 

rely on this rationale. 

64See also comment of RILA, contending that 

‘‘stealth campaigns’’ are common in the retail 

industry. 

65 In FY2013; 99% of elections involved fewer 

than 500 employees. 

66A 1990 study of over 200 representation 

elections found that employers conducted 

mandatory meetings prior to 67 percent of the 

elections. John J. Lawler, Unionization and 

Deunionization: Strategy, Tactics, and Outcomes 

145 (1990). A more recent study found that in 89 

percent of campaigns surveyed, employers required 

employees to attend so-called ‘‘captive audience’’ 

meetings during work time and that the majority of 

employees attended at least five such meetings 

during the course of the campaign. Bronfenbrenner 

& Warren, supra at 6. 

some employers distribute employee 

handbooks or show orientation videos 

to all new employees that express the 

employer’s view on unions or its desire 

that employees remain unrepresented.61

Several comments contend that an 

employer’s general ability to 

communicate with employees regarding 

unions is not a complete substitute for 

the ability to communicate regarding a 

specific petition and a known 

petitioner.62 However, a complete 

substitute is not necessary in this 

context; rather, the question is whether 

the overall speech opportunity in the 

campaign is meaningful. The 

opportunity to engage in general speech 

of this sort is undoubtedly relevant on 

this question, and must be considered 

together with the opportunities for later, 

more specific campaign speech as part 

of the overall analysis. 

Finally, even in the absence of any 

pre-petition campaign, employees have 

experience with the existing labormanagement regime in their workplace, 

which informs their choice of whether 

to seek to alter it through collective 

bargaining. In unionized workplaces in 

which the incumbent union faces a 

decertification petition or a rival union 

petition, the incumbent union will be 

appropriately judged by its performance 

to date. Thus, eligible voters have a 

preexisting base of knowledge and 

experience with which to evaluate the 

incumbent. The same is true in 

workplaces where employees are 

unrepresented. Employees there have 

experience with labor-management 

relations in the absence of union 

representation. In both cases, employees 

base their choice, at least in part, on the 

relationship they are being asked to 

change.63

d. Employers’ Post-Petition 

Opportunities for Speech 

Although the Board has concluded 

that the record does not establish that 

pre-petition employer ignorance of an 

organizing campaign is the norm, the 

Board accepts that, in at least some 

cases, employers may, in fact, be 

unaware of an organizing campaign 

until a petition is filed. For example, 

COLLE cites union campaign strategy 

documents that allegedly call for 

‘‘stealth’’ campaigns. In such cases, the 

union may indeed have a ‘‘head start’’ 

in the campaign in the sense that it 

begins communicating its specific 

message to the unit employees before 

the employer does so.64

And so the question is presented 

whether, as a general matter, the rules 

will provide a meaningful opportunity 

to campaign under these circumstances. 

The argument has been presented that a 

great deal of time is required, weeks and 

even months, in order to decide on a 

message and effectively communicate it. 

Testimony of Kirsanow on behalf of 

NAM II; Testimony of Edgardo 

Villanueva on behalf of EMSI 

Consulting II. This is not consistent 

with our experience in overseeing Board 

elections. 

Most elections involve a small 

number of employees. A quarter of 

elections are held in units with 10 or 

fewer employees; half of elections are 

held in units smaller than 25; and threequarters of all Board elections have 60 

or fewer employees in the unit.65 Given 

this small size—much, much smaller 

than even the smallest political 

elections—effective communication 

with all voters can be accomplished in 

a short period of time. Even in much 

larger units, employers have a 

meaningful opportunity for speech. 

The employer has opportunities to 

communicate with employees while 

they are in the workplace, during the 

workday. It can compel employees to 

attend meetings on working time at the 

employer’s convenience.66 Most 

employers spend more than 35 hours 

per week in close, in-person contact 

with the voters. As pointed out at the 

Board’s public hearings in both 2014 

and 2011, employers can use as much 

of that time as they wish 

communicating with employees about 

these matters. Testimony of Hermanson 

on behalf of AFT II; Testimony of 

Professor Joseph McCartin on behalf of 

the Kalmanovitz Initiative for Labor and 

the Working Poor. Both professional 

‘‘persuaders’’ and employer 

representatives who testified against the 

rule were in agreement on this point. 

See, e.g., Testimony of Villanueva on 

behalf of EMSI Consulting II. Yet, 

generally, only three or four such 

meetings were considered necessary to 

communicate with employees 

effectively. Id. 

Another speaker testified about a 

recent campaign which aptly illustrates 

this principle. Testimony of Elizabeth 

Bunn on behalf of AFL–CIO II. In the 


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67See, e.g., Fontaine Converting Works Inc., 77 

NLRB 1386, 1387 (1948) (employer did not violate 

the Act by ‘‘compelling its employees to attend and 

listen to speeches on company time and property’’). 

68 In light of this fact, the dissent’s reading of this 

discussion is particularly perverse. Relying on 

Citizen’s United, 130 S.Ct. 876 (2010) and progeny, 

the dissent claims the Board is using an ‘‘antidistortion’’ theory to limit ‘‘an employer’s undue 

influence,’’ and rectify employers’ ‘‘upper hand in 

campaign communications’’ by limiting the time 

employers have to speak. We—yet again— 

emphatically disclaim any such motivation. As 

previously discussed, the problems caused by delay 

have nothing to do with employer speech. 

69As described in the NPRM, and below, the 

Board’s experience suggests employers are also 

increasingly using company and personal email to 

send campaign communications to their employees. 

76 FR 36812, 36820 (June 22, 2011). 

70CDW draws an analogy to the Older Workers 

Benefit Protection Act, 29 U.S.C. 626, which 

provides 45 days for employees to sign releases 

regarding age discrimination claims. CDW argues 

that this provision demonstrates the impropriety of 

forcing employees to make a decision on 

representation in less time than the current 38-day 

median. The Board does not find it instructive to 

compare an individual employee’s permanent 

waiver of rights under a completely different 

statutory scheme with the election procedures at 

issue here involving groups of employees and, 

typically, an active campaign by several parties. We 

also reject NAM’s (II) analogy to the 45-day plantclosing or mass layoff notice period under the 

Worker Adjustment and Retraining Notification 

Act. 

71Many commenters argued that their industry or 

employment situation presented unique speech 

needs that should be considered. 

RILA and NRF argue that sufficient time to 

campaign is particularly critical in the retail 

industry, where employees work on different shifts, 

often are seasonal or part-time, are less accessible 

during the workday because they are on the sales 

floor, and often are unavailable outside normal 

working hours due to other commitments. See also 

Food Marketing Institute (FMI) II (similar 

arguments in food retail). NRF contends, however, 

that more than 98 percent of all retailers employ 

fewer than 100 workers, and RILA contends that 

most petitions seek elections in single-store units 

and that front-line managers typically constitute 10 

to 20 percent of the workforce in each store. 

NRMCA and construction industry employers 

(ABC II) make similar arguments, that their various 

industries have unique features such as isolated 

plant locations, unpredictable delivery hours, and 

dispersed employees. But again, the commenters 

state that the vast majority of employers in the 

industry are small businesses. Therefore, most 

bargaining units are likely to be quite small, which 

should enable employer communication to take 

Continued 

stipulation, the election was set 25 days 

from the petition; the unit comprised 

eight employees. The employer held a 

total of 30 individual, mandatory 

meetings to communicate with 

employees about the vote. This 

demonstrates that, where employers 

wish to engage in an unusually high 

amount of communication, they can 

accomplish that in a short period of 

time because they control the quantum 

of work time which is used in 

conveying their message. 

Under current law, employers can 

compel attendance at meetings at which 

employees are often expressly urged to 

vote against representation.67 There is 

no limit on either the frequency or 

duration of such mandatory meetings 

and the rule imposes none. Employees 

may be relieved of regular duties and, 

instead, be required to attend such 

meetings. 

These are examples of how employer 

speech can be expeditiously 

accomplished. The rule does not limit 

any communication methods available 

to employers. Indeed, that is precisely 

the point of this discussion: That 

employers have meaningful 

opportunities to speak with employees 

both under the old rules and the new.68

The Board considered such factors in 

its Excelsior rule, which requires that 

the names and addresses of voters be 

provided to the petitioning union prior 

to the election. Excelsior Underwear, 

Inc., 156 NLRB 1236, 1240–41 (1966). 

The rule was designed, in part, to 

ensure fairness by maximizing the 

likelihood that all voters would be 

exposed to the nonemployer party 

arguments concerning representation. 

The rule requires that the petitioner 

have the opportunity to make use of a 

list of names and addresses of voters for 

a minimum of 10 days before the 

election, effectively allowing the 

petitioner a minimum of 10 days for 

such speech. See Mod Interiors, 324 

NLRB 164, 164 (1997); Casehandling 

Manual Section 11302.1. ‘‘The Excelsior 

rule is not intended to test employer 

good faith or ‘level the playing field’ 

between petitioners and employers, but 

to achieve important statutory goals by 

ensuring that all employees are fully 

informed about the arguments 

concerning representation and can 

freely and fully exercise their Section 7 

rights.’’ Mod Interiors, Inc., 324 NLRB 

164 (1997). We think a similar analysis 

is relevant to employers’ meaningful 

opportunity to speak here. 

Finally, modern communications 

technology available in many 

workplaces permits employers to 

communicate instantly and on an ongoing, even continuous basis with all 

employees in the voting unit. See, e.g., 

Virginia Concrete Corp., 338 NLRB 

1182, 1182 (2003) (employer sent ‘‘Vote 

No’’ message to ‘‘mobile data units’’ in 

employees’ trucks in the final 24 hours 

before an election); Testimony of Bunn 

& Sharma on behalf of AFL–CIO II (less 

time is needed to communicate in the 

era of communications technology, from 

text messaging to video presentations on 

flash drives).69 Access to information 

about particular unions, such as news 

reports, regulatory disclosures, or 

judicial opinions are readily available 

on the Internet, both for employees to 

peruse and for employers who desire to 

use such information as part of their 

messaging. See, e.g., Office of LaborManagement Standards (OLMS), http:// 

www.dol.gov/olms/regs/compliance/

rrlo/lmrda.htm. More general 

information praising or decrying the 

effects of union representation is also 

plentiful. Indeed, now more than ever, 

parties who wish to immediately 

participate in an election campaign have 

the tools to do so at their disposal. 

e. No Regulatory Minimum or 

Maximum Time Should Be Set 

Many comments propose that the 

Board set specific standards for the 

number of days between the petition 

and the election. In general, however, 

none of these proposals agree as to what 

the standards should be. 

Some have contended that the 

minimum should be 0 days. Testimony 

of Meiklejohn on behalf of Livingston, 

Adler, Pulda, Meiklejohn & Kelly II. Or 

the minimum could be 10 days, 

paralleling the Union’s time with the 

list of voter contact information, also 

discussed above. Cook-Illinois 

Corporation suggests a minimum of 21 

days, subject to expansion or 

contraction by agreement of the parties. 

The dissent suggests a minimum of 30– 

35 days and a maximum of 60 days. 

National Right to Work Legal Defense 

Foundation (NRTWLDF) II proposes a 

minimum of 35 days. The Heritage 

Foundation proposes a minimum of 40 

days. Others suggest times longer still.70

On the other hand, others have 

suggested imposing a different kind of 

regulatory maximum on the election 

date, i.e., that the election should be 

held within 15 days of the final voter 

list unless the parties agree to a later 

date. Testimony of Hernandez on behalf 

of UFCW II. 

As both supporters and opponents of 

the rule have noted, however, every case 

will be different, and it would disserve 

the purposes of the Act to create a 

procrustean timeline for election 

speech. Testimony of Professor Samuel 

Estreicher; Testimony of Petruska on 

behalf of LIUNA MAROC II; Testimony 

of Ronald Meisburg on behalf of the 

Chamber II; cf. Testimony of Kirsanow 

on behalf of NAM II (there is no 

‘‘irreducible point’’ where ‘‘logistical 

First Amendment violation’’ takes 

place). The election will ‘‘vary in size, 

geography and complexity in just about 

every way imaginable,’’ and various 

unique situations will present 

themselves in particular workplaces. 

Testimony of Petruska on behalf of 

LIUNA MAROC II.71 Bearing in mind 


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place in a relatively short period of time. In 

addition, as explained in the text, under extant 

precedent, these employers (and others) can require 

all employees to attend a meeting or multiple 

meetings outside their normal work hours, in a 

central location, in order to ensure they receive the 

employer’s message prior to the election. 

AHA II takes a different tack, arguing that large 

units are common in the healthcare field, where 

large hospitals average 471 RNs, and that this 

requires more time for speech. There is no question 

that a small fraction of the Board’s elections take 

place in larger units: in 2013, for example, 

approximately 2.5% of elections were held in units 

of 300 or more. But this does not necessarily mean 

more time for speech is required; in large units it 

is generally most likely that the employer will have 

prepetition notice of the organizing simply because 

a campaign of that magnitude cannot be kept secret. 

Moreover, considering all the opportunities for 

speech available in the particular workplace, the 

mere size of the unit may not be sufficient to justify 

lengthening the campaign period in the particular 

case. 

Nor are we persuaded by the suggestion that 

prompt elections are not possible in work forces 

with a large number of non-English speakers. See 

testimony of Villanueva on behalf of EMSI 

Consulting II. Of necessity employers with 

linguistically diverse work forces have to find ways 

to communicate with their employees in order to 

respond to the day-to-day demands of the business. 

The press of daily business requires prompt 

response in other matters, and it is reasonable to 

believe that employers can respond with equal 

promptness when questions of representation arise 

in their workplace. In addition, standardized 

campaign material has been developed by 

persuaders in a wide variety of languages. 72See Chamber; COLLE. 

73See NRTWLDF; Seyfarth Shaw; ALFA; ACE; 

CDW; NRMCA; Indiana Chamber; Con-way; 

Specialty Steel; Americans for Limited Government; 

International Foodservice; testimony of C. Stephen 

Jones, Jr. on behalf of Chandler Concrete Co., Inc.; 

testimony of Charles I. Cohen on behalf of CDW; 

testimony of David Kadela on behalf of Littler 

Mendelson; testimony of Harold Weinrich on behalf 

of Jackson Lewis LLP; testimony of Brett McMahon 

on behalf of Miller & Long Construction; NRTWLDF 

II; testimony of William Messenger on behalf of 

NRTWLDF II. 

Some comments include a related argument that 

employees who are considered likely to oppose the 

union, and therefore were not involved in the prepetition organizing campaign, may not know about 

the organizing drive until the petition is filed. See 

Seyfarth Shaw; ALFA. 

the general principles articulated above, 

the regional director will retain a 

measure of discretion to consider these 

matters along with other relevant factors 

in selecting an election date. 

As an alternative, some have 

discussed reserving ‘‘expedited’’ 

procedures for cases where the 

employer has received advanced notice 

of the campaign from the union. U.S. 

Poultry II; Testimony of Perl on behalf 

of the TN Chamber II. This suggestion 

would at least partially account for caseby-case variation in employer 

knowledge of the campaign. However, it 

would account for none of the other 

ways that campaigns vary, and would 

continue to apply inappropriate 

standards to cases that do not justify 

them. More fundamentally, as 

discussed, the petition itself is adequate 

notice because the procedures under the 

new rules still provide a meaningful 

opportunity to campaign. 

As another alternative, some have 

argued that the Board should publish, 

together with the final rule, revised 

‘‘time targets’’ for representation case 

procedures. CDW; Testimony of Joseph 

Torres on behalf of Winston & Strawn II; 

Testimony of Ross Friedman on behalf 

of CDW II. The existing time targets set 

expectations that facilitate the 

negotiation of stipulations because 

‘‘there is discretion to negotiate an 

election date anytime within’’ the time 

target. CDW. Time targets have never 

been published by the Board; rather, the 

extant time targets were published by 

the General Counsel, and represent his 

experience administratively overseeing 

the regions. The Board declines to 

publish any such time targets at present, 

and will continue to leave the matter 

within General Counsel discretion. We 

note that experience with the rules will 

continue to provide the frame of 

reference for the General Counsel’s time 

targets, and that some time may be 

necessary before sufficient experience is 

available to intelligently revise the 

current targets; however, we think it 

reasonable to anticipate that time targets 

will ultimately be revised and 

published, and that timely completion 

of this process will serve the Board’s 

objective of encouraging election 

agreements as parties adjust to the new 

rule. Any short term difficulties in 

reaching election agreements, should 

dissipate quickly, as they have in the 

past when prior time targets have been 

adjusted. 

The Board believes that its duty is to 

perform its statutory functions as 

promptly as practicable consistent with 

the policies of the Act. The Board has 

amended its rules in order to facilitate 

that objective, but even under the 

amended rules, which leave the 

ultimate decision about the setting of 

the election date within the sound 

discretion of the regional director after 

consultation with the parties, the Board 

does not believe it is likely or even 

feasible that it could perform its 

statutory functions in such a short 

period, and a regional director would 

set an election so promptly, that 

employee free choice would be 

undermined. The Board has thus 

decided to maintain the current practice 

of not setting either a maximum or a 

minimum number of days between 

petition and election via its rules. 

f. Timing Under the Rules in Practice 

Finally, it must be noted that many of 

the concerns expressed about the time 

from petition to election are predicated 

on erroneous speculation. Citing 

Member Hayes’s dissent from the 

NPRM, some comments suggest that the 

amendments will provide for elections 

in as few as 10 days after the filing of 

the petition.72 The practicalities of a 

regional director’s conducting a directed 

election suggest otherwise. First, it takes 

at least 8 days to begin the hearing. At 

least 1 day is required for the hearing 

and then a decision and direction of 

election must be drafted and issued; 

thereafter, the voter list must be 

produced and the Notice of Election 

posted for 3 days—all before an election 

is conducted. 

We are also not persuaded by the 

complaint that the amendments will 

work a deprivation of employer speech 

rights in cases where the employer feels 

pressured to enter an agreement 

regarding the election date that provides 

for a very fast election. Testimony of 

Elizabeth Milito on behalf of National 

Federation of Independent Business 

(NFIB) II. If the employer does not want 

a particular election date, it is free to not 

sign, state its position in its statement of 

position, and the regional director can 

fix the date of the election in the 

direction of election. If the employer 

does sign, there cannot have been a 

deprivation of rights absent evidence of 

actual duress. 

In addition to arguing that the rule 

fails to give employers sufficient time to 

deliver their campaign message, some 

comments contend that the new rules 

do not give employees sufficient time to 

receive and evaluate that message and, 

if they so choose, to organize themselves 

to oppose union representation.73 This 

argument is pressed with particular 

force in cases where the employer has 

exercised its statutory right to decline to 

express any opposition to the union. As 

a related matter, it is argued that an 

employer’s choice to enter into an 

election agreement will deny employees 

an adequate opportunity for free debate 

among themselves. 

This final rule does not change 

anything about an employer’s ability to 

remain silent and agree to an election on 

a particular date. The very same 

scenario occurs under current rules. If 

the situation were ever such as to truly 

work a deprivation of employee rights, 

the Board would of course remain free 

to address it. But to date no such case 

has arisen. Indeed, an important change 

in this final rule—to require an initial 

notice upon filing of the petition—is 

likely to obviate any such risk. A 

representative of NRTWLDF 

acknowledged as much at the public 


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74 Vigilant; Indiana Chamber of Commerce; John 

Deere Water; PIA; Greater Raleigh Chamber of 

Commerce; NMMA; Associated Oregon Industries; 

NAM; testimony of Michael Prendergast on behalf 

of Holland & Knight; Ohio Grocers Association II; 

Klein Dub & Holleb II. T&W Block Company makes 

a related argument, contending that the failure to 

allow sufficient time would destabilize labor 

relations because employees would enter bargaining 

with unrealistic expectations. 

75Following litigation, that rule was withdrawn 

by the Board. See 77 FR 25868 (May 2, 2012) 

(announcing indefinite delay in effective date 

pending litigation outcome); NLRB January 6, 2014 

press release announcing decision not to seek 

Supreme Court review of the two adverse appeals 

court decisions, http://www.nlrb.gov/newsoutreach/news-story/nlrbs-notice-posting-rule (last 

visited September 26, 2014). 

76This and subsequent citations to the regulations 

in 2010 is not meant to suggest that there is a 

substantive difference between the current 

regulations and the regulations as they existed in 

2010, but rather to emphasize that the relevant 

language existed in our regulations before the 

issuance of the first June 22, 2011 NPRM in this 

rulemaking. 

77See also testimony of former Board Member 

Marshall Babson on behalf of Seyfarth Shaw LLP 

(emphasizing that the rules must balance the 

various competing interests). 

78NRMCA; Indiana Chamber; National 

Automobile Dealers Association (NADA); T&W 

Block Company; York Society for Human Resource 

Management; NMMA; Council of Smaller 

Enterprises (COSE); Bluegrass Institute; Landmark 

Legal Foundation; American Trucking Associations 

(ATA); testimony of C. Stephen Jones, Jr. on behalf 

of Chandler Concrete Co., Inc.; American Fire 

Sprinkler Association; Leading Age; testimony of 

Milito on behalf of NFIB II. 

hearing in 2014. Testimony of 

Messenger on behalf of NRTWLDF II. 

g. Miscellaneous Matters Relating to the 

Opportunity To Campaign 

The Board discounts the argument 

made in some comments that the 

proposed rule improperly fails to give 

the employer sufficient time to refute 

unrealistic promises or correct any 

mischaracterizations or errors by union 

organizers.74 For 3 decades, Board law 

has been settled that campaign 

misstatements—regardless of their 

timing—are generally insufficient to 

interfere with an election, unless they 

involve forged documents that make 

employees unable to evaluate the 

statements as propaganda. See Midland 

National Life Insurance Co., 263 NLRB 

127, 132 (1982) (noting that employees 

are capable of ‘‘recognizing campaign 

propaganda for what it is and 

discounting it’’). The Midland rule 

applies even if the misrepresentation 

takes place only a few days before the 

election. See, e.g., U-Haul Co. of 

Nevada, Inc., 341 NLRB 195, 195 (2004) 

(document circulated by union two days 

before election did not amount to 

objectionable misrepresentation under 

Midland). 

The Board rejects the argument of 

Vigilant that a shorter period between 

petition and election will result in a 

greater number of mail-ballot elections 

and an accompanying increase in the 

potential for fraud and coercion. 

Nothing in the proposed or adopted 

rules alters the standard for determining 

when an election should be conducted 

by mail ballot. A regional director’s 

determination of whether an election 

should be held manually or by mail is 

not informed by the number of days 

between the petition and the election. 

Rather, it is based on factors such as the 

desires of the parties and whether 

employees are ‘‘scattered’’ due to their 

geographic locations or work hours and 

whether there is a strike, lockout, or 

picketing in progress. See San Diego Gas 

& Electric, 325 NLRB 1143, 1145 (1998); 

Casehandling Manual Section 11301.2. 

Baker & McKenzie contends that, to 

the extent the amendments will result in 

elections being held within 10 to 25 

days after the petition, they are 

inconsistent with the Board’s other 

notice provisions, which provide longer 

periods. For example, Baker & 

McKenzie notes that a respondent must 

post a remedial notice in an unfair labor 

practice case for 60 days or longer, and 

that the Board previously promulgated a 

rule requiring employers to 

continuously post in the workplace a 

notice of employee rights under the 

Act.75 The Board does not agree that its 

other posting requirements are or were 

in any way inconsistent with the final 

rule, because each serves different 

purposes in different contexts than the 

notice rules issued today. First, 

remedial notices alleviate the impact of 

unlawful acts by an employer or union, 

rather than communicate about a 

specific petition in a specific unit. Thus, 

the time reasonably necessary for 

employees to obtain the message from a 

posted remedial notice, and for that 

message to dissipate the effects of unfair 

labor practices, is longer than that 

necessary for employees to receive 

information from employers and unions 

actively campaigning for their support. 

Second, the Board explained why it 

required continuous posting of the 

NLRA rights notice, as opposed to its 

remedial and election notices, ‘‘[I]t is 

reasonable to expect that even though 

some employees may not see the notices 

immediately, more and more will see 

them and learn about their NLRA rights 

as time goes by.’’ 76 FR 54005, 54030 

(Aug. 30, 2011). Thus, the Board 

recognized the goal of ‘‘reach[ing] new 

employees’’ (id.) could be met by 

requiring the rights notice to be readily 

available to employees whenever they 

chose to examine it. In contrast, 

employee turnover is unlikely to be of 

concern during the time between a 

direction of election and the election 

itself. Finally, the Board’s existing 

notice-posting provision for elections, 

unaltered by the final rule, requires that 

the notice be posted for only 3 working 

days before the election. Compare 29 

CFR 103.20 (2010) 76 with amended 

102.67(k). The Board thus rejects the 

‘‘one size fits all’’ suggestion for 

maximum and/or minimum time 

periods for conducting elections under 

the Act. 

Other comments suggest that the 

amendments will generate litigation 

because, if a party has less time to 

campaign between the petition and 

election, the party will ‘‘assert as many 

defenses as possible’’ or try to obtain a 

hearing simply to ‘‘buy . . . more time’’ 

before the election. AHA. SEIU’s reply 

comment notes that there was no 

significant drop in the consent or 

stipulation rate following former 

General Counsel Fred Feinstein’s 

initiative aimed at commencing all preelection hearings between 10 and 14 

days after the filing of the petition. 

Rather than undermining the rationale 

for the proposals, the suggestion that 

parties might use the pre-election 

hearing to delay the conduct of an 

election reinforces the need for the final 

rule. Both the ability and incentive for 

parties to attempt to raise issues and 

engage in litigation in order to delay the 

conduct of an election are reduced by 

the final rule. 

Some comments, including that of 

Professor Samuel Estreicher, suggest 

that the employer needs sufficient time 

not only to campaign, but to retain 

counsel so that the employer 

understands the legal constraints on its 

campaign activity and does not violate 

the law or engage in objectionable 

conduct.77 A number of comments 

specifically argue that any compression 

of the time period between the petition 

and election will be particularly 

difficult for small businesses, which do 

not have in-house legal departments and 

may not have ready access to either inhouse or outside labor attorneys or 

consultants to counsel them on how to 

handle the campaign.78 Similarly, some 

comments suggest that, to the extent the 

amendments result in a shorter period 

of time between the petition and the 

election, they will increase objections 

and unfair labor practice litigation, 

because employers will not have an 

opportunity to train managers on how to 

avoid objectionable and unlawful 


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79Other comments, however, cite evidence 

indicating a positive correlation between the length 

of a campaign and unfair labor practice allegations. 

See SEIU; NELP; Senior Member Miller and 

Democratic House Members; John Logan, Ph.D., 

Erin Johansson, M.P.P., and Ryan Lamare, Ph.D.; 

Senators Tom Harkin, Robert Casey, and Patty 

Murray, and U.S. Representatives George Miller and 

John Tierney. See also testimony of Professor Ethan 

Daniel Kaplan (citing similar results from a study 

in Canada). 

80Ranking Member Enzi and Republican Senators 

assert that employers will significantly limit their 

use of legal counsel during organizing campaigns 

due to the Department of Labor’s recent NPRM 

interpreting the advice exemption to the 

‘‘persuader’’ disclosure requirement under the 

Labor-Management Reporting and Disclosure Act. 

See 76 FR 36178 (proposed June 21, 2011). 

However, the DOL’s stated goal is publicizing the 

interactions between employers and covered 

entities, not stopping those interactions from taking 

place. See id. at 36182, 36190. In any event, the 

Board views such concerns as more properly 

directed to the DOL. The Department of Labor has 

not yet taken action on the proposed rule. See 79 

FR 896, 1025 (Jan. 7, 2014). The Board also wishes 

to make clear that—contrary to COLLE’s 

suggestion—its actions have been in no way 

influenced by any actions of the DOL. 

81See testimony of Russ Brown on behalf of the 

Labor Relations Institute (LRI), noting that the Labor 

Relations Institute’s Web site ‘‘is probably one of 

the leading sources of keeping up with just about 

every scrap of paper you guys push.’’ The Web site, 

www.lrionline.com, includes a section entitled 

‘‘union avoidance’’ and advertises online libraries 

that include a ‘‘daily petition library’’ with 

‘‘supplemental petition information available daily’’ 

and an ‘‘organizing library’’ tracking ‘‘union 

organizing activity.’’ See also testimony of Michael 

D. Pearson, former field examiner (noting that 

consultants check the public filings of RC petitions 

on a daily basis to solicit business from employers); 

testimony of Professor Joseph McCartin on behalf of 

the Kalmanovitz Initiative for Labor and the 

Working Poor (noting that a ‘‘thriving industry of 

consultants has emerged’’). 

82For this reason, the Board declines COLLE’s 

similar suggestion to find relevant Congress’ failure 

to pass the 1978 Labor Law Reform Act, versions 

of which provided for varying time frames for 

representation elections. 

83Many comments additionally charge that the 

Board’s motives for issuing the rule are improper 

in that the Board seeks to act as an advocate for 

unions (rather than as a neutral overseer of the 

process), to drive up the rates of union 

representation, and to ‘‘stack the deck’’ against 

employers in union organizing campaigns. No 

credible evidence has ever been provided in 

support of this claim. The reasons for issuing the 

rule are fully set forth in the NPRM and in this 

preamble; favoritism is not among them. 

84To the extent that comments suggest that the 

Board failed to consider the proposed rule’s 

potential to increase the costs on small employers 

associated with increased unionization as part of its 

obligations under the Regulatory Flexibility Act, 5 

U.S.C. 601 et seq., those comments are addressed 

in the Regulatory Flexibility Act section below. 

conduct. See Con-way Inc.; Bluegrass 

Institute; ATA.79

However, under the final rule, when 

the petition is served on the employer 

by the regional office, it will be 

accompanied by the Notice of Petition 

for Election, (a revised version of Form 

NLRB 5492), which will continue to set 

forth in understandable terms the 

central rules governing campaign 

conduct. This provides an immediate 

explanation of rights and obligations, 

while an employer who wishes to locate 

counsel may do so. In any event, the 

Board does not believe that any 

shortening of the time between petition 

and election that results from the final 

rule will impair employers’ ability to 

retain counsel in a timely manner.80 In 

this regard, Russ Brown, an experienced 

labor-relations consultant, testified at 

the public hearing that his firm 

routinely monitors petitions filed in the 

regional offices and promptly offers its 

services to employers named in those 

petitions. In general, the welldocumented growth of the laborrelations consulting industry 

undermines the contention that small 

businesses are unable to obtain advice 

quickly. Comments, such as the one 

cited above, indicate that it is a routine 

practice for labor-relations consultants 

to monitor petitions filed with the 

regional offices, so that the consultants 

may then approach the employers to 

offer their services.81

3. Congressional Inaction in 1959 

ACC points out that Congress, in 

enacting the Labor-Management 

Reporting and Disclosure Act (LMRDA) 

in 1959, rejected a proposal that would 

have permitted an election to take place 

before a hearing when there were no 

issues warranting adjudication, so long 

as the election was not held sooner than 

30 days after the petition was filed (ACC 

Reply). The proposal, contained in the 

Senate version of the bill, would have 

permitted a so-called ‘‘pre-hearing 

election,’’ barred by the 1947 TaftHartley amendments to the Act. S. 1555, 

86th Cong., 1st Sess. 705 (as passed by 

Senate, Apr. 25, 1959). At one point 

Senator Kennedy suggested that this 30- 

day period would provide a ‘‘safeguard 

against rushing employees into an 

election where they are unfamiliar with 

the issues.’’ 105 Cong. Rec. 5984 (April 

15, 1959) (statement of Sen. Kennedy). 

The House bill, however, never 

contained a parallel provision, and it 

was not enacted into law. 

Nevertheless, ACC (Reply) argues that 

the proposed amendments described in 

the NPRM are inconsistent with 

congressional intent because they do not 

guarantee a minimum of 30 days 

between petition and election. To the 

extent that ACC’s argument bears on the 

final rule, the Board rejects it. Report 

language and statements of individual 

legislators on a provision that was not 

enacted in 1959 are entitled to little if 

any weight in assessing the meaning of 

legislation adopted in 1935 and 

amended in 1947. In fact, the Supreme 

Court has clearly stated that ‘‘failed 

legislative proposals are a particularly 

dangerous ground on which to rest an 

interpretation of a prior statute’’ because 

a bill can be proposed or rejected for 

any number of reasons.82 Solid Waste 

Agency of Northern Cook County v. U.S. 

Army Corps of Engineers, 531 U.S. 159, 

169–70 (2001) (internal quotation marks 

omitted); see also Central Bank of 

Denver, N.A. v. First Interstate Bank of 

Denver, N.A., 511 U.S. 164, 187 (1994). 

Indeed, the rejection of the proposed 

amendment would more reasonably be 

understood as an indication that 

Congress did not believe a minimum 

time between petition and election is 

necessary. However, the legislative 

history of the LMRDA offers no 

guidance on why the provision was 

rejected, and Congress imposed no 

requirements in the LMRDA or at any 

other time concerning the length of time 

that must elapse between petition and 

election. Accordingly, the Board finds 

no indication in this legislative history 

that the final rule is in any way contrary 

to Congress’s intent. 

D. Effects on Employee Representation 

and the Economy 

Many comments do not address the 

substance of the proposed amendments, 

but instead speak generally in favor of, 

or in opposition to, labor unions and the 

process of collective bargaining. In 

response, the Board continues to 

observe that, by passing and amending 

the NLRA, Congress has already made 

the policy judgment concerning the 

value of the collective-bargaining 

process; the Board is not free to ignore 

or revisit that judgment. As explained in 

the NPRM, the amendments are 

intended to carry out the Board’s 

statutory mandate to establish fair and 

efficient procedures for determining if a 

question of representation exists, for 

conducting secret-ballot elections, and 

for certifying the results of secret-ballot 

elections. Accordingly, the Board will 

not engage in an analysis, invited by 

these comments, concerning the general 

utility of labor unions and the 

collective-bargaining process.83

Other comments assert that the 

proposed amendments would lead to 

increased union representation and 

question the wisdom of adopting rules 

that would have such an effect on a 

fragile economy. Again, the Board views 

these comments as questioning policy 

decisions already made by Congress.84

The amendments do not reflect a 

judgment concerning whether increased 

employee representation would benefit 

or harm the national economy. 


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85The contents and purpose of the Statement of 

Position form are described further below in 

relation to § 102.63. 

86See PIA; American Federation of State, County 

and Municipal Employees (AFSCME); Chamber; 

Chairman Harkin, Senior Member Miller, and 

Congressional Democrats II; United Association of 

Journeymen and Apprentices of the Plumbing & 

Pipefitting Industry of US and Canada (Plumbers) 

II; Bart Bolger II; Testimony of Professor Anne 

Marie Lofaso. 

87Also, the Board has decided to clarify, 

consistent with its current e-filing practice 

concerning other types of case documents, that 

petitioners who file their petitions electronically are 

not required to file an extra copy of the petition in 

paper form. Upon careful consideration of the 

NPRM proposal, which would have required extra 

paper copies to be filed for both faxed petitions and 

electronically-filed petitions, the Board is of the 

view that an extra paper copy of an electronicallyfiled petition would be unnecessary. The Board’s 

experience has been that the legibility of 

electronically-filed documents does not differ 

significantly from paper originals, unlike faxes, 

which are sometimes significantly less legible than 

their original paper versions. Moreover, original 

paper-copies could cause administrative difficulties 

if regional staff were to inadvertently treat the laterarriving paper copy as a new case rather than a 

courtesy copy of the electronically-filed petition 

that would have been docketed earlier. However, 

the Board has concluded that such risks are worth 

incurring to overcome potential legibility issues 

regarding faxed petitions. 

88See Plumbers; Georgia Association of 

Manufacturers (GAM); PIA. 89See, e.g., INDA II and AEM II. 

V. Comments on Particular Sections 

Part 102, Subpart C—Procedure Under 

Sec. 9(c) of the Act for the 

Determination of Questions Concerning 

Representation of Employees and for 

Clarification of Bargaining Units and for 

Amendment of Certifications Under Sec. 

9(b) of the Act 

Sec. 102.60 Petitions 

The final rule adopts the Board’s 

proposals to permit parties to file 

petitions electronically and to require 

that the petitioner serve a copy of the 

petition on all other interested parties. 

The final rule also clarifies that parties 

filing petitions electronically need not 

also file an original for the Agency’s 

records. The final rule further adopts 

the Board’s proposal to require service 

of two additional agency documents 

that will be available to petitioners in 

the regional offices and on the Board’s 

public Web site. The first document, 

which will substitute for and be an 

expanded version of the Board’s Form 

4812, will describe the Board’s 

representation case procedures. The 

second document the petitioner will 

serve along with the petition will be a 

Statement of Position form, which will 

include a request for commerce 

information (such as that solicited by 

current NLRB Form 5081, the 

Questionnaire on Commerce 

Information).85

The Board received generally positive 

comments regarding its proposal to 

allow parties to file petitions 

electronically.86 For instance, the AFL– 

CIO II noted that the electronic filing of 

petitions is consistent with general 

Federal, state and local government 

practices and is part of the Board’s 

‘gradual and entirely sensible transition’ 

to electronic filing, service and storage 

of documents. The Center on National 

Labor Policy (CNLP) commends the 

proposal as ‘‘excellent’’, but apparently 

misunderstands the proposal as 

establishing mandatory electronic filing, 

when it does not. The Board’s view, 

echoed by several comments, is that 

allowing—but not requiring—the 

electronic filing of petitions is part of its 

nearly decade-long effort to adapt its 

procedures to modern methods of 

communication.87 This rule recognizes 

the widely accepted use of email for 

legal and official communications and 

more closely aligns Board service 

procedures with those of the Federal 

courts. 

The final rule’s requirement that the 

petitioner serve a copy of the petition on 

all other interested parties when it files 

its petition with the Board further 

conforms to ordinary judicial and 

administrative practice. For example, a 

labor organization filing a petition 

seeking to become the representative of 

a unit of employees is required to also 

serve the petition on the employer of the 

employees. This will ensure that the 

earliest possible notice of the pendency 

of a petition is given to all parties. The 

few comments to focus on this proposal 

either affirmatively support it as an 

improvement over current procedures or 

find it unobjectionable.88

Likewise, the Board received no 

significant negative comments 

concerning its proposal to require 

service of the Statement of Position form 

and an expanded version of the Board’s 

Form 4812 to inform interested parties 

about the Board’s representation case 

procedures. The Board agrees with GAM 

that requiring service of this latter 

document will aid employers’ 

understanding of representation case 

procedures and render Board 

procedures more transparent. 

A few comments state that parties 

may not receive petitions or other 

relevant documents due to the use of 

electronic filing. For example, AGC 

(AGC II) argues that parties’ use of spam 

filters and other computer data 

protection tools could prevent the 

delivery of electronically-filed petitions 

and thereby lead to increased litigation 

due to their non-receipt of petitions or 

related documents. And the CookIllinois Corporation (Cook-Illinois) 

contends that the recipient of an 

emailed petition might unwittingly 

delete the email as spam. The Board 

responds that it already permits parties 

to electronically file most documents in 

unfair labor practice and representation 

proceedings and has yet to experience 

any increase in litigation resulting from 

the use of such software. Moreover, it is 

also possible for representation petitions 

sent via United States mail or facsimile 

to be misdelivered or to be incorrectly 

identified by the recipient as junk mail. 

Also, it is the practice of the regional 

offices to have a Board agent contact 

parties as soon as possible after the 

filing of a petition in order to facilitate 

regional decision making regarding the 

petition. See Casehandling Manual 

Section 11010. In addition, pursuant to 

§ 102.63(a), the regional offices will reserve a copy of the petition after the 

petition is docketed, making it even less 

likely a party will remain ignorant of an 

electronically-filed petition for any 

significant period of time. Therefore, the 

Board does not anticipate that the 

electronic filing of petitions will lead to 

litigation due to delivery failure and 

lack of notice of service. 

A number of comments suggest the 

final rule should provide guidance with 

respect to what constitutes proper 

service by identifying the title of the 

individual who should be electronically 

served with the petition because this 

arguably triggers significant deadlines 

and obligations.89 The Board’s current 

rules and regulations do not provide 

guidance with respect to the proper 

agent for service of a petition (or an 

unfair labor practice charge). Any issue 

raised with respect to whether the 

petition was properly served will 

continue to be handled consistent with 

the Board’s existing practices in this 

area. Moreover, the petitioner’s 

simultaneous service of the petition is 

simply intended to provide all 

interested parties with the earliest 

possible notice of the filing of the 

petition, and does not, by itself, 

establish any deadlines or obligations 

related to the processing of the case for 

the party being served with the petition. 

The actual date of the hearing and other 

requirements are set by the regional 

director (after the filing of the petition) 

when the director issues the notice of 

hearing. 

Several comments express concern 

that the electronic filing of petitions 

could increase opportunities for fraud. 

For example, NADA and the Chamber 

argue that the regulations should require 

a party electronically filing a petition to 


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90Fraud concerns specific to electronic signatures 

are addressed below in relation to § 102.61. 

91The following abbreviations are used to refer to 

the different types of representation petitions filed 

under Section 9(c) of the Act: 

RC (Representation petition)—A petition filed by 

a labor organization or employee(s) alleging that 

that there is a question concerning representation 

and seeking an election to determine whether 

employees wish to be represented by the petitioner. 

RD (Decertification petition)—A petition filed by 

an employee, employees or a labor organization 

alleging that there is a question concerning 

representation and seeking an election to determine 

whether employees in the appropriate unit wish to 

continue to be represented by a labor organization 

that was previously certified and/or is currently 

recognized by the employer as their collective 

bargaining representative. 

RM (Employer petition)—A petition filed by an 

employer alleging that there is a question 

concerning representation and seeking an election 

to determine if employees in the appropriate unit 

wish to be represented by a labor organization that 

has demanded recognition as their collective 

bargaining representative or that is currently 

recognized as their collective bargaining 

representative. 

UC (Unit clarification petition)—A petition filed 

by a labor organization or an employer seeking a 

determination as to whether certain classifications 

should or should not be included within an existing 

unit. 

AC (Amendment of certification)—A petition 

filed by a labor organization or an employer for 

amendment of an existing certification because of 

changed circumstances. 

92The final rule will require the petitioner to 

identify the type of election it seeks (e.g. a manual, 

mail or a mixed manual-mail election). 

mail the original documents to the 

Board at a later date.90 CNLP comments 

that the Board should establish esecurity practices that protect the 

identity of a party filing a petition and 

mitigate the possibility that fraudulent 

documents will be filed. CNLP also 

suggests that the Board should 

substantially adopt Federal Rule of Civil 

Procedure 11(b) and require a party 

filing a petition to certify that the 

document is supported by facts and law. 

The Board believes that the final rule 

and current electronic filing procedures 

adequately address these concerns. As 

an initial matter, § 102.60 of the final 

rule continues the Board’s practice of 

requiring that petitions ‘‘shall be sworn 

to before a notary public, Board agent, 

or other person duly authorized by law 

to administer oaths and take 

acknowledgments or shall contain a 

declaration by the person signing it, 

under the penalty of perjury, that its 

contents are true and correct.’’ The 

Board already allows parties to maintain 

password-protected profiles and to 

redact or protect their sensitive 

personally identifiable information. To 

date, there has been no significant 

interference with election processes 

resulting from fraudulent petitions. The 

Board does not expect any change 

resulting from its decision to permit 

electronic filing of such petitions. 

Nonetheless, as mentioned above, a 

Board agent will contact parties after the 

filing of a petition and will be able to 

determine if there has been a fraudulent 

filing. Further, § 102.177(d) of the 

existing regulations already allows the 

Board to sanction an attorney or party 

representative for misconduct such as 

the filing of a document that is 

unsupported by facts and law. See, e.g., 

In re David M. Kelsey, 349 NLRB 327 

(2007). 

The National Right to Work Legal 

Defense Foundation (NRTWLDF) 

proposes that the Board further amend 

its existing procedures to prevent 

petitioners from withdrawing otherwise 

valid petitions before an election occurs. 

It asserts that allowing such withdrawal 

unfairly allows petitioners to 

manipulate the scheduling of elections. 

The Board declines to adopt this 

proposal. Continuing to permit the 

withdrawal of petitions serves the 

efficiency goals of these amendments by 

avoiding unnecessary case-processing 

efforts. Moreover, the Board’s existing 

procedures adequately prevent such 

manipulation. The regional director or 

the Board will continue to have 

discretion to accept or reject a 

petitioner’s request for withdrawal of 

the petition if the request would run 

counter to the purposes of the Act. See 

Casehandling Manual Section 11110. 

One commenter noted that the 

proposal to allow the electronic filing of 

petitions may have merit, but that the 

Board should seek further comment and 

input from stakeholders before 

implementing this change. Leading Age 

II. However, the comment did not 

provide an explanation as to why the 

periods established to allow comments 

to the Board’s NPRMs in 2011 and 2014 

were not sufficient to effectively obtain 

input from stakeholders on this issue. 

The Board believes that stakeholders 

have had an ample opportunity to 

comment on this proposal and has 

carefully considered the input offered 

on this issue in deciding to implement 

this proposal. 

Sec. 102.61 Contents of Petition for 

Certification; Contents of Petition for 

Decertification; Contents of Petition for 

Clarification of Bargaining Unit; 

Contents of Petition for Amendment of 

Certification; Use of Electronic 

Signatures To Support a Showing of 

Interest 

Section 102.61 of the final rule 

continues to describe the contents of the 

various forms of petitions that may be 

filed to initiate a representation 

proceeding under Section 9 of the Act.91

The Board will continue to make the 

petition form available at the Board’s 

regional offices and on its Web site. As 

proposed in the NPRM, the final rule 

adds to the contents of the petitions in 

a few respects. First, the revised petition 

contains the allegation required in 

Section 9. In the case of a petition 

seeking representation, for example, the 

petition contains a statement that ‘‘a 

substantial number of employees wish 

to be represented for collective 

bargaining . . . .’’ 29 U.S.C. 

159(c)(1)(a)(i). Second, the petitioner is 

now required to designate, in the 

revised petition, the individual who 

will serve as the petitioner’s 

representative in the proceeding, 

including for purposes of service of 

papers. GAM acknowledges that this is 

a practical requirement that may allow 

parties to quickly resolve election issues 

while helping to conserve agency 

resources. Third, the petitioner is now 

required to state the type, date(s), 

time(s) and location(s) of election it 

seeks.92 This information will facilitate 

entry into election agreements by 

providing the nonpetitioning parties 

with the earliest possible notice of the 

petitioner’s position on these important 

matters. 

The final rule also requires that the 

petitioner file with the petition 

whatever form of evidence is an 

administrative predicate of the Board’s 

processing of the petition rather than 

permitting an additional 48 hours after 

filing to supply the evidence. When 

filing a petition seeking certification as 

the representative of a unit of 

employees, for example, petitioners 

must simultaneously file the showing of 

interest supporting the petition. As 

explained in the NPRM, the Board 

believes that parties should not file 

petitions without whatever form of 

evidence is ordinarily necessary for the 

Board to process the petition. However, 

the final rule is not intended to prevent 

a petitioner from supplementing its 

showing of interest, consistent with 

existing practice, so long as the 

supplemental filing is timely. Also 

consistent with existing practice, the 

final rule does not require that the 

showing of interest be served on other 

parties. 

The Board rejects the Chamber’s 

request that the regional director refrain 

from serving notice of the filing of a 

petition on other parties until the region 

receives the original signatures 

establishing the showing of interest. 

Such a requirement would not serve the 

Board’s purpose of encouraging the 

expeditious resolution of questions 

concerning representation. The final 


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93To be clear, the language in amended 

§ 102.61(f) is premised upon petitioners who file 

their petitions electronically providing 

electronically-scanned copies of authorization cards 

with handwritten signatures. This would be 

permitted completely apart from, as discussed 

below, electronically-signed authorization cards. 

The language in § 102.61(f) is not applicable to 

electronic signatures because electronic signatures 

are not ‘‘original signatures that cannot be 

transmitted in their original form by the method of 

filing the petition.’’ To the contrary, electronic 

signatures should be transmittable with 

electronically-filed petitions in their original form, 

not triggering a need to later submit ‘‘original 

documents.’’ 

94To be sure, our current regulations are 

completely silent on the subject of electronic 

signatures, and, as explained above, we likewise 

believe that the language in amended § 102.61(f) of 

the final rule would be consistent with the Board’s 

acceptance of electronic signatures. While the 

Board’s practice has been to accept only 

handwritten signatures, it may, consistent with its 

current Rules and Regulations as well as these 

amended rules, accept electronic signatures. 

rule does not change the Board’s 

longstanding policy of not permitting 

the adequacy of the showing of interest 

to be litigated. See, e.g., Plains 

Cooperative Oil Mill, 123 NLRB 1709, 

1711 (1959) (‘‘[T]he Board has long held 

that the sufficiency of a petitioner’s 

showing of interest is an administrative 

matter not subject to litigation.’’); O.D. 

Jennings & Co., 68 NLRB 516, 517–18 

(1946). Nor does the final rule alter the 

Board’s current internal standards for 

determining what constitutes an 

adequate showing of interest. 

The Board further disagrees with the 

Chamber’s II assertion that § 102.61(f)’s 

mandate that when showings of interest 

are filed electronically or by facsimile, 

the original authorization cards with 

handwritten signatures must be 

delivered to the regional director within 

2 days, conflicts with the proposed 

language in § 102.60(a), which 

explained that the failure to follow an 

electronic or facsimile-filing of the 

petition with an original paper copy 

‘‘shall not affect the validity of the filing 

by facsimile or electronically, if 

otherwise proper.’’ First, as discussed in 

connection with § 102.60 above, the 

Board has decided not to require an 

extra paper copy of the petition when it 

is filed electronically, and as explained 

in the footnote below, the language in 

§ 102.61 likewise does not require paper 

copies of electronically-signed cards (if 

accepting electronic signatures is 

deemed practicable by the General 

Counsel). So there is no potential 

inconsistency in the final rule as to 

electronically-filed petitions and 

electronically-signed authorization 

cards. There is also no inconsistency in 

the final rule even when focusing solely 

on facsimile-filed petitions or 

electronically-filed petitions that do not 

include electronically-filed 

authorization cards. Thus, the Board 

intentionally distinguishes the 

handwritten signatures that form the 

showing of interest supporting the 

petition as items that must be 

transmitted to the Board in their original 

form in order for the filing to be proper. 

In other words, while a regional director 

will not dismiss a petition filed by 

facsimile simply because the petitioner 

failed to follow its facsimile filing by 

supplying the original paper copy to the 

regional office, a regional director will 

dismiss a petition if the facsimile-filed 

or electronically-filed showing of 

interest is not followed by original 

documents containing handwritten 

signatures within 2 days.93 The Board 

therefore declines the Chamber’s 

suggestion to strike or alter the language 

in § 102.60(a) to conform to the language 

in § 102.61(f). 

GAM argues that requiring petitioners 

to file a supporting showing of interest 

simultaneously with the petition will 

lead to confusion and delays and create 

an unnecessary burden that may 

discourage the filing of petitions. GAM 

maintains that under existing rules, a 

petitioner could file a petition and then 

receive useful guidance from the 

regional office about how to file its 

showing of interest, thereby suggesting 

that a petitioner will no longer have the 

option of seeking such assistance under 

the amended rules. GAM alleges that the 

Board’s motivation in adopting the 

amendment is a self-interested desire to 

improve its case-processing statistics, 

not to facilitate the holding of elections. 

The Board believes that parties should 

not file petitions without whatever form 

of evidence is ordinarily necessary for 

the Board to process the petition. If 

parties are confused about what 

evidence is necessary to file in support 

of a petition—or if they are confused 

about any other aspect of the 

representation case process—they may 

continue to contact regional offices for 

guidance both before and after the filing 

of a petition, and the continued useful 

guidance flowing from such contact 

should mitigate any potential for 

discouragement felt by individuals who 

are contemplating filing an election 

petition. Further, the amendment does 

not establish inflexible time deadlines 

for when a petition must be filed. 

The Board received a number of 

comments in response to the question of 

whether the proposed regulations 

should expressly permit or proscribe the 

use of electronic signatures to support a 

showing of interest under § 102.61(a)(7) 

and (c)(8) as well as under § 102.84. 

Based on these comments, we believe 

that the Board’s regulations as currently 

written are sufficiently broad to permit 

the use of electronic signatures in this 

context.94 We also note that evaluating 

the showing of interest is an 

administrative matter within the 

discretion of the agency. For the reasons 

discussed below, we find, that the Board 

should, when practicable, accept 

electronic signatures to support a 

showing of interest, and therefore direct 

the General Counsel to undertake an 

analysis of whether there exists a 

practicable way for the Board to accept 

electronic signatures to support a 

showing of interest while adequately 

safeguarding the important public 

interests involved. 

Several comments address the legal 

and procedural aspects of this potential 

amendment. Joseph Torres argues that 

neither the Government Paperwork 

Elimination Act (GPEA), 44 U.S.C. 3504, 

nor the Electronic Signatures in Global 

and National Commerce Act (E–SIGN), 

15 U.S.C. 7001 et seq., both of which 

were cited in the Notice of Proposed 

Rulemaking, supports changing Board 

practice. Testimony of Joseph Torres on 

behalf of Winston & Strawn II. He argues 

that electronic signatures accepted 

under either of those acts are 

distinguishable from the electronic 

signatures that would be accepted to 

support a showing of interest. Regarding 

GPEA, he observes that there are 

safeguards attendant to submitting 

information to the government that are 

not available to the private gathering of 

electronic signatures. And he observes 

that E–SIGN allows private parties to 

litigate the validity of electronic 

signatures, whereas they cannot under 

the Board’s current procedures. The 

Chamber (Chamber II) argues that the 

Board has yet to provide sufficient 

details about its potential use of 

electronic signatures and that an 

advanced notice of proposed 

rulemaking should therefore precede 

any action in this area. PIA and AHA II, 

among others, maintain that the Board 

has yet to provide any justification for 

this rule change. 

The SEIU II, AFL–CIO II, and Alvin 

Velazquez (testifying on behalf of SEIU 

II) argue that GPEA and/or E–SIGN 

require the Board to accept electronic 

signatures. Even setting this 

requirement aside, SEIU observes that 

the Board’s acceptance of electronic 

signatures would be beneficial and 

reflect modern changes in technology 

and methods of communication. SEIU 

(SEIU II) and the AFL–CIO, among 

others, also argue that the Board does 

not have to use the notice-and-comment 

rulemaking process to accept electronic 


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95SHRM; Gary Wittkopp; Seyfarth Shaw; AHA 

(AHA II); National Council of Investigation & 

Security Services (NCISS) II; AEM II. 

96See 79 FR 7323 (discussing the evolution of the 

Board’s electronic filing practice). 

97Bluegrass Institute; Mary Rita Weissman; Conway. 

98 David Nay II; Lisa Thomas II; Jack Steele II. 

signatures on showings of interest. For 

instance, SEIU contends, among other 

things, that such an amendment would 

relate to Board practice and procedure 

and therefore not require public 

comment. See 5 U.S.C. 553(b)(3)(A) 

(excepting ‘‘interpretative rules, general 

statements of policy, or rules of agency 

organization, [and] procedure, or 

practice’’ from notice-and-comment 

rulemaking). SEIU and AFL–CIO 

observe that the Board’s Rules and 

Regulations currently do not limit the 

form that the showing of interest can 

take. Further numerous comments, as 

summarized below, clearly articulate 

many of the potential benefits of 

accepting electronic signatures. 

Velazquez II, for instance, observes that 

electronic signatures, which typically 

require an employee also to fill-out an 

electronic form, are better indicators of 

an employee’s interest in joining a 

union than paper authorization cards, 

due to the increased effort required to 

input additional verification 

information. 

We believe that GPEA and E–SIGN 

embody a strong policy preference on 

the part of Congress for the use and 

acceptance of electronic signatures, 

when practicable, as a means, along 

with handwritten signatures, to support 

a showing of interest. GPEA directs the 

Office of Management and Budget 

(OMB) to ensure that ‘‘Executive 

agencies provide—(1) for the option of 

the electronic maintenance, submission, 

or disclosure of information, when 

practicable as a substitute for paper, and 

(2) for the use and acceptance of 

electronic signatures, when 

practicable.’’ GPEA additionally 

stipulates that ‘‘Electronic records 

submitted or maintained in accordance 

with procedures developed under this 

title, or electronic signatures or other 

forms of electronic authentication used 

in accordance with such procedures, 

shall not be denied legal effect, validity, 

or enforceability because such records 

are in electronic form.’’ In its guidance 

on the implementation of GPEA, the 

OMB observes, ‘‘a decision to reject the 

option of electronic filing or record 

keeping should demonstrate, in the 

context of the particular application and 

upon considering relative costs, risks, 

and benefits given the level of 

sensitivity of the process, that there is 

no reasonably cost-effective 

combination of technologies and 

management controls that can be used 

to operate the transaction and 

sufficiently minimize the risk of 

significant harm.’’ OMB, Procedure and 

Guidance; Implementation of the 

Government Paperwork Elimination 

Act, 65 FR 25508, 25512 (2000) (OMB 

Guidance). We feel that the policy 

underlying this admonition applies 

equally to the use and acceptance of 

electronic signatures. Likewise, E–SIGN 

mandates that, ‘‘with respect to any 

transaction in or affecting interstate 

commerce or foreign commerce—(1) a 

signature, contract, or other record 

relating to such transaction may not be 

denied legal effect, validity, or 

enforceability solely because it is in 

electronic form; and (2) a contract 

relating to such transaction may not be 

denied legal effect, validity, or 

enforceability solely because an 

electronic signature or electronic record 

was used in its formation.’’ We believe 

that both of these statutes clearly 

evidence Congress’s intent that Federal 

agencies, including the Board, accept 

and use electronic forms and signatures, 

when practicable—i.e., when there is a 

cost-effective way of ensuring the 

authenticity of the electronic form and 

electronic signature given the sensitivity 

of the activity at issue, here the showing 

of interest. 

That Congress should adopt this 

policy preference is not surprising. After 

all, the benefits of e-government are 

widely known. Among other things, 

electronic forms can ‘‘greatly improve 

efficiency and speed of government 

services.’’ S. Rep. No. 105–335 (1998). 

Electronic forms reduce the ‘‘costs 

associated with such things as copying, 

mailing, filing and storing forms.’’ Id.; 

see also OMB Guidance, 65 FR at 

25515–16. These reductions in 

transaction costs also benefit the Board’s 

transaction partner. OMB Guidance, 65 

FR at 25516–17. 

Many comments also address the 

ability to authenticate the electronic 

signature. Several of these comments 

argue that the Board should not allow 

the use of electronic signatures because 

they are more difficult to authenticate 

than handwritten signatures.95 The 

Bluegrass Institute argues that, while the 

Board could allow employees to 

authenticate their electronic signatures 

with sensitive personal information 

such as social security numbers, this 

apparent solution would create a 

potential threat of identity theft. Given 

this problem with authentication, CDW 

suggests that electronic signatures 

would effectively nullify the showing of 

interest requirement. And SHRM 

accordingly urges the Board to follow 

the National Mediation Board in 

refusing to allow electronic signatures to 

support a showing of interest. In 

opposition to these comments, the AFL– 

CIO (AFL–CIO II), SEIU II, and 

Velazquez II counter that electronic 

signatures are easily verifiable and 

commonly used in governmental and 

commercial dealings. In fact, more tools 

are available to confirm the authenticity 

of electronic signatures than are 

available to confirm physical signatures. 

At this point, the weight of evidence 

appears to agree with the AFL–CIO, 

SEIU, and Velazquez. ‘‘State 

governments, industry, and private 

citizens have already embraced the 

electronic medium to conduct public 

and private business.’’ S. Rep. No. 105– 

335. And since the adoption of GPEA 

and E–SIGN, Federal agencies, 

including the Board, have also accepted 

electronic signatures and electronic 

forms.96 Electronic signatures can ‘‘offer 

greater assurances that documents are 

authentic and unaltered. They minimize 

the chances of forgeries or people 

claiming to have had their signatures 

forged.’’ S. Rep. No. 105–335; see also 

OMB Guidance, 65 FR at 25516. There 

are numerous forms that electronic 

signatures can take, each providing 

additional methods to ensure the 

authenticity of the signature. See, e.g., S. 

Rep. No. 105–335; OMB Guidance, 65 

FR at 25518–25520. And the technology 

that makes electronic signatures 

possible continues to evolve and 

become ever-more sophisticated, 

providing even more safeguards. 

Some comments claim that the use of 

electronic signatures to support a 

showing of interest could encourage 

petitioner misconduct. Seyfarth Shaw 

contends that electronic signatures 

present a greater risk of fraud than 

handwritten signatures because they do 

not create any physical evidence of 

signing. Several comments allege that 

the use of electronic signatures could 

lead to deceptive practices by 

petitioners, such as hiding authorization 

agreements within seemingly innocuous 

Web site content.97 PIA likewise argues 

that employees might have to rely on 

the petitioner to instruct them in the use 

of electronic signatures, creating the 

possibility of undue influence and 

coercion. But other comments counter 

that electronic signatures would 

actually reduce incidents of 

intimidation due to lack of personal 

solicitation.98

As stated above, we believe that costeffective methods may exist to ensure 

that electronic signatures are authentic, 


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99AHA (AHA II); Georgia Mining Association; 

Con-way; Testimony of Torres II. 

100NCISS II; AEM II. 

101Americans for Limited Government (ALG); 

Labor Relations Institute, Inc. (LRI); PIA; Georgia 

Mining Association; CAST–FAB Technologies, Inc. 

II; U.S. Poultry II; NAM II. 

102See Excelsior Underwear, Inc., 156 NLRB 

1236, 1236 (1966) (establishing requirement that 

employers must file a list of the names and 

addresses of all eligible voters with the regional 

director within 7 days after a Board election has 

been approved by the regional director or directed; 

the regional director then makes the information 

available to all parties in the case). 

103As noted below in connection with §§ 102.63 

and 102.67, the final rule retitles the proposed 

‘‘Final Notice to Employees of Election’’ as the 

‘‘Notice of Election.’’ 

104Casehandling Manual Section 11084. 

105The current rules governing Board review of 

regional directors’ dispositions of post-election 

disputes appear on their face to provide for both 

mandatory and discretionary review depending on 

how the regional office processes the case. See 29 

CFR 102.69(c)(3) and (4). 

and electronic signature technology may 

provide more methods to authenticate 

and ensure the validity of the signature 

as compared to handwritten signatures. 

Further, the Board already has internal 

administrative processes to deal with 

allegations of fraud and 

misrepresentation regarding manually 

signed authorization cards and 

petitions. See Casehandling Manual 

Sections 11028–11029. We expect that 

the General Counsel will evaluate 

whether the Board could employ these 

or similar processes in connection with 

electronic signatures. 

A few comments argue that the lack 

of reliability of electronic signatures and 

the accompanying prospect of petitioner 

misconduct will lead to more preelection challenges to the validity of 

petitions, creating a greater burden on 

agency resources, and running counter 

to the goal of eliminating delay.99

Constangy, Brooks & Smith, LLP 

(Constangy) contends that the use of 

electronic signatures would no longer 

allow the Board to verify authorizations 

by simply comparing employee 

signatures to those on handwritten 

cards. Rather, Constangy argues that the 

Board would have to allow parties to 

present testimony to challenge or 

support contested signatures. Torres 

argues that, if the Board starts to look 

underneath the process of obtaining 

electronic signatures, employers should 

also be able to examine and, if 

necessary, challenge the showing of 

interest. Testimony of Torres on behalf 

of Winston & Strawn II. UFCW (UFCW 

II) disagrees, proposing that the Board 

could verify the authenticity of a 

showing of interest merely by checking 

a random sample of individual 

signatures, as is a current practice. As 

noted, the Board already has processes 

in place for resolving allegations of 

fraud or misrepresentation in 

connection with showing of interest 

evidence which the rule does not 

change and which might be effectively 

utilized to verify electronic signatures. 

For the reasons discussed above, we 

are not persuaded that the Board’s 

current or similar administrative 

procedures would necessarily be 

inadequate to the task of ensuring that 

there is a sufficient showing of interest 

to warrant conducting an election. The 

General Counsel should consider the 

matter and determine whether 

electronic signatures can practicably be 

accepted without such a fundamental 

change to the Board’s procedures as 

those suggested in the comments. 

A few comments address the practical 

problems with permitting electronically 

signed authorization cards. Some of 

these comments are concerned that a 

petitioner could gather electronic 

signatures through the employer’s own 

computer system, thereby disrupting 

work and opening the employer to 

allegations of unlawful surveillance.100

Some of these comments further 

maintain that the use of handwritten 

authorization cards already leads to 

confusion among employees, and that 

allowing electronic signatures would 

exacerbate these problems.101 One 

comment observes that it would be 

difficult for the Board to impose a 

unified system of gathering electronic 

signatures, and thereby ensure the 

reliability of those signatures, given the 

number and diversity of petitioning 

parties. Testimony of Torres on behalf of 

Winston & Strawn II. 

We are doubtful that the use of 

electronic signatures will present the 

practical problems raised in these 

comments. We see no reason why 

electronic authorization cards would 

create a greater disruption to an 

employer’s operations or subject an 

employer to charges of surveillance to a 

greater extent than would the 

transmission of other information 

relating to union or protected concerted 

activity. Regarding Torres’s argument 

that electronic signatures would be 

impracticable to administer, we ask the 

General Counsel to examine the issue 

and, if administration is practicable, 

issue guidance. 

Based on our review of our current 

Rules and Regulations, Congressional 

policy, and the comments, we conclude, 

as a matter of policy, that the Board 

should, when practicable, accept 

electronic signatures to support a 

showing of interest. Our current rules 

do not prohibit the acceptance of 

electronic signatures, and so no change 

in our rules is necessary to effectuate 

this policy conclusion. The General 

Counsel shall promptly determine 

whether, when, and how electronic 

signatures can practicably be accepted 

and shall issue guidance on the matter. 

In making these decisions, we 

encourage the General Counsel to follow 

the framework outlined in the OMB 

Guidance. 

Sec. 102.62 Election Agreements; 

Voter List; Notice of Election 

A. Election Agreements and Board 

Resolution of Post-Election Disputes 

In the NPRM, the Board proposed a 

number of amendments to § 102.62. The 

amendments were intended to clarify 

the terms used to describe the three 

types of pre-election agreements, to 

eliminate mandatory Board resolution of 

post-election disputes under a 

stipulated election agreement, to codify 

the requirement of the Excelsior list and 

to alter the content and timing of its 

provision to the nonemployer parties to 

the case,102 and to alter the means of 

transmittal of the notice of election. The 

Board has decided at this time to adopt 

the proposed amendments to § 102.62 

clarifying the terms used to describe 

pre-election agreements and eliminating 

mandatory Board resolution of postelection disputes under a stipulated 

election agreement. The Board has also 

decided to adopt the proposed 

amendments concerning the Excelsior 

list and the notice of election 103 with 

the modifications described in the 

discussion of the voter list below. 

The final rule’s amendments to 

§ 102.62(b) revise the contents of the 

stipulated election agreement. The 

revision eliminates parties’ ability to 

agree to have post-election disputes 

resolved by the Board. The amendments 

provide instead that, if the parties enter 

into what is commonly referred to as a 

‘‘stipulated election agreement,’’ 104 the 

regional director will resolve any postelection disputes subject to 

discretionary Board review. This 

procedure is consistent with the 

changes to § 102.69 described below 

making all Board review of regional 

directors’ dispositions of post-election 

disputes discretionary in cases where 

parties have not addressed the matter in 

a pre-election agreement.105

As explained in the NPRM, the 

amendment makes the process for 

obtaining Board review of regional 


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106For example, in FY 2013, parties appealed to 

the Board in only one third of the 98 total cases 

involving regional post-election decisions 

concerning objections or determinative challenges, 

and the Board reversed the regional decision to set 

aside or uphold election results in only 3 cases. 

107See, e.g., C& G Heating, 356 NLRB No. 133, 

slip op. at 1 (2011). 

108See, e.g., Ruan Transport Corp., 13–RC–21909 

(Nov. 30, 2010) (resolving intent of voter who 

marked an X in two boxes on ballot but ‘‘nearly 

obliterated’’ one of them with pen markings in lieu 

of erasure); Multiband, Inc., 2011 WL 5101459, slip 

op. at n.2 (Oct. 26, 2011) (credibility). 

109See Stretch-Tex Co., 118 NLRB 1359, 1361 

(1957). 

110See, e.g., Care Enterprises, 306 NLRB 491 n.2 

(1992). 

111See, e.g., CEVA Logistics U.S., Inc., 357 NLRB 

No. 60, slip op. at 1–2 (2011) (consequences of 

regional delay in forwarding Excelsior list). 

112See, e.g., 1621 Route 22 West Operating Co., 

LLC d/b/a Somerset Valley Rehabilitation & Nursing 

Ctr., 357 NLRB No. 71, slip op. at 1–2 (2011); Ace 

Car & Limousine Service, Inc., 357 NLRB No. 43, 

slip op. at 1–2 (2011). 

113 Mental Health Ass’n, Inc., 356 NLRB No. 151, 

slip op. at n.4 (2011) (whether employer’s particular 

statements about bonuses constituted objectionable 

promise of benefit); G&K Services, Inc., 357 NLRB 

No. 109, slip op. at 2–4 (2011) (whether employer’s 

letter about health coverage constituted 

objectionable promise of benefit). 

114See current § 102.67(c) (discussing compelling 

reasons necessary for a grant of review, including 

the presentation of a substantial question of law or 

policy, a clearly erroneous regional director 

decision on a substantial factual issue prejudicing 

a party, conduct of the hearing prejudicing a party, 

or compelling reasons to reconsider an important 

Board rule or policy). 

115See Chamber; SHRM; CDW; COLLE; NAM II; 

AHA II; Testimony of Curt Kirshner on behalf of 

AHA II. 

116See, e.g, SHRM and Chamber. 

117See, e.g., Dassault Falcon Jet. 

118See, e.g., SHRM and NAM, NAM II. 

directors’ dispositions of post-election 

disputes parallel to that for obtaining 

Board review of regional directors’ 

dispositions of pre-election disputes. 

The Board perceived no reason why preand post-election dispositions should be 

treated differently in this regard, and the 

comments on this proposal offered no 

convincing reason. 

The Board affirms the vast majority of 

post-election decisions made at the 

regional level, and many present no 

issue meriting full consideration by the 

Board.106 In some cases, for example, 

parties seek review of post-election 

decisions based on mere formulaic 

assertions of error below and without 

pointing to any facts or law in 

dispute.107 Review as of right should 

not be granted in those situations. 

Others cases present only 

circumscribed, purely factual issues.108

Given the highly deferential standard 

that the Board employs in reviewing a 

hearing officer’s post-election credibility 

findings,109 it is reasonable for the 

Board to require the party seeking 

review of such a finding to justify that 

review by showing that the standard for 

obtaining discretionary review is 

satisfied. There are other cases in which 

the regional director assumes the facts 

asserted by the objecting party but finds 

that no objectionable conduct 

occurred,110 or where there is no 

dispute about the facts at all.111 A 

discretionary system of review will 

provide parties with a full opportunity 

to contest those determinations. 

Another group of cases represent 

parties’ efforts to seek reconsideration, 

extension, or novel application of 

existing Board law,112 and there is 

equally no reason why a discretionary 

system of review will not fully provide 

that opportunity. Still other cases 

simply involve the application of wellsettled law to very specific facts.113 In 

short, for a variety of reasons, a 

substantial percentage of Board 

decisions in post-election proceedings 

are unlikely to be of precedential value 

because no significant question of 

policy is at issue. The final rule requires 

the party seeking review to identify a 

significant, prejudicial error by the 

regional director or some other 

compelling reason for Board review, just 

as the current rules require a party to do 

when seeking Board review of a regional 

director’s pre-election decision.114

In addition, the final rule will enable 

the Board to devote its limited time to 

cases of particular significance. This 

should constitute a significant time 

savings considering the inefficiency 

involved in having the multi-member 

Board engage in a de novo review of the 

entire record before disposing of a postelection case on exceptions from a 

hearing officer’s report. Indeed, when 

post-election cases have come before the 

Board over the past 3 years, the median 

time for the Board to resolve them has 

ranged from 94.5 days to 127 days. In 

comparison, the median time it has 

taken regional directors to issue preelection decisions has been 20 days, and 

the median time for the Board’s action 

to grant or deny review regarding these 

decisions under the same request for 

review standard maintained in the final 

rule has been only 12 to 14 days over 

the same 3-year period. Under the new 

rules, it will be possible to have similar 

efficiency in regional and Board 

processing of post-election decisions. 

This will save time and resources, both 

public and private, and bring finality to 

representation proceedings in a more 

timely manner. 

Based on all of the considerations 

listed above, the Board concludes that 

making review of regional directors’ 

post-election decisions available on a 

discretionary basis, as is currently the 

case with pre-election review and some 

post-election review, will assist the 

Board in fulfilling its statutory mandate 

to promptly resolve questions 

concerning representation. 

Several comments argue that if the 

Board were to adopt these amendments, 

it would be abdicating its statutory 

responsibility and function.115 For 

example, SHRM and NAM argue that 

only Board members, because they are 

appointed by the President and 

confirmed by the Senate, can make final 

decisions about these matters and that 

the regional directors, who are career 

civil servants, lack comparable authority 

and political legitimacy. The Chamber II 

also argues that this proposal will make 

it possible for elections to be conducted 

without Board review of any regional 

action or decision, contrary to Section 

3(b) of the Act. Others state that denying 

aggrieved parties the right to appeal 

adverse determinations to the Board 

undermines due process protections.116

NAM contends that the Board is 

required to review conduct affecting 

election outcomes in order to safeguard 

employees’ Section 7 rights. Similarly, 

other comments argue that conduct that 

could be the basis for setting aside an 

election goes to the essence of employee 

free choice and deserves de novo Board 

review.117 Still other comments contend 

that, although Section 3(b) of the Act 

permits Board delegation to the regional 

directors of decisions pertaining to 

representation issues, those decisions 

must be reviewed by the Board upon 

request.118

Section 3(b) of the NLRA does not 

support the conclusion expressed in 

those comments. Section 3(b) provides 

in 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 therefore 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). 

Since Congress adopted this provision 

in 1959 and the Board exercised its 

authority to delegate these functions to 

its regional directors in 1961, the 

Board’s rules have provided that 

regional directors’ dispositions of preelection disputes are subject only to 

discretionary Board review even though 

a failure to request review pre-election 

or a denial of review precludes a party 

from raising the matter with the Board 

post-election. 29 CFR 102.67(b) and (f). 


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119Moreover, even under the current rules, 

specifically § 102.69(c)(4), if the regional director 

issues a decision concerning challenges or 

objections instead of a report in cases involving 

directed elections, an aggrieved party’s only 

recourse is a request for review. Thus, the 

comments’ objections apply to the current 

regulations as well as to the final rule. 

120See also St. Margaret Memorial Hosp. v. NLRB, 

991 F.2d 1146, 1154 (3d Cir. 1993); Beth Israel 

Hosp. and Geriatric Ctr. v. NLRB, 688 F.2d 697, 

700–01 (10th Cir. 1982) (en banc); Transportation 

Enterprises, Inc. v. NLRB, 630 F.2d 421, 426 (5th 

Cir. 1980) (finding that ‘‘decisions rendered by the 

regional offices of the NLRB which are not reviewed 

by the Board, for whatever reasons, are entitled to 

the same weight and deference as Board decisions, 

and will be given such unless and until the Board 

acts in a dispositive manner.’’). 

121See, AHA II. 

122See, RILA II. 

123For instance, in FY 13, the Board published 

only five of the decisions it issued on post election 

exceptions. 124Nor would the Board agree that a discretionary 

review process infringes on parties’ due process 

rights. Constitutional due process requires only one 

fair hearing and does not require an opportunity to 

appeal. The Supreme Court has so held even with 

respect to criminal cases. See Evitts v. Lucey, 469 

U.S. 387, 393 (1985) (‘‘Almost a century ago, the 

Court held that the Constitution does not require 

States to grant appeals as of right to criminal 

defendants seeking to review alleged trial court 

errors. McKane v. Durston, 153 U.S. 684 . . . 

(1894).’’). 

Notably, none of the comments suggests 

that the current rules as to pre-election 

disputes violate Section 3(b) or are 

otherwise improper.119

In fact, the Supreme Court has upheld 

the Board’s decision not to provide 

parties with a right to Board review of 

regional director’s pre-election 

determinations, in a holding that clearly 

permits the Board to adopt the final 

rule’s amendments concerning postelection review. In Magnesium Casting 

Co. v. NLRB, 401 U.S. 137 (1971), the 

employer filed a request for review of 

the regional director’s decision and 

direction of election holding that certain 

individuals were properly included in 

the unit. The Board denied the petition 

on the ground that it did not raise 

substantial issues. In the subsequent 

‘‘technical 8(a)(5)’’ unfair labor practice 

proceeding, the employer asserted that 

‘‘plenary review by the Board of the 

regional director’s unit determination is 

necessary at some point,’’ i.e., before the 

Board finds that the employer 

committed an unfair labor practice 

based on the employer’s refusal to 

bargain with the union certified as the 

employees’ representative in the 

representation proceeding. 401 U.S. at 

140–41. However, the Court rejected the 

contention that Section 3(b) requires the 

Board to review regional directors’ 

determinations before they become final 

and binding. Citing Congress’s 

authorization of the Board to delegate 

decision-making in this area to its 

regional directors and the use of the 

clearly permissive word ‘‘may’’ in the 

clause describing the possibility of 

Board review, the Court held, ‘‘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.’’ Id. at 142. Consistent with 

the purpose of the final rule here, the 

Supreme Court quoted Senator 

Goldwater, a Conference Committee 

member, explaining that Section 3(b)’s 

authorization of the Board’s delegation 

of its decision-making authority to the 

regional directors was to ‘‘expedite final 

disposition of cases by the Board, by 

turning over part of its caseload to its 

regional directors for final 

determination.’’ Id. at 141 (citing 105 

Cong. Rec. 19770). And undermining 

the comments’ suggestion that regional 

directors lack authority, status, or 

expertise to render final decisions in 

this area, the Court further explained 

that the enactment of section 3(b) 

‘‘reflect[s] the considered judgment of 

Congress that the regional directors have 

an expertise concerning unit 

determinations.’’ Id.120

The Board concludes that the 

language of Section 3(b), its legislative 

history, and the Supreme Court’s 

decision in Magnesium Casting are 

dispositive of the statutory objections to 

the proposed amendment. 

Some comments suggest that 

providing only discretionary review of 

regional directors’ decisions will 

undermine the uniformity of election 

jurisprudence, with different regional 

directors issuing divergent opinions in 

similar cases and under similar 

circumstances. The comments contend 

that if those decisions are not reviewed 

by the Board as a matter of right, there 

is a risk that the regional office in which 

the employer’s operations reside, rather 

than the merits of the parties’ positions, 

will govern how the dispute is resolved. 

For example, Bluegrass Institute 

contends that discretionary Board 

review will result in less uniformity, the 

denial of due process, and diminished 

legitimacy in election processes. Other 

comments argue that discretionary post 

election review will result in unchecked 

regional errors 121 and slow the 

development of binding and 

authoritative precedent.122 The Board 

disagrees. 

Since 1961, regional directors have 

made pre-election determinations, and 

their decisions have been subject to only 

discretionary review through the request 

for review procedure. The same has 

been true of post-election 

determinations processed under 

§ 102.69(c)(3)(ii). There is no indication 

that the quality of decision-making has 

been compromised by this procedure or 

that regional directors have reached 

inconsistent conclusions. Under the 

final rule, the same review process will 

apply to all cases involving postelection objections and challenges 

except where they are consolidated with 

unfair labor practice allegations before 

an administrative law judge. As it has 

done for over 50 years in respect to preelection disputes, the Board will 

scrutinize regional directors’ postelection decisions where proper 

requests for review are filed. 

One purpose of that review will be to 

determine if there is an ‘‘absence of’’ or 

‘‘a departure from, officially reported 

Board precedent,’’ i.e., to ensure 

uniformity via adherence to Board 

precedent. See 29 CFR 102.67(c)(1). 

Accordingly, the final rule provides 

parties with an opportunity to appeal 

regional decisions that are inconsistent 

with precedent or which contain facts 

that are clearly erroneous and 

prejudicial under a discretionary 

standard. The parties may also utilize 

this discretionary review process if 

there are substantial questions of law or 

policy or compelling reasons for 

reconsidering a Board rule or policy. 

For these reasons, the Board does not 

believe that the final rule will lead to 

lack of uniformity or quality in 

decisions or adversely affect the 

development of the law. In fact, the 

discretionary standard enables the 

Board to better focus its resources and 

attention on those cases that are legally 

or factually significant and have greater 

impact on parties and/or the 

development of law and policy. And, 

since most of the Board’s post election 

decisions under the existing standard of 

mandatory review are not published and 

have no precedential value,123 this 

proposed change is not likely to have a 

significant adverse impact on the 

precedential value of post election 

decisions.124

A few comments question the 

competence of regional personnel. For 

example, COLLE argues that ‘‘Regional 

Directors can be dictatorial and 

imprudent to the rights of private 

parties in disputes before them’’ and 

‘‘can exhibit irrational and unfair 

behavior and deprive parties of their 

rights to go to hearing and litigate 

legitimate issues under the Act.’’ Other 

comments contend that because hearing 

officers report directly to regional 

directors, appeal to the regional 

directors does not constitute meaningful 

review. 


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125The Board also notes that regional directors 

make decisions concerning whether to prosecute 

charges of unfair labor practices under the Act, and 

those prosecutorial decisions often involve 

questions of employee status and questions of 

whether certain conduct is unlawful, both of which 

often parallel questions that arise in post-election 

representation proceedings. The courts have 

recognized that regional directors have expertise in 

determining what constitutes objectionable 

conduct. See, e.g., NLRB v. Chicago Tribune Co., 

943 F.2d 791, 794 (7th Cir. 1991), cert. denied, 504 

U.S. 955 (1992). 

126See Chamber; Chamber II; AHA; CDW; Baker 

& McKenzie; Testimony of Curt Kirshner on behalf 

of AHA II. 

127See, e.g., Chamber II. Constangy contends that 

an employer entering into a stipulation will lose 

any rights to appeal pre-election unit issues and 

that this will have a negative effect on the Board’s 

stipulation rate. The Board notes, however, that 

under current procedures, parties who enter into 

stipulated election agreements, by definition, agree 

about pre-election issues, and therefore waive any 

right to bring pre-election issues to the Board. Thus, 

the final rule does not change that aspect of 

stipulated election agreements. 

The Board’s experience in reviewing 

the work of and supervising its regional 

directors gives no credence to these 

comments. Moreover, Congress 

expressed confidence in the regional 

directors’ abilities when it enacted 

Section 3(b). As one comment in favor 

of the rule (Professor Joel CutcherGershenfeld) noted, empowering 

regional directors to make final postelection rulings, as they now do in 

respect to pre-election matters, locates 

decisions with the individuals who 

have the greatest knowledge about and 

experience with representation case 

procedures.125 Similarly, the Chamber 

(Chamber II), although it generally 

opposes the proposals, notes the 

‘‘professionalism, experience and 

integrity’’ of the regional directors and 

their staffs. Rather than detracting from 

their authority and legitimacy, the 

Board concludes that the regional 

directors’ career status ensures their 

neutrality and, in almost all cases, their 

extended service at the Board and thus 

extensive experience with and 

knowledge about representation case 

procedures and rules. 

ALFA argues that regional directors 

tend to uphold election results, and 

therefore a right to Board review should 

be retained if the Board wishes to 

discourage litigation via refusals to 

bargain. As noted above, the Board 

rejects the suggestions that regional 

directors are systematically biased in 

this or any other way, and repeats that 

it will scrutinize regional directors’ 

decisions when proper requests for 

review are filed. 

Some comments contend that, if the 

proposals are adopted, employers will 

increasingly refuse to bargain with 

newly certified representatives in order 

to obtain judicial review of regional 

directors’ determinations.126 This 

argument is, at best, highly speculative. 

There is no evidence that this happened 

after the Board delegated adjudication of 

pre-election disputes to its regional 

directors in 1961 subject to only 

discretionary review by the Board, and 

the Board can see no reason why an 

increase in refusals to bargain would be 

more likely if Board review of postelection decisions is similarly made 

discretionary. The Board does not 

believe that judicial review through 

technical refusal to bargain litigation 

will be more frequent when the Board 

denies review of a regional director’s 

post-election decision than it is when 

the Board summarily affirms the same 

regional decision, as it often does now. 

See, e.g., The Pepsi Cola Bottling 

Company, 9–RC–110313 (Sept. 18, 

2013); King Soopers, 27–RC–104452 

(Sept. 13, 2013); Geralex Inc., 13–RC– 

106888 (Sept. 12, 2013). 

Several comments argue that the rule 

is contrary to the preferences of both 

employers and unions, as shown by the 

high rate of stipulated election 

agreements—providing for adjudication 

of post-election disputes by the Board— 

and the comparative rarity of consent 

election agreements—providing for a 

final decision by the regional director. 

AHA (AHA II), SHRM, and ACE 

contend that parties prefer this form of 

pre-election agreement because it 

provides for Board disposition of postelection issues. As a corollary to this 

argument, some comments argue that 

eliminating automatic Board review will 

result in fewer pre-election agreements 

and thus more litigation.127

The Board believes for several reasons 

that the final rule will not create a 

disincentive for parties to enter into 

consent or stipulated election 

agreements. The final rule makes postelection Board review discretionary 

whether the parties enter into a 

stipulated election agreement or 

proceed to a hearing resulting in a 

decision and direction of election. Thus, 

parties who prefer Board review of postelection disputes will have no incentive 

to litigate pre-election issues in order to 

gain such review. The Board believes 

that if parties genuinely prefer 

agreements that permit Board review, 

they will continue to enter into 

stipulated rather than consent election 

agreements in order to preserve their 

right to seek such review. Whether 

parties enter into any pre-election 

agreement or litigate disputes at a preelection hearing under the final rule 

will depend on the same calculus that 

it does at present: the likelihood of 

success, the importance of the issue, 

and the cost of litigation. In addition to 

avoiding the time, expense and risk 

associated with a pre-election hearing, 

parties also gain certainty with respect 

to the unit description and the election 

date by entering into a stipulated 

election agreement. In short, parties will 

continue to have ample reason to enter 

into stipulated election agreements 

under the final rule, even though the 

final rule makes Board review of 

regional directors’ dispositions of postelection disputes discretionary. 

Some comments, such as that of 

Sheppard Mullin II, express confusion 

about the rule and the request-forreview procedure. The grounds for 

granting a request for review under 

§ 102.69(c)(2) (referencing § 102.67(d)) 

of the final rule are nearly identical to 

the grounds set forth in § 102.67(c) of 

the existing rules. The Board will 

continue to review cases involving 

issues of ‘‘first impression’’ or where 

there is ‘‘conflicting or unsettled’’ law in 

the same manner that it currently does 

under the pre-election request-forreview procedure. The Board is not 

aware of any concerns about the way it 

has evaluated requests for review in 

representation proceedings, and does 

not anticipate any in the future. 

One comment questions whether ‘‘the 

denial of review’’ is subject to appeal to 

the Federal courts. Orders in 

representation cases are not final orders 

for purposes of judicial review. Rather, 

an employer must refuse to bargain and 

commit a ‘‘technical 8(a)(5)’’ violation to 

secure court review of the Board’s 

representation decisions. See 29 U.S.C. 

159(d); Boire v. Greyhound Corp., 376 

U.S. 473, 476–79 (1964). Under the 

current rules, if an employer refuses to 

bargain, it may obtain review of a 

regional director’s pre-election rulings 

even if the Board denied review thereof, 

and the same will be true of postelection rulings under the final rule. 

Thus, there are no open questions about 

the Board’s discretionary review process 

that will undermine confidence in its 

decisional processes. 

Similarly, comments misinterpret the 

rule with respect to how regional 

decisions will be reviewed and how that 

review will affect the law. The final rule 

simply makes post-election dispositions 

reviewable under a discretionary 

standard, rather than as of right. The 

Board’s rulings on post-election requests 

for review will be public and will be 

published on the Board’s Web site, as 

will the underlying regional directors’ 

decisions, just as rulings on pre-election 

requests for review are now. Thus, the 

public and labor law community will 

have full access to the Board’s rulings. 


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128Some of the comments concerning the voter 

list also generally implicate the Statement of 

Position Form proposal. 

129 In addition, this information will facilitate 

both the fair and free choice of bargaining 

representatives and the expeditious resolution of 

questions of representation by permitting the 

parties to more efficiently investigate post-election 

objections and other Board proceedings, such as 

unfair labor practice charges, arising out of the 

election. 

130 Given that employers will have responsibility 

for service of the voter list on nonemployer parties, 

the final rule includes a requirement that the 

employer file with the regional director a certificate 

of service on all parties when the voter list is filed. 

The final rule also uses the same ‘‘whenever proper 

and timely objections are filed under the provisions 

of § 102.69(a)’’ language in describing the 

consequences for failure to comply with the voter 

list amendments that § 103.20 of the prior rules 

used in describing the consequences for failure to 

comply with the obligation to post what was 

previously called the Board’s ‘‘official Notice of 

Election.’’ Further, the rule adds language to 

102.62(d) and 102.67(l) (similar to that which had 

been proposed in 102.76(i) regarding the posting of 

Continued 

In sum, the amendments to 

§ 102.62(b) conform the review 

provisions of the stipulated election 

agreement to the amended review 

provisions for directed elections. Parties 

should not be entitled to greater postelection Board review simply by virtue 

of the fact that there are no pre-election 

disputes. Under the final rule, all Board 

review of regional directors’ 

dispositions of challenges and 

objections will be discretionary under 

the existing request-for-review 

procedure. 

B. Voter List 

In Excelsior Underwear, Inc., 156 

NLRB 1236, 1239–40 (1966), the Board 

established the requirement that, 7 days 

after approval of an election agreement 

or issuance of a decision and direction 

of election, the employer must file an 

election eligibility list—containing the 

names and home addresses of all 

eligible voters—with the regional 

director, who in turn makes the list 

available to all parties. Failure to 

comply with the requirement 

constitutes grounds for setting aside the 

election whenever proper objections are 

filed. Id. at 1240. 

Numerous comments address the 

Board’s multi-part proposal in the 

NPRM (in § 102.62 as well as in 

§ 102.67(l)) to codify and revise the 

Excelsior requirement, which was 

approved by the Supreme Court in 

NLRB v. Wyman-Gordon Co., 394 U.S. 

759, 767–68 (1969).128 The proposed 

revisions to the Excelsior requirement 

were intended to better advance the two 

objectives articulated by the Board in 

Excelsior: (1) Ensuring the fair and free 

choice of bargaining representatives by 

maximizing the likelihood that all the 

voters will be exposed to the 

nonemployer party arguments 

concerning representation; and (2) 

facilitating the public interest in the 

expeditious resolution of questions of 

representation by enabling the parties 

on the ballot to avoid having to 

challenge voters based solely on lack of 

knowledge as to the voter’s identity. 

Excelsior, 156 NLRB at 1240–41, 1242– 

43, 1246.129

Specifically, the Board proposed that 

the employer be required to furnish to 

the other parties and the regional 

director not just the eligible voters’ 

names and home addresses, but also 

their available email addresses and 

telephone numbers as well as their work 

locations, shifts, and job classifications. 

In addition, the Board proposed to 

shorten the time for production of the 

voter list from the current 7 days to 2 

work days, absent agreement of the 

parties to the contrary or extraordinary 

circumstances specified in the direction 

of election. The Board also proposed 

that the voter list be provided in an 

electronic format generally approved by 

the Board’s Executive Secretary unless 

the employer certifies that it does not 

possess the capacity to produce the list 

in the required form, and that the 

employer serve the voter list on the 

other parties electronically at the same 

time the employer files the list with the 

regional director. In order to be timely 

filed, the list would have to be received 

by the other parties and the regional 

director within 2 work days after 

approval of the election agreement or 

issuance of the direction of election. 

The NPRM also proposed that failure to 

file or serve the list and related 

information within the specified time 

and in the proper format would be 

grounds for setting aside the election 

whenever proper objections are filed. 

Finally, the Board proposed a restriction 

on the use of the voter list, barring 

parties from using it for any purposes 

other than the representation 

proceeding and related proceedings, and 

sought comments regarding what, if any, 

the appropriate remedy should be for a 

party’s noncompliance with the 

restriction. 

Comments attacking the proposal 

criticize the information required to be 

disclosed, the format of the information 

to be disclosed, the time period for its 

production, and the proposed restriction 

language. Comments praising the 

proposal claim the proposal would 

better serve the twin purposes of the 

original Excelsior list requirement and 

help the Board to expeditiously resolve 

questions of representation. Positive 

comments further claim that the 

proposal would merely update the old 

disclosure requirement to reflect present 

day realities regarding how people and 

institutions communicate with one 

another and exchange information. 

Other comments suggest that the Board 

should require the employer to furnish 

a broader array of contact information 

than proposed in the NPRM, and that 

the contact information should be 

provided earlier in the process—before 

the parties enter into an election 

agreement (or the regional director 

directs an election). 

After careful consideration of the 

comments, the Board has decided to 

largely adopt the proposals with certain 

changes, as outlined below: 

(1) The final rule clarifies that in the 

event that the parties agree that 

individuals in certain classifications or 

other groupings should be permitted to 

vote subject to challenge, or the regional 

director directs that individuals in 

certain classifications or other groupings 

be permitted to vote subject to 

challenge, the employer shall provide 

the information about such individuals 

in a separate section of the voter list. 

(2) The final rule does not require 

employers to furnish the other parties or 

the regional director with the work 

email addresses and work phone 

numbers of the eligible voters and the 

work email addresses and work phone 

numbers of those individuals whom the 

parties have agreed may vote subject to 

challenge (or whom the regional 

director has directed be permitted to 

vote subject to challenge). However, the 

final rule clarifies that the Board retains 

discretion to require through future 

adjudication or rulemaking that 

additional forms of contact information 

be included on the list. 

(3) The final rule clarifies that the 

Board’s General Counsel, rather than the 

Board’s Executive Secretary, will be the 

official with whom the authority will 

reside to specify the acceptable 

electronic format of the voter list. 

(4) The final rule clarifies that the 

employer has 2 business days, rather 

than 2 calendar days, after the regional 

director approves the parties’ election 

agreement or issues a direction of 

election to furnish the list to the 

nonemployer parties to the case and the 

regional director. Although the NPRM 

had proposed that the regional director 

would make the voter list available to 

the nonemployer parties upon request, 

that language has not been incorporated 

into the final rule due to the Board’s 

judgment that it is unnecessary since 

the rule requires direct service of the 

voter list from the employer to the 

nonemployer parties.130


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the proposed final notice of election) to clarify that 

employers will be ‘‘estopped from objecting to the 

failure to file or serve the list within the specified 

time or in the proper format’’ if the employers are 

responsible for the failure. 

131The final rule also conforms the election 

notice provisions in § 102.62(e) to the election 

notice provisions that are discussed in relation to 

§§ 102.67(b),(k). Thus, for example, the text of 

amended § 102.62(e) explicitly provides, just as the 

text of amended § 102.67(k) explicitly provides, that 

‘‘The employer’s failure properly to post or 

distribute the election notices as required herein 

shall be grounds for setting aside the election 

whenever proper and timely objections are filed 

under the provisions of § 102.69(a).’’ 

132See, e.g., SHRM; ALFA; COLLE. 

133For other comments to this effect, see, e.g., 

NAM II; Sheppard-Mullin II; RILA. 

134See, e.g., ACC; AGC; Indiana Chamber; ABC; 

Sheppard Mullin II; Mrs. Octavia Chaves II. 

135 In this case, which does not involve a union’s 

use of an Excelsior list, the Sixth Circuit denied 

Pulte’s motion for a preliminary injunction, but 

reversed the district court’s dismissal of Pulte’s 

claims against the Laborers union under the 

Computer Fraud and Abuse Act based upon 

allegations that the Laborers intentionally 

transmitted a high volume of email messages and 

phone calls to several Pulte executives and 

managers in retaliation for Pulte’s firing of several 

employees concerning which the Laborers filed 

unfair labor practice charges with the NLRB. 

136See SEIU II; Testimony of Jess Kutch on behalf 

of Coworker.org II. 

137See, e.g., National Association of WholesalerDistributors (NAW) II; AEM II. 

(5) The final rule modifies the 

restriction language to prohibit 

nonemployer parties from using the 

voter list information for purposes other 

than the representation proceeding, 

Board proceedings arising from it, and 

related matters.131

1. Contact and Job Information 

a. Work Email Addresses/Work Phone 

Numbers 

A large number of employer 

comments oppose the voter list 

proposals, particularly to the extent that 

they could be construed as requiring the 

employer to furnish the other parties 

with the work email addresses and work 

phone numbers of its employees.132 For 

example, CDW suggests that the Board’s 

proposal is vague and does not clarify 

whether the rules require production of 

employees’ work phone numbers and 

email addresses for use by the 

nonemployer parties. If the rules would 

so require, then CDW argues that they 

‘‘would be irreconcilable with 

longstanding Board case law’’ on 

solicitation, distribution, and lawful 

access restrictions,133 in addition to 

prompting a huge number of 

surveillance complaints stemming from 

employers’ routine monitoring of 

internal phone and email systems. The 

SEIU disagrees, claiming in reply that 

under the Board’s proposal, employers 

would still be able to maintain nondiscriminatory, restrictive email 

policies, but that given most employers’ 

permissive attitudes toward employees’ 

use of email, it would be highly unlikely 

that many such rules would prevent 

election-related uses of employees’ work 

email by the nonemployer parties. 

Meanwhile, the AFL–CIO (AFL–CIO II) 

contends that the Board should address 

issues surrounding work email through 

the adjudicatory process, and the 

Chamber II in reply—while generally 

opposed to requiring any phone and 

email information on the voter list— 

agrees that it would be more appropriate 

to disclose employees’ personal email 

and phone information than their work 

email and phone information. 

Other comments emphasize the threat 

of harm to employer email and phone 

systems and associated productivity 

concerns that would allegedly flow from 

the disclosure of employees’ work 

contact information to the nonemployer 

parties.134 For example, the 

Employment and Labor Law Committee 

of the Association of Corporate Council 

(ACC), cites the Sixth Circuit’s decision 

in Pulte Homes v. Laborer’s Int’l Union, 

648 F.3d 295 (6th Cir. 2011) 135 as 

evidence of union propensity to misuse 

this information in order to inflict 

economic damage on an employer. 

However, the American Health Care 

Association and the National Center for 

Assisting Living II (AHCA)—which also 

cites Pulte—admits that ‘‘a petitioning 

union might be expected to be more 

solicitous of employees whose votes it 

was seeking in an NLRB election.’’ CDW 

also mentions the threat of malicious 

software and viruses being introduced 

to employer computer systems, but 

SEIU (reply) answers that such threats 

are far-fetched considering that 

‘‘riddling an employee’s computer 

[albeit one owned by the employer] with 

a virus is not likely . . . to encourage 

her to support the union.’’ Furthermore, 

comments point out that email 

providers, such as Google and 

Microsoft, are vigilant about identifying 

malicious attachments, and that many 

employer email systems are protected 

by commercially available software, 

thus minimizing any potential risks to 

employer email systems.136

Still other comments argue that 

because the concerns associated with 

inclusion of work email and work 

phone numbers on the voter list are so 

significant, the Board would be 

breaching its obligation of neutrality in 

the election process if it were to order 

the employer to disclose them to a 

petitioning union.137

After careful consideration of all the 

comments concerning the voter list 

proposals as they relate to work email 

addresses and work phone numbers, the 

Board believes that the issues raised 

require further study, and so the final 

rule does not require the employer to 

furnish the other parties (such as the 

union in an initial organizing context) 

with either the work email addresses or 

work phone numbers of eligible voters. 

If, in the future, the Board decides 

through adjudication or rule-making 

that the inclusion of additional contact 

information on the voter list is 

warranted, then it will be incumbent on 

the Board to address concerns 

appropriately raised at that time. 

However, at this time, we express no 

opinion as to the merits of the various 

concerns raised that are specific to 

including work email addresses or work 

phone numbers on the voter list. 

b. Personal Email Addresses/Personal 

Phone Numbers 

Although the final rule does not 

require the employer to furnish the 

other parties or the regional director 

with the work email addresses and work 

phone numbers of the eligible voters, 

the final rule does require the employer 

to furnish the other parties and the 

regional director with the available 

personal email addresses and available 

home and personal cellular (‘‘cell’’) 

telephone numbers of the eligible voters 

to help advance the principal objectives 

behind the original Excelsior 

requirement. As set forth in the NPRM, 

in elections conducted under Section 9 

of the Act, there is no list of employees 

or potentially eligible voters generally 

available to interested parties other than 

the employer and, typically, an 

incumbent representative. 79 FR 7322. 

The Board addressed this issue in 

Excelsior Underwear, Inc., 156 NLRB 

1236, 1239–40 (1966), where it held: 

[W]ithin 7 days after the Regional Director 

has approved a consent-election agreement 

. . . or after the Regional Director or the 

Board has directed an election . . ., the 

employer must file with the Regional 

Director an election eligibility list, containing 

the names and addresses of all the eligible 

voters. The Regional Director, in turn, shall 

make this information available to all parties 

in the case. Failure to comply with this 

requirement shall be grounds for setting aside 

the election whenever proper objections are 

filed. 

Although several Justices of the 

Supreme Court expressed the view that 

the requirement to produce what has 

become known as an ‘‘Excelsior list’’ 

should have been imposed through 

rulemaking rather than adjudication, the 

Court upheld the substantive 

requirement in NLRB v. Wyman-Gordon 

Co., 394 U.S. 759, 767–68 (1969). 


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138See ‘‘Email vs. snail mail (infographic)’’ (Sept. 

29. 2010), http://royal.pingdom.com/2010/09/29/

email-vs-snail-mail-infographic. 

139Susannah Fox & Lee Rainie, ‘‘The Web at 25 

in the U.S.’’, Pew Research Center (Feb. 27, 2014), 

http://www.pewinternet.org/2014/02/27/the-web-at25-in-the-U–S/. 

140See, e.g., National Nurses Union (NNU); 

Professor Joel Cutcher-Gershenfeld; SEIU-United 

Healthcare Workers—West; Southwest Regional 

Joint Board, Workers United; Testimony of Brenda 

Crawford II; Testimony of Darrin Murray on behalf 

of SEIU II. 

141To be clear, the Board cites J. Picini Flooring 

and related examples simply to demonstrate its 

view of the changing realities of workplace 

communication, and not—as suggested in the 

comments of AHCA—to argue that simply because 

an employer might use a particular mode of 

communication that a union should therefore be 

entitled to use of that same mode as a quid pro quo. 

142 In addition, the rulemaking record reflects that 

employers sometimes use their employees’ personal 

contact information to communicate about 

campaign issues. See United Nurses Associations of 

California/Union of Health Care Professionals 

Continued 

In Excelsior, the Board explained the 

primary rationale for requiring 

production of an eligibility list: 

[W]e regard it as the Board’s function to 

conduct elections in which employees have 

the opportunity to cast their ballots for or 

against representation under circumstances 

that are free not only from interference, 

restraint, or coercion violative of the Act, but 

also free from other elements that prevent or 

impede a free and reasoned choice. Among 

the factors that undoubtedly tend to impede 

such a choice is a lack of information with 

respect to one of the choices available. In 

other words, an employee who has had an 

effective opportunity to hear the arguments 

concerning representation is in a better 

position to make a more fully informed and 

reasonable choice . . .. 

As a practical matter, an employer, through 

his possession of employee names and home 

addresses as well as his ability to 

communicate with employees on plant 

premises, is assured of the continuing 

opportunity to inform the entire electorate of 

his views with respect to union 

representation. On the other hand, without a 

list of employee names and addresses, a labor 

organization, whose organizers normally 

have no right of access to plant premises, has 

no method by which it can be certain of 

reaching all the employees with its 

arguments in favor of representation, and, as 

a result, employees are often completely 

unaware of that point of view. This is not, 

of course, to deny the existence of various 

means by which a party might be able to 

communicate with a substantial portion of 

the electorate even without possessing their 

names and addresses. It is rather to say what 

seems to us obvious—that the access of all 

employees to such communications can be 

insured only if all parties have the names and 

addresses of all the voters. In other words, by 

providing all parties with employees’ names 

and addresses, we maximize the likelihood 

that all the voters will be exposed to the 

arguments for, as well as against, union 

representation 

156 NLRB at 1240–41 (footnotes 

omitted). The Supreme Court endorsed 

this rationale in Wyman-Gordon, 394 

U.S. at 767, stating that: 

The disclosure requirement furthers this 

objective [to ensure the fair and free choice 

of bargaining representatives] by encouraging 

an informed employee electorate and by 

allowing unions the right of access to 

employees that management already 

possesses. It is for the Board and not for this 

Court to weigh against this interest the 

asserted interest of employees in avoiding the 

problems that union solicitation may present. 

Since Excelsior was decided almost 50 

years ago, the Board has not 

significantly altered its requirements 

despite transformative changes in 

communications technology, including 

that used in representation election 

campaigns. Fifty years ago, email did 

not exist; and communication by United 

States mail was the norm. For example, 

the union in Excelsior requested a list of 

names and home addresses to answer 

campaign propaganda that the employer 

had mailed to its employees. See 

Excelsior, 156 NLRB at 1246–47. Indeed, 

if a union wanted to reach employees 

with its arguments in favor of 

representation, it frequently resorted to 

the United States mail or visited 

employees at their homes because, as 

the Board recognized in Excelsior, the 

union, unlike the employer, ‘‘normally 

ha[s] no right of access to plant 

premises’’ to communicate with the 

employees. Id. at 1240. However, as 

SEIU points out, in 2010, nearly all 

working adults used email, and indeed, 

39.6 billion emails were being sent 

every day—more than 80 times the 

number of letters being sent through the 

U.S. Postal Service.138 The AFL–CIO II 

cites to a study released during the 2014 

comment period suggesting that up to 

87% of U.S. adults have an email 

address and use the internet.139 Other 

comments likewise assert that the voter 

list requirements should be updated to 

include email addresses in recognition 

of how individuals, employees, 

employers, and institutions now 

communicate with one another.140

The Board believes that the provision 

of only a physical home address no 

longer serves the primary purpose of the 

Excelsior list. Communications 

technology and campaign 

communications have evolved far 

beyond the face-to-face conversation on 

the doorstep imagined by the Board in 

Excelsior. As Justice Kennedy observed 

in Denver Area Educational 

Telecommunications Consortium, Inc. 

v. FTC, 518 U.S. 727, 802–803 (1996) 

(Kennedy, J., dissenting) (internal 

citation omitted): 

Minds are not changed in streets and parks 

as they once were. To an increasing degree, 

the most significant interchanges of ideas and 

shaping of public consciousness occur in 

mass and electronic media. The extent of 

public entitlement to participate in those 

means of communication may be changed as 

technologies change. 

Similarly, in J. Picini Flooring, 356 

NLRB No. 9, slip op. at 2–3 (2010) 

(footnotes omitted), the Board recently 

observed, 

While * * * traditional means of 

communication remain in use, email, 

postings on internal and external websites, 

and other electronic communication tools are 

overtaking, if they have not already 

overtaken, bulletin boards as the primary 

means of communicating a uniform message 

to employees and union members. Electronic 

communications are now the norm in many 

workplaces, and it is reasonable to expect 

that the number of employers communicating 

with their employees through electronic 

methods will continue to increase. Indeed, 

the Board and most other government 

agencies routinely and sometimes 

exclusively rely on electronic posting or 

email to communicate information to their 

employees. In short, ‘‘[t]oday’s workplace is 

becoming increasingly electronic.’’ 141

Moreover, our experience with 

campaigns preceding elections 

conducted under Section 9 of the Act 

indicates that employers are, with 

increasing frequency, using email to 

communicate with employees about the 

vote. See, e.g., Arkema, Inc., 357 NLRB 

No. 103, slip op. at 14 (2011) (employer 

sent an email to employees broadly 

prohibiting ‘‘harassment’’ with respect 

to the upcoming election), enf. denied 

710 F.3d 308 (5th Cir. 2013); Humane 

Society for Seattle, 356 NLRB No. 13, 

slip op. at 3 (2010) (‘‘On September 27, 

the Employer’s CEO, Brenda Barnette, 

sent an email to employees asking that 

they consider whether ACOG was the 

way to make changes at SHS. On 

September 29, HR Director Leader 

emailed employees a link to a thirdparty article regarding ‘KCACC Guild’s’ 

petition and reasons the Guild would be 

bad for SHS.’’); Research Foundation of 

the State University of New York at 

Buffalo, 355 NLRB 950, 958 (2010) (‘‘On 

January 12, Scuto sent the first in a 

series of email’s [sic] to all Employer 

postdoctoral associates concerning the 

Petitioner’s efforts to form a Union at 

the Employer[,]. . . . explaining the 

Employer’s position on unionization 

. . . .’’); Black Entertainment Television, 

2009 WL 1574462, at *1 (NLRB Div. of 

Judges June 5, 2009) (employer notified 

several employees by email to attend a 

meeting in which senior vice-president 

spoke one-on-one with the employees 

regarding the election scheduled for the 

following day).142


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(UNAC/UHCP) II and testimony of Brenda Crawford 

II (describing an employer sending text message 

blasts to employees’ personal cell phones as part of 

its election campaign). 

143For example, Board caselaw provides 

examples of campaigns in which employees are 

presented with hypothetical ‘‘questions’’ to ‘‘ask’’ 

the organizing union. See, e.g. Kellwood Co., 178 

NLRB 20, 23 (1969) (employer encouraged 

employees to ask organizing union what would 

happen when no contract was reached); Smithtown 

Nursing Home, 228 NLRB 23, 26 (1977) (employer 

encouraged employees to ask the organizing union 

for a ‘‘guarantee’’ of no strikes, and other strike 

related demands); World Wide Press, Inc., 242 

NLRB 346, 357 (1979) (employer distributed leaflets 

encouraging employees to ask about discontinued 

pension negotiations at another plant); Flamingo 

Hilton-Laughlin, 324 NLRB 72, 80–83 (1997) 

(employer distributed leaflets encouraging 

employees to ask 18 questions of the organizing 

union including certain ‘‘guarantees’’); Eldorado 

Tool, 325 NLRB 222, 224 (1997) (employer 

distributed leaflet encouraging employees to ask 15 

rhetorical questions of the organizing union 

including whether the union could ‘‘guarantee’’ no 

job loss or facility closure). 

144We recognize that nonemployer parties can 

reply by email to any voter who chooses to pose 

questions by email since the return email address 

is included in the email itself, but we would find 

unpersuasive any claim that voluntary disclosures 

of this sort establish that it is unnecessary to 

provide nonemployer parties with email addresses 

of all eligible voters. Looking at the matter so 

narrowly overlooks that an organizing campaign is 

not merely a series of discrete individual 

communications addressed to interested employees 

with particular questions. Union representatives 

may seek to answer questions that not all 

employees may have thought to ask and to provide 

information about representation issues that not all 

employees possess. The ability to communicate 

effectively with all employees is necessary for this 

purpose. Accordingly, the Board believes that 

requiring an employer to furnish the available 

personal email addresses of eligible voters to the 

nonemployer parties makes it more likely that 

employees can make an informed choice in the 

election. 

145To be sure, the Board believes that requiring 

the provision of employees’ available personal 

email and phone numbers is a necessary 

improvement to the existing Excelsior policy even 

in workplaces where employers do not choose to 

avail themselves of email and phones as a tool of 

their representation campaign, i.e., its importance 

and usefulness is not linked to, or dependent on, 

the employer’s use of email or phone 

communication. 

146SIGMA and others suggests that many 

employers do not keep records of employees’ 

personal email addresses and so ‘‘the Board may 

overestimate the availability or utility’’ of personal 

email addresses as a means for petitioners to reach 

all employees with their message. Yet, the 

amendments merely require an employer to furnish 

its employees’ ‘‘available personal email addresses’’ 

(and ‘‘available home and personal cellular (‘‘cell’’) 

telephone numbers’’). Accordingly, if the employer 

does not maintain those addresses and numbers, it 

does not need to ask its employees for them. As 

discussed below, the Board recognizes that delays 

in conducting elections would result if employers 

(or the Board) were required to collect personal 

information directly from employees after the 

parties entered into an election agreement or the 

regional director directed an election. However, the 

fact that some employers may not maintain records 

of their employees’ personal email addresses and 

personal phone numbers does not demonstrate that 

it is not worthwhile to require those employers who 

do maintain such information to disclose it in the 

interests of fair elections and more efficient 

administrative proceedings. Similarly, the fact that 

an employer may not possess the personal email 

addresses and personal phone numbers for each 

and every one of its employees does not 

demonstrate that it is not worthwhile to require the 

employers to disclose those employees’ personal 

email addresses and personal phone numbers that 

it does possess. 

147See, e.g., SIGMA; Schnuck Markets, Inc.; 

INDA II. 

Disclosure of the employees’ personal 

email addresses, like the disclosure of 

personal phone numbers discussed 

below, will allow the nonemployer 

parties (including unions and 

decertification petitioners) to promptly 

convey their information concerning the 

question of representation to all the 

eligible voters. Disclosure of this contact 

information also makes it more likely 

that nonemployer parties can respond to 

employee questions, both individually 

and collectively, including questions 

that employees have, but may be 

uncomfortable raising on their own.143

It also permits the nonemployer parties 

to engage with employees on campaign 

issues in a timely manner and 

specifically, prior to the election, as 

well as share those responses with other 

employees, thus making it more likely 

that employees can make an informed 

choice in the election. After all, it 

obviously takes less time for an 

employee to receive the nonemployer 

party’s campaign communication when 

that message is sent via email than 

when it is sent via United States 

mail.144 Nurse Brenda Crawford 

explained the difficulty in organizing 

off-campus informational meetings 

when her colleagues work 12-hour shifts 

and have outside family responsibilities. 

In her view, modern communication 

tools, including email, would enhance 

the ability to provide information in a 

manner that is convenient to workers 

and their families. Testimony of 

Crawford II. The Board agrees, and has 

concluded that the required disclosure 

of available personal email addresses of 

eligible voters will permit the timely 

give-and-take of campaign information 

that will increase the likelihood that 

employees will be placed ‘‘in a better 

position to make a fully informed and 

reasonable choice.’’ Excelsior, 156 NLRB 

at 1240.145 And of course, the Board 

included employees’ home and personal 

cell telephone numbers in the voter list 

proposals because the use of telephones 

to convey information orally and via 

texting is an integral part of the 

communications evolution that has 

taken place in our country since 

Excelsior was decided.146

However, some comments question 

the inclusion of phone numbers in the 

final rule, implying that because the 

Board chose not to mandate disclosure 

of phone numbers in 1966, at a time 

when at least basic telephone 

technology existed, then it should not 

do so today.147 CDW attempts to lend 

force to this argument by asserting that 

in the late 1960s ‘‘the United States led 

the world in telephone usage . . . and 

. . . the average person had 701 

telephone conversations’’, while 

simultaneously arguing that the home 

addresses disclosed under the current 

Excelsior policy continue to be the 

‘‘most reliable and near universal points 

of contact’’ for employees. 

The Board believes that comments 

such as CDW’s do not adequately 

appreciate the way phone 

communication has changed in the last 

45 years. While it may be true that when 

the Board issued its Excelsior decision, 

many households had at least one 

telephone, the telephone was not nearly 

as ubiquitous as it is presently, and 

those that existed bore little 

resemblance to the technology we have 

become accustomed to today. In 

particular, voicemail service had yet to 

be invented, and no commercially 

viable home answering machine had yet 

entered the marketplace. See ‘‘The 

History of . . . Answering Machines,’’ 

http://transition.fcc.gov/cgb/kidszone/

history_ans_machine.html (last updated 

June 4, 2004). Because answering 

machine and voicemail technology was 

uncommon or nonexistent in 1966, a 

nonemployer party could not leave a 

message if the employee with whom it 

intended to speak about the upcoming 

election was not at home when the 

union called. By contrast, the employee 

would receive the nonemployer party’s 

letter even if the employee was not at 

home when the post office delivered it. 

Today, however, even if the employee is 

not home when the call is placed, the 

caller is virtually always able to leave a 

voice message—to say nothing of the 

ability to send written messages via 

phone texting technology. And, of 

course, if an employee has a cell phone, 

the caller can reach the employee even 

if the employee is not at home when the 

call is received. 

Contrary to CDW, the Board believes 

that the changes in phone ownership 

and use make personal phones a 

universal point of contact today in a 

way that was unimaginable in 1966. The 

share of U.S. households possessing a 

telephone has steadily increased since 

the 1960s, from 78% in 1960 to 95% in 

1990. See Bureau of the Census, Census 

Questionnaire Content, 1990 CQC–26, 

‘‘We asked . . . You told us: Telephone 

and Vehicle Availability’’ 1 (Jan. 1994), 

http://www.census.gov/prod/cen1990/


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148See also Riley v. California, 134 S.Ct. 2473, 

2484 (June 25, 2014) (describing cell phones as 

‘‘such a pervasive and insistent part of daily life 

that the proverbial visitor from Mars might 

conclude they were an important feature of human 

anatomy’’ and acknowledging that smart phones, 

and even less sophisticated cell phones ‘‘are based 

on technology nearly inconceivable just a few 

decades ago’’). 

149Although, the Board is mindful, as asserted by 

U.S. Poultry II, that employees may change personal 

email addresses and phone numbers, it nevertheless 

disagrees with U.S. Poultry’s conclusion that 

requiring this additional information won’t solve 

the problem of outdated contact information. By 

requiring these two additional forms of available 

contact information, the Board believes that the 

voter list amendments will increase the likelihood 

that nonemployer petitioners will receive at least 

one piece of up-to-date contact information (if not 

more) for eligible voters. Moreover, instantaneous 

responsive messages commonly utilized by both 

telephone and email providers—indicating that an 

email message cannot be delivered to the address 

entered or that a phone call cannot be completed 

as dialed—are much more likely to bring 

inadvertent transcription mistakes to the parties’ 

attention (and allow for potential correction) during 

the pre-election period than would corresponding 

returned pieces of U.S. mail indicating that the 

mailing could not be delivered as addressed. 

cqc/cqc26.pdf. The Census Bureau 

reports that the numbers of households 

with no available phone had shrunk to 

only 2.4% by 2000. See U.S. Census 

Bureau, 2000 Census of Population and 

Housing, Summary Social, Economic, 

and Housing Characteristics, PHC–2–1, 

United States Summary 10 (2003) (Table 

10), http://www.census.gov/prod/

cen2000/phc-2-1-pt1.pdf. And that tiny 

percentage of households with no phone 

service appears to have remained nearly 

unchanged through 2013. See Stephen J. 

Blumberg and Julian V. Luke, ‘‘Wireless 

Substitution: Early Release of Estimates 

From the National Health Interview 

Survey, January–June 2013,’’ National 

Center for Health Statistics 2 (December 

2013), http://www.cdc.gov/nchs/data/

nhis/earlyrelease/wireless201312.pdf 

(reporting only 2.3% of U.S. households 

lacking phone service). 

In addition, as of January 2014, 90% 

of American adults had a handheld 

mobile phone or a cell phone—a nonexistent technology at the time of 

Excelsior—and 29% of cell phone 

owners described their cell phone as 

‘‘something they can’t imagine living 

without.’’ Pew Research Internet Project, 

Mobile Technology Fact Sheet (Jan. 

2014), http://www.pewinternet.org/factsheets/mobile-technology-fact-sheet/. In 

fact, the use of cell phones has 

increased to the point that it is 

overtaking the use of landline phones. 

For example, SEIU’s comment cites a 

2007 study finding that 85% of adults 

own cell phones, while only 71% of 

adults own home phones. And the 

Bureau of Labor Statistics identifies 

2007 as the first year in which spending 

on cellular phone services exceeded 

spending on residential phone services. 

See ‘‘Consumer Expenditure Survey: 

Spending on Cell Phone Services Has 

Exceeded Spending on Residential 

Phone Services,’’ http://www.bls.gov/

cex/cellphones2007.htm (last modified 

Jan. 14, 2009). In 2010, more than a 

quarter of adults lived in households 

with only wireless telephone service, up 

from less than 5% a mere 7 years earlier. 

See Stephen J. Blumberg and Julian V. 

Luke, ‘‘Wireless Substitution: Early 

Release of Estimates From the National 

Health Interview Survey, July-December 

2010,’’ National Center for Health 

Statistics 1 (June 2011), http://www.cdc.

gov/nchs/data/nhis/earlyrelease/

wireless201106.pdf. By 2013, 38% of all 

adults lived in households with only 

wireless service, and more than half of 

adults younger than 35, as well as adults 

living in poverty, had only wireless 

phone service in their households. See 

Blumberg and Luke, ‘‘Wireless 

Substitution: Early Release of Estimates 

From the National Health Interview 

Survey, January–June 2013,’’ National 

Center for Health Statistics 2–3 

(December 2013), http://www.cdc.gov/

nchs/data/nhis/earlyrelease/wireless

201312.pdf. These statistics validate the 

hearing comments of Ronald Mikell, 

speaking on behalf of the Federal 

Contract Guards of America, that many 

of his members possess only cell 

phones, and that Mikell’s cell phone 

was his primary point of contact for 

both business and personal matters. 

The advent of cell phones has 

expanded communications not only by 

phone but by other electronic media. 

Some 55% of cell phone owners use 

their phones to go online— to browse 

the internet, exchange emails, or 

download apps. Pew Research Internet 

Project, Mobile Technology Fact Sheet 

(Jan. 2014), http://www.pewinternet.org/ 

fact-sheets/mobile-technology-factsheet/. In addition, the prevalence of 

cell phones, which are typically carried 

with adults on their person whether at 

home, at work or around town, now 

allows callers’ messages to reliably 

reach their recipients with speeds that 

would have been shocking in 1966. This 

speed and reliability has been enhanced 

through text messaging, which has seen 

a dramatic rise in usage in only the past 

few years, becoming the preferred mode 

of communication for many young 

people. In marked contrast to CDW’s 

citation of an average person’s 701 

annual phone conversations in 1968, 

more recent statistics show young adults 

sending an average of 1,630 texts per 

month. See ‘‘U.S. Teen Mobile Report 

Calling Yesterday, Texting Today, Using 

Apps Tomorrow’’ (October 14, 2010), 

http://www.nielsen.com/us/en/insights/

news/2010/u-s-teen-mobile-reportcalling-yesterday-texting-today-usingapps-tomorrow.html. 

Additionally, there is a separate 

rationale for requiring mobile and home 

phone numbers in addition to email 

addresses, namely, to reach persons 

who rely on phone calls and not emails. 

According to the Pew Research Internet 

Project, Mobile Technology Fact Sheet 

(Jan. 2014), http://www.pewinternet.org/ 

fact-sheets/mobile-technology-factsheet/, over forty percent of phone users 

do not possess smartphones and 

therefore would not receive last minute 

emails responding to campaign issues. 

Disclosure of personal phone numbers 

is thus a practical necessity if this 

significant portion of eligible voters is 

going to have access to late breaking 

developments. 

In addition to the increased use of 

personal telephones, text messaging, 

and email, smartphones have recently 

emerged as single devices capable of 

managing all three modes of 

communication. Even as of 2011, more 

than two-thirds of Americans 34 years 

old or younger, and 48% of individuals 

15 years old and above, had a 

smartphone. U.S. Census Bureau, 

Computer and Internet Use in the U.S. 

(May 2013). As of January 2014, 58% of 

American adults had a smartphone. Pew 

Research Internet Project, Mobile 

Technology Fact Sheet (Jan. 2014), 

http://www.pewinternet.org/fact-sheets/

mobile-technology-fact-sheet/. A 

smartphone’s ability to combine 

telephone, text message, and email 

access in one hand-held, portable device 

is perhaps the most tangible example of 

how the evolution of communications 

since 1966 has made the personal phone 

a universal point of contact and, as 

indicated above, smartphone users 

comprise more than half of cell phone 

owners.148

In the face of this revolution in 

communications technology, it is not 

surprising that, as SEIU notes, door to 

door solicitation is nearly extinct, and 

first class mail is at its lowest volume 

in 25 years with further profound 

declines predicted over the next decade. 

In the experience of union attorney 

Thomas Meiklejohn, some employers 

may no longer keep updated home 

address information on their employees 

because they do not regularly 

communicate with them via mail, in 

contrast to employee telephone lists, 

which are updated of necessity.149

Indeed, many comments support adding 

phone numbers to the voter list 

disclosures, as a ‘‘common sense’’ 

change, precisely because the 

disclosures of only home addresses may 


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150See, e.g., AFL–CIO; SEIU; Senior Member 

Miller and Democratic House Members; testimony 

of Ronald Mikell on behalf of the United Federation 

of Special Police and Security Officers and Federal 

Contract Guards of America. 

151 In view of the foregoing discussion, the Board 

disagrees with PCA’s comment that home addresses 

are sufficient, as well as PCA’s claim—shared by 

CNLP—that the Board should not require disclosure 

of the additional contact information because there 

is no evidence that the current requirements hinder 

union access. Nor is the Board persuaded by RILA’s 

II assertion that new electronic means of 

communication outreach available to unions via 

various social media outlets undercuts the need to 

disclose employee personal email and cell phones. 

Moreover, the Excelsior Board rejected the 

argument that the Board may not require employer 

disclosure of employee names and addresses unless 

the union would otherwise be unable to reach the 

employees with its message in the particular case 

at issue. Excelsior, 156 NLRB at 1244. As the Board 

explained, cases addressing the existence of 

alternative channels of communication are not 

relevant in this non-unfair-labor-practice context, 

where the opportunity to communicate made 

available by the Board does not interfere with a 

significant employer interest, and the interest in a 

fair and free choice of bargaining representatives is 

so substantial. Id. at 1245. Thus, even assuming the 

availability of other avenues by which a union 

might be able to communicate with employees, the 

Board ‘‘may properly require employer disclosure 

of [the additional contact information] so as to 

insure the opportunity of all employees to be 

reached by all parties in the period immediately 

preceding a representation election.’’ Id. We repeat 

that the Excelsior rule is designed, first of all, to 

maximize the likelihood that all of the voters will 

be exposed to the nonemployer party arguments 

concerning representation, and the requirement that 

the additional contact information be disclosed 

better advances that goal given the changes in how 

individuals, employees, employers, associations 

and institutions communicate, and exchange 

information with, one another. 

152For comments in agreement, see, e.g., National 

Union of Healthcare Workers—California Nurses 

Association (NUHW) II; Nicole Teixeira II. 

153The regional director may extend the time for 

filing the written offer of proof in support of the 

election objections upon request of a party showing 

good cause. 

154On a related note, we observe that using 

modern technology to lessen delays in 

representation cases is also fully consistent with 

one of the key goals of the E-Government Act of 

2002 (Pub. L. 107–347), ‘‘improv[ing] the ability of 

the Government to achieve agency missions and 

program performance goals,’’ id., section 2, Dec. 17, 

2002, 116 Stat. 2900. 

be ineffective in allowing a petitioner’s 

message to reach eligible voters.150

Union attorney Caren Sencer testified 

that in her experience with seasonal 

workers covered by the NLRA, 

employers use cell phones to 

communicate with their employees and 

have only a P.O. Box for a physical 

address—which would be of limited 

utility to a petitioning union. Similarly, 

NELP stresses that the expanded voter 

list disclosures are ‘‘especially crucial to 

low-wage workers, who may not remain 

at one address for long or may not even 

have a fixed home.’’ The Board shares 

this perspective, and for that reason 

believes that the addition of phone 

numbers is necessary to ensure that 

messages concerning representation are 

able to reach the lowest paid sectors of 

our national workforce.151

Like the disclosure of email 

addresses, disclosure of the employees’ 

home and personal cell phone numbers 

will allow the nonemployer parties to 

promptly convey their information 

concerning the question of 

representation to the eligible voters. 

Disclosure of this contact information 

also makes it more likely that the 

nonemployer parties can both respond 

to employee questions prior to the 

election and share those responses with 

other employees, thus making it more 

likely that employees can make an 

informed choice in the election. After 

all, it obviously takes less time for an 

employee to receive the nonemployer 

party’s campaign communication when 

that message is sent via a telephone call 

or a text or voice mail message than 

when it is sent via United States mail. 

In sum, the Board has also concluded 

that requiring the employer to furnish 

the other parties with the available 

home and personal cell phone numbers 

of eligible voters will facilitate an 

informed electorate, thus serving the 

first purpose of the Excelsior rule. 

The Board has further concluded that 

requiring the employer to furnish the 

available personal email addresses and 

home and personal cell phone numbers 

of the eligible voters will also better 

advance the second rationale articulated 

by the Board in Excelsior: Facilitating 

the expeditious resolution of questions 

of representation. As the Board 

explained in Excelsior, in many cases at 

least some of the names on the 

employer’s list of eligible voters are 

unknown to the other parties. The 

parties may not know where the listed 

individuals work or what they do. Thus, 

for example, the union may be unable 

‘‘to satisfy itself as to the eligibility of 

the ‘unknowns’,’’ forcing it ‘‘either to 

challenge all those who appear at the 

polls whom it does not know or risk 

having ineligible employees vote.’’ 

Excelsior, 156 NLRB at 1243. As the 

Board further explained, ‘‘The effect of 

putting the union to this choice . . . is 

to increase the number of challenges, as 

well as the likelihood that the 

challenges will be determinative of the 

election, thus requiring investigation 

and resolution by the Regional Director 

or the Board.’’ Id. at 1243. Only through 

further factual investigation—for 

example, consulting other employees 

who may work with the listed, 

unknown employees or contacting the 

unknown employees themselves—can 

the union potentially discover the facts 

needed to assess eligibility and avoid 

the need for election-day challenges 

based solely on ignorance. And to avoid 

unnecessary delay, the union must 

receive the recipient’s response in time 

to be able to determine whether the 

employer correctly included those 

names on the list of eligible voters or 

whether it should challenge those 

individuals if they come to vote. 

The provision of the additional 

contact information will help the union 

(or decertification petitioner) investigate 

the identity of any unknown employees 

on the employer’s voter list in a more 

timely manner, thereby helping to 

decrease the chances that the union (or 

decertification petitioner) will have to 

challenge voters based solely on 

ignorance of their identities.152

Accordingly, the Board concludes that 

the provision of the additional contact 

information will advance the second 

rationale of Excelsior as well as the first 

rationale, and the final rule requires the 

employer to disclose this additional 

contact information in amended 

§§ 102.62(d) and 102.67(l). The Board 

also reiterates that both rationales will 

be advanced by permitting nonemployer 

parties to more promptly and effectively 

contact employees in relation to postelection objections and other 

proceedings, such as unfair labor 

practice charges, that may arise from the 

representation proceedings. For 

example, as discussed below in 

connection with § 102.69, in order to 

help the Board to more expeditiously 

resolve election objections and thereby 

help the Board to more expeditiously 

resolve questions concerning 

representation, the Board has decided to 

require parties filing election objections 

to simultaneously file with their 

objections a written offer of proof 

supporting those objections, unless 

parties can show good cause to file their 

offers of proof at a later date. The Board 

has thereby eliminated the default extra 

7-day period parties had to file evidence 

in support of their objections under the 

Board’s prior rules.153 Because the voter 

list amendments require the employer to 

include the available home and personal 

cell phone numbers along with the 

available personal email addresses of 

the unit employees on the voter list that 

it provides to the nonemployer parties 

before the election, the Board believes 

that unions, as well as employers, 

ordinarily will have sufficient time to 

contact potential witnesses and prepare 

their offers within the allotted time.154

Nevertheless, the Board is mindful of 

comments predicting that 

communications technology is changing 

so rapidly that even the proposed 

expansion of the voter list to include 

personal email addresses and personal 


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155The Board does not, however, share the 

Chamber’s concern (Chamber II Reply) that a 

regulation requiring employers to include on voter 

lists any additional contact information, such as 

social media identifiers, that they maintain in their 

records would start down the ‘‘slippery slope’’ of 

requiring employers to solicit and maintain such 

information from their employees. 

156See, e.g., NUHW II; Testimony of Maneesh 

Sharma on behalf of AFL–CIO II. 

157The issue of employee privacy rights was also 

raised in the litigation preceding Wyman-Gordon, 

and the courts called on to consider the issue 

consistently held that it was within the Board’s 

discretion to conclude that the interests advanced 

by the Excelsior requirement outweighed employee 

privacy interests. See British Auto Parts, Inc. v. 

NLRB, 405 F.2d 1182, 1183 (9th Cir. 1968) (rejecting 

privacy arguments), cert. denied sub nom., 

Teledyne, Inc. v. NLRB, 394 U.S. 1012 (1969); NLRB 

v. Q–T Shoe Mfg. Co., Inc., 409 F.2d 1247, 1250 (3d 

Cir. 1969) (holding employee privacy rights not 

infringed by Excelsior requirement); NLRB v. J.P. 

Stevens & Co., 409 F.2d 1207, 1209 (4th Cir. 1969); 

NLRB v. Beech-Nut Life Savers, Inc., 274 F. Supp. 

432, 437–438 (S.D.N.Y. 1967), aff’d, 406 F.2d 253 

(2d Cir. 1968), cert. denied 394 U.S. 1012 (1969). 

Although the Motor & Equipment Manufacturers 

Association (MEMA) II (2–3) criticizes the Excelsior 

Board for its analysis that allegedly did not take 

account of the then-recent decision by the Supreme 

Court in Griswold v. Connecticut, 381 U.S. 479 

(1965), recognizing a constitutional right to privacy, 

neither the Supreme Court in its 1969 WymanGordon decision affirming the Excelsior policy, nor 

any of the post-Griswold circuit court decisions 

listed above, faulted the Excelsior Board for this 

alleged deficiency. 

phone numbers may be insufficient to 

advance Excelsior’s interest in the near 

future. For example, Joseph Torres 

predicted that email—both work and 

personal—is headed toward 

obsolescence and that young people are 

already turning to social media 

platforms such as Tumblr, Instagram, 

and Facebook to communicate 

electronically. Testimony of Joseph 

Torres on behalf of Winston & Strawn II. 

In this vein, SEIU II suggests that the 

Board rules should require employers to 

provide to petitioners ‘‘all other contact 

information, such as social media 

identifiers, used by the employer to 

communicate with employees[.]’’ The 

Board, however, shares the Chamber’s 

skepticism (Chamber II Reply) that few, 

if any, employers maintain social media 

contact information about their 

employees, and declines to explicitly 

include it as part of the voter list at this 

time.155

Should the Board’s experience 

administering the expanded voter list 

requirements suggest that additional 

forms of contact information should be 

included in future voter lists, then the 

Board is open to revisiting its 

conclusion concerning the contours of 

the list. For that reason, the Board is 

adopting a modified version of the 

language suggested by the AFL–CIO II to 

phrase the required contents of the voter 

list as a minimum, to allow for future 

Boards to require more or different 

forms of contact information in a 

particular case (should the peculiar 

circumstances so warrant), or in all 

future cases. Thus, the new regulatory 

language will read, in pertinent part, 

‘‘ * * * a list of the full names, work 

locations, shifts, job classifications, and 

contact information (including home 

addresses, available personal email 

addresses, and available home and 

personal cellular (‘‘cell’’) telephone 

numbers) of all eligible voters.’’ Thus, 

the Board retains discretion to require 

through adjudication or rulemaking that 

the list include additional contact 

information. 

c. Work Location, Shift, and Job 

Classification Information 

The final rule also adopts the 

proposal that the employer furnish the 

work locations, shifts, and job 

classifications of all eligible voters in 

amended §§ 102.62(d), (providing for 

the final voter list in election agreement 

cases), and 102.67(l) (providing for the 

same list in directed election cases). 

Provision of the information will assist 

the nonemployer parties in investigating 

whether the unknown employees on the 

employer’s list are in fact eligible. The 

Board agrees with the comments 

advocating that provision of this 

information will reduce the need for 

challenges based solely on ignorance of 

the identity of voters, and thereby help 

the Board expeditiously resolve 

questions of representation.156 In 

addition, the Board is sympathetic to 

the view that in some cases, providing 

employee scheduling and shift 

information to a petitioning union 

would allow for more targeted 

communications either in person or by 

phone that would be less disruptive to 

the employee and his or her family. See 

Testimony of Caren Sencer on behalf of 

Weinberg, Roger & Rosenfeld II. 

d. Employee Privacy Concerns 

Many comments argue, however, that 

the Board should refrain from requiring 

that the employer furnish the other 

parties with the employees’ personal 

email addresses, home and personal cell 

phone numbers, work locations, shifts 

and job classifications, because, among 

other things, disclosure of such 

information could cause harm to the 

employees, invade their privacy, or 

conflict with precedent or other laws. 

Other comments appear to attack even 

the nearly 50-year old Supreme Courtsanctioned requirement that the 

employer disclose the home addresses 

of eligible voters. 

Without minimizing the legitimacy of 

the concerns underlying these 

comments, we conclude for the reasons 

that follow that the public interests in 

the fair and free choice of bargaining 

representatives and in the expeditious 

resolution of questions of representation 

outweigh the interests employees and 

employers have in keeping the 

information private. As the Supreme 

Court has long recognized, it is 

quintessentially the Board’s function to 

balance the competing interests of 

employees, employers, and labor 

organizations in effectuating the policies 

of the Act. See, e.g., NLRB v. Truck 

Drivers, 353 U.S. 87, 96 (1957); NLRB v. 

Fleetwood Trailer Co., Inc., 389 U.S. 

375, 378 (1967); NLRB v. J. Weingarten, 

Inc., 420 U.S. 251, 267 (1975). Indeed, 

in upholding the Board’s Excelsior rule 

the Supreme Court noted: ‘‘It is for the 

Board and not for this Court to weigh 

against this interest [in the fair and free 

choice of bargaining representatives] the 

asserted interest of employees in 

avoiding the problems that union 

solicitation may present.’’ NLRB v. 

Wyman-Gordon Co., 394 U.S. at 767.157

As explained above, the Board has 

concluded that access to employees’ 

more modern contact information, 

including available, personal email 

addresses, and home and personal cell 

phone numbers is as fundamental to a 

fair and free election and the 

expeditious resolution of questions 

concerning representation in 2014, as 

was access to employee names and 

home addresses in 1966 when that 

requirement was created in Excelsior, 

156 NLRB at 1243, 1246, and later 

approved by the Supreme Court in 

NLRB v. Wyman-Gordon Co., 394 U.S. at 

768. As further noted above, 50 years 

ago answering machines, voicemail, 

email, cell phones, texting, and smart 

phones did not exist or were not 

widespread. In this day and age, 

providing such tools of communication 

to the nonemployer parties once a 

regional director has directed an 

election or all parties have agreed to an 

election will significantly advance the 

objectives of the original Excelsior 

policy: Ensuring the fair and free choice 

of bargaining representatives by 

maximizing the likelihood that all the 

voters will be exposed to the 

nonemployer party arguments 

concerning representation, and helping 

to expedite resolution of questions of 

representation by preventing challenges 

based solely on ignorance of the 

identities of the voters. 

The objections that disclosure of the 

additional information could lead to 

harassment and coercion of 


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158See, e.g., SHRM; CDW; NRF; PIA; ALG. 

159See also NLRB v. Delaware Valley Armaments, 

Inc., 431 F.2d 494, 499–500 (3d Cir. 1970) (noting 

that mere possibility of harassment is not enough 

to invalidate directive to furnish Excelsior list), cert. 

denied, 400 U.S. 957 (1970); NLRB v. Q–T Shoe 

Mfg. Co., 409 F.2d 1247, 1250 & n. 9, (3d Cir. 1969) 

(‘‘it hardly appears likely that union agents will 

unduly harass any employee, since their objective 

is to obtain support rather than arouse hostility 

* * *. The mere possibility of such harassment is 

surely not a sufficient ground for invalidating a rule 

designed to achieve greater enlightenment’’); NLRB 

v. Hanes Hosiery Division—Hanes Corp., 384 F.2d 

188, 191 (4th Cir. 1967) (‘‘every annoyance of the 

voters is shunned by the seasoned campaigner, and 

unions are not novices in this area’’), cert. denied, 

390 U.S. 950 (1968). 

160See, e.g., Chamber II; SHRM II; Brent Jones II; 

Marna Skripko II. 

161Over the past 3 years, just over one third of 

all charges were found to have merit. See NLRB 

Performance Accountability Reports 2011–2013, 

http://www.nlrb.gov/reports-guidance/reports 

(reporting merit rates of 35.2% in FY 13, 36.4% in 

FY 12, and 37% in FY 11). 

162 Indeed, our examination of the data contained 

in the last decade of the Board’s use of its Case 

Activity Tracking System (CATS) further confirms 

the lack of evidence that unions are generally 

coercing and intimidating employees during 

organizing campaigns, or specifically misusing 

information from Excelsior lists. The data reveals 

that out of 24,681 representation elections 

conducted between fiscal years 2000 and 2010, 

employers filed objections involving allegations of 

union threats and/or violence in 469 cases, and the 

election result was set aside by the Board on only 

16 occasions. Nothing in the Board’s database 

indicates that any of these 16 cases involved the 

misuse of Excelsior information, but even if the 

Board were to assume that it did, a record of union 

coercion sufficient to set aside an election in 

0.065% of elections over a recent 10-year span 

simply does not demonstrate that ‘‘union coercion 

and intimidation in the context of an organizing 

campaign is rampant’’ as argued by SHRM. (This 

data has not been updated through 2013 because it 

is not readily available for 2011–2013 in the Board’s 

new NxGen case tracking software which replaced 

CATS in 2011.) 

163We also note that a decertification petitioner’s 

address appears on the face of the petition itself, 

which is a public document. Thus, there was no 

allegation that Excelsior list information played any 

role in the case cited by Davis. 

164The AFL–CIO’s 2014 comment asserted that 

‘‘despite this extensive experience [with the 

employees 158 are similar to arguments 

presented to the Excelsior Board. 

Commenters have failed to persuade us 

that the Board’s response then is any 

less valid today: 

[W]e reject the argument that to provide 

the union with employee names and 

addresses subjects employees to the dangers 

of harassment and coercion in their homes. 

We cannot assume that a union, seeking to 

obtain employees’ votes in a secret ballot 

election, will engage in conduct of this 

nature; if it does, we shall provide an 

appropriate remedy. We do not, in any event, 

regard the mere possibility that a union will 

abuse the opportunity to communicate with 

employees in their homes as sufficient basis 

for denying this opportunity altogether. 

156 NLRB at 1244 (footnote omitted). 

With the benefit of almost fifty years of 

post-Excelsior experience, it is clear that 

the harm to employees forecast by the 

decision’s opponents did not come to 

pass. The Board will not make policy 

based on mere speculation of 

misconduct and abuse, particularly 

where, as a matter of the Board’s 

decades of experience, such abuse is 

unlikely.159

Nevertheless, the Board is cognizant 

that advances in technology since 

Excelsior have created a heightened risk 

of unauthorized dissemination of 

personal information, and comments 

have stressed the public’s increased 

concern with privacy issues due to 

incidents of identity theft, government 

surveillance and hacking of retailers’ 

electronic databases.160 However, here, 

as in Excelsior, and other areas of the 

law, the risk of harm must be balanced 

against other legitimate considerations 

that also warrant protection. Cf. 

Canadian American Oil Co. v. NLRB, 82 

F.3d 469, 473–75 (D.C. Cir. 1996) 

(confidentiality interest of employees 

claiming union threats yielded to 

union’s interest to confront the evidence 

offered in support of the objection at the 

hearing); NLRB v. Herbert Halperin 

Distributing Corp., 826 F.2d 287, 293 

(4th Cir. 1987) (confidentiality interest 

of employees claiming union threats did 

not justify objecting party’s transmitting 

the employees’ affidavits to the Board 

without also serving them on the 

union); Seth Thomas Div., 262 NLRB 

715, 715 n.2 (1982) (same). 

Therefore, even assuming that the 

privacy, identity theft, and other risks 

may be greater than the Board has 

estimated—and, in particular, that 

adding personal email addresses and 

home and personal cell phone numbers 

to home addresses may, in combination, 

result in increased risks, especially as 

technology changes—nevertheless the 

Board’s conclusion remains the same. 

These risks are worth taking and as a 

practical matter, must be taken, if 

communication about organizational 

issues is going to take place using tools 

of communication that are prevalent 

today. Email and cell phones are ever 

increasing the modes by which people 

communicate; this continuing 

expansion in the use of new electronic 

media demonstrates that the risks 

associated with these speedy and 

convenient tools are part of our daily 

life. 

The Board therefore disagrees with 

the assertion of Constangy, that the mere 

potential for misuse of the voter list 

information outweighs any benefit 

gained by the disclosures. Nonetheless, 

we emphasize that if the disclosure of 

the additional contact information does 

subject employees to harm, the Board 

‘‘shall provide an appropriate remedy’’ 

Excelsior, 156 NLRB at 1244, as 

discussed further below. 

Likewise, the Board is not persuaded 

that SHRM’s raw citation of unfair labor 

practice charges alleging union coercion 

evidences a problem with 

communication resulting from current 

Excelsior disclosures. The charges cited 

are not linked to misuse of Excelsior list 

information but, rather, include the 

entire range of coercive union conduct, 

including when that union is already 

acting as an employees’ bargaining 

representative. The Board is skeptical 

that a union seeking to persuade 

employees to select it as a bargaining 

representative would tend to act 

coercively toward those employees, and 

the statistics cited by SHRM—which do 

not purport to focus on whether the 

charges were filed in a representational 

context or had any relationship to the 

Excelsior list information, much less 

whether they had merit 161—do not 

undermine the Board’s view on the 

issue. 

Moreover, the dearth of specific and 

documented incidents of alleged misuse 

of employee contact information cited 

in the comments lends additional 

support to our conclusion that such 

misuse has not been a significant 

problem in the past, and is unlikely to 

be a problem in the future. Thus, in the 

two rounds of critical commentary on 

the voter list proposals, several years 

apart, the Board was presented with no 

documentation demonstrating misuse of 

contact information provided in voter 

lists by petitioning unions during the 

nearly 50 years in which the Board’s 

Excelsior policy has been in place.162

However, despite the absence of any 

examples of that kind of abuse, the 

Board recognizes that the potential for 

such abuse exists. For example, RILA II 

mentioned—without citation—one case 

in which a decertification petitioner 

allegedly received pornography mailed 

to his home. Yet, even in that case, 

Doreen Davis (testifying on behalf of 

RILA) reported that the NLRB 

appropriately set aside the subsequent 

election and ordered it to be rerun.163

See RILA II. And when William 

Messenger (testifying on behalf of 

NRTWLDF) discussed another incident 

where union members allegedly 

harassed a dissident coworker by 

mailing magazine subscriptions to the 

coworker’s home address, he admitted 

that the employee contact information at 

issue was not made available pursuant 

to the Board’s Excelsior policy. In sum, 

the Board agrees with comments by the 

AFL–CIO II,164 Melinda Hensel 


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existing Excelsior policy], neither the Board nor any 

party that commented on the prior NPRM or 

testified at the prior hearing could point to a single, 

specific instance where an eligibility list was 

misused or even used for a purpose unrelated to the 

representation proceeding.’’ 

165The Board likewise disagrees with Fern 

Netzky’s unsupported assertion that the voter list 

will violate attorney-client privilege. The Board 

fails to see how the new requirements, any more 

than the existing Excelsior requirements, would 

force employers to reveal confidential 

communications made to counsel in order to secure 

legal advice. 

166See, e.g., Chairmen Kline and Roe II; Klein II; 

COLLE; SIGMA; RILA; ACE; COSE; Ann Pomola. 

167See, e.g., UFCW II; Chairman Harkin, Senior 

Member Miller and Congressional Democrats; AFL– 

CIO II; SEIU II; United Association of Journeymen 

and Apprentices of the Plumbing and Pipe Fitting 

Industry (UAJAPPFI) II; Nicole Teixeira II. 

168As IUOE attorney Melinda Hensel explained: 

‘‘The days of union visits to people’s homes I think 

are—I wouldn’t say it’s over, but I think it’s a much 

less popular manner of organizing these days.’’ 

Testimony II. 

169Of course, the rule only impacts contact 

information that the employee has already 

disclosed to the employer. Any information which 

the employee kept private from the employer will 

also be kept private from other parties to the 

proceeding. As discussed above, if an employee has 

chosen not to share a personal email address or cell 

phone number with her employer, the employer 

will not be able to disclose it to the other parties— 

and the amendments do not require the employer 

to ask the employee for it. In this way, employees 

have some control over whether their contact 

information is utilized by employers or 

nonemployer parties concerning the campaign. 

170See Testimony of Doreen Davis on behalf of 

RILA II; Testimony of William Messenger on behalf 

of NRTWLDF II. 

171Compare DOD v. FLRA, 510 U.S. at 501 n.8 

(noting that courts of appeals have variously 

characterized employees’ privacy interests in their 

home addresses as ‘‘important,’’ ‘‘minimal,’’ 

‘‘general,’’ and ‘‘significant’’) and id. at 506–07 & 

n.4 (Ginsburg, J., concurring) (noting that ‘‘most 

courts’’ have found that employees have only a 

‘‘relatively modest’’ privacy interest in their home 

addresses) with Electronic Frontier Foundation v. 

Office of the Director of National Intelligence, 639 

F.3d 876, 888 (9th Cir. 2010) (characterizing agent’s 

privacy interest in his email address as ‘‘minor’’). 

See also In re Deloitte & Touche, LLP, Overtime 

Litigation, 2012 WL 340114 (S.D.N.Y. Jan. 17, 2012) 

(not reported) (characterizing the disclosure of class 

member phone numbers as ‘‘routine’’, including 

personal email as not unduly intrusive on employee 

privacy concerns, and collecting similar cases 

ordering such disclosures). 

172Cf. U.S. Department of Commerce, ‘‘Guide to 

Protecting the Confidentiality of Personally 

Identifiable Information (PII): Recommendations of 

the National Institute of Standards and Technology, 

Special Publication 800–122’’ (2010) http://

csrc.nist.gov/publications/nistpubs/800-122/sp800- 

122.pdf at E–2 through E–3 (‘‘Organizations should 

evaluate the sensitivity of each individual PII data 

field. For example, an individual’s SSN or financial 

account number is generally more sensitive than an 

individual’s phone number or ZIP code.’’). 

(Testimony on behalf of the 

International Union of Operating 

Engineers (IUOE), Local 150 II) and 

Thomas Meiklejohn (Testimony on 

behalf of Livingston, Adler, Pulda, 

Meiklejohn & Kelly II) who noted the 

lack of evidence demonstrating voter list 

misuse. 

In a similar vein, the Board, contrary 

to Con-way’s comment, does not believe 

that disclosure of employee phone 

numbers will jeopardize truck drivers’ 

safety by potentially interrupting their 

mandated work breaks. The final rule 

does not require the employer to 

disclose the employees’ work phone 

numbers to the nonemployer parties. 

Nothing in the final rule requires 

individuals to keep the their home or 

personal cell phone ringers on ‘‘loud,’’ 

let alone requires them to take calls. 

Moreover, cell phones are especially 

effective in showing the identity of the 

caller, or at least whether the caller is 

known or unknown, so that the 

recipient may exercise an informed 

choice in answering or not. The Board 

trusts that after the final rule becomes 

effective, truckers will be able to 

exercise discretion in fielding incoming 

union calls during their breaks should 

any occur, just as they exercise 

discretion in fielding other kinds of 

calls now.165

The Board acknowledges, however, 

the concern raised by many comments 

that the disclosure of the additional 

contact information could harm 

employees by impinging on their 

privacy.166 To one way of thinking, such 

privacy concerns should be more 

pronounced surrounding an employee’s 

home address—long disclosable under 

Excelsior—than for the additional 

contact information (phone numbers 

and email addresses) disclosable by 

virtue of the voter list amendments. 

After all, disclosure of home addresses 

may lead to face-to-face contact between 

union and employee organizers and an 

employee at the employee’s home, 

whereas disclosure of employee phone 

numbers or email addresses may simply 

lead to phone calls or email messages, 

which are more easily ignored.167

Indeed, to the extent that disclosure of 

employee email and phone contact 

information lessens the likelihood that 

union organizers will seek to engage 

them in face-to-face dialogues 

concerning representation,168 then those 

disclosures would arguably mitigate the 

most serious incursions on employee 

privacy. 

On the other hand, the Board 

recognizes that some labor organizations 

may elect to contact employees via 

telephone and email in addition to, 

rather than instead of, contacting them 

at home. Further, the Board 

acknowledges that some employees will 

consider disclosure of the additional 

contact information—particularly email 

addresses and cell phone numbers 

which may not be readily accessible 

through public directories—to invade 

their privacy, even if they are never 

contacted.169 Moreover, at least two 

commenters make the counterintuitive 

claim that including personal email 

addresses and phone numbers on voter 

lists constitutes a bigger invasion of 

privacy than including home addresses 

because employees have less control 

over unwanted email and phone calls 

than they do over unwanted visitors at 

their front door.170 Although the courts 

‘‘have differed in their characterization 

of the magnitude of the interest[s] 

implicated,’’ U.S. Dept. of Defense v. 

FLRA (‘‘DOD v. FLRA’’), 510 U.S. 487, 

501 n.8 (1994), the Supreme Court has 

held, for example, ‘‘that [employees] 

have [a] nontrivial privacy interest in 

nondisclosure’’ of home address 

information. Id. at 501.171

In our view, however, many features 

of the voter list amendments help to 

minimize any invasion of employee 

privacy caused by disclosure of the 

information. The disclosure of 

information is limited in a number of 

key respects. The information itself is 

limited in scope. It is available only to 

a limited group of recipients, to use for 

limited purposes. These limitations 

persuade us that the substantial public 

interests—in fair and free elections and 

in the speedy resolution of questions of 

representation—served by the voter list 

amendments outweigh the employees’ 

acknowledged privacy interest in the 

information that will be disclosed. 

First, the information is limited in 

scope. Plainly, not every piece of 

personally identifiable information is 

equally sensitive or entitled to the same 

weight when balanced against the 

interests served by disclosure.172 We do 

not equate disclosure of employee email 

addresses and phone numbers, for 

example, with disclosure of employee 

medical records. Indeed, in Detroit 

Edison Co. v. NLRB, 440 U.S. 301, 318– 

19 & n.15 (1979), the Supreme Court 

explicitly noted that the ‘‘interests at 

stake’’ in Wyman-Gordon—where the 

Court upheld the Board’s Excelsior 

requirement that an employer disclose 

the names and addresses of employees 

to a union in the process of an 

organizing campaign—were ‘‘far 

different’’ from those at stake when for 

purposes of arbitrating a grievance an 

incumbent union seeks highly sensitive 

information going to an employee’s 

basic competence such as aptitude test 

scores linked to named employees. 

While email addresses, phone numbers, 

work locations, shifts, and job 

classifications constitute additional 

pieces of information, they are not 

fundamentally different in kind from 


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173See, e.g., SEIU II (pointing out that per the 

published standards of the NLRB (http://www.nlrb.

gov/sites/default/files/attachments/basic-page/

node-1673/electronic_filings.pdf) and the D.C. 

Federal courts (http://www.dcd.uscourts.gov/dcd/

civil_privacy_notice; https://ecf.cadc.uscourts.gov/) 

individual email addresses are not treated as 

sensitive personal information that must be deleted 

from documents before they are filed 

electronically). 

174For example, the Supreme Court recently 

justified requiring police officers to seek warrants 

before searching arrestees’ cell phones by 

explaining the vast quantity of private information 

that may now be found on modern cell phones. 

Riley v. California, No.13–132, 134 S.Ct. 2473 (June 

25, 2014). Yet none of that information would be 

accessible to petitioners merely through receipt of 

individual phone numbers. 

175Thus, we reject the ATA’s claim that the voter 

list amendments create ‘‘difficulties * * * under 

* * * FOIA.’’ 

176Moreover, in only very few cases do 

employers refuse to bargain in order to test the 

validity of the certification. From FY 2008 to FY 

2013 between 8 and 18 test of certification cases 

were filed each year in the U.S. Circuit Courts of 

Appeals. Thus, in the great majority of 

representation cases which are definitively resolved 

without resort to the courts of appeals, the 

nonemployer party is unlikely to use the voter list 

data after the election in the absence of unfair labor 

practice or other related proceedings. 

the disclosures discussed in WymanGordon, and standing alone, may 

reasonably be viewed as less private.173

Furthermore, disclosure of the 

employees’ email addresses, phone 

numbers, work locations, shifts, and job 

classifications reveals nothing about the 

employees’ politics, their religion, their 

associations, or even their position 

regarding the labor organization in 

question.174 Employees will not have 

their contact information disclosed 

because they engaged in any particular 

expressive activity. Rather, their 

information will be disclosed solely by 

virtue of their being employed in a unit 

in which a question of representation 

has arisen that will be resolved by a 

secret ballot election conducted by the 

Board. The voter list disclosures will 

not reveal employees’ personal beliefs 

that they might prefer to keep to 

themselves. Instead, the amendments 

merely require disclosure of information 

which will enable the nonemployer 

parties to contact the employees outside 

of the workplace to provide information 

about the voting issues, determine 

whether the employer properly 

included such employees on the voter 

list, and investigate post-election 

objections and prepare for Board 

proceedings arising out of the election 

and related matters. 

Second, the voter list information will 

be provided to a limited set of 

recipients. It will not be made available 

to the public at large. Nor will it even 

be made available to the nonemployer 

parties in every representation case. 

Thus, the Board has not, does not, and 

will not allow ‘‘indiscriminate’’ 

disclosure of employee information to 

petitioning unions, as charged by NRF. 

The Board’s showing of interest 

requirement specifically safeguards 

against such ‘‘indiscriminate’’ 

disclosures. See Local 3, IBEW v. NLRB, 

845 F.2d 1177, 1181 (2d Cir. 1988) 

(noting that showing of interest 

requirement was part of Excelsior’s 

balancing of public and private 

interests); see also Big Y Foods, Inc., 238 

NLRB 855, 855 n.4 (1978) (showing of 

interest requirement safeguards against 

the indiscriminate institution of 

representation proceedings). Moreover, 

the employer is not required to furnish 

the list to a petitioning union or a 

decertification petitioner until after the 

employer admits that a question of 

representation exists by entering into an 

election agreement or the regional 

director finds that a question of 

representation exists after a pre-election 

hearing. Indeed, as discussed below in 

connection with § 102.63, the Board has 

rejected SEIU’s suggestion that 

employee contact information be 

provided to the nonemployer parties 

before an election is directed, as part of 

the employer’s pre-hearing statement of 

position. In addition, the Agency will 

continue its current practice of 

determining voter lists to be 

categorically exempt from disclosure to 

non-party FOIA requesters. See Reed v. 

NLRB, 927 F.2d 1249, 1252 (D.C. Cir. 

1991).175

Third, even when the voter list 

information is disclosed to the 

nonemployer parties in a particular 

case, such parties will not be able to use 

it for whatever purpose they desire. 

Rather, they will only be allowed to use 

employee contact information for 

limited purposes. As discussed below, 

the final rule provides that ‘‘parties 

shall not use the list for purposes other 

than the representation proceeding, 

Board proceedings arising from it, and 

related matters.’’ Thus, employees need 

not fear that their contact information, 

once disclosed, will be shared with or 

sold to entities having nothing to do 

with the representation proceeding. And 

should such misuse of the list occur, the 

Board will provide an appropriate 

remedy, as discussed further below. 

Finally, any infringement into 

employees’ personal sphere enabled by 

the disclosure requirement in the final 

rule will likely be of relatively limited 

duration. As discussed below in 

connection with § 102.67, the final rule 

also eliminates the mandatory 25-day 

waiting period between issuance of a 

decision and direction of election and 

the holding of the election. Accordingly, 

the time period between the employer’s 

production of the voter list and the 

election may be shorter than that which 

existed prior to the amendments in at 

least some directed election cases. And 

parties are likely to agree to a shorter 

time period between the employer’s 

production of the voter list and the 

election in at least some stipulated 

election cases, because bargaining about 

election details in the election 

agreement context is influenced by the 

parties’ estimation of how soon the 

regional director could conduct an 

election if the parties were to go to a 

hearing. Thus, while some employees 

may certainly prefer not to receive calls 

or emails from the nonemployer parties, 

we note that such communications may 

not continue beyond the period of the 

representation proceeding at issue and 

Board proceedings arising from that 

election and related matters.176

Accordingly, as previously discussed, 

just as the Board’s longstanding 

Excelsior rule reflects a reasonable 

balance of the conflicting legitimate 

interests in the context of that era, so the 

Board’s update of its policies similarly 

reflects a reasonable balance of risk and 

benefit that is well adapted to 

contemporary modes of communication. 

Moreover, the rule reasonably advances 

the public interest in the timely 

resolution of questions of representation 

by enabling the parties on the ballot to 

avoid having to challenge voters at the 

polls based solely on lack of knowledge 

as to the voter’s identity. These 

important interests are sufficient to 

counterbalance the interests of those 

who would prefer to be left entirely 

alone and not be exposed to the issues 

raised by an organizing campaign. 

Some comments, such as those filed 

by SHRM, ACE and the NRF, argue that 

FOIA case law demonstrates that 

employees have such a substantial 

privacy interest in their home addresses 

and email addresses that the Board 

should abandon the voter list proposals. 

For example, NRF argues that the 

Supreme Court recognized in DOD v. 

FLRA, 510 U.S. at 501, that ‘‘even 

though the disclosure of personal email 

addresses may facilitate union 

communications, employees 

nevertheless enjoy a right not to be 

bothered in their personal environment 

with work-related matters.’’ 

After careful consideration of the 

comments, we conclude that DOD v. 

FLRA does not undermine the Board’s 

position that it is appropriate to require 

employers to furnish the voter list 

information directly to the nonemployer 

parties. Put simply, the propriety of the 


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177The Board notes that the United States Postal 

Service, as an employer, is uniquely subject to both 

the Privacy Act and the NLRA. But it has not been 

exempt from disclosing employee eligibility lists to 

petitioning unions under Excelsior, see NLRB v. 

U.S. Postal Serv., 790 F. Supp. 31, 33 (D.D.C. 1992), 

and did not provide any comment in this 

proceeding, much less a suggestion that it would be 

exempt from the present amendments. We therefore 

trust that the Postal Service will, in the first 

instance, seek to harmonize its duties under the two 

Federal statutes. 

Board’s requiring employers under its 

jurisdiction to disclose employee 

contact information directly to a union 

after an election has been agreed to or 

directed under the NLRA—in order to 

advance the public interests in free and 

fair elections and the expeditious 

resolution of questions of 

representation—was not before the 

Court in that case. Rather, the issue 

before the Court there was whether 

Federal agency employers subject to the 

Federal Service Labor-Management 

Relations Statute could lawfully refuse 

to furnish the home addresses of their 

employees to the unions which already 

represented them, because the Privacy 

Act would otherwise bar the employers, 

as governmental entities, from 

disclosing their employees’ home 

addresses. See id. at 490–94. 

DOD v. FLRA involved a ‘‘convoluted 

path of statutory cross-references.’’ Id. at 

495. As the Court noted, the Privacy Act 

provides that ‘‘No agency shall disclose 

any record which is contained in a 

system of records * * * to any person 

* * * unless disclosure of the record 

would be * * * required under section 

552 of [FOIA].’’ Id. at 493–94. The 

employee addresses that the incumbent 

unions sought the Federal agencies to 

disclose were ‘‘records’’ covered by the 

Privacy Act, and therefore the agencies 

were forbidden from disclosing them by 

the Privacy Act unless FOIA required 

release of the addresses. Id. 

As the Court observed, ‘‘while 

‘disclosure [of government documents], 

not secrecy, is the dominant objective of 

[FOIA],’ there are a number of 

exemptions from the statute’s broad 

reach.’’ Id. at 494 (citation omitted). The 

Court then considered Exemption 6, 

which provides that FOIA’s disclosure 

requirements do not apply to personnel 

files the disclosure of which would 

constitute a clearly unwarranted 

invasion of personal privacy. Id. at 494– 

95 (citing 5 U.S.C. 552(b)(6)). 

In determining whether disclosure of 

the home addresses to the incumbent 

unions would constitute a clearly 

unwarranted invasion of the personal 

privacy of the unit employees within 

the meaning of FOIA, the Court 

explained that a court must balance the 

public interest in disclosure against the 

interest Congress intended the 

exemption to protect. Id. at 495. 

However, as the Court explained, there 

is only one ‘‘relevant ‘public interest in 

disclosure’ to be weighed in this 

balance’’: Namely whether the 

information to be disclosed would 

contribute significantly to letting the 

public know what the government is up 

to. Id. at 495, 497 (citation omitted). By 

definition, that purpose is not served by 

disclosure of information about private 

citizens that is in governmental files but 

that reveals little or nothing about an 

agency’s own conduct. Id. at 496–97. 

The Court found that disclosure of 

employee home addresses ‘‘would 

reveal little or nothing about the 

employing agencies or their activities,’’ 

even though it would be useful for the 

union to have the information for 

bargaining purposes. Id. at 497. In short, 

because disclosure of the employees’ 

home addresses would not serve ‘‘the 

only relevant [FOIA-related] public 

interest in disclosure’’ in that case, the 

‘‘nontrivial’’ privacy interest employees 

have in their home addresses sufficed to 

outweigh the ‘‘negligible FOIA-related 

public interest in disclosure.’’ Id. at 495, 

501–02. Accordingly, the Court 

concluded FOIA did not require the 

agencies to divulge the addresses, and 

the Privacy Act therefore prohibited 

their release to the unions. Id. at 502. 

However, the final rule’s requirement 

that a private sector employer disclose 

voter list information directly to the 

nonemployer parties to a representation 

case does not run afoul of the Privacy 

Act, and the relevant public interests 

favoring disclosure of the voter list 

information are entirely different from 

the only ‘‘relevant’’ public interest 

favoring disclosure in DOD v. FLRA. As 

the Court explicitly recognized in DOD 

v. FLRA, ‘‘unlike private sector 

employees, Federal employees enjoy the 

protection of the Privacy Act’’ with 

respect to their employer’s disclosure of 

information about them.177 Id. at 503. 

Put simply, private sector employers’ 

disclosure of the voter list information 

to the nonemployer parties does not 

implicate the Privacy Act because the 

Privacy Act does not apply to such 

employers. See also DOJ Overview of 

the Privacy Act of 1974 at 5 (2012) (DOJ 

Overview), http://www.justice.gov/sites/ 

default/files/opcl/docs/1974privacyact2012.pdf (‘‘The Privacy Act * * * 

applies only to a Federal ‘agency’.’’) 

Accordingly, unlike in DOD v. FLRA, 

the Privacy Act would not otherwise bar 

private sector employers from disclosing 

the voter list information to the 

nonemployer parties to representation 

cases unless disclosure were required by 

FOIA. 

As also shown, the voter list 

amendments are designed to advance 

the public interests in free and fair 

elections as well as the prompt 

resolution of questions of 

representation—interests entirely 

different from the single relevant public 

interest FOIA is designed to advance. 

And the public interests in free and fair 

elections and in the prompt resolution 

of questions of representation are 

indeed advanced by requiring 

employers to disclose the voter list 

information to the nonemployer parties 

to representation cases once elections 

have been agreed to or have been 

directed. Thus, the public interests in 

favor of disclosure of the voter list 

information are not ‘‘negligible, at best’’ 

as was the case in DOD v. FLRA, 510 

U.S. at 497. 

In short, we conclude that nothing in 

DOD v. FLRA calls into question the 

propriety of the voter list amendments 

requiring employers to furnish 

information about its employees to the 

nonemployer parties after an election 

has been agreed to by the parties or 

directed by the regional director. To the 

contrary, the Court recognized there that 

private sector unions covered by the 

NLRA occupy a different position from 

their Federal sector counterparts. Id at 

503. See also id. at 506 (Ginsburg J. 

concurring) (noting that private sector 

unions covered by the NLRA ‘‘routinely 

receive’’ employees’ home addresses 

and citing NLRB v. Wyman-Gordon for 

the proposition that the Board may 

require an employer ‘‘to disclose 

[employees’] names and addresses 

before election[s].’’) 

Similarly, Electronic Frontier 

Foundation v. Office of the Director of 

National Intelligence, 639 F.3d 876 (9th 

Cir. 2010), cited by SHRM among 

others, is, in relevant part, simply a 

routine FOIA Exemption 6 case, in 

which disclosure is not required if the 

information sought does not advance 

FOIA’s interest in government 

transparency—the sole interest relevant 

to the court’s analysis. That case 

involved FOIA requests for information 

relating to governmental discussions 

with telecommunication carriers about 

proposals to immunize the carriers for 

their role in government surveillance 

activities. Id. at 880–81, 885–89. To be 

sure, the court held that the email 

addresses of the carriers’ lobbyists were 

exempt from disclosure under 

Exemption 6, but this was because 

disclosure of the lobbyists’ email 

addresses—as opposed to the lobbyists’ 

names—would reveal little or nothing 

about the government’s conduct. Id. at 


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178 It bears mentioning that, contrary to SHRM’s 

suggestion that the court found that lobbyists have 

a ‘‘substantial privacy interest’’ in their email 

addresses, the court actually concluded that the 

lobbyists have only a ‘‘minor privacy interest’’ in 

the email addresses. See id. at 888 (‘‘If, however, 

a particular email address is the only way to 

identify the carriers’ agent at issue from the 

disputed records, such information is not properly 

withheld under Exemption 6 because this minor 

privacy interest does not counterbalance the robust 

interest of citizens’ right to know ‘what their 

government is up to.’ ’’ (citation omitted)). 

179See Allen LeClaire; Robert Mills II. 

180Subsection (v) of the Privacy Act requires the 

Office of Management and Budget (OMB) to: (1) 

‘‘Develop and, after notice and opportunity for 

public comment, prescribe guidelines and 

regulations for the use of agencies in 

implementing’’ the Act; and (2) ‘‘provide 

continuing assistance to and oversight of the 

implementation’’ of the Act by agencies. 5 U.S.C. 

552a(v). Because ‘‘Congress explicitly tasked the 

OMB with promulgating guidelines for 

implementing the Privacy Act, [the courts] give the 

OMB Guidelines the deference usually accorded 

interpretation of a statute by the agency charged 

with its administration.’’ Sussman v. U.S. Marshals 

Serv., 494 F.3d 1106, 1120 (D.C. Cir. 2007) (internal 

quotation marks omitted). 

181See, e.g., ACE; CNLP; Senator Alexander and 

Republican Senators II; National Grocer’s 

Association (NGA) II. 

182See, e.g., Baker & McKenzie LLP; COSE; 

Anchor Planning Group; SHRM II. 

183See, e.g., Gregg Stackler; Harold Kapaun; 

Kimberley McKaig; Greg Smith II. 

184See, e.g., MEMA II; Vigilant II; IFA II. 

888–89. As the court explained, 

disclosure of the email addresses—as 

opposed to the names—would not shed 

light on who the government was 

meeting with in deciding whether to 

immunize telecommunication carriers 

for their role in the government 

surveillance activities. Id. at 888. 

Accordingly, it was only because the 

sole relevant public interest in favor of 

disclosure under FOIA would not be 

advanced by disclosure that the 

lobbyists’ privacy interest in their email 

addresses prevailed. Id. at 888–89.178 As 

noted above, the balancing of privacy 

and public interests in this context is 

quite different from that under FOIA. 

Nonetheless, given the comments 

claiming that the Board’s proposals 

violate the Privacy Act,179 the Board has 

carefully considered whether and how 

the Privacy Act could be implicated by 

the voter list amendments. The Board 

notes that the voter list amendments 

require the employer to furnish a copy 

of the voter list to the regional director. 

See amended §§ 102.62(d) and 102.67(l). 

But, as discussed in connection with 

§ 102.67 below, the final rule does not 

anticipate—contrary to the original 

NPRM proposal—that the regional 

director will attempt to serve employees 

directly with the notice of election. 

Thus, the agency’s use of the list will 

simply be the traditional one of 

allowing the Board agent conducting the 

election to verify individuals’ 

identification as they arrive to vote at 

the polls. Morever, if the list is retrieved 

electronically, it will be by the 

employer’s name or case number, and 

not individual voters’ names. 

The Privacy Act generally only 

applies to ‘‘records’’ that are maintained 

by an agency within a ‘‘system of 

records.’’ See, e.g., Baker v. Dep’t of 

Navy, 814 F.2d 1381, 1383 (9th Cir. 

1987). A piece of information is only a 

‘‘record’’ if it contains information about 

an individual. And it is generally only 

considered to be maintained in a 

‘‘system of records’’ if two conditions 

are met: (1) the record is maintained in 

a format that makes it possible for 

agency employees to locate it by 

searching according to a name or other 

personal identifier, and (2) agency 

employees actually do retrieve records 

in this manner. DOJ Overview of the 

Privacy Act of 1974 at 28 (2012) (DOJ 

Overview), http://www.justice.gov/sites/ 

default/files/opcl/docs/1974privacyact2012.pdf. ‘‘The highly technical ‘system 

of records’ definition is perhaps the 

single most important Privacy Act 

concept, because * * * it makes 

coverage under the [Privacy] Act 

dependent upon the method of retrieval 

of a record rather than its substantive 

content.’’ DOJ Overview at 30. The OMB 

has provided the following illustration 

of this concept: 

For example, an agency record-keeping 

system on firms it regulates may contain 

‘‘records’’ (i.e., personal information) about 

officers of the firm incident to evaluating the 

firm’s performance. Even though these are 

clearly ‘‘records’’ [‘‘]under the control of’’ an 

agency, they would not be considered part of 

a system as defined by the Act unless the 

agency accessed them by reference to a 

personal identifier (name, etc.). That is, if 

these hypothetical ‘‘records’’ are never 

retrieved except by reference to company 

identifier or some other nonpersonal 

indexing scheme (e.g., type of firm) they are 

not a part of a system of records. 

OMB Privacy Act Guidelines, 40 FR 

28948, 28952 (July 9, 1975).180

In short, records are only within a 

Privacy Act ‘‘system of records’’ if ‘‘an 

agency has an actual practice of 

retrieving information by an 

individual’s name’’ or other personal 

identifier. Henke v. Dep’t of Commerce, 

83 F.3d 1453, 1459 (D.C. Cir. 1996). 

‘‘[R]etrieval capability is not sufficient 

to create a system of records.’’ Id. at 

1460. And a ‘‘practice of retrieval by 

name or other personal identifier must 

be an agency practice to create a system 

of records and not a practice by those 

outside the agency,’’ McCready v. 

Nicholson, 465 F.3d 1, 13 (D.C. Cir. 

2006) (internal quotation marks 

omitted), such as the nonemployer 

parties to an election. 

Applying these principles to the voter 

list amendments, the Board concludes 

that it will not retrieve information from 

voter lists by use of individuals’ names 

or other personal identifiers (rather, it 

will only be retrieved electronically via 

the name of the employer or case 

number), and therefore, although the 

voter lists will generally be produced in 

an electronic format that will 

theoretically be searchable by 

employees’ names, the voters lists are 

not part of a ‘‘system of records’’ within 

the meaning of the Privacy Act. 

Accordingly, nothing about the voter list 

amendments can reasonably be viewed 

as violating the Privacy Act. 

Multiple comments urge a variety of 

means by which the Board should 

protect employees’ privacy interests: (1) 

Require that employees must 

affirmatively indicate that they are 

willing to have their personal contact 

information shared with the parties on 

the ballot before it requires the 

employer to disclose that 

information; 181 (2) allow employees the 

opportunity to opt out of such 

disclosures; 182 (3) mandate that contact 

information be obtained directly from 

employees themselves instead of from 

the employer; 183 or (4) require that the 

Board host opportunities for electronic 

contact between petitioners and 

employees through some type of 

protected communications portal.184 We 

have consistently rejected similar 

proposals in the past. In Excelsior, the 

Board was not swayed by the 

‘‘argu[ment] that if employees wished 

an organizing union to have their names 

and addresses they would present the 

union with that information.’’ 156 NLRB 

at 1244. And in British Auto Parts, Inc., 

we rejected an employer’s attempt to 

comply with Excelsior by informing its 

employees that the Board had requested 

their names and addresses and 

providing them with ‘‘an envelope 

addressed to the Regional Director for 

* * * employee[s’] use in submitting 

the information should [they] desire to 

do so.’’ 160 NLRB 239, 239 (1966). The 

Board has recognized that even 

unsolicited contact by the union 

remains an important part of the basic 

Section 9 process. See Excelsior, 156 

NLRB at 1244. Indeed, a wide open 

debate cannot take place unless 

employees are able to hear all parties’ 

views concerning an organizing 

campaign—even views to which they 

may not be predisposed at the 

campaign’s inception. And as explained 

above, we have concluded that 


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185As the Supreme Court held in NLRB v. A.J. 

Tower, the Board must ‘‘promulgate rules and 

regulations in order that employees’ votes may be 

recorded accurately, efficiently and speedily.’’ 329 

U.S. 324, 331 (1946). Again, Congress knew that the 

Board would need flexibility in crafting procedures, 

and noted ‘‘the exceptional need for expedition’’ in 

representation cases when exempting them from the 

APA’s adjudication provisions. 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)); see also NLRB v. Sun Drug Co., 

359 F.2d 408, 414 (3d. Cir. 1966) (Congress 

insulated representation cases from direct review 

because ‘‘[t]ime is a critical element in election 

cases’’). Long before the NPRM, Section 11302.1 of 

the Agency’s Casehandling Manual reflected this 

congressional directive of timely elections, stating 

that ‘‘[a]n election should be held as early as is 

practical.’’ Similarly, § 102.67(b) of the final rule 

provides that ‘‘[t]he regional director shall schedule 

the election for the earliest day practicable 

consistent with these rules.’’ 

186Marvin Kumley suggests that employees be 

given at least 30 days to opt in, and further suggests 

that opt-in notices be posted in the Federal Register 

and local newspapers as a matter of course. 

187The Excelsior Board rejected a similar 

suggestion that employee names and addresses be 

provided to a third party mailing service for 

distribution of union campaign literature due, in 

part, to the ‘‘difficult practical problems’’ that 

would be created by such an arrangement. 156 

NLRB at 1246. 

188 Indeed, multiple parties at the public hearing 

on April 11, 2014, acknowledged this very problem 

when discussing employer’s potentially 

administering an opt-in or opt-out process. See, e.g., 

Testimony of Caren Sencer on behalf of Weinberg, 

Roger & Rosenfeld II. 

189For example, once all parties have agreed to 

an election or the regional director has directed an 

election, the employer could be required to post 

information including the union’s (or 

decertification petitioner’s) email address and 

phone number to allow employees to directly 

contact the union (or decertification petitioner) if 

they desired to share their personal email addresses 

or phone numbers in order to receive 

communications from the nonemployer party 

concerning the upcoming election, without 

informing the employer of their choice. But, as 

shown, such a process would require delaying the 

election to provide sufficient time for employees to 

opt in and to allow the nonemployer parties to 

make use of the information with respect to those 

employees who have opted in. 

The Chamber’s II similar suggestion of allowing 

petitioning unions to create a Web site for 

employees to visit and then sharing site information 

with employees via U.S. mail after employers 

shared a traditional voter list of names and home 

addresses with the petitioner would involve still 

more delay, and would, of course, reduce the 

likelihood of employees receiving campaign 

communication from the petitioning union. 

Furthermore, the Chamber’s proposal presumes not 

only internet access for all employees, but also a 

level of technological sophistication (i.e. the ability 

to create and monitor interactive Web sites) that we 

think is unrealistic for many petitioners— 

particularly low wage workers and small union 

locals or individual employees seeking to oust an 

incumbent union. 

disclosure of available personal email 

addresses and telephone numbers is just 

as critical to the holding of fair and free 

elections and to the expeditious 

resolution of questions of representation 

in 2014 as was disclosure of home 

addresses in the 1960s. Thus, it would 

hardly be consistent with the policy 

underlying Excelsior—ensuring that 

employees receive sufficient 

information from the nonemployer party 

to make an educated decision—to begin 

allowing employees to opt in or opt out 

of such disclosures. 

Nevertheless, the Board is mindful 

that the disclosures in the final rule go 

further than those at issue in the 

original Excelsior decision, and so we 

have considered whether a different 

balance should be struck. After 

thoroughly considering the issue, 

however, we have concluded that 

notwithstanding the additional 

information to be disclosed under the 

amendments, the public interests in fair 

and free elections and in the prompt 

resolution of questions of representation 

outweigh employee privacy interests 

and that creation of an opt-in or opt-out 

procedure, or an agency-hosted 

protected communications portal, 

would harm those public interests and, 

in some cases, impose significant 

administrative burdens on the 

government and the parties. 

Just as was the case under the prior 

rules, the voter list information is not 

due until soon after the parties have 

entered into an election agreement in a 

unit appropriate for collective 

bargaining, or the regional director has 

directed that an election be held in an 

appropriate unit. In either event, 

congressional policy is clear that 

representation elections should be 

conducted with the utmost 

expedition.185 Yet, typical opt-in or optout requirements would further delay 

the election’s conduct. Such delay 

would arise, for example, if extra time 

were allotted between an election’s 

direction and its conduct for 

communication with the subject 

employees concerning their ability to 

opt in or out of disclosing their email 

addresses or phone numbers because 

until the parties agree to any election, or 

the director directs an election, the unit 

in which the election is to be conducted 

is not known. Accordingly, not every 

relevant employee could be contacted 

regarding opting in or out until after the 

election agreement was reached or the 

director directed an election. Employees 

would then need some additional 

reasonable period of time to make their 

choices.186 Still more time would be 

required for compiling those preferences 

and producing a voter list (which 

respects those preferences) for use by 

the nonemployer parties to the case. 

And of course, the nonemployer parties 

would have to be afforded time to make 

use of the information with respect to 

the employees who have opted in. Such 

a system could well prove to be 

administratively difficult,187 and even if 

operating smoothly could delay the 

election by many days or weeks. 

Moreover, if the regional director 

were assigned the responsibility to 

contact the employees to ascertain 

whether they wished their contact 

information to be shared with the union, 

the regional director could not do so 

unless and until the employer revealed 

the employees’ contact information to 

the regional director. Yet, presumably at 

least some of the employees who object 

to having their contact information 

disclosed to the nonemployer parties to 

the case would similarly object to 

having their contact information 

disclosed to the government. And 

requiring the regional director to contact 

each and every unit employee to 

ascertain his or her position regarding 

disclosure of the voter list information 

would place a significant administrative 

burden on the government. 

We are also concerned that any optin or opt-out process would invite new 

areas of litigation resulting in additional 

costs to the parties and the Board. 

Considering that neither the region, nor 

the petitioner would be in a position to 

administer the opt-in or opt-out process 

until after the employer had disclosed 

employee contact information, it could 

be argued that it would be more efficient 

for the employer to administer the optin or opt-out process. It would be 

curious indeed for the Board to create a 

process which obligated employers to 

ask their employees—including those 

employees who have deliberately 

chosen to keep their pro or anti-union 

sentiments private—whether they wish 

to share their contact information with 

the union, given that employers could 

be found to have committed unfair labor 

practices by interrogating such 

employees about their union sentiments 

or contacts with the union.188

In the likely circumstance in which 

nonemployer parties, when receiving a 

voter list indicating that substantial 

numbers of employees had chosen not 

to have their email addresses or phone 

numbers disclosed, raise accusations of 

improper employer coercion of their 

employees regarding their choice, 

investigations would be triggered. Such 

proceedings would impose costs on the 

parties and the government, and could 

cause significant delay in conducting 

the election. Even in a process in which 

the employee choices were shielded 

from employer knowledge,189 however, 

we would still foresee frequent 

accusations of and opportunities for 

subtle employer pressure to keep 

contact information from the petitioning 


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190We see similar problems with designing a 

system in which the nonemployer parties would, by 

default, receive only employees’ names and 

addresses as under the current Excelsior policy, 

subject to a showing that email addresses and/or 

phone numbers are necessary in a particular case 

for effective and timely communication with the 

employees. If such a showing were required after 

the nonemployer parties had already attempted 

communication via home addresses, then it would 

necessarily add a substantial amount of time to the 

election process. In the alternative, if the showing 

were required preemptively as part of the petition 

itself, we would be introducing yet another area for 

litigation that would have to be decided before an 

election could be directed; likely adding time to the 

pre-election process, and increasing the chance of 

post-election appeals by the losing party, which 

would serve to lengthen the post-election process. 

191We do note that it would be possible to require 

all employees to designate a single means by which 

to be contacted—telephone number, email address, 

or home address. This approach would be less 

likely to reveal employees’ views on the question 

of union representation. Delays would result, 

however, as employers collected employees’ 

designations after the regional director directed an 

election or the parties entered into an election 

agreement. Such delays could only be avoided by 

imposing a duty upon all employers under the 

Board’s jurisdiction to record such employee 

choices at the time of hire. But nothing in the final 

rule creates such a widespread burden on small 

employers nationwide to collect and retain 

information no matter how remote the possibility 

may be that such employers will someday be 

involved in an NLRB representation case, and we 

are reticent to impose such a burden in this context. 

In any event, such an approach would defeat the 

very purposes identified in Excelsior, by reducing 

the chance that voters would be presented with a 

nonemployer party’s information concerning 

representation and the likelihood that the 

nonemployer parties could investigate the 

eligibility of the unknown employees on the 

employer’s list prior to the election. 

192See UFCW II. 

193See Testimony of Katy Dunn on behalf of SEIU 

II. Also, according to the testimony of Jess Kutch, 

any union (or third party provider) in the business 

of sending bulk emails already includes such 

unsubscribe options in its bulk emails in order to 

avoid being labeled as spammers with attendant 

downgrading to their IP server reputation scores. 

This testimony also demonstrates that effectively 

administering a mandatory ‘‘opt-out’’ requirement 

would, as a practical matter, likely be beyond the 

NLRB’s capacity, as it might unintentionally come 

into conflict with the requirements of bulk-emailers 

already imposed by the market’s continuously 

adapting responses to ‘‘spam.’’ Meanwhile, an optout mandate would also likely prove 

inadministrable as applied to individual employees 

and small independent organizations. 

194See, e.g., IFA II; Louis Toth II. 

195See SEIU II; AFL–CIO II. 

union as a fertile area for representation 

case disputes, requiring the expenditure 

of additional regional resources to 

investigate and for the parties to litigate, 

all with the result of pushing resolution 

of representation cases further and 

further into the future.190

Moreover, even if employees were 

questioned whether they wished to 

share their contact information with the 

petitioning union in a noncoercive 

manner and even if such an opt-in or 

opt-out procedure did not result in 

additional litigation, we believe that one 

could conclude that such a process 

would require the invasion of employee 

privacy in the name of protecting 

employee privacy. Thus, the opt-in or 

opt-out procedure could not be 

administered in a blind fashion like a 

secret ballot election in which no one is 

forced to vote. Rather, each employee 

would have to be asked whether he or 

she wished to share his or her contact 

information with the nonemployer 

parties, and the questioning would 

necessarily result in a list indicating 

which employees had authorized their 

additional contact information to be 

shared with the nonemployer parties. In 

our view, at least some employees 

would believe that their answering the 

question would reveal their sentiments 

about whether they wished to be 

represented for purposes of collective 

bargaining by the union. Accordingly, 

employees could conclude that the 

process would expose their private 

beliefs to both the party asking the 

question and to the nonemployer parties 

who ultimately receive the voter list.191

The Board has also considered 

whether the rules might mandate that 

unions provide an opt-out feature, such 

as an ‘‘unsubscribe’’ option in bulk 

emails. But this union-administered 

approach would do nothing to allay 

privacy concerns having to do with the 

disclosure of contact information in the 

first place. It would also be of limited 

utility, given the short period during 

which contacts are most likely to occur 

and given that it would be necessary to 

allow a certain amount of time for the 

nonemployer party to update its 

records. Furthermore, as discussed 

below, if they are applicable, the CAN– 

SPAM Act and Do-Not-Call Rule may 

already impose similar requirements in 

any event. Indeed, some union 

comments stressed that it was already 

their organizers’ practice to cease 

contacting employees when so 

requested,192 and that unsubscribe 

features are included in bulk email 

messages and texts as a matter of 

course.193 For all these reasons, the 

Board’s attempting to craft a universally 

applicable opt-out requirement unique 

to Board elections would have highly 

uncertain benefits at a cost of generating 

new election disputes and possible 

conflicts with other Federal regulation 

of the same subject matter. On balance, 

the existing self help remedy available 

to anyone who objects to unwanted 

communications—ignoring calls or 

letters and deleting emails—seems for 

the time being to be a more costeffective option. Of course, should 

unwanted contacts rise to the level of 

harassment or coercion, the Board has 

the remedial authority to craft 

appropriate remedies, as discussed 

below in connection with the proposed 

restriction on use of the voter list. 

Agency-hosted communications 

portals—raised in the NPRM (see 79 FR 

7328)—were endorsed by a few 

comments as an alternative that could 

possibly avoid some of the problems 

inherent in the opt-in or opt-out 

processes discussed above.194 Yet, we 

harbor serious doubts about whether 

such a portal would be feasible for the 

agency to construct or administer, and 

the comments did nothing to ease our 

concerns. To the contrary, the 

comments analyzing the concept in 

more depth raised several issues that 

lead us to believe that the concept is 

seriously flawed. For example, 

comments observed that communication 

between a petitioner and employees 

becomes less likely, the more steps (or 

‘‘clicks’’ in internet parlance) that an 

individual must take to enable the 

communication.195 The Board found the 

testimony of Jess Kutch particularly 

persuasive on this point, especially as 

she explained how the potential 

problems associated with individuals 

needing to take multiple steps to access 

or log-in to the agency portal would be 

exacerbated if those individuals—as can 

reasonably be expected—would be 

attempting to access the portal through 

the comparatively small screens on their 

cell phones. See Testimony of Jess 

Kutch on behalf of Coworker.org II. 

Moreover, Ms. Kutch (relying on her 

background in online organizing and 

bulk email delivery) persuaded the 

Board that designing a system whose 

success depended on the agency’s 

navigation of spam filters to ensure high 

rates of email deliverability to the 

individuals at issue would likely be 

beyond the agency’s technological 

capacity (or our forseeable budgetary 

restrictions). Id. In addition, the Board 

finds troubling the suggestions that an 

agency-sponsored communications 

portal could destroy legal privileges that 

might otherwise attach to 

communications between union 

attorneys and organizing employees 

(AFL–CIO II), and that the alternative of 

providing petitioners with masked 

emails to use in communicating directly 

with employees could have the 

unintended consequence of preventing 

unions from allowing employees to 

unsubscribe from bulk messages (SEIU 

II). In sum, we doubt that we have the 

resources to effectively implement a 

protected communications portal, and 

even if we did, the potential for 

unintended consequences associated 


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196See, e.g., NUHW II. 197See Testimony of Kara Maciel on behalf of the 

NGA II; see also Testimony of Melinda Hensel on 

behalf of IUOE, Local 150 II (agreeing with the 

NGA’s concerns as to the agency-sponsored 

communications portal). 

198We also reject—as inconsistent with the 

concerns animating Excelsior—suggestions that: All 

individualized contact between unions and 

employees be eliminated (Dante Fauci II); unions 

should only be allowed to pass out flyers from 

parking lots on agreed-upon dates (Charles Lingo 

II); and unions should only have a right to view, 

but not copy, a list of employee names and 

addresses once within 30 days of an election 

(Testimony of J. Aloysius Hogan on behalf of the 

Competitive Enterprise Institute II). Similarly, the 

Board declines Brian Richardson’s suggestion that 

an employer should mail union information to 

employees if the union bears the costs. At the very 

least, such a two-step procedure would invite delay, 

and clearly would not serve the key purpose of the 

Excelsior list: Ensuring that the nonemployer 

parties have access to the electorate. As the 

Excelsior Board noted in rejecting a similar 

argument, the union should not be limited to the 

use of the mails in its efforts to communicate with 

the entire electorate. 156 NLRB at 1246. It would 

also invite litigation if employees did not timely 

receive the union’s correspondence. The Board also 

notes that employers have never had a right to see 

other parties’ campaign propaganda, let alone to see 

it before the unit employees view it. Nor are we 

persuaded by comments that the concerns 

underlying Excelsior, or any other relevant concern, 

would be advanced by providing union officials’ or 

union activists’ personal contact information to 

employers. (See Richard Oakes II and Anonymous 

Anonymous II). Non-employee union organizers or 

officials do not cast ballots in representation case 

proceedings, and so there is no parallel reason that 

employers should be empowered to communicate 

with them outside of the official channels listed in 

the petition. To the extent that union activists are 

employees, employers already enjoy all of the 

mandatory means to communicate with them 

discussed above, and need not be specifically 

provided with any personal contact information 

that the employer does not otherwise possess. 

199See, e.g., NLRB v. Pratt & Whitney Air Craft 

Div., 789 F.2d 121, 131 (2d Cir. 1986) (‘‘Simply 

asserting that the results should remain confidential 

because the employees were promised 

confidentiality does not discharge the employer’s 

burden’’); Holiday Inn on the Bay, 317 NLRB 479, 

482 (1995) (standing by itself, an employer’s desire 

to shield employee information from disclosure on 

the basis of a confidentiality policy ‘‘cannot suffice 

to preclude disclosure which promotes statutory 

policies’’); New Jersey Bell Telephone Co., 289 

NLRB 318, 319–320 (1988) (noting that DetroitEdison provides no support for employer claim that 

it should be able to deny requests for relevant 

information simply because its privacy plan 

requires employee consent for such disclosures), 

enforced mem., 872 F.2d 413 (3d Cir. 1989). 

200We note that the comments do not persuade 

us that employers routinely pledge to their 

employees that they will keep confidential such 

information. 

with that proposal counsel against its 

pursuit. 

Perhaps the most fundamental flaws 

with the agency-sponsored 

communications portal, however, are 

ones that are shared by any paradigm in 

which the agency would allow 

employees to opt-in, opt-out, or to pick 

one mode of communication to be 

utilized by employees with a 

nonemployer party. Namely, each of 

these options would carry the potential 

to leave nonemployer parties in a worse 

position to effectively communicate 

with employees than they are under the 

current Excelsior regime. Instituting an 

opt-in, opt-out, or a portal system that 

would apply only to communications 

between employees and nonemployer 

parties, would deny employees 

information from the nonemployer 

party, a problem the Excelsior doctrine 

seeks to mitigate. Moreover, we are 

concerned that agency communication 

with employees concerning each of 

these alternatives carries an 

inappropriate implication that those 

employees have something to fear from 

nonemployer parties possessing their 

contact information—contact 

information that is, at least in some 

instances, already in the possession of 

their employers or an incumbent union 

representative.196 Each of these 

alternatives also inappropriately implies 

that the nonemployer party’s message is 

not important—i.e. that paying attention 

to it is optional to becoming fully 

informed about the election. This would 

amount to the Board putting a virtual 

thumb on the scales in influencing 

employees’ exercise of their rights to 

decide for themselves whether to seek 

(or maintain) union representation, and 

would run directly counter to a core 

animating purpose of the Excelsior 

doctrine. The Board notes that some 

comments take the opposite view: that 

by sponsoring avenues of 

communication between employees and 

a petitioning union—via protected 

portals or opt-out processes—the Board 

would improperly suggest that it was 

not neutral, but pro-unionization. This 

possible interpretation is yet another 

reason not to pursue these alternative 

proposals.197

In sum, even if we were to judge that 

a fair election required only that 

employees be given the option of 

enabling or disabling email or phone 

communication channels with the 

nonemployer parties, we are skeptical 

that such a system could be put in place 

without significant negative 

ramifications for the representation case 

process. In a rulemaking designed to 

eliminate unnecessary barriers to the 

fair and expeditious resolution of 

questions concerning representation, we 

are loath to create new barriers in place 

of the old.198 Instead, we have 

concluded that employees’ legitimate 

interest in the confidentiality of their 

personal email addresses and phone 

numbers is outweighed by the 

substantial public interest in disclosure 

where, as here, disclosure is a key factor 

in insuring a fair and free election and 

an expeditious resolution of the 

question of representation. 

In reaching this conclusion, we wish 

to emphasize that we are mindful of the 

privacy interests employees have in the 

information in question. But we 

reiterate that the Board must balance 

that privacy interest against the interests 

served by disclosure. As explained 

above, the comments do not persuade us 

that the balance struck in Excelsior and 

approved by the Supreme Court in 

Wyman-Gordon should be struck 

differently because of the additional 

information to be disclosed under the 

voter list amendments. 

AHA II, ACE and others complain that 

the rule may conflict with employer 

confidentiality policies and that the 

Board should therefore reject the voter 

list proposals. But the potential for such 

conflicts already exists under the 

current Excelsior requirement, and the 

comments do not cite a single case in 

which an employer’s confidentiality 

policy has been permitted to stand in 

the way of Excelsior disclosures. Indeed, 

one of the courts called on to review the 

original Excelsior requirement flatly 

rejected an employer’s claim that it did 

not have to make the disclosures 

because it had promised its employees 

that any contact information would be 

kept confidential. See NLRB v. British 

Auto Parts, Inc., 266 F. Supp. 368, 373– 

74 (C.D. Cal. 1967), aff’d, 405 F.2d 1182 

(9th Cir. 1967). In a similar context, 

where employers have refused to 

disclose requested information to an 

incumbent collective-bargaining 

representative, the Board and the courts 

have repeatedly held that simply 

invoking a confidentiality policy will 

not allow an employer to avoid 

disclosure.199

We recognize that some employers 

strive to preserve the confidentiality of 

private employee information.200 But 

we also note that pledges of 

confidentiality may provide for 

exceptions such as when, as here, 

disclosure would be legally required. 

See, e.g., Howard University, 290 NLRB 

1006, 1007 (1988). Employers will be 

able to point to the Board’s published 

rules should such disclosure be 

questioned by an employee. Ultimately, 

we conclude that the substantial public 

interests in fair and free elections and in 

the expeditious resolution of questions 

of representation outweigh whatever 

legitimate interest an employer may 

have in keeping confidential his 

employees’ personal email addresses, 

home and personal cell phone numbers, 

work locations, shifts and job 

classifications. See Excelsior, 156 NLRB 

at 1243 (similarly concluding that an 

employer’s interest in keeping 


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201See, e.g., Sheppard Mullin II; Bruce E. 

Buchanan; ALG; U.S. Poultry II. 202See Testimony of Melinda Hensel on behalf of 

IUOE Local 150 II. 

203The Board therefore is skeptical of RILA’s fear 

that the expanded disclosure requirements will 

trample the privacy of nonemployees. Indeed, the 

ability of organizers to reach employees by personal 

cell phone or email suggests that organizers will be 

less likely to interact with non-employees (such as 

family members of employees) for any length of 

time. The Board also sees no reason to fear that any 

serious problems will be created by the potential 

that employees’ children could view union 

messages when sent to an email address shared by 

the family. See Testimony of Maciel II. 

204See, e.g., CBFC; ALG; SSINA. 

205To be sure, there was some agreement amongst 

speakers at the Board’s April 11, 2014 public 

hearing that it would be inappropriate to apply the 

same restrictions to employer communications with 

their employees on the subject of unionization, as 

those same speakers advocated should be applied 

to communications to employees coming from 

petitioning unions. See, e.g, Testimony of Kara 

Maciel on behalf of NGA II; Testimony of Joseph 

Torres on behalf of Winston & Strawn II; Testimony 

of Fred Wszolek on behalf of Workforce Fairness 

Institute II. 

206AHCA shares this concern. 

employees’ names and addresses 

confidential was outweighed by the 

public interest in disclosure). 

Some comments attacking the 

proposals also indicate persistent 

privacy concerns about the original 

Excelsior policy. For example, GAM 

asserts that employers already 

experience significantly distressed 

employees because their home 

addresses are currently being disclosed 

to petitioners without their consent 

under Excelsior. Although some 

comments predict that disclosure of 

phone numbers and email addresses 

will exacerbate this perceived 

problem,201 as noted above, the Board 

takes the opposite view. Indeed, the 

Board agrees with the views expressed 

in many comments that contact via 

phone and email is less invasive than 

face to face visits with employees at 

their homes. The Board anticipates that 

unions, as predicted by Melinda 

Hensel,202 in an effort to conserve finite 

organizing resources, will in some cases 

make use of phone and email contact 

information in lieu of visiting 

employees at home.203 It follows that to 

the extent that invasion of privacy 

concerns persist about the original 

Excelsior policy of home address 

disclosure, those concerns could be 

ameliorated by the final rule’s provision 

for the disclosure of personal email 

addresses and home and personal cell 

phone numbers. 

To the extent that comments focus on 

the annoyance of unwanted calls or 

emails,204 the Board sympathizes with 

employees who simply wish to reduce 

the volume of such communications 

they receive. Even so, however, the 

Board is not persuaded that the 

potential for such irritations—which 

may be dealt with by simply refusing 

the call, hanging up, scrolling over, or 

hitting the delete key—should trump 

the public interest in the fair and free 

choice of bargaining representatives and 

in the expeditious resolution of 

questions of representation. Indeed, the 

Board agrees with the Fourth Circuit’s 

statement regarding the original 

Excelsior requirement, that ‘‘the mere 

possibility that employees will be 

inconvenienced by telephone calls or 

visits to their homes is far outweighed 

by the public interest in an informed 

electorate.’’ NLRB v. J. P. Stevens & Co., 

409 F.2d at 1209 (emphasis added). We 

believe that the advent of caller 

identification services on many home 

phones and virtually all cell phones will 

allow employees to avoid unwanted 

calls with relative ease, and the typical 

display of an email’s sender and subject 

should similarly allow employees to 

disregard organizing messages should 

they so choose. As explained by Jess 

Kutch at the Board’s April 11, 2014, 

public hearing, the policies and 

professional interests of mass emailers 

utilized by most organizing unions will 

ensure that employees have an option to 

unsubscribe from most mass campaign 

email lists should they so choose, and 

employees will also enjoy the option of 

blocking emails from individual senders 

with whom they no longer desire to 

communicate. See Testimony of Kutch 

II. Moreover, we note that as AFL–CIO 

Organizing Director Elizabeth Bunn 

explained in her public hearing 

testimony, organizing unions typically 

‘‘find that workers actually prefer to talk 

to union supporters and their union 

representatives off work because it’s in 

an environment where the fear at least 

is taken out of the communication. So 

we’ve not experienced that anger and 

irateness that was discussed yesterday 

[by employer representatives].’’ In short, 

the Board does not view the potential 

for annoyance as a sufficient 

counterweight against an informed 

electorate and the expeditious 

resolution of questions of representation 

to justify keeping the voter list 

information disclosures as minimal and 

outdated as they are today. 

Additionally, as SEIU (reply) points 

out, labor law already tolerates 

encroachment on an employee’s time 

during representation campaigns as 

employers face no legal impediment to 

using contact information in their 

possession (which is to be disclosed on 

the voter list). Employers may place 

calls and text messages to the 

employees’ home and personal cell 

phones and send email messages to 

their employees’ personal email 

addresses. In short, whether or not 

employees’ phone numbers and email 

addresses are disclosed to petitioners, 

there is no guarantee that employees 

will not receive campaign-related 

messages on their personal phones and 

personal email accounts, because their 

employer may have this information 

and use it to send campaign 

information. 

Implicitly, however, privacy claims in 

the comments assume that employees 

should be able to prevent campaign 

messages from reaching their personal 

email and phone. If this perspective 

were accepted in toto, it would suggest 

that the Board should also be restricting 

employer use of personal contact 

information, in addition to excluding it 

from the voter list given to 

nonemployers. Yet, we are not 

persuaded that the current rulemaking 

should be used to restrict such 

currently-lawful campaign speech by 

employers under the cause of employee 

privacy. 205 In this regard, the Board 

also rejects the suggestion by the 

Chamber II that home visits should be 

either eliminated or restricted to one 

visit. As discussed above, no patterns of 

abuse have emerged since Excelsior to 

support such a restriction on 

nonemployers’ ability to use home visits 

to communicate about representation 

issues if they so choose. Moreover, 

employees can reject attempts at home 

visits by, for example, not answering the 

door, closing the door, asking visitors to 

leave, and through enforcement of state 

and local trespass laws. 

The Board also disagrees with the 

view expressed by Pinnacle Health 

System of Harrisburg, Pennsylvania 

(Pinnacle) that the voter list disclosures 

are ‘‘particularly problematic 

considering that the list may contain the 

information of individuals who are 

managers and supervisors and whose 

status will not be determined until after 

the election by way of post-election 

challenge.’’ 206 As more thoroughly 

explained in connection with § 102.66 

below, this alleged problem existed 

prior to the NPRM. Thus, prior to the 

NPRM, supervisory and managerial 

status determinations could be deferred 

until after the election. In those cases, 

regional directors instructed employers 

to include the disputed individuals on 

the Excelsior list with the understanding 

that they would vote subject to 

challenge. And, in any event, the Board 

does not presume that an alleged 

supervisor’s or manager’s contact 

information being inadvertently 


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207See, e.g., CDW; Buchanan; NRF; Indiana 

Chamber; Doug Muyres II. 

208See, e.g., National Mining Association; ACE; 

Sheppard Mullin. 

209NRMCA II also cites East Tennessee Baptist 

Hospital v. NLRB, 6 F.3d 1139, 1144 (6th Cir. 1993) 

as possibly at odds with the NPRM, but the court’s 

opinion did not address the question whether an 

employer should be obligated to disclose employee 

contact information in any setting, let alone 

whether an employer should be obligated to 

provide employee contact information to the union 

which had petitioned for an election so that it could 

be certified as their collective-bargaining 

representative. 

210See also Tenneco, Inc., 357 NLRB No. 84 (Aug. 

26, 2011), enforced in relevant part, denied in part, 

716 F.3d 640 (D.C. Cir. 2013), where the Board 

found that the employer’s withholding of the 

replacements’ home addresses breached its 

bargaining duty, because the union represented the 

replacements after strike’s end and there was no 

‘‘clear and present danger’’ of the union misusing 

the information; the Board also addressed the 

‘‘totality of the circumstances’’ standard used by 

some circuits. 

211See White v. Davis, 13 Cal. 3d 757, 760, 775– 

776 (1975) (holding police posing as students to 

record classroom activities at university solely for 

information-gathering purposes violated California 

constitution); Belaire-West Landscape, Inc. v. 

Superior Court, 149 Cal. App. 4th 554, 556–559, 

561–562 (Cal. Ct. App. 2007) (holding that 

plaintiff’s request for names, addresses, and phone 

numbers of defendant’s employees did not violate 

California constitution where plaintiff was trying to 

identify potential class members in class action and 

employees were able to opt out of disclosure); 

Planned Parenthood Golden Gate v. Superior Court, 

83 Cal. App. 4th 347, 352–353, 357, 369 (Cal. Ct. 

App. 2000) (holding state interest in broad 

discovery outweighed by nonparties’ interest in 

privacy where plaintiff sought names, addresses, 

and phone numbers of nonparty supporters of 

Planned Parenthood without demonstrating need 

for such information). Sheppard Mullin also cites 

Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 

524, 527 (2011), a case dealing with a statute 

prohibiting businesses from requesting that 

cardholders provide personal identification 

information during credit card transactions and 

then recording that information. The final rule 

clearly does not implicate the statute or interests at 

issue in that case. 

disclosed will lead to any greater 

dangers than the disclosure of contact 

information for other coworkers. 

The Board also does not share the 

fears expressed by some commenters 

that disclosure of cell phone numbers 

will lead employees to suffer significant 

unwelcome costs from phone calls and 

texts that exceed their data plans.207 As 

an initial matter, the Board does not 

believe that a union is likely to act 

counter to its own organizing selfinterests by placing so many calls or 

sending so many texts as to financially 

harm those potential voters who lack 

unlimited calling and text plans. Given 

that their use will be restricted to the 

representation proceeding at issue, 

Board proceedings arising from it, and 

related matters, the risk that unions’ 

receipt of cell phone numbers will cause 

financial harm to employees is further 

lessened. In addition, the Federal 

Communications Commission has 

addressed the cell phone ‘‘bill shock’’ 

issue alluded to by CDW, and in 2011 

touted its far-reaching agreement with 

the wireless industry to address the 

problem. See ‘‘CTIA, Consumers Union 

and the FCC to Announce New Industry 

Guidelines’’ (Oct. 17, 2011), http://

www.fcc.gov/events/ctia-consumersunion-and-fcc-announce-new-industryguidelines. By 2013, the FCC announced 

that approximately 97 percent of 

wireless customers across the nation 

were protected from bill shock as 

participating U.S. wireless companies 

met a deadline to provide free, 

automatic alerts to customers who 

approach or exceed their wireless plan 

limits. See ‘‘FCC Marks Milestone in 

Effort to Eliminate ‘Bill Shock’.’’ (April 

18, 2013), http://www.fcc.gov/tools/

headlines-archive/2013. The Board 

trusts that any lingering bill shock 

concerns—relevant to a great percentage 

of Americans beyond those who may 

participate in an NLRB election—will 

continue to be addressed by the FCC, 

and need not cause the Board to 

abandon disclosure of cell phone 

numbers. Of course, should bill shock 

nonetheless prove to be a serious 

problem in the representation case 

context, the Board has clear authority to 

create appropriate remedies through 

adjudication. 

e. Purported Conflict With Precedent 

and Other Laws 

The National Ready Mix Concrete 

Association (NRMCA) and others assert 

that disclosure of personal email would 

be inconsistent with the Board’s stated 

concerns about email in Trustees of 

Columbia University, 350 NLRB 574, 

576 (2007).208 We disagree. The Board 

in that case posed a number of questions 

‘‘regarding the potential ramifications 

* * * of requiring employers to furnish 

* * * employees’ workplace email 

addresses.’’ Id. at 576 (emphasis added). 

We noted, for instance, that union 

mailings to work email addresses could 

impose costs on employers and raise 

unlawful surveillance concerns. Id. As 

explained above, however, the final rule 

does not require the employer to 

disclose the work email addresses to the 

nonemployer parties, and therefore it is 

unnecessary for us to answer questions 

concerning work email in this rule. 

And, as we expressed in the NPRM, the 

Board’s limited holding in Trustees of 

Columbia University was only that, 

‘‘given the Employer’s undisputed 

compliance with its Excelsior 

obligations as they stood as of the date 

of the Union’s request, we are 

unwilling, on the facts of this case, to 

characterize that compliance as 

objectionable conduct.’’ Id. In short, we 

see nothing in that case that precludes 

us from requiring the provision of 

personal email addresses as part of the 

voter list, to the extent that an employer 

keeps records of employees’ personal 

email addresses. 

Several comments also raise the 

specter of conflicts with circuit court 

precedent and state privacy law if the 

Board were to require disclosure of 

employee contact information. The 

Board is not persuaded by these 

comments. Regarding circuit court 

precedent, ACE for example cites JHP & 

Associates, LLC v. NLRB, 360 F.3d 904, 

911–912 (8th Cir. 2004), and NRMCA II 

cites Chicago Tribune Co. v. NLRB, 79 

F.3d 604, 608 (7th Cir. 1996) as possibly 

at odds with the rule. But those cases 

are inapposite. The courts found that 

harassment was a concern in each of 

those cases because the respective 

unions sought the home addresses of the 

individuals hired to replace the 

employees who had struck in support of 

the very union seeking the information. 

See JHP& Associates, 360 F.3d at 908, 

911–12, and Chicago Tribune, 79 F.3d at 

606–08.209 The disclosures mandated by 

the final rule therefore do not implicate 

the concerns articulated by the circuit 

courts in these cases.210

Regarding state privacy law, NRMCA 

for example, cites a case discussing the 

New Jersey state constitution while 

Sheppard Mullin II points to several 

cases explaining the California state 

constitution. The case NRMCA cites, 

however, is concerned with privacy 

expectations under the unreasonable 

search and seizure provision of the New 

Jersey state constitution, State v. Reid, 

945 A.2d 26, 31–32 (N.J. 2008), an 

entirely different privacy interest than 

any implicated by the final rule. 

Similarly, the cases involving the 

California constitution are not in 

obvious conflict with the final rule, as 

they involve different types of 

disclosures and acknowledge that the 

right to privacy in personal information 

under the California constitution is not 

absolute.211 Indeed, a prior Board, with 

judicial approval, rejected as 

‘‘frivolous’’ an employer’s contention 

that it would violate an employee’s 

California constitutional right to privacy 

by furnishing an employee’s address to 

a labor organization which represents 

the employee. See A-Plus Roofing, Inc., 

295 NLRB 967, 974 (1989), enf’d. mem., 

39 F.3d 1410 (9th Cir. July 12, 1990). 

Moreover, Sheppard Mullin fails to cite 

the most recent and on point case of 

County of Los Angeles v. Los Angeles 

County Employee Relations 


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212 IFA II and Senator Alexander and Republican 

Senators II highlight such language in a recently 

passed privacy statute in Virginia, noting that 

Virginia employers are prohibited from disclosing 

employees’ personal identifying information to 

third parties ‘‘unless required by Federal or state 

law.’’ While both comments suggest that the voter 

list proposal puts the Board’s regulations at odds 

with the general trend of protecting employee 

privacy rights, neither argues that the Virginia 

statute’s language would trump the Board’s 

regulations. 

213See, e.g., Con-way; NRTW; Sheppard Mullin; 

RILA. 

214As the statute indicates, ‘‘The term 

‘commercial electronic mail message’ means any 

electronic mail message the primary purpose of 

which is the commercial advertisement or 

promotion of a commercial product or service[.]’’ 15 

U.S.C. 7702(2)(A). 

215 In contrast, NGA II notes that it is unclear 

whether union calls to employees would fall under 

the FTC’s definition of solicitation for purposes of 

the Do Not Call Registry. Meanwhile, SEIU II cites 

the Telephone Consumer Protection Act, 47 U.S.C. 

227, as another comprehensive scheme governing 

calls and texts by autodialers, which among other 

things, requires an opt-out. In SEIU’s view, this 

statute provides an existing regulatory gloss to any 

voter list proposals adopted by the Board, making 

unnecessary any additional restrictions by the 

Board. We do not agree that the statute renders the 

proposed restriction unnecessary as detailed in our 

discussion of the restriction below. 

216Similarly, to the extent state laws, such as the 

Washington Commercial Electronic Mail Act, Wash. 

Rev. Code. 19.190 et seq. (cited by RILA), are found 

to cover nonemployer party use of email or 

telephone technology and such laws are not 

preempted, nonemployer parties would be required 

to conform their conduct to those laws as well. 

217ACE expresses concern that the proposed 

voter list requirements may conflict with the Family 

Educational Rights and Privacy Act (FERPA), 20 

U.S.C. 1232g(a)(5)(A), (B) (Supp. IV 2006). ACE 

observes that although FERPA allows colleges and 

universities to release students’ ‘‘directory 

information,’’ schools are nevertheless required to 

provide notice that such information will be 

released and to give students the opportunity to opt 

out of the release. However, as ACE also appears 

to acknowledge, the proposed rule and FERPA 

could only come into conflict if graduate student 

employees are permitted to organize under the Act, 

which is not currently the case. See Brown 

University, 342 NLRB 483 (2004). (This issue is 

implicated in a case now pending before the Board. 

Commission, in which the California 

Supreme Court clarified that an 

incumbent public sector union’s 

significant interest in communicating 

with non-members outweighed 

employees’ privacy interests in their 

home contact information under 

California’s state constitution. 56 

Cal.4th 905, 911–12 (2013). More 

generally, the Board observes that state 

privacy and confidentiality laws may 

have exceptions allowing for disclosures 

where authorized by statute or 

regulation, in which case there would 

be no conflict between such laws and 

the voter list disclosures.212 See, e.g., 

Valley Programs, Inc., 300 NLRB 423, 

423 fn. 2 (1990); Kaleida Health, Inc., 

356 NLRB No. 171, slip op. at 6–7 

(2011). Finally, to the extent that the 

disclosures conflict with any state 

privacy laws, the state laws may be 

preempted. See San Diego Building 

Trades Council v. Garmon, 359 U.S. 236 

(1959); Mann Theatres Corp. of 

California, 234 NLRB 842, 842–843 

(1978) (noting, in context of employer 

refusal to provide union with employee 

wage information, that if state public 

policy in fact required nondisclosure of 

employee wage information, it would be 

preempted under Garmon). 

Some comments also claim that the 

Controlling The Assault of NonSolicited Pornography and Marketing 

Act of 2003 (‘‘the CAN–SPAM Act’’) 

evidences a Federal privacy concern 

regarding email addresses and that the 

Board’s voter list proposals run afoul of 

that Federal statute.213 Among other 

things, the CAN–SPAM Act makes it 

unlawful for any person to transmit a 

commercial electronic mail message that 

‘‘contains, or is accompanied by, header 

information that is materially false or 

materially misleading’’ (15 U.S.C. 

7704(a)(1)) and for a person to transmit 

a commercial electronic mail message 

that does not contain an opt-out 

procedure. 15 U.S.C. 7704(a)(3)(A).214

The statute further provides that if a 

recipient requests that the sender not 

send it any more commercial electronic 

mail messages, then it is unlawful for 

the sender to send it another 

commercial electronic mail message 

more than 10 business days after receipt 

of such a request. 15 U.S.C. 

7704(a)(4)(A)(i). Con-way, Inc. argues 

that email messages transmitted by a 

union would be subject to, and 

potentially in violation of, the CAN– 

SPAM Act because the ‘‘primary 

purpose’’ of union messages would be 

‘‘the commercial advertisement or 

promotion of a commercial product or 

service.’’ 15 U.S.C. 7702(2)(A). Katy 

Dunn (Testimony on behalf of SEIU II) 

disputes that unions are bound by the 

commercial provisions in CAN–SPAM 

but nevertheless explains, along with 

SEIU II, that many unions voluntarily 

comply. 

We need not offer an opinion as to 

whether the CAN–SPAM Act would 

apply to a nonemployer party’s use of 

email to investigate voter eligibility 

issues or to solicit a vote in an 

upcoming Board election. Simply put, if 

the CAN–SPAM Act does apply to a 

nonemployer party’s use of email in an 

organizing campaign, nonemployer 

parties will have to conform their 

conduct to the statutory requirements, 

such as providing header information 

that is neither ‘‘materially false [n]or 

materially misleading,’’ providing opt 

out procedures, and honoring opt out 

requests no more than 10 days after the 

request is made. 

Similarly, PCA and others argue that 

because union solicitations are subject 

to the Federal Trade Commission’s DoNot-Call Rule, 16 CFR part 310, a union 

could not contact individual employees 

by phone before those employees 

authorized the union to do so.215 The 

regulations were adopted pursuant to 

the Telemarketing and Consumer Fraud 

and Abuse Prevention Act, 15 U.S.C. 

6101–6108. (See 16 CFR 310.1) in which 

Congress charged the FTC with 

prescribing rules prohibiting deceptive 

and other abusive telemarketing acts or 

practices. 15 U.S.C. 6102. It further 

charged the FTC with including in its 

rules requirements that telemarketers 

not undertake a pattern of unsolicited 

telephone calls which a reasonable 

consumer would consider coercive or 

abusive of such consumer’s privacy and 

restrictions on the hours when 

unsolicited telephone calls can be made 

to consumers. 15 U.S.C. 6102(a)(3)(A), 

(B). 

Again, however, we decline to 

address the extent to which the FTC’s 

Do-Not-Call regulations may or may not 

cover nonemployer party solicitations or 

use of the phones to investigate 

eligibility issues. Even if these 

regulations are applicable, the result 

will be that a nonemployer party will be 

obligated to comply with Do-Not-Call as 

it might relate to potential members of 

the petitioned-for (or existing) 

bargaining unit. Thus, for example, a 

nonemployer party would have to 

refrain from making calls outside certain 

hours, and making calls to a person 

when the person previously has stated 

that he or she does not wish to receive 

a call from the party or when the 

person’s telephone number is on the donot-call registry. 

In sum, in response to all the 

comments challenging the propriety of 

the proposals relating to the disclosure 

of eligible voters’ contact information, 

the Board emphasizes that nonemployer 

parties will not have free rein to utilize 

email addresses and phone numbers in 

a manner that violates other Federal 

laws that are found to cover such 

nonemployer party conduct. Rather, to 

the extent that any such laws are found 

applicable to the nonemployer parties’ 

use of the contact information, those 

parties would be required to conform 

their conduct to the governing legal 

standards.216 In much the same way, a 

nonemployer party to a representation 

case who receives home addresses 

under current Excelsior requirements is 

not excused from complying with other 

applicable laws, such as trespass.217


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See Northwestern University, Case 13–RC–121359). 

In any event, if the issue arises, the conclusions 

expressed above with regard to the CAN–SPAM Act 

and the Do-Not-Call Rule would apply equally here. 

218Although the NPRM preamble indicated that 

employers would have 2 work days to produce the 

list, the proposed regulatory voter list sections did 

not explicitly so provide. Compare 79 FR 7333 with 

79 FR 7354, 7360. 

219See, e.g., GAM; AAE; Vigilant; Buchanan; U.S. 

Poultry II; Testimony of Peter Kirsanow on behalf 

of NAM II. 

220As suggested by Nicholas E. Karatinos, the 

Board will interpret the rule to mean that employers 

have 2 business days (i.e., excluding Saturdays, 

Sundays, and legal (i.e., Federal) holidays—rather 

than 2 calendar days—to produce the eligibility list. 

This interpretation is consistent with § 102.111(a) of 

the Board’s prior rules, which this final rule leaves 

undisturbed. Thus, § 102.111(a) provides that when 

computing time periods of less than 7 days in the 

Board’s regulations, intermediate Saturdays, 

Sundays, and holidays are excluded. 

Moreover, in accordance with Karatinos’ 

suggestion, the Board has decided to explicitly 

provide in §§ 102.62(d) and 102.67(l) of the final 

rule that the employer has two business days after 

the regional director directs an election or approves 

the parties’ election agreement to furnish the list to 

the nonemployer parties and the regional director. 

The Board concludes that adoption of this 

additional language will provide useful guidance to 

the parties and render this particular requirement 

of the rule more transparent. 

As noted above, the Board’s prior rules indicated 

that legal holidays were not included in the time 

calculation for due dates shorter than 7 days. The 

Board has interpreted legal holidays to mean 

‘‘Federal holidays.’’ The Board declines Karatinos’ 

additional suggestion to list the particular holidays 

in the final rule, because the number of Federal 

holidays may change over time and the Board does 

not wish to have to amend its rules each time the 

number of Federal holidays changes. 

221For similar comments, see GAM; Sheppard 

Mullin; AHA. 

222This information concerning FY 2011 through 

FY 2013 was produced from searches in the Board’s 

NxGen case processing software. 

223Some employers may have an additional 

reason to begin compiling at least part of the voter 

list as soon as they receive a petition. An employer 

which doubts that the petitioner has enough 

Continued 

2. Timing 

In the NPRM, the Board proposed to 

shorten the time for production of the 

voter list from the current 7 calendar 

days to 2 work days, absent agreement 

of the parties and the regional director 

to the contrary in the election 

agreement, or extraordinary 

circumstances specified in the direction 

of election.218 Many comments argue 

that the 2-day time period following a 

regional director’s direction of election, 

or approval of an election agreement, is 

too brief for an employer to produce the 

voter list, particularly if the Board 

requires the additional information—the 

personal email addresses, home and 

personal cell phone numbers, work 

locations, shifts, and job classifications 

of the eligible voters—to be disclosed on 

the list.219

However, the Board concludes that 

advances in recordkeeping and retrieval 

technology as well as advances in 

record transmission technology in the 

years since Excelsior was decided 

warrant reducing the time period for 

production, filing, and service of the list 

from 7 calendar days to 2 business 

days.220 Shortening the time period 

from 7 calendar days to 2 business days 

will help the Board to expeditiously 

resolve questions of representation, 

because the election—which is designed 

to answer the question—cannot be held 

until the voter list is provided. In many 

cases the list will be produced 

electronically from information that is 

stored electronically and then will be 

served electronically in an instant—a far 

cry from workplace realities when the 

Board first established a 7-day time 

frame for producing the list, when 

employers maintained their employees’ 

records in paper form, and virtually no 

employer had access to personal 

computers, spreadsheets or email. 

Indeed, the AFL–CIO points out that 

even in 1966, under the 7 calendar day 

requirement, many employers were 

actually producing the list in only 2 

work days. The AFL–CIO’s comment 

posits that of the original 7 days, 2 days 

were lost to the weekend and 3 more 

days were dedicated to service of the list 

by regular mail because there was no 

existing option for priority, express or 

overnight mail, let alone for 

instantaneous electronic service via 

email. The Board views it as significant 

that while the Chamber specifically 

replies to the AFL–CIO’s Excelsior 

analysis, it does so only to contend that 

many employers did, and do, work on 

the list over the weekend. The 

Chamber’s reply does not dispute that 

even under the technological constraints 

of the 1960s, employers could and did 

produce voter lists, at least for deposit 

into the mails, in 4 calendar days or 

fewer. Thus, the advent of electronic 

filing and service via email alone 

warrants a substantial reduction in the 

time provided, and in the Board’s view, 

technological advances fully justify the 

move to 2 business days for production 

of the final voter list. 

Indeed, even some of the comments 

opposed to the new time frame tacitly 

admit that, while challenging, it is 

nonetheless possible. For example, the 

Indiana Chamber of Commerce (Indiana 

Chamber) concedes that ‘‘It is not that 

the manual collection of this 

information itself would take extreme 

amounts of time, but it becomes a 

hardship when imposed concurrently 

with all of the other, new obligations 

under the compressed schedule.’’ 

Similarly, the Bluegrass Institute does 

not argue that employers cannot 

compile the list under the new time 

frame, but contends that ‘‘the 

cumulative effect’’ of the new 

obligations ‘‘on small businesses could 

very well be devastating.’’ 221 Yet, the 

hearing testimony of retired field 

examiner Michael Pearson implicitly 

contradicts such concerns by recalling 

approximately one dozen cases in 

which employers were able to file 

Excelsior lists on the same day as they 

signed election agreements—thus 

demonstrating an ability to 

simultaneously prepare an Excelsior list 

while resolving all of the issues to be 

potentially covered in a pre-election 

hearing. Indeed, as more fully discussed 

below in reference to § 102.63, the 

Board does not agree that the obligations 

imposed on employers in connection 

with the Statement of Position form vary 

dramatically from what a reasonably 

prudent employer would have done in 

any event to adequately prepare for a 

pre-election hearing under the prior 

rules. Likewise, the 8-day time frame for 

the hearing’s opening, which may be 

extended for up to 2 business days upon 

request of a party showing special 

circumstances and even longer upon a 

showing of extraordinary circumstances, 

is in line with the best practices of some 

regions under the prior rules, and in any 

event, does not differ dramatically from 

the overall 10-day median for 

scheduling pre-election hearings, and 

the 13-day median for opening preelection hearings under the prior 

rules.222

Additional factors likewise persuade 

us that the 2-business day time frame is 

appropriate for production, filing, and 

service of the list. First, in many cases 

the employer will have provided a 

preliminary list of employees in the 

proposed or alternative units as part of 

its Statement of Position before the 

clock ever begins running on the new 

2-day deadline for production of the 

voter list. As discussed below in 

connection with § 102.63, that initial list 

will be due no sooner than 7 days after 

service of the notice of hearing, and so 

the employer will have the same 

amount of time to produce the 

preliminary list as it had under 

Excelsior. Accordingly, to produce the 

voter list required by § 102.62 (or 

§ 102.67 in directed election cases), the 

employer need not start from scratch, 

but need only update that initial list of 

employee names, work locations, shifts, 

and job classifications, by adding 

employees’ contact information and 

making any necessary alterations to 

reflect employee turnover or changes to 

the unit.223 Second, the description of 


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employee support to warrant an election may 

provide a payroll list to facilitate the regional 

director’s administrative investigation of the issue. 

See Case Representation Manual Section 11020. 

Because the payroll list must be submitted 

promptly, see id., such an employer will likely 

begin preparing it immediately upon receiving a 

petition. Furthermore, as noted above, an employer 

which anticipates filing a statement of position and 

the accompanying initial employee list will also 

need to compile much of the information on the 

voter list for that purpose, prior to the start of the 

2-day time frame. 

224Thus, Casehandling Manual Section 

11009.2(c) provides that the initial letter to the 

employer following the filing of the petition should 

advise the employer: ‘‘In the event an election is 

agreed to or directed, the Agency requires that a list 

of the full names and addresses of all eligible voters 

be filed by the employer with the Regional Director, 

who will in turn make it available to all parties in 

the case. The list must be furnished to the Regional 

Director within 7 days of the direction of, or 

approval of an agreement to, an election, and the 

employer is being advised early of this requirement 

so that there will be ample time to prepare for the 

eventuality that such a list may become necessary.’’ 

225See, e.g., Ranking Member Enzi and 

Republican Senators; COSE; CNLP; Testimony of 

Elizabeth Milito on behalf of NFIB II. 

226National Mining Association and David A. 

Kadela complain that ‘‘extraordinary 

circumstances’’ is a vague standard that may be 

administered differently by different regional 

directors. However, this standard has been in place 

since the original Excelsior requirements were 

articulated, and the Board has not experienced the 

problems forecasted by the comments. See 

Excelsior, 156 NLRB at 1240 fn. 5 (‘‘In order to be 

timely, the eligibility list must be received by the 

[r]egional [d]irector within the period required. No 

extension of time shall be granted by the [r]egional 

[d]irector except in extraordinary circumstances 

* * *.’’) Accordingly, the Board is not persuaded 

that it should use different language. 

227 In addition, as noted below, the Board has 

decided to make it presumptively appropriate to 

produce multiple versions of the list when the data 

required is kept in separate databases, thereby 

reducing the amount of time that employers might 

need to comply with the voter list requirement. 

228The Daniel/Steiny formula, provides that, in 

addition to those eligible to vote in Board 

conducted elections under the standard criteria (i.e., 

the bargaining unit employees currently employed), 

unit employees in the construction industry are 

eligible to vote if they have been employed for at 

least 30 days within the 12 months preceding the 

eligibility date for the election and have not 

voluntarily quit or been discharged, or have had 

some employment in those 12 months, have not 

quit or been discharged, and have been employed 

for at least 45 days within the 24-month period 

immediately preceding the eligibility date. See 

Steiny & Co. Inc. (‘‘Steiny’’), 308 NLRB 1323, 1326– 

27 (1992), and Daniel Construction Co., Inc. 

(‘‘Daniel’’), 133 NLRB 264, 267 (1961), modified, 

167 NLRB 1078, 1081 (1967). 

229For example, if the person responsible for 

completing the form needs records stored at a 

separate location, those records can be faxed (or 

scanned and then emailed) quickly, and failing 

access to that technology, a phone call would surely 

suffice for all but the largest bargaining units. 

representation case procedures which is 

served with the petition will explicitly 

advise employers of the voter list 

requirement—just as the opening letter 

does currently—so that employers 

concerned about their ability to produce 

the list can begin working immediately; 

before an election agreement is 

approved or an election is directed and 

thus before the clock begins running on 

the 2-business day time period.224

Third, in the Board’s experience, the 

units for which lists must be produced 

are typically small— with half of all 

units containing 28 or fewer employees 

over the past decade—meaning that 

even for those small employers which 

lack computerized records of any kind, 

assembling the information should not 

be a particularly time-consuming task, 

contrary to the comments that suggest 

otherwise.225 Finally, the final rule will 

enable parties to enter into agreements 

providing more time for employers to 

produce the list subject to the director’s 

approval, and the final rule will further 

enable the regional director to direct a 

due date for the voter list beyond two 

days in extraordinary circumstances.226

In sum, the Board is not persuaded that 

the bulk of employers will be unduly 

burdened by the final rule’s voter list 

time frames.227

Many comments suggest categorical 

exemptions for various industries. For 

example, AGC argues that the Board 

should exempt construction industry 

employers from the requirement that 

they produce the voter list 2-days after 

a direction of election or approval of an 

election agreement. According to AGC, 

construction industry employers, who 

may handle personnel matters on a 

decentralized basis at the individual 

jobsite level, cannot timely produce the 

list, because 2 days is simply not 

enough time to review 2 years’ worth of 

payroll records as required by the 

Daniel/Steiny construction industry 

eligibility formula.228

The Board does not agree that the 

Daniel/Steiny formula warrants carving 

out a categorical exemption for 

construction industry employers in 

every case. In the first place, 

construction industry employers will 

not be required to review 2-years’ worth 

of payroll records to produce the list in 

all cases. In some cases, the parties may 

stipulate that formula not be used. See 

Steiny, 308 NLRB 1323, 1328 n.16 

(1992); Signet Testing Laboratories, Inc., 

330 NLRB 1, 1 (1999). Moreover, as AGC 

acknowledges elsewhere in its 

comment, some petitions filed in 

construction industry cases involve 

situations where the petitioned-for units 

are already covered by 8(f) collectivebargaining agreements. Such 8(f) 

collective-bargaining agreements 

frequently require the signatory 

employer to make fringe benefit 

contributions to benefit funds on behalf 

of the unit employees and to file reports 

of its employees’ hours with those 

benefit trust funds. Accordingly, at least 

in those cases, the employer may have 

ready access to the information 

necessary to produce lists complying 

with the formula. In addition, not every 

construction industry employer will 

have intermittently employed large 

numbers of employees over a two-year 

period. Those employers who have 

employed stable workforces will not 

face the same burden. And while 

employers may maintain records on 

different jobsites due to the 

decentralized hiring claimed by AGC II 

and other construction industry 

commenters, we anticipate that they 

will be able to transmit the records to 

a central location via modern 

technology or verbally report the 

information contained in the records.229

The Board also finds it highly 

significant that, as AGC acknowledges, 

under the Board’s current rules, 

construction industry employers, 

whether decentralized or not and 

whether large or small, already only 

have 7 days to produce the Excelsior 

list. The Board believes that the same 

changes that justify the reduction in 

time to produce the final list in cases 

outside the construction industry, 

likewise justify reducing the time in 

cases involving the construction 

industry. Thus, given the advances in 

record-keeping/retrieval technology and 

in the technology for transmitting 

documents that have taken place since 

Daniel was decided in 1961 and since 

Excelsior issued in 1966, the Board 

simply does not believe that as a rule it 

is ‘‘impossible’’ for construction 

industry employers to comply with the 

requirement, as suggested by NFIB. 

As noted above, employers generally 

will have more than a week to prepare 

the voter list, assuming they begin work 

when they receive the petition and are 

explicitly advised of the voter list 

requirement in the description of 

representation case procedures served 

with the petition. And, employers will 

have still more time in those cases 

where weighty issues are litigated at the 

pre-election hearing that require 

resolution by the regional director, 

because they can continue preparing the 

list after the hearing closes while they 

await the decision by the regional 

director. Finally, it bears repeating that 

under the final rule, the regional 

director has discretion to grant an 

employer more time to produce the list, 

upon a showing of extraordinary 

circumstance which may be met by an 

employer’s particularized 

demonstration that it is unable to 

produce the list within the required 

time limit due to specifically articulated 


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230As noted above, this issue is currently pending 

before the Board. 

231However, we note that there is a case currently 

pending before us, Bergman Brothers Staffing, Inc., 

Case No. 05–RC–105509, in which a party is 

seeking to have us overrule Oakwood. 

232Nor does the Board believe that the fact that 

an employer relies on a third party to perform its 

payroll functions warrants a blanket exemption 

from the 2-business day timeframe. The Board notes 

in this regard that employers frequently hire third 

parties to handle such administrative tasks 

precisely because the third parties are able to 

perform the administrative tasks more efficiently. 

233See, e.g., AHCA; Sheppard Mullin; AHA. 

234This is also true of decentralized businesses, 

which Con-way argues will also be unduly 

burdened by the new time frame. 

235As explained above, the Board does not 

believe that small employers without the best 

available technology will be particularly burdened 

by compiling the list. 

236See, e.g., Chamber; Chamber reply; SIGMA. 

237See Testimony of Elizabeth Milito on behalf of 

NFIB II (clarifying that in her experience as the 

spokesperson for NFIB, employers of more than 50 

employees tend to have dedicated human resources 

staff). 

238See, e.g., Pinnacle; ALG; Constangy; LRI. 

239Neither is the Board convinced that expanding 

the list beyond names and addresses will create any 

significant problems for employers in complying 

with the 2-day time frame. To the extent that 

aspects of particular industries may present 

challenges in identifying certain types of the newly 

required information, the Board believes that these 

issues can be dealt with in the implementation of 

the voter list (and related initial employee list) 

amendments. For example, Maurice Baskin 

explained that construction industry employees 

frequently change jobs and job sites, and Doreen 

Davis explained that retail industry employees 

frequently change departments or shifts. See 

Testimony of Maurice Baskin on behalf of ABC II 

and Doreen Davis on behalf of RILA II. It is the 

Board’s preliminary view that there would be no 

impediment to employers in such circumstances 

noting that certain employees’ classifications, shifts 

or locations are variable rather than fixed, providing 

their current classifications, shifts, and locations, 

Continued 

obstacles to its identification of its own 

employees. 

A number of other comments claim 

that the 2-day requirement is 

particularly burdensome for other types 

of employers either because of the 

nature of their operation, the types of 

employees they employ, or the size of 

their workforces. However, these 

comments fail to offer any persuasive 

explanations for why their particular 

circumstances make compliance with 

the 2-business day deadline 

unworkable. 

For example, the National Mining 

Association argues it will be difficult for 

employers in the mining industry to 

comply with the time frame for 

producing the final list because they 

operate on a 24-hour basis. But the fact 

that shifts of miners rotate through a 

mine on a 24-hour basis does not render 

the employer unable to furnish a list in 

2 business days. Similarly, ACE argues 

that colleges and universities will be 

particularly burdened because they are 

decentralized, may include multi-site 

units, and may have difficulty 

identifying adjunct faculty or graduate 

students that a petitioner seeks to 

organize. The mere fact that an 

employer is decentralized, or that a 

party may propose a multi-site unit, 

does not demonstrate that complying 

with the new rule is unduly 

burdensome for colleges and 

universities. Moreover, as noted above, 

ACE’s concerns about graduate student 

organization are at best premature. 230

And although ACE contends that 

gathering detailed information on 

adjunct faculty would be difficult under 

the new time frames, it does not deny 

that gathering such information is 

feasible under the Board’s current 

requirements and offers no explanation 

for why the new time frames would 

prove ‘‘nearly impossible’’ to comply 

with. 

Con-way argues that the 2-day period 

is unworkable in those cases where an 

employer uses employees provided by a 

temporary agency, because the employer 

will be dependent on the temporary 

agency to supply it with the 

information. However, it is by no means 

clear that ‘‘temporary employees’’ 

provided by a third party will as a 

matter of course even be included in a 

bargaining unit. See Oakwood Care 

Center, 343 NLRB 659 (2004) 

(employees of staffing agency may not 

be included in a unit of another 

employer’s employees unless both 

employers consent).231 If the temporary 

employees are not included in the unit, 

then the fact that an employer uses 

employees provided by a temporary 

agency plainly provides no reason to 

depart from the timeframes in the rule, 

for the temporary employees will not 

need to be included on the list. When 

a third party’s employees are included 

in the unit, the unit may be a 

multiemployer bargaining unit or the 

third party may be found to be a joint 

employer, and the entities may be 

jointly charged with filing the list or 

lists. See, for example, K-Mart, A Div. of 

S.S. Kresge Co., 159 NLRB 256, 262 n.10 

(1966). Accordingly, the Board does not 

believe this circumstance warrants a 

blanket exemption.232

As for employers with large 

workforces,233 the fact that a petitionedfor unit is large does not, in and of itself, 

make compliance with the rule 

burdensome for the employer.234

Significantly, the Board’s current rules 

do not grant employers employing large 

units more time to produce the Excelsior 

list than employers employing small 

units. The same advances in technology 

that reduce the time it takes to transmit 

the lists from days to seconds apply no 

less to large employers than to small 

employers.235 The same holds true with 

respect to advances in record keeping 

technology. Indeed, the comments filed 

by, and on behalf of, small employers 

suggest or imply that large employers 

are more likely than small employers to 

possess the technology to produce the 

lists quickly.236 To the extent that the 

compilation process takes longer in a 

larger petitioned-for unit, large 

employers are more likely to have 

dedicated human resources 

professionals on the payroll who can 

more easily devote the longer period of 

time to completing the task within the 

amended time frame.237 Moreover, large 

employers, like small employers, can 

begin preparing the list before the 

director directs an election. Finally, the 

Board notes that § 102.67(l) permits a 

regional director in his direction of 

election to grant more time to produce 

the final list in extraordinary 

circumstances, and employers are free 

to describe those circumstances to the 

hearing officer before the close of the 

hearing when they set forth their 

positions regarding the election details. 

Spartan Motors, Inc. complains that 

the rule requires employers to produce 

the information on the voter list within 

2 days of receiving a petition. Spartan 

Motors is mistaken. Thus, an employer 

need only produce the voter list 2 

business days after the director 

approves an election agreement or 

directs an election. An employer cannot 

be compelled to enter into an election 

agreement 2 days after the petition is 

filed—or ever. And an election cannot 

be directed until after a hearing closes, 

which, of course, will be more than 2 

(business) days after the filing of the 

petition. Indeed, absent agreement 

otherwise, the hearing will open no 

sooner than 8 days after service of the 

notice under the amendments. 

Several other comments attack the 

time frame for producing the voter list 

on the grounds that it will result in 

more inaccurate lists and thus more 

post-election litigation.238 As already 

discussed, the Board does not view a 2- 

business day deadline for production of 

the list in the modern era as a 

particularly greater burden than was 

production of the list in 7 calendar days 

during the 1960s. Accordingly, the 

Board is unconvinced that the lists 

produced under the final rule will tend 

to be any less accurate than lists 

produced under Excelsior’s original 

formulation.239 And given the expanded 


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and indicating, if known, where they will be going 

next. The need to make such a notation should not 

be particularly challenging to determine within the 

time frames set forth in the final rule. Contrary to 

the suggestion of Ms. Davis (Id.) and the related 

question raised by Baker & McKenzie, an employer 

need not continually revise the initial employee list 

provided with the Statement of Position or the voter 

list to reflect changes associated with employee 

information. However, if there is a change (due to 

employee turnover or transfer) between the time 

that the initial employee list and the voter list is 

provided, then it will be incumbent on employers 

to update the information at that time of the voter 

list’s filing (and at that time only). 

240See, e.g., Chamber; Sheppard Mullin. 

241See, e.g., GAM; UNAC/UHCP II; U.S. Poultry 

II. 

242Upon further reflection, the Board has 

concluded that periodic approval of acceptable 

electronic formats for the voter list would be a more 

appropriate role for the agency’s General Counsel, 

given the General Counsel’s traditional duty of 

overseeing the agency’s regional staff as they carry 

out the bulk of the Board’s representation case 

procedures, including the handling of the voter list. 

243See Testimony of Darrin Murray on behalf of 

SEIU II; SEIU II. 

244See, e.g., Indiana Chamber; Vigilant; AHA; 

COSE. 

245The Board believes that this aspect of the final 

rule effectively answers AHA’s argument that 

employers in the healthcare industry, who are 

obligated to upgrade information technology 

systems and bring down patient costs under other 

regulations, will be unduly burdened by the voter 

list timing requirements. 

ability of petitioners to contact voters by 

phone and email with the new voter 

lists, the Board rejects the related 

comments predicting that list 

inaccuracies will result in petitioners 

having less access to voters under the 

final rule than under the current 

Excelsior rules.240

3. Format and Service of List 

In the NPRM, the Board proposed that 

the voter list be provided in an 

electronic format generally approved by 

the Board’s Executive Secretary unless 

the employer certifies that it does not 

possess the capacity to produce the list 

in the required form, and that the 

employer serve the voter list on the 

other parties electronically at the same 

time it is filed electronically with the 

regional office. The Board received 

multiple comments supporting the 

electronic format and service 

proposals.241 These proposals are 

included in the final rule with the slight 

modification that the General Counsel is 

substituted for the Board’s Executive 

Secretary.242 See amended §§ 102.62(d), 

102.67(l). 

The Board has concluded that 

requiring production of the list in 

electronic form (unless the employer 

certifies that it does not have the 

capacity to produce the list in the 

required form) would further both 

purposes of the Excelsior requirement. 

The Board has further concluded that 

requiring the employer to electronically 

serve the voter list directly on the other 

parties at the same time the employer 

electronically files the list with the 

regional office will likewise further both 

purposes of the Excelsior requirement 

and eliminate an administrative burden. 

As set forth in the NPRM, the Board’s 

Excelsior rule requires only that the 

employer file the list with the regional 

director. 156 NLRB at 1239. Excelsior 

further provides that the regional 

director in turn shall make the list 

available to all parties. Id. at 1240. This 

two-step process thus requires the 

regional office to forward to the other 

parties the list filed in the regional 

office by the employer. This two-step 

process has also caused delay in receipt 

of the list and unnecessary litigation 

when the regional office, for a variety of 

reasons, has not promptly made the list 

available to all parties. See, e.g., 

Ridgewood Country Club, 357 NLRB No. 

181 (2012); Special Citizens Futures 

Unlimited, 331 NLRB 160, 160–62 

(2000); Alcohol & Drug Dependency 

Services, 326 NLRB 519, 520 (1998); Red 

Carpet Bldg. Maintenance Corp., 263 

NLRB 1285, 1286 (1982); Sprayking, 

Inc., 226 NLRB 1044, 1044 (1976). 

Moreover, some comments also 

complained about their experiences 

with delay when employers file the list 

with the regional office after business 

hours on a Friday, and the regional 

office subsequently does not forward the 

list to the petitioner until the following 

Monday.243 The final rule eliminates 

this unnecessary administrative 

burden—as well as potential source of 

delay and resulting litigation—by 

providing for direct service of the list by 

the employer on all other parties. See 

amended §§ 102.62(d), 102.67(l). 

Spartan Motors complains that small 

employers might not maintain their data 

in electronic form, and therefore they 

will be burdened by having to produce 

it in electronic form. The rule, however, 

exempts employers from having to 

produce the list in the required 

electronic format if the employer 

certifies that it does not have the 

capacity to produce the list in the 

required form. Baker & McKenzie 

questions what evidence an employer 

must provide to show its inability to 

produce an electronic list and what 

criteria the Board will apply in 

evaluating whether it is feasible for an 

employer to file and serve the list 

electronically. The Board does not 

expect this to be a major topic of 

litigation, and for that reason, the final 

rule provides for an employer to certify 

to the regional director its inability to 

produce the list in the required form, 

instead of making a special request that 

it be allowed to produce an alternative 

form of the list. The Board trusts that 

the good faith of employers combined 

with the reasonableness of the format 

approved by the General Counsel, will 

lead to the smooth application of this 

process. 

SEIU II suggests that the Board should 

require employers to provide their lists 

in a searchable format to ease the 

burden on petitioning unions in 

manipulating the list, and NUHW makes 

the related suggestion that the Board 

should require employers to provide the 

list in the same format to all parties— 

noting the alleged injustice suffered 

when NUHW received a voter list in a 

less useful format than that provided to 

the Board and to a rival incumbent 

union. The Chamber II specifically 

replies to SEIU’s suggestion by asserting 

that providing the list in a searchable 

format may not be feasible for all 

employers and so the Board should 

continue to allow flexibility in the 

format of the voter list. We think that 

each of these concerns has merit. Thus, 

the Board agrees that it would be 

optimal for parties to provide lists in 

searchable formats, but acknowledges 

that may be beyond the technical 

expertise of certain employers. The 

Board expects that the General Counsel 

will establish guidelines that require 

voter lists in searchable formats where 

feasible to address the concerns 

expressed by SEIU and to maintain the 

necessary flexibility as advocated by the 

Chamber. The Board further expects that 

the General Counsel’s guidance will 

require, at minimum, that the voter list 

be provided in the same format to all 

parties—including the situation where 

there are rival incumbent and 

petitioning unions. 

Some comments, including those of 

SIGMA, suggest that it may take some 

effort to compile an electronic list using 

information from multiple databases.244

SIGMA’s point is well taken. The Board 

does not wish to burden employers with 

the need to merge electronic files that 

may be kept in distinct forms or 

potentially on distinct computer 

programs. Therefore, it will be 

presumptively appropriate under the 

final rule to produce multiple lists when 

the data are kept in separate files, so 

long as all of the lists link the 

information to the same employees 

using the same names, in the same order 

and are provided within the allotted 

time.245 For example, if an employer 

keeps information about its employees’ 

work locations, shifts, job 

classifications, phone numbers and 

email addresses in a different database 


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246Although the Chamber II’s comment suggests 

that service of the eligibility list via email invites 

abuse, other comments from a cross-section of 

interested groups applaud the provision for 

electronic service of the list when feasible. See e.g., 

GAM, Buchanan. 

247To the extent that INDA II also argues that the 

age of the cases cited in the NPRM demonstrate that 

there are no contemporary problems occasioned by 

regional service of the voter list following its filing 

by an employer, the Board notes the recent case of 

Ridgewood Country Club, 357 NLRB No. 181 (2012), 

where we were again called upon to set aside an 

election due to regional office failures in 

transmitting the list to a petitioner. 

248However, the Board has decided to slightly 

modify the NPRM language regarding the 

consequences for noncompliance with the voter list 

amendments to track the language from pre-existing 

§ 103.20 with respect to the consequences for 

noncompliance with the obligation to post what 

was called prior to the NPRM,’’ the Board’s ‘‘official 

Notice of Election.’’ Thus, amended § 102.62(d) and 

§ 102.67(l) shall provide in pertinent part that ‘‘The 

employer’s failure to file or serve the list within the 

specified time or in proper format shall be grounds 

for setting aside the election whenever proper and 

timely objections are filed.’’ (emphasis added) 

249The Board likewise disagrees with Karatinos’ 

complaint that ‘‘there is no downside [under the 

proposals] to an employer producing an Excelsior 

list riddled with inaccuracies.’’ As noted, just as 

was the case under the prior rules, the Board may 

set aside an election in which the union failed to 

obtain a majority of the valid votes cast if the 

employer’s voter list was ‘‘riddled with 

inaccuracies.’’ See, e.g., Woodman’s Food Markets, 

332 NLRB 503 (2000) (noting that the Board 

considers the percentage of names omitted, whether 

the number of omissions is determinative in the 

election, and the employer’s reasons for the 

omissions); Automatic Fire Sys., 357 NLRB No. 190 

(2012) (applying this test and ordering a rerun 

election). 

from the database containing its 

employees’ home addresses, then the 

employer can produce an alphabetized 

list of employees and their home 

addresses and a second alphabetized list 

of employees and their work locations, 

shifts, job classifications, phone 

numbers and email addresses so long as 

both lists are provided within the 

allotted time. 

The Washington Farm Bureau 

requests that employers be allowed to 

choose whether to submit the 

information in electronic or hardcopy 

form. The Board thinks that the two 

purposes of Excelsior are better served 

by requiring the electronic form, rather 

than leaving the choice of format to an 

employer’s discretion, provided of 

course that the employer has the 

capacity to produce the list in the 

required electronic form. 

The Board also rejects the Chamber’s 

II prediction that electronic service of 

the list will ‘‘invite abuse of the system 

and unauthorized use of the information 

contained’’ on the list.246 As discussed 

above, we see no reason for assuming 

that ‘‘a union, seeking to obtain 

employees’ votes in a secret ballot 

election, will engage’’ in abusive 

behavior. Excelsior, 156 NLRB at 1244. 

Although the Board recognizes that 

whenever information is conveyed in an 

electronic format, there is a heightened 

risk of inadvertent dissemination or 

unauthorized access by third parties, in 

today’s modern workplaces, however, it 

is simple enough to turn any paper 

document into an email attachment. So, 

the Board fails to see how any dangers 

of misuse—real or imagined—will be 

avoided simply by requiring parties to 

continue to use slower and more 

expensive forms of communication 

when filing the list with the regional 

director and transmitting it to the 

petitioner. 

The Board likewise rejects Vigilant’s 

suggestion that, rather than have the 

employer serve the list on the other 

parties, the Board serve the list on the 

parties after the employer has filed the 

list with the Board. Vigilant asserts that 

such an intermediate step would allow 

for correction of errors or omissions, but 

as discussed above, such an 

intermediate step is currently in place 

and has caused avoidable delay, 

administrative burden, and unnecessary 

litigation. Moreover, the Board is not 

persuaded that employers generally 

need the Board’s help to ‘‘proof’’ the 

lists they produce from their own 

records or that the Board could provide 

meaningful assistance in this regard as 

it is not the employer of the employees 

at issue. 

The Board also disagrees with INDA 

II’s reasoning for maintaining the 

current two-step procedure. INDA, and 

others, alleges that it is appropriate to 

keep the burden of serving the voter list 

on petitioners with the regional staff, 

whose profession is administering the 

Act, and that more errors and litigation 

are likely to ensue by shifting the 

burden to employers, many of whom 

will have had no prior experience with 

the Board’s representation case 

processes. While the Board certainly 

credits the statement that many 

employers are not repeat players in 

representation case proceedings and 

thus may be initially unfamiliar with 

the requirements, the final rule takes 

steps to remedy any ignorance on the 

part of employers by sending out a 

detailed explanation of those 

procedures as part of the first official 

communication that an employer will 

receive from one of the agency’s 

regional offices. That explanation will 

cover the employer’s eventual 

responsibility to serve a voter list on the 

nonemployer parties to the case (using 

the contact information listed on the 

face of the petition or provided in a 

Statement of Position or at the hearing) 

at the same time the employer files the 

list with the regional office. 

Furthermore, the Board believes that 

employers will typically have a wealth 

of experience sending important 

documents to entities outside of their 

organization, and should not be 

particularly challenged by emailing the 

voter list to the nonemployer parties’ 

email addresses at the same time they 

email the list to the regional offices. 

Indeed, this task could be completed by 

transcribing the email address for the 

nonemployer party onto the recipient 

line of the same email bound for the 

regional office.247

At least one comment (Sheppard 

Mullin II) raises the concern that rule 

language stating that an employer’s 

failure to file a timely list in a proper 

format ‘‘shall be grounds for setting 

aside the election whenever proper 

objections are filed’’ signals an 

inappropriate departure from prior 

Board law governing whether an 

employer has sufficiently complied with 

its Excelsior obligations. To the 

contrary, while the final rule changes an 

employer’s obligations concerning the 

content, timing, and format of the voter 

list, the Board does not hereby overrule 

extant law interpreting whether an 

employer’s efforts at compliance fall 

sufficiently short to justify setting aside 

an election’s result. The quoted 

language above is taken directly from 

the original Excelsior decision itself, 156 

NLRB at 1240, and has not impeded the 

Board from adding fact-specific glosses 

to whether the requirement was 

sufficiently met. See, e.g., North Macon 

Health Care Facility, 315 NLRB 359 

(1994).248

Other comments suggest additional 

alterations to the voter list rules to 

protect employers who accidentally 

produce inaccurate lists. For example, 

ACE submits that the Board should 

automatically excuse inaccurate lists in 

large units when petitioners are unable 

to show an employer’s intent to 

manipulate the process. The Board 

declines to adopt these suggestions. As 

discussed above, the Board continues to 

agree with existing precedent on 

Excelsior compliance, and does not 

intend to limit the discretion of future 

Boards to apply adjudicative glosses to 

the rule based upon a variety of fact 

patterns yet to arise.249

Holland & Knight questions if it will 

be objectionable for an employer to omit 

from the voter list the contact and other 

information of employees whose 

eligibility is disputed. As discussed 

more fully below in connection with 

§ 102.67, the answer is ‘‘yes.’’ Prior to 

the NPRM, parties could agree that 


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250Although the NPRM used the term ‘‘sanction,’’ 

this usage was inapt because of its punitive 

connotation. See Republic Steel Corp. v. NLRB, 311 

U.S. 7, 10–13 (1940) (explaining that the NLRA is 

essentially remedial). 

251See, e.g., AFL–CIO II; UFCW; NNU. 

252See, e.g., PCA (union selling employee 

information); NRTWLDF (harassment, identity 

theft, property crime); David Holladay II (threats to 

spouse or children). 

253See, e.g., Chamber; UFCW; Testimony of 

Thomas Meiklejohn on behalf of Livingston, Adler, 

Pulda, Meiklejohn & Kelly. 

254See, e.g., Chamber II; SHRM II; AGC; ALG; 

Indiana Chamber; CDW. Other comments propose 

less concrete remedies, such as ‘‘affirmative steps 

to remedy misuse’’ (SHRM) or ‘‘severe’’ 

consequences (Anchor Planning Group; LRI). On a 

slightly different note, in order to prevent misuse 

to begin with, NRTWLDF suggests that unions not 

be allowed to withdraw petitions once filed, and 

Anthony Benish suggests that a union be barred 

from filing another petition at that employer for one 

year after withdrawing a petition. The potential for 

the supposed abuses NRTWLDF and Benish seek to 

prospectively remedy already exists. Without any 

evidence of such risks regularly materializing and 

negatively affecting employees, the Board sees no 

need to change current practices. As shown, 

regional directors already have discretion to reject 

a petitioner’s’ request to withdraw its petition if the 

request would run counter to the purposes of the 

Act or to approve the withdrawal with prejudice to 

refiling. See Casehandling Manual Sections 11110, 

11112, 11113, 11116, 11118. 

255See, e.g., SEIU (reply); UFCW. 

256See AFL–CIO. AFL–CIO further points out that 

non-Board remedies are already available for the 

possible misuses identified by opponents of the 

rule. 

257 It is conceivable, as the Indiana Chamber 

comments, that a party alleged to have misused the 

list might claim in its defense that it managed to 

certain classifications or employees be 

permitted to vote subject to challenge 

just as a regional director could direct 

that certain classifications or employees 

be permitted to vote subject to 

challenge. See, e.g., Casehandling 

Manual Sections 11084.3 and 

11338.2(b). In such cases, the employer 

was advised to provide the names and 

home addresses for such individuals on 

the Excelsior list. Similarly, the final 

rule requires the employer to provide 

the information for such individuals on 

the voter list. However, as discussed 

more fully below in connection with 

§ 102.67, in order to ensure that the 

Board agent and the parties’ observers 

will properly process employees who 

were directed to vote subject to 

challenge (or were permitted to vote 

subject to challenge by agreement of the 

parties), the final rule requires the 

employer to provide the names and 

related information about such 

employees in a separate section of the 

list. 

4. Restriction and Remedies for Misuse 

of the Voter List 

In the NPRM, the Board proposed a 

restriction on the use of the voter list— 

barring parties from using it for any 

purposes other than the representation 

proceeding and related proceedings— 

and sought comments regarding what, if 

any, the appropriate remedy should be 

for a party’s noncompliance with the 

restriction.250

Many comments address the proposed 

restriction and potential consequences 

of noncompliance. At the outset, labor 

organizations’ comments point out that 

Excelsior did not contain any express 

restriction language and generally agree 

that the lack of historical evidence of 

Excelsior list abuses undercuts the need 

for any restriction.251 In contrast, other 

comments envision, as discussed above, 

a wide variety of potential misuses 

should the Board implement its voter 

list proposal.252

Other concerns are shared by both 

labor organizations and employer 

associations. For example, some 

comments, such as those from the 

Chamber and SEIU, focus on the lack of 

clarity as to what activity would be 

encompassed by the restriction (i.e., 

what activity falls outside of ‘‘using the 

list’’), while others, such as PCA’s and 

UFCW’s, assert that the Board could not 

effectively police any restriction it 

imposed, or that any remedy would be 

de minimis with regard to the damage 

done (CNLP; NRTW). The National 

Education Association Staff 

Organization concludes that the 

restriction and remedy proposals would 

simply create more litigation concerning 

matters which the Board, in contrast to 

law enforcement and the civil courts, is 

ill-equipped to handle. Additionally, 

other comments complain that the 

proposed restriction is unclear as to 

what counts as ‘‘the representation 

proceeding and related proceedings.’’ 253

In this regard, the Indiana Chamber 

worries that this phrase is overbroad, 

whereas by contrast, SEIU expresses 

concern that it will prove too narrow 

and restrictive of lawful union activity. 

Nevertheless, many employer 

associations’ comments propose a range 

of remedies including: Setting aside 

elections, temporary bans on organizing, 

letters of apology, monetary penalties, 

referral to law enforcement where 

criminal conduct has occurred, and 

pursuing injunctive relief against the 

restriction’s violators.254 Meanwhile, 

labor organizations’ comments stress 

that any sufficiently weighty remedy 

threatens to unfairly penalize employees 

for the misdeeds of labor 

organizations 255 and question whether 

the Board has ‘‘appropriate remedial 

authority to address such 

circumstances.’’ 256 In further contrast, 

the Chamber suggests that remedies 

should be ‘‘no fault’’ (applying to any 

misuse of the list, regardless of the 

petitioner’s intent), while the UFCW 

urges that the Board limit any remedy 

to ‘‘clearly defined circumstances 

involving willful and egregious 

noncompliance with the rule.’’ 

After careful consideration of the 

comments, the Board has slightly 

modified the proposed restriction 

language. The final rule shall read in 

relevant part: ‘‘The parties shall not use 

the list for purposes other than the 

representation proceeding, Board 

proceedings arising from it, and related 

matters.’’ See amended §§ 102.62(d), 

102.67(l). This change sufficiently 

clarifies the circumstances under which 

unions may use the list, balancing both 

privacy concerns and the interests, 

noted above, in the fair and free choice 

of bargaining representatives and the 

expeditious resolution of questions 

concerning representation. 

The restriction language will plainly 

allow the nonemployer parties to use 

the contact information to provide 

employees with information regarding 

the election and to investigate eligibility 

issues. Parties can also use the 

information on the list for such 

purposes as investigating challenges and 

objections and preparing for any postelection hearings on determinative 

challenges and/or objections. Parties 

may likewise use the information on the 

list in connection with unit clarification 

proceedings to decide the status of 

individuals whose status was not 

determined by the regional director or 

the Board or who voted subject to 

challenge in an election but whose 

ballots were not determinative. See 

Casehandling Manual Section 11490.1. 

Parties may also use the information on 

the list to investigate, and prepare for 

hearings regarding, unfair labor practice 

charges concerning the employer’s 

employees that are filed before or after 

the election takes place. And, just as is 

the case currently, if post-election 

objections are filed, a union (or 

decertification petitioner) could 

continue to use the list to maintain their 

support and to campaign for votes in 

connection with any rerun election that 

is held. In each of these examples, the 

nonemployer parties would be using the 

list for purposes of the representation 

proceeding, Board proceedings arising 

from it, and related matters. At the same 

time, the Board believes it goes without 

saying that nonemployer parties would 

run afoul of the restriction if, for 

example, they sold the list to 

telemarketers, gave it to a political 

campaign or used the list to harass, 

coerce, or rob employees.257


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obtain the information independently of the 

employer’s provision of the list, and therefore that 

it was not ‘‘using’’ the list when it engaged in the 

challenged conduct. That issue, like so many other 

issues, raises a question of fact for the factfinder. 

258See, e.g., Chamber; Indiana Chamber. 

259Nor is it at all clear whether the Board even 

possesses the requisite statutory authority to ban a 

union from filing future representation petitions 

because of previous misbehavior. In any event, the 

Board has long been loath to restrict employee free 

choice with respect to union representation on the 

basis of union misconduct. See Alto Plastics Mfg. 

Corp., 136 NLRB 850, 851 (1962) (‘‘[I]nitially, the 

Board merely provides the machinery whereby the 

desires of the employees may be ascertained, and 

the employees may select a ‘good’ labor 

organization, a ‘bad’ labor organization, or no labor 

organization, it being presupposed that employees 

will intelligently exercise their right to select their 

bargaining representative.’’); Handy Andy, Inc., 228 

NLRB 447, 454–56 (1977) (rejecting employer’s 

argument that a union’s practice of race 

discrimination preclude it from being certified as an 

exclusive bargaining representative). 

Nevertheless, § 102.177 of the Board’s Rules and 

Regulations appears broad enough to cover an 

attorney’s or party representative’s failure to abide 

by Board rules, including the rule announced today 

regarding misuse of the voter list, depending on the 

facts and circumstances of the violation. See 

§ 102.177(d) (‘‘Misconduct by an attorney or other 

representative at any stage of any Agency 

proceeding, including but not limited to 

misconduct at a hearing, shall be grounds for 

discipline. Such misconduct of an aggravated 

character shall be grounds for suspension and/or 

disbarment from practice before the Agency and/or 

other sanctions.’’) Moreover, if violations of the 

voter list restrictions should occur that do not fall 

within the provisions of § 102.177, the Board may 

look to amend that provision in the future. 

260Similarly, the Board hesitates to adopt a rule 

that would require parties in all cases to apologize 

for misusing the list. An apology would amount to 

an admission of guilt. Regional Directors, acting on 

behalf of the General Counsel, regularly approve 

settlements involving alleged unfair labor 

practices—even though the settlements contain non 

admissions clauses—where they conclude that the 

settlements effectuate the policies of the Act. The 

Board does not wish to preclude regional directors 

from resolving cases involving alleged misuse of 

voter lists in a manner the directors deem 

acceptable merely because the parties alleged to 

have misused the lists refuse to admit to having 

done so. 

As for monetary sanctions, the Board observes 

that while it does have the authority to make 

employees whole for their losses, it lacks authority 

to impose penalties, as noted above. Accordingly, 

the Board does not believe that a monetary sanction 

will be appropriate in all cases of voter list misuse. 

Regarding CDW’s suggestion that the Board refer 

criminal conduct to law enforcement authorities, 

the Board observes that under Casehandling Manual 

Section 11029.3, the Agency already forwards 

evidence of forgery to the appropriate law 

enforcement authorities. 

While the Board thinks it is selfevident that misuse of the voter list that 

adversely affects unit employees should 

result in some remedy, the Board has 

concluded that it would not be 

appropriate at this time to specify a 

remedy, or set of remedies, that would 

be applicable in all situations. The 

Board notes in this regard that while the 

Excelsior Board stated that it would 

‘‘provide an appropriate remedy’’ if a 

union used the list to harass or coerce 

employees (Excelsior, 156 NLRB at 

1244), the Excelsior Board did not 

specify the remedies it would provide. 

Like the Excelsior Board, we will leave 

the question of remedies to case-by-case 

adjudication. 

For example, the Board rejects the 

notion advanced in some comments 258

that misuse of the voter list should 

always warrant setting aside the results 

of an election won by the party 

misusing the list. As noted below in 

connection with §§ 102.64 and 102.66, 

the purpose of the election is to answer 

the question of representation. For 

example, the purpose of an election in 

an initial organizing case is to determine 

whether employees in an appropriate 

unit wish to be represented for the 

purposes of collective bargaining by the 

petitioner. There is a strong 

presumption that ballots cast in a secret 

ballot election reflect the true desires of 

the participating employees. 

Accordingly, the burden is on the 

objecting party to demonstrate that the 

election results ‘‘did not accurately 

reflect the unimpeded choice of the 

employees.’’ Daylight Grocery Co., Inc. 

v. NLRB, 678 F.2d 905, 909 (11th Cir. 

1982). A party seeking to overturn the 

outcome of an election based on another 

party’s conduct has the burden of 

showing not only that the conduct 

complained of occurred, but also that it 

‘‘interfered with the employees’ exercise 

of free choice to such an extent that it 

materially affected the [results of the] 

election.’’ C.J. Krehbiel Co. v. NLRB, 844 

F.2d 880, 882 (D.C. Cir. 1988). Accord 

Amalgamated Clothing Workers of 

America v. NLRB, 424 F.2d 818, 827 

(D.C. Cir. 1970). The Board has indeed 

set aside elections when union coercion 

resulted in objections to an election that 

were sustained. 

But not every misuse of the list can be 

said to have interfered with employee 

free choice in the election, let alone be 

said to have materially affected the 

results of the election. For example, if 

a union misuses the list after the 

election, by, for example selling the list 

to telemarketers, the misuse could not 

possibly have affected employee free 

choice in the election because the 

misconduct occurred after the election. 

Even if the union were to sell the list 

before the election, it could not be said 

to have impeded employee free choice 

if no employee knew about it. Setting 

aside the results of the election in such 

circumstances would interfere with 

employee free choice and would be 

contrary to the Act’s policy in favor of 

industrial stability. Accordingly, while 

the Board certainly does not wish to 

convey that a party’s misuse of the voter 

list could never warrant setting aside an 

election, the Board does not feel that it 

is appropriate to adopt a rule that would 

set aside election results in every case 

where the union chosen by employees 

misused the list in some way. At the 

same time, the fact that misuse of the 

list could not warrant setting aside the 

results of an election does not mean that 

the misuse should not be remedied in a 

manner appropriate to the 

circumstances. 

Similarly, the Board concludes that it 

would not be appropriate to adopt a per 

se rule that would bar a labor 

organization from engaging in future 

organizational drives whenever (and 

however) the labor organization 

misused the list, for such a remedy 

would interfere with the right of 

employees to petition for a specific 

labor organization to represent them.259

The Board also declines to adopt a rule 

that would require the General Counsel 

to seek injunctive relief in Federal 

district court whenever a party misuses 

the list. Injunctive relief is not the norm 

in our system, and while the Board does 

not wish to rule out seeking injunctive 

relief in an appropriate case, it does not 

believe that seeking such relief as a 

matter of course would necessarily be 

appropriate.260

AGC suggests that misuse of the voter 

list should be deemed a violation of 

Section 8(a)(1) or 8(b)(1). The Board 

rejects this suggestion at this time for 

reasons similar to those that led us to 

reject the suggestion that any misuse 

should warrant setting aside the election 

results. There may be situations in 

which the Board finds that a party has 

misused the voter list in violation of 

Section 8(a)(1) or 8(b)(a). Even if no 

such violation is found, the misuse may 

constitute objectionable conduct, which 

could trigger a new election. The Board 

believes that case-by-case adjudication 

is the appropriate way to consider 

circumstances in which a remedial 

order is appropriate so that it can tailor 

its order to the specific misuse and 

ensure that the remedy it imposes is 

effective. As with all of the foregoing 

proposals, the point is that in 

determining the appropriate remedy for 

a proven misuse, the Board believes that 

it is appropriate to consider all the 

circumstances and provide a remedy, 

where appropriate, which is tailored to 

the misconduct found to have been 

committed. 

MEMA II argues that any restriction 

must be accompanied by requiring 

advanced security protocols to be 

implemented by petitioning unions, and 

cites as models the regulatory regimes 

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261The legislative and administrative histories of 

the GLBA, the HIPAA and the FCRA support our 

position that financial and medical information is 

special and requires a closer degree of protection 

than other types of information. See, e.g., U.S. Sen. 

Conrad Burns Holds Hearing on Privacy on the 

Internet Before Sen. Subcomm. on Commc’ns, 106th 

Cong. 1999 WL 542117 (1999) (‘‘Last week we 

unanimously testified in favor of legislation that 

would protect the privacy of financial records, 

because financial records are different. I would say 

the same thing about medical records.’’); Standards 

for Privacy of Individually Identifiable Health 

Information, 64 FR 59918, 59919–20 (proposed 

November 3, 1999) (codified at 45 CFR parts 160 

and 164) (discussing why medical records 

specifically warrant privacy protections); Statement 

of Mr. Stephen Brobeck Before H. Comm. on Fin. 

Servs., 2003 WL 21541527 (2003) (discussing the 

need for revisiting and expanding the privacy 

protections in the FCRA because of the exceptional 

nature of financial information); see also Fact Sheet 

on Fin. Privacy and Consumer Prot., 1999 WL 

270108 (1999) (discussing need to protect medical 

and financial information due to their particularly 

private and important natures). 

262See, e.g., Chamber; Daniel Wroblewski. 263To be clear, the Board will not abdicate its 

responsibility to utilize its statutory authority to 

remedy any misuse that may occur following 

implementation of the voter list amendments 

merely because the possibility of remedial authority 

exists under a separate civil or criminal statutory 

scheme. Indeed, the Board remains mindful of the 

possibility raised by J. Aloysius Hogan (Testimony 

on behalf of the Competitive Enterprise Institute II) 

that the voter list amendments could be found by 

a court to preempt state statutes that might 

otherwise provide breach of privacy remedies. 

Nevertheless, the Board is unprepared at this time 

to say that no set of future circumstances will be 

appropriate for the Board to defer remediation to 

another state or Federal judicial forum, and it 

cannot assume that every statute potentially 

relevant to misuse of the voter list will be 

preempted. 

Bliley Act (‘‘GLBA’’), 15 U.S.C. 6801, 

the Health Insurance Portability and 

Accountability Act (‘‘HIPAA’’), 42 

U.S.C. 1320d, and the Fair Credit 

Reporting Act (‘‘FCRA’’), 15 U.S.C. 

1681a. We disagree. The personal 

information at issue in those statutes is 

far more sensitive than what will be 

disclosed as part of the voter list 

amendments we announce today. We do 

not believe that we can rationally equate 

the financial and health-related 

information regulated by those statutes 

with employee contact information, and 

identification of their work location, 

shift, and job classification.261 In 

addition, MEMA’s comment loses sight 

of the fact that the nonemployer party 

who receives the list in a given case may 

not be a large sophisticated institution 

like an international union, but might be 

an unsophisticated individual who files 

a decertification petition. Thus, in 

addition to the information’s relative 

lack of sensitivity, the Board believes 

that it would be unrealistic to think that 

it could require individual employees or 

small labor organizations to—as 

advocated by MEMA—designate a 

security officer or develop a written 

security program. 

Finally, regarding a petitioner’s 

retention of the information after a 

representation campaign ends, the 

Board observes that petitioners are 

currently entitled to retain the list 

indefinitely under Excelsior, and, as 

shown, there are certainly legitimate 

reasons why petitioners might use the 

list after the election. Moreover, the 

Board does not believe that a 

petitioner’s retention of the information 

on the list would implicate any privacy 

concerns beyond those implicated by 

the initial disclosure under Excelsior. 

The Board therefore declines the 

suggestion that petitioners be required 

to destroy voter list information after a 

set period of time or upon an individual 

employee’s request.262 We reiterate, 

however, that the Board will provide an 

appropriate remedy under the Act if 

misconduct is proven and it is within 

the Board’s statutory power to do so. In 

addition, individuals may have recourse 

in other judicial fora.263

5. Waiver 

Although the proposed regulatory 

language did not explicitly so state, the 

preamble section to the NPRM indicated 

that consistent with existing practice, 

reflected in Mod Interiors, Inc., 324 

NLRB 164 (1997), and Casehandling 

Manual Section 11302.1, and as recently 

noted by the Board in The Ridgewood 

Country Club, 357 NLRB No. 181, n.8 

(2012), an election shall not be 

scheduled for a date earlier than 10 days 

after the date by which the voter list 

must be filed and served, unless this 

requirement is waived by the parties 

entitled to the list. 

SEIU urges that instead of requiring 

the employer to provide the voter list to 

the union within 2 days after the 

direction of election with the ensuing 

10-day pre-election period, the Board 

should require the employer to provide 

a ‘‘preliminary’’ list of employees 

(including contact information) to the 

union within 2 days after it receives the 

union’s election petition, and to update 

this list as necessary at the pre-election 

hearing. SEIU points out that if this 

alternative requirement were imposed, 

the 10-day practice would be largely 

unnecessary since the union would 

have obtained the voter list at an earlier 

point in the process. SEIU also requests 

that a post-direction period of up to 10 

days be available for the union to 

contact any employees who were added 

to the list at the pre-election hearing. 

However, the Excelsior Board justified 

the required disclosure in part because 

the interest in the fair and free choice 

of a bargaining representative must be 

deemed substantial when the regional 

director has found that a question of 

representation exists or the employer 

admits that such a question exists by 

entering into an election agreement. See 

Excelsior, 156 NLRB at 1245. Absent an 

election agreement, however, the 

director cannot find that a question of 

representation exists and direct an 

election until the hearing closes. Under 

the final rule, the hearing ordinarily will 

open 8 days after service of the notice. 

Accordingly, the Board rejects SEIU’s 

request that the employer be required to 

furnish the other parties with the 

employee contact information 2 days 

after the filing of the petition—i.e., 

before either the director has found that 

a question of representation exists or the 

employer has admitted such a question 

of representation exists. 

ALFA and SHRM assert that the 

waiver of the 10-day period should not 

be permitted on the grounds that the 10- 

day period is provided for the benefit of 

employees rather than unions, and that 

the 10-day period is always necessary to 

permit employees to receive information 

from their employers. In this respect, 

these comments assert that a waiver of 

the 10-day period contributes to the 

overall shortening of the period between 

the filing of a petition and the election 

effected by the rule amendments, which 

they oppose. SHRM, quoting Excelsior, 

emphasizes the priority of avoiding ‘‘a 

lack of information with respect to one 

of the [ballot] choices available.’’ 

However, the comments take the 

quoted language out of context: The 

Board imposed the requirement on the 

employer to disclose the list of 

employee names and addresses in order 

to maximize the likelihood that the 

voters will be exposed to the 

nonemployer parties’ arguments. Thus, 

as shown, the Excelsior Board observed 

(156 NLRB at 1240) that in contrast to 

the union, ‘‘[a]s a practical matter, an 

employer, through his possession of 

employee names and home addresses as 

well as his ability to communicate with 

employees on plant premises, is assured 

of the continuing opportunity to inform 

the entire electorate of his views with 

respect to union representation.’’ The 

Board went on to note that ‘‘by 

providing all parties with employees’ 

names and addresses, we maximize the 

likelihood that all of the voters will be 

exposed to the arguments for, as well as 

against, union representation.’’ Id. at 

1241. Similarly, in upholding the 

requirement, the Supreme Court 

reasoned that the disclosure 

requirement allows ‘‘unions the right of 

access to employees that management 

already possesses.’’ NLRB v. WymanGordon Co., 394 U.S. at 767. The 

Excelsior rule was accordingly found 


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264See, e.g., ACC; Chamber; Chamber II; NAM; 

NAM II. 

265See, e.g., COLLE; Indiana Chamber; NAM; 

Chamber Reply; Chamber II. 

266See, e.g., Chamber; Chamber II; NRF; MEMA. 

267See, e.g., Washington Farm Bureau; CDW; 

ACC. 

268See, e.g., Testimony of Russ Brown on behalf 

of LRI; Chamber Reply. 

269See, e.g., AFL–CIO; AFL–CIO Reply; AFL–CIO 

II; SEIU; NELP. 

270See, e.g., SEIU and UFCW. 

271 Just as is the case with respect to the opening 

of the hearing, the regional director may postpone 

the due date for filing and service of the Statement 

of Position up to 2 business days upon request of 

a party showing special circumstances, and for 

more than 2 business days upon request of a party 

showing extraordinary circumstances. 

necessary to provide the nonemployer 

parties with an opportunity to 

communicate its message at least to the 

extent of having access to employees’ 

names and home addresses. Neither the 

employer’s nor the employees’ interest 

is compromised by the union’s exercise 

of the waiver of the 10-day period, since 

that results in a reduction only of the 

union’s opportunity to further 

communicate with employees; and the 

union can be expected to exercise the 

waiver only when it is confident that 

employees have heard its message. The 

objection that a waiver of the 10-day 

period shortens the opportunity for 

employers to communicate with 

employees is therefore relevant not to 

the union’s use of the Excelsior list, but 

rather to the other rule amendments at 

issue here. That objection is addressed 

in connection with The Opportunity for 

Free Speech and Debate above. 

SHRM also contends that if the waiver 

is retained, the waiving party should be 

treated as also waiving the right to file 

election objections based on the voter 

list, any failure of the employer to 

properly post election notices, ‘‘and any 

other potential procedural objection.’’ 

We are not persuaded by the suggestion 

that nonemployer parties should not be 

permitted to waive all or part of the 10- 

day period to use the list unless they 

also agree to waive objections to an 

employer’s failure to fulfill its 

obligations under the Board 

representation case rules. For example, 

the fact that a union believes that it 

needs only 5 days to communicate with 

the electorate if the employer furnishes 

it with an accurate list of the eligible 

voters’ contact information certainly 

does not mean that the union has agreed 

that it only needs 5 days to 

communicate if the employer furnishes 

it with an inaccurate list of the eligible 

voters’ contact information. 

Accordingly, a union should not be 

deemed to have waived its right to 

object to an employer’s failure to 

provide an accurate voter list merely 

because it waived its right to use the list 

for the full 10-day period. Similarly, 

that a union agrees to waive part of the 

time for using the voter list certainly 

does not mean that a union should be 

held to have forfeited its right to object 

if the employer alters, or fails to post, 

the Board’s election notice and thereby 

misleads, or fails to inform, employees 

as to the election details. In sum, 

although the final rule does not so state, 

we reiterate that consistent with current 

practice, an election shall not be 

scheduled for a date earlier than 10 days 

after the date by which the voter list 

must be filed and served, unless this 

requirement is waived by the parties 

entitled to the list. 

Sec. 102.63 Investigation of Petition by 

Regional Director; Notice of Hearing; 

Service of Notice; Notice of Petition for 

Election; Statement of Position; 

Withdrawal of Notice of Hearing 

A. Introduction and Overview of 

Changes From NPRM 

The Board proposed in the NPRM 

that, absent special circumstances, the 

regional director would set the hearing 

to begin 7 days after service of the 

notice of hearing. The Board further 

proposed that, with the notice of 

hearing, the regional director would 

serve the petition, the ‘‘Initial Notice to 

Employees of Election,’’ the description 

of procedures in representation cases, 

and the Statement of Position form on 

the parties. The NPRM also proposed 

that the regional director specify in the 

notice of hearing the due date for 

Statements of Position, which would be 

due no later than the date of the hearing. 

The Board specifically sought comments 

on the feasibility and fairness of these 

time periods and the wording and scope 

of the exceptions thereto. 79 FR 7328. 

The Board received a great number of 

comments about these matters. 

Comments criticizing the Statement of 

Position form attacked the scope of the 

information solicited by the form 264 and 

the due date for its completion,265 as 

well as its binding nature and the 

consequences of failing to complete 

it.266 Comments also criticized the 

proposed time frame for the pre-election 

hearing 267 and the wording and scope 

of the exceptions thereto.268 Comments 

praising the proposals argued that the 

Statement of Position form and 

proposed time frames largely mirror best 

existing casehandling practices.269

However, some of these comments 

suggested that the Board require 

completion of the Statement of Position 

form even earlier.270

The Board has carefully considered 

the comments and, as explained more 

fully below, has decided to adopt the 

proposals with certain significant 

changes: 

(1) Except in cases presenting 

unusually complex issues, the regional 

director will set the hearing to open 8 

days—rather than 7 days—from service 

of the notice of hearing excluding 

intervening Federal holidays. However, 

the regional director may postpone the 

opening of the hearing up to 2 business 

days upon request of a party showing 

special circumstances, and for more 

than 2 business days upon request of a 

party showing extraordinary 

circumstances. Accordingly, parties will 

have at least 8 days notice of the 

hearing. 

(2) The Statement of Position will be 

due at noon on the business day before 

the opening of the hearing if the hearing 

is set to open 8 days from service of the 

notice of hearing. Although the regional 

director may set the due date for the 

position statement earlier than at noon 

on the business day before the hearing 

in the event the hearing is set to open 

more than 8 days from the service of the 

notice, parties will have 7 days notice 

of the due date for completion of the 

Statement of Position form in all cases. 

The Statement of Position form will be 

due no later than at noon on the 

business day before the hearing so that 

it may serve its intended purposes of 

facilitating entry into election 

agreements and narrowing the scope of 

any hearing that must be held, thereby 

enabling the Board to expeditiously 

resolve questions concerning 

representation.271

(3) In the event the employer 

contends as part of its Statement of 

Position that the proposed unit is not 

appropriate, the employer will not be 

required to identify the most similar 

unit that it concedes is appropriate or 

provide information about the 

employees in such a unit. However, the 

employer will be required to state the 

basis for its contention that the 

proposed unit is inappropriate, and 

state the classifications, locations, or 

other employee groupings that must be 

added to or excluded from the proposed 

unit to make it an appropriate unit, and 

the employer will be required to 

disclose information about the 

individuals in the classifications, 

locations, or other employee groupings 

that the employer contends must be 

added to the proposed unit to make it 

an appropriate unit, so that the 

petitioner will be able to evaluate the 

employer’s position and decide whether 

to amend its petition to conform to the 

unit proposed by the employer. 


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272The Board believes that parties may be able to 

enter into election agreements without awaiting 

completion of the Statement of Position when the 

petitioned-for unit is presumptively appropriate 

and when the nonemployer parties to the case are 

confident they are familiar with all the employees. 

(4) The final rule will not require the 

employer to disclose as part of its 

Statement of Position any contact 

information for employees in the 

proposed unit or for employees in any 

alternative unit proposed by the 

Employer. 

(5) The final rule clarifies the required 

Statements of Positions in RM and RD 

cases to make them parallel to the 

required Statement of Positions in RC 

cases, which will facilitate entry into 

election agreements and narrow the 

scope of pre-election hearings in those 

cases. 

(6) The final rule states explicitly that 

the regional director may permit parties 

to amend their Statements of Position in 

a timely manner for good cause. 

(7) The final rule also retitles the 

proposed ‘‘Initial Notice to Employees 

of Election’’ as the ‘‘Notice of Petition 

for Election,’’ and clarifies that within 2 

business days after service of the notice 

of hearing, the employer shall post the 

Notice of Petition for Election in 

conspicuous places, including all places 

where notices to employees are 

customarily posted, and shall also 

distribute it electronically if the 

employer customarily communicates 

with its employees electronically, and 

that failure to do so may be grounds for 

setting aside the election. 

B. Statement of Position Form 

The Board proposed in the NPRM that 

the Statement of Position form would 

solicit the parties’ positions on the 

Board’s jurisdiction to process the 

petition; the appropriateness of the 

petitioned-for unit; any proposed 

exclusions from the petitioned-for unit; 

the existence of any bar to the election; 

the type, dates, times, and location of 

the election; and any other issues that 

a party intends to raise at hearing. In 

those cases in which a party takes the 

position that the proposed unit is not an 

appropriate unit, the party would also 

be required to state the basis of the 

contention and identify the most similar 

unit it concedes is appropriate. In those 

cases in which a party intends to contest 

at the pre-election hearing the eligibility 

of individuals occupying classifications 

in the proposed unit, the party would be 

required to both identify the individuals 

(by name and classification) and state 

the basis of the proposed exclusion, for 

example, because the identified 

individuals are supervisors. Finally, 

parallel to the proposed amendment to 

the contents of petitions described in 

relation to § 102.61 above, the nonpetitioning parties would be required to 

designate, in their Statement of Position, 

the individual who will serve as the 

party’s representative in the proceeding, 

including for service of papers. 79 FR 

7328. 

The NPRM also proposed that, as part 

of its Statement of Position, the 

employer would be required to provide 

a list of all individuals employed by it 

in the petitioned-for unit. The list 

would include the same information 

described in relation to proposed 

§ 102.62 except that the list served on 

other parties would not include contact 

information. If the employer contends 

that the petitioned-for unit is not 

appropriate, the NPRM proposed that 

the employer also would be required to 

file and serve a similar list of 

individuals in the most similar unit that 

the employer concedes is appropriate. 

79 FR 7328–7329. 

Under the proposed amendments, the 

list filed with the regional office, but not 

the list served on other parties, would 

also contain available email addresses, 

telephone numbers, and home 

addresses. The regional office could 

then use this additional information to 

begin preparing the electronic 

distribution of the Notice of Election 

discussed in relation to proposed 

§ 102.67. 79 FR 7329. 

As set forth in the NPRM, completion 

of the Statement of Position form would 

be mandatory only insofar as failure to 

timely file it would preclude a party 

from raising issues, such as the 

appropriateness of the unit, and 

participating in their litigation. A party 

would also be precluded from litigating 

most issues that it failed to raise in a 

timely filed Statement of Position. 

However, a party would not be 

precluded from contesting the Board’s 

statutory jurisdiction to process the 

petition, or from challenging the 

eligibility of a particular voter during 

the election. 79 FR 7328, 7329, 7330, 

7358. 

The NPRM set forth the Board’s view 

that the information requested by the 

Statement of Position would facilitate 

entry into election agreements and 

narrow the scope of pre-election 

hearings in the event parties are unable 

to enter into such agreements. The 

Statement of Position form would guide 

prehearing preparation, thereby 

reducing the time and other resources 

expended in preparing to participate in 

representation proceedings. The NPRM 

also explained that parties who enter 

into one of the forms of election 

agreement described in § 102.62 prior to 

the due date for completion of the 

Statement of Position would not be 

required to complete the Statement. 79 

FR 7328–29.272

The NPRM provided that the 

Statement of Position would be due no 

later than the date of the hearing. 79 FR 

7328. Some comments in favor of the 

Statement of Position argue that if the 

statement is to fulfill its intended 

purposes, then parties should be 

required to complete and serve it before 

the hearing. UFCW; SEIU; Testimony of 

Melinda Hensel on behalf of IUOE, 

Local 150 II. We agree. Requiring 

completion and service of the Statement 

of Position such that it is received by 

the parties named in the petition and 

the regional director at noon on the 

business day before the opening of the 

hearing will help facilitate meaningful 

negotiations concerning election 

agreements and will narrow the scope of 

preelection hearings in the event parties 

are unable to enter into election 

agreements. If the Statement of Position 

were not due until the opening of the 

hearing, then an employer would not 

need to disclose the information 

required by the form to the petitioner 

until the hearing actually opened. As 

more fully explained below, this would 

mean that if, as is often the case, the 

parties attempted to negotiate an 

election agreement before the opening of 

the hearing, the petitioner would lack 

much of the information necessary to 

intelligently evaluate the merits of the 

employer’s positions. In fact, the parties 

to a representation case frequently 

attempt to negotiate election agreements 

the day before a hearing opens as the 

immediate prospect of litigation—and 

its attendant costs—serves to focus the 

parties’ attention on the matter at hand. 

Accordingly, requiring the filing and 

service of the Statement of Position at 

noon on the business day before the 

opening of the hearing should help the 

parties negotiate election agreements at 

a time when they typically are actively 

engaged in doing that very thing. 

Requiring filing and service of the 

Statement of Position at noon on the 

business day before the opening of the 

hearing will also help the parties narrow 

the scope of the hearing in the event 

parties are unable to enter into election 

agreements, thereby saving party and 

government resources. For example, 

even if the parties are unable to enter 

into an election agreement, the 

Statement of Position will enable the 

parties to know which issues will 

actually be contested at the hearing, so 

that it can run more smoothly and 

efficiently. In addition, as Caren Sencer 

testified on behalf of Weinberg, Roger & 


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273Other commenters such as UNAC/UHCP 

likewise complained that when employers refuse to 

tell unions what their issues are with a petition, 

unions are forced to prepare for, and find witnesses 

to testify on, all possible issues. Testimony of 

Kuusela Hilo on behalf of UNAC/UHCP II. 

274 In some respects, the Statement of Position 

form requires less than what parties frequently do 

to prepare for a hearing. For example, completion 

of the Statement of Position form does not require 

witness preparation. 

275Although the final rule provides for 

Statements of Position from different parties 

depending upon the type of petition filed, most of 

the comments focused on employers completing 

forms in the RC petition context. For simplification 

of the discussion, we will focus on that context for 

the remainder of the section. 

276Because the Board must have statutory 

jurisdiction, the final rule clarifies in 

§ 102.63(b)(2)(iii) and (b)(3)(i), (iii) that the 

employer’s Statement of Position in RM and RD 

cases likewise must state whether the employer 

agrees that the Board has jurisdiction over it and 

provide the requested information about the 

employer’s relation to interstate commerce. 

277See Casehandling Manual Sections 11008, 

11009, 11012, 11016, 11025, 11030, 11187, 11189, 

11217; Guide For Hearing Officers in NLRB 

Representation and Section 10(k) Proceedings 

(‘‘Hearing Officer’s Guide’’) at 2–5, 14–18. 

Rosenfeld II by enabling the parties to 

know what the disputed issues are prior 

to the day the hearing opens, the 

requirement of a Statement of Position 

could result in parties’ needing to pull 

fewer employees from the workplace to 

testify at the preelection hearing, which 

could result in fewer disruptions to the 

employer’s business.273

The Croft Board held that 5 days 

(excluding intervening weekends and 

holidays) constituted sufficient notice 

for an employer to prepare for a hearing. 

Croft Metal, Inc., 337 NLRB 688, 688 

(2002). As explained below, the Board 

believes that the Statement of Position 

form largely requires parties to do what 

they currently do to prepare for a preelection hearing.’’ 274 Accordingly, 

under amended § 102.63(b)(1–3), a party 

will be provided with 7 calendar days 

(5 business days) notice of the due date 

for completion of the form, and the 

hearing will ordinarily be set for 8 days 

from service of the notice so that the 

parties have approximately 1 business 

day to use the information on the form 

before the hearing opens. 

Although many employer comments 

attack the time frame for completion of 

the Statement of Position form, its 

binding nature, and the consequences of 

failing to complete it, even the Chamber 

does not object to the proposal that 

parties be required to take positions on 

at least some of the matters addressed 

by the Statement of Position form. For 

example, the Chamber states in both its 

comments regarding the 2011 NPRM 

and the 2014 NPRM that in general it 

does not object to the proposed 

requirement that the employer state 

whether it agrees that the Board has 

jurisdiction and provide requested 

information concerning the employer’s 

relation to interstate commerce, except 

with respect to the timing and legal 

effect of the Statement of Position form. 

Similarly, the Chamber does not object 

in general to the proposed requirements 

that the employer state whether it agrees 

that the proposed unit is appropriate, 

and if the employer does not so agree, 

state the basis of its contention that the 

proposed unit is inappropriate, except 

with respect to the timing and legal 

effect of the Statement of Position form. 

Chamber; Chamber II. Nor does the 

Chamber object in general to the 

requirement that the employer raise any 

election bars, and state the name and 

contact information of its representative. 

Chamber; Chamber II. 

It is not surprising that the Chamber 

does not object to the requirement that 

an employer state whether it agrees that 

the Board has jurisdiction and provide 

requested information concerning the 

employer’s relation to interstate 

commerce; that the employer state 

whether it agrees that the proposed unit 

is appropriate, and if the employer does 

not so agree, state the basis of its 

contention that the proposed unit is 

inappropriate; that the employer raise 

any election bars; and that the employer 

state the name and the contact 

information of its representative.275

After all, requiring the employer to 

provide such information plainly 

facilitates entry into election agreements 

and helps narrow the scope of hearings 

in the event parties are unable to enter 

into election agreements. For example, 

if the employer explains why it believes 

that the proposed unit is not appropriate 

before the hearing, the petitioner may 

decide that the employer is correct and 

amend its petition to meet the 

employer’s objections, thereby obviating 

the need for a hearing. Similarly, if the 

parties are unable to enter into an 

election agreement but the employer 

provides the requested commerce 

information and agrees that the Board 

has jurisdiction before the start of the 

hearing, the parties are spared the time 

and expense of litigating that issue.276

Moreover, regional employees currently 

request such information prior to the 

opening of the pre-election hearing.277

And, of course, requiring the employer 

to provide the name of, and contact 

information (including an email address 

and fax number) for, its representative 

will enable the Board and the other 

parties to utilize modern methods of 

communication to communicate with 

the employer to resolve election issues 

and transmit case-related documents. 

To be sure, as comments by the 

Chamber (Reply) and CDW point out, 

the Statement of Position form is a 

departure from current practice because 

it mandates, rather than simply 

requests, that employers share such 

information prior to the hearing. 

However, the information sharing goals 

underlying the Statement of Position 

form are nothing new. Indeed, they are 

reflected in best practices promoted 

more than a decade ago, as well as the 

Casehandling Manual and the Hearing 

Officer’s Guide. A model representationcase opening letter circulated in 1999 

and the Casehandling Manual provide 

that regional personnel should arrange a 

conference at least 24 hours before the 

opening of the pre-election hearing, in 

order to explore entry into election 

agreements or to narrow the issues for 

hearing. In conjunction with the 

prehearing conference, regional office 

personnel solicit many of the same 

positions requested by the form, and 

although not requiring information 

disclosure, they encourage parties to 

share all available information at the 

pre-hearing conference. In particular, 

they seek the employer’s permission to 

share a list of names and classifications 

of all employees at issue with all parties 

because it is ‘‘an excellent aid in 

resolving many of the eligibility and 

unit questions that arise during case 

processing.’’ See OM Memo 99–56, 

http://www.nlrb.gov/reports-guidance/

operations-management-memos; 

Casehandling Manual Sections 11012, 

11016, 11025.1. 

Similarly, the Hearing Officer’s Guide 

provides that the hearing officer should 

meet with parties’ representatives prior 

to the hearing to discuss the issues they 

intend to raise, and that in preparation 

for the hearing, the hearing officer 

should question the parties regarding 

jurisdictional facts, unit scope, unit 

composition, availability of a list of 

employee classifications, inclusions and 

exclusions, and the issues that will be 

raised at the hearing. Hearing Officer’s 

Guide at 2–5. The Guide instructs the 

hearing officer to encourage the parties 

at the prehearing conference to share 

information and documents, and to 

discuss the nature of the evidence to be 

presented. Hearing Officer’s Guide at 4– 

5. Put simply, the Board believes that 

the information at issue is so helpful 

and important for purposes of 

facilitating entry into election 

agreements and narrowing the scope of 

pre-election hearings that the employer 

should be required to produce the 

information or be precluded from 

litigating certain issues if it refuses. 


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278See, e.g., Chamber; Chamber II; ALFA; SHRM. 

279See, e.g., SHRM; CDW; Prepared Testimony of 

David Kadela on behalf of Littler Mendelson. 

280Chamber; Chamber II. 

281Chamber; Chamber II. 

282See, e.g., ALFA; Chamber; Chamber II. 

283The Board categorically denies the National 

Small Business Association’s accusation that the 

Statement of Position form is intended to coerce 

employers into entering into election agreements. 

We take this opportunity to repeat that the form is 

designed to facilitate election agreements and to 

narrow the scope of pre-election hearings in the 

event parties are unable to enter into election 

agreements. Thus, the form is intended to help the 

Board avoid unnecessary litigation and 

expeditiously resolve questions concerning 

representation. 

284See also National Nurses United (NNU) (‘‘The 

requirement for a prompt Statement of Position 

simply memorializes what Board Agents assigned to 

processing petitions already try to do.’’) 

The Board also finds that use of the 

Statement of Position form is consistent 

with Bennett Industries, Inc., 313 NLRB 

1363, 1363 (1994), where the Board 

observed,’’[I]n order to effectuate the 

purposes of the Act through 

expeditiously providing for a 

representation election, the Board 

should seek to narrow the issues and 

limit its investigation to areas in 

dispute.’’ Thus, the amendments give all 

parties clear, advance notice of their 

obligations, both in the rules themselves 

and in the statement of procedures and 

Statement of Position form. However, 

the amendments are not intended to 

preclude any other formal or informal 

methods used by the regional offices to 

identify and narrow the issues. 

Although the Chamber does not object 

to some of the information solicited by 

the Statement of Position form, the 

Chamber and many others do object to 

the requirement that the employer 

provide certain items of information. 

For example, many comments object to 

the requirement that the employer: (1) 

Describe the most similar unit that it 

concedes is appropriate if it contends 

that the proposed unit is not 

appropriate; 278 (2) provide the lists of 

employees in the proposed unit and in 

any proposed alternative unit; 279 (3) 

identify any individuals occupying 

classifications in the proposed unit 

whose eligibility to vote the employer 

intends to contest at the pre-election 

hearing, and the basis for each such 

contention; 280 (4) identify all other 

issues it intends to raise at the 

hearing; 281 and (5) state its position on 

election details such as the type, date, 

time, and location of any election.282

Except as noted below, the Board is 

not persuaded by the comments 

objecting to the content of the 

information requested by the Statement 

of Position form. Thus, the Board 

believes that the Statement of Position 

form asks parties to provide information 

that would facilitate entry into election 

agreements and narrow the scope of 

hearings in the event parties are unable 

to enter into such agreements, so as to 

eliminate unnecessary litigation and 

help the Board expeditiously conduct 

an election if it determines that a 

question of representation affecting 

commerce exists. By doing so, the 

Statement of Position form helps the 

Board to fairly and expeditiously 

resolve questions concerning 

representation.283 The Board also 

believes that the Statement of Position 

largely requires parties to do what they 

currently do to prepare for a preelection hearing.’’ Amy Bachelder, a 

former NLRB field attorney of 25 years, 

agrees. She testified that ‘‘the issues 

related to the required Statement of 

Position in the pre-election hearing 

reflect little more than what is current 

standard pre-election hearing 

practice.’’ 284

1. Identification of Alternative Unit 

Numerous comments address the 

Board’s proposal (in § 102.63(b)(1)(i)) 

that, in those cases in which the 

employer takes the position that the 

proposed unit is not an appropriate 

unit, it would be required to ‘‘describe 

the most similar unit that the employer 

concedes is appropriate.’’ Many 

comments also address the Board’s 

related proposal (in § 102.63(b)(1)(iii)) 

that, if the employer contends that the 

proposed unit is not appropriate, it 

would be required to file and serve a list 

of individuals in the ‘‘most similar unit’’ 

that it concedes is appropriate. As 

discussed in the NPRM, these proposed 

changes were intended to assist the 

parties in identifying issues that must be 

resolved at a pre-election hearing and 

thereby facilitate entry into election 

agreements. They were also intended to 

codify parties’ existing practice where 

they contend that the proposed unit is 

not appropriate because the smallest 

appropriate unit includes additional 

classifications or facilities. See, e.g., 

Westinghouse Electric Corp., 137 NLRB 

332 (1962). 

A large number of comments oppose 

these proposals. In general, those 

comments argue that an employer 

should not have to concede the 

appropriateness of any unit before 

evidence is presented at a hearing and 

the petitioner clarifies who specifically 

it wants included in, or excluded from, 

the unit. For example, NAM contends 

that the requirement that an employer 

posit an alternate appropriate unit 

‘‘places the employer, as the nonpetitioning party, in the extraordinary 

position of having to concede the 

appropriateness of a unit where it may 

oppose the propriety of the unionization 

effort and where it is without 

determinative evidence that its 

employees wish to be unionized.’’ 

SHRM, among others, contend that this 

proposed requirement is vastly different 

from the Board’s current representation 

case procedures, which, ‘‘[a]t most 

* * * require non-petitioning parties to 

take a position with respect to the 

appropriateness of the petitioned for 

unit.’’ 

Other comments, such as SHRM’s, 

question the Board’s statutory authority 

for requiring non-petitioning parties to 

define the ‘‘most similar unit’’ when the 

current rules permit parties to propose 

alternative units that merely may be 

appropriate under the particular 

circumstances. Those comments further 

contend that the Board should explain 

the specific legal framework that it will 

use to determine whether the alternative 

units proposed by employers are, in 

fact, the ‘‘most similar’’ to the unit 

described in the petition. SHRM further 

seeks clarification that employers will 

not be required to identify all 

potentially appropriate units or else risk 

waiver of any arguments regarding such 

alternative unit descriptions at the 

hearing given the large number of 

potentially appropriate bargaining units 

and the potential difficulty in 

determining which alternative unit 

would be the ‘‘most similar.’’ 

Similarly, comments like CDW’s 

object on the ground that the Act does 

not require that elections occur in the 

most appropriate unit. See Morand Bros. 

Beverage Co., 91 NLRB 409, 418 (1950) 

(the Board need not determine ‘‘that the 

unit for bargaining be the only 

appropriate unit, or the ultimate unit, or 

the most appropriate unit; the Act 

requires only that the unit be 

‘appropriate’’’) (emphasis in original). 

CDW further contends that the proposed 

‘‘most similar unit’’ rule unfairly favors 

unions by permitting them to choose 

among the complete array of potential 

‘‘appropriate’’ units while, at the same 

time, limiting employers to a single 

potential unit that is ‘‘most similar’’ to 

what the union has proposed. 

The Chamber argues that, unless and 

until the proposed unit has been subject 

to examination at a hearing and either 

been agreed upon by the parties or 

deemed appropriate by the Board, the 

proposed ‘‘most similar unit’’ 

requirement poses a significant burden 

on employers. Other comments, 

including the Chamber’s, argue that the 

proposed requirement that an employer 

not only agree or disagree with the 

union’s petitioned-for unit, but go 


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285The amendments thus leave employers ‘‘free 

to propose any alternative unit that may be 

appropriate under the particular circumstances.’’ 

ACE II. The final rule also imposes similar 

requirements on the individual or labor 

organization in the RM context and on the employer 

and the certified or recognized representative of 

employees in the RD context. Amended 

§§ 102.63(b)(2)(i) and (b)(3)(i). 

286To the extent that comments perceived that 

the ‘‘most similar’’ language charted a different path 

from current practice, the change in the final rule 

should alleviate those concerns. 

287See, e.g., ACE; SHRM. 

further and make a proposal itself, 

‘‘amounts to a forced pleading and 

raises serious due process and free 

speech concerns.’’ 

At least one comment questions the 

need for the proposed ‘‘most similar 

unit’’ rule in the acute health care field. 

Thus, AHA asserts that there is no need 

for an employer in the acute health care 

field to recommend an alternative unit, 

as there are only eight appropriate units 

under the Board’s regulations, and 

unions organizing under those rules are 

familiar with what constitutes an 

appropriate unit. 

After careful consideration of all the 

comments concerning the ‘‘most similar 

unit’’ requirement proposed in the 

NPRM, the Board has decided to modify 

this aspect of the NPRM. Accordingly, 

the final rule will not require that, in 

those cases in which the employer takes 

the position that the proposed unit is 

not an appropriate unit, the employer 

‘‘describe the most similar unit that the 

employer concedes is appropriate.’’ 

Rather, in those cases where the 

employer takes the position that the 

proposed unit is not an appropriate 

unit, § 102.63(b)(1)(i) of the final rule 

will require the employer to ‘‘state the 

basis for its contention that the 

proposed unit is inappropriate, and 

state the classifications, locations, or 

other employee groupings that must be 

added to or excluded from the proposed 

unit to make it an appropriate unit.’’ 285

The Board believes that the final rule 

will assist the parties in identifying 

issues—including the appropriateness 

of the proposed unit—that must either 

be agreed to by the parties and approved 

by the regional director, or be resolved 

at a pre-election hearing. Specifically, 

identification of the precise objections 

to the appropriateness of a proposed 

unit before the pre-election hearing will 

facilitate entry into election agreements 

and narrow the scope of hearings in the 

event parties are unable to enter into 

such agreements. Accordingly, the 

Board believes that the requirement will 

enable it to more promptly resolve 

questions concerning representation. 

To begin, the Board disagrees with 

comments, including SHRM’s, that 

argue that the proposed unitappropriateness requirements are vastly 

different from the Board’s current 

representation-case procedures. Merely 

by virtue of explaining the alleged 

problems with the proposed unit, the 

employer typically must identify the 

necessary changes to that unit. Thus, for 

example, if an employer with multiple 

facilities says that a proposed single 

facility unit is not appropriate, the only 

way to explain or support this argument 

is to point out what it believes is 

inappropriate about it, i.e, that it 

excludes the employees of its other 

facility, located across the street, who 

do the same work under the same 

conditions and who frequently transfer 

back and forth between the two 

facilities. And the employer is free to 

later agree to the appropriateness of a 

different unit if the petitioner alters its 

position regarding the unit in response 

to the position taken by the employer. 

As such, the final rule merely codifies 

and standardizes the best party practices 

under the current representation case 

procedures and, therefore does not 

differ dramatically from the current 

procedures.286 The biggest difference, as 

explained above, is that employers will 

be required, rather than requested, to 

share their positions on unit 

appropriateness, including inclusions 

and exclusions of certain job 

classifications, locations, or other 

employee groupings at noon on the 

business day before the hearing. 

The Board believes that the change to 

the final rule language moots comments 

based on statutory concerns for the 

proposed ‘‘most similar unit’’ 

requirement since the Act does not 

require that elections occur in the most 

appropriate unit, only an appropriate 

unit. Some of those comments contend 

that it could be extremely difficult for 

non-petitioning parties to determine 

which possible alternative unit would 

be the ‘‘most similar’’ to the proposed 

unit, especially where the proposed 

rules do not define what is meant by 

‘‘most similar.’’ 287 In response, the final 

rule makes clear that an employer only 

has to specify the changes necessary to 

make an appropriate unit. And the 

Board hereby clarifies, in response to 

SHRM’s comment, that under the final 

rule, a non-petitioning party that takes 

the position that the proposed unit is 

not an appropriate unit does not have to 

identify all potentially appropriate 

units; rather, it would merely have to 

specify the basis for its contention, and 

state the classifications, locations or 

other employee groupings that it 

believes must be added to or excluded 

from, the proposed unit to make it an 

appropriate unit (singular). 

The Board concludes that the final 

rule will not significantly burden 

employers. As explained above 

concerning the Statement of Position 

form more generally, the Board believes 

that the time and resources expended by 

employers to determine which 

classifications, locations or other 

employee groupings must be added to or 

excluded from, the proposed unit to 

make it an appropriate unit are largely 

the same resources that would be 

expended in any event by a reasonably 

prudent employer in preparing to either 

enter into an election agreement or take 

contrary positions at a pre-election 

hearing under the current rules. 

The Board also disagrees with AHA’s 

assertion that there is no need for an 

alternative unit requirement in the acute 

health care field. Under the final rule, 

if an employer takes the position that 

the proposed unit is not an appropriate 

unit under the Board’s regulations that 

specifically apply to the acute health 

care field, the employer will simply 

have to specify the classifications, 

locations or other employee groupings 

that it believes must be added to or 

excluded from, the proposed unit to 

make it an appropriate unit under those 

regulations. 

Other comments, such as the 

Chamber’s, object that the proposed 

rules absolve the Board of its 

responsibility to determine the 

appropriate unit. To the extent that the 

rationale of those objections also applies 

to the amended language of the final 

rule, the Board believes that they are 

nevertheless in error. As the Chamber’s 

comment correctly points out, it is the 

Board’s responsibility under Section 

9(b) of the Act to make appropriate unit 

determinations. Nothing in the final rule 

changes that. Indeed, the final rule 

ensures that the Board will have 

sufficient evidence in the record to 

make an appropriate unit determination 

even if the employer fails to complete 

its Statement of Position. Specifically, if 

the employer fails to take a position 

regarding the appropriateness of a 

proposed unit that is not presumptively 

appropriate, then as discussed below in 

connection with § 102.66, the regional 

director may direct the hearing officer to 

permit the petitioner to introduce 

evidence regarding the appropriateness 

of the proposed unit. 

Thus, contrary to CDW, the final rule 

does not permit the Board to direct an 

election in an inappropriate unit simply 

because the employer does not suggest 

an alternative unit in the Statement of 

Position. Moreover, contrary to 

comments by ALFA and ACE, among 


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288Sencer testified: 

Frequently we have a problem where we talk past 

each other, The employee identifies themselves as 

a technician. The employer indentifying [sic] 

themselves as an associate. We say ‘‘Technicians 

are in’’ and they say, ‘‘We have no technicians, we 

only have associates.’’ And we might actually not 

have a disagreement, but we’re using different 

language to talk about the same points. So simply 

having the classifications used by the employer 

would allow for the easier resolution of issues 

because everyone would know what they were 

talking about * * *. 

See also Supplemental Written Testimony of 

Meiklejohn on behalf of Livingston, Adler, Pulda, 

Meiklejohn & Kelly (‘‘When the Employer finally 

disclosed the names of the employees in the 

‘disputed’ job classifications, it turned out that we 

were in agreement on many of the employees. The 

first two days of hearing had, in large part, been 

devoted to issues that were not in contention.’’) 

289Similarly, if a petitioner petitions for a single 

facility unit and the employer contends that the 

petitioned-for unit is not appropriate because it 

others, the Board has not shifted the 

burden. The final rule is consistent with 

Allen Health Care Services, 332 NLRB 

1308 (2000), in which the Board held 

that even when an employer refuses to 

take a position on the appropriateness of 

a proposed unit, the regional director 

must nevertheless take evidence on the 

issue unless the unit is presumptively 

appropriate. The final rule thus permits 

the petitioner to offer evidence in such 

circumstances and merely precludes 

non-petitioners, which have refused to 

take a position on the issue, from 

offering evidence or cross-examining 

witnesses. 

Likewise, there is no merit in Littler 

Mendelson’s argument that, under the 

proposed rules, the unit-appropriateness 

question will necessarily turn on ‘‘the 

extent to which employees have 

organized,’’ in violation of Section 

9(c)(5) of the Act. Prepared Testimony 

of David Kadela on behalf of Littler 

Mendelson. In NLRB v. Metropolitan 

Life Insurance Co., 380 U.S. 438, 441– 

442 (1965), the Supreme Court made 

clear that, under Section 9(c)(5), the 

Board may consider the wishes of a 

petitioning union as a factor in the 

making a unit determination, but those 

wishes cannot be the only factor. 

Accordingly, in cases where the 

proposed unit is not presumptively 

appropriate, the Board cannot stop with 

the observation that the petitioning 

union proposed a particular unit, but 

must proceed to determine, based on 

community-of-interest factors, that the 

proposed unit is an appropriate unit. 

Again, nothing in the final rule changes 

that, and the deletion of the ‘‘most 

similar’’ language removes the 

application of the rule even further from 

Littler Mendelson’s concern. 

2. Initial Employee Lists 

The NPRM proposed that the 

employer provide as part of its 

Statement of Position a list of the full 

names, work locations, shifts, and job 

classifications of all individuals in the 

proposed unit, and if the employer 

contends that the proposed unit is 

inappropriate, to also provide a list of 

the full names, work locations, shifts, 

and job classifications of all employees 

in the most similar unit that the 

employer concedes is appropriate. 79 

FR 7355. The NPRM also proposed that 

the initial lists provided to the regional 

director, but not the parties, also 

include contact information for such 

employees. 79 FR 7355. Several 

comments, such as ALFA’s, question 

why production of such employee lists 

(without personal contact information) 

is necessary until an appropriate unit is 

identified by the regional director. 

Others, like SHRM’s, take issue with the 

necessity for multiple lists to be 

provided as part of the Statement of 

Position form when the employer 

proposes alternative groupings of 

employees to those petitioned for by the 

union. And COLLE claims (Testimony 

of Deakins on behalf of COLLE II) that 

the proposal to require employers to 

disclose names and job classifications as 

part of the Statement of Position 

conflicts with the NPRM proposal to 

defer deciding individual eligibility or 

inclusion questions under the so-called 

20 percent rule. In contrast, SEIU’s 

comment requests a blanket rule that 

employee lists complete with contact 

information be provided to the 

petitioner within 2 days of the petition 

being filed. 

As discussed above, the final rule 

provides that in the event the employer 

contends that the proposed unit is not 

appropriate, the employer shall state the 

basis for its contention that the 

proposed unit is inappropriate, and 

state the classifications, locations, or 

other employee groupings that must be 

added to or excluded from the proposed 

unit to make it an appropriate unit. 

Amended § 102.63(b)(1)(i). The Board 

concludes that requiring the employer 

additionally to furnish a list of the 

names, job classifications, work 

locations, and shifts of the individuals 

in the proposed unit, a similar list for 

the individuals that the employer 

contends must be added to the proposed 

unit to make it an appropriate unit, and 

the names of the individuals, if any, 

whom it believes must be excluded from 

the proposed unit to make it an 

appropriate unit will help the Board to 

expeditiously resolve questions of 

representation by facilitating entry into 

election agreements, narrowing the 

scope of the preelection hearing in the 

event that parties are unable to enter 

into an election agreement, and 

reducing the need for election-day 

challenges based solely on lack of 

knowledge of the voters’ identities. 

As an initial matter, the Board 

concludes that the lists will help ensure 

that all parties have access to the 

information they need to resolve 

disputes concerning the appropriate 

unit in which to conduct the election. 

As the comments of Caren Sencer 

(Testimony of Sencer on behalf of 

Weinberg, Roger and Rosenfeld II) and 

Supplemental Written Testimony of 

Thomas W. Meiklejohn on behalf of 

Livingston, Adler, Pulda, Meiklejohn & 

Kelly demonstrate, one of the 

impediments to reaching an election 

agreement is that the parties sometimes 

talk past each other regarding the 

appropriate unit in which to conduct 

the election because, unbeknownst to 

them, they are using different 

terminology to describe the very same 

employees.288 In our experience, parties 

also sometimes use different terms to 

describe work locations and shifts. The 

requirement that employers disclose the 

names, job classifications, work 

locations and shifts of employees will 

enable the parties to discover if that is 

the problem, and therefore assist the 

parties in entering into an election 

agreement. 

Requiring employers to furnish this 

information to the nonemployer parties 

to the case plainly facilitates entry into 

election agreements and helps narrow 

the issues in dispute in the event the 

parties are unable to enter into election 

agreements even if the parties do not 

have a terminology problem. Under the 

current rules, the names of the 

individuals occupying classifications (or 

falling within other employee 

groupings) that the employer would like 

added to or excluded from the unit in 

many cases are unknown to the 

petitioning union. Often, the union also 

does not know where and on what shifts 

individuals in those classifications (or 

in those employee groupings) work, 

what they do, or even how many 

employees in each such classification 

(or employee grouping) there are. 

Accordingly, the petitioner cannot make 

an informed decision about whether it 

agrees with the employer’s objections to 

the proposed unit and with the 

employer’s proposed alterations to the 

unit. However, with information from 

such lists, a petitioner, in consultation 

with its employee supporters, should be 

able to make informed decisions about 

whether to amend its petition to 

conform in whole or in part to the 

alternate unit suggested by the 

employer.289 Accordingly, the 


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does not also include the employees at its other 

facility, the employer must so state and provide the 

list of employees at the second facility. 

290Senior Member Miller and Democratic House 

Members characterize the proposal to give such 

basic information to the nonemployer parties as a 

small but important improvement. 

291For example, Casehandling Manual Section 

11025.1 provides that in its initial communication 

with the employer, the region should request that 

the employer submit an alphabetized list of the full 

names and job classifications of the employees in 

the petitioned-for unit and, as the case develops, in 

any alternative units proposed by the employer. 

Casehandling Manual Sections 11025.1 and 11030.5 

indicate that the purpose of such lists is not just to 

check the showing of interest, but also to resolve 

possible eligibility and unit issues. 

requirement that the employer provide 

the information in question serves the 

goals of facilitating entry into election 

agreements which obviates the need for 

pre-election litigation and by narrowing 

the number of issues in dispute between 

the parties in the event the parties are 

unable to enter into an election 

agreement. 

Indeed, as illustrated by comments 

like NNU’s, without the information 

contained in the initial lists, petitioning 

unions are often ‘‘in the dark’’ as to the 

actual contours of any alternative units 

proposed by an employer, including the 

alternative unit’s size. If parties are to 

reach reasonable agreements concerning 

which classifications, locations or 

employee groupings the bargaining unit 

should include, then nonemployers 

should have access to the information 

that is necessary for them to 

intelligently evaluate an employer’s 

claim that certain classifications, 

locations or other employee groupings 

should be added to or excluded from, 

the petitioner’s proposed unit. The 

Board is not persuaded that employers 

should be allowed to keep plainly 

pertinent information to themselves that 

would clearly assist parties to 

knowledgeably reach a voluntary 

resolution of the issue. 

The Board also concludes, in 

agreement with AFL–CIO II, that the 

information will serve the salutary 

function of facilitating entry into NorrisThermador agreements, whereby parties 

definitely resolve issues of eligibility by 

constructing a list of eligible voters and 

including it in their election agreement. 

See Casehandling Manual Section 11324 

(discussing Norris-Thermador Corp., 

119 NLRB 1301 (1958)). Such 

agreements obviously can expedite the 

period between the conduct of the 

election and the certification of the 

results by essentially limiting the 

potential universe of post-election 

disputes to those involving election 

objections. Put simply, it will be easier 

for the nonemployer parties to enter into 

a Norris-Thermador agreement if the 

employer is required to disclose as part 

of its Statement of Position the names, 

job classifications, work locations and 

shifts of employees in the proposed unit 

and for any alternative unit it proposes. 

The Board further concludes that the 

production of employee lists complete 

with each employee’s name, work 

location, shift, and job classification 

prior to the opening of the pre-election 

hearing furthers the second purpose 

articulated by the Board in Excelsior. 

Thus, production of the initial lists of 

employees should reduce the need for 

election-day challenges based solely on 

lack of knowledge of the voters’ 

identities by giving the nonemployer 

parties more time to investigate and 

formulate knowledgeable positions 

about the eligibility of any such 

employees. 

For all these reasons, amended 

§ 102.63(b)(1)(iii) of the final rule 

requires the employer to provide a list 

of the full names, work locations, shifts, 

and job classifications of all individuals 

in the proposed unit, and if the 

employer contends that the proposed 

unit is inappropriate, to (1) separately 

list the full names, work locations, 

shifts, and job classifications of all 

individuals that the employer contends 

must be added to the proposed unit to 

make it an appropriate unit and (2) 

indicate those individuals, if any, whom 

it believes must be excluded from the 

proposed unit to make it an appropriate 

unit.290 And because, as shown, the 

information on the lists is useful for 

purposes beyond resolving individual 

eligibility issues, we reject COLLE’s 

claim (Testimony of Deakins on behalf 

of COLLE II) that there is a conflict 

between the initial list disclosure 

requirements in § 102.63 and the 

Board’s conclusion discussed below in 

connection with §§ 102.64 and 102.66 

that resolution of disputes concerning 

the eligibility or inclusion of individual 

employees ordinarily is not necessary in 

order to determine if a question of 

representation exists, and, therefore, 

that such disputes can be resolved, if 

necessary, post-election. 

To be sure, facilitating agreements 

and thereby avoiding litigation of these 

issues might best be served by 

mandating disclosure of employee list 

information (including contact 

information) within 2 days of a 

petition’s filing (and well before the 

opening of a pre-election hearing), as 

SEIU suggests. However, as discussed 

above in connection with § 102.62, the 

Board does not believe it would be 

appropriate to require disclosure of 

employee contact information to the 

nonemployer parties to the case before 

the regional director finds that a 

question of representation exists (or the 

employer admits that a question of 

representation exists by entering into an 

election agreement). Moreover, given 

employer protests about their abilities to 

prepare for a hearing in 7 days (when 

a petition’s filing actually takes them by 

surprise), the Board is hesitant to 

impose a blanket requirement that such 

disclosures should occur so quickly 

after every petition. At a minimum, the 

Board believes that stipulations 

concerning the unit will be better 

facilitated and any pre-election hearings 

will avoid unnecessary litigation, if the 

additional information is made available 

1 business day before the hearing is set 

to open. Accordingly, the final rule 

provides that employee lists complete 

with full names, job classifications, 

work locations, and shifts, will be part 

of the Statement of Position, to be 

provided to the nonemployer parties to 

the case at noon on the business day 

before the opening of the pre-election 

hearing. 

This amendment is yet another effort 

to build upon the existing best practices 

in the Board’s regional offices. Regional 

personnel currently request from the 

employer—early in a representation 

case’s processing—a list of employees’ 

names and job classifications in the 

petitioned-for unit and each other unit 

that the employer contends is 

appropriate for purposes of checking the 

showing of interest and resolving 

potential eligibility and unit issues.291

Because regions know that the provision 

of such information to all parties to the 

case is an excellent aid in resolving 

many of the eligibility and unit 

questions that arise during case 

processing, regions encourage the 

employer to permit the region to 

provide the lists to the petitioner and all 

other parties. See Casehandling Manual 

Sections 11009, 11025.1, 11030.5; OM 

Memo 99–56; Hearing Officer’s Guide at 

2–5. But employers currently are not 

required to provide such information. 

Indeed, an employer’s refusal to do so 

currently has no legal consequences 

beyond inhibiting the Board agent’s 

efforts to resolve eligibility and unit 

issues. The Board agrees with the AFL– 

CIO that parties should be able to more 

promptly resolve disputes if this 

information is required to be provided 

to both the Board and the nonemployer 

parties before any pre-election hearing 

has begun, and therefore the rule 

precludes the employer from litigating 

certain issues if the employer fails to 


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292The Board believes that the purposes of the 

form will best be realized if parties are faced with 

litigation preclusion for failing to complete it. 

However, the Board is equally persuaded that 

implementing the Statement of Position form would 

be an improvement over the status quo even if it 

were not coupled with the threat of preclusion, 

because we believe at least some employers would 

complete and serve the form if the Board’s rules 

explicitly required it, and the form would guide 

hearing preparation. Thus, the Board would 

mandate service of the form by petitioners 

(102.60(a)), completion of the form by the 

nonpetitioning parties named on the petition 

(102.63), and introduction of the form at the 

opening of the hearing (102.66(b)), even if use of the 

form was not enforced through mandatory litigation 

preclusion. 293SHRM; ACE; ACE II; NAM II. 

share the information.292 As discussed 

above, the final rule’s provision for the 

initial employee list(s) being provided 

to the nonemployer parties no later than 

at noon on the business day before a 

pre-election hearing is set to open 

should, consistent with the AFL–CIO’s 

analysis, make election agreements 

more likely and, in the event a hearing 

is required, reduce the issues to be 

litigated and therefore reduce cost and 

resources otherwise expended. 

The Board rejects the notion, raised 

by SHRM and others, that the initial 

employee lists constitute improper 

unilateral pre-hearing discovery. In fact, 

as the AFL–CIO points out (Reply), the 

Statement of Position form—of which 

the initial employee lists are a part— 

constitutes the employer’s response to 

positions already taken by a union in its 

petition, including: a description of the 

unit it desires to represent, categories of 

employees it believes should be 

included in or excluded from the unit, 

an estimate of the unit’s total size, and 

the type, date(s), time(s) and location(s) 

of election it seeks. As described more 

fully in § 102.66 below, immediately 

after the Statement of Position is 

received into evidence at the hearing, 

the petitioning union is required to 

respond to each position raised in the 

statement. In the Board’s view, there is 

no additional bilateral discovery that 

employers would need from a 

petitioning union to adequately contest 

unit issues at the hearing. After all, it is 

nearly always the employer who is in 

possession of the relevant evidence on 

virtually all issues likely to be contested 

at a pre-election hearing concerning the 

proposed bargaining unit. Thus, as 

discussed more fully below, the 

employer knows its employees’ terms 

and conditions of employment because 

it established them. And, as shown, 

regions already ask employers for name 

and classification information. 

As noted, the NPRM proposed that 

the initial lists provided to the regional 

director, but not the parties, would 

include employee contact information 

for the employees on the list(s). 79 FR 

7355. Some comments, such as those 

filed by ACE and the Chamber II, 

question the need for that information. 

The NPRM proposed that the regional 

office would use the email addresses 

and telephone numbers from this 

separate list to begin preparing for 

electronic transmission of the election 

notice that is issued once the parties 

enter into an election agreement or the 

regional director directs an election. 79 

FR 7329. ALFA criticizes the proposal 

on the grounds that the provision of 

greater information through the vehicle 

of initial employee lists will generate 

more issues for litigation. 

However, as discussed below in 

connection with § 102.67, the Board has 

decided to reject the proposal in the 

NPRM to require the regional director to 

serve the affected employees with the 

election notice. Accordingly, the Board 

has likewise decided to reject the 

proposal in the NPRM to require the 

employer to disclose to the regional 

director as part of its Statement of 

Position contact information for 

employees on the initial lists. 

Accordingly, employers will not be 

required to disclose employee contact 

information to either the regional 

director or the nonemployer parties to 

the case as part of its Statement of 

Position. 

Cook Illinois, among others, express 

concerns about petitioners misusing 

information received from an initial 

employee list, and Littler Mendelson 

fears unions filing petitions simply to 

acquire employee information 

concerning units that it has no intention 

of representing. As expressed in 

§ 102.62 above, the Board has not 

experienced significant misuse of 

information long-provided in Excelsior 

lists, and it does not reasonably expect 

misuse of employee names simply 

because that information will be 

provided prior to a direction of election. 

Nor does the Board expect such misuse 

simply because the employer will now 

be required to disclose job 

classifications, work locations, and 

shifts. If such misuse occurs, then the 

Board can provide a remedy. Currently, 

in appropriate circumstances, a regional 

director may limit a petitioner’s ability 

to refile a petition as a condition for 

approving the withdrawal. See 

Casehandling Manual Section 11118. 

Similarly, as mentioned in § 102.60, the 

regional directors and the Board will 

continue to have discretion to reject a 

petitioner’s request for withdrawal of 

the petition if the request would run 

counter to the purposes of the Act. See 

Casehandling Manual Section 11110. 

Some comments argue that it will be 

particularly burdensome to produce 

multiple lists, but the Board believes 

that with modern record-keeping and 

retrieval technology, the requirement 

can be easily met by most employers.293

Whether the employer asserts that the 

unit should go far beyond what the 

petitioner proposed is, of course, up to 

the employer. For example, employers 

sometimes assert that a proposed unit 

containing a handful of employee 

classifications must instead be ‘‘wall-towall’’ (including every employee 

classification at the location) in order to 

be appropriate. If the employer’s 

position on the unit is proven correct, 

or nearly so, then the full information 

about all or most of those employees 

would have to be provided pursuant to 

an amended petition anyway when the 

election is directed. If the employer’s 

position is untenable, then the burden 

of producing a list of employees in that 

alternative unit is truly self-imposed 

because the employer chose to take an 

extreme litigating position. In any event, 

as discussed above, the final rule 

language no longer contains a 

requirement that the employer produce 

lists corresponding to ‘‘the most similar 

unit that the employer concedes is 

appropriate.’’ So, to the extent some 

comments foretold a need to produce 

multiple alternative unit lists because of 

a lack of clarity concerning which 

concededly appropriate iteration was 

‘‘most similar’’ to the petitioned for 

unit, that concern should be alleviated. 

Instead, if the employer contends that 

the unit described in the petition is 

inappropriate, the final rule clarifies 

that the employer need only produce 

one alternative list containing 

information about employees in the unit 

that the employer contends is an 

appropriate unit. Moreover, as 

discussed above, the Board has decided 

to reject the proposal that employers 

provide separate lists to the regional 

director containing contact information. 

In short, employers will be required to 

produce fewer lists under the final rule 

than the NPRM proposed, and the 

employer may file the same list(s) with 

the regional director that it provides to 

the nonemployer parties to the case. 

We are not persuaded by SHRM’s 

contention that there is little reason to 

require the initial employee lists 

because they will not necessarily reflect 

an accurate list of eligible voters. As 

already explained above, the initial lists 

provided to the nonemployer parties to 

the case should facilitate entry into 

election agreements and narrow the 

scope of pre-election hearings in the 


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294The possibility of having to update employee 

information already existed under the prior rules. 

Thus, prior to the NPRM, employers were required 

to furnish a list of the names and home addresses 

of all eligible voters once an election was agreed to 

or directed even though, as noted, the region had 

previously requested the employer to submit an 

alphabetized list of the full names and job 

classifications of the employees in the petitionedfor unit and in any alternative units proposed by 

the employer. Casehandling Manual Sections 

11025.1 and 11030.5. 

295Consistent with the amendments to § 102.62, 

the final rule provides that the list(s) of names shall 

be alphabetized and be in an electronic format 

approved by the General Counsel, unless the 

employer certifies that it does not possess the 

capacity to produce the list(s) in the required form. 

The NPRM proposed in § 102.63(b)(1)(v), (2)(v), 

and 3(v) that the employer would be precluded 

from contesting the appropriateness of the proposed 

unit at any time and from contesting the eligibility 

or inclusion of any individuals at the pre-election 

hearing if the employer fails to timely furnish the 

lists of employees as part of the Statement of 

Position. 79 FR at 7355–7366. The final rule moves 

this language to amended § 102.66(d) in the 

paragraph entitled ‘‘Preclusion.’’ 

296The final rule uses the single term ‘‘proposed 

unit’’ in place of the two terms ‘‘proposed unit’’ and 

‘‘petitioned-for unit’’ that the NPRM used in 

§ 102.63 to describe Statement-of-Position 

obligations. 79 FR at 7355. 

297See, e.g., Chamber; ACC. 

298UFCW requests that if an employer intends to 

contest at the pre-election hearing the eligibility of 

an individual on the basis of supervisory status, the 

employer should be required to identify in its 

Statement of Position the particular indicia of 

supervisory status that the individual possesses. 

The Board declines to require the employer to do 

so. The Board notes in this regard that a union 

currently is not required to identify on its petition 

why it believes that the employees in its petitionedfor unit share a community of interest. We think 

that for purposes of determining whether to enter 

into an election agreement prior to the opening of 

a hearing, a union can begin to evaluate the 

propriety of an employer’s contention that a 

particular individual is a supervisor even if the 

employer declines to identify the particular indicia 

of supervisory status in its Statement of Position. 

For example, the union may consult with its 

supporters about the authority of the alleged 

supervisor. The Board notes, however, that in the 

event a regional director permits litigation of 

individual eligibility issues, the employer bears the 

burden of proving that such individuals are in fact 

supervisors. 

event parties are unable to enter into 

election agreements. Moreover, the 

nonemployer parties to a case may still 

find it prudent to begin their 

investigation of the eligibility of any 

unknown employees notwithstanding 

the possibility of turnover in the unit— 

between the date the initial lists are 

provided and the close of the eligibility 

period—in which the election is 

ultimately directed. That the initial lists 

may not entirely eliminate the need for 

election-day challenges in all cases 

certainly does not mean that provision 

of the lists cannot reduce the need for 

at least some election-day challenges in 

some cases. Thus, the Board believes 

that more information earlier in the 

process will avoid unnecessary delay in 

conducting elections and resolving 

questions of representation. 

Baker and McKenzie questions 

whether the employer will be obligated 

to update the employee information that 

it provides in connection with the 

Statement of Position when it provides 

the voter list pursuant to § 102.67 after 

an election is directed. The answer is 

‘‘yes.’’ To be sure, some of the 

information required to be produced as 

part of the Statement of Position is also 

required to be produced as part of the 

voter list in the event an election is 

agreed to or directed. For example, both 

the Statement of Position and the voter 

list amendments require employers to 

furnish the employees’ names, job 

classifications, work locations, and 

shifts. However, there may be employee 

turnover between the time the 

Statement of Position is filed and the 

eligibility date for voting in the election, 

even assuming the unit in which the 

election is conducted does not differ 

from the petitioned-for unit. It is also 

possible that employee job 

classifications, work locations, and 

shifts may change during this interval. 

It would hardly serve the purpose of 

maximizing the likelihood that all 

eligible voters be exposed to the 

nonemployer party arguments 

concerning representation if the 

employer were permitted to provide the 

nonemployer parties with an outdated 

list of employees. Nor would it serve the 

goal of avoiding challenges based solely 

on lack of knowledge of the identities of 

the voters if the employer were 

permitted to provide the nonemployer 

parties with a list of eligible voters 

containing outdated information about 

them.294 Moreover, although an 

employer is not required to furnish the 

nonemployer parties with employee 

contact information as part of its 

Statement of Position, the employer is 

required to furnish the nonemployer 

parties with employee contact 

information shortly after the parties 

enter into an election agreement or the 

regional director directs an election. 

Accordingly, as the amendments to 

§§ 102.62(d) and 102.67(l) make clear, 

once an election is agreed to or directed, 

the employer must furnish the 

nonemployer parties to the case and the 

regional director with an (up-to-date) 

list of the full names, work locations, 

shifts, job classifications and contact 

information (including home addresses, 

available personal email addresses and 

telephone numbers) of all eligible 

voters, and in a separate section of the 

list the same information for those 

individuals the parties have agreed to 

permit to vote subject to challenge or 

those individuals who, according to the 

direction of election, will be permitted 

to vote subject to challenge.295

3. Identification of Individual Eligibility 

and Other Issues 

As noted above, the NPRM proposed 

that as part of its Statement of Position, 

the non-petitioner identify any 

individuals occupying classifications in 

the petitioned-for unit whose eligibility 

to vote it intends to contest at the preelection hearing and the basis for each 

such contention, and describe all other 

issues the non-petitioner intends to 

raise at hearing.296 Comments criticize 

these requirements as imposing unfair 

and unrealistic burdens because, for 

example, it may not be possible to 

identify all legal issues until testimony 

is taken.297

The Board is not persuaded by these 

comments. It clearly facilitates entry 

into election agreements and helps 

narrow the scope of the hearing if all 

parties state what they believe the open 

issues (including eligibility issues) are 

and what they seek to litigate in the 

event of a hearing. It is thus not 

surprising that Board agents currently 

ask the parties to do precisely that now. 

For example, prior to the scheduled 

hearing, Board agents attempt to secure 

the basic facts with respect to each 

potential issue, including bargaining 

unit and eligibility issues, and they use 

the payroll lists to resolve eligibility and 

unit issues. Casehandling Manual 

Sections 11009, 11012, 11016, 11025, 

11187. As also shown, the hearing 

officer attempts to meet with parties’ 

representatives prior to the hearing to 

discuss the issues they intend to raise, 

and the hearing officer is instructed to 

discuss at the pre-hearing conference 

‘‘each party’s position on each issue.’’ 

Hearing Officer’s Guide, 2–3, 5, 15–18 

(emphasis added); OM Memo 99–56. 

Given that Board agents are already 

asking the parties to state the issues 

(including individual eligibility issues) 

that they intend to raise at the hearing, 

we reject the argument that it is unfair 

and unrealistic for the Board to require 

the parties to do so as part of their 

Statements of Position. Some comments, 

such as the Chamber’s and ACC’s, 

complain that it will be difficult to 

identify individual eligibility questions 

if the union’s petition describes the unit 

in vague terms. However, that situation 

could arise under the prior rules and the 

employer may move to amend its 

Statement of Position if union 

clarification of its positions at the 

hearing calls for more nuanced 

responses from the employer.298


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299The final rule makes explicit in amended 

§§ 102.63(b)(1)(i), (b)(2)(i), (b)(3)(i) that 

nonpetitioning parties must state their positions 

regarding election details in RM and RD cases as 

well as in RC cases. Amended §§ 102.63(b)(1)(i), 

(b)(2)(iii), and (b)(3)(iii) also require the employer 

to state the length of the payroll period for 

employees in the proposed unit and the most recent 

payroll period ending date, information which 

Board agents have long requested as it is useful for 

purposes of setting the eligibility date. See, for 

example, Casehandling Manual Section 11086.3_

(‘‘The payroll period for eligibility should be 

designated as ‘‘the period ending,’’ etc. Normally it 

should be the last period ending before the Regional 

Director’s approval of the agreement.’’);_

Casehandling Manual Section 11312.1 (‘‘If there is 

an issue as to an unusual eligibility date, i.e., the 

use of a date other than the payroll period ending 

before the approval of the agreement or the 

Direction of Election, * * * the Board agent * * * 

should obtain the information necessary for 

resolution of this issue.’’) 

300 In addition, as noted below in connection with 

§ 102.67, the final rule grants regional directors 

discretion to consult with the parties concerning 

election details after issuing a direction of election 

where unusual circumstances warrant, such as 

when the decision issues substantially after the 

close of the hearing, or the election is directed in 

a unit very different from that proposed by either 

the employer or the union. 

301See, e.g., King & Ballow; GAM; Chamber; ALG; 

Arizona Hospital and Healthcare Association; 

COSE. 

302To be clear, the date of the petition’s filing was 

irrelevant to the Board’s holding in Croft Metals. 

Although the hearing had been scheduled to open 

14 calendar days from the petition’s filing in that 

case, it was undisputed that the employer did not 

receive notice of the hearing until 3 working days 

before the hearing was scheduled to open. Thus, the 

Board’s holding in Croft Metals, just as its proposal 

in the NPRM, was keyed only to the time from 

service of the notice of hearing to the opening of 

the hearing itself. 

4. Election Details 

The NPRM also proposed that the 

Statement of Position form require the 

non-petitioning party to state its 

preferences with respect to the type, 

date(s), time(s), and location(s) of the 

election and the eligibility period. 79 

FR7328, 7355. The final rule adopts this 

proposal.299 This requirement 

eliminates unnecessary barriers to the 

expeditious resolution of questions 

concerning representation in two ways. 

First, it facilitates entry into election 

agreements. Parties enter into election 

agreements only if they agree, among 

other things, on the election details. It 

plainly serves the goal of making it 

easier for parties to promptly enter into 

election agreements if the petitioner is 

advised of the nonpetitioner’s position 

on those matters prior to the hearing. 

Second, in cases where the parties are 

unable to enter into an election 

agreement, the amendment (in 

conjunction with the provision in 

§ 102.66(g) that the hearing officer 

solicit all parties’ positions concerning 

the election details) ordinarily will 

make it possible for the regional director 

to specify the election details in the 

direction of election, and to 

simultaneously issue the Notice of the 

Election with the Decision and 

Direction of Election, because the 

parties will have provided their 

positions on the election details prior to, 

and at, the hearing. 

Currently, however, the regional 

director frequently is unaware of the 

parties’ positions concerning the 

election details when the director issues 

the direction of election, and, not 

surprisingly, the decision and direction 

of election frequently does not specify 

those details. Instead, a Board agent 

must contact the parties after the 

direction issues to solicit their 

positions. After obtaining the positions, 

the regional director must decide those 

details and then draft and serve the 

official Notice of Election on the 

employer for posting. This takes time 

and can unnecessarily delay the 

election. 

The Chamber objects that until the 

appropriate unit is determined, an 

employer cannot develop a reasoned 

position on the type, date(s), time(s), 

and location(s) of the election and the 

eligibility period. To the extent the 

Chamber is suggesting that the 

requirement is unreasonable because an 

employer may have one position on 

these matters if the petitioned-for unit is 

found to be appropriate, but another 

position if the director finds some other 

unit, such as an employer’s alternate 

unit, appropriate, the Board disagrees. 

The employer will be permitted to state 

its preferences in the alternative. And as 

the amendments to § 102.66(g) indicate, 

the hearing officer shall solicit the 

parties’ positions on the election details 

prior to the close of the hearing. Thus, 

if the petitioner has modified its 

position on the unit during the hearing 

in response to the employer’s Statement 

of Position, the employer will be able to 

present its position regarding any new 

unit sought by the petitioner. Moreover, 

given the relatively small size of 

bargaining units in representation cases, 

the Board anticipates that it will be the 

exceptional case, rather than the norm, 

where differences between the 

petitioned-for unit and any other unit 

would cause the employer to feel the 

need to take such alternative positions 

regarding the election details.300

ALFA characterizes this requirement 

as indicating a possible ‘‘abandonment 

of the long-established Board 

presumption favoring manual ballot 

elections at employers’ premises.’’ 

However, the new requirement is not 

intended to change Board policy in this 

respect. 

C. Scheduling of Pre-Election Hearing 

A great number of comments 

responded to the Board’s call for 

comments on the feasibility, fairness 

and proper scope of the proposed 

exceptions to the NPRM provision that, 

absent special circumstances, the 

regional director would set the hearing 

to begin 7 days after service of the 

notice of hearing.301 As explained in the 

NPRM, this proposal reflects the current 

practice of some regions, but would 

make the practice explicit and uniform, 

thereby rendering Board procedures 

more transparent and predictable. 

Under the proposed amendments, 

parties served with a petition and 

description of representation 

procedures, as described in relation to 

proposed § 102.60, would thus be able 

to predict with a high degree of 

certainty when the hearing will 

commence even before service of the 

notice. 79 FR 7328. 

In the NPRM, the Board proposed that 

the amendments would be implemented 

consistent with the Board’s decision in 

Croft Metals, Inc., 337 NLRB 688, 688 

(2002), requiring that, ‘‘absent unusual 

circumstances or clear waiver by the 

parties,’’ parties ‘‘receive notice of a 

hearing not less than 5 days prior to the 

hearing, excluding intervening 

weekends and holidays.’’ The 

amendments would thus not require any 

party to prepare for a hearing in a 

shorter time than permitted under 

current law. Rather, as the Board held 

in Croft Metals, 337 NLRB at 688, ‘‘By 

providing parties with at least 5 working 

days’ notice, we make certain that 

parties to representation cases avoid the 

Hobson’s choice of either proceeding 

unprepared on short notice or refusing 

to proceed at all.’’ 302 Thus, contrary to 

PCA, the NPRM’s choice of a 7-day time 

frame was not arbitrary. The existing 

regional best practice is to set the 

hearing in 7 days, and that practice 

comports with the minimum notice 

standard that has governed Board 

hearings for the last decade. 

Several comments directly suggest 

that the Board should alter the proposed 

language governing exceptions to the 

hearing and Statement of Position time 

frames. Specifically, the Board proposed 

that the regional director would set a 

pre-election hearing to open in 7 days 

‘‘absent special circumstances.’’ 

Dissatisfied with the standard’s 

perceived leniency, the AFL–CIO argues 

that ‘‘special circumstances’’ should be 

exchanged for ‘‘unusual circumstances’’ 

consistent with Croft Metals, while 


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303Although the Board has selected a hearingopening baseline of 8 days from service of the 

notice, in part, to allow parties to use the completed 

Statement of Position form to explore entrance into 

election agreements and to try to narrow the scope 

of the hearing for approximately 1 business day 

before the hearing, the Board views an 8-day 

baseline as an independent improvement over the 

current regional variation in scheduling hearings. 

Accordingly, the Board would implement an 8-day 

hearing baseline even in the absence of the final 

rule’s introduction of a Statement of Position form. 304The IFA II argues that the timeline is too short 

in cases where a union’s petition raises novel or 

complex issues. But, as the AFL–CIO II points out 

(Reply), such cases are relatively rare, and, as 

discussed above, the final rule permits the regional 

director on the director’s own initiative to schedule 

the hearing to open at a later date if the case 

presents unusually complex issues. The final rule 

also provides a mechanism by which parties can 

request postponements if they need additional time 

to prepare for a hearing based on the novelty or 

complexity of the issues raised by the petition. 

305UFCW; SEIU. 

306The ACC, ACE II, and others found it troubling 

that the NPRM’s proposals would seemingly allow 

the Statement of Position form to be due even 

sooner than 7 days from the regional director’s 

service of the notice of hearing. As shown, however, 

under the final rule parties will always have a 

minimum of 7 days notice of the due date for 

completion of their Statements of Position. 

307See, e.g, Seyfarth Shaw; NAM; Senator 

Alexander and Republican Senators II. 

SEIU advocates that ‘‘extraordinary 

circumstances’’ would be the 

appropriate descriptor. Attorney 

Nicholas Karatinos urges the Board to 

allow regional directors to delay the 

opening of the hearing by 1–3 days 

upon a showing of hardship, and the 

Chamber (reply) submits that the Board 

should adhere to section 11082.3 of the 

Casehandling Manual’s guidance that 

‘‘requests for postponement of the 

hearing will be granted only for good 

cause.’’ Maury Baskin, testifying on 

behalf of ABC II, argued that ‘‘sufficient 

cause, sometimes called good cause,’’ is 

a ‘‘good standard.’’ Curiously, COLLE 

opines that regional directors’ rigid 

adherence to internal time targets make 

it a fool’s errand to consider which 

exception language would be most 

appropriate. Thus, in COLLE’s view 

‘‘the Board’s invitation to suggest 

language to guide exceptions to the 

target, even if it results in a stated test 

for doing so that is not unreasonable, is 

likely to be ignored in practice by the 

Regional Directors.’’ 

The Board has carefully considered 

the comments in this area—including 

COLLE’s fatalistic assertion—and 

believes that the competing interests 

represented would best be balanced by 

altering the language in the proposed 

rules in several ways. First, as shown, 

consistent with Croft Metals’ concern 

for adequate hearing preparation, 

§ 102.63 of the final rule, will guarantee 

employers (and all nonpetitioning 

parties) 8 days notice of the hearing and 

7 days notice of the due date for 

completion of the SOP form. Second, as 

also shown, in order to ensure that the 

Statement of Position serves its 

intended purposes of facilitating entry 

into election agreements and narrowing 

the scope of any pre-election hearings 

that must be held, § 102.63(b)(1) of the 

final rule requires the form to be filed 

with the regional director and served on 

all parties such that it is received by 

them at noon on the business day before 

the opening of the hearing. Third, to 

allow for both changes listed above, 

§ 102.63(a)(1) of the final rule provides 

that except in cases presenting 

unusually complex issues, the regional 

directors will set pre-election hearings 

to open, in 8 days from service of the 

notice excluding intervening Federal 

holidays, not 7.303 (Of course, if the 8th 

day would fall on a weekend or Federal 

holiday, then the rule provides that the 

regional director shall set the hearing to 

open on the following business day.) 

Thus, based on the regional director’s 

analysis of the complexity of the issues 

raised by the petition, a director will 

have discretion, even without a party 

filing a motion, to set the opening of the 

hearing beyond the normal 8-day time 

frame if the director concludes such 

extra time is warranted. Fourth, even if 

the director sets the hearing for the 

normal 8-day time frame, the director 

will retain discretion under 

§ 102.63(a)(1) of the final rule to extend 

the opening of the hearing for up to 2 

business days upon request of a party 

showing special circumstances. By 

cabining the regional directors’ 

discretion to extend the hearing’s 

opening to 2 business days, the Board 

trusts that contrary to concerns 

exhibited in some comments, the 

exception will not swallow the rule. 

Finally, because the Board is persuaded 

that there may be the exceptional case 

that should not go to hearing within that 

time frame, regional directors will retain 

discretion under § 102.63(a)(1) of the 

final rule to postpone the opening of the 

hearing for more than 2 business days 

upon request of a party showing 

extraordinary circumstances. The Board 

has concluded that the hearing 

scheduling amendment will help the 

Board to expeditiously resolve questions 

concerning representation because, 

absent an election agreement, the Board 

may not conduct an election outside of 

the 8(b)(7)(C) and 9(e) contexts without 

first conducting a pre-election hearing. 

The amendment will also render Board 

procedures more transparent and 

uniform across regions.304

Some union comments suggest that 

the Board specify that regional directors 

serve the notice of hearing 

immediately.305 We decline to do so, 

because the regions, among other things, 

check the showing of interest prior to 

serving the notice. However, in our 

experience, regions currently are 

promptly serving the notices, and we 

anticipate that the directors will issue 

the notices as soon as is practicable. 

SEIU suggests that the regional director 

should mark any correspondence 

regarding the hearing notice as ‘‘urgent’’ 

so as to help ensure that the recipient 

will pay proper attention to it. The 

Board agrees, and has so indicated in its 

statement of the general course. 

Many employer comments attack the 

proposed time frames. Although, as 

shown, the final rule provides that, 

except in cases presenting unusually 

complex issues, the hearing will open in 

8 days—not 7 days—from the notice and 

that parties will always have at least 7 

days notice of the due date for 

completion of the Statement of Position 

form, we shall assume that all 

comments opposing the proposed time 

frames would similarly object to the 8- 

day hearing/7-day Statement of Position 

time frames.306

A number of comments assert, with 

little legal analysis, that the time frames 

for the opening of the pre-election 

hearing and completion of the 

Statement of Position violate employer 

due process rights.307 However, due 

process does not require the Board to 

conduct a pre-election hearing. See 

Inland Empire District Council v. Millis, 

325 U.S. 697, 707, 710 (1945). But, to be 

sure, Section 9(c) does require a preelection hearing in the event parties are 

unable to reach an election agreement. 

And, in determining whether the notice 

given under the amendments is ‘‘due 

notice’’ as required by Section 9(c), the 

procedural due process case law 

provides some helpful analogies. 

‘‘[T]he timing and content of the 

notice and the nature of the hearing will 

depend on appropriate accommodation 

of the competing interests involved.’’ 

Goss v. Lopez, 419 U.S. 565, 579 (1975). 

Under Mathews v. Eldridge, 424 U.S. 

319, 335 (1976), three factors are 

weighed in evaluating the adequacy of 

the notice: (1) The gravity of the private 

interest that will be affected by the 

official action, (2) the value of 

procedural safeguards, like additional 

time, in reducing the risk of error, and 

(3) the public interest—including the 

burden of additional time on the 

government. 

The Board believes that the 8-day 

hearing/7-day Statement-of-Positionform time frames provide parties with 


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308Some attorney commenters contend that when 

they start asking their clients questions about 

community-of-interest factors, such as employee 

interchange, they sometimes are met with ‘‘a blank 

look’’ and are told ‘‘research’’ is necessary. See, e.g., 

Testimony of Maury Baskin, on behalf of ABC II. 

The Board rejects any suggestion that this anecdotal 

testimony renders the time frames inappropriate. In 

the first place, in the case of very small employers 

where the owner directly supervises, and even 

works alongside, rank and file employees, it seems 

unlikely that the owner will lack direct knowledge 

of the facts necessary to take positions on the 

relevant issues. In any event, even if the owner or 

CEO who might meet with an attorney does not 

have first-hand knowledge of these things, it should 

not be particularly challenging or time-consuming 

to identify the manager who would have that 

information readily available. The Board is also 

confident that counsel can minimize the likelihood 

of a ‘‘wasted’’ first meeting simply by 

communicating in advance with the client that 

counsel needs to meet with someone with firsthand knowledge of such matters as what the 

petitioned-for employees do and how often they fill 

in for one another. 

‘‘due notice.’’ The final rule provides in 

amended § 102.60 that the petition, 

which describes the unit sought, is 

served upon the employer as soon as it 

is filed in order to insure that the 

earliest possible notice of the pendency 

of a petition is given to all parties. 

Served together with the petition is an 

Agency form describing the Board’s 

representation case procedures, and a 

copy of the Agency’s Statement of 

Position form. Soon thereafter, the 

regional director serves the notice of 

hearing, specifically informing the 

parties of the time, place and subject of 

the hearing, and the deadline for the 

position statement. Amended 

§ 102.63(a)(1) provides that except in 

cases presenting unusually complex 

issues, the hearing will be ‘‘8 days 

[after] the date of service of the notice 

[of hearing] excluding intervening 

Federal holidays,’’ and that the 

Statement of Position will be due at 

noon on the business day before the 

hearing, i.e. no sooner than 7 days from 

the notice of hearing. 

The courts have held that less than 8 

days notice constitutes due notice even 

when very substantial interests are at 

stake. For example, in Wilkinson v. 

Austin, 545 U.S. 209, 213, 216 (2005), 

the Supreme Court addressed the 

appropriateness of an Ohio procedure 

for placing prisoners in a ‘‘Supermax’’ 

prison. The procedures involved at least 

48 hours written notice of the issues 

that would be addressed at the hearing. 

The unanimous Court held that the 

procedures satisfy due process. Id. at 

229. In Wolff v. McDonnell, 418 U.S. 

539, 564 (1974), the Court held that 

before a hearing on inmate discipline, 

‘‘[a]t least a brief period of time after the 

notice, no less than 24 hours, should be 

allowed to the inmate to prepare for the 

appearance [at the hearing.]’’ This 

advance notice was required in order to 

‘‘give the charged party a chance to 

marshal the facts in his defense.’’ Id. 

In the Federal context, employees 

facing termination for criminal conduct 

have a statutory right to ‘‘a reasonable 

time, but in any event not less than 7 

days, to answer orally and in writing 

and to furnish affidavits and other 

documentary evidence in support of 

[their position].’’ 5 U.S.C. 7513(b)(2). 

This provision has been upheld against 

constitutional attack. Perez v. Dep’t of 

Justice, 480 F.3d 1309, 1312 (Fed. Cir. 

2007) (discussing cases). In Schapansky 

v. Dep’t of Transportation, 735 F.2d 

477, 480, 486–88 (Fed. Cir. 1984), for 

example, the Federal Circuit upheld the 

agency’s firing of PATCO strikers after 

7-days notice. See also Darnell v. Dep’t 

of Transportation, 807 F.2d 943, 944–46 

(Fed. Cir. 1986) (discharges not 

unlawful where air traffic controllers 

had 7 days to prepare and respond to 

notices of termination). And, in some 

cases, the interests at stake are 

considered of such minor significance 

and the value of additional preparation 

time so small that notice may be 

provided orally and contemporaneous 

with the hearing: ‘‘There need be no 

delay between the time ‘notice’ is given 

and the time of the hearing.’’ Goss, 419 

U.S. at 582 (suspension from school of 

10 days or less). 

Under the first Mathews factor, the 

arguable employer private interest at 

stake in pre-election litigation typically 

concerns the contours of the unit in 

which the election will be conducted, 

for the employer risks losing the right to 

deal directly with the unit employees. 

This interest, though important, is 

generally not so important to the 

employer as the question at stake in the 

election itself—that is, whether the 

Section 9 relationship will form. To the 

extent that the employer has a legally 

cognizable interest in being free to deal 

with its employees directly, the preelection hearing cannot deprive the 

employer of that freedom, because an 

employer loses the right to deal directly 

with bargaining unit employees only if 

the union wins the election. In any 

event, the time given is sufficient to 

account for even the serious interests 

under Wilkinson, Wolff, and Perez. 

The Board also is of the opinion that 

the time frames in question pose little 

risk of error, the second Mathews factor. 

The Board has substantial experience 

applying the NLRA to various industries 

over the last 7 decades. The factual 

subject matter that is the focus of the 

hearing typically is not all that complex 

to litigate, and is intimately familiar to 

the employer, permitting very rapid 

preparation. As discussed, the Board 

need not direct an election in the most 

appropriate unit; it need only select an 

appropriate unit. In determining 

whether a group of employees 

constitutes an appropriate unit, the 

Board analyzes whether the employees 

in that unit share a community of 

interest by examining the employees’ 

terms and conditions of employment, 

the employees’ job duties, skills, 

training, and work locations, the 

employees’ supervision, the extent of 

employee interchange and contact with 

one another, and the history of 

collective bargaining. The employer 

already knows all those things before 

the petition is even filed. Thus, the 

employer knows its employees’ terms 

and conditions of employment because 

it established its employees’ terms and 

conditions of employment. The 

employer knows its employees’ job 

duties, work locations, and supervision, 

because it assigned those job duties, 

work locations, and supervisors to its 

employees. The employer knows its 

employees’ skills because it sets the 

skill requirements for its positions, and 

hires and evaluates its employees. 

Similarly, the employer is aware of the 

collective bargaining history of its 

employees, as well as the level of 

employee interchange and contact, and 

the training it provides for its 

employees.308 The employer likewise 

knows its connection to interstate 

commerce, and whether the petitionedfor employees are covered by a 

collective-bargaining agreement or 

participated in a valid election in the 

preceding 12-month period, thereby 

barring an election. Even if preparation 

within ‘‘a few hours’’ would not be 

feasible in some cases, within a few 

days an employer should reasonably be 

able ‘‘to gather his thoughts and his 

evidence and to make an informed 

decision about the best way to respond’’ 

regarding the community of interest and 

other issues. Staples v. City of 

Milwaukee, 142 F.3d 383, 385–86 (7th 

Cir. 1998). Furthermore, in those cases 

where the timeline would be too short, 

the final rule provides exceptions so 

that, in practice, there should be no 

impact on the likelihood of error. 

The Board also believes that the 

proposed time frames serve very 

important public interests, the third 

Mathews factor. Put simply, permitting 

a timely choice of representative is of 

inherent value under the Act; each 

delay in resolving the question 

concerning representation causes public 

harm by denying the employees their 

right to bargain collectively through 

representatives of their own choosing— 

or denying employees their right to rid 

themselves of an unwanted incumbent 


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309See AFL–CIO; Testimony of Margaret McCann 

on behalf of AFSCME. 

310See Joel Cutcher-Gershenfeld. 

311Chamber; Chamber II. 

312Ranking Member Enzi and Republican 

Senators. 

313COLLE. 

314NCISS II. 

315 Indiana Chamber. 

316 GAM. 

317Ranking Member Enzi and Republican 

Senators assert that employers will significantly 

limit their use of legal counsel during organizing 

campaigns due to the Department of Labor’s recent 

NPRM interpreting the advice exemption under the 

Labor Management Reporting and Disclosure Act. 

See 76 FR 36178. Other commenters share this 

view. See, e.g., COLLE II; NRF II. The Board doubts 

the accuracy of this prediction given DOL’s stated 

goal of publicizing the interactions between 

employers and anti-union consultants, not stopping 

those interactions from taking place. See id. at 

36182, 36190. In any event, the Board views such 

concerns as more properly directed to DOL and not 

the NLRB. If changes in the legal landscape prevent 

parties from obtaining representation in a timely 

fashion, the Board will take that into consideration 

in determining whether to grant a party’s request to 

postpone the opening of the hearing and, more 

generally, whether there is a need to revise the final 

rule’s time frames. 

318 If, as some comments, including Fox 

Rothschild’s, suggest, a party’s preferred witnesses 

are unavailable and no other available witness has 

comparable knowledge, that party is free to move 

to postpone the hearing. The fact that special 

circumstances may exist to postpone some hearings, 

however, hardly warrants delaying the opening of 

all hearings. No matter when the hearing is 

scheduled to open, there is always the possibility 

that a witness may have a conflict. Similarly, 

counsel may also adjust the order of his planned 

presentation if it appears that the hearing may run 

more than one day and a witness is not available 

the second day. 

319To be clear, consistent with the reasoning in 

Croft Metals, the Board would set the baseline due 

date for the Statement of Position form at 7 days 

even in the absence of the hearing being scheduled 

in 8 days. Even if the pre-election hearing were to 

be held at a point more distant than 8 days from 

service of the notice, the timely sharing of the 

information contained in the Statement of Position 

form should encourage the timely entrance into 

election agreements and narrow the scope of the 

Continued 

representative. Moreover, Congress has 

already determined that the expeditious 

resolution of questions concerning 

representation ‘‘safeguards commerce 

from injury, impairment or 

interruption.’’ 29 U.S.C. 151. As 

favorable comments indicate, providing 

such standard time frames also has the 

salutary effect of conveying to the 

employees that the Board, not the 

parties, is in charge of the process, and 

reduces chances of manipulation of the 

process by the parties.309 The 

establishment of uniform time frames 

across the regions also has the salutary 

effect of affording employees’ Section 7 

rights the same treatment across the 

country.310 The ability to exercise 

Section 7 rights should not turn on the 

particular region where the petition is 

filed. The timeline will also reduce the 

Board’s expenses and make the process 

more economically efficient by 

discouraging abusive delays by the 

parties and encouraging prompt 

settlement without litigation. 

For all the foregoing reasons, the 

Board believes that the time frames do 

not run afoul of constitutional due 

process or statutory due notice 

requirements. The Board also rejects the 

argument of many comments that, as a 

matter of policy, the time frames 

proposed in the NPRM are wholly 

insufficient,311 virtually impossible,312

draconian,313 facially absurd,314

unconscionable,315 and just too short.316

A major premise of many of these 

comments is that employers are 

completely unaware of any union 

organizing until the petition is filed, and 

therefore have not even begun to think 

about contacting an attorney or other 

advisor about how to respond to a 

petition. However, as discussed more 

fully above in connection with the 

opportunity for free speech and debate, 

these comments offer no reliable 

empirical evidence establishing that 

employers are frequently blindsided by 

the petition, and our experience and 

recent scholarly research suggest the 

opposite. Put simply, in the multitude 

of cases where employers are aware of 

the union drive before the petition, they 

have more, often much more, than 7 

days to contact an attorney or advisor or 

otherwise begin to consider the issues 

listed on the Statement of Position form 

and to prepare for a possible hearing. 

But even in cases where employers 

are caught completely unaware by the 

petition, we reject the notion that 

employers will be unable to consult 

advisors, complete the Statement of 

Position form, and prepare for the 

hearing in the allotted time frames. As 

some of the comments appear to 

concede, at least some employers facing 

petitions will have ready access to labor 

counsel. Although we recognize that 

some employers may not have labor 

counsel on retainer, in our experience, 

employers are able to promptly retain 

advisers and prepare for the hearing in 

relatively short order. For example, as 

the testimony of Russ Brown on behalf 

of LRI and of Michael Pearson, a retired 

NLRB field examiner with nearly 34 

years of experience, indicate, under the 

Board’s current rules, management 

consultants regularly survey public 

notice of the filing of representation 

petitions to offer their services to 

employers named in the petition, and 

they would continue to be able to do so 

under the final rule. Indeed, this is such 

a widespread practice that a regional 

director’s model opening letter to 

employers to accompany service of the 

petition advises employers that they 

may be contacted by organizations or 

persons who seek to represent the 

employer before the Board in 

connection with the representation case, 

but that such persons or organizations 

do not have any ‘‘inside knowledge’’ or 

‘‘favored relationship’’ with the Board. 

See OM Memo 99–56.317 Similarly, the 

retired field examiner commented that it 

was his experience that even small 

employers were able to obtain 

competent legal counsel in short order. 

Michael Pearson supplemental 

statement; Testimony of Pearson. 

Indeed, despite the comments to the 

contrary, the proposed time frames do 

not constitute a radical change from the 

status quo. Under the final rule, 

hearings ordinarily will be scheduled to 

open 8 days from service of the notice 

of hearing, but a party may for special 

circumstances move to postpone the 

hearing by up to 2 business days and for 

extraordinary circumstances for more 

than 2 business days. A 1997 Report of 

the Best Practices Committee provided 

that hearings should open between 10 to 

14 days of the petition’s filing. GC 

98–1. A model opening letter in 1999 

indicated that the hearing should open 

no later than 7 days after service of the 

notice, which should issue no more 

than 3 days after the filing of the 

petition. OM 99–56. The 2002 Board 

held that 5 business days notice was 

sufficient: ‘‘By providing parties with at 

least 5 working days notice, we make 

certain that parties to representation 

cases avoid the Hobson’s choice of 

either proceeding unprepared on short 

notice or refusing to proceed at all.’’ 

Croft Metals, Inc., 337 NLRB 688, 688 

(2002). And, according to ALFA, 

‘‘[m]any Regions now schedule hearings 

within seven (7) days and are reluctant 

to grant any postponements.’’ Most preelection representation case hearings 

last only 1 day. Accordingly, the reality 

is that under the current rules, 

employers sometimes must already 

formulate, assert, and produce 

supporting evidence for all their 

positions before a hearing officer within 

7 days even though the current rules do 

not mandate completion of a Statement 

of Position form.318 Because the 

proposed time frames are not radically 

different from the status quo and the 

Statement of Position form largely 

requires an employer to do what it 

currently does to prepare for a hearing, 

the Board rejects the Bluegrass 

Institute’s contention that the proposed 

time frames will result in significantly 

higher legal fees for employers.319


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pre-election hearing in the event parties are unable 

to enter into such agreements, thereby contributing 

to the Board’s goal of expeditiously resolving 

questions concerning representation. 

320There were numerous other examples prior to 

the NPRM of parties being required to raise 

contentions at specified times in the process or face 

preclusion. For example, under the rules in effect 

prior to the NPRM, a party could not challenge the 

eligibility of voters for the first time after an 

election by filing an election objection. HeartShare 

Human Services of New York, Inc., 317 NLRB 611, 

611 n.1 (1995), enforced, 108 F.3d 467 (2d Cir. 

1997). See also Bennett Industries, Inc., 313 NLRB 

1363, 1363 (1994) (disagreeing with regional 

director, Board states that because employer refused 

to take a position at the pre-election hearing 

regarding the supervisory status of leadpersons and 

quality control inspectors and the regional director 

included those classifications in the unit, the 

employer may not, absent changed circumstances, 

challenge their votes on the basis that they are 

supervisors). Similarly, the courts have held that 

because the representation proceeding is the forum 

designed for parties to contest the appropriateness 

of the unit, any issue that can be raised in the 

representation case proceeding must be raised there 

and cannot be raised for the first time in response 

to a complaint alleging an unlawful refusal to 

bargain with a newly certified union. See Pace 

University v. NLRB, 514 F.3d 19, 20, 23–27 (D.C. 

Cir. 2008) (employer precluded from justifying its 

refusal to bargain with the certified union on the 

ground that the bargaining unit is inappropriate 

because employer did not raise its contention in the 

underlying representation case proceeding). 321See, e.g., COSE; LRI. 

322Other commenters, such as U.S. Poultry II also 

appear to question whether the proposal would 

permit parties to amend Statements of Position at 

the hearing. 

323As discussed below in connection with 

§ 102.66, the Board received a number of comments 

complaining about the hearing officer’s authority 

under the proposed amendments. Accordingly, the 

Board has decided that the regional director, rather 

than the hearing officer, should be the one to decide 

whether parties may amend their Statements of 

Position. 

Comments addressing the consequences of failing 

to timely complete the Statement of Position are 

also addressed below in relation to § 102.66. 

The Board likewise rejects the notion 

that the amended scheduling provisions 

are unfair because if a union does not 

know the correct individual to serve, the 

petition might not be received by the 

proper recipient for a day or more. 

Cook-Illinois; California Healthcare 

Association (CHA) II. Thus, the same 

possibility existed under the prior rules. 

Moreover, as shown, the region will also 

serve the petition, the Statement of 

Position form, and related papers with 

the notice of hearing (§ 102.63(a)(1)), 

and it is the practice of the regional 

offices to have a Board agent contact 

parties as soon as possible after the 

filing of a petition in order to facilitate 

the election process. See Casehandling 

Manual Section 11010. The Board 

likewise rejects COLLE’s suggestion that 

the Board is incapable of timely serving 

the notice of hearing on the person 

specifically named in the petition as the 

employer representative to contact. In 

any event, a nonpetitioning party may 

move to postpone the opening of the 

pre-election hearing (and the date for 

filing the Statement of Position) if it 

does not receive the notice of hearing 

(or the Statement of Position form) in a 

timely manner. 

Although many comments complain 

about the consequences of failing to 

note something on the Statement of 

Position form, the fact of the matter is 

that the Board’s prior rules and case 

precedent already required parties to 

raise contentions at specified times in 

the process or face preclusion. Indeed, 

even taking the preclusion provisions 

into account, the 7-day time frame for 

completion of the Statement of 

Position—which can be extended up to 

two business days for special 

circumstances and even further for 

extraordinary circumstances—does not 

constitute a material change from what 

could, and sometimes did, occur under 

the Board’s prior rules and case 

precedent. Prior to the NPRM, the Board 

held that a hearing officer may refuse to 

allow an employer to introduce 

evidence regarding the supervisory 

status of employees in certain job 

classifications if the employer refuses to 

take a position on their status and their 

inclusion or exclusion from the unit. 

Bennett Industries, Inc., 313 NLRB 1363, 

1363 (1994). Similarly, under the rules 

in effect prior to the NPRM, a party 

could ‘‘not [in a request for review of a 

regional director’s decision and 

direction of election] raise any issue or 

allege any facts not timely presented to 

the regional director.’’ 29 CFR 102.67(d) 

(2010). Accordingly, even under the 

Board’s prior rules, if a party failed to 

present facts or take a position before 

the hearing officer at a hearing, 

including one which opened and closed 

within 7-days of the notice, it could not 

do so later.320

In view of the foregoing, the Board 

rejects as unfounded those comments 

that complain that the proposed time 

frames are so short as to inevitably 

cause parties to make mistakes.321

Moreover, the Board indicated in the 

preamble to the NPRM that the hearing 

officer would retain discretion to permit 

parties to amend their Statements of 

Position for good cause. 79 FR at 7330. 

In its reply comment, the Chamber 

complains (Reply) that the proposed 

regulations themselves did not so 

provide.322 In response to the comment, 

the Board has modified §§ 102.63 and 

102.66 to provide that the regional 

director may permit parties to amend 

their Statements of Position in a timely 

manner for good cause.323

The dissent argues that the Statementof-Position and preclusion provisions 

should be modified so that a party 

retains the right to address issues it did 

not raise in its initial Statement of 

Position in response to another party’s 

contentions. No modification is 

necessary. The Statement of Position in 

large part constitutes a response to 

positions previously taken by the 

petitioner in its petition. For example, 

after a union files a petition which 

identifies the unit it seeks, the employer 

is required to state whether it agrees that 

the petitioned-for unit is appropriate 

and whether there is a bar to conducting 

an election in that unit. The final rule 

also provides that the regional director 

may permit a party to amend its 

Statement of Position in a timely 

manner for good cause. And a party 

typically will have good cause to timely 

amend its Statement of Position to raise 

an issue that is presented by virtue of a 

petitioner’s amending its petition. For 

example, it would constitute good cause 

for an employer to amend its Statement 

of Position to raise for the first time a 

contract bar issue if a petitioner 

amended its petition to change the 

petitioned-for unit from one which is 

entirely unorganized to one including 

employees who are covered by an 

existing collective-bargaining 

agreement. Contrary to the dissent, the 

good-cause standard governing 

amendments of statements-of positions 

is less strict than the Pergament 

standard governing whether the Board 

may find a violation that was never 

alleged in an unfair labor practice 

complaint. See Pergament United Sales, 

Inc., 296 NLRB 333, 333–334 (1989) 

(Board may find a violation even in the 

absence of a specific complaint 

allegation if the unalleged violation is 

closely connected to the subject matter 

of the complaint and has been fully 

litigated). Thus, if a union seeks to 

amend its petition in a fundamental 

way, an employer may have good cause 

to amend its Statement of Position even 

if the amendment is not closely related 

to the original position taken by the 

employer. Moreover, it is not clear how 

many of the retrospective criteria used 

to determine whether Pergament’s fullylitigated prong has been satisfied could 

have any kind of coherence in the 

context of the position statement, 

particularly where amendment is sought 

early in the process. 

At least one comment suggests that 

the Board should make clear that the 

Statement of Position is required only to 

alert the Board to issues that need to be 

decided during the pre-election stage, 

not to foreclose legitimate issues that 

may be raised after the election. The 

Board believes that the proposed 


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324See, e.g., NADA II; Indiana Chamber; Miners; 

Pinacle Health Systems of Harrisburg; Vigilant; 

Associated Oregon Industries; Ohio Grocers 

Association II; US Poultry II; the Textile Rental 

Services Association (TRSA) II. 

325Accordingly, we reject the contention of the 

NGA that the time spent on the Statement of 

Position form would be better spent trying to reach 

an election agreement. Testimony of Kara Maciel on 

behalf of NGA II. As noted, the final rule gives the 

parties approximately 1 business day—after 

completion of the Statement of Position—to 

negotiate an election agreement. In response to 

concerns raised by CDW and others, the Board 

wishes to clarify that parties remain free to file joint 

postponement requests when they need additional 

time to finalize election agreements. Nothing in the 

final rule is intended to deprive regional directors 

of the discretion they currently enjoy to postpone 

hearings when they conclude that it is highly 

probable that the parties will be able to enter into 

an election agreement. 

326Contentions that the Statement of Position 

form is analogous to an appellate brief, such as the 

one made by the National Meat Association, are 

wildly off the mark. The Statement of Position form 

does not require a party to provide any legal 

citations for its positions. For example, the 

Statement of Position form requests the employer to 

state its position regarding election details such as 

the type, date(s), time(s), and location(s) for the 

election, and the names of, and information about, 

the employees in the petitioned-for unit and in any 

alternative unit proposed by the employer. 

Providing such information does not require case 

citations. Similarly, the employer need not provide 

case citations in providing information about its 

connection to interstate commerce. Nor does an 

employer need to provide case citations to support 

a contention that an election is barred because the 

petitioned-for unit is covered by a collectivebargaining agreement or participated in a valid 

election within the preceding 12-month period. The 

employer likewise need not cite cases to explain 

why it disagrees that the petitioned-for unit is 

appropriate. We similarly reject contentions that 

completing the Statement of Position form should 

be subject to the same timelines as filing a response 

to a complaint in Federal court. See Clear Channel 

Outdoor; MEMA. 

327See, e.g., Chairmen Kline & Roe II; COLLE II; 

Chamber II; SHRM II; Acme-McCrary and 56 other 

representatives of small, medium and large 

businesses (Acme) II. 

language already does so. Certainly, 

nothing in the NPRM or final rule 

suggests that a party must raise postelection issues, such as objectionable 

conduct, in its pre-election Statement of 

Position. 

Although some employer comments 

concede that requiring completion of 

the Statement of Position form is a good 

idea in theory, many complain that it 

will be a bad idea in practice because 

the time frame for completing it— 

coupled with the preclusion 

provisions—will cause employers to list 

every conceivable issue on the form to 

preserve their right to litigate such 

issues, which will only lengthen (and 

increase the number of) hearings.324 The 

Board disagrees. As shown, we do not 

believe that the information sought, 

time frames and preclusion provision 

are unreasonable. To the contrary, they 

are similar to what could occur under 

the Board’s prior rules and case 

precedent. And, as shown, under 

existing rules, most hearings currently 

last only a day, and the Board’s current 

rules and case precedent obviously are 

not preventing the parties from entering 

into election agreements. 

Moreover, the Board is of the opinion 

that some of the comments suggest that 

the Board adopt time frames which bear 

no relation to reality. For example, 

NADA suggests that a 30-day period to 

complete the Statement of Position form 

is necessary. Other comments suggest a 

much shorter period is necessary, 

though not as short as the 7 day period 

set forth in the amendments. Thus, the 

Indiana Chamber suggests a period of 

14–18 days. Put simply, we 

categorically reject any notion that the 

Statement of Position form will 

routinely require such long periods of 

time to complete. As shown, the 

Statement of Position form largely 

requires parties to do what they 

currently do to prepare for a preelection hearing. The Croft Board held 

that 5 days (excluding intervening 

weekends and holidays) constituted 

adequate notice of such a hearing, and 

some hearings are already occurring 

within 7 calendar days. 

We also find it significant that parties 

commit to enter into stipulated election 

agreements in 7 days or less. Under 

current rules, by entering into a 

stipulated election agreement, a party 

waives the right to raise issues at a preelection hearing, and is precluded from 

later challenging matters such as the 

appropriateness of the unit. See, e.g., 

Micro Pacific Development, Inc. v. 

NLRB, 178 F.3d 1325, 1335–1336 (D.C. 

Cir. 1999). As is well known, 

approximately 90 percent of Board 

elections are conducted pursuant to 

election agreements. Frankly, the Board 

finds it difficult to believe that an 

employer would commit to enter into a 

stipulated election agreement—and 

thereby waive its right to raise issues at 

a pre-election hearing—before satisfying 

itself that the Board did in fact have 

jurisdiction over it, that there were no 

bars to an election, and that the unit 

described in the agreement was 

appropriate. Indeed, as Jonathan Fritts 

testified on behalf of CDW, ‘‘it’s hard to 

say that negotiating a stip[ulated 

election agreement] would necessarily 

take less time than preparing for the 

hearing[.] I think that everything that 

precedes the negotiation, at least in my 

experience, is something that you would 

do to identify the issues that may be 

subject to litigation. And so, if you’re 

going to negotiate a stip I think you have 

to know what the issues are that you 

might go to hearing on, and then you 

have to decide if you can resolve them. 

The process of identifying those issues, 

what the evidence is, what the 

circumstances are, that’s going to 

happen I think regardless of whether 

you go to a hearing or whether you go 

to a stip. It’s only once you’ve done all 

that that you really begin the process of 

negotiating a stip.’’ Testimony of Fritts 

on behalf of CDW II.325 In other words, 

the fact that parties currently agree to 

enter into stipulated election 

agreements in 7 days constitutes 

powerful evidence that employers can 

in fact obtain advisers and have the 

conversations necessary to formulate 

positions on the issues covered by the 

Statement of Position form (and that 

would be addressed at a pre-election 

hearing) in the time frames set forth in 

the final rule. And the Board is 

confident that, if parties do not enter 

into election agreements, the offer-ofproof procedures discussed below in 

connection with § 102.66 provide tools 

for the region to swiftly dispose of 

unsupported contentions that a party 

may set forth in its Statement of 

Position simply to avoid triggering the 

preclusion provisions.326

The Chamber II argues that the Board 

should have analyzed the impact of the 

Board’s decision in Specialty Healthcare 

and Rehabilitation Center of Mobile, 357 

NLRB No. 83 (2011), affd sub. nom, 

Kindred Nursing Centers East, LLC v. 

NLRB, 727 F.3d 552 (6th Cir. 2013) 

before making the proposals in the 

NPRM. However, Specialty Healthcare 

has not had, and is not likely to have, 

a significant impact on representation 

case processing by the Board. Specialty 

Healthcare sets forth a clear test for unit 

determinations when an employer 

contends that a proposed bargaining 

unit is inappropriate because additional 

groups of employees are excluded from 

the bargaining unit. Specialty 

Healthcare, slip op. at 14. These issues 

are not addressed by the NPRM, which 

does not affect the appropriateness of 

bargaining units. Likewise, Specialty 

Healthcare does not implicate 

representation-case procedures, which 

are addressed by the NPRM. Before 

Specialty Healthcare, regional directors 

were required to determine whether the 

petitioned-for unit was appropriate 

prior to directing an election but were 

not required to resolve all individual 

eligibility issues in the pre-election 

decision, and both remain true after 

Specialty Healthcare. 

Some comments argue that Specialty 

Healthcare renders the proposed time 

periods too short.327 They claim that 

more time is needed because Specialty 

Healthcare constitutes a dramatic 


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328For example, employees can be readily 

identifiable as a group based on job classifications, 

departments, functions, work locations, skills, or 

similar factors. Specialty Healthcare, slip op. at 12. 

It is the employer who designates the job 

classifications and functions of its employees, and 

it is the employer who assigns its employees to 

their departments and work locations. The 

employer knows the skills of its employees because 

it sets the skill requirements for its positions, 

interviews applicants, and trains and evaluates its 

employees. 

329Thus, it is the employer that establishes the 

terms and conditions of employment of the 

petitioned-for employees. 

330The employer also establishes the terms and 

conditions of employment of those employees that 

it wishes to add to the petitioned-for unit. Because 

the employer establishes the working conditions of 

all its employees, it also possesses the evidence 

necessary to determine the extent to which the 

employees it seeks to add to the petitioned-for unit 

share a community of interest with the petitionedfor employees. See Specialty Healthcare, slip op. at 

9 n.19 (‘‘It is highly significant that, except in 

situations where there is prior bargaining history, 

the community-of-interest test focuses almost 

exclusively on how the employer has chosen to 

structure its workplace. * * * * [M]ost of the facts 

at issue (lines of supervision, skill requirements 

wage rates, etc) are established by the employer,’’ 

and the employer also typically draws ‘‘the lines 

across which those facts are compared,’’ such as the 

lines between ‘‘job classifications . . . , 

departments, functions, facilities, and the like.’’). 

Employers also possess the evidence necessary to 

determine whether a union has petitioned for a 

fractured unit, such as when a union petitions for 

all employees occupying a nominally distinct 

classification, but when the employees in that 

classification do not in fact perform distinct work 

under distinct terms and conditions of employment. 

See id., slip op. at 13 & n.31. 

331Comments about Specialty Healthcare are also 

discussed below in connection with § 102.66. 

332See, e.g., Chamber; Chamber II; ALG; Arizona 

Hospital and Healthcare Association; American 

Feed Industry Association; NAM; NAM II; CDW; 

Precision Fittings II; NGA II; INDA II; NFIB II. 

change in the law and heightens the 

employer’s burden when it wishes to 

contest the appropriateness of the 

petitioned-for unit. However, the 

premises for that argument were 

rejected in Specialty Healthcare and in 

the litigation which followed. See 

Specialty Healthcare, slip op. at 14 

(‘‘Our dissenting colleague is simply 

wrong when he says that ‘[t]oday’s 

decision fundamentally changes the 

standard for determining whether a 

petitioned-for unit is appropriate in any 

industry subject to the Board’s 

jurisdiction.’ Our decision adheres to 

well-established principles of 

bargaining-unit determination, reflected 

in the language of the Act and decades 

of Board and judicial precedent.’’). 

Thus, Specialty Healthcare holds that 

‘‘the traditional community of interest 

test * * * will apply as the starting point 

for unit determinations in all cases not 

governed by the Board’s Health Care 

Rule,’’ and sets forth a clear test—‘‘using 

a formulation drawn from Board 

precedent and endorsed by the District 

of Columbia Circuit’’—for those cases in 

which an employer contends that a 

proposed bargaining unit is 

inappropriate because additional groups 

of employees are excluded from the 

bargaining unit. Ibid. In such cases, the 

Board held, ‘‘the employer must show 

that the excluded employees share an 

‘overwhelming community of interest’ 

with the petitioned-for employees.’’ 

Ibid. 

When the employer subsequently 

challenged the Specialty Healthcare 

standard in the Sixth Circuit, the 

employer and amici such as COLLE and 

the American Health Care Association, 

raised the same argument that Specialty 

Healthcare had fundamentally changed 

the standard for determining whether 

the petitioned-for unit is appropriate. 

See 2012 WL 1387314 *3, *44 

(employer brief); 2012 WL 1494162 * 

3–4 (COLLE amicus brief); 2012 WL 

1494157 *17 (American Health Care 

Association amicus brief). The Sixth 

Circuit squarely rejected the argument. 

See Kindred Nursing Centers East, LLC 

v. NLRB, 727 F.3d 552, 561 (6th Cir. 

2013) (‘‘Kindred argues that this 

overwhelming-community-of-interest 

standard represents a ‘material change 

in the law’ and is not a mere reiteration 

nor clarification. But this is just not so. 

The Board has used the overwhelmingcommunity-of-interest standard before, 

so its adoption in Specialty Healthcare 

II is not new.’’). 

We also agree with the AFL–CIO that 

Specialty Healthcare makes preparation 

easier by clarifying the standard. Reply 

II. As the Board made clear in Specialty 

Healthcare, ‘‘employees in the 

petitioned-for unit must be readily 

identifiable as a group and the Board 

must find that they share a community 

of interest using the traditional criteria 

before the Board applies the 

overwhelming-community-of-interest 

standard to the proposed larger group.’’ 

Specialty Healthcare, slip op. at 11 n.25 

(emphasis added). And the employer 

possesses the evidence relevant to 

whether the petitioned-for employees 

constitute a readily identifiable 

group; 328 whether the petitioned-for 

employees share a community of 

interest,329 and whether the employees 

it seeks to add share an overwhelming 

community of interest with the 

petitioned-for employees.330

Accordingly, we reject the contention 

that Specialty Healthcare renders the 

proposed time frames unworkable in the 

typical case. In any event, as discussed 

above, if a petition raises an unusually 

complex issue, the regional director has 

discretion to set the hearing for a later 

date on the director’s own initiative, 

and parties remain free to file 

postponement requests themselves.331

A number of comments also request 

exemptions from the time frames 

proposed in the NPRM for particular 

employers, industries, or types of 

petitions. We deal with these in turn. 

1. Small Employers 

Many comments complain that the 

time frames are particularly unworkable 

for small employers because they may 

not have ready access to labor relations 

advice and have no experience with 

Board proceedings.332 Some of these 

comments, such as that filed by COSE, 

also complain that the amendments 

‘‘disproportionately harm[] small 

businesses,’’ because they do not have 

large staffs, and the requirements will 

distract them from running their 

businesses. 

The Board declines to carve out an 

exemption for small employers in all 

cases. Prior to the NPRM, the Board did 

not have one set of best practices for 

cases involving small employers and a 

different set of best practices for cases 

involving large employers. Moreover, as 

shown, the timing of the pre-election 

hearing under these amendments will 

not be dramatically different from that 

which existed prior to the amendments. 

Small employers, no less than large 

employers, are intimately familiar with 

the factual subject matter of the 

Statement of Position form and the 

hearing. Thus, for example, they know 

their employees’ terms and conditions 

of employment because they established 

those terms and conditions. As 

previously discussed, small employers, 

like large employers, may learn of the 

union drive prior to the petition, in 

which case they may well retain 

advisors before the filing of the petition. 

Even when the filing of the petition 

catches small employers by surprise, 

they may retain advisors in relatively 

short order. In some cases, they may 

well be solicited by firms providing 

labor relations advice. As we note above 

in connection with the section 

discussing the opportunity for free 

speech and debate, the welldocumented growth of the labor 

relations consulting industry 

undermines the contention that small 

businesses are unable to obtain advice 

quickly. And, small employers, like 

their larger counterparts, may be 

members of trade organizations which 

provide assistance in responding to the 

petition and in locating counsel. 

Testimony of Sencer on behalf of 

Weinberg Roger & Rosenfeld II; 

Testimony of Maciel on behalf of NGA 

II. As a former examiner commented, it 

was his experience that small 


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333 In the case of a very small employer with only 

‘‘one boss’’ who is scheduled to be away on 

business or a pre-planned vacation on the date of 

the hearing (CNLP), the employer remains free 

under the amendments to file a motion for 

postponement setting forth such matters as the 

precise nature of the conflict, the harm caused by 

rescheduling the other matter, and the length of the 

postponement requested. The same holds true if the 

only person in charge is away when the notice of 

hearing issues. We note in this regard that small 

business owners may be away or have conflicts 

when notices of hearing are served under the 

current rules. 

RILA suggests that the time frames are 

inappropriate if the petition is filed during ‘‘holiday 

season’’ when retail stores are busy. The Board is 

confident that regional directors will continue to 

exercise their discretion appropriately in the event 

a retail employer files a motion to postpone a preelection hearing. We note in this regard that a 

petition filed just before Christmas concerning the 

employees of a small, ‘‘mom and pop’’ retail store 

would appear to raise different considerations than 

a petition filed at the same time concerning the 

employees of a large department store. 

We also reject Elizabeth Milito’s testimony that 

the time frames are unfair because small employers 

‘‘wouldn’t have a clue’’ what to do after they 

receive an election petition. Just as was the case 

under the prior rules, employers and their advisors 

may communicate with the Board agent assigned to 

the representation case and may consult the Board’s 

Web site which features links to a variety of useful 

information, including the Casehandling Manual. 

Moreover, as set forth above, the amendments 

provide that all employers will be served, along 

with the petition, documents describing Board 

representation procedures and providing 

information about their responsibilities and 

employee rights. The Statement of Position form 

will also guide the parties’ preparation for any 

hearing that must be held. We believe that, as a 

result of these amendments, employers will have 

more guidance about ‘‘what to do’’ than they had 

under the prior rules. 

334Section 8(f) of the NLRA (29 U.S.C. 158(f)) 

permits a construction industry employer and a 

union to enter into a collective-bargaining 

agreement even though a majority of the employees 

have never designated the union to be their 

collective-bargaining representative. By contrast, it 

is unlawful for a nonconstruction industry 

employer to enter into a collective-bargaining 

agreement with a minority union. See American 

Automatic Sprinkler Systems, Inc. v. NLRB, 163 

F.3d 209, 214 (4th Cir. 1998). 

employers, like their larger 

counterparts, were able to retain counsel 

in short order. Pearson supplemental 

statement; Testimony of Pearson. The 

rule also provides that parties may move 

that the opening of the hearing be 

postponed up to 2 business days based 

on special circumstances and may move 

that the hearing be postponed for an 

even longer period of time based on 

extraordinary circumstances.333

In the final analysis, however, the 

Board believes that small employers, 

like their larger counterparts, will be 

able to appropriately respond to the 

filing of a petition. Congress deemed it 

appropriate to grant Section 7 rights to 

employees, notwithstanding any 

resulting distractions to employers, even 

those of relatively small size. The Board 

is confident that small employers can 

locate competent advisors, should they 

choose to do so, within the time frames 

set forth in the rule. 

Nevertheless, the Board emphasizes 

that the final rule fully protects small 

employers with respect to the two issues 

that, in our experience, most concern 

small employers. First, even if a small 

employer fails to complete a Statement 

of Position form, the small employer 

will be able to challenge the Board’s 

statutory jurisdiction at any time. 

Second, even if a small employer fails 

to complete a Statement of Position 

form, it will be able to challenge the 

eligibility of a particular individual at 

the polls. See amended § 102.66(d). 

Accordingly, we reject as mistaken 

comments such as the National Meat 

Association’s that argue that a small 

employer would waive ‘‘even objections 

to [statutory] jurisdiction’’ if they did 

not raise the issue in a Statement of 

Position. 

2. Faculty Managerial Cases 

ACE argues that the Board should 

exempt institutions of higher education 

from the Statement-of-Position and 

hearing time frames. As justification, 

ACE stresses the difficulty of adequately 

preparing in such a short period for a 

hearing to determine whether 

petitioned-for faculty are employees 

entitled to the protection of the NLRA 

or managers without Section 7 rights to 

organize and bargain collectively. ACE 

II. The Board declines to carve out a 

generalized exemption because the 

parties may be able to complete the 

Statement of Position form and 

adequately prepare for hearing in that 

time frame. For example, where the 

Board has previously found the faculty 

at issue to be statutory employees and 

the faculty are seeking to decertify the 

union currently representing them, the 

Board believes that the 7-day Statement 

of Position, 8-day hearing time frame 

would be appropriate. 

However, the Board recognizes that 

petitions concerning faculty may 

sometimes present unusually complex 

issues prompting regional directors on 

their own initiative—or upon a party’s 

motion—to set the opening of the 

hearing beyond the normal time frame. 

The legal test for determining the 

managerial status of college faculty 

involves consideration of ‘‘a long list of 

relevant factors’’ (LeMoyne-Owen 

College v. NLRB, 357 F.3d 55, 57 (D.C. 

Cir. 2004)); requires ‘‘an exacting 

analysis of the particular institution and 

faculty at issue * * * [which] is made 

more difficult by the fact * * * that the 

Act is not easily applied to labor 

relations in the university setting’’ 

(Point Park University v. NLRB, 457 

F.3d 42, 48 (D.C. Cir. 2006)); and has 

met with some criticism in recent years. 

See id. at 47–51; LeMoyne-Owen College 

v. NLRB, 357 F.3d at 57, 61. In addition, 

the nonpetitioner bears the burden of 

proving that the petitioned-for faculty 

are managers, and such cases typically 

involve large units. Accordingly, while 

the Board declines to carve out an 

exemption for all faculty managerial 

cases, the Board recognizes that cases 

involving numerous or complex factual 

or legal issues may require additional 

time and the rules provide a process by 

which the regional director on the 

director’s own initiative may grant more 

time as well as a process by which the 

parties themselves can request 

additional time. 

3. Construction Industry 

Some comments argue that the Board 

should exempt construction industry 

employers from the time frames 

governing the hearing and Statement of 

Position. For example, AGC appears to 

argue that there is no need to more 

expeditiously resolve questions 

concerning representation in the 

construction industry because, in 

contrast to typical representation cases, 

the petitioned-for construction industry 

unit may already be covered by a 

collective-bargaining agreement 

pursuant to Section 8(f) of the NLRA.334

The Board disagrees for several 

reasons that it should carve out an 

exemption for cases involving 

construction industry employers. By 

definition, AGC’s argument has no force 

whatsoever in those cases where the 

petitioned-for unit is not already 

covered by an 8(f) collective-bargaining 

agreement. Moreover, there are 

important reasons to expeditiously 

resolve questions concerning 

representation even in those cases 

where the petitioned-for employees are 

already covered by an 8(f) collectivebargaining agreement. Section 8(f) 

imposes no enforceable obligations in 

the absence of a collective-bargaining 

agreement. Allied Mechanical Services, 

Inc., 351 NLRB 79, 83 (2007), enforced, 

668 F.3d 758, 761, 771 (D.C. Cir. 2012). 

Accordingly, as soon as the 8(f) 

collective-bargaining agreement expires, 

the employer is free to unilaterally 

change the existing terms and 

conditions of employment and 

withdraw recognition from the union as 

the representative of its employees. By 

contrast, an employer that has a Section 

9(a) relationship with a union is 

obligated to maintain the status quo 

even after expiration of its collectivebargaining agreement. See American 

Automatic Sprinkler Systems, Inc. v. 

NLRB, 163 F.3d 209, 211, 214–15 (4th 


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335See also C.J.M. Services, Inc. II; Sundt 

Construction II; Knife River Materials. 

336As discussed above in connection with 

§ 102.62, that formula, commonly known as the 

Daniel/Steiny formula, provides that, in addition to 

those eligible to vote in Board conducted elections 

under the standard criteria (i.e., the bargaining unit 

employees currently employed), unit employees in 

the construction industry are eligible to vote if they 

have been employed for at least 30 days within the 

12 months preceding the eligibility date for the 

election and have not voluntarily quit or been 

discharged, or have had some employment in those 

12 months, have not quit or been discharged, and 

have been employed for at least 45 days within the 

24-month period immediately preceding the 

eligibility date. See Steiny & Co. Inc. (‘‘Steiny’’), 308 

NLRB 1323, 1326–27 (1992), and Daniel 

Construction Co., Inc. (‘‘Daniel’’), 133 NLRB 264, 

267 (1961), modified, 167 NLRB 1078, 1081 (1967). 

337Some comments, such as those filed by AGC 

also suggest that it will be difficult for construction 

industry employers to comply with the proposed 

time frames because they have decentralized 

workplaces. However, the Board is confident that, 

with modern methods of communication such as 

email, fax machines, and cell phones, the party 

responsible for responding to the Statement of 

Position can obtain the necessary information to 

complete the form in a timely manner 

notwithstanding the employer may operate at more 

than one location. For example, if the person 

responsible for completing the form needs records 

stored at a separate location, those records can be 

faxed (or scanned and then emailed) quickly. 

338See, e.g., AHA; AHA II; CHA II; Con-way; 

Testimony of Robert Garbini on behalf of NRMCA. 

Cir. 1998). In short, because a Section 

9(a) relationship provides much greater 

protection to the unit employees than a 

Section 8(f) relationship, a union and 

the unit employees it represents 

pursuant to Section 8(f) have ample 

reason to desire a prompt resolution of 

the union’s 9(a) status through a Boardconducted election. See M&M Backhoe 

Service, Inc. v. NLRB, 469 F.3d 1047, 

1048–50 (D.C. Cir. 2006). Similarly, 

employees already covered by an 8(f) 

collective-bargaining agreement may 

wish to rid themselves of union 

representation entirely or change their 

representative. Indeed, it may be 

especially important to expeditiously 

resolve questions concerning 

representation in the construction 

industry because construction industry 

work can be of short duration. 

In addition, the Board finds it highly 

significant that construction industry 

employers frequently perform services 

on a common job site alongside many 

other employers and groups of 

employees. The Board is all too aware 

of how quickly labor strife between one 

employer and a union on a common site 

can spill over and embroil neutral 

employers, employees, and the public. 

See, e.g., NLRB v. Denver Building & 

Construction Trades Council, 341 U.S. 

675, 677–80, 688–92 (1951); NLRB v. 

International Union of Elevator 

Constructors, 902 F.2d 1297, 1303–05 

(8th Cir. 1990). Accordingly, the Board 

is unable to conclude that the public has 

less of an interest in the expeditious 

resolution of questions concerning 

representation in construction industry 

cases than it does in cases arising 

outside the construction industry. 

Alternatively, AGC, AGC II, ABC, 

ABC II, and many others argue that the 

time frames are simply not feasible for 

construction industry employers 

because of the complexity of issues 

arising in that industry and the 

industry’s unique nature.335 For 

example, ABC argues that it will not be 

possible in the allotted time for them to 

produce the lists of employees in the 

petitioned-for unit and in their 

alternative units, because there is a 

special eligibility formula in the 

construction industry that requires 

analysis of 2-years worth of payroll 

records.336

The Board disagrees. As the comment 

filed by The Building and Construction 

Trades Department, AFL–CIO (BCTD) 

notes, the amendments do not require 

the employer to produce a preliminary 

Daniel/Steiny eligibility list as part of its 

Statement of Position. Instead, it need 

only produce lists of the individuals 

employed at the time the petition is 

filed, and the employer will have 7 days 

notice of the due date for the Statement 

of Position. In a contested case, an 

eligibility list complying with the 

Daniel/Steiny formula need only be 

produced 2 business days after an 

election is directed, which will be more 

than a week after service of the petition. 

ABC’s and AGC’s related comment— 

that they cannot produce the final voter 

list within the allotted time—is 

addressed in the sections dealing with 

the voter list issues generally. 

Comments, such as those filed by 

AGC and ABC, also argue that such an 

early hearing is not feasible because 

petitions involving construction 

industry employees present complex 

matters, such as the appropriate unit, 

disappearing and expanding units, craft 

issues, and the supervisory status of 

working foremen. However, as BCTD 

notes, Board precedent on these issues 

generally is long-standing and settled. 

Individual supervisory issues may end 

up being deferred, because, as discussed 

below in connection with §§ 102.64 and 

102.66, disputes concerning 

individuals’ eligibility to vote or 

inclusion in an appropriate unit 

ordinarily need not be litigated or 

resolved prior to the election. And the 

number and difficulty of the issues 

presented will vary from case to case. 

Thus, for example, the issues are likely 

to be fewer in cases where an incumbent 

union seeks to convert its relationship 

from 8(f) to 9(a).337 Accordingly, the 

Board disagrees that it should carve out 

a categorical exemption for all 

construction industry employers. 

4. Businesses Whose Owners or 

Employees Speak Foreign Languages 

CNLP comments that the time frames 

are unworkable in those cases where 

English is the not the primary language 

of the employer or the petitioned-for 

employees. We decline to carve out a 

categorical exemption for all such cases. 

Employers operating in the United 

States are subject to the laws of this 

country whether English is the owner’s 

primary language or not. Some business 

owners and employees can understand 

English even if English is not their 

primary language. Even if certain 

business owners do not understand 

English at all, they may have advisors or 

assistants who do. In any event, 

employers remain free to file motions 

for postponements based on their 

particular circumstances. Similarly, 

employers (and unions) remain free to 

request that Board notices and ballots be 

translated into foreign languages based 

on the needs of unit employees. 

Casehandling Manual Sections 11315. 

In short, the Board is confident that 

regional directors will continue to 

reasonably exercise their discretion to 

accommodate the language needs of the 

public. 

5. Other Industries 

A host of other comments argue that 

additional industries, such as the 

healthcare industry, require exemptions 

from the standard time frames, but they 

offer no persuasive justifications.338 For 

example, AHA complains that hospitals 

don’t have the capability to focus solely 

on the completion of the Statement of 

Position for an entire week, that the rule 

will place putative supervisors and unit 

members under a week of scrutiny, and 

that the accelerated time frames will 

distract from the employers’ primary 

goal of treating and caring for ill 

patients. However, they offer no 

specifics to support any of these 

assertions. For example, the comments 

do not show, and the Board does not 

believe, that hospitals will actually ask 

the medical professionals who provide 

direct patient care to complete the 

employee lists or decide what positions 

to take regarding a proposed bargaining 

unit. Nor does the Board believe that the 

Statement of Position and hearing will 

require an entire week of preparation 

that necessitates employer surveillance. 

The employer already knows what its 

employees do because it assigns those 

duties to them, and the employer 


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339ALFA argues that the time frames are 

unworkable if the petition is filed when a facility 

‘‘is in the middle of a state audit.’’ Suffice it to say 

that the Board believes that a small facility may be 

able to show special circumstances, and even 

extraordinary circumstances, for requesting a 

postponement of a pre-election hearing if the 

hearing were scheduled during a state audit that 

required the administrator’s attention, depending 

on the size and particular factors involved. 

340As discussed above in connection with 

§ 102.60, the Board has concluded that service of 

the description of representation case procedures 

will aid non-petitioning parties’ understanding of 

those procedures. 

341The NPRM proposed that the employer post 

the proposed Initial Notice (which the final rule 

retitles as the ‘‘Notice of Petition for Election’’) 

where notices to employees are ‘‘customarily 

posted,’’ and that the proposed final notice (which 

the final rule accordingly retitles as the ‘‘Notice of 

Election’’) be posted in ‘‘conspicuous places.’’ 79 

FR 7354, 7359. Upon reflection, the Board has 

concluded that to help ensure wide dissemination 

of the important information contained therein, the 

‘‘Notice of Petition for Election’’ should be posted 

‘‘in conspicuous places, including all places where 

notices to employees are customarily posted,’’ and 

amended § 102.63(a)(2) so provides. The Board has 

decided to use similar language in amended 

§ 102.67(k) to describe where the ‘‘Notice of 

Election’’ should be posted. 342AFL–CIO; SEIU; GAM. 

already knows their terms and 

conditions of employment because it 

established them. Indeed, AHA appears 

to take the position elsewhere in its 

comment that the Board’s healthcare 

rule (29 CFR 103.30) eases the parties’ 

task by setting forth the appropriate 

units for cases involving acute care 

hospitals.339

6. Decertification Cases 

The SEIU argues that an exception 

should be created for decertification 

cases, because, in essence, the interest 

in expedition is not as strong where an 

employer is free to withdraw 

recognition without having to go 

through the election process. The Board 

disagrees. The Act makes no distinction 

as to the importance of expedition in 

these two situations, and we decline to 

do so here. Although employer 

agreement—whether by voluntary 

recognition, or withdrawal of 

recognition, or even by procedural 

election agreements—can eliminate 

delay in the effectuation of NLRA 

policies, as discussed elsewhere, this 

does not alter the NLRA policy in favor 

of timely representation procedures 

where no such agreement is 

forthcoming. The Board takes seriously 

its responsibility to expeditiously 

resolve questions concerning 

representation in the decertification 

context just as in an initial organizing 

context. 

D. Mandatory Posting of Notice of 

Petition for Election 

The final rule adopts in amended 

§ 102.63(a)(1) the NPRM proposal that, 

along with the petition, notice of 

hearing, description of procedures in 

representation cases, and the Statement 

of Position form, the regional director 

will serve a revised version of the 

Board’s Form 5492, currently headed 

Notice to Employees, on the parties. 79 

FR 7328.340 The revised form will bear 

the heading ‘‘Notice of Petition for 

Election,’’ (rather than the proposed 

heading ‘‘Initial Notice to Employees of 

Election’’) to reflect that, as discussed 

below, although such petitions seek 

Board-conducted elections, elections do 

not necessarily occur in all cases after 

the filing of such petitions. It will 

specify that a petition has been filed, as 

well as the type of petition, the 

proposed unit, and the name of the 

petitioner; briefly describe the 

procedures that will follow, and, just as 

it does currently, it will list employee 

rights and set forth in understandable 

terms the central rules governing 

campaign conduct. The notice will also 

provide employees with the Board’s 

Web site address, through which they 

can obtain further information about the 

processing of petitions. Unlike current 

Form 5492, which has no posting 

requirement, the final rule requires 

employers to post the Notice of Petition 

for Election in conspicuous places, 

including all places where notices to 

employees are customarily posted,341

and employers who customarily 

communicate with their employees 

electronically will also be required to 

distribute the notice electronically. The 

final rule further requires that 

employers maintain the posting until 

the petition is dismissed or withdrawn 

or the Notice of Petition for Election is 

replaced by the Notice of Election. The 

Board has concluded that the Notice of 

Petition for Election will provide useful 

information and guidance to employees 

and the parties. 

Baker & McKenzie question how soon 

the employer must post the notice to 

comply with the proposed requirement 

that the Employer ‘‘immediately’’ post 

it. While we believe that most 

employers should be able to comply 

with this provision by posting the notice 

on the same day that it is received, the 

Board will not judge an employer to 

have failed to comply with this 

provision so long as the notice is posted 

within 2 business days of receipt, and, 

accordingly, the final rule states that the 

employer shall post the Notice of 

Petition for Election within 2 business 

days after service of the notice of 

hearing. We leave to future case by case 

adjudication whether some unforeseen 

set of factual circumstances might 

justify an employer taking a longer 

period of time to post the notice. 

Accordingly, amended § 102.63(a)(2) 

further provides that the employer’s 

failure properly to post or distribute the 

Notice of Petition for Election ‘‘may be’’ 

grounds for setting aside the election 

when proper and timely objections are 

filed. Just as is the case with respect to 

the election notice, a party may not 

object to the nonposting of notices if it 

is responsible for the nonposting, and 

likewise may not object to the 

nondistribution of the Notice of Petition 

for Election if it is responsible for the 

nondistribution. 

Baker & McKenzie also question 

whether an employer needs to 

electronically distribute the notice to all 

employees in the petitioned-for unit if 

the employer customarily 

communicates with only some of the 

employees through electronic means. If 

the employer customarily 

communicates with all the employees in 

the petitioned-for unit through 

electronic means, then the employer 

must distribute the Notice of Petition for 

Election electronically to the entire unit. 

If the employer customarily 

communicates with only some of the 

employees in the petitioned-for unit 

through electronic means, then the 

employer need only distribute the 

Notice of Petition for Election 

electronically to those employees. 

Few objections were expressed as to 

the merit of the mandatory posting 

requirement, and several comments 

emphasize the importance of timely 

informing employees of an impending 

representation proceeding and their 

related rights.342 Prompt posting of the 

Notice of Petition for Election will 

inform not only the employees whose 

representation is at issue but also the 

employer of the rights and protective 

requirements imposed by the NLRA in 

the representation context. Such posting 

will also assist employees in obtaining 

additional information on a timely 

basis. 

However, GAM expresses concern 

that the requirement to distribute the 

notice electronically if the employer 

customarily communicates with its 

employees electronically could lead to 

additional grounds for filing objections 

to the election and subsequent 

litigation. The possibility was also 

raised of unequal treatment of potential 

voters, since some will have electronic 

access and some will not. 

The Board recognizes that electronic 

distribution to employees does not, in 

itself, guarantee that all eligible voters 

will receive the Notice of Petition for 

Election. However, electronic 


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343The Chamber II notes that the District of 

Columbia Circuit and the Fourth Circuit struck 

down a Board rule requiring all employers subject 

to the NLRA to post a notice of employee rights in 

the workplace. The rule also noted that the failure 

to post could be found to be an unfair labor 

practice. 76 FR 54006 (August 30, 2011). The Board 

rejects any suggestion that the litigation over that 

rule calls into question the validity of the proposal 

to require an employer to post a notice upon the 

filing of a representation petition. As the text of 

amended § 102.63 makes clear, an employer will 

only be required to post the Notice of Petition for 

Election if it is the subject of a pending 

representation petition, and the failure to post the 

notice will not constitute an unfair labor practice. 

See Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 959 

n.19 (D.C. Cir. 2013) (‘‘Our conclusion here does 

not affect the Board’s rule requiring employers to 

post an election notice (which similarly contains 

information about employee rights) before a 

representation election[.] Because the failure to post 

the required election notice does not constitute an 

unfair labor practice but may be a basis for setting 

aside the election, see id. § 103.20(d) [of the Board’s 

prior rules], the rule does not implicate § 8(c).’’) 

overruled in part, American Meat Institute v. U.S. 

Dep’t of Agriculture, 760 F.3d 18, 22 (D.C. Cir. 

2014) (en banc). And the Fourth Circuit specifically 

distinguished the rule, which applied regardless of 

the pendency of an NLRA proceeding, from 

instances in which representation petitions have 

been filed with the Board. See Chamber of 

Commerce v. NLRB, 721 F.3d 152, 154, 156, 161, 

163 (4th Cir. 2013). 

344For much the same reasons, the Board 

likewise rejects the Chamber’s complaint that the 

Board should have included the proposed 

Statement of Position form in the NPRM. As 

discussed, the NPRM set forth at length the specific 

information that the proposed form would solicit. 

79 FR 7328–7329. Indeed, the Chamber concedes 

that ‘‘the substantive information to be supplied by 

the employer for the Statement of Position Form is 

described in the proposed amendments.’’ The 

numerous detailed comments that were submitted 

on the Statement of Position proposal belie any 

suggestion that the failure to provide the form itself 

in the NPRM deprived any party of the ability to 

comment on the proposal. The Board similarly 

rejects the Chamber’s additional complaint that the 

Board should have published the proposed 

description of representation case procedures in the 

NPRM. As the NPRM indicated, this description is 

a substitute for and an expanded version of Form 

4812—and serves to inform interested parties of 

their rights and obligations in relation to the 

representation proceeding. 79 FR 7326, 7328, 7329. 

Form 4812 was publicly available during the 

comment period. 

345Thus, Section 9(c)(1)(A) of the Act provides 

that the Board must provide for a hearing if it has 

‘‘reasonable cause to believe that a question of 

representation affecting commerce exists,’’ and that 

the Board must direct an election if it finds, based 

on the record of that hearing, that ‘‘such a question 

of representation exists.’’ 

346A proper petition cannot be filed under 

Section 9(c)(1) and a question of representation 

cannot arise under the Act unless the employees in 

the unit are employed by an employer covered by 

the Act. Thus, if any party contests the Board’s 

statutory jurisdiction or contends that the Board has 

declined to exercise its full, statutory jurisdiction 

over the employer, the regional director must 

resolve the resulting dispute based on the record of 

the pre-election hearing. A proper petition cannot 

be filed under Section 9(c)(1) and a question of 

representation cannot exist under the Act if there 

is a bar to an election, so the regional director must 

rule on the existence of a bar prior to directing an 

election if any party raises the issue. Similarly, a 

proper petition can be filed by ‘‘an employee or 

group of employees or any individual or labor 

organization.’’ Thus, if a petition is filed by an 

entity and any party contends that the entity is not 

a labor organization, the regional director must 

resolve the resulting dispute based on the record of 

the pre-election hearing. Moreover, the final rule 

ensures that the nonemployer parties will have the 

opportunity to present evidence on these issues 

even if the employer declines to take a position on 

them. Thus, amended § 102.66(b) makes clear that 

even if the employer declines to take a position on 

issues such as the appropriateness of a petitionedfor unit that is not presumptively appropriate, the 

regional director has discretion to direct the receipt 

of evidence concerning any issue, such as the 

appropriateness of the proposed unit, as to which 

the director determines that record evidence is 

necessary. 

347The hearing officer will retain authority to 

develop the record relevant to any such contention 

using the ordinary procedures already in use, which 

are designed to avoid burdening the record with 

unnecessary evidence. For example, current rules 

give the hearing officer discretion to require a party 

to make an offer of proof before admitting evidence. 

distribution will act in conjunction with 

the posting of paper notices in 

conspicuous places, including all places 

where notices to employees are 

customarily posted. Unless the 

employer can be shown to have 

departed from its customary practice in 

electronic distribution, there will be no 

basis for an objection and the 

requirement will only increase the 

desired flow of information to 

employees. 

ALFA suggests that the notice should 

warn employees that final decisions 

have not been made regarding the unit 

and whether an election will be 

conducted. The Board agrees that such 

warnings would accurately describe the 

reality when the regional director 

furnishes the notice to the employer for 

posting and distribution. Accordingly, 

the final rule provides in § 102.63(a)(2) 

that the Notice of Petition for Election 

shall indicate that no final decisions 

have been made yet regarding the 

appropriateness of the petitioned-for 

bargaining unit and whether an election 

shall be conducted. 

ALFA and the ACC complain that the 

Board should have included a copy of 

the proposed Notice in the NPRM to 

permit the public to comment on it. 

However, as discussed in the NPRM, it 

has long been the Board’s practice to ask 

the employer to voluntarily post a 

generic notice of employee rights—Form 

5492—upon the filing of a petition; the 

NPRM described how the Board 

proposed to modify the contents of that 

notice, such as by including a 

description of the proposed unit and the 

name of the petitioner (79 FR 7324, 

7328); and that notice was available to 

the public. Accordingly, the Board 

rejects any suggestion that the public 

was unable to comment on the proposal 

to require the employer to post a notice 

after the filing of a petition but before 

an election is agreed to by the parties or 

is directed by the regional director.343

As it has in the past, the Board will use 

due care in crafting the notices, the 

notices will be consistent with the 

regulations the agency has promulgated, 

and the notices will comply with all 

existing laws and regulations governing 

notices utilized by Federal agencies, 

including the Paperwork Reduction Act 

as separately analyzed. Should a party 

feel there is any error in a notice as 

promulgated, it can bring that to the 

attention of the Board.344

Sec. 102.64 Conduct of Hearing 

As explained in the NPRM, the 

proposed amendments to § 102.64 were 

intended to ensure that the pre-election 

hearing is conducted efficiently and is 

no longer than necessary to serve the 

statutory purpose of determining if there 

is a question of representation. 79 FR at 

7329. The final rule largely embodies 

the proposed amendments. 

In amended § 102.64(a), the Board 

expressly construes Section 9(c) of the 

Act, which specifies the purpose of the 

pre-election hearing. The statutory 

purpose of the pre-election hearing is to 

determine if there is a question of 

representation.345 A question of 

representation exists if a proper petition 

has been filed concerning a unit 

appropriate for the purpose of collective 

bargaining or concerning a unit in 

which an individual or labor 

organization has been certified or is 

being currently recognized by the 

employer as the bargaining 

representative.346 If the regional director 

concludes, based on the record created 

at the hearing, that such a question of 

representation exists, the regional 

director should direct an election in 

order to resolve the question.347

Amended § 102.64(a) makes clear 

that, as discussed in the NPRM (79 FR 

at 7322, 7329), resolution of disputes 

concerning the eligibility or inclusion of 

individual employees ordinarily is not 

necessary in order to determine if a 

question of representation exists, and 

therefore disputes concerning 

individual employees’ eligibility to vote 

and inclusion in the unit ordinarily 

need not be litigated or resolved before 

an election is conducted. Such disputes 

can be raised through challenges 

interposed during the election, if the 

disputed individuals cast a ballot, and 

such disputes can be both litigated and 

resolved, if necessary, post-election. The 

proposed rule provided in § 102.64(a) 

(79 FR at 7356): 

If, upon the record of the hearing, the 

regional director finds that such a question 


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348See also Section 11082.3 of the Casehandling 

Manual, which provides that parties should be 

advised ‘‘that the hearing, once commenced, will be 

conducted on consecutive days, until completed, 

unless the most compelling circumstances warrant 

otherwise.’’ 

of representation exists and there is no bar 

to an election, he shall direct an election to 

resolve the question and, subsequent to that 

election, unless specifically provided 

otherwise in these rules, resolve any disputes 

concerning the eligibility or inclusion of 

voters that might affect the results of the 

election. 

The final rule provides in § 102.64(a): 

Disputes concerning individuals’ eligibility 

to vote or inclusion in an appropriate unit 

ordinarily need not be litigated or resolved 

before an election is conducted. If, upon the 

record of the hearing, the regional director 

finds that a question of representation exists, 

the director shall direct an election to resolve 

the question. 

The change in language is due to the 

final rule not adopting the ‘‘20-percent 

rule’’ as discussed below in relation to 

§ 102.66. For that reason, the language, 

‘‘unless specifically provided otherwise 

in these rules,’’ has been removed. As 

more fully explained in relation to 

§ 102.66 below, the amendment 

expressly preserves the regional 

director’s discretion to resolve or not to 

resolve disputes concerning individuals’ 

eligibility to vote or inclusion in the 

unit until after the election. It also 

grants the hearing officer authority to 

exclude, at the regional director’s 

direction, evidence concerning such 

disputes on the grounds that such 

evidence is not relevant to the existence 

of a question of representation. In 

addition, because a question of 

representation cannot exist under the 

Act if there is a bar to an election, see, 

e.g., Deluxe Metal Furniture Co., 121 

NLRB 995, 1007 (1958) (contract bar); 

Randolph Metal Works, Inc., 147 NLRB 

973, 974–75 (1964) (election and 

contract bars); Seven Up Bottling Co., 

222 NLRB 278, 279 (1976) (certification 

bar), the Board has concluded that it is 

superfluous for the regulatory text to 

refer to both the existence of a question 

of representation and the absence of a 

bar. Accordingly, the final rule provides 

that if the regional director finds that a 

question of representation exists, the 

director shall direct an election to 

resolve the question. See Section 9(c)(1) 

of the Act (‘‘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.’’) 

The proposed rule provided in § 102.64 

(b) (79 FR 7356): 

Subject to the provisions of § 102.66 of this 

subpart, it shall be the duty of the hearing 

officer to inquire fully into all genuine 

disputes as to material facts in order 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. 

The final rule provides in § 102.64(b): 

Subject to the provisions of § 102.66 of this 

subpart, 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. 

The Board has removed the ‘‘genuine 

disputes as to material-facts’’ language 

drawn from Federal Rule of Civil 

Procedure 56 in order to avoid the 

confusion evident in some comments 

concerning the role of the hearing 

officer. Therefore, amended § 102.64(b) 

will provide, ‘‘Subject to the provisions 

of § 102.66 of this subpart, 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.’’ 

However, amended § 102.64(a) more 

clearly specifies the Board’s or regional 

director’s ‘‘duties under Section 9(c) of 

the Act,’’ and thus gives clear guidance 

to hearing officers concerning what 

evidence is and is not necessary to 

develop a ‘‘full and complete record’’ 

upon which the Board or regional 

director can discharge those duties. 

Few comments address the proposed 

amendments to § 102.64(a) and (b). 

Those that do, question our construction 

of Section 9(c) of the Act in § 102.64 on 

the grounds that litigation of disputes 

concerning individual employees’ 

eligibility to vote and inclusion in the 

unit should be permitted pre-election. 

These comments are addressed below in 

relation to § 102.66. 

The Board’s current rules provide that 

the hearing officer may, in the officer’s 

discretion, continue the hearing from 

day to day or adjourn it to a later date. 

Although, as noted above, there was a 

great deal of comment about the 

proposal to open the pre-election 

hearing 7 days from service of the notice 

absent special circumstances, there were 

few comments about the proposal that 

the hearing continue day to day until 

completed absent extraordinary 

circumstances. 79 FR at 7356. The AFL– 

CIO and AFSCME submitted comments 

in support of this change. The AFL–CIO 

argues that ‘‘[t]his requirement is critical 

because the current process, under 

which a 3-day hearing may extend over 

several weeks, presents opportunities 

for manipulating the timing of the 

election and maximizing the delay 

before any election is conducted.’’ 

AFSCME adds that the amendment 

should not be controversial and benefits 

all parties by injecting certainty into the 

election process. The AFL–CIO also 

points out that the proposed 

amendment would merely codify a 

‘‘best practice’’ listed in the General 

Counsel’s 1997 ‘‘Report of Best Practices 

Committee—Representation Cases.’’ 348

However, the AFL–CIO suggests that 

the Board should require parties to meet 

a stricter standard when seeking a 

continuance. Thus, the AFL–CIO 

suggests that instead of requiring that 

hearings be conducted on consecutive 

days ‘‘absent extraordinary 

circumstances,’’ the Board adopt the 

language ‘‘unless the most compelling 

circumstances warrant otherwise,’’ 

which is used in Section 11082.3 of the 

Board’s Casehandling Manual. In its 

reply to the AFL–CIO’s comment, the 

Chamber requests (Reply) at a minimum 

that the Board not abandon the 

‘‘extraordinary circumstances 

language.’’ However, the Chamber also 

urges the Board to temper the 

requirement of consecutive day 

hearings. Thus, it suggests that the 

Board merely require a moving party to 

demonstrate ‘‘good cause’’ for a 

hearing’s continuance. According to the 

Chamber (Reply), employers and their 

counsel will need to reschedule other 

matters in order to comply with the 7- 

day hearing and statement-of-position 

provisions, which will increase the 

chances of scheduling conflicts if the 

hearing runs more than 1 day. 

After careful consideration, the Board 

has decided to adopt the proposed 

amendment with one change in 

amended § 102.64(c) to make clear that 

the regional director, rather than the 

hearing officer, will make the 

determination in question. The Board 

concludes that continuing the preelection hearing from day to day until 

completed (absent extraordinary 

circumstances) will remove unnecessary 

barriers to the expeditious resolution of 

questions concerning representation 

because, absent an election agreement, 

the election that is designed to answer 

the question of representation cannot be 

held until the pre-election hearing is 

completed. Thus, eliminating 

unnecessary delay in concluding the 

pre-election hearing helps eliminate 

unnecessary delay in resolving 

questions of representation. The 

amendment also allows the Board, 

rather than the parties, to control the 

hearing schedule, and renders hearing 

scheduling more transparent and 

uniform across regions. 

The Board declines to adopt the 

Chamber’s suggestion—that the Board 

adopt a good-cause standard for granting 


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349The proposed amendment to § 102.64 (b) also 

omitted pre-existing language providing that the 

hearing officer also has discretion to adjourn the 

hearing ‘‘to a different place, by announcement 

thereof at the hearing or by other appropriate 

notice.’’ Upon reflection, the Board has decided to 

reject the proposed amendment, as hearings 

sometimes need to be relocated. However, 

consistent with the amendment vesting the regional 

director, rather than the hearing officer, with the 

authority to decide whether a hearing that requires 

more than a day to complete should continue day 

to day or whether it should be adjourned to a later 

date, the final rule also provides in amended 

§ 102.64(c) that the regional director has discretion 

to adjourn the hearing to a different location by 

appropriate notice. 

350For example, if a party enters into an 

agreement pursuant to § 102.62(c) of this subpart, 

providing for final regional determination of both 

pre- and post-election disputes, a party may not file 

a request for review of any regional director action. 

continuances—as largely being 

unnecessary in light of the final rule’s 

adoption of revised language in § 102.63 

regarding the scheduling of the preelection hearing and the changes to 

§ 102.64 and § 102.66 regarding the 

conduct of the hearing. As set forth in 

amended § 102.63, except in cases 

presenting unusually complex issues, 

the pre-election hearing will be 

scheduled to open 8 days from service 

of the notice, but parties may request 

that the hearing be postponed up to 2 

business days for special circumstances, 

and for more than 2 business days for 

extraordinary circumstances. Moreover, 

the amendments to § 102.64(a), 

clarifying the purpose of the hearing 

and that disputes concerning 

individuals’ eligibility to vote or 

inclusion in an appropriate unit 

ordinarily need not be litigated or 

resolved before an election is 

conducted, and the amendments to 

§§ 102.63 and 102.66, providing for 

Statements of Position and responses to 

the Statements of Positions, should 

serve to streamline the hearing, making 

it less likely that the hearing will 

continue over several days. 

The Board likewise declines to adopt 

the AFL–CIO’s suggestion. Once the 

hearing opens, the Board expects that 

the hearing will continue from day to 

day until completed. In the Board’s 

view, the ‘‘extraordinary circumstances’’ 

language does not differ significantly 

from the existing Casehandling Manual 

guidance of ‘‘the most compelling 

circumstances,’’ and in any event, is 

more widely used and easily understood 

by parties who are new to Board 

processes. 

However, the Board has concluded 

that just as the regional director is the 

one who decides when the pre-election 

hearing will open, the regional director, 

rather than the hearing officer, should 

be the one to decide whether a preelection hearing that requires more than 

1 day should continue day to day until 

completed or should be adjourned to a 

later date. Accordingly, amended 

§ 102.64(c) provides that the hearing 

will continue from day to day until 

completed unless the regional director 

concludes that extraordinary 

circumstances warrant otherwise.349

Sec. 102.65 Motions; Intervention; 

Appeals of Hearing Officer’s Rulings 

Consistent with the effort to avoid 

piecemeal appeals, the NPRM proposed 

to narrow the circumstances under 

which a request for special permission 

to appeal would be granted. More 

specifically, the NPRM proposed that 

such an appeal would only be granted 

under extraordinary circumstances 

when it appears that the issue will 

otherwise evade review. To further 

discourage piecemeal appeals, the 

NPRM proposed that a party need not 

seek special permission to appeal in 

order to preserve an issue for review 

post-election. Consistent with current 

practice, the NPRM provided that 

neither the filing of a request for special 

permission to appeal nor the grant of 

such a request would stay an election or 

any other action or require impounding 

of ballots unless specifically ordered by 

the Board. The NPRM also proposed 

that neither a regional director nor the 

Board would automatically delay any 

decision or action during the time 

permitted for filing motions for 

reconsideration, rehearing, or to reopen 

the record. 79 FR at 7329, 7356–7357. 

Upon reflection, the Board has 

decided not to adopt the proposed 

narrower standard to govern requests for 

special permission to appeal rulings of 

a hearing officer to the regional director. 

In the pre-election hearing, the hearing 

officer is developing a record upon 

which the regional director can make a 

decision. Moreover, the relation 

between hearing officers and regional 

directors is, in practice, more informal 

than that between a trial and appellate 

court or between a regional director and 

the Board, with hearing officers not 

infrequently seeking advice from the 

regional director during a hearing. For 

these reasons, the final rule does not 

apply the proposed narrower standard 

to requests for special permission to 

appeal rulings of hearing officers to the 

regional director. However, to 

discourage such piecemeal appeals, the 

final rule makes clear in amended 

§ 102.65(c) that a party need not seek 

special permission to appeal in order to 

preserve an issue for later. Consistent 

with current practice, the amendments 

provide that the filing of a request for 

special permission to appeal will not 

stay the proceedings unless otherwise 

ordered by the regional director. 

Consistent with the interpretation of 

Section 3(b) of the Act that our 

colleagues advanced in their dissent to 

the NPRM (79 FR at 7343 & n.108), the 

Board has also decided to substitute the 

request for review procedure, as 

modified as described below in 

connection with § 102.67, for the 

request for special permission to appeal 

procedure that the NPRM proposed to 

apply with respect to rulings made by 

the regional director prior to the close 

of a hearing in proceedings governed by 

Subpart C of Part 102. Accordingly, the 

Board has decided to amend §§ 102.65 

and 102.67 to clarify that any party may 

request Board review of any action 

taken by the regional director under to 

Section 3(b) of the Act except where the 

Board’s rules provide otherwise.350

Few comments were submitted on the 

proposed amendments to § 102.65. 

AHCA contends that the Board provides 

no examples of issues that would meet 

the standard for ‘‘otherwise evades 

review.’’ Constangy argues that limiting 

appeals to extraordinary circumstances, 

combined with preventing regional 

directors from staying proceedings to 

consider motions for reconsideration, 

will effectively result in the total 

preclusion of review of pre-election 

rulings, preventing appeal of legitimate 

disputes. AHCA and ALFA argue that 

special permission to appeal serves little 

purpose because it will not stay 

proceedings. The Board need not 

address these comments at length 

because, as shown, the Board is not 

adopting the proposed narrower 

standard to govern requests for special 

permission to appeal hearing officer 

rulings to the regional director; the 

Board likewise has rejected the 

proposed narrower standard to govern 

appeals (to the Board) of regional 

director rulings made prior to the close 

of the hearing; and, as discussed below 

in connection with § 102.67, the Board 

has decided to permit parties to request 

review of a regional director’s posthearing decision and direction of 

election prior to the election. Moreover, 

the final rule does not preclude the 

regional director or the Board from 

granting a stay. Rather the final rule 

merely provides in amended § 102.65(c) 

and amended § 102.67(c) that such 

filings will not result in an automatic 

stay. 

The final rule adopts the proposed 

amendments to § 102.65(e)(3). The 

Casehandling Manual provides in 

Section 11338.7 that a Board agent 

should exercise discretion in deciding 

whether to allow a vote under challenge 


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351Upon reflection, the Board has concluded that 

Board agents should have discretion to challenge 

individuals who are explicitly included in the 

direction of election when a party has filed a 

motion as set forth above instead of having to rely 

on the moving party. 

352Because as discussed below in connection 

with § 102.67, the Board has decided to eliminate 

the transfer procedure, the final rule also omits 

references to the transfer procedure that previously 

appeared in § 102.65. The final rule also omits the 

now outdated references to ‘‘carbon copies’’ in this 

and other sections, and provides that extra copies 

of electronically-filed papers need not be filed with 

the Board. These amendments update the Board’s 

representation case rules to reflect modern methods 

of communication. 

when a party claims that changed 

circumstances justify a challenge to 

voters specifically excluded, or 

included, by the decision and direction 

of election. Accordingly, the final rule 

adopts the proposal in the NPRM that if 

a motion for reconsideration based on 

changed circumstances or to reopen the 

record based on newly discovered 

evidence states with particularity that 

the granting thereof will affect the 

eligibility to vote of specific employees, 

the Board agent shall have discretion to 

allow such employees to vote subject to 

challenge even if they are specifically 

excluded in the direction of election 

and to challenge or to permit the 

moving party to challenge the ballots of 

such employees even if they are 

specifically included in the direction of 

election in any election conducted 

while such motion is pending.351

The final rule makes a few additional 

amendments to § 102.65. Under the 

Board’s prior rules, the regional director 

could rule on motions to intervene and 

to amend petitions or could refer such 

motions to the hearing officer. 29 CFR 

102.65(a), (b) (2010). As discussed 

below in connection with § 102.66, the 

Board received a number of comments 

criticizing the authority of the hearing 

officer at the pre-election hearing. Upon 

reflection, the Board has decided to 

amend § 102.65(a) and (b) to provide 

that the hearing officer shall rule on 

motions to intervene and to amend 

petitions only as directed by the 

regional director. Thus, the amendments 

make clear that it will be the regional 

director who decides whether a party 

may intervene and whether a petition 

may be amended. The final rule also 

moves a sentence about the record from 

§ 102.65(c) into amended § 102.65(a). 

The final rule’s other amendments to 

§ 102.65 conform the provisions of this 

section to the remainder of the 

amendments.352

The NPRM also proposed that any 

person desiring to intervene in a 

representation case be required to 

complete a Statement of Position. 79 FR 

7329, 7356. Upon reflection, the Board 

has decided to reject the proposed 

amendment. Intervention happens in a 

wide variety of circumstances and so 

regional directors should have 

discretion to follow the procedure that 

best facilitates development of the 

record in a particular case. 

Sec. 102.66 Introduction of Evidence: 

Rights of Parties at Hearing; Preclusion; 

Subpoenas; Oral Argument and Briefs 

In the NPRM, the Board proposed a 

number of amendments to § 102.66. The 

proposed amendments were designed to 

ensure that issues in dispute would be 

more promptly and clearly identified 

and that hearing officers could limit the 

evidence offered at the pre-election 

hearing to that which is necessary for 

the regional director to determine 

whether a question of representation 

exists. As explained below, the final 

rule adopts only some of the proposals. 

The NPRM proposed that hearing 

officers limit the evidence offered at 

hearings to that evidence which is 

relevant to a genuine dispute as to a 

material fact. The proposed 

amendments further provided that if, at 

any time during the hearing, the hearing 

officer determined that the only genuine 

issue remaining in dispute concerned 

the eligibility or inclusion of 

individuals who would constitute less 

than 20 percent of the unit if they were 

found to be eligible to vote, the hearing 

officer would close the hearing, and the 

director would permit those individuals 

to vote subject to challenge. 

The NPRM proposed that hearing 

officers would follow a specified 

process to identify relevant issues in 

dispute. Thus, the NPRM provided that 

the hearing officer would open the 

hearing by reviewing, or assisting nonpetitioning parties to complete, 

statements of position, and then would 

require the petitioner to respond to any 

issues raised in the statements of 

positions, thereby joining the issues. 

The NPRM further proposed that after 

the issues were joined, the hearing 

officer would require the parties to 

make offers of proof concerning any 

relevant issues in dispute, and would 

not proceed to take evidence unless the 

parties’ offers created a genuine dispute 

concerning a material fact. 

The Board proposed that a party 

would be precluded from raising any 

issue that it failed to raise in its timely 

statement of position or to place in 

dispute in response to another party’s 

statement, subject to specified 

exceptions. 

The Board proposed in the NPRM that 

parties be permitted to file post-hearing 

briefs only with the permission of the 

hearing officer. 

Finally, the NPRM proposed, 

consistent with existing practice, that a 

party that has been served with a 

subpoena may be required to file or 

orally present a motion to quash prior 

to the 5 days provided in Section 11(1) 

of the Act. 

A. Rights of Parties at Hearing; Disputes 

Concerning Less Than 20 Percent of the 

Unit 

Section 101.20(c) of the Board’s preNPRM Statement of Procedures 

provided in pertinent part, ‘‘The parties 

are afforded full opportunity [at the preelection hearing] to present their 

respective positions and to produce the 

significant facts in support of their 

contentions.’’ And the Board’s preNPRM rules provided in § 102.66(a): 

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. Witnesses shall be examined 

orally under oath. The rules of evidence 

prevailing in courts of law or equity shall not 

be controlling. Stipulations of fact may be 

introduced in evidence with respect to any 

issue. 

As discussed in more detail below, 

these provisions had been interpreted to 

give parties a right to produce evidence 

about issues that are not relevant to 

whether there is a question of 

representation. 

The NPRM proposed to eliminate 

§ 101.20 (and the rest of Subpart C of 

Part 101) and to amend § 102.66(a) to 

state as follows: 

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 relevant to any genuine 

dispute as to a material fact. The hearing 

officer shall identify such disputes as 

follows: 

* * * * * 

The Board also proposed to require the 

hearing officer to bar litigation of 

disputes concerning the eligibility or 

inclusion of individuals comprising less 

than 20-percent of the unit (the socalled ‘‘20-percent rule’’). Thus, 

§ 102.66(d) of the NPRM provided: 

(d) Disputes concerning less than 20 

percent of the unit. If at any time during the 

hearing, the hearing officer determines that 

the only issues remaining in dispute concern 

the eligibility or inclusion of individuals who 

would constitute less than 20 percent of the 


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353The NPRM also proposed in § 102.67(a) that 

‘‘[i]f the hearing officer has determined during the 

hearing, or the regional director determines after the 

hearing that the only issues remaining in dispute 

concern the eligibility or inclusion of individuals 

who would constitute less than 20 percent of the 

unit if they were found to be eligible to vote, the 

regional director shall direct that those individuals 

be permitted to vote subject to challenge.’’ 

354 In the proposed rule, the last two sentences 

were in a separate paragraph (e). 

355Although parties also have the right to litigate 

at the pre-election hearing whether an election is 

barred, the Board has concluded that it is not 

necessary to specify this in the regulatory text 

because a question of representation cannot exist 

under the Act if there is such a bar. Accordingly, 

evidence that is relevant to a bar is also relevant to 

the existence of a question of representation. 

356As discussed below, the final rule provides in 

amended § 102.66(c) that the regional director shall 

direct the hearing officer concerning the issues to 

be litigated at the hearing. 

357On the other hand, if the unit description 

expressly excludes professional employees, then no 

Sonotone balloting question would be presented, 

and the issue would not have to be addressed. If 

any party contends that an individual is a 

professional, and if the individual wishes to vote, 

he or she can be permitted to vote subject to 

challenge and the question can be resolved after the 

election. 

Although some comments similarly argue that the 

question of whether any employees in a unit 

containing non-guards are guards must be decided 

prior to the election, the Board disagrees. The Act 

does not require any special election procedures for 

guards equivalent to what Section 9(b)(1) requires 

unit if they were found to be eligible to vote, 

the hearing officer shall close the hearing.353

The proposed amendments were 

designed to maximize procedural 

efficiency by ensuring that hearing 

officers could limit the evidence offered 

at the pre-election hearing to that which 

is necessary for the regional director to 

determine whether a question of 

representation exists. As discussed in 

the NPRM, whether or not a particular 

individual falls within an appropriate 

unit and is eligible to vote is not 

ordinarily relevant to whether a 

question of representation exists. 79 FR 

at 7322. The NPRM expressed the 

Board’s ‘‘preliminary view * * * that 

deferring both the litigation and 

resolution of eligibility and inclusion 

questions affecting no more than 20 

percent of all eligible voters represents 

a reasonable balance of the public’s and 

parties’ interest in prompt resolution of 

questions concerning representation and 

employees’ interest in knowing 

precisely who will be in the unit should 

they choose to be represented.’’ 79 FR 

at 7331. 

As noted below in connection with 

Part 101, the final rule adopts the 

proposal to eliminate Subpart C of Part 

101, which contained § 101.20(c). The 

final rule also amends § 102.66(a) to 

provide: 

Any party shall have the right to appear at 

any hearing in person, by counsel, or by 

other representative, to call, examine, and 

cross-examine witnesses, and to introduce 

into the record evidence of the significant 

facts that support the party’s contentions and 

are relevant to the existence of a question of 

representation. The hearing officer shall also 

have power to call, examine, and crossexamine witnesses and to introduce into the 

record documentary and other evidence. 

Witnesses shall be examined orally under 

oath. The rules of evidence prevailing in 

courts of law or equity shall not be 

controlling. Stipulations of fact may be 

introduced in evidence with respect to any 

issue.354

Rather than the proposed standard 

‘‘genuine dispute as to a material fact,’’ 

the Board has adopted the standard 

‘‘significant facts that support the 

party’s contentions and are relevant to 

the existence of a question of 

representation.’’ The proposed standard, 

which had been borrowed from Federal 

Rule of Civil Procedure 56, suggested 

that the hearing officer would be 

responsible for summary judgment, 

which struck commenters as a signal 

that the hearing officer’s role would 

change in a way that was likely to pose 

administrative and statutory problems. 

The standard of ‘‘significant facts’’ 

adopted in the final rule comes from 

current 101.20(c), and preserves the 

hearing officer’s essential role. However, 

unlike current regulations, the final rule 

makes clear that the ‘‘significant facts’’ 

that support the party’s contentions 

must also be ‘‘relevant to the existence 

of a question of representation.’’ 355 As 

discussed below, paragraph (d) of 

proposed § 102.66 is deleted because the 

final rule does not adopt the 20-percent 

rule provisions, which would have 

required the hearing officer to exclude 

evidence regarding individual eligibility 

or inclusion issues involving less than 

20 percent of the unit (and the regional 

director to defer deciding individual 

eligibility or inclusion questions 

involving less than 20 percent of the 

unit and to vote such disputed 

individuals subject to challenge). See 79 

FR at 7332. 

The final rule’s amendment of 

§ 102.66(a) together with the 

modification of the language which 

previously appeared in § 101.20(c) 

removes the basis of the Board’s holding 

in Barre National, Inc., 316 NLRB 877 

(1995), that a hearing officer must 

permit full litigation of all eligibility 

issues in dispute prior to a direction of 

an election, even though the regional 

director and the Board need not resolve 

the issues prior to the election. Together 

with the amendment of § 102.64(a), the 

amendment of § 102.66(a) makes clear 

that, while the regional director must 

determine that a proposed unit is 

appropriate in order to find that a 

question of representation exists, the 

regional director can defer litigation of 

individual eligibility and inclusion 

issues that need not be decided before 

the election. 

In its comment, Baker & McKenzie 

questioned how a hearing officer would 

determine whether proffered evidence 

was relevant to voter eligibility or voter 

inclusion as opposed to unit 

appropriateness. The same question 

arises under current procedures when 

both the regional director and the Board 

defer ruling on eligibility or inclusion 

questions until after the election. Thus, 

existing case law in which both regional 

directors and the Board have deferred 

deciding individual eligibility and 

inclusion questions until after an 

election will provide considerable 

guidance to hearing officers and 

regional directors.356 Generally, 

individual eligibility and inclusion 

issues concern either (1) whether an 

individual or group is covered by the 

terms used to describe the unit, or (2) 

whether an individual or group is 

within a particular statutory exclusion 

and cannot be in the unit. For example, 

if the petition calls for a unit including 

‘‘production employees’’ and excluding 

the typical ‘‘professional employees, 

guards and supervisors as defined in the 

Act,’’ then the following would all be 

eligibility or inclusion questions: (1) 

Whether production foremen are 

supervisors, see, e.g., United States 

Gypsum Co., 111 NLRB 551, 552 (1955); 

(2) whether production employee Jane 

Doe is a supervisor, see, e.g., PECO 

Energy Co., 322 NLRB 1074, 1083 

(1997); (3) whether workers who 

perform quality control functions are 

production employees, see, e.g., Lundy 

Packing Co., 314 NLRB 1042 (1994); and 

(4) whether Joe Smith is a production 

employee, see, e.g., Allegany 

Aggregates, Inc., 327 NLRB 658 (1999). 

One exception concerns professional 

employees. The regional director must 

address whether there are any 

professional employees in an otherwise 

appropriate unit containing 

nonprofessionals. Under Section 9(b)(1) 

of the Act, any professionals in a unit 

containing both professional and 

nonprofessional employees must be 

given the choice of whether they wish 

to be represented in such a mixed unit. 

Because this requires special balloting 

procedures, see Sonotone Corp., 90 

NLRB 1236 (1950), the question of 

whether any employees included in the 

otherwise appropriate unit are 

professionals must be answered prior to 

the election.357 Similarly, if a party 


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for professionals. While Section 9(b)(3) precludes 

the Board from finding that a ‘‘mixed unit,’’ i.e., one 

containing both guards and nonguards, is 

appropriate, if any party contends that an 

individual in an otherwise appropriate unit of 

nonguards is a guard, the regional director can find 

the unit ‘‘excluding guards’’ appropriate and, if the 

individual attempts to cast a ballot, he or she can 

be permitted to vote subject to challenge and the 

question can be resolved after the election. 

358For example, in the entertainment industry, 

given that employees may work intermittently with 

no expectation of continued employment with a 

particular employer, the Board may apply a 

different eligibility standard. See Kansas City 

Repertory Theatre, Inc., 356 NLRB No. 28 (2010); 

see also Alaska Salmon Industry, 61 NLRB 1508, 

1511–12 (1945) (changing eligibility formula for 

seasonal industries). 

359See, e.g., ALG; Constangy; NGA II. Other 

comments argue generally that Section 9(c) requires 

the Board to conduct a pre-election hearing on 

issues concerning eligibility and inclusion. See 

GAM; AHA; ALFA; COLLE; CDW; Testimony of 

Homer Deakins on behalf of COLLE II. 

360Reliance on NLRB v. S.W. Evans & Son, 181 

F.2d 427 (3d Cir. 1950), by CDW is similarly 

mistaken. The Third Circuit expressly limited its 

holding to an interpretation of the extant regulatory 

language—in this case regulatory language from 

1945 which is long gone today. 181 F.2d at 429– 

430; see 10 FR 14498 et seq. (November 28, 1945). 

contends that, under Board precedent, 

an eligibility standard different than the 

Board’s ordinary standard 358 should be 

used, the hearing officer may take such 

evidence as may be necessary to resolve 

that question since its resolution is a 

prerequisite to the conduct of the 

election. 

Some comments on the proposed 

amendments argue that limiting 

evidence to that which is relevant to 

whether a question of representation 

exists is inconsistent with the statute’s 

requirement that, absent an election 

agreement, the Board must hold an 

‘‘appropriate hearing’’ prior to 

conducting an election.359 The Board 

disagrees. Section 9(c)(1) of the Act 

provides that the Board must provide 

for a hearing if it has ‘‘reasonable cause 

to believe that a question of 

representation affecting commerce 

exists,’’ and that the Board must direct 

an election if it finds, based on the 

record of that hearing, that ‘‘such a 

question of representation exists.’’ Thus, 

as explained above in relation to 

§ 102.64, the statutory purpose of the 

pre-election hearing is to determine 

whether a question of representation 

exists. The amendments to §§ 102.64(a) 

and 102.66(a) are entirely consistent 

with Section 9(c)’s requirement that ‘‘an 

appropriate hearing’’ be held before the 

election is conducted. The two 

amendments are consistent with Section 

9(c) because both permit parties to 

introduce evidence at the pre-election 

hearing that is relevant to whether a 

question of representation exists. 

Indeed, the amendment to § 102.66(a) 

expressly vests parties with a right to 

present evidence of the significant facts 

that support the party’s contentions and 

are relevant to the existence of a 

question of representation. Nothing in 

Section 9(c) or any other section of the 

Act requires the Board to permit parties 

to introduce evidence at a pre-election 

hearing that is not relevant to whether 

a question of representation exists. 

The final rule’s amendment of 

§§ 102.64(a) and 102.66(a) is also 

consistent with the final sentence of 

current § 102.64(a), which the final rule 

does not amend, though the sentence 

will now appear in § 102.64(b). That 

sentence provides that the hearing 

officer’s duty is ‘‘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.’’ (Emphasis added.) A 

hearing officer ensures ‘‘a full and 

complete record upon which the Board 

or the regional director may discharge 

their duties under Section 9(c) of the 

Act’’ when he or she permits parties to 

present evidence of significant facts 

relevant to the existence of a question of 

representation. The Board’s duty under 

Section 9(c) is to conduct a hearing to 

determine if a question of representation 

exists and, if such a question exists, to 

direct an election to answer the question 

and to certify the results. The final rule 

expressly allows the hearing officer to 

create a record permitting the regional 

director to do precisely that. 

In short, the effect of the amendments 

is simply to permit the hearing officer, 

acting at the behest of the regional 

director, to prevent the introduction of 

evidence that is not needed in order to 

determine if a question of representation 

exists. By definition, if the hearing 

officer excludes evidence that is not 

relevant to whether a question of 

representation exists, the hearing officer 

is not impeding the ability of the 

regional director or the Board to 

discharge their respective duties under 

Section 9(c) of the Act. 

SHRM, among others, cites BarreNational, Inc., 316 NLRB 877 (1995) for 

the proposition that both current rules 

and Section 9(c) of the statute compel 

litigation of these matters. The BarreNational Board cited both §§ 102.66(a) 

and 101.20(c) in holding that litigation 

was required. In support of its 

conclusions that the hearing officer 

erred by excluding the evidence and the 

regional director erred by permitting the 

disputed employees to vote subject to 

challenge, the Board quoted the portion 

of § 102.66(a), which then read: 

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. 

The Board also quoted the portion of 

§ 101.20(c), which then read: 

The parties are afforded full opportunity to 

present their respective positions and to 

produce the significant facts in support of 

their contentions. 

Based on its reading of those two 

provisions, the Board reasoned that, 

‘‘Section 102.66(a) of the Board’s Rules 

and Section 101.20(c) of the Board’s 

Statements of Procedure entitle parties 

at such hearings to present witnesses 

and documentary evidence in support of 

their positions.’’ 316 NLRB at 878. The 

Barre-National Board went on to hold 

that, ‘‘Under all the circumstances, the 

pre-election hearing held in this case 

did not meet the requirements of the Act 

and the Board’s rules and Statements of 

Procedures.’’ Id. Because of the use of 

the conjunctive ‘‘and’’ rather than the 

disjunctive ‘‘or’’ and the fact that 

nothing in Section 9(c) of the Act can 

possibly be understood to give parties a 

right to litigate questions of individual 

eligibility or inclusion prior to an 

election, as discussed further below, 

Barre-National cannot be read to rest on 

a construction of the Act. Rather, the 

Barre-National Board based its holding 

on its reading of §§ 102.66(a) and 

101.20(c). In light of the regulatory 

changes made today, that reliance is no 

longer relevant.360

In addition, as explained in the 

NPRM, the result in Barre-National is 

not administratively rational. The Board 

in that case recognized that an 

entitlement to litigate issues at the preelection hearing is distinct from any 

claim of entitlement to a decision on all 

issues litigated at the hearing, 

acknowledging that ‘‘reviewing courts 

have held that there is no general 

requirement that the Board decide all 

voter eligibility issues prior to an 

election.’’ Id. at 878 n.9. The Board has 

concluded that it serves no statutory or 

administrative purpose to require the 

hearing officer to permit pre-election 

litigation of issues that both the regional 

director and the Board are entitled to, 

and often do, defer deciding until after 

the election and that are often rendered 

moot by the election results. It serves no 

purpose to require the hearing officer at 

a pre-election hearing to permit parties 

to present evidence that relates to 

matters that need not be addressed in 

order for the hearing to fulfill its 

statutory function of creating a record 

upon which the regional director can 


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361 In this regard, the rules continue to require the 

hearing officer ‘‘to inquire fully into all matters and 

issues necessary to obtain a full and complete 

record.’’ § 102.64(b). 

362 Inland Empire held that the Board could hold 

the hearing after the election. This was changed by 

the Taft-Hartley amendments, as discussed. 

Notably, however, the language ‘‘appropriate 

hearing’’ was not changed, and thus Inland 

Empire’s discussion of the broad discretion given 

by the language remains relevant. Moreover, it 

should be noted that, in Inland Empire, the Board 

had ‘‘afforded the opportunity [to raise issues] in 

the proceedings to show cause held prior to the 

election,’’ but the parties ‘‘brought forward nothing 

which required [the Board] to hold a further hearing 

for the taking of evidence.’’ Id. at 708–709. The 

Court expressly declined to address whether this 

process ‘‘would have been adequate or 

‘appropriate.’ ’’ Id. 

363After the vote on the Taft-Hartley amendments 

in 1947, Senator Taft placed in the record a 

‘‘Supplementary Analysis of the Labor Bill as 

Passed.’’ 93 Cong. Rec. 6858, 6860 (June, 12, 1947). 

In that analysis, Senator Taft explained that the 

Conference Committee had revised the amendments 

of Section 9(c)(4) of the Act to eliminate a provision 

permitting ‘‘pre-hearing elections.’’ Id. at 6860. The 

Supplementary Analysis then stated, ‘‘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.’’ Id. (emphasis added). 

CDW cites to the language ‘‘decide questions of unit 

and eligibility to vote’’ as support, but the problems 

with this approach are manifest. First of all, this is 

the statement of a single legislator, made after the 

dispositive vote, describing a term that he expressly 

admits the Act does not change. This cannot be 

used to alter the meaning of the language. The same 

flaw applies to CDW’s discussion of still later 

legislative history of marginal relevance. Second, 

Senator Taft said ‘‘decide questions of unit and 

eligibility to vote’’—not ‘‘litigate’’—and where it is 

undisputed that the Board does not need to 

‘‘decide’’ the question, Senator Taft’s subsequent 

remarks cannot be read to compel litigation. 

364The United States Court of Appeals for the 

Second Circuit similarly held that ‘‘the 

determination of a unit’s composition need not be 

made before the election.’’ Sears, Roebuck & Co. v. 

NLRB, 957 F.2d 52, 55 (2d Cir. 1992). As stated in 

the NPRM, the Board has consistently sustained 

regional directors’ decisions to defer resolution of 

individual employees’ eligibility to vote until after 

an election (in which the disputed employees may 

cast challenged ballots). See, e.g., Sears, Roebuck, 

957 F.2d at 54–55. The Second Circuit has 

explained that the regional director has ‘‘the 

prerogative of withholding a determination of the 

unit placement of [a classification] of employees 

until after the election.’’ Id. at 56. In Northeast Iowa 

Telephone Co., 341 NLRB 670, 671 (2004), the 

Board characterized this procedure as the ‘‘triedand-true ‘vote under challenge procedure.’ ’’ See 

also HeartShare Human Services of New York, Inc., 

320 NLRB 1 (1995), enforced, 108 F.3d 467 (2d Cir. 

1997). Even when a regional director resolves such 

a dispute pre-election, the Board, when a request 

for review is filed, often defers review of the 

resolution, permitting the disputed individuals to 

vote subject to challenge. See, e.g., Silver Cross 

Hospital, 350 NLRB 114, 116 n.10 (2007); Medlar 

Elec., Inc., 337 NLRB 796, 796 (2002); Interstate 

Warehousing of Ohio, LLC, 333 NLRB 682, 682–83 

(2001); Orson E. Coe Pontiac-GMC Truck, Inc., 328 

NLRB 688, 688 n.1 (1999); American Standard, Inc., 

237 NLRB 45, 45 (1978). 

365Again, as noted above, the legislative history 

of the 1947 amendments shows that Congress did 

not intend to require the Board to allow litigation 

of voter eligibility matters prior to conducting 

elections. 

366See generally Testimony of Roger King on 

behalf of SHRM II regarding which issues should 

be litigated at the pre-election hearing (‘‘Yes, there 

is maneuvering on both sides. We all know that. 

Good lawyers use procedures to their clients’ 

advantage. You could call it delay. I don’t agree 

with that. My union colleagues take every 

advantage of the blocking charge procedure. That’s 

their right at this point.’’). 

367See AFT; IBEW; LIUNA. 

determine if a question of representation 

exists. In other words, it is 

administratively irrational to require the 

hearing officer to permit the 

introduction of irrelevant evidence. The 

final rule eliminates such wholly 

unnecessary litigation that serves as a 

barrier to the expeditious resolution of 

questions of representation. 

Thus, the central question is whether 

Congress intended that the term 

‘‘appropriate hearing’’ in Section 9(c) 

compel pre-election litigation of matters 

that would not be decided before the 

election—and likely would never need 

to be decided by the regional director. 

Commenters, most notably CDW II, 

argue that the answer is yes. We 

disagree. 

The term ‘‘appropriate hearing’’ 

comes from the original 1935 Wagner 

Act. As stated by the Supreme Court: 

‘‘The section is short. Its terms are broad 

and general * * *. Obviously great 

latitude concerning procedural details is 

contemplated.’’ Inland Empire Council 

v. Millis, 325 U.S. 697, 706–710 (1945). 

Although the hearing should provide 

parties a ‘‘full and adequate opportunity 

to present their objections,’’ 361 nothing 

in Inland Empire suggests that the Board 

must give a hearing to matters which 

will not be decided. To the contrary, the 

phrase ‘‘an appropriate hearing’’ was 

intended to ‘‘confer[] broad discretion 

upon the Board as to the hearing 

[required],’’ so as to avoid unnecessary 

litigation delays. Id.362 In 1947, when 

Congress revised the Act to ensure that 

a hearing was held before the election, 

it left this essential language intact.363

Despite the many comments on this 

matter, no one has identified any case 

in any legal or administrative context in 

which litigation was required regarding 

issues that were not being decided— 

except Barre-National. 

Even assuming that the BarreNational Board did look to Section 

9(c)—a point previously debated at 

length, see 76 FR 80165; 77 FR 25550– 

51; 77 FR 25562–63—the statutory 

analysis in Barre-National is essentially 

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 its 

supposed interpretation of the statute. 

On the contrary, the Board, for the 

reasons discussed above, believes that 

the legislative history shows the Board 

is not required to allow pre-election 

litigation of issues that will not be 

decided pre-election. It is beyond 

dispute that ‘‘reviewing courts have 

held that there is no general 

requirement that the Board decide all 

voter eligibility issues prior to an 

election.’’ Barre-National, 316 NLRB at 

878 n.9. Put plainly, ‘‘deferring the 

question of voter eligibility until after an 

election is an accepted NLRB practice.’’ 

Bituma Corp. v. NLRB, 23 F.3d 1432, 

1436 (8th Cir. 1994).364 This has been so 

since the early days of the Act. Brown 

& Sharp Mfg., 70 NLRB 709, 709 (1946); 

Humble Oil, 53 NLRB 116, 126 (1943). 

As the Supreme Court expressly held in 

NLRB v. AJ Tower Co., 329 U.S. 324, 

330–35 (1946), the Board has authority 

to resolve voter eligibility through the 

election-day challenge procedure.365 As 

discussed below in relation to the 

rejected ‘‘20-percent rule,’’ this rule 

does not change which issues will be 

decided. 

Therefore, in light of the broad 

discretion accorded by Section 9, and 

the express purpose of ensuring that 

litigation does not unnecessarily delay 

the proceeding, we do not find the 

interpretation of Section 9(c) posited by 

SHRM and CDW, or that of the BarreNational Board, to be persuasive. In our 

considered view, Section 9 does not 

give parties a right to litigate questions 

of individual eligibility or inclusion at 

the pre-election hearing if the regional 

director will not decide those questions 

prior to the election. For these reasons, 

the Board hereby overrules BarreNational, together with cases resting 

solely upon its holding such as North 

Manchester Foundry, Inc., 328 NLRB 

372 (1999). 

The Board also concludes that 

without clear regulatory language giving 

the regional director authority to limit 

the presentation of evidence to that 

relevant to the existence of a question of 

representation, the possibility of using 

unnecessary litigation to gain strategic 

advantage exists in every case.366 That 

specter, sometimes articulated as an 

express threat according to some 

comments,367 hangs over all 

negotiations of pre-election agreements. 

In other words, bargaining takes place in 

the shadow of the law, and so long as 

the law, as embodied in the Board’s 


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368See CWA II; BCTD; Testimony of Brenda 

Crawford II; UNAC/UHCP II. 

369Some commenters challenge the premise that 

litigation of individual eligibility issues causes 

delay. For example, Homer Deakins testified on 

behalf of COLLE II that he could count on one hand 

the number of times a hearing has gone into the 

second day because of litigation of a supervisory 

issue. However, even if in some cases litigation of 

an individual eligibility issue would not add an 

extra day or days to the pre-election hearing, we are 

not persuaded that such litigation would not 

unnecessarily delay the election in those cases. 

After all, as shown, during the last decade it has 

taken regional directors a median of 20 days to 

issue their decisions following a pre-election 

hearing. Moreover, litigation of irrelevant issues 

that the regional director need not resolve imposes 

unnecessary costs on the parties and the 

government. 

370 In addition, post-election litigation of these 

challenges will only take place where the 

proponent of the challenge is winning after the 

unchallenged ballots are tallied—otherwise the 

challenge can simply be withdrawn. This should 

result in mooting about half of the remaining 

litigation, even in those cases where the vote 

margin is narrow. Thus, at most, only 15% of 

deferred issues will ever have to be addressed. 

To be clear, the union win rate is irrelevant 

because both unions and employers could be 

contesting the relevant matters. We also wish to 

emphasize that this does not mean that 15% of all 

elections will have outcome determinative 

challenges: This is the maximum number reached 

by assuming that every election will defer 20% of 

voter eligibility questions. In reality, the vast 

majority of cases will involve far fewer such 

disputes, either because they are resolved by 

stipulation or because they are never contested at 

the pre-election hearing. 

371 In this regard we reject the testimony of 

Elizabeth Milito on behalf of NFIB II who claimed 

that the Board should abandon the 20% rule 

because many small business owners would 

‘‘concede defeat’’ and not be able to afford to litigate 

deferred individual eligibility issues in a postelection hearing. As shown, deferring individual 

eligibility issues should reduce pre-election costs 

for all parties participating in pre-election 

hearings—including small employers—and in the 

vast majority of cases, there should never be a need 

to incur the extra costs of a post-election proceeding 

to determine the individual’s eligibility to vote 

because the ballots cast by individuals permitted to 

vote subject to challenge are likely to be 

nondeterminative. In any event, the final rule grants 

discretion to the regional director to permit the 

litigation of individual eligibility issues, and parties 

are free to make whatever arguments they wish as 

to why the director should do so. 

regulations, does not limit parties to 

presenting evidence relevant to the 

existence of a question of 

representation, some parties will use the 

threat of protracted litigation to extract 

concessions concerning the election 

details, such as the date, time, and type 

of election, as well as the definition of 

the unit itself. Comments by the UFCW, 

LIUNA, AFT, NELP, and Retired Field 

Examiner Michael D. Pearson all point 

to the impact of that specter of 

unnecessary litigation on negotiations of 

pre-election agreements. Some 

commenters specifically stressed that 

the current rules have the effect of 

disenfranchising statutory employees. 

According to these commenters, instead 

of resolving bargaining unit issues on 

their merits, election agreements are 

driven by the threat of a hearing devoted 

to the litigation of unnecessary 

issues.368

The temptation to use the threat of 

unnecessary litigation to gain such 

strategic advantage is heightened by 

both the right under the current rules to 

take up to 7 days to file a post-hearing 

brief (with permissive extensions by 

hearing officers of up to 14 additional 

days) and the 25-day waiting period, 

both of which are triggered 

automatically when a case proceeds to 

hearing. Every experienced participant 

in the Board’s representation 

proceedings who wishes to delay the 

election in order to gain strategic 

advantage knows that under the current 

rules, once the hearing opens, at least 32 

days (7 days after the close of the 

hearing and 25 days after a decision and 

direction of election) will pass before 

the election can be conducted. The 

incentive to insist on presenting 

evidence, even though there are no 

disputes as to facts relevant to the 

existence of a question of 

representation, is thus not simply the 

delay occasioned by the hearing 

process, but also the additional 

mandatory 32-day delay, not to mention 

the amount of time it will take the 

regional director to review the hearing 

transcript and write a decision—a task 

that has added a median of 20 days to 

the process over the past decade. 

Accordingly, the bargaining units and 

election details agreed upon in the more 

than 90% of representation elections 

that are currently conducted without 

pre-election litigation are 

unquestionably influenced by the 

parties’ expectations concerning what 

would transpire if either side insisted 

upon pre-election litigation. 

Of course, distinct aspects of the final 

rule eliminate the 25-day waiting period 

and the default position of allowing 7 

and up to an additional 14 days to file 

a post-hearing brief. Yet in the Board’s 

preliminary view at the NPRM stage (79 

FR 7331), even without these collateral 

delays, there remained no persuasive 

reason to allow parties to lengthen the 

hearing and decisional process by 

unnecessarily litigating individual 

eligibility issues that are not relevant to 

the question concerning 

representation.369 We did not, and do 

not, view permitting the litigation of 

individual eligibility issues as a costfree proposition. Every non-essential 

piece of evidence that is adduced adds 

time that the parties and the Board’s 

hearing officer must spend at the 

hearing, and simultaneously lengthens 

and complicates the transcript that the 

regional director must analyze in order 

to issue a decision. The Board expects 

that if irrelevant litigation at the preelection hearing were reduced, then not 

only would hearings be shorter (with 

attendant savings to the parties), but 

also that regional directors would 

correspondingly have to spend less time 

writing pre-election decisions, and be 

able to issue those decisions in less time 

than the current 20-day median. Thus, 

the Board viewed its mandatory 

proposal of barring litigation or 

resolution of individual eligibility 

issues regarding less than 20% of a 

petitioned-for unit as an overall benefit 

to agency efficiency, in addition to 

being a reasonable balance of the 

public’s and parties’ interest in prompt 

resolution of questions concerning 

representation and in employees’ 

interest in knowing who would be in 

the unit should they choose to be 

represented. 

There is certainly reason to believe 

that the 20% figure proposed in the 

NPRM—and upon which the Board has 

historically relied in terms of deferring 

resolution of individual eligibility 

issues—is indeed an administratively 

appropriate balance. For example, more 

than 70% of elections in FY 2013 were 

decided by a margin greater than 20% 

of all unit employees, suggesting that 

deferral of up to 20% of potential voters 

in those cases (and thus allowing up to 

20% of the potential bargaining unit to 

vote via challenged ballots, segregated 

from their coworkers’ ballots) would not 

have compromised the Board’s ability to 

immediately determine election results 

in the vast majority of cases.370 Thus, 

had any thorny litigation issues 

concerning individual eligibility been 

deferred in those cases, it would likely 

have saved significant party and agency 

resources in that the pre-election 

hearings would have been shorter, the 

director’s decisions issued quicker and 

with less effort, and the representation 

dispute resolved sooner, all without 

necessitating another post-election 

hearing to resolve those issues because 

they would have been proven by the 

tally of ballots to be non-determinative 

of the election outcome. And in the 

comparatively smaller percentage of 

cases in which the election margin 

required resolution of the challenged 

voters’ ballots, the regional director 

could have committed resources to 

developing and analyzing the relevant 

evidence in a post-election hearing with 

full confidence that the effort would not 

be wasted.371


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372 Keeping discretion in the hands of the regional 

directors is sensible in that it is the directors who 

are responsible for issuing decisions and directions 

of elections following pre-election hearings, and it 

is directors who directly supervise the hearing 

officers in their conduct of the hearings. Moreover, 

under the final rule it is the directors who must 

resolve determinative challenges. 

373The effect of our decision to reject the 

proposed 20-percent rule coupled with the 

amendments leaving to the director’s discretion 

whether to defer litigation and resolution of 

individual eligibility or inclusion issues until after 

the election, means that the final rule does not 

establish any bright-line ceiling beyond which 

litigation and resolution of individual eligibility or 

inclusion issues cannot be deferred. We note, 

however, that the Board has uniformly held that a 

change affecting no more than 20 percent of the unit 

does not require a new election. On occasion, the 

Board has also permitted regional directors to defer 

resolution of the eligibility of an even higher 

percentage of potential voters, though we have 

recognized that allowing 25 percent of the 

electorate to vote subject to challenge is not 

optimal. See, e.g., cases cited at 79 FR at 7331& 

n.54. We are confident that directors will consider 

that precedent in exercising their discretion under 

the final rule, and strongly believe that regional 

directors’ discretion would be exercised wisely if 

regional directors typically chose not to expend 

resources on pre-election eligibility and inclusion 

issues amounting to less than 20 percent of the 

proposed unit. And, as with any other issue that 

comes before us, we will consider relevant case 

precedent in evaluating the merits of objections to 

the regional director’s direction of election, the 

regional director’s conduct of the election or the 

hearing officer’s handling of the pre-election 

hearing. We would further expect regional directors 

to typically exercise their discretion in favor of 

approving parties’ stipulated election agreements in 

which up to 20% of the unit is to be voted under 

challenge. 

374See, e.g., Seyfarth Shaw; COSE; Indiana 

Chamber; U.S. Poultry II; CDW II. SHRM also 

suggests that deferring resolution of supervisory 

status questions might somehow threaten attorneyclient communications if counsel communicates 

with an individual the employer believes is a 

supervisor who is later held not to be a supervisor. 

This same concern exists under the current 

procedures as explained above. Moreover, the test 

the Board uses to determine who is a supervisor 

under the Act is not and need not be the same as 

the various tests used to determine if attorney 

communications to an individual employed by the 

attorney’s client are privileged. 

375See, e.g., PIA. 

376See, e.g., Testimony of Michael Lotito on 

behalf of IFA II; AEM II; GAM; Constangy; NRF; 

Baker & McKenzie. IBEW, in contrast, states that, 

in its experience, employee voters are motivated 

primarily by whether they desire representation and 

not by precisely which employees will be in the 

unit. See also Testimony of Gina Cooper on behalf 

of IBEW II (‘‘My experience is that employees are 

voting for union representation and the unit issue 

never comes into their decision.’’) 

377See, e.g., Associated Oregon Industries; COSE; 

Seyfarth Shaw; Kuryakyn; John Deere Water. 

378See, e.g., NGA II; Leading Age II; SHRM; ACE; 

AHA. 

379See, e.g., SHRM II; Pinnacle Health Systems; 

Arizona Hospital and Healthcare Association. 

380See, e.g., LRI; Anchor Planning Group; 

Bluegrass Institute. 

381See, e.g., Seyfarth Shaw; ACE; Sheppard 

Mullin II. 

Nevertheless, the Board is mindful 

that a one-size-fits-all approach may not 

be the most desirable or necessary 

method to accomplish the gains in 

efficiency sought by the proposed 20- 

percent rule. Specifically, the changes to 

102.64 and 102.66(a) provide regional 

directors with the tools to defer 

unnecessary litigation, and it may 

produce a better outcome on a case-bycase basis if regional directors retain 

discretion to apply those tools or to 

provide for litigation and resolution of 

discrete issues as the regional directors 

deem appropriate.372 For example, the 

regional director may be able to quickly 

discern that certain eligibility issues— 

presented by the parties in their offers 

of proof—could be quickly and easily 

disposed of, in which case little would 

be gained from deferring the issue. 

Moreover, given the mandatory 

language of the proposed 20-percent 

rule, parties could argue that elections 

should be set aside based solely on the 

ground that the hearing officer and 

director made a minor computational 

error in concluding that the individual 

eligibility or inclusion issues they were 

deferring involved less than 20 percent 

of the unit. In our view, having to set 

aside elections merely because of 

computational errors (such as deferral of 

individual eligibility questions 

involving 21—rather than 20—percent) 

would be particularly unfortunate when 

the addition of the disputed employees 

to the unit would not be unfair to the 

voters (because it would not materially 

change the character or scope of the 

unit). We further conclude that the 

mandatory proposal could perversely 

encourage parties to raise frivolous 

individual eligibility issues that they 

otherwise would not have raised just so 

the 20-percent ceiling was breached. 

Accordingly, the Board has decided to 

preserve the discretion that regional 

directors enjoyed even before the NPRM 

to defer resolving disputes concerning 

individuals’ eligibility to vote or 

inclusion in the unit until after the 

election or to decide such disputes 

before the election in the decision and 

direction of election. In the final rule, 

rather than require hearing officers to 

bar parties from introducing evidence 

regarding individual eligibility or 

inclusion issues involving less than 20 

percent of the unit, the Board has 

decided to grant hearing officers the 

authority, on the instruction of the 

regional director, to exclude evidence 

concerning such disputes. However, the 

regional director is free to direct that 

such evidence be admitted if the 

director resolves to decide prior to the 

election the individual eligibility 

questions at issue, or if the director is 

uncertain about whether to decide an 

issue. In sum, while we continue to 

believe that individual eligibility 

disputes ordinarily need not be litigated 

at the pre-election hearing or resolved in 

a direction of election, we no longer 

adhere to the preliminary view 

expressed in the NPRM that adoption of 

a bright-line, mandatory 20-percent 

deferral rule best serves the interests of 

the parties and the employees as well as 

the public interest in the effective 

administration of the representation 

case process.373

Several comments criticize the 

proposed 20-percent rule on policy 

grounds. For example, some comments 

argue that it is unfair to defer resolution 

of supervisory status questions, because 

employers need to know who their 

supervisors are so they know who they 

can require to campaign against 

employee representation.374 Similarly, 

comments argue that employers need to 

know which employees are eligible to 

vote so they know whom to address 

concerning the question of 

representation.375 Numerous comments 

additionally express the position that 

deferral of eligibility questions under 

the 20-percent rule would impair 

employee rights. More specifically, 

many comments assert that deferral 

would deprive employees of knowledge 

about the precise parameters of the 

bargaining unit, thereby depriving them 

of the right to cast an informed ballot376

or impeding their ability to determine 

whether they share a community of 

interest with the other voters.377

Similarly, a number of comments 

express the view that deferral of 

eligibility issues would engender 

confusion among the voting 

employees.378 Other comments 

generally suggest that the deferral of 

eligibility issues would increase the 

likelihood that disputed individuals 

would refrain from voting in an 

election. For example, a number of 

comments express the position that 

employees, faced with the prospect of 

having their votes challenged, might 

simply refrain from voting,379 some as a 

result of a concern that–particularly in 

smaller units–they could be easily 

identified as the individuals whose 

votes determined the outcome of the 

election.380 Finally, with respect to the 

deferral of supervisory status questions, 

several comments generally express 

concern that employees with disputed 

supervisory status would not know 

whether they could appropriately speak 

in favor of or against union 

representation, attend union meetings, 

or sign authorization cards,381 and 

SHRM asserts that employees would be 


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382To be sure, it is not the purpose of the preelection hearing to determine employers’ 

spokespersons in the ongoing representation 

campaign. 

383See, e.g., McAlester General Hospital, 233 

NLRB 589, 589–90 (1977) (noting that even without 

considering employees whose supervisory status 

was in dispute, employer employed one supervisor 

for every eight unit employees and, if the employer 

filled open supervisory positions, it would employ 

one supervisor for every three unit employees). 

384Additionally, as the AFL–CIO II points out in 

its reply comment, the extant period of uncertainty 

under the current rules is extended still further 

when employers begin their campaigns—as they 

often do—prior to a petition’s filing. 

385FMI II and INDA II, among others, express 

concern that if an alleged supervisor is permitted 

to vote subject to challenge, the results of the 

election might be set aside pursuant to an objection 

citing the presence of a supervisor in the polling 

area if the individual is found to be a supervisor 

after a post-election hearing. As explained above, 

this scenario can arise under the current 

procedures. See, e.g., Sorenson Lighted Controls, 

286 NLRB 969, 989 (1987). The Board is not aware 

of any case holding such conduct per se 

objectionable under these circumstances, and the 

existence of the new rules would be a factor the 

Board would consider if such an objection arises in 

the future. 

chilled in the exercise of their Section 

7 and First Amendment rights. 

However, in this final rule the Board 

has determined not to adopt the 20- 

percent rule, but rather, to retain the 

existing discretion of regional directors 

to defer deciding such questions until 

after the election. Prior to the 

amendments, regional directors were 

free to decide individual eligibility and 

inclusion questions prior to the election 

if they wished to do so or to defer such 

decisions until after the election and 

direct that disputed individuals vote 

subject to challenge. The same is true 

under the final rule. Although the 

amendments permit the hearing officer, 

at the direction of the regional director, 

to exclude evidence that is not relevant 

to determining whether a question of 

representation exists—and thereby 

permit the hearing officer to exclude 

evidence regarding some eligibility and 

inclusion questions—the regional 

director is free to direct that such 

evidence be admitted if the director 

resolves to consider the eligibility 

questions at issue. 

In any event, the Board is not 

persuaded by the policy argument that 

it should permit litigation of all 

individual supervisory status 

questions—even though such questions 

are ordinarily irrelevant to the statutory 

purpose of the hearing—on the 

grounds that resolution of such 

questions is necessary for an employer 

to effectively campaign against union 

representation. 382 Most fundamentally, 

while the question of whether particular 

individuals are supervisors as defined 

in the Act has generated considerable 

litigation, the question exists only at the 

margin. In the Board’s experience, in 

virtually every case, even where there is 

uncertainty concerning the supervisory 

status of one or more individual 

employees, the employer nevertheless 

has in its employ managers and 

supervisors whose status is not disputed 

and is undisputable.383

The policy argument contained in 

these comments is also based on a set 

of faulty premises. First, as explained 

above and in the NPRM, employers have 

no right to a pre-election decision 

concerning individual eligibility under 

the current rules. Second, even under 

the current rules, a regional director 

cannot issue a decision on any 

eligibility question until well after the 

filing of the petition because a hearing 

must be noticed (no sooner than 5 

business days after the notice), the 

hearing must be completed, and the 

regional director must issue a decision. 

Thus, even where the regional director 

resolves the individual eligibility issue 

in the decision and direction of election, 

the employer will not have the benefit 

of the decision for a substantial part of 

any campaign, including a substantial 

part of the ‘‘critical period’’ between the 

filing of the petition and the election.384

Third, under the current rules, even if 

the regional director issues a decision 

concerning an individual eligibility 

question, the decision is subject to a 

request for review by the Board. The 

Board rarely rules on such requests until 

shortly before the election and, 

sometimes, not until after the election. 

See, e.g., Mercedes-Benz of Anaheim, 

Case 21–RC–21275 (May 18, 2011) (day 

before the election); Caritas Carney 

Hospital, Case 1–RC–22525 (May 18, 

2011) (after the election); Columbus 

Symphony Orchestra, Inc., 350 NLRB 

523, 523 n.1 (2007) (same); Harbor City 

Volunteer Ambulance Squad, Inc., 318 

NLRB 764, 764 (1995) (same); Heatcraft, 

Div. of Lennox Indus., Inc., 250 NLRB 

58, 58 n.1 (1980) (same). Fourth, the 

problem identified by the employer 

comments is even more acute for 

unions, which must obtain a showing of 

interest prior to filing a petition. If the 

union asks employees to help gather a 

showing of interest and the employees 

are later determined to be supervisors, 

the Board may find that the showing of 

interest is tainted and overturn election 

results favoring union representation on 

that ground. See Harborside Healthcare 

Inc., 343 NLRB 906 (2004). That 

problem cannot possibly be solved 

through any form of post-petition, preelection hearing. Fifth, under the Act 

itself, even if a regional director’s 

decision and final Board decision are 

issued prior to an election, the Board 

decision is potentially subject to review 

in the courts of appeals and the court of 

appeals’ decision cannot be issued preelection. See 29 U.S.C. 159(d) and 

160(e); Boire v. Greyhound Corp., 376 

U.S. 473, 476–79 (1964).385 Thus, the 

uncertainty with which the comments 

are concerned, which affects all parties, 

exists under the current rules and 

cannot be fully eliminated. 

Nor does the Board agree that the 

proposed amendments improperly 

deprive employees of the ability to make 

an informed choice in the election. As 

explained above, under the 

amendments, as under the current rules, 

the regional director must determine the 

unit’s scope and appropriateness prior 

to the direction of the election. 

Accordingly, at the time they cast their 

ballots, the voting employees will be 

fully informed (via the Notice of 

Election) as to the description of the 

unit, and will be able to assess the 

extent to which their interests may align 

with, or diverge from, other unit 

employees. Although the employees 

may not know whether particular 

individuals or groups ultimately will be 

deemed eligible or included and 

therefore a part of the bargaining unit, 

that is also the case under the Board’s 

current rules, because, as explained 

above, regional directors were free to 

defer deciding individual eligibility or 

inclusion questions prior to directing an 

election (and parties were free to agree 

to permit disputed employees to vote 

subject to challenge in the election 

agreement context). In addition, as 

pointed out by SEIU, a similar choice 

has confronted voters in mixed 

professional/non-professional units 

since 1947, when Congress amended the 

Act to provide that a majority of the 

professional employees must vote 

separately for inclusion with a 

bargaining unit of non-professional 

employees and the results of that 

separate vote, which takes place 

simultaneously with the vote in the 

non-professional unit, are not known 

when any of the employees cast their 

ballots. See Section 9(b)(1); Sonotone 

Corp., 90 NLRB at 1241–42. In that 

context, the Board has held: ‘‘Such a 

procedure * * * presents the 

employees with an informed choice.’’ 

Pratt & Whitney, 327 NLRB 1213, 1218 

(1999). 

Many comments cite the courts of 

appeals’ decisions in NLRB v. Beverly 

Health and Rehabilitation Services, 120 

F.3d 262 (4th Cir. 1997) (unpublished 

per curiam opinion), and NLRB v. 

Parsons School of Design, 793 F.2d 503 

(2d Cir. 1986). As explained in the 


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386See, e.g., Sears, Roebuck & Co. v. NLRB, 957 

F.2d 52 (2d Cir. 1992); Nightingale Oil Co. v. NLRB, 

905 F.2d 528, 533–34 (1st Cir. 1990); NLRB v. Clark 

Distributing, 917 F.2d 24 (6th Cir. 1990) 

(unpublished); Prudential Ins. Co. of America v. 

NLRB, 832 F.2d 857, 861 (4th Cir. 1987). 

387CDW II questions how the proposed 20- 

percent rule can be reconciled with such final 

notice language because if individual eligibility or 

inclusion issues need not be identified in the 

Statement of Position or litigated at the hearing, 

then the regional director will presumably be 

unaware of them when the final notice is prepared. 

As explained above, however, the Board is not 

adopting the proposed 20-percent rule. 

Accordingly, because regional directors have 

discretion to allow individual eligibility issues to be 

litigated, parties may seek to put the regional 

director on notice of such issues through their 

statement of position and at the hearing. While it 

is true that there may also be election-day 

challenges that could not have been anticipated in 

advance by the regional director, this is the case 

currently, and it is not the situation that concerned 

the courts in Beverly or Parsons. 

388As shown above, deferral of up to 20% of 

eligible voters would have left the challenged 

ballots non-determinative in more than 70% of all 

representation elections conducted in FY 2013. If 

there were no need to defer as many as 20% of the 

eligible voters because not that many individual 

voter eligibility issues were contested, then the 

percentage of elections where challenged ballots 

would be non-determinative of the election’s 

outcome would be greater still. For example, in FY 

2013 more than 85% of elections had margins 

greater than 10% of the eligible voters. 

389The Board also notes that to the extent the 

amendments do result in more individuals casting 

challenged ballots than under the current rules, the 

amendments may well have the effect of making it 

less likely that parties will be able to discover how 

particular individuals voted because the pool of 

determinative ballots would be larger. 

NPRM, those two decisions represent 

the minority view in the courts, and the 

Board continues to disagree with them. 

The majority of the courts of appeals 

have upheld the Board’s vote-underchallenge procedures and upheld 

election results even when the 

eligibility or inclusion of certain 

employees was not resolved until after 

the election.386 Moreover, under the 

final rule, the regional director has 

discretion to permit litigation and to 

resolve eligibility and inclusion 

questions, and we expect regional 

directors to permit litigation of, and to 

resolve, such questions when they 

might significantly change the size or 

character of the unit, thus addressing 

the courts’ concerns in both Beverly and 

Parsons. In addition, as explained in the 

NPRM, the courts’ concern in both of 

those cases was that voters were 

somehow misled when the regional 

director defined the unit in one way 

prior to the election and the Board 

revised the definition after the election. 

The final rule would actually help 

prevent exactly that form of change in 

unit definition from occurring by 

codifying regional directors’ discretion 

to defer deciding individual eligibility 

or inclusion questions until after the 

election and by providing in amended 

§ 102.67(b) that where the director does 

defer deciding such questions, the 

Notice of Election will inform 

employees prior to the election that the 

individuals in question ‘‘are neither 

included in, nor excluded from, the 

bargaining unit, inasmuch as the 

regional director has permitted them to 

vote subject to challenge,’’ and that their 

unit placement ‘‘will be resolved, if 

necessary, following the election.’’ 

Thus, employees will not in any manner 

be misled about the unit. Rather, they 

will cast their ballots understanding that 

the eligibility or inclusion of a small 

number of individuals in the unit has 

not yet been determined. The Board 

views this alteration to the election 

notice as meeting the concerns raised by 

the Beverly court and as specifically 

countenanced by the Second Circuit in 

Sears, Roebuck & Co. v. NLRB, 957 F.2d 

52, 55 (2d Cir. 1992) (regional director 

permitted employees in one 

classification to vote subject to 

challenge and included section in notice 

which ‘‘detailed the special voting 

posture of the automotive floor sales 

employees and the circumstances for 

including their votes’’).387

PIA and Bluegrass Institute suggest 

that deferring resolution of individual 

eligibility questions until after the 

election threatens the secrecy of the 

ballot and that employees who are 

permitted to vote subject to challenge 

are less likely to vote because they fear 

that the parties will learn how they 

voted. However, the Board is not 

persuaded that the final rule threatens 

the secrecy of the ballot or voter 

turnout. The courts have upheld the 

Board’s current practice of deferring 

individual eligibility questions under 

most circumstances. Moreover, the 

ballots cast by the employees directed to 

vote subject to challenge are not 

counted if they are not determinative.388

Accordingly, ballot secrecy is preserved 

in those cases. Even if challenged 

ballots are determinative, the ballots are 

not counted if the employees who cast 

them are ultimately found to be 

ineligible after the post-election hearing. 

And, even if the challenged ballots are 

determinative and a post-election 

hearing results in the individuals who 

cast them being found eligible, the 

ballots are not opened and counted oneby-one, but rather the ballots of all 

individuals found to be eligible are 

‘‘thoroughly mixed’’ before being 

opened and counted. See Casehandling 

Manual Section 11378. Accordingly, the 

Board believes that it is only in cases 

where there is just one determinative 

challenge, or where all of the potentially 

determinative challenged ballots are 

marked in the same way, that the parties 

will learn how the employees voted. 

However, that is both rare and 

unavoidable in any system that permits 

challenges, including the current 

system. Thus, even if regional directors 

were prohibited from deferring 

individual eligibility issues, which is 

not the case currently, parties would 

still have a right to challenge voters for 

good cause at the polls and the 

commenters’ concern would remain.389

The Board is also unaware of any 

evidence of significant differences 

between the turnout of employees 

whose eligibility to vote has not been 

disputed or has been resolved prior to 

the election and employees permitted to 

vote subject to challenge. The case law 

demonstrates that even in cases where 

only a single individual is permitted to 

vote subject to challenge, the individual 

is not necessarily deterred from voting. 

See, e.g., NLRB v. Cal-Western 

Transport, 870 F.2d 1481, 1483, 1486 

(9th Cir. 1989) (regional director 

permitted single employee to vote 

subject to challenge and he did so); 

NLRB v. Staiman Brothers, 466 F.2d 

564, 565 (3d Cir. 1972) (deciding vote 

cast by single employee permitted to 

vote subject to challenge by agreement 

of the parties). 

Nor is the Board persuaded by SHRM 

II’s attempt to analogize to scholarly 

criticism of states’ voter challenge laws 

in political elections as evidence that 

the Board’s challenged ballot procedure 

does or would lead to reduced 

participation in NLRB elections. The 

Board agrees with the AFL–CIO II 

(Reply) that the significant differences 

between the political challenge process 

and the NLRB challenge process 

undermine SHRM’s attempted analogy. 

In particular, during political elections, 

voters’ veracity is challenged, and they 

are often subject to questioning and 

required to swear an oath before voting; 

whereas during NLRB elections, voters 

will know in advance via the election 

notice that although their eligibility to 

vote—through no fault of their own— 

has not yet been determined with 

finality, they will be permitted to cast 

ballots, they will be advised as to the 

procedure for their voting, and they will 

be invited to contact a Board agent with 

any questions that they may have in 

advance of the election about the 

challenge process. The Board also agrees 

with SEIU II (Reply) that the additional 

structural safeguards in a Board 

election—including its supervision by a 

Board agent, the presence of observers 


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390See Casehandling Manual Section 11338.6. 

391SHRM II also fails in its attempts to use the 

results of a 2014 FOIA response from the Board to 

show that the Board’s current use of the challenge 

ballot procedure is ‘‘limited’’ by arguing that in the 

1,763 elections conducted during FY 2011–13 in 

which ballots were challenged, there were ‘‘only 4.5 

[challenged ballots] per election.’’ Considering that 

the median size of bargaining units ranged from 24– 

28 employees over that same period of time, the 

statistics cited by SHRM do not appear to support 

the implication that the number of challenged 

ballots under the final rule (which does not include 

a mandatory 20-percent rule) would be radically 

different than under the Board’s current practice. 

Indeed, in reply to SHRM, the AFL–CIO II (Reply) 

cites to research showing use of challenged ballots 

in 40% of NLRB elections conducted between 1972 

and 2009. 392See Casehandling Manual Section 11361.3. 

for both sides, and the Board agent’s 

duty to disallow argument concerning 

the merits of the challenge and to 

explain to the voter the measures that 

will be taken to protect the secrecy of 

the challenged ballot390—make it 

unlikely that challenged voters in NLRB 

elections would decide not to cast a 

ballot. Furthermore, as both the AFL– 

CIO and SEIU point out, SHRM cites no 

evidence of voter suppression in NLRB 

elections resulting from our 

longstanding challenge procedures,391

nor does SHRM attempt to grapple with 

the differences between the challenge 

processes in political elections and 

NLRB elections. 

Finally, balanced against any asserted 

employer or employee interests in preelection litigation of individual 

eligibility or inclusion questions is the 

statutory interest in prompt resolution 

of questions of representation. As 

explained above and in the NPRM, 

permitting the litigation of such matters 

imposes serious costs, and no comments 

on the NPRM convinced the Board 

otherwise. It plainly frustrates the 

statutory goal of expeditiously resolving 

questions of representation, and it 

frequently imposes unnecessary costs 

on the parties and the government. As 

explained in the NPRM, it often results 

in unnecessary litigation and a waste of 

administrative resources as the 

eligibility of potential voters is litigated 

(and in some cases decided), even when 

their votes end up not affecting the 

outcome of the election. If a majority of 

employees votes against representation, 

even assuming all the disputed votes 

were cast in favor of representation, the 

disputed eligibility questions become 

moot. If, on the other hand, a majority 

of employees chooses to be represented, 

even assuming all the disputed votes 

were cast against representation, the 

Board’s experience suggests that the 

parties are often able to resolve the 

resulting unit placement questions in 

the course of bargaining once they are 

free of the tactical considerations that 

exist pre-election and, if they cannot do 

so, either party may file a unit 

clarification petition to bring the issue 

back before the Board. See New York 

Law Publishing Co., 336 NLRB No. 93, 

slip op. at 2 (2001) (‘‘The parties may 

agree through the course of collective 

bargaining on whether the classification 

should be included or excluded. 

Alternatively, in the absence of such an 

agreement, the matter can be resolved in 

a timely invoked unit clarification 

petition.’’). As the Eighth Circuit 

observed, ‘‘The NLRB’s practice of 

deferring the eligibility decision saves 

agency resources for those cases in 

which eligibility actually becomes an 

issue.’’ Bituma Corp. v. NLRB, 23 F.3d 

1432, 1436 (8th Cir. 1994). The Sixth 

Circuit similarly found that ‘‘[s]uch a 

practice enables the Board to conduct an 

immediate election.’’ Medical Center at 

Bowling Green v. NLRB, 712 F.2d 1091, 

1093 (6th Cir. 1983). 

NRTWLDF argues that application of 

the 20-percent rule at the hearing might 

cast into question the regional office’s 

earlier, administrative determination 

that the petition was accompanied by an 

adequate showing of interest. Whether 

or not that is the case, the final rule does 

not adopt the 20-percent rule. Moreover, 

the concern expressed in the comment 

could equally be expressed about the 

current procedures under which 

regional directors and the Board 

routinely defer ruling on eligibility 

questions without revisiting the 

adequacy of the showing of interest. 

Furthermore, the required showing of 

interest is purely an internal 

administrative matter, as explained in 

current § 101.18(a): ‘‘it being the Board’s 

experience that in the absence of special 

factors the conduct of an election serves 

no purpose under the statute unless the 

petitioner has been designated by at 

least 30 percent of the employees.’’ The 

adequacy of the showing is nonlitigable, as discussed in connection 

with Part 101 below. The Borden Co., 

101 NLRB 203, 203 n. 3 (1952) (‘‘the 

question[] of the sufficiency of the 

showing of interest * * * [is a matter] 

for administrative determination and 

not subject to litigation by the parties); 

Casehandling Manual Section 11028.3. 

In a related vein, Jonathan Fritts on 

behalf of CDW II raised a series of 

thoughtful questions concerning exactly 

how the proposed 20-percent rule 

would be implemented in the context of 

several possible hearing contingencies. 

Of course, the 20-percent rule is not 

being adopted. Nevertheless, given our 

expectation that regional directors will 

consider the relative percentage as a 

significant factor in deciding whether to 

decide or defer an issue, we address 

those questions below. 

CDW’s first three questions concern 

how the choice to take evidence would 

interact with the proposed 20-percent 

threshold. Specifically, CDW asks: 

If, at the outset of the hearing, there are 

eligibility and inclusion issues that affect 

more than 20% of the bargaining unit, will 

the hearing officer take evidence on all of 

those issues? 

Or will the hearing officer take evidence on 

only ‘‘just enough’’ issues so that the 

remaining eligibility issues fall below 20%? 

If so, how will the hearing officer decide 

which issues to take evidence on in these 

situations? 

As explained more thoroughly in 

connection with the offer of proof 

proposal below, the discretion to 

determine which issues will be deferred 

or decided will reside with the regional 

director. Recognizing that there is no 

mandatory 20-percent rule, if the 

regional director wished to defer 

deciding individual eligibility or 

inclusion questions involving 20% of 

the unit, the regional director would 

simply identify a subset of the issues 

which impacted 20% of the unit and 

defer them, and would take evidence on 

the rest. This exercise of discretion is 

analogous to what currently happens in 

post-election proceedings involving 

determinative challenges, where there is 

a known margin before challenged 

ballots are opened, and regional 

directors sometimes decide to resolve 

only a few of the challenged ballot 

issues and open the resolved ballots in 

order to see whether the new tally 

obviates having to resolve the remaining 

challenges.392 We expect that the 

regional director would consider many 

of the same factors that the regional 

directors currently consider in deciding 

whether to rule on all determinative 

challenges or just a few. For example, 

the regional director might consider 

how long it would take the parties to 

present their evidence on the disputed 

individuals, and then decide to take 

evidence on the individuals who require 

the least amount of time and defer the 

remainder. The regional director might 

also instruct the hearing officer to see 

whether the parties can agree on which 

individuals’ eligibility should be 

litigated in order to leave a smaller 

percentage to be deferred. The regional 

director might also consider offers of 

proof and decide which issues would be 

easiest to resolve or whether a common 

issue would resolve the eligibility status 

of multiple individuals, and take 

evidence accordingly. In sum, regional 

directors will not be mandated to follow 


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74392 Federal Register / Vol. 79, No. 240 / Monday, December 15, 2014 / Rules 

393 In fact, the Board’s pre-NPRM regulations 

permitted hearing officers, on their own volition, to 

allow or prevent litigation of issues based on offers 

of proof. But in practice, hearing officers faced with 

such a decision typically chose to seek guidance 

from the regional director and we think that this is 

the better practice. See Testimony of Caren Sencer 

on behalf of Weinberg, Roger & Rosenfeld II and 

Gabrielle Semel of behalf of CWA II (discussing 

current practice of hearing officers pausing to 

consult with regional directors when necessary). 

394 In this regard, the Board rejects the suggestion 

of the IBEW II that we create a mechanism to 

automatically defer litigation challenges to 

presumptively appropriate units. Rather, in the 

circumstances that IBEW describes, we would 

expect hearing officers to typically require an offer 

of proof from an employer arguing against the 

appropriateness of a unit considered presumptively 

appropriate under Board caselaw. If the employer’s 

proffered evidence would be insufficient to rebut 

the presumption, then it would be appropriate for 

the regional director to foreclose receipt of the 

evidence without regard to the proposed 20% rule. 

395See, e.g., Chairmen Kline and Roe II; CDW II; 

Leading Age II; U.S. Chamber Workforce Freedom 

Initiative II; Associated Oregon Industries; 

Bluegrass Institute. 

396See COSE; Constangy. 

397See, e.g., Testimony of Doreen Davis on behalf 

of RILA II; SHRM II; CDW II. 

any particular course of decisionmaking as to the taking of evidence on 

individual eligibility issues, but will 

instead retain discretion to use their 

judgment as to what evidentiary 

structure will result in the most efficient 

use of party and agency resources. 

CDW next questions how 20% of the 

unit would be measured if the size of 

the unit is in dispute, asking 

specifically: 

If the appropriateness of the bargaining 

unit is in dispute, how will the 20% be 

measured? Will it be 20% of the petitionedfor unit? 

If the employer asserts that the only 

appropriate unit is a larger unit, will the rule 

be applied based on 20% of that larger unit? 

If there are significant differences in the 

sizes of the parties’ preferred bargaining 

units, then regional directors should 

evaluate the individual eligibility and 

inclusion issues in dispute relative to 

the petitioned-for unit, and any other 

unit in which the petitioner is willing 

to proceed to an election. For example, 

if the petitioner asserts at hearing that 

it would be unwilling to proceed to an 

election concerning an employer’s 

alternative unit that is larger than the 

petitioned-for unit, then the regional 

director need not take into account the 

employer unit’s size in evaluating 

individual eligibility or inclusion issues 

to be deferred, because there will either 

be an election in the petitioned-for 

unit—if found appropriate by the 

regional director—or no election at all. 

If, on the other hand, the petitioner is 

willing to proceed to an election in a 

significantly larger unit as proposed by 

the employer, then the regional director 

will retain discretion to decide the most 

efficient means of structuring the 

litigation of potential individual 

eligibility issues. In such a situation, the 

regional director may, of course, 

consider the relative percentage of 

individual eligibility issues presented in 

each of the proposed units. Each such 

case will present its own complications, 

and there is no particular litigation 

structure mandated by the final rule. 

CDW also questions whether and how 

unit appropriateness issues might be 

deferred under the final rule. The 

primary answer to these questions is 

that under the final rule, as under the 

Board’s current regulations, the regional 

director must always decide on the 

appropriateness of the unit before 

directing or conducting an election. So, 

a regional director will not defer taking 

evidence or resolving individual 

eligibility or inclusion issues whose 

resolution could render inappropriate 

an otherwise appropriate unit. 

However, under the final rule, as 

under the Board’s current regulations, 

and completely apart from the 20- 

percent proposal in the NPRM, a 

hearing officer will be free to require an 

offer of proof concerning any unit 

appropriateness arguments raised by an 

employer.393 If the evidence sought to 

be introduced would be insufficient to 

sustain the employer’s position—for 

example, whether to overcome a 

presumptively appropriate unit or to 

show an overwhelming community of 

interest between petitioned-for 

classifications and excluded 

classifications—then the regional 

director would direct the hearing officer 

not to allow the evidence to be 

received.394 This is distinct from 

deferring a question to the challenge 

process: as has always been the case 

under Board rules only ‘‘significant 

facts’’ can be litigated, and if a party’s 

contentions are meritless they are never 

entitled to litigate them, nor can these 

voters be challenged without good 

cause. Thus, although regional directors 

cannot defer consideration of unit 

appropriateness issues under the final 

rule, they will continue to enjoy 

discretion to instruct hearing officers to 

deny the introduction of evidence to 

‘‘protect the integrity of [the Board’s] 

processes against unwarranted 

burdening of the record and 

unnecessary delay.’’ Laurel Associates 

d/b/a Jersey Shore Nursing and 

Rehabilitation Center, 325 NLRB 603, 

603 (1998). 

CDW then poses a follow-up question 

running to whether certain 

classifications of employees—excluded 

from the petitioned-for unit by virtue of 

a legally insufficient offer of proof made 

by their employer—will nevertheless be 

eligible to vote in the election, subject 

to challenge. Generally, no, but the 

answer will vary from case to case. 

Thus, the rules do not require the 

casting of challenged ballots in such 

circumstances and the Board’s policy 

continues to be that when a regional 

director has specifically ruled on an 

employee’s inclusion in or exclusion 

from the unit, then it would generally 

not be appropriate to vote that 

employee, even subject to challenge. 

However, as discussed below in 

connection with § 102.67, the final rule 

contains a procedure for requesting 

segregation and impoundment of 

ballots, and so challenged ballots 

concerning unit appropriateness issues 

may be permitted in a particular case. 

Some comments criticize the 20- 

percent rule on the grounds that it will 

lead to more post-election litigation and 

result in more elections being set aside 

as a result of post-election rulings 

concerning the eligibility of 

employees.395 Similarly, at least two 

comments raise the concern that 

because the bargaining obligation 

attaches at the time of the tally, 

employers will be required to invest 

time and money in bargaining with a 

union that has questionable 

representative status.396 These 

comments misunderstand the proposals. 

As under the current rules, if decisions 

concerning individuals’ eligibility or 

inclusion are deferred until after the 

election, the individuals will vote 

subject to challenge. If their votes are 

not potentially outcome determinative, 

the matter will not be litigated, thus 

decreasing the total amount of litigation. 

If their votes are potentially outcome 

determinative, their eligibility may be 

litigated and the resolution may affect 

the results of the election, but it will not 

lead to the results of the election being 

set aside. As under the current 

procedures, post-election proceedings 

concerning challenged ballots will 

proceed and conclude promptly at the 

regional level. As explained above and 

below in relation to §§ 102.62(b) and 

102.69, any Board review of the 

disposition will be expedited by the 

final rule. 

Finally, a few comments argue that 

deferral of voter eligibility questions 

will create more issues for the parties to 

address during first contract 

negotiations.397 AHA makes the related 

claim that ‘‘leaving the individuals’ 

inclusion or exclusion from the unit to 

be used as a bargaining chip is unfair to 

employees and disrespectful of their 

Section 7 rights and counter to the Act’s 

purposes of promoting labor peace[.]’’ 


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398As SEIU observes: 

If the union wins, the parties can negotiate unit 

inclusion issues through the collective bargaining 

process, when both parties have an eye towards the 

appropriate composition of the bargaining unit 

(rather than maneuvering to exclude or include 

particular workers to skew the election results). 

Indeed, in our experience, the unit placement of 

workers permitted to vote under challenge is almost 

always resolved, after certification, without the 

necessity of returning to the Board for clarification. 

See also Testimony of Semel on behalf of CWA 

II. 

399 Indeed, some commenters claim that 

petitioning unions under the current rules are 

compelled to modify the parameters of their 

preferred unit solely to avoid the delay associated 

with litigating the voter eligibility of certain 

individuals or classifications—a context that would 

seem no less ‘‘unfair’’ to employees as the postelection negotiations posited by AHA. See, e.g., 

Testimony of Brenda Crawford II; Testimony of 

Martin Hernandez on behalf of UFCW II. 

400Cf. H.K. Porter Co. v. NLRB, 397 U.S. 99, 106 

(1970) (‘‘the Board may not, either directly or 

indirectly, compel concessions or otherwise sit in 

judgment upon the substantive terms of collective 

bargaining agreements’’). 

401See, e.g., Micro Pacific Development, Inc. v. 

NLRB, 178 F.3d 1325, 1335–36 (D.C. Cir. 1999). 

402We have thereby adopted the Chamber’s 

suggestion that the regulatory text explicitly 

provide that parties may timely amend their 

Statements of Position for good cause, as discussed 

above in relation to § 102.63(b). Accordingly, we 

have also explicitly provided in the regulatory text 

for required responses to any amendments to a 

Statement of Position. 

As explained above, this already 

happens under the current rules, when 

the regional director or the Board defers 

decision on the questions and does not 

decide them post-election because the 

votes of the disputed individuals were 

not potentially outcome determinative. 

The Board does not believe addressing 

such questions will complicate 

bargaining, particularly when the 

parties can file a timely unit 

clarification petition if they are 

unwilling or unable to resolve the 

matter.398 Neither does the Board 

believe that negotiations between the 

parties concerning employees’ inclusion 

in or exclusion from the bargaining unit 

is substantively different, vis-a`-vis their 

Section 7 rights, whether the parties are 

negotiating a first contract or a 

stipulated election agreement. Both are 

inherently acceptable mechanisms 

under the Board’s extant procedures, 

and AHA does not suggest, for example, 

that the Board cease accepting party 

stipulations concerning the parameters 

of proposed bargaining units in 

deference to employees’ Section 7 

rights.399 In any event, we would reject 

such a suggestion for the same reason 

that we reject AHA’s instant comment: 

the fundamental design of the Act is to 

encourage agreement between the 

parties as much as possible and not to 

interject the Board’s judgments in place 

of collectively-negotiated terms.400 So 

long as parties negotiate terms regarding 

which individuals or classifications to 

include in a bargaining unit that do not 

contravene the Act’s provisions or 

settled Board policies, then it would be 

inappropriate for the Board to disallow 

their agreements.401 In relation to 

AHA’s concerns about the promotion of 

labor peace, the Board believes that 

labor peace is more likely if parties are 

permitted to voluntarily resolve their 

differences. 

Many comments additionally 

challenge the proposed amendments to 

102.66 by arguing against the aggregated 

effects of the various proposed changes, 

including the mandatory 20-percent 

rule. For example, comments question: 

the hearing officer’s role in 

administering the changed pre-election 

hearing; whether hearings under the 

proposed amendments would result in 

an inadequate record for subsequent 

appeals; and whether the hearings 

under the proposed amendments would 

be inconsistent with Section 9(c) of the 

Act. We respond to each of these groups 

of commentary below in connection 

with the changes regarding joinder and 

offers of proof. 

B. Identification of Issues in Dispute; 

Discretionary Offers of Proof; Preclusion 

In the NPRM, the Board proposed a 

number of amendments to § 102.66 

which were designed to ensure that 

issues in dispute would be more 

promptly and clearly identified and that 

hearing officers could limit the evidence 

offered at the pre-election hearing to 

that which is necessary for the regional 

director to determine whether a 

question of representation exists. 79 FR 

7329–32. The NPRM proposed that 

hearing officers would follow a 

specified process to identify relevant 

issues in dispute. Thus, the NPRM 

provided that the hearing officer would 

open the hearing by reviewing, or 

assisting non-petitioning parties to 

complete, Statements of Position, and 

then would require the petitioner to 

respond to any issues raised in the 

Statements of Positions, thereby joining 

the issues. The NPRM further proposed 

that after the issues were properly 

joined, the hearing officer would require 

the parties to make offers of proof 

concerning any relevant issues in 

dispute, and would not proceed to take 

evidence unless the parties’ offers 

created a genuine dispute concerning a 

material fact, a standard derived from 

Rule 56 of the Federal Rules of Civil 

Procedure. 

The Board also proposed that a party 

would be precluded from raising any 

issue, or presenting any evidence or 

argument about any issue, that it failed 

to raise in its timely Statement of 

Position or to place in dispute in 

response to another party’s Statement. 

However, any party would be permitted 

to present evidence as to the Board’s 

statutory jurisdiction, and the petitioner 

would be permitted to present evidence 

as to the appropriateness of the unit if 

the nonpetitioning parties declined to 

take a position on that issue. In 

addition, consistent with the proposed 

amendments’ intent to defer both 

litigation and consideration of disputes 

concerning the eligibility or inclusion of 

individual employees until after the 

election, no party would be precluded 

from challenging the eligibility or 

inclusion of any voter during the 

election on the grounds that no party 

raised the issue in a Statement of 

Position or response thereto. 79 FR 

7329–30. 

The Board received a great number of 

comments about these proposals. As 

discussed at length in relation to 

§ 102.63, the Board has decided to adopt 

the proposal requiring nonpetitioners to 

complete Statements of Position, but has 

revised the due date for the completion 

of the Statements so that the Statements 

can serve their intended purposes of 

facilitating entry into election 

agreements and narrowing the scope of 

pre-election hearings in the event the 

parties do not enter into such 

agreements. Thus, amended § 102.63(b) 

requires nonpetitioners to file and serve 

their Statements of Position such that 

they are received by the regional 

director and all parties identified in the 

petition by noon on the business day 

before the scheduled opening of the preelection hearing. 

After careful consideration of the 

comments, and as more fully discussed 

below, the Board has decided to require, 

in amended § 102.66(b), the other 

parties to respond to each issue raised 

in a Statement of Position. The same 

paragraph expressly authorizes the 

regional director to permit Statements of 

Position, as well as responses, to be 

amended in a timely manner for good 

cause.402 It then provides that ‘‘[t]he 

hearing officer shall not receive 

evidence concerning any issue as to 

which parties have not taken adverse 

positions.’’ We believe that this 

amendment will help the Board 

maximize hearing efficiency by 

eliminating unnecessary litigation, 

expeditiously resolve questions of 

representation and make Board 

procedures more transparent and 

uniform across regions. As discussed in 

relation to § 102.63, although parties 

currently are asked to provide much of 

the information requested by the 


emcdonald on DSK67QTVN1PROD with RULES2
74394 Federal Register / Vol. 79, No. 240 / Monday, December 15, 2014 / Rules 

403The sentence—providing that the hearing 

officer shall not receive evidence concerning any 

issue as to which the parties have not taken adverse 

positions—includes an exception that preserves the 

regional director’s discretion to permit the 

introduction of evidence relating to an issue that is 

necessary for the director to address even if the 

parties have not taken adverse positions. For 

example, if an employer declines to complete a 

statement of position in a case where the 

petitioned-for unit is not presumptively 

appropriate, the director must still determine 

whether the petitioned-for unit is appropriate in 

order to determine whether a question of 

representation exists. Accordingly, the final rule 

permits the director to instruct the hearing officer 

to take evidence on this issue. Similarly, if an 

employer takes no position regarding the Board’s 

jurisdiction over it, the final rule permits the 

director to instruct the hearing officer to take 

evidence on that issue as well. In particular, the 

regional director must find that the Board has 

statutory jurisdiction over the employer before the 

director may conduct an election. However, under 

the final rule, the Board will continue its 

longstanding practice of presuming that an 

employer satisfies the Board’s discretionary 

jurisdictional standards when the employer refuses 

to voluntarily provide information requested by the 

Board in order to apply those standards. See, e.g., 

Seaboard Warehouse Terminals, Inc., 123 NLRB 

378, 382–83 (1959); Tropicana Products, Inc., 122 

NLRB 121, 123–24 (1958). 

The Board declines to adopt some provisions of 

a similar proviso that was contained in 

§§ 102.66(a)(1), (2), and (3) of the proposed rule. 

With respect to supplementing the record as to 

issues relating to the appropriateness of the unit 

that no party has placed in dispute, the proposed 

proviso called for the petitioner to supply the 

evidence. It also specifically provided for the use 

of secondary evidence, such as sworn statements or 

declarations. We see no need to specify the 

petitioner or any other party as responsible for 

supplementing the record in this regard; the means 

and manner of insuring the adequacy of the record 

should remain within the discretion of the regional 

director, or the hearing office on the director’s 

behalf, where it currently resides. Similarly, hearing 

officers already enjoy discretion to receive 

secondary evidence in appropriate circumstances, 

and we see no need to limit that discretion or 

predetermine the form of evidence that might be 

appropriate for this purpose. 

404Moreover, as previously discussed, one 

purpose of requiring the Statement of Position in 

advance of the hearing is to narrow the scope of the 

pre-election hearing by alerting the petitioner as to 

issues the nonpetitioner is seeking to litigate in the 

hearing on the petitioner’s petition. This will avoid 

a situation where one party is not prepared to 

proceed because they did not believe that certain 

issues required litigation. For all the foregoing 

reasons, the Board rejects the notion that parties 

should be able to amend their Statements of 

Position even in the absence of good cause. 

Statement of Position form, they are not 

required to do so, and some parties do 

not disclose the information even 

though it is needed to ensure efficient 

hearings and to expeditiously resolve 

questions of representation. Similarly, 

parties are not currently required to 

respond to positions taken by other 

parties on issues that need to be 

determined by the regional director. The 

required Statements of Position and 

responses will enable the hearing officer 

and the parties to ascertain at the outset 

of the hearing the issues in dispute and, 

conversely, those that are not in dispute. 

As to the latter, it follows as a matter of 

administrative efficiency and common 

sense that litigation would unjustifiably 

waste the time and resources of the 

Board and the parties. Thus, the 

amendment will prevent wasteful 

litigation of matters that are not in 

dispute.403 It also helps to streamline 

the hearing and ensure that the hearing 

proceeds in an orderly fashion if parties 

are precluded from raising issues that 

they did not raise in their Statements of 

Position or place in dispute in response 

to another party’s Statement. Absent 

good cause, parties should not be 

permitted to raise new issues just prior 

to the close of the hearing.404

The Board declines to adopt the 

proposed rule’s use of the term 

‘‘joinder’’ in connection with the 

requirement of responses to issues 

raised in a Statement of Position. While, 

as explained above, the important 

concept of identifying the issues in 

dispute and precluding litigation of 

undisputed matters is retained in the 

final rule, the term ‘‘joinder’’ is not 

necessary to describe the concept and 

might give rise to a mistaken belief that 

the body of law concerning civil 

pleading requirements was intended to 

be imported and applied to our 

representation-case proceedings. We 

believe that would be inappropriate for 

the relatively informal administrative 

hearings governed by this rule. The 

Board has also eliminated the 

duplicative numbered subdivisions of 

§ 102.66(a), consolidating their 

provisions, as modified, as § 102.66(b). 

The Board adopts in all material 

respects the ‘‘Preclusion’’ paragraph of 

the proposed rule, numbered here as 

§ 102.66(d). This complements 

§§ 102.63(b) and 102.66(b), and helps 

achieve an important objective of those 

provisions. As explained above, the 

requirements of the Statement of 

Position and responses, permitting 

identification of the issues in dispute, 

together with the preclusion of evidence 

of issues not timely raised, substantially 

improves the Board’s procedures by 

saving the parties and the Board the 

time and expense of wasteful litigation. 

As also discussed here and in 

connection with § 102.63, hearing 

officers working under the prior rules 

often sought to obtain this result by 

soliciting the positions of the parties in 

order to narrow the issues and avoid 

unnecessary litigation. However, parties 

sometimes failed or refused to provide 

the necessary information, thereby 

frustrating those efforts. Section 

102.66(d) supplies the incentive for 

parties to comply with the requirements 

of §§ 102.63(b) and 102.66(b), consistent 

with Board precedent discussed above, 

by precluding parties from litigating 

issues as to which they have failed to 

take positions required either as part of 

a Statement of Position or in response 

to a Statement of Position. Put another 

way, § 102.66(d) constitutes the 

enforcement mechanism for §§ 102.63(b) 

and 102.66(b), in a way that tracks 

Board precedent. It includes an 

exception for litigation of the issue of 

statutory jurisdiction, and it expressly 

exempts from the preclusive effect of 

the paragraph a party’s ability to 

challenge the eligibility of any voter 

during the election. 

Upon reflection, the Board has 

decided not to adopt the proposed 

mandatory offer-of-proof procedure. 

Under the proposal, once the issues 

raised in a party’s statement of position 

were properly responded to by the 

petitioner, the hearing officer would 

require the parties to make offers of 

proof concerning any relevant issues in 

dispute, and would not proceed to take 

evidence unless the parties’ offers 

created a genuine dispute concerning a 

material fact. Thus, the proposed rule 

provided, in relevant part: 

(b) Offers of proof; discussion of election 

procedure. After identifying the issues in 

dispute pursuant to paragraph (a) of this 

section, the hearing officer shall solicit offers 

of proof from the parties or their counsel as 

to all such issues. The offers of proof shall 

take the form of a written statement or an oral 

statement on the record identifying each 

witness the party would call to testify 

concerning the issue and summarizing the 

witness’ testimony. The hearing officer shall 

examine the offers of proof related to each 

issue in dispute and shall proceed to hear 

testimony and accept other evidence relevant 

to the issue only if the offers of proof raise 

a genuine dispute as to any material fact. . . . 

79 FR at 7358 (§ 102.66(b)). The final 

rule provides with respect to offers of 

proof (emphasis added): 

(c) Offers of proof. The regional director 

shall direct the hearing officer concerning the 

issues to be litigated at the hearing. The 

hearing officer may solicit offers of proof 

from the parties or their counsel as to any or 

all such issues. Offers of proof shall take the 

form of a written statement or an oral 

statement on the record identifying each 

witness the party would call to testify 

concerning the issue and summarizing each 

witness’s testimony. If the regional director 

determines that the evidence described in an 

offer of proof is insufficient to sustain the 

proponent’s position, the evidence shall not 

be received. 

See amended § 102.66(c). 

The final rule thus makes clear that 

hearing officers will not require parties 

to make offers of proof raising genuine 

disputes as to material facts before 


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405See Testimony of Caren Sencer on behalf of 

Weinberg, Roger & Rosenfeld II and Gabrielle Semel 

on behalf of CWA II (discussing current practice of 

hearing officers pausing to communicate with 

regional directors when necessary). 

406See, e.g., SHRM; Bluegrass Institute; ACC; 

CDW II. In that regard, Baker & McKenzie asserts 

that the proposed rule changes the role of the 

hearing officer from that of fact gatherer to 

gatekeeper/judge, a role for which the hearing 

officer does not have the requisite experience or 

training. 407See, e.g., ALFA;Testimony of Roger King on 

behalf of SHRM II; COLLE II. 408See, e.g., ACE; SHRM II; Bluegrass Institute; 

GAM; York SHRM. 409See, e.g., SHRM; CNLP; AHCA; National 

Mining Association; ACE; Bluegrass Institute. AHA 

further asserts that, should the Board adopt the 

proposed procedures, it should engage in an open 

dialogue regarding the standards that the hearing 

officers would apply, and should invite comments 

on proposals that provide for more detailed and 

comprehensive descriptions of the process to be 

followed by the hearing officers. 

410See, e.g., National Mining Association; Baker 

& McKenzie; GAM; NAM II. 

proceeding to hear testimony and accept 

other evidence. Instead, consistent with 

pre-existing practice, the Board has 

decided to leave it to the hearing 

officer’s discretion whether to require 

parties to submit offers of proof on 

disputed issues. The Board has also 

removed the language drawn from 

Federal Rule of Civil Procedure 56. The 

substitute language makes clear that in 

the event the hearing officer decides to 

require parties to make an offer of proof, 

the evidence will not be received if the 

regional director determines that the 

evidence described in the offer of proof 

is insufficient to sustain the proponent’s 

position. 

The Board believes that codifying 

hearing officers’ discretion to require 

offers of proof (and regional directors’ 

discretion to determine that the 

evidence described therein is 

insufficient to sustain the proponent’s 

position and thus that it will not be 

received) will help the Board to avoid 

unnecessary litigation and expeditiously 

resolve questions of representation in a 

manner that fully protects the rights of 

all parties. As discussed above, subject 

to the provisions of § 102.66, the hearing 

officer has a duty ‘‘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.’’ Amended 

§ 102.64(b) (which was formerly 

§ 102.64(a)). However, as the Hearing 

Officer’s Guide has long recognized, the 

hearing officer ‘‘also [has a] duty . . . to 

keep the record as short as is 

commensurate with its being complete.’’ 

Hearing Officer’s Guide at 1. Thus, the 

Board has a concomitant ‘‘duty to 

protect the integrity of its processes 

against unwarranted burdening of the 

record and unnecessary delay.’’ Laurel 

Associates, Inc. d/b/a Jersey Shore 

Nursing & Rehabilitation Center, 325 

NLRB 603, 603 (1998). See 

Casehandling Manual Section 11188.1 

(‘‘The hearing officer should . . . 

exclude irrelevant and cumulative 

material.’’). 

In order to protect against 

unwarranted burdening of the record 

and unnecessary delay, the Board has 

long sanctioned a hearing officer’s 

authority to require a party to submit an 

offer of proof summarizing and 

explaining its proffered evidence as well 

as a hearing officer’s authority to rule on 

the offer of proof. See Laurel Associates, 

Inc., 325 NLRB at 603; Mariah, Inc., 322 

NLRB 586, 586 (1996). Indeed, because 

offers of proof can be an effective tool 

for controlling and streamlining the 

hearing and achieving an uncluttered 

record free of irrelevant and cumulative 

material, the Hearing Officer’s Guide 

expressly encourages the hearing 

officers to utilize offers of proof. Hearing 

Officer’s Guide at 6, 38 (‘‘the hearing 

officer should . . . utilize offers of proof 

in order to achieve an uncluttered 

record.’’). See Casehandling Manual 

Section 11185, 11188.1. But, we no 

longer believe that we need insist on a 

rigid formality by mandating that offers 

of proof be taken on every potential 

issue before any evidence is introduced. 

We think that hearing officers will 

continue to be capable of judging when 

offers of proof are likely to be helpful in 

safeguarding the record, and will 

continue to require them as appropriate, 

without removing their discretion to let 

the hearing proceed organically where 

pro forma offers of proof might burden, 

rather than streamline, the hearing 

record. However, given protests in the 

comments concerning the hearing 

officers’ role (as discussed below), out of 

an abundance of caution we clarify that 

hearing officers must seek the regional 

director’s determination as to whether 

to receive proffered evidence relating to 

an issue that the regional director 

determined should be litigated. This 

ensures that discretion to foreclose 

litigation resides with the statutorily 

appropriate agent of the Board. This 

comports with current best practices, 

where hearing officers briefly adjourn 

hearings to communicate with regional 

directors to ensure that the record is 

developed consistent with the regional 

director’s view of the case.405

In sum, amended § 102.66(c) does no 

more than reaffirm and codify the 

authority of the hearing officer to 

require parties to make offers of proof if 

the hearing officer believes it would be 

useful to do so. See Laurel Associates, 

Inc., 325 NLRB at 603 & n.1 (hearing 

officer properly required employer to 

make an offer of proof in support of its 

claim that the presumptively 

appropriate petitioned-for unit was not 

in fact appropriate and then properly 

rejected it); Mariah, Inc., 322 NLRB at 

586 n.1, 588 (hearing officer properly 

permitted employer to make, and then 

properly rejected, an offer of proof 

regarding the eligibility of strikers 

because such matters are decided post 

election if necessary); Franklin Hospital 

Medical Center, 337 NLRB 826, 826–27 

& n.2 (2002) (hearing officer properly 

rejected employer’s offer of proof 

regarding alleged supervisor status of 

certain individuals); Colgate-Palmolive 

Co., 120 NLRB 1567, 1568 & n.2 (1958) 

(hearing officer properly rejected 

proffered evidence because it was not 

material); W.B. Willet, 85 NLRB 761, 761 

n.2 (1949) (hearing officer properly 

rejected offer of proof in support of 

party’s contract bar claim, because it 

could not have constituted a bar to the 

proceeding). 

A number of comments criticize the 

role of, and the authority assigned to, 

the hearing officer under the proposed 

rule. Of those comments, several suggest 

that the Board’s proposed procedures 

represent an unprecedented expansion 

of the hearing officer’s role and vest the 

hearing officer with too much 

discretion.406 Similarly, some comments 

express the view that the statute 

prohibits hearing officers from making 

decisions such as whether disputed 

issues relate to a material fact, or 

whether offers of proof are sufficient to 

establish the existence of a genuine 

dispute as to a material fact, as Section 

9(c) prohibits hearing officers from even 

making recommendations with respect 

to the representation hearing.407 In 

addition, several comments note that 

not all hearing officers are attorneys,408

and numerous comments questioned the 

competency of hearing officers— 

particularly in the absence of guidance 

from the Board—to assess the parties’ 

position statements and offers of proof 

and to apply the legal standards 

embodied in Federal civil procedure to 

make judgments as to what constitutes 

a disputed issue of material fact.409

According to several comments, the 

likely result of such required 

judgments—which may not be made in 

a uniform manner among hearing 

officers—will be an increase in postelection litigation and post-certification 

challenges.410

Responsive comments express the 

contrary position that the proposed 

rules grant no greater discretion to 

hearing officers than that which they 


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411See, e.g., AFL–CIO II; SEIU Reply. 

412See, e.g., NELP; UFCW; Testimony of Peter 

Ford on behalf of UFCW II. 

413See, e.g., SHRM; ACE; AHA; CDW II. 

Moreover, SHRM asserts that the incomplete record 

resulting from the hearing officer’s decision 

regarding the offers of proof, together with the 

possibility that the Board might exercise its 

discretion to deny post-election review, will result 

in more frequent remands to the Board from the 

Federal courts of appeals, as the courts will not 

have an adequate record for review. 

414See, e.g., SHRM; ACE; U.S. Poultry II. 

415See, e.g., SHRM; CNLP; AHCA II; CDW II. 416See, e.g., AFL–CIO Reply; SEIU Reply. 417See, e.g., AFL–CIO Reply; SEIU Reply; UFCW; 

LIUNA MAROC II. 418See, e.g., AHA; ALFA; SHRM; NAM; ACE; 

National Mining Association. CNLP additionally 

asserts that when a summary judgment motion is 

filed as an answer under Rule 56, the non-moving 

party may request time for additional discovery to 

provide a response. 

In response, a reply comment from the SEIU 

asserts that, in contrast to Federal court 

proceedings, the employer in a representation 

proceeding before the Board has access to, and 

exclusive control over, all of the relevant 

information and, accordingly, does not have the 

same need for discovery. 

already exercise under current Board 

procedures, as hearing officers have 

always been responsible for controlling 

the hearing, assuring that there is a 

complete record, and excluding 

evidence that is not material to the 

case.411 In addition, SEIU asserts that 

the proposed rules do not suggest that 

hearing officers are to weigh the 

proffered evidence of the parties, or to 

ascertain whether assertions made in 

position statements are accurate or 

reliable; rather, the hearing officer is to 

examine the position statements and 

offers of proof to ascertain whether there 

is conflicting evidence as to any 

material fact. 

Many comments also focus on the use 

of language similar to that used in Rule 

56. The AFL–CIO supports the proposal 

claiming that it will appropriately 

eliminate the ability of a party to 

strategically delay the election by 

forcing the litigation of undisputed or 

immaterial issues and provide the 

hearing officer with the authority to 

prevent an ‘‘empty show’’ hearing, 

while simultaneously ensuring that the 

parties are provided the opportunity to 

present their positions on all issues and 

to present evidence or offers of proof on 

all material factual issues. In addition, 

the AFL–CIO contends that ‘‘most major 

agencies in the Federal system have 

opted to make available procedures for 

the summary disposition of adjudicatory 

matters,’’ and that such procedures are 

particularly appropriate in the context 

of an ‘‘informal and nonadversarial’’ 

pre-election hearing. Similarly, several 

comments assert that the offer-of-proof 

procedure is consistent with both the 

Board’s current post-election practice 

and civil litigation in Federal and state 

courts.412

Conversely, several comments express 

the position that the mandatory offer-ofproof procedure inappropriately 

deprives the parties of the opportunity 

to develop a full and complete 

record.413 Other comments assert that 

the procedures proposed in 102.66 deny 

employers the due process protections 

to which they are entitled,414 and that 

they are inconsistent with the statutory 

requirement that the Board provide an 

‘‘appropriate hearing’’ prior to the 

election. In the latter regard, several 

comments argue that Section 9(c) of the 

Act requires a pre-election evidentiary 

hearing at which the parties are afforded 

the opportunity to present their 

evidence and positions, and crossexamine witnesses.415

Several responsive comments dispute 

the claims that the Board’s proposed 

procedures are violative of due process 

guarantees.416 These comments assert 

that there is a notable absence of 

support for the claim that due process 

requires the Board to expend resources 

in connection with the litigation of 

issues that are neither material nor in 

dispute, and that due process requires 

‘‘something less than a full evidentiary 

hearing.’’ Similarly, several comments 

express support for the Board’s 

preliminary view in the NPRM that the 

statutorily-prescribed ‘‘appropriate 

hearing’’ does not mean an evidentiary 

hearing when there are no issues in 

dispute or the parties fail to submit an 

offer of proof demonstrating a genuine 

dispute as to a material fact.417 The 

comments additionally assert that, 

pursuant to the Supreme Court’s 

interpretation of Section 9(c) of the Act, 

the Board has discretion to determine 

the appropriate parameters of the 

investigatory representation hearing. 

In addition to challenging the Board’s 

proposed limitations on the hearing as 

inconsistent with due process and 

statutory requirements, many of the 

comments in opposition to the proposed 

procedures express the view that, 

contrary to the Board’s suggestion in the 

NPRM, the summary procedures are not 

analogous to the summary judgment 

framework established by Rule 56 of the 

Federal Rules of Civil Procedure. More 

specifically, a number of comments 

contend that a fundamental distinction 

between the Board’s proposed 

procedures and Rule 56 is the fact that 

summary judgment under the Federal 

rule takes place only after the parties 

have had the opportunity to conduct 

discovery.418 According to comments 

from SHRM and ACE, non-petitioning 

parties cannot reasonably be expected to 

articulate and substantiate their 

positions through an informal summary 

judgment process in the absence of a 

full record or, at a minimum, access to 

all of the relevant evidence. SHRM, 

ACE, and AHA additionally contend 

that the Board’s analogy to Rule 56 is 

inapt in that summary judgment 

procedures are utilized to resolve legal 

questions only after the facts have been 

established to the point where no 

material facts are in dispute; the 

summary judgment procedure has never 

been used to determine whether to 

receive and evaluate evidence. 

A comment from NAM II additionally 

asserts that, as the Board’s proposal 

requires the non-moving party to 

identify issues, submit an offer of proof, 

marshal arguments, and introduce 

evidence supporting its position, it 

completely reverses the burden of proof 

applicable under Rule 56. In addition, 

unlike the Federal rule, the Board’s 

procedures do not afford the parties the 

opportunity for oral argument. 

In response to the comments 

criticizing the Board’s reliance on Rule 

56, the SEIU (Reply) counters that, 

under the Board’s proposed rules, 

‘‘employers may force hearings by 

producing far less than a litigant must 

produce under Rule 56, and may easily 

meet its burden without the discovery 

that often precedes summary judgment 

motions.’’ Indeed, argues the SEIU, 

employers would be subjected to a 

much lower bar than that necessary to 

overcome a summary judgment motion; 

whereas a non-moving party under Rule 

56 cannot rest on its pleadings, but must 

submit significant probative evidence in 

support of its claims, a party seeking to 

introduce evidence at a representation 

hearing need only raise an issue in its 

position statement and, subsequently, 

submit an offer of proof identifying its 

likely witnesses and summarizing their 

anticipated testimony. See FRC.P. 56(e). 

We agree with the criticism of the 

proposed rule’s use of Rule 56 of the 

Federal Rules of Civil Procedure as a 

model for the procedural rules 

governing representation cases, based 

on the substantial differences between 

the different kinds of proceedings. The 

Federal Rules are designed for formal 

judicial actions before a Federal judge or 

magistrate judge that may address any 

issue raised in connection with almost 

the full range of claims cognizable 

under Federal or state statutory or 

common law. The Board’s 

representation cases, by contrast, 

involve informal administrative 

proceedings that address a narrow 

subset of the issues arising under a 

single Federal statute. The range of 

issues is even narrower in pre-election 


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419 In any event, § 102.66(b) also vests authority 

in the regional director to permit parties’ timely 

amendments to their Statements of Position or 

response thereto under a good cause standard, 

mooting some of the concerns parties had 

concerning the hearing officer’s proposed role. 

420Regional directors assign either field attorneys 

or field examiners to serve as hearing officers. Field 

attorneys must possess a J.D. degree and be an 

active member of a bar. Field examiners must 

possess a B.A. degree. The Board has traditionally 

provided written guidance to hearing officers as 

well as periodic training. Hearing officers also 

participate in a video training program that covers 

the subject of conducting a hearing as well as 

relevant professional development programs. There 

is also a lengthy publication entitled Guide for 

Hearing Officers in NLRB Representation and 

Section 10(K) Proceedings, which is periodically 

updated and made available to hearing officers (and 

the public on the Board’s Web site). Hearing officers 

are also routinely given feedback on their conduct 

of hearings by the staff members assigned to assist 

the regional director in drafting the resulting 

decision as well as by the regional director. The 

Board intends to continue to provide these types of 

assistance, feedback, and training. Finally, the 

qualifications of hearings officers are not set by 

statute or regulation. To the extent the regional 

directors or the Board find that the existing hearing 

officers cannot competently perform the role 

assigned them under the final rule, the Board will 

provide necessary training or alter the qualifications 

for service as a hearing officer. 

421We also disagree with the suggestion of the 

IBEW II that the process would be improved if the 

hearing officer took control of the hearing by 

subpoenaing witnesses and becoming the primary 

questioner to develop the record. To say nothing of 

Continued 

proceedings. The cases are presided 

over and decided by hearing officers 

and regional directors, respectively, 

some of whom are not lawyers, and it 

is more common than in district court 

for parties not to be represented by 

counsel. We agree that it makes little 

sense to burden an informal proceeding 

that performs a simple, narrow function 

with trappings of full-dress Federal 

litigation. We therefore have declined to 

adopt the language of proposed 

§ 102.66(c) that was drawn from Rule 

56. Similarly, in §§ 102.64(b) and 

102.66(a) we have rejected proposed 

language imported from Rule 56, and in 

§ 102.66(a) we have eliminated the 

proposed ‘‘joinder’’ nomenclature in 

connection with the identification of 

disputed issues through the responses to 

statements of position. 

It is important to recognize, however, 

that § 102.66 of the final rule, Rule 56, 

and many other rules governing 

adjudication of disputes are animated 

by a common principle of economy and 

common sense: A tribunal need not 

permit litigation of a fact that will not, 

as a matter of law, affect the result, or 

as to which the party that seeks to 

litigate the fact cannot identify evidence 

that would sustain its position. For 

example, suppose that a party asserts, 

concerning a petition for a unit 

including all dispatchers, that 

dispatchers are supervisors, and 

suppose that even if all of its witnesses 

testify credibly as it says they will 

testify and all of the documents it 

proposes to introduce show what it says 

they will show, the party’s testimonial 

and documentary evidence will not, as 

a matter of law, establish that 

dispatchers are supervisors. Under such 

circumstances, there is no need for an 

evidentiary hearing on the issue. There 

is no need to require the hearing officer 

to try the factual issue to find out 

whether the party’s witnesses might by 

some chance testify to something 

different from what the party said they 

would. That would be the definition of 

unnecessary litigation, and the 

formalities of summary judgment under 

Rule 56 are not needed to reach the 

obvious conclusion that the issue 

should not be tried. 

The Board is confident that hearing 

officers are fully capable of performing 

their role under the final rule, including 

asking petitioners to respond to each 

position taken by the nonpetitioners and 

administering the preclusion provision. 

Put simply, we believe that the 

amendments to § 102.66(b) codify 

nothing more than what hearing officers 

are supposed to do currently. The 

Hearing Officer’s Guide has long 

provided that at the outset of the 

hearing, the hearing officer should have 

the parties clearly state their positions 

on each issue. Hearing Officer’s Guide at 

6, 13, 14, 16. Casehandling Manual 

Sections 11187 and 11188 likewise 

provided long before the NPRM that the 

hearing officer should guide, direct and 

control the hearing, seek responses to 

issues raised by the parties, and take an 

active role in exploring all potential 

areas of agreement and narrowing the 

issues that remain to be litigated. 

Similarly, hearing officers have 

experience precluding parties from 

presenting evidence relating to an issue 

if the parties have not taken a position 

on that issue. See Bennett Industries, 

Inc., 313 NLRB 1363, 1363 (1994). See 

also Casehandling Manual Section 

11217 (the hearing officer should advise 

a party that refuses to state its position 

on an issue that it may be foreclosed 

from presenting evidence on that issue). 

Accordingly, we believe that hearing 

officers are capable of determining 

when parties are seeking to present 

evidence about issues they did not raise 

in their Statements of Position or in 

response thereto.419

Nor would the Board be persuaded by 

any claim that hearing officers are 

incapable of administering the amended 

offer-of-proof procedure. As discussed 

above, amended § 102.66(c) does not 

expand the hearing officer’s role beyond 

that which existed under the Board’s 

prior rules; rather, it merely confirms 

that the hearing officer—in the interests 

of protecting the record from being 

burdened by cumulative or unhelpful 

evidence and preventing unnecessary 

delay—has the discretion to require the 

parties to submit an offer of proof. Thus, 

the hearing officer’s role is limited to 

the traditional one of ‘‘guid[ing], 

direct[ing], and control[ling] the 

hearing, excluding irrelevant and 

cumulative material, and not allowing 

the record to be cluttered with evidence 

submitted ‘for what it’s worth.’ ’’ 

Hearing Officer’s Guide at 6, 38. See 

Casehandling Manual Section 11188.1. 

As shown, prior to the NPRM, hearing 

officers had discretion to require parties 

to submit offers of proof. Under the final 

rule, hearing officers continue to have 

discretion to require offers of proof, 

subject to the clarification that it is the 

regional director who will make the 

ultimate decision on the offer’s 

sufficiency. Nothing in the amendments 

denies parties the ability to argue orally 

about whether a particular offer of proof 

should be rejected. In our experience, 

hearing officers have been fully capable 

of requesting offers of proof and seeking 

direction from regional directors on 

whether to allow evidence to be 

received, and there is no reason to think 

that the amendments will change 

that.420

There will be adequate evidence on 

the record to decide the relevant issues. 

To be sure, prior to the NPRM, the 

Board had construed its rules as 

granting parties the right to litigate 

individual eligibility or inclusion 

questions, whereas the final rule 

provides that disputes concerning 

individuals’ eligibility to vote or 

inclusion in the unit found appropriate 

ordinarily need not be litigated or 

resolved before an election is 

conducted. The Board has concluded 

that, although this provision may 

operate to exclude evidence from the 

record concerning individuals’ 

eligibility to vote or inclusion in the 

unit found appropriate, such evidence is 

not relevant to the existence of a 

question of representation. As such, it 

would be administratively irrational to 

require that parties be permitted to 

litigate such issues at the pre-election 

hearing if the regional director will not 

be deciding those issues prior to the 

election. But, under the final rule, 

regional directors are free to direct that 

evidence regarding individuals’ 

eligibility to vote or inclusion in the 

unit be admitted if the director resolves 

to consider the individual eligibility 

question at issue prior to the election.421


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the hearing officer being the individual least suited 

to determine, as an initial matter, which witnesses 

would be best situated to provide the necessary 

evidence, we are also guided by the principal that 

the hearing officer is not an advocate for either side 

and must be impartial in developing the record. As 

the Casehandling Manual cogently explains, the 

hearing officer should avoid the appearance of 

providing undue assistance to one party or another 

and ‘‘should also exercise self-restraint, should give 

the parties prior opportunity to develop points, and 

should refrain from needlessly taking over.’’ 

11188.1. We think that the tools provided in the 

final rule will allow the hearing officer and the 

regional director to adequately control development 

of the record without taking steps—as suggested by 

IBEW—that could lead their impartiality to be 

called into question. 

422 Indeed, hearing officers have long been 

charged with passing on the admissibility of 

evidence, and ruling on petitions to revoke 

subpoenas that are filed after the hearing opens. See 

§§ 102.64, 102.65, 102.66, 102.68 (2009); Hearing 

Officer’s Guide at 1, 22, 29, 33–39; Casehandling 

Manual Sections 11188.1, 11185, 11194; 11204, 

11207, 11212. 

423As noted, a question of representation exists 

if a proper petition has been filed concerning a unit 

appropriate for the purpose of collective bargaining 

or concerning a unit in which an individual or labor 

organization has been certified or is being currently 

recognized by the employer as the bargaining 

representative. However, a proper petition cannot 

be filed under Section 9(c)(1) of the Act, and a 

question of representation cannot arise under the 

Act, unless the employees in the unit are employed 

by an employer covered by the Act. Thus, the 

regional director must determine that a proper 

petition has been filed in an appropriate unit in 

order to find that a question of representation 

exists. 

424See Mariah, Inc., 322 NLRB at 586 n.1 (hearing 

officer acted consistent with his role in ensuring 

that the record is both complete and concise in 

refusing to permit the introduction of irrelevant 

evidence at the pre-election hearing); National 

Mining Ass’n v. DOL, 292 F.3d 849, 873–74 (D.C. 

Cir. 2002) (the APA ‘‘empowers agencies to 

‘exclu[de] * * * irrelevant, immaterial, or unduly 

repetitive evidence’ as ‘a matter of policy’’’) 

(citation omitted); U.S. v. Maxwell, 254 F.3d 21, 26 

(1st Cir. 2001) (although a criminal defendant ‘‘has 

a wide-ranging right to present a defense, * * * this 

does not give him a right to present irrelevant 

evidence’’); U.S. v. Vazquez-Botet, 532 F.3d 37, 51 

(1st Cir. 2008) (same). Accordingly, parties have no 

right to present irrelevant evidence at a pre-election 

hearing, which is not governed by the APA’s formal 

adjudication provisions. See 5 U.S.C. 554 (a)(6); In 

re Bel Air Chateau Hospital, Inc., 611 F.2d 1248, 

1252–1253 (9th Cir. 1979) (representation case 

proceedings exempt from APA formal adjudication 

requirements); NLRB v. Champa Linen Service Co., 

437 F.2d 1259, 1262 (10th Cir. 1971) (same). 

We also wish to reiterate that if pursuant to the 

regional director’s direction, a hearing officer 

prevents receipt of evidence regarding an 

individual eligibility or inclusion question (on the 

grounds that the proffered evidence is not relevant 

to determining whether a question of representation 

exists,) the party remains free to present such 

evidence at a post-election hearing if that 

individual casts a determinative challenged ballot. 

Similarly, if the disputed votes are not 

determinative, parties can bring the issue back 

before the Board through a timely filed unit 

clarification petition if the union wins the election 

and they cannot resolve the issues through 

collective bargaining. Thus, the amendments do not 

limit any party’s right to present such evidence, but 

merely give the regional director discretion to defer 

introduction of such evidence until after the 

election. 

425As noted, hearing officers have long had 

discretion to require offers of proof at the preelection hearing. The courts of appeals have not 

remanded a significant number of cases because of 

erroneous hearing officer rulings regarding offers of 

proof, and we see no reason for this to change as 

a result of the final rule. If anything, the 

requirement that regional directors determine 

whether evidence described in the offer of proof 

should be received lessens the chance of erroneous 

rulings. 

Contrary to some of the comments, 

the hearing officer’s determination to 

require a party’s offer of proof and 

seeking a ruling from the regional 

director on whether to receive the 

described evidence does not constitute 

a ‘‘recommendation’’ or decision for 

purposes of Section 9(c)(1) of the Act. 

Thus, in deciding whether to require an 

offer of proof, and presenting that offer 

to the regional director, the hearing 

officer is not recommending, or 

deciding, whether a question of 

representation exists or whether an 

election should be directed to resolve 

that question. See Casehandling Manual 

Section 11185 (‘‘The hearing officer’s 

role is to guide, direct, and control the 

presentation of evidence at the hearing 

[but] [t]he hearing officer does not make 

any recommendations or participate in 

any phase of the decisional 

process.’’) 422 Moreover, as discussed 

above, the final rule makes clear in 

amended § 102.66(c) that it is the 

regional director, not the hearing officer, 

who will determine the issues to be 

litigated and whether evidence 

described in an offer of proof will be 

admitted. 

We would also find unpersuasive any 

claim that the amendments deprive 

parties of their right to an ‘‘appropriate’’ 

pre-election hearing under Section 9(c) 

of the Act. Section 9(c)(1) of the Act 

states that the Board must provide for 

‘‘an appropriate hearing’’ if it has 

‘‘reasonable cause to believe that a 

question of representation affecting 

commerce exists,’’ and that the Board 

must direct an election if it finds, based 

on the record of that hearing, that ‘‘such 

a question of representation exists.’’ 

Thus, the statutory purpose of the preelection hearing is to determine whether 

a question of representation exists.423 In 

the absence of an election agreement, 

the Board’s duty under Section 9(c) of 

the Act is to conduct a hearing to 

determine if a question of representation 

exists and, if such a question exists, to 

direct an election to answer the question 

and to certify the results. 

Amended § 102.66 does not deprive 

parties of their right to ‘‘an appropriate 

[pre-election] hearing’’ under Section 

9(c) of the Act. After all, as explained 

above, amended § 102.66(a) expressly 

provides that parties have the right to 

introduce evidence ‘‘of the significant 

facts that support the party’s 

contentions and are relevant to the 

existence of a question of 

representation.’’ Codifying hearing 

officers’ discretion to require parties to 

make offers of proof in § 102.66(c) 

likewise does not deprive parties of 

their right to ‘‘an appropriate [preelection] hearing’’ or their right to 

litigate relevant issues. To the contrary, 

offers of proof are a recurring feature of 

pre-election hearings under the NLRA 

(and of administrative and state and 

Federal court hearings across the land). 

An offer of proof is simply a tool to 

enable the regional director to 

determine whether it is appropriate to 

receive the evidence a party wishes to 

introduce. See Hearing Officer’s Guide 

at 38. Thus, for example, if the proffered 

evidence is not relevant to whether a 

question of representation exists and the 

offer is rejected, parties have not been 

deprived of their right to a pre-election 

hearing, because parties have no right— 

under the NLRA, the APA, or the due 

process clause of the United States 

Constitution—to present evidence that 

is not relevant to the statutory purpose 

of the pre-election hearing.424 Indeed, as 

shown, hearing officers had authority 

under the Board’s prior rules to seek 

responses to party positions and to 

require parties to make offers of proof. 

Moreover, because offers of proof are 

part of the record as discussed below in 

connection with amended § 102.68, 

parties’ rights are preserved even if the 

evidence is rejected in error. Thus, the 

offer of proof is in the record for the 

regional director (or the Board or a 

reviewing court) to review, and if the 

director (or the Board or a reviewing 

court) concludes that the evidence was 

rejected in error and that the error 

prejudiced the party making the offer, 

then the director (or the Board or a 

reviewing court) can order that the 

record be reopened and the evidence 

taken. Hearing Officer’s Guide at 38.425

Nor will the preclusion provisions 

prevent development of an adequate 

record upon which the regional director 

can determine whether there is an 

appropriate unit in which the Board 

may properly conduct an election. As 

explained in the NPRM, hearing officers 

had authority under the Board’s prior 

rules to preclude parties from 

presenting evidence when they refused 

to take positions on issues. See 79 FR 

7329–30; Bennett Industries Inc., 313 

NLRB 1363, 1363 (1994) (hearing officer 

properly refused to allow employer to 

introduce evidence regarding 


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426The NPRM proposed a slightly different 

version of this language, keyed only to the need for 

petitioner to adduce evidence concerning the 

appropriateness of the petitioned-for unit when the 

employer refused to take a position on the issue. 

See 79 FR 7357. However, the Board was persuaded 

in part by the comment of the AFL–CIO II that the 

Board’s proposed language should be modified to 

include a reference to evidence concerning 

jurisdiction, and a catch all covering any issue 

concerning which record evidence is necessary for 

those circumstances in which the record might lack 

other necessary evidence concerning issues that are 

neither contested, nor stipulated. For example, a 

petitioner’s status as a labor organization could be 

such an issue in certain cases. 

427Likewise, because, as the IFA points out, 

current Board law holds that employees who are 

jointly employed by two entities cannot be included 

in the same bargaining unit with employees who 

are solely employed by one of those entities without 

the consent of both entities (Oakwood Care Center, 

343 NLRB 659 (2004)), the Board may not find such 

a ‘‘mixed unit’’ to be appropriate merely on the 

basis that neither entity submits a Statement of 

Position. At the same time, it would be 

inappropriate to dismiss the petition simply based 

on the failure of the two entities to file Statements 

of Position, as for example, both entities could 

consent at the hearing. The petitioner could also 

amend its petition and seek to represent only the 

employees who are jointly employed by both 

employers (see id. at 662, 666 (a joint employer unit 

consisting solely of the jointly-employed employees 

is appropriate, even absent the employers’ 

consent)), or the union could amend its petition and 

seek to represent just the employees who are solely 

employed by one of the two entities. 

428See, e.g., Cook-Illinois; AGC; Sheppard 

Mullin; ACC; NRF; Indiana Chamber. 

429See, e.g., Bluegrass Institute; NMMA; 

Testimony of Curt Kirschner; GAM; Constangy. 

supervisory status of leadpersons and 

quality control inspectors because 

employer refused to take a position 

regarding their status and their 

inclusion or exclusion from the unit); 

Allen Health Care Services, 332 NLRB 

1308 (2000); Casehandling Manual 

Section 11217. Even if the hearing 

officer exercises the authority to limit an 

employer’s presentation of evidence 

when the employer fails to take a 

position regarding the appropriateness 

of a petitioned-for unit, the regional 

director will retain the discretion to 

direct the receipt of evidence needed to 

make the required determination 

concerning a petitioned-for unit which 

is not presumptively appropriate. That 

evidence may include testimony 

adduced from the employer’s owners, 

managers, or supervisors as witnesses, 

called under subpoena or otherwise, 

and documents obtained from the 

employer. 

Thus, for example, amended 

§ 102.66(b) contains an exception which 

explicitly provides that ‘‘this provision 

shall not preclude the receipt of 

evidence regarding the Board’s 

jurisdiction over the employer or limit 

the regional director’s discretion to 

direct the receipt of evidence 

concerning any issue, such as the 

appropriateness of the proposed unit, as 

to which the regional director 

determines that record evidence is 

necessary.’’ 426 And amended 

§ 102.66(a) provides that the hearing 

officer ‘‘shall also have the power to 

call, examine, and cross-examine 

witnesses and to introduce into the 

record documentary and other 

evidence.’’ The Board has concluded 

that employers who are unable or 

unwilling to take a position concerning 

the appropriateness of a proposed unit 

of their own employees are unlikely to 

provide assistance to the hearing officer 

in the development of an adequate 

record upon which to address that 

question. And we reiterate our further 

conclusion that not vesting hearing 

officers with clear authority to limit 

such employers’ participation in the 

hearings under those circumstances 

threatens the hearing officer’s ability to 

control the proceedings and avoid 

burdening the record. 

In short, if the parties do not enter 

into an election agreement, there will be 

a pre-election hearing. But Section 9(c) 

does not require a full evidentiary 

hearing in every case. Rather, it requires 

‘‘an appropriate hearing.’’ The Board 

concludes that a hearing where 

irrelevant evidence must be introduced 

is an inappropriate hearing. Thus, if the 

parties come to the hearing and the 

regional director determines that there 

are no disputes that must be resolved 

prior to the election (because, for 

example, all parties agree on the record 

that the Board has jurisdiction and that 

the only dispute concerns the 

supervisory status of one individual in 

a 10-person unit that all parties agree on 

the record is appropriate), an 

appropriate hearing does not require 

introduction of further evidence. See 

United States v. Storer Broadcasting, 

351 U.S. 192, 205 (1956); accord 

American Airlines, Inc. v. Civil 

Aeronautics Board, 359 F.2d 624, 628 

(en banc), cert. denied, 385 U.S. 843 

(1966). On the other hand, if, as 

discussed above, the petitioned-for unit 

is not presumptively appropriate and 

the employer refuses to take a position 

on the appropriateness of the unit, then 

although the amendments to § 102.66 

preclude the employer from presenting 

evidence and argument about the 

appropriateness of the unit, the 

amendments allow the petitioner to 

demonstrate the appropriateness of the 

unit at the hearing, or adduce evidence 

concerning any other issue for which 

record evidence is necessary. See 

§ 102.66(b). Thus, the amendments are 

consistent with Allen Health Care 

Services, 332 NLRB 1308, 1308–09 

(2000), where the Board held that if the 

employer refuses to take a position on 

a unit that is not presumptively 

appropriate, the hearing officer must 

take evidence sufficient to allow the 

regional director to find that the unit is 

appropriate before the director may 

direct an election in that unit.427

Similarly, unless the employer concedes 

the Board has jurisdiction, evidence 

must be taken on the Board’s statutory 

jurisdiction to process the petition. 

Indeed, amended § 102.66(b) provides 

that receipt of evidence regarding the 

Board’s jurisdiction will not be 

precluded even if the employer takes no 

position on this issue, and amended 

§ 102.66(d) contains language that 

expressly provides that ‘‘no party shall 

be precluded from * * * presenting 

evidence relevant to the Board’s 

statutory jurisdiction to process the 

petition.’’ 

Many comments specifically claim 

that the rule’s preclusion provision is 

unfair, biased, or too severe a 

consequence for an employer’s failure to 

raise an issue in its position statement, 

particularly in light of the abbreviated 

period of time permitted for its 

preparation; 428 one such comment 

(ACC) additionally questions the 

Board’s authority to preclude litigation 

of significant issues based on an 

inadvertent omission from the position 

statement. In addition, a number of 

comments argue that the short-time 

frame will lead employers to file ‘‘pro 

forma’’ position statements and may 

cause employers to put forward every 

argument rather than risk preclusion.429

We have already explained above in 

relation to § 102.63 why we disagree 

with the claim that the Statement of 

Position form due date and the preelection hearing scheduling provisions 

render preclusion unfair. We have 

likewise explained above why we 

disagree with the notion advanced in 

some comments that the preclusion 

proposal will lengthen pre-election 

hearings and therefore will be 

counterproductive. 

We also disagree with the comments 

that appear to challenge the very notion 

of preclusion itself as well as the 

Board’s authority to preclude parties 

from raising issues that they did not 

raise in their Statements or in response 

to another party’s Statement. Thus, the 

fact of the matter is that, as discussed 

above, prior to the NPRM, parties were 

required to raise contentions at 

specified times in the process or face 

preclusion. Indeed, as shown, 

Casehandling Manual Section 11217 

provided that the hearing officer should 

advise parties that they may be 


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430Accord Hearing Officer’s Guide at 22; NLRB 

Administrative Law Judge Bench Book Section 8– 

220 (2010) (‘‘[T]o avoid unnecessary delay, a party 

seeking to revoke a subpoena may be required to 

respond in less than 5 days’’). 

431Because the final rule does not codify any 

particular practice, Klein II’s complaint that the 

Board is reducing the time for motions to quash is 

no longer relevant to the final rule. 

foreclosed from presenting evidence on 

issues if they refuse to take a position 

on those issues. Prior to the NPRM, the 

Board had held that a hearing officer 

may preclude an employer from 

introducing evidence regarding the 

supervisory status of employees in 

certain job classifications if the 

employer refuses to take a position on 

their status and their inclusion or 

exclusion from the unit. Bennett 

Industries, Inc., 313 NLRB 1363, 1363 

(1994). Similarly, under the rules in 

effect prior to the NPRM, a party could 

‘‘not [in a request for review of a 

regional director’s decision and 

direction of election] raise any issue or 

allege any facts not timely presented to 

the regional director.’’ 29 CFR 102.67(d) 

(2010). Moreover, § 102.65(e)(1) of the 

prior rules provided that motions for 

reconsideration or to reopen the record 

needed to be based on extraordinary 

circumstances, and that neither the 

regional director nor the Board would 

entertain a motion for reconsideration or 

to reopen the record with respect to any 

matter which could have been but was 

not raised pursuant to any other section 

of the Board’s rules. Accordingly, even 

under the Board’s prior rules, if a party 

failed to present facts or take a position 

before the hearing officer at a hearing 

which opened and closed within 7-days 

of the notice, it could not do so later 

regardless of whether the failure was 

inadvertent. In addition, as discussed 

above in connection with § 102.63 (and 

§ 102.66), we have explicitly provided 

that parties may seek to amend their 

Statements of Position either before or 

during the hearing in a timely manner 

for good cause. 

In view of the foregoing, we 

categorically reject those comments that 

contend that we lack authority to 

impose preclusion, and that preclusion 

is too severe a consequence, for a party’s 

failure to complete the Statement of 

Position form. We likewise reject 

Professor Estreicher’s suggestion that 

the preclusive effect of failing to take a 

position required by the Statement of 

Position form should not extend beyond 

the pre-election period. Put simply, the 

Board believes, for example, that 

permitting parties to raise unit 

appropriateness issues after the election 

even if they did not raise those issues 

before the election would be 

inconsistent with the Board’s goal of 

expeditiously resolving questions of 

representation, and would thwart the 

Board’s interest in certainty and finality 

of election results. Moreover, as shown, 

the Board’s prior rules already required 

parties to raise certain issues before the 

election in order to preserve their ability 

to raise those issues subsequent to the 

election. 

Contrary to comments of GAM, the 

amendments do not operate to preclude 

challenges to the eligibility of an 

individual voter at the polls merely 

because the party seeking to challenge 

the voter at the polls failed to provide 

the initial lists of employees as part of 

its Statement of Position or failed to 

raise the issue of that individual’s 

eligibility at the hearing. Amended 

§ 102.66(d) merely provides that the 

employer ‘‘shall be precluded from 

contesting * * * the eligibility or 

inclusion of any individuals at the preelection hearing’’ if it fails to furnish the 

lists of employees as part of its 

Statement of Position. (emphasis 

added). Similarly, amended § 102.66(d) 

explicitly provides that ‘‘no party shall 

be precluded, on the grounds that a 

voter’s eligibility or inclusion was not 

contested at the pre-election hearing, 

from challenging the eligibility of any 

voter during the election.’’ In short, as 

noted above, even if an employer fails 

to complete a Statement of Position 

form, it will generally be able to 

challenge the eligibility of a particular 

individual at the polls, unless, of 

course, the regional director specifically 

ruled on that individual’s eligibility 

prior to the election. Cf. Casehandling 

Manual Section 11338.7 (‘‘Persons in 

job classifications specifically excluded 

by the Decision and Direction of the 

Election should be refused a ballot, even 

under challenge, unless there have been 

changed circumstances.’’) GAM argues 

that the provisions are confusing, but 

does not provide suggested language for 

clarifying the provisions. The Board 

does not view the language as 

confusing, and thus has determined that 

no change is necessary. 

SHRM argues that the preclusive 

effect of the rules is unfair because it 

operates primarily against the employer. 

We disagree. The preclusion provisions 

do not just apply in RC cases where the 

employer is the nonpetitioner and must 

complete the Statement of Position 

form. Rather, under amended 

§ 102.66(b) and (d), the preclusion 

provisions apply in all cases, without 

distinction, including RD 

(decertification cases) as well as RM 

cases, where the individual or labor 

organization currently representing 

employees, or seeking to represent 

employees, is the nonpetitioner and is 

responsible for completing a Statement 

of Position form. Moreover, where a 

labor organization is the petitioner, 

amended § 102.66(b) and (d) preclude it 

from seeking to introduce evidence 

concerning any issue that it did not 

place in dispute in response to another 

party’s Statement of Position. We also 

reiterate that, contrary to SHRM’s 

contentions that the amendments favor 

unions and impose one-sided burdens, 

if the employer refuses to take a position 

regarding the appropriateness of a 

petitioned-for unit that is not 

presumptively appropriate (or claims 

that the unit is not appropriate but fails 

to specify the classifications, locations, 

or other employee groupings that must 

be added to or excluded from, the 

petitioned-for unit to make it an 

appropriate unit), the petitioner cannot 

simply rest, but must demonstrate the 

appropriateness of the petitioned-for 

unit. Similarly, evidence must be taken 

as to the Board’s statutory jurisdiction to 

process the petition if the employer 

refuses to concede jurisdiction and fails 

to provide the commerce information in 

its Statement of Position form. See 

amended § 102.66(b). This is so even 

though the nonpetitioner employer 

unquestionably has greater access to the 

relevant information relating to those 

issues, as the employer established its 

employees’ terms and conditions of 

employment and knows the extent of 

the connection between its business and 

interstate commerce. 

C. Subpoenas 

The final rule does not adopt the 

proposed amendment to § 102.66(c) 

specifying that a party that has been 

served with a subpoena may be required 

to file or orally present a motion to 

quash prior to the 5 days provided in 

Section 11(1) of the Act. The Board had 

proposed to codify the existing practice 

noted in the Casehandling Manual, 

which provides that case authority 

‘‘holds that the 5-day period is a 

maximum and not a minimum.’’ Section 

11782.4.430 Upon reflection, however, 

the Board does not feel that it would be 

appropriate to codify the limited 

caselaw in this area, and instead prefers 

to allow the continued development of 

best practices among the Board’s 

regional directors and its administrative 

law judges concerning motions to quash 

subpoenas. 431

D. Discussion of Election Details 

The NPRM proposed that prior to 

closing the hearing, the hearing officer 

would inform the parties what their 

obligations under these rules would be 


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432According to Casehandling Manual Sections 

11842.3(a) and (b), the regional director should 

provide to both the parties and their designated 

representatives the election notice to be posted by 

the employer as well as the decision and direction 

of election. The final rule clarifies in § 102.66(g)(2) 

that the hearing officer will solicit the name, 

address, email address, facsimile number, and 

phone number of the employer’s on-site 

representative, which will aid the regional director 

in complying with that practice. The final rule also 

clarifies in § 102.66(g)(3) that the hearing officer 

will inform the parties that the director will 

transmit the decision and direction of election to 

both the parties and their designated 

representatives. 

433 Despite the current regulations, the Board has 

denied review of a direction of election when one 

argument made by the party requesting review was 

that the hearing officer had refused to permit posthearing briefs. Unifirst Corp., Case 5–RC–15052 

(Aug. 16, 2000). The Board reasoned that the party 

had showed no prejudice and was able to fully 

present its substantive argument in the request for 

review. Id. at n.1. 

434A preference for oral argument in lieu of 

briefing was among the ‘‘best practices’’ identified 

by the Board’s General Counsel in a 1997 report. 

See G.C. Memo. 98–1, ‘‘Report of Best Practices 

Committee—Representation Cases December 1997’’, 

at 10, 28 (‘‘It is considered a best practice that the 

hearing officer should solicit oral argument in lieu 

of briefs in appropriate cases since in some cases 

briefs are little, if any, assistance to the Regions and 

may delay issuance of the decision.’’). 

if the regional director directs an 

election. The NPRM also proposed that 

the hearing officer would solicit all 

parties’ positions on the type, dates, 

times, and location of the election, and 

the eligibility period. However, the 

NPRM also made clear that although 

parties would be solicited to provide 

their positions on the election details in 

their statements of position and at the 

hearing, the resolution of these issues 

would remain within the discretion of 

the regional director, and the hearing 

officer would not permit them to be 

litigated. 79 FR at 7330, 7358. 

The Board has decided to adopt these 

proposals in amended § 102.66(g), 

which provoked little comment. The 

Board believes that parties to a 

representation proceeding will be 

provided with useful guidance if the 

hearing officer advises them what their 

obligations will be if the director directs 

an election. 

In addition, as noted above in relation 

to § 102.63, the Board believes that the 

solicitation of the parties’ positions 

regarding the election details will help 

the Board to expeditiously resolve 

questions of representation. Because the 

parties will have fully stated their 

positions on the election details either 

in their statements of position or at the 

hearing, the regional director will be 

able to take the parties’ positions on 

those matters into account and 

ordinarily will be able to specify the 

election details in the direction of 

election, instead of needing a series of 

unnecessary phone calls or emails with 

the parties to discuss election details 

after the decision. And, because the 

director ordinarily will specify the 

election details in the direction of 

election, the director ordinarily will be 

able to issue the Notice of Election 

simultaneously with the direction. This 

will avoid unnecessary delay, because 

the election cannot be conducted until 

the details of the election are set, and 

the Notice of Election advises the 

employees of when, where, and how 

they may vote. And by enabling the 

director to let the employees vote 

sooner, the amendment will help the 

Board to more expeditiously resolve 

questions of representation. 

As discussed above in connection 

with § 102.63, the Chamber claims that 

it is not possible for a party to state its 

position regarding the election details 

until the regional director determines 

the unit. We find this objection 

unpersuasive in this context as well. 

Thus, parties are free at the hearing to 

present their positions on election 

details in the alternative if they believe 

that the parties’ various unit positions 

would impact their views on the 

election details. Moreover, given the 

small size of bargaining units in 

representation cases in recent years, the 

Board anticipates that it will be the 

exceptional case rather than the norm 

where differences between the 

petitioned-for unit and any other unit 

would cause the employer to feel the 

need to take such alternative positions 

regarding the election details. Finally, a 

regional director has discretion to 

contact the parties to ascertain their 

positions regarding the election details 

if the director ultimately chooses to 

direct an election in a unit that is 

materially different from that proposed 

by either party at the hearing.432

GAM questions whether the Board 

intends to abandon its current practice 

of taking into account the parties’ 

positions on the election details. The 

answer is ‘‘no.’’ The very purpose of 

soliciting the parties’ positions on these 

details in the Statement of Position and 

at the hearing is so the regional director 

can consider them in setting the 

election. Contrary to the comment, 

parties remain free under the final rule 

to explain the background reasons for 

their positions regarding the details of 

the election even though the issue is not 

litigable at the pre-election hearing. The 

Board points out, however, that even 

prior to the NPRM, the Board was not 

bound by the parties’ preferences. See, 

e.g., Casehandling Manual Section 

11302. Accordingly, contrary to GAM, 

the Board does not believe that the 

amendment will decrease the likelihood 

that parties will enter into election 

agreements. To the contrary, just as was 

the case prior to the amendments, one 

of the reasons why parties may want to 

enter into an election agreement and 

waive a pre-election hearing is to gain 

certainty over the election details. 

E. Oral Argument and Briefs 

The NPRM proposed amending 

§§ 102.67 and 102.66(h) to vest the 

hearing officer with discretion to control 

the filing, subjects, and timing of any 

post-hearing briefs. The final rule 

amends this proposal to vest the 

regional director with discretion to grant 

a request to file a post-hearing brief in 

amended § 102.66(h). 

The NPRM explained that, given the 

often recurring and uncomplicated legal 

and factual issues arising in pre-election 

hearings, briefs are not necessary in 

every case to permit the parties to fully 

and fairly present their positions or to 

facilitate prompt and accurate decisions. 

Yet under existing §§ 102.67(a) and 

101.21(b), in nearly all cases parties are 

afforded a right to file briefs at any time 

up to 7 days after the close of the 

hearing, with permissive extensions 

granted by hearing officers of up to 14 

additional days.433 By exercising that 

right or even by simply declining to 

expressly waive that right until after the 

running of the 7-day period, parties 

could potentially delay the issuance of 

a decision and direction of election and 

the conduct of an election 

unnecessarily. 

Various comments, including those of 

SHRM, AHA, AHA II, AHCA II and 

ALFA, oppose the proposed amendment 

on the ground that briefs are needed to 

sum up the evidence presented at the 

pre-election hearing. SHRM, ACE, and 

AHA point out that this cannot be done 

as effectively in oral argument at the 

close of the hearing because the full 

transcript is not yet available and 

parties need time to conduct research 

and formulate legal arguments. Bruce E. 

Buchanan argues that briefs serve to 

narrow the issues in dispute and 

identify relevant case law. The AFL– 

CIO points out that the current 

Casehandling Manual recognizes that 

briefs are not necessary or even of 

assistance in every case. Section 11242 

provides, ‘‘Before the close of the 

hearing, the hearing officer should 

encourage the parties to argue orally on 

the record rather than to file briefs.’’ 434

Curt Kirschner opposed the proposed 

amendment on the ground that hearing 

officers are not authorized to control 

briefing under Section 9(c)(1). 

Testimony on behalf of AHA II. And 

numerous other comments argue that 


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435See GAM; INDA II; AEM II; U.S. Poultry II. 

elimination of briefing by right denies 

parties due process.435

Having considered these comments, 

the Board has concluded that posthearing briefing is not required or even 

helpful in every case. In this regard, it 

is important to note that amended 

§ 102.66(h) does not prevent parties 

from filing post-hearing briefs. Rather, 

as amended, the final rule simply vests 

the regional director with discretion to 

permit or not permit such filings and to 

otherwise control the content and 

timing of any post-hearing briefs. 

Vesting the regional director with the 

authority and discretion to decide 

whether post-hearing briefs are 

necessary in a particular case eliminates 

any concerns that hearing officers are 

not permitted to control briefing under 

Section 9(c)(1). In addition, where 

complex issues arise, parties can argue 

to the regional director why briefing is 

necessary in that particular case. In the 

majority of representation cases, where 

briefing is not necessary, the final rule 

will eliminate unnecessary delay. 

Moreover, there is no denial of due 

process because in every case, parties 

aggrieved by a decision of the regional 

director will have a right to file a brief 

in support of their request for review. 

Thus, in every representation case that 

proceeds to a pre-election hearing, a 

party aggrieved by a ruling of a hearing 

officer or decision of the regional 

director will have had the opportunity 

to file at least one and sometimes two 

briefs before the close of the case. 

Finally, in relation to the need for a 

transcript before parties can adequately 

sum up the evidence, the Board notes 

that the typical pre-election hearing 

lasts for one day or less. 

It also bears mentioning that, even 

under the current rules, parties do not 

enjoy a right to file post-hearing briefs 

in certain kinds of representation cases. 

For example, the Board’s current rules 

do not permit the filing of briefs absent 

‘‘special permission’’ after a pre-election 

hearing conducted under Sections 

8(b)(7) and 9 of the Act. See 29 CFR 

101.23(c). Similarly, there is no right to 

file post-hearing briefs after a hearing on 

challenges or objections. See 

Casehandling Manual Section 11430; 

Hearing Officer’s Guide at 167 (‘‘In a 

hearing on objections/challenges, the 

parties do not have a right to file briefs. 

To the extent that briefs are not 

necessary and would interfere with the 

prompt issuance of a decision, they 

should not be permitted.’’). 

Regarding the arguments that the 

proposal denies due process, the Board 

points out that the final rule does not 

deny any party’s right to file at least one 

post-hearing brief with the Board before 

the close of the representation 

proceeding. Moreover, the rule permits 

the filing of a post-hearing brief with the 

regional director if such a request is 

granted. Combined with the right to file 

a pre-hearing brief or to file a hearing 

brief before the close of the hearing and 

to present closing oral argument in 

every case, the opportunities for the 

filing of post-hearing briefs provided in 

the final rule do not deprive any party 

of due process nor are they inconsistent 

with the statutory requirement of an 

‘‘appropriate hearing.’’ In Morgan v. 

United States, 298 U.S. 468 (1936), the 

Supreme Court considered the essential 

element of the ‘‘full hearing’’ required 

by the Packers and Stockyards Act, 7 

U.S.C. 310. The Court held that the 

requirement of a full hearing was not 

met if the decision-maker was an 

individual ‘‘who has not considered 

evidence or argument.’’ Id. at 481. 

However, the Court also made clear that 

the ‘‘requirements are not technical,’’ 

that ‘‘[e]vidence may be taken by an 

examiner,’’ and that [a]rgument may be 

oral or written.’’ Id. See also Abbott 

Laboratories v. NLRB, 540 F.2d 662, 665 

n.1 (4th Cir. 1976) (‘‘With respect to 

proceedings before the hearing officer, 

the Board ruled that its hearing officer 

was not required, either by statute or the 

due process clause, to accept 

posthearing briefs since the parties had 

the opportunity to express their views 

in writing both before and after the case 

was referred to the hearing officer * * * 

We see no error of fact or law in these 

rulings.’’); Lim v. District of Columbia 

Taxicab Commission, 564 A.2d 720, 726 

(DC App. 1989) (‘‘there exists no due 

process right * * * to file a brief’’). 

The APA and its legislative history 

contain evidence of Congress’s intent 

not to require that the Board permit 

post-hearing briefing after every preelection hearing. Enacted in 1946, 

Section 8 of the APA, 5 U.S.C. 557(c), 

provides, in pertinent part, that in 

formal agency adjudication ‘‘parties are 

entitled to a reasonable opportunity to 

submit * * * proposed findings and 

conclusions * * * and supporting 

reasons for the * * * proposed findings 

or conclusions.’’ But Section 5(6) of the 

APA, 5 U.S.C. 554(a)(6), specifically 

exempts from the category of formal 

adjudication those cases involving ‘‘the 

certification of worker representatives.’’ 

The courts have held that this 

exemption applies to both pre- and postelection hearings. See In re Bel Air 

Chateau Hospital, Inc., 611 F.2d 1248, 

1252–1253 (9th Cir. 1979); NLRB v. 

Champa Linen Service Co., 437 F.2d 

1259, 1262 (10th Cir. 1971). The Senate 

Committee Report explained that the 

exemption was inserted into the APA 

because the Board’s ‘‘determinations 

rest so largely upon an election or the 

availability of an election.’’ S. Rep. No. 

752, at 202 (1945). The committee also 

pointed to ‘‘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). 

Congress did not revisit this decision 

in 1947 when Section 9 of the NLRA 

was amended, and the APA continues to 

exempt representation cases from its 

formal adjudication requirements. In 

fact, between 1964 and 1966, Congress 

considered removing all the exceptions 

contained in Section 5 from the APA, 

but decided not to do so. In 1965, the 

Board’s Solicitor wrote to the Chairman 

of the Senate Subcommittee on 

Administrative Practice and Procedure 

objecting strenuously to removal of the 

exemption for representation cases. The 

Solicitor specifically objected that 

‘‘election case handling would be newly 

freighted and greatly retarded by * * * 

[s]ubmission to the hearing officer of 

proposed findings of fact and 

conclusions of law.’’ Administrative 

Procedure Act: Hearings on S. 1663 

Before the Subcomm. on Admin. 

Practice and Procedure of the Comm. on 

the Judiciary, 88th Cong., 2d Sess. 532 

(1964) (letter submitted by William 

Feldesman, NLRB Solicitor, May 11, 

1965). The Solicitor concluded, ‘‘After 

Congress has done so much to help 

speed the processing of election cases to 

avoid the dangers of delay, this would 

hardly be the time to inaugurate 

procedural changes which serve dilatory 

ends and have the potential to cause 

that bottleneck the Board has for years 

been attempting to prevent.’’ Id. at 534. 

In 1966, the Senate Committee on the 

Judiciary reported out a bill containing 

a provision, not ultimately enacted, that 

would have removed all the 

exemptions. But the Committee Report 

carefully explained, ‘‘It should be noted, 

however, that nonadversary 

investigative proceedings which 

Congress may have specified must be 

conducted with a hearing, are not to be 

construed as coming within the 

provisions of section 5(a) because of the 

deletion of the exemptions. An example 

of such a proceeding would be 

certification of employee representatives 

proceedings conducted by the National 

Labor Relations Board.’’ S. Rep. No. 

1234, 89 Cong., 2d Sess. 12–13 (1966). 

This history demonstrates that 

Congress’s intent in the APA was to 


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436Because § 102.67(j) of the current rules also 

addressed Board action regarding issues raised by 

a party’s request for review (in addition to Board 

action regarding issues that had been referred to it 

by a regional director via the transfer procedure), 

amended § 102.67(h) clarifies (consistent with 

current § 102.67(j)) that upon granting a request for 

review, the Board may provide for oral argument or 

further hearing, and shall make such disposition of 

the request for review as it deems appropriate. 

437The final rule provides for this in § 102.67(b), 

rather than in § 102.67(a) as proposed in the NPRM, 

and retitles the proposed ‘‘Final Notice to 

Employees of Election’’ as the ‘‘Notice of Election,’’ 

in light of the final rule’s retitling the proposed 

‘‘Initial Notice to Employees of Election’’ as the 

‘‘Notice of Petition for Election.’’ The final rule also 

states in § 102.67(a), rather than in § 102.67(b), that 

the decision by the regional director shall set forth 

the director’s findings, conclusions, and order or 

direction. 

ensure that written briefing was not 

required in representation cases because 

of the interest in expedition. Congress 

has steadfastly maintained this view, 

and has expressly rejected any written 

briefing requirement in representation 

cases whenever the matter has arisen. 

The change is therefore consistent with 

the requirements of the law and the 

intent of Congress. 

SEIU suggests amending the proposed 

rule to require that any briefing be 

completed within 14 days of the close 

of the hearing. The Board has 

considered this suggestion and decided 

that the regional director who will be 

writing the decision and considered the 

parties’ request to file a post-hearing 

brief is in the best position to determine 

if briefing should be permitted, what 

subjects any briefing should address, 

and when briefs should be filed. 

Accordingly, we decline to set a 14-day 

limit on post-hearing briefing. 

Sec. 102.67 Proceedings Before the 

Regional Director; Further Hearing; 

Action by the Regional Director; Appeal 

From Actions of the Regional Director; 

Statement in Opposition; Requests for 

Extraordinary Relief; Notice of Election; 

Voter List 

The NPRM proposed a number of 

amendments to § 102.67, addressing 

matters such as the regional director’s 

discretion to transfer a case to the Board 

before issuing a decision, the contents of 

the pre-election decision, the final 

election notice, the voter list, and the 

pre-election request for review 

procedure and the accompanying 25- 

day waiting period. 79 FR at 7332–33, 

7358–60. As discussed below, after 

careful consideration, the Board has 

decided to adopt some of the 

amendments as originally proposed, to 

adopt modified versions of other 

proposals, and to reject the remainder. 

A. Elimination of Transfer Procedure 

In the NPRM, the Board proposed to 

eliminate the regional director’s 

authority to transfer a case at any time 

to the Board for decision. 79 FR at 7333. 

This authority has rarely been used and, 

when it has been used, has led to 

extended delays in the disposition of 

petitions. See, e.g., Centurion Auto 

Transport, Inc., 329 NLRB 394 (1999) 

(transferred December 1994, decided 

September 1999); Roadway Package 

System, Inc., 326 NLRB 842 (1998) 

(transferred May 1995, decided August 

1998); PECO Energy Co., 322 NLRB 1074 

(1997) (transferred October 1995, 

decided February 1997); Johnson 

Controls, Inc., 322 NLRB 669 (1996) 

(transferred June 1994, decided 

December 1996). The Board did not 

receive any significant comments 

regarding this proposal, and the final 

rule adopts it. Accordingly, the final 

rule eliminates, for example, §§ 102.67 

(h), (i), and (j) of the current rules which 

referenced the transfer procedure, and 

reletters various subparts of § 102.67.436

B. The 20-Percent Rule 

As discussed above in connection 

with § 102.66, the Board has decided to 

reject the proposed 20-percent rule 

which in relevant part would have 

required the hearing officer to close the 

hearing if the only issues remaining in 

dispute concerned the eligibility or 

inclusion of individuals who would 

constitute less than 20 percent of the 

unit if they were found to be eligible to 

vote. 79 FR at 7330. The Board has 

likewise decided to reject the portion of 

the proposed 20-percent rule which 

would have required the regional 

director to defer deciding individual 

eligibility or inclusion questions 

involving less than 20 percent of the 

unit. 79 FR at 7332. Instead, for the 

reasons discussed above in connection 

with § 102.66, the Board has decided to 

preserve the discretion regional 

directors enjoyed even before the NPRM 

to defer resolving disputes concerning 

individuals’ eligibility to vote or 

inclusion in the unit until after the 

election or to decide such disputes 

before the election in the decision and 

direction of election. However, the final 

rule adopts in § 102.67(b) the NPRM 

proposal that, in the event a regional 

director defers deciding individual 

eligibility or inclusion questions until 

after the election, the Notice of Election 

shall explain that the individuals in 

question ‘‘are neither included in, nor 

excluded from, the bargaining unit, 

inasmuch as the regional director has 

permitted them to vote subject to 

challenge,’’ and the procedures through 

which their eligibility will be resolved. 

79 FR at 7332, 7359.437 The Board 

concludes that this provision will 

ensure that employees will not in any 

manner be misled about the unit. 

Rather, they will cast their ballots 

understanding, if applicable, that the 

eligibility or inclusion of a small 

number of individuals in the unit has 

not yet been determined. The 

amendment thereby provides guidance 

to employees and the parties and 

renders Board procedures more 

transparent. 

GAM asserts that the inclusion in the 

election notice of an explanation that 

individuals whose eligibility has not 

been determined will be permitted to 

vote subject to challenge precludes 

employees from ‘‘know[ing] the voting 

unit,’’ and that this violates the Act and 

due process pursuant to the reasoning in 

the Fourth Circuit’s unpublished 

decision in NLRB v. Beverly Health and 

Rehabilitation Services, 120 F.3d 262 

(4th Cir. 1997). However, under the 

amendments, as under the prior rules, 

the regional director must determine the 

unit’s scope and appropriateness prior 

to directing the election, and employees 

will be informed of the unit via the 

Notice of Election. Accordingly, as 

noted in connection with § 102.66, at 

the time they cast their ballots, the 

voting employees will be fully informed 

as to the scope of the unit, and will be 

able to fully assess the extent to which 

their interests may align with, or diverge 

from, other unit employees. Although 

the employees may not know whether 

particular individuals ultimately will be 

deemed eligible or included and 

therefore a part of the bargaining unit, 

that was also the case under the Board’s 

current rules, as explained above, 

because regional directors and the Board 

have long had the discretion to defer 

deciding individual eligibility or 

inclusion questions until after the 

election, and parties could agree to 

permit disputed employees to vote 

subject to challenge. Indeed, Section 

11084.3 of the Casehandling Manual in 

effect prior to the NPRM provided that 

where the parties agree that certain 

classifications of employees should vote 

subject to challenge, the notice of 

election ‘‘should indicate the 

classifications that will vote subject to 

challenge.’’ 

Moreover, the court’s concern in 

Beverly was that voters were somehow 

misled when the regional director 

defined the unit in one way prior to the 

election and the Board revised the 

definition after the election. The final 

rule would actually help prevent exactly 

that form of change in unit definition 

from occurring by codifying regional 

directors’ discretion to defer deciding 

individual eligibility or inclusion 

questions until after the election and by 


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438As noted above, the final rule moves this 

requirement from § 102.67(b) to § 102.67(a). 

439The Board has changed the language because 

there may be situations where the regional director 

concludes that it is appropriate to consult with the 

parties regarding election details after issuing the 

direction of election, notwithstanding the prior 

solicitation of the parties’ positions regarding those 

details. 

440Thus, when hearing officers solicit the parties’ 

positions, they can tell the parties the approximate 

time frame in which the regional director expects 

to issue the decision, and parties can reference that 

time frame in stating their positions. This is 

analogous to what happens now when Board agents 

contact parties after the decision issues and solicit 

their positions concerning the details of an election 

which cannot be held for at least 25 days pursuant 

to § 101.21(d). 

providing in amended § 102.67(b) that if 

the direction of election provides for 

individuals to vote subject to challenge 

because their eligibility has not been 

determined, the Notice of Election shall 

so state, thereby advising employees 

prior to the election that the individuals 

in question ‘‘are neither included in, nor 

excluded from, the bargaining unit, 

inasmuch as the regional director has 

permitted them to vote subject to 

challenge,’’ and that their unit 

placement ‘‘will be resolved, if 

necessary, following the election.’’ As 

already explained, the Board views this 

alteration to the Notice of Election as 

meeting the concerns raised by the 

Beverly court and as specifically 

countenanced by the Second Circuit in 

Sears, Roebuck & Co. v. NLRB, 957 F.2d 

52, 55 (2d Cir. 1992). 

C. Direction of Election With Statement 

of Reasons to Follow 

In the NPRM, the Board proposed to 

grant the regional director discretion to 

issue a direction of election without 

simultaneously providing a statement of 

reasons so long as the director provided 

his findings and statement of reasons 

prior to tallying the ballots. The Board 

expressed its tentative view that 

granting such discretion to the regional 

director would avoid unnecessary delay 

in the conduct of elections. 79 FR at 

7332. 

SEIU praised the proposal, claiming it 

could be instrumental in facilitating a 

timely election. On the other hand, 

GAM claims that the proposed 

amendment would be unfair because, 

without knowing the basis for the 

direction of election, parties could not 

evaluate whether to request review of 

the regional director’s direction of 

election. Negative comments also 

claimed, among other things, that the 

proposal would lead to poor decisionmaking by the regional directors (Fox, 

GAM); could give rise to unhelpful 

suspicion regarding the basis for the 

direction of election (Testimony of Curt 

Kirschner on behalf of AHA II); and 

could cause regional directors to set 

later election dates in complex cases 

(Fox). 

Upon reflection, the Board has 

decided to reject the proposal. The 

NPRM set forth the Board’s tentative 

view that the proposal to permit the 

regional director to direct an election 

without simultaneously providing a 

statement of reasons would not 

prejudice any party in light of another 

proposed amendment which would 

defer parties’ right to request Board 

review of pre-election rulings until after 

the ballots cast in the election were 

tallied. 79 FR at 7332. In other words, 

no party would be prejudiced by the 

proposal because the regional director 

would be required to furnish his 

statement of reasons before the ballots 

were tallied and because the time for 

filing a request for review of the 

direction of election would not start to 

run until after the tally of ballots. 

However, as discussed below, the Board 

has decided to reject that other proposal 

that would have deferred all parties’ 

right to request review of the regional 

director’s pre-election rulings until after 

the election. Because, under the final 

rule, a party may file a request for 

review of a direction of election prior to 

the election, the Board has likewise 

decided to reject the proposal that 

would have permitted the regional 

director to direct the election without 

simultaneously providing a statement of 

reasons. Rejection of this proposal will 

not create a new source of delay in 

conducting elections because the preNPRM rules already require regional 

directors to set forth their findings and 

conclusions in the decision and 

direction of election. 29 CFR 102.67(b) 

(2010).438 Moreover, upon reflection, we 

conclude, in agreement with the 

testimony of Kirschner II that the time 

savings that would have been achieved 

by adopting the proposal would have 

been relatively modest because they 

would have represented only the time it 

would have taken for the regional 

director to memorialize the decision. 

Thus, even under the proposal, the 

director could not have directed an 

election without first concluding that a 

question of representation did indeed 

exist in the unit in which an election 

was being directed. 

D. Specification of Election Details in 

Direction of Election; Scheduling of 

Election 

In the NPRM, the Board proposed that 

in the event the regional director directs 

an election, the direction of election 

‘‘shall specify’’ the type, date, time, and 

place of the election, and the eligibility 

period. 79 FR at 7359. Under prior 

practice, these details were resolved 

after the hearing and decision in 

sometimes lengthy phone consultations 

and negotiations with the various 

parties. As one commenter noted, ‘‘It is 

really frustrating when you go back to 

a bargaining unit and say, ‘We have 

your decision and direction of election, 

and now we’ll start the negotiation 

process about when your election is 

actually going to be held.’ * * * [The 

rule] eliminates one of the choke points 

later on in getting to an election in a 

timely manner * * *.’’ Testimony of 

Gabrielle Semel on behalf of CWA II. 

Instead of requiring the regional 

director to specify the election details in 

every direction of election, the Board 

has decided to provide in § 102.67(b) of 

the final rule that the direction of 

election ‘‘ordinarily will’’ specify the 

election details.439 Because, as 

discussed above in connection with 

§§ 102.63 and 102.66, the parties will 

have stated their positions on the 

election details in their petitions, in 

their Statements of Position and at the 

hearing, the regional director ordinarily 

will not need to solicit their positions 

on the election details yet again after 

issuing the direction of election, and 

therefore ordinarily will be able to 

specify the election details in the 

direction of election. And, because the 

director ordinarily will specify the 

election details in the direction of 

election, the director ordinarily will be 

able to issue the Notice of Election for 

the employer to post and distribute 

simultaneously with the direction, and 

amended § 102.67(b) so provides. These 

amendments will enable the regional 

director to let the employees vote 

sooner, because the election cannot be 

conducted until the details of the 

election are set and the Notice of 

Election advises the employees of when, 

where, and how they may vote. In sum, 

by enabling the regional director to 

conduct the election without 

unnecessary delay, the amendments 

will help the Board to more 

expeditiously resolve questions 

concerning representation. 

GAM suggests that some employers 

might refuse to allow elections on their 

premises if the regional director simply 

sets the election details in the direction 

of election instead of first contacting the 

employer. This comment 

misunderstands the rule. The Board 

hearing officer will ‘‘contact’’ the 

employer at the hearing itself, and there 

is no reason to think that contact at that 

time would be less efficacious in 

obtaining employer consent than 

contact after the decision.440 The change 


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441 GAM asks what will happen if the employer 

refuses to comply with the direction of election. 

The short answer is that, consistent with current 

practice, if the employer refuses to comply with the 

direction of election, then the Board will conduct 

the election by mail or offsite. 

442And the Casehandling Manual in effect prior 

to the NPRM also referenced the Board’s prior 

Statements of Procedures in determining when the 

election should be scheduled. Thus, it cited the 25- 

day waiting period provided in § 101.21(d) and 

stated, ‘‘When the Regional Director directs an 

election, the election normally should not be 

scheduled prior to the 25th day thereafter, unless 

the right to file a request for review has been 

waived, nor later than the 30th day thereafter Sec 

101.21(d), Statements of Procedure.’’ Casehandling 

Manual Section 11302.1. 

443We reject Vigilant’s claim that the scheduling 

language will result in the Board having to conduct 

more mail ballot elections because ‘‘it will be nearly 

impossible to * * * have a Board agent conduct the 

election in person’’ under the ‘‘compressed election 

time frame[s].’’ Just as was the case prior to the 

NPRM, regional directors will continue to take 

operational considerations (including Board agent 

availability) into account in setting the election 

date. Moreover, the final rule sets no rigid 

timetables for conducting elections. 

444We have previously addressed the complaints 

that the amendments deprive employers of an 

effective opportunity to campaign against union 

representation or otherwise interfere with employee 

free choice. 

445As discussed above, the final rule retitles the 

proposed ‘‘Final Notice to Employees of Election’’ 

as the ‘‘Notice of Election.’’ 

will obviate the need for a wasteful 

post-decision consultation process in 

favor of more efficient consultations 

during the hearing itself. Given that all 

parties will be present at the preelection hearing, it seems eminently 

reasonable to solicit the parties’ 

positions at that time, rather than have 

the Board agent attempt to solicit input 

individually after the direction issues. 

In any event, as shown, the final rule 

leaves the director free to consult with 

the parties yet again after issuing a 

direction of election if the director 

concludes that it is appropriate to do so. 

For example, if the regional director 

directs an election in a unit significantly 

different from the union petitioner’s 

proposed unit and the employer’s 

alternative unit, the regional director 

should consult with the parties 

concerning the election details. 

Moreover, contrary to the suggestion in 

the comment, regional directors were 

not bound by the parties’ preferences 

regarding the election details prior to 

the NPRM. See Casehandling Manual 

Section 11302.441

The final rule also adopts in 

§ 102.67(b) the NPRM proposal that in 

the event the regional director directs an 

election, the director ‘‘shall schedule 

the election for the earliest date 

practicable consistent with these rules.’’ 

79 FR at 7332, 7359. Many comments 

object to the NPRM proposals, claiming 

(incorrectly) that the Board improperly 

focused on the need to expeditiously 

resolve questions concerning 

representation to the exclusion of other 

factors. In fact, as discussed above in 

connection with the need for the rule 

and the opportunity for free speech and 

debate, the Board did not focus 

exclusively on the statutory goal of 

expeditiously resolving questions 

concerning representation. The Board 

likewise categorically rejects the notion 

that the proposed language, which the 

final rule adopts, constitutes a sea 

change from the Board’s practice which 

existed prior to the NPRM. In fact, it 

represents no change. Thus, the 

Casehandling Manual in effect prior to 

the NPRM already provided that ‘‘[a]n 

election should be held as early as is 

practical[,]’’ Casehandling Manual 

Section 11302.1.442 The language in the 

final rule is virtually identical to the 

Casehandling Manual language which 

predated the NPRM, going back 

decades. See, e.g., Casehandling Manual 

Section 11302.1 (1975). The Board takes 

this opportunity to reassure the public 

that, as noted above in connection with 

the opportunity for free speech and 

debate, the regional director will 

continue to consider the various 

policies protected by the Act—as well as 

operational considerations and the 

relevant preferences of the parties—in 

selecting an election date. Id.443 Thus, 

for example, the regional director 

should avoid scheduling the election on 

dates on which past experience 

indicates that the rate of attendance will 

be low. Id. At the same time, just as was 

the case prior to the NPRM, the regional 

director is not bound by the parties’ 

desires concerning the election date. 

Casehandling Manual Section 11302.444

The Board intends to leave the precise 

scheduling of elections to the discretion 

of the regional directors under the 

supervision of the General Counsel. 

E. Regional Director Transmission of 

Direction of Election and Notice of 

Election; Posting and Distribution of 

Notice of Election 

In the NPRM, the Board proposed that 

both the decision and direction of 

election and the election notice be 

electronically transmitted to the parties’ 

designated representatives when the 

parties have provided the relevant email 

addresses to the regional office or the 

documents would be transmitted by 

facsimile.445 If a party provides neither 

an email address nor a facsimile 

number, the regional director would 

transmit the direction of election and 

the election notice via overnight mail. 

79 FR at 7332, 7359. The final rule 

adopts these proposals in § 102.67(b). 

The final rule also provides in 

§ 102.67(b) that those documents will 

also be transmitted in the same manner 

to the parties themselves. This is 

consistent with Casehandling Manual 

Section 11842.3, which provides that 

the regional director furnish both the 

parties and their representatives with 

election notices and representation case 

decisions. And, because, as discussed 

above, the director ordinarily will 

specify the election details in his 

direction of election, the final rule 

likewise provides that the Notice of 

Election will ordinarily be transmitted 

simultaneously with the direction of 

election. These amendments permit the 

Board to use modern methods of 

communication to transmit important 

representation case documents and to 

expeditiously resolve questions of 

representation in a more cost-efficient 

manner as electronic mail is cheaper 

and quicker than more traditional 

means of transmitting documents. 

Section 103.20 of the Board’s current 

rules addresses the posting of the 

election notices. The NPRM proposed to 

eliminate § 103.20, the only section of 

part 103 of the regulations governing 

procedures in representation 

proceedings, and to integrate its 

contents into part 102, as modified in 

proposed § 102.67. 79 FR at 7334. The 

final rule adopts this proposal which 

should make it easier for parties to 

comply with their obligations by 

describing the obligations in one place. 

The NPRM proposed that employers 

be required to post copies of the election 

notice ‘‘in conspicuous places,’’ but that 

the notice to be posted upon the filing 

of the petition (before an election is 

agreed to by the parties or directed by 

the regional director) be posted where 

notices to employees are customarily 

posted. 79 FR at 7354, 7359. Upon 

reflection, the Board has concluded that 

to help ensure wide dissemination of 

the important information contained in 

the Notice of Election, it should be 

posted ‘‘in conspicuous places, 

including all places where notices to 

employees in the unit are customarily 

posted,’’ and the final rule so provides 

in amended § 102.67(k). This 

amendment parallels the final rule’s 

amendment to § 102.63(a)(2) concerning 

the ‘‘Notice of Petition for Election.’’ 

The NPRM also proposed to require 

the employer to electronically distribute 

the election notice if it customarily 

communicates with its employees 

electronically. 79 FR at 7359–7360. The 

final rule adopts this proposal in 

§ 102.67(k), which parallels the 

amendments to § 102.63(a)(2) regarding 

the Notice of Petition for Election. Thus, 

if the employer customarily 


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446However, because of the potential unfairness 

of conclusively presuming that the employer 

received the notice if it does not inform the region 

to the contrary within 5 work days, the final rule 

also adopts the NPRM proposal (79 FR at 7332) to 

eliminate the provision creating such a conclusive 

presumption in § 103.20(c) of the prior rules. 

communicates with employees in the 

unit by emailing them messages, it will 

need to email them the Notice of 

Election. Similarly, if the employer 

customarily communicates with its 

employees by posting messages on an 

intranet site, it will need to do that. The 

Board concludes that the amendment 

will facilitate wider dissemination of 

the important information in the Notice 

of Election, thereby providing greater 

guidance to the employees. 

The proposal to require the employer 

to electronically distribute the election 

notice was received with little 

controversy in the comments. Some 

comments, such as those filed by GAM 

and U.S. Poultry II, express concern that 

the requirement to distribute the 

election notice to employees 

electronically if the employer 

customarily communicates with its 

employees electronically could lead to 

additional grounds for filing objections 

to the election and subsequent 

litigation, particularly if some intended 

recipients do not receive the 

transmission. Unless an employer can 

be shown to have departed from its 

customary practice in electronic 

distribution, there will be no basis for 

an objection. The Board views the 

possibility of litigation delays, where an 

employer fails to comply with the final 

rule’s electronic distribution 

requirement, as outweighed by the 

expected benefit of more effective 

distribution of the election details to 

eligible voters. 

GAM also speculates that employees 

are likely to print and distribute the 

notices to each other, but it is unclear 

why it would be objectionable if 

employees merely distributed copies of 

the actual election notice. GAM 

expresses concern that employees may 

modify the sample ballots on the notice 

which will lead to objections, but just as 

was the case prior to the NPRM, the 

Notice of Election will warn employees 

that the notice must not be defaced by 

anyone, that any markings on any 

sample ballot or on the notice were 

made by someone other than the 

National Labor Relations Board, and 

that the National Labor Relations Board 

‘‘does not endorse any choice in the 

election.’’ Form 707. In any event, the 

possibility of employees marking up the 

sample ballot on the election notice 

existed under the prior rules because 

the employer was required to physically 

post the notices in ‘‘conspicuous 

places.’’ See 29 CFR 103.20(a)(2010). 

The NPRM also proposed to reduce 

the minimum time for posting of the 

notice of the election from 3 to 2 

working days, because of the provisions 

for the mandatory posting of a more 

detailed initial notice of election, for 

manual and electronic posting of the 

final notice by employers, and, to the 

extent practicable, for electronic 

transmission of the final notice of 

election to affected employees by the 

regional director. 79 FR at 7332. 

However, as discussed below, under the 

final rule, the regional director will not 

be transmitting the Notice of Election 

directly to the affected employees. 

Accordingly, the Board has decided to 

maintain the current 3 working-day 

posting requirement, rather than reduce 

it to 2 days. The final rule preserves in 

amended § 102.67(k) the relevant 

language about the time for posting that 

previously appeared in § 103.20(a) and 

(b).446

Consistent with the pre-NPRM 

version of § 103.20(c), and (d), the final 

rule also provides in § 102.76(k) that the 

employer’s failure properly to post (or 

distribute) the election notices shall be 

grounds for setting aside the election 

whenever proper and timely objections 

are filed. However, just as was the case 

prior to the NPRM, the final rule also 

provides that a party is estopped from 

objecting to the nonposting if it is 

responsible for the nonposting, and 

likewise is estopped from objecting to 

the nondistribution of notices if it is 

responsible for the nondistribution. 

The NPRM also proposed that the 

regional director would electronically 

transmit the notice to the affected 

employees to the extent practicable. 79 

FR at 7359. Thus, if the employer 

provided employee email addresses to 

the regional director, the regional 

director would transmit the notice to 

those employees. 79 FR at 7332. 

The AFL–CIO praises this proposal as 

a positive contribution to informationsharing. Some comments, such as those 

filed by ALFA and GAM object on the 

grounds that it could cause an increase 

in the number of objections being filed 

if, for example, the Board fails to serve 

employees or the Board’s attempts at 

service are blocked by the recipients’ 

spam filter. Moreover, Ms. Kutch 

(relying on her background in online 

organizing and bulk email delivery) 

explained that navigating spam filters to 

ensure high rates of bulk email 

deliverability to the individuals at issue 

would likely be beyond the agency’s 

technological capacity (or our 

foreseeable budgetary restrictions). 

Testimony of Jess Kutch on behalf of 

Coworker.org II. ALFA also implies that 

direct notification by the regional office 

is unnecessary since the NPRM would 

still require the employer to post paper 

copies of any election notice. 

Upon reflection, the Board has 

decided to reject the proposal that the 

regional director transmit the election 

notice to employees to the extent 

practicable. Under the final rule, an 

employer must post the Notice of 

Election in paper form in conspicuous 

places, including all places where 

notices to employees in the unit are 

customarily posted for at least 3 full 

working days. In addition, as discussed 

above, if the employer customarily 

communicates with its employees by 

emailing them messages, it will need to 

email the Notice of Election to them as 

well. Similarly, if the employer 

customarily communicates with its 

employees by posting messages on an 

intranet site, it will need to post the 

notice on its intranet site as well. So any 

transmission by the Board in those 

circumstances would be largely 

duplicative. Moreover, given Jess 

Kutch’s testimony that email providers 

can, and often do, block bulk emails 

(even if the intended recipients would 

like to receive the emails in question), 

it seems highly speculative that regional 

directors could effectively transmit the 

Notice of Election to unit employees 

electronically. In any event, the regional 

director will not have the information 

necessary to transmit the Notice of 

Election to employees at work under the 

final rule, because the final rule does 

not require the employer to furnish 

either the work email addresses or work 

phone numbers to the regional director. 

As for personal email addresses, if the 

employer customarily communicates 

with its employees via their personal 

email addresses, it will be required to 

distribute the notices that way as well 

under the final rule. And because the 

employer must furnish the nonemployer 

parties to the case with the available 

personal email addresses of its 

employees, the nonemployer parties 

will be able to transmit the Notice of 

Election themselves if they care to do so 

(even if the employer does not 

customarily communicate with them via 

personal email addresses). Accordingly, 

the Board declines to adopt the proposal 

to require the regional director to 

electronically transmit the final election 

notice to employees. 

F. Voter List 

The final rule makes the same 

changes with respect to the content, 

timing, format and service of the list of 

eligible voters that the employer must 

file after a direction of election as were 


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447As was the case prior to the NPRM, the Board 

agent must challenge anyone who has been 

permitted by the regional director to vote subject to 

challenge. Casehandling Manual Section 

11338.2(b). 

448As 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). ‘‘Trial court errors become 

moot if the aggrieved party nonetheless obtains a 

final judgment in his favor, and appellate courts 

need not waste time familiarizing themselves anew 

with a case each time a partial appeal is taken.’’ 

Mitchell v. Forsyth, 472 U.S. 511, 544 (1985) 

(Brennan, J., concurring in part). The final judgment 

rule was adopted by the common law English 

courts from at least the 1300s, and in America was 

enshrined in the Judiciary Act of 1789 and retained 

in every subsequent revision of the judicial code. 

See C.M. Crick, The Final Judgment Rule as a Basis 

for Appeal, 41 Yale L.J. 539, 539–552 (1932); see 

also T.D. Frank, Requiem for the Final Judgment 

Rule, 45 Texas L. Rev. 292, 292–93 (1966) (‘‘[The 

rule] effectuates, in general, an efficient utilization 

of judicial manpower and permits the initial stage 

of the litigation to operate in a smooth, orderly 

fashion without disrupting appeals.’’). 

449See Dissenting Views of Members Miscimarra 

& Johnson to NPRM, 79 FR at 7343 & n.108 (the 

NPRM proposal is ‘‘directly contrary to Section 3(b) 

of the Act,’’ and the proposed request-for-specialpermission-to-appeal ‘‘is qualitatively different 

from what Section 3(b) requires.’’); see also, e.g., 

COLLE II; Chamber II; Testimony of Curt Kirschner 

on behalf of AHA II. 

450The statute does not expressly state that 

parties are entitled to request review of a regional 

director’s pre-election decision before the election. 

Moreover, Section 3(b) clearly gives the Board 

discretion to deny review, see Magnesium Casting 

Co. v. NLRB, 401 U.S. 137, 142 (1971), and, just as 

the Board can exercise its discretion to decide 

hospital units ‘‘in each case’’ by a single rule, see 

Am. Hosp. Assn., 499 U.S. at 606, 610–613, it seems 

to us that the Board could also deny review of 

entire categories of cases by rule. The proposed rule 

would have merely delayed, rather than denied, 

review, and logically the greater power should 

include the lesser. 

451This exception is also necessary in light of the 

different procedures for Board review applicable to 

dismissal of petitions under § 102.71, and 

procedures for elections which implicate Section 

8(b)(7) of the Act, and other specialized 

circumstances addressed elsewhere in the 

regulations. 

described above in relation to § 102.62 

after entry into any form of consent or 

stipulated election agreement. In 

addition, § 102.67(l) provides that the 

employer shall also include in a 

separate section of the list the voter list 

information for those individuals who, 

according to the direction of election, 

will be permitted to vote subject to 

challenge, including, for example, 

individuals in classifications or other 

groupings that will be permitted to vote 

subject to challenge. The Board 

concludes that this requirement will 

serve the goal of ensuring that employee 

votes are recorded accurately and 

efficiently and help the Board to 

expeditiously resolve questions of 

representation. Thus, if the names of 

such disputed individuals are put in a 

separate section of the list, it makes it 

more likely that the Board agent (and 

the parties’ observers) will realize which 

employees who show up to vote were 

directed to vote subject to challenge, 

and therefore makes it more likely that 

those employees will be instructed to 

put their ballots in challenged ballot 

envelopes before placing them in the 

ballot box. See Casehandling Manual 

Sections 11338.2(b), 11338.3.447 This 

provision will reduce the chances of 

objections being filed on the grounds 

that disputed employees’ ballots were 

comingled with other employees’ 

ballots. This provision is also consistent 

with the amendments providing that in 

the event a regional director chooses to 

defer deciding individual eligibility or 

inclusion questions until after the 

election, the Notice of Election shall 

explain that such individuals are being 

permitted to vote subject to challenge 

and what that means. 

G. Requests for Review of the Regional 

Director’s Decision and Direction of 

Election 

In the NPRM, the Board proposed 

amendments to the current pre-election 

request-for-review procedure. Under the 

current rules, the parties are required to 

request Board review within 14 days of 

a regional director’s decision and 

direction of election or be deemed to 

have waived any arguments that were or 

could have been made concerning 

rulings at the pre-election hearing or in 

the decision and direction of election. 

§ 102.67(b), (f); see, e.g., A.S. Horner, 

Inc., 246 NLRB 393, 394–95 (1979). But 

elections were scheduled no sooner 

than 25 days after the direction of 

election, and thus, as a practical matter, 

parties were required to file a request for 

review of the direction of election prior 

to the election. This was the only 

opportunity for Board review of this 

decision. 

The Board proposed to eliminate the 

pre-election request-for-review 

procedure in the NPRM and instead 

permit parties to file any such request 

after the election, when it could be 

consolidated with any request for 

review of the director’s disposition of 

post-election disputes arising out of 

challenges or objections. The Board 

explained that the proposed 

consolidation of Board review would 

eliminate unnecessary litigation because 

many issues raised through pre-election 

requests for review are either rendered 

moot by the election results or are 

resolved by agreement of the parties 

post-election. In addition, the Board 

explained, permitting parties to 

consolidate, in a single filing, requests 

that the Board review pre- and postelection rulings would result in 

efficiencies for the parties and the 

Board. 79 FR at 7329, 7333. 

Comments praising the proposal to 

eliminate the current pre-election 

request for review procedure point out 

that it would conform Board procedures 

with the ordinary rules in both Federal 

and state courts, which generally 

disfavor interlocutory appeals as 

wasteful, piecemeal litigation that can 

cause delay and which therefore 

generally require parties to conclude all 

litigation in a case before filing an 

appeal or seeking review. See, e.g., 

AFL–CIO II; Supplemental Testimony of 

Thomas Meikeljohn; Testimony of Brian 

Petruska on behalf of LIUNA MAROC II. 

There is a great deal of force to this 

argument, which is consistent with 

sound judicial and administrative 

policy developed over centuries, and is 

in the best interest of all parties to 

representation cases.448

However, Section 3(b) states 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 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.’’ The 

argument has been presented that this 

provision grants parties a right to 

request interlocutory review.449

Although we do not agree that the 

statute compels this result,450 we have 

concluded that the Board’s objectives 

are better served by amending the rules 

in a manner that preserves the 

opportunity to request review of ‘‘any 

action of a regional director delegated to 

him under Section 3(b)’’ at any time, 

and, where necessary, to request a stay. 

The final rule is intended to codify 

the text of the statute. Thus, the relevant 

portion of the final rule begins by 

stating, in § 102.67(c): 

Upon the filling of a request therefor with 

the Board by any interested person, the Board 

may review any action of a regional director 

delegated to him under Section 3(b) of the 

Act except as the Board’s rules provide 

otherwise, but such a review shall not, unless 

specifically ordered by the Board, operate as 

a stay of any action taken by the regional 

director. 

The emphasized language is the only 

alteration from the text of the statute, 

and its purpose is primarily to clarify 

that parties which waive the right to 

Board review in an election agreement 

under § 102.62(a) or (c), or under 

§ 102.67(g) are no longer entitled to 

request review under this provision.451

The rule then goes on to state that: ‘‘The 

request for review may be filed at any 


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452For this reason, the Board disagrees with 

comments which contend that the proposed rule 

would not have expedited commencement of 

bargaining, but would simply shift review until 

after the election. See, e.g., Testimony of Michael 

Prendergast on behalf of Holland & Knight; AHA; 

Seyfarth Shaw. 

453The final rule does not change the standard for 

granting requests for view. Just as was the case prior 

to the NPRM, the Board will grant a request for 

review ‘‘only where compelling reasons exist 

therefor.’’ 

454Out of the 6686 RC, RM, and RD elections held 

from FY10 to FY13, there were only 14 cases in 

which regional director decisions were reversed. 

Relatedly, some comments argue that deferring 

review of issues that were previously raised in a 

pre-election request for review until after the 

election will result in the Board addressing more 

issues subsequent to the opening of the ballots. See, 

e.g., PIA; COLLE; ACE. This point is true but not 

significant because less overall litigation will be 

required, and because, as discussed, requests for 

review are so rarely found meritorious by the Board. 

455See, e.g., Testimony of Harold Weinrich on 

behalf of Jackson Lewis LLP; Chamber II. 

time following the action until 14 days 

after a final disposition of the 

proceeding by the regional director. No 

party shall be precluded from filing a 

request for review of the direction of 

election within the time provided in 

this paragraph because it did not file a 

request for review of the direction of 

election prior to the election.’’ Finally, 

a number of other changes are made to 

carry out and clarify the essential 

amendments here. 

1. The Parties Will Have Greater 

Latitude to Choose When to File a 

Request for Review 

The first notable change is that the 

due date for filing requests is relaxed. 

The Board’s current practice of 

requiring parties to seek such review of 

directions of election before the 

election—or be deemed to have waived 

their right to take issue with the 

decision and direction of election—not 

only encourages unnecessary litigation, 

but actually requires parties to conduct 

unnecessary litigation. Thus, in the 

Board’s experience, many pre-election 

disputes are either rendered moot by the 

election results or can be resolved by 

the parties after the election and 

without litigation once the strategic 

considerations related to the impending 

elections are removed from 

consideration.452 For example, if the 

regional director rejects an employer’s 

contention that a petitioned-for unit is 

inappropriate and directs an election in 

the unit sought by the union, rather than 

in the alternative unit proposed by the 

employer, the Board’s current rules 

require the employer to request review 

of that decision prior to the election or 

be precluded from contesting the unit 

determination at any time thereafter. 

But if the union ends up losing an 

election, even though it was conducted 

in the union’s desired unit, the 

employer’s disagreement with the 

regional director’s resolution becomes 

moot (because the employer will not 

have to deal with the union at all), 

eliminating the need for litigation of the 

issues at any time. The current rules 

thus impose unnecessary costs on the 

parties by requiring them to file preelection requests for review in order to 

preserve issues. 

Accordingly, the Board has decided to 

amend the current pre-election request 

for review procedure and to provide that 

any party may request review of a 

regional director decision to direct an 

election either before the election or 

after the election. Thus, the final rule 

provides that the request for review of 

the direction of election may be filed at 

any time after the direction of election 

issues until 14 days after a final 

disposition of the proceedings by the 

regional director. Under the 

amendments, a party can choose to file 

a request for review of the regional 

director’s decision to direct an election 

before the election or can choose to wait 

to file the request for review until after 

the election.453 We conclude that this 

amendment, which relieves parties of 

the burden of requesting pre-election 

review in order to preserve issues that 

may be mooted by the election results, 

will further the goal of reducing 

unnecessary litigation because, in our 

view, rational parties ordinarily will 

wait to file their requests for review 

until after the election, to see whether 

the election results have mooted the 

basis for such an appeal. The 

amendment should also reduce the 

burdens on the other parties to the case 

and the government, by avoiding the 

need for the other parties to file 

responsive briefs and for the Board to 

rule on issues which could well be 

rendered moot by the election results. 

Some comments also raise policy 

arguments which could apply to the 

final rule’s provision permitting parties 

to file requests either before or after the 

election. For example, SHRM, AHA, and 

ACE generally commented that in cases 

where review would otherwise have 

been granted, the proposed rule would 

result in elections being run 

unnecessarily, causing both the Board 

and the parties to incur unnecessary 

expense. The comments pose the 

example of a regional director failing to 

find a bar to the conduct of an election, 

and thereby erroneously directing an 

election. But this example aptly 

illustrates the flaw in the argument. 

Even under the current rules, if a 

regional director finds no contract bar 

and directs an election, and a party files 

a request for review that the Board 

ultimately grants, the election is 

regularly held anyway and the ballots 

impounded prior to Board resolution of 

the issue. See, e.g., VFL Technology 

Corp., 329 NLRB 458, 458 (1999); 

Western Pipeline, Inc., 328 NLRB 925, 

925 n.1 (1999). Thus, the same expenses 

may be unnecessarily incurred under 

current procedures. See, e.g., Mercy 

General Health Partners Amicare 

Homecare, 331 NLRB 783, 785–86 

(2000) (Board directed that impounded 

ballots not be counted and that second 

election be held after ruling on preelection request for review postelection). Moreover, given the small 

number of requests for review filed each 

year, and the extraordinarily small 

percentage of regional directors’ 

decisions that are ultimately 

reversed,454 the number of cases of the 

type described in these comments is 

likely to be very small. In any event, 

under the final rule, a party may still 

file a request for review before the 

election. 

AHA comments that the Board’s own 

failings in timely processing requests is 

not a basis for eliminating the right of 

parties to review. This point is no longer 

applicable because parties will retain 

the right to seek pre-election review. In 

addition, the Board is entitled to and 

must consider its own adjudicative and 

administrative capacities and past 

performance in evaluating its 

procedural rules. The elimination of the 

requirement that parties file pre-election 

requests for review should, as explained 

above, reduce the number of disputes 

reaching the Board. The Board will, 

therefore, be able to dispose of those 

disputes that do reach it more promptly. 

Other comments suggest that limiting 

pre-election review will mean that the 

parties will be unsure who is a 

supervisor during the pre-election 

campaign.455 This objection is 

addressed at length above in relation to 

§ 102.66. The current pre-election 

review procedures do not entitle the 

parties to a final Board determination on 

such matters prior to the election and 

rarely result in such a determination. In 

addition, under current procedures, 

even in the very rare cases where the 

Board both grants review and rules on 

the merits prior to the election, as 

explained above, the ruling typically is 

issued only days before the election, i.e., 

well into the critical period between 

petition and election, and thus does not 

serve the purpose the comments suggest 


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will be thwarted if the pre-election 

request for review is eliminated. 

We also reject any suggestion that the 

final rule will increase the number of 

technical 8(a)(5) cases by denying 

parties ‘‘the palliative of Board review’’ 

of the regional director’s pre-election 

determinations. Chamber II. Under the 

final rule, parties retain the right to 

request review of the regional director’s 

decision to direct an election. The 

change is only that rather than being 

required to file the request for review 

prior to the election, parties may request 

such review either before or after the 

election, if the election results have not 

rendered the basis for such an appeal 

moot. As for parties being able to seek 

Board review of a regional director’s 

post-election determinations, that issue 

has been addressed above in connection 

with § 102.62. 

2. Ballots Will No Longer Be 

Automatically Impounded While a 

Request for Review is Pending 

Second, the final rule eliminates the 

automatic impound procedure. The 

amendments thereby codify the statute’s 

approach to stays, which will not take 

place ‘‘unless specifically ordered by 

the Board.’’ The current rules contain 

the following language on stays: 

The Regional Director shall schedule and 

conduct any election directed by the decision 

notwithstanding that a request for review has 

been filed with or granted by the Board. The 

filing of such a request shall not, unless 

otherwise ordered by the Board, operate as a 

stay of the election or any other action taken 

or directed by the Regional Director: 

Provided, however, That if a pending request 

for review has not been ruled upon or has 

been granted ballots whose validity might be 

affected by the final Board decision shall be 

segregated in an appropriate manner, and all 

ballots shall be impounded and remain 

unopened pending such decision. 

In amending the rules to codify 

Section 3(b) as written, the amendments 

eliminate the segregation and 

impoundment proviso of the former 

rules, which appear nowhere in the 

statute. As Section 3(b) contemplates, 

the regional director will continue to 

schedule and conduct elections 

notwithstanding that a request for 

review has been filed with or granted by 

the Board; however, the voting and 

counting of ballots will now also 

proceed notwithstanding the request for 

review, unless the Board specifically 

orders otherwise. This is consistent with 

the purpose of Section 3(b) to prevent 

delays in the Board’s processing from 

impacting regional Section 9 

proceedings. 

As discussed above, some comments 

argue that the proposed rule would 

result in unnecessarily re-running 

elections. Of course, impoundment, 

standing alone, could not and did not 

prevent rerunning elections. Rather, 

comments argue that prior procedures 

for segregating ballots might permit the 

Board to issue a decision on review 

which would obviate the need for a 

rerun, and by postponing requests for 

review until after the election the 

proposed amendments-eliminate that 

possibility. However, as discussed 

below, the final rule contains a 

procedure for requesting segregation 

and impoundment, as well as a preelection request for review, and so the 

Board will still have the option to 

segregate and impound where necessary 

in a particular case. In addition, if, as 

discussed above, a regional director has 

chosen to defer deciding an individual 

eligibility or inclusion question and to 

permit such individuals to vote subject 

to challenge, then those employees will 

indeed cast challenged ballots and their 

ballots will be segregated and 

impounded. Finally, the possibility of 

reruns is minimized further because the 

Board rarely reverses the regional 

director. 

3. Motions for Expeditious 

Consideration, Stays, and Impoundment 

May Be Filed 

Finally, in light of the references in 

the rules to requests for a stay, a new 

paragraph (j) in § 102.67 is created. This 

paragraph states that parties may 

separately move the Board for expedited 

consideration; a stay; or impoundment 

and/or segregation of ballots. The 

paragraph also clarifies, however, that 

‘‘[t]he pendency of a motion does not 

entitle a party to interim relief, and an 

affirmative ruling by the Board granting 

relief is required before the action of the 

regional director will be altered in any 

fashion.’’ Id. As discussed above, the 

current rules stated that stays would not 

be granted ‘‘unless otherwise ordered by 

the Board,’’ and the final rules continue 

and expand this prohibition of stays 

‘‘unless specifically ordered by the 

Board’’ in conformity with the statutory 

text. And yet, notwithstanding this 

implicit reference to orders by the Board 

on stays, the current rules provided no 

specific procedural mechanism for filing 

a motion for such a stay. In cases where 

such relief was sought, parties generally 

cited a catchall ‘‘special permission to 

appeal’’ procedure. 

The final rule makes explicit the right 

to request a stay, or related forms of 

immediate Board relief such as 

expeditious consideration, or 

segregation or impoundment of ballots. 

This is not intended to reflect any 

change in the current practice or 

standards for moving for or granting 

such relief; however, in light of the 

changes to the Board’s existing 

automatic impoundment process 

discussed above, we recognize that this 

provision is likely to be of increased 

significance to some parties seeking 

interlocutory review of regional director 

actions. 

Two additional points should be 

addressed. First, under current practice, 

these motions are very rarely granted, 

and we expect that this will remain true, 

particularly in light of the strong 

statutory and regulatory policy against 

unnecessary stays or litigation delays 

expressed above. The requirement of a 

‘‘clear showing that it is necessary 

under the particular circumstances of 

the case’’ will not be routinely met. 

Second, although we expect that 

motions under this paragraph will 

generally be acted upon in a timely 

fashion, we emphasize that, as is the 

case with motions more generally, ‘‘the 

pendency of a motion does not entitle 

a party to interim relief, and an 

affirmative ruling by the Board granting 

relief is required before the action of the 

regional director will be altered in any 

fashion.’’ Thus, filing a motion for a stay 

is not the same as having a motion 

granted, and the proceeding will 

continue unless and until any such 

motion is granted. 

H. The 25 Day Waiting Period 

The Board also proposed eliminating 

the 25-day waiting period because, even 

under the current rules, it serves little 

purpose in light of the vote-andimpound procedure, and its stated 

purpose would be eliminated by the 

elimination of the pre-election request 

for review. 79 FR at 7333. 

The Board’s current Statements of 

Procedures provide that elections 

‘‘normally’’ are delayed for a period of 

at least 25 days after the regional 

director directs that an election should 

be conducted, in order to provide the 

Board with an opportunity to rule on 

any request for review that may be filed: 

The parties have the right to request review 

of any final decision of the Regional Director, 

within the times set forth in the Board’s 

Rules and Regulations, on one or more of the 

grounds specified therein. Any such request 

for review must be a self-contained document 

permitting the Board to rule on the basis of 

its contents without the necessity of recourse 

to the record, and must meet the other 

requirements of the Board’s Rules and 

Regulations as to its contents. The Regional 

Director’s action is not stayed by the filing of 

such a request or the granting of review, 

unless otherwise ordered by the Board. Thus, 

the Regional Director may proceed 

immediately to make any necessary 

arrangements for an election, including the 


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456A comparison of the total number of elections 

to the total number of grants of review (including 

grants of review after petitions were dismissed) 

during the period 2004 to 2013 reveals that review 

was granted in less than 1 percent of all 

representation cases in which an election was 

conducted and in approximately 15 percent of those 

cases in which a request was filed. See NLRB 

Annual Reports (Fiscal Years 2004–2009) and NLRB 

Office of the General Counsel, Summaries of 

Operations (Fiscal Years 2004–2012). Data for 

2010–2013, after publication of the Annual Reports 

was discontinued, was produced from the NLRB’s 

electronic case processing system. 

457Accordingly, the Board would adopt the 

proposal to eliminate the 25-day waiting period 

even if the Board did not make any change to the 

request-for-review procedure. 

458See Testimony of Professor Samuel Estreicher; 

SEIU reply; Testimony of Arnold Perl on behalf of 

TN Chamber II (‘‘I think the blocking charge policy 

is one of those areas, like the 25 day rule you were 

just discussing eliminating in the request for review 

procedure, that the Board could and should as a 

matter of policy deal with, because you’re targeting 

specific problem areas rather than an overall 

reformulation or representation policies that’s 

contained in the notice of proposed rulemaking.’’). 

459See Professor Joel Cutcher-Gershenfeld; Senior 

Member Miller and Democratic House Members; 

IBEW; Thomas Meiklejohn. 

issuance of a notice of election. However, 

unless a waiver is filed, the Director will 

normally not schedule an election until a 

date between the 25th and 30th days after the 

date of the decision, to permit the Board to 

rule on any request for review which may be 

filed. 

29 CFR 101.21(d) (2010). 

The final rule adopts the proposal to 

eliminate the 25-day waiting period. 79 

FR at 7333. Elimination of the 25-day 

waiting period eliminates an 

unnecessary barrier to the fair and 

expeditious resolution of questions 

concerning representation. By 

definition, the waiting period delays the 

election, which is designed to answer 

the question of representation. The 25- 

day waiting period—which effectively 

stays the election in every contested 

case for 25 days—is in tension with 

Congress’ instruction in Section 3(b) of 

the Act that even the grant of review of 

a regional director’s action ‘‘shall not, 

unless specifically ordered by the 

Board, operate as a stay of any action 

taken by the regional director.’’ 

Although the 25-day waiting period by 

its terms only applies to contested cases, 

the waiting period also has the effect of 

delaying elections in stipulated-election 

cases. As discussed above in connection 

with § 102.66, bargaining takes place in 

the shadow of the law, and some parties 

use the threat of insisting on a preelection hearing—and the resulting 25 

day waiting period—to extract 

concessions concerning election details, 

such as the date of the election and the 

unit itself. The 25-day waiting period 

also serves little purpose under the 

existing rules. The stated purpose of the 

25-day period is merely ‘‘to permit the 

Board to rule on any request for review 

which may be filed.’’ 29 CFR 101.21(d) 

(2010). However, such requests are filed 

in a small percentage of cases, are 

granted in an even smaller 

percentage,456 and result in orders 

staying the conduct of elections in 

virtually no cases at all. Thus, if the 

Board has not yet ruled on the request 

at the time of the election, as is not 

infrequently the case, the election is 

held and the ballots impounded until 

the Board can rule. Even if the Board 

grants the request, the Board almost 

never stays the election and the same 

vote-and-impound procedure is used.457

Finally, there is even less reason for the 

waiting period under the final rule, 

which should reduce the number of 

requests for review filed before elections 

by virtue of the amendment permitting 

parties to file such requests after the 

election. 

Very few comments specifically object 

to the elimination of the 25-day waiting 

period. Indeed, there is near consensus 

that this period serves little purpose.458

In support of the proposed rule, several 

comments observe that parties typically 

do not use the waiting period to request 

review and that a single post-election 

review process eliminates use of the 

Board’s processes to achieve tactical 

delays.459

Some comments, such as the hearing 

testimony of Jay P. Krupin on behalf of 

NGA, maintain that the 25-day period 

serves an important purpose because the 

‘‘rules of the game’’ are not set until the 

decision and direction of election, so 

the parties are not sure which voters 

they need to persuade or which 

employees can speak on behalf of the 

employer until the decision issues. 

However, the stated purpose of the 25- 

day period is not to give parties an 

opportunity to campaign. Section 

101.21(d) states only that the 25-day 

waiting period is ‘‘to permit the Board 

to rule on any request for review which 

may be filed.’’ Moreover, the concern 

raised in this comment is addressed at 

length above in § 102.66. Finally, the 

regional director retains discretion to 

consider any significant changes in the 

scope of the unit that result from the 

decision and direction of election in 

setting the election date. 

A few comments observe that the 

waiting period serves a purpose in the 

small minority of cases where the Board 

finds that a request for review has merit. 

These comments suggest that a waiting 

period would be appropriate where a 

pre-election request for review is 

actually filed. AHCA and ALFA suggest 

an alternative to the proposed rule, 

whereby the Board would ask parties 

whether they intend to file a request for 

review. If they answer affirmatively, 

then and only then would the regional 

director wait at least 25 days to hold the 

election. However, their proposal would 

create a perverse incentive for parties to 

file a request for review solely to delay 

the election. Moreover, in many cases, 

the delay would still be wholly 

unnecessary when the issue raised in 

the pre-election request for review is 

rendered moot by the election results. 

Under current procedures, even where a 

request for review is granted and 

eventually found to have merit, there is 

little reason that the request should be 

filed pre-election or that the election 

should be delayed so that the Board can 

consider it, because the election almost 

always proceeds using the vote-andimpound procedures before the Board’s 

decision on the merits issues. 

Some comments argue that the 

elimination of the 25-day waiting 

period, combined with other proposed 

amendments, interferes with employers’ 

right to free speech under Section 8(c) 

of the Act and the First Amendment and 

undermines the free discussion of the 

question of representation essential to 

employee free choice. However, the 

statute does not provide for a 25-day 

waiting period, and the 25-day waiting 

period provided by the Board in the 

current rules was not intended to give 

parties an opportunity to campaign. 

Instead, once again, the stated purpose 

of the 25-day waiting period was merely 

to give the Board an opportunity to rule 

on any request for review which might 

be filed. The more general point is 

addressed at length above in connection 

with the opportunity for free speech and 

debate. 

§ 102.68 Record in Pre-Election 

Proceeding; What Constitutes; 

Transmission to Board 

The proposed amendments to 

§ 102.68, which currently defines the 

record in a proceeding conducted 

pursuant to § 102.67, were quite minor 

as they were designed merely to 

conform its contents to the proposed 

amendments to other sections. First, the 

Board clarified that Statements of 

Position would be part of the record. 

While many comments objected to the 

requirement that parties make a binding 

statement of position on various issues, 

there were no significant comments 

concerning the proposal to make the 

Statement of Position a part of the 

record. Second, the proposed 

amendment deleted references to the 

transfer procedure, because the Board 

proposed eliminating the ability of 

regional directors to transfer a case to 

the Board before deciding it. The Board 


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460The amendments also codify existing practice 

permitting parties to file, but not serve, evidence in 

support of objections. Amended § 102.69(a) also 

preserves the pre-existing practice of having the 

regional director furnish a copy of the objections to 

each of the other parties to the case. 

461See, e.g., GAM; Chamber Reply; ACE; SHRM; 

AHCA; Summa Health Systems (Summa); AHA II; 

US Poultry II. 

received no significant comments 

regarding that proposed change either. 

The final rule in § 102.68 adopts those 

portions of the proposal. The final rule 

also amends § 102.68 to make responses 

to Statements of Position part of the 

record. In the NPRM, the Board also 

proposed adding language to state that 

§ 102.68 would define the record in 

proceedings conducted pursuant to 

§ 102.69. Although no significant 

comments were filed concerning this 

proposed change, the Board has 

considered the matter and is now of the 

view that the proposed addition is 

unnecessary, because § 102.69(d)(1) 

defines the record in proceedings 

conducted pursuant to § 102.69. 

GAM and U.S. Poultry II complain 

that there is no express provision that 

the record also includes written offers of 

proof. Prior to the amendments, there 

was no express provision that the preelection hearing record include written 

offers of proof. Yet, prior to the 

amendments, offers of proof, whether 

written or oral, could be part of the 

record of the pre-election hearing. Thus, 

if the offer of proofs were in written 

form, they could be received as 

‘‘exhibits;’’ if oral, they could be part of 

‘‘the stenographic report of the hearing.’’ 

In response to the comment, however, 

the final rule explicitly provides in 

§ 102.68 that offers of proof made at the 

pre-election hearing are part of the 

record. 

Sec. 102.69 Election Procedure; Tally 

of Ballots; Objections; Certification by 

the Regional Director; Hearings; Hearing 

Officer Reports on Objections and 

Challenges; Exceptions to Hearing 

Officer Reports; Regional Director 

Decisions on Objections and Challenges 

The proposed amendments to 

§ 102.69 dealt with a variety of matters 

including the filing and service of 

objections, the procedure to be used by 

the regional director when faced with 

election objections or determinative 

challenges, post-election hearing 

scheduling and procedure, and appeals 

of decisions and directions of elections 

and decisions on objections and 

challenged ballots. 

A. Simultaneous Service of Objections 

on Parties; Simultaneous Filing of Offer 

of Proof With Election Objections 

In the NPRM, the Board proposed to 

amend § 102.69 to require that a party 

filing objections simultaneously file a 

written offer of proof supporting the 

objections as described above in relation 

to § 102.66(c) and serve the objections, 

but not the offer of proof, on the other 

parties. After carefully considering the 

proposal in light of the commentary, the 

Board has decided to adopt it with one 

modification, which would grant 

regional directors discretion to permit 

additional time for filing the offer of 

proof upon a showing of good cause. 

The Board has concluded that the 

amendments will provide the parties 

with the earliest possible notice of the 

pendency of election objections, reduce 

unnecessary litigation, and help the 

Board to more expeditiously resolve 

election objections, and thereby help it 

more expeditiously resolve questions of 

representation. 

The Board’s prior rules did not 

require a party filing objections to 

simultaneously serve a copy of its 

objections on the other parties, just as 

the Board’s prior rules did not require 

a party filing a representation petition to 

simultaneously serve a copy of its 

petition on the parties named in the 

petition. Requiring a party that files 

election objections to simultaneously 

serve a copy of its objections on the 

other parties to the representation case 

provides the other parties with the 

earliest possible notice of the pendency 

of the election objections, just as 

amended § 102.60’s new requirement— 

that every petitioner simultaneously 

serve a copy of its representation 

petition when it files it with the Board— 

gives the other parties the earliest 

possible notice of the pendency of the 

petition. 

The final rule maintains the current 

time period (7 days after the tally) for 

the filing of objections to the conduct of 

the election or to conduct affecting the 

results of the election. The final rule 

also maintains the current requirement 

that a party’s objections contain a short 

statement of the reasons therefor. 

However, the final rule eliminates the 

extra 7-day period parties currently 

enjoy to file evidence in support of their 

objections.460

Many employer comments complain 

that 7 days is an insufficient time both 

to investigate objections and provide an 

offer of proof.461 The Board is not 

persuaded by these comments. Under 

the Board’s prior rules, a party had only 

7 days to file election objections, and 

those objections had to contain a short 

statement of the reasons therefor. 29 

CFR 102.69(a) (2010). The only change 

concerns the time to produce the offer 

of proof in support of the objections. 

The change is based on the view that 

objections to a secret-ballot election 

should not be filed by any party lacking 

factual support for the objections and, 

therefore, a filing party should be able 

to describe the facts supporting its 

objections at the time of filing. The 

Board notes in this regard that 

objections may be filed concerning 

events that occurred before the election 

and events that occurred during the 

election. The Board presumes that a 

party that becomes aware of 

objectionable conduct before the 

election will note such misconduct and 

begin gathering evidence relating to the 

misconduct immediately. Accordingly, 

a party often has more than 7 days to 

prepare the offer of proof regarding such 

misconduct. As to misconduct that 

occurs during the election in the polling 

area, parties are commonly represented 

by an equal number of observers, and 

the parties typically speak with their 

observers immediately after the election 

before the tally of ballots even begins. 

For this reason, the Board believes that 

parties generally should be aware of 

both the misconduct and possible 

witnesses to it shortly after the balloting 

ends. Accordingly, the Board finds 

unpersuasive the complaints that 7 days 

ordinarily will be an insufficient 

amount of time to produce evidence in 

support of objections. 

Moreover, the amendment furthers 

the goal of expeditiously resolving 

questions concerning representation. 

For example, a question of 

representation cannot be answered until 

the election results are certified, which 

cannot occur until objections and 

determinative challenges are resolved. 

And a regional director cannot evaluate 

the objections until it receives the 

objecting party’s supporting evidence. 

Because requiring the evidence in 

support of objections at the same time 

the objections are filed serves the goal 

of timely certifications, SEIU supports 

the proposed amendment even though it 

believes that the amendment poses a 

greater burden on unions than 

employers, who have greater access to 

the workforce. The amendment is also 

consistent with the policy articulated in 

Casehandling Manual Section 11360.1, 

that ‘‘the prompt resolution of 

challenges and/or objections should be 

given priority attention [because] 

certification of the employees’ choice in 

the election is delayed by challenges 

and/or objections.’’ 

The AFL–CIO suggests, however, that 

the Board provide that a party may 

move for additional time to file the offer 

of proof in support of its objections in 

‘‘unusual circumstances,’’ such as when 

a union finds it difficult to locate and 


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462At least one comment argues that the 

amendments improperly permit regional directors 

to administratively dismiss objections without a 

hearing, thereby denying parties the right to a 

hearing and the ability to create a record for 

subsequent review. However, regional directors 

may administratively dismiss objections and 

challenges without a hearing under the current 

rules where they do not raise substantial and 

material issues that would warrant setting aside the 

election. 29 CFR 102.69(d) (2011). This well-settled 

practice avoids wasteful litigation, is no different 

from a trial court granting a motion to dismiss, and 

has been approved by the courts of appeals. See 

NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th Cir. 

1967); NLRB v. Air Control Products of St. 

Petersburg, Inc., 335 F.2d 245, 249 (5th Cir. 1964); 

Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F. 

3d 600, 605–06 (1st Cir. 1994) (‘‘To force an agency 

fully to adjudicate a dispute that is patently 

frivolous, or that can be resolved in only one way, 

or that can have no bearing on the disposition of 

the case, would be mindless * * *.’’); Fenn C. 

Horton III, The Requirements of Due Process in the 

Resolution of Objections to NLRB Representation 

Elections, 10 J. Corp. L. 493, 495–509 (1985). The 

amendments specify in § 102.69(d) what constitutes 

the record in such no-hearing cases, just as they 

specify what constitutes the record in cases that 

proceed to a hearing. 

463Matters such as the scheduling of the postelection hearing and procedure at the post-election 

hearing are addressed below. 

464The final rule clarifies that when objections 

and challenges have been consolidated with an 

unfair labor practice proceeding for purposes of 

hearing and the election was conducted pursuant to 

a stipulated election agreement or a direction of 

election, (1) the provisions of § 102.46 shall govern 

with respect to the filing of exceptions or an 

answering brief to the exceptions to the 

administrative law judge’s decision; and (2) a 

request for review of the regional director’s decision 

and direction of election shall be due at the same 

time as the exceptions to the administrative law 

judge’s decision are due. The final rule also clarifies 

that if the election was conducted pursuant to a 

consent or full consent agreement, and the 

objections and challenges have been consolidated 

with an unfair labor practice proceeding for 

purposes of hearing, the administrative law judge 

shall, after issuing a decision, sever the 

representation case and transfer it to the regional 

director for further processing, as is done currently. 

The final rule uses the single term, ‘‘decision,’’ 

to describe the regional director’s disposition of 

challenges and/or objections in place of the two 

terms, ‘‘report’’ and ‘‘decision,’’ used in the current 

rules. 

contact witnesses in a large unit. The 

Chamber (Reply) opposes the 

amendments reducing the period of 

time to file offers of proof, but argues 

that if an exception is to be provided, 

it should be for ‘‘good cause’’ rather 

than ‘‘unusual circumstances.’’ 

Upon reflection, the Board has 

decided to amend § 102.69(a) to provide 

that a regional director may extend the 

time for filing the written offer of proof 

in support of the election objections 

upon request of a party showing good 

cause, as the Chamber suggests. As 

noted, the Board believes that ordinarily 

parties should be able to file their offers 

of proof in support of their election 

objections simultaneously with the 

objections. Indeed, the Board concludes 

that the amendments to §§ 102.62(d) 

and 102.67(l)—requiring the employer 

to include the available personal phone 

numbers and personal email addresses, 

of the employees on the voter list— 

makes this likely. However, as noted 

above in connection with § 102.62, some 

comments claim that some employers 

may not maintain records of their 

employees’ personal phone numbers 

and email addresses, which would 

require that unions use slower forms of 

communication to contact potential 

witnesses to prepare the offers of proof, 

which in turn could make it more 

difficult to submit the offer of proof 

simultaneously with the election 

objections in some cases. In addition, 

depending upon the severity of the 

alleged objectionable misconduct, it 

may be difficult for a union or employer 

to persuade employees with knowledge 

of the relevant facts to come forward. 

The Board also notes that although the 

current rules afford parties an additional 

7 days to produce the supporting 

evidence after they file their objections, 

regional directors have discretion to 

grant still more time. See 29 CFR 

102.69(a) (2010) (‘‘Within 7 days after 

the filing of objections, or such 

additional time as the Regional Director 

may allow, the party filing objections 

shall furnish * * * the evidence * * * 

to support the objections.’’); 

Casehandling Manual Section 11392.6. 

Accordingly, the Board has concluded 

that a regional director should have 

discretion to grant additional time for 

filing the offer of proof when good cause 

is shown, and amended § 102.69(a) so 

provides. 

In sum, requiring the objecting party 

to simultaneously serve a copy of its 

objections on the other parties and to 

simultaneously file an offer of proof 

with its election objections will provide 

the other parties with the earliest 

possible notice of the objections and 

help the Board to expeditiously resolve 

questions of representation because the 

election results cannot be certified until 

objections and determinative challenges 

are resolved. The amendment will also 

reduce unnecessary litigation and 

conserve resources for the Agency and 

the nonobjecting party by reducing the 

likelihood that a party will file 

objections that it cannot support. At the 

same time, when a party has allegedly 

engaged in conduct which has 

destroyed a fair election, the alleged 

abuse of workers’ rights should not be 

disregarded merely because a party 

justifiably needs additional time to 

furnish its offer of proof. Accordingly, 

the final rule provides a good-cause 

exception to the simultaneous offer-ofproof requirement. 

B. Uniform Procedure for Handling 

Objections and Potentially 

Determinative Challenges and Requests 

for Review of Regional Director PostElection Determinations in Stipulated 

and Directed Elections 

The final rule adopts the NPRM 

proposals to (1) codify the regional 

director’s discretion to dispose of both 

determinative challenges and objections 

through an investigation without a 

hearing when they raise no substantial 

and material factual issues, (2) establish 

a uniform procedure when a hearing is 

conducted, and (3) make Board review 

of regional directors’ post-election 

dispositions discretionary in stipulated 

and directed elections. 79 FR at 7333– 

34, 7361. 

The final rule codifies existing 

practice permitting the regional director 

to investigate determinative challenges 

and objections by examining evidence 

offered in support thereof to determine 

if a hearing is warranted.462 The final 

rule also creates a uniform procedure in 

those cases in which there are 

potentially outcome-determinative 

challenges or objections which the 

regional director determines raise 

substantial and material factual issues 

that require a hearing. Adopting the 

procedure currently contained in 

§ 102.69(d) and (e), the final rule 

provides that, in such cases, the regional 

director shall provide for a hearing 

before a hearing officer who shall, after 

such hearing, issue a report containing 

recommendations as to the disposition 

of the issues.463 Within 14 days after 

issuance of such a report, any party may 

file exceptions with the regional 

director and the regional director will 

dispose of the exceptions. If no 

exceptions are filed to such report, the 

regional director decides the matter 

upon the expiration of the period for 

filing such exceptions. Consistent with 

the changes described above in relation 

to § 102.62(b), the final rule makes 

Board review of regional directors’ 

resolutions of post-election disputes 

discretionary in cases involving directed 

elections as well as those involving 

stipulated elections, unless challenges 

and objections are consolidated with 

unfair labor practice charges for hearing 

before an administrative law judge.464

The Board anticipates that this change 

will leave a higher percentage of final 

decisions concerning disputes arising 

out of representation proceedings with 

the Board’s regional directors. 

Some comments question whether the 

Board will resolve nondeterminative 

challenges post-election. The final rule 

maintains the status quo in this regard: 


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465 It is only when regional directors direct that 

hearing officer reports go to the Board that parties 

currently have the right to Board review. See 

Casehandling Manual Section 11366.2. 

The Board will not address 

nondeterminative challenge ballots at a 

post-election hearing, though parties 

may bring the matter to the Board by 

filing a timely unit clarification petition 

if they are unable to resolve the 

resulting question of whether particular 

employees are in the bargaining unit 

(‘‘unit placement’’ questions) by 

agreement. See, e.g., Orson E. Coe 

Pontiac-GMC Truck, Inc., 328 NLRB 

688, 688 n.1 (1999): 

Under standard Board practice, when a 

classification of employees votes under 

challenge and their challenged ballots would 

not be determinative of the election results, 

the ensuing certification contains a footnote 

to the effect that they are neither included 

nor excluded. Casehandling Manual Section 

11474. Even though there was no occasion to 

resolve the issue in a ballot challenge 

hearing, the issue need not stay unresolved. 

If the parties do not subsequently agree on 

whether to add the car prep/finisher 

technician to the unit, the matter can be 

resolved in a timely invoked unit 

clarification proceeding. See Kirkhill Rubber 

Co., 306 NLRB 559 (1992); NLRB v. 

Dickerson-Chapman, Inc., 964 F.2d 493, 496– 

497, 500 fn. 7 (5th Cir. 1992). 

AHA argues that permitting parties to 

resolve such issues in bargaining is 

‘‘disrespectful’’ of employee Section 7 

rights because it makes eligibility a 

‘‘bargaining chip.’’ This contention has 

been addressed above in relation to 

§ 102.66. 

Many comments criticize the proposal 

to make Board review of regional 

directors’ post-election determinations 

discretionary in cases involving directed 

elections. These comments are fully 

addressed above in relation to § 102.62, 

which also addresses discretionary 

Board review of the regional director’s 

post-election determinations in 

stipulated election cases. 

Bluegrass Institute suggests, however, 

that the 20-percent rule renders 

discretionary Board review of the 

regional directors’ post-election 

determinations inappropriate. It argues 

that the Board’s current rules guarantee 

parties Board review of eligibility 

questions deferred in the pre-election 

decision, and therefore the provision 

making Board review of the director’s 

post-election determinations 

discretionary constitutes a material 

change. However, the final rule does not 

adopt the proposed 20-percent proposal. 

To the extent the commenter would 

raise the same objections to the final 

rule, the Board would find them 

unpersuasive. Under the final rule, if 

eligibility disputes are deferred using 

the vote-and-challenge procedures, the 

hearing officer’s recommendations on 

determinative challenges will in all 

cases be subject to exceptions to the 

director, and a party may thereafter file 

a request for review with the Board. 

This parallels how such matters are 

handled under the current rules when a 

hearing officer’s recommendations go to 

the director. Thus, Section 11366.2 of 

the Board’s Casehandling Manual 

provides with respect to challenges to 

voters in the context of a directed 

election, ‘‘If the Regional Director 

directs that the hearing officer’s 

recommendations be made to the 

Regional Director, then exceptions to 

the hearing officer’s report will be filed 

with him/her * * *. The Regional 

Director must thereafter rule in a 

supplemental decision upon the hearing 

officer’s report and such exceptions as 

may be filed. The Regional Director’s 

supplemental decision is subject to a 

request for review to the Board.’’ 465

Moreover, under the current rules, if a 

regional director resolves eligibility 

questions on the merits in his or her 

decision and direction of election, the 

parties are able to challenge the decision 

only by filing a request for review with 

the Board. The comment does not 

explain why a party should have a 

greater right to Board review if the 

regional director decides eligibility 

questions after the election than if the 

regional director decides them prior to 

the election, and the final rule corrects 

this anomaly. 

Citing Member Hayes’ dissent to the 

original NPRM, PIA and others argue 

that the deferral of litigation from the 

pre-election phase to the post-election 

phase is likely to lengthen the period 

between the election and final 

certification, which will lengthen the 

period during which the employer is 

uncertain whether it can unilaterally 

change its employees’ working 

conditions. See Mike O’Connor 

Chevrolet, 209 NLRB 701, 703 (1974). 

As shown, however, the Board believes 

that the final rule will not simply shift 

litigation from before the election to 

after the election. Rather, the Board 

believes that the amendments will 

significantly reduce the total amount of 

litigation, because the current rules 

require parties to litigate issues that are 

often rendered moot by the election 

results. Moreover, the Board anticipates 

that permitting it to deny review of 

regional directors’ resolution of postelection disputes, i.e., when a party’s 

request raises no compelling grounds for 

granting such review, will eliminate the 

most significant source of 

administrative delay in the finality of 

election results. The Board anticipates 

that the final rule will thus reduce the 

period of time between the tally of votes 

and certification of the results and thus 

the period during which employers are 

uncertain about their duty to bargain. 

A number of other amendments to 

this section conform its provisions to 

the remainder of the amendments. For 

example, the NPRM proposed to address 

the procedure for requesting review of 

the direction of election in § 102.69(b) 

in line with the proposed amendment 

deferring all parties’ rights to request 

review of the decision and direction of 

election until after the election. 79 FR 

at 7333, 7360. However, as discussed 

above in connection with § 102.67, the 

Board has decided to reject that 

proposal and instead to permit parties to 

request review of the direction of 

election prior to the election if they 

choose to do so. Accordingly, the 

procedure for filing such requests 

appears in § 102.67 of the final rule, 

rather than in § 102.69(b) as proposed in 

the NPRM. And because parties will not 

be filing requests for review of the 

regional director decisions and 

directions of elections pursuant to 

proposed § 102.69(b), there is no need 

for this final rule to provide (as the 

December 22, 2011 final rule provided 

(76 FR at 80174, 80188)) in 

§ 102.69(e)(1)(ii)) that the decision and 

direction of election and the record 

previously made as defined in § 102.68 

will also be part of the record in a 

proceeding pursuant to § 102.69 in 

which no hearing is held. In other 

words, just as was the case prior to the 

NPRM, under the final rule, the record 

in a proceeding pursuant to § 102.69 in 

which no hearing is held will not 

include the decision and direction of 

election and the record previously made 

as defined in § 102.68. 

Similarly, prior to the NPRM, 

§ 102.69(b) provided, ‘‘If no objections 

are filed within the time set forth above, 

if the challenged ballots are insufficient 

in number to affect the results of the 

election, and if no runoff election is to 

be held pursuant to § 102.70, the 

regional director shall forthwith issue to 

the parties a certification of the results 

of the election, including certification of 

representative where appropriate, with 

the same force and effect as if issued by 

the Board, and the proceeding will 

thereupon be closed.’’ The final rule 

rejects the NPRM proposal to restyle 

this paragraph ‘‘§ 102.69(c) and to 

include a reference to no request for 

review being filed (proposals which the 

December 22, 2011 final rule adopted). 


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466The NPRM had proposed to restyle paragraph 

(b) as (c) because, as discussed above, the NPRM 

had also proposed adding a new § 102.69(b) to 

address requests for reviews of regional director 

decisions and directions of elections. Because the 

final rule does not add that new paragraph (b) to 

§ 102.69, the Board has decided to leave the text in 

question in § 102.69(b) of this final rule. 

467Thus, when the election is conducted 

pursuant to a consent election agreement or a 

stipulated election agreement, the regional director 

does not issue any pre-election decision at all. See 

§§ 102.62(a) and (b). Although the regional director 

does issue a pre-election decision when the parties 

enter into a full consent election agreement, the 

parties waive their right to request review of that 

decision in their agreement. See § 102.62(c). 

468See, e.g., GAM; ACE; SHRM; AHA; Summa; 

Buchanan; ACC; AHCA II. 

469Admittedly, our decision to require that postelection hearings be scheduled to open 21 days 

from the tally (and 14 days from the filing of 

objections) depends, in part, on the implementation 

of the new requirement that parties filing objections 

simultaneously file their offers of proof supporting 

those objections with the regional director. 

Ordinarily, the regional director cannot evaluate 

whether a hearing is necessary until the director 

receives the objecting party’s offer of proof, which 

the pre-NPRM version of § 102.69(a) gave parties an 

extra 7 days to provide. Accordingly, without the 

amendment requiring the simultaneous filing of 

offers of proof with the objections, the offer of proof 

would not be due until 14 days from the tally, in 

which case a regional director could have no choice 

but to give parties less than 7 days notice of the 

post-election hearing in order to meet the 21-day 

post-election hearing scheduling goal. And that 

would give rise to the same concerns which our 

revised post-election timetable seeks to allay. 

79 FR at 7360–7361; 76 FR at 80187.466

In cases where the election is conducted 

pursuant to one of the three types of 

election agreements, there is, by 

definition, no decision and direction of 

election about which a party can 

possibly seek review.467 And where 

there are no objections, determinative 

challenges, or runoffs, the regional 

director should issue to the parties a 

certification of the results of the 

election, including certification of 

representative where appropriate, 

notwithstanding the possibility that a 

party may still file a request for review 

of any decision and direction of election 

previously issued. This is not unlike 

what happened under the prior rules in 

directed election cases. Casehandling 

Manual Section 11472.3 (In directed 

election cases, the regional director’s 

supplemental decision based on an 

administrative investigation, a hearing 

or both, ‘‘should include the 

certification; issuance of the 

certification should not be delayed until 

after the expiration of the time for filing 

a request for review [of that decision].’’) 

Similarly, certifications are issued 

under the current rules, 

notwithstanding parties may challenge 

the validity of the representation case 

decisions in a technical 8(a)(5) 

proceeding in the courts of appeals. 

However, the final rule makes one small 

change to the text of pre-existing 

§ 102.69(b) by deleting the reference to 

the closure of proceedings. Because 

under the final rule a party may choose 

to wait to file its request for review of 

the decision and direction of election 

until after the election, a proceeding 

cannot necessarily be considered closed 

in the absence of the election objections, 

determinative challenges or a runoff 

election. 

C. Post-Election Hearing Scheduling 

The NPRM proposed that any postelection hearing on objections and 

challenged ballots would open within 

14 days of the tally of ballots or as soon 

thereafter as practicable. 79 FR at 7333. 

The Board received a number of 

comments about the proposed 

scheduling of the post-election hearing. 

The AFL–CIO supports the hearingscheduling amendment, noting that 

Casehandling Manual Sections 11365.3 

and 11395.4 already provide that 

‘‘[s]ince postelection matters are to be 

resolved with the utmost dispatch, 

* * * the hearing should be scheduled 

at the earliest practical date.’’ SEIU 

likewise supports the amendment 

outside the context of decertification 

elections because timely post-election 

hearings are necessary for timely 

certifications, which in turn are 

necessary for labor relations stability. 

Professor Cutcher-Gershenfeld also 

supports the amendment, noting that 

the proposal ‘‘minimizes the risk of 

process delays being used by either side 

for tactical advantage,’’ and that 

establishment of consistent timing 

across regions comports with good 

administrative practice. 

However, many employer comments 

complain about the time frame for postelection hearings, claiming the proposed 

schedule provides insufficient 

preparation time for both the party that 

filed the election objections and the 

nonobjecting party.468 For example, 

some comments, such as those filed by 

ACC and AHCA II, complain that 14 

days is not sufficient time for the 

aggrieved party to prepare for a hearing 

on its objections because it must also 

prepare its request for review of the 

decision and direction of election 

during this same time period. According 

to these comments, the proposed postelection procedure simply requires ‘‘too 

much, too soon.’’ Other comments, such 

as those filed by SHRM, complain that 

14 days is insufficient time to prepare 

for the post-election hearing because, in 

addition to having to prepare to present 

evidence regarding the objections, 

parties may also be required to present 

evidence regarding the eligibility of 

employees who were permitted to cast 

challenged ballots pursuant to the 

proposed 20 percent rule. Buchanan 

complains that the proposed postelection hearing schedule raises due 

process issues because the nonobjecting 

party will have such a short time to 

prepare for the objections hearing. 

Buchanan also claims, along with the 

AHA, that the amendment will be 

counterproductive because it will leave 

regional directors with insufficient time 

to weed out frivolous objections. Thus, 

Buchanan posits that instead of 

eliminating wasteful litigation, the 

amendments will have precisely the 

opposite effect. 

After careful consideration of the 

comments, the Board has decided to 

modify its proposal regarding the 

scheduling of the post-election hearing 

to provide (in amended 

§ 102.69(c)(1)(ii)) that, unless the parties 

agree to an earlier date, the post-election 

hearing on objections and determinative 

challenges should open 21 days—rather 

than 14 days—from the tally of ballots 

or as soon as practicable thereafter, 

thereby affording all parties an 

additional 7 days between the due date 

for the filing of election objections and 

the opening of the post-election hearing. 

We believe that providing an additional 

week’s time is appropriate. If a party 

took the full 7 days to which it is 

entitled to file its objections under 

§ 102.69(a), the nonobjecting party 

would receive at most 7 days notice of 

the hearing if the hearing opened 14 

days from the tally of ballots as 

proposed in the NPRM. Moreover, if a 

party filed its election objections at the 

close of business on the 7th day 

following the tally, the regional director 

might not be able to issue a notice of 

hearing until the 8th day following the 

tally. If the hearing in such a case 

opened on the 14th day following the 

tally as provided in the proposal, that 

would mean that the nonobjecting party 

received less than 7 days notice of the 

hearing. Accordingly, we believe that 

providing an additional week’s time is 

responsive to the concerns raised in 

some of the comments about parties 

needing more than 14 days from the 

tally of ballots (and 7 days from the 

filing of objections) to prepare for the 

post-election hearing.469

Providing that the post-election 

hearing open 21 days from the tally (and 

14 days from the filing of the objections) 

is also responsive to the criticism that 

the proposal might not provide enough 

time for the regional directors to weed 

out frivolous objections. By providing 


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470For example, the December 1997 Report of the 

Best Practices Committee indicates that some 

regions requested that all parties (both objecting 

parties and nonobjecting parties) submit their 

evidence within 7 days of the filing of objections. 

G.C. Memo. 98–1,‘‘Report of Best Practices 

Committee—Representation Cases December 1997’’ 

at 22. And a sample letter attached to the Best 

Practices Committee Report provided for the 

objections hearing to open 5-to-7 days after the due 

date for filing evidence in support of objections, 

which, under the rules then in effect, was 7 days 

from the filing of the objections. See Attachment J 

1–3 (objections filed August 16; evidence in support 

of (and in opposition to) objections due not later 

than August 23; objections hearing tentatively 

scheduled for the period August 28, 29, or 30’’). 

471 In our experience, those parties who use 

attorneys or consultants to represent them in 

connection with post-election hearings frequently 

use the same attorneys or consultants that they 

retained to represent them in connection with the 

pre-election hearings or the negotiation of the 

election agreements. 

that the post-election hearing should 

open 21 days from the tally of ballots or 

as soon as practicable thereafter, we 

provide the regional directors with 

additional time to evaluate the 

objections and accompanying offers of 

proof—particularly in cases where they 

are not filed until the close of the 7th 

day following the tally, where the 

objections are voluminous, or where the 

regional director grants parties more 

time to file their supporting offers of 

proof—but still well within a time frame 

when the directors can issue notices of 

hearing in compliance with Board 

practice. And, just as was true under the 

Board’s prior rules, directors may cancel 

previously scheduled hearings if 

subsequent developments render the 

hearing unnecessary. 

In sum, we conclude that the revised 

21-day post-election hearing schedule 

takes into account the critical comments 

in a manner that serves the goals of 

eliminating unnecessary litigation and 

expeditiously resolving questions of 

representation. In addition, the 

amendments should help make the 

scheduling of post-election hearings 

more uniform across regions and 

provide transparency to the parties. 

To the extent that the authors of those 

critical comments would object that 

setting the post-election hearing to open 

21 days from the tally of ballots (and 14 

days from the filing of the objections) is 

still unfair to the nonobjecting party, the 

Board would find them to be 

unpersuasive. In cases where the 

objections allege that the election 

should be set aside because of employer 

misconduct, the union has to prove that 

the employer was responsible for the 

misconduct. Under the revised 

schedule, even if the notice of hearing 

issues 1 or more days after the 

objections are filed, the nonobjecting 

party should still have close to 2 weeks 

to investigate the objections and prepare 

its response unless, of course, the 

parties agree to an earlier hearing date. 

Thus, under the amendments, as under 

the prior rules and case law that the 

amendments leave undisturbed, the 

party seeking to overturn the election 

must file its objections within 7 days of 

the tally, and the objections must 

contain a specific, nonconclusory 

statement of the reasons therefor so as 

to provide notice of the alleged 

objectionable conduct. The nonobjecting 

party will promptly learn of the filing of 

objections, because the objecting party 

will now be required to simultaneously 

serve a copy of its objections on all 

parties when it files its objections with 

the regional director (and the regional 

director will continue the practice of 

furnishing a copy as well). § 102.69(a); 

Casehandling Manual Sections 11392.5 

and 11392.9. 

Accordingly, the nonobjecting party 

need not wait until the notice of the 

post-election hearing actually issues to 

begin investigating the objections and 

preparing its response, but instead can 

do so as soon as it is served with a copy 

of the objections, which will be at least 

14 days before the opening of the postelection hearing, unless the parties agree 

to an earlier date. In most cases, given 

the relatively small median bargaining 

unit size in recent years, there is likely 

to be only a relatively limited number 

of potential witnesses with knowledge 

of the relevant facts. The employer 

should have ready access to its 

supervisors, managers, and agents. And 

even prior to the amendments, 

nonobjecting parties were sometimes 

requested to produce their evidence 

opposing the objections just 7 days after 

the objections were filed and, along 

with the objecting parties, were 

sometimes advised that the postelection hearing could open 14 days 

from the filing of objections (i.e. 21 days 

from the tally of ballots).470 It also bears 

mentioning that because the hearing on 

objections only occurs after the election, 

parties desiring a labor attorney or 

consultant to represent them in 

connection with the post-election 

objections hearing in all likelihood will 

have retained the attorney or consultant 

before the objections will have even 

been filed, in contrast to the pre-election 

scenario painted by some comments of 

unrepresented employers being taken by 

surprise by the filing of a representation 

petition and having to scramble to retain 

an attorney or consultant.471

To the extent that ACC and AHCA 

would claim that a 21-day post-election 

hearing schedule is still unfair to the 

objecting party because the objecting 

party has to prepare its request for 

review of the direction of election at the 

same time it must prepare for the 

objections hearing, the Board would 

find such claims unpersuasive. In the 

Board’s view, such claims would reflect 

a misunderstanding of the amendments. 

Amended § 102.67(c) makes clear that 

the request for review of the direction of 

election is not due until after the 

regional director disposes of election 

objections and determinative 

challenges. Accordingly, parties 

preparing for a post-election hearing on 

objections and or challenged ballots will 

not need to simultaneously prepare 

their requests for review of the decision 

and direction of election. Moreover, 

even if no objections are filed, a party 

seeking to file a request for review of the 

decision and direction of election will 

have more time to do so under the final 

rule than it has under the current rules. 

The Board also finds unpersuasive the 

claim that the revised 21-day postelection hearing schedule is unfair 

because, in addition to having to 

prepare to present evidence regarding 

the objections, parties may also be 

required to present evidence regarding 

the eligibility of employees who were 

permitted to cast challenged ballots 

pursuant to the 20 percent rule. First of 

all, the Board has not adopted the 20 

percent rule. Thus, the final rule grants 

the regional director discretion to 

instruct hearing officers to permit 

litigation of individual eligibility issues 

if the director resolves to consider them 

prior to the election. Accordingly, 

parties are free under the final rule to 

request that they be permitted to litigate 

individual eligibility issues at the preelection hearing. By definition, if a party 

requests at the pre-election hearing that 

it be permitted to litigate an individual’s 

eligibility or inclusion, that means that 

the party has prepared to litigate it at 

the pre-election hearing. The comments 

do not explain just why a party that has 

prepared to litigate an issue at the preelection hearing should need substantial 

additional time to prepare to litigate the 

identical issue at a post-election 

hearing. And if in the direction of 

election, the regional director directs 

that particular individuals be permitted 

to vote subject to challenge, the parties 

are on notice that the status of such 

individuals is unresolved, and so they 

may begin to investigate the facts 

surrounding the individuals’ eligibility 

at that time even before the election 

occurs. 

Even in cases where election-day 

challenges take one of the parties by 

surprise, all parties can begin preparing 

their cases with respect to the 

determinative challenges immediately 

after the tally of ballots, because the 


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472Thus, parties typically are represented by an 

equal number of observers at the polls; the parties’ 

observers are the ones who either challenge the 

voters or who observe one of the other parties or 

the Board agent challenge the voters; and the 

parties, who usually attend the count, discuss any 

challenges that were made before the ballots are 

counted in an attempt to resolve them. See 

Casehandling Manual Sections 11338.2, 11338.3, 

11340.2, 11340.3, 11340.9(a). 

473Thus, the amendments to § 102.69(c)(1)(ii) do 

not require that the hearing open 21 days from the 

tally (and 14 days from the filing of objections) in 

all cases. Instead, the amendments merely require 

the director to set the hearing for 21 days from the 

tally ‘‘or as soon as practicable thereafter.’’ 

474As discussed above in connection with 

§ 102.64, we found unpersuasive the Chamber’s 

objection to the proposal that pre-election hearings 

continue on consecutive days until completed. We 

find equally unpersuasive any opposition to the 

amendment providing that post-election hearings 

will continue day to day until completed absent 

extraordinary circumstances. Indeed, we believe 

that a party and its attorney or consultant will have 

more lead time to rearrange their schedules, if 

necessary, to attend a multiday post-election 

hearing than they have with respect to the preelection hearing, because under the amendments 

we are adopting the post-election hearing is 

supposed to open 21 days after the tally of ballots 

and 14 days after the filing of objections. And, as 

noted previously, because the hearing on objections 

and determinative challenges only occurs after the 

election, many of the parties desiring labor 

attorneys or consultants to represent them in 

connection with the post-election hearings in all 

likelihood will have retained the attorneys and 

consultants before the objections will have been 

filed, in contrast to the pre-election scenario 

painted by some comments of unrepresented 

employers being taken by surprise by the filing of 

the representation petition and having to scramble 

to retain an attorney or consultant. 

parties know who cast challenged 

ballots no later than the tally of 

ballots.472 Indeed, informing all parties 

at the election that they must present 

their evidence regarding determinative 

challenges by the date objections are 

due was labeled a best practice in 1997. 

See G.C. Memo. 98–1, ‘‘Report of Best 

Practices Committee—Representation 

Cases December 1997,’’ at 23. And, as 

was noted in connection with the 

scheduling of the pre-election hearing, 

the facts surrounding individual 

eligibility or inclusion questions are 

peculiarly within the employer’s 

knowledge and control, because the 

employer established its employees’ 

terms and conditions of employment. 

Accordingly, we would firmly reject any 

suggestion that 21 days is generally an 

insufficient amount of time to prepare 

for a hearing on objections, simply 

because the employer might also have to 

prepare to present evidence regarding 

challenges. We also note that the 

amendments grant the regional director 

discretion to open the hearing at a later 

date in an appropriate case.473

Finally, it bears emphasis that even 

prior to the NPRM, the post-election 

hearing could involve both objections 

and challenge issues. Thus, the regional 

director has long had discretion to defer 

deciding eligibility issues until after an 

election, and parties could always 

challenge voters for cause at the 

election. 

Retired Field Examiner Michael 

Pearson suggests (Pearson Supplemental 

Statement) that the Board should 

require that post-election hearings on 

objections and challenged ballots, like 

pre-election hearings, continue on 

consecutive days until completed in 

order to avoid situations where multiday hearings turn into multi-week 

affairs. The NPRM proposed to do just 

that, albeit not explicitly. Thus, 

proposed § 102.69(d)(1)(iii) provided 

that the post-election hearing be 

conducted in accordance with § 102.64 

insofar as applicable, and proposed 

§ 102.64(c) provided that the hearing 

should continue from day to day until 

completed absent extraordinary 

circumstances. However, to avoid any 

possible confusion, the final rule 

provides in amended § 102.69(c)(1)(iii) 

that the hearing on objections or on 

challenged ballots or on both shall 

continue from day to day until 

completed unless the regional director 

concludes that extraordinary 

circumstances warrant otherwise.474

This amendment is consistent with the 

policy set forth in Casehandling Manual 

Sections 11365.3 and 11395.4, which 

provide that hearings on determinative 

challenges and objections ‘‘should be 

held on consecutive days until 

completed.’’ Conducting post-election 

hearings on consecutive days until 

completed serves the goal of 

expeditiously resolving questions 

concerning representation because in 

cases involving post-election hearings, 

the question concerning representation 

cannot be resolved until the hearing is 

completed. The amendment also 

renders Board procedures more 

transparent and uniform across regions. 

D. Procedure at the Post-Election 

Hearing on Objections and Challenged 

Ballots 

The NPRM proposed that the postelection hearing would open with the 

parties stating their positions on any 

challenges and objections, followed by 

mandatory offers of proof as described 

in proposed § 102.66. 79 FR at 7333–34. 

SHRM complains that such an offer-of 

proof procedure would deprive parties 

of their right to a meaningful postelection hearing. 

However, as discussed above in 

relation to § 102.66, the Board has 

decided not to adopt the proposed 

mandatory offer-of-proof procedure at 

the pre-election hearing. The Board has 

likewise decided not to adopt the 

proposed mandatory offer-of-proof 

procedure at the post-election hearing. 

Instead, we have decided to codify 

hearing officers’ discretion to require 

parties to make offers of proof and to 

permit hearing officers to rule on such 

offers. 

To the extent that SHRM would argue 

that such a discretionary offer-of proof 

procedure deprives parties of their right 

to a meaningful post-election hearing, 

we would find it unpersuasive. While 

parties have a right to a pre-election 

hearing under the NLRA, they have no 

right to a post-election hearing under 

the NLRA. See NLRB v. Hood Furniture 

Mfg. Co., 941 F.2d 325, 332 (5th Cir. 

1991); NLRB. v. Metro-Truck Body, Inc., 

613 F.2d 746, 751 (9th Cir. 1979), cert. 

denied, 447 U.S. 905 (1980). As 

discussed above even prior to the 

NPRM, regional directors could evaluate 

a party’s objections and challenges and 

overrule them (without a hearing) if 

they did not raise substantial material 

issues. See also 29 CFR 102.69(d) 

(2009); Casehandling Manual Sections 

11394.3, 11395.1. Moreover, hearing 

officers had discretion prior to the 

NPRM to require parties to make offers 

of proof before admitting evidence and 

to rule on the offers. See Casehandling 

Manual Section 11424.3(b); Hearing 

Officer’s Guide at 38, 158 (‘‘Offers of 

proof can be an effective tool for 

controlling and streamlining a 

hearing.’’). As shown, an offer of proof 

is simply a tool to enable the hearing 

officer to determine whether it is 

appropriate to receive the evidence a 

party wishes to introduce. Thus, a party 

has no cause to complain if the hearing 

officer rejects proffered evidence that is 

not relevant to or probative of the 

matters to be determined at the postelection hearing. 

Consistent with its complaints about 

the proposed offer-of-proof procedure to 

be used at the pre-election hearing, 

SHRM also complains that it is 

inappropriate for hearing officers, who 

may not even be attorneys, to administer 

a mandatory offer-of-proof procedure at 

the post-election hearing as well. 

Assuming that SHRM would argue that 

it is likewise inappropriate for hearing 

officers to administer the discretionary 

offer of proof procedure, we would find 

it unpersuasive. Indeed, the persuasive 

force of this contention is even weaker 

in this context than it was in the context 

of the pre-election hearing, because the 

statutory language regarding preelection hearings is not controlling with 

respect to post-election hearings. While 

Section 9(c)(1) of the NLRA gives parties 

a right to a pre-election hearing and 

provides that the hearing officer who 


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475As noted, the NPRM proposed that the postelection hearing would be conducted in accordance 

with §§ 102.64, 102.65, and 102.66, insofar as 

applicable. 79 FR at 7361. The final rule clarifies 

in amended § 102.69(c)(1)(iii) that any party at the 

post-election hearing shall have the right to 

introduce into the record evidence of the significant 

facts that support the party’s contentions and are 

relevant to the objections and determinative 

challenges that are the subject of the hearing. In 

contrast to amended § 102.66(c), amended 

102.69(c)(1)(iii) also makes clear that the hearing 

officer presiding over a post-election hearing may 

rule on offers of proof without consulting with the 

regional director. Prior to the NPRM, hearing 

officers presiding over post-election hearings were 

not required to consult with regional directors 

before ruling on offers of proof. Moreover, as 

discussed above, hearing officers presiding over 

post-election hearings have greater authority than 

hearing officers presiding over pre-election 

hearings, because the former, unlike the latter have 

long been charged with making factual findings, 

credibility resolutions, and recommendations as to 

the ultimate disposition of the case. See, e.g., 

Casehandling Manual Section 11424.3(b). 

Furthermore, it will be clear to all parties prior to 

the opening of the post-election hearing which if 

any individual eligibility or inclusion questions 

will in fact be litigated at the post-election hearing. 

Thus, the post-election hearing, by definition, does 

not occur until after there are determinative 

challenges or objections, and the regional director 

sets the parameters for the post-election hearing on 

determinative challenges and objections prior to the 

opening of the post-election hearing. See, e.g., 

Casehandling Manual Section 11428.1 (‘‘The frame 

of reference for the hearing on objections/challenges 

is the notice of hearing and order directing the 

hearing; the hearing officer must limit the hearing 

to the matters that the Regional Director has set for 

hearing.’’). Similarly, amended § 102.69(c)(1)(iii) 

makes clear that briefs following the close of the 

post-election hearing shall be filed only upon 

special permission of the hearing officer and within 

the time and addressing the subjects permitted by 

the hearing officer. This is consistent with the preNPRM practice. See Hearing Officer’s Guide at 167. 

476The final rule’s amendments to these two 

subparts differ in some respects from the 

amendments made to these subparts by the 

December 22, 2011 final rule. In some instances, 

this is because the 2011 final rule deferred for 

further consideration some of the proposed 

amendments that the Board has now decided to 

adopt. For example, because the 2011 final rule 

deferred for further consideration the proposal to 

eliminate the transfer procedure (76 FR at 80171), 

the 2011 final rule did not delete the references to 

the transfer procedure in §§ 102.77(b) and 102.86. 

76 FR at 80188–80189. Now that the Board has 

decided to eliminate the transfer procedure, the 

final rule deletes the references to the transfer 

procedure in §§ 102.77(b) and 102.86. Similarly, the 

2011 final rule deferred the proposals (79 FR at 

7362–7363) to amend §§ 102.83 and 102.84 to 

permit electronic filing of petitions and to require 

the simultaneous filing of the showing of interest 

with the petition. Now that the Board has decided 

to permit electronic filing of petitions and to require 

the simultaneous filing of the showing of interest, 

the final rule amends those sections to so provide. 

In other instances, the Board has concluded that 

certain amendments were not necessary. Because as 

discussed above in connection with § 102.69, the 

Board has decided to reject the NPRM proposal (79 

FR at 7360), which the 2011 final rule adopted (76 

FR at 80187), to add a new paragraph (b) to § 102.69 

addressing requests for review of regional director 

directions of elections, the final rule for example 

does not adopt the NPRM proposal (79 FR at 7363), 

which the 2011 final rule adopted (76 FR at 80189), 

to amend § 102.86 to provide that in cases arising 

under Subpart E, posthearing procedure would be 

governed, insofar as applicable, by §§ 102.63 

through 102.69. Accordingly, just as was the case 

prior to the NPRM, the method of conducting the 

hearing and the procedure following the hearing in 

cases arising under Subpart E of part 102 will be 

governed, insofar as applicable, by §§ 102.63 

through 102.68. Because the Board has decided to 

reject the proposal to eliminate Subpart D of Part 

101, it is not necessary to, and the final rule rejects 

the NPRM proposal (79 FR at 7362) to, amend 

§ 102.77(b) to incorporate language from preexisting 

§ 101.23(e) to the effect that if a petition has been 

filed which does not meet the requirements for 

processing under Subpart D’s expedited procedures, 

the regional director may process it under the 

procedures set forth in Subpart C. Under the final 

rule, that language remains in § 101.23(e). 

477PIA relatedly contends, however, that because 

electronic service of documents will speed the 

election process, there is no need to further speed 

the process by making other changes. The Board 

Continued 

presides at the pre-election hearing shall 

make no recommendations with respect 

to the question the pre-election hearing 

is designed to answer, the NLRA 

contains no similar provisions regarding 

post-election hearings. Thus, prior to 

the amendments, hearing officers— 

whether field attorneys or nonattorney 

field examiners—could, and did, resolve 

credibility issues at the post-election 

hearing and could, and did, make 

recommendations regarding the ultimate 

disposition of the objections and 

determinative challenges. See 29 CFR 

102.69(e) (2010) (‘‘[U]pon the close of 

such a hearing, the hearing officer shall 

* * * prepare and caused to be served 

on the parties a report resolving 

questions of credibility and containing 

findings of fact and recommendations as 

to the disposition of the issues.’’). And 

prior to the amendments, the courts 

regularly deferred to the hearing 

officer’s evaluation of the evidence. See 

Amalgamated Clothing & Textile 

Workers Union v. NLRB, 736 F.2d 1559, 

1562–63, 1564–65 (D.C. Cir. 1984) (‘‘The 

Hearing Officer was uniquely wellplaced to draw conclusions about 

credibility when testimony was in 

conflict[.]’’). Accordingly, if, as was also 

true prior to the NPRM, the hearing 

officer is permitted to make findings of 

fact and to recommend the ultimate 

disposition of all issues in the case 

based on the record of the post-election 

hearing, we fail to see how it is 

inappropriate for a hearing officer to 

require, and rule on, offers of proof at 

the post-election hearing.475

The amendment fully protects the 

rights of the parties. Offers of proof 

made at the post-election hearing are 

part of the record. See amended 

§ 102.69(d)(1)(i). Parties have a right to 

file exceptions to the hearing officer’s 

decision with the regional director, and 

thereafter (in stipulated or directed 

election cases) to file a request for 

review with the Board. 

§ 102.69(c)(1)(iii), (2). Thus, if the 

regional director, or the Board, 

concludes that the hearing officer erred, 

the director or the Board is free to 

remand to case to the hearing officer to 

take additional evidence. 

Sec. 102.71 Dismissal of Petition; 

Refusal To Proceed With Petition; 

Requests for Review by the Board of 

Action of the Regional Director 

The amendments to this section 

eliminate the now-outdated reference to 

carbon copies and clarify that extra 

copies of electronically-filed papers 

need not be filed. 

Subparts D & E, §§ 102.73 Through 

102.88, Procedure for Unfair Labor 

Practice and Representation Cases 

Under Sections 8(b)(7) and 9(c) of the 

Act and Procedure for Referendum 

Under Section 9(e) of the Act 

The amendments in these two 

subparts merely conform their 

provisions to amendments in Subpart C 

described above.476

Subpart I—Service and Filing of Papers 

Sec. 102.112 Date of Service; Date of 

Filing 

In the NPRM, the Board proposed to 

correct an omission concerning the 

effective date of service by electronic 

mail. The final rule provides that where 

service is made by electronic mail, the 

date of service shall be the date on 

which the message is sent. The Board 

did not receive any significant 

comments regarding this provision. 

Sec. 102.113 Methods of Service of 

Process and Papers by the Agency; Proof 

of Service 

The final rule adds electronic mail as 

an approved method of service of Board 

papers other than complaints, 

compliance specifications, final 

decisions and orders in unfair labor 

practice cases, and subpoenas. The 

existing rules include regular mail, 

private delivery service and facsimile 

transmission (with consent), along with 

personal service and certified and 

registered mail. Related § 102.114 has 

provided for service of parties’ papers 

by electronic mail since 2009. The 

amendment thus updates the Board’s 

representation case procedures to reflect 

modern electronic communications 

technology. 

In general, there is little objection to 

adding electronic mail as an approved 

method of service. Of the few comments 

addressing these changes at all, PIA 

explicitly favors the service of Board 

documents by electronic mail,477 and 


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does not agree that just because electronic service 

will be an improvement, the other changes adopted 

in the final rule are unnecessary. Indeed, two 

improvements in efficiency are generally better than 

one. As discussed at greater length above, one of the 

goals of the final rule is to remove unnecessary 

barriers to the expeditious processing of 

representation cases. Permitting electronic service 

by itself plainly does not fully accomplish that goal. 

478The Chamber’s prediction of an electronic 

voter list inviting abuse is discussed in relation to 

§ 102.62. 

479 In addition, the testimony of Jess Kutch on 

behalf of Coworker.org II concerning potential spam 

filter problems discussed in connection with 

§ 102.62 above would not implicate these types of 

service, which would not be attempted via bulk 

emails. 

480As noted in § 102.62, the election notice 

changes also apply in cases where the parties agree 

to an election. 

481See SEIU; AFL–CIO (Reply); UFCW; 

Testimony of Melinda Hensel on behalf of IUOE 

Local 150 II. 482SEIU (Reply) supports this observation by 

pointing out that it is grounded not only on its own 

long organizing experience, but also on social 

psychologists’ research into the cognitive 

dissonance theory. According to SEIU, ‘‘These 

experts have found that people will try to bring 

their attitudes in line with their actions, in order 

to reduce the dissonance in their minds.’’ As Leon 

Festinger, the father of cognitive dissonance theory, 

explained, a classic example is when a person is 

forced to do something she may not support; 

ultimately, researchers have found that her attitude 

towards that issue becomes more positive than it 

otherwise would have been. See generally Leon 

Festinger, A Theory of Cognitive Dissonance (1957); 

Leon Festinger and James M. Carlsmith, Cognitive 

Consequences of Forced Compliance, Journal of 

Abnormal Psychology, Vol. 58, 203–210 (1959). 

the Chamber raises no general objection 

to electronic service of representation 

case documents, with the exception of 

the voter list.478

AGC opposes electronic service 

because it might be defeated by spam 

filters and similar tools that are used to 

protect computer data and equipment. 

AGC surmises that this could lead to an 

increase in litigation surrounding the 

election process if parties fail to receive 

electronically-served documents, which 

could slow down the Board process. 

These concerns are, at best, speculative. 

Electronic service is very common, 

spam filters notwithstanding. The Board 

has yet to experience any dramatic 

increase in litigation due to spam filters 

intercepting parties’ current electronic 

service of their papers in either 

representation or unfair labor practice 

proceedings. Moreover, the Board has 

received no significant complaints 

regarding spam filters in connection 

with its ongoing pilot program to 

electronically serve published Board 

and Division of Judges’ decisions where 

parties have registered for such service. 

Thus, the Board has little reason to 

believe that spam filter problems will 

suddenly become pronounced when the 

Board itself begins serving 

representation case documents 

electronically. 

Indeed, parties will have provided 

their email addresses and fascimile 

numbers to the regional director when 

they filed their petitions and Statements 

of Positions and participated in a 

hearing pursuant to amended 

§§ 102.61(a)(9), (b)(1), (c)(4), (d)(10), 

(e)(7); 102.63(b)(1–3)(ii); and 

102.66(g)(2). At the time parties are 

providing this information, they may 

customize their email settings to ensure 

that the system does not inadvertently 

flag official documents as spam when 

they are sent by regional personnel from 

‘‘.gov’’ domains.479 Furthermore, as 

already discussed in relation to 

§ 102.60, any concerns about spam 

filters intercepting service of a petition 

will be mitigated by the practice of the 

regional offices to have a Board agent 

contact parties as soon as possible after 

the filing of a petition in order to 

facilitate the election process. See 

Casehandling Manual Section 11010. 

Upon implementation of this rule, the 

Board expects regional offices to 

additionally place follow up phone calls 

to all parties as soon as a decision and 

direction of election is sent by email or 

facsimile, to provide an added safeguard 

against delivery failures. 

In sum, the Board is not persuaded 

that spam filter interception will be 

such a significant problem that the 

agency should continue to use slower 

and more expensive means to transmit 

its documents to parties. 

Sec. 102.114 Filing and Service of 

Papers by Parties; Form of Papers; 

Manner and Proof of Filing or Service; 

Electronic Filings 

The amendments to this section 

merely conform its provisions to certain 

amendments in Subpart C described 

above. 

Sec. 103.20 Election Procedures and 

Blocking Charges; Filing of Blocking 

Charges; Simultaneous Filing of Offer of 

Proof; Prompt Furnishing of Witnesses 

Under the Board’s prior rules, 

§ 103.20 was entitled ‘‘Posting of 

election notices.’’ As discussed above in 

connection with § 102.67, the final rule 

adopts the proposal to integrate its 

contents as modified into § 102.67 of 

part 102.480 However, the NPRM also 

requested comment regarding the 

Board’s blocking charge policy. 79 FR 

7334–35. As discussed below, the Board 

has decided to codify certain revisions 

to that policy here in § 103.20. 

Accordingly, the final rule retitles 

§ 103.20 ‘‘Election procedures and 

blocking charges; filing of blocking 

charges; simultaneous filing of offer of 

proof; prompt furnishing of witnesses.’’ 

The NPRM specifically asked for 

comments on various proposed 

revisions of the Board’s blocking charge 

policy. As explained in the NPRM, the 

blocking charge policy is not codified in 

the current regulations. Rather, it is the 

product of adjudication and is described 

in the non-binding Casehandling 

Manual. See Casehandling Manual 

Sections 11730 to 11734. 

As explained in Section 11730 of the 

Casehandling Manual, ‘‘The Agency has 

a general policy of holding in abeyance 

the processing of a petition where a 

concurrent unfair labor practice charge 

is filed by a party to the petition and the 

charge alleges conduct that would 

interfere with employee free choice in 

an election, were one to be conducted.’’ 

This policy is designed to ensure that 

violations of the Act which interfere 

with employees’ right to vote are 

remedied before any election is 

conducted. In other words, it ‘‘blocks’’ 

the election process until such time as 

a fair and free election can be held. 

Charges alleging conduct that is 

inherently inconsistent with the petition 

itself may also result in a petition being 

held in abeyance. See id. at Section 

11730.3. However, there are significant 

exceptions to the general policy of 

having a charge ‘‘block’’ a petition. See 

id. at Section 11731. Accordingly, the 

filing of an unfair labor practice charge 

does not automatically cause a petition 

to be held in abeyance. Furthermore, 

‘‘the policy is not intended to be 

misused by a party as a tactic to delay 

the resolution of a question concerning 

representation raised by a petition.’’ Id. 

at Section 11730. 

Some comments urge that the policy 

be maintained in order to ensure a free 

and uncoerced choice in selecting 

representatives for purposes of 

collective bargaining.481 In the view of 

these commenters, simply holding a 

rerun election will not fully and 

completely remedy the employer’s 

unfair labor practices. As the AFL–CIO 

explains, this is so because there is a 

substantial risk that the tainted election 

will compound the effects of the unfair 

labor practices: an employee who voted 

against union representation under the 

influence of the employer’s unlawful 

conduct is unlikely to reconsider the 

issue and change his or her vote in the 

rerun election. See NLRB v. Savair Mfg. 

Co., 414 U.S. 270, 277–78 (1973).482

Moreover, according to the AFL–CIO, 

‘‘opening the ballots cast in a tainted 

election would only compound the 

effects of the unfair labor practices in 

the event that a majority votes against 

representation because it would create 


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483Curiously, the IFA II claims a hindrance in 

being able to adequately respond to the solicitation 

for comments on the Board’s blocking charge policy 

because the Board does not publish statistics 

including ‘‘the number of blocking charges filed per 

year.’’ Yet, the Board provided information to the 

IFA concerning elections held during the last 3 

fiscal years that had previously been blocked for 

some period of time as part of a joint FOIA request 

during the comment period, along with the average 

and median number of days between petitions and 

election in cases in which blocking charges were 

filed. (We also provided similar information in 

response to a FOIA request from commenters in 

2011, and additionally provided blocking charge 

information made publicly available by Professor 

Estreicher in his 2009 law review article referenced 

below.) We are thus not sympathetic to IFA’s 

suggestion that lack of additional blocking charge 

statistics—statistics not included in their FOIA 

request—should cause the Board to extend the 

period of time to comment on potential changes to 

the blocking charge doctrine. In any event, IFA’s 

initial position—that blocking charges delay 

elections—is unassailable based on the statistics 

provided to them, those analyzed by Professor 

Estreicher 5 years ago, and simple logic. We discuss 

below IFA’s policy suggestions flowing therefrom. 

484See, e.g., AHA II; COLLE; CDW; CNLP; PIA; 

NRMCA II. 

485SHRM references a study conducted by 

Professor Estreicher of data pertaining to blocking 

charges filed in 2008, in which Professor Estreicher 

determined that the filing of blocking charges in a 

case increased the time to an election, on average, 

by 100 days. Samuel Estreicher, Improving the 

Administration of the National Labor Relations Act 

Without Statutory Change, 25 ABA J. LAB. & EMP. 

L. 1, 9–10 (2009). 

486See, e.g., NRTWLDF; Chamber II; COLLE. 

487See, e.g., NRTWLDF; Chamber. 

488Our use of the term ‘‘special circumstances’’ 

is merely intended to recognize the longstanding 

reality that regional directors have discretion to 

continue to process petitions notwithstanding the 

pendency of charges that would otherwise result in 

a petition being held in abeyance. In this way, 

regional directors will continue to have discretion 

to engage in a balancing of relative hardships 

concerning the blocking of an election as requested 

by comments such as IFA II. See Section 11731.2 

of the Casehandling Manual. 

489Although the NPRM had used the descriptor 

‘‘immediately’’ in describing when the filer of a 

blocking charge must make the witnesses identified 

in its offer of proof available to the regional 

director, the final rule uses the descriptor 

‘‘promptly’’ to avoid the connotation that the filer 

must physically bring the witnesses along with 

them in order to file a blocking charge in one of the 

Board’s regional offices. We think that the 

requirement of prompt witness availability will be 

adequate to ensure an avoidance of unnecessary 

delay in the investigation of blocking charges. 

490Similarly, the final rule provides in amended 

§ 103.20 that if a party files a petition after filing 

an unfair labor practice charge and then 

subsequently requests that its previously filed 

unfair labor practice charge block further processing 

of the petition, the party must likewise 

simultaneously file an offer of proof and also 

promptly make available to the regional director the 

witnesses identified in its offer of proof. The final 

rule likewise provides that even if a party requests 

that its previously filed unfair labor practice charge 

block further processing of the petition, the regional 

director should continue to process the petition and 

conduct the election where appropriate if the 

regional director determines that the party’s offer of 

proof does not describe evidence that, if proven, 

would interfere with employee free choice in an 

election or would be inherently inconsistent with 

the petition itself. 

the misimpression that the tally reflects 

the uncoerced choice of the voters.’’ 

SEIU also asserts that holding a tainted 

election is an inherently coercive event 

separate and apart from the unfair labor 

practice giving rise to the taint, because 

it drills into the unit employees’ minds 

the lesson that engaging in the election 

process is futile. 

Other comments suggest changes in 

the blocking charge policy, including its 

elimination.483 Professor Samuel 

Estreicher suggests that application of 

the blocking charge policy be restricted 

to ‘‘unusual circumstances,’’ because it 

is generally desirable to hold the 

election and defer consideration of 

contested matters to the post-election 

stage. Other comments assert that the 

policy should be eliminated because it 

creates opportunities for needless delay 

of elections—particularly decertification 

elections.484 SHRM also points out that 

blocking charges can result in elections 

being delayed for many months, and 

asserts that blocking charges cause 

much of the significant election delays 

in representation cases.485 Some 

comments assert, specifically with 

respect to decertification elections, that 

experience shows that when unions 

have determined that they are likely to 

lose the upcoming election they will file 

unfair labor practice charges in order to 

block the election and frustrate the 

employees’ efforts to end union 

representation.486

After careful consideration, the Board 

has decided to continue applying the 

blocking charge policy and to block 

elections in circumstances where unfair 

labor practice charges allege conduct 

that, if proven, would interfere with 

employee free choice in an election or 

would be inherently inconsistent with 

the petition itself, and no special 

circumstances are present that would 

warrant further processing the petition 

in the face of the charges. The Board is 

duty bound to ensure that employees 

can express their choice of 

representative free of unlawful coercion, 

and regional directors will therefore not 

generally process a petition through to 

an election in the face of a pending 

charge if they believe employee free 

choice is likely to be impaired. 

Furthermore, we agree that holding a 

tainted election results in damage 

beyond that caused by the employer’s 

unfair labor practices, which damage 

cannot be fully remedied simply by 

conducting a rerun election. As the Fifth 

Circuit noted in Bishop v. NLRB, 502 

F.2d 1024, 1028 (5th Cir. 1974), the 

salutary purposes for imposing the 

blocking charge policy, a policy the 

Board has followed since 1937, ‘‘do not 

long elude comprehension.’’ 

Nevertheless, the Board is sensitive to 

the allegation that at times, incumbent 

unions may abuse the policy by filing 

meritless charges in order to delay 

decertification elections.487 To that end, 

the Board notes that the General 

Counsel already has in place procedures 

requiring the expedited investigation of 

blocking charges in an effort to ensure 

that non-meritorious charges do not 

delay elections. Under the agency’s 

Impact Analysis system for prioritizing 

the processing of cases, blocking charge 

cases are designated as Category III 

(Exceptional) cases, which have the 

highest priority and the shortest time 

goals for disposition. See Casehandling 

Manual Section 11740. 

The Board has also decided to codify 

several new practices to protect against 

abuse of the blocking charge policy by 

those who would use the unfair labor 

practice procedures to unnecessarily 

delay the conduct of elections. Parallel 

to the amendments to § 102.61(a)(7), 

(b)(8) and (c)(8) providing for the 

simultaneous filing of the showing of 

interest with election petitions, and 

§ 102.69(a) providing for the 

simultaneous filing of offers of proof 

together with election objections, the 

Board’s amendments to § 103.20 will 

require any party to a representation 

proceeding that files an unfair labor 

practice charge together with a request 

that it block the processing of the 

petition to simultaneously file a written 

offer of proof. The offer of proof must 

provide the names of the witnesses who 

will testify in support of the charge, and 

a summary of their anticipated 

testimony. If the regional director 

determines that the party’s offer of proof 

does not describe evidence of conduct 

that, if proven, would interfere with 

employee free choice in an election or 

would be inherently inconsistent with 

the petition itself, and thus would 

require that the processing of the 

petition be held in abeyance absent 

special circumstances,488 the regional 

director will continue to process the 

petition and conduct the election where 

appropriate. The party seeking to block 

the processing of the petition must also 

promptly 489 make the witnesses 

identified in its offer of proof available 

to the regional director so that the 

director can promptly investigate the 

charge, as required by Section 11740.1 

of the Casehandling Manual.490 These 

practices will serve to provide the 

regional director with the information 

necessary to assess whether the unfair 

labor practice charges have sufficient 

support and involve the kind of 


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491See AHA II; NRTWLDF; AFL–CIO; NNU. 

492Casehandling Manual (Part Two) 

Representation Proceedings Section 11012.1. 

493Casehandling Manual (Part One) Unfair Labor 

Practice Proceedings Section 10054.1. 

494 In contrast, under the Board’s existing 

regulations, parties have long enjoyed an 

opportunity to request Board review of a decision 

to hold a petition in abeyance under the blocking 

charge policy. See § 102.71(b) (‘‘Where the regional 

director * * * directs that the proceeding on the 

petition be held in abeyance, and such action is 

taken because of the pendency of concurrent 

unresolved charges of unfair labor practices, and 

the regional director, upon request, has so notified 

the parties in writing, any party may obtain a 

review of the regional director’s action by filing a 

request therefor with the Board in Washington, DC 

. . .’’). 

495See Chester v. Grane Healthcare Co., 666 F.3d 

87, 93–94 (3d Cir. 2011) (cataloguing the varying 

standards employed by the circuit courts in 

deciding whether the facts of a particular unfair 

labor practice case warrant injunctive relief). 

496See Frankl v. HTH Corp., 650 F.3d 1334, 1352 

(9th Cir. 2011). 

497See Catherine L. Fisk & Deborah C. Malamud, 

The NLRB in Administrative Law Exile: Problems 

with its Structure and Function and Suggestions for 

Reform, 58 Duke L. J. 2013, 2030 tbl. 1 (2009) 

(demonstrating the range of 10(j) injunctions filed 

per year over the last several decades from a high 

of 78 in 1995 to a low of 10 in 2004); see also NLRB 

Performance Accountability Report, 5, 38 (Fiscal 

Year 2013) (reporting that 10(j) injunctions were 

authorized in 41 cases out of the 1,272 total 

complaints issued that year). 

498For the same reason we reject IFA II’s 

suggestion that the Board should require a 

‘‘charging party to establish a likelihood of success 

on the merits’’ before a representation petition 

would be blocked. 

violations that warrant blocking an 

election, or whether the charges are 

filed simply for purposes of delay. This 

information will also be provided 

within a time frame that will assist the 

regional director in making a more 

expeditious decision on whether to hold 

the petition in abeyance. Of course, 

even after the initial decision to hold a 

petition in abeyance, if it is determined 

that a charge lacks merit, the regional 

director will resume processing the 

petition. 

Implementation of these new 

practices is supported by comments 

representing employer, employee and 

labor organization interests who agree 

that requiring simultaneous offers of 

proof and prompt witness availability 

will expedite the investigation of 

blocking charges.491 And expediting 

such investigations will necessarily 

remove an unnecessary barrier to the 

fair and expeditious resolution of 

questions concerning representation. 

The only significant opposition to 

either the offer of proof requirement or 

the production of witnesses requirement 

was submitted by SEIU, which opposes 

the offer of proof requirement on the 

basis that parties are already obligated 

to cooperate with Board agents, and it 

is unclear whether SEIU’s objection is 

simply that the requirement is 

redundant. The Casehandling Manual 

does generally require petitioners to 

cooperate with Board agents in 

processing petitions,492 and requires 

charging parties to cooperate with Board 

agents investigating unfair labor practice 

charges.493 We view, however, the 

addition of both the offer of proof 

requirement and the production of 

witnesses requirement to the Rules and 

Regulations as important explications of 

the duty to cooperate and not mere 

redundancies. 

We decline to adopt the AFL–CIO’s 

suggestion that the Board proclaim it 

presumptively appropriate to seek 

preliminary injunctive relief under 29 

U.S.C. 160(j) to remedy an unfair labor 

practice charge that has blocked an 

election. Under the express language of 

Section 10(j) of the Act, the issuance of 

a complaint is a necessary predicate to 

any decision to seek injunctive relief in 

the Federal district courts, and the 

General Counsel’s discretion to issue 

complaints—and to accept precomplaint settlements and postcomplaint but pre-hearing informal 

settlements—is unreviewable by the 

Board. See NLRB v. UFCW, Local 23, 

484 U.S. 112, 118–33 (1987).494 In 

addition, injunction litigation obviously 

involves the expenditure of significant 

resources by the agency, and obtaining 

a 10(j) injunction from a district court 

requires the court to engage in a casespecific inquiry.495 To be sure, since the 

1950s, with limited exceptions, the 

Board has reserved to itself the privilege 

of approving any plans by the General 

Counsel to pursue Section 10(j) 

injunction proceedings,496 but no prior 

Board has sought to exercise greater 

control over the General Counsels’ 

discretion, even in the face of widely 

varying use of the preliminary 

injunction as an enforcement tool.497

Thus, we decline the invitation to cabin 

the General Counsel’s prosecutorial 

discretion in making the initial 

determination whether a particular 

complaint warrants the agency pursuing 

Section 10(j) injunctive relief. By 

declining, however, we do not mean to 

suggest that it would be inappropriate in 

a particular case for the General Counsel 

to seek injunctive relief to remedy 

unfair labor practices that have blocked 

an election. 

We further decline to adopt AHA II’s 

preferred change to the blocking charge 

policy, that ‘‘unless the regional director 

finds that there is probable cause to 

believe that an unfair labor practice was 

committed that requires that the 

processing of the petition be held in 

abeyance, the regional director shall 

continue to process the petition.’’ 79 FR 

7334. SEIU argues that implementing 

this change would improperly shift the 

presumption away from the one 

described in the Casehandling Manual, 

where a charge can serve to block the 

processing of a representation case 

unless the regional director finds that 

employees’ exercise of free choice is 

possible notwithstanding the charge, to 

one where the petition is processed 

unless and until the regional director 

makes a further determination 

concerning the likelihood of a 

complaint issuing and the seriousness of 

the unfair labor practice involved. As 

described above, we believe that 

regional directors should generally 

continue to process petitions if the 

directors determine that the charging 

party’s offer of proof does not describe 

sufficient evidence to warrant blocking 

an election. On the other hand, in 

situations where parties have raised 

sufficient offers of proof, we believe that 

the presumption should run in favor of 

holding in abeyance the processing of 

the petition absent special 

circumstances. In short, we cannot agree 

that reversing the presumption to one 

where the election proceeds in the face 

of a charge of unlawful conduct unless 

the regional director makes an 

additional probable cause determination 

would be a further improvement. 

Rather, such a standard could cause a 

regional director to conduct an election 

in circumstances where conduct has 

occurred that has a tendency to interfere 

with employee free choice, simply 

because the director was not yet able to 

make the requisite additional 

determination.498

Part 101, Subpart C—Representation 

Cases Under Sec. 9(c) of the Act and 

Petitions for Clarification of Bargaining 

Units and for Amendment of 

Certifications Under Sec. 9(b) of the Act 

In the NPRM, the Board proposed to 

eliminate redundant sections of its 

regulations contained in Subpart C of 

Part 101 describing representation case 

procedures. The relevant sections of 

Subpart C of Part 101 currently include 

an essentially complete restatement of 

the representation case procedure 

established in Subpart C of Part 102. As 

the Board noted in the NPRM, 

‘‘Describing the same representation 

procedures in two separate parts of the 

regulations may create confusion.’’ 79 

FR at 7325. 

The final rule eliminates Subpart C of 

Part 101. A few, non-redundant portions 

are moved into Part 102. For example, 

the description of the pre-election 

conference is moved to § 102.69(a). 


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499See 5 U.S.C. 552(a)(1)(B). The original 

language of this provision stated that the section 

would ‘‘amplify and supplement the[] rules of 

procedure.’’ 12 FR 5651 (August 22, 1947). 

500Tom C. Clark, Attorney General’s Manual on 

the Administrative Procedure Act, 17, 19 (August 

27, 1947). 

501See, e.g., 26 CFR 601.702(a)(1)(ii) (‘‘[T[he 

Commissioner publishes in the Federal Register 

from time to time a statement, which is not codified 

in this chapter, on the organization and functions 

of the IRS.’’). 

502The Board will also continue to publish, 

update, and make available on its Web site the 

detailed statement of representation case 

procedures set forth in its Casehandling Manual. 

503The Board’s form petition, Form NLRB 502 

also states, and will continue to state, that the 

required showing of interest is 30 percent (see Form 

section 6(b)). 

In response to comments that erroneously suggest 

that 30 percent is the threshold for resolving a 

question of representation, the Board reiterates here 

that if a question of representation exists, it is 

resolved by a majority of valid votes cast in an 

election. 

504For example, while Subpart B of part 101 

describes procedures for unfair labor practice cases 

under Section 10(a) to (i) of the Act, Subpart B of 

part 102 also addresses procedures under Section 

10(a) to (i) of the Act for the prevention of unfair 

labor practices. 

505For example, the NPRM did not propose to 

eliminate Subpart F, which sets forth statements of 

procedures for jurisdictional dispute cases under 

Section 10(k) of the Act, even though Subpart F of 

part 102 also addresses procedures to hear and 

determine disputes under Section 10(k) of the Act. 

The Board received no significant 

comments opposing this proposal. 

Comments from a variety of viewpoints 

supported the Board’s effort to eliminate 

redundant regulations. 

As noted in the NPRM, § 101.1 states 

that the purpose of Part 101 is to 

provide the public with a statement of 

‘‘the general course and method by 

which the Board’s functions are 

channeled and determined.’’ 499 The 

purpose of a separate statement of the 

general course ‘‘is to assist the public in 

dealing with administrative agencies,’’ 

but should not be ‘‘carried to so logical 

an extreme as to inconvenience the 

public.’’ 500 The NPRM stated that 

codifying this statement in the Code of 

Federal Regulations risked confusing 

the public. Instead, the Board proposed 

to publish the statement in the Federal 

Register without codification. This 

accords with general administrative 

practice.501 The NPRM contained an 

uncodified statement of the general 

course, 79 FR at 7324–7325, and 

proposed that any final rule that might 

issue would also include an uncodified 

statement of the general course. A 

Statement of the General Course of 

Proceedings Under Section 9(c) of the 

Act is provided below.502

Prior § 101.18 provided, ‘‘The 

evidence of representation submitted by 

the petitioning labor organization or by 

the person seeking decertification is 

ordinarily checked to determine the 

number or proportion of employees who 

have designated the petitioner, it being 

the Board’s administrative experience 

that in the absence of special factors the 

conduct of an election serves no 

purpose under the statute unless the 

petitioner has been designated by at 

least 30 percent of the employees.’’ 

ALFA submits that revised § 102.61 

should explicitly state that a proper 

showing of interest must include 

authorization cards or signatures from 

30 percent of the employees in an 

appropriate unit. The Board declines to 

adopt this proposal. The Board’s current 

Rules and Regulations set forth in Part 

102 do not specify a precise threshold 

for the administratively required 

showing of interest. As explained in 

former § 101.18, the purpose of the 

showing of interest on the part of labor 

organizations and individual petitioners 

that initiate or seek to participate in a 

representation case is merely to 

determine whether there is sufficient 

employee interest in selecting, changing 

or decertifying a representative to 

warrant the expenditure of the agency’s 

time, effort, and resources in conducting 

an election. See also Casehandling 

Manual Section 11020. As such, the 

purpose of the showing of interest is 

purely an administrative one; the size of 

the showing of interest in support of 

certification and decertification 

petitions that the Board currently 

requires is not compelled by the Act. As 

an administrative matter it is not 

litigable. The Borden Co., 101 NLRB 

203, 203 n.3 (1952); Casehandling 

Manual Section 11028.3. However, at 

this time, the Board has no intention of 

changing the size of the required 

showing of interest and the uncodified 

statement of the general course that 

follows states that the required showing 

remains 30 percent.503

Part 101, Subparts D and E— Unfair 

Labor Practice and Representation 

Cases Under Secs. 8(b)(7) and 9(c) of the 

Act and Referendum Cases Under Sec. 

9(e)(1) and (2) of the Act 

In the NPRM, the Board also proposed 

to eliminate its statement of procedures 

contained in Subparts D and E of part 

101. The Board received no significant 

comments regarding the proposal. Upon 

reflection, however, a unanimous Board 

has decided to reject the proposal to 

eliminate Subparts D and E of part 101. 

Unlike prior Subpart C of part 101, 

Subpart D of part 101 does not merely 

address representation case procedures. 

Rather, it also addresses unfair labor 

practice charges and procedures. Thus, 

Subpart D is entitled ‘‘Unfair Labor 

Practice and Representation Cases 

Under Sections 8(b)(7) and 9(c) of the 

Act.’’ (Emphasis added.) Although 

Subpart D of part 102 likewise discusses 

procedures for unfair labor practice and 

representation cases under Sections 

8(b)(7) and 9(c) of the Act, the NPRM 

did not propose eliminating other 

subparts of part 101 setting forth 

statements of procedures for unfair labor 

practice cases, even though certain other 

subparts of part 102 address the same 

matters.504 Thus, the NPRM proposed 

amendments dealing with, and invited 

comment about, representation case 

procedures. The Board concludes that it 

would be more appropriate to consider 

eliminating Subpart D of part 101 at 

such time as the Board may consider 

eliminating any redundancies in those 

other subparts of part 101 and part 102 

that address unfair labor practice 

matters. Accordingly, the Board has 

concluded that it should not eliminate 

Subpart D of part 101 at this time. 

The Board has likewise unanimously 

decided not to eliminate Subpart E of 

part 101. Subpart C of part 101 chiefly 

deals with the Board procedures that 

govern the filing and processing of 

petitions to determine whether 

employees wish to become or remain 

represented for purposes of collective 

bargaining with their employer. Unlike 

Subpart C of part 101, Subpart E deals 

with a highly specialized type of case— 

arising under Section 9(e)(1) and (2) of 

the Act—addressing the issue of 

whether the Board should conduct an 

election to determine whether the 

employees in a bargaining unit covered 

by an agreement between their employer 

and a labor organization that requires 

membership in the labor organization as 

a condition of employment, desire that 

such authority be rescinded. Regardless 

of the outcome of the election 

conducted pursuant to Subpart E, the 

unit employees remain represented visa`-vis their employer. During fiscal years 

2010–2013, parties filed fewer than 80 

petitions per year of the type addressed 

in Subpart E of Part 101 and 102. 

Although Subpart E of part 102 likewise 

discusses procedures for referendum 

under Section 9(e) of the Act, the NPRM 

did not propose eliminating other 

subparts of part 101 setting forth 

statements of procedures for other 

specialized sets of cases that do not deal 

with ordinary representation case 

issues, even though other subparts of 

part 102 address the same matters.505

The Board has concluded that it would 

be more appropriate to consider 

eliminating Subpart E of part 101 at 

such time as the Board may consider 


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506The final rule’s amendments to these two 

subparts differ in some respects from the 

amendments made by the December 22, 2011 final 

rule. In some instances, this is because the 2011 

final rule deferred other proposals which the final 

rule now adopts. For example, the 2011 final rule 

deferred the proposal to eliminate the transfer 

procedure. Accordingly, the 2011 final rule did not 

amend § 101.30(c) to delete the references to the 

transfer procedure. 76 FR 80182. Now that the 

Board has decided to eliminate the transfer 

procedure, the final rule deletes the references to 

the transfer procedure in § 101.30(c). In other 

instances, the Board has concluded that certain 

amendments to Subpart D were not necessary. For 

example, the 2011 final rule amended § 101.23(b) to 

provide that if the regional director directed an 

election without first conducting a hearing, an 

aggrieved party should file a request for review of 

that action after the election. 76 FR 80181. 

However, the NPRM did not propose to amend, and 

the 2011 final rule did not amend, § 102.80(c), 

which provides that if the regional director directs 

an election without first conducting a hearing in a 

proceeding arising under Subpart D, a party may 

file a request for special permission to appeal. 

Accordingly, the final rule preserves the ‘‘special 

permission to appeal’’ language in § 101.23(b) from 

the pre-NPRM version of that section. The final rule 

also preserves the pre-existing language to the effect 

that the regional director’s rulings on election 

objections and challenged ballots are final and 

binding unless the Board grants a party special 

permission to appeal from the regional director’s 

rulings. The 2011 final rule provided in § 101.30(c) 

that in cases arising under Subpart E of Part 101, 

post-hearing briefs could be filed only upon special 

permission of the hearing officer. 76 FR 80182. 

However, as discussed below in connection with 

§ 102.66, the Board has decided that the regional 

director, not the hearing officer, should be the one 

to decide whether parties may file posthearing 

briefs. Accordingly, the final rule amends 

§ 101.30(c) to so provide. 

507Section 102.67(b). 

508See Section 9(c) of the Act (29 U.S.C. 159(c)). 

509See Id.; Inland Empire Council v. Millis, 325 

U.S. 697, 706–710 (1945). 

510See Section 9(d) of the Act (29 U.S.C. 159(d)); 

Boire v. Greyhound Corp., 376 U.S. 473, 476–480 

(1964). 

511See Section 3(b) of the Act (29 U.S.C. 153(b)); 

Magnesium Casting Co. v. NLRB, 401 U.S. 137, 138, 

141–142 (1971). 

512See Section 5(6) of the APA (5 U.S.C. 

554(a)(6)); S. Rep. No. 752, 79th Cong., 1st Sess. 16 

(1945); Senate Committee on the Judiciary 

Comparative Print on Revision of S. 7, 79th Cong., 

1st Sess. 7 (1945). 

513Our colleagues note, as they did in their 

dissent to the NPRM (79 FR at 7341 n.92) that other 

Board doctrines impose lengthy delays before the 

Board permits employees to vote on questions of 

representation, and they contend that the Board is 

eliminating other redundancies in those 

other subparts of parts 101 and 102 that 

address highly specialized sets of cases. 

Accordingly, the Board has concluded 

that it should not eliminate Subpart E of 

part 101 at this time. 

The final rule conforms 

representation and referendum 

procedures in these two subparts as 

described therein to amendments set 

forth below.506

VI. Response to the Dissent 

In August 2013, for the first time in 

over 10 years, a full complement of five 

confirmed members of the National 

Labor Relations Board was sworn in to 

office. Soon afterward, the Board took 

up the long-delayed project of 

examining and revising its procedural 

rules for representation cases. With the 

issuance of this final rule, the project 

has been completed. At every stage, 

from establishing the framework for 

review of existing procedures, to 

structuring the public comment periods 

and the full-Board public hearing, to 

deliberations and voting on specific 

provisions and issues, to the exchange 

of drafts of the various parts of the final 

rule, the Board’s work has been marked 

by the full and earnest engagement of 

each of the Board’s members, and the 

frank and open exchange of ideas among 

all of the members. Combined with the 

extraordinary outpouring of detailed 

and insightful commentary from the 

public, during both the most recent 

comment period and the 2011 period, in 

written comments and at the full-Board 

public hearings, the Board members’ 

painstaking efforts have resulted in a 

remarkably thorough and thoughtful 

consideration of the proposed 

amendments. The care with which the 

issues have been considered is evident 

throughout the final rule, from the 

preamble, to the dissent, to the 

regulatory text itself. 

We wish that the Board could have 

been unanimous as to every amendment 

contained in the final rule. Perhaps it 

was inevitable, given the broad range of 

differing experiences and viewpoints 

represented on the Board that a full 

consensus as to every issue would not 

be reached. However, as to many of the 

features of the rule, listed below, there 

is no substantive disagreement among 

the Board members. Even more 

importantly, the deliberations, 

discussions and exchanges of ideas 

among Board members have proved the 

value of having a diversity of 

perspectives and backgrounds on the 

Board. The final rule differs from the 

proposed rule in many ways, both large 

and small, and in virtually every key 

aspect of the rule. Most of these 

departures from the original proposal, 

which are summarized below, were 

prompted by criticisms and concerns 

raised by our dissenting colleagues, as 

well as the public comments. The rule 

has been greatly improved as a result. 

Before we address the specific 

differences that remain among the Board 

members, we offer a general 

observation: The most significant 

remaining differences among the Board 

members stem from a difference in 

approach. The approach of the majority, 

as explained in the preamble and below, 

has been to address discrete problems 

with targeted solutions, while 

maintaining the essential elements of 

the existing process. These solutions 

variously advance the goals of 

efficiency, fair and accurate voting, 

transparency, uniformity, and adapting 

to new technology, totally apart from, or 

in addition to, fulfilling the Act’s 

mandate of expeditious resolution of 

questions of representation. Much of the 

dissent, by contrast, focuses singlemindedly on one issue: the timeline 

from petition to election. The possible 

effect of each amendment on this 

timeline is the main concern of the 

dissent, to the virtual exclusion of the 

problem sought to be addressed. Indeed, 

the dissent proposes the creation of a 

mandatory timeline for the scheduling 

of elections. That is something that, over 

the nearly 80 years of the Act’s 

existence, both Congress and the Board 

have declined to do. We decline to do 

so as well. In just the past several years, 

the Board has conducted elections in 

units smaller than 5 employees and 

units of nearly 50,000 employees, in a 

vast multitude of different industries 

and geographic locations. To us, the 

imposition of a one-size-fits-all timeline 

on our elections makes no sense. 

Instead, we think that the regional 

directors should continue to hold 

elections as soon as practicable in the 

circumstances of each case. Where there 

is no need to wait, the election should 

proceed; where there is a need to wait, 

the election should not proceed. 

This view, that elections should be 

scheduled for the ‘‘earliest date 

practicable,’’ 507 reflects the settled view 

of the Board over the course of its 

history. The current Casehandling 

Manual states (at 11302.1) that 

‘‘election[s] should be held as early as 

is practical,’’ and the same statement is 

found in similar manuals dating back at 

least to the 1970s. And while the Act 

does not include that language, its very 

structure and relevant provisions 

demonstrate consistent and repeated 

support for that goal. Its terse and 

nontechnical description of 

procedures,508 its broad delegation of 

discretion regarding the ‘‘appropriate 

hearing,’’ 509 its prohibition of any court 

interference with or direct court review 

of election procedures,510 its purpose in 

authorizing the delegation of decisionmaking authority to regional 

directors,511 and its specific and unique 

exemption from APA adjudication 

procedures 512 all manifest a consistent 

and powerful concern with the 

expeditious resolution of questions 

concerning representation, as has been 

recognized in Supreme Court opinions 

and in the relevant legislative history.513


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irrationally reformulating its representation case 

processing procedures for greater expedition in the 

initial election context only. However, in the 

circumstances identified by our colleagues, 

employees have already had at least one 

opportunity to choose whether they wish to be 

represented, and the delay in affording them 

another opportunity advances the interest in 

industrial peace and stability. See UGL–UNICCO 

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

doctrine ‘‘clearly promotes collective bargaining’’ 

and preserves ‘‘stability’’); Lamons Gasket Co., 357 

NLRB No. 72 (2011) voluntary recognition bar 

‘‘advance[s] the statutory purposes of preventing 

‘industrial strife or unrest’ and ‘encouraging the 

practice and procedure of collective bargaining’ ’’); 

Brooks v. NLRB, 348 U.S. 96, 100–101 n.8 (1954) 

(Section 9(c)(3) provides that after a valid election 

has been conducted, the Board may not hold a 

second election in the same unit for 1 year ‘‘in order 

to impress upon employees the solemnity of their 

choice . . . . ’’); Auciello Iron Works, Inc. v. NLRB, 

517 U.S. 781, 786–87 (1996) (‘‘need for repose’’ and 

‘‘industrial peace’’ underly the presumption that a 

union is entitled to a conclusive presumption of 

majority status during the term of a collectivebargaining agreement of 3 years or less); Fall River 

Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 38– 

39 (1987) (‘‘develop[ing] stable bargaining 

relationships’’ will ‘‘further industrial peace,’’ 

considerations which underlie presumptions of 

majority support ‘‘particularly * * * in the 

successorship situation’’); Terrace Gardens Plaza, 

Inc. v. NLRB, 91 F.3d 222, 227 (D.C. Cir. 1996) 

(contract-bar doctrine designed ‘‘to stabilize 

existing employer-union relationships’’). By 

contrast, in an initial organizing situation the 

interest of industrial peace is furthered by 

expedition rather than repose, and thus the Board’s 

approach is rational and accords with statutory 

policy. Certainly, there is no support for our 

colleagues’ implicit suggestion that the waiting 

periods were designed to afford employers an 

opportunity to campaign against union 

representation, and that the Board should therefore 

impose a waiting period in the initial election 

context as well. 

514The Board considered similar factors when it 

established the Excelsior rule, which requires that 

the employer provide the names and addresses of 

voters to the petitioning union at least 10 days prior 

to the election. 156 NLRB 1236, 1239–41 (1966); see 

Mod Interiors, 324 NLRB 164, 164 (1997); 

Casehandling Manual Section 11302.1. The Board 

considered this an adequate time period for 

previously unreachable voters to be exposed to the 

nonemployer party arguments concerning 

representation. That analysis remains relevant in 

considering employers’ opportunity to campaign. 

The dissent is also mistaken in its claim that the 

rule does not consider employee opportunities to 

speak. The dissent overlooks the final rule’s 

discussion of employee speech and debate. In any 

event, to the extent the preamble focuses on 

employer speech, such discussion is for the purpose 

of responding to relevant comments. 

515The dissent cites our discussion of whether 

there is a ‘‘meaningful opportunity for speech’’ to 

argue that our approach is tantamount to ‘‘the 

government simply determin[ing that more] speech 

is not necessary,’’ which the dissent finds ‘‘the most 

objectionable aspect of the Rule as it relates to 

protected speech.’’ The dissent’s argument proves 

too much. The selection of an election date 

necessarily imposes a limit on campaign speech. 

The dissent’s own time targets would cap speech 

at 60 days, and in many cases would limit it to as 

few as 30 days. Some comments argue that this is 

inadequate time for speech. In response, the dissent 

would be forced to consider whether more than 30 

to 60 days are needed for pre-election speech—the 

very analysis which the dissent calls ‘‘most 

objectionable.’’ Indeed, any election date selected, 

under any set of rules, would suffer from the same 

supposed problems identified by the dissent. 

A. Building on a Sound Foundation 

The final rule does not change the 

essentials of the representation case 

process. As before, a petition starts the 

process; it must be supported by a 

sufficient showing of interest. Upon 

service of the petition by the regional 

office, employers are asked to post a 

notice of employee rights and to provide 

information in response to the petition. 

In the event the parties do not enter into 

an election agreement, there is a preelection hearing. The hearing enables 

the regional director to determine 

whether there is a question of 

representation and, if so, determine the 

appropriate voting unit. The parties may 

seek Board review of the regional 

director’s decision. Prior to the election, 

the employer provides the voters’ 

contact information to the other parties 

and posts a notice of the election. The 

notice permits employees to know the 

unit in which the election will be 

conducted and when, where, and how 

they may vote. There is a secret-ballot 

election. There is a tally. Any 

determinative challenges or objections 

are litigated and resolved. The results 

are certified and Board review may be 

sought. 

Contrary to our dissenting colleagues, 

the final rule does not disturb these 

fundamental elements. Rather, the final 

rule is a collection of discrete, targeted 

changes to the technical details. Each of 

these changes serves a distinct set of 

purposes, including minimizing 

unnecessary barriers to the fair and 

expeditious resolution of questions 

concerning representation, eliminating 

unnecessary and duplicative litigation, 

simplifying representation case 

procedures and rendering them more 

transparent and uniform across regions, 

reducing the cost of such proceedings to 

the public and the agency, and 

modernizing the Board’s processes, with 

a particular emphasis on the effective 

use of new technology. The Board has 

carefully examined and addressed a 

number of needed changes in a single 

rulemaking process in an effort to 

advance these various goals while 

preserving the essential steps of the 

representation case process. 

B. Protecting Free Speech and Debate 

The final rule does not change any 

rules regarding speech. And just as 

existing procedures have never been 

criticized for limiting speech, we do not 

think this final rule will create any new 

free speech issues. Yet the dissent 

argues that speech, specifically 

employer speech, will be limited 

because the final rule will not give the 

employer enough time to mount an 

election campaign. But whenever a date 

for an election is fixed, a limit is 

necessarily placed on campaign speech. 

Bearing this fact in mind, the relevant 

question is whether the procedures will 

provide a meaningful opportunity for 

employer, employee and union speech. 

The preamble includes a far-ranging, 

thoughtful, and careful consideration of 

this question, and concludes that the 

rule provides a meaningful opportunity 

for campaign speech before the election. 

Advances in communications 

technology have made the 

dissemination of information not only 

faster, but also more effective and 

efficient. Also, the scope of the 

campaigns is often limited, as elections 

frequently involve small bargaining 

units of no more than a couple dozen 

employees. There are also pre-petition 

opportunities to speak, which the final 

rule does not affect at all; the parties 

often know of the campaign in advance. 

Regarding employer speech in 

particular: employers have nearcomplete and continuous access to 

employees to engage in various forms of 

communications, including electronic, 

print, and in-person—in large and small 

groups and individually—and may 

require attention to such 

communications as a condition of 

employment.514 Finally, the regional 

director will retain discretion to 

consider these matters in selecting an 

election date. 

We agree with the dissent that these 

opportunities for free speech and debate 

‘‘are part and parcel of every 

employment relationship.’’ So much the 

better. Such structural opportunities for 

free speech and debate by employees 

and their employer—which are unique 

to the workplace environment—are 

especially persuasive evidence in 

support of our view that the final rule 

will not have the effect of creating 

‘‘undue restrictions on protected 

speech’’ in Board elections.515

Finally, the dissent claims that the 

rule is ultimately based on an ‘‘ ‘antidistortion’ theory’’—i.e., that it will 

disadvantage anti-union speech. The 

dissent notes that some comments 

expressed a desire to silence employers, 

and attempt to paint the final rule with 

the same brush. We do not see why it 

should matter that someone, somewhere 

has expressed inappropriate or 

irrelevant reasons for wanting the Board 

to issue a sound rule. We do not impute 

to the dissent the motives or reasoning 

of all those commenters who opposed 

the NPRM, and it is equally fallacious 

to impute the motives or reasoning of 

other commenters to us. 


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516The dissenters claim that the new statementof-position and notice requirements are so 

burdensome that additional time must be given in 

every case. As noted below, however, the form 

requires identifying matters that parties generally 

would have had to review and consider in 

preparing for a hearing or an election agreement 

under the current rules. The added burden is 

merely one of transcription and disclosure. The 

requirement to post the Notice of Petition for 

Election does not impose a substantial burden on 

employers either. Indeed, the regional director will 

supply the employer with the notice to be posted 

and with explicit instructions on how to post it. 

517 In practice, in 2013, regional directors 

scheduled the pre-election hearing to open in 7 to 

10 days in 76% of cases. In the small minority of 

cases that actually went to hearing, short extensions 

were often granted. Still, 25% opened in 7 to 10 

days, and 71% of cases that went to a hearing 

opened within 14 days. Only 39 total cases opened 

the hearing after the 15th day. 

518Although regions routinely ask parties to 

voluntarily provide this information before the 

hearing, parties sometimes do not provide the 

information, let alone permit the regions to share 

it with the petitioners. Preclusion provides an 

incentive for parties to complete the form and serve 

it on the parties, and assures good faith in 

completing the form. 

In the end, the dissent 

acknowledges—as it must—that the 

final rule expressly disclaims any such 

purpose. The final rule consistently and 

repeatedly recognizes the employer’s 

valid right to speak and the statutory 

policy in favor of free debate. The final 

rule does not rest on any judgment or 

evaluation for or against any party’s 

speech. Like the Excelsior rule, this rule 

‘‘is not intended to * * * ‘level the 

playing field’ between petitioners and 

employers, but to achieve important 

statutory goals by ensuring that all 

employees are fully informed about the 

arguments concerning representation 

and can freely and fully exercise their 

Section 7 rights.’’ Mod Interiors, Inc., 

324 NLRB 164 (1997). The Board is not 

trying to limit speech. 

To the contrary, the final rule 

includes affirmative provisions to 

expand and encourage discourse in 

advance of the election. As an initial 

matter, it requires that an official Notice 

of Petition for Election be posted at the 

workplace so that all employees are 

timely notified of the initiation of the 

election process and advised of its 

procedures and their rights. In the past, 

posting such a notice was 

recommended, but not required. As a 

result, not all employees were equally 

advised about the filing of the petition 

and its meaning, and there was no ready 

access to NLRB-provided information 

about their rights. The Notice of 

Election has also been revised to 

provide employees more information 

about the election process prior to 

voting. These efforts are designed to 

facilitate more, not less, information and 

debate by and among employees, as well 

as the parties to the proceeding. 

C. The Rule Follows the Same ‘‘Hearing 

First, Election Thereafter’’ Process as 

Before 

The pre-election hearing remains an 

important part of the Board’s 

representation procedures under the 

final rule. The dissent’s criticism of the 

changes to the pre-election hearing 

depend largely on misstatement or 

misunderstanding of both the prior rules 

and the new rules. 

1. The Hearing Date 

Prior caselaw imposed a minimum of 

5 working days from notice of the 

hearing. Croft Metals, Inc., 337 NLRB 

688, 688 (2002). The final rule sets a 

hearing date of 8 days from notice of the 

hearing.516 The dissent concedes, as it 

must, that hearings are currently being 

scheduled to open in 7 to 12 days.517

And contrary to the dissent, the final 

rule gives regional directors flexibility 

to depart from the normal hearing time 

frame in appropriate cases. Indeed, the 

final rule provides that a regional 

director should, on the director’s own 

initiative, schedule the pre-election 

hearing to open in more than 8 days 

when the petition raises unusually 

complex issues. The final rule also 

permits the director to grant 

postponements of up to 2 business days 

upon request of a party showing special 

circumstances and for more than 2 

business days upon request of a party 

showing extraordinary circumstances. 

Nothing in the final rule deprives 

regional directors of the discretion they 

currently exercise to postpone hearings 

when they conclude that it is highly 

probable that the parties will be able to 

enter into an election agreement. 

2. The Statement of Position 

Our colleagues object to the final 

rule’s requiring nonpetitioning parties 

to complete written Statements of 

Position, but the essential new 

requirement is to write the position 

down. 

The course of the hearing used to be 

guided by a written petition, an oral 

statement of other parties’ positions at 

the hearing, and the petitioner’s oral 

response. It will now be guided by a 

written petition, written statements of 

the other parties’ positions that are filed 

and served the day before the hearing, 

and the petitioner’s oral response at the 

hearing. Both the written statements of 

position and the oral response may be 

amended for good cause. 

The dissent concedes that the 

information solicited by the form 

‘‘routinely’’ has been requested from 

employers by regional personnel under 

the Board’s current practice. The form 

largely asks parties to take positions on 

matters that must be addressed by them, 

one way or another, under both the old 

rules and the new. The only new burden 

is to commit the positions to paper and 

furnish it to the regional director and 

the parties before the hearing. 

Nonetheless, the dissent claims that (a) 

there is no rational basis for requiring 

nonpetitioning parties to complete a 

Statement of Position or face being 

precluded from litigating certain 

matters, and (b) the requirement 

imposes one-sided burdens on 

employers. 

We find no merit to our colleagues’ 

objections. The form allows both the 

Board and all the parties to understand 

what issues are in dispute and which 

employees are impacted by these issues, 

thus facilitating election agreements and 

making hearings more focused. 

Preclusion assures that the form is 

uniformly completed, and done so in 

good faith.518 By precluding the parties 

from raising new issues later without 

good cause, the rule merely requires the 

parties to take the matter as seriously as 

they would an election agreement, 

which also precludes the raising of new 

issues afterward. These are plainly 

rational considerations. And the final 

rule provides for changes to the 

Statement of Position upon good cause 

shown. 

As to the latter point, our colleagues 

are wrong in contending that the final 

rule’s statement-of-position provisions 

impose one-sided burdens on 

employers. The representation process 

in an RC case is initiated by a written 

petition for election, filed by employees 

or a labor organization on their behalf. 

The petition requires the filer to state a 

position on the appropriate unit, 

identifying both inclusions and 

exclusions, and other relevant matters, 

including recognition and contract bar, 

election details, possible intervenors, 

the number of employees, the locations 

of the facilities involved, and the 

identities of the petition filer and the 

employer. All of this information is 

provided before the employer is 

required to respond in its Statement of 

Position. The statement-of-position form 

seeks essentially the same information 

from the employer’s point of view. 

Where the statement-of-position form 

seeks different or additional 

information, it is generally because the 

employer has exclusive access to it. For 

example, the questions relating to 

jurisdiction concern the employer’s 

dealings in interstate commerce. The 

names and job titles of an employer’s 


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519Labor organizations must complete Statements 

of Position in RM and RD cases when an employer 

or individual decertification petitioner files a 

petition. The Statements of Position to be 

completed by labor organizations in RM and RD 

cases are similar to the Statements of Position that 

employers must complete in RC cases. 

Our colleagues admit that the rule is ‘‘facially 

neutral,’’ but nonetheless insist that because there 

are more RC petitions filed than RM or RD 

petitions, the requirement will ‘‘usually’’ fall on 

employers. Notwithstanding the number of 

petitions of each type filed each year, which is 

entirely beyond the Board’s control, the important 

point is that the final rule treats nonpetitioning 

employers the same as nonpetitioning labor 

organizations. 

520Our colleagues complain, however, that the 

petitioner is merely required to respond orally at 

the hearing to the positions taken the day before the 

hearing by the nonpetitioning party in its written 

position statement. But there is no unequal 

treatment here: The nonpetitioning parties’ prehearing, written Statement of Position is a response 

to the positions taken in writing 1 week earlier by 

the petitioner in its petition. And just as petitioners 

may respond orally on the record to positions taken 

by the nonpetitioning parties, so too can the 

nonpetitioning parties orally move on the record to 

amend their Statements of Position. 

521We also disagree with our colleagues’ 

complaint that employers will not understand the 

issues to be addressed by the Statement of Position. 

The statement-of-position form itself will help 

guide parties’ prehearing preparation because it 

identifies relevant issues that they may wish to 

raise. Should parties have questions, they may 

contact the regional office for assistance. 

522This caselaw is discussed in the preamble 

section on 102.66. 

523As the rule does not implement a mandatory 

20% figure, the dissent’s criticism of the deferral 

provision as ‘‘arbitrary’’ is unconvincing. To be 

sure, as the dissent points out, in the preamble the 

Board carefully analyzes its statistics and the 

comments on this point, and concludes in a 

footnote that 20% may often serve as a sensible 

benchmark. As shown, deferral of issues affecting 

such a comparatively small percentage of the 

electorate will very often avoid unnecessary 

litigation, a consideration that regional directors 

can and should take into account in administering 

cases. 

But this is very different from mandating 20% as 

the rule in every case. The dissent’s analysis is 

predicated on an assumption that 20% of all voters 

are deferred in every case. In reality the vast 

majority of cases will involve far fewer such 

disputes, either because they are resolved by 

stipulation or because they are never contested at 

the pre-election hearing. 

own employees are typically known 

only by the employer, and payroll 

details, including the length of the 

payroll period and the most recent 

payroll period ending date, are those 

established by the employer.519

Our colleagues also object that the 

petition is not constrained by the 

preclusion and amendment provisions 

that apply to the statement of position. 

The final rule makes no change to the 

well-developed caselaw governing 

amendments to a petition, because no 

such change is necessary. Preclusion 

regarding the statement of position is 

justified by the rulemaking record and 

the Board’s experience demonstrating 

that non-petitioning parties sometimes 

do not share the information solicited 

by the statement of position form prior 

to the hearing, or they take shifting 

positions on the issues at the hearing. 

Such conduct impedes efforts to reach 

election agreements or hold orderly 

hearings. No such problems have been 

identified with petitions, and so no such 

change is needed. Moreover, as 

discussed above in connection with 

§ 102.63, a party will typically have 

good cause to timely amend its 

Statement of Position to raise an issue 

that is presented by virtue of a 

petitioner amending its petition. 

Second, the rules provide that if a 

petitioner does not respond to a position 

taken in the statement of position—in 

most cases the day after the statement of 

position is filed—the petitioner 

generally may not present evidence 

regarding that issue. This limitation is 

directly parallel to preclusion by the 

statement of position. See amended 

§ 102.66(d). Similarly, just as a 

nonpetitioning party must establish 

good cause if it wishes to amend its 

Statement of Position, so too must a 

petitioner establish good cause if it 

wishes to amend its response to the 

nonpetitioning party’s Statement of 

Position. See amended § 102.66(b). 520

It makes more sense to apply 

preclusion after a party has learned the 

position of the other party. As noted, 

non-petitioners learn the petitioner’s 

positions on the relevant issues from the 

petition, and so preclusion attaches to 

the Statement of Position in response. 

Similarly, the petitioner first learns nonpetitioner’s position from the Statement 

itself, and so preclusion attaches in 

replying to the Statement.521

3. Issues Decided Before the Election 

If the parties do not enter into an 

election agreement and a hearing is 

conducted, the regional director decides 

the appropriate unit, but has discretion 

to defer deciding discrete voter 

eligibility and inclusion questions. This 

is unchanged from prior rules, except 

that the rules now provide more 

guidance for making deferral decisions. 

The dissent acknowledges that the 

Board has never required that all 

individual voter eligibility disputes be 

resolved before the election and that, 

under current practice, stipulated 

elections routinely defer up to 10% of 

the unit to the challenge process. The 

dissent nevertheless complains that the 

Board is changing the former 10% 

standard to 20%, and that this 

expansion of the practice is a bad idea. 

The dissent is correct that non-binding 

guidance issued by the NLRB General 

Counsel (but not contained in a Board 

rule) articulated a 10% standard. But 

Board caselaw allows eligibility and 

inclusion issues affecting more than 

10% of the unit to be deferred.522 And 

contrary to the assertions of our 

dissenting colleagues, the 20% figure is 

not in the final rule; the Board expressly 

decided not to adopt the bright-line 

20% rule that was proposed in the 

NPRM. Rather, regional directors have 

discretion to defer (or not) a different 

percentage, based on their best 

judgment as to what would be most 

administratively efficient.523

The dissent engages in a lengthy 

discussion of legislative history about 

the pre-election hearing. But the 

conclusion it reaches—that the Act 

requires a pre-election hearing absent 

stipulation—is set forth in the plain text 

of the Act itself. Nothing in the final 

rule is inconsistent with this history. 

In the 1940s, the Supreme Court 

decided two relevant cases interpreting 

Section 9. First, in Inland Empire, the 

Court held that the statute allowed for 

an ‘‘appropriate’’ hearing to come after 

the election. The Court noted that 

Congress specifically chose that 

essential word—‘‘appropriate’’—in 

order to give wide latitude to the Board. 

The Court also noted that the statute did 

not expressly resolve the question of 

when the hearing was to take place, and 

so the Board was free to make that 

choice for itself. 

Second, in A.J. Tower, the Court 

considered a variety of arguments 

against the Board’s practice of litigating 

and resolving voter eligibility via the 

election-day challenged-ballot 

procedure. The Court upheld this 

procedure. Again, the Court pointed to 

the wide latitude given to the Board to 

ensure ‘‘that employees’ votes may be 

recorded accurately, efficiently and 

speedily.’’ A.J. Tower Co., 329 U.S. at 

331. 

In 1947, Congress decided to revise 

representation case procedures. 

Congress could have deleted that 

essential word—‘‘appropriate’’—in 

order to take discretion away from the 

Board. It could have required the Board 

to follow the same APA adjudication 

processes that all other agencies 

followed. It could have eliminated the 

challenged-ballot procedure, and 

required all voter-eligibility questions to 

be decided before the election. 

It did none of those things. Instead, 

Congress made one very limited, very 

specific change to the hearing process: 

the statute was amended to state that the 

hearing was to take place before the 

election. 

Congress chose to retain the term 

‘‘appropriate’’—knowing full well the 


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524At various times, including in 1959, at the 

time of the Landrum-Griffin amendments to the 

Act, Congress has considered undoing the 1947 

change to allow hearings to come after the election, 

but to date it has not done so. As such, it is still 

the intent of the 1935 Congress, as modified by the 

very limited changes in 1947, which controls the 

analysis here. 

525 It should also be noted that parties are also 

free to submit affidavits supporting their proffers. 

526Contrary to the dissent, the rules do not treat 

offers of proof as ‘‘evidence’’ in decisions ‘‘on the 

merits.’’ Offers of proof are used only to determine 

whether the evidence they describe is relevant, or 

whether the benefit of admitting it outweighs the 

burden. 

We also disagree with Member Miscimarra’s 

claim that the final rule conflicts with the Act by 

allowing off-the-record communications between 

hearing officers and regional directors in order for 

hearing officers to report—and regional directors to 

rule on—offers of proof. As shown in the 

commentary (and as more fully discussed in 

connection with § 102.66), this aspect of the final 

rule codifies a best practice that has been in place 

for decades. The practice does not run afoul of the 

statute’s requirement that hearing officers not make 

recommendations as to how the regional director 

should rule. Contrary to Member Miscimarra, we 

see no similarity between a hearing officer seeking 

a regional director’s ruling on an offer of proof, and 

the practice—prohibited in 1947—of trial examiners 

attending executive sessions of the Board to defend 

the trial examiner’s findings against party 

exceptions. See S. Rep. No. 80–105, at 10. 

In any event, parties retain the right to present 

their arguments directly to the regional director 

through a request for special permission to appeal. 

Amended 102.65(c); see Laurel Assoc. Inc., 325 

NLRB at 603 & n. 13 (regional director rules on 

party’s request for special permission to appeal a 

hearing officer’s rejection of its offer of proof). 

527We disagree with the dissent’s claim that 

‘‘some measure of complexity is the norm, not the 

exception’’ with respect to representation cases. In 

the vast majority of cases, the parties resolve all of 

their issues without resort to a hearing. As for the 

relatively few cases that do go to hearing, the issues 

are typically so straightforward that most hearings 

last less than 1 day. And in those relatively few 

cases where parties request review of the regional 

director’s decision, the Board usually denies the 

request in an unpublished decision. 

breadth of discretion that the Supreme 

Court understood this word to convey to 

the Board. Congress also preserved the 

Board’s APA exemption. Congress did 

not touch the challenged-ballot 

procedure, and the statute continued to 

allow the Board to defer decisions on 

voter eligibility until after the election. 

Thus, the statute’s essential view of the 

purpose of the hearing and the latitude 

given to the Board was unchanged from 

1935—except for the particular fact that 

the hearing must now precede the 

election.524

The final rule is consistent with this 

history. It involves no qualitative 

changes regarding the issues to be 

decided before the election. Under the 

final rule, just as before, the regional 

director will determine both the 

appropriate unit and the payroll period 

for voter eligibility (or eligibility 

formula) before conducting the election. 

In addition, and without change from 

the current procedure, the regional 

director provides a written unit 

description to the parties and to 

employees before the election. The 

notice of election, which the employer 

is required to post 3 days before the 

election, will advise employees of the 

appropriate unit and the voter eligibility 

period—just as occurs under the current 

procedures. And under the final rule, 

regional directors may continue to 

utilize the challenged ballot procedure 

to address unresolved questions of voter 

eligibility and inclusion. 

4. Issues Litigated Before the Election 

If it is known in advance that a matter 

will not be decided in the direction of 

election, there is no reason to permit 

evidence to be introduced on the matter. 

This is the very definition of irrelevant 

and unnecessary litigation. And yet the 

former rules required the hearing officer 

to allow evidence even on voter 

eligibility issues that the regional 

director would defer deciding. Under 

the final rule, by contrast, if a decision 

on individual eligibility is going to be 

deferred, the regional director has 

discretion to direct the hearing officer to 

decline to take evidence on that 

question. 

The crux is in the qualification: How 

can the regional director know in 

advance whether it would be 

appropriate to defer resolution of the 

issue? The answer given in the final rule 

is a procedural one. 

First, the petition and statement of 

position will allow the regional director 

to know which issues parties seek to 

litigate and which potential voters those 

disputes affect. This will allow an initial 

assessment of the need to resolve any 

particular issue when judged in light of 

the purpose of the pre-election hearing 

and sound administrative practice. At 

the hearing, the petitioner and other 

parties will respond to the issues raised, 

further illuminating their differences 

and narrowing the scope of the disputed 

matters. 

Next, the hearing officer may take an 

on-the-record offer of proof which 

provides a detailed description of the 

evidence that would be introduced by 

the party proffering it. On the basis of 

these proffers, the regional director will 

know the quantity and (to some extent) 

quality of evidence that would be 

introduced. This will further inform the 

decision of whether the issue should be 

litigated or deferred until after the 

election. 

The dissent opines that regional 

directors will be unable to make 

reasonable decisions whether to defer 

voter eligibility disputes without full 

litigation of each. But under the final 

rule, if the regional director concludes 

that is so in a particular instance, 

evidence can be introduced and the 

issue can be decided or deferred on the 

basis of that evidence. 

This process is consistent with that 

routinely used by courts, administrative 

law judges and hearing officers to make 

decisions about the order, timing and 

even permissibility of litigation based 

on only a description of the issues and 

evidence. 

The dissent argues that such offers of 

proof have been infrequently utilized 

and are a poor substitute for oral and 

written evidence. Yet both the 

Casehandling Manual and the Hearing 

Officer’s Guide have long encouraged 

offers of proof as a best practice due to 

their utility in promoting efficient 

hearings. The final rule codifies and 

encourages this best practice because if 

an offer of proof—where evidence may 

be characterized in its most 

advantageous light—cannot establish 

the underlying evidence’s value, then 

there can be little doubt that party and 

agency resources would be wasted by 

taking the evidence at that particular 

time.525

Offers of proof are adequate here—as 

the everyday experience of trial courts 

attests. There is no need to clutter the 

record with irrelevant evidence.526 It is 

the dissent’s proposed model of 

mandatory litigation concerning issues 

that need not and will not be decided 

that lacks an analogue in other judicial 

or administrative settings. Neither the 

Board nor the parties should be saddled 

with these litigation inefficiencies. 

5. Post-Hearing Briefing 

Our colleagues freely acknowledge 

that briefs are not necessary in every 

case. Our colleagues also do not dispute 

that 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)).527

Furthermore, they do not, and cannot, 

contest that in several other 

representation case contexts, 

including—most notably—post-election 

hearings on election objections and 

voter challenges, the Board long ago 

established that discretionary briefing is 

the better practice. Discretionary 

briefing accords with the Supreme 


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528We note that the 1997 Report of Best Practices 

Committee—Representation Cases, prepared by a 

committee of primarily NLRB regional directors, 

deemed it a ‘‘best practice that the hearing officer 

should solicit oral argument in lieu of briefs in 

appropriate cases since in some cases briefs are 

little, if any, assistance to the Regions and may 

delay issuance of the decision.’’ It also urged 

hearing officers to: ‘‘ensure that the parties state on 

the record the issues and their position on each 

issue at the end of the hearing. Such statements will 

assist the Region in preparing the decision more 

quickly.’’ p. 10. We agree with this advice of NLRB 

regional directors from almost 17 years ago which 

is only now being codified. 

529 In any event, we think it abundantly clear that 

the current right to a 7-day briefing period with 

permissive hearing officer extensions of up to 14 

additional days adds some measure of unnecessary 

delay to case processing. In sufficiently 

straightforward cases, therefore, a collateral benefit 

of this change in the rule is that decisions will issue 

more promptly. 

530Most parties prefer stipulated election 

agreements to consent agreements for that reason, 

but that preference has nothing to do with the 

choice between stipulation and litigation. 

Court’s decisions permitting 

administrative agencies the 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). The final 

rule allows regional directors to decide 

whether to allow the filing of posthearing briefs. 

The Board clearly has the authority to 

make the change in question and has a 

valid reason to do so. Our colleagues 

argue for a different choice because, in 

their view, regional directors’ decisions 

will be better reasoned and 

representation cases processed more 

expeditiously if briefing is permitted. 

This is undoubtedly true in some cases, 

and undoubtedly false in others; we 

think regional directors can judge 

whether briefing would be helpful on a 

case-by-case basis, and so that is what 

the rule provides. The Casehandling 

Manual already instructs hearing 

officers in pre-election proceedings to 

‘‘encourage the parties to argue orally on 

the record rather than to file briefs.’’ 

Section 11242. Indeed, our colleagues’ 

own reference to the drafting guide 

demonstrates that briefs are often of so 

little help that the drafters are instructed 

to begin before the briefs arrive.528 The 

dissent claims that the record does not 

show that this change will speed the 

process, but in cases where briefs would 

be unhelpful that is reason enough to 

dispense with them.529 Just as in the 

post-election context, the rule 

eliminates the one-size-fits-all approach 

in favor of flexibility to tailor the 

briefing to the case. 

D. Post-Election Board Review 

The dissent argues that post-election 

disputes should be subject to mandatory 

Board review. Yet Section 3(b) of the 

Act expressly permits the Board to 

delegate to its regional directors the 

power to direct elections and to certify 

the results, subject to a party’s right to 

request Board review. And in 

Magnesium Casting, the Supreme Court 

held that the Board may engage in 

discretionary review of regional 

directors’ decisions. It is rational and 

appropriate for the Board to continue 

that practice by making Board review of 

regional director post-election decisions 

discretionary. 

The Board should not devote more of 

its resources to processes that—as our 

colleagues concede—have little 

discernible effect on case outcomes. 

Discretionary review is sufficient to 

allow the parties to bring to the Board’s 

attention those cases which merit 

review. 

The dissent argues that by applying 

discretionary review to post-election 

decisions, we are ‘‘improperly 

diminishing the Board’s role’’ in a 

manner inconsistent with Section 9(b)’s 

admonition for the Board to determine 

the appropriate unit in each case ‘‘in 

order to assure to employees the fullest 

freedom in exercising the rights 

guaranteed by this Act[.]’’ Yet, the Board 

already exercises only discretionary 

review of unit appropriateness 

questions. This is unquestionably 

consistent with the Act, as the Supreme 

Court has already held. 

And in this context, 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 

development of ‘‘regional’’ precedent, 

and no increase in test-of-certification 

cases. The final rule merely applies 

precisely the same standard to postelection review. The dissent does not 

explain why its concerns have any 

greater salience in the post-election 

context than they have pre-election, 

where they have proved to be 

unfounded. 

The dissent also argues that the 

stipulation rate may fall if parties 

cannot preserve nondiscretionary 

review of post-election issues under a 

stipulated election agreement. Their 

argument supposes that a party enters 

an agreement it would otherwise not 

make—thereby waiving the right to 

contest any and all appropriate unit 

issues (as well as most voter eligibility 

issues)—because the party is concerned 

about the off-chance that outcomedeterminative challenges or objections 

that might arise later would ultimately 

be resolved against them by the regional 

director, and that, even though the issue 

would not be sufficient to merit 

discretionary Board review, it 

nonetheless would be sufficient to 

justify reversing the regional director’s 

decision if only that party could insist 

on mandatory Board review. Simply 

stating the chain of logic here 

demonstrates its attenuation. In our 

experience, the possibility that 

mandatory post-election review will 

make a difference for a particular party 

in a particular case is so remote that it 

would matter little to a party compared 

to the issues being resolved in the 

election agreement itself. For this reason 

we find it extraordinarily unlikely that 

election agreements are being signed by 

parties in order to secure post-election 

Board review.530

Under the final rule, the Board will 

apply the same discretionary standard 

to review of regional directors’ postelection determinations, whether the 

election was directed by a regional 

director or agreed to by the parties. And 

so, again, the choice between stipulation 

and litigation remains unrelated to the 

availability of post-election review, as 

both lead to the same result. 

E. Voter List 

We are not far apart from our 

dissenting colleagues as to the content 

of the voter list, but we disagree on 

certain significant details. We all agree 

that the voter list should be expanded. 

Our colleagues raise no objection to the 

inclusion of employee work locations, 

shifts and job classifications; they agree 

not to mandate the inclusion of 

employees’ work email and phone 

numbers; they agree that the agency 

should not further explore hosting a 

protected communications portal to 

facilitate nonemployer party-employee 

communication; and they would 

conditionally support employee’s 

personal email address and phone 

numbers as valuable additions to the 

voter list. Unfortunately, the condition 

of their support for adding personal 

email addresses and phone numbers is 

to add opt-out procedures, a condition 

that we cannot agree to. 

The nub of our disagreement over the 

need for opt-out procedures may be our 

differing views of the value of 

employees’ receipt of communications 

from all parties to the election, as 

balanced against any risk of harm to 

those employees. Our colleagues fault 

us for not taking account of ‘‘statistically 

proven probabilities’’ concerning, 

presumably, the likelihood of such 

harm. Yet, our colleagues give no weight 

to the nearly 50-year absence of 


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531The dissent argues that the final rule is 

somehow inconsistent with the Board’s recent 

decision in Purple Communications, 361 NLRB No. 

126 (2014). In Purple Communications, the Board 

addressed the right of employees under Section 7 

of the National Labor Relations Act to effectively 

communicate with one another at work regarding 

self-organization and other terms and conditions of 

employment. The Board held that employers that 

have chosen to give their employees access to their 

email systems must ordinarily permit employee use 

of email for statutorily-protected communications 

on nonworking time. The dissent quotes a single 

phrase from the decision, omitting its explanatory 

context, which follows: ‘‘[S]ocial media, texting, 

and personal email accounts, however commonly 

they may be used for communications unrelated to 

the workplace, simply do not serve to facilitate 

communication among members of a particular 

workforce [, as employees may have] no practical 

way to obtain each others’ email addresses, social 

media account information, or other information 

necessary to reach each other individually or as a 

discrete group (as distinct from the general public) 

by social media, texting, or personal email.’’ The 

differences between the final rule and Purple 

Communications are obvious. The rule addresses 

campaign communications between the union (or 

other non-employer parties) and employees, while 

Purple Communications addresses only employee 

communications among themselves, not necessarily 

during an election campaign. And it is precisely the 

problem identified in the quotation from Purple 

Communications that the rule seeks to solve by 

requiring inclusion of personal email addresses and 

phone numbers. Indeed, it is the dissent which is 

inconsistent on this point, suggesting on the one 

hand that this material is so extremely private an 

opt-out is necessary, and on the other that this 

information is so widely available that there is no 

need to provide it in the first place. 

532 Indeed, the dissent’s presumed disagreement 

with these conclusions is only implicitly addressed 

through their view that an opt-out requirement 

would not disrupt the balance struck in Excelsior 

because an opt-out would be unnecessary for 

employee home addresses—information that is 

arguably more private, and whose disclosure is 

potentially more intrusive, than phone numbers or 

email addresses. In contrast, we are skeptical that 

an opt-out could rationally be applied to only 

employee phone and email without also reaching 

home addresses, and thus clearly disturbing the 

balance struck in Excelsior. 

533We note our colleagues’ agreement that the 

unsubscribe option that they also advocate—when 

employed on its own—would do nothing to allay 

privacy concerns having to do with the disclosure 

of contact information in the first place. The 

uncertain benefit attendant to an unsubscribe 

option cannot counterbalance the costs, not the 

least of which is an inconsistency with the 

Excelsior doctrine similar to the one from which the 

opt-out proposal suffers. 

evidence of voter lists being misused by 

the nonemployer parties. Given that the 

rulemaking record shows not a single 

instance of voter list misuse dating back 

to the 1960s, their concerns appear to be 

entirely speculative. 

Against any such risk we must weigh 

the drawbacks and limits of an opt-out 

procedure. Excelsior held explicitly that 

even unsolicited communication from 

nonemployer parties remains an 

important part of the election process, 

and this would be severely abrogated by 

an opt-out procedure. Although our 

colleagues state that they favor a ‘‘wide 

open debate,’’ they are unwilling to 

mandate the disclosure of the contact 

information that would ensure that 

employees hear from a party other than 

the employer. A wide open debate 

cannot take place unless employees are 

able to hear all parties’ views 

concerning an organizing campaign, 

including views to which they may not 

be predisposed at the campaign’s 

inception. The Excelsior doctrine has 

long sought to ensure that a two-sided 

debate is possible by maximizing the 

likelihood that all the voters will be 

exposed to nonemployer-party messages 

concerning representation. If employees 

are allowed to opt out of nonemployer 

communication altogether, or even just 

from the forms of communication that 

have become most widely used and 

commonplace, then this interest is 

severely undercut. Opening channels of 

communication allows a more informed 

exchange of ideas and permits all 

employees to knowledgeably evaluate 

the claims and counter-claims being 

made by the parties.531

In addition, by offering an opt-out 

possibility to employees, the agency 

would be implicitly suggesting to 

employees that they have something to 

fear from the nonemployer party’s 

possessing their contact information. 

Moreover, an opt-out would 

inappropriately inject the agency into 

the employees’ evaluation of the source 

of campaign speech by implicitly 

devaluing nonemployer speech. Our 

colleagues make little attempt to explain 

why these fundamental inconsistencies 

between an opt-out policy and the 

purposes underlying Excelsior should 

not control the analysis.532 We think 

that a free and fair exchange of ideas is 

much more likely to take place if 

nonemployer parties have access to 

modern methods of communication, 

and are not restricted to door-to-door 

solicitation and the U.S. mail, as under 

the Excelsior policy dating back to the 

1960s. 

Our colleagues point to several other 

concerns discussed in the final rule 

regarding opt-out procedures generally 

(delay, increased litigation, and further 

unavoidable invasions of employee 

privacy), and assert that those concerns 

would be irrelevant to their specific optout proposal. We disagree. First, our 

colleagues’ proposal can only be said to 

avoid delay by adhering to the 7-day 

status quo for production of the voter 

list—a timeframe that the final rule 

shows to be unnecessary based on 

technological developments since the 

1960s—and accordingly reduces to 2 

business days. Second, their proposal 

creates the same risks of litigation about 

employer coercion discussed in the 

preamble above. Third, and perhaps 

most notably, the proposal still forces 

unwilling employees to reveal 

something about their preferences— 

undermining the fundamental purpose 

of the secret ballot in Board elections. 

Anyone who sees the list—necessarily 

including a petitioning union to whom 

it may be addressed—will know which 

employees opted out.533

As to the dissent’s position that the 

time allowed for producing the voter list 

should remain the same 7 days first 

announced in the 1960s, when parties 

most often relied on paper records for 

assembly and U.S. mail for delivery, we 

think that the final rule merely 

recognizes that times have changed, and 

that the typical employer will easily be 

able to comply with a 2-business-day 

timeframe for production of the list 

using electronic records and email 

delivery. Of course, an employer may 

begin the task earlier. Indeed the final 

rule’s statement-of-position requirement 

will provide employers at least 7 days 

to produce an initial list of employee 

names and work locations, shifts, and 

job classifications; contact information 

may be compiled at this time in 

anticipation of the second list. We also 

note that the rule provides an exception 

to the usual deadline for extraordinary 

circumstances, which should mitigate 

the dissent’s concern. 

F. Blocking Charges 

We disagree with the dissent’s 

concluding assessment that the final 

rule’s changes to the blocking charge 

policy are not valuable. Our colleagues 

concede that the final rule’s requirement 

of simultaneous offers of proof and 

prompt witness availability to speed 

regional directors’ investigation of 

blocking charges’ merits are an 

improvement over the status quo. In this 

regard, they share the opinion of 

comments from both labor organizations 

and employer associations, as noted in 

the discussion of § 103.20 above. Our 

colleagues’ real complaint appears to be 

that the final rule does not go as far as 

they would like. In our view, our 

colleagues’ suggested changes—even if 

only for a ‘‘3-year trial period’’—would 

abandon key aspects of a longstanding 

policy which serves a very important 

function in protecting employee free 

choice. 

The basic blocking-charge policy that 

we endorse today has been applied by 

the Board to protect employee free 

choice from the early days of the Act to 

the present. See U.S. Coal & Coke, 3 

NLRB 398 (1937); Southern Bakeries, 

26–RD–081637 (March 31, 2014). As the 

Fifth Circuit explained in 1974: 


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534The dissent finds it ‘‘paradoxical’’ that a union 

filing a blocking charge may affect the timing of an 

election by filing a request to proceed. The true 

paradox, in our view, would be the converse: 

Allowing an employer to delay an election over the 

objections of a union and thereby doubly benefit 

from its unlawful conduct. In any event, the dissent 

ignores the fact that an employer, too, may affect 

the timing of an election through settlement of 

unfair labor practice allegations. 

If the employer has in fact committed 

unfair labor practices and has thereby 

succeeded in undermining union sentiment, 

it would surely controvert the spirit of the 

Act to allow the employer to profit by his 

own wrongdoing. In the absence of the 

‘blocking charge’ rule, many of the NLRB’s 

sanctions against employers who are guilty of 

misconduct would lose all meaning. Nothing 

would be more pitiful than a bargaining order 

where there is no longer a union with which 

to bargain. 

Bishop v. NLRB, 502 F.2d 1024, 1029 

(1974). We see no reason to forebear 

codifying a policy applied so 

consistently and for such a rational 

purpose. Neither the commenters nor 

the dissent have identified any change 

in circumstances that would justify 

changing the policy, let alone identified 

any compelling reason to abandon a 

policy continuously applied since 1937. 

The dissenters object that codification 

would make future changes ‘‘more 

difficult’’ by requiring new notice-andcomment rulemaking. In our view, if 

codification means that any future 

change in the policy would involve 

notice and comment rulemaking, so 

much the better. We think it makes good 

sense, before changing a policy of this 

vintage, to fully air the matter in public 

and establish good reason for the 

change. We do not believe that 

obtaining the comments of the public is 

a difficulty to be avoided. 

In criticizing the final rule’s refusal to 

cut back on the blocking charge’s 

application, the dissent accuses us of 

paying more attention to the delay 

caused by permitting litigation of 

individual eligibility or inclusion issues 

than to the delay caused by the blocking 

charge policy. If all we were concerned 

about was reducing delay between the 

filing of a petition and the holding of an 

election, the dissent would have a fair 

point. But to repeat once again, not only 

is delay not our only concern, but it is 

not even a primary concern for many of 

the amendments; indeed, for certain 

changes, it is not a consideration at all. 

Unfair labor practice charges that 

warrant blocking an election involve 

conduct that is inconsistent with a free 

and fair election: It advances no policy 

of the Act for the agency to conduct an 

election unless employees can vote 

without unlawful interference. There is 

no inconsistency between the final 

rule’s preservation of that basic policy 

and the other changes made by the final 

rule. Both actions are taken consistent 

with the Act’s purposes, seeking an 

appropriate balance of efficiency, 

expedition and fairness in resolving 

questions of representation.534

G. Changes From the NPRM 

The final rule embodies numerous 

and significant modifications to 

virtually every key aspect of the NPRM, 

as well as to the limited amendments 

adopted by the Board in December 2011. 

These modifications include, for 

example: 

• Notice of Petition for Election: The 

final rule rejects the NPRM proposal 

that an employer’s failure to 

‘‘immediately post’’ an initial notice 

about the petition would constitute per 

se objectionable conduct and provides 

that the Notice of Petition for Election 

will make clear that no final decisions 

have been made yet regarding the 

appropriateness of the petitioned-for 

bargaining unit or whether an election 

will be conducted. 

• Statement of Position: The final 

rule rejects the NPRM’s requirement 

that if an employer disagrees that the 

petitioned-for unit is appropriate, it 

must describe in its position statement 

the most similar unit that it concedes is 

appropriate; clarifies that an employer 

does not have to supply any employee 

contact information to the regional 

director (or nonemployer parties) as part 

of its Statement of Position; requires 

that parties will always have no less 

than 7 days notice of the due date for 

completion of the Statement of Position 

form; provides that the Statement of 

Position ordinarily will be due at noon 

on the business day before the hearing; 

and establishes standards for granting 

requests to postpone the due date for the 

Statement of Position. 

• Scheduling the pre-election 

hearing: Pre-election hearings ordinarily 

will be set to open 8 days, not 7 days, 

from service of the notice of hearing by 

the Regional Director; standards are 

established for granting requests to 

postpone the pre-election hearing. 

• Conduct of the pre-election hearing: 

The final rule rejects the NPRM’s 

mandatory 20% rule, whereby hearing 

officers generally would have barred 

litigation of individual eligibility or 

inclusion issues involving less than 

20% of the unit; rejects the proposed 

summary judgment standard and 

mandatory offer-of-proof procedure, 

whereby hearing officers would only 

receive evidence if the parties’ offers of 

proof raised genuine disputes as to 

material facts; and clarifies that the 

regional director, not the hearing officer, 

will decide in each case the issues to be 

litigated, whether petitions may be 

amended, whether parties may 

intervene, and whether hearings will 

continue day to day. 

• Post-hearing briefs: The final rule 

rejects the proposal to vest hearing 

officers with the authority to determine 

whether parties may file post-hearing 

briefs, and instead vests that authority 

with the regional director. 

• Decision and direction of election: 

The final rule rejects the portion of the 

proposed mandatory 20% rule whereby 

regional directors generally would have 

deferred deciding individual eligibility 

or inclusion issues involving less than 

20% of the unit; rejects the proposal 

that would have permitted regional 

directors to direct elections without 

simultaneously providing a statement of 

reasons; and provides, unlike the 

NPRM, that the direction of election 

need not specify the election details if 

the regional director concludes it is 

appropriate to consult with the parties 

yet again regarding those details, 

notwithstanding that the parties’ 

positions will have already been 

solicited at the hearing. 

• Review of a direction of election 

prior to the election: The final rule 

rejects the proposal to eliminate the preelection request-for-review procedure, 

and instead allows parties to choose 

whether to file their requests for review 

either before the election or after the 

election; creates explicit procedures for 

requesting stays of the election and 

impoundment and/or segregation of 

ballots; and rejects the proposal that the 

Board grant requests for special 

permission to appeal from regional 

director rulings only in extraordinary 

circumstances where it appears that the 

issue would otherwise evade review. 

• Notice of Election: The final rule 

rejects the proposal to reduce the period 

for posting the notice of election from 3 

working days to 2, and likewise rejects 

the proposal that the regional director 

transmit election notices directly to 

employees, if practicable, such as by 

work email or phone. 

• Voter list: The final rule clarifies 

that employers are not required to 

provide the work email addresses or 

work phone numbers of its employees 

as part of a voter list to either the 

nonemployer parties or the regional 

director; explains that employers have 2 

business days, rather than 2 calendar 

days, to provide the voter list, unless a 

longer time is specified in the direction 

of election or is agreed to by all parties; 

and clarifies restriction language 

regarding use of the voter list. 

• Offers of proof in support of 

election objections: Unlike the NPRM, 


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535 In these dissenting views, we refer to the 

current Final Rule as ‘‘Final Rule’’ or ‘‘Rule,’’ to the 

February 2014 Proposed Rule as the ‘‘Proposed 

Rule’’ or ‘‘NPRM,’’ to the nearly identical June 2011 

proposed rule as the 2011 Proposed Rule, and to the 

more limited December 2011 final rule adopting 

elements of the 2011 Proposed Rule as the 2011 

Final Rule. The 2011 Final Rule was invalidated by 

the United States District Court for the District of 

Columbia, Chamber of Commerce of the United 

States v. NLRB, 879 F. Supp. 2d 18, 21, 25, 30 

(D.D.C. 2012), appeal dismissed 2013 WL 6801164 

(D.C. Cir. 2013), and was subsequently vacated by 

the Board. 

the final rule provides that regional 

directors may extend the time for filing 

offers of proof in support of election 

objections upon request of a party 

showing good cause. 

• Post-election hearing: The final rule 

provides an additional 1-week period 

between the tally of ballots and the 

opening of post-election hearing. 

H. Features of the Final Rule as to 

Which There Is No Substantive 

Disagreement 

• Petition filing: Permitting electronic 

filing of petitions; 

• Showing of Interest: Requiring the 

petitioner to simultaneously file its 

showing of interest with its petition; 

• Notice of Petition for Election: 

Æ Requiring the employer to post a 

more informative notice upon the filing 

of a petition; 

Æ triggering the posting requirement 

by the regional director’s service of the 

notice of hearing; 

Æ requiring the employer to also 

electronically distribute the Notice of 

the Petition for Election if it customarily 

communicates with its employees 

electronically; 

• Conduct of the pre-election hearing: 

Æ Rejecting the proposed summary 

judgment standard and mandatory offerof-proof procedure, whereby hearing 

officers would only receive evidence if 

the parties’ offers of proof raised 

genuine disputes as to material facts; 

Æ making offers-of-proof at the preelection hearing part of the record in 

§ 102.68 (while omitting any reference 

in § 102.68 to the record in post-election 

proceedings); 

• Transfer Procedure: Eliminating the 

transfer procedure; 

• Requests for Review: 

Æ Eliminating the requirement that 

parties file a request for review of a 

decision and direction of election prior 

to election or be deemed to have waived 

the right to contest the decision 

thereafter; 

Æ providing that requests for review 

shall not stay regional director actions 

unless specifically ordered by the 

Board; 

Æ providing a procedure for 

requesting stays of elections and 

impoundment and/or segregation of 

ballots; 

• Scheduling of Election: Eliminating 

the 25-day waiting period after issuance 

of the direction of election in contested 

cases; 

• Decision and Direction of Election: 

Rejecting the proposal to permit 

regional directors to direct elections 

without simultaneously providing a 

statement of reasons; 

• Transmittal of Decision and 

Direction of Election: Permitting 

regional directors to transmit the 

decision and direction of the election 

and the election notice together and by 

email, fax or overnight mail; 

• Notice of Election: 

Æ Requiring the employer to 

electronically distribute the Notice of 

Election if the employer customarily 

communicates with employees in the 

unit electronically; 

Æ rejecting the proposal to reduce the 

period to post paper copies of the notice 

from 3 to 2 working days; 

Æ rejecting the proposal that regional 

directors transmit election notices 

directly to employees if practicable, 

such as by work email or phone; 

• Voter List: 

Æ Requiring the employer to include 

not just employee names and home 

addresses, but also employee work 

locations, shifts, and job classifications 

on the voter list; 

Æ requiring the employer to produce 

the voter list in an electronic format 

approved by the General Counsel unless 

the employer certifies it does not 

possess the capacity to do so; 

Æ rejecting a proposal for the agency 

to host sealed-off communication 

portals; 

• Election Objections: 

Æ Requiring parties to simultaneously 

file with their election objections a 

supporting offer-of-proof 

Æ providing that regional directors 

have discretion to grant more time for 

the filing of offers of proof upon request 

of a party showing good cause; 

• Post-election Hearings: Providing 

that the post-election hearing open 21 

days, not 14 days, from the tally of 

ballots or as soon as practicable 

thereafter, unless the parties agree to an 

earlier date; 

• Service: permitting the Board to 

serve papers on parties electronically; 

• Streamlining the Rules and 

Regulations: 

Æ Eliminating subpart C of Part 101; 

and 

Æ rejecting the proposal to eliminate 

subparts D & E of Part 101. 

VII. Dissenting Views of Members 

Philip A. Miscimarra and Harry I. 

Johnson III 

Members Philip A. Miscimarra and 

Harry I. Johnson III, dissenting. 

We dissent from this Final Rule, and 

we have great regret that the Board has 

not chosen one of the available paths 

that would have permitted an 

assessment and resolution of these 

issues with unanimous support among 

all Board members and broad-based 

support among practitioners, scholars 

and advocates for employees, unions 

and employers. Much of the problem, 

but certainly not the main problem, 

involves the immense scope and highly 

technical nature of the Final Rule. 

The Final Rule has become the Mount 

Everest of regulations: Massive in scale 

and unforgiving in its effect. Very few 

people will have the endurance to read 

the Final Rule in its entirety. 

Recognizing that few will survive the 

climb, we offer the following selective 

observations at the outset: 

• Rule’s Primary Purpose and Effect: 

Union Elections As Quickly As Possible. 

The Final Rule adopts almost all of what 

was set forth in the February 2014 

Proposed Rule, which in turn was 

nearly identical to what the Board 

originally proposed in 2011.535 There 

are minor changes, but the Rule’s 

primary purpose and effect remain the 

same: Initial union representation 

elections must occur as soon as 

possible. The Rule’s defects also remain 

the same, uncured by the majority’s 

lengthy discussion, which reflects an 

awareness of criticisms that are far too 

often summarily rejected. 

• Election Now, Hearing Later. The 

Rule would impermissibly conduct 

expedited representation elections 

before any hearing addresses 

fundamental questions like who is 

eligible to vote, thereby resulting in an 

‘‘election now, hearing later.’’ This 

‘‘election now, hearing later’’ approach 

was twice rejected by Congress, in 

amending the National Labor Relations 

Act (NLRA or Act) in 1947 and 1959, 

and is contrary to the statute’s 

requirement—twice affirmed by 

Congress—mandating an ‘‘appropriate 

hearing’’ prior to any representation 

election. 

• Vote Now, Understand Later. The 

Rule improperly shortens the time 

needed for employees to understand 

relevant issues, compelling them to 

‘‘vote now, understand later.’’ Regarding 

these issues, the Rule takes selfcontradictory positions that are contrary 

to common sense, contrary to the Act 

and its legislative history, and contrary 

to other legal requirements directed to 

the preservation of employee free 

choice, all of which focus on 

guaranteeing enough time for making 


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536Section 9(b) (emphasis added). 

537This dissent incorporates passages, often 

verbatim, from our NPRM dissent, because the Final 

Rule to a substantial degree reflects the wholesale 

adoption of many provisions in the Proposed Rule, 

without regard to our earlier views. Many of our 

earlier views, therefore, apply with equal force to 

the Final Rule. We note that the majority likewise 

repeats many passages from the prior NPRMs and 

the vacated 2011 Final Rule. Where still 

appropriate, we also quote from the dissenting 

opinion of former Member Hayes to the vacated 

rule. Again, the fact that we do so reflects the 

circumstance that although the Final Rule varies in 

certain respects from the NPRM first published in 

June 2011 and republished in February of this year, 

far too much remains the same. 

important decisions. The Rule operates 

in reverse, making the available time as 

short as possible. 

• Infringing on Protected Speech. By 

requiring elections to occur as quickly 

as possible, the Rule curtails the right of 

employers, unions and employees to 

engage in protected speech. We believe 

this infringement on protected speech is 

impermissible, but even if it is within 

the Board’s authority, it is ill-advised 

and poorly serves the Act’s purposes 

and policies. 

• Lack of Need for the Rule. The Rule 

leaves unanswered the most 

fundamental question regarding any 

agency rulemaking, which is whether 

and why rulemaking is necessary. 

Objective evidence demonstrates that 

the overwhelming majority of existing 

elections occur without any 

unreasonable delay (substantially more 

than 90 percent of elections occur 

within 56 days after petition-filing). 

Although a small number of elections 

involve more time, this is not a rational 

basis for rewriting the procedures 

governing all elections. The Final Rule 

does not even identify, much less 

eliminate, the reasons responsible for 

those few cases that have excessive 

delays. 

• Due Process. The Rule greatly 

accelerates all deadlines associated with 

representation elections; it selectively 

imposes on employers the duty to 

submit a comprehensive written 

position statement 7 days after notice of 

a petition-filing by a union; it permits 

post-submission ‘‘amendments’’ only in 

narrow circumstances; the new 

‘‘pleading’’ requirements, while facially 

neutral, will in practice weigh far more 

heavily on employers than on unions 

attempting to organize nonunion 

employees; the Rule directs the 

exclusion of evidence regarding 

important election issues; and it directs 

hearing officers in most instances not to 

permit post-hearing briefs (which, 

currently, adds a mere 7 days to the preelection timetable); and it codifies and 

places increased reliance on private 

consultation and decisionmaking 

between hearing officers and regional 

directors, conducted off the record (and 

thus precluding review by the Board, 

especially regarding matters that are 

deferred or excluded from the hearing). 

In our view, these changes are 

fundamentally unfair and will 

predictably deny parties due process by 

unreasonably altering long established 

Board norms for adequate notice and 

opportunity to introduce relevant 

evidence and address election-related 

issues. 

• Improperly Diminishing the Board’s 

Role. The majority not only rewrites 

nearly all procedures governing 

elections, it eliminates any mandatory 

role for Board members in resolving 

post-election questions that arise from 

the Rule (relegating this to regional 

directors and to the courts, with only 

discretionary and post-election review 

by the Board). The Final Rule articulates 

no necessity for a ‘‘hands-off’’ policy of 

Board non-involvement in post-election 

cases, which we believe is irreconcilable 

with the statute’s requirement that the 

Board ‘‘in each case * * * assure to 

employees the fullest freedom in 

exercising the rights guaranteed by this 

Act.’’ 536

• Disclosures and Employee Privacy. 

The Rule imposes new mandatory 

disclosure requirements obligating 

employers to disclose personal contact 

information of unit employees, 

including all personal email addresses 

and cell phone numbers in the 

employer’s possession. However, the 

Final Rule’s justification for these 

expanded disclosure requirements (the 

importance of personal email and cell 

phones to protected concerted activity 

in the workplace, given the 

‘‘prevalence’’ at ‘‘work’’ of ‘‘cell 

phones,’’ which have become ‘‘the 

preferred mode of communication for 

many young people’’) is irreconcilable 

with Purple Communications, 361 

NLRB No. 126 (2014), where the Board 

majority insists that ‘‘social media, 

texting, and personal email accounts’’ 

are not even ‘‘germane’’ because they 

‘‘simply do not serve to facilitate 

communication among members of a 

particular workforce’’ (emphasis added). 

Moreover, the Final Rule adopts the 

expanded disclosure requirements 

without any employee ‘‘opt-out’’ right 

regarding such information. The Rule 

even rejects privacy-enhancement 

measures as simple as requiring an 

‘‘unsubscribe’’ link in election-related 

texts and emails, notwithstanding the 

current widespread use of such 

measures in other third-party 

communications. 

• The Consensus Path Not Taken. 

Most disappointing is the Rule’s failure 

to incorporate reforms that could have 

had unanimous Board member support, 

and substantial support among 

practitioners, scholars, and advocates 

for employees, unions and employers. 

We favor (i) making representation 

procedures more effective; (ii) having 

most representation elections occur at 

least within 30 to 35 days after petitionfiling; (iii) changing the Board’s internal 

procedures so virtually all elections— 

disputed or not—would occur within 60 

days after petition-filing; and (iv) 

adopting stricter, more expansive 

remedies for unlawful election conduct. 

As made clear in our dissent to the 

Proposed Rule,537 we believe the Board 

should do everything within its power 

to ensure that representation elections 

give effect to employee free choice 

consistent with the Act. We are not 

irrevocably committed to the status quo, 

nor do we criticize our colleagues for 

their desire to more effectively protect 

and enforce the rights and obligations of 

parties subject to the Act. We share the 

same desire and remain committed to 

work as a full Board to further our 

responsibilities to everyone covered by 

the Act. 

Although we might have agreed with 

certain changes in a different, more 

limited and focused rulemaking process, 

we unfortunately must dissent from the 

Final Rule including all its parts. Its 

unwholesome ingredients are too 

numerous and inseparable from the 

whole, in our view, for any slice to be 

fit for consumption. 

A. The Final Rule’s Procedures 

Contradict Requirements in the Act and 

Are Otherwise Impermissibly Arbitrary 

1. Background: What the Final Rule 

Would Change. It is difficult to 

summarize the changes reflected in the 

Final Rule because they are so 

numerous and implicate so many 

disparate aspects of the Board’s 

longstanding election procedures. 

However, the principal thrust of the 

proposed changes is to greatly reduce 

the time between a representation 

petition’s filing and the election in all 

cases. Indeed, the prime objective of the 

Final Rule is to conduct elections 

‘‘sooner’’ than under current practices. 

How much sooner is not disclosed. 

There is no minimum time period for 

the pre-election campaign. Regional 

directors are to schedule the election ‘‘at 

the earliest date practicable.’’ 

Several features of the Final Rule 

manifest a relentless zeal for slashing 

time from every stage of current preelection procedure in fulfillment of the 

requirement that an election be 

scheduled ‘‘at the earliest date 


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538Each of these amendments is designed to 

abbreviate the pre-election time period: (i) 

petitioners will now be required to provide the 

requisite showing of interest with the petition, 

rather than within 48 hours after filing the petition; 

(ii) any pre-election hearing must now generally be 

scheduled to open 8 days from the region’s notice 

of petition; (iii) the right to file a post-hearing brief 

within 7 days of the close of hearing has been 

eliminated; (iv) regional directors must ordinarily 

schedule the election in a decision directing one, 

rather than leaving the date of the election and 

other details for further consultation with the 

parties; (v) the 25-day automatic waiting period 

after a regional director’s decision and direction of 

election has been eliminated; and (vi) employers 

have only 2 days after the decision and direction, 

rather than the current 7 days, to produce the 

expanded list of employees and contact 

information. 

539NLRA Sec. 1, 7, 29 U.S.C. 151, 157 (emphasis 

added). 

540 Id. Sec. 7, 29 U.S.C. 157 (emphasis added). 

541 29 U.S.C. 158(a)(1), 158(b)(1)(A). 

542Section 8(c) of the Act reads: ‘‘The expressing 

of any views, argument, or opinion, or the 

dissemination thereof, whether in written, printed, 

graphic, or visual form, shall not constitute or be 

evidence of an unfair labor practice under any of 

the provisions of this Act, if such expression 

contains no threat of reprisal or force or promise of 

benefit.’’ Although Section 8(c) does not directly 

address representation elections, it has long been 

recognized by the Board and the courts as 

protecting speech generally, consistent with the 

First Amendment. See NLRB v. Gissel Packing Co., 

395 U.S. 575, 617 (1969) (‘‘[A]n employer’s free 

speech right to communicate his views to his 

employees is firmly established and cannot be 

infringed by a union or the National Labor Relations 

Board.’’); see also Chamber of Commerce v. Brown, 

554 U.S. 60, 67–68 (2008) (Section 8(c) reflects a 

‘‘policy judgment, which suffuses the NLRA as a 

whole, as favoring uninhibited, robust, and wideopen debate in labor disputes.’’) (internal quotation 

omitted); Healthcare Ass’n of N.Y. State v. Pataki, 

471 F.3d 87, 98–99 (2d Cir. 2006) (Section 8(c) 

‘‘serves a labor law function of allowing employers 

to present an alternative view and information that 

a union would not present.’’); United Rentals, Inc., 

349 NLRB 190, 191 (2007) (‘‘[T]ruthful statements 

that identify for employees the changes 

unionization will bring inform employee free 

choice which is protected by Section 7 and the 

statements themselves are protected by Section 

8(c).’’). Section 7 of the Act has been interpreted as 

broadly protecting the right of employees to engage 

in speech regarding election issues. Letter Carriers 

v. Austin, 418 U.S. 264, 277 (1974) (‘‘The primary 

source of protection for union freedom of speech 

under the NLRA, however, particularly in an 

organizational context, is the guarantee in § 7 of the 

Act of the employees’ rights ‘to form, join, or assist 

labor organizations.’’’). 

The First Amendment is clearly implicated in 

Board regulations that impermissibly curtail free 

speech guarantees since Federal regulation 

constitutes quintessential state action for purposes 

of the United States Constitution. See Chamber of 

Commerce v. Brown, supra at 68 (noting that the 

Court recognized ‘‘the First Amendment right of 

employers to engage in noncoercive speech about 

unionization’’ even before Section 8(c) was 

enacted). 

543 Id. Sec. 159(a) (emphasis added). 

544 Id. Sec. 159(b) (emphasis added). 

545NLRA Sec. 7, 29 U.S.C. 157. The Board must 

be as neutral in its procedures as in its case 

adjudications. Concern that the Board’s procedures 

detracted from the agency’s neutrality was among 

the reasons Congress adopted the Taft-Hartley 

amendments in 1947. See S. Rep. 80–105, 80th 

Cong., at 3, reprinted in 1 NLRB, Legislative History 

Of The Labor Management Relations Act, 1947 

(hereinafter ‘‘LMRA Hist.’’), at 407 (Senate report 

stating that ‘‘as a result of certain administrative 

practices which developed in the early period of the 

act, the Board has acquired a reputation for 

partisanship, which the committee seeks to 

overcome, by insisting on certain procedural 

reforms’’). The ‘‘procedural reforms’’ insisted upon 

by Congress in 1947, and reaffirmed in 1959, 

included a repudiation of precisely the type of 

arrangement incorporated into the Final Rule. 

practicable,’’ 538 but the Final Rule’s 

keystone device to achieve this objective 

is to have elections occur before 

addressing important election-related 

issues. The Final Rule would relegate 

these issues to a post-election hearing, 

or later. 

Ironically, this ‘‘election now, hearing 

later’’ approach involves the deferral of 

questions about voter eligibility and 

unit inclusion. Yes, this means the 

election would take place first, and only 

later, if at all, would there be a hearing 

regarding issues as fundamental as (i) 

who can actually vote, (ii) which 

employees who cast votes would, in the 

end, be excluded from the bargaining 

unit and would not even have their 

votes counted, (iii) whether people who 

represent themselves as employeevoters during the campaign may 

actually be supervisors (i.e., 

representatives of one of the 

campaigning parties), (iv) whether other 

people who appear to be supervisors 

may actually be employee-voters, and 

(v) whether the union-represented 

workforce, if the union prevails, will 

ultimately exclude important employee 

groups whose absence would adversely 

affect the outcome of resulting 

negotiations. 

These are indisputably important 

issues. Not only are they relevant to the 

election campaign, they can profoundly 

affect what type of bargaining 

relationship would exist after the 

election if the union prevails, and the 

inclusion or exclusion of certain groups 

may positively or negatively affect 

employee bargaining leverage. For 

employees, the ‘‘election now, hearing 

later’’ approach would create a new 

norm where essential issues do not even 

receive potential pre-election 

consideration by a regional director, 

much less by the Board. This is in 

addition to the Final Rule’s shortening 

of the period between petition-filing and 

election, which creates a situation 

where employees will be forced to ‘‘vote 

now, understand later.’’ 

The Final Rule makes other equally 

dramatic changes in other election 

procedures. It incorporates in our Rules 

and significantly expands Excelsior list 

disclosure requirements with more 

severe time limitations and without 

adequate protection of legitimate 

privacy concerns, eliminates the 

overwhelmingly favored practice of 

permitting stipulation agreements 

providing for the automatic right of 

Board review of post-election issues, 

and incorporates into our Rules without 

meaningful change the current blocking 

charge policy, which impedes the 

expeditious resolution of questions 

concerning representation more than 

any of the processes substantially 

altered by the Final Rule. 

2. The NLRA’s Requirements. In 

contrast to the complicated array of 

changes in the Final Rule, the Act is 

straightforward: Its fundamental 

purpose is to guarantee employee free 

choice when employees vote in 

elections regarding union 

representation. Sections 1 and 7 refer to 

‘‘the exercise by workers of full freedom 

of association’’ encompassing the right 

of employees to have ‘‘representatives of 

their own choosing.’’ 539 Section 7 

protects the right of employees to 

‘‘engage in’’ protected activities and ‘‘to 

refrain from any or all of such 

activities.’’ 540 Sections 8(a) and 8(b) 

prohibit actions by employers and 

unions that ‘‘restrain’’ or ‘‘coerce’’ 

employees in the exercise of protected 

rights.541 Section 8(c) and other 

provisions of the Act protect the free 

speech rights of employees, employers 

and unions, consistent with similar 

guarantees against state-action 

infringement of free speech afforded by 

the First Amendment.542 Section 9(a) 

provides for unions to represent 

employees in an appropriate unit to the 

extent they are ‘‘designated or 

selected* * * by the majority of the 

employees in [the] unit.’’ 543 And 

Section 9(b)—specifically pertaining to 

elections—refers to the Board’s 

obligation ‘‘in each case’’ to ‘‘assure to 

employees the fullest freedom in 

exercising the rights guaranteed by [the] 

Act.’’ 544

Significantly, nowhere does the Act 

contain an express statement that 

elections should be held at the earliest 

date practicable. Rather, when it comes 

to preserving the ‘‘fullest freedom’’ of 

employees to exercise their protected 

rights in an NLRB-conducted election, 

the Act makes other considerations 

more important than speed: 

(a) Neutrality. Congress has mandated 

that the Board remain neutral while 

preserving employee choice, which is 

consistent with the Act’s protection of 

employee rights to ‘‘engage in’’ 

concerted activities and to ‘‘refrain from 

any or all of such activities.’’ 545

(b) Knowledge of Representation, 

Bargaining and NLRA Rights. In 2011, 

the Board stated that the great majority 


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546The Board based this finding on ‘‘several 

factors,’’ including ‘‘the comparatively small 

percentage of private sector employees who are 

represented by unions and thus have ready access 

to information about the NLRA; the high percentage 

of immigrants in the labor force, who are likely to 

be unfamiliar with workplace rights in the United 

States; studies indicating that employees and high 

school students about to enter the work force are 

generally uninformed about labor law; and the 

absence of a requirement that, except in very 

limited circumstances, employers or anyone else 

inform employees about their NLRA rights.’’ 76 FR 

54006, 54014–15 (2011). As a result, the Board has 

attempted to expand its outreach efforts, including 

distribution of a mobile app regarding the NLRB 

and the Act, which we fully support. See ‘‘National 

Labor Relations Board Launches Mobile App,’’ Aug. 

30, 2013 (http://www.nlrb.gov/news-outreach/newsstory/national-labor-relations-board-launchesmobile-app). 76 FR at 54014–15. In fact, we favor 

having Agency resources directed to a higher profile 

public relations campaign regarding the NLRB 

mobile app and other outreach efforts. 

In 2011, the Board attempted to increase 

familiarity with the Act’s requirements by adopting 

a rule requiring employers to post notices advising 

employees about the Act (id.), but this rule has been 

permanently suspended after appellate courts ruled 

that it exceeded the Board’s authority. Chamber of 

Commerce of the United States v. NLRB, 721 F.3d 

152 (4th Cir. 2013); National Ass’n of Mfrs. v. NLRB, 

717 F.3d 947 (D.C. Cir. 2013). 

547 76 FR at 54016 (emphasis added). 

548 Id. (emphasis added). 

549 Id. at 54017 (emphasis added). In the words 

of a union official cited by the Board with approval 

in 2011: ‘‘Having been active in labor relations for 

30 years I can assure you that both employees and 

employers are confused about their respective rights 

under the NLRA. Even union officers often do not 

understand their rights. Members and non-members 

rarely understand their rights. Often labor 

management disputes arise because one or both 

sides are misinformed about their rights.’’ Id. at 

54017 n.88 (emphasis added). 

550Chamber of Commerce v. Brown, 554 U.S. 60, 

67–68 (2008) (quoting Letter Carriers v. Austin, 418 

U.S. 264, 272–73 (1974)). See also Thomas v. 

Collins, 323 U.S. 516, 532 (1945) (‘‘The right * * * 

to discuss, and inform people concerning, the 

advantages and disadvantages of unions and joining 

them is protected not only as part of free speech, 

but as part of free assembly.’’); Thornhill v. 

Alabama, 310 U.S. 88, 102–103 (1940) (‘‘[I]n the 

circumstances of our times the dissemination of 

information concerning the facts of a labor dispute 

must be regarded as within that area of free 

discussion that is guaranteed by the Constitution.’’). 

551The court’s ruling clearly indicated that it was 

deferring any consideration of the rule’s other 

potential infirmities. Chamber of Commerce of the 

United States v. NLRB, supra, 879 F. Supp. 2d at 

18, 21, 25, 30 (‘‘Regardless of whether the final rule 

otherwise complies with the Constitution and the 

governing statute—let alone whether the 

amendments it contains are desirable from a policy 

perspective—the Board lacked the authority to issue 

it, and, therefore, it cannot stand. * * * Because the 

final rule was promulgated without the requisite 

quorum, the Court must set it aside on that ground 

and does not reach Plaintiffs’ remaining arguments. 

* * * The Court does not reach—and expresses no 

opinion on—Plaintiffs’ other procedural and 

substantive challenges to the rule.’’) (emphasis 

added). 

552NLRB v. Brown, 380 U.S. 278, 291 (1965). 

553Chevron U.S.A. Inc. v. Natural Res. Def. 

Council, Inc., 467 U.S. 837 (1984). 

554 5 U.S.C. 551 et seq. 

555Chevron at 842–43 (footnotes omitted). In 

determining whether an agency rule is invalid 

under step one of the Chevron test, the Court 

indicated that reviewing courts should use 

‘‘traditional tools of statutory construction.’’ Id. at 

843 n.9. ‘‘For most judges, these tools include 

examination of the text of the statute, dictionary 

definitions, canons of construction, statutory 

structure, legislative purpose, and legislative 

history.’’ Section of Administrative Law and 

Regulatory Practice, American Bar Association, A 

Blackletter Statement of Federal Administrative 

Law, 54 Admn. L. Rev. 1, 44 (2002). 

556 5 U.S.C. 706 (2)(A). 

557The Supreme Court has applied the State 

Farm articulation of the APA’s ‘‘arbitrary and 

capricious’’ standard to judicial review of both 

Board adjudicatory and rulemaking proceedings. 

See Allentown Mack Sales and Service, Inc. v. 

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

American Hosp. Assn. v. NLRB, 499 U.S. 606, 618– 

20 (rulemaking). 

of employees in the United States lack 

familiarity with important NLRA 

principles and many complex principles 

that govern union representation and 

collective bargaining.546 It found that 

‘‘nonunion employees are especially 

unlikely to be aware of their NLRA 

rights’’ 547 and acknowledged that ‘‘to 

the extent that lack of contact with 

unions contributed to lack of knowledge 

of NLRA rights 20 years ago, it probably 

is even more of a factor today.’’ 548 The 

Board has also found that many 

employers—and even some union 

officials—lack familiarity with 

important NLRA principles and many 

complex principles that govern union 

representation and collective 

bargaining.549

(c) Free Speech. Finally, employers 

and unions have protected rights to 

engage in protected speech prior to an 

election. As noted, the Supreme Court 

has characterized Section 8(c) as 

reflecting a ‘‘policy judgment, which 

suffuses the NLRA as a whole, as 

‘favoring uninhibited, robust, and wideopen debate in labor disputes,’ stressing 

that ‘freewheeling use of the written and 

spoken word * * * has been expressly 

fostered by Congress and approved by 

the NLRB.’’’ 550

3. The Legal Standards for 

Administrative Agency Action. Our 

colleagues state that their views will be 

given deference to a degree that must 

result in the Final Rule’s approval.551

We respectfully disagree. ‘‘Reviewing 

courts are not obliged to stand aside and 

rubberstamp their affirmance of 

administrative decisions that they deem 

inconsistent with a statutory mandate or 

that frustrate the congressional policy 

underlying a statute.’’ 552

The standard for review of agency 

rulemaking is principally governed by 

the Supreme Court’s Chevron 

decision 553 and by the Administrative 

Procedures Act (APA).554 In Chevron, 

the Court articulated a two-step 

analysis: 

When a court reviews an agency’s 

construction of the statute which it 

administers, it is confronted with two 

questions. First, always, is the question 

whether Congress has directly spoken to the 

precise question at issue. If the intent of 

Congress is clear, that is the end of the 

matter; for the court, as well as the agency, 

must give effect to the unambiguously 

expressed intent of Congress. If, however, the 

court determines Congress has not directly 

addressed the precise question at issue, the 

court does not simply impose its own 

construction on the statute, as would be 

necessary in the absence of an administrative 

interpretation. Rather, if the statute is silent 

or ambiguous with respect to the specific 

issue, the question for the court is whether 

the agency’s answer is based on a permissible 

construction of the statute.555

Step two of the Chevron test of an 

agency’s statutory construction 

somewhat overlaps with the APA, 

which generally governs the quasilegislative rulemaking function of 

administrative agencies and related 

judicial review. The APA provides that 

a reviewing court shall ‘‘hold unlawful 

and set aside agency action, findings, 

and conclusions found to be . . . 

arbitrary, capricious, an abuse of 

discretion, or otherwise not in 

accordance with law.’’ 556 Under this 

standard, an 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.’’’ Motor Vehicle Mfrs. Ass’n of the 

United States, Inc. v. State Farm Mut. 

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

(1983) (quoting Burlington Truck Lines 

v. United States, 371 U.S. 156, 168 

(1962)). ‘‘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, [or] 

offered an explanation for its decision 

that runs counter to the evidence before 

the agency * * * .’’ Id. Courts enforce 

this ‘‘hard look’’ principle with 

regularity when they set aside agency 

regulations that, though well within the 

agencies’ scope of rulemaking authority, 

are not supported by the reasons that 

the agencies adduce.557

In our view, the Final Rule’s primary 

purpose and consequence—shortening 

the time from the filing of a petition to 

the conduct of an election—is contrary 

to clear Congressional intent, which 

renders it invalid under Chevron step 

one. Moreover, even if one were to find 

that Congress has not directly addressed 

issues in a manner contrary to the Final 

Rule’s electoral revisions, we believe the 


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558As 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, 96–97 

(D.C. Cir. 2005), and cases cited there. However, the 

same court has explained that meaningful 

differences exist between the two standards. 

Chevron II looks to whether the agency has made 

a reasonable interpretation of an ambiguous 

provision of its governing statute. The APA 

‘‘arbitrary and capricious’’ standard looks to 

whether the agency’s exercise of rulemaking 

authority delegated to it in that statute by Congress 

is invalid because it is ‘‘arbitrary and capricious.’’ 

See e.g., Continental Airlines, Inc. v Department of 

Transportation, 843 F.2d 1444, 1452 (D.C. Cir. 

1988). Thus, most of the Final Rule’s provisions 

will be reviewed and found wanting under the APA 

standard. 

559NLRB’s 2004 Performance and Accountability 

Report: Protecting Workplace Democracy, 15–17 

and 67 (undated), www.nlrb.gov/reports-guidance/

reports/performance-and-accountability. In the 

early 1990s, the Agency’s articulated goal was to 

hold elections within a median of 50 days after the 

filing of the petition. See General Counsel’s 

Memorandum, GC 93–16, ‘‘Major Accomplishments 

of the Office of the General Counsel for Fiscal Years 

(1990–1993),’’ 3 (Nov. 24, 1993), www.nlrb.gov/

reports-guidance/general-counsel-memos. 

560 General Counsel’s Memorandum, GC–11–09, 

‘‘Report on Midwinter ABA PP Committee,’’ 19 

(March 16, 2011), www.nlrb.gov/reports-guidance/

general-counsel-memos. 

561NLRB Summaries of Operations, fiscal years 

2007–2012, and Performance Accountability 

Reports, 2004–2013, www.nlrb.gov/reportsguidance/reports. See GC–11–09, supra note 25, at 

18–19. 

562NLRB Performance Accountability Report, 

fiscal year 2013, www.nlrb.gov/reports-guidance/

reports. 

563Reported by NLRB Division of Operations 

Management, August 8, 2014. 

564FY 2012 Summary of Operations, General 

Counsel’s Memo 13–01 (January 11, 2013), at 

http://www.nlrb.gov/reports-guidance/generalcounsel-memos. 

565For example, as we discuss later in this 

opinion, the current blocking charge policy, which 

the Final Rule incorporates without meaningful 

change, is an identified cause of substantial delay 

in representation cases. In addition, recent Board 

decisions also routinely impose delays of 6 months 

to a year in successorship situations, and as much 

as 4 years in initial card-based voluntary 

recognition situations, before a change in employee 

sentiment regarding union representation may be 

tested in an election. See UGL–UNICCO Service Co., 

357 NLRB No. 76 (2011) (successorship), and 

Lamons Gasket Co., 355 NLRB 763 (2010) 

(voluntary recognition). 

Final Rule is ‘‘arbitrary or capricious,’’ 

which means it does not warrant 

deference under the APA.558 Our 

colleagues have demonstrated a 

remarkable indifference to the lack of 

relevant data in support of the Final 

Rule’s extensive revisions. They have 

failed to address important aspects of 

the real problems of unacceptable delay 

in the Board’s election process. And, in 

our view, they have not articulated a 

rational connection between the facts 

found and the choices they have made. 

4. General Problems and Deficiencies 

in the Final Rule. 

(a) The Final Rule does not articulate 

a rational reason for substantially 

rewriting all representation election 

procedures. We still do not understand 

the reason for embarking on the path 

our colleagues have taken. As described 

in our Proposed Rule dissent, the Board 

has a very successful track record of 

conducting timely elections. See 79 FR 

at 7320. Casehandling statistics since 

2011 indicate no significant variation 

from those described in the 2011 

proposed election rule. See 76 FR at 

36813–14. In 1960, the median time 

from petition to a direction of election 

was 82 days, with more time obviously 

elapsing before the elections occurred 

(id. at 36814 n.16). By 1975, only 20.1 

percent of all elections occurred more 

than 60 days after the filing of a 

petition, and this percentage decreased 

to 16.5 percent by 1985 (id. at 36814 

n.19). Since at least 2001, the Board has 

applied a well-known target to have 

elections conducted within a median of 

42 days after the petition-filing.559 Over 

the past decade, elections have actually 

occurred within a median of 

approximately 38 days after the filing of 

a petition, and in fiscal 2010, the 

average time from petition to an election 

was 31 days.560 Another significant 

Board target is to hold 90% of all 

elections within 56 days of the filing of 

the petition. The Board has consistently 

done better than that standard.561 In 

fact, in 2013, 94.3% of elections were 

held within that 56-day period.562 Thus, 

it is fair to conclude that in 2013, by the 

Board’s own measures, less than 6% of 

elections were unduly ‘‘delayed.’’ Some 

elections take too long to resolve, but in 

recent years these cases have been few 

in number. 

The Final Rule’s focus on limiting the 

use of pre-election hearings by 

substantially narrowing their scope, 

limiting the evidence accepted, and 

eliminating the rights of parties to 

submit written legal arguments is 

predicated on the false assumption that 

providing parties with an opportunity to 

be heard and to develop a full factual 

record at the pre-election hearing is an 

impediment to efficient, prompt 

election case processing. This 

presumption is directly contrary to the 

foregoing facts showing that all but a 

very small percentage of Board cases are 

not unduly delayed. 

The facts further show that the preelection hearing itself accounts for very 

little of the overall time it takes to 

process representation cases. When 

hearings are required, regions hold preelection hearings promptly, the hearing 

rarely lasts more than 1 day, and 

regional directors thereafter issue 

decisions with impressive celerity, 

perhaps facilitated by, but certainly not 

shown to be impeded by, the filing of 

post-hearing briefs. In FY 2013, regional 

directors issued 159 pre-election 

decisions in contested cases in a median 

of 32 days following the filing of the 

petition,563 well below their target of 45 

days. Similarly, in FY 2012, regional 

directors issued 169 pre-election 

decisions in contested representation 

cases after hearing in a median of 34 

days, and in FY 2011 regional directors 

issued 203 pre-election decisions in a 

median time of 33 days.564

These figures show that regional 

directors consistently issue decisions in 

contested cases with great efficiency. 

Contrary to the extended explanation 

offered by our colleagues—in the 

interest of justifying severe limits on the 

timing and scope of pre-election 

hearings, increased evidentiary and 

procedural burdens on employers, and 

extremely limited, discretionary Board 

review of regional directors’ decisions— 

the facts show that pre-election hearings 

and regional directors’ decisions are 

simply not a cause of significant 

administrative delay or other 

identifiable deficiencies. 

We do not suggest the Board’s work 

here is necessarily done. However, the 

available data do not provide a rational 

basis for the Final Rule’s wholesale 

reformulation of election procedures. 

The majority also continues to 

dismiss the utility of agency time targets 

and performance standards as measures 

of case processing efficiency, claiming 

that those standards evolve and only 

present a measure of what can be 

accomplished under the existing 

procedural regime. Yet, they do not 

even offer an alternative standard, under 

the Final Rule, regarding what should be 

accomplished within what period of 

time. Our colleagues find it sufficient to 

brand certain current practices as 

primary sources of delay. They are 

because the majority says they are, and 

the elimination or amendment of these 

practices will eradicate delay. The 

objective facts refute this ipse dixit 

justification. 

Further, there are several important 

rational inconsistencies in the Final 

Rule’s justification for expediting the 

conduct of elections: (i) A need 

ostensibly exists for elections to occur 

more quickly, yet other Board doctrines 

delay or defer elections for up to several 

years; 565 (ii) the Final Rule makes 

elections occur more quickly—by 

eliminating time for reasonable 

preparation, by adopting new, 


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566H.R. Rep. No. 80–245, at 25 (1947), reprinted 

in 1 LMRA Hist. 316; S. Rep. 80–105, 80th Cong., 

at 8–9, 1 LMRA Hist. 415. After the Wagner Act’s 

adoption, the Board created a ‘‘Review Section’’ of 

attorneys to review transcripts and draft decisions, 

which a Senate report characterized as disposing of 

cases ‘‘in an institutional fashion.’’ Id. Congress 

amended the Act to prohibit the Board even from 

employing attorneys for the purpose of reviewing 

transcripts, apart from each Board member’s own 

legal assistants. Id. Thus, NLRA Section 4, 29 U.S.C. 

154, added to the Act in 1947, states: ‘‘The Board 

may not employ any attorneys for the purpose of 

reviewing transcripts of hearings or preparing drafts 

of opinions except that any attorney employed for 

assignment as a legal assistant to any Board member 

may for such Board member review such transcripts 

and prepare such drafts.’’ Congress also amended 

Section 9(c)(1) by adding language prohibiting 

hearing officers from even formulating 

‘‘recommendations.’’ See note 622 infra, and 

accompanying text. In 1959, Congress permitted the 

Board to delegate responsibility to regional 

directors regarding representation-election issues, 

but the Act explicitly conditioned this delegation 

on each party’s right to have the Board review ‘‘any 

action’’ by regional directors. Id. This delegation 

did not expand or modify the authority of hearing 

officers. 

567For example, the Final Rule argues that 

‘‘uniformity’’ favors having all pre-election hearings 

take place 8 days after petition-filing, but this 

aspect of the Final Rule contrasts with some 

Regions that currently allow up to 14 days before 

conducting the pre-election hearing. The Final Rule 

invokes ‘‘technology’’ to expand the disclosure 

requirements applicable to the voter eligibility 

(Excelsior) list—thereby requiring employers to 

disclose available personal employee email 

addresses and phone numbers, for example—while 

requiring the submission of the Excelsior list 2 

business days after the regional director directs an 

election, which contrasts with the current 7 days. 

568We disagree with our colleagues’ 

interpretation of a statement by the Supreme Court 

in Boire v. Greyhound Corp., 376 U.S. 473, 478 

(1964), and a comment by Senator Taft during 

debates on the 1947 Taft-Hartley amendments 

adopted as part of the Labor Management Relations 

Act (LMRA). According to our colleagues, the 

Supreme Court noted that ‘‘the policy in favor of 

speedy representation procedures ‘was reaffirmed 

in 1947, at the time that the Taft-Hartley 

amendments were under consideration.’ ’’ (Final 

Rule, supra (emphasis added), quoting Boire, 376 

U.S. at 478). The Supreme Court in Boire addressed 

the limited question of whether a Federal court 

injunction could be obtained, in order to block a 

Board-scheduled election, based on a challenge to 

an election-related ruling by the NLRB (in Boire, the 

party seeking the court injunction claimed that the 

Board erroneously found that it was a joint 

employer). Id. at 476–77. Solely addressing whether 

Board-ordered elections could be enjoined by a preelection Federal court proceeding, the Supreme 

Court stated ‘‘Congressional determination to 

restrict judicial review in such situations was 

reaffirmed in 1947, at the time that the Taft-Hartley 

amendments were under consideration, when a 

conference committee rejected a House amendment 

which would have permitted any interested person 

to obtain review immediately after a certification 

because, as Senator Taft noted, ‘such provision 

would permit dilatory tactics in representation 

proceedings.’ ’’ Id. at 478–79 (emphasis added; 

footnotes omitted). Nothing in Boire states that 

Congress in 1947 reaffirmed a generalized ‘‘policy 

in favor of speedy representation procedures.’’ 

Further, it is even more apparent that Senator Taft 

did not support a generalized ‘‘policy in favor of 

speedy representation procedures.’’ To the contrary, 

as noted elsewhere in the text, the amendments 

sponsored by Senator Taft—which were adopted as 

part of the LMRA—reaffirmed and expanded the 

‘‘appropriate hearing’’ requirement, contrary to the 

Board’s pre-1947 practice and contrary to the 

changes adopted in the Final Rule. See text 

accompanying notes 572–581, infra. 

accelerated pleading requirements 

applicable only to employers, by 

dispensing with post-hearing briefs, and 

by deferring until following the election 

evidence regarding issues as 

fundamental as who can vote, for 

example—but our colleagues do not 

adequately address the likelihood that 

the overall time needed to resolve postelection issues will increase, as will the 

number of rerun elections; (iii) most 

importantly, the Act’s purposes and 

objectives are vitally affected by the 

amount of time between petition-filing 

and any election (indeed, this is the 

near-exclusive justification offered for 

rewriting nearly all election 

procedures), but our colleagues 

affirmatively disclaim any need to 

indicate how much time should or will 

elapse under the Final Rule between 

petition-filing and election; and (iv) our 

colleagues adamantly refuse to 

acknowledge what has been universally 

understood by Congress when 

evaluating the NLRA and virtually every 

other context when parties make 

important decisions: Some reasonable 

minimum time is necessary for 

protected speech and so parties can be 

familiar with relevant issues. In all of 

these respects, among others, we believe 

the reasoning underlying the Final Rule 

is insufficient to establish a ‘‘rational 

connection between the facts found and 

the choice made.’’ Burlington Truck 

Lines, supra, 371 U.S. at 168. 

(b) The Final Rule improperly places 

speed over all other considerations. We 

agree that it is desirable to eliminate 

systemic inefficiency and protracted 

delays in the election process. However, 

as discussed below, the Act’s detailed 

provisions require Board proceedings 

and the consideration of evidence 

regarding important issues. Indeed, in 

addition to at least twice rejecting the 

‘‘election now, hearing later’’ and ‘‘vote 

now, understand later’’ approaches 

reflected in the Final Rule, Congress 

enacted other amendments requiring the 

Board to abandon procedures— 

ostensibly justified by administrative 

efficiency—because Congress placed 

primary importance on having issues 

resolved without administrative 

shortcuts, so that Board members would 

do the ‘‘deciding’’ to ensure that all 

decisions would reflect ‘‘the considered 

opinions of the Board members.’’ 566

Our colleagues declare that ‘‘speed is 

not the sole or principal purpose’’ of the 

Final Rule, but that their amendments 

address ‘‘efficiency, fair and accurate 

voting, transparency, uniformity, and 

adapting to new technology.’’ We do not 

dispute that these other factors can be 

legitimate considerations in rulemaking. 

However, speed is the obvious 

dominant justification for most of the 

Final Rule’s changes, and the Final Rule 

accelerates virtually every deadline 

applicable even when doing so is not 

required by these other factors.567 The 

majority states that ‘‘eliminating 

unnecessary delay is therefore 

unquestionably a valid reason to amend 

these regulations.’’ One can hardly 

argue against eliminating unnecessary 

‘‘delay’’ in the abstract. As noted below, 

we advocate aggressive measures by the 

Board to identify and eliminate those 

cases (involving less than ten percent of 

elections) where more than 60 days 

passes between petition-filing and the 

election. Yet, here again, there must be 

a ‘‘rational connection between the facts 

found and the choice made.’’ Burlington 

Truck Lines, supra, 371 U.S. at 168. The 

majority invokes the language of 

‘‘eliminating delay’’ as if cases involving 

undue delays are caused by widespread 

‘‘dilatory tactics’’ (which is contrary to 

the available evidence).568 Moreover, in 

our view, too many of the Final Rule’s 

changes contradict ‘‘the procedure and 

safeguards necessary to insure the fair 

and free choice of bargaining 

representatives by employees.’’ NLRB v. 

A.J. Tower Co., 329 U.S. 324, 330 (1946). 

The Act imposes statutory requirements 

on the Board, including an 

‘‘appropriate’’ pre-election hearing 

(Section 9(c) of the Act), and the Board 

is charged with assuring employees the 

‘‘fullest freedom’’ in their exercise of 

protected rights in Board-conducted 

elections (Section 9(b) of the Act). This 

plain statutory language, and its 

legislative history, preclude any 

suggestion that Congress intended for 

the Board to emphasize ‘‘speedy 

representation procedures’’ over 

election-related requirements that the 

statute expressly imposes on the Board. 

Understandably, Board and court 

cases speak favorably about having 

‘‘employees’ votes * * * recorded 

accurately, efficiently and speedily.’’ 

Id.; see also AFL v. NLRB, 308 U.S. 401, 

409 (1940) (the Wagner Act was 

designed in part to avoid ‘‘long delays 

in the procedure * * * for review of 

orders for elections’’); Northeastern 

Univ., 261 NLRB 1001, 1002 (1982) 

(referring to ‘‘expeditiously resolving 

questions concerning representation’’); 

Tropicana Prods., Inc., 122 NLRB 121, 

123 (1958) (‘‘[T]ime is of the essence if 

Board processes are to be effective.’’). 

Yet, nothing in these cases suggests 

speed or efficiency should be pursued at 


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569Examples include 60 days required when 

employees are affected by mass layoffs or plant 

closings that trigger notice requirements under the 

Worker Adjustment and Retraining Notification 

Act, 29 U.S.C. 2101 et seq. (WARN); the 45 days 

required when a group of employees are offered 

benefits in exchange for signing a waiver of age 

discrimination claims, based on the Older Workers 

Benefit Protection Act (‘‘OWBPA’’), 104 Stat. 978 

(1990), which added Section 7(f) to the Federal Age 

Discrimination in Employment Act (ADEA), 29 

U.S.C. 626(f); the recommended period of 60–90 

days, with a minimum of 30 days, when plaintiffs 

decide whether to opt-out of a Rule 23 class action, 

see Federal Judicial Center, Judges’ Class Action 

Notice and Claims Process Checklist and Plain 

Language Guide, 4 (2010), http://www.fjc.gov/

public/pdf.nsf/lookup/NotCheck.pdf/$file/

NotCheck.pdf; and the 4–6 week period between 

the nomination of candidates to be local union 

officials and subsequent elections. See Office of 

Labor-Management Standards, Conducting Local 

Union Officer Elections: A Guide for Election 

Officials, 4 (2010), http://www.dol.gov/olms/regs/

compliance/localelec/localelec.pdf. See generally 

our dissenting views in the 2014 NPRM, 79 FR 

7344–7345 (Feb. 6, 2014) (dissenting views of 

Members Miscimarra and Johnson). 

570 It is true that the Final Rule does not 

completely eliminate the pre-election hearing, nor 

does the Final Rule totally preclude the possibility 

that a particular hearing officer might permit the 

introduction of evidence regarding voter eligibility 

or supervisory status, for example. However, the 

Final Rule expressly states that it dramatically 

narrows the scope and duration of pre-election 

hearings, and it relegates all but the most basic 

issues to post-election proceedings. Therefore the 

Final Rule clearly will not result in pre-election 

hearings where voter eligibility and inclusion issues 

are regularly addressed. The Final Rule explicitly 

states otherwise. Further, the inclusion or exclusion 

of such evidence would be determined by hearing 

officers, who, under Sec. 9(c)(1), are not even 

permitted to make ‘‘recommendations’’ about 

relevant issues. 

We also recognize that, under existing Board 

procedures, elections may take place while some 

questions remain unresolved, and some employees 

may cast votes that, if challenged, are ruled upon 

in post-election proceedings. In all such cases, 

however, the Act gives parties the right to present 

evidence regarding these issues at a pre-election 

hearing. And based upon such evidence, the Act 

requires that the regional director and the Board 

consider requests to stay the election until such 

issues are resolved. See text accompanying note 

627, infra. In addition to dramatically shortening 

the time period between petition-filing and the 

election, the Final Rule would impermissibly 

curtail the right to present any evidence at the preelection hearing regarding many fundamental 

issues, which in turn would prevent the regional 

director and the Board even from considering 

whether the resolution of such issues is important 

enough to warrant staying the election. Id. 

the expense of the Act’s express 

principal purpose, which is to safeguard 

the ‘‘fullest freedom’’ of employees to 

vote in elections that determine whether 

or not they will be union-represented. 

NLRA Sec. 9(b), 29 U.S.C. 159(b). 

Indeed, the Court’s statement in A.J. 

Tower that ‘‘Congress has entrusted the 

Board with a wide degree of discretion 

in establishing the procedure and 

safeguards necessary to insure the fair 

and free choice of bargaining 

representatives by employees’’ is 

entirely consistent with this statutory 

directive. 329 U.S. at 330. 

Further, regarding the timing of 

elections, the Supreme Court precedent 

cited in the Final Rule deals with 

entirely different causes of delay than 

the processes that are amended or 

eliminated here. A.J. Tower was limited 

to endorsing the Board policy of not 

permitting post-election challenges to 

ballots, which would obviously and 

inevitably delay finality and accuracy in 

the ballot count. As indicated 

previously (see note 568, supra), the 

Supreme Court decision in Boire v. 

Greyhound involved an employer’s 

attempt to enjoin election proceedings 

and gain immediate judicial review of a 

Board determination that it was an 

employer under the Act. The Court’s 

rejection of pre-election court review 

had nothing whatsoever to do with 

delays attributable to the Board’s 

handling of pre-election issues. To the 

contrary, as further discussed below, 

there is extensive legislative history 

demonstrating that Congress opposed 

‘‘quickie elections,’’ which was a central 

focus when Congress adopted the TaftHartley and Landrum-Griffin 

amendments in 1947 and 1959, 

respectively. 

The Final Rule’s emphasis on speed 

stands in marked contrast to all of the 

other contexts in which Congress, 

courts, and Federal agencies have 

emphasized the need to guarantee more 

time, not less, when individuals are 

expected to exercise free choice about 

representation and other significant 

matters in a group setting. A substantial 

universe of laws, regulations, and legal 

decisions specifically address the time 

needed for people to review and 

understand important issues before 

casting a vote or signing on the dotted 

line.569 All of these have one thing in 

common: They require more time, not 

less. Against the backdrop of these 

examples, we have difficulty believing 

that Federal labor law works in reverse. 

The thrust of the Final Rule— 

unintended or not—is that employees 

make better choices when they vote 

first, and understand later. Congress and 

other state and Federal regulators have 

rejected such reasoning. Given that the 

Board’s primary responsibility is to 

safeguard employee free choice, 

especially in elections, the Final Rule in 

this fundamental respect is deficient. 

Finally, it is important to note that the 

Final Rule reflects a preoccupation with 

speed between petition-filing and the 

election, while improperly disregarding 

the increased delays it may cause in the 

Board’s overall representation process: 

The period between petition-filing and 

the exhaustion of post-election 

proceedings and appeals. Postponing 

many employee eligibility and unit 

placement issues until the post-election 

period is likely to require more time 

from petition-filing to the final 

certification of election results, 

particularly since the Final Rule 

provides that parties will not even have 

a right to obtain any Board member 

decision regarding pre- and postelection determinations. This means the 

only guaranteed review of regional 

director decisions will occur if 

employers refuse to comply with postelection Board certification, which then 

provides the opportunity for court 

review. In this regard, limitations 

imposed on the creation of a full 

evidentiary record are likely to cause 

even more substantial delays because 

the majority directs the exclusion of 

evidence that is likely to be 

indispensable to any meaningful review 

by regional directors, the Board and the 

courts of appeals. The Final Rule’s 

changes, which create a greatly 

accelerated pre-election timetable, 

impose inflexible new ‘‘pleading’’ 

requirements applicable primarily to the 

employer, largely eliminate post-hearing 

briefing, and truncate the record, are 

likely to produce an entirely new class 

of procedural and due process 

challenges—with many more remands 

from courts of appeals to the Board or 

from the Board to regional directors (in 

those relatively rare cases where the 

Board chooses to exercise its discretion 

to review a particular case). Only in the 

second stage of Board litigation will 

parties have the opportunity to present 

and respond to evidence, arguments and 

briefing that could not fully and fairly 

be litigated earlier. This will result in 

greater delays between petition-filing 

and any bargaining between employers 

and unions, which is the most 

important end result of representation 

elections in which the union prevails. 

(c) The Final Rule’s limits on preelection litigation—creating an ‘‘election 

now, hearing later’’ and ‘‘vote now, 

understand later’’ election process— 

contravene clear Congressional intent. 

The Final Rule defines the Board’s 

statutory obligation to conduct an 

‘‘appropriate’’ pre-election hearing as 

limited to the presentation of evidence 

necessary to determine whether a 

question concerning representation 

exists. This eliminates the parties’ right 

to present evidence concerning properly 

contested individual eligibility and 

inclusion issues.570 As previously 

stated, this restrictive definition, and 

the conferral of authority on regional 

directors and hearing officers to limit 


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571Other amendments in the Final Rule that 

impermissibly implement this definition by 

limiting the presentation of evidence in a preelection hearing–-including the new preclusion 

standard, permitting offers of proof to substitute for 

testimonial evidence, and the discretionary 20 

percent standard for the exclusion of evidence 

relating to eligibility and inclusion issues–-are 

discussed in a subsequent section of this opinion. 

572See also former Member Hayes’ discussion of 

this point in his dissent to the vacated December 

2011 rule at 77 FR 25560. 

573 29 U.S.C. 159(c)(1), (4); 61 Stat. 136 (1947), 29 

U.S.C. 141 et seq., reprinted in 1 LMRA Hist. 1 et 

seq. (1974); NLRB v. SW. Evans & Son, 181 F.2d 

427, 429–30 (3d Cir. 1950); H.R. Rep. 86–741, at 24 

(1959), reprinted in 1 NLRB, Legislative History Of 

The Labor-Management Reporting And Disclosure 

Act, 1959, 782 (1974) (hereinafter ‘‘LMRDA Hist.’’) 

(‘‘During the last 19 months of the Wagner Act 

* * * a form of prehearing election was used by the 

NLRB.’’); S. Rep. 86–187, at 30 (1959), reprinted in 

1 LMRDA Hist. 426 (the practice of holding 

prehearing elections ‘‘was tried in the last year and 

a half prior to passage of the Taft-Hartley Act, but 

it was eliminated in that [A]ct’’). 

574 In light of this and other clear expressions of 

Congress’s intent on the precise question of the 

scope of the statutory term ‘‘appropriate hearing’’ 

after the Court’s Inland Empire decision, we accord 

less weight to the Court’s interpretation of that term 

in Inland Empire than do our colleagues. 

575See S. 1555, 86th Cong. Section 705 (as passed 

by the Senate on April 25, 1959), reprinted in 1 

LMRDA Hist. 581. 

576 105 Cong. Rec. 5361 (1959), reprinted in 2 

LMRDA Hist. 1024 (emphasis added). To the same 

effect, Senator Kennedy stated ‘‘there should be at 

least a 30-day interval between the request for an 

election and the holding of the election,’’ and he 

opposed proposals that, in his words, failed to 

provide ‘‘at least 30 days in which both parties can 

present their viewpoints.’’ 105 Cong. Rec. 5770 

(1959), reprinted in 2 LMRDA Hist. 1085 (statement 

of Sen. Kennedy); see also H.R. Rep. 86–741, at 25 

(1959), reprinted in 1 LMRDA Hist. 783 (minimum 

30-day pre-election period was designed to ‘‘guard[] 

against ‘quickie’ elections’’). To repeat, Senator 

Kennedy was a principal proponent of pre-hearing 

elections. Contrary to our colleagues, we find that 

his remarks as to what would be required if prehearing elections were permitted are germane to the 

analysis of whether the changes they make to 

shorten the time from petition to election in all 

representation cases are rational or arbitrary. 

577 105 Cong. Rec. 16629 (1959), reprinted in 2 

LMRDA Hist. 1714. Cf. H.R. Rep. 86–741, at 76 

(1959), reprinted in 1 LMRDA Hist. 834 (indicating 

that Representative Barden was Chairman of the 

House Committee on Education and Labor); H.R. 

Rep. 86–1147, at 42 (1959), reprinted in 1 LMRDA 

Hist. 946 (indicating that Representative Barden 

was the ranking House Conference Committee 

Manager). See also 105 Cong. Rec. A8062 (1959), 

reprinted in 2 LMRDA Hist. 1813 (opposing ‘‘prehearing or so-called quickie election’’ and affirming 

that the ‘‘right to a hearing is a sacred right’’); H.R. 

Rep. 86–741, at 24–25 (1959), reprinted in 1 

LMRDA Hist. 782–83 (mandatory period between 

petition-filing and election ‘‘guards against ‘quickie’ 

elections’’); 105 Cong. Rec. A8522 (1959), reprinted 

in 2 LMRDA Hist. 1856 (referencing opposition to 

pre-hearing election proposal). 

the presentation of evidence on these 

issues, is a keystone device in the Final 

Rule’s acceleration of the pre-election 

timeline.571

This leads inevitably to a 

conclusion—relevant when conducting 

an inquiry under Chevron step one— 

that the Final Rule’s exclusion of 

eligibility and unit-inclusion issues 

from the ‘‘appropriate hearing’’ 

requirement of Section 9(c)(1) of the Act 

directly and substantially contravenes 

Congress’s clearly expressed intent in 

enacting and reenacting that 

requirement.572

Section 9(c)(1) states that, whenever a 

representation petition is filed, the 

Board ‘‘shall investigate’’ and, if there is 

‘‘reasonable cause’’ to believe there is a 

‘‘question of representation,’’ the Board 

‘‘shall provide for an appropriate 

hearing upon due notice.’’ Section 

9(c)(1) further states that the hearing 

‘‘may be conducted by an officer or 

employee of the regional office, who 

shall not make any recommendations 

with respect thereto,’’ and if the Board 

finds ‘‘based on the record of such 

hearing’’ that a question of 

representation exists, the Board ‘‘shall 

direct an election by secret ballot and 

shall certify the results thereof.’’ 

Contrary to our colleagues’ discussion 

of this issue, Congress has directly 

addressed the scope of the requisite 

‘‘appropriate hearing,’’ and has at least 

twice rejected the ‘‘election now, 

hearing later’’ and ‘‘vote now, 

understand later’’ approaches reflected 

in the Final Rule. In particular, Congress 

has clearly repudiated the notion that 

the Board may conduct so-called 

‘‘quickie elections’’ before important 

issues such as eligibility and inclusion 

are the subject of an ‘‘appropriate 

hearing.’’ 

Based on the original Wagner Act 

(which did not require elections but 

provided for an ‘‘appropriate hearing’’ if 

an election was conducted), the 

Supreme Court decided in 1945 that the 

‘‘appropriate hearing’’ requirement 

could be satisfied by a post-election 

hearing. Inland Empire Dist. Council v. 

Millis, 325 U.S. 697, 707 (1945). For 

about 19 months thereafter, the Board 

conducted a number of prehearing 

elections and relegated important 

election-related issues to a post-election 

hearing. In 1947, Congress explicitly 

prohibited this practice by adding the 

aforementioned language in Sections 

9(c)(1) and (4) of the Act requiring the 

Board to conduct an ‘‘appropriate 

hearing’’ before any election, and 

permitting ‘‘the waiving of hearings’’ 

only ‘‘by stipulation’’ of all parties.573

Thus, when the Taft-Hartley 

amendments explicitly prohibited 

elections without an ‘‘appropriate 

hearing’’ before the election, this not 

only repudiated a practice that had been 

adopted by the Board, it repudiated the 

Supreme Court’s Inland Empire 

decision.574

In 1959, the resurrected concept of 

having expedited elections followed by 

the consideration of important issues in 

post-election hearings was part of 

President Eisenhower’s original ‘‘20- 

point program’’ that prompted Congress 

to adopt the Landrum-Griffin Act. See S. 

Rep. 86–10, at 3 (1959), reprinted in 1 

LMRDA Hist. 82 (‘‘In order to speed up 

the orderly processes of election 

procedures, to permit the Board under 

proper safeguards to conduct 

representation elections without 

holding a prior hearing where no 

substantial objection to an election is 

made.’’). Not only was this ‘‘election 

first, hearing later’’ concept considered 

throughout the 1959 legislative debates, 

it was adopted in the Senate version of 

the Landrum-Griffin amendments.575

Significantly, though authorizing the 

Board to conduct elections on an 

expedited basis while deferring 

important issues to a post-election 

hearing, the Senate-passed bill 

explicitly prohibited elections from 

occurring fewer than 30 days after the 

filing of a petition. Then-Senator John F. 

Kennedy—who chaired the Conference 

Committee and was a proponent of the 

pre-hearing election concept— 

repeatedly stated that at least 30 days 

were required between the petition’s 

filing and the election to ‘‘safeguard 

against rushing employees into an 

election where they are unfamiliar with 

the issues.’’ 576

Ultimately, Congress still refused to 

adopt the Senate-passed arrangement 

because elections would take place too 

quickly. Congress instead reaffirmed the 

requirement that the Board conduct an 

‘‘appropriate hearing’’ before any 

contested election, and it precluded the 

Board from deferring litigation of voter 

eligibility and other issues to postelection hearings. Representative 

Graham Barden, when describing the 

Senate-passed bill’s abandonment, 

explained that pre-election ‘‘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.’’ 577

As is obvious from the legislative 

record, the core concepts underlying the 

current Rule (‘‘election now, hearing 

later’’ and ‘‘vote now, understand later’’) 

were not simply matters of peripheral 

concern when Congress—in 1947 and 

again in 1959—rejected the notion of 

having expedited elections without a 

hearing regarding fundamental election 

issues like voter eligibility and 

supervisory status. Thus, from 1947 


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578NLRB v. Bell Aerospace Company, Division of 

Textron, Inc., 416 U.S. 267, 274–75 (1974). 

579Congress’s failure to pass electoral initiatives 

in the Labor Law Reform Act of 1977–78 

represented yet another rejection of the ‘‘vote now, 

understand later’’ approach. See Cong. Res. Serv., 

Digest of Public General Bills and Resolutions, 

Final Issue, Part 1, 501–02 (95th Cong. 2d Sess. 

1979) (recounting passage of bill in House on Oct. 

6, 1977; failure of four cloture motions in Senate 

from June 13–22, 1978; closest votes 58–41 on June 

14 and 58–39 on June 15). 

580Regarding the Final Rule’s provisions for 

Board-conducted elections without even permitting 

a pre-election hearing about who is eligible to vote, 

the Rule is on the wrong side of history and 

common sense. See NLRA Sec. 9(c)(1), (4) 

(requiring an ‘‘appropriate hearing upon due 

notice’’ before an election, unless there is a ‘‘waiver 

* * * for the purpose of a consent election’’). 

Addressing the Taft-Hartley Act’s rejection of the 

‘‘election first, hearing later’’ concept, Senator 

Taft—cosponsor of the legislation—stated, ‘‘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.’’ 93 Cong. Rec. 7002 

(1947), reprinted in 2 LMRA Hist. 1625 

(supplemental analysis of LMRA by Senator Taft) 

(emphasis added). Addressing the Landrum-Griffin 

amendments adopted in 1959, Representative 

Graham Barden—Chairman of the House Committee 

on Education and Labor, and the ranking House 

conferee—stated that ‘‘[t]he right to a formal 

hearing before an election can be directed is 

preserved without limitation or qualification.’’ 105 

Cong. Rec. 16629 (1959), reprinted in 2 LMRDA 

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

86–1147, at 1 (1959), reprinted in 1 LMRDA Hist. 

934 (conference report). Chairman Barden stated: 

‘‘The right to a hearing is a sacred right.’’ 105 Cong. 

Rec. A8062 (1959), reprinted in 2 LMRDA Hist. 

1813 (emphasis added). Consistent with these 

requirements, the Board itself has repeatedly held 

that Section 9(c)(1) requires that pre-election 

hearings provide the opportunity to present 

evidence regarding who is eligible to vote and 

questions regarding supervisory status, among other 

things. See, e.g., Barre-National, Inc., 316 NLRB 877 

(1995) (finding that hearing officer’s refusal to 

permit evidence regarding supervisory status ‘‘did 

not meet the requirements of the Act’’ even though 

the hearing officer—like the Final Rule—would 

have permitted the individual to vote under 

challenge, subject to post-election proceedings to 

determine supervisory status). Because, contrary to 

our colleagues’ position, this requirement stems 

from the Act and not from our decisions, it cannot 

be evaded by overruling Barre-National and related 

cases. See also Angelica Healthcare Services Group, 

315 NLRB 1320 (1995); North Manchester Foundry, 

Inc., 328 NLRB 372 (1999); Avon Prods., Inc., 262 

NLRB 46, 48–49 (1982). 581An array of problems and incongruities stem 

from the broad exclusion of eligibility and inclusion 

issues from pre-election hearings. Because the Final 

Rule directs the exclusion of evidence regarding 

such issues, there will be more situations where 

many employees cast votes in NLRB-conducted 

elections where, based on the post-election 

resolution of eligibility issues, the employees learn 

their votes were not even counted and, even if the 

union prevailed, the ineligible employees are 

excluded from any bargaining. Without a preelection hearing regarding whether certain 

individuals are eligible voters versus statutory 

supervisors, many employees will not know there 

is even a question about whether fellow voters— 

with whom they may have discussed many issues— 

will later be declared supervisor-agents of the 

employer. Many employers will be placed in an 

untenable situation regarding such individuals 

based on uncertainty about whether they could 

speak as agents of the employer or whether their 

individual actions—though not directed by the 

employer—could later become grounds for 

overturning the election. Also, employees 

ultimately included in the bargaining unit will not 

know—at the time they voted—whether they will 

have the support of other employees who, after the 

election, end up being excluded from the bargaining 

unit. Congress clearly intended that parties would 

have the right to present evidence regarding such 

issues in the ‘‘appropriate hearing’’ required before 

any non-stipulated election. 

As indicated previously (see note 570, supra), the 

point here is not that such issues require resolution 

before every election; the Final Rule adopts the 

broad-based position that evidence as to these 

issues should be excluded and in many instances 

will be excluded from the pre-election hearing. This 

is all the more perplexing given that Congress 

repeatedly reaffirmed the need for a pre-election 

hearing to permit evidence regarding such 

important issues and, in every case, potential preelection Board review of ‘‘any action’’ by regional 

directors. NLRA Sec. 3(b), 29 U.S.C. 153(b). This 

deficiency in the Final Rule is not cured by the 

possibility that hearing officers may, as a 

discretionary matter, permit evidence regarding 

some voter eligibility issues in isolated cases. The 

Final Rule redefines the limited purpose of the preelection hearing to a determination of whether a 

‘‘question of representation’’ exists, thereby 

providing for the deferral of voter eligibility issues 

until after the election. One cannot reasonably 

presume that hearing officers and regional directors 

will exercise ‘‘discretion’’ to act at variance with 

what the Final Rule requires. 

582Specialty Healthcare and Rehabilitation 

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

affd. sub nom. Kindred Nursing Centers East, LLC 

v. NLRB, 727 F.3d 552 (6th Cir. 2013). 

583Chamber of Commerce v. Brown, 554 U.S. at 

68 (quoting Letter Carriers v. Austin, 418 U.S. 264, 

272–73 (1974)). 

until today, the Board’s long-established 

practice has been to conduct a full 

evidentiary hearing on contested issues 

prior to conducting an election and to 

permit the introduction of evidence on 

unit eligibility and inclusion issues in 

those hearings as a matter of statutory 

right. This is consistent with 

Congressional intent in the Taft-Hartley 

amendments in 1947. It is also 

consistent with the ultimate knowing 

determination by Congress not to alter 

that practice when enacting the 

Landrum-Griffin amendments in 1959. 

As to the latter legislative event, the 

Supreme Court has stated that in 

reviewing the Board’s interpretation of 

the Act, ‘‘a court may accord great 

weight to the longstanding 

interpretation placed on a statute by an 

agency charged with its administration. 

This is especially so where Congress has 

re-enacted the statute without pertinent 

change. In these circumstances, 

congressional failure to revise or repeal 

the agency’s interpretation in 1959 is 

strongly supportive of our view that the 

longstanding interpretation is the one 

intended by Congress.’’ 578 By this 

standard, it could not be clearer that the 

Final Rule’s interpretation of 

‘‘appropriate hearing’’ contravenes 

Congressional intent.579

Furthermore, not only is the Final 

Rule’s interpretation of the scope of an 

‘‘appropriate hearing’’ clearly contrary 

to Congress’ expressed intent, it is 

especially objectionable from a policy 

standpoint to exclude from pre-election 

hearings evidence regarding who is 

eligible to vote. 580 To state the obvious, 

when people participate in an election, 

it is significant whether they actually 

have a right to vote, whether their vote 

will be counted, and whether the 

election’s outcome will even affect 

them.581 In this respect, the Final Rule’s 

approach would be intolerable in every 

other voting context, whether it 

involved a national political election or 

high school class president. Thus, for 

good reason, the ‘‘appropriate hearing’’ 

requirement has consistently been 

deemed to require that pre-election 

hearings encompass evidence regarding 

voter eligibility and inclusion issues. 

The Board’s recent decisions have 

highlighted the importance of 

determining what employees may be 

excluded from petitioned-for bargaining 

units, which prompted a Board majority 

in Specialty Healthcare to change the 

legal standard governing such 

determinations.582

(d) The Final Rule curtails protected 

speech during representation election 

campaigns. Section 8(c) and other 

provisions of the Act protect the free 

speech rights of employees, employers, 

and unions, consistent with similar 

guarantees afforded by the First 

Amendment. The Supreme Court has 

long recognized an employer’s right to 

engage in free speech in the labor 

relations context. See NLRB v. Virginia 

Electric & Power Co., 314 U.S. 469, 477– 

79 (1941) (nothing in the Act prohibits 

employers from expressing their views 

about unions). The Court has also 

characterized Section 8(c) as reflecting a 

‘‘policy judgment, which suffuses the 

NLRA as a whole, as ‘favoring 

uninhibited, robust, and wide-open 

debate in labor disputes,’ stressing that 

‘freewheeling use of the written and 

spoken word * * * has been expressly 

fostered by Congress and approved by 

the NLRB.’ ’’ 583 Employers and unions 

have protected rights to engage in 

protected speech prior to an election. 

This right only has meaning if there is 

sufficient time for the parties to 

communicate with employees about the 

choice of representation. Employees 

should have enough time to listen to 

both sides of the debate about 

unionization, to inform their colleagues 

of their views on the subject, and to 

consider their options before voting on 

an issue that could impact their working 

lives for years to come. 


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584The majority argues that the Final Rule does 

not necessarily shorten the time between the 

petition and the election because it does not set any 

rigid timelines for the conduct of the election. If 

that were the case, then there is no point at all to 

the pre-election elements of the rule that abbreviate 

the timetable for conducting an election. Further, 

we have little doubt how regional directors— 

members of the career Senior Executive Service 

whose eligibility for annual performance awards 

depends in substantial part on how their regional 

office meets time targets—will construe the 

overriding imperative in the Final Rule that 

elections be scheduled ‘‘at the earliest date 

practicable.’’ 

585See discussion in text and accompanying 

footnotes in Sec. A.2, supra. 

586To the extent that the majority relates its First 

Amendment argument to its claim that ‘‘as soon as 

practicable’’ is the Board’s historical standard, we 

counter that the Rule radically revises what the 

Board has historically viewed as practicable and, by 

doing so, greatly increases the risk of free speech 

infringement. 

587The majority rejects the analogy between 

Board elections and political elections. Their view 

cannot be reconciled with judicial precedent that 

has long recognized this analogy as apt. See Wirtz 

v. Hotel, Motel & Club Emp. Union, Local 6, 391 

U.S. 492, 504 (1968) (when creating representation 

elections, ‘‘Congress’ model of democratic elections 

was political elections in this country’’); NLRB v. 

Hudson Oxygen Therapy Sales Co., 764 F.2d 729, 

733 (9th Cir. 1985) (‘‘Congress intended 

representation elections to follow the model of 

elections for political office.’’). See also NLRB v. A.J. 

Tower Co., supra at 332 (rationale for opposing 

post-election challenges in political elections also 

applies to representation elections). Therefore, the 

courts’ regulation of conduct in political elections 

may be particularly instructive in the Board’s 

regulation of representation elections and provide 

support for the assertion that individual free choice 

in representation elections requires more time and 

information, not less. 

588See, e.g., Mills v. Alabama, 384 U.S. 214 

(1966) (invalidating state ban on election-day 

newspaper editorials); Emineth v. Jaeger, 901 F. 

Supp. 2d 1138 (D.N.D. 2012) (enjoining state ban on 

all electioneering on election day); Curry v. Prince 

George’s Cnty., Md., 33 F. Supp. 2d 447, 454–455 

(D. Md. 1999) (invalidating county ban on display 

of political signage for all but 45 days before and 

10 days after a political election). 

589Republican Party of Minnesota v. White, 536 

U.S. 765, 782 (2002) (citing Brown v. Hartlage, 456 

U.S. 46, 60 (1982)). 

590The Final Rule relies in large part on written 

comments and testimony submitted by Professor 

Kate Bronfenbrenner that purport to show that 

employers generally have knowledge of organizing 

campaigns before a petition is filed. However, the 

reliance on this research would be misplaced even 

if the research were objectively accurate. As the 

Final Rule emphasizes, ‘‘[m]ost elections involve a 

small number of employees,’’ with a quarter of 

elections held in units with 10 or fewer employees, 

half of elections held in units smaller than 25, and 

three-quarters of all Board elections held in units 

of 60 or fewer employees. However, the 

Bronfenbrenner study is based on a specialized 

sample of cases involving only large bargaining 

units containing at least 50 employees. If for no 

other reason than that the study is based on a 

population of statistical outliers, this study cannot 

legitimately support the Final Rule’s claim that 

‘‘employers are very often aware of the organizing 

campaign before the petition is filed.’’ See August 

22, 2011 correspondence from Bronfenbrenner and 

Warren to the Board, enclosing Empirical Case for 

Streamlining the NLRB Certification Process. In 

addition, as has been noted elsewhere, there are far 

too many flaws in the current and past 

Bronfenbrenner studies to justify the Board’s 

reliance on them for any purpose related to this 

rulemaking. See, e.g., Chamber of Commerce, 

Responding to Union Rhetoric: The Reality of the 

American Workplace—Union Studies on Employer 

Coercion Lack Credibility and Integrity (U.S. 

Chamber of Commerce White Paper 2009). 

The Final Rule is intended to, and 

inevitably will, substantially shorten the 

time in all initial organizing 

representation elections from the filing 

of a petition, when support for 

unionization is often at its peak, to the 

day of the election.584 The Final Rule 

will therefore necessarily curtail the 

ability of parties to exercise their rights 

to engage in protected speech during the 

critical pre-election campaign period. 

Particularly because the consequences 

of an election can be long-lasting— 

regardless of whether employees vote 

for or against union representation—the 

Final Rule limits the right of all parties 

to engage in protected speech at 

precisely the time when their free 

speech rights are most important. Thus, 

in most cases, parties and employees 

will have less time to share their 

respective views and engage in robust, 

lawful debate regarding the positive and 

negative aspects of union 

representation. This consequence alone 

is a matter of constitutional concern. 

That concern is magnified by the 

mandate that regional directors 

schedule an election ‘‘at the earliest date 

practicable,’’ which creates an 

unacceptably heightened risk parties 

and employees will have too little time 

at least in some cases, as measured by 

any reasonable standard, to engage in 

protected debate. 

The majority makes much of the 

statement, in our dissent to the 

Proposed Rule, that we did not know 

the precise point in time when 

shortening the election timetable would 

impermissibly deny employers, unions, 

and employees the right to engage in 

speech protected by the Act and the 

First Amendment. The Final Rule 

dispels any question about this: it does 

effectively and impermissibly curtail the 

protected speech rights guaranteed to 

employers, unions and employees under 

the Act and the First Amendment. The 

Final Rule substantially abbreviates the 

time from petition to election in all 

representation cases; as previously 

stated,585 the Board has determined that 

most unrepresented employees—and 

many employers and union officials— 

lack familiarity with important NLRA 

principles and the many complex 

principles that govern union 

representation and collective 

bargaining; the Final Rule explicitly 

adopts the requirement that elections 

take place as quickly as ‘‘practicable’’; 

the Rule squarely rejects any reasonable 

minimum time between petition-filing 

and election; and our colleagues 

explicitly disclaim responsibility even 

to identify an appropriate target time 

frame that should—or will—result from 

the Rule. 

In short, in respect to free speech 

concerns, the Final Rule has two 

infirmities. First, the Rule singlemindedly accelerates the time from the 

filing of the petition to the date when 

employees must vote in representation 

elections (indeed, the Rule overtly 

requires election voting as soon as 

‘‘practicable’’ after a petition is filed).586

Second, the Rule irrationally ignores the 

self-evident proposition that, when one 

eliminates a reasonable opportunity for 

speech to occur, parties cannot engage 

in protected speech. In combination, 

these problems inescapably reflect the 

same uniform purpose and effect: To 

limit pre-election campaigning and 

curtail protected speech, contrary to the 

First Amendment, the Act and decades 

of case law establishing that all 

parties—and the Board—regard preelection campaigns as vitally important. 

The substantial body of judicial 

precedent that governs campaigning in 

political elections is also relevant 

here.587 Numerous courts have ruled 

that all but the most narrowly drawn 

durational limitations on political 

electioneering are impermissible 

government restrictions of free 

speech.588 Further, the Supreme Court 

has declared: ‘‘It is simply not the 

function of government to select which 

issues are worth discussing or debating 

in the course of a political 

campaign.’’ 589 Neither should it be the 

Board’s function to curtail opportunities 

for the identification and discussion of 

issues in a representation election. 

Our colleagues assert that the Final 

Rule is permissible because it does not 

completely eliminate the opportunity 

for employees, employers and unions to 

communicate about unionization. They 

argue, for example, that some nonunion 

employers learn about union organizing 

before representation petitions are 

filed.590 However, our colleagues’ 

reliance on possible union-related 

discussions before petition-filing is 

misdirected because, first, the Final 

Rule’s deleterious impact on speech 

obviously occurs after petition-filing (by 

dramatically shortening the window 

between petition-filing and the 

election), and second, the filing of the 

petition initiates what the Board and the 

courts consider the ‘‘critical period’’ 

prior to the election, a period during 

which the representation choice is 

imminent and speech bearing on that 


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591The Board held in Ideal Electric & Mfg. Co., 

134 NLRB 1275, 1277–78 (1961), that ‘‘the date of 

filing of the petition * * * should be the cutoff 

time in considering alleged objectionable conduct,’’ 

because that marks the time ‘‘when the Board’s 

processses have been invoked’’ and an election 

‘‘may be anticipated pursuant to present 

procedures.’’ This period between petition-filing 

and the election—during which objectionable 

conduct is deemed sufficient to invalidate the 

election—is called the ‘‘critical period.’’ Goodyear 

Tire & Rubber Co., 138 NLRB 453 (1962); E.L.C. 

Electric, Inc., 344 NLRB 1200, 1201 n.6 (2005); 

NLRB v. Arkema, Inc., 710 F.3d 308, 323 n.16 (5th 

Cir. 2013); Ashland Facility Operations, LLC v. 

NLRB, 701 F.3d 983, 987 (4th Cir. 2012); NLRB v. 

Curwood Inc., 397 F.3d 548, 553 (7th Cir. 2005). 

592Supra note 591. 

593See Ideal Electric & Mfg. Co., 134 NLRB at 

1278. 

594Supra note 591. 

595See, e.g., Lechmere, Inc. v. NLRB, 502 U.S. 527 

(1992) (addressing limitations on union access 

rights to private property). 

596Citizens United v. Federal Election 

Commission, 130 S. Ct. 876 (2010). See also 77 FR 

25574 (Member Hayes, dissenting). In Citizens 

United, the Supreme Court overruled Austin v. 

Michigan Chamber of Commerce, 494 U.S. 652 

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

theory,’’ pursuant to which limitations on speech 

were ostensibly justified as preventing ‘‘an unfair 

advantage in the political marketplace’’ based on 

‘‘resources amassed in the economic marketplace.’’ 

Citizens United, 130 S. Ct. at 904 (citations 

omitted). In Citizens United, the Court held 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)). And the Court 

concluded that ‘‘ ‘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 

(emphasis added) (quoting Buckley v. Valeo, 424 

U.S. 1, 48–49 (1976)). 

597See Chamber of Commerce v. Brown, supra at 

68. See 77 FR 25574 (Member Hayes, dissenting). 

598 ‘‘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 

* * * .’’ Chamber of Commerce v. Brown, supra at 

74. 

599Supra note 591. 

choice takes on heightened 

importance.591 Indeed, our colleagues’ 

argument reflects the hallmark 

characteristic associated with every 

infringement on free speech: the 

government simply determines the 

speech is not necessary. Rather than 

saving the Rule, this constitutes the 

most objectionable aspect of the Rule as 

it relates to protected speech. 

It is not enough that employers and 

employees may communicate general 

observations regarding unions before the 

filing of an election petition, any more 

than it would be deemed permissible to 

limit political campaigning to 

generalized statements about a 

particular political party before actual 

candidates are selected. Again, the 

Board and the courts (for more than 50 

years) have recognized that election 

petitions mark the commencement of a 

new ‘‘critical’’ phase in representation 

campaigns.592 Only the filing of a 

petition means ‘‘the Board’s processes 

have been invoked,’’ resulting in an 

election that can be ‘‘anticipated 

pursuant to [the Board’s] 

procedures.’’ 593 Objectionable activity 

by employers or unions after petitionfiling, because it occurs during this 

‘‘critical period,’’ is deemed sufficient to 

invalidate the results of the election.594

This belies the Final Rule’s premise that 

eliminating post-petition opportunities 

for speech has no material adverse 

impact on elections and must be 

considered inconsequential. 

Regarding the Final Rule’s 

curtailment of opportunities for speech, 

the majority specifically disclaims being 

motivated by a desire to counter what 

they view as an employer’s undue 

influence during representation 

campaigns. However, numerous unionside commenters rely on this 

justification in advocating the Rule’s 

adoption. They contend that, under 

current representation procedures, 

employers have the upper hand in 

campaign communications. Further, as 

noted previously, our colleagues or 

commenters have observed that some 

employers may be well informed about 

union election procedures before a 

petition is filed; all employers have 

unlimited access to employees during 

the workday and can hold unlimited 

captive audience speeches in the 

workplace until 24 hours before the 

election; and they may still thereafter 

have the ‘‘last word’’ on election day in 

individual conversation with 

employees. 

In our view, reliance on these factors 

is fundamentally flawed. First, it reflects 

a view that the Rule only adversely 

affects protected speech undertaken by 

employers. To the contrary, the Act and 

the First Amendment afford employees 

and unions, as well as employers, rights 

to engage in protected speech that the 

Rule impermissibly restricts or 

threatens. 

Second, some of these factors (for 

example, the fact that employers have 

unique access to employees) are part 

and parcel of every employment 

relationship, and other factors (for 

example, limits on union access to the 

employer’s property) arise from wellestablished prior decisions by the 

Board, the courts of appeals, and the 

Supreme Court, which impose different 

types of limitations on unions and 

employers, respectively.595 But none of 

these factors and prior decisions 

authorizes the Board to disregard or 

adopt rules that impose undue 

restrictions on protected speech. 

Third, although our colleagues 

disclaim the intent to redress an unfair 

balance of power between unions and 

employers by limiting employer speech, 

the Rule’s provisions predictably and 

inescapably will have that effect. It is 

therefore contrary to the Supreme 

Court’s holding that the Board is not 

vested with ‘‘general authority to define 

national labor policy by balancing the 

competing interests of labor and 

management.’’ American Ship Building 

Co. v. NLRB, 380 U.S. 300, 316 (1965). 

Finally, even if not intended, the 

Final Rule essentially embraces an 

‘‘anti-distortion’’ theory—justifying 

speech restrictions to prevent an ‘‘unfair 

advantage’’ in campaigning based on 

‘‘resources’’ that are too favorable to one 

side. This theory has been squarely 

rejected by the Supreme Court in the 

political election context,596 and the 

Final Rule has the same impermissible 

‘‘anti-distortion’’ effect applied to the 

‘‘uninhibited, robust and wide-open 

debate in labor disputes’’ that is 

fundamental to Federal labor policy.597

By reducing the time for employer 

speech, the Rule enhances the relative 

voice of a union and its advocates. This 

restriction of speech far exceeds the 

‘‘narrow zone’’ deemed permissible by 

the Brown Court.598

Our colleagues have made a policy 

choice to abbreviate the ‘‘critical 

period’’ deemed most important by the 

Board to the exercise of employee free 

choice.599 The unavoidable 

consequence of this choice is the 

limiting of opportunities for speech and 

debate during that period. It is apparent 

from the statements of numerous 

commenters supporting the Rule that in 

this respect the Final Rule will 

specifically disadvantage anti-union 

speech more than pro-union speech, 

and will correspondingly enhance a 

petitioning union’s chances of electoral 

success. This does not concern the 

majority. In the context of union speech, 

however, the Board has taken great care 

to avoid interpreting and applying the 

Act in a manner that raises serious 

constitutional concerns regarding free 

speech infringement. See Carpenters 

Local 1506 (Eliason & Knuth of Arizona, 

Inc.), 355 NLRB 797, 807–11 (2010) 

(canon of constitutional avoidance 

requires Board to construe the Act’s 

provisions in order to avoid serious 

constitutional questions arising from an 

otherwise acceptable construction of the 

statute, if an alternative interpretation is 

possible and not contrary to the intent 

of Congress). The Board has the same 


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600Many commenters opposing the NPRM have 

contended that its provisions violate procedural 

due process rights. Necessarily, those Final Rule 

amendments that contravene Congressional 

guarantees of pre-election process or constitutional 

and Congressional guarantees of free speech rights 

are also invalid because they deprive affected 

persons of protected liberty interests without 

providing the mandatory due process. 

601We note that the Final Rule does not include 

a provision permitting petitioning parties to use 

electronic signatures in support of a showing of 

interest. Although certain Federal statutes, 

including the Government Paperwork Elimination 

Act (GPEA), 44 U.S.C. 3504 (note), Pub. L. 105–277, 

Div. C, Title XVII, 112 Stat. 2681 (1998), and the 

Electronic Signatures in Global and National 

Commerce Act (E–SIGN), 15 U.S.C. 7001 et seq. 

‘‘evidence Congress’s intent that Federal agencies, 

including the Board, accept and use electronic 

forms and signatures, when practicable,’’ the 

General Counsel—as suggested by our colleagues— 

should perform an analysis similar to that outlined 

in the Office of Management and Budget’s guidance 

for implementing the GPEA, OMB Procedures and 

Guidance; Implementation of the Government 

Paperwork Elimination Act, 65 FR 25508 (May 2, 

2000), which describes a specific, detailed 

framework for agencies to follow ‘‘for deciding 

whether to use electronic signature technology for 

a particular application.’’ Id. at 25514 (emphasis 

added). Absent the results of such an analysis, we 

cannot share our colleagues’ confidence that a 

practicable way exists for the Board to accept 

electronic signatures to support a showing of 

interest while adequately safeguarding the 

important public interests involved. Inasmuch as 

the Final Rule itself contains no provision relating 

to electronic signatures, we do not further address 

the matter here. 

602The requirement also applies to nonpetitioning unions in RM and RD elections, but the 

range of potential contested issues in those 

elections is much narrower. In any event, the RC 

election petition is by far the petition filed most 

frequently. Thus, it is not accurate to state that in 

practice the burden imposed by the Final Rule’s 

new Statement of Position requirements will fall 

equally on all non-petitioning parties. 

603Croft Metals, Inc., 337 NLRB 688 (2002), does 

not support the Final Rule’s requirement that a 

hearing be held 8 days after the notice of petition. 

In Croft, the Board held that a party must receive 

at least 5 working days’ notice of hearing. The 

hearing in Croft was, in fact, scheduled 10 days 

after the petition filing, but the employer did not 

receive the required notice until just 3 days before 

that hearing date. The Board was not required to 

consider and did not consider how soon a hearing 

should be scheduled after a petition is filed. 

Moreover, for reasons we state here, we believe 

Croft’s minimum notice of hearing requirement 

would have to be adjusted to provide a reasonable 

minimum time for an employer to meet the 

additional pre-hearing burden imposed by the Final 

Rule. 

604As many comments to the Final Rule state, for 

small employers without experienced labor counsel 

in house or on retainer, these time periods make it 

difficult to find competent counsel. See, e.g., 

SHRM; Chamber II; AHA II; COLLE II. 

interpretive obligation here. In our view, 

the Final Rule fails the test. It poses an 

unacceptable risk of infringing free 

speech rights guaranteed by Section 8(c) 

of the Act and the First Amendment. 

(e) Summary: the Final Rule’s General 

Problems. These general overarching 

problems with the Final Rule are reason 

enough to find that overall it contradicts 

the clear intent of Congress as to the 

Act’s purpose, is ‘‘arbitrary and 

capricious’’ in failing to rationally relate 

to the Board’s experience in 

administration of the Act and to facts 

adduced in rulemaking, and infringes or 

poses an impermissible risk of 

infringing free speech rights.600

Inasmuch as these problems infect the 

Final Rule as a whole and all its parts, 

we do not approve of any aspect of the 

Rule, even if we fail to discuss some 

specific changes in these dissenting 

views. As we state at the outset, a 

fundamental problem with this 

rulemaking is its immense scope and 

highly technical nature. The majority 

has consciously adopted all of these 

changes simultaneously with the 

intention that they would function in 

conjunction with one another, which 

makes it unreasonable to suggest that 

any piece can be viewed in isolation. 

The manifold problems that we have 

identified throughout this dissent, in 

turn, mean the entirety of the new 

election process is beset with fatal 

infirmity. Our colleagues are therefore 

mistaken in suggesting that there exists 

a Board consensus on any specific 

provisions. 

5. The Final Rule’s Additional Specific 

Problems and Deficiencies 

Even putting aside the above 

deficiencies, significant other detailed— 

and, in some respects, highly 

technical—provisions in the Final Rule 

are equally problematic, as fully 

discussed below.601

(a) Accelerating Elections While 

Imposing New Inflexible ‘‘Pleading’’ 

Requirements—The Final Rule 

impermissibly shortens the time from 

petition to hearing while simultaneously 

imposing substantial new mandatory 

notice and pleading obligations. Under 

current longstanding practice, an 

employer has no mandatory pre-hearing 

procedural obligations, although regions 

routinely request the voluntary 

submission of a written commerce 

questionnaire and oral communication 

of unit information to facilitate the 

negotiation of election agreements or to 

define issues to be contested at a 

hearing. In addition, if a hearing is 

necessary, regional directors possess 

and have exercised discretion in 

scheduling its starting date, generally 

scheduling hearings to begin from 7 to 

12 days from notice of the petition, with 

postponements granted upon a showing 

of good cause. 

Although the Final Rule delays the 

consideration of many fundamental 

eligibility and inclusion issues until 

after the election, it imposes significant 

new mandatory pre-hearing 

requirements. Specifically, the Final 

Rule now mandates that, in the absence 

of an election agreement, a nonpetitioning party, usually the employer, 

must within 7 days of the Board’s notice 

of petition file with the Region a written 

Statement of Position that must (1) 

include a list of the full names, work 

locations, shifts, and job classifications 

of all individuals in the proposed unit, 

and if the employer contends that the 

proposed unit is inappropriate, a 

separate list of the full names, work 

locations, shifts, and job classifications 

of all individuals that the employer 

contends must be added to the proposed 

unit to make it an appropriate unit; (2) 

address any matter it wishes to litigate 

before the election; (3) state preferences 

as to the details of conducting the 

election; and (4) indicate those 

individuals, if any, whom it believes 

must be excluded from the proposed 

unit to make it an appropriate unit. 

Furthermore, a hearing must be 

scheduled to start the day after the 

statement’s filing, 8 days from Board 

service of the notice of petition, absent 

undefined special or exceptional 

circumstances justifying extensions 

amounting to no more than 4 additional 

days. 

As discussed hereafter, the new 

requirement to produce this written 

information prior to the hearing is 

unfairly placed only on non-petitioning 

parties, usually the employer, and the 

preclusive effect given to the statements 

is too broad. As an initial matter, we 

question the rational basis for imposing 

a uniform shorter timeline from petition 

to hearing date while at the same time 

demanding much more information 

from the employer.602 The majority 

claims in the Final Rule that it merely 

codifies a best practice here. (Actually, 

the claim is that 7 days would be the 

best practice, but they are willing to 

extend the time period to 8 days.) 

Assuming that there is any basis other 

than the need for speed for declaring 8 

days to be a best practice or to limit a 

party’s opportunity adequately to 

prepare for a hearing, that rationale 

would seem to apply only to a timeline 

in which employers had no more than 

the primarily informal, voluntary, and 

verbal pre-hearing tasks to attend to 

under the Board’s longstanding prehearing practice.603 In sharp contrast, 

under the Final Rule, employers now 

must post and distribute an initial 

election notice, more often than not 

obtain counsel,604 interview managers 


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605Preparation of the mandatory written 

Statement of Position obviously does not relieve an 

employer of the need to prepare witnesses to testify 

on issues that it seeks to contest at a hearing. 

Indeed, in light of the Final Rule’s encouragement 

of offers of proof preliminary to or as a substitute 

for testimony, an employer may have to take the 

further substantial pre-hearing step of taking sworn 

witness affidavits for submission in support of 

potential offers relative to any unit eligibility and 

inclusion issues that it can anticipate. 

606 It is true that, under the Final Rule, the 

Statement of Position requirement will apply to 

unions in those cases when an employer files an 

RM election petition or when an individual 

employee files a petition seeking to decertify an 

incumbent union. The primary impact of the Final 

Rule, however, relates to initial representation 

elections where the union is the petitioning party, 

and in such cases, absent another union’s 

intervention, the employer is the only party 

required to submit a comprehensive pre-election 

Statement of Position, and the employer is 

foreclosed from later raising any contentions or 

introducing evidence regarding mandatory preelection issues not identified in the Statement of 

Position. 

607This would include Section 9(b)(3) guard/

nonguard labor organization issues. 

608See Sonotone Corp., 90 NLRB 1236 (1950). 

and others,605 fill out a new mandatory 

Statement of Position form within 7 

days, prepare for a hearing on issues 

that it may still contest, and negotiate 

the possibility of a stipulated election 

agreement. This timing might work out 

in some instances, but it is predictable 

that employers in other circumstances— 

not falling within the Final Rule’s 

ambiguous category of ‘‘special’’ or 

‘‘exceptional’’—will legitimately require 

more time. For example, concepts of 

appropriate unit or statutory 

supervisory status are not readily 

understood by laypersons and in any 

event may require significant factual 

investigation before the required 

position can be taken. In such 

situations, the majority is wrong to 

assert that employers ‘‘already know[] 

all those things.’’ So even if an 8-day 

deadline would be a best practice for 

uniform application under current prehearing procedures, there is no basis for 

declaring it in advance to be a best 

practice under the amended procedures. 

An even greater shortcoming of the 

Final Rule in this respect, however, is 

its failure to recognize that the practice 

of regional flexibility is the best 

practice, far preferable to a uniform 

restrictive standard in the timing of a 

hearing. There is no evidence in the 

considerable record before us that the 

Board’s extremely competent regional 

personnel are manipulated and conned 

by employers into postponing hearings 

for unsound reasons. Regions currently 

have the flexibility to vary the starting 

time of a hearing on a case-by-case basis 

for good cause shown and often in 

pursuit of the desired outcome of 

concluding an election agreement before 

parties and witnesses are required to go 

through the expense and time of 

attending a hearing. Parties and 

witnesses will almost invariably have to 

do so under the Final Rule, unless such 

an agreement can be reached in 8 days. 

Inasmuch as the Final Rule relies so 

heavily in other respects on the 

expertise of regional personnel, it is 

inconsistent and arbitrary that the same 

confidence is not accorded to regions in 

the setting of hearing dates and the 

corollary adjustment of the date for 

submission of the Statement of Position. 

(b) Further Limitations on the 

Litigation of Pre-Election Issues—The 

Final Rule exacerbates inappropriate 

limitations on the scope of pre-election 

hearings by precluding the introduction 

of evidence on issues not initially raised 

in a Statement of Position, by permitting 

the exclusion of evidence pertaining to 

as much as 20 percent of a bargaining 

unit, and by encouraging the 

substitution of offers of proof for 

testimony. As noted above, we believe 

the Final Rule contravenes the clear 

intent of Congress by eliminating the 

statutory requirement of an evidentiary 

hearing regarding contested voter 

eligibility and inclusion issues, among 

other things. These problems are 

compounded by the Final Rule’s 

arbitrary limit on the introduction of 

testimony on those eligibility and 

inclusion issues as well as its 

imposition of formalistic barriers to the 

litigation even of those issues which the 

Final Rule recognizes as mandatory 

subjects for pre-election hearing. 

• Statements of Position. The Rule 

requires all non-petitioning parties to 

arrange for preparation and submission 

of a comprehensive written Statement of 

Position no later than 7 days after the 

notice of petition absent ill-defined 

‘‘special circumstances.’’ While this 

requirement applies to all 

representation-case proceedings, the 

problems it presents arise most 

frequently in the context of initial 

representation (RC) elections, where 

only the employer (as the nonpetitioning party) bears the burden to 

identify issues it wishes to contest in a 

written statement of position.606

Thus, the Final Rule states that, when 

‘‘the petition is filed by a labor 

organization in an initial organizing 

context,’’ the ‘‘employer’s Statement of 

Position’’ must address all of the 

following items, among other things: (a) 

‘‘whether the employer agrees that the 

Board has jurisdiction over it’’ (and 

‘‘commerce information’’ must be 

provided); (b) ‘‘whether the employer 

agrees that the proposed unit is 

appropriate,’’ and ‘‘if the employer does 

not so agree,’’ what is ‘‘the basis for its 

contention that the proposed unit is 

inappropriate’’; (c) ‘‘the classifications, 

locations, or other employee groupings 

that must be added to, or excluded from, 

the proposed unit to make it an 

appropriate unit’’; (d) ‘‘any individuals 

whose eligibility to vote the employer 

intends to contest at the pre-election 

hearing and the basis of each such 

contention’’; (e) ‘‘any election bar’’ 

(referring to complex Board doctrines 

that preclude the processing of 

representation petitions in various 

circumstances); (f) ‘‘the eligibility 

period’’ (referring to the time frame in 

which bargaining unit members may be 

employed in order to be eligible voters); 

(g) ‘‘the type, dates, times, and location 

of the election’’; (h) ‘‘an alphabetized 

list of the full names, work locations, 

shifts, and job classifications of all 

individuals in the proposed unit’’ 

(emphasis added); (i) ‘‘an alphabetized 

list’’ of the ‘‘full names, work locations, 

shifts, and job classifications’’ for ‘‘all 

individuals that the employer contends 

must be added to the proposed unit to 

make it an appropriate unit’’ (if the 

employer contends the proposed unit is 

not appropriate) (emphasis added); (j) 

‘‘those individuals, if any, whom it 

believes must be excluded from the 

proposed unit to make it an appropriate 

unit’’ (emphasis added); and ‘‘any other 

issues it intends to raise at hearing.’’ 

Final Rule, Part VI B, supra. 

It is worth pausing to appreciate just 

what the foregoing means in practice. 

Under the Final Rule, the employer 

Statement of Position must address all 

questions of statutory and discretionary 

jurisdiction, labor organization 

status,607 contract bar and other election 

bars, appropriate unit, multi-facility and 

multi-employer unit scope, the statutory 

employee status of individuals 

constituting more than 20 percent of the 

petitioned-for unit, the use of eligibility 

standards other than the normal 

standard, whether the employer’s 

business is about to close or whether it 

is expanding and does not yet have a 

substantial and representative employee 

complement, whether the employer is a 

seasonal operation, and whether there 

are any professional employees in the 

unit who must be accorded their 

statutory electoral option.608 The Final 

Rule also requires an employer to 

include in the Statement of Position its 

position on eligibility and inclusion 

issues it wishes to contest at the preelection stage, the newly required initial 

employees lists, and its preferences on 

election details. An employer’s failure 

to timely file a statement will preclude 

it from litigating any issue that must be 


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609One of the documents is the current Form 

4812, a single page document that summarily 

notifies parties of certain election procedures. This 

document will have to be revised to reflect the Final 

Rule’s amendments, and, as a matter of 

fundamental fairness, it must be expanded to 

include sufficient explanation of the issues that 

must be raised in a Statement of Position. 

610As noted previously, the Act and its legislative 

history indicate that Congress clearly intended that 

the pre-election hearing would include evidence 

regarding voter eligibility and unit inclusion issues, 

which is the only means by which these issues can 

be afforded meaningful review by the regional 

director and, in the event of a pre-election request 

for review, by Board members. Because the Final 

Rule provides that evidence regarding such issues 

should be excluded until after the election, the Rule 

provides that there would not be a waiver of postelection review at least as to these issues based on 

the failure to include them in the pre-hearing 

Statement of Position. See Final Rule, part VI. D, 

supra (notwithstanding failure to submit Statement 

of Position, ‘‘no party is precluded from contesting 

or presenting evidence relevant to the Board’s 

statutory jurisdiction’’ and ‘‘no party is precluded 

from challenging the eligibility of any voter during 

the election on the ground that the voter’s eligibility 

or inclusion was not contested at the pre-election 

hearing’’). 

contested at the pre-election stage. Even 

if a statement properly raising some 

litigable issues is timely filed, an 

employer cannot raise any additional 

issue in the hearing unless permitted to 

do so by the regional director for good 

cause. 

By contrast, the Final Rule requires 

only that a petitioner provide some 

minimal information in the initial 

election petition and make an oral 

response at the hearing to the issues 

properly raised in a written Statement of 

Position from non-petitioning parties. 

The petitioner would be precluded from 

introducing evidence by failing to make 

a response to an issue, but it need not 

respond in writing or in advance of the 

hearing. The Final Rule also permits a 

petitioner to sua sponte amend its 

petition during the hearing. 

We recognize that the information 

required by the Final Rule has routinely 

been sought in conversations between 

regional personnel and parties after a 

petition has been filed, and that the 

exchange of information has the salutary 

purpose of encouraging election 

agreements in lieu of a hearing or to 

refine and limit the areas of dispute to 

be explored in a hearing. However, 

parties have not previously been 

required to raise issues prior to the 

beginning of a hearing, there has been 

no forfeiture of the right to litigate based 

on the failure to do so, and the 

extremely onerous pleading-type 

standard governing amendments— 

applied only to the employer, and 

permitting amendments only for good 

cause—is completely foreign to Board 

litigation. Indeed, in this regard, we 

believe the Rule’s demanding standard 

is substantially more restrictive than the 

pleading requirements applied in formal 

adversarial unfair labor practice 

proceedings, in which the Board freely 

permits amendments to the complaint 

through the conclusion of the hearing. 

Further, an administrative law judge 

may even permit the litigation of 

issues—nowhere mentioned in the 

pleadings—if the issue is closely 

connected to complaint allegations, and 

the Board will decide that issue if it 

agrees that it is closely connected and 

has been fully litigated. Pergament 

United Sales, 296 NLRB 333, 334 (1989), 

enfd. 920 F.2d 130 (2d Cir. 1990). 

The mandatory written statement 

requirement, coupled with the 

preclusion of litigation on issues that 

are not raised in the statement (which 

must be filed just 7 days from the notice 

of a petition) are quantitatively and 

qualitatively different from the current 

longstanding practices. The Final Rule 

treats the employer Statement of 

Position like a formal pleading, binding 

on the employer as both admission and 

limitation and virtually precluding 

subsequent changes in position, and 

subject to restrictive standards regarding 

amendment. The Final Rule provides no 

rational basis for the imposition of such 

one-sided and onerous requirements 

with such severe consequences 

attendant on any failure to meet them. 

Consider again the above litany of 

issues that must be raised in a timely 

written statement or the employer will 

be precluded from raising them. Many 

employers would have little knowledge 

of these issues and how they may apply 

to business operations. Employers will 

have little choice but to secure 

assistance from labor counsel or other 

consultants who, even with specialized 

expertise, may not be able to identify 

relevant issues without a reasonable 

period to review the employer’s 

business operations. Putting aside the 

difficulty of preparing for a hearing, it 

is clearly unrealistic and unfair to 

impose an inflexible 7-day deadline for 

the start-to-finish preparation and 

submission of a comprehensive legal 

document, to which the Board will 

apply a rigorous ‘‘pleading’’ standard 

that will not permit later amendment, 

except in narrow circumstances, even as 

to concededly relevant issues that were 

fully and fairly litigated at the hearing. 

Meanwhile, the employer must also 

busy itself preparing the required 

employee lists and a written statement 

of preferences on election details that 

may be difficult to define in advance of 

resolving any appropriate unit or unit 

scope issues. 

What does the petitioning union have 

to do during this period? Other than 

filing the petition with minimum details 

and simultaneously serving the petition 

and accompanying documents on the 

employer,609 the union has no 

mandatory pleading obligation, nor are 

any selective ‘‘amendment’’ standards 

applicable to the union. The union’s 

views on potential issues and 

preferences on election details may be 

orally solicited, but it does not have to 

provide them. Even if the union does 

not orally state at the hearing a position 

responding to issues raised by the 

employer in its written statement, the 

Final Rule does not preclude it from 

introducing evidence in response to 

evidence presented by the employer as 

to those issues, and it permits the union 

to amend the petition during the hearing 

sua sponte, even as to an issue not 

raised by the the employer. In other 

words, while the existing voluntary and 

informal regional practices in obtaining 

pre-hearing information from the 

petitioning union remain essentially the 

same, those practices are transformed 

into binding legalistic requirements for 

the employer, with significant adverse 

consequences for any failure to comply 

by the time the hearing opens. 

Under the Final Rule, there is no 

question about the preclusive effect of 

omitting from the Statement of Position 

anything that must still be addressed in 

a pre-election hearing.610 Here, the Final 

Rule provides: 

• A party generally may not raise any 

issue, present evidence relating to any issue, 

cross-examine any witness concerning any 

issue, and present argument concerning any 

issue that the party failed to raise in its 

timely Statement of Position or failed to 

place in dispute in response to another 

party’s Statement of Position or response. 

• If a party contends that the proposed 

unit is not appropriate in its Statement of 

Position but fails to specify the 

classifications, locations or other employee 

groupings that must be added to, or excluded 

from, the proposed unit to make it an 

appropriate unit, the party may not raise any 

issue or present evidence or argument about 

the appropriateness of the unit. 

• [I]f the employer fails to timely furnish 

the lists of employees required to be included 

as part of the Statement of Position, the 

employer also may not contest the 

appropriateness of the proposed unit at any 

time and may not contest the eligibility or 

inclusion of any individuals at the preelection hearing. 

The Final Rule plainly intends to 

strictly apply these waiver provisions, 

to the detriment of any employer whose 

Statement of Position fails to describe 

specific issues and contentions with 

sufficient particularity. For this reason, 

the Final Rule provides little comfort— 

and no adequate degree of fairness— 

when it states that ‘‘the regional director 


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611See, e.g., Solar International Shipping Agency, 

Inc., 327 NLRB 369, 370 n.2 (1998) (‘‘[A] hearing 

in a representation proceeding ‘is nonadversary in 

character [and] is part of the investigation in which 

the primary interest of the Board’s agents is to 

insure that the record contains as full a statement 

of the pertinent facts as may be necessary for 

determination of the case.’ Sec. 101.20(c) of the 

Board’s Statements of Procedure.’’). 

612See Pergament United Sales, supra, 296 NLRB 

at 334. 

613Notably, this articulation of a balancing test 

excludes any consideration of employer interests. 

That is consistent with the views expressed by 

some academicians and union advocates who 

maintain that—contrary to statutory language, clear 

Congressional intent, and well-established 

precedent and practice—employers should not have 

the status of a party in a representation election 

proceeding. See generally Craig Becker, Democracy 

in the Workplace: Union Representation Elections 

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

(1992–93). 

has discretion to direct the receipt of 

evidence concerning any issue, such as 

the appropriateness of the proposed 

unit, as to which the director 

determines that record evidence is 

necessary.’’ If anything, this amplifies 

that the Rule’s most onerous 

requirements are only applied to 

employers, in contrast to the ability of 

regional directors and other parties to 

address whatever election issues they 

deem relevant. Although the Rule also 

gives regional directors the ‘‘discretion’’ 

to permit parties to ‘‘amend’’ the 

Statement of Position, the Rule permits 

such requests only if made ‘‘in a timely 

manner,’’ such amendments will be 

granted only ‘‘for good cause,’’ and if an 

amendment is permitted, then all ‘‘other 

parties’’ are then given the opportunity 

to ‘‘respond to each amended position.’’ 

Here as well, the employer is the only 

party constrained by these onerous 

requirements, which, as noted above, 

are more restrictive than the liberal 

pleading requirements applicable to the 

Board’s General Counsel in formal 

unfair labor practice proceedings. Such 

formal and restrictive pleading 

requirements are not only 

unprecedented in Board proceedings, 

they are especially unwarranted in 

representation cases, which have always 

been regarded as nonadversarial in 

nature.611

The Final Rule fails to provide any 

reasonable justification for its failure to 

require the same or similar written 

Statement of Position from the 

petitioning union in advance of the 

hearing. In the response to our dissent, 

the majority states that the position 

statement does not unfairly burden 

employers because petitioners are 

already required to state their position 

in the petition itself. But they draw a 

false equivalency. For example, the 

petition must only describe a unit, state 

that the unit is appropriate, provide 

some preferred election details, and 

identify perfunctory address and agent 

information. In contrast with what the 

employer is required to submit in the 

Statement of Position, a petitioning 

union is not required to state ‘‘the basis 

for its contention that the proposed 

unit’’ is appropriate; the union is not 

required to state any position regarding 

other matters likely to be in dispute— 

regardless of how foreseeable they may 

be—relating to included or excluded 

‘‘classifications, locations, or other 

employee groupings,’’ ‘‘individuals 

whose eligibility to vote’’ may 

reasonably be in question, or the ‘‘basis 

for each such contention’’; nor is the 

union required to describe ‘‘any other 

issues it intends to raise at hearing.’’ As 

to these and other matters, no 

preclusion attaches to the information 

the union provides or does not provide 

in advance of the pre-election hearing. 

Further, the petitioner is permitted to 

amend the petition during the hearing 

without any showing of good cause. 

Moreover, although the Final Rule 

provides that a petitioner may not 

litigate any issue that it failed to ‘‘place 

in dispute’’ in response to a Statement 

of Position, the burden of placing an 

issue in dispute for the petitioner is 

satisfied by an oral statement or 

description at the hearing, and not 

before. This is obviously far less 

onerous than the burden placed 

primarily on employers to contest issues 

in a formal written statement of position 

submitted prior to the hearing. This 

inequality of treatment is yet an 

additional fundamental deficiency that 

makes the Final Rule impermissibly 

arbitrary. Moreover, it is a denial of due 

process to selectively make such 

requirements applicable only to one 

party in the proceedings and not to 

other parties. 

We believe the Statement of Position 

and its preclusive effects should at least 

be no more onerous than the standards 

applied by the Board to the amendment 

of unfair labor practice complaint 

allegations during a more formal 

adversarial hearing,612 and to the 

amendment of the petition itself in the 

pre-election hearing, so that a party 

retains the right to address issues not 

specifically identified in the Statement 

of Position that are responsive to 

another party’s contentions and 

presentation of evidence. The absence of 

such provisions strongly undermines 

any suggestion that the Final Rule treats 

parties and important election issues in 

an even-handed manner. 

• Limiting ‘‘Voter Eligibility’’ and 

Unit Inclusion Evidence. The Final Rule 

provides for hearing officers to exclude 

evidence regarding eligibility and 

inclusion issues involving up to 20 

percent of the employees in a 

petitioned-for unit, absent a direction to 

the contrary from the regional director, 

which would normally defer any 

evidence regarding such voter eligibility 

issues until following the election. 

There is no judicial or Board 

precedent for this exclusionary practice. 

All cases cited by the majority voice 

general approval of the Board’s 

discretion to defer deciding eligibility 

and inclusion issues for a certain 

percentage of the unit. It has never been 

the Board’s practice to defer the taking 

of evidence regarding such issues, if 

validly introduced in a pre-election 

hearing, which then permits a 

determination (by regional directors and 

the Board) of whether they must be 

resolved prior to the election. The 

majority reasons that if an issue’s 

resolution is potentially going to be 

deferred, it is ‘‘administratively 

irrational’’ and a waste of time and 

expense to permit a party to litigate it. 

Further, they mistakenly declare that 

the 20 percent exclusionary rule is the 

applicable historical norm in Board 

practice and strikes an administratively 

appropriate balance between the public 

interest in prompt resolution of 

questions concerning representation (in 

other words, the majority’s interest in 

holding an election ‘‘as soon as 

practicable’’) and employees’ interests 

in knowing who would be in the unit 

should they choose representation.613

As asserted proof of the reasonableness 

of this standard, our colleagues rely on 

the fact that ‘‘more than 70% of 

elections in FY 2013 were decided by a 

margin greater than 20% of all unit 

employees, suggesting that deferral of 

up to 20% of potential voters in those 

cases (and thus allowing up to 20% of 

the potential bargaining unit to vote via 

challenged ballots, segregated from their 

coworkers’ ballots) would not have 

compromised the Board’s ability to 

immediately determine election results 

in the vast majority of cases.’’ 

The majority has at least modified the 

NPRM proposal that the 20 percent 

exclusionary rule be mandatory. 

Regional directors will have the 

discretion to defer eligibility and 

inclusion issues for up to 20 percent of 

a unit, but they are not obligated to do 

so. We credit our colleagues for this 

modification, but any flexibility is 

clearly undermined by our colleagues’ 

additional statement that they ‘‘strongly 

believe that regional directors’ 

discretion would be exercised wisely if 


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614NLRB v. S.W. Evans & Son, 181 F.2d 427, 431 

(3d Cir. 1950). 

615The 30 percent figure the majority cites is for 

all elections held in FY 2013. We do not know what 

the percentage was for the relevant subset of cases 

in which there were contested pre-election issues. 

Our colleagues further confound with their 

statistical analysis by contending that, because a 

party favoring the electoral result by any vote 

margin will not pursue litigation of 

nondeterminative challenges, this will eliminate 

‘‘about half of the remaining litigation, even in 

those cases where the vote margin is narrow. Thus, 

at most, only 15% of deferred issues will ever have 

to be addressed.’’ Valid bases for this statistical 

assumption elude us. We do not know what 

percentage of elections involve nondeterminative 

challenges filed by a party favoring the election 

result. We do know that petitioning unions 

annually prevail in far more than 50 percent of 

initial organizing elections, so there is no basis for 

assuming an equal 50–50 mooting of challenges 

based on election results. 

616Section 9(b) (emphasis added). 

617These courts have reasoned that a difference 

of this magnitude impermissibly interferes with 

employee free choice because those who vote in the 

election do not have an accurate understanding of 

the bargaining relationship they must approve or 

reject. See NLRB v. Beverly Health & Rehab. Servs., 

Inc., 120 F.3d 262 (4th Cir. 1997) (unpub., per 

curiam), NLRB v. Parsons School of Design, 793 

F.2d 503 (2d Cir. 1986), NLRB v. Lorimar 

Productions, Inc., 771 F.2d 1294 (9th Cir.1985), and 

Hamilton Test Systems, New York, Inc. v. NLRB, 

743 F.2d 136 (2d Cir. 1984). As will be discussed 

later, we agree that the courts’ reasoning presents 

a compelling rational argument against the 20 

percent pre-election exclusionary rule as well, but 

the point we make here is that the cited Board 

precedent is inapposite to the issue of an historical 

practice. 

regional directors typically chose not to 

expend resources on pre-election 

eligibility and inclusion issues 

amounting to less than 20% of the 

proposed unit.’’ It seems likely, then, 

that there may be no practical difference 

between the NPRM’s ‘‘hard’’ 20 percent 

rule and the Final Rule’s nominally 

discretionary standard. 

In our view, the majority’s rationale 

for excluding and deferring evidence 

regarding voter eligibility until after the 

election—which would effectively 

ignore the interests of up to 20 percent 

of voters—is beset with irremediable 

problems. 

First, it is unreasonable to conclude 

that hearing officers or regional 

directors should exclude evidence 

regarding who can vote or be part of a 

bargaining unit—affecting up to 20 

percent of the unit—when nobody can 

determine prospectively how the 

exclusion may affect the future election. 

The Third Circuit long ago cogently 

observed that ‘‘the problem of 

substantiality, in our view, is one to be 

determined prospectively’’ because 

evidentiary rulings are not made from 

the ‘‘vantage point of hindsight.’’ 614 At 

the pre-election hearing stage, a regional 

director will not, absent mystical 

powers of clairvoyance, have any idea 

what the final vote margin will be in an 

election and whether particular 

eligibility and inclusion issues would 

not have an effect on the outcome. 

Indeed, under the Final Rule, the 

regional director will now necessarily 

be making the exclusionary ruling on a 

purely speculative basis, without the 

benefit of any actual evidence by which 

to judge the importance of contested 

issues. 

Second, the majority’s 20 percent 

standard is hopelessly arbitrary. The 

majority maintains it is acceptable to 

disregard and exclude evidence from 

the pre-election hearing regarding up to 

20 percent of unit employees because— 

based on 2013 statistics—this would 

adversely affect only three of every 10 

elections conducted. Even if one could 

accept the accuracy of this figure as a 

recurring annual norm,615 it is not 

rational to conclude that adversely 

affecting 30 percent of elections is 

acceptable or reasonable, particularly 

since the Act requires the Board ‘‘in 

each case’’ to decide unit issues in order 

to ‘‘assure to employees the fullest 

freedom in exercising the rights 

guaranteed by [the] Act.’’ 616 The 

majority’s analysis also likely 

understates the scale of potential risk 

because it fails to consider the very real 

possibility that statutory eligibility 

issues will frequently relate as well to 

election objections, particularly when 

the alleged supervisory status of an 

individual or group of individuals is at 

issue. Consequently, the mere fact that 

an election vote margin exceeds 20 

percent is no guarantee that the 

eligibility or inclusion issue will not 

have to be litigated and decided at the 

post-election stage. 

Third, the 20 percent rule has not 

been the Board’s historical standard for 

deferring resolution of pre-hearing 

eligibility and inclusion issues to the 

post-election stage of proceedings. In a 

handful of cases, the Board has held that 

it did not need to set aside an election 

based on post-election determinations 

resulting in as much as a 20 percent 

variation in unit size from that which 

was contemplated by the pre-election 

litigation and resolution of issues. 

However, several courts of appeals have 

invalidated elections based on these 

types of variations in unit size based on 

post-election Board rulings.617

The Board’s actual historical standard 

has been not to defer decision on 

eligibility and inclusion issues if they 

potentially involve more than 

approximately 10 percent of a unit. 

Even this more limited deferral standard 

has not been applied as a general or per 

se rule. Moreover, although the Board 

has sometimes deferred making a 

decision on certain eligibility and 

inclusion issues that involve no more 

than 10 percent of a unit, such a 

practice has never been inflexibly 

applied, and—when the Board has 

deferred rendering a decision resolving 

such issues—it has always been with the 

benefit of a pre-hearing evidentiary 

record that includes evidence regarding 

these issues. Only with such an 

evidentiary record can regional directors 

and the Board determine whether and 

when these issues warrant resolution 

prior to the election and, if so, whether 

to stay the election until those issues 

have been resolved. See also notes 570 

and 581, supra. 

Fourth, we believe our colleagues 

clearly exaggerate the ‘‘specter’’ that 

employers may use the potential delay 

associated with a pre-election hearing to 

force unions to enter into stipulated 

election agreements. Here, our 

colleagues rely on anecdotal claims by 

some commenters that employers 

generally contest pre-election issues as 

a matter of gamesmanship and for the 

sole purpose of delay, rather than out of 

any genuine concern that the unit status 

of an individual or group of individuals 

be resolved at this early stage. However, 

the majority ignores the fact that the 

Board itself encourages all parties to 

enter into stipulated election 

agreements, and the Board has received 

comments from all sides that favor the 

high number of stipulated elections that 

have resulted from the Board’s current 

procedures. 

It cannot be the prospect of delay 

from a pre-election hearing itself that so 

compels unions to accept unwanted 

terms in an election agreement. A 

hearing conducted under current full 

litigation practices most often lasts only 

1 day, and very rarely exceeds 3 days. 

Further, with the Final Rule’s 

elimination of both the 7-day period for 

filing post-hearing briefs and the 

automatic 25-day waiting period to 

permit pre-election requests for review, 

the prospect of that cumulative delay 

will no longer ‘‘loom’’ over the 

negotiation of a pre-hearing election 

agreement in all cases, if it ever did. In 

any event, the deterrent effect of a 20 

percent exclusionary rule is illusory. 

Employers and their legal counsel (or 

unions and theirs) who wish to ‘‘extort’’ 

concessions in an election agreement 

and/or to delay the election date can 

continue to do so simply by contesting 

issues on questions concerning 

representation that must still be litigated 

at a pre-election hearing. 

We can readily agree that employers 

should not raise the possibility of 

frivolous pre-election litigation to 


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618We note that the reply comment of former 

Region 7 Field Examiner Michael D. Pearson 

describes a ‘‘not uncommon’’ scenario of employer 

tactics that allegedly force a petitioning union to 

concede to ‘‘a significantly delayed election date in 

order to secure an election agreement.’’ Pearson 

reply statement pp. 1–3. At several points in the 

Final Rule, our colleagues extrapolate from Mr. 

Pearson’s multiple statements and testimony as to 

his regional experience, which ended in 2005, to 

generalize about representation casehandling 

practices nationwide. We do not believe this 

evidence is entitled to such weight. Among other 

things, it is difficult to reconcile with the facts 

concerning the Board’s success rate in conducting 

elections in a median of 38 days. 

619Excelsior Underwear, supra, 156 NLRB at 

1243. 

620NLRB v. Lorimar Productions, supra, 771 F.2d 

at 1302. Our colleagues are simply wrong in 

contending that the court’s view in this case, and 

in cases cited above at note 83, represent a minority 

view among the courts of appeals. The decisions 

cited by the majority decline to set aside elections 

based on the facts of a particular case, but none of 

them disavow the fundamental principle that 

information regarding unit scope and 

composition—i.e., understanding what other 

employees will be included or excluded—is 

fundamentally important when employees decide 

what vote to cast in a representation election. 621 77 FR at 25566. 

622 75 Am. Jur. 2d Trial Section 353 (2014) (‘‘A 

proffer is not evidence, ipso facto.’’) (citing Crawley 

v. Ford, 43 Va. App. 308, 316 (2004)); United States 

v. Reed, 114 F.3d 1067, 1070 (10th Cir.1997) (same). 

See also cases cited in note 625, infra. 

623The Federal Rules of Evidence (FRE) provide 

for the admission of all ‘‘relevant’’ evidence, FRE 

402, and evidence is relevant whenever it ‘‘has any 

tendency to make a fact more or less probable than 

it would be without the evidence’’ and ‘‘the fact is 

of consequence in determining the action.’’ 

However, relevant evidence can be excluded, based 

on an offer of proof, if it would be cumulative. 

Cedar Hill Hardware and Construction Supply, Inc. 

v. Insurance Corp. of Hanover, 563 F.3d 329, 353 

(8th Cir. 2009) (‘‘Cedar Hill’s offer of proof, if 

anything, showed that the court needed to impose 

limits to curtail the presentation of cumulative 

evidence.’’); United States v. Stokes, 506 F.2d 771, 

777 (5th Cir. 1975) (exclusion of testimony not 

prejudicial where the offer of proof showed the 

evidence would have been cumulative). 

624FRE 103(a)(2) (a party may claim error based 

on the exclusion of evidence, in part, if the party 

‘‘informs the court of its substance by an offer of 

proof, unless the substance was apparent from the 

context’’). See also Kline v. City of Kansas City, Fire 

Department, 175 F.3d 660, 665 (8th Cir. 1999) (‘‘An 

offer of proof serves dual purposes,’’ including ‘‘to 

inform the trial court * * * of the substance of the 

excluded evidence’’ and ‘‘to provide an appellate 

court with a record allowing it to determine 

whether the exclusion was erroneous.’’) (citation 

and internal quotation marks omitted); Polys v. 

Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1406– 

07 (10th Cir. 1991) (offers of proof are designed ‘‘to 

allow the trial judge to make an informed 

evidentiary ruling’’ and ‘‘to create a clear record 

that an appellate court can review to ‘determine 

whether there was reversible error in excluding the 

[testimony]’ ’’) (citation omitted). 

leverage their position in bargaining for 

an election agreement, but the majority 

has failed utterly to show by objective 

evidence that this conduct routinely 

takes place.618 Further, we have great 

confidence that regional personnel 

currently take an active role in postpetition negotiations and are fully 

capable of advising employers that 

frivolous issues will be swiftly dealt 

with as such. Election agreements are, 

after all, absolutely essential to the 

achievement of regional success in 

expeditiously processing petitions. 

Fifth, the majority improperly 

disregards the fact that the early 

resolution of certain eligibility and 

inclusion issues is highly desirable and 

often extremely important. In this 

regard, our colleagues’ view is contrary 

to common sense and it conflicts with 

longstanding Board and judicial 

precedent. The establishment of the 

Excelsior list requirement, which the 

Final Rule expands, is based on the 

fundamental proposition that 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.’’ 619 Further, as 

stated by the Ninth Circuit, while the 

need to avoid unnecessary delay in the 

electoral process is undisputedly 

important, ‘‘it is at least of equal 

importance that employees be afforded 

the opportunity to cast informed votes 

on the unit certified.’’ 620 It is plainly 

unreasonable to require employees to 

vote in an election, conducted on an 

extremely accelerated timetable, before 

the Board even considers evidence 

regarding (i) who is eligible to vote; (ii) 

whose votes will be counted, and whose 

will not; and (iii) what employees will 

be part of the unit—and thereby affected 

by the election—and what employees 

will not. In this regard, our colleagues 

also fail to appreciate that uncertainty as 

to these fundamental issues also 

adversely affects employees’ informed 

choice in the election, and will 

unnecessarily create greater confusion 

and a potential need to set aside the 

election because parties will not know 

(i) what employees are non-unit 

supervisors who can act as agents of the 

employer and who cannot lawfully take 

certain actions for or against union 

representation; and (ii) what individuals 

are unit employees who, as eligible 

voters, can freely participate in 

campaigning without being subject to 

restrictions applicable to supervisors. 

Our colleagues’ position on this point is 

no different from that of the Board 

majority that voted for the vacated 

December 2011 rule, as to which 

dissenting Member Hayes correctly 

observed: 

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.621

• Offers of Proof. The Final Rule gives 

hearing officers the discretion to require 

offers of proof on any issue, including 

those that must still be litigated under 

the majority’s impermissibly restrictive 

interpretation of the scope of a preelection hearing. The record fails to 

show that hearing officers have often 

required offers of proof under existing 

practices, and there is good reason for 

that. 

We begin with the language of the 

Act. Section 9(c)(1) requires the Board 

to conduct an ‘‘appropriate hearing’’ 

before any election, and it is well 

established that one of the primary 

purposes of the hearing is to create a 

record—consisting of evidence (i.e., oral 

testimony under oath and documents 

admitted into the record)—which 

provides the basis for decisions by 

regional directors, the Board, and 

possibly courts of appeals. See North 

Manchester Foundry, Inc., 328 NLRB 

372 (1999). 

An ‘‘offer of proof’’ is not evidence.622

Rather, when an advocate (usually an 

attorney) makes an ‘‘offer of proof,’’ this 

is an informal short-form description of 

potential evidence. For example, an 

‘‘offer of proof’’ can be requested by a 

judge or hearing officer who believes the 

potential evidence will be irrelevant or 

cumulative—i.e., not logically related to 

a contested material issue or clearly 

duplicative of evidence already in the 

record—and if the ‘‘offer of proof’’ 

reveals that the potential evidence 

would be irrelevant or cumulative, the 

potential ‘‘evidence’’ is not 

permitted.623 When evidence is ruled 

inadmissible, a party can also make an 

‘‘offer of proof,’’ which permits the 

evidentiary ruling to be reviewed on 

appeal.624 In all cases, the ‘‘offer of 

proof’’ describes evidence that is not 

part of the ‘‘record,’’ which means the 

described matters—since they have been 

excluded from the record—cannot be 


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625 Libertarian Party of Ohio v. Husted, 751 F.3d 

403, 416 (6th Cir. 2014) (‘‘proffer’’ by party’s 

attorney ‘‘is not evidence’’); United States v. Wade, 

120 Fed. Appx. 638, 640–41 (7th Cir. 2005) 

(‘‘counsel’s proffer was not evidence’’); Campania 

Mgmt. Co. v. Rooks, Pitts, & Poust, 290 F.3d 843, 

853 (7th Cir. 2002) (‘‘[I]t is universally known that 

statements of attorneys are not evidence.’’); United 

States v. Reed, 114 F.3d 1067 (10th Cir. 1997) 

(reversing district court ruling that was based on 

party’s ‘‘proffer of its evidence,’’ where the ‘‘proffer 

was merely that, and in summary form as well,’’ 

resulting in remand because court’s decision 

‘‘should be based only on the facts as they emerge 

at trial’’); Fulton v. L&N Consultants, Inc., 715 F.2d 

1413, 1416–21 (10th Cir. 1982) (remand required to 

admit relevant evidence where party’s offer of proof 

revealed that the evidence was improperly 

excluded). Cf. Luce v. United States, 469 U.S. 38 

(1984), where the Supreme Court stated that 

appellate review is ‘‘handicapped’’—even when an 

appeal involves evidentiary rulings—without a 

‘‘factual context,’’ which requires the court to know 

‘‘the precise nature of the defendant’s testimony, 

which is unknowable when * * * the defendant 

does not testify.’’ Id. at 41 (footnote omitted). The 

Court differentiated between admitted evidence and 

a ‘‘a proffer of testimony’’ because ‘‘trial testimony 

could, for any number of reasons, differ from the 

proffer.’’ Id. at 41 n.5. 626Respectfully, we must point out that our 

colleagues are simply wrong when they state, in 

response to our dissent, that the Final Rule does 

‘‘not treat offers of proof as ‘evidence’ in decisions 

‘on the merits.’ ’’ The Final Rule explicitly makes 

offers of proof the sole basis for deciding whether 

many issues have merit, whether the facts warrant 

pre-election litigation, and whether the evidence if 

admitted might warrant pre-election resolution. See, 

e.g., Final Rule § 102.66(c) (‘‘If the regional director 

determines that the evidence described in an offer 

of proof is insufficient to sustain the proponent’s 

position, the evidence shall not be received.’’) 

(emphasis added); § 102.69(c)(1)(ii) (the regional 

director shall deny post-hearing objections without 

a hearing if ‘‘the evidence described in the 

accompanying offer of proof would not constitute 

grounds for setting aside the election’’) (emphasis 

added). 

As President Lincoln is reputed to have said, 

‘‘How many legs does a dog have if you call the tail 

a leg? Four. Calling a tail a leg doesn’t make it a 

leg.’’ Calling an offer of proof part of the ‘‘record’’ 

does not make it record evidence. And when an 

offer of proof is made the sole basis for deciding the 

merits (or deciding whether there will even be 

litigation), the offer of proof is being treated as a 

substitute for evidence. This infirmity is not cured 

by the possibility that, infrequently, a regional 

director or the Board might consider an offer of 

proof for the limited, proper purpose of determining 

whether evidence has wrongly been excluded, 

which can result in a remand and reopening of the 

record. Indeed, the fact that the Rule predictably 

will also cause an increase the number of remands 

and resulting delays, based on the improper 

exclusion of relevant evidence, is another reason 

the Final Rule should not be adopted. 

627Section 9(c)(1). There is little question that the 

Final Rule contemplates hearing officers will 

substitute ‘‘offers of proof’’ for record evidence. 

How else is one to read the footnote comment that 

‘‘we would expect hearing officers to typically 

require an offer of proof from an employer arguing 

against the appropriateness of a unit considered 

presumptively appropriate under Board caselaw. If 

the employer’s proffered evidence would be 

insufficient to rebut the presumption, then it would 

be appropriate for the regional director to foreclose 

receipt of the evidence without regard to the 

proposed 20% rule.’’ 

628Specialty Healthcare and Rehabilitation 

Center of Mobile, Inc., 357 NLRB No. 174 (2011), 

enfd. sub nom. Kindred Nursing Centers East, LLC 

v. NLRB, 727 F.3d 552 (6th Cir. 2013). 

the basis for any decision or appeal on 

the merits.625

Under the Final Rule, offers of proof 

are made part of the record and treated 

as a substitute for record evidence.626

While the Final Rule nominally gives 

hearing officers discretion to require 

offers of proof, it is patently clear that 

they are expected to do so more 

frequently, particularly on appropriate 

unit issues. This will preclude the 

existence of evidence needed to permit 

what the Act requires: Decisions by 

regional directors, the Board, and 

possibly the courts, based on a record 

developed in an ‘‘appropriate hearing’’ 

held before the election.627

Consider the requirement of an offer 

of proof under the Specialty Healthcare 

standard.628 Almost any petitioned-for 

unit conforming to classification, 

department, craft, or group function 

may be viewed as presumptively 

appropriate under that standard. Thus, 

a hearing officer will likely fulfill the 

Final Rule’s stated expectation by 

requiring an offer of proof on the issue. 

Having nominally preserved the right to 

contest the appropriateness of a 

petitioned-for unit in the prehearing 

Statement of Position, an employer will 

really have done no more than to 

preserve the right to make an offer of 

proof attempting to show an 

overwhelming community of interest 

between petitioned-for classifications 

and excluded classifications. It is 

unclear what offer would suffice for a 

regional director to permit the 

introduction of oral evidence. It is clear 

that the requirement of an offer would 

make an already difficult burden almost 

impossible to meet. If not met, then not 

only would the employer be precluded 

from further contesting the issue, but 

employees in excluded classifications 

would generally not even be permitted 

to cast challenged ballots. 

Section 9(c)(1) also provides that preelection hearings ‘‘may be conducted by 

an officer or employee of the regional 

office, who shall not make any 

recommendations’’ and ‘‘[i]f the Board 

finds upon the record of such hearing 

that such a question of representation 

exists, it shall direct an election by 

secret ballot’’ (emphasis added). As the 

statutory language makes clear, the 

hearing officer may conduct the preelection hearing, but the evidentiary 

record constitutes the sole basis for the 

ultimate decisions made by the regional 

director and the Board. Again, an offer 

of proof is an informal summary, 

provided by a party’s attorney or 

representative, which is most often used 

to prevent the introduction of irrelevant 

evidence. In contrast, the statute’s 

‘‘appropriate hearing’’ requirement— 

combined with the Act’s careful 

delineation of responsibilities between 

and among the hearing officer, the 

regional director, and the Board— 

requires that decisions be based on an 

appropriate ‘‘record’’ consisting of 

evidence. 

The majority’s analogy of the Rule’s 

pre-election offer of proof process to the 

use of that process by courts, 

administrative law judges, magistrate 

judges, and hearing officers fails for one 

fundamental reason. In these other 

contexts, offers of proof are elicited by 

a presiding official who has the 

authority to make evidentiary rulings 

and decide substantive issues. By 

contrast, as previously stated, the 

hearing officer in a pre-election Board 

hearing has no authority to make 

recommendations, much less factual 

findings or legal conclusions. See 

Section 9(c)(1). 

(c) Off-the-Record Consultation and 

Decisionmaking Between Hearing 

Officers and Regional Directors. In an 

attempt to avoid conflict with express 

statutory language (id.), the Final Rule 

purports to vest regional directors, not 

hearing officers, with the exclusive 

authority to make substantive rulings 

and decisions. However, the Final Rule 

in this respect remains objectionable. 

Under the Act, although hearing officers 

may preside over the ‘‘appropriate 

hearing’’ (Section 9(c)(1)), Congress 

clearly intended that all decisions 

would be based on the hearing record. 

Here, the Final Rule departs from the 

statutory scheme by codifying and 

dramatically increasing reliance on 

private consultations between hearing 

officers and regional directors, in the 

absence of a record, with ‘‘real time’’ 

decisionmaking by regional directors 

while the hearing remains incomplete. 

There are numerous deficiencies in 

this process, especially in relation to 

issue-determinative rulings and when 

combined with the Final Rule’s other 

changes. First, the Rule relies on this 

process to resolve important electionrelated issues, including whether to 

exclude or defer evidence regarding 

voter eligibility and other matters. 

Second, decisions are made by an 

absentee regional director, who is not 

presiding over the hearing, and who is 

completely dependent on second-hand 

information conveyed by the hearing 

officer. Third, during these off-therecord consultations, the hearing officer 

has a near-impossible task, which is to 

refrain from making 

‘‘recommendations’’ (based on the 

prohibition set forth in Section 9(c)(1)); 

to describe complex facts, some based 


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629 In Member Miscimarra’s view, the Final Rule’s 

reliance on private off-the-record consultation and 

decisionmaking between hearing officers and 

regional directors—especially in conjunction with 

the Rule’s other changes—is precluded under the 

Act. This does not involve any doubt about the 

integrity and competence of the Board’s hardworking regional directors and hearing officers. 

Rather, in representation cases, Section 9(c)(1) 

permits regional hearing officers to preside over a 

representation hearing, but states they ‘‘shall not 

make any recommendations with respect thereto’’ 

(emphasis added). In unfair labor practice (ULP) 

cases, Section 10(c) provides for administrative law 

judges (originally called ‘‘trial examiners’’) to 

preside over the hearing, but Section 4(a) states ‘‘no 

administrative law judge shall advise or consult 

with the Board with respect to exceptions taken to 

his findings, rulings, or recommendations’’ 

(emphasis added). Member Miscimarra believes 

these restrictions, both part of the 1947 Taft-Hartley 

amendments, were designed to guarantee, first, that 

the Board would maintain a bright-line separation 

between decisionmakers, on the one hand, and the 

actions of hearing officers (in representation cases) 

and administrative law judges (in ULP cases) that 

are subject to review; and second, that hearing 

officers and judges would absolutely refrain from 

attempting to influence, by informal means, either 

the Board or regional directors (the latter inherited 

the Board’s authority to decide representation cases 

pursuant to a delegation authorized by Sec. 3(b) of 

the Act). Both restrictions were explained in detail 

by Senator Taft—principal sponsor of the TaftHartley amendments in the Senate—when these 

amendments were adopted. See 93 Cong. Rec. 3953 

(April 23, 1947), reprinted in 2 LMRA Hist. 1011 

(statement of Sen. Taft) (stating, among other things, 

that the amendments preclude ‘‘private’’ or ‘‘secret 

meetings’’ between trial examiners and the Board, 

and provide that questions concerning 

representation are to be decided by the Board ‘‘on 

the basis of the facts that are shown in the hearing’’ 

to avoid decisions ‘‘almost completely free from any 

review by the courts’’). See also S. Rep. No. 80–105, 

at 25, reprinted in 1 LMRA Hist. 431 (‘‘Regional 

office personnel now sit as hearing officers in 

representation cases and make a comprehensive 

report and recommendation to the Board at the 

close of such hearing. By the amendment, such 

hearing officer’s duties are confined to presiding at 

the hearing.’’). In Member Miscimarra’s view, the 

Final Rule contemplates what the Act prohibits: the 

Rule improperly blurs the role of the hearing officer 

(whose duties, under the Act, should be ‘‘confined 

to presiding at the hearing’’) with the 

decisionmaking of the regional director (who, under 

the Act, should decide issues solely ‘‘on the basis 

of the facts that are shown in the hearing’’). Id. 

Although due process requires that disputed 

matters be addressed in open hearings, the Final 

Rule essentially provides for a ‘‘private’’ or ‘‘secret 

meeting’’ (id.), with increased reliance on off-therecord consultation between hearing officers and 

regional directors, outside the parties’ presence, in 

which the hearing officer, rather than the parties, 

makes all relevant arguments and presents all 

relevant facts; and the lack of any verbatim record 

effectively means this off-the-record 

decisionmaking is ‘‘almost completely free from any 

review’’ by the Board or ‘‘the courts.’’ Id. 

630We note that the majority also relies on the 

inapposite fact that the APA exempts the Board’s 

representation case proceedings from its 

requirements for formal adjudication, including any 

requirement of the right to file a brief. Of course, 

the APA does not proscribe the Board from 

permitting post-hearing briefs as a matter of right 

in its own rules for representation proceedings, 

which is what the Board has done for many years. 

Moreover, we cannot help but note the majority’s 

reliance on the APA’s exemption, which is founded 

on the premise that our pre-election hearings are 

nonadversarial investigative proceedings, in a Final 

Rule that imposes unprecedented formal adversarial 

pleading requirements. 

631The majority suggests that parties retain the 

right to file one post-hearing brief in every case 

because, even if denied permission to file an 

immediate post-hearing brief, they can still file a 

brief in support of a request for review of the 

regional director’s subsequent decision. The right to 

file a brief directly with the regional director prior 

to his de novo review of the evidence and issues 

is fundamentally different from the right to file a 

brief seeking to persuade that there are ‘‘compelling 

circumstances’’ for Board review of an adverse 

regional director’s determination. In the latter 

instance, the horse has most often left the barn. 

on admitted evidence, and others based 

on offers of proof; and to summarize the 

parties’ competing arguments outside of 

the parties’ presence. This makes 

hearing officers the agency equivalent of 

a one-man band: he or she makes all of 

the arguments for everyone and 

describes all of the evidence (real and 

potential), with all decisions ostensibly 

being made by someone else (who has 

observed nothing and cannot lawfully 

even receive recommendations from the 

hearing officer). And this entire process 

occurs without the parties’ participation 

or presence, with no verbatim record 

being made of the consultation. 

Regional directors have no appropriate 

basis for making such decisions because 

they are absent from the hearing, and 

the Act’s ‘‘appropriate hearing’’ 

requirement reflects Congress’ intention 

to have disputed issues resolved based 

on the evidentiary record, not secondhand off-the-record descriptions 

provided outside of the parties’ 

presence while the hearing remains 

incomplete. Conversely, hearing 

officers, though ostensibly without 

decisionmaking authority, have 

exclusive control over what is and is not 

conveyed to regional directors, and the 

absence of any record regarding these 

consultations precludes meaningful 

review by the parties or the Board.629

(d) No Post-Hearing Briefs—The Final 

Rule impermissibly eliminates the right 

to file post-hearing briefs. Reflecting 

longstanding practice, § 102.67(a) of the 

current Rules gives parties the right to 

submit post-hearing written briefs 

within 7 days of the hearing’s 

conclusion, and parties nearly always 

do so. The Final Rule takes this right 

away. Instead, ‘‘[t]he hearing will 

conclude with oral argument, and no 

written briefing will be permitted unless 

the regional director grants a motion to 

file such a brief.’’ Although the majority 

does not define the range of discretion 

vested in the regional director to deny 

a motion, it clearly anticipates that 

briefing will not be necessary ‘‘[i]n the 

majority of representation cases.’’ 

Under the Final Rule, the stated 

justification for eliminating the right to 

file post-hearing briefs is twofold: (1) 

‘‘given the often recurring and 

uncomplicated legal and factual issues 

arising in pre-election hearings, briefs 

are not necessary in every case to permit 

the parties to fully and fairly present 

their positions or to facilitate prompt 

and accurate decisions;’’ (2) ‘‘[b]y 

exercising [the] right [to file] or even by 

simply declining to expressly waive that 

right until after the running of the 7-day 

period, parties could potentially delay 

the issuance of a decision and direction 

of election and the conduct of an 

election unnecessarily.’’ 630

Current practice nearly always 

involves post-hearing briefs submitted 

by the parties, and these briefs—along 

with record evidence—are then the 

central focus when relevant issues are 

decided by regional directors, a practice 

which contradicts the Final Rule’s 

suggestion that such briefs are 

unnecessary and unimportant. Even 

though there may be some cases—few in 

number—when parties may dispense 

with post-hearing briefing, this certainly 

does not justify a rule finding that briefs 

will presumptively not be permitted in 

‘‘the majority of cases.’’ 631

The procedural context for this 

briefing issue is the same as for offers of 

proof. The regional director is the only 

person who, under the statute, is 

permitted to decide relevant election 

issues, subject to potential Board 

review. However, neither the Board nor 

regional directors even preside over the 

hearing. Rather, the only Board 

representative who conducts the actual 

hearing is a ‘‘hearing officer’’ and 

hearing officers, under Section 9(c)(1) of 

the Act, are prohibited even from 

making any ‘‘recommendations’’ with 

respect to election-related issues which, 

of course, must be resolved based on the 

record evidence combined with the 

parties’ arguments and positions. 

Here, the Final Rule operates in a 

world devoid of common sense. In 

comparison to current practice, 

eliminating post-hearing briefs will pare 

7 days, at most, from the period between 

petition-filing and the election. Yet, on 

top of the Final Rule’s other changes, 

eliminating post-hearing briefs will 

necessarily cause unfairness and 

confusion regarding (i) what arguments 

parties have made concerning what 

issues and based on what evidence; (ii) 

what arguments and issues can fairly be 

raised by the employer—and which 

ones have been waived—based on the 

pre-hearing Statement of Position. 

Moreover, the absence of post-hearing 

briefs will give parties an enormous 

incentive to file pre-election requests for 

Board review, including requests to stay 


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632Assuming a person speaks 2.5 words per 

second, it would take approximately 45 minutes 

just to read aloud the relevant sections of the FedEx 

majority opinion. 

633See Representation Casehandling Manual 

Sec.11242 and G.C. Memo. 98–1, ‘‘Report of Best 

Practices Committee—Representation Cases 

December 1997,’’ at 10, 28. 

634See 77 FR 25567. 

635Much of the analysis in this section is drawn 

from former Member Hayes’ dissent to the vacated 

December 2011 rule. See 77 FR 25566. In our view, 

the majority has yet to provide sufficient answers 

to the criticisms originally voiced there. 

636According to the Office of Executive Secretary, 

in 2012, 1,401 elections were held pursuant to 

stipulation, while only 48 consent elections were 

held. In 2013, 1,411 elections were held pursuant 

to stipulation, while only 39 consent elections were 

held. 

the election, because this will provide 

the only opportunity for parties to file 

any briefs. In such circumstances, the 

Board will undoubtedly be confronted 

with an array of arguments that regional 

directors—without the benefit posthearing briefs—never considered. 

Alternatively, the Board may conclude 

that many meritorious arguments have 

been waived by employers because the 

positions were not identified with 

sufficient particularity in the prehearing Statement of Position, or in the 

employer’s end-of-hearing oral 

argument. 

We have no lack of confidence in the 

ability of management- and union-side 

labor law practitioners to make effective 

closing arguments. However, with due 

respect for our colleagues, the Final 

Rule identifies nothing that justifies 

depriving those practitioners of a 

longstanding right to file briefs, 

adversely affecting their ability to frame 

parties’ positions in light of the record 

evidence. Further, our decided cases 

over nearly 80 years demonstrate that 

some measure of factual and/or legal 

complexity is the norm, and not the 

exception, for issues contested in preelection hearings. In this context, we 

have difficulty understanding why a 

regional director—even with the 

expertise, experience, and acumen of 

persons who typically occupy that 

office—would not benefit from the 

written definition of issues and 

supporting evidence in a brief in more 

than a few complex cases. The 

alternative of reviewing and deciding 

issues based on a cold transcript and ad 

hoc oral argument is far less likely to 

lead to the expeditious and reasoned 

resolution of those issues. 

Take just one example of a recurring 

pre-election issue: a petitioner seeks to 

represent as an appropriate bargaining 

unit a group of workers whom the 

employer contends are independent 

contractors excluded from coverage. The 

employer bears the heavy burden of 

proving its contention. As recently 

described by the majority in FedEx 

Home Delivery, 361 NLRB No. 55 

(2014), resolution of the issue whether 

the workers are independent contractors 

or statutory employees requires an 

analysis of evidence relevant to a 

nonexhaustive list of 11 factors. In 

FedEx, which involved a petitioned-for 

unit of approximately 20 truck drivers, 

the majority opinion consumed over 4 

two-columned pages (3,732 words) 

describing the facts of the case, and 

another 3-plus pages (2,736 words) 

analyzing the facts under its multifactor 

test. With the elimination of posthearing briefs, an employer’s sole 

opportunity to persuade a regional 

director that it has met its burden under 

the FedEx test will be to accurately 

summarize all the relevant facts and 

their application to at least 11 factors of 

the legal test in semi-spontaneous oral 

argument at the conclusion of a hearing, 

usually without the benefit of a 

transcript; i.e., the employer must 

accomplish in oral argument what the 

FedEx majority needed 6,468 written 

words to accomplish.632 We fail to see 

how this approach facilitates the fair 

and accurate resolution of a question 

concerning representation. 

If the Board’s experience under its 

longstanding practice of generally 

permitting written briefs contradicted 

this supposition, then there might be a 

factual basis for amending the current 

rule. The Final Rule cites no such 

evidence, however. It acknowledges that 

a procedure already exists under the 

current practice for hearing officers to 

encourage the voluntary use of oral 

argument in lieu of a written brief, and 

that the General Counsel’s 1998 best 

practices memo endorsed this voluntary 

approach as appropriate ‘‘in some 

cases.’’ 633

The Final Rule’s other rationale 

sounds a very familiar refrain, i.e., 

speculation that a party could use the 

right to file a brief as an instrument of 

delay. Has that been shown to have 

happened with any frequency over 

decades of experience under the current 

Rules? No it has not, at least not based 

on the considerable record before us, 

which on this point is factually no 

different than in 2012 when dissenting 

Member Hayes cogently observed: ‘‘In 

practical terms, the majority points to 

no evidence that the 7 days currently 

afforded parties to file briefs following 

pre-election hearings actually causes 

delay in the issuance of Regional 

directors’ decisions. In real terms, this is 

already an extraordinarily short period 

of time. Our colleagues have presented 

no evidence that parties routinely file 

briefs in those cases in which the issues 

are so simple that a Regional director 

could routinely issue a decision in less 

than 7 days, and certainly no evidence 

that briefs in general have no utility. 

There is no reason why a Regional 

director or his decision writer cannot 

begin preparing a decision before the 

briefs arrive and, if the briefs raise no 

issues the Regional director has not 

considered, simply issue the decision 

immediately. 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.’ ’’ 634

In short, there is no valid justification 

for the briefing rule change. It is a 

solution in search of a problem. 

Properly managed under the existing 

regional practice, which represents the 

best practice, briefing should improve 

and expedite representation case 

decisions. Getting rid of briefs, on the 

other hand, is as likely to delay final 

resolution of representation issues as it 

is to facilitate it. 

(e) Eliminating Board Review—There 

is no rational reason to eliminate the 

right of Board member review regarding 

post-election issues.635 The Final Rule 

eliminates mandatory Board review of 

post-election disputes under a 

stipulated election agreement. It 

provides that post-election Board 

review—currently a guaranteed 

option—would become discretionary in 

all cases. Thus, the Final Rule 

contemplates that the Board may never 

review post-election reports of the 

hearing officer or decisions of the 

regional director. As set forth below, we 

find the elimination of mandatory Board 

review of post-election disputes to be 

arbitrary and capricious. 

In recent years, about 90% or more of 

representation elections were promptly 

held pursuant to election agreements. 

Our statistics show that, under current 

regulations, parties are far more likely to 

enter into a stipulated election 

agreement than a consent election 

agreement, under which post-election 

issues are decided by the regional 

director.636 Under the stipulated 

agreement, the parties negotiate 

resolution of all pre-election issues but 

preserve the automatic right to Board 

review of a regional director or hearing 

officer’s resolution of post-election 

disputes. The Final Rule now eliminates 

that right, replacing mandatory review 

with a discretionary system of review 

that currently exists for the disposition 


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637Even in the absence of an election agreement, 

the Final Rule also eliminates a regional director’s 

choice of issuing a report and recommendations on 

post-election issues, to which there would be an 

automatic right to secure Board review by filing 

exceptions. 

638Twenty-Fourth Annual Report of the National 

Labor Relations Board for Fiscal Year Ended June 

30, 1959, Appendix A—Tables 1 and 3. 

639Representation Petitions, National Labor 

Relations Board, available at http://www.nlrb.gov/

news-outreach/graphs-data/petitions-and-elections/

representation-petitions-rc. 

640The pending caseload statistics would be even 

less were it not for a temporary’’ bubble’’ created 

by the need to decide anew cases in which prior 

decisions have been invalidated by the Supreme 

Court’s decision in NLRB v. Noel Canning, 134 S. 

Ct. 2550 (2014). 

641According the Board’s internal casehandling 

statistics, the Board granted review, for any of four 

compelling circumstances defined in the Rules, on 

only 9 of 77 requests for review of regional 

directors’ decisions and directions of election filed 

in FY2012, 7 of 57 filed in FY 2013, and 9 of 65 

filed in FY 2014. 

642See, e.g., Labriola Baking Co., 361 NLRB No. 

41(2014); 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). 

643See, e.g., Automatic Fire Systems, 357 NLRB 

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

644See, e.g., Tekweld Solutions, Inc., 361 NLRB 

No. 18 (2014); UniFirst Corp., 361 NLRB No. 1 

(2014); FJ Foodservice, Case 21–RC–21310, 2011 

WL 6936395 (December 30, 2011); Mastec Direct 

TV, 356 NLRB No. 110 (2011); American Medical 

Response, 356 NLRB No. 42 (2010). 

645The majority cites 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 

of pre-election disputes in the absence 

of any election agreement.637

Without any empirical support, our 

colleagues assert that eliminating 

automatic Board review will not result 

in fewer pre-election agreements. It 

seems obvious to us that parties would 

resolve known pre-election issues for 

the guarantee that the Board will be the 

final arbiter of any unforeseen election 

conduct and eligibility issues that occur 

during the critical election period. It 

also seems natural that the elimination 

of the right to agree to mandatory postelection Board review will adversely 

affect the parties’ willingness to 

compromise on pre-election issues. 

Thus, making Board review of postelection disputes discretionary is likely 

to discourage parties from entering into 

stipulated election agreements, the 

principal mechanism for shortening the 

pre-election timeline, thereby resulting 

in an increase in pre- and post-election 

litigation. 

Our colleagues disagree. They 

contend that the parties will take what 

little we give them, preferring an 

agreement that permits discretionary 

Board review over one that provides for 

final disposition of post-election 

disputes at the regional level. They 

maintain that the parties will continue 

to look at the same factors previously 

considered when deciding whether to 

enter into any pre-election agreement. 

Yet, our colleagues could be wrong, and 

it was their duty to give more than 

passing thought to this potential adverse 

consequence for a process utilized in 

1,401 elections, comprising 97 percent 

of all election agreements executed, in 

FY 2013. The guarantee of mandatory, 

as opposed to discretionary, Board 

review of post-election disputes could 

be the main reason some employers give 

up the right to litigate pre-election 

issues. Even if the percentage of election 

agreements decreases by a few points, 

the resulting increase in pre- and postelection litigation will likely negate any 

reduction of purported delay due to the 

Final Rule’s implementation. Our 

colleagues’ willingness to make this 

change without considering the possible 

negative impact is attributable in 

significant part to their apparent 

agreement with comments that argue 

that employers use the election 

agreement procedure to extort 

unwarranted concessions from unions, 

who capitulate in order to prevent the 

delay due to litigation of pre-election 

disputes. This view stems from their 

belief that employers could not really 

have legitimate issues to raise in 

litigation. But we believe there are 

legitimate disputes, and thus, the 

process of negotiating an election 

agreement in which an employer 

foregoes its litigation rights in exchange 

for concessions on unit scope, unit 

placement, or election details seems to 

fairly mirror the give-and-take 

bargaining that takes place after a 

petitioning union wins an election and 

is certified. 

In justifying the elimination of the 

automatic right of Board review of postelection challenge and objections issues, 

our colleagues also contend that ‘‘the 

final rule will enable the Board to 

devote its limited time to cases of 

particular significance.’’ Regardless of 

how insignificant the issues may seem 

to be in most post-election cases, it is 

our duty to give those cases the same 

consideration as in ‘‘cases of particular 

significance.’’ Moreover, we disagree 

with our colleagues that the Board does 

not have enough time to provide full 

consideration of post-election decisions. 

This is not 1959, when Congress 

adopted Section 3(b) to remedy the 

Board’s undisputed inability to manage 

its pending caseload. At that time, 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 1,880 cases.638

In Fiscal Year 2013, 1,986 

representation case petitions were filed 

in the regions, almost the same number 

as FY 2012, when 1,974 petitions were 

filed.639 In other words, petition filings 

are down 80 percent from 1959. 

Moreover, the Board’s pending caseload 

is near to historically low levels. Based 

on statistics prepared by the Board’s 

Executive Secretary, as of October 1, 

2014, there were 338 pending unfair 

labor practice cases and 48 pending 

representation cases.640 Given the 

decline in case filings, this caseload is 

unlikely to increase. Thus, with five 

times fewer representation cases 

entering the system at the regional level, 

and a tiny fraction of all cases reaching 

the Board on exceptions, we clearly 

have the time to timely resolve all 

pending cases without abandoning 

stipulated election agreements for 

review of post-election decisions on a 

mandatory basis. 

There is yet another problem with the 

new request for review standard for all 

post-election decisions. Under the 

existing rule, the Board engages in a de 

novo review of the entire record with 

respect to factual findings, other than 

credibility findings, of the decision 

maker below. Under the Final Rule’s 

discretionary review standard, the 

Board will only grant review of regional 

factual findings where it is established 

that the finding is clearly erroneous and 

prejudicial. Based on statistics for cases 

covered by the current request-forreview practice,641 this standard will 

predictably rarely be met. 

Our colleagues contend that 

mandatory Board review is unnecessary 

because under the current de novo 

review standard the Board affirms the 

majority of post-election decisions made 

at the regional level. While this may be 

true as to decisional outcome, there 

have been many Board decisions 

reversing the hearing officer’s or 

regional director’s findings in postelection cases.642 Also, in numerous 

cases, even if the Board has affirmed the 

decision below, it has modified or 

clarified the supporting factual 

findings.643 There also have been 

several cases where a Board member or 

members dissent to the findings 

below.644 The new Rule provides 

significantly less opportunity for 

reversal, clarification, or dissent with 

respect to such findings and their 

application to the controlling legal 

principles.645 This is counter to the 


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findings because it disagreed with part of the 

hearing officer’s analysis and found it unnecessary 

to rely on another part. Id., slip op. at 1 n.4. 

646We note that our critique of this aspect of the 

Final Rule has nothing to do with the expertise and 

competence of regional directors and hearing 

officers, for whom we have great respect. However, 

like administrative law judges deciding unfair labor 

practice cases, expert and accomplished persons 

reviewing the same or similar sets of facts can reach 

different conclusions of law. It is the Board’s role 

to reconcile those differences. 

647E.g., Rental Uniform Service, Inc., 330 NLRB 

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

NLRB 132 n.1 (1974)). 

648 Id. 

649The phrase is best known for its articulation 

in A.L.A. Schechter Poultry Corp. v. United States, 

295 U.S. 495, 553 (1935) (Cardozo, J., concurring). 

650Bennett Industries, Inc., 313 NLRB 1363 

(1994). 

651 Goldberg v. Kelly, 397 U.S. 254, 267 (1970) 

(quoting Grannis v. Ordean, 234 U.S. 385, 394 

(1914), and Armstrong v. Manzo, 380 U.S. 545, 552 

(1965)). 

652As we have noted elsewhere, the Final Rule 

also contravenes due process by impermissibly 

infringing free speech and privacy interests. 

Final Rule’s assertion that it intends to 

improve transparency in decision 

making. The Board decisions addressed 

above may not ultimately be of 

precedential value, but because they 

involve a de novo review by the Board, 

they play an important role in assuring 

the public and reviewing courts that 

there is a uniform and consistent 

application of the law. 

It has been the Board’s long-held 

practice to develop and establish 

uniformity in representation case law. 

The Final Rule’s discretionary review 

standard for all cases greatly increases 

the possibility that individual regions 

will reach different unreviewed results 

in factually identical or similar 

circumstances.646 This presents an 

unacceptable risk of uncertainty and 

balkanization of substantive 

representation case law. It will likely 

lead to a system in which parties have 

to litigate issues in light of regional 

precedent, despite the well-settled 

Board principle that regional directors’ 

decisions do not have precedential 

value.647 There is a further risk that the 

ongoing development and 

understanding of labor law will be 

stunted inasmuch as the Board will be 

deciding few representation cases. It is 

particularly troubling that the Board 

will now be reviewing few appeals 

concerning election misconduct because 

the issues raised in these appeals go to 

the heart of employee free choice, and 

narrow factual distinctions have often 

determined whether specific conduct 

has had an objectionable effect on that 

choice. These cases warrant de novo 

Board review. In sum, the Final Rule 

will significantly impair the important 

central oversight function of the Board 

in making representation case law. 

The elimination of mandatory postelection Board review is also likely to 

cause an increase in ‘‘test of 

certification’’ cases where employers 

engage in post-certification refusals to 

bargain as the only means of obtaining 

review of the Board’s certification.648

Whether or not an employer would 

secure judicial reversal of a regional 

director’s decision is irrelevant. An 

employer will now be forced to litigate 

in an unfair labor practice case, before 

the Board and in Federal court, issues 

that are currently reviewed by the Board 

in a post-election appeal as a matter of 

right. Given the process an employer 

must go through to have a Federal court 

of appeals review any disputed issue 

regarding an election, there is often 

substantial delay in the final resolution 

of the representation case. 

The collective effect of the Final Rule 

amendments, notably including the 

elimination of stipulation agreements 

providing for the automatic right to 

Board review of post-election issues, is 

the creation of a system in which the 

Board is an absentee overseer of the 

representation case process. This is 

taking our delegation authority under 

Section 3(b) to the extreme. Absent the 

singular factual circumstance that 

motivated Congress to create this 

authority—i.e., that the Board in 1959 

was overwhelmed by the task of 

deciding all contested representation 

case issues—or any other rational basis 

for taking this step, what we are left 

with is best described as agency 

‘‘delegation running riot,’’ 649 an 

impermissibly overbroad and arbitrary 

abdication of the Board’s central role in 

the process. 

(f) Due Process—Collectively, the 

Final Rule’s revisions constitute an 

impermissible deprivation of what has 

traditionally been regarded as necessary 

procedural due process in 

representation case proceedings. ‘‘The 

Board’s duty to ensure due process for 

the parties in the conduct of the Board 

proceedings requires that the Board 

provide parties with the opportunity to 

present evidence and advance 

arguments concerning relevant 

issues.’’ 650 For decades, the due process 

accorded parties to representation 

proceedings has included adequate 

notice and time to prepare for a preelection hearing, the opportunity to 

present oral testimony and crossexamine witnesses on all validly 

contested issues (including eligibility 

and inclusion issues), the opportunity to 

file a post-hearing brief, and the 

opportunity and incentive to enter into 

election agreements guaranteeing the 

automatic right to secure Board review 

of a regional director or hearing officer’s 

findings on post-election objections and 

challenges. This is how the Board has 

traditionally complied with the 

Supreme Court’s statement that ‘‘ ‘[t]he 

fundamental requisite of due process of 

law is the opportunity to be heard’ ’’ at 

‘‘ ‘a meaningful time and in a 

meaningful manner.’ ’’ 651

Now, in one fell swoop of agency 

policymaking, those procedural rights 

are gone. In their place, the Final Rule 

(i) creates new inflexible prehearing 

‘‘pleading’’ requirements –primarily and 

most severely affecting employers; (ii) 

greatly accelerates the timetable for 

scheduling the hearing; (iii) eliminates 

the right to contest eligibility and 

inclusion issues at a hearing; (iv) directs 

hearing officers to limit the introduction 

of evidence regarding both these issues 

as well as those that must still be 

litigated prior to an election; (v) 

eliminates post-hearing briefs except in 

unusual circumstances; and (vi) 

eliminates mandatory Board member 

review in all post-election cases. 

The private interests affected by this 

extraordinary government action are 

substantial. They involve the potential 

deprivation in every election proceeding 

of the statutorily assured right of parties 

to full pre-hearing litigation, the 

paramount right of employee free 

choice, and the fundamental right of an 

employer to pursue its interests in 

maintaining autonomous control of a 

business operation in which it has a 

substantial capital investment (rather 

than sharing control in collective 

bargaining), and to ensure that a 

certified union truly represents a 

majority of employees in an appropriate 

bargaining unit.652 Against this array of 

protected private interests, the Final 

Rule’s primary asserted government 

interest is the need to conduct elections 

as soon as possible, with the notable 

exception of cases where a union’s 

blocking charge allegedly justifies 

prolonged delay. In the foregoing 

sections, we have detailed the glaring 

lack of objective factual or policy 

grounds for the wholesale changes in 

representation case procedure founded 

on a perceived need for speed. Under 

that analysis, the Final Rule’s revisions 

are shown to be collectively and 

individually invalid as arbitrary under 

the State Farm ‘‘hard look’’ test. 

Necessarily then, the asserted 

government interest in speed is 

inadequate to justify changes that 

deprive parties of previously enjoyed 

procedural rights and impose new 

procedural burdens that will inequitably 


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653The Supreme Court subsequently deferred to 

the Board’s judgment, permitting the Excelsior list 

requirement to stand. See NLRB v. Wyman-Gordon 

Co., 394 U.S. 759, 767 (1969). 

654We take our colleagues at their word that 

‘‘available’’ means an employer need only provide 

employee personal contact information already in 

the employer’s possession and ‘‘do[es] not require 

the employer to ask the employee for it.’’ 

655Our colleagues reason that no inconsistency 

exists between the Final Rule and Purple 

Communications—regarding the role played by 

social media in union organizing and related 

protected activities—because the Rule (which 

emphasizes the importance of smartphones and 

texting, for example) deals with communications 

involving ‘‘the union’’ and ‘‘other non-employer 

parties,’’ whereas Purple Communications (which 

states these modes of communication are not even 

‘‘germane’’) addresses ‘‘employee communications 

among themselves.’’ We respectfully disagree with 

this distinction. Electronic communications and 

social media function in the same manner 

regardless of whether the user is an employee, a 

union organizer, or someone else. These 

communications also facilitate discourse to the 

same degree and with the same effectiveness, which 

means they cannot be ‘‘a universal point of contact’’ 

(quote from the Final Rule majority as justification 

for expanding mandatory Excelsior disclosures) at 

the same time these communications ‘‘simply do 

not serve to facilitate communication among 

members of a particular workforce’’ (quote from 

Purple Communications majority as justification for 

giving employees a statutory right to use employer 

email systems) (emphasis added). Although our 

colleagues justify the Final Rule’s expanded 

Excelsior disclosures on the basis that ‘‘no practical 

way’’ may exist for unions or employees to obtain 

‘‘email addresses, social media account 

information, or other information necessary to reach 

each other’’ (Final Rule, supra, quoting Purple 

Communications), this has already been disproven 

by the widespread use of social media, emails and 

texting, both in the workplace and in shaping world 

events. See Purple Communications, supra 

(Member Miscimarra, dissenting, at fn. 5). 

Because the Final Rule’s justification is 

irreconcilable with the Board majority’s holding in 

Purple Communications, supra (as discussed in the 

text), and because we believe these revisions lack 

adequate privacy safeguards and our colleagues 

have unreasonably shortened the existing 7-day 

deadline for providing Excelsior list disclosures 

(which, among other things, would provide 

adequate time for the opt-out procedure described 

in the text below), it is unnecessary to address 

whether the revisions otherwise have sufficient 

support in the administrative record. 

affect employers more than other parties 

to an election. Accordingly, in our view, 

the Final Rule must be invalidated on 

procedural due process grounds as well. 

(g) Expanded Mandatory 

Disclosures—The Revised Excelsior list 

requirements impose unreasonable 

compliance burdens and fail to 

adequately address privacy concerns. In 

Excelsior Underwear, Inc., 156 NLRB 

1236, 1239–40 (1966), the Board 

established the requirement that an 

employer must file with the regional 

director an election eligibility list— 

containing the names and home 

addresses of all eligible voters—within 

7 days after approval of an election 

agreement or issuance of a decision and 

direction of election. The regional 

director, in turn, makes the list available 

to all other parties to the representation 

case. Failure to comply with this 

requirement constitutes grounds for 

setting aside the election whenever 

proper objections are filed.653 Id. at 

1240. 

The Final Rule substantially modifies 

the current Excelsior list requirements. 

It requires the employer to furnish to the 

regional director and to other parties not 

only a list of the full names and home 

addresses of eligible voters, but also 

their available 654 personal email 

addresses, home and personal cell 

telephone numbers, as well as their 

work locations, shifts, and job 

classifications. Employees who are to 

vote subject to challenge—either by 

direction or the agreement of the 

parties—must be enumerated with the 

same required information in a separate 

section of the list. Further, the Final 

Rule dramatically shortens the time for 

production of the Excelsior list from the 

current 7 calendar days to 2 business 

days after an election agreement or 

direction of election, absent agreement 

of the parties to the contrary or 

extraordinary circumstances specified 

in the direction. The employer must 

provide the voter list alphabetized 

(overall or by department) in an 

electronic format generally approved by 

the Board’s General Counsel unless the 

employer certifies that it does not 

possess the capacity to produce the list 

in the required form, and must serve the 

voter list on the other parties 

electronically, when feasible, at the 

same time the employer files the list 

with the regional director. Failure to file 

or serve the list and related information 

within the specified time and in the 

proper format will be grounds for setting 

aside the election whenever proper and 

timely objections are filed. Finally, the 

parties are restricted from using the 

voter list ‘‘for purposes other than the 

representation proceeding, Board 

proceedings arising from it, and related 

matters.’’ 

We do not quarrel with the idea that 

it would be convenient for organizing 

unions to have some of the additional 

information that must now be provided 

under the Final Rule. However, it has 

long been established that the Excelsior 

requirements are satisfied based on the 

disclosure of employee home addresses, 

and nothing more. For instance, both 

the Board and the Supreme Court in 

Excelsior and Wyman-Gordon, 

respectively, refrained even from 

requiring the disclosure of employee 

home telephone numbers. Thus, the 

majority, by finding rights to additional 

information beyond what Excelsior 

required, cannot then use Excelsior as 

the ‘‘policy bootstrap’’ to justify the 

additional information. Moreover, it is 

well established that the Act ‘‘does not 

command that labor organizations as a 

matter of law, under all circumstances, 

be protected in the use of every possible 

means of reaching the minds of 

individual workers, nor that they are 

entitled to use a medium of 

communications simply because the 

Employer is using it.’’ NLRB v. 

Steelworkers (Nutone), 357 U.S. 357, 

363–64 (1958). The question is whether 

the majority has established, based on 

the record in this proceeding or on our 

experience with the current Excelsior 

list, that it is necessary for unions to 

have this information in the absence of 

adequate protection of employees’ 

legitimate privacy concerns and with 

the expedited compliance burden 

imposed on employers. We think that 

the majority has clearly failed to make 

such a showing, and we explain each of 

our concerns in turn. 

• Absence of Rational Justification. 

The majority bears the burden of 

showing that the Final Rule’s Excelsior 

rule revisions are rationally justified 

and consistent with the Act. In the Final 

Rule, our colleagues maintain that 

personal cell phone communications 

and texting are essential means by 

which employees engage in organizing 

and concerted activity, which is the 

reason our colleagues expand the 

Excelsior disclosure requirements to 

require employers to disseminate 

available personal telephone numbers 

and email addresses. For example, our 

colleagues call personal phones ‘‘a 

universal point of contact today’’ and 

cite the ‘‘prevalence of cell phones, 

which are typically carried with adults 

on their person whether at home, at 

work or around town,’’ which ‘‘now 

allows callers’ messages to reliably 

reach their recipients’’ with ‘‘shocking’’ 

reliability and speed, ‘‘enhanced 

through text messaging, . . . the 

preferred mode of communication for 

many young people.’’ Yet our colleagues 

have taken precisely the opposite view 

in Purple Communications, 361 NLRB 

No. 126 (2014), where the majority 

insists that ‘‘social media, texting, and 

personal email accounts’’ are not even 

‘‘germane’’ because they ‘‘simply do not 

serve to facilitate communication among 

members of a particular workforce’’ 

(emphasis added). Both justifications 

cannot be correct. Given the Board 

majority’s holding in Purple 

Communications, supra, the Final 

Rule’s justification for requiring the 

disclosure of personal employee phone 

numbers and personal email addresses 

cannot be considered rational.655


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656Several comments support the inclusion of an 

opt-out procedure. See, e.g., Baker & McKenzie LLP; 

Council of Smaller Enterprises (COSE); Anchor 

Planning Group; SHRM II. 

657The majority cites Electronic Frontier 

Foundation v. Office of the Director of National 

Intelligence, 639 F.3d 876, 888 (9th Cir. 2010), for 

its characterization of lobbyists’ privacy interests in 

their email addresses as ‘‘minor.’’ However, the 

majority fails to mention the court’s conclusion that 

it could ‘‘easily envision possible privacy invasions 

resulting from public disclosure of the email 

addresses’’ and that such email addresses should 

only be disclosed under Freedom of Information 

Act (‘‘FOIA’’) Exemption 6 when ‘‘a particular 

email address is the only way to identify the 

[lobbyist] at issue from the disputed records.’’ Id. 

(emphasis in original). 

658 Inasmuch as our colleagues assume that ‘‘a 

union seeking to persuade employees to select it as 

a bargaining representative would tend [not] to act 

coercively toward those employees,’’ this 

assumption—regardless of its merits—ignores the 

possibility that employee-petitioners could act 

coercively. 

659For instance, the decertification petitioner 

may have had conflicts with other unit employees 

inside or even outside of the workplace (e.g., 

domestic disputes/violence (HCP), stalking 

incidents, failed business dealings, etc.). Such other 

employees, fearing harassment, may therefore not 

want the petitioner to have their personal contact 

information. At least one commenter raised the 

concern that unqualified disclosure carries a 

general risk of employee harassment (IFA II). 

Another commenter expressed concern that the 

disclosure itself could cause intra-office conflicts 

(AAE). 

660For example, the Indiana Chamber of 

Commerce observed that a party alleged to have 

misused a voter list may claim that it obtained the 

misused information independently from another 

source, and thus was not ‘‘using’’ the voter list at 

all, let alone for a restricted purpose (IN Chamber). 

Our colleagues miss the point in dismissing this 

concern as a ‘‘question of fact for the factfinder’’ in 

a particular case. The Indiana Chamber’s valid 

concern is that an employer would find it extremely 

difficult, if not impossible, to prove misuse of a 

voter list to a fact finder. 

661See, e.g., Shelly Banjo, Home Depot Hackers 

Exposed 53 Million Email Addresses, Wall Street 

Journal, Nov. 6, 2014, http://online.wsj.com/

articles/home-depot-hackers-used-password-stolenfrom-vendor-1415309282. As for the majority’s 

suggestion that employees’ personal contact 

information is unlikely to be misused, see CedarsSinai Medical Center, 342 NLRB 596 (2004) (setting 

Continued 

• Personal Email Addresses and 

Phone Numbers/Restriction on Use. In 

sum, the majority’s message to 

employees in a Board representation 

election is that ‘‘the government wants 

your personal data—and we are going to 

compel it without your consent—and 

then we are giving it to someone else, 

too.’’ To say the least, that is not a good 

message to give the citizenry in 2014. 

The Final Rule fails to provide 

employees a reasonable opportunity to 

opt out from the disclosure of their 

personal contact information to other 

parties.656 It also fails to provide that 

any petitioner-initiated electronic 

communications or phone calls would 

contain an ‘‘unsubscribe’’ feature that, if 

utilized, would prevent any further 

communications or calls from the 

petitioner and its agents. Finally, the 

Final Rule fails to provide, and cannot 

meaningfully provide, for specific 

appropriate restrictions and remedies 

regarding the use and misuse of voter 

list information. In declining to include 

these safeguards, the majority relies on 

the rationale set forth in Excelsior itself. 

There, the Board required the provision 

of employee names and home addresses 

to ‘‘all parties’’ (1) to ‘‘maximize the 

likelihood that all the voters will be 

exposed to the arguments for, as well as 

against, union representation’’ so 

employees may make a ‘‘free and 

reasoned [electoral] choice,’’ and (2) to 

‘‘further the public interest in the 

speedy resolution of questions of 

representation’’ by ‘‘eliminat[ing] the 

necessity for challenges based solely on 

lack of knowledge as to the voter’s 

identity.’’ Excelsior, 156 NLRB at 1240– 

43. According to the majority, advances 

in communications technology 

necessitate the provision of employees’ 

available personal contact information 

to serve and further these dual 

purposes. Thus, despite ‘‘employees’ 

acknowledged privacy interests in the 

information that will be disclosed,’’ 657

our colleagues conclude that ‘‘the public 

interests in fair and free elections and in 

the prompt resolution of questions of 

representation outweigh employee 

privacy interests’’ and that it would be 

inconsistent with Excelsior’s concern for 

informed electoral choice ‘‘to begin 

allowing employees to opt in or opt out 

of [the] disclosures.’’ We disagree. 

Our colleagues posit that any invasion 

of employees’ privacy is minimized 

because the required disclosures are 

limited in scope, recipients, permissible 

usage, and duration of use. Thus, they 

conclude that because the Final Rule 

does not ‘‘reveal employees’ personal 

beliefs’’ or require the disclosure of 

what they apparently regard as more 

important private information, such as 

medical records or aptitude test results, 

it is a permissible invasion of privacy. 

In these times, when new reports of 

computer hacking, identity theft, and 

phishing scams surface daily, we are 

astonished that the majority fails to 

recognize that employees who may have 

provided their personal contact 

information to their employer would 

otherwise not want to share that 

information with anyone they do not 

know and trust. We seriously doubt that 

their privacy concerns will be assuaged 

by our colleagues’ assurances that 

personal contact information will be 

disclosed to representation case parties 

but not to the public at large. We note, 

for instance, that in a decertification 

election the employer would have to 

provide to the employee-petitioner the 

available personal contact information 

of fellow employees.658 There are any 

number of reasons totally unrelated to 

the election campaign why those 

employees might be uncomfortable with 

this arrangement.659

Once the contact information is 

provided to a party, it does not 

disappear after election day. With 

respect to the limitations on its further 

permissible use and duration, the 

majority assumes the efficacy of its 

vague restriction limiting the use of 

disclosed personal contact information 

to ‘‘the representation proceeding, 

Board proceedings arising from it, and 

related matters.’’ Although we 

acknowledge our colleagues’ attempt to 

list particular types of Board 

proceedings presumably covered by this 

language, we are nonetheless troubled 

by the vagueness and potential breadth 

of ‘‘related matters.’’ Beyond that, the 

Final Rule fails to specify any remedy 

for violating the restriction, promising 

only an ‘‘appropriate remedy’’ to be 

determined in case-specific adjudication 

‘‘if misconduct is proven and it is 

within the Board’s statutory power to do 

so.’’ Proving such misconduct may be 

difficult enough,660 but the greater 

problem is that an effective remedy is 

probably not within the Board’s 

statutory authority. The majority fails to 

guarantee—because it can’t—to 

employees that the data won’t be leaked 

or misused, whether intentionally or by 

error. In fact, in some cases, we know 

it will be leaked or misused, and the 

majority does not provide a serious 

sanction for doing so. Consequently, the 

Final Rule’s restriction is meaningless. 

The opt-out and unsubscribe options we 

propose are therefore essential 

safeguards. 

The majority counters with the 

argument that there is no evidence of 

voter lists being misused by nonemployer parties in the nearly 50 years 

of the Excelsior requirement. Thus, they 

reason that our concerns and the need 

for safeguards are ‘‘entirely 

speculative.’’ To the contrary, it is 

apparent that requiring the provision of 

a new type of information poses a new 

type of risk. The majority’s rationale is 

tantamount to arguing the low incidence 

of accidents involving horses in the 19th 

century proved there would be a low 

incidence of accidents involving cars in 

the 20th century. Their attitude is blase ́

at best. As previously mentioned, the 

news is full of daily abuse stories 

relating to, e.g., disclosure of personal 

email addresses.661


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aside election based on telephonic threats of 

violence). 

662 15 U.S.C. 7704. 

663 16 CFR part 310. 

664See, e.g., Sheppard Mullin; AHCA; AHA. 

665Such units may commonly occur within 

employers with decentralized operations. See, e.g., 

ACE; Con-Way. 

666See, e.g., ABC II; AGC II. 

667See ACE. 

668See, e.g., AHA II. 

669See, e.g., Bluegrass Institute; GAM; Sheppard 

Mullin; AHA. 

Our colleagues also assume that 

providing an opt-out procedure for 

employees would be inconsistent with 

the Board’s reasoning in Excelsior that 

‘‘the access of all employees to 

[election-related] communications can 

be insured only if all parties have the 

names and addresses of all the voters.’’ 

Excelsior, supra at 1241 (emphasis in 

original). Of course, that basic assurance 

of communication access remains 

unchanged today. Employees’ names 

and addresses are required to be 

disclosed without restriction, regardless 

of any privacy concerns that might 

apply. Further, those privacy concerns 

are fundamentally different from those 

attendant to email and phone contact 

information. A home is a readily 

identifiable, fixed physical point of 

geography that people in the public can 

typically visit, independent of the 

disclosure of address. An email address 

is a thing entirely created by the 

employee who thus has more of a 

privacy interest and it is typically not 

identifiable at all without the consent of 

the employee; and a personal phone 

number is also created, in part, by an 

employee, who gets to determine 

whether or not it is publicly listed and 

thus identifiable at all. Any limited and 

neutral opt-out provision for these 

additional means of access cannot be 

deemed to disrupt the balance struck in 

Excelsior. 

Our colleagues’ other objections to 

opt-out procedures are similarly 

misplaced. Thus, the majority 

speculates that an opt-out process 

would require too much ‘‘extra time’’ (a 

too-familiar refrain) for employees to 

decide whether to disclose their 

personal contact information and for 

employers to implement that decision, 

thereby exacerbating election delay. 

They further speculate that an 

employer-administered opt-out process 

would engender new areas of costly 

litigation arising from ‘‘accusations of 

improper employer coercion’’ in 

influencing employees to opt out of 

disclosure. Finally, the majority 

suggests that because an opt-out process 

‘‘could not be administered in a blind 

fashion,’’ the resulting employer 

knowledge of who opted out would 

‘‘require the invasion of employee 

privacy in the name of protecting 

employee privacy.’’ 

In our view, none of the majority’s 

criticisms would preclude the 

administration of a workable opt-out 

procedure that we could support. The 

employer could be directed to post and 

provide notices and opt-out forms to all 

employees at the time initial and final 

election notices are distributed 

(recipients of the forms accompanying 

the initial election notice could be 

identified based on the preliminary 

voter list). Employees who wished to 

opt out could be directed to submit their 

completed forms to the Region prior to 

the existing 7-day Excelsior list 

deadline, which, in our view, should be 

retained without change. The Region 

could retain responsibility for 

distributing the Excelsior list, from 

which the Region, before serving the list 

on the petitioner and any intervenor, 

could easily redact personal contact 

information relating to those employees 

who opted out. The Region could 

administer the opt-out process in a 

simple, efficient manner that minimizes 

administrative burdens without 

delaying the election. And the employer 

would not know which employees, if 

any, had opted out. Federal and state 

courts commonly use nearly identical 

opt-out procedures, for example, to 

protect third parties’ privacy interests in 

class action cases. In our view, no 

pejorative message would be associated 

with this type of procedure— 

administered by the neutral agency 

overseeing the election—and we believe 

the majority’s argument otherwise is 

plainly without merit. Nor would such 

an opt-out procedure reveal either to the 

employer or union an employee’s 

sentiments regarding representation, 

since the opt-out information would be 

available only to the Region, and there 

is no necessary correlation between an 

employee’s sentiments regarding union 

representation and his or her individual 

preference regarding dissemination of 

personal contact information. 

The majority sees no need to permit 

employees to ‘‘unsubscribe’’ from 

petitioner-initiated electronic 

communications or phone calls. They 

observe that such an option ‘‘would do 

nothing to allay privacy concerns’’ 

occasioned by the employer’s initial 

mandated disclosure of employees’ 

available personal contact information. 

This observation would be accurate 

were the unsubscribe option to be the 

sole means for protecting privacy 

interests. In our view, however, any 

such option would at least have to work 

in tandem with a reasonable initial optout procedure. Thus, employees who 

decided not to opt out of the initial 

disclosure could later decide to stop 

receiving a petitioner’s messages by 

personal email or phone call. In any 

event, employees continue to have a 

privacy interest in their personal contact 

information even after the initial 

disclosure. 

Our colleagues assure that an 

unsubscribe option is unnecessary 

because ‘‘some’’ unions voluntarily 

provide this option anyway. If this is the 

case, then we have before us proof that 

such a procedure is reasonable and can 

be workable. And if, as our colleagues 

claim, the Controlling the Assault of 

Non-Solicited Pornography and 

Marketing Act of 2003 (‘‘the CAN– 

SPAM Act’’) 662 and Federal Trade 

Commission’s Do-Not-Call Rule 663

‘‘may already impose’’ a similar 

requirement for an unsubscribe option, 

we see no harm in making this 

requirement explicit and clear as 

applied to voter lists under Board law. 

Indeed, the Final Rule codifies the 

Excelsior rule’s requirement that 

employers provide voters’ names and 

home addresses even though this rule 

has stood for nearly 50 years without 

previously being codified. 

• Timing. As stated above, the Final 

Rule dramatically shortens the time for 

production of the voter list from the 

current 7 calendar days to 2 business 

days, absent agreement of the parties to 

the contrary or extraordinary 

circumstances specified in the direction 

of election. The 2-business-day 

maximum time limit, with the 

possibility of setting aside an election 

for failing to comply, is far too short a 

time period for a number of reasons. 

First, this timeframe is insufficient 

given the significant variation that exists 

among different potential bargaining 

units (e.g., large unit size,664 multi-site 

units 665). Second, certain industries and 

job classifications that have historically 

been recognized as involving substantial 

complexity (e.g., construction,666

education,667 entertainment, and 

contingent or regular part-time or oncall employees in, inter alia, the 

healthcare industry 668) will routinely 

need more than 2 business days to 

finalize a voter list. Third, the majority’s 

timeframe is unrealistic given the 

cumulative effect of the other 

accelerated time frames included in the 

Final Rule.669 Fourth, the rush to 

comply with the 2-day time limit for 

production of the Excelsior list can 

reasonably be expected to produce more 

inaccuracies in the substantially greater 

information that must now be provided. 


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670See, e.g., Mod Interiors, Inc., 324 NLRB I64 

(1997) (setting aside election where Excelsior list 

contained a significant number of inaccurate 

addresses). 

671As previously noted with respect to the 

required posting of the initial election notice, our 

colleagues seem greatly concerned with expediting 

the electoral process in general, but the possibility 

of delay from this second-chance failsafe 

opportunity apparently escapes such concern. 

672As noted by the majority, a study conducted 

by commenter and Professor Samuel Estreicher of 

data pertaining to blocking charges filed in 2008 

determined that the filing of blocking charges in a 

case increased the time to an election, on average, 

by 100 days. Samuel Estreicher, Improving the 

Administration of the National Labor Relations Act 

Without Statutory Change, 25 ABA J. Lab. & Emp. 

L. 1, 9–10 (2009). 

673See, e.g., Subrin, The NLRB’s Blocking Charge 

Policy: Wisdom or Folly? Labor Law Journal, Vol. 

39, No. 10 (October 1988). The author was for many 

years director of the Board’s Office of 

Representation Appeals. 

674See, e.g., NRTWLDF; Chamber II; COLLE; 

CDW II. 

675We say ‘‘arguably’’ because, as the majority 

notes, the General Counsel already accords ‘‘highest 

priority’’ to investigating blocking charges. 

Inasmuch as inaccuracies can be the 

basis for setting aside an election upon 

the timely filing of an objection,670 the 

Final Rule will likely make more rerun 

elections necessary when a union fails 

to secure a majority vote in the first 

election.671

Our colleagues largely dismiss these 

concerns. Primarily, they assume that 

advances in recordkeeping, retrieval, 

and record transmission technology 

warrant the reduction in time for 

production to 2 business days for all 

employers in the interest of 

‘‘expeditiously resolv[ing] questions of 

representation.’’ We can readily concede 

that some employers may be able to 

comply with the new 2-day deadline for 

production of the expanded Excelsior 

list, but the record falls far short of 

establishing that all, or even most, 

employers will be able to do so, 

particularly those who lack modern 

technology or who operate in industries 

with complex eligibility formulae. 

• Excelsior Disclosures—Summary. 

The majority relies on a bundle of 

assumptions to justify its rejection of the 

need for any privacy safeguards and its 

insistence that it is not onerous to 

require all employers to provide the 

expanded list in just 2 days. None of 

those assumptions bears a rational 

relation to the factual record before us 

or to statistically proven probabilities. 

What remains of the majority’s 

rationale is quite familiar. With respect 

to privacy concerns, they say that 

‘‘[w]ithout minimizing the legitimacy of 

the concerns underlying these 

comments, we conclude for the reasons 

that follow that the public interests in 

the fair and free choice of bargaining 

representatives and in the expeditious 

resolution of questions of representation 

outweigh the interests employees and 

employers have in keeping the 

information private.’’ With respect to 

the 2-day deadline, they reason that 

‘‘[s]hortening the time period from 7 

calendar days to 2 business days will 

help the Board to expeditiously resolve 

questions of representation, because the 

election—which is designed to answer 

the question—cannot be held until the 

voter list is provided.’’ It is readily 

apparent that the irrational need for 

speed in the pre-election period is the 

primary motivation for rejecting any 

impediment to shortening that period, 

even the allotment of a just a few extra 

days to allay significant privacy 

concerns and to facilitate employers’ 

accurate and timely compliance with 

the new Excelsior list requirements. 

(h) No Change in Blocking Charges 

and Resulting Delays—The failure to 

change the Board’s blocking charge 

policy perpetuates lengthy delays, and 

making it part of the Rule will impede 

future changes. As fully discussed in 

Section B below, the Final Rule fails to 

address the statistical ‘‘long tail’’ of 

representation cases that have actually 

been shown to account for a large 

portion of overall delay in 

representation case processing. Cases 

involving application of the current 

blocking charge policy are a major part 

of this ‘‘long tail.’’ 672 Also, as indicated 

in the NPRM, the blocking charge 

doctrine has not previously been 

codified in the Board’s formal Rules. In 

the Final Rule, however, the blocking 

charge policy is being retained—with 

the most minimal modifications—and it 

is being embedded in the Final Rule 

itself. This is retrenchment, not 

progress. 

As stated in Section 11730 of the 

Board’s Casehandling Manual for 

Representation Proceedings, ‘‘[t]he 

Agency has a general policy of holding 

in abeyance the processing of a petition 

where a concurrent unfair labor practice 

charge is filed by a party to the petition 

and the charge alleges conduct that, if 

proven, would interfere with employee 

free choice in an election, were one to 

be conducted.’’ However, the manual 

admonishes that ‘‘the policy is not 

intended to be misused by a party as a 

tactic to delay the resolution of a 

question concerning representation 

raised by a petition. Rather, the blocking 

charge policy is premised solely on the 

Agency’s intention to protect the free 

choice of employees in the election 

process.’’ 

The sense that the Board’s blocking 

charge policy causes problems in case 

processing is hardly a new concept.673

The Board has acknowledged the reality 

that its blocking charge policy can be 

improperly overutilized. See Shaw’s 

Supermarkets, 350 NLRB 585, 589 

(2007) (noting with respect to 

decertification petitions that ‘‘in many 

cases, blocking charges are filed and 

delay the election until the charges are 

resolved one way or another’’). Indeed, 

multiple comments describe 

experiences where unions filed unfair 

labor practice charges to block an 

upcoming decertification election that 

such unions concluded they were likely 

to lose.674 Our colleagues thus rightly 

acknowledge that ‘‘incumbent unions 

may abuse the policy by filing meritless 

charges in order to delay decertification 

elections.’’ We would add that unions 

filing initial election (RC) petitions may 

likewise file meritless blocking charges 

to delay an election and buy additional 

time for campaigning and shoring up 

support where electoral defeat appears 

likely. Of course, many unfair labor 

practice charges that currently block an 

election may have merit, or at least 

warrant litigation, just as many unit 

eligibility and inclusion issues raised by 

employers may have merit or warrant 

litigation. We wish our colleagues paid 

as much attention to the potential for 

unacceptable election delay from the 

former as they do to the latter. 

The Final Rule adopts from the NPRM 

and codifies certain evidentiary 

requirements applicable when a party 

requests than an unfair labor practice 

charge block the processing of an 

election petition. Specifically, the 

requesting party must ‘‘simultaneously 

file [with the Board], but not serve on 

any other party, a written offer of proof 

in support of the charge * * * * 

provid[ing] the names of the witnesses 

who will testify in support of the charge 

and a summary of each witness’s 

anticipated testimony.’’ Further, the 

party must ‘‘promptly make available to 

the regional director the witnesses 

identified in its offer of proof.’’ The 

Final Rule does not otherwise modify 

the extant blocking charge policy. Our 

colleagues’ stated purpose in adopting 

these requirements is ‘‘to protect against 

abuse of the blocking charge policy by 

those who would use the unfair labor 

practice procedures to unnecessarily 

delay the conduct of elections.’’ 

Although the Final Rule’s modest 

reforms to the blocking charge policy 

are arguably improvements over the 

status quo in the pre-complaint 

investigatory stage,675 they do not, 

standing alone, adequately address the 

frequent substantial delay in processing 


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676Casehandling Manual Sec. 11730.1. 

677 Ideal Electric Mfg. Co., supra (to be found 

objectionable, alleged conduct must occur in 

critical period between petition and election dates). 

678Casehandling Manual Sec. 11730. 

679See Sec. A.2., supra. 

680These arguments were referenced in the 

preamble accompanying the now-vacated final 

election rule issued in December 2011. See 76 FR 

80138 (2011) (prior final rule regarding 

representation case procedures with explanatory 

preamble). The preamble noted that many labor 

organizations cited research studies indicating that 

shorter election periods would result in ‘‘fewer 

unfair labor practices,’’ although the preamble also 

acknowledged that various management-side 

organizations ‘‘question[ed] the validity of such 

studies.’’ Id. at 80149 n.33. 

election petitions caused by blocking 

charges. In particular, we believe that 

the overbreadth of the current policy 

causes unacceptable delay in the 

conduct of elections even when the 

charge filing is not itself abusive of 

process. 

As indicated in Section 11730.1 of the 

Representation Casehandling Manual, 

‘‘[b]locking charges fall into two broad 

categories. The first, called Type I 

charges, encompasses charges that 

allege conduct that only interferes with 

employee free choice. The second, 

called Type II charges, encompasses 

charges that allege conduct that not only 

interferes with employee free choice but 

also is inherently inconsistent with the 

petition itself.’’ 676 In the Type I 

situation, unless the filing party 

requests that the election proceed, a 

petition is held in abeyance until the 

charge is dismissed or withdrawn, or if 

found meritorious, until final resolution 

of the ensuing unfair labor practice 

complaint litigation, which could take 

years. In the Type II situation, a merit 

determination will ordinarily result in 

the petition’s dismissal. 

In our view, experience has shown 

the Board should refrain from holding 

petitions in abeyance for Type I 

blocking charges. Current policy 

represents an anomalous situation in 

which some conduct that would not be 

found to interfere with employee free 

choice if alleged in objections, because 

it occurs outside the critical election 

period, would nevertheless be the basis 

for substantially delaying holding any 

election at all.677 Further, we find it 

paradoxical that the filing party, almost 

invariably a union in the blocking 

charge context, may control the timing 

of an election by requesting that it 

proceed. Objectively, if the Board’s 

stated intention in the blocking charge 

policy is ‘‘to protect the free choice of 

employees in the election process,’’ 678

it does not make sense for one party— 

in this case, the union that chooses to 

file a charge—to control whether or 

when employees exercise that choice by 

participating in the election. 

Even with the new pre-complaint 

evidentiary requirements, we also 

oppose having the blocking charge 

policy codified in the Board’s formal 

Rules. In this regard, we do not believe 

the Final Rule articulates a sufficient 

basis for incorporating the blocking 

charge doctrine, particularly since the 

Final Rule does not otherwise adopt any 

of the substantial potential changes 

referenced in the Proposed Rule, and 

codifying the policy is likely to impede 

or preclude further changes or 

improvements in this important area. At 

a minimum, we favor keeping the 

blocking charge policy out of our formal 

Rules during a 3-year trial period in 

which petitions will be routinely 

processed and elections conducted in 

Type I blocking charge cases, with the 

votes thereafter impounded, even in 

cases where a regional director finds 

that there is probable cause to believe an 

unfair labor practice was committed that 

would require the processing of the 

petition to be held in abeyance under 

current policy. The Board would then 

have empirical evidence for evaluation 

of the need for permanent amendment 

of the policy, weighing any benefits in 

eliminating protracted delay in the 

conduct of elections against possible 

risk to the exercise of employee free 

choice. 

Our colleagues decline to 

substantively modify the blocking 

charge policy principally because, as 

they claim, ‘‘holding a tainted election 

results in damage beyond that caused by 

the employer’s unfair labor practices, 

which damage cannot be fully remedied 

simply by conducting a rerun election.’’ 

Again, speaking only in reference to 

Type I cases—those not involving 

conduct that necessarily taints the 

petition process—it remains possible, 

even if the election takes place, for the 

union to file post-election objections 

and charges, causing the election to be 

set aside, followed by a rerun election. 

This remains the standard Board 

approach to election-related misconduct 

during the critical period. Given our 

colleagues’ relentless focus on 

conducting elections as soon as 

possible—in literally every other 

context addressed in the Final Rule—it 

is irrational and self-defeating to retain 

the blocking charge doctrine, which 

prevents many elections from taking 

place for years. 

In sum, the Final Rule’s incorporation 

of the current blocking charge policy 

with minimal pre-complaint changes 

provides nothing of meaningful value 

and leaves completely unaffected the 

enormous delays caused by this policy. 

Codifying the policy, without 

meaningful change, makes even more 

difficult the future prospect of giving 

this policy the serious attention and 

substantial reforms that, in our view, are 

warranted. 

B. The Final Rule Still Fails To Target 

Election Cases That Involve Too Much 

Delay 

The NLRA involves more than 

procedures in representation cases. The 

Act’s substance consists of important 

election-related rights, obligations, and 

constraints, including the prohibition 

against restraint or coercion by 

employers or unions regarding any 

employee’s exercise of protected 

rights.679 In our NPRM dissent, we 

noted the absence of proposals directly 

addressing the commission of unfair 

labor practices during an election 

campaign. Still, the Final Rule makes no 

overt changes regarding the Board’s 

treatment of unlawful election conduct 

by employers or unions. That is a matter 

for another day, say our colleagues. 

However, it is well known that many 

union advocates have argued for greatly 

expedited representation elections 

based on alleged employer misconduct 

that, it is claimed, adversely affects the 

outcome.680 They maintain that the 

longer the pre-election period is, the 

greater is the potential for such 

misconduct to take place. 

Notwithstanding the majority’s 

disclaimers, the absence of a rational 

justification for so many of the revisions 

discussed above that concentrate on the 

acceleration of the pre-election stage of 

representation case proceedings makes 

it difficult, if not impossible, to avoid 

the conclusion that the majority accepts 

the unions’ argument and that the Final 

Rule’s focus on the need for speed is 

compelled by this argument. 

Furthermore, to the extent that the 

Final Rule seeks to address 

unacceptable election delay, the 

objective evidence shows such delay 

occurs, at most, in only a very small 

percentage of Board-conducted 

elections. These relatively few cases do 

not provide a rational basis for rewriting 

the procedures governing all elections. 

The graph below, based on a 

breakdown of all NLRB initial elections 

conducted between 2008 and 2010, is 

republished from our Proposed Rule 

dissent and still illustrates this point. In 

more than 90 percent of those cases, 

elections occurred within 56 days after 

the filing of the petitions (these cases 


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681As noted previously, 56 days is the Board’s 

own traditional target for conducting at least 90 

percent of elections, a target that the Board has 

surpassed in recent years. See notes 560–562, 

supra, and accompanying text. 

682See John-Paul Ferguson, The Eyes of the 

Needles: A Sequential Model of Union Organizing 

Drives, 1999–2004, 62 Indus. & Lab. Rel. Rev.3, 10 

n.9 (Oct. 2008). 

683Manatees, sometimes known as ‘‘sea cows,’’ 

are large aquatic marine mammals considered to be 

relatives of the elephant. See http://

en.wikipedia.org/wiki/Manatee; http://

www.defenders.org/florida-manatee/basic-facts. 

The Florida manatee is Florida’s state marine 

mammal. Id. 

684State Farm, supra, 463 U.S. at 43. 

are reflected in the graph area appearing 

in white, marked ‘‘A’’). As noted 

previously, this represents a dramatic 

improvement over the Board’s track 

record since the early 1960s. 

Conversely, less than 10 percent of the 

cases identified in the graph involved 

elections that occurred more than 56 

days after petition-filing (these delayed 

cases are reflected in the graph area 

shaded in black, which is barely visible, 

to the right of the 56-day line). 

The case distribution in the graph 

shows there is no evidence of delay 

evenly apportioned across the universe 

of Board-conducted elections, i.e., delay 

affecting a large group of cases to a 

significant degree. In fact, the graph is 

far from a standard bell curve; it does 

not show any kind of significant 

distribution of cases greater than 56 

days between petition-filing and 

election.681 We are not the first to note 

this wildly uneven statistical 

distribution in the context of an asserted 

‘‘systemwide delay’’ problem. An earlier 

study addressing the same distribution 

findings accurately described the 

scattering of cases along the extended 

time continuum beyond 56 days as the 

‘‘long tail’’ of election cases.682 In other 

words, empirical data seem to disprove 

the existence of a systemwide delay 

problem, and instead demonstrate that 

delay is only an issue confined to a 

discrete minority of cases, possibly for 

issues unique to those cases. 

The Final Rule contains many 

references to increased speed and 

efficiency, but fails here by making no 

differentiation between the 

overwhelming majority of elections that 

already take place quickly and the 

relatively small number that do not. 

Instead, the Final Rule rewrites the 

procedures that govern all cases, the 

overwhelming number of which already 

take place quickly. 

Suppose, for instance, that the U.S. 

Fish and Wildlife Service had a 

mandate to stop the poaching of 

manatees, which reside almost 

exclusively in Florida.683 It would defy 

logic and common sense to deploy antipoaching rangers in all 50 states, when 

most states do not even have bodies of 

water where manatees live. This is 

precisely the approach reflected in the 

Final Rule. It applies almost entirely to 

elections that do not involve significant 

delay, while failing to identify and 

target the specific causes of delay in 

those few cases where employees are 

denied the opportunity to vote in a 

timely manner. 

As we have repeatedly stated in this 

opinion, every Federal agency has a 

legally mandated responsibility to take 

action that bears a rational relation to 

relevant facts and the matters being 

addressed.684 In this respect, even 

putting aside the many ways in which 

the Final Rule is contrary to statutory 

mandates (see Part A above), it creates 

poor public policy and is not rationally 

related to the genuine problems of delay 

in case processing. At a minimum, there 

needs to be a better fit between 

rulemaking in this important area and 

any problems that ostensibly warrant 

Agency action. 

In Section D below, we suggest 

rulemaking changes that would 

represent significant progress 

addressing the unacceptable delay in 

the ‘‘long tail’’ of representation cases. 

If our colleagues wish to immediately 

reduce the number of overage 

representation cases, they need look no 

further than the Board’s own pending 

caseload. As of October 1, 2014, the 

beginning of Fiscal Year 2015, there 

were 33 pre-election representation 

cases pending before the Board for over 

a year, 4 of which have been pending 

for over 3 years. Nothing prevents the 

Board from adjusting its own internal 

procedures—combined with due 

diligence, effort, and commitment, 

rather than rulemaking—to resolve all of 

these cases, and to ensure that every 

future representation case is timely 

resolved. Indeed, the countless number 

of hours spent by Board personnel in 

rulemaking might much better have 

served the purpose of expeditiously 

processing representation cases by 

attending to this problem. In Part D 

below we identify measures that, in our 

view, would accomplish these 

objectives and otherwise improve 

representation procedures consistent 

with the Board’s responsibilities under 

the Act. 


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685Section 9(c)(1). For example, the Final Rule 

ostensibly places authority in regional directors to 

exclude evidence (which conclusively precludes 

review by the regional directors and the Board 

regarding excluded matters), but it remains clear 

that hearing officers—not regional directors— 

preside over the hearing; and we believe the 

exclusion of evidence regarding issues like voter 

eligibility will improperly limit the scope of the 

hearing, contrary to Section 9(c)(1)’s ‘‘appropriate 

hearing’’ requirement. The Final Rule, therefore, 

will predictably cause litigation over hearing officer 

rulings that exceed what is permitted by Section 

9(c)(1) and Bennett Industries, Inc., 313 NLRB 1363, 

1363 (1994). 

686 In the Final Rule, a non-petitioning party can 

now modify a Statement of Position ‘‘for good 

cause’’; the inapposite use of the term ‘‘joinder’’ is 

eliminated, as is inapposite reliance on language 

drawn from the summary judgment standard in 

Federal Rule of Civil Procedure 56; contested issue 

requirements are revised to expressly exempt from 

preclusive effect a party’s ability to challenge the 

eligibility of any voter during the election; and the 

mandate to require offers of proof on a potential 

issue prior to the introduction of testimony is 

eliminated. 

687We nevertheless strongly disagree with the 

suggestion that limited caselaw supports a Board 

practice permitting a region to regire the filing of 

a motion to quash in less than 5 days. Such a 

requirement would be in direct conflict with the 

express language of Section 11(1) of the Act, which 

mandates a minimum of 5 days for a motion to 

quash. 

688The significance of this revision is limited, 

due to our colleagues’ determination that employers 

must ordinarily allow their employees access to 

work email systems to engage in organizational 

activities. See Purple Communications, supra. 

689 79 FR at 7318. 

690 Id. 

691Atchison, T. & S. FR Co. v. Wichita Bd. of 

Trade, 412 U.S. 800, 807–08 (1973). 

C. The Final Rule Still Does Not Reflect 

A Comprehensive De Novo Examination 

of Important Election Issues 

We credit our colleagues for affording 

the opportunity to have renewed public 

comment on the republished NPRM. 

Further, we recognize that they have 

made some changes in the Final Rule 

that we support. For example, (1) the 

Final Rule abandons the proposal to 

eliminate pre-election requests for 

review and pre-election requests to stay 

the election, which the statute requires 

the Board to permit; (2) the Final Rule 

recognizes to some degree that the Act 

does not permit hearing officers even to 

make ‘‘recommendations’’ regarding 

election issues (although we believe 

these changes do not adequately cure 

the improper vesting of controlling 

authority in hearing officers); 685 (3) 

some restrictive provisions pertaining to 

the new Statement of Position and issue 

preclusion requirements have been 

modified; 686 (4) the 20 percent 

evidence-exclusion rule is no longer a 

mandatory standard; (5) the proposal to 

state in the Rule that parties have a 

maximum of 5 days to move to quash 

a subpoena has been abandoned; 687 and 

(6) the expanded Excelsior list 

disclosure requirements do not mandate 

employers to furnish the work email 

addresses and work phone numbers of 

eligible voters.688

However, the Final Rule clearly 

retains essential elements from the 

Proposed Rule that the Board issued in 

June 2011, which generated more than 

65,000 sets of written public comments, 

with a further 66 individuals 

representing nearly as many different 

organizations making oral presentations 

to the Board. It is true that our 

colleagues incorporated by reference the 

entire administrative record of the 2011 

rulemaking, including ‘‘numerous 

arguments both for and against the 

proposals,’’ 689 rather than requiring the 

public to resubmit the same comments. 

And the Proposed Rule stated ‘‘[a]ll of 

this material will be fully considered by 

the Board in deciding whether to issue 

any final rule’’ (emphasis added).690

However, we believe the Board should 

have considered this voluminous 

material before determining the 

contours of the 2014 Proposed Rule. 

Having reviewed the earlier material 

and more recent additional comments 

and oral presentations, we believe the 

Board should have published an 

amended Proposed Rule for further 

comment. Even putting aside our 

disagreements with the Final Rule, the 

scope of the proposed changes 

combined with the voluminous, diverse 

comments received by the Board make 

it advisable, at the least, to do now what 

we believe our colleagues should have 

done when, in February 2014, they 

republished the 2011 NPRM. 

The Board is an independent agency, 

first and foremost. We would serve the 

public better by ‘‘listening first, 

formulating later’’ instead of 

‘‘formulating first, listening later.’’ Once 

the NPRM issued anew, it necessarily 

reflected a conscious set of public 

policy choices or preferences. Just as the 

exchange of views during bargaining 

leads to improved outcomes and 

furthers industrial peace, so does 

engagement with the public in 

rulemaking. The Act itself disfavors the 

assumption that there is a ‘‘perfect 

initial offer’’ leaving nothing to discuss. 

See General Electric, 150 NLRB 192 

(1964), enfd. 418 F.2d 736 (2d Cir. 

1969), cert. denied 397 U.S. 965 (1970). 

From the beginning of this particular 

era of a confirmed five-Member Board in 

August 2013, we already had before us 

an enormous record in this rulemaking 

proceeding. Further, there was an 

apparent commitment to proceed with 

rulemaking. Why, then, would it not 

have been preferable to review what was 

not definitively reviewed until later? In 

the 6 months before republication of the 

original NRPM in February 2014, there 

was ample opportunity to consider and 

include the revisions discussed above in 

a new, modified Proposed Rule. The 

modified NPRM would have 

represented an appreciable midpoint for 

further comment in this proceeding, a 

far preferable alternative to the first 

disclosure of revisions in the Final Rule 

without further opportunity for public 

comment. The republication of the 

original NPRM could not help but 

convey the impression that the Board 

majority was set on an intractable 

course. The issuance of this Final Rule, 

presenting no opportunity for revisions 

of the NPRM’s proposals, does not alter 

that impression. 

The conduct of elections lies at the 

heart of the Board’s statutory 

responsibilities, and the rulemaking 

path taken by the current Board to this 

point is far too suggestive of a fait 

accompli. Inasmuch as there will be no 

opportunity for public comment on the 

Final Rule, it falls to us to discuss its 

provisions in the foregoing sections of 

this opinion and, in the next section, to 

explain why it would be far better to 

take a different approach. 

D. The Path Not Taken 

We support rulemaking if it is 

necessary to address relevant issues 

consistent with the Board’s authority 

and the Act’s requirements. We join our 

colleagues in their overall desire to 

more effectively protect and enforce the 

rights and obligations of parties subject 

to the Act. We fully agree that the Board 

should do everything within its power 

to conduct representation elections in a 

way that gives effect to employee free 

choice. And we agree that the Board 

should work aggressively in carrying out 

its statutory responsibilities to everyone 

covered by the Act. 

Our opposition to the Final Rule 

stems from its variance from choices 

already made by Congress, in addition 

to provisions that predictably will cause 

unfairness and adverse consequences 

for many parties. The most important 

threshold question to answer—still not 

adequately explained in the Final 

Rule—is whether and why such 

expansive rulemaking is necessary at 

all. As the Supreme Court has stated, a 

‘‘settled course of behavior embodies 

the agency’s informed judgment that, by 

pursuing that course, it will carry out 

the policies committed to it by 

Congress. There is, then, at least a 

presumption that those policies will be 

carried out best if the settled rule is 

adhered to.’’691


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692 79 FR 7340, 7344, 7347. 

693See note 576, supra, and accompanying text. 

694 Farmers Union Central Exchange, Inc. v. 

FERC, 734 F.2d 1486, 1511 (D.C. Cir. 1984). 

695City of Brookings Municipal Telephone Co. v. 

FCC, 822 F.2d 1153, 1169 (D.C. Cir. 1987). 

Regarding the substance of the Final 

Rule, we believe there would be broader 

support, substantially less opposition, 

and greatly enhanced prospects for 

judicial enforcement if the Final Rule 

took a more limited, better defined, and 

less potentially disruptive form that had 

unanimous support among Board 

members. We believe reasonable 

changes incorporating the following 

elements, had they been accepted by our 

colleagues, would also have broad-based 

support among scholars, practitioners, 

and advocates for employees, unions 

and employers. 

1. Address the ‘‘Speed’’ Issue. For the 

reasons stated in our dissent to the 

Proposed Rule,692 we believe it is 

important that the Board provide 

guidelines regarding reasonable 

minimum and maximum times between 

the filing of a representation petition 

and the holding of the election. The 

majority continues to reject this 

suggestion, focusing almost exclusively 

on their objection to the setting of a 

minimum time. In their view, such an 

action is not necessary to accord with 

Congressional intent or to assure against 

infringement of free speech rights. As 

we have discussed at length, we 

disagree with the majority on these 

critical points. 

We believe it would be reasonable to 

have a minimum guideline time period 

between 30 and 35 days from petitionfiling to election. This would be 

consistent with the indications that 

Congress intended that employees 

should have no fewer than 30 days 

between petition-filing and an election 

to become familiar with relevant 

issues.693 This standard would also 

permit other reasonable efforts to 

streamline election procedures, while 

retaining the 7-day period for having 

post-hearing briefs and a reasonable 

time for parties to file pre-election 

requests for Board review of regional 

director decisions and actions. 

We also believe to the Board should 

establish a maximum guideline period 

of 60 days from petition to election, 

unless the Board or the regional director 

(subject to Board review) determines 

that unusual circumstances preclude 

holding the election within this 60-day 

timeframe. As previously discussed, 90 

percent of Board elections are already 

held within 56 days or less after a 

petition is filed. With few exceptions, 

we believe a 60-day maximum 

represents a rational and attainable 

standard for all elections. 

2. Address the Specific Issues 

Responsible for Delayed Elections. As 

noted above, there have been particular 

cases—few in number—where elections 

and related issues have taken too long 

to resolve. Rather than engaging in a 

wholesale revision of the procedures 

applicable to all elections, the Final 

Rule should directly address the 

particular reasons that have contributed 

to those relatively few elections that 

have involved unacceptable delay 

(depicted as the statistical long ‘‘tail’’ in 

the above graph). 

Again, a prime candidate is the 

Board’s ‘‘blocking charge’’ doctrine 

(which permits parties to indefinitely 

delay an election by filing certain unfair 

labor practice charges, addressed in our 

recommendation no. 3 below). More 

generally, there is no lack of data 

regarding factors that may have 

contributed to the relatively small 

number of cases involving too much 

time. This data should be carefully 

examined, with a view towards targeting 

the problem cases, rather than 

reformulating the procedures governing 

all elections. 

3. Reform the Board’s Internal 

Procedures So Election Issues Are 

Addressed More Quickly, and Eliminate 

Blocking Charge Deferrals for a ThreeYear Trial Period. One of the biggest 

contributors to the delays associated 

with resolving election-related issues is 

the time that particular cases are 

pending before the Board, rather than in 

regional offices. The Final Rule does not 

foreclose changes in the Board’s internal 

election case-handling procedures, but 

the Final Rule’s expansive rewriting of 

the rules govering all elections—before 

the Board explores improvement in its 

own election case-handling—obviously 

undermines any argument that the Final 

Rule’s changes are necessary. 

The far better approach, in our view, 

would be for the Board to exhaust—or 

at least attempt—reasonable 

improvements in its own election 

casehandling practices, possibly 

combined with targeted changes, such 

as the 3-year trial period for ‘‘blocking 

charge’’ reform that we advocate. This 

change and similar targeted 

improvements could result in having 

nearly all elections occur between 30 

and 60 days after petition-filing, while 

obviating the need to change other 

election procedures that are well known 

and have well served parties and the 

Board for many decades. 

4. Aggressively Pursue Measures to 

Prevent and Remedy Unlawful Election 

Conduct. To the extent that unlawful 

employer or union conduct occurs 

during any election, this is already 

prohibited by the Act, and we continue 

to support aggressive Board enforcement 

and the formulation of effective 

remedies, including the pursuit of civil 

and criminal contempt sanctions to the 

extent available under the Act and 

Federal law. We continue to believe one 

of the greatest deficiencies in the Final 

Rule is its failure to address these 

substantive issues in any meaningful 

way. The Act deserves to be enforced by 

the Board, and to be respected by the 

parties, as much as any other Federal or 

state legal requirements. See, e.g., HTH 

Corp. d/b/a Pacific Beach Corp., 361 

NLRB No. 65 (2014) (addressing 

enhanced remedies and various Board 

member views regarding recurring 

unfair labor practices). Of course, the 

Board may not presume the existence of 

unlawful conduct, and much of the 

Board’s statutory responsibility involves 

the adjudication of unfair labor 

practices if they are alleged. However, 

when violations of the Act occur, 

including instances where they affect 

elections, they should be dealt with 

promptly and aggressively by the Board, 

and we support further consideration of 

ways in which employer or union 

violations can be more effectively 

remedied. 

5. Deal with the Need to Preserve and 

Enhance Privacy. Although the 

Proposed Rule solicited public input 

concerning the safeguarding of privacy 

interests regarding personal 

information, and the possibility of 

giving employees the opportunity to 

choose whether and how any personal 

information might be disclosed, the 

Final Rule dispenses with any 

meaningful effort to address these 

concerns. 

6. Summary. Under the State Farm 

‘‘arbitrary and capricious’’ standard, an 

agency engaged in policymaking has ‘‘a 

duty to consider responsible alternatives 

to its chosen policy and to give a 

reasoned explanation for its rejection of 

such alternatives.’’ 694 This is 

particularly so where, as here, ‘‘the 

choice embraced suffers from 

noteworthy flaws.’’ 695 To that end, we 

regret that our colleagues would not 

consider enacting a limited final rule 

and implement other procedural 

changes outside the rules. 

Conclusion 

The Final Rule represents the 

culmination of a rulemaking process 

characterized by discontinuity, a nearcomplete change in the Board’s 

composition, an unprecedented number 

of comments espousing widely 

divergent views, and the rewriting of 


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696NLRB v. Savair Mfg. Co., 414 U.S. 270, 278 

(1973). 

697NLRB v. Action Automotive, 469 U.S. 490, 498 

(1985). 

698 In the Board’s judgment, only the changes 

pertaining to contact information provided in the 

voter list may arguably be considered substantive. 

Cf. NLRB v. Wyman-Gordon Co., 394 U.S. 759 

(1969) (assuming arguendo that the Excelsior list 

requirement is a substantive rule). As discussed 

below, the cost of including additional information 

in the voter list is not significant under the RFA. 

The codification of extant blocking charge policy in 

the regulations may also be considered substantive, 

but mere codification imposes no costs on small 

business, and the only changes to blocking charge 

policy are clearly procedural. 

699This conclusion is in contrast to those cases 

in which courts have found that agencies have 

expressly waived an APA exemption by publishing 

a rule or regulation stating that it will only use 

notice-and-comment procedures to promulgate or 

amend its regulations regardless of whether an APA 

exemption is applicable. See, e.g., Yesler Terrace 

Cmty. Council v. Cisneros, 37 F.3d 442, 447–448 

(9th Cir. 1994) (Department of Housing and Urban 

Development adopted requirements for notice and 

comment rulemaking in 24 CFR 10.1 and expressly 

waived APA exemption); Humana of South 

Carolina, Inc. v. Califano, 590 F.2d 1070, 1084 

nn.103 & 104 (D.C. Cir. 1978) (Department of 

Health, Education and Welfare expressly waived 

APA exemption in 36 FR 2532 adopting notice-andcomment procedures); Rodway v. Dep’t of 

Agriculture, 514 F.2d 809, 814 (D.C. Cir.1975) 

(express waiver of APA exemption by Department 

of Agriculture at 36 FR 13804). The Board has 

published no such rule or regulation requiring such 

procedures for amendment of its rules. 

virtually all procedures governing 

Board-conducted representation 

elections. The end result has been 

predictable only in its nearly complete 

conformity to what the Board originally 

proposed. In this regard, we believe the 

Final Rule is inconsistent with the Act 

and Congressional intent. It fails to 

provide adequate protection of 

employee rights of free choice and 

privacy and of all employees’ and 

parties’ rights of free speech and 

procedural due process. Although our 

colleagues go to great lengths to suggest 

the Final Rule’s amendments do nothing 

more than reflect best practices and 

respond to changing times, we are not 

convinced. ‘‘Any procedure requiring a 

‘fair’ election must honor the right of 

those who oppose a union as well as 

those who favor it. The Act is wholly 

neutral when it comes to that basic 

choice.’’ 696 Necessarily, the Board itself 

has a statutory obligation to ‘‘remain 

‘wholly neutral’ as between the 

contending parties in representation 

elections.’’ 697 Unfortunately, the 

inescapable impression created by the 

Final Rule’s overriding emphasis on 

speed is to require employees to vote as 

quickly as possible—at the time 

determined exclusively by the 

petitioning union—at the expense of 

employees and employers who 

predictably will have insufficient time 

to understand and address relevant 

issues. 

The Board would better serve 

employees, unions and employers—and 

the public interest in general—by 

undertaking a more neutral, limited and 

even-handed approach, which would 

focus on specific problems in our 

representation procedures and 

formulate targeted solutions. Under our 

existing procedures, the Board has been 

extremely successful, with very few 

exceptions, in conducting elections and 

resolving all election issues without 

significant delay. We support reasonable 

efforts to make the Board’s 

representation procedures as fair and 

effective as possible. However, we 

believe this is not accomplished by the 

Final Rule. Accordingly, for the reasons 

stated above, we respectfully dissent. 

VIII. Comments on Other Statutory 

Requirements 

The Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(‘‘RFA’’), 5 U.S.C. 601 et seq., requires 

agencies to prepare a regulatory 

flexibility analysis if the regulations will 

have a significant economic impact on 

a substantial number of small entities. 

The purpose of the RFA is to ensure that 

agencies ‘‘review rules to assess and 

take appropriate account of the potential 

impact on small businesses, small 

governmental jurisdictions, and small 

organizations, as provided by the 

[RFA].’’ E.O. 13272, 67 FR 53461 

(‘‘Proper Consideration of Small Entities 

in Agency Rulemaking’’). 

The RFA only requires analysis of a 

rule, however, where notice and 

comment rulemaking is required. 5 

U.S.C. 604(a). The provisions of this 

final rule are generally procedural and 

could have been promulgated without 

notice and comment under the APA, 5 

U.S.C. 553(b)(3)(A) (‘‘this subsection 

does not apply * * * to interpretative 

rules, general statements of policy, or 

rules of agency organization, procedure, 

or practice) (emphasis added).698 These 

procedural provisions change the 

manner in which parties present 

themselves or their viewpoints to the 

Board in one category of cases, but do 

not alter the rights or interests of the 

parties. Batterton v. Marshall, 648 F.2d 

694, 707 (D.C. Cir. 1980) (‘‘A useful 

articulation of the [APA’s] exemption’s 

critical feature is that it covers agency 

actions that do not themselves 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.’’). Despite its 

use of notice-and-comment procedures, 

and RFA certification, to promulgate 

and amend the rules here, the Board has 

not waived the exemption, because 

voluntary compliance with procedures 

will not operate as a waiver of the 

exemptions. Baylor Univ. Med. Ctr. v. 

Heckler, 758 F.2d 1052, 1059 n.12 (5th 

Cir. 1985); Malek-Marzban v. 

Immigration & Naturalization Serv., 653 

F.2d 113, 116 (4th Cir. 1981); 

Washington Hosp. Ctr. v. Heckler, 581 F. 

Supp. 195, 199 (D.D.C. 1984).699

Nevertheless, in the interests of 

providing the public with additional 

information regarding the rule’s effects, 

as a matter of discretion, the Board is 

providing the analysis contemplated by 

Section 605 of the RFA for the entire 

rule. 

Under Section 605, an agency is not 

required to prepare a regulatory 

flexibility analysis if the agency head 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 5 

U.S.C. 605(b). To so certify, the agency 

must publish the certification in the 

Federal Register and include ‘‘a 

statement providing the factual basis for 

such certification.’’ Id. 

In its Notice of Proposed Rulemaking, 

the Board determined that the proposed 

rule would not have a significant 

economic impact on a substantial 

number of small entities within the 

meaning of 5 U.S.C. 605(b). 79 FR 7349– 

7350. There, the Board invited 

comments from the public regarding the 

entire rule, including this certification. 

Id. at 7318. The Board has reviewed 

those comments and has concluded that 

certification remains appropriate. 

Accordingly, the Board’s Chairman 

hereby certifies to the Chief Counsel for 

Advocacy of the Small Business 

Administration (‘‘SBA’’) that the 

amendments will not have a significant 

economic impact on a substantial 

number of small entities. 

The Chamber asks the Board to 

provide more detailed calculations and 

cost estimates for its certification. 

Similarly, other comments including 

those from NAM, CNLP, COLLE, COSE, 

NFIB, AEM, and NRF expressed concern 

that the Board underestimated the 

economic impact of the rule in its 

certification. The Board believes that the 

NPRM’s certification was adequate, but 

seeks to be responsive to comments 

received. To that end, the Board will 

provide the more detailed analysis of 

the economic impact of the regulation 

below. 

The analysis supports the Board’s 

conclusion. As the analysis will show, 

the provisions of the final rule will 

cause less than one small entity per year 

to incur a significant economic impact. 


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700 In this analysis, the Board has relied on 

publically available data, particularly data from the 

United States Census Bureau’s Survey of United 

States Businesses, as well as agency data and 

expertise to provide reasonable estimates. This 

agency data is included in the administrative record 

of this proceeding. 

701There were 1986 RC, 472 RD, and 49 RM 

petitions. An additional 145 other petitions were 

filed (UD, UC, AC) but these matters are generally 

not impacted by the final rule and will not be 

included in this analysis. See NLRB Graphs & Data, 

Petitions and Elections, http://www.nlrb.gov/newsoutreach/graphs-data/petitions-and-elections/ (last 

visited July 15, 2014). 

702NAM claims that the rule will cause an 

increase in representation petitions. The Board 

considers that prediction to be speculative. Even if 

the number of representation petitions goes up, for 

the reasons discussed below, the Board reaffirms its 

certification, because only a very small percentage 

of regulated small entities are significantly affected 

by the costs of the final rule. 

This is not a substantial number of 

small entities. 

We start with a few key definitions. 

The RFA does not define either 

‘‘significant economic impact’’ or 

‘‘substantial number of small entities.’’ 

5 U.S.C. 601. In the absence of specific 

definitions, ‘‘what is ‘significant’ or 

‘substantial’ will vary depending on the 

problem that needs to be addressed, the 

rule’s requirements, and the preliminary 

assessment of the rule’s economic 

impact. The agency is in the best 

position to gauge the small entity 

impacts of its regulation.’’ SBA Office of 

Advocacy, ‘‘A Guide for Government 

Agencies: How to Comply with the 

Regulatory Flexibility Act’’ (‘‘SBA 

Guide’’) at 18, http://www.sba.gov/sites/ 

default/files /rfaguide_0512_0.pdf. 

The Board has assessed ‘‘significant 

economic impact’’ upon a small entity 

by examining whether increased costs 

under the rule exceed 1% of that 

entity’s estimated gross annual receipts. 

This determination is consistent with 

guidance from the SBA’s Office of 

Advocacy, which indicates that a cost 

might be significant if ‘‘the costs of the 

proposed regulation * * * exceeds 1 

percent of the gross revenues of the 

entities in a particular sector.’’ SBA 

Guide at 19. 

The Board has determined that a rule 

impacts a substantial number of small 

entities when the total number of small 

entities impacted by the rule is equal to 

or exceeds 10 percent of the relevant 

universe of small entities. This 

determination is equal to assessments in 

regulations promulgated from the 

Department of Labor, see, e.g., 

Temporary Non-Agricultural 

Employment of H–2B Aliens in the 

United States, 77 FR 10038, 10144 

(2012). 

The Board has used the definitions of 

small entities promulgated by the 

United States SBA. See U.S. Small 

Business Administration, ‘‘Small 

Business Size Standards,’’ http:// 

www.sba.gov/content/small-businesssize-regulations. For this analysis, the 

Board applied information from the 

North American Industry Classification 

System (NAIC) to its most recent data on 

representation petitions.700

With these definitions in mind, we 

first consider the costs that entities that 

are not party to a representation case 

proceeding may choose to voluntarily 

incur. Second, we consider the changes 

generally relating to filing or responding 

to a petition, and the new costs 

associated with these changes. Third, 

we consider the costs impacting only a 

small number of proceedings. Finally, 

we summarize changes which impose 

no new costs. In each of these groups, 

the Board has reviewed the estimated 

costs and determined that the rule does 

not impose a significant economic 

impact on a substantial number of small 

entities. 

Some background on the Board’s 

representation case docket is in order. In 

FY2013, a total of 2,507 RC, RD, and RM 

representation proceedings were 

initiated.701 A total of 205 pre-election 

hearings were held. Post-election 

litigation in some form also took place 

following the election in 216 cases, 

hearings were held in 54 cases, and 

exceptions were filed in 32 cases. 

Blocking charges were filed in 223 

cases. We expect this data to be similar 

in future years.702

TABLE 1—FREQUENCY OF THE USE OF

PARTICULAR PROCEDURES DURING

ELECTION CASES

Total Percent 

‘‘R’’ cases 

Petitions ................ 2507 n/a 

Pre-election hearings .................... 205 8.2 

Challenges or objections .............. 216 8.6 

Post-election hearing ..................... 54 2.1 

Post-election exceptions ............. 32 1.3 

Blocking charges .. 223 8.9 

Certain changes to Board procedure 

instituted in the final rule will apply to 

all or most representation cases. Those 

provisions, however, are unlikely to 

impose a significant economic impact 

upon any regulated small entity. To the 

extent that the changes in the final rule 

have the potential to significantly 

increase costs for any small entities, 

those costs primarily occur in cases 

where post-election hearings are held, 

and parties appeal the hearing officer’s 

report. Such cases are a small minority 

of all representation cases, and as we 

demonstrate below, the costs associated 

with those cases significantly affect less 

than 10% of the relevant small entities. 

A. Entities That Are Not Party to a 

Representation Case Proceeding 

In response to the Board’s proposed 

rule, some of the comments assert that 

the rule would impose costs upon all 

employers subject to the jurisdiction of 

the Board, because each must, for 

example, read and understand the rule, 

train human resources and management 

staff concerning the rule, educate their 

employees about the rule, and find or 

hire labor counsel to provide advice 

concerning the rule. Comments of this 

type were submitted by the Chamber, 

NAM, NRF, and NFIB, among others. 

NRF, the Chamber, and COLLE posited 

that the rule would change employers’ 

typical reactive approach to election 

petitions to proactive employee 

education about unionization and/or 

require employers to maintain a 

constant state of alert for union 

organization and create HR protocols to 

deal with potential future elections. 

The Board disagrees that any of those 

costs are compelled by the rule where 

there is no representation case 

proceeding. The RFA does not require 

an agency to consider wholly 

discretionary employer expenditures. 

Rather, the RFA requires an agency to 

consider the direct burden that 

compliance with a new regulation will 

likely impose on small entities. See MidTex Elec. Co-op v. FERC, 773 F.2d 327, 

342 (D.C. Cir. 1985) (‘‘[I]t is clear that 

Congress envisioned that the relevant 

‘economic impact’ as the impact of 

compliance with the proposed rule on 

regulated small entities.’’); accord White 

Eagle Co-op. Ass’n v. Conner, 553 F.3d 

467, 478 (7th Cir. 2009); Colo. State 

Banking Bd. v. Resolution Trust Corp., 

926 F.2d 931, 948 (10th Cir. 1991). This 

construction of the RFA is supported by 

Sections 603 and 604 of the RFA, which 

list the items to be included in a 

regulatory flexibility analysis (if one is 

required). In describing the impact, 

agency analysis must contain ‘‘a 

description of the projected reporting, 

recordkeeping and other compliance 

requirements of the proposed rule, 

including an estimate of the classes of 

small entities which will be subject to 

the requirement and the type of 

professional skills necessary for 

preparation of the report or record[.]’’ 

E.g., 5 U.S.C. 604(a)(4) (emphasis 

added). Guidance from the SBA also 

supports this construction of the RFA 

because it cites only direct, complianceVerDate Sep<11>2014 02:39 Dec 13, 2014 Jkt 235001 PO 00000 Frm 00155 Fmt 4701 Sfmt 4700 E:\FR\FM\15DER2.SGM 15DER2

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703The same guidance requires agencies to 

consider the cost of professional expertise, 

including lawyers, as needed to comply with any 

recordkeeping requirements imposed by the 

regulation. Because this rule imposes no 

recordkeeping requirement, small entities need not 

retain such professional expertise to comply with 

this rule. SBA Guidance at 36. 

704The rules do not assume pre-petition 

familiarity. Indeed, as discussed above, helping 

small businesses familiarize themselves with Board 

procedures is one of the important functions of the 

enhanced instructions and notice provided when 

the petition is served under the new rules. No 

monetary penalties or fines are assessed against 

employers who fail (for whatever reason) to comply 

with the rule, and the instructions given to the 

employer note that the Board agent at the regional 

office can provide assistance with a number of 

aspects of Board procedure. The cost estimates set 

forth below assume that an employer has not 

undertaken any preparation prior to receiving an 

election petition. 

Nonetheless, the Board agrees that an employer 

who has not received a petition may voluntarily 

choose to read the rule. A labor compliance 

employee at a small employer who voluntarily 

undertook to generally familiarize him- or herself 

with the changes in this final rule may take at most 

2 hours to read FAQ’s and other explanatory 

documents published by the Board, and perhaps the 

summary of the rule in the introductory section of 

the preamble. It is also possible that a small 

employer might wish to consult with an attorney 

(est. 1 hour). Combined, this would cost [2 hr × 

$37.58 + 1 hr × 78.58] $153.71. See infra, discussing 

wage statistics. This would not be a significant 

impact on a substantial number of small entities. 

705The Chamber states that it does ‘‘not know 

how many employers would undertake such 

[education] efforts.’’ Other similar comments also 

lack factual support or are conclusory, including 

NRF’s assertion that this rule will require 

employers to preemptively educate their 

employees, COLLE’s assertion that the NPRM’s RFA 

certification was a ‘‘fait accompli,’’ and NAM’s 

comment that the sheer number of comments 

indicates that small businesses dispute the Board’s 

conclusion that they will not be significantly 

impacted by the rule. COLLE’s suggestion that the 

Board must prove that employers will not engage 

in additional training in response to the final rule, 

is similarly not required by the RFA. 

706The vast majority of all labor unions are small 

entities as defined by the SBA. The SBA’s ‘‘small 

business’’ standard for ‘‘Labor Unions and Similar 

Labor Organizations’’ is $7.5 million dollars in 

annual revenue. 13 CFR 121.201. In 2007, the most 

recent year for which data on annual receipts are 

available, 322 out of 15,006 labor unions had 

receipts equal to or greater than $7.5 million. See 

http://www2.census.gov/econ/susb/data/2007/us_

6digitnaics_receipt_2007.xls, NAICS classification 

#81393. 

707We do not have information directly 

applicable to the method of service of the petition, 

but, by analogy to the electronic filing of briefs and 

other documents, we estimate that this procedure 

will be used approximately 84% of the time. In 

addition, data relating to the method of filing of the 

petition (where hitherto electronic filing has not 

been permitted) suggests that, in situations where 

electronic service will not be used, express mail 

will be used 73% of the time, fax 15%, and 

personal service 12%. This is the basis for the 

estimates above. 

708 ‘‘Organizer’’ and ‘‘business agent’’ job titles are 

not analyzed by the Bureau of Labor Statistics May 

2013 Occupational Employment Survey; however, 

there is a listing for ‘‘Labor Relations Specialist’’ 

(13–1075), and the median hourly wage for such an 

employee is $26.27. Base wages, however, are only 

69.9% of a private employer’s costs according to 

June 2014 data from BLS Employer Costs for 

Employee Compensation. Thus, to account for the 

based costs as examples of financial 

burdens that agencies must consider: 

(a) Capital costs for equipment needed to 

meet the regulatory requirements; (b) costs of 

modifying existing processes and procedures 

to comply with the proposed rule; (c) lost 

sales and profits resulting from the proposed 

rule; (d) changes in market competition as a 

result of the proposed rule and its impact on 

small entities or specific submarkets of small 

entities; (e) extra costs associated with the 

payment of taxes or fees associated with the 

proposed rule; and (f) hiring employees 

dedicated to compliance with regulatory 

requirements. 

SBA Guide at 37.703

Thus, nothing in the RFA, its prior 

construction, or SBA guidance suggests 

that the Board must consider the wholly 

discretionary expenditures that an 

employer which is not party to a 

representation proceeding may choose 

to incur. Instead, the ‘‘impact’’ analysis 

required under the RFA focuses on 

direct compliance costs. The final rule 

imposes no such costs on small entities 

not party to a representation proceeding. 

There will be no ‘‘reporting, 

recordkeeping and other compliance 

requirements’’ for these small entities. 

See 5 U.S.C. 603(b)(4), 604(a)(4). And 

the final rule imposes on them no 

mandatory capital costs, no mandatory 

costs of modifying existing processes, 

no costs of lost sales or profits, and no 

costs of changed market competition. 

See SBA Guide at 37. For small entities 

not party to representation proceedings, 

there are no costs associated with taxes 

or fees and no costs for additional 

employees dedicated to compliance, as 

no compliance requirements exist. See 

id. Finally, there is no reason why a 

small entity not party to a 

representation proceeding would hire or 

otherwise retain employees dedicated to 

compliance with the final rule any more 

than it would have under the current 

rules. Of course, employers may train 

their managerial and supervisory staff 

and educate their employees as they 

wish, but compliance with the final rule 

does not require such action.704

Similarly, the rule does not require 

employers that do not receive an 

election petition to educate their 

employees or conduct anti-union 

campaigns.705 Under both existing 

regulations and the new final rule, 

employers have the right to noncoercively state their views (whether 

positive or negative) about unionization 

generally or about particular unions, at 

any time, whether or not an election 

petition has been filed. Employers also 

have the right to refrain from expressing 

any such views. This rule does not 

change any of that. Costs incurred in 

conducting such campaigns are 

discretionary and beyond the scope of 

RFA analysis. Thus, there is no direct 

economic impact within the meaning of 

the RFA to small entities not receiving 

an election petition in a given year. 

B. Changes Relating To Filing or 

Responding to a Petition 

1. Service of the Petition 

We now analyze the final rule’s 

economic impact on the parties to 

representation proceedings. We first 

consider petitioners. Each of the three 

kinds of ‘‘R’’ petitions is typically filed 

by a different kind of entity: RC 

petitions (1,986) are filed by unions, RM 

petitions (49) are filed by employers, 

and RD petitions (472) are filed by 

individuals. Unions 706 and employers 

are covered by the RFA, but individuals 

are not, thus, only RC and RM 

petitioners are considered. In assessing 

labor costs for compliance with the final 

rule, we have used the Bureau of Labor 

Statistics’ estimated wage and benefit 

costs for certain classifications of 

workers, as shown in the following 

table: 

TABLE 2—LABOR COSTS AS PER THE

BUREAU OF LABOR STATISTICS

Employee Wages Plus 

Benefits 

Labor Relations Specialist 13–1075 ...... $26.27 $37.57 

Gen’l & Op Mgr. 11– 

1021 ...................... 46.36 66.29 

Lawyer 23–1011 ....... 54.95 78.58 

The final rule amends § 102.60 to 

require that petitioners serve all 

interested parties a copy of the petition, 

a form describing representation case 

procedures, and a blank Statement of 

Position form. Based on the Board’s 

experience with the way petitions and 

other documents are filed with the 

Board in representation cases currently, 

we estimate that electronic service will 

be used in 1,670 RC and 41 RM cases; 

mail in 231 RC and 6 RM; fax in 46 RC 

and 1 RM; and in person in 31 RC and 

1 RM.707

In most RC and RM cases, only one 

party must be served. Email, fax, phone 

and physical addresses for unions and 

employers are generally publically 

available. We estimate that electronic or 

fax service will take approximately 10 

minutes. For unions, the task will likely 

be performed by an organizer or 

business agent costing $37.57 per 

hour.708 Ten minutes at this rate is 


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cost of benefits, the wage must be multiplied by 

1.43. This results rate of $37.57 per hour. 

709According to published USPS rates, this is the 

price of flat-rate envelope USPS Priority Mail 

Express, which is a common choice. 

710 In addition to requiring service, the final rule 

also amends § 102.61 to file the showing of interest 

at the same time as the petition, rather than 

thereafter. There is no cost associated with this 

change. Also, the rule amends § 102.114 to permit 

parties to file petitions (and certificates of service) 

electronically. This change is optional, and likely 

to save costs. Because these changes impose no new 

costs on the parties, they are not included in this 

analysis. 

711We note that this cost will generally only be 

incurred in the subset of cases that do not reach an 

election agreement on or before the 7th day after the 

petition is filed. In FY13, 21% of petitions reach a 

stipulation on or before the 7th day. However, for 

the purposes of this analysis, the cost is being 

assessed to all petitions. 

712See also National Meat Association; COSE; 

ALG; Bluegrass Institute. 

713Other comments, like those from the 

Independent Electrical Contractors, and a form 

letter submitted by the NFIB, among others, 

specified that the Statement of Position requirement 

will significantly increase costs because it will 

cause small businesses to hire outside counsel. We 

disagree. There is no basis to conclude that parties 

which felt comfortable entering a binding election 

agreement or litigating these very matters without 

the advice of counsel will feel any differently under 

the new rules. And the instructions, like the current 

petition instructions, will state that the party can 

call the Board Agent in the Regional Office with 

questions or to obtain assistance in completing the 

form. 

714One comment suggested that an effect of the 

final rule will be to increase the percentage of cases 

which go to pre-election hearings. Testimony of 

Jonathan Fritts on behalf of CDW II. The Board has 

already considered and rejected this view in detail, 

supra, and has concluded that the long term impact 

of the rules, taken as a whole, will be to slightly 

increase the rate at which election agreements are 

reached. In any event, any such change in 

agreement rates would be the result of the 

individual choices of litigants, and would thus be 

an indirect effect exempt from RFA analysis, as 

discussed above. 

The same commenter argued that shortened time 

frames may impede discussions to reach election 

agreements because one or more parties will lack 

sufficient time to formulate a position. Testimony 

of Fritts on behalf of CDW II. As discussed in detail 

supra, the time frames are within the range of 

current practice, and the uniformity provided will 

likely encourage parties to expect more focused 

agreement discussions. The increased disclosures of 

the statement of position will also promote 

agreements. See Testimony of Caren Sencer on 

behalf of Weinberg, Roger & Rosenfeld II. 

715 If the 11th and 12th days are considered, the 

scheduled hearing date within that time rises to 

more than 95% of cases. Meanwhile, 81% of 

stipulations are reached in 14 or fewer days. 

$6.26. For an express mailing, the cost 

is ten minutes to prepare the mailing 

plus postage of $19.99, for a total of 

[$6.26 + $19.99] $26.25.709 For in 

person service, we estimate an average 

of 20 miles round trip, requiring 2 

hours. Using GSA’s privately owned 

vehicle reimbursement rate for 2014 of 

$0.56 per mile as a benchmark for 

estimating fuel and other costs, we 

reach a total cost of [2 hr × $37.57 + 20 

mi × $0.56] $86.33.710

2. Posting and Distributing the Notice 

The final rule amends § 102.63 to 

require that the employer post a notice 

when an RC, RD, or RM petition is filed. 

In addition to posting paper copies of 

the notice, employers who customarily 

communicate with their employees 

electronically will be required to 

distribute the notice electronically. The 

notice and instructions will be served 

on the employer. We estimate that this 

will require at most 30 minutes of time 

for reading and understanding the 

instructions, followed by at most 60 

minutes of time for posting paper copies 

of the notice and (if necessary) 

electronic posting. The cost is therefore 

[1.5 hr × $37.57] $56.35. 

3. Completing the Statement of Position 

Form 

In § 102.63, the final rule requires 

non-petitioners to complete a Statement 

of Position form. For RC petitions the 

employer will complete the form, and 

for RM and RD petitions both the union 

and employer will complete the form.711

The form will be similar to the current 

form for filing a petition, and asks for 

a summary statement of what issues the 

employer does and does not contest. 

The task of investigating the issues and 

arriving at a position is a necessary 

predicate for either entering into an 

election agreement or litigating. 

Accordingly, reading the petition, 

gathering information, and formulating 

a legal position are not costs that flow 

from the Statement of Position 

requirement. The cost of completing the 

form is the primarily administrative one 

of committing the position to paper. 

This can be accomplished in 

approximately 1.5 hours of lawyer time. 

Using May 2013 BLS OES statistics, the 

median hourly wage for a lawyer (23– 

1011) is $54.95 per hour, which equals 

[$54.95 × 1.43 × 1.5] $117.87 in 

compensation including benefits. 

The Chamber II commented that the 

requirement to file a Statement of 

Position will require employers to 

expend significantly more resources 

than under current regulations, 

particularly where preclusion would 

result.712 We disagree. Under current 

rules, the parties must either enter a 

binding election agreement or must be 

prepared to litigate these very issues. 

Whichever choice is made, the results 

will bind the employer. In this context, 

a simple statement of position should 

not prove an onerous addition, as 

specifically discussed in connection 

with § 102.63 above.713 (To the extent 

these arguments relate to the voter list 

or the timing of the statement of 

position, these matters are discussed 

separately below.) 

4. Changes Related to the Timing of the 

Position Statement and Pre-election 

Hearing 

Section 102.63 of the final rule 

provides that the statement of position 

will be due in most cases on the seventh 

day after notice of the hearing issues, 

and so the necessary investigation must 

take place in that time. In one sense, 

this not a significant change in the law 

in that the Board’s decision in Croft 

Metals already requires that a party 

must receive notice of a hearing not less 

than 5 days prior to the hearing, 

excluding intervening weekends and 

holidays. Nonetheless, certain 

commenters have argued that this is 

faster than actual current practice, and 

will therefore result in increased costs 

to the parties. Several comments, 

including from the NFIB, the Chamber 

and ABC contend that this time 

compression will increase costs because 

legal work is more expensive when it 

must be done in a shorter period of 

time.714 However, none of the 

comments which raised this issue 

provided any basis for an increased cost, 

or any source of information by which 

this cost could be estimated. 

The comments overstate the 

argument; in fact, the timeline for 

stipulating or preparing to litigate is not 

meaningfully changed in the majority of 

Board cases. More than 75% of hearings 

were scheduled to open in 7 to 10 days 

in FY13, and 52% of stipulated election 

agreements were also reached in fewer 

than 10 days.715 In addition, we note 

that the hearing can be postponed, and 

that, for example, a joint motion of the 

parties to postpone a hearing to permit 

them to continue productive 

discussions on an election agreement 

would be relevant in considering 

whether to do so. For this reason, and 

for those discussed in greater detail in 

connection with § 102.63 above, the 

Board concludes that costs of preparing 

for a pre-election hearing are unlikely to 

increase because of a compressed time 

frame. 

Nonetheless, in the interest of 

providing a conservative estimate of the 

economic impact of this rule, we will 

assume that the cost of stipulating or 

preparing to litigate is increased in 

every case as a result of this change. 

One reasonable method for estimating 

the order of magnitude would be to 

assume that this additional time 

pressure would result, by analogy to 

overtime for hourly employees, in an 

increase in the base hourly rate 

(exclusive of fringe benefits) by 50%. 


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716The entities impacted by this change will vary 

depending on the type of petition filed. Logically, 

by completing the petition form itself, some of the 

petitioner’s preparation will be done in advance, 

and as the petitioner is not typically required to file 

a statement of position, the petitioner will not incur 

increased costs as a result of the changes related to 

the timeline for the statement of position or the 

hearing. 

Finally, we note that Stanley J. Penkala, president 

and part-owner of a small business, expressed 

concern that the shortened time frames could be 

problematic if a petition is filed when an owner is 

on vacation. But many types of unexpected events 

may occur when an owner is on vacation and 

businesses already make reasonable contingency 

plans to accommodate such possibilities. 

717We note that the voter list will not be 

necessary where the petition is withdrawn or 

dismissed, and that no initial employee list will be 

necessary where the parties stipulate before the 

statement of position is due. However, for the 

purposes of this analysis, the cost is being assessed 

to all petitions. 

718This estimate recognizes that the employer’s 

files are not ‘‘in the format required by the Board 

right now [and t]here’s not a button they can push 

where the [voter] list just comes out.’’ See 

Testimony of Elizabeth Milito on behalf of NFIB II. 

719Some comments stated the time reduction is 

onerous because small employers often do not have 

a designated human resources employee to handle 

such issues, or readily available job descriptions or 

classifications, possibly necessitating expensive 

technological solutions. We note, however, that the 

format requirements of the rule need not be 

followed where the burden would be unreasonable. 

NFIB commented that only 12% of small employers 

have an employee dedicated to HR or personnel. Of 

course, this comment would not apply to employers 

with many employees because they, in light of other 

recordkeeping requirements, must keep 

sophisticated electronic records and dedicated 

human resources staff or contractors; meanwhile, 

the task of assembling a voter list with only a few 

score employees should not prove unduly 

burdensome for any size employer. See Testimony 

of Milito on behalf of NFIB II (testimony that the 

voter list requirement is typically not onerous 

where fewer than 50 employees are involved, and 

that employers with more than 50 employees 

typically already have professional human 

resources). 

720This cost will be greater in units with more 

than 25 employees, but this does not change the 

result of the analysis here because such employers 

also typically have much higher revenues. The 

average employer with between 20 and 99 

employees had revenues of $6.9 million, and the 

cost of compiling the voter list—even when added 

to all other costs which could be imposed by this 

rule—does not come close to the 1% threshold for 

such businesses discussed below. Furthermore, 

employers with greater than 25 employees are much 

more likely to use electronic recordkeeping, 

permitting this information to be compiled at a rate 

of less than 5 minutes per employee. 

721CNLP commented that electronic filing and 

communication can be difficult for small employers 

because many do not have access to the Internet or 

use it in their business plan. We note that a 2010 

survey by conducted by a contractor for the Office 

of Advocacy of the SBA in the spring of 2010, on 

the use of Internet connectivity by small businesses, 

called ‘‘The Impact of Broadband Speed and Price 

on Small Business’’ (http://www.sba.gov/sites/

default/files/rs373tot_0.pdf), suggests that, as of 

four years ago, at least 90 percent of small 

businesses surveyed used the Internet at their 

business. The data show that it is rare for a 

business, no matter how small, to lack internet 

access. Nonetheless, to the extent that an employer 

or union lacks internet access, the Board has made 

the provisions relating to electronic filing and 

communication either optional or required only if 

the employer customarily communicates with 

employees electronically. 

In addition, we note that this cost will generally 

only be incurred in the subset of cases that go to 

We estimate that the task of preparing 

for either stipulation or litigation 

requires an attorney to spend, in the 

average case, a total of 8 hours, and a 

general and operations manager to 

provide 4 hours of support and 

consultation. In other words, overtime 

would add a cost of [$54.95 × 1⁄2] $27.48 

per hour for the attorney and [$46.36 × 1⁄2] $23.18 for the manager, for a total of 

[8 × $27.48 + 4 × $23.18] $312.52 

increase for the hearing preparation.716

5. Employee Lists 

We next consider the lists of 

employees required by the rule. Two 

lists are required: the initial employee 

list, filed with the statement of position, 

requires only names and job 

information; the voter list, due 2 

business days after an election 

agreement or direction of election, 

additionally requires available contact 

information such as home addresses, 

personal phone numbers and email 

addresses. Current law also requires a 

voter list, which is due 7 days after an 

election agreement or direction and 

includes employee names and home 

addresses. Nonetheless, for the purposes 

of this cost analysis, we will 

conservatively estimate the cost of the 

lists as if the entire employee list 

requirement was wholly new, and 

applied to employers in all RC, RM, and 

RD cases (rather than only those which 

go to an election).717

Compilation of the lists required 

under the rule is an administrative task. 

The lists can be compiled by utilizing 

various already-existing resources. 

Small entities are already required to 

maintain employee records under other 

Federal employment laws, including the 

Fair Labor Standards Act, which 

mandates that employers keep records 

of various job information and wage and 

hour data for each employee, and the 

Immigration Reform Control Act, which 

mandates employers maintain I–9 

records which include optional emails 

and personal phone numbers. We 

estimate that, even using paper records, 

and absent special circumstances, a 

labor relations specialist needs 

approximately 5 minutes per employee 

to compile all the information required 

for both the initial employee list and the 

voter list, and to place them in the 

required formats.718 A total of 25% of 

elections have 11 or fewer names on the 

list, 50% of cases have 26 or fewer, and 

75% of cases have 65 or fewer. We 

further estimate that an additional one 

minute per employee will be required at 

the time that the voter list is created, to 

recheck employer records to ensure that 

changes (such as departures or new 

hires) have not occurred between the 

date upon which that list was filed and 

the voter eligibility date. Thus, this task 

will take between 60 minutes and 6 

hours to complete in most cases.719

The Board received comments from, 

among others, ABC, ALFA, Klein, NFIB, 

CNLP, COSE, stating that 2 days is 

insufficient to produce an eligibility list. 

In this regard, ABC suggests that 

determining which voters are eligible 

may be particularly difficult in the 

construction industry because 

complicated issues such as the Steiny/ 

Daniel formula, disappearing units, 

multi-craft versus single craft unions, 

and Sections 8(f) and 9(a) require 

counsel and time. Testimony of Maury 

Baskin on behalf of ABC. The Board 

disagrees with these various comments. 

We do not believe that the economic 

impact will vary significantly across 

industries. And, due to the relatively 

short lists applicable in most cases, 

requiring the lists be produced in 2 days 

will not add to the cost. In addition, 

regional directors retain discretion to 

expand this time period. 

Nonetheless, similar to the analysis 

for the reduction in time before hearings 

above, the Board will conservatively 

assume that, in every case, the employer 

will incur costs at the overtime rate. The 

cost will therefore be, in the median 

case, [25 (median employees) × 0.1 

(hours required per employee) × $50.70] 

$126.75.720

6. Electronic Distribution of the Final 

Notice of Election 

Under the current rules, the employer 

is required to post paper copies of a 

Notice of Election no less than 3 full 

working days before the opening of the 

election. This requirement is unchanged 

in the final rule. However, the final rule 

amends § 102.67(b) to provide that the 

Notice of Election will be transmitted to 

the employer by electronic mail rather 

than hard copy mail if the employer 

provided an email address. The time 

spent opening the email and printing 

the notice is likely to be approximately 

the same as time spent opening a 

physical mailing and extracting the 

printed notice within. The final rule 

additionally requires employers who 

customarily communicate electronically 

with their employees to distribute the 

final election notice electronically, 

which may require 15 minutes of a labor 

relations specialist’s time, or [15 

minutes × $37.57] $9.39.721


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an election. However, for the purposes of this 

analysis, the cost is being assessed to all petitions. 722The Board used petitioned-for unit size as an 

extremely conservative estimate, since employers 

generally employ supervisors, managers, and other 

individuals that are not part of the bargaining unit. 

In addition, very few petitions are for ‘‘wall-towall’’ units, and in almost every case, the employer 

has many statutory employees which are not in the 

unit. 723The Census Bureau surveys businesses’ 

receipts rather than their revenues. Receipts are a 

subset of revenues. United States Census, Statistics 

of U.S. Businesses, Definitions, https://

www.census.gov//econ/susb/definitions.html. The 

Board conservatively estimates that revenues are 

equal to receipts. Census Bureau data on receipts 

are collected only every 5 years, and the most 

recent year for which data are available is 2007. 

7. The Significance of These Changes 

We will now apply these cost 

estimates to parties in RC, RM, and RD 

proceedings to identify whether the 

costs exceed 1 percent of gross revenues 

for the small entities in any particular 

sector. The SBA maintains a table of 

small business size standards matched 

to the North American Industry 

Classification System (NAICS) for 

industries. The standards are based 

either on annual revenues or number of 

employees. SBA, Table of Small 

Business Size Standards, http://

www.sba.gov/sites/default/files/Size_

Standards_Table.pdf (last visited July 

24, 2014). Using NAICS, the Board 

categorized each RC, RM and RD 

petition into its proper industry. 

The Board next reviewed election 

petitions to estimate the size of the 

employers. The Board examined data on 

petitions filed in 2010, the most recent 

year for which it has industry data 

matched to NAICS data and the unit 

size. Using this data, for each petition, 

the Board determined if the entity might 

qualify as small based on its estimated 

number of employees or estimated 

revenues. The Board used the 

petitioned-for unit size to estimate the 

number of employees,722 and it 

estimated annual revenues based upon 

census data.723 The Census Bureau 

classifies employers by number of 

employees in the following categories: 

0–4; 5–9; 10–19; 20–99; 100–499; and 

500 or above. For purposes of this 

analysis, the Board estimates that each 

business has revenues equal to the 

average revenue for a business in the 

same size/industry category. Thus, for 

example, where a petition is filed for a 

unit of 16 employees at a construction 

firm (NAICS industry 23), this analysis 

assumes that that employer has revenue 

equal to the average revenue for a 

business with 10–19 employees in 

NAICS category 23. 

Based upon this data, the Board 

estimates that in 2010, approximately 

2,480 petitions out of a total of 2,777, or 

89.3%, were filed concerning employees 

of small entity employers. Applying this 

estimate to the Board’s 2013 caseload, 

we estimate that approximately 2,239 

petitions per year (89.3% of 2,507 

petitions) going forward will be filed 

concerning employees of small entity 

employers. The Board then compared 

the size of the economic impacts in 

question to entity receipts and 

determined whether any size/industry 

classification of employers subject to a 

petition might be significantly 

impacted. 

The Board does not possess 

comparable data by which to estimate 

the size of unions participating in NLRB 

elections, and so we must rely on 

reasonable assumptions. We will 

assume that the number of elections 

involving a particular union is 

proportional to that union’s total 

receipts. We again refer to the same 

Census Bureau data described above, 

focusing specifically on unions (NAICS 

# 81393). This data shows, for example, 

that 9 percent of all labor union receipts 

in 2007 were received by labor unions 

with 0–4 employees, and so we are 

estimating that 9 percent of 

representation cases involve labor 

unions of this size (which have average 

receipts of $221,572). Using this 

method, we estimate that approximately 

63% of representation cases, or about 

1,559 cases, involve unions which are 

small entities as defined by SBA. 

The economic impact of the final 

rule’s procedures upon each type of 

entity is described in the following 

charts: 

TABLE 3—ESTIMATED ADDITIONAL COSTS IN ALL REPRESENTATION CASES INITIATED BY UNIONS

[RC Cases] 

RC Petitions Employer 

Union serving 

petition via 

email or fax 

Union serving 

by mail 

Union serving 

personally 

No. of Cases ............................................................................ 1986 1716 231 38 

Service ..................................................................................... .............................. $6.26 $26.25 $86.33 

Notice of Petition ..................................................................... $56.35 .............................. .............................. ..............................

Statement of Position .............................................................. $117.87 .............................. .............................. ..............................

Costs related to timeline .......................................................... $312.52 .............................. .............................. ..............................

Voter Lists ................................................................................ $126.75 .............................. .............................. ..............................

Notice of Election ..................................................................... $9.39 .............................. .............................. ..............................

Total additional cost ......................................................... $622.88 $6.26 $26.25 $86.33 

TABLE 4—ESTIMATED ADDITIONAL COSTS IN ALL REPRESENTATION CASES INITIATED BY EMPLOYERS (RM CASES) 

RM Petitions Union 

Employer 

serving petition via email 

or fax 

Employer 

serving by 

mail 

Employer 

serving personally 

No. of Cases .................................................................................................... 49 42 6 1 

Service ............................................................................................................. ........................ $6.26 $26.25 $86.33 

Notice of Petition ............................................................................................. ........................ $56.35 $56.35 $56.35 

Statement of Position ...................................................................................... $117.87 $117.87 $117.87 $117.87 

Costs related to timeline .................................................................................. $312.52 ........................ ........................ ........................

Voter Lists ........................................................................................................ ........................ $126.75 $126.75 $126.75 

Notice of Election ............................................................................................. ........................ $9.39 $9.39 $9.39 


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724 Indeed, $622.88 is only 0.32% of average 

annual receipts for Educational Services (NAICS 

#61) employers with 0–4 employees, the size/

industry category with the lowest volume of 

receipts per firm. Thus, even if the Board’s estimate 

of final rule costs were tripled, the total cost of a 

representation petition without post-election 

litigation or blocking charges would less than 1% 

of average revenues for any size/industry 

classification. This large margin for error 

emphatically reinforces the Board’s conclusion that 

a substantial number of small entities will not incur 

significant costs as a result of the rule. 

725This is the maximum additional cost that an 

employer respondent in an RC or RD case might 

reasonably be expected to incur under the final 

rule. Employers in other kinds of cases will incur 

less cost but this does not change the final result 

here. 

This cost does not include the other matters 

addressed in this section, (i.e., post-election hearing 

costs or request for review costs). This is because 

each occurs so infrequently that they are unlikely 

to coincide in any particular case. For example, if 

the distribution is random, the number of cases 

involving both blocking and a post-election hearing 

would be [75 × 223/2507] 6 or 7 cases per year. 

In addition, the amounts involved are sufficiently 

small as to make little difference in the final 

analysis. Even in the rare case where blocking, postelection hearings, and a request for review of a 

decision on objections and challenges all occurred 

in the same case in the same year, the rule would 

impose additional costs of [$740.75 + $117.87 + 

$312.52 + $1,257.26] $2,428.40.The only size/

industry categories for which this amount 

represents a significant impact are the same four 

categories for which a request for review without 

a blocking charge represents a significant impact. 

726The number of cases listed in the chart 

corresponds to the number of representation cases 

that were listed as blocked for some period of time 

by charges filed in FY 2013. The number does not 

correspond to elections held during FY 2013 that 

had previously been blocked for some period of 

time (including by charges filed in prior fiscal 

years). 

TABLE 4—ESTIMATED ADDITIONAL COSTS IN ALL REPRESENTATION CASES INITIATED BY EMPLOYERS (RM CASES)— 

Continued 

RM Petitions Union 

Employer 

serving petition via email 

or fax 

Employer 

serving by 

mail 

Employer 

serving personally 

Total additional cost ................................................................................. $430.39 $316.62 $336.61 $396.69 

TABLE 5—ESTIMATED ADDITIONAL

COSTS IN ALL REPRESENTATION

CASES INITIATED BY INDIVIDUALS

(RD CASES) 

RD Petitions Union Employer 

No. of Cases ............. 472 472 

Notice of Petition ...... ................ $56.35 

Statement of Position $117.87 $117.87 

Costs related to 

timeline .................. $312.52 $312.52 

Voter Lists ................. ................ $126.75 

Notice of Election ..... ................ $9.39 

Total additional 

cost ................ $430.39 $622.88 

The final rule will not impose a 

significant economic impact a 

substantial number of small entities 

who receive a representation petition 

but do not litigate post-election 

objections or ballot challenges. The 

estimated cost of the final rule to such 

entities does not exceed $622.88. The 

Census Bureau data referenced above 

show that no size/industry classification 

has average annual receipts of less than 

100 times that number, or $62,288. 

Thus, few, if any, entities participating 

in NLRB representation cases will incur 

costs of greater than 1% of that entity’s 

annual revenues due to the final rule.724

C. Costs Impacting a Very Small 

Number of Cases: Blocking Charges, 

Post-election Hearings, and Requests for 

Review of Decisions on Objections and 

Challenges 

The final rule also makes changes to 

blocking charge procedure, post-election 

hearing timelines, and the steps 

necessary to obtain Board review of a 

decision on objections and challenges. 

These changes do not impact a 

substantial number of small employers. 

In FY13, parties filed 223 blocking 

charges, 54 post-election hearings were 

held, and 32 exceptions regarding 

objections and challenges were filed. 

Thus, none of these changes will impact 

more than a small percentage of small 

entities involved in a representation 

proceeding. By definition, none of these 

changes impact a substantial number of 

small entities, as none will impact 10% 

or more of the relevant universe. 

Nonetheless, we will briefly estimate 

the costs associated with these changes 

to come to a more precise figure for the 

number of small entities significantly 

impacted. 

1. Blocking Charges 

The final rule requires parties that file 

blocking charges to also file an offer of 

proof and make witnesses available. The 

information provided in the offer of 

proof must be collected regardless of the 

rule in order to support the charge itself, 

and providing the information to the 

Board in a written offer likely would 

require approximately an hour and a 

half of a lawyer’s time, for a cost of [1.5 

× $78.58] $117.87. Combining this cost 

with the maximum new costs a party 

might reasonably be expected to incur 

under other changes in the rule,725 we 

reach the following result: 

TABLE 6—ESTIMATED ADDITIONAL

COSTS TO PARTIES FILING BLOCKING CHARGES 726

No. of Cases ................................. 223 

Maximum cost of changes without 

post-election litigation or blocking charges ............................... $622.88 

Blocking offer of proof .................. $117.87 

Total additional cost .............. $740.75 

Census Bureau data show that no 

size/industry classification has average 

annual receipts of less than $74,075. 

Using the same methodology discussed 

above for costs related to filing and 

receiving a petition, we estimate that 

few, if any, entities that file blocking 

charges will incur a cost of greater than 

1% of their gross receipts as a result of 

the final rule. 

2. Timeline for Post-Election Hearings 

Under current practice, parties have a 

median of 14.5 days to prepare for the 

hearing once the notice of hearing is 

issued. Although this time might 

decrease by a few days, we do not 

expect that the change will be very 

large. Under the rule, the time for postelection hearings will generally be 21 

days from the tally, and the objections 

and challenges are due in 7 days. The 

rule does not specify when the notice of 

hearing will be issued, but regional 

directors will be expected to assess the 

offer of proof and very promptly 

determine whether to hold a hearing so 

that the parties have time to prepare. 

Thus, we do not believe there will be 

any increased cost. 

Nonetheless, using similar 

assumptions to those discussed above 

regarding the pre-election hearing, we 

will conservatively assume that costs for 

the 54 employers and unions subject to 

post election hearings will increase by 

$312.52. Combining this cost with the 

maximum new costs a party might 

reasonably be expected to incur under 

other changes in the rule, we reach the 

following result: 

TABLE 7—ESTIMATED ADDITIONAL

COSTS FOR PARTIES IN CASES WITH

POST-ELECTION HEARINGS

No. of Cases ................................. 54 


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727The 32 cases listed in the chart include cases 

from FY 2013 in which regional directors disposed 

of objections or challenges without a hearing. As 

explained above, these cases would not in fact 

result in additional costs if these circumstances 

were repeated under the final rule. 

728These classifications are employers in the 

industries of Administrative and Support and 

Waste Management (#56), Educational Services 

(#61), Accommodation and Food Services (#72), 

and Other Services (Except Public Administration) 

(#81), with 0–4 employees. 

729The Board determined this number by taking 

the estimated number of cases with a small 

employer respondent that go to a post-election 

hearing (29) and multiplying by the probability that 

the case will involve a unit in one of the four 

classifications noted above (0.017). This estimate 

conservatively assumes that small and large parties 

are equally likely to fully litigate election objections 

in any particular case. 

TABLE 7—ESTIMATED ADDITIONAL

COSTS FOR PARTIES IN CASES WITH

POST-ELECTION HEARINGS—Continued 

Maximum cost of changes without 

post-election litigation or blocking charges) .............................. $622.88 

Post election hearing preparation 

timeline ...................................... $312.52 

Total additional cost .............. $935.40 

Census Bureau data show that no 

industry/size classification has average 

annual receipts of less than $93,540. 

Thus, using the same methodology 

discussed above for costs related to 

filing and receiving a petition, we 

estimate that few, if any, entities that are 

involved in a post-election hearing, but 

do not file a request for review of the 

regional director’s decision with the 

Board, will incur a cost of greater than 

1% of their gross receipts as a result of 

the final rule. 

3. Requests for Review of Decisions on 

Objections and Challenges 

Section 102.69 of the final rule—just 

as § 102.69 of the current rules—allows 

the regional director to resolve any 

objections or challenges without 

conducting a post-election hearing. 

However, if a post-election hearing is 

held concerning the objections or 

challenges, § 102.69(c) of the final rule 

requires the regional director to issue a 

decision on any exceptions filed to the 

hearing officer’s report. It further 

provides that the Board will exercise 

only discretionary review of regional 

directors’ disposition of exceptions to 

hearing officers’ decisions. Previously, 

these exceptions were decided directly 

by the Board in the vast majority of 

cases involving objections or 

determinative challenges. Thus, if a 

party files exceptions to the hearing 

officer’s report, and the regional director 

affirms the hearing officer, the new rule 

requires the party to file a previously 

unnecessary request for review if the 

party desires review by the Board. 

Although there is no change in cost for 

cases in which the regional director 

disposes of objections or challenges 

without a hearing, we will nevertheless 

conservatively estimate that requests for 

Board review of a regional director’s 

decision represent a new cost in all 

cases. We estimate that it will require 16 

lawyer hours to prepare the request, for 

a cost of [16 × $78.58] $1,257.26. 

Combining this cost with the maximum 

new costs a party might reasonably be 

expected to incur under other changes 

in the rule, we reach the following 

result: 

TABLE 8—ESTIMATED ADDITIONAL

COSTS FOR PARTIES IN CASES

WHERE PARTIES REQUEST BOARD

REVIEW OF REGIONAL DIRECTORS’ 

POST-ELECTION DISPOSITION OF

OBJECTIONS AND CHALLENGES 727

No. of Cases ................................. 32 

Maximum cost of changes without 

post-election litigation or blocking charges ............................... $622.88 

Post election hearing preparation 

timeline ...................................... $ 312.52 

Request for review of post-election decision .............................. $1257.26 

Total additional cost .............. $2192.66 

Only 32 exceptions were resolved in 

FY13. In all likelihood, a sizeable 

number of these exceptions will be 

satisfactorily resolved by regional 

directors with no further appeal. 

However, in the interest of providing a 

conservative estimate, we will assume 

that this change will impact litigants in 

32 cases per year, or approximately 

1.3% of all NLRB representation cases. 

Assuming that small and large 

employers are equally likely to litigate 

post-election exceptions, these changes 

are projected to affect 29 small entity 

employers per year. 

Four employer size/industry 

classifications have average annual 

receipts of less than $216,266.728

Employers in those categories could 

incur a significant adverse economic 

impact as a result of the final rule if they 

litigate a representation petition through 

post-election hearing and file a request 

for review of a regional director’s 

disposition of objections or challenges. 

However, only about 1.7% of NLRB 

petitions (in 2010, 52 out of 2,974 

petitions) are filed in bargaining units 

with 2–4 employees in those industries. 

Thus, fewer than one case a year 729 will 

involve both a very small employer and 

a post-election request for Board review 

of a regional director’s disposition of 

objections or challenges. The Board 

accordingly projects that the final rule’s 

changes to post-election exceptions 

procedure will adversely affect less than 

one small entity employer per year. 

Meanwhile, the average annual receipts 

for a union with zero to four employees 

are $221,572, so the estimated cost of 

the rule is therefore less than 1% of 

receipts even for unions with 0–4 

employees. 

Thus, the number of significantly 

impacted small entities falls below the 

10% threshold established by the Board. 

For these reasons we conclude that the 

rule’s changes to post-election 

exceptions procedure will not impose a 

significant economic impact on a 

substantial number of small entities. 

D. Other Changes 

The remainder of the changes will not 

result in any direct cost on small 

entities, and will clearly not cause a 

substantial impact on a significant 

number of small entities. We first 

consider the changes to the litigation at 

the pre-election hearing. Ultimately, the 

statement of position form will provide 

cost savings to the parties in cases 

where hearings are held by preventing 

unnecessary litigation and leading to a 

more orderly process. The same is true 

for those portions of § 102.66 of the final 

rule which provide for the parties to 

begin the hearing by responding to the 

issues raised in the statement of 

position, and taking discretionary offers 

of proof. So too, the changes to § 102.64, 

focusing the hearing on its statutory 

purpose, and overruling Barre-National, 

will substantially reduce needless 

testimony. New provision § 102.64(c) 

provides that pre-election hearings shall 

be continued day to day absent 

extraordinary circumstances. Section 

102.67 provides that summing up of 

pre-election hearing testimony usually 

will be done by means of closing 

arguments, rather than concluding 

written briefing. Section 102.67(b) 

specifies that the date and time of the 

election ordinarily will be set forth in 

the decision and direction of election. 

All of these changes will uniformly lead 

to efficiencies and savings for the 

parties and the Board, as discussed in 

detail in the relevant sections of this 

preamble. Therefore, these changes will 

not impose any costs on any small 

entities. In addition, such pre-election 

hearing procedures take place in fewer 

than 10% of cases, and so cannot impact 

a substantial number of small entities. 

Second, § 102.67 of the final rule 

revises the deadline for seeking Board 


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review of a regional director’s decision 

and direction of election at any time up 

to 14 days after a final disposition of the 

proceeding by the regional director. 

Existing law sets a shorter deadline, 

within 14 days of the decision and 

direction of election. This change in due 

date will potentially create savings for 

parties, and will impose no costs. 

Parties remain free to file their requests 

within the time frame provided under 

the former rules if they prefer. Such 

requests are also filed in fewer than 

10% of cases. 

Third, the final rule eliminates 

guidance which recommended waiting 

25–30 days to hold the election after the 

direction of election. This change 

imposes no direct costs upon parties, as 

nothing in the rule requires any 

preparation for the election itself. The 

rule also directly impacts the fewer than 

10% of cases which are subject to a 

direction of election. The final rule also 

eliminates automatic impounding of 

ballots where a request for review is 

pending. Impoundment only took place 

in a handful of cases each year, and the 

change imposes no cost. 

Fourth, § 102.69(a) of the final rule 

requires parties to file simultaneous 

offers of proof with any post-election 

objections, whereas current rules give 

parties 7 additional days to file offers of 

proof. However, as previously 

discussed, filing offers of proof involves 

writing down the results of an 

investigation conducted before the 

objection was filed. Compressing the 

time frame for this administrative task 

will not impose increased costs. This 

change also impacts fewer than 10% of 

cases. 

Finally, the final rule eliminates a 

rarely used procedure, formerly codified 

at § 102.67(h)–(k), whereby a case could 

be transferred from the region to the 

Board after the pre-election hearing. 

This procedure has not been used in 

approximately 15 years. 

E. Conclusion 

As the foregoing discussion shows, 

the bulk of the changes to this rule will 

impact less than 10% of the relevant 

universe of small entities. In addition, 

most of the changes here will not 

impose any new costs on the parties to 

representation cases. The few costs in 

the rule are either modest, or impact 

only a handful of cases, or both. For 

these reasons, the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Paperwork Reduction Act 

In the NPRM, the Board explained 

that the ‘‘proposed amendments would 

not impose any information collection 

requirements’’ and accordingly, the 

proposed amendments ‘‘are not subject 

to the Paperwork Reduction Act (PRA), 

44 U.S.C. 3501 et seq.’’ No substantive 

comments were received relevant to the 

Board’s analysis of its obligations under 

the PRA. 

The NLRB is an agency covered by the 

PRA. 44 U.S.C. 3502(1) and (5). The 

PRA establishes rules for such agencies’ 

‘‘collection of information.’’ 44 U.S.C. 

3507. 

The Board has considered whether 

any of the provisions of the final rule 

provide for a ‘‘collection of 

information’’ covered by the PRA. 

Specifically, the Board has considered 

the following provisions that contain 

petition and response requirements, 

posting requirements, and requirements 

that lists of employees, eligible voters or 

offers of proof be filed: 

(1) Under the final rule, as under the 

current rules, parties seeking to initiate 

the Board’s representation procedures 

are required to file a petition with the 

Board containing specified information 

relevant to the Board’s adjudication of 

the specific question raised by the filing 

of the petition. Under the final rule, 

non-petitioning parties to such 

representation proceedings are required 

to file a Statement of Position setting 

forth the parties’ positions and specified 

information relevant to the Board’s 

adjudication of the question raised by 

the petition. Employers are currently 

asked to supply the portion of the 

information specified in the final rule 

relating to their participation in 

interstate commerce, and are typically 

asked to share their positions 

concerning many of the same issues 

covered by the form prior to the hearing 

or at a prehearing conference. 

(2) Under the final rule, employers are 

required to post a notice about the filing 

of the petition and a notice about the 

election. The second posting 

requirement exists currently. Employers 

are currently asked but not required to 

post the first notice (in a different form). 

(3) Under the final rule, as under 

current case law, employers are required 

to file a list of eligible voters prior to an 

election. Under the final rule, an initial 

list of employees is required before the 

pre-election hearing. Currently, 

employers are often asked but not 

required to provide an employee list 

with job classifications prior to the 

hearing or at a prehearing election 

conference. For the reasons given below, 

the Board believes that none of these 

actions constitutes a collection of 

information covered by the PRA. 

(4) Under the final rule, a party filing 

an objection to the conduct of an 

election or to conduct affecting the 

results of an election is required to 

simultaneously file a written offer of 

proof with the objection, absent a 

showing of good cause to extend the 

time for filing an offer of proof. 

Currently, a party filing an objection is 

required to simultaneously file a short 

statement of reasons with the objection 

and file evidence in support of its 

objections within 7 days after filing its 

objections. 

(5) Under the final rule, a party filing 

an unfair labor practice charge, together 

with a request that the charge block the 

processing of a representation petition, 

is required to simultaneously file a 

written offer of proof with the charge. 

The PRA exempts from the definition 

of ‘‘collection of information’’ ‘‘a 

collection of information described 

under section 3518(c)(1)’’ of the Act. 44 

U.S.C. 3502(3)(B). 

Section 3518(c) provides: 

• Except as provided in paragraph (2), this 

subchapter shall not apply to the collection 

of information— 

Æ during the conduct of— 

Æ an administrative action or investigation 

involving an agency against specific 

individuals or entities; 

• This subchapter applies to the collection 

of information during the conduct of general 

investigations * * * undertaken with 

reference to a category of individuals or 

entities such as a class of licensees or an 

entire industry. 

44 U.S.C. 3518(c). The legislative 

history of this provision makes clear 

that it is not limited to prosecutorial 

proceedings. The Senate Report on the 

PRA states, ‘‘Section 3518(c)(1)(B) is not 

limited to agency proceedings of a 

prosecutorial nature but also include[s] 

any agency proceeding involving 

specific adversary parties.’’ S. Rep. No. 

96–930, at 56 (1980). See also 5 CFR 

1320.4(c) (OMB regulation interpreting 

the PRA, providing that exemption 

applies ‘‘after a case file or equivalent is 

opened with respect to a particular 

party.’’). 

The Board believes that all of the 

above-described provisions of the final 

rule fall within the exemption created 

by sections 3502(3)(B) and 

3518(c)(1)(B)(ii). A representation 

proceeding under Section 9 of the NLRA 

is ‘‘an administrative action or 

investigation involving an agency.’’ That 

is, the filing of a petition together with 

a showing of interest triggers an 

administrative investigation into the 

sufficiency of the petition. A regional 

Board agent is assigned to investigate 

the petition and a case file is opened. A 

representation proceeding is also 

‘‘against specific individuals or entities’’ 

within the meaning of section 

3518(c)(1)(B)(ii). The Board’s decisions 


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730See, e.g., Pace University v. NLRB, 514 F.3d 

19, 23 (D.C. Cir. 2008); Kearney & Trecker Corp. v. 

NLRB, 209 F.2d 782, 786–88 (7th Cir. 1953). 

731See, e.g., Country Ford Trucks, Inc. v. NLRB, 

229 F.3d 1184, 1191 (D.C. Cir. 2000); C.J. Krehbiel 

Co. v. NLRB, 844 F.2d 880, 882, 886 (D.C. Cir. 

1988). 

732See Pittsburgh Plate Glass Co. v. NLRB, 313 

U.S. 146, 162 (1941). 

733Similarly, a union that has been certified or 

recognized as the representative of employees in an 

appropriate unit has a legal right to continue to be 

recognized as the exclusive representative of such 

employees. See Scepter, Inc. v. NLRB, 280 F.3d 

1053, 1056 (D.C. Cir. 2002). However, if a petition 

is filed under section 9 seeking to decertify such a 

union, which is a party to the resulting 

representation proceeding, see Brom Mach. & 

Foundry Co. v. NLRB, 569 F.2d 1042, 1044 (8th Cir. 

1978), and at the conclusion of the proceeding the 

Board certifies the results of an election finding that 

less than a majority of the voters cast ballots in 

favor of continued representation by the union, the 

union loses its legal right to represent the 

employees. Retail Clerks Int’l Ass’n v. Montgomery 

Ward & Co., 316 F.2d 754, 756–57 (7th Cir. 1963). 

734See John E. Higgins, Jr., The Developing Labor 

Law 595, 607 (5th ed. 2006) (noting that failure to 

provide Excelsior list or post notice of election 

constitutes grounds for setting aside election). 

in representation proceedings are 

binding on and thereby alter the legal 

rights of the parties to the proceedings. 

For example, the employer of any 

employees who are the subject of a 

petition is a party to the resulting 

representation proceeding.730 If the 

Board finds in a representation 

proceeding that a petition has been filed 

concerning an appropriate unit and that 

employees in that unit have voted to be 

represented, the Board will thereafter 

certify the petitioner as the employees’ 

representative for purposes of collective 

bargaining with the employer. As a 

direct and automatic consequence of the 

Board’s certification, the employer is 

legally bound to recognize and bargain 

with the certified representative. If the 

employer refuses to do so, it commits an 

unfair labor practice.731 If such an 

employer is charged with a refusal to 

bargain, it is precluded from relitigating 

in the unfair labor practice proceeding 

any issues that were or could have been 

raised in the representation 

proceeding.732 Finally, if such an 

employer seeks review of the Board’s 

order in the unfair labor practice 

proceeding or the Board seeks to enforce 

its order in a court of appeals, the record 

from the representation proceeding 

must be filed with the court and ‘‘the 

decree of the court enforcing, 

modifying, or setting aside in whole or 

in part the order of the Board shall be 

made and entered upon the pleadings, 

testimony, and proceedings set forth in 

such transcript.’’ 29 U.S.C. 159(d); see 

also Boire v. Greyhound Corp. 376 U.S. 

473, 477–79 (1964).733

Three limitations on the filing and 

posting requirements in the final rule 

lead to the conclusion that they fall 

within the statutory exemption. First, 

the final rule imposes requirements only 

on parties to the representation case 

proceeding, or in the case of blocking 

charges, charging parties in the unfair 

labor practice proceeding, an 

administrative action or investigation 

against specific individuals or entities 

within the scope of section 

3518(c)(1)(B)(ii). Second, any adverse 

consequences for failing to provide the 

requested information are imposed only 

on persons and entities that are party to 

the administrative proceeding. Third, 

the possible adverse consequences that 

may result from noncompliance do not 

reach beyond the administrative case 

proceeding. The final rule imposes no 

consequences on any party based on its 

failure to file or provide information 

requested in a petition or statement of 

position form other than to prevent the 

party from initiating a representation 

proceeding or to restrict a party’s rights 

to raise issues or participate in the 

adjudication of issues in the specific 

representation proceeding and any 

related unfair labor practice proceeding. 

Similarly, as is the case currently,734 no 

consequences attach to a failure to post 

either notice or to file the eligibility list 

beyond the overturning of an election 

conducted as part of the specific 

proceeding. Finally, no consequences 

attach to a failure to file an offer of proof 

simultaneously with an election 

objection or a blocking charge beyond 

the regional director’s dismissal of the 

election objection, refusal to block the 

election, or the possible dismissal of the 

charge. 

Sections 102.62(e), 102.63(a) and 

102.67(k) of the final rule require that an 

employer which is party to a 

representation proceeding post a Notice 

of Petition for Election subsequent to 

the filing of a petition and, if an election 

is agreed to or directed, a Notice of 

Election. The Board will make available 

both notices to the employer in paper 

and electronic form, and employers will 

be permitted to post exact duplicate 

copies of the notices. The Board does 

not believe these posting requirements 

are subject to the PRA for the reasons 

explained above. Moreover, the Board 

does not believe that the notice posting 

requirements constitute a ‘‘collection of 

information’’ as defined in section 

3502(3) of the PRA for additional, 

independent reasons. The notice posting 

requirements do not involve answers to 

questions or any form of reporting. Nor 

do they involve a ‘‘recordkeeping 

requirement’’ as that term is defined in 

section 3502(13) of the PRA because the 

notice posting requirements do not 

require any party to ‘‘maintain specified 

records.’’ The Board notes that this 

construction is consistent with the 

Office of Management and Budget’s 

regulations construing and 

implementing the PRA, which provide 

that ‘‘[t]he public disclosure of 

information originally supplied by the 

Federal government to [a] recipient for 

the purpose of disclosure to the public’’ 

is not considered a ‘‘collection of 

information’’ under the Act. See 5 CFR 

1320.3(c)(2). For all of these reasons, the 

Board concludes that the posting 

requirements are not subject to the PRA. 

Accordingly, the final rule does not 

contain information collection 

requirements that require approval of 

the Office of Management and Budget 

under the Paperwork Reduction Act. 

Congressional Review Act 

As explained in the discussion of the 

Regulatory Flexibility Act, only the 

provisions of this rule relating to voter 

lists and possibly blocking charges are 

substantive. Nevertheless, as a matter of 

its discretion, the Board has chosen to 

submit the entire rule to the process 

contained in the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (Congressional Review Act), 5 

U.S.C. 801–808. 

Under Section 804 of that Act, this 

rule is not a major rule because it will 

not result in an annual effect on the 

economy of $100 million or more, a 

major increase in costs or prices, or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of United States-based companies to 

compete with foreign-based companies 

in domestic and export markets. The 

Board has, in any event, determined that 

the effective date of the rule will be 120 

days after the rule is published in the 

Federal Register. 

IX. Statement of the General Course of 

Proceedings Under Section 9(c) of the 

Act 

A. Representation Case Petitions 

Petitions may be filed in 

representation cases to resolve questions 

of representation in many different 

circumstances. For example, a union 

may file a petition for certification 

because it seeks to become the 

collective-bargaining representative of 

an employer’s employees. An employer 

may file a petition to determine the 

majority status of a union demanding 

recognition as the representative of the 

employer’s employees. If there is 

already a certified or currently 

recognized representative, an employee 


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may file a decertification petition to 

oust the incumbent representative. Or, a 

party may file a petition for clarification 

of the bargaining unit or for amendment 

to reflect changed circumstances, such 

as changes in the incumbent 

representative’s name or affiliation. 

Petition forms are available on the 

Board’s Web site and in the Board’s 

regional offices. The petition must be in 

writing and signed, and must either be 

notarized or contain a declaration by the 

person signing it, under the penalties of 

the Criminal Code, that its contents are 

true and correct to the best of his or her 

knowledge and belief. The petition is 

filed with the regional director for the 

regional office in which the proposed or 

actual bargaining unit exists. Petition 

forms provide, among other things, for 

a description of the contemplated or 

existing appropriate bargaining unit, the 

approximate number of employees 

involved, the names of all labor 

organizations that claim to represent the 

employees, the type, date(s), time(s) and 

location(s) of the election sought, and 

the name and contact information of the 

individual who will serve as 

representative of the petitioner and 

accept service of papers in the 

representation proceeding. A petitioner 

seeking certification as the collectivebargaining representative or seeking to 

decertify an incumbent representative 

must supply, at the same time it files its 

petition, evidence of employee interest 

in an election (‘‘showing of interest’’). 

Such evidence is usually in the form of 

cards, which must be dated, authorizing 

the labor organization to represent the 

employees or providing that the 

employees no longer wish to be 

represented by the incumbent union. If 

a petition is filed by an employer, the 

petitioner must supply, at the same time 

it files its petition, proof of a demand for 

recognition by the labor organization 

named in the petition and, in the event 

the labor organization named is the 

incumbent representative of the unit 

involved, a statement of the objective 

considerations demonstrating 

reasonable grounds for believing that 

the labor organization has lost its 

majority status. 

The petitioner may file the petition 

electronically, by fax, by mail or in 

person at one of the NLRB’s regional 

offices. The petitioner must serve a copy 

of its petition on other interested parties 

along with a description of the Board’s 

representation case procedures and the 

Board’s Statement of Position form, both 

of which are available on the Board’s 

Web site and in the Board’s Regional 

Offices. However, the petitioner need 

not serve a copy of its showing of 

interest on any other party. If the 

petition and showing of interest are 

filed electronically or by fax, and the 

showing of interest consists of 

authorization cards with handwritten 

signatures, the petitioner must provide 

to the regional director the documents 

containing the original signatures 

constituting the showing of interest no 

later than 2 days after the electronic or 

facsimile filing. 

B. Pre-Hearing Withdrawals and 

Dismissals; Notice of Hearing; Posting 

and Distribution of Notice of Petition for 

Election; Statement of Position Form 

Upon receipt of the petition in the 

Regional Office, it is docketed and 

assigned to a Board agent to investigate 

(1) whether the employer’s operations 

affect commerce within the meaning of 

the Act, (2) the existence of a bona fide 

question concerning representation in a 

unit of employees appropriate for the 

purposes of collective bargaining within 

the meaning of the Act, (3) whether the 

election would effectuate the policies of 

the Act and reflect the free choice of 

employees in the appropriate unit, and 

(4) whether, if the petitioner is a labor 

organization seeking recognition or an 

employee seeking decertification of an 

incumbent representative, there is 

sufficient evidence of employee interest 

in an election. The evidence of interest 

submitted by the petitioning labor 

organization or by the person seeking 

decertification is ordinarily checked to 

determine the number or proportion of 

employees who have demonstrated 

interest, it being the Board’s 

administrative experience that in the 

absence of special factors the conduct of 

an election serves no purpose under the 

statute unless the petitioner has 

demonstrated interest among at least 30 

percent of the employees. However, in 

the case of a petition by an employer, 

no proof of representation on the part of 

the labor organization claiming a 

majority is required, and the regional 

director proceeds with the case if other 

factors require it unless the labor 

organization withdraws its claim to 

majority representation. The Board 

agent attempts to ascertain from all 

interested parties whether the grouping 

or unit of employees described in the 

petition constitutes an appropriate 

bargaining unit. The petition may be 

amended at any time prior to hearing 

and may be amended during the hearing 

upon such terms as the regional director 

deems proper. 

The petitioner may request to 

withdraw its petition if the investigation 

discloses, for example, that the 

petitioner lacks an adequate showing of 

interest. The regional director may 

request that the petitioner withdraw the 

petition if further processing at that time 

is inappropriate because, for example, a 

written contract covering the petitionedfor unit is currently in effect. If, despite 

the regional director’s 

recommendations, the petitioner refuses 

to withdraw the petition, the regional 

director may dismiss it. The petitioner 

may within 14 days request review of 

the regional director’s dismissal by 

filing such request with the Board in 

Washington, DC; if it accepts review, the 

Board may sustain the dismissal, stating 

the grounds of its affirmance, or may 

direct the regional director to take 

further action. 

If, however, the regional director 

determines that the petition and 

supporting documentation establish 

reasonable cause to believe that a 

question of representation affecting 

commerce exists and that the policies of 

the Act will be effectuated, then the 

regional director serves a notice of a preelection hearing on the parties named in 

the petition. Except in cases presenting 

unusually complex issues, the regional 

director sets the hearing for a date 8 

days from the date of service of the 

notice excluding intervening Federal 

holidays. Along with the notice of 

hearing, the regional director serves a 

copy of the petition, a form describing 

representation case procedures, a 

‘‘Notice of Petition for Election,’’ and a 

Statement of Position form on the 

unions and employer filing or named in 

the petition and on other known 

persons or labor organizations claiming 

to have been designated by employees 

involved in the proceeding. The director 

marks the correspondence containing 

these materials as ‘‘Urgent.’’ The Notice 

of Hearing also sets the due date for the 

parties to file and serve their Statements 

of Position. Ordinarily, the Statement of 

Position must be filed and served such 

that it is received by the regional 

director and the other parties at noon on 

the business day before the opening of 

the hearing. 

The regional director may postpone 

the hearing for up to 2 business days 

upon request of a party showing special 

circumstances and for more than 2 

business days upon request of a party 

showing extraordinary circumstances. 

The regional director may also postpone 

the due date for filing and serving the 

Statement of Position for up to 2 

business days upon request of a party 

showing special circumstances and for 

more than 2 business days upon request 

of a party showing extraordinary 

circumstances. If the hearing is set to 

open more than 8 days from service of 

the notice, the regional director may set 

the due date for the Statement of 

Position earlier than at noon on the 


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business day before the hearing is set to 

open. 

The Notice of Petition for Election 

states the name of the party filing the 

petition, briefly describes the type of 

petition filed and the proposed unit, 

lists employee rights, and sets forth in 

understandable terms the central rules 

governing campaign conduct. This 

notice also lists the Board’s Web site 

address, through which the employer’s 

employees can obtain further 

information about the processing of 

petitions. The notice indicates that no 

final decisions have been made yet 

regarding the appropriate bargaining 

unit and whether an election will be 

conducted. Within 2 business days after 

service of the notice of hearing, the 

employer must post paper copies of the 

Notice of Petition for Election in 

conspicuous places, including all places 

where notices to employees are 

customarily posted, and it must also 

distribute the notice electronically if it 

customarily communicates with its 

employees electronically. The employer 

must maintain the posting until the 

petition is dismissed or withdrawn, or 

the notice is replaced by the Notice of 

Election, discussed below. The 

employer’s failure properly to post or 

distribute the Notice of Petition for 

Election may be grounds for setting 

aside the election if proper and timely 

objections are filed. However, a party 

may not object to the nonposting or 

nondistribution of the notices if it is 

responsible for the nonposting or 

nondistribution. 

The Statement of Position form 

solicits information which will facilitate 

entry into election agreements or 

streamline the pre-election hearing in 

the event parties are unable to enter into 

an election agreement. Where the 

petition is filed by a labor organization 

in an initial organizing context, the 

employer’s Statement of Position states 

whether the employer agrees that the 

Board has jurisdiction over it and 

provides the requested commerce 

information; states whether the 

employer agrees that the proposed unit 

is appropriate, and if the employer does 

not so agree, states the basis for its 

contention that the proposed unit is 

inappropriate, and states the 

classifications, locations, or other 

employee groupings that must be added 

to or excluded from the proposed unit 

to make it an appropriate unit; identifies 

any individuals whose eligibility to vote 

the employer intends to contest at the 

pre-election hearing and the basis of 

each such contention; raises any 

election bar; states the length of the 

payroll period for employees in the 

proposed unit and the most recent 

payroll period ending date; states its 

position concerning the type, date(s), 

time(s), and location(s) of the election 

and the eligibility period; and describes 

any other issues it intends to raise at 

hearing. The employer also provides the 

name, title, and contact information of 

the individual who will serve as its 

representative and accept service of all 

papers for purposes of the 

representation proceeding. 

As part of its Statement of Position, 

the employer also provides an 

alphabetized list of the full names, work 

locations, shifts, and job classifications 

of all individuals in the proposed unit. 

If the employer contends that the 

proposed unit is not appropriate, the 

employer must separately list the same 

information for all individuals that the 

employer contends must be added to the 

proposed unit to make it an appropriate 

unit, and must further indicate those 

individuals, if any, whom it believes 

must be excluded from the proposed 

unit to make it an appropriate unit. The 

list(s) of names must be in an electronic 

format approved by the General Counsel 

unless the employer certifies that it does 

not possess the capacity to produce the 

list(s) in the required form. 

In cases involving employer-filed 

petitions, each individual or labor 

organization named in the petition 

states whether it agrees that the Board 

has jurisdiction over the employer; 

states whether the proposed unit is 

appropriate, and if it does not so agree, 

states the basis for its contention that 

the proposed unit is inappropriate, and 

states the classifications, locations, or 

other employee groupings that must be 

added to or excluded from the proposed 

unit to make it an appropriate unit; 

identifies any individuals whose 

eligibility to vote it intends to contest at 

the pre-election hearing and the basis of 

each such contention; raises any 

election bar; states its position 

concerning the type, date(s), time(s), 

and location(s) of the election and the 

eligibility period; and describes all other 

issues it intends to raise at hearing. Each 

individual or labor organization also 

provides the name, title, and contact 

information of the individual who will 

serve as its representative and accept 

service of papers for purposes of the 

representation proceeding. The 

employer’s Statement of Position states 

whether it agrees that the Board has 

jurisdiction over it and provides the 

requested commerce information; 

identifies any individuals whose 

eligibility to vote it intends to contest at 

the pre-election hearing and the basis of 

each such contention; provides the 

list(s) of employees; and states the 

length of the payroll period for 

employees in the proposed unit and the 

most recent payroll period ending date. 

In cases involving decertification 

petitions, although the general rule is 

that the bargaining unit in which the 

decertification election is held must be 

coextensive with the certified or 

recognized bargaining unit, the 

Statements of Position of both the 

certified or recognized representative 

and the employer nevertheless must 

state whether each agrees that the 

proposed unit is appropriate, and if not, 

state the basis for the contention that the 

proposed unit is inappropriate, and 

state the classifications, locations, or 

other employee groupings that must be 

added to or excluded from the proposed 

unit to make it an appropriate unit. The 

Statements of Position of both the 

certified or recognized representative 

and the employer must also state 

whether each agrees that the Board has 

jurisdiction over the employer; identify 

any individuals whose eligibility to vote 

each party intends to contest at the preelection hearing and the basis of each 

such contention; raise any election bar; 

and state each party’s position 

concerning the type, date(s), time(s), 

and location(s) of the election and the 

eligibility period; describe all other 

issues each party intends to raise at 

hearing; and state the name, title, and 

contact information of the individual 

who will serve as each party’s 

representative and accept service of all 

papers for purposes of the 

representation proceeding. The 

employer’s Statement of Position must 

also state the length of the payroll 

period for employees in the proposed 

unit and the most recent payroll period 

ending date; and provide the requested 

commerce information and the 

employee list(s). 

C. Voluntary Election Agreements; 

Notice of Election; Voter List 

1. Voluntary Election Agreements 

Elections can occur either by 

agreement of the parties or by direction 

of the regional director or the Board. In 

many cases, the parties, with Board 

agent assistance, are able to reach 

agreement regarding all election matters, 

thereby eliminating the need for the 

regional director or the Board to issue a 

formal decision and direction of 

election. By entering into an election 

agreement, the parties may, depending 

upon when the agreement is reached, 

avoid the time and expense of 

participating in a hearing (as well as 

having to complete the Statement of 

Position form). 

The Board has devised and makes 

available to the parties three types of 


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informal voluntary procedures through 

which representation issues can be 

resolved without recourse to formal 

procedures. Forms for use in these 

informal procedures are available in the 

regional offices and on the Board’s Web 

site. One type of informal procedure is 

the consent election agreement with 

final regional determination of postelection disputes. Here, the parties agree 

with respect to the appropriate unit, the 

payroll period to be used in determining 

which employees in the appropriate 

unit are eligible to vote in the election, 

and the type, place, date, and hours of 

balloting. The consent election is 

conducted under the direction and 

supervision of the regional director. 

This form of agreement provides that 

the rulings of the regional director on all 

questions relating to the election, such 

as the validity of challenges and 

objections, are final and binding. The 

regional director issues to the parties a 

certification of the results of the 

election, including a certification of 

representative where appropriate, with 

the same force and effect as if issued by 

the Board. 

A second type of informal procedure 

is commonly referred to as the 

stipulated election agreement. Like the 

consent agreement above, the parties 

agree on the unit, payroll period to be 

used in determining voter eligibility, 

and election details, but provide that 

they may request Board review of the 

regional director’s resolution of postelection disputes. The stipulated 

election is conducted under the 

direction and supervision of the 

regional director. 

The third type of informal procedure 

is referred to as the full consent election 

agreement. Here, the parties agree that 

all pre-election and post-election 

disputes will be resolved with finality 

by the regional director. For example, 

the parties agree that if they are unable 

to informally resolve disputes arising 

with respect to the appropriate unit or 

other election details, those issues will 

be presented to, and decided with 

finality by, the regional director after a 

hearing. Upon the close of the hearing, 

the entire record in the case is 

forwarded to the regional director. After 

review of the record, the regional 

director issues a final decision, either 

dismissing the petition or directing that 

an election be held. In the latter event, 

the election is conducted under the 

supervision of the regional director. 

Similarly, all matters arising after the 

election, including determinative 

challenged ballots and objections to the 

conduct of the election, are decided 

with finality by the regional director. 

The regional director issues to the 

parties a certification of the results of 

the election, including certifications of 

representative where appropriate, with 

the same force and effect as if issued by 

the Board. 

2. Notice of Election 

Upon approval of the election 

agreement or issuance of the direction of 

election pursuant to a full consent 

election agreement, the regional director 

promptly transmits to the parties and 

their designated representatives the 

Notice of Election, which publicizes the 

holding of the election. This notice 

reproduces a sample ballot and outlines 

such election details as the date(s) of the 

election, location(s) of polls, time of 

voting, and the eligibility rules. If the 

election agreement or direction of 

election provides for individuals to vote 

subject to challenge, the Notice of 

Election so states, and advises 

employees that such individuals are 

neither included in, nor excluded from, 

the bargaining unit, inasmuch as the 

election agreement or the direction of 

election has permitted them to vote 

subject to challenge. The Notice of 

Election further advises employees that 

the eligibility or inclusion of such 

individuals will be resolved, if 

necessary, following the election. The 

employer must post paper copies of the 

Notice of Election in conspicuous 

places, including all places where 

notices to employees in the unit are 

customarily posted, at least 3 full 

working days prior to 12:01 a.m. of the 

date of the election. The employer must 

also distribute the notice electronically 

if it customarily communicates with 

employees in the unit electronically. 

The employer’s failure properly to post 

or distribute the Notice of Election is 

grounds for setting aside the election 

whenever proper and timely objections 

are filed. However, a party may not 

object to the nonposting if it is 

responsible for the nonposting, and 

likewise may not object to the 

nondistribution of the notices if it is 

responsible for the nondistribution. 

3. Voter List 

Within 2 business days after the 

regional director’s approval of the 

election agreement or issuance of the 

direction of election pursuant to a full 

consent election agreement, the 

employer must provide the regional 

director and the parties with an 

alphabetized list of the full names, work 

locations, shifts, job classifications, and 

contact information (including home 

addresses, available personal email 

addresses, and available home and 

personal cell telephone numbers) of all 

eligible voters in order to allow the 

nonemployer parties to communicate 

with eligible employees about the 

upcoming election and to reduce the 

necessity for election-day challenges 

based solely on the nonemployer 

parties’ lack of knowledge of voters’ 

identities. The employer must also 

include in a separate section of that list 

the same information for those 

individuals whom the parties have 

agreed should be permitted to vote 

subject to challenge or those individuals 

who, according to the direction of 

election, will be permitted to vote 

subject to challenge, including, for 

example, individuals in the 

classifications or other groupings that 

will be permitted to vote subject to 

challenge. In order to be timely filed 

and served, the list must be received by 

the regional director and the parties 

named in the agreement or direction 

within 2 business days after approval of 

the agreement or issuance of the 

direction of election unless a longer 

time is specified in the agreement or 

direction. When feasible, the employer 

must electronically file the list with the 

regional director and electronically 

serve the list on the other parties. The 

list must be in an approved electronic 

format, unless the employer certifies 

that it does not have the capacity to 

produce the list in the required format. 

The employer’s failure to file or serve 

the list within the specified time or in 

the proper format is grounds for setting 

aside the election whenever proper and 

timely objections are filed. However, the 

employer may not object to the failure 

to file or serve the list in the specified 

time or in the proper format if it is 

responsible for the failure. The parties 

may not use the list for purposes other 

than the representation proceeding, 

Board proceedings arising from it, and 

related matters. 

D. Hearing 

If the parties have not entered into a 

voluntary election agreement, a hearing 

must be held to determine if a question 

of representation affecting commerce 

exists before a regional director or the 

Board may direct an election to resolve 

that question. The hearing continues 

day to day until completed absent 

extraordinary circumstances. The 

hearing, usually open to the public, is 

held before a hearing officer who 

normally is an attorney or field 

examiner attached to the regional office 

but may be another qualified agency 

employee. The hearing, which is 

nonadversary in character, is part of the 

investigation in which the primary 

interest of the hearing officer is to 

ensure that the record contains as full a 

statement of the pertinent facts as may 


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be necessary for determination of 

whether a question of representation 

exists. A question of representation 

exists if a proper petition has been filed 

concerning a unit appropriate for the 

purpose of collective bargaining or 

concerning a unit in which an 

individual or labor organization has 

been certified or is being currently 

recognized by the employer as the 

bargaining representative. Disputes 

concerning individuals’ eligibility to 

vote or inclusion in an appropriate unit 

ordinarily need not be litigated or 

resolved before an election is 

conducted. Such matters can be 

resolved, if necessary, following the 

election. Each party is afforded full 

opportunity to introduce evidence of the 

significant facts that support its 

contentions and are relevant to the 

existence of a question of 

representation. Witnesses are examined 

orally under oath. The rules of evidence 

prevailing in courts of law or equity are 

not controlling. 

After the Statement of Position is 

received into evidence, the other parties 

respond to each issue raised in the 

Statement. Thus, for example, the 

petitioner may amend its petition to 

conform to an alternative unit proposed 

by the non-petitioning party. The 

regional director has discretion to 

permit parties to amend their 

Statements of Position or their 

responses in a timely manner for good 

cause. If the regional director permits a 

party to amend its Statement of 

Position, the other parties respond to 

each amended position. A party 

generally may not raise any issue, 

present evidence relating to any issue, 

cross-examine any witness concerning 

any issue, and present argument 

concerning any issue that the party 

failed to raise in its timely Statement of 

Position or failed to place in dispute in 

response to another party’s Statement of 

Position or response. However, no party 

is precluded from challenging the 

eligibility of any voter during the 

election on the ground that the voter’s 

eligibility or inclusion was not 

contested at the pre-election hearing. In 

addition, no party is precluded from 

contesting or presenting evidence 

relevant to the Board’s statutory 

jurisdiction, and the regional director 

has discretion to direct the receipt of 

evidence concerning any issue, such as 

the appropriateness of the proposed 

unit, as to which the director 

determines that record evidence is 

necessary. If a party contends that the 

proposed unit is not appropriate in its 

Statement of Position but fails to specify 

the classifications, locations or other 

employee groupings that must be added 

to or excluded from the proposed unit 

to make it an appropriate unit, the party 

may not raise any issue or present 

evidence or argument about the 

appropriateness of the unit. And if the 

employer fails to timely furnish the lists 

of employees required to be included as 

part of the Statement of Position, the 

employer also may not contest the 

appropriateness of the proposed unit at 

any time and may not contest the 

eligibility or inclusion of any 

individuals at the pre-election hearing. 

The regional director directs the 

hearing officer regarding the issues to be 

litigated at the hearing. The hearing 

officer may require parties to make 

offers of proof. If the regional director 

determines that the evidence described 

in an offer of proof is insufficient to 

sustain the proponent’s position, the 

evidence is not received. In most cases 

a substantial number of the relevant 

facts are undisputed and stipulated. 

Any objection with respect to the 

conduct of the hearing, including any 

objection to the introduction of 

evidence, may be stated orally or in 

writing, accompanied by a short 

statement of the grounds of such 

objection, and included in the record. 

No such objection is waived by further 

participation in the hearing. A party 

need not seek special permission to 

appeal a hearing officer’s ruling to 

preserve an issue for review after the 

hearing. 

Before the hearing closes, the hearing 

officer solicits the parties’ positions on 

the type, date(s), time(s), and location(s) 

of the election, and the eligibility 

period, but does not permit litigation of 

these issues. The hearing officer also 

advises the parties what their 

obligations will be if an election is 

directed, and solicits the name and 

contact information of the employer’s 

on-site representative to whom the 

regional director should transmit the 

Notice of Election. At the close of the 

hearing, parties are permitted to make 

oral arguments on the record. Parties are 

permitted to file post-hearing briefs only 

with special permission of the regional 

director. The regional director specifies 

the time for filing such briefs, and may 

limit the subjects to be addressed in 

post-hearing briefs. 

Upon the close of the hearing, the 

entire record in the case is forwarded to 

the regional director for decision. The 

hearing officer also transmits an 

analysis of the record, but makes no 

recommendations in regard to 

resolution of the issues. 

E. Regional Director Pre-Election 

Determinations; Directions of Election; 

Notice of Election; Voter List; Requests 

for Review 

1. Pre-Election Determinations; 

Direction of Election; Notice of Election 

After the pre-election hearing closes, 

the regional director proceeds to review 

the record of the hearing and any posthearing briefs to determine whether a 

question of representation affecting 

commerce exists concerning a unit 

appropriate for the purposes of 

collective bargaining or, in the 

decertification context, concerning a 

unit with an incumbent representative. 

The regional director may decide either 

to direct an election, dismiss the 

petition, or reopen the hearing. 

The regional director’s direction of 

election ordinarily specifies the type, 

date(s), time(s), and location(s) of the 

election and the eligibility period. The 

regional director sets the election for the 

earliest date practicable consistent with 

the Board’s rules. The election is not 

scheduled for a date earlier than 10 days 

after the date by which the voter list 

must be filed and served unless the 

parties entitled to the list (for example, 

unions and decertification petitioners) 

waive the right to use the list for some 

or all of the 10-day period. The regional 

director directs (and conducts) the 

election where appropriate 

notwithstanding the pendency of an 

unfair labor practice charge covering the 

unit at issue and a request that the 

charge block the election if the regional 

director determines that the charging 

party’s offer of proof in support of its 

charge does not describe evidence that, 

if proven, would interfere with 

employee free choice in an election or 

would be inherently inconsistent with 

the petition itself. 

The regional director promptly 

transmits the direction of election to the 

parties and their designated 

representatives, and ordinarily will 

simultaneously transmit the Board’s 

Notice of Election, which publicizes the 

holding of the election. This notice 

reproduces a sample ballot and outlines 

such election details as the date(s) of the 

election, location(s) of polls, time of 

voting, and the eligibility rules. If the 

direction of election provides for 

individuals to vote subject to challenge 

because their eligibility has not been 

determined, the Notice of Election so 

states, and advises employees that such 

individuals are neither included in, nor 

excluded from, the bargaining unit, 

inasmuch as the regional director has 

permitted them to vote subject to 

challenge. The election notice further 

advises employees that the eligibility or 


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inclusion of such individuals will be 

resolved, if necessary, following the 

election. 

The employer must post paper copies 

of the Notice of Election in conspicuous 

places, including all places where 

notices to employees in the unit are 

customarily posted, at least 3 full 

working days prior to 12:01 a.m. of the 

date of the election. The employer must 

also distribute the notice electronically 

if it customarily communicates with 

employees in the unit electronically. 

The employer’s failure properly to post 

or distribute the Notice of Election is 

grounds for setting aside the election 

whenever proper and timely objections 

are filed. However, a party may not 

object to the nonposting if it is 

responsible for the nonposting, and 

likewise may not object to the 

nondistribution of the notices if it is 

responsible for the nondistribution. 

2. Voter List 

Within 2 business days after issuance 

of the direction of election, the 

employer must provide the regional 

director and the parties named in the 

direction with an alphabetized list of 

the full names, work locations, shifts, 

job classifications, and contact 

information (including home addresses, 

available personal email addresses, and 

available home and personal cell 

telephone numbers) of all eligible voters 

in order to allow the nonemployer 

parties to communicate with eligible 

employees about the upcoming election 

and to reduce the necessity for electionday challenges based solely on the 

nonemployer parties’ lack of knowledge 

of voters’ identities. The employer must 

also include in a separate section of that 

list the same information for those 

individuals who, according to the 

direction of election, will be permitted 

to vote subject to challenge, including, 

for example, individuals in the 

classifications or other groupings that 

will be permitted to vote subject to 

challenge. In order to be timely filed 

and served, the list must be received by 

the regional director and the parties 

named in the direction of election 

within 2 business days after issuance of 

the direction of election, unless the 

direction specified a longer time for 

filing and service of the list. When 

feasible, the employer must 

electronically file the list with the 

regional director and electronically 

serve the list on the other parties. The 

list must be in an approved electronic 

format, unless the employer certifies 

that it does not have the capacity to 

produce the list in the required format. 

The employer’s failure to file or serve 

the list within the specified time or in 

the proper format is grounds for setting 

aside the election whenever proper and 

timely objections are filed. However, the 

employer may not object to the failure 

to file or serve the list in the specified 

time or in the proper format if it is 

responsible for the failure. The parties 

may not use the list for purposes other 

than the representation proceeding, 

Board proceedings arising from it, and 

related matters. 

3. Requests for Review 

Any party may request that the Board 

review any action of a regional director 

delegated to the director under Section 

3(b) of the Act unless the Board’s rules 

provide otherwise. However, neither the 

filing of such a request nor the grant of 

such a request will operate as a stay of 

any action taken by the regional 

director, unless the Board orders 

otherwise. Any party may file with the 

Board a statement in opposition to the 

request for review. The Board will grant 

a request for review only where there 

are compelling reasons to do so. The 

regional director’s actions are final 

unless the Board grants a request for 

review. The parties may, at any time, 

waive their right to request review. 

Failure to request review precludes such 

parties from relitigating, in any related 

subsequent unfair labor practice 

proceeding, any issue that was, or could 

have been, raised in the representation 

proceeding. Denial of a request for 

review constitutes an affirmance of the 

regional director’s action, which also 

precludes relitigating any such issues in 

any related subsequent unfair labor 

practice proceeding. If the Board grants 

review, the Board shall make such 

disposition of the matter as it deems 

appropriate. 

A party requesting review may also 

request expedited consideration. A 

party may also request that the Board 

stay some or all of its proceedings, 

including the election, or segregate and/ 

or impound some or all of the ballots. 

Relief will be granted only upon a clear 

showing that it is necessary under the 

particular circumstances of the case. 

However, the pendency of a motion 

does not entitle a party to interim relief, 

and an affirmative ruling by the Board 

granting relief is required before the 

action of the regional director will be 

altered in any fashion. 

The request for review may be filed at 

any time following the regional 

director’s action until 14 days after a 

final disposition of the proceeding by 

the regional director. Accordingly, a 

party need not file a request for review 

of a decision and direction of election 

before the election in order to preserve 

its right to contest that decision after the 

election. Instead, a party can wait to see 

whether the election results have 

mooted the basis of an appeal, and a 

party may combine a request for review 

of the decision and direction of election 

with a request for review of the regional 

director’s resolution of objections and 

challenged ballots, if the party has not 

previously requested review of the 

direction of election. 

F. Election Procedure; Challenges and 

Election Objections; Processing of 

Challenges and Objections; Hearings; 

Regional Director Dispositions of 

Challenges and Objections; Appeals 

1. Election Procedure; Challenges 

Unless otherwise directed by the 

Board, all elections are conducted under 

the supervision of the regional director 

in whose region the proceeding is 

pending. All elections shall be by secret 

ballot. A Board agent usually arranges a 

pre-election conference at which the 

parties check the list of voters and 

attempt to resolve any questions of 

eligibility. When an election is 

conducted manually, any party may be 

represented by observers of its own 

selection, subject to such limitations as 

the regional director may prescribe, and 

the ballots are marked in the secrecy of 

a voting booth. Ballots cast by 

individuals whom the parties agree may 

vote subject to challenge, or whom the 

decision and direction of election 

permits to vote subject to challenge, are 

segregated and impounded. The parties’ 

authorized observers and Board agents 

may challenge, for good cause, the 

eligibility of any person to participate in 

the election. For example, the Board 

agent challenges anyone whose name is 

not on the list. If such a person is 

permitted to vote, his or her ballot is 

segregated, and, if the challenge is not 

resolved before the tally, impounded. 

Board agents, in the presence and with 

the assistance of the parties’ authorized 

representatives, ordinarily count and 

tabulate the ballots promptly after the 

closing of the polls. Elections are 

decided by a majority of the valid votes 

cast. Voter challenges may be resolved 

by agreement. A complete tally of the 

ballots is made available to the parties 

upon the conclusion of the count. If the 

number of unresolved challenged 

ballots is insufficient to affect the results 

of an election in which an individual or 

labor organization is certified, the unit 

placement of any such individuals may 

be resolved by the parties in the course 

of collective bargaining or may be 

determined by the Board if a timely unit 

clarification petition is filed. 


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2. Objections 

Within 7 days after the tally of ballots 

has been prepared, a party may file with 

the regional director objections to the 

conduct of the election or to conduct 

affecting the results of the election, 

which shall contain a short statement of 

the reasons therefor. The party filing 

objections must simultaneously serve a 

copy of its objections, including the 

short statement of the reasons therefor, 

on all other parties to the representation 

case. The party filing objections must 

also simultaneously file a written offer 

of proof in support of its objections, but 

the offer of proof need not be served on 

the other parties. A party must timely 

file objections and the offer of proof 

even if there are determinative 

challenges. The regional director may 

grant additional time to file the offer of 

proof in support of election objections 

upon a showing of good cause. 

3. Regional Director Action in Absence 

of Objections, Determinative Challenges 

and Runoff Elections 

If no timely objections are filed, if the 

challenged ballots are insufficient in 

number to affect the results of the 

election, and if no runoff election is to 

be held, the regional director issues to 

the parties a certification of the results 

of the election, including certification of 

representative where appropriate. 

4. Processing and Disposition of 

Objections and Determinative 

Challenges 

The initial procedures for handling 

objections to the conduct of the election 

or to conduct affecting the results of the 

election, as well as determinative 

challenges, are the same regardless of 

whether the election was directed by a 

regional director or held pursuant to the 

parties’ agreement. The regional director 

has discretion to conduct an 

investigation or set the matters for a 

hearing without an investigation. 

If timely objections are filed and the 

regional director determines that the 

evidence described in the party’s offer 

of proof would not constitute grounds 

for setting aside the election if 

introduced at a hearing, and the regional 

director determines that any 

determinative challenges do not raise 

substantial and material factual issues, 

the regional director issues a decision 

disposing of the objections and 

challenges and a certification of the 

results of the election, including 

certification of representative where 

appropriate. 

If timely objections are filed to the 

conduct of the election or to conduct 

affecting the results of the election and 

the regional director determines that the 

evidence described in the party’s offer 

of proof could be grounds for setting 

aside the election if introduced at a 

hearing, or if the challenged ballots are 

sufficient in number to affect the results 

of the election and raise substantial and 

material factual issues, the regional 

director transmits to the parties’ and 

their designated representatives a notice 

of hearing before a hearing officer, 

unless the regional director consolidates 

the hearing concerning objections and 

determinative challenges with an unfair 

labor practice proceeding before an 

administrative law judge. 

If the regional director consolidates 

the hearing concerning objections and 

determinative challenges with an unfair 

labor practice proceeding before an 

administrative law judge and the 

election was conducted pursuant to one 

of the two types of consent agreements, 

the administrative law judge, upon 

issuing a decision, severs the 

representation case and transfers it to 

the regional director for further 

processing. If, however, the regional 

director consolidates the hearing 

concerning objections and 

determinative challenges with an unfair 

labor practice proceeding before an 

administrative law judge and the 

election was conducted pursuant to a 

stipulated election agreement or a 

decision and direction of election, the 

provisions of § 102.46 of the Board’s 

Rules and Regulations govern with 

respect to the filing of exceptions or an 

answering brief to the exceptions to the 

administrative law judge’s decision, and 

a request for review of the regional 

director’s decision and direction of 

election shall be due at the same time 

as the exceptions to the administrative 

law judge’s decision are due. 

If, on the other hand, the regional 

director issues a notice of hearing before 

a hearing officer, the hearing opens 21 

days from the tally of ballots or as soon 

as practicable thereafter, unless the 

parties agree to an earlier date. The postelection hearing continues day to day 

until completed absent extraordinary 

circumstances. The hearing officer 

issues a report resolving questions of 

credibility and containing findings of 

fact and recommendations as to the 

disposition of the issues following the 

hearing. Within 14 days after issuance 

of the hearing officer’s report, any party 

may file exceptions to it with the 

regional director. A party opposing the 

exceptions may file an answering brief. 

The regional director then decides the 

matter. The decision may include a 

certification of the results of the 

election, including certification of 

representatives where appropriate. The 

parties’ appeal rights with respect to the 

regional director’s decision on 

challenged ballots and/or objections 

depend upon whether the parties agreed 

to waive any appeal prior to the 

election. In cases where the election was 

conducted pursuant to either of the two 

types of consent election agreements, 

the regional director’s decision 

regarding the election objections and 

determinative challenges is not subject 

to Board review. 

If the election has been held pursuant 

to a stipulated election agreement or a 

direction of election, a party may 

request Board review, and may combine 

it with a request for review of the 

regional director’s decision to direct the 

election if the party has not previously 

requested review of that decision. The 

request for review may be filed at any 

time after the regional director’s 

decision on challenged ballots and/or 

objections until 14 days after a final 

disposition of the proceeding by the 

regional director. Any party may file 

with the Board a statement in 

opposition to the request for review. 

The Board will grant a request for 

review only where there are compelling 

reasons to do so. The regional director’s 

actions are final unless the Board grants 

a request for review. The parties may, at 

any time, waive their right to request 

review. Failure to request review 

precludes such parties from relitigating, 

in any related subsequent unfair labor 

practice proceeding, any issue that was, 

or could have been, raised in the 

representation proceeding. Denial of a 

request for review constitutes an 

affirmance of the regional director’s 

action, which also precludes relitigating 

any such issues in any related 

subsequent unfair labor practice 

proceeding. If the Board grants review, 

the Board shall make such disposition 

of the matter as it deems appropriate. 

G. Runoff Elections 

If the election involves two or more 

labor organizations and if the election 

results are inconclusive because no 

choice on the ballot received the 

majority of valid votes cast, a runoff 

election is held as provided in the 

Board’s Rules and Regulations. 

List of Subjects 

29 CFR Part 101 

Administrative practice and 

procedure, Labor management relations. 

29 CFR Part 102 

Administrative practice and 

procedure, Labor management relations. 

29 CFR Part 103 

Labor management relations. 


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1The manner of filing of such petition and the 

contents thereof are the same as described in 29 

CFR 102.60 and 102.61 and the statement of the 

general course of proceedings under Section 9(c) of 

the Act published in the Federal Register, insofar 

as they are applicable, except that the petitioner is 

not required to allege that a claim was made on the 

employer for recognition or that the union 

represents a substantial number of employees. 

In consideration of the foregoing, the 

National Labor Relations Board amends 

Chapter I of title 29, Code of Federal 

Regulations, as follows: 

PART 101—STATEMENTS OF 

PROCEDURES 

■ 1. The authority citation for part 101 

continues to read as follows: 

Authority: Sec. 6 of the National Labor 

Relations Act, as amended (29 U.S.C. 151, 

156), and sec. 552(a) of the Administrative 

Procedure Act (5 U.S.C. 552(a)). Section 

101.14 also issued under sec. 2112(a)(1) of 

Pub. L. 100–236, 28 U.S.C. 2112(a)(1). 

Subpart C—[Removed and Reserved] 

■ 2. Remove and reserve subpart C, 

consisting of §§ 101.17 through 101.21. 

Subpart D—Unfair Labor Practice and 

Representation Cases Under Sections 

8(b)(7) and 9(c) of the Act 

■ 3. Revise § 101.23 to read as follows: 

§ 101.23 Initiation and investigation of a 

petition in connection with a case under 

section 8(b)(7). 

(a) A representation petition 1

involving the employees of the 

employer named in the charge is 

handled under an expedited procedure 

when the investigation of the charge has 

revealed that: 

(1) The employer’s operations affect 

commerce within the meaning of the 

Act; 

(2) Picketing of the employer is being 

conducted for an object proscribed by 

section 8(b)(7) of the Act; 

(3) Subparagraph (C) of that section of 

the Act is applicable to the picketing; 

and 

(4) The petition has been filed within 

a reasonable period of time not to 

exceed 30 days from the commencement 

of the picketing. In these circumstances, 

the member of the regional director’s 

staff to whom the matter has been 

assigned investigates the petition to 

ascertain further: the unit appropriate 

for collective bargaining; and whether 

an election in that unit would effectuate 

the policies of the Act. 

(b) If, based on such investigation, the 

regional director determines that an 

election is warranted, the director may, 

without a prior hearing, direct that an 

election be held in an appropriate unit 

of employees. Any party aggrieved may 

file a request with the Board for special 

permission to appeal that action to the 

Board, but such review, if granted, will 

not, unless otherwise ordered by the 

Board, stay the proceeding. If it is 

determined that an election is not 

warranted, the director dismisses the 

petition or makes other disposition of 

the matter. Should the regional director 

conclude that an election is warranted, 

the director fixes the basis of eligibility 

of voters and the place, date, and hours 

of balloting. The mechanics of arranging 

the balloting, the other procedures for 

the conduct of the election, and the 

postelection proceedings are the same, 

insofar as appropriate, as those 

described in 29 CFR 102.69 and the 

statement of the general course of 

proceedings under Section 9(c) of the 

Act published in the Federal Register, 

except that the regional director’s 

rulings on any objections to the conduct 

of the election or challenged ballots are 

final and binding unless the Board, on 

an application by one of the parties, 

grants such party special permission to 

appeal from the regional director’s 

rulings. The party requesting such 

review by the Board must do so 

promptly, in writing, and state briefly 

the grounds relied on. Such party must 

also immediately serve a copy on the 

other parties, including the regional 

director. Neither the request for review 

by the Board nor the Board’s grant of 

such review operates as a stay of any 

action taken by the regional director, 

unless specifically so ordered by the 

Board. If the Board grants permission to 

appeal, and it appears to the Board that 

substantial and material factual issues 

have been presented with respect to the 

objections to the conduct of the election 

or challenged ballots, it may order that 

a hearing be held on such issues or take 

other appropriate action. 

(c) If the regional director believes, 

after preliminary investigation of the 

petition, that there are substantial issues 

which require determination before an 

election may be held, the director may 

order a hearing on the issues. This 

hearing is followed by regional director 

decision and direction of election, or 

other disposition. The procedures to be 

used in connection with such hearing 

and posthearing proceedings are the 

same, insofar as they are applicable, as 

those described in 29 CFR 102.63, 

102.64, 102.65, 102.66, 102.67, 102.68, 

and 102.69, and the statement of the 

general course. 

(d) Should the parties so desire, they 

may, with the approval of the regional 

director, resolve the issues as to the 

unit, the conduct of the balloting, and 

related matters pursuant to informal 

consent procedures, as described in 29 

CFR 102.62(a) and the statement of the 

general course. 

(e) If a petition has been filed which 

does not meet the requirements for 

processing under the expedited 

procedures, the regional director may 

process it under the procedures set forth 

in subpart C of 29 CFR part 102 and the 

statement of the general course. 

■ 4. Revise § 101.25 to read as follows: 

§ 101.25 Appeal from the dismissal of a 

petition, or from the refusal to process it 

under the expedited procedure. 

If it is determined after investigation 

of the representation petition that 

further proceedings based thereon are 

not warranted, the regional director, 

absent withdrawal of the petition, 

dismisses it, stating the grounds 

therefor. If it is determined that the 

petition does not meet the requirements 

for processing under the expedited 

procedure, the regional director advises 

the petitioner of the determination to 

process the petition under the 

procedures described in subpart C of 29 

CFR part 102 and the statement of the 

general course. In either event, the 

regional director informs all the parties 

of such action, and such action is final, 

although the Board may grant an 

aggrieved party permission to appeal 

from the regional director’s action. Such 

party must request such review 

promptly, in writing, and state briefly 

the grounds relied on. Such party must 

also immediately serve a copy on the 

other parties, including the regional 

director. Neither the request for review 

by the Board, nor the Board’s grant of 

such review, operates as a stay of the 

action taken by the regional director, 

unless specifically so ordered by the 

Board. 

Subpart E—Referendum Cases Under 

Section 9(e)(1) and (2) of the Act 

■ 5. Revise § 101.26 to read as follows: 

§ 101.26 Initiation of rescission of 

authority cases. 

The investigation of the question as to 

whether the authority of a labor 

organization to make an agreement 

requiring membership in a labor 

organization as a condition of 

employment is to be rescinded is 

initiated by the filing of a petition by an 

employee or group of employees on 

behalf of 30 percent or more of the 

employees in a bargaining unit covered 

by an agreement between their employer 

and a labor organization requiring 

membership in such labor organization. 

The petition must be in writing and 

signed, and either must be notarized or 

must contain a declaration by the 


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2Procedure under the first proviso to sec. 

8(b)(7)(C) of the Act is governed by subpart D of this 

part. 

person signing it, under the penalties of 

the Criminal Code, that its contents are 

true and correct to the best of his 

knowledge and belief. It is filed with the 

regional director for the Region in 

which the alleged appropriate 

bargaining unit exists or, if the 

bargaining unit exists in two or more 

Regions, with the regional director for 

any of such Regions. The blank form, 

which is supplied by the Regional 

Office upon request or is available 

online, provides, among other things, 

for a description of the bargaining unit 

covered by the agreement, the 

approximate number of employees 

involved, the names of any other labor 

organizations which claim to represent 

the employees, the petitioner’s position 

on the type, date(s), time(s), and 

location(s) of the election sought, and 

the name of, and contact information 

for, the individual who will serve as the 

petitioner’s representative. The petition 

may be filed by facsimile or 

electronically. The petitioner must 

supply with the petition evidence of 

authorization from the employees. 

■ 6. Revise § 101.28 to read as follows: 

§ 101.28 Consent agreements providing 

for election. 

(a) The Board makes available to the 

parties three types of informal consent 

procedures through which authorization 

issues can be resolved without resort to 

formal procedures. These informal 

agreements are the consent election 

agreement with final regional director 

determinations of post-election 

disputes, the stipulated election 

agreement with discretionary Board 

review, and the full consent election 

agreement with final regional director 

determinations of pre- and post-election 

disputes. Forms for use in these 

informal procedures are available in the 

Regional Offices. 

(b) The procedures to be used in 

connection with a consent-election 

agreement with final regional director 

determinations of post-election 

disputes, a stipulated election 

agreement with discretionary Board 

review, and a full consent-election 

agreement with final regional director 

determinations of pre- and post-election 

disputes are the same as those described 

in subpart C of 29 CFR part 102 and the 

statement of the general course in 

connection with similar agreements in 

representation cases under Section 9(c) 

of the Act, except that no provision is 

made for runoff elections. 

■ 7. Revise § 101.29 to read as follows: 

§ 101.29 Procedure respecting election 

conducted without hearing. 

If the regional director determines 

that the case is an appropriate one for 

election without formal hearing, an 

election is conducted as quickly as 

possible among the employees and upon 

the conclusion of the election the 

regional director makes available to the 

parties a tally of ballots. The parties, 

however, have an opportunity to make 

appropriate challenges and objections to 

the conduct of the election and they 

have the same rights, and the same 

procedure is followed, with respect to 

objections to the conduct of the election 

and challenged ballots, as is described 

in subpart C of 29 CFR part 102 and the 

statement of the general course in 

connection with the postelection 

procedures in representation cases 

under Section 9(c) of the Act, except 

that no provision is made for a runoff 

election. If no such objections are filed 

within 7 days and if the challenged 

ballots are insufficient in number to 

affect the results of the election, the 

regional director issues to the parties a 

certification of the results of the 

election, with the same force and effect 

as if issued by the Board. 

■ 8. Revise § 101.30 to read as follows: 

§ 101.30 Formal hearing and procedure 

respecting election conducted after 

hearing. 

(a) The procedures are the same as 

those described in subpart C of 29 CFR 

part 102 and the statement of the 

general course respecting representation 

cases arising under Section 9(c) of the 

Act insofar as applicable. If the 

preliminary investigation indicates that 

there are substantial issues which 

require determination before an 

appropriate election may be held, the 

regional director will institute formal 

proceedings by issuance of a notice of 

hearing on the issues which, after 

hearing, is followed by regional director 

decision and direction of election or 

dismissal. The notice of hearing together 

with a copy of the petition is served on 

the petitioner, the employer, and any 

other known persons or labor 

organizations claiming to have been 

designated by employees involved in 

the proceeding. 

(b) The hearing, usually open to the 

public, is held before a hearing officer 

who normally is an attorney or field 

examiner attached to the Regional Office 

but may be another qualified Agency 

official. 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 

that 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 that 

are relevant to the issue of whether the 

Board should conduct an election to 

determine whether the employees in a 

bargaining unit covered by an agreement 

between their employer and a labor 

organization made pursuant to section 

8(a)(3) of the Act, desire that such 

authority be rescinded. In most cases a 

substantial number of the relevant facts 

are undisputed and stipulated. The 

parties are permitted to argue orally on 

the record before the hearing officer. 

(c) Upon the close of the hearing, the 

entire record in the case is then 

forwarded to the regional director, 

together with an informal analysis by 

the hearing officer of the issues and the 

evidence but without recommendations. 

Post-hearing briefs are filed only upon 

special permission of the regional 

director and within the time and 

addressing the subjects permitted by the 

regional director. 

(d) The parties have the same rights, 

and the same procedure is followed, 

with respect to objections to the conduct 

of the election and challenged ballots as 

is described in connection with the 

postelection procedures in 

representation cases under Section 9(c) 

of the Act. 

PART 102—RULES AND 

REGULATIONS, SERIES 8 

■ 9. The authority citation for part 102 

continues to read as follows: 

Authority: Sections. 1, 6, National Labor 

Relations Act (29 U.S.C. 151, 156). Section 

102.117 also issued under section 

552(a)(4)(A) of the Freedom of Information 

Act, as amended (5 U.S.C. 552(a)(4)(A)), and 

Section 102.117a also issued under section 

552a(j) and (k) of the Privacy Act of 1974 (5 

U.S.C. 552a(j) and (k)). Sections 102.143 

through 102.155 also issued under section 

504(c)(1) of the Equal Access to Justice Act, 

as amended (5 U.S.C. 504(c)(1)). 

Subpart C—Procedure Under Section 

9(c) of the Act for the Determination of 

Questions Concerning Representation 

of Employees 2 And for Clarification of 

Bargaining Units and for Amendment 

of Certifications Under Section 9(b) of 

the Act 

■ 10. Revise § 102.60 to read as follows: 

§ 102.60 Petitions. 

(a) Petition for certification or 

decertification. A petition for 


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investigation of a question concerning 

representation of employees under 

paragraphs (1)(A)(i) and (1)(B) of 

Section 9(c) of the Act (hereinafter 

called a petition for certification) may 

be filed by an employee or group of 

employees or any individual or labor 

organization acting in their behalf or by 

an employer. A petition under 

paragraph (1)(A)(ii) of Section 9(c) of the 

Act, alleging that the individual or labor 

organization which has been certified or 

is being currently recognized as the 

bargaining representative is no longer 

such representative (hereinafter called a 

petition for decertification), may be filed 

by any employee or group of employees 

or any individual or labor organization 

acting in their behalf. Petitions under 

this section shall be in writing and 

signed, and either shall be sworn to 

before a notary public, Board agent, or 

other person duly authorized by law to 

administer oaths and take 

acknowledgments or shall contain a 

declaration by the person signing it, 

under the penalty of perjury, that its 

contents are true and correct (see 28 

U.S.C. 1746). One original of the 

petition shall be filed, and a copy served 

on all parties named in the petition. A 

person filing a petition by facsimile 

pursuant to § 102.114(f) shall also file an 

original for the Agency’s records, but 

failure to do so shall not affect the 

validity of the filing by facsimile, if 

otherwise proper. A person filing a 

petition electronically pursuant to 

§ 102.114(i) need not file an original. 

Except as provided in § 102.72, such 

petitions shall be filed with the regional 

director for the Region wherein the 

bargaining unit exists, or, if the 

bargaining unit exists in two or more 

Regions, with the regional director for 

any of such Regions. A certificate of 

service on all parties named in the 

petition shall also be filed with the 

regional director when the petition is 

filed. Along with the petition, the 

petitioner shall serve the Agency’s 

description of procedures in 

representation cases and the Agency’s 

Statement of Position form on all parties 

named in the petition. Prior to the 

transfer of the record to the Board, the 

petition may be withdrawn only with 

the consent of the regional director with 

whom such petition was filed. After the 

transfer of the record to the Board, the 

petition may be withdrawn only with 

the consent of the Board. Whenever the 

regional director or the Board, as the 

case may be, approves the withdrawal of 

any petition, the case shall be closed. 

(b) Petition for clarification of 

bargaining unit or petition for 

amendment of certification. A petition 

for clarification of an existing bargaining 

unit or a petition for amendment of 

certification, in the absence of a 

question of representation, may be filed 

by a labor organization or by an 

employer. Where applicable the same 

procedures set forth in paragraph (a) of 

this section shall be followed. 

■ 11. Revise § 102.61 to read as follows: 

§ 102.61 Contents of petition for 

certification; contents of petition for 

decertification; contents of petition for 

clarification of bargaining unit; contents of 

petition for amendment of certification. 

(a) RC Petitions. A petition for 

certification, when filed by an employee 

or group of employees or an individual 

or labor organization acting in their 

behalf, shall contain the following: 

(1) The name of the employer. 

(2) The address of the establishments 

involved. 

(3) The general nature of the 

employer’s business. 

(4) A description of the bargaining 

unit which the petitioner claims to be 

appropriate. 

(5) The names and addresses of any 

other persons or labor organizations 

who claim to represent any employees 

in the alleged appropriate unit, and brief 

descriptions of the contracts, if any, 

covering the employees in such unit. 

(6) The number of employees in the 

alleged appropriate unit. 

(7) A statement that a substantial 

number of employees in the described 

unit wish to be represented by the 

petitioner. Evidence supporting the 

statement shall be filed with the petition 

in accordance with paragraph (f) of this 

section, but shall not be served on any 

party. 

(8) A statement that the employer 

declines to recognize the petitioner as 

the representative within the meaning of 

Section 9(a) of the Act or that the labor 

organization is currently recognized but 

desires certification under the Act. 

(9) The name, affiliation, if any, and 

address of the petitioner, and the name, 

title, address, telephone number, 

facsimile number, and email address of 

the individual who will serve as the 

representative of the petitioner and 

accept service of all papers for purposes 

of the representation proceeding. 

(10) Whether a strike or picketing is 

in progress at the establishment 

involved and, if so, the approximate 

number of employees participating, and 

the date such strike or picketing 

commenced. 

(11) Any other relevant facts. 

(12) The type, date(s), time(s) and 

location(s) of the election sought. 

(b) RM Petitions. A petition for 

certification, when filed by an 

employer, shall contain the following: 

(1) The name and address of the 

petitioner, and the name, title, address, 

telephone number, facsimile number, 

and email address of the individual who 

will serve as the representative of the 

petitioner and accept service of all 

papers for purposes of the 

representation proceeding. 

(2) The general nature of the 

petitioner’s business. 

(3) A brief statement setting forth that 

one or more individuals or labor 

organizations have presented to the 

petitioner a claim to be recognized as 

the exclusive representative of all 

employees in the unit claimed to be 

appropriate; a description of such unit; 

and the number of employees in the 

unit. 

(4) The name or names, affiliation, if 

any, and addresses of the individuals or 

labor organizations making such claim 

for recognition. 

(5) A statement whether the petitioner 

has contracts with any labor 

organization or other representatives of 

employees and, if so, their expiration 

date(s). 

(6) Whether a strike or picketing is in 

progress at the establishment involved 

and, if so, the approximate number of 

employees participating, and the date 

such strike or picketing commenced. 

(7) Any other relevant facts. 

(8) Evidence supporting the statement 

that a labor organization has made a 

demand for recognition on the employer 

or that the employer has good faith 

uncertainty about majority support for 

an existing representative. Such 

evidence shall be filed together with the 

petition, but if the evidence reveals the 

names and/or number of employees 

who no longer wish to be represented, 

the evidence shall not be served on any 

party. However, no proof of 

representation on the part of the labor 

organization claiming a majority is 

required and the regional director shall 

proceed with the case if other factors 

require it unless the labor organization 

withdraws its claim to majority 

representation. 

(9) The type, date(s), time(s) and 

location(s) of the election sought. 

(c) RD Petitions. Petitions for 

decertification shall contain the 

following: 

(1) The name of the employer. 

(2) The address of the establishments 

and a description of the bargaining unit 

involved. 

(3) The general nature of the 

employer’s business. 

(4) The name and address of the 

petitioner and affiliation, if any, and the 

name, title, address, telephone number, 

facsimile number, and email address of 

the individual who will serve as the 


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representative of the petitioner and 

accept service of all papers for purposes 

of the representation proceeding. 

(5) The name or names and addresses 

of the individuals or labor organizations 

who have been certified or are being 

currently recognized by the employer 

and who claim to represent any 

employees in the unit involved, and the 

expiration date of any contracts 

covering such employees. 

(6) An allegation that the individuals 

or labor organizations who have been 

certified or are currently recognized by 

the employer are no longer the 

representative in the appropriate unit as 

defined in Section 9(a) of the Act. 

(7) The number of employees in the 

unit. 

(8) A statement that a substantial 

number of employees in the described 

unit no longer wish to be represented by 

the incumbent representative. Evidence 

supporting the statement shall be filed 

with the petition in accordance with 

paragraph (f) of this section, but shall 

not be served on any party. 

(9) Whether a strike or picketing is in 

progress at the establishment involved 

and, if so, the approximate number of 

employees participating, and the date 

such strike or picketing commenced. 

(10) Any other relevant facts. 

(11) The type, date(s), time(s) and 

location(s) of the election sought. 

(d) UC Petitions. A petition for 

clarification shall contain the following: 

(1) The name of the employer and the 

name of the recognized or certified 

bargaining representative. 

(2) The address of the establishment 

involved. 

(3) The general nature of the 

employer’s business. 

(4) A description of the present 

bargaining unit, and, if the bargaining 

unit is certified, an identification of the 

existing certification. 

(5) A description of the proposed 

clarification. 

(6) The names and addresses of any 

other persons or labor organizations 

who claim to represent any employees 

affected by the proposed clarifications, 

and brief descriptions of the contracts, 

if any, covering any such employees. 

(7) The number of employees in the 

present bargaining unit and in the unit 

as proposed under the clarification. 

(8) The job classifications of 

employees as to whom the issue is 

raised, and the number of employees in 

each classification. 

(9) A statement by petitioner setting 

forth reasons why petitioner desires 

clarification of unit. 

(10) The name, the affiliation, if any, 

and the address of the petitioner, and 

the name, title, address, telephone 

number, facsimile number, and email 

address of the individual who will serve 

as the representative of the petitioner 

and accept service of all papers for 

purposes of the representation 

proceeding. 

(11) Any other relevant facts. 

(e) AC Petitions. A petition for 

amendment of certification shall contain 

the following: 

(1) The name of the employer and the 

name of the certified union involved. 

(2) The address of the establishment 

involved. 

(3) The general nature of the 

employer’s business. 

(4) Identification and description of 

the existing certification. 

(5) A statement by petitioner setting 

forth the details of the desired 

amendment and reasons therefor. 

(6) The names and addresses of any 

other persons or labor organizations 

who claim to represent any employees 

in the unit covered by the certification 

and brief descriptions of the contracts, 

if any, covering the employees in such 

unit. 

(7) The name, the affiliation, if any, 

and the address of the petitioner, and 

the name, title, address, telephone 

number, facsimile number, and email 

address of the individual who will serve 

as the representative of the petitioner 

and accept service of all papers for 

purposes of the representation 

proceeding. 

(8) Any other relevant facts. 

(f) Provision of original signatures. 

Evidence filed pursuant to paragraphs 

(a)(7), (b)(8), or (c)(8) of this section 

together with a petition that is filed by 

facsimile or electronically, which 

includes original signatures that cannot 

be transmitted in their original form by 

the method of filing of the petition, may 

be filed by facsimile or in electronic 

form provided that the original 

documents are received by the regional 

director no later than 2 days after the 

facsimile or electronic filing. 

■ 12. Revise § 102.62 to read as follows: 

§ 102.62 Election agreements; voter list; 

Notice of Election. 

(a) Consent election agreements with 

final regional director determinations of 

post-election disputes. Where a petition 

has been duly filed, the employer and 

any individual or labor organizations 

representing a substantial number of 

employees involved may, with the 

approval of the regional director, enter 

into an agreement providing for the 

waiver of a hearing and for an election 

and further providing that post-election 

disputes will be resolved by the regional 

director. Such agreement, referred to as 

a consent election agreement, shall 

include a description of the appropriate 

unit, the time and place of holding the 

election, and the payroll period to be 

used in determining what employees 

within the appropriate unit shall be 

eligible to vote. Such election shall be 

conducted under the direction and 

supervision of the regional director. The 

method of conducting such election 

shall be consistent with the method 

followed by the regional director in 

conducting elections pursuant to 

§§ 102.69 and 102.70 except that the 

rulings and determinations by the 

regional director of the results thereof 

shall be final, and the regional director 

shall issue to the parties a certification 

of the results of the election, including 

certifications of representative where 

appropriate, with the same force and 

effect, in that case, as if issued by the 

Board, and except that rulings or 

determinations by the regional director 

in respect to any amendment of such 

certification shall also be final. 

(b) Stipulated election agreements 

with discretionary Board review. Where 

a petition has been duly filed, the 

employer and any individuals or labor 

organizations representing a substantial 

number of the employees involved may, 

with the approval of the regional 

director, enter into an agreement 

providing for the waiver of a hearing 

and for an election as described in 

paragraph (a) of this section and further 

providing that the parties may request 

Board review of the regional director’s 

resolution of post-election disputes. 

Such agreement, referred to as a 

stipulated election agreement, shall also 

include a description of the appropriate 

bargaining unit, the time and place of 

holding the election, and the payroll 

period to be used in determining which 

employees within the appropriate unit 

shall be eligible to vote. Such election 

shall be conducted under the direction 

and supervision of the regional director. 

The method of conducting such election 

and the post-election procedure shall be 

consistent with that followed by the 

regional director in conducting elections 

pursuant to §§ 102.69 and 102.70. 

(c) Full consent election agreements 

with final regional director 

determinations of pre- and post-election 

disputes. Where a petition has been 

duly filed, the employer and any 

individual or labor organizations 

representing a substantial number of the 

employees involved may, with the 

approval of the regional director, enter 

into an agreement, referred to as a full 

consent election agreement, providing 

that pre- and post-election disputes will 

be resolved by the regional director. 

Such agreement provides for a hearing 

pursuant to §§ 102.63, 102.64, 102.65, 


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102.66 and 102.67 to determine if a 

question of representation exists. Upon 

the conclusion of such a hearing, the 

regional director shall issue a decision. 

The rulings and determinations by the 

regional director thereunder shall be 

final, with the same force and effect, in 

that case, as if issued by the Board. Any 

election ordered by the regional director 

shall be conducted under the direction 

and supervision of the regional director. 

The method of conducting such election 

shall be consistent with the method 

followed by the regional director in 

conducting elections pursuant to 

§§ 102.69 and 102.70, except that the 

rulings and determinations by the 

regional director of the results thereof 

shall be final, and the regional director 

shall issue to the parties a certification 

of the results of the election, including 

certifications of representative where 

appropriate, with the same force and 

effect, in that case, as if issued by the 

Board, and except that rulings or 

determinations by the regional director 

in respect to any amendment of such 

certification shall also be final. 

(d) Voter list. Absent agreement of the 

parties to the contrary specified in the 

election agreement or extraordinary 

circumstances specified in the direction 

of election, within 2 business days after 

the approval of an election agreement 

pursuant to paragraphs (a) or (b) of this 

section, or issuance of a direction of 

election pursuant to paragraph (c) of 

this section, the employer shall provide 

to the regional director and the parties 

named in the agreement or direction a 

list of the full names, work locations, 

shifts, job classifications, and contact 

information (including home addresses, 

available personal email addresses, and 

available home and personal cellular 

(‘‘cell’’) telephone numbers) of all 

eligible voters. The employer shall also 

include in a separate section of that list 

the same information for those 

individuals whom the parties have 

agreed should be permitted to vote 

subject to challenge or those individuals 

who, according to the direction of 

election, will be permitted to vote 

subject to challenge, including, for 

example, individuals in the 

classifications or other groupings that 

will be permitted to vote subject to 

challenge. In order to be timely filed 

and served, the list must be received by 

the regional director and the parties 

named in the agreement or direction 

respectively within 2 business days after 

the approval of the agreement or 

issuance of the direction unless a longer 

time is specified in the agreement or 

direction. The list of names shall be 

alphabetized (overall or by department) 

and be in an electronic format approved 

by the General Counsel unless the 

employer certifies that it does not 

possess the capacity to produce the list 

in the required form. When feasible, the 

list shall be filed electronically with the 

regional director and served 

electronically on the other parties 

named in the agreement or direction. A 

certificate of service on all parties shall 

be filed with the regional director when 

the voter list is filed. The employer’s 

failure to file or serve the list within the 

specified time or in proper format shall 

be grounds for setting aside the election 

whenever proper and timely objections 

are filed under the provisions of 

§ 102.69(a). The employer shall be 

estopped from objecting to the failure to 

file or serve the list within the specified 

time or in the proper format if it is 

responsible for the failure. The parties 

shall not use the list for purposes other 

than the representation proceeding, 

Board proceedings arising from it, and 

related matters. 

(e) Notice of election. Upon approval 

of the election agreement pursuant to 

paragraphs (a) or (b) of this section or 

with the direction of election pursuant 

to paragraph (c) of this section, the 

regional director shall promptly 

transmit the Board’s Notice of Election 

to the parties and their designated 

representatives by email, facsimile, or 

by overnight mail (if neither an email 

address nor facsimile number was 

provided). The employer shall post and 

distribute the Notice of Election in 

accordance with § 102.67(k). The 

employer’s failure properly to post or 

distribute the election notices as 

required herein shall be grounds for 

setting aside the election whenever 

proper and timely objections are filed 

under the provisions of § 102.69(a). A 

party shall be estopped from objecting 

to the nonposting of notices if it is 

responsible for the nonposting, and 

likewise shall be estopped from 

objecting to the nondistribution of 

notices if it is responsible for the 

nondistribution. 

■ 13. Revise § 102.63 to read as follows: 

§ 102.63 Investigation of petition by 

regional director; notice of hearing; service 

of notice; Notice of Petition for Election; 

Statement of Position; withdrawal of notice 

of hearing. 

(a) Investigation; notice of hearing; 

Notice of Petition for Election. (1) After 

a petition has been filed under 

§ 102.61(a), (b), or (c), if no agreement 

such as that provided in § 102.62 is 

entered into and if it appears to the 

regional director that there is reasonable 

cause to believe that a question of 

representation affecting commerce 

exists, that the policies of the Act will 

be effectuated, and that an election will 

reflect the free choice of employees in 

an appropriate unit, the regional 

director shall prepare and cause to be 

served upon the parties and upon any 

known individuals or labor 

organizations purporting to act as 

representatives of any employees 

directly affected by such investigation, a 

notice of hearing before a hearing officer 

at a time and place fixed therein. Except 

in cases presenting unusually complex 

issues, the regional director shall set the 

hearing for a date 8 days from the date 

of service of the notice excluding 

intervening Federal holidays, but if the 

8th day is a weekend or Federal holiday, 

the regional director shall set the 

hearing for the following business day. 

The regional director may postpone the 

hearing for up to 2 business days upon 

request of a party showing special 

circumstances. The regional director 

may postpone the opening of the 

hearing for more than 2 business days 

upon request of a party showing 

extraordinary circumstances. A copy of 

the petition, a description of procedures 

in representation cases, a ‘‘Notice of 

Petition for Election’’, and a Statement 

of Position form as described in 

paragraphs (b)(1) through (3) of this 

section, shall be served with such notice 

of hearing. Any such notice of hearing 

may be amended or withdrawn before 

the close of the hearing by the regional 

director on the director’s own motion. 

(2) Within 2 business days after 

service of the notice of hearing, the 

employer shall post the Notice of 

Petition for Election in conspicuous 

places, including all places where 

notices to employees are customarily 

posted, and shall also distribute it 

electronically if the employer 

customarily communicates with its 

employees electronically. The Notice of 

Petition for Election shall indicate that 

no final decisions have been made yet 

regarding the appropriateness of the 

petitioned-for bargaining unit and 

whether an election shall be conducted. 

The employer shall maintain the posting 

until the petition is dismissed or 

withdrawn or the Notice of Petition for 

Election is replaced by the Notice of 

Election. The employer’s failure 

properly to post or distribute the Notice 

of Petition for Election may be grounds 

for setting aside the election whenever 

proper and timely objections are filed 

under the provisions of § 102.69(a). A 

party shall be estopped from objecting 

to the nonposting of notices if it is 

responsible for the nonposting, and 

likewise shall be estopped from 

objecting to the nondistribution of 


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notices if it is responsible for the 

nondistribution. 

(b)(1) Statement of Position in RC 

cases. If a petition has been filed under 

§ 102.61(a) and the regional director has 

issued a notice of hearing, the employer 

shall file with the regional director and 

serve on the parties named in the 

petition its Statement of Position such 

that it is received by the regional 

director and the parties named in the 

petition by the date and time specified 

in the notice of hearing, which shall be 

at noon on the business day before the 

opening of the hearing if the hearing is 

set to open 8 days from service of the 

notice. The regional director may set the 

date and time for filing and serving the 

Statement of Position earlier than at 

noon on the business day before the 

hearing in the event the hearing is set 

to open more than 8 days from service 

of the notice. The regional director may 

postpone the time for filing and serving 

the Statement of Position for up to 2 

business days upon request of a party 

showing special circumstances. The 

regional director may postpone the time 

for filing and serving the Statement of 

Position for more than 2 business days 

upon request of a party showing 

extraordinary circumstances. The 

regional director may permit the 

employer to amend its Statement of 

Position in a timely manner for good 

cause. 

(i) The employer’s Statement of 

Position shall state whether the 

employer agrees that the Board has 

jurisdiction over it and provide the 

requested information concerning the 

employer’s relation to interstate 

commerce; state whether the employer 

agrees that the proposed unit is 

appropriate, and, if the employer does 

not so agree, state the basis for its 

contention that the proposed unit is 

inappropriate, and state the 

classifications, locations, or other 

employee groupings that must be added 

to or excluded from the proposed unit 

to make it an appropriate unit; identify 

any individuals whose eligibility to vote 

the employer intends to contest at the 

pre-election hearing and the basis of 

each such contention; raise any election 

bar; state the length of the payroll 

period for employees in the proposed 

unit and the most recent payroll period 

ending date; state the employer’s 

position concerning the type, date(s), 

time(s), and location(s) of the election 

and the eligibility period; and describe 

all other issues the employer intends to 

raise at the hearing. 

(ii) The Statement of Position shall 

also state the name, title, address, 

telephone number, facsimile number, 

and email address of the individual who 

will serve as the representative of the 

employer and accept service of all 

papers for purposes of the 

representation proceeding and be signed 

by a representative of the employer. 

(iii) The Statement of Position shall 

include a list of the full names, work 

locations, shifts, and job classifications 

of all individuals in the proposed unit 

as of the payroll period preceding the 

filing of the petition who remain 

employed at the time of filing, and if the 

employer contends that the proposed 

unit is inappropriate, the employer shall 

separately list the full names, work 

locations, shifts, and job classifications 

of all individuals that the employer 

contends must be added to the proposed 

unit to make it an appropriate unit. The 

employer shall also indicate those 

individuals, if any, whom it believes 

must be excluded from the proposed 

unit to make it an appropriate unit. The 

list(s) of names shall be alphabetized 

(overall or by department) and be in an 

electronic format approved by the 

General Counsel unless the employer 

certifies that it does not possess the 

capacity to produce the list in the 

required form. 

(2) Statement of Position in RM cases. 

If a petition has been filed under 

§ 102.61(b) and the regional director has 

issued a notice of hearing, each 

individual or labor organization named 

in the petition shall file with the 

regional director and serve on the other 

parties named in the petition its 

Statement of Position such that it is 

received by the regional director and the 

parties named in the petition by the date 

and time specified in the notice of 

hearing, which shall be at noon on the 

business day before the opening of the 

hearing if the hearing is set to open 8 

days from service of the notice. The 

regional director may set the date and 

time for filing and serving the Statement 

of Position earlier than at noon on the 

business day before the hearing in the 

event the hearing is set to open more 

than 8 days from service of the notice. 

The regional director may postpone the 

time for filing and serving the Statement 

of Position for up to 2 business days 

upon request of a party showing special 

circumstances. The regional director 

may postpone the time for filing and 

serving the Statement of Position for 

more than 2 business days upon request 

of a party showing extraordinary 

circumstances. The regional director 

may permit each individual or labor 

organization named in the petition to 

amend its Statement of Position in a 

timely manner for good cause. 

(i) Individual or labor organization’s 

Statement of Position. Each individual 

or labor organization’s Statement of 

Position shall state whether it agrees 

that the Board has jurisdiction over the 

employer; state whether it agrees that 

the proposed unit is appropriate, and, if 

it does not so agree, state the basis for 

its contention that the proposed unit is 

inappropriate, and state the 

classifications, locations, or other 

employee groupings that must be added 

to or excluded from the proposed unit 

to make it an appropriate unit; identify 

any individuals whose eligibility to vote 

the individual or labor organization 

intends to contest at the pre-election 

hearing and the basis of each such 

contention; raise any election bar; state 

its position concerning the type, date(s), 

time(s), and location(s) of the election 

and the eligibility period; and describe 

all other issues it intends to raise at the 

hearing. 

(ii) Identification of representative for 

service of papers. Each individual or 

labor organization’s Statement of 

Position shall also state the name, title, 

address, telephone number, facsimile 

number, and email address of the 

individual who will serve as its 

representative and accept service of all 

papers for purposes of the 

representation proceeding and be signed 

by the individual or a representative of 

the individual or labor organization. 

(iii) Employer’s Statement of Position. 

Within the time permitted for filing the 

Statement of Position, the employer 

shall file with the regional director and 

serve on the parties named in the 

petition a list of the full names, work 

locations, shifts, and job classifications 

of all individuals in the proposed unit 

as of the payroll period preceding the 

filing of the petition who remain 

employed at the time of filing. The 

list(s) of names shall be alphabetized 

(overall or by department) and be in an 

electronic format approved by the 

General Counsel unless the employer 

certifies that it does not possess the 

capacity to produce the list in the 

required form. The employer’s 

Statement of Position shall also state 

whether the employer agrees that the 

Board has jurisdiction over it and 

provide the requested information 

concerning the employer’s relation to 

interstate commerce; identify any 

individuals whose eligibility to vote the 

employer intends to contest at the preelection hearing and the basis of each 

such contention; and state the length of 

the payroll period for employees in the 

proposed unit and the most recent 

payroll period ending date. The regional 

director may permit the employer to 

amend its Statement of Position in a 

timely manner for good cause. 

(3) Statement of Position in RD cases. 

If a petition has been filed under 


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§ 102.61(c) and the regional director has 

issued a notice of hearing, the employer 

and the certified or recognized 

representative of employees shall file 

with the regional director and serve on 

the parties named in the petition their 

respective Statements of Position such 

that they are received by the regional 

director and the parties named in the 

petition by the date and time specified 

in the notice of hearing, which shall be 

at noon on the business day before the 

opening of the hearing if the hearing is 

set to open 8 days from service of the 

notice. The regional director may set the 

date and time for filing and serving the 

Statement of Position earlier than at 

noon on the business day before the 

hearing in the event the hearing is set 

to open more than 8 days from service 

of the notice. The regional director may 

postpone the time for filing and serving 

the Statement of Position for up to 2 

business days upon request of a party 

showing special circumstances. The 

regional director may postpone the time 

for filing and serving the Statement of 

Position for more than 2 business days 

upon request of a party showing 

extraordinary circumstances. The 

regional director may permit the 

employer and the certified or recognized 

representative of employees to amend 

their respective Statements of Position 

in a timely manner for good cause. 

(i) The Statements of Position of the 

employer and the certified or recognized 

representative shall state each party’s 

position concerning the Board’s 

jurisdiction over the employer; state 

whether each agrees that the proposed 

unit is appropriate, and, if not, state the 

basis for the contention that the 

proposed unit is inappropriate, and 

state the classifications, locations, or 

other employee groupings that must be 

added to or excluded from the proposed 

unit to make it an appropriate unit; 

identify any individuals whose 

eligibility to vote each party intends to 

contest at the pre-election hearing and 

the basis of each such contention; raise 

any election bar; and state each party’s 

respective positions concerning the 

type, date(s), time(s), and location(s) of 

the election and the eligibility period; 

and describe all other issues each party 

intends to raise at the hearing. 

(ii) The Statements of Position shall 

also state the name, title, address, 

telephone number, facsimile number, 

and email address of the individual who 

will serve as the representative of the 

employer or the certified or recognized 

representative of the employees and 

accept service of all papers for purposes 

of the representation proceeding and be 

signed by a representative of the 

employer or the certified or recognized 

representative, respectively. 

(iii) The employer’s Statement of 

Position shall also include a list of the 

full names, work locations, shifts, and 

job classifications of all individuals in 

the proposed unit as of the payroll 

period preceding the filing of the 

petition who remain employed at the 

time of filing, and if the employer 

contends that the proposed unit is 

inappropriate, the employer shall 

separately list the full names, work 

locations, shifts, and job classifications 

of all individuals that the employer 

contends must be added to the proposed 

unit to make it an appropriate unit. The 

employer shall also indicate those 

individuals, if any, whom it believes 

must be excluded from the proposed 

unit to make it an appropriate unit. The 

list(s) of names shall be alphabetized 

(overall or by department) and be in an 

electronic format approved by the 

General Counsel unless the employer 

certifies that it does not possess the 

capacity to produce the list in the 

required form. The employer’s 

Statement of Position shall also provide 

the requested information concerning 

the employer’s relation to interstate 

commerce and state the length of the 

payroll period for employees in the 

proposed unit and the most recent 

payroll period ending date. 

(c) UC or AC cases. After a petition 

has been filed under § 102.61(d) or (e), 

the regional director shall conduct an 

investigation and, as appropriate, may 

issue a decision without a hearing; or 

prepare and cause to be served upon the 

parties and upon any known 

individuals or labor organizations 

purporting to act as representatives of 

any employees directly affected by such 

investigation, a notice of hearing before 

a hearing officer at a time and place 

fixed therein; or take other appropriate 

action. If a notice of hearing is served, 

it shall be accompanied by a copy of the 

petition. Any such notice of hearing 

may be amended or withdrawn before 

the close of the hearing by the regional 

director on the director’s own motion. 

All hearing and posthearing procedure 

under this paragraph (c) shall be in 

conformance with §§ 102.64 through 

102.69 whenever applicable, except 

where the unit or certification involved 

arises out of an agreement as provided 

in § 102.62(a), the regional director’s 

action shall be final, and the provisions 

for review of regional director’s 

decisions by the Board shall not apply. 

Dismissals of petitions without a 

hearing shall not be governed by 

§ 102.71. The regional director’s 

dismissal shall be by decision, and a 

request for review therefrom may be 

obtained under § 102.67, except where 

an agreement under § 102.62(a) is 

involved. 

■ 14. Revise § 102.64 to read as follows: 

§ 102.64 Conduct of hearing. 

(a) The purpose of a hearing 

conducted under Section 9(c) of the Act 

is to determine if a question of 

representation exists. A question of 

representation exists if a proper petition 

has been filed concerning a unit 

appropriate for the purpose of collective 

bargaining or concerning a unit in 

which an individual or labor 

organization has been certified or is 

being currently recognized by the 

employer as the bargaining 

representative. Disputes concerning 

individuals’ eligibility to vote or 

inclusion in an appropriate unit 

ordinarily need not be litigated or 

resolved before an election is 

conducted. If, upon the record of the 

hearing, the regional director finds that 

a question of representation exists, the 

director shall direct an election to 

resolve the question. 

(b) Hearings shall be conducted by a 

hearing officer and shall be open to the 

public unless otherwise ordered by the 

hearing officer. At any time, a hearing 

officer may be substituted for the 

hearing officer previously presiding. 

Subject to the provisions of § 102.66, it 

shall be the duty of the hearing officer 

to inquire fully into all matters and 

issues necessary to obtain a full and 

complete record upon which the Board 

or the regional director may discharge 

their duties under Section 9(c) of the 

Act. 

(c) The hearing shall continue from 

day to day until completed unless the 

regional director concludes that 

extraordinary circumstances warrant 

otherwise. The regional director may, in 

the director’s discretion, adjourn the 

hearing to a different place by 

announcement thereof at the hearing or 

by other appropriate notice. 

■ 15. Revise § 102.65 to read as follows: 

§ 102.65 Motions; intervention; appeals of 

hearing officer’s rulings. 

(a) All motions, including motions for 

intervention pursuant to paragraphs (b) 

and (e) of this section, shall be in 

writing or, if made at the hearing, may 

be stated orally on the record and shall 

briefly state the order or relief sought 

and the grounds for such motion. An 

original and two copies of written 

motions shall be filed and a copy 

thereof immediately shall be served on 

the other parties to the proceeding. 

Motions made prior to the transfer of the 

record to the Board shall be filed with 

the regional director, except that 


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motions made during the hearing shall 

be filed with the hearing officer. After 

the transfer of the record to the Board, 

all motions shall be filed with the 

Board. Such motions shall be printed or 

otherwise legibly duplicated. Eight 

copies of such motions shall be filed 

with the Board. Extra copies of 

electronically-filed papers need not be 

filed. The regional director may rule 

upon all motions filed with him, 

causing a copy of the ruling to be served 

on the parties, or may refer the motion 

to the hearing officer, except that if the 

regional director prior to the close of the 

hearing grants a motion to dismiss the 

petition, the petitioner may obtain a 

review of such ruling in the manner 

prescribed in § 102.71. The hearing 

officer shall rule, either orally on the 

record or in writing, upon all motions 

filed at the hearing or referred to the 

hearing officer as hereinabove provided, 

except that the hearing officer shall rule 

on motions to intervene and to amend 

the petition only as directed by the 

regional director, and except that all 

motions to dismiss petitions shall be 

referred for appropriate action at such 

time as the entire record is considered 

by the regional director or the Board, as 

the case may be. All motions, rulings, 

and orders shall become a part of the 

record, except that rulings on motions to 

revoke subpoenas shall become a part of 

the record only upon the request of the 

party aggrieved thereby as provided in 

§ 102.66(f). 

(b) Any person desiring to intervene 

in any proceeding shall make a motion 

for intervention, stating the grounds 

upon which such person claims to have 

an interest in the proceeding. The 

regional director, or the hearing officer 

at the specific direction of the regional 

director, may by order permit 

intervention in person or by counsel or 

other representative to such extent and 

upon such terms as the regional director 

may deem proper, and such intervenor 

shall thereupon become a party to the 

proceeding. 

(c) Rulings by the hearing officer shall 

not be appealed directly to the regional 

director, except by special permission of 

the regional director, but shall be 

considered by the regional director 

when the director reviews the entire 

record. Requests to the regional director 

for special permission to appeal from a 

ruling of the hearing officer, together 

with the appeal from such ruling, shall 

be filed promptly, in writing, and shall 

briefly state the reasons special 

permission should be granted and the 

grounds relied on for the appeal. The 

moving party shall immediately serve a 

copy of the request for special 

permission and of the appeal on the 

other parties and on the regional 

director. Any statement in opposition or 

other response to the request and/or to 

the appeal shall be filed promptly, in 

writing, and shall be served 

immediately on the other parties and on 

the regional director. No party shall be 

precluded from raising an issue at a 

later time because it did not seek special 

permission to appeal. If the regional 

director grants the request for special 

permission to appeal, the regional 

director may proceed forthwith to rule 

on the appeal. Neither the filing nor the 

grant of such a request shall stay the 

proceedings unless otherwise ordered 

by the regional director. As stated in 

§ 102.67, the parties may request Board 

review of regional director actions. 

(d) The right to make motions or to 

make objections to rulings on motions 

shall not be deemed waived by 

participation in the proceeding. 

(e)(1) A party to a proceeding may, 

because of extraordinary circumstances, 

move after the close of the hearing for 

reopening of the record, or move after 

the decision or report for 

reconsideration, for rehearing, or to 

reopen the record, but no such motion 

shall stay the time for filing a request for 

review of a decision or exceptions to a 

report. No motion for reconsideration, 

for rehearing, or to reopen the record 

will be entertained by the Board or by 

any regional director or hearing officer 

with respect to any matter which could 

have been but was not raised pursuant 

to any other section of these rules, 

except that the regional director may 

treat a request for review of a decision 

or exceptions to a report as a motion for 

reconsideration. A motion for 

reconsideration shall state with 

particularity the material error claimed 

and with respect to any finding of 

material fact shall specify the page of 

the record relied on for the motion. A 

motion for rehearing or to reopen the 

record shall specify briefly the error 

alleged to require a rehearing or hearing 

de novo, the prejudice to the movant 

alleged to result from such error, the 

additional evidence sought to be 

adduced, why it was not presented 

previously, and what result it would 

require if adduced and credited. Only 

newly discovered evidence—evidence 

which has become available only since 

the close of the hearing—or evidence 

which the regional director or the Board 

believes should have been taken at the 

hearing will be taken at any further 

hearing. 

(2) Any motion for reconsideration or 

for rehearing pursuant to paragraph 

(e)(1) of this section shall be filed within 

14 days, or such further period as may 

be allowed, after the service of the 

decision or report. Any request for an 

extension of time to file such a motion 

shall be served promptly on the other 

parties. A motion to reopen the record 

shall be filed promptly on discovery of 

the evidence sought to be adduced. 

(3) The filing and pendency of a 

motion under this provision shall not 

unless so ordered operate to stay the 

effectiveness of any action taken or 

directed to be taken nor will a regional 

director or the Board delay any decision 

or action during the period specified in 

paragraph (e)(2) of this section, except 

that, if a motion for reconsideration 

based on changed circumstances or to 

reopen the record based on newly 

discovered evidence states with 

particularity that the granting thereof 

will affect the eligibility to vote of 

specific employees, the Board agent 

shall have discretion to allow such 

employees to vote subject to challenge 

even if they are specifically excluded in 

the direction of election and to 

challenge or permit the moving party to 

challenge the ballots of such employees 

even if they are specifically included in 

the direction of election in any election 

conducted while such motion is 

pending. A motion for reconsideration, 

for rehearing, or to reopen the record 

need not be filed to exhaust 

administrative remedies. 

■ 16. Revise § 102.66 to read as follows: 

§ 102.66 Introduction of evidence: rights of 

parties at hearing; preclusion; subpoenas; 

oral argument and briefs. 

(a) Rights of parties at hearing. Any 

party shall have the right to appear at 

any hearing in person, by counsel, or by 

other representative, to call, examine, 

and cross-examine witnesses, and to 

introduce into the record evidence of 

the significant facts that support the 

party’s contentions and are relevant to 

the existence of a question of 

representation. The hearing officer shall 

also have power to call, examine, and 

cross-examine witnesses and to 

introduce into the record documentary 

and other evidence. Witnesses shall be 

examined orally under oath. The rules 

of evidence prevailing in courts of law 

or equity shall not be controlling. 

Stipulations of fact may be introduced 

in evidence with respect to any issue. 

(b) Response to Statement of Position. 

Issues in dispute shall be identified as 

follows: After a Statement of Position is 

received in evidence and prior to the 

introduction of further evidence, all 

other parties shall respond on the record 

to each issue raised in the Statement. 

The regional director may permit the 

Statement of Position to be amended in 

a timely manner for good cause, in 

which event the other parties shall 


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respond to each amended position. The 

regional director may also permit 

responses to be amended in a timely 

manner for good cause. The hearing 

officer shall not receive evidence 

concerning any issue as to which parties 

have not taken adverse positions, except 

that this provision shall not preclude 

the receipt of evidence regarding the 

Board’s jurisdiction over the employer 

or limit the regional director’s discretion 

to direct the receipt of evidence 

concerning any issue, such as the 

appropriateness of the proposed unit, as 

to which the regional director 

determines that record evidence is 

necessary. 

(c) Offers of proof. The regional 

director shall direct the hearing officer 

concerning the issues to be litigated at 

the hearing. The hearing officer may 

solicit offers of proof from the parties or 

their counsel as to any or all such 

issues. Offers of proof shall take the 

form of a written statement or an oral 

statement on the record identifying each 

witness the party would call to testify 

concerning the issue and summarizing 

each witness’s testimony. If the regional 

director determines that the evidence 

described in an offer of proof is 

insufficient to sustain the proponent’s 

position, the evidence shall not be 

received. 

(d) Preclusion. A party shall be 

precluded from raising any issue, 

presenting any evidence relating to any 

issue, cross-examining any witness 

concerning any issue, and presenting 

argument concerning any issue that the 

party failed to raise in its timely 

Statement of Position or to place in 

dispute in response to another party’s 

Statement of Position or response, 

except that no party shall be precluded 

from contesting or presenting evidence 

relevant to the Board’s statutory 

jurisdiction to process the petition. Nor 

shall any party be precluded, on the 

grounds that a voter’s eligibility or 

inclusion was not contested at the preelection hearing, from challenging the 

eligibility of any voter during the 

election. If a party contends that the 

proposed unit is not appropriate in its 

Statement of Position but fails to specify 

the classifications, locations, or other 

employee groupings that must be added 

to or excluded from the proposed unit 

to make it an appropriate unit, the party 

shall also be precluded from raising any 

issue as to the appropriateness of the 

unit, presenting any evidence relating to 

the appropriateness of the unit, crossexamining any witness concerning the 

appropriateness of the unit, and 

presenting argument concerning the 

appropriateness of the unit. If the 

employer fails to timely furnish the lists 

of employees described in 

§§ 102.63(b)(1)(iii),(b)(2)(iii), or 

(b)(3)(iii), the employer shall be 

precluded from contesting the 

appropriateness of the proposed unit at 

any time and from contesting the 

eligibility or inclusion of any 

individuals at the pre-election hearing, 

including by presenting evidence or 

argument, or by cross-examination of 

witnesses. 

(e) Objections. Any objection with 

respect to the conduct of the hearing, 

including any objection to the 

introduction of evidence, may be stated 

orally or in writing, accompanied by a 

short statement of the grounds of such 

objection, and included in the record. 

No such objection shall be deemed 

waived by further participation in the 

hearing. 

(f) Subpoenas. The Board, or any 

Member thereof, shall, on the written 

application of any party, forthwith issue 

subpoenas requiring the attendance and 

testimony of witnesses and the 

production of any evidence, including 

books, records, correspondence, or 

documents, in their possession or under 

their control. The Executive Secretary 

shall have the authority to sign and 

issue any such subpoenas on behalf of 

the Board or any Member thereof. Any 

party may file applications for 

subpoenas in writing with the regional 

director if made prior to hearing, or with 

the hearing officer if made at the 

hearing. Applications for subpoenas 

may be made ex parte. The regional 

director or the hearing officer, as the 

case may be, shall forthwith grant the 

subpoenas requested. Any person 

served with a subpoena, whether ad 

testificandum or duces tecum, if he or 

she does not intend to comply with the 

subpoena, shall, within 5 days after the 

date of service of the subpoena, petition 

in writing to revoke the subpoena. The 

date of service for purposes of 

computing the time for filing a petition 

to revoke shall be the date the subpoena 

is received. Such petition shall be filed 

with the regional director who may 

either rule upon it or refer it for ruling 

to the hearing officer, except that if the 

evidence called for is to be produced at 

a hearing and the hearing has opened, 

the petition to revoke shall be filed with 

the hearing officer. Notice of the filing 

of petitions to revoke shall be promptly 

given by the regional director or hearing 

officer, as the case may be, to the party 

at whose request the subpoena was 

issued. The regional director or the 

hearing officer, as the case may be, shall 

revoke the subpoena if, in his opinion, 

the evidence whose production is 

required does not relate to any matter 

under investigation or in question in the 

proceedings or the subpoena does not 

describe with sufficient particularity the 

evidence whose production is required, 

or if for any other reason sufficient in 

law the subpoena is otherwise invalid. 

The regional director or the hearing 

officer, as the case may be, shall make 

a simple statement of procedural or 

other grounds for his ruling. The 

petition to revoke, any answer filed 

thereto, and any ruling thereon shall not 

become part of the record except upon 

the request of the party aggrieved by the 

ruling. Persons compelled to submit 

data or evidence are entitled to retain or, 

on payment of lawfully prescribed costs, 

to procure copies or transcripts of the 

data or evidence submitted by them. 

(g) Election details. Prior to the close 

of the hearing, the hearing officer will: 

(1) Solicit the parties’ positions on the 

type, date(s), time(s), and location(s) of 

the election and the eligibility period, 

but shall not permit litigation of those 

issues; 

(2) Solicit the name, address, email 

address, facsimile number, and phone 

number of the employer’s on-site 

representative to whom the regional 

director should transmit the Notice of 

Election in the event the regional 

director directs an election; 

(3) Inform the parties that the regional 

director will issue a decision as soon as 

practicable and that the director will 

immediately transmit the document to 

the parties and their designated 

representatives by email, facsimile, or 

by overnight mail (if neither an email 

address nor facsimile number was 

provided); and 

(4) Inform the parties what their 

obligations will be under these rules if 

the director directs an election and of 

the time for complying with such 

obligations. 

(h) Oral argument and briefs. Any 

party shall be entitled, upon request, to 

a reasonable period at the close of the 

hearing for oral argument, which shall 

be included in the stenographic report 

of the hearing. Post-hearing briefs shall 

be filed only upon special permission of 

the regional director and within the 

time and addressing the subjects 

permitted by the regional director. 

Copies of the brief shall be served on all 

other parties to the proceeding and a 

statement of such service shall be filed 

with the regional director together with 

the brief. No reply brief may be filed 

except upon special permission of the 

regional director. 

(i) Hearing officer analysis. The 

hearing officer may submit an analysis 

of the record to the regional director but 

shall make no recommendations. 


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(j) Witness fees. Witness fees and 

mileage shall be paid by the party at 

whose instance the witness appears. 

■ 17. Revise § 102.67 to read as follows: 

§ 102.67 Proceedings before the regional 

director; further hearing; action by the 

regional director; appeals from actions of 

the regional director; statement in 

opposition; requests for extraordinary 

relief; Notice of Election; voter list. 

(a) Proceedings before regional 

director. The regional director may 

proceed, either forthwith upon the 

record or after oral argument, the 

submission of briefs, or further hearing, 

as the director may deem proper, to 

determine whether a question of 

representation exists in a unit 

appropriate for purposes of collective 

bargaining, and to direct an election, 

dismiss the petition, or make other 

disposition of the matter. A decision by 

the regional director upon the record 

shall set forth the director’s findings, 

conclusions, and order or direction. 

(b) Directions of elections. If the 

regional director directs an election, the 

direction ordinarily will specify the 

type, date(s), time(s), and location(s) of 

the election and the eligibility period. 

The regional director shall schedule the 

election for the earliest date practicable 

consistent with these rules. The regional 

director shall transmit the direction of 

election to the parties and their 

designated representatives by email, 

facsimile, or by overnight mail (if 

neither an email address nor facsimile 

number was provided). The regional 

director shall also transmit the Board’s 

Notice of Election to the parties and 

their designated representatives by 

email, facsimile, or by overnight mail (if 

neither an email address nor facsimile 

number was provided), and it will 

ordinarily be transmitted 

simultaneously with the direction of 

election. If the direction of election 

provides for individuals to vote subject 

to challenge because their eligibility has 

not been determined, the Notice of 

Election shall so state, and shall advise 

employees that the individuals are 

neither included in, nor excluded from, 

the bargaining unit, inasmuch as the 

regional director has permitted them to 

vote subject to challenge. The election 

notice shall further advise employees 

that the eligibility or inclusion of the 

individuals will be resolved, if 

necessary, following the election. 

(c) Requests for Board review of 

regional director actions. 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 under 

Section 3(b) of the Act except as the 

Board’s rules provide otherwise, but 

such a review shall not, unless 

specifically ordered by the Board, 

operate as a stay of any action by the 

regional director. The request for review 

may be filed at any time following the 

action until 14 days after a final 

disposition of the proceeding by the 

regional director. No party shall be 

precluded from filing a request for 

review of the direction of election 

within the time provided in this 

paragraph because it did not file a 

request for review of the direction of 

election prior to the election. 

(d) Grounds for review. The Board 

will grant a request for review only 

where compelling reasons exist therefor. 

Accordingly, a request for review may 

be granted only upon one or more of the 

following grounds: 

(1) That a substantial question of law 

or policy is raised because of: 

(i) The absence of; or 

(ii) A departure from, officially 

reported Board precedent. 

(2) That the regional director’s 

decision on a substantial factual issue is 

clearly erroneous on the record and 

such error prejudicially affects the rights 

of a party. 

(3) That the conduct of any hearing or 

any ruling made in connection with the 

proceeding has resulted in prejudicial 

error. 

(4) That there are compelling reasons 

for reconsideration of an important 

Board rule or policy. 

(e) Contents of request. A request for 

review must be a self-contained 

document enabling the Board to rule on 

the basis of its contents without the 

necessity of recourse to the record; 

however, the Board may, in its 

discretion, examine the record in 

evaluating the request. With respect to 

the ground listed in paragraph (d)(2) of 

this section, and other grounds where 

appropriate, the request must contain a 

summary of all evidence or rulings 

bearing on the issues together with page 

citations from the transcript and a 

summary of argument. Such request 

may not raise any issue or allege any 

facts not timely presented to the 

regional director. 

(f) Opposition to request. Any party 

may, within 7 days after the last day on 

which the request for review must be 

filed, file with the Board a statement in 

opposition which shall be served in 

accordance with the requirements of 

paragraph (i) of this section. The Board 

may grant or deny the request for review 

without awaiting a statement in 

opposition. 

(g) Finality; waiver; denial of request. 

The regional director’s actions are final 

unless a request for review is granted. 

The parties may, at any time, waive 

their right to request review. Failure to 

request review shall preclude such 

parties from relitigating, in any related 

subsequent unfair labor practice 

proceeding, any issue which was, or 

could have been, raised in the 

representation proceeding. Denial of a 

request for review shall constitute an 

affirmance of the regional director’s 

action which shall also preclude 

relitigating any such issues in any 

related subsequent unfair labor practice 

proceeding. 

(h) Grant of review; briefs. The grant 

of a request for review shall not stay the 

regional director’s action unless 

otherwise ordered by the Board. Except 

where the Board rules upon the issues 

on review in the order granting review, 

the appellants and other parties may, 

within 14 days after issuance of an order 

granting review, file briefs with the 

Board. Such briefs may be 

reproductions of those previously filed 

with the regional director and/or other 

briefs which shall be limited to the 

issues raised in the request for review. 

Where review has been granted, the 

Board may provide for oral argument or 

further hearing. The Board will consider 

the entire record in the light of the 

grounds relied on for review and shall 

make such disposition of the matter as 

it deems appropriate. Any request for 

review may be withdrawn with the 

permission of the Board at any time 

prior to the issuance of the decision of 

the Board thereon. 

(i)(1) Format of request. All 

documents filed with the Board under 

the provisions of this section shall be 

filed in seven copies, double spaced, on 

81⁄2- by 11-inch paper, and shall be 

printed or otherwise legibly duplicated. 

Extra copies of electronically-filed 

papers need not be filed. Requests for 

review, including briefs in support 

thereof and any motions under 

paragraph (j) of this section; statements 

in opposition thereto; and briefs on 

review shall not exceed 50 pages in 

length, exclusive of subject index and 

table of cases and other authorities 

cited, unless permission to exceed that 

limit is obtained from the Board by 

motion, setting forth the reasons 

therefor, filed not less than 5 days, 

including Saturdays, Sundays, and 

holidays, prior to the date the document 

is due. Where any brief filed pursuant 

to this section exceeds 20 pages, it shall 

contain a subject index with page 

authorities cited. A party may combine 

a request for review of the regional 

director’s decision and direction of 

election with a request for review of a 

regional director’s post-election 

decision, if the party has not previously 


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filed a request for review of the preelection decision. Repetitive requests 

will not be considered. 

(2) Service. The party filing with the 

Board a request for review, a statement 

in opposition to a request for review, or 

a brief on review shall serve a copy 

thereof on the other parties and shall 

file a copy with the regional director. A 

certificate of service shall be filed with 

the Board together with the document. 

(3) Extensions. Requests for 

extensions of time to file requests for 

review, statements in opposition to a 

request for review, or briefs, as 

permitted by this section, shall be filed 

with the Board or the regional director, 

as the case may be. The party filing the 

request for an extension of time shall 

serve a copy thereof on the other parties 

and, if filed with the Board, on the 

regional director. A statement of such 

service shall be filed with the 

document. 

(j) Requests for extraordinary relief. 

(1) A party requesting review may also 

move in writing to the Board for one or 

more of the following forms of relief: 

(i) Expedited consideration of the 

request; 

(ii) A stay of some or all of the 

proceedings, including the election; or 

(iii) Impoundment and/or segregation 

of some or all of the ballots. 

(2) Relief will be granted only upon a 

clear showing that it is necessary under 

the particular circumstances of the case. 

The pendency of a motion does not 

entitle a party to interim relief, and an 

affirmative ruling by the Board granting 

relief is required before the action of the 

regional director will be altered in any 

fashion. 

(k) Notice of election. The employer 

shall post copies of the Board’s Notice 

of Election in conspicuous places, 

including all places where notices to 

employees in the unit are customarily 

posted, at least 3 full working days prior 

to 12:01 a.m. of the day of the election 

and shall also distribute it electronically 

if the employer customarily 

communicates with employees in the 

unit electronically. In elections 

involving mail ballots, the election shall 

be deemed to have commenced the day 

the ballots are deposited by the regional 

office in the mail. In all cases, the 

notices shall remain posted until the 

end of the election. The term working 

day shall mean an entire 24-hour period 

excluding Saturdays, Sundays, and 

holidays. The employer’s failure 

properly to post or distribute the 

election notices as required herein shall 

be grounds for setting aside the election 

whenever proper and timely objections 

are filed under the provisions of 

§ 102.69(a). A party shall be estopped 

from objecting to the nonposting of 

notices if it is responsible for the 

nonposting, and likewise shall be 

estopped from objecting to the 

nondistribution of notices if it is 

responsible for the nondistribution. 

(l) Voter list. Absent extraordinary 

circumstances specified in the direction 

of election, the employer shall, within 2 

business days after issuance of the 

direction, provide to the regional 

director and the parties named in such 

direction a list of the full names, work 

locations, shifts, job classifications, and 

contact information (including home 

addresses, available personal email 

addresses, and available home and 

personal cellular (‘‘cell’’) telephone 

numbers) of all eligible voters. The 

employer shall also include in a 

separate section of that list the same 

information for those individuals who, 

according to the direction of election, 

will be permitted to vote subject to 

challenge, including, for example, 

individuals in the classifications or 

other groupings that will be permitted to 

vote subject to challenge. In order to be 

timely filed and served, the list must be 

received by the regional director and the 

parties named in the direction 

respectively within 2 business days after 

issuance of the direction of election 

unless a longer time is specified therein. 

The list of names shall be alphabetized 

(overall or by department) and be in an 

electronic format approved by the 

General Counsel unless the employer 

certifies that it does not possess the 

capacity to produce the list in the 

required form. When feasible, the list 

shall be filed electronically with the 

regional director and served 

electronically on the other parties 

named in the direction. A certificate of 

service on all parties shall be filed with 

the regional director when the voter list 

is filed. The employer’s failure to file or 

serve the list within the specified time 

or in proper format shall be grounds for 

setting aside the election whenever 

proper and timely objections are filed 

under the provisions of § 102.69(a). The 

employer shall be estopped from 

objecting to the failure to file or serve 

the list within the specified time or in 

the proper format if it is responsible for 

the failure. The parties shall not use the 

list for purposes other than the 

representation proceeding, Board 

proceedings arising from it, and related 

matters. 

■ 18. Revise § 102.68 to read as follows: 

§ 102.68 Record in pre-election 

proceeding; what constitutes; transmission 

to Board. 

The record in a proceeding conducted 

pursuant to the foregoing section shall 

consist of: the petition, notice of hearing 

with affidavit of service thereof, 

statements of position, responses to 

statements of position, offers of proof 

made at the pre-election hearing, 

motions, rulings, orders, the 

stenographic report of the hearing and 

of any oral argument before the regional 

director, stipulations, exhibits, affidavits 

of service, and any briefs or other legal 

memoranda submitted by the parties to 

the regional director or to the Board, 

and the decision of the regional director, 

if any. Immediately upon issuance of an 

order granting a request for review by 

the Board, the regional director shall 

transmit the record to the Board. 

■ 19. Revise § 102.69 to read as follows: 

§ 102.69 Election procedure; tally of 

ballots; objections; certification by the 

regional director; hearings; hearing officer 

reports on objections and challenges; 

exceptions to hearing officer reports; 

regional director decisions on objections 

and challenges. 

(a) Election procedure; tally; 

objections. Unless otherwise directed by 

the Board, all elections shall be 

conducted under the supervision of the 

regional director in whose Region the 

proceeding is pending. All elections 

shall be by secret ballot. Whenever two 

or more labor organizations are included 

as choices in an election, either 

participant may, upon its prompt 

request to and approval thereof by the 

regional director, whose decision shall 

be final, have its name removed from 

the ballot, except that in a proceeding 

involving an employer-filed petition or 

a petition for decertification, the labor 

organization certified, currently 

recognized, or found to be seeking 

recognition may not have its name 

removed from the ballot without giving 

timely notice in writing to all parties 

and the regional director, disclaiming 

any representation interest among the 

employees in the unit. A pre-election 

conference may be held at which the 

parties may check the list of voters and 

attempt to resolve any questions of 

eligibility or inclusions in the unit. 

When the election is conducted 

manually, any party may be represented 

by observers of its own selection, 

subject to such limitations as the 

regional director may prescribe. Any 

party and Board agents may challenge, 

for good cause, the eligibility of any 

person to participate in the election. 

The ballots of such challenged persons 

shall be impounded. Upon the 

conclusion of the election the ballots 

will be counted and a tally of ballots 

prepared and immediately made 

available to the parties. Within 7 days 

after the tally of ballots has been 


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prepared, any party may file with the 

regional director an original and five 

copies of objections to the conduct of 

the election or to conduct affecting the 

results of the election which shall 

contain a short statement of the reasons 

therefor and a written offer of proof in 

the form described in § 102.66(c) insofar 

as applicable, except that the regional 

director may extend the time for filing 

the written offer of proof in support of 

the election objections upon request of 

a party showing good cause. Such 

filing(s) must be timely whether or not 

the challenged ballots are sufficient in 

number to affect the results of the 

election. The party filing the objections 

shall serve a copy of the objections, 

including the short statement of reasons 

therefor, but not the written offer of 

proof, on each of the other parties to the 

case, and include a certificate of such 

service with the objections. A person 

filing objections by facsimile pursuant 

to § 102.114(f) shall also file an original 

for the Agency’s records, but failure to 

do so shall not affect the validity of the 

filing if otherwise proper. In addition, 

extra copies need not be filed if the 

filing is by facsimile or electronically 

pursuant to § 102.114(f) or (i). The 

regional director will transmit a copy of 

the objections to each of the other 

parties to the proceeding, but shall not 

transmit the offer of proof. 

(b) Certification in the absence of 

objections, determinative challenges 

and runoff elections. If no objections are 

filed within the time set forth in 

paragraph (a) of this section, if the 

challenged ballots are insufficient in 

number to affect the results of the 

election, and if no runoff election is to 

be held pursuant to § 102.70, the 

regional director shall forthwith issue to 

the parties a certification of the results 

of the election, including certification of 

representative where appropriate with 

the same force and effect as if issued by 

the Board. 

(c)(1)(i) Decisions resolving objections 

and challenges without a hearing. If 

timely objections are filed to the 

conduct of an election or to conduct 

affecting the results of the election, and 

the regional director determines that the 

evidence described in the 

accompanying offer of proof would not 

constitute grounds for setting aside the 

election if introduced at a hearing, and 

the regional director determines that 

any determinative challenges do not 

raise substantial and material factual 

issues, the regional director shall issue 

a decision disposing of the objections 

and determinative challenges, and a 

certification of the results of the 

election, including certification of 

representative where appropriate. 

(ii) Notices of hearing on objections 

and challenges. If timely objections are 

filed to the conduct of the election or to 

conduct affecting the results of the 

election, and the regional director 

determines that the evidence described 

in the accompanying offer of proof 

could be grounds for setting aside the 

election if introduced at a hearing, or if 

the challenged ballots are sufficient in 

number to affect the results of the 

election and raise substantial and 

material factual issues, the regional 

director shall transmit to the parties and 

their designated representatives by 

email, facsimile, or by overnight mail (if 

neither an email address nor facsimile 

number was provided) a notice of 

hearing before a hearing officer at a 

place and time fixed therein. The 

regional director shall set the hearing for 

a date 21 days after the preparation of 

the tally of ballots or as soon as 

practicable thereafter, unless the parties 

agree to an earlier date, except that the 

regional director may consolidate the 

hearing concerning objections and 

challenges with an unfair labor practice 

proceeding before an administrative law 

judge. In any proceeding wherein the 

election has been held pursuant to 

§ 102.62(a) or (c) and the representation 

case has been consolidated with an 

unfair labor practice proceeding for 

purposes of hearing, the administrative 

law judge shall, after issuing a decision, 

sever the representation case and 

transfer it to the regional director for 

further processing. 

(iii) Hearings; hearing officer reports; 

exceptions to regional director. The 

hearing on objections and challenges 

shall continue from day to day until 

completed unless the regional director 

concludes that extraordinary 

circumstances warrant otherwise. Any 

hearing pursuant to this section shall be 

conducted in accordance with the 

provisions of §§ 102.64, 102.65, and 

102.66, insofar as applicable. Any party 

shall have the right to appear at the 

hearing in person, by counsel, or by 

other representative, to call, examine, 

and cross-examine witnesses, and to 

introduce into the record evidence of 

the significant facts that support the 

party’s contentions and are relevant to 

the objections and determinative 

challenges that are the subject of the 

hearing. The hearing officer may rule on 

offers of proof. Post-hearing briefs shall 

be filed only upon special permission of 

the hearing officer and within the time 

and addressing the subjects permitted 

by the hearing officer. Upon the close of 

such hearing, the hearing officer shall 

prepare and cause to be served on the 

parties a report resolving questions of 

credibility and containing findings of 

fact and recommendations as to the 

disposition of the issues. Any party 

may, within 14 days from the date of 

issuance of such report, file with the 

regional director an original and one 

copy of exceptions to such report, with 

supporting brief if desired. A copy of 

such exceptions, together with a copy of 

any brief filed, shall immediately be 

served on the other parties and a 

statement of service filed with the 

regional director. Within 7 days from 

the last date on which exceptions and 

any supporting brief may be filed, or 

such further time as the regional 

director may allow, a party opposing the 

exceptions may file an answering brief 

with the regional director. An original 

and one copy shall be submitted. A 

copy of such answering brief shall 

immediately be served on the other 

parties and a statement of service filed 

with the regional director. Extra copies 

of electronically-filed papers need not 

be filed. The regional director shall 

thereupon decide the matter upon the 

record or make other disposition of the 

case. If no exceptions are filed to such 

report, the regional director, upon the 

expiration of the period for filing such 

exceptions, may decide the matter 

forthwith upon the record or may make 

other disposition of the case. 

(2) Regional director decisions and 

Board review. The decision of the 

regional director may include a 

certification of the results of the 

election, including certification of 

representative where appropriate, and 

shall be final unless a request for review 

is granted. If a consent election has been 

held pursuant to §§ 102.62(a) or (c), the 

decision of the regional director is not 

subject to Board review. If the election 

has been conducted pursuant to 

§ 102.62(b), or by a direction of election 

issued following any proceeding under 

§ 102.67, the parties shall have the right 

to Board review set forth in § 102.67, 

except that in any proceeding wherein 

a representation case has been 

consolidated with an unfair labor 

practice proceeding for purposes of 

hearing and the election was conducted 

pursuant to §§ 102.62(b) or 102.67, the 

provisions of § 102.46 shall govern with 

respect to the filing of exceptions or an 

answering brief to the exceptions to the 

administrative law judge’s decision, and 

a request for review of the regional 

director’s decision and direction of 

election shall be due at the same time 

as the exceptions to the administrative 

law judge’s decision are due. 

(d)(1)(i) Record in case with hearing. 

In a proceeding pursuant to this section 

in which a hearing is held, the record 

in the case shall consist of the notice of 


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hearing, motions, rulings, orders, 

stenographic report of the hearing, 

stipulations, exhibits, together with the 

objections to the conduct of the election 

or to conduct affecting the results of the 

election, offers of proof made at the 

post-election hearing, any briefs or other 

legal memoranda submitted by the 

parties, any report on such objections 

and/or on challenged ballots, 

exceptions, the decision of the regional 

director, any requests for review, and 

the record previously made as defined 

in § 102.68. Materials other than those 

set out above shall not be a part of the 

record. 

(ii) Record in case with no hearing. In 

a proceeding pursuant to this section in 

which no hearing is held, the record 

shall consist of the objections to the 

conduct of the election or to conduct 

affecting the results of the election, any 

decision on objections or on challenged 

ballots and any request for review of 

such a decision, any documentary 

evidence, excluding statements of 

witnesses, relied upon by the regional 

director in his decision, any briefs or 

other legal memoranda submitted by the 

parties, and any other motions, rulings 

or orders of the regional director. 

Materials other than those set out above 

shall not be a part of the record, except 

as provided in paragraph (d)(3) of this 

section. 

(2) Immediately upon issuance of an 

order granting a request for review by 

the Board, the regional director shall 

transmit to the Board the record of the 

proceeding as defined in paragraph 

(d)(1) of this section. 

(3) In a proceeding pursuant to this 

section in which no hearing is held, a 

party filing a request for review of a 

regional director’s decision on 

challenged ballots or on objections or on 

both, or any opposition thereto, may 

support its submission to the Board by 

appending thereto copies of any offer of 

proof, including copies of any affidavits 

or other documentary evidence, it has 

timely submitted to the regional director 

and which were not included in the 

decision. Documentary evidence so 

appended shall thereupon become part 

of the record in the proceeding. Failure 

to append that evidence to its 

submission to the Board in the 

representation proceeding as provided 

above, shall preclude a party from 

relying on such evidence in any 

subsequent unfair labor proceeding. 

(e) Revised tally of ballots. In any case 

under this section in which the regional 

director or the Board, upon a ruling on 

challenged ballots, has directed that 

such ballots be opened and counted and 

a revised tally of ballots issued, and no 

objection to such revised tally is filed by 

any party within 7 days after the revised 

tally of ballots has been made available, 

the regional director shall forthwith 

issue to the parties certification of the 

results of the election, including 

certifications of representative where 

appropriate with the same force and 

effect as if issued by the Board. 

(f) Format of filings with regional 

director. All documents filed with the 

regional director under the provisions of 

this section shall be filed double spaced, 

on 81⁄2- by 11-inch paper, and shall be 

printed or otherwise legibly duplicated. 

Extra copies of electronically-filed 

papers need not be filed. Briefs in 

support of exceptions or answering 

briefs shall not exceed 50 pages in 

length, exclusive of subject index and 

table of cases and other authorities 

cited, unless permission to exceed that 

limit is obtained from the regional 

director by motion, setting forth the 

reasons therefor, filed not less than 5 

days, including Saturdays, Sundays, 

and holidays, prior to the date the brief 

is due. Where any brief filed pursuant 

to this section exceeds 20 pages, it shall 

contain a subject index with page 

references and an alphabetical table of 

cases and other authorities cited. 

(g) Extensions of time. Requests for 

extensions of time to file exceptions, 

requests for review, supporting briefs, or 

answering briefs, as permitted by this 

section, shall be filed with the Board or 

the regional director, as the case may be. 

The party filing the request for an 

extension of time shall serve a copy 

thereof on the other parties and, if filed 

with the Board, on the regional director. 

A statement of such service shall be 

filed with the document. 

■ 20. Revise § 102.71(c) to read as 

follows: 

§ 102.71 Dismissal of petition; refusal to 

proceed with petition; requests for review 

by the Board of action of the regional 

director. 

* * * * * 

(c) A request for review must be filed 

with the Board in Washington, DC, and 

a copy filed with the regional director 

and copies served on all the other 

parties within 14 days of service of the 

notice of dismissal or notification that 

the petition is to be held in abeyance. 

The request shall be submitted in eight 

copies and shall contain a complete 

statement setting forth facts and reasons 

upon which the request is based. The 

request shall be printed or otherwise 

legibly duplicated. Extra copies of 

electronically-filed papers need not be 

filed. Requests for an extension of time 

within which to file the request for 

review shall be filed with the Board in 

Washington, DC, and a certificate of 

service shall accompany the requests. 

Subpart D—Procedure for Unfair Labor 

Practice and Representation Cases 

Under Sections 8(b)(7) and 9(c) of the 

Act 

■ 21. Revise § 102.76 to read as follows: 

§ 102.76 Petition; who may file; where to 

file; contents. 

When picketing of an employer has 

been conducted for an object proscribed 

by Section 8(b)(7) of the Act, a petition 

for the determination of a question 

concerning representation of the 

employees of such employer may be 

filed in accordance with the provisions 

of §§ 102.60 and 102.61, insofar as 

applicable, except that if a charge under 

§ 102.73 has been filed against the labor 

organization on whose behalf picketing 

has been conducted, the petition shall 

not be required to contain a statement 

that the employer declines to recognize 

the petitioner as the representative 

within the meaning of Section 9(a) of 

the Act; or that the union represents a 

substantial number of employees; or 

that the labor organization is currently 

recognized but desires certification 

under the Act; or that the individuals or 

labor organizations who have been 

certified or are currently recognized by 

the employer are no longer the 

representative; or, if the petitioner is an 

employer, that one or more individuals 

or labor organizations have presented to 

the petitioner a claim to be recognized 

as the exclusive representative of the 

employees in the unit claimed to be 

appropriate. 

■ 22. Revise § 102.77(b) to read as 

follows: 

§ 102.77 Investigation of petition by 

regional director; directed election. 

* * * * * 

(b) If after the investigation of such 

petition or any petition filed under 

subpart C of this part, and after the 

investigation of the charge filed 

pursuant to § 102.73, it appears to the 

regional director that an expedited 

election under section 8(b)(7)(C) of the 

Act is warranted, and that the policies 

of the Act would be effectuated thereby, 

the regional director shall forthwith 

proceed to conduct an election by secret 

ballot of the employees in an 

appropriate unit, or make other 

disposition of the matter, except that in 

any case in which it appears to the 

regional director that the proceeding 

raises questions which cannot be 

decided without a hearing, the director 

may issue and cause to be served on the 

parties, individuals, and labor 


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organizations involved a notice of 

hearing before a hearing officer at a time 

and place fixed therein. In this event, 

the method of conducting the hearing 

and the procedure following shall be 

governed insofar as applicable by 

§§ 102.63 through 102.68 inclusive. 

Subpart E—Procedure for Referendum 

Under Section 9(e) of the Act 

■ 23. Revise § 102.83 to read as follows: 

§ 102.83 Petition for referendum under 

Section 9(e)(1) of the Act; who may file; 

where to file; withdrawal. 

A petition to rescind the authority of 

a labor organization to make an 

agreement requiring as a condition of 

employment membership in such labor 

organization may be filed by an 

employee or group of employees on 

behalf of 30 percent or more of the 

employees in a bargaining unit covered 

by such an agreement. The petition shall 

be in writing and signed, and either 

shall be sworn to before a notary public, 

Board agent, or other person duly 

authorized by law to administer oaths 

and take acknowledgments or shall 

contain a declaration by the person 

signing it, under the penalties of the 

Criminal Code, that its contents are true 

and correct to the best of his knowledge 

and belief. One original of the petition 

shall be filed with the regional director 

wherein the bargaining unit exists or, if 

the unit exists in two or more Regions, 

with the regional director for any of 

such Regions. A person filing a petition 

by facsimile pursuant to § 102.114(f) 

shall also file an original for the 

Agency’s records, but failure to do so 

shall not affect the validity of the filing 

by facsimile, if otherwise proper. A 

person filing a petition electronically 

pursuant to § 102.114(i) need not file an 

original. The petition may be withdrawn 

only with the approval of the regional 

director with whom such petition was 

filed. Upon approval of the withdrawal 

of any petition the case shall be closed. 

■ 24. Amend § 102.84 by revising 

paragraph (i), redesignating paragraph 

(j) as paragraph (k), and adding new 

paragraphs (j), (l), (m), and (n) to read 

as follows: 

§ 102.84 Contents of petition to rescind 

authority. 

* * * * * 

(i) The name and address of the 

petitioner, and the name, title, address, 

telephone number, facsimile number, 

and email address of the individual who 

will serve as the representative of the 

petitioner and accept service of all 

papers for purposes of the proceeding. 

(j) A statement that 30 percent or 

more of the bargaining unit employees 

covered by an agreement between their 

employer and a labor organization made 

pursuant to Section 8(a)(3) of the Act, 

desire that the authority to make such 

an agreement be rescinded. 

* * * * * 

(l) Evidence supporting the statement 

that 30 percent or more of the 

bargaining unit employees desire to 

rescind the authority of their employer 

and labor organization to enter into an 

agreement made pursuant to Section 

8(a)(3) of the Act. Such evidence shall 

be filed together with the petition, but 

shall not be served on any other party. 

(m) Evidence filed pursuant to 

paragraph (l) of this section together 

with a petition that is filed by facsimile 

or electronically, which includes 

original signatures that cannot be 

transmitted in their original form by the 

method of filing of the petition, may be 

filed by facsimile or in electronic form 

provided that the original documents 

are received by the regional director no 

later than 2 days after the facsimile or 

electronic filing. 

(n) The type, date(s), time(s) and 

location(s) of the election sought. 

■ 25. Revise § 102.85 to read as follows: 

§ 102.85 Investigation of petition by 

regional director; consent referendum; 

directed referendum. 

Where a petition has been filed 

pursuant to § 102.83, and it appears to 

the regional director that the petitioner 

has made an appropriate showing, in 

such form as the regional director may 

determine, that 30 percent or more of 

the employees within a unit covered by 

an agreement between their employer 

and a labor organization requiring 

membership in such labor organization 

desire to rescind the authority of such 

labor organization to make such an 

agreement, the director shall proceed to 

conduct a secret ballot of the employees 

involved on the question whether they 

desire to rescind the authority of the 

labor organization to make such an 

agreement with their employer, except 

that in any case in which it appears to 

the regional director that the proceeding 

raises questions which cannot be 

decided without a hearing, the director 

may issue and cause to be served on the 

parties a notice of hearing before a 

hearing officer at a time and place fixed 

therein. The regional director shall fix 

the time and place of the election, 

eligibility requirements for voting, and 

other arrangements of the balloting, but 

the parties may enter into an agreement, 

subject to the approval of the regional 

director, fixing such arrangements. In 

any such consent agreements, provision 

may be made for final determination of 

all questions arising with respect to the 

balloting by the regional director or, 

upon grant of a request for review, by 

the Board. 

■ 26. Revise § 102.86 to read as follows: 

§ 102.86 Hearing; posthearing procedure. 

The method of conducting the hearing 

and the procedure following the hearing 

shall be governed, insofar as applicable, 

by §§ 102.63 through 102.68 inclusive. 

Subpart I—Service and Filing of 

Papers 

■ 27. Revise § 102.112 to read as 

follows: 

§ 102.112 Date of service; date of filing. 

The date of service shall be the day 

when the matter served is deposited in 

the United States mail, or is deposited 

with a private delivery service that will 

provide a record showing the date the 

document was tendered to the delivery 

service, or is delivered in person, as the 

case may be. Where service is made by 

electronic mail, the date of service shall 

be the date on which the message is 

sent. Where service is made by facsimile 

transmission, the date of service shall be 

the date on which transmission is 

received. The date of filing shall be the 

day when the matter is required to be 

received by the Board as provided by 

§ 102.111. 

■ 28. Revise § 102.113(d) to read as 

follows: 

§ 102.113 Methods of service of process 

and papers by the Agency; proof of service. 

* * * * * 

(d) Service of other documents. Other 

documents may be served by the 

Agency by any of the foregoing methods 

as well as regular mail, electronic mail 

or private delivery service. Such other 

documents may be served by facsimile 

transmission with the permission of the 

person receiving the document. 

* * * * * 

■ 29. Revise § 102.114(a), (d), and (g) to 

read as follows: 

§ 102.114 Filing and service of papers by 

parties; form of papers; manner and proof 

of filing or service; electronic filings. 

(a) Service of documents by a party on 

other parties may be made personally, 

or by registered mail, certified mail, 

regular mail, electronic mail (if the 

document was filed electronically or if 

specifically provided for in these rules), 

or private delivery service. Service of 

documents by a party on other parties 

by any other means, including facsimile 

transmission, is permitted only with the 

consent of the party being served. 

Unless otherwise specified elsewhere in 

these rules, service on all parties shall 


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be made in the same manner as that 

utilized in filing the document with the 

Board, or in a more expeditious manner; 

however, when filing with the Board is 

done by hand, the other parties shall be 

promptly notified of such action by 

telephone, followed by service of a copy 

in a manner designed to insure receipt 

by them by the close of the next 

business day. The provisions of this 

section apply to the General Counsel 

after a complaint has issued, just as they 

do to any other party, except to the 

extent that the provisions of § 102.113(a) 

or (c) provide otherwise. 

* * * * * 

(d) Papers filed with the Board, 

General Counsel, Regional Director, 

Administrative Law Judge, or Hearing 

Officer shall be typewritten or otherwise 

legibly duplicated on 81⁄2- by 11-inch 

plain white paper, shall have margins 

no less than one inch on each side, shall 

be in a typeface no smaller than 12 

characters-per-inch (elite or the 

equivalent), and shall be double spaced 

(except that quotations and footnotes 

may be single spaced). Nonconforming 

papers may, at the Agency’s discretion, 

be rejected. 

* * * * * 

(g) Facsimile transmissions of the 

following documents will not be 

accepted for filing: Answers to 

Complaints; Exceptions or CrossExceptions; Briefs; Requests for Review 

of Regional Director Decisions; 

Administrative Appeals from Dismissal 

of Petitions or Unfair Labor Practice 

Charges; Objections to Settlements; 

EAJA Applications; Motions for Default 

Judgment; Motions for Summary 

Judgment; Motions to Dismiss; Motions 

for Reconsideration; Motions to Clarify; 

Motions to Reopen the Record; Motions 

to Intervene; Motions to Transfer, 

Consolidate or Sever; or Petitions for 

Advisory Opinions. Facsimile 

transmissions in contravention of this 

rule will not be filed. 

* * * * * 

PART 103—OTHER RULES 

■ 30. The authority citation for part 103 

continues to read as follows: 

Authority: 29 U.S.C. 156, in accordance 

with the procedure set forth in 5 U.S.C. 553. 

Subpart B—Election Procedures 

■ 31. Revise § 103.20 to read as follows: 

§ 103.20 Election procedures and blocking 

charges; filing of blocking charges; 

simultaneous filing of offer of proof; prompt 

furnishing of witnesses. 

Whenever any party to a 

representation proceeding files an unfair 

labor practice charge together with a 

request that it block the processing of 

the petition to the election, or whenever 

any party to a representation proceeding 

requests that its previously filed unfair 

labor practice charge block the further 

processing of a petition, the party shall 

simultaneously file, but not serve on 

any other party, a written offer of proof 

in support of the charge. The offer of 

proof shall provide the names of the 

witnesses who will testify in support of 

the charge and a summary of each 

witness’s anticipated testimony. The 

party seeking to block the processing of 

a petition shall also promptly make 

available to the regional director the 

witnesses identified in its offer of proof. 

If the regional director determines that 

the party’s offer of proof does not 

describe evidence that, if proven, would 

interfere with employee free choice in 

an election or would be inherently 

inconsistent with the petition itself, and 

thus would require that the processing 

of the petition be held in abeyance 

absent special circumstances, the 

regional director shall continue to 

process the petition and conduct the 

election where appropriate. 

By direction of the Board. 

Dated: Washington, DC, December 4, 2014. 

William B. Cowen, 

Solicitor. 

[FR Doc. 2014–28777 Filed 12–12–14; 8:45 am] 

BILLING CODE 7545–01–P 


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